18th December

Irish divers lodge complaint in Brussels

The Irish Underwater Council has questioned the legality of planned dumping this summer of 400,000m3 of dredge spoil from Dublin Port into an area of Dublin Bay given Special Area of Conservation status after the permit was granted.

Dublin Bay Ocean Divers

Coral Garden. The richness and diversity of marine life less than 15km from the centre of Dublin. Photo Willie Siddall

The area – from Rockabill to Dalkey Island ― was designated an SAC under the EU Habitats Directive in December 2012, as being ‘suitable aquatic habitat’ for harbour porpoise, according to the National Parks and Wildlife Service.

In a statement to Inshore Ireland however, the Environmental Protection Authority says it is ‘satisfied’ that the required activity will not cause ‘deterioration to habitat or disturbance of species in European Sites.’ 

Background

In July 2011, the EPA granted a Dumping at Sea (DaS) Permit to Dublin Port Company. Permit (Reg No S004-01) states that ‘loading and dumping activities must be completed within six years of the date of commencement of activities’.

Loading and dumping commenced on April 23, 2012 and may continue until April 22, 2018, according to the EPA.

In a detailed letter to the EPA seen by Inshore Ireland, the IUC – the national governing body for scuba diving and snorkelling in Ireland – however challenges the operating dates and says the DaS permit did not undergo Appropriate Assessment.

It also contends that future dumping ‘cannot be considered until full and proper public and third party consultation has taken place….beyond the originally advertised cessation date of October 2015 takes place.’

While the EPA did require an Appropriate Assessment at the time of application, ‘it must now also require the permit to undergo Appropriate Assessment as the impact on the qualifying interests of dumping under the permit has not been assessed,’ the IUC contends.

The IUC is relying on Article 6(2) Section 3.2 of the European guidance document Managing Natura 2000 sites: The Provisions of Article 6 of the Habitats’ Directive 92/43/CEE (European Communities, 2000 which states:

‘This article should be interpreted as requiring Member States to take all appropriate actions which it may reasonably be expected to take, to ensure that no significant deterioration or disturbance occurs.

‘Article 6(2) applies permanently in the special areas of conservation. It can concern past, present or future activities or events…If an already existing activity in a SAC causes deterioration of the natural habitats or disturbance of species for which the area has been designated, it must be covered by the necessary conservation measures foreseen in Article 6(1). This may require, if appropriate, that the negative impact be brought to an end either by stopping the activity or by taking mitigating measures.’

Conflicting dates

Dublin Port Company’s DaS permit application is dated September 29, 2009. The date it proposed to start dumping was November 2009, and would complete the process within six years from the commencement of dumping.

The IUC contends however that the Dublin Port Company could not possibly have hoped to process the application between September and November 2009, ‘due to the lengthy consultation period required’.

According to the IUC, the newspaper notice outlining the application states that disposal operations will take place between November 2009 and October 2015. As dumping commenced on April 23, 2012, the IUC contends this is outside the time limit of the original application, ‘the legal binding date’.

The Council also questioned why the application applied a ‘fixed end date’ in the newspaper notice but applied for a variable end date in the DaS application.

‘Essentially the applicant informed the public (and other third parties) that they were applying for one thing, when in reality they were applying for something else.’

Review obligation

Speaking to Inshore Ireland, Tim Butter, IUC, said the Habitats Directive “could not be clearer” where a permitted activity is scheduled to continue AFTER the designation of SAC.

“In this case, the EPA is obliged by the Directive to review the permission and to screen for Appropriate Assessment (the specific form of ecological assessment required for SACs and other sites designated as being of European importance for nature conservation).

“The EPA has steadfastly refused to review this DaS permit and to screen for Appropriate Assessment, thereby breaching European and Irish legislation.”

The Appropriate Assessment procedure provides the rigorous scientific information upon which decision-making can be based.

“Without Appropriate Assessment, the EPA is just guessing what the impacts of the dumping might be. This is not acceptable under the Habitats Directive,” he said.

“It may be that the Appropriate Assessment [will show] that dumping can continue without adversely affecting the SAC. But until it is done we don't know. It is unacceptable that the regulatory authority ignore its responsibilities in enforcing this environmental legislation.”

Tim Butler added that this issue was not adequately addressed in advance.

“The EPA and DPC have had more than three years to undertake Appropriate Assessment but have not done so (i.e. since Dec 2012 when the SAC was designated). There should be no crisis situation in which there is a question over the legality of the proposed dumping by the DPC this year (scheduled to start this month) to dump 400,000 m3 this year).”

Inshore Ireland understands that the IUC has lodged an official complaint with the EU Commission and has raised the issue directly with the Environment DG in Brussels.

EPA statement

'The EPA is satisfied that Permit Reg. No. S0004-01 requires the activity to be carried on without causing deterioration in habitat or disturbance of species in European Sites. Accordingly the EPA has no plans to exercise its powers of amendment / revocation under Section 5(4) of the Dumping at Sea Act 1996 as amended. Regulation 46 of the European Communities (Birds and Natural Habitats) Regulations, 2011 as amended is not applicable to projects, only to plans, and therefore does not apply in this case. The EPA is aware of and complying with the requirements of Article 6(2) of the Habitats Directive (92/43/EEC).

'Public participation in the dumping at sea permit application process was afforded in accordance with the Dumping At Sea Act 1996 as amended. Pursuant to the requirements of the Dumping at Sea Act 1996 as amended Dublin Port Company placed a newspaper advertisement in The Irish Times of the 15th October 2009. No submissions from members of the public were received in relation to the application.

'Eleven submissions were received from statutory and notified consultees. A permit (Reg. No. S0004-01) was granted to Dublin Port Company on the 28th July 2011 and the permit was available to view on the EPA website from that date. No applications for leave to take a judicial review were made on the permit.

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