Licensing of abstractions
The Water Environment (Abstractions and Associated Impoundments) Act 2022 applies Schedules 6, 7, and 7A of the Planning and Development Regulations of 2001 to abstractions under this act, subject to any necessary modifications.
The Act establishes the types of abstractions that will require a licence to abstract.Where a person carried out an abstraction that is above the licensing threshold before the commencement of this section, they are required to submit a licence application within 6 months of the commencement
Where a person intends to carry out a new abstraction above the licensing threshold they shall not commence the abstraction until the licence has been granted.
Where the Agency determines a licence is required , the person shall submit an application within 6 months of the determination. The Act provides for the requirement to apply for a licence where an abstraction is of a type listed and a retrospective EIA was required . S
Persons who wish to increase the rate of their abstraction, or vary it in some other respect, must also apply for a license for this increased or varied abstraction. There may be an application to extend the period in which to make a licence application. Non-compliance with this section is an offence.
Registration and licensing thresholds
The Minister may to specify or reduce the registration threshold or specify or vary the licensing threshold, for the purpose of the sustainable management of water resources. The EPA may submit a report to the Minister recommending an order to alter the thresholds and the Minister shall consider this report along with a number of other matters listed
Following an order to change the licensing or registration thresholds, an abstractor will have to register or submit a licence application where their abstraction now meets the new thresholds, and it shall be an offence not to do so.
Agency opinion that licence required
The Agency has the power to notify an abstractor of its opinion that their abstraction, that does not otherwise require a licence, requires a licence to facilitate the proper regulation of the abstraction. A public authority may notify the Agency of its opinion that an abstraction should require a licence to facilitate its proper regulation. The section provides the procedure whereby the Agency shall issue its opinion and allow observations from a person carrying out an abstraction prior to its determination that a licence is required.
Identification of significant abstractions
The Agency shall assess each proposed abstraction above the registration threshold and below the licensing threshold to determine if it is a significant abstraction. Where the Agency determines an abstraction is significant it will give the reasons for its opinion and require an application for a licence to be made. Each assessment of significance shall be reviewed not less than once every 6 years.
Assessment of certain abstractions
The Agency may assess abstractions in certain categories to determine if they should be subject to an Environmental Impact Assessment or a Retrospective EIA. This assessment will result in a determination that either no EIA is required, an EIA screening assessment is required, or an EIA is required, based on whether there have been or may be significant effects on the environment arising from the abstraction. Where the Agency concludes that an EIA is required, the person carrying out an abstraction shall be required to submit a licence application. The Act also outlines the process of an EIA screening assessment.
Grant of licences
The Agency may grant or refuse licence applications and attach such conditions to the licence it considers appropriate. The licence shall be indefinite however the Agency may impose conditions concerning its duration. The Agency shall not grant a licence unless it is satisfied that the abstraction subject to the licence conditions shall not cause a deterioration in in the status of the water body or compromise compliance with standards or objectives for a protected area.
The Agency may refuse a licence where they deem it unacceptable on environmental grounds. The Agency shall attach conditions consistent with the environmental objectives of the water body. There is an outline of the matters the Agency shall have regard for in considering the application as well as the conditions that may be attached to a licence. The Agency may charge a fee to discharge costs of monitoring and ensuring compliance with the licence. The Act specifies the circumstances in which the Agency shall not have to carry out an EIA screening assessment or EIA.
Application for licence for abstraction
There is provision for applications for abstraction licences that do not require retrospective EIA or a combined application for an increase in the abstraction taking place. It states that the person shall apply for a licence and provide all of the prescribed information to the EPA’s EIA portal. The EPA will carry out an EIA for certain classes of abstractions.
Coordination of EIA
This section provides that where the Agency is required to carry out an EIA under section 21, that it may do so in consultation with a planning authority or An Bord Pleanála, and that the EIA will be coordinated with any assessments of the abstraction under the EU Habitats Directive or Birds Directive.
EIAR for an abstraction
An applicant is to submit an Environmental Impact Assessment Report for abstractions that require an EIA. The section contains details of what must be included in an EIAR, the issuing of an opinion on the scope and detail required in an EIAR by the Agency, and the Agency’s consideration of the EIAR submitted.
The Agency will determine if an abstraction is likely to have significant effects on the environment. Following this screening the Agency will determine either that the abstraction shall be subject to an EIA or that it will not. The Act describes the matters to be considered in, and process of, the assessment.
Coordination of EIA with Planning Authority or Board
In relation to abstractions that involve development or proposed development for which a grant of permission is required, the applicant will have to provide confirmation and evidence that a grant of permission has been applied for or granted, including a copy of the relevant EIAR or confirmation from the planning authority that no EIA was required under the Planning and Development Act.
If a required grant of permission is not evidenced by the applicant, the abstraction licence will not be granted. There is a procedure for communication, observations and consultation between the planning authority and the Agency before the Agency makes its determination to grant or refuse a licence, or in relation to an EIA being conducted by the planning authority.
Submission of information for purposes of Chapter 2
The Agency may request further information necessary to assess an application or carry out an EIA.
Grant or refusal of licence application
The Agency will make and publish its proposed decision within 8 weeks following the submission of the application or any further information and invite observations. This period may be extended for specified reasons. Within 8 weeks following the submission of observations it will make and publish its decision. It is an offence to carry on an abstraction where a licence has been refused.
Decision where application was subject to EIA
There are steps the Agency shall take and matters it will consider in relation to assessing an application that is subject to an EIA, and the details to be included in the decision made to grant or refuse a licence.
Licence application requiring retrospective EIA or screening for retrospective EIA
A person is to apply for a licence where a retrospective EIA or screening for retrospective EIA is required. There is information to submitted to the EPA’s EIA portal. The Act provides for the classes of abstraction for which the EPA is responsible for carrying out an EIA.
There is provision for the the carrying out of a test to establish if exceptional circumstances exist that make it appropriate to carry out a retrospective EIA on an abstraction. Where the Agency is not satisfied these circumstances exist, the retrospective EIA shall not be carried out, and a licence shall be refused
There are requirements for submitting a retrospective EIAR to the EIA portal, and what is to be contained in a retrospective EIAR. Where an application for a licence for a class of abstraction that may require retrospective EIA is not accompanied by a retrospective EIAR, the Agency will conduct a retrospective screening determination to establish whether the abstractions has had or is likely to have significant effects on the environment. This section applies provisions in relation to a screening assessment for an EIA , to a screening determination for retrospective EIAs.
Consultation with planning authority
Where a licence application requiring retrospective EIA is submitted, the Agency will request observations from the relevant planning authority and consider these observations, and the results of any other consultations it deems necessary, before giving notice of its proposed decision.
Grant or refusal of licence application
There is a timeline within which the EPA will make its proposed decision on an application for a licence requiring retrospective EIAR, and its final decision following the receipt of observations. This timeline will be 8 weeks following the application or receipt of further information for its proposed decision, followed by 28 days for observations to be submitted, followed by a further 8 weeks to make its final decision having considered received observations. It will be an offence to abstract where a licence application under this part has been refused.
Combined application for licence
This Act provides for applications for licences that comprise an existing abstraction, in operation prior to the commencement of this Act, and a revised abstraction, which will increase the existing abstraction. These abstractions may be subject to EIA and/or retrospective EIA. The section provides for the applicant to submit the relevant information to the EPA’s EIA portal.
Where an EIA is to be carried out by the Agency and the combined application comprises a revised abstraction involving development or proposed development, the EIA may be carried out in consultation with the planning authority. The EIA or retrospective EIA shall be coordinated with any assessment under the Habitats Directive or the Birds Directive.
Exceptionality test for combined application for licence
This Act established an “Exceptionality Test” for the existing abstraction forming part of a combined application for a licence, where the retrospective EIA shall not be carried out unless the Agency is satisfied that there are exceptional circumstances that warrant it. If the retrospective EIA is not carried out, the licence will be refused. This section applies the provisions in relation to exceptionality tests
Retrospective EIAR and EIAR
A retrospective EIAR is to be submitted to the Agency where the existing abstraction is subject to a retrospective EIA. It also applies the provisions in relation to an EIAR to a retrospective
EIAR in respect of an existing abstraction that forms part of a combined application for a licence under this part. The EIAR provisions shall also apply to the EIAR submitted in respect of the revised abstraction in a combined application for a licence.
Screening determinations for combined application for licence
There isa a screening determination for both a retrospective EIA for the existing abstraction, and a screening determination for an EIA for the revised abstraction, as part of the combined application for a licence. The provisions in relation to screening for EIA on an application are also applied to screening determinations under chapter 4.
The Agency is to give notice to the applicant requiring them to submit any further necessary information for consideration of the application or for the carrying out of an EIA or retrospective EIA. It also provides for the withdrawal of an application where further necessary information is not provided within the specified period.
Grant or refusal of licence application
There are timelines for the decision of the Agency in relation to combined applications for a licence. The is 8 weeks following the application or receipt of further information for its proposed decision, followed by 28 days for observations to be submitted, followed by a further 8 weeks to make its final decision having considered received observations. It will be an offence to abstract where a licence application under this part has been refused.
Decision where application was subject to EIA or retro- spective EIA
There is provision for a decision on a combined application for a licence under section 44. The matters to be considered, steps to be taken and items for inclusion in a decision that requires an EIA or retrospective EIA, are to apply to decisions on combined applications for a licence as they do to decisions under section 21.
Obligations, joint licences, surrenders, transfers, reviews, revocation or suspension
General provisions relating to licensee
There are requirements a licensee must fulfil in order to be granted a licence and the obligations of a licensee. It states the requirement to comply with a licence, that the obligations of a licensee apply to each of the persons who apply for a licence if there is more than one person applying, and that each of the persons granted a licence will be jointly and severally responsible for the licence and its conditions. Threre is a lists a set of standards an applicant must meet to be granted a licence. It is an offence not to comply with the licence and any conditions of a licence.
Application for joint licence
Where an abstraction and associated impoundment are operated by different persons, a licence application may be made by one on behalf of both, or by both persons jointly. It provides for joint and several liability for the licence, but that the licence may allocate responsibility for certain conditions to one of the licence holders, subject to certain requirements. The Agency may require evidence and terms of an agreement between both persons applying for a joint licence.
Owner of impoundment not identified
The Agency may grant an abstraction licence with an associated impoundment when the owner of the impoundment cannot be identified, where all reasonable measures to identify the impoundment owner have been taken, and the abstractor agrees to be liable under the licence, for the operation and any conditions relating to the impoundment.
A licensee may surrender a licence, which will be via application to the Agency for a decision to accept a surrender. These provisions ensure that the obligations on a licensee are not affected by the cessation of an abstraction, and that the EPA may satisfy itself that the acceptance of the surrender will not adversely affect the environmental objectives of the water body concerned or the continued operation of an associated impoundment, prior to accepting the surrender.
Transfer of licence
There may be a transfer of a licence from one person to another. The Act provides for the application to the Agency by the licensee and proposed licensee and the when the Agency may accept an application to transfer the licence. The person to whom the licence is transferred must accept all liabilities, requirements and obligations associated with the licence.
Review of conditions attached to licence on application by licensee
A licensee may apply to the Agency for a review of the conditions attached to a licence. Licences for abstractions of a class at section 21(3)(a) must apply for a new licence, should the licensee wish to review the conditions attached to the licence. The Agency may refuse the application or review the conditions and amend the conditions, amend the conditions subject to modifications or refuse to amend the conditions.
Review by Agency of conditions attached to licence
The Agency may initiate a review of the conditions attached to a licence. It may not do so more frequently than once in every 3 year period after the date of the grant of the licence. The reasons for which the Agency may initiate a review are listed. There are notice requirements by the Agency, the right for a licensee to make representations in relation to the review, and potential EIA requirements arising as a result of the review of the conditions attached to a licence. The Agency may amend or not the conditions of a licence. The licensee may appeal the decision of the Agency
Revocation or suspension of licence
The Agency has the powert to revoke or suspend a licence. Revocation and suspension are part of the chain of enforcement steps as set out in Part 9 and may follow a failure to comply with a court order. Revocation or suspension may also occur where a person does not satisfy the requirements of a licensee where the abstraction has not commenced within, or ceased and not recommenced within 3 years, or where false or misleading information was provided to the Agency and the Agency deems it of such seriousness to revoke or suspend the licence.
There is a procedure by which the Agency may revoke or suspend a licence. It also allows the Agency to attach conditions to a revocation and suspension with which the licensee must comply. An appeal against the revocation or suspension shall suspend the decision until the High Court has made an order in relation to the appeal.
Termination of suspension
There is an an application by a licensee to the Agency to terminate a licence suspension. It provides for the power of the Agency to do so, and the manner in which it may do so.
Appeal to High Court of certain decisions of the Agency
There is a right of a licensee to appeal a revocation or suspension to the High Court, within 8 weeks of issue of the notice of the revocation or suspension. The High Court is to consider whether the Agency committed a serious error of law or fact in making its decision, and may confirm, set aside, or replace the decision of the Agency, or remit it to the Agency for reconsideration.
Judicial Review of decision of Agency or Minister
There is provision for a Judicial Review of a decision of the Agency (in relation to the grant of a licence), in relation to the surrender, transfer or review of conditions attached to a licence). It provides for Judicial Review of a decision of An Bord Pleanála and an order made by the Minister
It provides for how an application for Judicial Review is to be made, and how the High Court is to deal with the application for Judicial Review. Subsection 8 provides for when the Court may grant leave for Judicial Review.
Regulations relating to licences
There is regulation making powers of the Minister. The Act lists the matters regulations under this section may provide for.
The Agency is to prepare and issue technical guidelines on the categories of abstraction likely to require retrospective EIA or screening for retrospective EIA. The Agency is to revise these guidelines at intervals it considers appropriate.
Clerical or technical amendment of licence
The Agency may make amendments to the face of a licence. This power may be used to correct clerical errors, make amendments that could be reasonably regarded as being contemplated by the terms of a licence condition that were not explicitly stated, or otherwise facilitate the operation of the licence. The Agency shall consult with the licensee when making amendments, where appropriate.
Public abstraction by Irish Water
Power to carry out public abstraction
The Act empowers Uisce Eireann/Irish Water to carry out a public abstraction. Subsection 2 lists what Uisce Eireann/Irish Water may do in carrying out a public abstraction. Public abstraction is defined.
Notice of proposal to carry out public abstraction
There is a notification requirements for Uisce Eireann/Irish Water where it intends to carry out a public abstraction using its powers. This includes timelines, recipients of a notice and contents of a notice.
There are requirements for publishing of a notice in relation to a public abstraction by Uisce Eireann/Irish Water, and what is to be contained in the published notice. Subsection 4 also provides that where the owner or occupier of land cannot be ascertained by reasonable enquiry, that Uisce Eireann/Irish Water shall erect or affix a notice on the land for a period of not less than 42 days.
Objection to proposal to carry out public abstraction
There is a right of a person who believes his or her right, title or interest in any easement, way-leave, water right, fishing right or other right over or in respect of water would be materially adversely affected by a public abstraction by Uisce Eireann/Irish Water, to object to An Bord Pleanála. There are timeline for objecting and means by which an objection may be made.
No objection or objection withdrawn
Where no objection is made or an objection is withdrawn, that Uisce Eireann/Irish Water may carry out its proposed public abstraction. Uisce Eireann/Irish Water may only commence a public abstraction when it receives confirmation from the Board that no objections have been made or they have been withdrawn.
There is a procedure according to which An Bord Pleanála is to consider an objection, including the notification of Uisce Eireann/Irish Water and receipt of Uisce Eireann/Irish Water’s views in relation to the objection. The section also provides for the Board to consult with other bodies in making its decision. The Board is not required to carry out an EIA or EIA screening to consider the objection.
Decision by Board in respect of objection
There are factors the Board may consider, and what it shall have regard to, when making a decision on an objection. It may decide to reject or accede to the objection. Where the objection is rejected, Uisce Eireann/Irish Water may proceed with the public abstraction. Where it is acceded to, Uisce Eireann/Irish Water may not continue with the public abstraction notwithstanding if it has been granted an abstraction licence by the EPA, or any relevant planning permission.
There is provision notification by the Board of its decision the recipients of the notification and contents of the notification. It provides that Uisce Eireann/Irish Water is liable to pay any sum specified by the Board to contribute to the reasonable costs of the Board in making its decision, or of the Agency or planning authority of making submissions or observations. There is are timeline in which it will be the objective of the Board to make a decision on an objection, and circumstances in which it may be extended. Decisions are also included in reports by the Board under section 118 of the Act of 2000.