Nasty News for Water Warriors

Original article by Dublin Eileen posted on www.maxkeiser.com December 2017

A Christmas holiday custom in Ireland is to break nasty political news just before the big day when everyone is too busy to take much notice. Today, news broke of how rejigged legislation will bring in disputed water charges, (a prerequisite of the EU’s ‘bail out’ agreement), through the back door. Here is the article: Almost 100,000 households face being hit with a new water charge from 2019. This begs the question as to why has no one has kicked up an enormous fuss about the potential loss of an important legal EU exemption? A legal protection that is one of the most useful weapons that the water movement has against the pillaging of the water resources of Ireland. This provision allows the Irish public to pay for domestic water services via general taxation as opposed to direct charges.

Exemption 9.4 of the Water Framework Directive, was negotiated and renewed by successive Irish governments as part of the River Basin Management Plan. It is due to lapse in two months time and there is a blanket silence over the issue. Neither media, politicians nor activists from any side of the spectrum are discussing it. Without it, Ireland will be liable for hefty fines from the EU for not following the commission’s preferred option of direct payments by individual families to both privatised and publicly owned water companies.

The Irish public have made their position clear. They prefer paying for the service via general taxation. Above all they fear and reject privatisation of the resource, feeling that direct charges leave the water resource utterly vulnerable to that fate. They know that privatisation will lead to skyrocketing prices, poor quality control and water poverty. Indeed these are issues that have prompted many European local authorities, at substantial cost, to resume management and ownership of their own water services.

Allowing the exemption to lapse certainly suits the neoliberal Fine Gael and Fianna Fail ruling parties, (currently in a ‘confidence and supply’ minority governent arrangement), whose ideological position is one of privatisation of public services. However for politicians from the other side of the house to allow this happen is like handing your biggest cannon to your foe and affording them the means to utterly defeat you. Media commentators will use the resulting EU fines to support the ruling party’s line and crush the grass roots led Anti Water Charges Movement.

What options do members of the public who wish to continue paying for their water services via general taxation have?  Perhaps the best one is to ask vulnerable Fianna Fail parliamentarians what they are doing to safeguard the exemption?  It’s retention is the only legal safeguard our water resource has.

The 9.4 Clause of the EU Water Framework Directive

The following is an extract from 'The Future of Water Charges' a legal opinion obtained by the Joint Committee on the future Funding of Domestic Water in Ireland February 2017.

Paragraph 18. { “If the derogation (exemption) is to continue to be availed of, Ireland must explicitly include the derogation in its next River Basin Management Plan and state the reasons for availing of the exemption.” }

…..Signed : Matthias Kelly, QC Essex Chambers London WC2A 1DD And Merchants Quay Chambers, 25-26 Merchants Quay Dublin 8.

Mr. Kelly’s position is supported by the 9 Irish MEPs in this letter to the Irish Times.

The European Commission has also confirmed in emails to Lynn Boylan and Marian Harkin that

"if Ireland would like to avail of Article 9.4 (the derogation) then it should submit that request in its second River Basin Management Plan with justification. This second river basin management plan is now not due to be submitted until 2017, with plenty of time for Ireland to establish that derogation."

It is beyond doubt then that if the Irish Government so wishes, it can still use the derogation and justify its use in its River Basin Management Plan, as has been done and is still being done by so many other European regions and countries. ‘

(An extension of two months has been currently granted to the Irish Government leaving the renewal due in Feb 2018).

Full article at  http://www.maxkeiser.com/2017/12/nasty-news-for-water-warriors/#tpgSQCOtWjBA1fVz.99

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9.4 Water Exemption (Water Framework Directive) - Use It or Lose it

Use It Or Lose It

An all out effort is needed  immediately from political parties who oppose water charges and from  anti water charge groups throughout the country to guarantee that Section 9.4 of the Water Framework Directive is retained. 

This 9.4 section includes the Irish Exemption or derogation which was negotiated by Ireland in 2000 and transposed into Irish law in 2003.  The section exempts Ireland from billing domestic consumers for water, allowing us to fund our water infrastructure through general taxation.  It is now imperative that provision for this derogation be included in the ongoing revision of Ireland's next phase of the River Basin Management Plan. 

Marian Harkin, MEP, in her article 'Use It or Lose It' said  “Furthermore, and most importantly, Ireland still has to submit its second River Basin Plan in which it can activate the derogation for water charges.”

Click photo to view full pdf document of the draft RBMP or see link below to http://environ.ie
The Minister for the Environment, Community and Local Government has a lead role under the EU’s Water Framework Directive.  River Basin Management Plans (RBMPs) are used in all EU Member States.  Ireland is now preparing its second round of RBMPs which will be in place in 2017.

The Irish Exemption is now under threat. 

Recent political maneuvers, misinformation and threats from Fine Gael,  the Eu Commission and Irish Water Ltd, telling us that our exemption no longer exists and that Ireland is going to be penalised if we do not adhere to the WDF Directive and impose Water Charges,  is partly a smokescreen and partly bully boy tactics.  We believe that the threats and misinformation are not true, that they are designed to deflect our attention away from the fact that the Government is now in the process of revising the River Basin Management Plan for the period 2015-2021 - see full details at www.environ.ie.   This revision had been delayed due to significant reform in the water sector in recent years and the new plans would be delivered by the end of 2017.  

We believe that former Minister of the Environment,  Alan Kelly,  did not include a continuation request for our derogation in the draft plans  but more sinisterly, he included the provision for billing domestic consumers (Water Charges) and also for the Irish Water Ltd infrastructure.  If this is the case and the RBMP is submitted to Brussels unchanged, it could possibly do away with the Irish Exemption thus making water charges legally binding under European law.

It is imperative now before the new RBMP is finalised that this is investigated.  Pressure must to be put on Minister Coveney to come clean about the contents of any revised plan especially in relation to the Irish Exemption, the method of funding and the model of water infrastructure.   It would seem obvious that any revised plan can not be finalised or submitted until an agreed water management structure is in place.   We must not allow our derogation to be surreptitiously given away.

Fianna Fáil must support this call
Fianna Fáil has a major responsibility in this process to ensure that our derogation remains in tact and that the Government is not doing anything to jeopardise it.   Fianna Fáil's 'Core Principle' on Water Charges,  their commitment to the electorate, their position and legal advise on the Water Framework Directive and their responsibility in agreeing the setting up of a minority Fine Gael Government, should make it incumbent on them to ensure that the derogation remains and that the process is clear, open and transparent.

Sean Flemming

Sean Fleming, on Fianna Fáil website 'EU Water Directive does not force imposition of water charges – FF',   insisted that the Water Framework Directive does not bind Ireland to the imposition of domestic water charges and that Fianna Fáil absolutely contests the advice being put forward.   He says "It’s important to recognise that this legal advice was commissioned by Irish Water, and it should be examined with caution in light of this.  However Member States have a clear opt-out clause (Article 9.4) from domestic water user charges, which allows that Member States may “take account of the social, environmental and economic effects of water usage in recovering the costs of water services.  Fianna Fáil position on water charges has not changed. We do not support the continued imposition of water charges on households."

It is also incumbent on all other TDs who support the Anti Water Charge campaign to scrutinise the 9.4 Water Framework Directive and the RBMP, to support this call and demand that Ireland includes the provisions for the derogation to remain in it's second River Basin Management Plan.   
 

Ireland has to make sure it uses our hard won exemption or it will lose it.

References:
Water Charges required under EU Law is a lie Kathy Sinnot, Nessa Childers, Fliuch
Irish Politician trying to blame Brussels on Water Charges no legal basis Marian Harkin
Use It Or Lose It says Marian Harkin
To Pay Or Not To Pay Marian Harkin
Ireland Has No Exemption European Commission
Expert on Water Framework Directive Contradicts EU RTE This Week Ray Earle
Ireland's Water Charges Exemption Is Safe Unless Alan Kelly Gives it Away Pensive Quill
"Bullying the populace into submission" - TDs aren't happy about Enda's comments on water charges Journal.ie
Dept of Environment Water Framework Directive http://www.environ.ie

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Michael Noonan 'Water Charges Required Under European Law' is a Lie

Article by James Quigley

Former Fine Gael finance minister Michael Noonan's comments made to RTE on March 07, 2016,  have been exposed as lies by Kathy Sinnott.  Ms Sinnott was a member of the European Parliament from 2006 to 2009 and has written extensively on the Water Framework Directive and the River Basin Management Plan, with particular reference to Ireland's derogation (exemption) to the Water Framework Directive, 2000/60/EC .

Mr Noonan said on RTE News, Mon March 07, that "Under European law, Ireland was obliged to charge consumers for water.  There was a derogation up to 2010 where Ireland wasn't obliged to charge for water, but the derogation was ended by the Fianna Fáil-Green government, so legally now under European law water must be charged for in Ireland."

Kathy Sinnott - Mr Noonan is incorrect.

Kathy Sinnott Independent MEP 2004-2009

Ms Sinnott said "Mr Noonan is incorrect.  Our derogation is included in the first Irish River Basin Management Plan (RBMP) 2008-2015. This was supposed to be a 7 year plan but Ireland is behind schedule. The next Irish River Basin Management Plan was supposed to come out this year for the period of 2016-2021, however, there is a delay and it may not come out until 2017"

Ms Sinnott said that "as long as we are functioning under the first plan that was put in place when I was an MEP,  then we have a derogation, the so called Irish Exemption".  She believed that"Alan Kelly may haveput water charging in the second River Basin Management Plan for 2016-2021.  However, if this new plan is not activated then we are still functioning under the 2008 plan." 

Michael Noonan is misinformed or maybe lying when he says our derogation ended in 2010.  It could be he is getting mixed up between the Water Framework Directive and the River Basin Management Plan.   A mix up that is quite easy to make for ordinary folk but for a minister, well, that is another matter.

Ms Sinnot said that" the EU was functioning at that time under the 2008 plan and would have continued for at least the next 7 years.   When I was checking it out I spoke to an official In the European Commission in the section that deals with the European Water Framework Directive which the River Basin Management Plan comes under.   I was informed that we still had the derogation.  The official assured me that the EU could not take the derogation away from us and that the only way we could loose it was for Ireland to give it up voluntarily." 

The official told Ms Sinnott that the then Minister for Environment, Alan Kelly was going to get rid of the derogation.  However, any detail of the new plan has not been made public.  Whether it will be passed remains to be seen especially in light of developments in relation to the issues around Irish Water and water charging.

See full details of Kathy Sinnott's “The Irish Exemption”  in Attack The Tax

Nessa Childers querying Alan Kelly's new River Basin Management Plan 2016-2021

Nessa Childers MEP Incumbent

Buncrana Together contacted Ms Nessa Childers, MEP Dublin, who has written extensively on the Water Framework Directive, Childers Welcomes Clarification from European Commission Re Water Charges and European Law. 

Bronwen Maher on behalf of Ms Childers said that
" the 2016-2021 River Basin Management Plan was submitted by the Irish Government last year and included water charges (the Government thereby opting out of the non domestic charge clause in the Water Framework Directive).  I suspect as the last Government has submitted the next RBMP that it cannot be withdrawn but we will table a question with the Commission to seek clarification on this issue.  Please note that it can take up to four weeks,  if not longer, for an answer to be returned to an MEP "

Ms Childers in the above article,  December 2015, welcomed clarification from the European Commission that member states, including Ireland, do not have to apply individualised domestic water charges to comply with the Water Framework Directive. 

She said "Each EU member state is obliged to draw up plans under this directive to show how water sources are protected from pollution, and how the cost of water services is carefully priced, including domestic usage.  It is an extremely good piece of European environmental legislation – and we have much work to do to improve water quality in Ireland.  However I am perplexed about reports that Ireland will formally submit a plan to include domestic water charges under our EU Water Framework Directive.  I strongly recommend that we reserve the option to design our water services funding to suit our needs in Ireland."

Interestingly the article gives a response to Ms Childers questions to the Commission, Dec 05, 2015 where Mr Vella on behalf of the Commission stated

" The responsibility for implementation of the Water Framework Directive (WFD)  lies with the Member States and there is no obligation to follow particular schemes or methods. However, methodologies for calculation of cost recovery of water services do exist and are being developed further. For example there is work under way within the Common Implementation Strategy for the WFD implementation on further guidance on assessment of environmental and resource costs.

There is no specific requirement in Art 9 of the WFD for cost recovery to rely on individual consumption. However, for the Commission, an adequate implementation of the principle of incentive water pricing included in the provisions of Art 9, as well as of the more general polluter-pays principle embedded in the Treaties, requires a clear link between water tariffs and actual individual water consumption. In this context, water metering seems to be a basic precondition for proper implementation of the WFD."

Make of that what you will. Notice the work 'seem' in the last sentence.   It seems to be in the interpretation. 

Fliuch Off Irish Water Ltd - zones in on article 9 of Water Framework Directive

Fliuch Off Irish Water Ltd, a Cork City based anti Irish Water organisation stated that" Irish people have paid for their water infrastructure over the years via income tax – this was the understanding that Irish people had – now we are being fed the lie that we must be like our EU neighbours and pay for our water – while €11 billion of water infrastructure is given to Irish Water gratis.

What Irish media and government politicians fail to point out is that most other EU citizens get a far higher quality of public services – i.e. a bigger bang for their buck. You simply cannot compare the current system in Ireland to any other EU country – it’s like comparing apples and oranges." 

Noel from Fliuch Off directed our attention to Article 9 of the Water Framework Directive and emphasising the complete article pointed out clause 4 and in particular phrase *established practice*.   He said " what they've done now is tried to say that direct domestic charges are now and 'established practice'.  This is patently untrue.

Water Framework Directive 2000/60/EC

Read full text, in particular Ariticle 9 of the Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy

Article 9
Recovery of costs for water services
1. Member States shall take account of the principle of recovery of the costs of water services, including environmental and resource costs, having regard to the economic analysis conducted according to Annex III, and in accordance in particular with the polluter pays principle.

Member States shall ensure by 2010

- that water-pricing policies provide adequate incentives for users to use water resources efficiently, and thereby contribute to the environmental objectives of this Directive,
- an adequate contribution of the different water uses, disaggregated into at least industry, households and agriculture, to the recovery of the costs of water services, based on the economic analysis conducted according to Annex III and taking account of the polluter pays principle.

Member States may in so doing have regard to the social, environmental and economic effects of the recovery as well as the geographic and climatic conditions of the region or regions affected.

2. Member States shall report in the river basin management plans on the planned steps towards implementing paragraph 1 which will contribute to achieving the environmental objectives of this Directive and on the contribution made by the various water uses to the recovery of the costs of water services.

3. Nothing in this Article shall prevent the funding of particular preventive or remedial measures in order to achieve the objectives of this Directive.

4. Member States shall not be in breach of this Directive if they decide in accordance with established practices not to apply the provisions of paragraph 1, second sentence, and for that purpose the relevant provisions of paragraph 2, for a given water-use activity, where this does not compromise the purposes and the achievement of the objectives of this Directive. Member States shall report the reasons for not fully applying paragraph 1, second sentence, in the river basin management plans.

Questionsthe Commission must be asked

As well as Ms Childers submitting questions to the European CommissionBuncrana Together has already sent questions to Mr Enrico Brivio, spokesperson for Environment, Maritime Affair and Fisheries, European Commission.  In particular this isimmediate question we would like answered - 
Is Ireland at present operating under the River Basin Management Plan 2008-2015?

 Other questions are we have to ask is

1. Has the last Government presented a new plan?  

2. When and how will it be ratified?

3.  Is it possible to view the contents? 

4.  Has Mr Kelly implemented charging for water and if so has his submission done away with the Irish derogation as implied in the RBMP 2008-2015?

5 Last but not least can Ireland revoke Mr Kelly's plan?

The above questions must be asked by all our newly elected TDs and parties, especially those who have promised the abolition of Irish Water and Water Charges.  However, they must go a lot further and question the bona fides of Mr Kelly and the former government in their handling of the Irish Water and Water Charges issue and in particular the veracity of any submission to the European Commission.    We have to question Mr Alan Kelly and Mr Noonan's constant misrepresentation of fact especially in light Mr Kelly possibly not renewing the Irish derogation and his inclusion of Water Charges into the River Basin Management Plan 2016-2021.

The Pensive Quill

Buncrana Together would like to thank all the above contributors.  We would like to make special mention of Anthony McIntyre editor ofThe Pensive Quill.  He has tirelessly championed truth and justice.  His constant and recent facebook and twitter posts kept to the fore the question of the Water Framework Directive.  See the article in Pensive Quill, written by Direct Democracy Ireland EU Say Ireland’s Domestic Water Charge Exemption Is Safe, Unless Alan Kelly Gives It Away On January 1st

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