Courts

Wednesday 20 August 2014

Kerry County Council scheme to take water from Sheen River struck down by judge

Ray Managh

Published 24/02/2014 | 14:11

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A SCHEME by Kerry County Council, to take up to 3,500 cubic metres of water a day from the Sheen River near its picturesque Falls at Gort na Dullagh, was struck down by a judge today.

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Judge Pauline Codd said there was a scientific doubt as to the conclusions reached by experts with regard to proposed mitigation and monitoring measures for the protection of salmon stock and otter life on the river should the scheme go ahead.

The judge made an order disallowing Kerry County Council’s plans for taking water from the River Sheen for the Kenmare Water Supply Scheme which had already been given the green light by An Bord Pleanala.

Danny O’Connor, a farmer of Milleens, Bonane, Kenmare and John Skilling, a lecturer of Tresawson, Kenmare, and 15 other river bank farm owners and locals and the South Western Fisheries Board had objected to the scheme.

They appealed An Bord Pleanala’s September 2011 decision to the Circuit Civil Court on grounds there had not been a proper Environmental Impact Assessment and that the scheme breached the County Council’s own procedures and duties as well as an EU Water Framework Directive.

Barrister Shay Roche, counsel for the local authority, had told an earlier court hearing that there was pressure on the Kenmare Water Supply Scheme under which there was an existing daily water availability of 2000 cubic metres.

Long term needs had been assessed at 4,500 (correct) cubic metres a day and a study taken during the property boom suggested an existing abstraction from Lough Eirk required supplementation from the River Sheen.

The County Council had commissioned a number of expert reports concerning the project and it had been agreed water abstraction would be reduced or stopped during dry spells to protect the ecological integrity of the river.

Oisin Collins, counsel for the plaintiffs, said the Council’s  and the Bord’s decisions that the development did not require a full Environmental Impact Assessment had been flawed.  The presence of a Salmonid Habitat and Pearl Mussels and other protected species as well as otters was well known.

Judge Codd, in an 87-page reserved judgment, said the planning authority failed to rule out the scientific possibility of a potential adverse impact on fish stocks in an area where a “catch and return” policy already existed with regard to salmon stock.

She said the relevant critical water flow threshold for the migration of salmon in the River Sheen had not been determined and gave rise to a scientific doubt as to the effects of proposed monitoring to determine appropriate thresholds. 

The issues of salmon movements, minimum water thresholds, mitigation measures and the potential adverse effects on fish stocks and, by extension, upon the otter population were crucial.

The court was satisfied there was a scientific doubt as to the efficacy of proposed mitigation and monitoring measures for the protection of salmon.

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