The National Water Services and Flood Management Conference 2017 Danielle Conaghan Partner Environment & Planning Group 20 September 2017

Water Framework Directive 2000/ 60 / EU (“WFD”) Presentation Topics Water Framework Directive 2000/ 60 / EU (“WFD”) Domestic Water Charges ‘Water Environment Bill’ – Transposition / Ireland’s Future Abstraction Regime Planning Implications |

“Polluter pays principle” WFD - Charging Must “take account” of principle of recovery of costs of water services (Art. 9) Exemption not to recover full costs where it is “within established practice” and doesn’t compromise purposes and achievement of WFD objectives. “Polluter pays principle” |

European Case Law - Charging Case C-686/15 (Vodoopskrba i odvodnja d.o.o. v Željka Klafurić). Dispute on entitlement to charge fixed component element of the price not linked to consumption. Member States can invoke their own charging method for water services. Caveat: must be in keeping with principle of costs recovery for water services. |

Evolution of Irish Law - Charging Water Services (No. 2) Act 2013 Provides for domestic water charges. Water Services Act 2014 Cap on domestic charges Water Services (Amendment) Act 2016 Suspension of domestic charges Water Services Act 2014 (Extension of Suspension of Domestic Water Charges) (Amendment) Order 2017 Continuation of suspension |

Pending Change in Law – Charging (1) Joint Oireachtas Committee on the Future Funding of Domestic Water Services Final Report 11 April 2017: Charges for ‘excessive use’ Refund of paid domestic charges Recommends domestic charging be discontinued and replaced Committee report accepted by the Dáil. |

Pending Change in Law – Charging (2) CER to set financial penalties for ‘excessive use’, on a volumetric basis. Water Services Bill 2017 - new charging regime - January 2018. First bills for ‘excessive use’ - July 2019. Average consumption currently set at 127 m3, wastage figure to be 1.7 x normal usage. |

WFD – Ireland’s Obligations Principal legal requirements – Art. 7 “Basic measures” - Art. 11(3)(e) |

Who is abstracting? National register for public and private water abstractions – Art. 11(3)(e) Database identifying all bodies of water used for water abstraction providing > 10m3 p.d. as an average / serving > 50 persons. Database identifying bodies of water intended for future use for drinking water abstraction. |

Who should consent abstractions? Permitting regime for prior authorisation of private abstractions. Abstractions currently indirectly authorised where planning applications made for the physical waterworks infrastructure needed to abstract water – Art. 11(3)(e). Future regulator - EPA? |

Control & monitoring Clear controls over and a system for the abstraction of groundwater –Art. 11(3)(e) A system for monitoring water bodies providing >100 m3 a day as an average – Art. 7(1). |

Control of quantities abstracted System to control the quantity of abstractions and impoundment to ensure environmental sustainability of affected water systems - Recital 41. Scale of the pressures arising from water abstraction need to be quantified in terms of the reductions required to achieve WFD objectives. |

Competing Water Rights? Hierarchy of Water Rights? Water for drinking water supply Riparian Rights Navigation Rights Fishing Rights Compensation Regime? |

Prevent deterioration of the status of all bodies of surface water. WFD – Planning Refusal Prevent deterioration of the status of all bodies of surface water. Protect, enhance and restore all bodies of surface water with the aim of achieving ‘good status’ by the end of 2015 at the latest. Refuse authorisation where deterioration of water body status or jeopardise attainment of good surface water status, if no derogation. |

WFD - Planning Refusal (2) P & D (Amendment) Bill 2016 Permission must be refused, unless a derogation is granted, for any project: Which may cause a deterioration of surface water body status; or Where it jeopardises the attainment of ‘good’ surface water status; or Of good ecological potential and ‘good’ surface water chemical status, by the date laid down by WFD. |

What constitutes a ‘deterioration of status’? Case (C‑461/13) Bund für Umwelt und Naturschutz Deutschland eV v Bundesrepublik Deutschland and Freie Hansestadt Bremen Concept ‘deterioration of the status’ of a SW body must be interpreted as there being a deterioration: as soon as the status of at least one of the quality elements - within the meaning of Annex V - falls by one class (out of a total of five classes), even if that fall does not result in a fall in classification of the SW body as a whole. If the quality element concerned is already in the lowest class, any deterioration of that element constitutes a ‘deterioration of the status’. |

Which water bodies can obtain a derogation? Art. 4(5) - Can aim to achieve less stringent environmental objectives for specific water bodies when: they are so affected by human activity, as determined in accordance with Art. 5(1), or their natural condition is such that achievement of objectives would be infeasible / disproportionately expensive, and the relevant conditions are met. |

WFD Derogation – ‘Relevant Conditions’ ‘No Significantly Better Environmental Option’ test. Mitigation measures to ensure highest ecological & chemical status possible achieved. Demonstrate IROPI, benefit to the environment, human health, human safety or sustainable development. No further deterioration in status of affected waterbody. Reasons for less stringent environmental objectives included in RBMPs and objectives reviewed every 6 years. |

WFD – Coordinated / Joint Procedures Environmental Assessments (1) C/2016/4701 Commission guidance document on streamlining environmental assessments: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016XC0727(01) Option to streamline projects requiring assessment under EIA Directive and WFD. |

WFD – Coordinated / Joint Procedures Environmental Assessments (2) ‘Transposition of 2014 EIA Directive (2014/52/EU) in the Land Use Planning and EPA Licencing Systems’: http://www.housing.gov.ie/sites/default/files/publications/files/key_issues_in_transposition_of_2014_eia_directive_-_stakeholder_consultation_document_02may2017.pdf Coordinated procedures not extended to WFD. |

THANK YOU FOR LISTENING THANK YOU FOR LISTENING! Danielle Conaghan Partner, Environment & Planning Group, Arthur Cox E.: Danielle.Conaghan@arthurcox.com T.: +353 (0) 1 9201082 |