The Commission position was that Ireland must implement control and cost recovery on all water uses and that must include abstraction from private sources including wells, boreholes, and surface water used for agricultural purposes and industrial issues. This will now be transposed into Irish law.
No timeframe has been agreed with the Commission but it is likely to take some time as primary legislation will be required. The new system could have a significant impact on the way farmers access and use water as well as property rights relating to water generally.
The proposed new rules will impact on individual farmers in some way or another. The issue is not whether this system should be introduced or not. That debate is over and done with. It is now what is the best way to frame the law to have the least cost, disruption and compliance burden.
The control of wells and boreholes is unlikely to be implemented in the immediate future and may take up to at least a year or possibly two years for the necessary legislation to be agreed by Oireachtas.
In the meantime other legislation dealing with water, including the establishment of Irish Water, will be prioritised.
Farmers and farm organisations should be preparing and lobbying now in advance of the draft legislation.
Legislation on the control and registration for private abstraction of water is well established in England and Wales, Scotland and Northern Ireland.
Indeed, the system which is now fully operational in Northern Ireland is one of the most advanced in Europe and is likely to offer an ideal template for the system that may apply in the Republic.
Against the certainty of the implementation of the new rules on private water sources, individual farmers would be well advised to sink a borehole now or to increase the number they have at the moment.
The legislation is almost certain to provide for some form of registration and may also apply a licensing system where the volume exceeds a certain level. The licensing system could be strict in vulnerable zones where the combined extraction rate is high relative to the reservoir of groundwater.
Bearing in mind that the cost of mains water is certain to increase, commercial companies and industrial enterprises will be sinking more boreholes to acquire a private source of water and that all of these extractions will be taken into account in any restrictive licensing system that may apply. Indeed, in some parts of Northern Ireland at present the combined extraction rate by industry and agriculture has virtually reached the limit beyond which no additional licence will be granted.
The new water control system to be implemented could significantly change the law regarding the sinking of wells and boreholes and the sourcing from surface sources such as rivers and lakes. But it is no different from what has happened in Britain and indeed Northern Ireland, with which we share the same legal background.
Under common law, a landowner is entitled to sink a borehole or well on his lands to intercept groundwater under his own property, even if this were to interfere with the supply of underground water to nearby springs or boreholes. In this, the common law is unfair to other water users who may have been using ground water abstracted on the land before the new borehole was sunk and interfered with their supply.
However, while a landowner has a riparian right to take water from a stream running through or by his farm, he must have regard to the rights of other landowners upstream and downstream. But the common law is mainly English law from Victorian times and may not fully withstand a constitutional challenge.
In addition, water rights are already governed by a wide range of statute law including the Water Services Act which gives local authorities wide powers to restrict or prohibit the use of a water supply.
Water pollution legislation, while not explicitly regulating water extraction, may be used to require a person to supply information on a water abstraction site and rates, and a register must be kept of abstractions in excess of 25,000 litres per day.
About three-quarters of all water used in Ireland comes from surface water, with the remainder from ground water. It is estimated that Ireland uses only about 2pc of the potential ground water available. About a third of all ground water use is by rural dwellers and farmers. However, this figure varies widely, with Roscommon, for example, relying on groundwater for 80pc of its supply.
One estimate puts the total number of wells in Ireland at 200,000 and the Geological Survey office has actual records for 25,000. This gives some indication of the impracticality of registering all such wells and boreholes.
Key issues for farmers
The farming sector should now begin to prepare to ensure that the control system does not place a further compliance burden, new or increased costs, and, most importantly, that it protects existing water rights and use sources.
To give full protection of existing water rights, and water rights that may be established before the passage of the new legislation, farm organisations should seek to ensure that existing sources used by farmers and group water schemes, be they surface water sources or ground water sources, are fully protected.
The new legislation should overturn the outdated common law rule whereby a new borehole may, lawfully, literally suck an existing borehole dry and leave it useless. This could and should be a positive aspect of the proposed new water rules.
Where the level of water usage on a farm from surface or ground water is less than 20,000 litres per day, there should be no requirement on the farmer to register and that compliance with the existing measures under cross compliance should be sufficient for the new water rules.
Where the daily usage is between 20,000 and 40,000 litres the requirement should be confined to simple once-off notification to the relevant local authority without any cost involved. Formal notification or registration should be confined to abstractions greater than 40,000 litres per day.
For the purpose of estimating daily farm usage there should be an agreed system of converting livestock numbers to daily water requirements. For example, in Northern Ireland it has been agreed and incorporated into their regulations, that each dairy cow plus an allowance for washings requires 110 litres per day. Therefore, if the 20,000 litres threshold was accepted, all dairy herds with less than 180 cows would be exempted. Similar type of calculations can be done for other livestock and farm enterprises.
Finally, in order to avoid the imposition of yet another layer of bureaucracy and registration costs, it is essential that the regime to be introduced is simple and direct and the best way of ensuring a lower compliance burden and the highest possible exemptions for farm enterprises.
Ciarán Dolan is an agri-consultant