Pollution Control

Fisheries Offences

Before the modern water pollution legislation was introduced in the 1970s, there was fishing legislation which protected fishing waters. The release of certain materials and deleterious matter into waters is an offence under the Fisheries Act. Deleterious material is any substance which is injurious or poisonous to fish or their spawning grounds or their food or impairs the usefulness of the bed and soil of the waters as spawning ground.  It is an offence to cause or permit such matters to enter the water.

The offence is committed regardless of whether the person concerned has been negligent. Farmers can be prosecuted for leakages into water regardless of fault. Legislation is enforced by Inland Fisheries Ireland and the Loughs Agency in its area in Ireland and Northern Ireland. It can be prosecuted summarily in the District Court or with a jury in the Circuit Court.

There is a defence for discharges under a  water pollution licence and operators,and where the actions are based on compliance with standards under modern environmental legislation. The offences are still prosecuted because they are strict. Once the discharge water occurs, the onus is on the person prosecuted to raise the limited defences.

The Department of the Marine have powers to make bylaws under the Fisheries Act prohibiting the discharge of any effluent from sand or gravel washing plants to waters. The Loughs Agency has extensive powers to make regulations.

There are certain other specific prohibitions on the fisheries legislation in relation to damaging oyster beds, oyster fisheries muscles, periwinkle and cockle fisheries

Planning Conditions

Conditions relevant to water rivers and aquifers will often be found in planning permissions that govern particular uses of land. Local authority development plans reflect national water management objectives. Local authorities are obliged to adopt groundwater protection schemes in the development plan. They divide regions into zones corresponding to regionally important aquifers.

Maps accompanying planning applications for houses and other built premises must show septic tank wells and other features to which the planning application relates.

The EU guidance documents on river basin planning require that the objectives of protection of the water environment required under the water framework directive must be implemented through planning permissions.

Applications for development which involve significant abstraction or addition to water, whether resurface o or groundwater, development giving rise to a risk of the discharge of pollutants matters to water or development which would involve carrying out works over or along the banks of waters or any structure in over or along the banks which might materially affect such waters are to be notified to IFI.

The Geological Survey EPA and the Department of the Environment publish guidance on groundwater protection in relation to the wastewater systems for houses.

Planning permission can be refused on environmental grounds even if the activity is licensed by the EPA. However, there are limits on planning conditions which are more properly the subject of a pollution licence

Water Pollution

Water services have been managed by local government for over 150 years. Upon the establishment of Irish Water, the Minister transferred some functions relating to water services authorities to Irish Water. Licensing is largely retained by local authorities.

The Water Pollution Act makes it an offence to cause or permit any polluting matter to enter waters. It is subject on summary conviction to a class a fine or imprisonment up to 3 months. It is subject to conviction on indictment in the circuit court, with a fine of up to €15 million or imprisonment for a term not exceeding five years.

Water includes any river stream aquafer, watercourse or other inland waters, whether natural or artificial. It also includes any tidal waters. It is a defence that the person took all reasonable care to prevent entry into waters by maintaining operating supervising facilities or employing practices in accordance with the management plan or under a discharge licence under the legislation. Discharges permitted under an EPA or Irish water licence are exempted

The definition of pollution is slightly wider than under the Fisheries legislation as it also covers anything that renders water detrimental to domestic, commercial, industrial, agricultural, or recreational use.

There is provision for quality management plans under the legislation. Standards for particular waters are specified in regulations by the Department under the Environmental Protection Act. Standards for drinking, bathing, and freshwater supporting fish life are prescribed under EU legislation. The Water Framework Directive now seeks to create a coherent approach.

The defences are wider than under the fisheries legislation. There is a defence of using reasonable care, which effectively means following the relevant standards. There are also exemptions for discharges authorised under Arterial drainage legislation and turf development legislation.

Water Pollution Licences

In Ireland, in cases where Integrated Pollution Prevention Control (IPPC) is not applicable, the control of water pollution is exercised through the Local Government (Water Pollution) Acts 1977-1990 and Water Services Act 2007-2013. Local authorities are responsible for the issuing of effluent discharge licences for effluents discharged to waters and Irish Water are responsible for effluent discharges to sewers. Until January 1st, 2014, local authorities were responsible for issuing effluent discharge licences for effluents discharged to sewers, under the provisions of Section 16 of the (Water Pollution Act) 1977.

 Irish Water is now responsible for the issuing of effluent discharge licences for effluents discharged to sewers under the provisions of Section 7 of the Water Services (No.2) Act 2013, (which transfers part of the functions of the local authorities to Irish Water). A licence issued under Section 16 of the (Water Pollution Act) 1977 shall continue in force for the unexpired period of the licence, as if granted by Irish Water. As far as industry is concerned, a discharge of wastewater (effluent) to waters (river, stream, lake, estuary etc. and groundwater) or to a municipal sewer can only take place if it is licensed.

(Enterprise Ireland)

Licences are to be reviewed at intervals of not less than three years. They must also be reviewed automatically in some cases.

The discharge of effluent without a licence is subject to conviction in the District Court to a fine of up to €5000 or imprisonment for three months. It is subject to a fine of up to €15 million or imprisonment of up to 5 years on conviction on indictment (with jury) in the Circuit Court.

Water authorities must keep registers of licences granted by them. They must also keep

Effluent discharge licences (Irish Water)

 It is the legal responsibility of the discharger to apply for a licence. Application for discharge to waters should be made to the relevant local authority on a standard application form obtained from that local authority. Application for discharge to sewer should be made to Irish Water. Application forms are submitted on-line on the Irish Water website.

 The characteristics of the discharge must be fully described, and the completed application form must be accompanied by scaled drawings showing the layout of the premises, the drainage systems (foul and storm) and the point of discharge. A prescribed fee must be paid. In the case of a discharge to waters, a notice must first be published in a newspaper circulating in the functional area of the local authority and a copy of the notice attached to the application form. The local authority/Irish Water must make a decision within two months unless it requires further information or clarification.

 It is always advisable to consult with the local authority/Irish Water before making an application. This is to ensure, for example, that there is capacity in the local sewer to accept the discharge. It is important to realise that the local authority/Irish Water cannot grant a licence if subsequently there was likely to be a failure to meet a prescribed water quality standard. The local authority/Irish Water must also respect any international agreements to which Ireland is a signatory and which limit the discharge of specified pollutants to the environment.

 If the local authority/Irish Water decides to grant a licence it must be carefully examined on receipt as there are many cases on record where conditions imposed were impractical, unreasonable or prohibitively expensive to implement. The only means by which changes can be made is through an appeal to An Bord Pleanála within one month from the date of grant (or refusal). In the case of a discharge to waters, third parties may appeal. It is vital to realise that An Bord Pleanála adopts a very strict policy with regard to statutorily defined time periods.

(Enterprise Ireland)

 Water Management Plans

The local authority can be required to make a water quality management plan by the Department. It can be revised from time to time. Local authorities may make joint water quality management plans. The procedure for making a water quality management plan is specified in the legislation.

The Water framework directive now creates a state-wide obligation under EU law in relation to water management. There is intended to be a comprehensive approach to water management involving the water authorities but also other agencies and taking matters such as fisheries fund management, habitat protection, and fisheries.

River basin management plans now identify the impact on water quality and set quality objectives. The must identify and put in place monitoring and management measures. This promotes an integrated management of coastal and inland waters.

There is a procedure in relation to making a water quality management plan similar to that for the development plan. Representations may be made. Regard is had to water quality management plans in considering applications for licences for discharges. They must take into account national plans and quality objectives.

Special requirements for Some Substances

There are particular provisions as to water quality standards which are prescribed by the EU legislation. It identifies particular categories of harmful substances. The authorities, Irish Water and the EPA must take all steps that may be appropriate to comply with the requirements and standards. They are s obliged to attach conditions to it including conditions to protect drinking water and monitoring arrangements. The licences must be reviewed every four years.

Local government Water Pollution Regulations provide for licences for the discharge to an aquafer of certain substances. They must be accompanied by the results of a prior investigation unless the applicant can demonstrate to the authority concerned that the substances are present in so small a quantity concentration so as to obviate the present and future danger of deterioration in the quality of the aquifer’s water.

The prior investigation must include an assessment of the environmental impact of alternative methods of disposal of the substance, information about the aquifer to which it is proposed discharge and other information the authority may reasonably require to enable it to establish whether the proposed method of disposal a satisfactory have regard to environmental impact and the environmental impact of alternative methods.

The local authority must take account of the results of any prior investigation before making a decision on the licence.

Notification of Incidents and Obligations

As soon as practicable after the occurrence of an accidental discharge or spillage where polluting matter enters or is likely to enter any waters, the person responsible shall notify the local authority/Irish Water. When the subject matter is subject to EPA licensing, the EPA must be informed as well. Failure to do so is an offence subject to prosecution in the District Court, subject to a maximum class A fine (€5,000) and / or three months imprisonment.

The local authority/ Irish Water has power requirements to require information by notice in writing to persons abstracting water or discharging effluent sewage or pollutant matters into waters. Failure to respond as required to the notice requiring information is an offence.

Regulations and Byelaws

The Minister may make regulations. The Minister has powers to prescribe water quality in standards for particular classes of water trade effluent, sewage, et cetera. The Minister has extensive powers to make regulations to prohibit, limit, or control the production, treatment, and use of any specified substance. In practice, the EU standards apply.

Notices and Information

The local authority/ Irish Water has power requirements to require information by notice in writing to persons abstracting water or discharging effluent sewage, or pollutant matters into waters. Failure to respond as required to the notice requiring information is an offence.

The local authority must consider it is necessary to serve the notice for the purpose of preventing and eliminating or minimising the entry of pollution matter into  waters. It must consult with prescribed bodies. The notice may require certain information and measures. The EPA must be consulted

The local authority has the power to serve a notice on a person abstracting water requiring information related to water abstraction activities and practices within a 14-day period. Failure to respond is an offence.

Water authorities must keep registers of water abstractions other than abstractions which do not see 25 m² any 24-hour period.

EPA Licensing

Many of the local authority powers do not apply in relation to activities subject to licensing by the EPA. The EPA may apply conditions in relation to integrated pollution control licences regarding the management of waste. There are codes of practice for land spreading of organic waste

Irish Water, local authorities and the EPA have extensive powers to monitor all waters inland and adjacent for all discharges and abstractions. They may monitor them as necessary for the purpose of their functions. They may require  information from a range of other bodies, such as Inland Fisheries Ireland and Departments

Compensation for Damage

Under common law liability by way of nuisance and negligence and the more modern environmental/contamination liability legislation, polluters are liable for damage to persons or property caused by pollution.

Presumptively, damages are recoverable when sewage effluent and pollutant matter enter waters and cause loss of personal property. The occupier of premises from which the effluent or pollutant matter originated is liable unless a defence applies.

It may also lie against the person whose act or omission occasioned the entering of polluting matter into the waters where the act or omission constitutes a contravention of the legislation.

Where trade sewage effluent or other polluting matter enters waters and causes injury, loss or damage to a person or property, the person may recover damages from the occupier of the premises from which the effluent or matter originated without prejudice to any other potential cause of action unless the entry to waters was caused by an act of God or an act or omission by a third party over whose conduct the occupier had no control and which was not reasonably foreseeable by the occupier.

Liability also arises in relation to an act or omission which was in contravention of the provisions of the Local Government (Water  Pollution) Acts.

There is a defence where the entry of trade sewage effluent is licensed under a water pollution licence, or the fisheries acts. There is likely to be a defence if the matter was caused by an act of God, omission of a third party over whose conduct such occupier had no control being an act or omissions which such occupier could not reasonably have foreseen or guarded against.