President receives septic tank challenge

New legislation governing septic tanks could be delayed by President Michael D Higgins on foot of a constitutional challenge by a North Clare chartered civil engineer.

The Clare Champion can exclusively reveal that Michael Duffy requested President Higgins to refer the 2011 Water Services Amendment Bill to the Supreme Court shortly after the new bill was passed by the Oireachtas on Wednesday afternoon.
However, the Department of the Environment says it believes the new bill, which was drafted in co-operation with the Attorney General’s office, had due regard to all constitutional provisions.
In a letter to President Higgins, the Kilfenora-based civil engineer claims the current bill, as presented to the President, is “flawed” and “unconstitutional” on at least three separate grounds.
President Higgins, who was reared in Ballycar, Newmarket-on-Fergus, usually signs a bill into law once he is fully satisfied it meets all its constitutional requirements, between the fifth and seventh day after it is passed in the Oireachtas.
However, in this case, President Higgins has been asked to sign it between the first and fifth day, following approval for an urgent signing motion.
Mr Duffy claims certain categories of buildings may not come under this legislation, while effectively performing the same process as the legislation strives to regulate. He says there is a conflict between how one-off housing and municipal or non-municipal agglomerations are likely to be affected by this legislation. All are treating domestic wastewater and could cause the pollution that this legislation strives to address.
He claims there is significant discrimination between individuals who are required to provide their own wastewater treatment and those who have their wastewater treated by water services authorities. Often such cases can be next-door neighbours. If this bill is enacted as proposed, one portion of the population will be likely to incur significant costs, while the other portion will experience no change.
Mr Duffy cites the example of a pub with a sceptic tank and a neighbouring house with a septic tank. Under the new bill, a small pub, which is treating wastewater with a septic tank, doesn’t have to register, while the neighbouring house will.
Mr Duffy maintains the pub can argue it is not producing domestic wastewater as defined under the new act and believes the premises could successfully argue this in any subsequent court case.
The Department of the Environment has defended the new bill, insisting it has due regard to all constitutional provisions.
“Commercial wastewater systems are already subject to a licensing system under the provisions of the 1997 Local Government Water Pollution Act,” said a department spokesman on Wednesday.
“The department is confident that the Water Services (Amendment) Bill 2011 is constitutional and will be signed into law.”
However, Mr Duffy countered, “I believe this bill was drafted in a hurry to resolve the problem caused by the EU Court ruling to tick the required boxes and generate additional revenue for local authorities.
“I don’t believe it will do much to improve water quality on the basis of the proposed inspection system,” he said.
“As proposed, this legislation excludes a significant number of wastewater treatment systems. For example, a church, school, shop, doctor’s surgery, bed and breakfast house, public house, caravan site, nursing home, golf club, football club or dwellings from which a home industry is performed, do not produce wastewater as defined.
“Therefore I believe that any person who can demonstrate that wastewater arising is different to that defined, may not be subject to the proposed act. If this is proven to be the case, it is discriminatory and contrary to the objectives of national legislation and the relevant EU directive, which is the protection of surface water and groundwater.
“Septic tanks and on-site wastewater treatment systems used in the examples given above are in most cases exactly the same as those used in the “domestic” situation. I do not believe that it is fair that a householder can be made subject to this legislation, including liability to registration charges, fines and forced to complete remedial works, when a next-door neighbour in any of the examples above could be exempt.
“Furthermore I believe that there are a significant number of householders living in small rural estates or agglomerations, which have their wastewater treated in communal systems. These may or may not be in the charge of relevant water services authorities. They may or may not be subject to this legislation. Such dwellings are producing ‘domestic waste water’ which is being treated in a ‘domestic waste water treatment system’.
“If producing more than 5m3 of effluent per day, such systems are subject to this and other legislation, if discharging less than 5m3 per day, it is subject to this legislation. Is each householder required to register in such a case or can such householders share the registration costs, fines and remedial costs?
“There is only one treatment system but there may be numerous houses. Depending on interpretations made by the 34 water services authorities, discrimination is possible and likely,” he claimed.
Having read the relevant EU directives concerning wastewater, Mr Duffy said there does not appear to be any definition of “domestic wastewater”.
Therefore, he believes it is reasonable to conclude that the ruling intended the expression “domestic wastewaters” as a generic term.
“Unfortunately, national legislation has chosen to define ‘domestic wastewater’, excluding wastewater, which one can reasonably conclude was intended to be included in the ruling. I believe that this bill fails to fulfil the intentions of the ECJ ruling.
“I fully endorse the objectives of national and EU legislation regarding the prevention of pollution. However, legislation must be fair and must apply to all citizens equally. I believe this proposed legislation discriminates against many citizens,” Mr Duffy concluded.