Water Environment (Abstractions and Associated Impoundments) Act 2022

PART 1 Preliminary and general

1. Citation and commencement

1. (1) This Act may be cited as the Water Environment (Abstractions and Associated Impoundments) Act 2022.

(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Interpretation

2. (1) In this Act—

“abstraction” has the meaning given to it by section 3(1);

“abstraction point” means the point at which an abstraction takes place and includes any borehole, well, sump or inlet pipe;

“Act of 1942” means the Water Supplies Act 1942;

“Act of 1990” means the Shannon Navigation Act 1990;

“Act of 1992” means the Environmental Protection Agency Act 1992;

“Act of 2000” means the Planning and Development Act 2000;

F1[“Act of 2024”means thePlanning and Development Act 2024;]

“Agency” means the Environmental Protection Agency;

“applicant” means a person who applies for a licence in accordance with section 21, 29 or 37;

“associated impoundment” has the meaning given to it by section 3(5);

“Birds Directive” means Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009^4 on the conservation of wild birds, amended by Council Directive 2013/17/EU of 13 May 2013^5 and Regulation (EU) 2019/1010 of the European Parliament and of the Council of 5 June 2019^6;

“Board” means An Bord Pleanála;

“body of groundwater” means a distinct volume of groundwater within an aquifer or aquifers;

“body of surface water” means a discrete and significant element of surface water such as a lake, a reservoir, a stream, river or canal, or part of a stream, river or canal;

“canal” means the Royal Canal, the Grand Canal, the Grand Canal Barrow line, and the canalised section of the Shannon Erne Waterway;

“cease carrying out an abstraction” means, in relation to an abstraction, discontinuing the abstraction permanently;

“compliance notice” means a compliance notice given by a local authority under section 97 or given by the Agency under section 98;

“daily rate”, in relation to an abstraction, means the volume of water abstracted in any 24 hour period;

“development” has the same meaning as it has in the Act of 2000;

“District Court” means the District Court in the district court district in which the abstraction takes place;

“ecological status” is an expression of the quality of the structure and functioning of aquatic ecosystems associated with surface waters when so classified by the Agency in accordance with the Regulations of 2009;

“EIA Directive” means Directive No. 2011/92/EU of the European Parliament and of the Council of 13 December 2011^7 on the assessment of the effects of certain public and private projects on the environment, amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014^8;

“enactment” means—

(a) an Act of the Oireachtas,

(b) a statute that was in force in Saorstát Éireann immediately before the date of coming into operation of the Constitution and that continues in force by virtue of Article 50 of the Constitution, or

(c) an instrument made under an Act of the Oireachtas or a statute referred to in paragraph (b);

“environmental objectives” means—

(a) in relation to a body of surface water, the objectives established by Article 28 of the Regulations of 2009, subject to the application of Articles 29 to 34 of those Regulations,

(b) in relation to a body of groundwater, the objectives established by Regulation 4(b) of the Regulations of 2010, subject to the application of Regulations 16 to 20 of those Regulations, or

(c) in relation to a protected area, the standards and objectives established by the Birds Directive, the Habitats Directive or the Regulations of 2011, as the case may be, under which the protected area has been designated;

“ESB” means the Electricity Supply Board;

“European Site” has the same meaning as it has in the Regulations of 2011;

“groundwater” means all water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil;

“groundwater status” means the status of a body of groundwater that is determined by the poorer of its quantitative status and its chemical status as classified by the Agency in accordance with the Regulations of 2010;

“Habitats Directive” means Council Directive 92/43/EEC of 21 May 1992^9 on the conservation of natural habitats and of wild fauna and flora amended by Council Directive 97/62/EC of 27 October 1997^10, Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003^11, Council Directive 2006/105/EC of 20 November 2006^12 and Council Directive 2013/17/EU of 13 May 2013^13;

“hydrological regime” means—

(a) in relation to a river, the quantity and dynamics of flow in the river together with the resultant connection to groundwater,

(b) in relation to a lake, the quantity and dynamics of flow, lake water level and the estimated time for replacement of all of its water and the resultant connection to groundwater, and

(c) in relation to a body of groundwater, the level of groundwater, including any alterations to its flow direction brought about by anthropogenic changes to the water level of the body of groundwater, together with the resultant connection to surface water and terrestrial ecosystems which depend directly on the body of groundwater;

“impoundment” has the meaning given to it by section 3(10);

“joint licence” has the meaning given to it by section 47(1);

“local authority” has the same meaning as it has in the Local Government Act 2001;

“licence” means a licence granted under section 27, 35 or 44;

“licensee” means the holder or holders of a licence;

“licensing threshold” means—

(a) the daily rate prescribed under section 16(1)(b), or

(b) if no rate is prescribed under that section, 2,000 cubic metres or more in any 24 hour period;

“Minister” means the Minister for Housing, Local Government and Heritage;

“morphological condition” means—

(a) in relation to a river, its channel patterns, width and depth variation and flow velocities as well as the condition of its substrate and the structure and condition of its riparian zones, and

(b) in relation to a lake, its depth variation, the quantity and structure of its substrate and the structure and condition of the lake shore zone;

“navigable water” shall not include a canal and means—

(a) the Shannon navigation, within the meaning of the Act of 1990, and

(b) the Ballinamore and Ballyconnell navigation, within the meaning of section 5 of the Act of 1990,

(c) the Erne and Lough Oughter navigation, within the meaning of section 5 of the Act of 1990, and

(d) the Barrow navigation;

“planning authority” has the same meaning as it has in the Act of 2000;

“prescribe” means prescribe by regulations made by the Minister under this Act or by order made by the Minister under section 16 or section 80;

“protected area” means an area designated as requiring special protection under the Birds Directive, the Habitats Directive or the Regulations of 2011 for the protection of its surface water and groundwater or for the conservation of habitats and species of European sites directly dependent on water, and entered in the register established by the Agency in accordance with Article 8 of the Regulations of 2003;

“public abstraction” means an abstraction or increase of an abstraction by Irish Water for the purpose of the performance by Irish Water of any of its functions under any enactment;

“public authority” means a body specified in the Schedule;

“quantitative status” is an expression of the degree to which a body of groundwater is affected by direct or indirect abstraction as determined by the Agency in accordance with the test procedures specified in Schedule 3 to the Regulations of 2010;

“register” means the register of abstractions established under section 10;

“registration threshold” means—

(a) the daily rate prescribed under section 16(1)(a), or

(b) if no rate is prescribed under that section, 25 cubic metres or more in any 24 hour period;

“Regulations of 2001” means the Planning and Development Regulations 2001 (S.I. No. 600 of 2001);

“Regulations of 2003” means the European Communities (Water Policy) Regulations 2003 (S.I. No. 722 of 2003);

“Regulations of 2009” means the European Communities Environmental Objectives (Surface Waters) Regulations 2009 (S.I. No. 272 of 2009);

“Regulations of 2010” means the European Communities Environmental Objectives (Groundwater) Regulations 2010 (S.I. No. 9 of 2010);

“Regulations of 2011” means the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011);

“Regulations of 2018” means the European Union (Water Policy) (Abstractions Registration) Regulations 2018 (S.I. No. 261 of 2018);

“River Basin Management Plan” means a plan made under Regulation 13 of the Regulations of 2003;

“river continuity” means the level of anthropogenic disturbance to a water body of a river affecting the undisturbed migration of aquatic organisms and the transport of sediment along that water body;

“significant abstraction” shall be construed in accordance with section 18(1);

“single abstraction” shall be construed in accordance with section 3(3);

“surface water” means all standing or flowing fresh water on the surface of the land;

“surface water status” means the status of a body of surface water that is determined by the poorer of its ecological status and its chemical status as classified by the Agency in accordance with the Regulations of 2009;

“transboundary state” means any state, other than Ireland, which is a party to the United Nations Economic Commission for Europe Convention on Environmental Impact Assessment in a Transboundary Context, done at Espoo (Finland) on 25 February 1991;

“water body” means a body of surface water or a body of groundwater;

“water environment” means any, or any part of any, water body;

“Water Framework Directive” means Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000^14 establishing a framework for Community action in the field of water policy;

“works” includes any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal.

(2) A word or expression that is used in this Act and is also used in the EIA Directive or the Water Framework Directive has, unless the context otherwise requires, the same meaning in this Act as it has in the Directive concerned.

3. Application of Act and supplemental provisions relating to abstractions and associated impoundments

3. (1) This Act shall apply to the removal or diversion of water from the water environment (in this Act referred to as an “abstraction”).

(2) An abstraction may be carried out by mechanical means, through a pipe, or by diverting the flow of water or by means of a structure or works for that purpose.

(3) Two or more abstractions from different abstraction points in the same water body which join to form one abstraction serving the same person shall be considered to be a single abstraction for the purposes of—

(a) the registration threshold, and

(b) the licensing threshold.

(4) An abstraction may be carried out for the purpose of transfer of water from one part of the water environment to another.

(5) This Act shall apply to an impoundment where an abstraction cannot be carried out without an impoundment (in this Act referred to as an “associated impoundment”).

(6) In this Act, unless the context otherwise requires, a reference to an abstraction which cannot be carried out without an impoundment shall include a reference to its associated impoundment.

(7) A reference in this Act to a licence includes a reference to a joint licence.

(8) Where a joint licence is granted, a reference in this Act to a licensee includes a reference to the persons carrying out the abstraction and operating the associated impoundment the subject of that licence.

(9) This Act shall apply to a licence amended under section 51 or 52 as it applies to a licence and a reference in this Act to a licence includes a reference to a licence so amended.

(10) In this section, “impoundment” means the doing of anything whereby the water level or flow in surface waters or the continuity of the morphological condition of a body of surface water is permanently or temporarily changed by means of a structure, including a dam or weir, situated in the water and built or maintained for the purpose of an abstraction or works situated in the water and carried out for that purpose.

4. Regulations and orders

4. (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed and different regulations may be made in respect of different classes of persons or matters the subject of the prescribing concerned and for different circumstances or classes of circumstances in relation to such different matters or different classes of matters.

(2) Regulations under this Act or an order under section 16 or 80 may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations or order.

(3) Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(4) An order under section 16 shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving the draft has been passed by each such House.

5. Expenses of Minister

5. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of monies provided by the Oireachtas.

6. Giving of notices

6. (1) Subject to subsections (2) and (4), a notice that is required to be given to a person under this Act shall be in writing and addressed to the person concerned by name, and may be so given to the person in one or more than one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person carries on business or ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person carries on business or ordinarily resides or, in a case in which an address for service has been furnished, to that address;

(d) where the address at which the person ordinarily resides cannot be ascertained by reasonable inquiry and the notice relates to land, by delivering it to a person over the age of 16 years resident or employed at the land, or by affixing it in a conspicuous position at or near the land;

(e) by electronic means to the e-mail address of the person, in a case in which the person giving the notice concerned reasonably believes that the e-mail address is being used by the first mentioned person.

(2) Where a notice under this Act is to be given to a person who is the owner or occupier of land and the name of the person cannot be ascertained by reasonable inquiry, it may be addressed to the person by using the words “the owner” or, as the case may require, “the occupier”.

(3) Where a notice under this Act is to be given—

(a) to the owner of land and there are 2 or more co-owners of the land, it shall be sufficient to give notice to one or more of those co-owners, or

(b) to the occupier of land and there are 2 or more persons who share occupation of the land, it shall be sufficient to give notice to one or more of those persons.

(4) For the purpose of this section, a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

7. Repeals and revocations

7. (1) Each of the following is repealed:

(a) the Act of 1942;

(b) section 4 of the Local Government (Sanitary Services) Act 1964;

(c) subsections (2) and (8) of section 9 of the Local Government (Water Pollution) Act 1977.

(2) The Regulations of 2018 are revoked.

PART 2 Regulations for certain abstractions

8. Regulations for certain abstractions

8. (1) The Minister, as soon as practicable after the coming into operation of this section, and following consultation with the Agency, shall make regulations for the purpose of regulating—

(a) an abstraction in respect of which a licence is not required under this Act, and

(b) an abstraction that was being carried out immediately before the coming into operation of section 15 in respect of which a licence is required under this Act, until such time as the Agency makes a decision to grant the licence.

(2) Without prejudice to the generality of subsection (1), regulations under this section may prescribe all or any of the following:

(a) requirements in relation to measuring or estimating the daily rate and the maintenance of records relating to the daily rate;

(b) limits on the rate of water that may be abstracted from a body of surface water having regard to the surface water status;

(c) measures to provide for the migration of fish and other aquatic species, including the maintenance of natural flow patterns and sediment transport within a body of surface water;

(d) controls relating to the abstraction of groundwater to protect the quantitative status of a body of groundwater including, in particular, terrestrial ecosystems associated with and dependent on that body of groundwater;

(e) requirements in relation to the maintenance of pipework, storage tanks and other equipment associated with an abstraction for the purposes of controlling water leakage;

(f) requirements in relation to the construction, extension and operation of any well, borehole or other works through which water may be abstracted in order to avoid the entry of pollutants or water of a different chemical composition into the water environment;