Ecological Assessment Report on the Potential for Ecological Impacts of the Proposed Lough Ennell Abstraction Supply to the Royal Canal

Ecological Assessment Report on the potential for ecological impacts of the proposed Lough Ennell abstraction supply to the Royal Canal

(PW 3005 / JA 0030)

Report to An Bord Pleanála

28th August 2012

Dr Evelyn Moorkens, Signed:

53, Charleville Square, Date:

Butterfield Avenue,

Rathfarnham, Dublin 14,

Ireland.

Tel. +353 1 4948500 Mob. +353 86 8211385

E-mail: [email protected]

TABLE OF CONTENTS

1. Introduction 3

2. Methodology 4

3. Ecological interests 5

4. Information deficits, further information response (written and at oral 8 hearing) and conclusions drawn 5. Conclusions 21

6. References 24

1. INTRODUCTION

This report constitutes the assessment and recommendations from an ecological perspective of the potential impacts, mitigations and overall assessment post mitigation of the proposed Lough Ennell abstraction supply to the Royal Canal.

The proposal for abstraction has the potential to negatively impact the Special Areas of Conservation, Special Protection areas and proposed Natural Heritage Areas within the zone of influence of the movement of water from the lake to the canal. This report is intended to aid An Bord Pleanala in their Appropriate Assessment under Articles 6(3) and 6(4) of the Habitat Directive 92/43/EEC, which require an Appropriate Assessment of plans to prevent significant adverse effects on Natura 2000 sites. Article 6(3) Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect there on either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and if appropriate, after having obtained the opinion of the general public.

Article 6(4) If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of the Nature 2000 site is protected. It shall inform the Commission of the compensatory measures adopted.

This report also aims to assist the Board in its assessment of the potential wider ecological impacts that may arise from the proposed project.

2 METHODOLOGY

A desktop review was carried out of all information relative to the file for the project and the proposed abstraction licence file.

The information included the Environmental Impact Statement written by RPS, the Natura Impact Statement to aid the Appropriate Assessment, all objections and communications.

Two site visits were made to the proposed works areas, on 9 th May and 21 st May, in the company of Mairead Kenny and Pamela Bartley.

Meetings and discussions in person and by telephone aided the assessment of the documentation. From the documentation and discussions it was considered that further information was required, and two written responses to the further information (10th April and 30 th April) were reviewed.

I attended the oral hearing that took place on 22 nd and 23 rd May in the Mullingar Park hotel, and asked a number of questions of the applicant’s consultants and the statutory bodies in order to aid the consideration of the assessment.

3 ECOLOGICAL INTERESTS

The Appropriate Assessment of a project takes into consideration any European Designated Sites (Special Areas of Conservation (SACs) or Special Protection Areas for birds (SPAs)). In addition the protection of the national resource of Annex IV and Annex II species outside of SACs is also considered, as is the protection of proposed nationally important sites (proposed Natural Heritage Areas (pNHAs)) and legally protected species (protected under the Wildlife Act). These are summarised in Table 1. The main introduction risk is the zebra mussel ( Dreissena polymorpha ) which is found in Lough Ennell, and the consequences of this introduction to the Royal Canal must also be considered.

Table 1 Ecological interests with potential to be affected by the proposal

Interest Name Code Potential Impact Category

SAC Lough Ennell SAC 000685 Direct impact from abstraction and construction. Of particular interest are Charophyte habitat, fen habitats, open water habitats, all Chara species, curlew, kingfisher and all resident and wintering birds.

SPA Lough Ennell SPA 004044 Direct impact from abstraction and construction. Of particular interest are Charophyte habitats, fen habitats, open water habitats, all Chara species, curlew, kingfisher and all resident and wintering birds.

SAC Lough Owel SAC 000688 Hydrological connection to species and habitats.

SPA Lough Owel SPA 004047 Hydrological connection to species and habitats.

SAC River Boyne and River 002299 Hydrological connection to Blackwater SAC species and habitats.

SPA River Boyne and River 004232 Hydrological connection to Blackwater SPA species and habitats.

SAC Rye Water Valley / Carton 001398 Hydrological connection to SAC species and habitats.

SAC Lough Forbes Complex SAC 001818 Hydrological connection to species and habitats.

SPA Ballykenny – Fisherstown Bog 004101 Hydrological connection to SPA species and habitats.

SAC Lough Ree SAC 000440 Hydrological connection to species and habitats.

SPA Lough Ree SPA 004064 Hydrological connection to species and habitats. pNHA Royal Canal pNHA 002013 Direct impact from input of Lough Ennell water and potential construction impacts on habitats and species.

Annex IV Any bat species 1309, Disturbance during species 1314, construction, potential loss of 1317, habitat. 1320,

1330, 1322, 1326, 1331, 5009

Annex II Desmoulin’s whorl snail 1016 Hydrological connection with species (Vertigo moulinsiana) habitat in Lough Owel and Royal Canal environs.

Annex II White clawed crayfish 1092 Hydrological connection with species (Austropotamobius pallipes) habitat in Royal Canal and Brosna River.

Annex IV Brook lamprey ( Lampetra 1096 Hydrological connection with species planeri ) habitat in Royal Canal and Brosna River.

Annex II Otter ( Lutra lutra) 1355 Hydrological connection with species habitat in Royal Canal and Brosna River.

Flora Opposite leaved pondweed (Curtis & Hydrological connection with McGough, protection (Groenlandia densa) 1988) habitat in Royal Canal. order

Red list The glutinous snail (Myxas (Byrne et Hydrological connection with al. , 2009) endangered glutinosa) habitat in Royal Canal. species

4 INFORMATION DEFICITS, FURTHER INFORMATION RESPONSE (WRITTEN AND AT ORAL HEARING) AND CONCLUSIONS DRAWN

4.1 Lough Ennell SAC and SPA

The SAC is designated for hard oligo-mesotrophic waters with benthic vegetation of Chara species (Annex I habitat 3140)(Charophyte bed habitats), alkialine fens (Annex I habitat 7230), brook lamprey ( Lampetra planeri ) and otter ( Lutra lutra ). The SPA is designated for pochard ( Aythya ferina ), tufted Duck ( Aythya fuligula ), coot ( Fulica atra ) and for wetlands & waterbirds (Annex I habitat A999).

Of key importance to the scheme are the Chara beds, which require high quality calcareous water and an even hydrology without too many rapid fluctuations in water level. Any scheme proposed would need to prove beyond scientific doubt that it would not increase or concentrate nutrients within the lake, and would not result in more fluctuating water levels.

In evidence, Dr Ryan of NPWS gave his opinion that the Lough Ennell Chara beds are in unfavourable condition due to reduced water quality from historically inadequate municipal sewage treatment, and through the lowering of lake levels from their historical past due to large scale deepening of the River Brosna in the 1950s by OPW, without adequate weir control at the exit from the lake. The combination of these two factors has resulted in a much reduced cover of Chara on the bed of Lough Ennell, the low water quality has reduced the cover of Chara in the deeper areas by blocking sunlight from the lake bed, and the stronger fluctuations of flow caused by the OPW works on the Brosna has reduced Chara cover in shallow edge areas as the species likes an even hydrology.

The written information presented within the EIS and the NIS did not present enough information to be able to fully assess the potential impacts on ecology in Lough Ennell SAC and SPA from the proposed scheme.

The information presented clearly identified the ongoing problem in lake levels that has ensued since the arterial drainage scheme significantly lowered the River Brosna downstream of the lake and resulted in a more erratic regime of high and low water in Lough Ennell. The Chara beds, while extensive, are not in as widespread and are in poorer condition than those in the neighbouring Lough Owel, and compared with those Chara beds in the western Irish lakes. Dr James Ryan of NPWS acknowledged in the oral hearing that the condition of the Lough Ennell habitat is in unfavourable condition and that this has contributed to the habitat being reported to the EU as being in Unfavourable-Bad condition. Under the Habitats Directive, the habitat must be returned to Favourable condition.

The reason why the lough Ennell SAC is in unfavourable condition is twofold. The first is the depressed water quality due to sewage inputs from the Mullingar sewage scheme, and the second is

the consequence of the past arterial drainage carried out by the OPW. The water quality is getting better thanks to improvements in the treatment of contaminated water and the management of high flow water/ storm water overflows. However, the water is not at the quality level of Lough Owel, or the level it needs to reach to improve the SAC status. The scheme proposes to maintain a sluice at Clonsingle Weir to manage the water level in Lough Ennell in a manner that should lead to much more even levels in the lake and has the potential to keep the levels higher in the lake than heretofore since the arterial drainage, by closing the sluice gates during low flow periods.

The appropriate management of Clonsingle Weir has the potential to improve conditions in Lough Ennell, but only if it can be managed appropriately during low flow periods. During high flow periods, the water will overtop the weir at Clonsingle and thus there will be no difference in this situation between the current regime and the proposed regime. During low flows, the management of the sluice can provide for higher and more even water levels in Lough Ennell. During critical drought periods, a balance must be maintained between drawing down the lake level and providing enough water for the river Brosna downstream. These conditions are most likely to occur during the summer period when the water requirements for the Royal Canal are also at their peak. During these periods there is a conflict between managing the lake in a manner that is ideal for the SAC conservation interests (both from the point of view of water levels necessary for the Chara beds, and the assimilative capacity of nutrients and subsequent water quality for the Chara beds), the Brosna for its fish interests, and the canal for its navigation requirements.

I considered it very important, therefore, to address the drought condition scenario in detail to determine the evidence presented on water abstraction quantities and their consequences for lake levels, Chara species, and flow levels in the Brosna downstream. Dr Bartley undertook to investigate as far as possible from the information presented to determine the hydrological regime that would ensue during drought conditions.

With these concerns, a series of questions were recommended to be asked for further information, the relevant FI question were numbers 2, 3, 5, 8, 10, 11, 12, 13, 16, and 18.

The responses to the further information did not provide the additional information that I needed to assess the potential for negative impact on Lough Ennell SAC and SPA during drought periods. Items 8, 10, 11, 13, and 16 were not answered and items 5 and 16 both suggested that the management of levels to the satisfaction of stakeholders cannot be fully determined until the scheme is developed, and the most suitable management regime would be established when the works are in place.

Section 42.3 of Statutory Instrument S.I. No. 477 Of 2011 (European Communities (Birds and Natural Habitats) Regulations 2011) states that:

“ At any time following an application for consent for a plan or project, a public authority may give a notice in writing to the applicant, directing him or her to—

(a) furnish a Natura Impact Statement and the applicant shall furnish the statement within the period specified in the notice, and

(b) furnish any additional information that the public authority considers necessary for the purposes of this Regulation.”

As a conclusive assessment of the potential impacts on ecology could not be made from the FI responses, it was considered that the key issues may be clarified during an Oral Hearing and thus fulfil the requirements of Section 42.3 above. The clarifications would need to be sufficient to be able to assess the likely affects of the proposed abstraction during a dry summer in order to fulfil Article 6.3 of the Habitat’s Directive, where permission cannot be granted for a plan or project unless it can be ascertained that it will not adversely affect the integrity of the site concerned, and that certainty was not yet presented.

At the Oral Hearing Westmeath County Council proposed that a monitoring committee with representatives from Waterways Ireland, the Department of Arts, Heritage & Gaeltacht, Inland Fisheries Ireland and Westmeath County Council be established to monitor the impact of changing water levels in the lake and that the current lake profile be maintained unless and until agreed by the committee. The council also presented an operating scheme by which at a water level above 79.401. OD (Malin) in Lough Ennell, the sluice gate at Clonsingle would be fully open, and at a water level below 78.487m OD (Malin), the sluice gate will be fully closed and the supply to the Royal Canal discontinued.

These two proposals are problematic in that the latter is proposing a regime involving lake levels so low that they have never been recorded, and also suggesting that the current lake profile be maintained, which is incompatible with the low level of 78.487 proposed and incompatible with the evidence that the management of the sluice as proposed will improve lake levels. There was no evidence presented that the minimum level proposed, or a subsequent proposed level of 78.65m OD (Malin),which is just marginally above the minimum level recorded in the lake (1956) would be compatible with ensuring the protection of the SAC conservation objectives.

Section 42.11 of Statutory Instrument S.I. No. 477 Of 2011 (European Communities (Birds and Natural Habitats) Regulations 2011) states that:

“An Appropriate Assessment carried out under this Regulation shall include a determination by the public authority under this Regulation pursuant to Article 6(3) of the Habitats Directive as to whether or not a plan or project would adversely affect the integrity of a European site and the assessment shall be carried out by the public authority before a decision is taken to approve, undertake or adopt a plan or project, as the case may be.”

The important point made in Section 42.11 is that the consequences for the integrity of the site must be known before a decision is made to allow a plan or project to proceed. Therefore it would not be possible to permit the management of lake levels beyond those known to be protective of the conservation objectives regardless of any monitoring committee being set up.

A monitoring committee with representatives from Waterways Ireland, the Department of Arts, Heritage & Gaeltacht, Inland Fisheries Ireland and Westmeath County Council would have different aims, and only the Department of Arts, Heritage & Gaeltacht would have responsibility for the integrity of the SAC site. This would not guarantee that a loss of integrity would not occur, particularly as there may be a long period where monitoring surveys were being undertaken and their results may be open to disagreement. The only way to ensure Section 42.11 is satisfied is to come to a conclusion of levels based on good evidence from the oral hearing regarding levels where the integrity of the SAC/SPA is protected. Based on the evidence from Mr Tom Quigley of RPS, and the report of Dr Pamela Bartley to the Bord, there is enough evidence to conclude that a regime that is protective to the lake is possible, quantified in terms of upper and lower limits.

From the oral hearing, the evidence of Tom Quigley of RPS on behalf of the County Council was very useful. He provided numerical evidence of the current level range and proposed a protective level range of 79.146m OD to 79.471m OD. These levels correspond to a more stable regime that would be protective of the SAC/SPA and amount to an increase of level of 0.453m above the 1956 minimum. It is absolutely acceptable that a monitoring committee take charge of the operating procedure that manages the amount the sluice is left open or closed between these two level values of 79.471m OD and 79.146m OD. That the sluice gate is managed in order to maintain Lough Ennell’s water level within the protective level range of 79.146m OD to 79.471m OD, to be measured at Clonsingle weir, would need to be a condition of the permission in order to provide confidence in the protection of the SAC/SPA. However, closing the sluice at the minimum level of 79.146m OD would not be protective to the SAC/SPA if the lake was still being abstracted. Therefore, a further condition of the permission, in order to provide confidence in the protection of the SAC/SPA, would need to be added that the abstraction for the purposes of supply of water to the Royal Canal is halted when Lough Ennell’s water level is at the weir crest level of 79.325 m OD , which is the level specified in the EIS (RPS, 2011) for the cessation of abstraction. Once this condition is met, based on the science presented, the integrity of these sites would not be compromised. If these operation procedures are found to be insufficient to provide a supply to the canal, then further work would need to be undertaken to the consequences of abstracting to a lower level and a new application made. These assessments have not been provided to date and thus the precautionary principle must apply. Dr Bartley is in agreement regarding the level of confidence in these figures from a hydrological point of view.

The SAC is also designated for alkaline fen habitats and the proposed abstraction was presented as having no affect on these Annex I habitats. From cross examination of Roger Goodwillie, consultant to Westmeath County Council, it is clear that the fen habitat lost connection with the lake hydrogeology following the OPW drainage of the Lower Brosna River. Thus the levels proposed, as they are within the normal level range of the lake, would also be protective of the fen habitats in their current status, and may lead to expansion or improvement of wetland habitat along the lake edge. 11

The other conservation interests of the SAC are brook lamprey ( Lampetra planeri) and otter ( Lutra lutra ). Maintenance of levels within the normal operating flow would be protective to these species. Wetland and waterbird species that form the conservation interests in the SPA would similarly be protected, including those diving ducks that feed on Chara , as under the operating levels proposed of 79.471m OD and 79.146m OD, the food supply for the birds would be protected in extent and in quality, being less likely to suffer from severe low levels that could lead to algal blooms.

The final issue to be addressed was the methodology for construction of the pipeline within the Lough Ennell environment. Mr O’Sullivan explained the “trenchless” construction of the pipe laying under the lake, using directional drilling. The methodology was described in detail and is considered to be appropriate for the SAC environment. However, if the scheme is approved a detailed method statement would need to be approved by NPWS and IFI prior to construction.

Summary of assessment of likely impacts of Lough Ennell SAC and SPA

The proposal is unlikely to have a negative effect on the SAC/SPA providing a strict condition of upper and lower water levels is included, of 79.471m OD and 79.146m OD. A condition that the abstraction ceases when Lough Ennell’s water level is 79.325m OD, which is crest level at the weir at Clonsingle, is also considered to be essential.

With regard to water quality in the SAC / SPA and assimilation capacity during low levels, it is concluded that the above levels would also protect against low flows where assimilation could be compromised and water quality lowered. At these levels the lake would have a low level that is higher than in recent history and thus algal blooms at the site of the Annex I Charophyte Bed habitat would be less likely. However, a strict regime of water monitoring and vigilance of the effluent treatment should be part of the remit of the monitoring committee, who may also work out the best management regime between the maximum and minimum levels.

4.2 Lough Owel SAC and SPA

Lough Owel SAC is designated for the conservation of the habitat “hard oligo-mesotrophic waters with benthic vegetation of Chara species” (Charophyte bed habitats), quaking bogs , and alkaline fens, and for the white clawed crayfish ( Austropotamobius pallipes) . The existing feeder to the Royal Canal has important fen habitat surrounding it, with a large population of the Annex II species Desmoulin’s whorl snail ( Vertigo moulinsiana).

Lough Owel SPA is designated for the protection of wetlands and waterbirds including shoveler (Anas clypeata ) and coot ( Fulica atra ).

The EIS for the scheme and the NIS stated that “the existing abstractions to the Royal Canal will cease upon commissioning of the current proposal”.

The cumulative abstractions from Lough Owel for the canal, the Mullingar Supply and the Cullion IFI fish farm have been in excess of the safe abstraction limit of Lough Owel. It is acknowledged that an alternative supply to the canal would relieve pressure on Lough Owel and this positive aspect was stated within the objection of the Department of Arts, Heritage & Gaeltacht to the Bord in response to the application on the 28 th November 2011, and reiterated by Dr James Ryan of the Department during his evidence at the oral hearing.

Thus, with regard to the lake itself, the proposed scheme would have a positive effect.

The canal feeder and intrinsically linked alkaline fens surrounding the feeder rely on a source of water in the feeder. Thus the cessation of the existing abstraction as proposed by the scheme could have a negative effect on the feeder itself and its associated fen habitat.

This matter was raised at the oral hearing and it was accepted by Westmeath County Council that their schedule of commitments would include a conservation measure of maintaining a minimum flow of 0.5 million gallons per day from Lough Owel to the canal feeder in order to protect the Lough Owel feeder and surrounding habitat.

This would be protective of the habitat and the population of Desmoulin’s whorl snail ( Vertigo moulinsiana).

It is important to note that all water level calculations for flows and levels in Lough Ennell are based on the effluent from the Cullion IFI fish farm being at all times directed to the Brosna River and thence to Lough Ennell. At present, two thirds of the effluent is pumped to the Lough Owel feeder at certain times of the year to increase the water available for the Royal Canal. The approximately 3 million gallons per day effluent is a significant percentage of the Lough Ennell water balance calculations. Therefore it is important that the commitment of 0.5 million gallons per day is directly from Lough Owel and is not from the Cullion wastewater, the entire volume of which is required for the Lough Ennell volumes to be accurate. It is recommended that the commitment of 0.5 million gallons per day from Lough Owel and the removal of the wastewater from Cullion to the Brosna is a condition of permission to ensure it occurs on the ground, as it is essential to the prevention of a

negative impact on the Lough Owel feeder and surrounding fen habitat and to the appropriate quantities of water reaching Lough Ennell.

Summary of assessment of likely impacts of Lough Owel SAC and SPA

The scheme is expected to have a positive effect on the conservation objectives of Lough Owel SAC and SPA, providing the condition that 0.5 million gallons per day from Lough Owel to the canal feeder is fulfilled and the wastewater from Cullion IFI fish farm is transferred to the Brosna and thence to Lough Ennell.

4.3 River Boyne and River Blackwater SAC and SPA

While there is a hydrological link between these Natura 2000 sites and the Royal Canal, the flow of water is from the River Boyne to the canal and not the other way around, therefore water quality and alien species affects are unlikely to be an issue. It is concluded that there will be no negative impact from the scheme on these sites.

4.4 Rye Water Valley / Carton SAC

While there is a hydrological link between this SAC and the Royal Canal, the linkage is via a small feeder that brings water to the canal during flood periods. Other than this there is little actual linkage between the sites due to the high aquaduct carrying the canal over the Rye Water. The flow of water in the Rye Water River is strong in the vicinity of the canal, and leakage from the canal to the River is unlikely to affect water quality or alien species transfer. It is concluded that there will be no negative impact from the scheme on this site.

4.5 Lough Forbes Complex SAC / Ballykenny – Fisherstown Bog SPA

The SAC site is designated for Natural euthrophic lakes with Magnopotamion or Hydrocharition-type vegetation (Annex I habitat 3150), active raised bogs (Annex I habitat 7110), degraded raised bogs still capable of natural regeneration (Annex I habitat 7120), depressions on peat substrates of the Rhynchosporion (Annex I habitat 7150), and old sessile oak woods with Ilex and Blechnum in British Isles (Annex I habitat 91A0). The SPA in the same area is designated for the Greenland white-fronted goose ( Anser albifrons flavirostris ).

While there is a hydrological link between these Natura 2000 sites and the Royal Canal via the Shannon River, and with the canal at Cloondara at its most southerly point, there is little actual linkage between the sites due to the flow from the canal being carried downstream on reaching the 14

Shannon. Zebra mussels are already at Cloondara and in the Shannon system. It is concluded that there will be no negative impact from the scheme on these sites.

4.6 Lough Ree SAC / SPA

The SAC is designated for the otter ( Lutra lutra ), the habitats of natural eutrophic lakes with Magnopotamion or Hydrocharition-type vegetation (Annex I habitat 3150), semi-natural dry grasslands and scrubland facies on calcareous substrates ( Festuco Brometalia )(*important orchid sites)(Annex I habitat 6210), degraded raised bogs still capable of natural regeneration (Annex I habitat 7120), alkaline fens (Annex I habitat 7230), limestone pavements (Annex I habitat 8240), old sessile oak woods with Ilex and Blechnum in British Isles (Annex I habitat 91A0), and bog woodland (Annex I habitat 91D0). The SPA is designated for whooper Swan ( Cygnus cygnus ), wigeon ( Anas penelope ), teal ( Anas crecca ), mallard ( Anas platyrhynchos ), shoveler ( Anas clypeata ), tufted Duck (Aythya fuligula ), common scoter ( Melanitta nigra ), goldeneye ( Bucephala clangula ), little grebe (Tachybaptus ruficollis ), coot ( Fulica atra ), golden plover ( Pluvialis apricaria ), lapwing ( Vanellus vanellus ), and common tern ( Sterna hirundo ).

There is a hydrological link between these Natura 2000 sites and the Royal Canal via the Shannon River downstream. The dilution factor provided by the Shannon will negate any water quality or water characteristic changes before reaching Lough Ree. The zebra mussel is already present in Lough Ree. It is concluded that there will be no negative impact from the scheme on this site.

4.7 Royal Canal pNHA

The Royal Canal has been chosen as a pNHA for the combination of aquatic and riparian habitats and species found within and alongside the canal, including otter, crayfish, Desmoulins whorl snail (all Annex II species), opposite leaved pondweed (a nationally protected species) and the glutinous snail (listed as endangered in the Irish and international red lists). Other red listed species are also present, including the declining Anodonta species of freshwater mussels.

The written information presented within the EIS and the NIS did not present enough information to be able to fully assess the potential impacts on ecology in the Royal Canal from the proposed scheme. While not a Natura 2000 site the Royal Canal features Annex II species, and provides a very important habitat corridor and means of distribution for species that would otherwise be in a more isolated situation within their SACs. Some of these species such as Desmoulin’s whorl snail and the white-clawed crayfish perform poorly in isolated restricted habitats, but thrive when a level of connectivity is maintained, and the maintenance of favourable conservation status relies on a functioning corridor.

Every 6 years Ireland must report to the EU on the status of every Annex I Habitat and every Annex II species listed under the Habitat’s Directive that is present in Ireland. The last reporting procedure (under Article 17 of the Habitat’s Directive) was in 2007, when the crayfish status was found to be

inadequate, and Desmoulin’s whorl snail was found to be in unfavourable – bad status, and the report stated that:

“In Ireland, the greatest loss of Vertigo moulinsiana sites has been through drainage of wetlands, and riparian management of the Grand and Royal Canals.” (Department of Environment, Heritage and Local Government, 2008).

The EIS only assessed the Royal Canal at the immediate point of proposed receipt of the Lough Ennell water. However, this abstraction is designed to be transferred to the Royal Canal at its summit level .

In the absence of a thorough assessment in the EIS, further information was requested in an effort to understand what the zone of influence of this water would be in the canal. The information was requested in questions number 2, 6, 7, and 13 of the further information request.

Of key importance was the FI question 7 (9 th March 2012)which asked:

“Please review and amend the ecological assessment of potential effects on the Royal Canal, including on Annex II and Annex IV species. The field work does not support an assessment of the issues and implications throughout the length of the canal. In the light of this, the EIS should be updated to include an evaluation of all areas potentially affected. Evaluations of water quality impact should include consideration regarding both the nutrient status and the calcareous characteristics of both the source and receptor .”

The response from Westmeath county Council on 10 th April was as follows:

Item 7:

“A Natura Impact Statement has been prepared and the Stage 2 Appropriate Assessment indicates the potential impacts have been effectively avoided with the implementation of mitigation measures and proper design to avoid any significant impacts. There will therefore be no direct, indirect or cumulative impacts. As there is no impact predicted down gradient of the proposed discharge point the undertaking of investigations along the full length of the Royal Canal is not considered necessary.”

The response to this and the other questions provided no further information to aid an assessment, and there was no clear written assessment of the change of water throughout the Royal Canal system from a Lough Owel source to a Lough Ennell source, which is essential to understanding whether the proposed regime may have a negative impact on the pNHA. The response that there would be no adverse impact on habitats and species that had not been in any way assessed in spite

of a Bord request for the information was astonishing. Therefore the questions were taken up in evidence in the oral hearing.

In his submission at the start of the hearing, Dr James Ryan of the National Parks and Wildlife Wetland Unit expressed concern regarding the potential change in water quality in the proposed new supply from Lough Ennell. He reiterated that his concern was for the entire length of the Royal Canal in both directions. He stated that there were a number of species present of conservation importance, and that some, like crayfish, were unlikely to be seriously affected by a change in water source, but his key cause for concern was for the whorl snail Vertigo moulinsiana . He stated that this species requires reasonably calcareous conditions with a high water table and specific vegetation structure in order to survive. He stated that an increase in nutrients could affect the vegetation structure in the Royal Canal and had the potential to have an adverse affect on the snail, and that this needed further clarification during the oral hearing.

Regarding the zone of influence, at the hearing it was quickly established that the Lough Ennell abstraction is intended to provide all the water to the Royal Canal in both directions, and that no other input had any significance. Therefore the zone of influence of the proposed abstraction in the Royal Canal was clarified to be all the way West to the Shannon River, and all the way east to the Liffey Basin.

It is therefore important to consider the potential effects on the entire canal from the change in water quality and characteristics compared with what is has enjoyed, bearing in mind that up to recently some sections were dry for almost 50 years. However, those areas supporting aquatic species of interest that have been watered on a longer term basis have been experiencing Lough Owel water, and the Lough Ennell water is acknowledged to be considerably different in terms of quality and characteristics, as stated by Dr William O’Connor during questioning and reiterated by the solicitor for Westmeath county Council Mr McMullen in his closing statement.

The question of the affects of the change of water from mainly Lough Owel water to mainly Lough Ennell water was therefore asked again during the hearing. There was no oral response to this question, as the Westmeath County Council consultants repeated that this was beyond the scope of their remit. Ms Criona Doyle stated that in order to answer this question, further investigations would be needed, and these had not been carried out. Ms Criona Doyle of RPS, following a break, read a statement to the hearing as follows:

“In view of the request regarding the evaluation of the Royal Canal, the undertaking of further ecological studies and water quality monitoring in the Royal Canal is not considered necessary due to the fact that there will be no significant impacts at the proposed discharge point. The operation and management of the Royal Canal is outside of the scope of the current application. As outlined previously it is proposed that a monitoring committee will be established to take into effect the recommendations of IFI, NPWS, WI and WCC, as part of the ecological management plan in relation to the proposed abstraction .”

This response is highly inadequate as it has been clearly acknowledged at the hearing and stated by NPWS that the zone of influence of the proposed abstracted water is the entire length of the canal in both directions. The limitation of the investigations to the canal at the point of discharge and solely to compare the donor and recipient water as being of “satisfactory quality” is to ignore the many legally protected, rare and vulnerable species along the path of the canal in both directions. There seemed to be a fear that what was being asked for was an EIA into the rewatering of the previously dry areas of the Royal Canal. This is incorrect; the information needed was as assessment of the change in water to the proposed Lough Ennell source on the legally protected, rare and vulnerable species currently present in the canal. This question was never satisfactorily answered, and therefore the Bord needs to make its own assessment on this issue, with very limited factual guidance.

The situation was complicated by Mr Russell of Waterways Ireland interjecting that the Lough Owel water has been the main source to the canal to date only during high flow periods, and that over the last 10-20 years, the Boyne and Inny Rivers have been abstracted in an ad hoc basis as the main source during low flows. Mr Russell had no idea how these waters have been pumped or operated, only that it has been an ad hoc arrangement. This evidence is in complete conflict with the EIS which stated that the only significant source of water to the Royal Canal has been Lough Owel.

The uncertainty of the effects of the proposed abstraction on the legally protected, rare and vulnerable species currently present in the canal makes it difficult to assess the potential for losses that may occur through the granting of this scheme. However, the Royal Canal, although it supports Habitats Directive species, is a pNHA and not an SAC or SPA, and thus there is not the same burden of certainty placed on ensuring its integrity is maintained. It has already been acknowledged that the current regime of abstraction from Lough Owel, while beneficial for the canal, is damaging to the SAC lake, and thus is not sustainable into the future. Therefore the abstraction instead from Lough Ennell is protective of Lough Owel SAC even if it may depress the quality of the habitat in the Royal Canal pNHA. The Bord may consider adding the proposed ecological monitoring committee and the development of an Ecological Management Plan for the Royal Canal by Waterways Ireland to the satisfaction of NPWS and IFI as a condition of an abstraction grant in order to maximise the status of the important species in the Royal Canal pNHA. Such a plan would be difficult to implement independently by NPWS as the Royal Canal is a pNHA, not a designated European Site, and thus would not be subject to the powers of the Habitat Regulations 2011.

During questioning on this subject, Mr Russell of Waterways Ireland provided a background on the type of canal design, water protection and leaks along the approximate 140km length of the canal. Mr Russell said that in the Eastern direction from the summit the canal was mainly in cutting and had two small gravity fed feeders, the Thomastown feeder and the Rye Water feeder, neither of which flow in low water conditions. The demand for water was higher towards the west, where there is much more of the canal built on embankment rather than cutting, which leads to greater water loss. Twelve kilometres of this section has been relined with puddle clay and in some cases with pvc. Local individual abstractions are also a problem and WI are attempting to control these by legal action and in some cases local compensation measures where landowners have rights for abstraction. Other than through traffic, losses of water are through evaporation and through gaps in sluices designed to maintain water balance in the canal. 18

In order to prevent the deterioration of habitat conditions in the Royal Canal, and to minimise the abstraction needed from Lough Ennell, Waterways Ireland needs to address problems of leakage throughout the canal. In order to ensure that the water quality of Lough Ennell continues to rise, a Water Quality Management Plan should be undertaken to include addressing any catchment issues that may be contributing to water quality depression in the lake, as well as managing the treatment of municipal sewage water. The Habitat Regulations 2011 allow for Management Plans and Agreements in designated sites. However, the water quality management of Lough Ennell also needs to take into consideration the protection of the important ecological condition of the Royal Canal, which is not a European Site. The Board could consider a condition requiring a Water Quality Management Plan for Lough Ennell that includes the protection of the ecological status of the canal.

The issue of invasive species was also raised at the hearing, in particular the inevitable transfer of zebra mussels from Lough Ennell to the Royal Canal. There was general agreement that this could not be prevented. Dr William O’Connor was of the opinion that the zebra mussel would probably reach the canal discharge point before any works commence. This is unlikely as the mussel has been found to date only at the western and eastern ends of the Royal Canal. The flow in both these areas is away from the summit level, and thus transfer is only likely to be through contaminated boats resting along the route between the two ends of the canal. Releasing zebra mussel into the summit level of the canal is likely to result in a much more immediate and concentrated spread of the invasive mussel. However, their spread is likely to be inevitable in the long term; the proposed abstraction will only speed up the process. Dr Ryan of NPWS highlighted the requirement for Westmeath County Council to obtain a licence under section 49 of S.I. No. 477/2011, the European Communities (Birds and Natural Habitats) Regulations 2011.

Summary of assessment of likely impacts on the Royal Canal pNHA

The ecological impact on protected and sensitive species currently present in the Royal Canal was not adequately assessed. Potential negative effects could be reduced through better management of the canal through an ecological monitoring committee and the development of an Ecological Management Plan for the Royal Canal by Waterways Ireland to the satisfaction of NPWS and IFI.

The zebra mussel is likely to establish and spread through the canal from the discharge point. This is inevitable, and is likely to be subject to Westmeath County Council requiring a licence under section 49 of S.I. No. 477/2011, the European Communities (Birds and Natural Habitats) Regulations 2011 should permission be granted.

4.8 Rare and protected species that may be negatively affected by the scheme

The ecological impact on aquatic protected and sensitive species has been covered in the preceding sections where they are qualifying interests in SACs or SPAs or as discussed in the Royal Canal. Thus the species Desmoulin’s whorl snail ( Vertigo moulinsiana), white clawed crayfish ( Austropotamobius pallipes), brook lamprey ( Lampetra planeri ), opposite leaved pondweed (Groenlandia densa) and the glutinous snail (Myxas glutinosa) have been dealt with.

The remaining species of ecological concern are any species of bat that may be present and potentially negatively affected by the scheme. As there are no bridges to be impacted, the only potential building that would be disturbed is the Ladestown building to be used as the new pumphouse. Mr Goodwillie stated that he visited the building and did not see any suitable bat roosting habitat, and Mr McDonnell confirmed that mammal surveys would be undertaken, including for bats in advance of the proposed construction from the abstraction point at Ladestown, including the building, and the pipeline route to the canal. The combination of these two pieces of evidence is sufficient to conclude that there is no scientific doubt regarding a potential negative impact on an important bat habitat, and thus this aspect can be assessed positively.

4.9 Non protected areas of conservation concern

The River Brosna downstream of Lough Ennell sustains at least 12 species of fish including brown trout, and the Habitats directive Annex II species brook lamprey and the Atlantic salmon, the latter of which is a rare occurrence at present but which the IFI hope will increase in the future in the river.

That there is currently no control of or regulation of water levels in the lake. Water flows from Lough Ennell through the Clonsingle weir with no control of discharge from Lough Ennell to the River Brosna. In the late 1950’s a major drainage scheme by the OPW lowered the level in the River Brosna, and thus in the absence of a controlling weir, the lake level now lowers to a much greater extent than in the pre-drainage era.

The proposal to refurbish the existing Clonsingle Weir has the potential to maintain higher levels of water in Lough Ennell, and to create a more even regime of flow in the River Brosna. The construction of an appropriate fish pass is an essential part of the ecological functioning of the river, allowing movement of fish through the lake and into the river and vice versa.

There was considerable discussion during the hearing regarding what design of fish pass is appropriate, with IFI requiring a total fish pass to accommodate all species during all flows. If the proposed abstraction is limited as recommended by Dr Bartley during low flows, this will have a positive effect on both the lake levels and the levels in the River Brosna. During the flow regime recommended, the fish pass should be passable at all times, with a minimum compensation flow of 0.29m³sec -¹. During extreme droughts, there may be a balance to be made between the value of drawing down the lake to feed the river or lowering of flow to the river to maintain the lake level and if the latter is desirable then the fish pass could be temporarily impassable. If the abstraction ceases when Lough Ennell’s water level is at 79.325 n OD weir crest level at Clonsingle weir, then any further drought conditions would be in extreme natural circumstances, so impassability of the 20

fish pass could not be attributed to the proposed development. The level of discussion of design of the weir and the fish pass was sufficient to conclude that the overall condition of both lake and river would be improved. However, if the scheme is approved the pre-construction stage of detailed method statements for both weir and fish pass should be subject to the approval of IFI. The Fisheries (Consolidation Act) 1959 (as amended) requires detailed method statements to be approved by IFI and no works to commence without their written permission. The Board may wish to confirm this in any consent to ensure that there is no confusion, i.e. that the design as outlined in the EIS may be consented but modified by any requirements at method statement stage by IFI.

5. Conclusions

The preceding sections outlined the main issues relating to ecological concerns that were raised by the proposal to abstract water from Lough Ennell to serve the Royal Canal. These conclusions now summarise these issues relative to a) whether there is scientific certainty that the proposal can be consented without risk to the integrity of Natura 2000 SAC and SPA sites that have the potential to be affected and b) whether there is scientific certainty that other sites and species of ecological value will not be impaired.

Appropriate Assessment requires best expert judgement for important habitats and species. The 2007 Article 17 reporting found the habitat “Hard oligo-mesotrophic waters with benthic vegetation of Chara species” to be in unfavourable-bad status, and Dr Ryan of NPWS confirmed that Lough Ennell SAC, which is designated for this Annex I habitat is in unfavourable condition for this habitat.

Therefore, the conservation objective, as demanded by the Habitat’s Directive, is to restore the Chara beds of Lough Ennell to favourable condition. This proposal cannot be consented if it de facto prevents the restoration of the habitat to favourable condition.

The restoration of adequate Chara bed habitat is so central to the appropriate assessment of this project that it is surprising and disappointing that a Chara expert was not employed by the applicant. Best expert judgement is a central policy of the Habitats Directive, particularly in a situation such as Lough Ennell, where historic information is sparse and the status of the habitat in the past must be interpreted from information known on past and present water quality and flow regimes. The evidence of Dr James Ryan of NPWS is the best expert judgement that I have used in the absence of any expertise being presented from the applicant.

Dr Ryan is of the opinion that the Lough Ennell Chara beds are in unfavourable condition due to reduced water quality from historically inadequate municipal sewage treatment, and through the lowering of lake levels from their historical past due to large scale deepening of the River Brosna in the 1950s by OPW, without adequate weir control at the exit from the lake. The combination of these two factors has resulted in a much reduced cover of Chara on the bed of Lough Ennell, the low water quality has reduced the cover of Chara in the deeper areas by blocking sunlight from the lake bed, and the stronger fluctuations of flow caused by the OPW works on the Brosna has reduced Chara cover in shallow edge areas as the species likes an even hydrology. 21

The proposal for abstraction from Lough Ennell includes the construction and maintenance of a fully controlled weir and fish pass at Clonsingle. This will result in the maintenance of a more even hydrological regime in Lough Ennell than at present, which will have a positive effect on the shallow Chara bed habitat in the lake. Improvements to the water treatment in Mullingar have resulted in an ongoing improvement of water quality in the lake, and together with the potential for raised summer water levels (through control at Clonsingle), has the potential to improve the quality of the Chara beds in deeper water.

The overall affect on the integrity of the site has the potential to be positive, if and only if the abstraction regime during low flow periods does not result in the draw down of the lake to levels that would once again cause unsuitable fluctuations in shallow habitats and concentrate nutrients over both shallow and deeper habitats. If the abstraction levels during low flow periods were to be excessive, then the current unfavourable condition of the Chara habitats would never be improved to a level demanded by Habitats Directive obligations. In order for the scheme to have a positive effect on the integrity of the SAC rather than a negative effect, the abstraction must be sustainable. I consider the best expert judgement of the abstraction regime in order to be sustainable as that proposed by Dr Bartley in her report to the Bord (Bartley, 2012), where she has calculated the worst case hydrological scenarios and concludes that the minimum level of 79.146 m OD at Clonsingle weir and consequently at Lough Ennell would be protective to the habitat.

It is important to emphasise that in the absence of any defined limits to the weir levels, the Bord could not assess the application as positive, as the risk to the SAC integrity through over abstraction would remain. By including conditions that require adherence to the protective operating range for Lough Ennell’s water levels as 79.471m OD to 79.146m OD and that abstraction for the purposes of supplying the Royal Canal will cease when Lough Ennell’s water level measured at Clonsingle weir is 79.325m OD allows the scheme to be protective to the integrity of the SAC/SPA. This regime, particularly the cessation of abstraction at low flows, will also be protective to the River Brosna downstream. Although this has no conservation designations, it is important that the habitat in this river for fish and invertebrate life is maintained.

In addition, the construction elements of the scheme, with directional drilling of the pipeline, the refurbishment of the building at Ladestown and the underground pipeline to the canal need to have detailed method statements agreed by NPWS and IFI in advance of construction, including recommendations from bat and mammal surveys that will be undertaken. The construction of the refurbished Clonsingle weir and fish pass must also have detailed and protective detailed designs and method statements that meet all the requirements of NPWS and IFI.

The assessment of the potential effects of the proposed abstraction on the Royal Canal pNHA was problematic. The applicant made a very restricted assessment of the scheme as it related to the canal, looking only at water quality at Kilpatrick Bridge. Much of the canal has only recently been rewatered, and the applicants were reluctant to look at the effects of Lough Ennell water in these areas as it may seem that they were carrying out an EIS of the reopening of the canal rather than an abstraction. Ideally they should have presented a full assessment of the change of water both from areas that have been aquatic for many years and those that have only been wet for up to one year as it is the new water source within the zone of influence from the input at the summit level that 22

needed to be assessed. It is clear and was accepted that the Lough Ennell water will be different from the current water in the canal in both quality and in terms of mineral composition. This may lead to a decline in the excellent quality currently found in the Royal Canal. However, the current main source of water (Lough Owel) is unsustainable and although it has been an excellent quality source for the canal, it is more important that it is preserved to protect the integrity of Lough Owel, which is an SAC and SPA, rather than enhance the canal (a pNHA). The habitats in the Royal Canal can be maintained in a more protective manner than they have in recent history, and this could offset the potential negative effects of the change in water, thus an ecological monitoring committee and the development of an Ecological Management Plan for the Royal Canal by Waterways Ireland to the satisfaction of NPWS and IFI should be undertaken as a means of protecting the integrity of the Royal Canal pNHA.

The current Lough Owel canal feeder and intrinsically linked alkaline fens surrounding the feeder are an important habitat and support the rare Annex II whorl snail Vertigo moulinsiana. The cessation of the existing abstraction as proposed by the scheme could have a negative effect on the feeder itself and its associated fen habitat. Maintaining a minimum flow of 0.5 million gallons per day from Lough Owel to the canal feeder in order to protect the Lough Owel feeder and surrounding habitat would be protective of the habitat and the population of Desmoulin’s whorl snail ( Vertigo moulinsiana). It is recommended that the commitment of 0.5 million gallons per day from Lough Owel and the removal of the wastewater from Cullion to the Brosna is a condition of permission .

The proposed abstraction will result in the introduction of the zebra mussel to the summit level of the Royal Canal and thus negatively affect the habitat of the canal. The movement of zebra mussel to the summit level is considered to be inevitable as the species is currently present at both ends of the canal, and there is already boat movement between the two ends that will result in the spread of the zebra mussel throughout the canal. Therefore this was not considered to be an issue that should alone prevent the grant of permission.

Following the evaluation of the application for ecological risk, my final conclusion is that the information, as presented in the original application, and the weir operation proposed by the applicant at the oral hearing would constitute an unacceptable risk to the integrity of Lough Ennell SAC and SPA through ongoing stress on Chara bed habitats, thus not allowing these habitats to recover from unfavourable condition to favourable condition as required by the Habitats Directive. However, the level range of 79.471m OD to 79.146m OD proposed in oral hearing evidence by Mr Tom Quigley of RPS, which has been validated as acceptable by Dr Bartley (Bartley, 2012), allows me to conclude that this level range would result in a scheme that would be protective to the integrity of the SAC/SPA, and there would be sufficient scientific certainty that the proposal would not negatively affect the integrity of the site. However, approval for this operational water level range requires that a condition is stipulated that the abstraction for the purposes of supplying the Royal Canal will cease when Lough Ennell’s water level is at the level of 79.325m OD, measured at Clonsingle weir. It is only with the condition that abstraction ceases at the level of 79.325m OD that there would be sufficient scientific certainty that the proposal would not negatively affect the integrity of the site.

6. REFERENCES

Bartley, P. (2012). Hydrological assessment report. Commissioned by An Bord Pleanala with respect to PW3005 / JA0030 Lough Ennell water abstraction to Royal Canal.

Byrne, A., Moorkens, E.A., Anderson, R., Killeen, I.J. & Regan, E.C. (2009) Ireland Red List No. 2 – Non- Marine Molluscs. National Parks and Wildlife Service, Department of the Environment, Heritage and Local Government, Dublin, Ireland.

Curtis & McGough (1988) The Irish red data book 1. Vascular Plants. Wildlife Service, Ireland.

Department of the Environment, heritage and Local Government (2008) The status of EU protected species and habitats in Ireland. Article 17 reporting document to the European Commission.

RPS (2011) Lough Ennell Abstraction Supply to Royal Canal. EIS, Volume 2, Main Report. September 2011.