River Slaney (Enniscorthy) Flood Relief Scheme

Ministerial Decision on the River Slaney (Enniscorthy) Flood Relief Scheme under the Arterial Drainage Acts (as amended by the European Union (Environmental Impact Assessment) (Arterial Drainage) Regulations 2019)

The Minister for Public Expenditure and Reform, Michael McGrath TD, has made a decision to refuse this Scheme under Section 7E(1)(b) of the Arterial Drainage Acts (as amended by the European Union (Environmental Impact Assessment) (Arterial Drainage) Regulations 2019).

In making this decision, the Minister carried out an Environmental Impact Assessment, considering the following information:

• The Environmental Impact Assessment Report (EIAR) prepared for the OPW and Wexford County Council

• The Natura Impact Statement (NIS) prepared for the OPW and Wexford County Council

• Supplementary information submitted by OPW on foot of a request from my Department to the OPW for further information following initial review by the environmental consultants, CAAS.

• Reviews of the EIAR and NIS carried out by suitably qualified environmental consultants, CAAS, who were contracted to carry out the necessary technical work, including an analysis of the EIAR and the NIS.

• Information submitted in the public consultation carried out by my Department on the EIAR and NIS

Having considered this information, the Minister reached a reasoned conclusion to refuse this Scheme. In particular, the Minister noted that in their reports which he has adopted, CAAS, the Environmental Consultants contracted to assist with the analysis of the environmental impact of this scheme, outlined a number of inadequacies with the EIAR, with which the Minister agrees. In respect of the significant effects of the scheme on the environment, the Minister is satisfied that:

• There are significant shortcomings in the biodiversity assessment in relation to impacts on habitats and species which make it uncertain if the project can comply with environmental legislation including the Wildlife Acts. This assessment also shows that the scheme would cause significant residual impacts to endangered and protected species such as the loss of range of the freshwater pearl mussel.

• The assessment of alternatives does not include a clear comparison of environmental effects of reasonable alternatives for major elements of the scheme which are likely to cause significant environmental effects. These alternatives include design options for different levels of flood protection and alternative bridge designs. This deficiency significantly compromises compliance of the EIAR with statutory requirements.

• Requirements for updated versions of the Construction Environmental Management Plan (CEMP) and commitments to monitoring, reporting, communication and consultation during construction are not sufficient to ensure the protection of the environment.

• A significant lack of clarity remains regarding:

o the procedure for post-consent approval of the CEMP and of CEMPs for different phases of the construction work; and

o the frequency and scope and accessibility of construction stage environmental reports and compliance audits.

• Assessment of landscape and visual impacts lacks a methodology that is clearly referable to a standardised methodology. It also undermines the adequacy of the assessment of effects on cultural heritage features which are partly dependent on landscape interactions.

Furthermore, in relation to the Natura Impact Statement, the Minister concluded that the information within the whole NIS document and subsequent addendum material does not provide adequate information to inform the Appropriate Assessment (AA) process. The significant issues include:

• It is identified that there will be temporary loss of habitat suitable for the qualifying interest – floating river vegetation – and the use of habitat restoration as a mitigation measure is impermissible under Article 6(3) of the Habitats Directive; as backed by case law Grace and Sweetman C-164/17.

• Additionally, the proposed scheme will cause the conservation objectives of the recipient SAC to be undermined, as there will be a decline in habitat area of floating river vegetation which must be determined as a significant effect as per case law Waddenzee case (C-127/02);

• Furthermore, despite the further information sought, there is insufficient information provided with respect to potential habitat loss for juvenile lamprey and there is no consideration within the NIS or addendum report of the implications of the effects of freshwater pearl mussel on the population dynamics of the SAC host population in the Derreen river. The information within the whole NIS document and subsequent addendum material does not provides adequate information to inform the Appropriate Assessment (AA) process.

Given the concerns outlined, the Minister has determined that the Scheme be refused under Section 7E(1)(b) of the Arterial Drainage Acts (as amended by the European Union (Environmental Impact Assessment) (Arterial Drainage) Regulations 2019).

All of the relevant documentation can be reviewed below.

Alternatively, you can also view the scheme information on www.enniscorthyfds.ie

Information for the public on the procedures available to review the substantive and procedural legality of the decision*

The validity of a decision by the Minister may only be questioned by making an application for judicial review under Order 84 of The Rules of the Superior Courts (S.I. No. 15 of 1986). Any application for judicial review must be made within 3 months of the decision of the Minister. The Courts do not adjudicate on the merits of the development from the perspectives of the proper planning and sustainable development of the area and/or effects on the environment.

The general provision is that in such cases each party shall bear its own costs.

General information on judicial review procedures is contained on the following website: citizensinformation.ie .

Disclaimer: The above is intended for information purposes. It does not purport to be a legally binding interpretation of the relevant provisions and it would be advisable for persons contemplating legal action to seek legal advice.