Environmental Environmental Law Pillar's 8c Implementation G

77~ An Taisce`s EL1G ' ~ rou P

Submission to public consultation on:

The Draft Operational Programme for Ireland for the EMFF, and associated Strategic Enviornmental

Assessment Deport and Appropriate Assessment

May 1st 2015

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Ireland's Draft Operational Programme for the EMFF, SEA and AA.

1Introduction

We note the public consultation of Ireland's Draft Operational Programme for the European Maritime and Fisheries Fund, (EMFF); the associated legally required assessment under the Directive 2001/42/EC1, (The Strategic Environmental Assessment Directive) or (SEA Directive); and Appropriate Assessment, (AA), obligations required pursuant to Council Directive 92/42/EEC2 , (the Habitats Directive) — where that consultation was launched by Department of Agriculture, Food and the Marine, (DAFM).

This submission has been prepared with certain of the individuals assigned by the Environmental Pillar and An Taisce as contact points on the opportunities and challenges presented by an Operational Programme for the EMFF Operational Programme, under the auspices of the Environmental Law Implementation Group (ELIG)3 initiative. It may not reflect the views of all the members of the Environmental Pillar.

This submission is submitted without prejudice to the over-riding comment that the Draft OP is not compliant with a range of EU legislation and conventions to which

1 DIRECTIVE 2001/42/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment

2 COUNCIL DIRECTIVE 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora

3 The Environmental Law Implementation Group (ELIG) was formally established in 2012 to assist in the protection and enhancement of Ireland's environment. ELIG seeks to improve the transposition, implementation and enforcement of environmental law through better communication between policy makers, Implementing authorities, the Environmental Pillar and An Taisce, and to develop the capacity in environmental law of the Environmental Pillar's member groups.

The partners In the ELIG initiative are: The Environmental Pillar, An Taisce The National Trust for Ireland and The Irish Government, with the Department of Environment, Community and Local Government being the lead agency for the Government.

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the EU is party, and therefore is not fit for purpose in our view, given in particular issues with:

• Its content, and non-compliance with the legislative requirements for the Programme pursuant in particular but not limited to the Common Provisions Regulation, CPR , and the EMFF Regulation, and various associated implementing provisions; and

• The consequential compromise to consultation obligations arising from the SEA Directive and the Aarhus Convention 6, and

• Potentially, the Espoo Convention'; • The conduct of the consultation process; and • Failure to provide access to requested documentation such as the partnership

agreement and screening decisions on transboundary impacts which we wished to be able to provide context to our commentary.

In respect of these latter four points, we also respectfully highlight to the EU Commission the adverse finding against the EU by the Aarhus Convention Compliance Committee in respect of the failures to provide for adequate public consultation on the National Renewable Energy Action Plans, (NREAP) (ACCC/C/2010/54) . We submit that in the content of the vast sums of money involved and the fundamental transformational environmental objectives intended from this Structural Fund — that it is imperative the efficacy of the public consultation necessary to the legal procedures required for this programme be fully and properly satisfied, and that the re-submission of plans will be in our view necessitated if the failures associated with the consultation on this draft OP are not re-dressed before submission to the Commission.

This submission is limited given the time available to make it, in particular given the expectation that the failure by Ireland to provide the necessary information to facilitate the legally required consultation on the draft and associated reports and ex ante conditionalities would result in a necessary extension to the period of consultation provided and notified. Such an expectation was consequent on what we

REGULATION (EU) No 1303/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repeating Council Regulation (EC) No 1083/2006

5 REGULATIONS REGULATION (EU) No 508/2014 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 May 2014 on the European Maritime and Fisheries Fund and repealing Council Regulations (EC) No 2328/2003, (EC) No 861/2006, (EC) No 1198/2006 and (EC) No 791/2007 and Regulation (EU) No 1255/2011 of the European Parliament and of the Council

a THE CONVENTION ON ACCESS TO INFORMATION, PUBLIC PARTICIPATION IN DECISION-MAKING AND ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS done at Aarhus, Denmark, on 25 June 1998 CONVENTION ON ENVIRONMENTAL IMPACT ASSESSMENT INATRANSBOUNDARY CONTEXT United Nations 1991

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understand were representations on this at the Shadow Monitoring Committee meeting in Clonakilty in April 2015, and as we understand it concerns expressed by the EU Commission in respect of there being no Multi-Annual National Strategic Aquaculture Plan, (MNSAP) which is specifically required as an ex ante conditionality for the Operational Programme, (OP).

This submission has additionally been considered particularly in the context of historic issues of non-compliance by Ireland with EU law on a range of matters. Some of these compliance issues have resulted in judgements from the Court of Justice of the EU, (CJEU) and some of these cases remain open, some are closed but arguably issues still pertain and close monitoring is being undertaken particularly in the context of the EMFF — certain of these include:

• A legacy of extensive failures under both the Birds and Habitats Directive, CJEU Judgement c-418/04 and new infringement actions from DG Envi in respect of management and protection of the Natura 2000 network;

• The Strict Protection of species requirements listed under Annex IV of the Habitat's Directive; Judgement from the CJEU c-183/05

• The Urban Waste Water Directive9 where there is a substantial ongoing infringement action against Ireland; 2013/2056: the EU Commission's associated ongoing infringement action in respect of non-compliance with the Urban Waste Water Directive and Case c-316/06 where Ireland was found in breach of its obligations on the Council Directive concerning urban waste water treatment and where outstanding actions have been consolidated into the new infringement; Implementation issues under the Marine Strategy Framework Directive10 and the Water Framework Directive";

• Waste Management obligations in respect of Domestic Waste Water Treatment Systems, DWWTS; c-188/08

We submit that Ireland should be seeking to leverage every opportunity to use the EMFF where possible and appropriate to first assist with its ongoing non-compliance with EU Law and that both the seeking granting of funds must be considered in the context of prioritising compliance. In that regard we wish to quote the CIEU in case c-494/04 — another case against Ireland which while on not particularly related to Marine Matters — is painfully relevant in the context of Irelands failures to

8 DIRECTIVE 2009/147/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 30 November 2009 on the conservation of wild birds, (coded version)

s Council Directive of 21 May 1991 concerning urban waste water treatment, (91/271 /EEC). 10 Marine Strategy Framework Directive: DIRECTIVE 2008/56/EC OF THE EUROPEAN

PARLIAMENT AND OF THE COUNCIL of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive)

" 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

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aggressively and effectively resolve a multiplicity of non-compliances. In paragraph 126 of the Judgement the court stated:

"...where a Member State has been failing for some 20 years to fulfil its obligation to achieve the result prescribed in Article 9 of the Directive, it is incumbent upon it to do everything to remedy that failure as rapidly as possible"

2. Non-compliance of Content and Failure to facilitate wider compliance

We submit the Draft OP fails to comply with the content requirements as set out in Article 18 of the EMFF Regulation — in particular but not limited to:

• Issues with the SWOT; Failure to provide for the ex ante conditionaGfy MNSAP; Failure to provide for the evaluation report in respect of this stage of the process; and which as we understand it is rWair+ed under Art 55 of the CPR. This latter is important in facilitating consultation responses in particular.

These are expanded upon briefly below in turn:

• issuers with the SWOT;

We submit the range of measures provided for under the EMFF to address the Union Priorities and sub-objectives set out in Article 6 of the Directive provide significant scope to address a number of outstanding issues of compliance and these should be clearly assessed and prioritised in line with the objectives of the EMMF Reg as set out in Art 5; and indeed wider obligations under the TFEU. However this has not been availed of and such an approach has not been targeted or prioritised by Ireland. In fact the priority for Ireland is self-evident from the title of the programme "Seafood development Programme" which serves to undermine and mis-represent the environmental sustainability and social dimensions to the EMFF.

We further submit that the SWOT analysis and associated intervention logic and consequential programme is not sufficiently granular to provide for any really credible view on what is proposed or an evaluation of same as intended either in the Draft OP or to facilitate any meaningful assessment under the SEA Directive or Habitats Directive Article 6.

In brief:

• The Draft OP in the SWOT fails to specifically evaluate for each union priority sub-objective Ireland's strengths, weaknesses, the opportunities and threats.

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• Therefore from the outset the intervention logic premise on which the plan is based is compromised.

• The context indicators have not been fully addressed also in the baseline assessment. For example in the case of UP 1 several important environmental context indicators have not been addressed in table 2.11 on page 37.

• We submit that output and result indicators while not ideally constructed in our view — are also inadequately treated and consequentially flawed given the baseline is incomplete.

• There is no transparency around the baseline data provided • There is no contributory logic evidenced adequately to show how with any

meaningful granularly what programmes will contribute and how. • The evaluation of the SWOT hasn't been provided • There is a failure to provide adequate and accurate context to Ireland's

implementation of the MSFD and WFD which are essential context to the EMFF and where water quality and ecological sustainability and an ecosystems approach are fundamental to the EMFF

In respect of the MSFD and WFD we submit a view on Ireland's implementation and status in Annex I to this submission.

• Failure to provide for the ex ante conditionalffy MNSAP;

Annex II to this submission sets out the legal requirements in respect of the ex ante evaluation further to both the EMFF Regulation and the CPR Regulation by way of a letter submitted to the Irish Minister responsible for the programme on the matter in the final week of the consultation following on his failure to respond to the issues on this matter highlighted to his department.

Additional to that analysis, we note that Art 18 (1)(d) of the EMFF regulation requires as part of the content of the EMFF OP an assessment of the specific ex ante conditionalities. We submit that as the MNSAP hasn't been provided and no assessment of it performed as part of the Draft OP — the content presented for consultation has been significantly compromised. For convenience the requirement is quoted below:

"EMFF Regulation Art 18(1)

(d) the assessment of the specific ex ante conditionalities referred to in Article 9 of

and in Annex IV to this Regulation and, where required, the actions referred to in

Article 19(2) of Regulation (EU) No 1303/2013;"

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We submit: • the intervention logic which is a fundamental foundation of the OP has

been compromised by the failure to provide this report in particular in

respect of Union Priority 2 • the ability to assess environmental impacts coherently and properly in

accordance with the SEA directive has also been compromised by this fragmented approach as the MNSAP will also require SEA.

Failure to provide for the evaluation report in respect of this stage of the process; and which as we understand it is required underArt 55 of the CPR This lat ter is important in facilitating consultatron responses in particular,

This we submit requires no further expansion — it is absent and it is required.

3. Proposals in respect of conservation measures:

We note a very inadequate assessment and reflection of the studies available on the impact of gears on protected species in section 5.2.4 Status of non-target species" of the Environmental Report.

In short we note a very limited study by BIM (Annex III )12 which was prepared on foot of a limited study on Seal depredation which infact shows significant impact of gears, in particular tangle nets, on a range of protected species under the Ospar Convention and Habitats Directive, Annex IV and V which highlight a problem with By-catch of cetaeceans — a species protected under Annex IV of the Habitats Directive, and seals protected under Annex V and also other species protected under the Ospar convention. There is insufficient detail and reference information on the reports relied upon in the SEA to be able to examine the findings robustly.

We also note further to Access to Information on the Environment Requests submitted by the Irish Seal Sanctuary, that the studies undertaken by the Marine Institute on the impact to protected species in Irish coastal waters appear confined to Appropriate Assessment of Natura 2000 sites only, whereas annex IV protected species exist outside Natura 2000 and are protected under Art 12 Habitats Directive wherever they are together with their breeding and resting places.

12 BIM report "Seal depredation and bycatch In set net fisheries in Irish waters"

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We submit that based on the precautionary principle and further to the provisions in EMFF Regulation Art 38,39,40 and 45 there is ample provision to specify measures/ programmes to facilitate the immediate withdraw) of this gear, and to fund compensation for them on surrender of the gear and to support deployment and use of more environmental sustainable alternatives such as pots for the cray fish purportedly targeted by tangle nets.

We submit that such an approach is wholly appropriate in line with the precautionary principle of the EU TFEU.

We submit that such programmes are not evident from the assessment and the programme documented as it is clear they are not considered required while we submit they are. We also submit that these proposals are entirely consistent with Union Priorities -including but not limited to:

"UP (1) Promoting environmentally sustainable, resource—efficient, innovative, competitive

and knowledge—based fisheries by pursuing the following specific objectives:

(a) the reduction of the impact of fisheries on the marine environment, including the

avoidance and reduction, as far as possible, of unwanted catches;

(b) the protection and restoration of aquatic biodiversity and ecosystems;"

Additionally we submit that in terms of data collation and providing for fully documented fisheries on all fisheries which present a risk to protected species and habitats - that use of CCTV will not suffice and teams of independent observers will be necessary who are empowered to board vessels, attend on fishing trips, be un-hampered and protected and able to report transparently. This will also serve to facilitate on objective assessment of by-catch and incidental killing of protected species as is required under Art 12(4) of the Habitats Directive. We submit this is also consistent with UP (3) and an appropriate measure for the EM FF.

"(3) Fostering the implementation of the CFP by pursuing the following specific objectives:

(a) the improvement and supply of scientific knowledge as well as the improvement of the

collection and management of data;

(b) the provision of support to monitoring, control and enforcement, thereby enhancing

institutional capacity and the efficiency of public administration, without increasing the

administrative burden."

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Annex I:

MSFD

The MSFD requires each Member State to develop a marine strategy for their marine waters13 in order to achieve Good Environmental Status (GES) of their marine waters by 2020. It prescribes five specific tasks that must be undertaken: 1) An initial assessment of the current environmental status of marine waters;14 2) The determination of a set of characteristics that describe what GES means for those waters;is 3) The establishment of a comprehensive set of environmental targets and associated indicatorsi6; 4) the establishment and implementation of a coordinated monitoring programme for the on-going assessment of marine waters; 5) the establishment of a programme of cost effective measures designed to achieve or maintain GES.

The Directive defines what constitutes good environmental status: 'ecologically diverse and dynamic oceans and seas which are clean, healthy and productive' where '...the structure, functions and processes of the constituent marine ecosystems, ....allow those ecosystems to function fully'; 'human-induced decline of biodiversity is prevented' and 'Anthropogenic inputs .... into the marine environment do not cause pollution effects'. It also sets out a list of 11 qualitative descriptors upon which the determination of GES is to be based. These descriptors are: Biological diversity; levels of non-indigenous species; commercially exploited fish and shellfish; food webs; eutrophication; sea floor integrity; hydrographical conditions; contaminants; contaminants in fish and seafood for human consumption; marine litter and the levels of energy including underwater noise.

It is clear from the two MSFD consultation documents issued so far, 'Ireland's Marine Strategy Framework Directive Article 19 Report Initial Assessment, GES and Targets and Indicators' (DECLG, 2013) and 'Marine Strategy Framework Directive Article 11 Monitoring Programmes Public Consultation Document' (DECLG, 2014) that significant knowledge gaps exist regarding the current status of the marine environment, especially in relation to biodiversity-related descriptors and cumulative impacts. These gaps need to be addressed with comprehensive and specifically targeted monitoring programmes, which are currently significantly resource constrained.

EMFF funding should be used to fill these significant data gaps in addition, to those identified in the SDP itself. Without a clear baseline understanding of the marine ecosystem, it is impossible to assess the sustainability or otherwise of draft programme, or indeed to meet our obligations under the MSFD.

Ecosystem — based approach

The Directive requires "an ecosystem-based approach to the management of human activities, ensuring that the collective pressure of such activities is kept within levels compatible with the achievement of good environmental status and that the capacity of marine ecosystems to respond to

11 Article 5 of MSFD. t4 Article 8 of MSFD. 15 Article 9(1) of MSFD. owt6 Article 10(1) of MSFD.

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human-induced changes is not compromised, while enabling the sustainable use of marine goods and services by present and future generations".

The Water Framework Directive (WFD)

The Water Framework Directive (WFD) (2000/60/EC and the Marine Strategy Framework directive

(MSFD) share a close connection in terms of content, objectives and regulatory design and together

they aim to manage the water environment in an integrated, ecosystem-based way. The WFD

requires the improvement and protection of the chemical and biological status of surface waters

throughout a river basin catchment from rivers, lakes and groundwaters through to estuaries

(transitional waters) and coastal waters reaching to one nautical mile seaward from the Mean High

Water mark.

The WFD adopts a holistic approach to surface water and groundwater management by introducing

broad ecological objectives far the protection and restoration of aquatic ecological health. Member

States must ensure that all EU ground and surface waters (rivers, lakes, transitional waters and

coastal waters) achieve 'good status' by 2015 (or 2021, 2027, with certain exemptions). The main

objectives of the Water Framework Directive are:

• To protect and where necessary to improve the quality of all our inland and coastal waters

groundwater and associated wetlands and to prevent their further deterioration

• To achieve `good status' for all these waters by 2015

• To promote the sustainable use of water

• To reduce the pollution of water by particularly hazardous `priority' substances

• To lessen the effects of flooding and drought

Good status is defined with reference to a wide range of physico-chemical and ecological indicators

set out in Annex V.

While fisheries are excluded from the WFD, aquaculture has been identified as a 'significant water

management issue' in the 2009-2015 River Basin Management Plans, for which measures must be

implemented, as part of the WFD Programme of Measures, in order that the status of Ireland's

coastal waterbodies is not compromised by this activity. DAFM must liaise closely with DECLG to

ensure that any aquaculture or other activities proposed in the SDP is in line with WFD

environmental objectives for the coastal waterbodies in question.

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Annex II:

Letter prepared for submission to Minister for DAFM, Simon Coveneney;

Annex III

BIM report of Seal depredation which infact show impact of gears on a range of protected species under the Ospar Convention and Habitats Directive,, Annex IV and V.

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The Environmental Pillar,

Tullyval, Knockvicar, Boyle, Co Roscommon

Telephone: 00353 (0)719667373

Mobile: 00353 (0)86 8672153

Ref: EMFF

27th April 2015

Dear Minister Coveney,

I am writing to highlight to you issues raised at a meeting in Clonakilty earlier this month. As

I understand it the issue detailed below was raised by both the EU Commission and our

representatives on the Shadow Monitoring Committee for the Operational Programme (OP)

of the European Maritime and Fisheries Fund, (EMFF).

The issue is in relation to the impact on the legally required assessment of the Draft OP by

the EU Commission and the Public Consultation obligations, given the failure to provide

concurrently with the Draft OP, a National Strategic Plan on Aquaculture (NSPA). As you

know, the NSPA is required as part of the ex-ante conditionalities for the Draft OP.

Consequently I urge you to extend the public consultation period your Department has

launched for the programme until the entire programme can be properly reviewed by the

public and other stakeholders. Currently the consultation is due to conclude this Friday, May

lit.

Given the concerns on how Union Priority 2 Aquaculture is being handled - you will be

aware under the Common Provisions Regulation', Article 19, the EU Commission is entitled

to suspend all or part of the payments.

I wish to also wish to highlight a number of legal obligations which in our opinion are

compromised and the potential significant impacts on EMFF funding for Ireland.

11 REGULATION(EU) No 1303/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006

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These legal obligations include:

1. Requirements of the EMFF Regulation and Common Fisheries Policy, (CFP) and

Common Provision Regulation (CPR) for EU Structural Investment Funds;

2. Environmental Impact Assessment and Consultation Obligations arising from the SEA

Directive and the Aarhus Convention in respect of the assessment of

environmental effects, effectiveness of public consultation and trans-boundary

impact assessment, where this latter also arises from our obligations under the

Espoo Conventions;

In our view, the approach Ireland is taking to the Draft OP through its failures to provide

concurrently the draft NSPA — serve to compound Ireland's ongoing failures to adequately

resolve a number of specific failures highlighted in the Judgement of the Court of Justice of

the FU against Ireland in c-418/04 back in 2007, and which remain un-resolved. That

judgement highlighted inter alia a legacy of failure by Ireland in respect of the legal

compliance of our Aquaculture with EU Environmental Law. The approach currently being

pursued by Ireland remains of serious concern to a number of our member organisations

involved with this area. The EMFF should provide for an opportunity to progress this if

properly addressed, and we have no doubt this will be of concern to both DG Mare and DG

Envi.

I therefore, as indicated earlier, wish to formally request that the deadline for Consultation

responses to the Draft OP and Environmental Report produced as part of the Strategic

Environmental Assessment, SEA pursuant to the SEA Directive be extended beyond the 1" of

May. This would be to allow for:

• a necessary re-launch of the Draft OP as outlined below; and

• to facilitate the legally required "effective" public consultation

in conjunction with the required NSPA, and the associated SEA reports to support

Ireland's adherence to its legal obligations;

2 REGULATIONS REGULATION (EU) No 508/2014 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 May 2014 on the European Maritime and Fisheries Fund and repealing Council Regulations (EC) No 2328/2003, (EC) No 861/2006, (EC) No 1198/2006 and (EC) No 791/2007 and Regulation (EU) No 1255/2011 of the European Parliament and of the Council 3 DIRECTIVE 2001/42/EC OF THE EUROPEAN PARLIAMENT AND OFTHE COUNCIL of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment { THE CONVENTION ON ACCESS TO INFORMATION, PUBLIC PARTICIPATION IN DECISION-MAKING AND ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS done at Aarhus, Denmark, on 25 June 1998 5 CONVENTION ON ENVIRONMENTAL IMPACT ASSESSMENT IN A TRANSBOUNDARY CONTEXT United Nations 1991

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This is essential in order to support the environmental, social and economic sustainability of

the programmes and to facilitate Ireland's optimal uptake of the 147 million Euro available

from the EU EMFF.

Before I outline the issues involved in more detail below - I also wish to request copies by

return of:

• The screening decisions on transboundary impacts made in respect of the Draft OP

and the NSPA; and

• The Partnership Agreement signed by Ireland in the later part of last year in respect

of the European Structural & Investment (ESI) Funds.

Below follows a more detailed overview of the legal requirements and argument above.

1. Requirements of the EMFF Regulation and Common Fisheries Policy, CFP and Common Provision Regulation, CPR for ELI Structural Investment Funds.

To be clear from the outset, we understand that:

a) According to the EMFF Regulation, the NSPA is an ex-ante conditionality, meaning it has serious implication on the adoption of the EMFF OP, and that its fulfilment is of the utmost importance in the context of the CFP;

b) Ex ante conditionalities area fundamental, and in this case missing and compromised element of the current draft OP — and on which there can be thus no adequate public consultation at this point;

These following extracts from the EMFF regulation are the basis for the above points.

Article 18 and 9 and the associated Annex IV —set out the basic and fundamental requirements in respect of this as below:

"Article 18 Content of the operational programme

1. In addition to the elements referred to in Article 27 of Regulation (EU) No 1303/2013, the operational programme shall include;

(d) the assessment of the specific ex ante conditionalities referred to in Article 9 of and in Annex IV to this Regulation and, where required, the actions referred to in Article 19(2) of Regulation (EU) No 1303/2013;

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and where the ex ante conditionality of the NSPA is provided for pursuant to Article 9 and associated Annex IV of the EMFF Regulation.

"Article 9 Specific ex ante conditionalities The specific ex ante conditionalities referred to in Annex IV shall apply to the EMFF."

Where Annex IV specifies for UP 2 - the ex ante conditionality to be:

'The establishment of a multiannual national strategic plan on aquaculture, as referred to in Article 34 of Regulation (EU) No 1380/2013, by 2014"

In short the ex ante conditionality in respect of Aquaculture is not fulfilled by Ireland, compounding a legacy of failures in this area as highlighted by the judgement of the C1EU in c-418/04.

c) Article 6 of the EMFF sets out the Union Priorities (UP) and associated objectives, where the relevant priority and objectives on Aquaculture are ( emphasis added):

"Article 6 Union priorities

The EMFF shall contribute to the Europe 2020 strategy and to the implementation of CFP. It shall pursue the following Union priorities for the sustainable development of fisheries and aquaculture and related activities, which reflect the relevant thematic objectives referred to In Regulation (EU) No 1303/2013:

(2) Fostering environmentally sustainable, resource-efficient, innovative, competitive and knowledge-based aquaculture by pursuing the following specific objectives:

(a) the provision of support to strengthen technological development, innovation and knowledge transfer; (b) the enhancement of the competitiveness and viability of aquaculture enterprises, including the improvement of safety and working conditions, in particular of SMEs; (c) the protection and restoration of aquatic biodiversity and the enhancement of ecosystems related to aquaculture and the promotion of resource-efficient aquaculture;

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(d) the promotion of aquaculture having a high level of environmental protection, and the promotion of animal health and welfare and of public health and safety; (e) the development of professional training, new professional skills and lifelong learning.

r

d) Further to Art 19(5) of the CPR, the Commission may decide further to the assessment of the Draft Op, to suspend all or part of the interim payments in respect of a Union Priority. In this case the relevant priority would be UP2 (Aquaculture),

"Article 19 Ex ante conditionalities ..J

5. The Commission may decide, when adopting a programme, to suspend all or part of interim payments to the relevantpriority of that programme pending the completion of actions referred to in paragraph 2 where necessary to avoid significant prejudice to the effectiveness and eficiency of the achievement of the speck objectives of the priority concerned. The failure to complete actions to fulfil an applicable ex ante conditionality which has not been fulfilled at the date of submission of the Partnership Agreement and the respective programmes, by the deadline set out in paragraph 2, shall constitute a ground for suspending interim payments by the Commission to the priorities of the programme concerned that are affected. In both cases, the scope of suspension shall be proportionate, taking into account the actions to be taken and the funds at risk.

Therefore in conclusion on this point, while we appreciate-the Commission is not supposed to approve the NSPA, it has to be consistent with the EMFF OP. if the two are not consistent the plan will need to be remediated to include a timetable of actions and the bodies responsible and such would require further consultation, not least because of the Aarhus Convention Article 6.10 and obligations pursuant to the SEA Directive. However we further submit the Draft OP and its required Strategic Environmental Assessment, (SEA) are significantly compromised consequent on Ireland's failure to provide the NSPA concurrently with them at this point as outlined further below.

We further submit the necessary evaluations required under Article 116 of the EMFF regulation are also compromised by this and the effective consultation in respect of same.

In addition to the above compliance issues - we submit the current approach is far from ideal and serves to significantly compromise the effectiveness of our consultation response, and the required and necessary assessment of environmental impacts.

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A

We now turn to this point in more detail.

2. Environmental Impact Assessment and Consultation Obligations arising from the SEA Directive and the Aarhus Convention in respect of the assessment of environmental effects, effectiveness of public consultation and transboundary Impact assessment, where this latter also arises from our obligations under the Espoo Convention

The obligation for an SEA for the Draft OP and NSPA are not at issue — their requirement being indisputable.

However given the failure to provide the NSPA concurrently and its SEA with the Draft OP and its SEA, we submit the following:

a) Scope and Content The obligation under Art 4 of the SEA Directive to conduct the environmental assessment of the Draft OP for the EMFF, before adoption or submission to the legislative procedure - is significantly compromised. This is consequent on the failure to provide the NSPA concurrently with it given the scope and content of both plans.

b) The effectiveness of the consultation This has been further compromised consequent on:

o The limited timeframe afforded given the one month includes the Easter Break, and

o Given the nature of material required to be considered is in the order of 1400 pages of information; and

o The failure to communicate and engage the public concerned with the consultation consequent on the misleading branding of the programme —which in stating it is a "Seafood Development Programme" wholly fails to capture the breath of sustainability issues and concerns which are the proper consideration of an operational programme for the EMFF, as provided in Art 1 of the Regulation which states:

"Article 1 Subject-matter

This Regulation defines Union financial measures for the implementation of: (a) the Common Fisheries Policy (CFP); (b) relevant measures relating to the Low of the Sea; (c) the sustainable development of fisheries and aquaculture areas and inland fishing; and (d) the Integrated Maritime Policy (IMP)."

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• and Where Seafood development which is the brand and focus of the title you as Minister has given the programme is but a component of this.

In short, in terms of point (a) above on the compromised scope and content:

• The fundamental obligation of the SEA directive per Article 1 is to facilitate the integration of environmental considerations into the adoption of the plan, with a view to promoting sustainable development.

• However given the nature of the elements and effects which are required to be considered under Article 5 and the indisputable interdependency and commonality of these elements for the Draft OP and the NSPA — you can't consider these elements adequately or at all for one of these plans in the absence of understanding what is proposed for the other.

• The consideration of public consultation is a fundamental component of the assessment of environmental effects which the competent authority is reguired to consider—and is therefore necessarily compromised.

• Finally the public's rights to such consultation entitlement pursuant to the Aarhus Convention Articles 7 are also compromised.

For convenience the associated relevant provisions on these points from the SEA Directive are set out below:

"Article 4 General obligations 1. The environmental assessment referred to in Article 3 shall be carried out during the preparation of a plan orprogromme and before its adoption or submission to the legislative procedure."

"Article 1 Objectives The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment."

In respect of content and consultation we note:

"Article 5 Environmental report 1. Where an environmental assessment is required underArticle 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives

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taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated The information to be given for this purpose is referred to in Annex l."

Where Annex I provides;

EMWOW4l Information referred to in Article 5(1) The information to be provided under Article 5(1), subject to Article 5(2) and (3), is the following: (a) an outline of the contents, main objectives of the plan or programme and relationship with other relevant plans and programmes; (b) the relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme, (c) the environmental characteristics of areas likely to be significantly affected; (d) any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to Directives 79/409/EEC and 92/43/EEC; (e) the environmental protection objectives, established at international, Community or Member State level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation; (f) the likely significant effects (1) on the environment, including on issues such as biodiversity, population, human health, fauna, flora, soil, water, air, climatic factors, material assets, cultural heritage including architectural and archaeological heritage, landscape and the interrelationship between the above factors; (g) the measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme; (h) an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know- how) encountered in compiling the required information; rt) a description of the measures envisaged concerning monitoring in accordance with Article 10; (j) a non-technical summary of the information provided under the above headings.

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Where the consultation provisions stipulate:

Article 6 Consultations 1. The draft plan or programme and the environmental report prepared in accordance with Article 5 shall be made available to the authorities referred to in paragraph 3 of this Article

2. The authorities referred to in paragraph 3 and the public referred to in paragraph 4 shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure.

3. Member States shall designate the authorities to be consulted which, by reason of their specific environmental responsibilities, are likely to be concerned by the environmental effects of implementing plans and programmes.

N

Additionallywe notethe obligations fortransboundary impact assessment pursuant to Article 7 and are concerned regarding these, and therefore have requested from you the screening decisions made in respect of such impacts by return.

Finally, we note the fundamental nature of the consultation as a component of the environmental assessment required by the competent authority conducting and environmental assessment in accordance with the definition of same in the Directive:

""Article 2 Definitions For the purposes of this Directive:

(b) 'environmental assessment'shall mean the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations In decision-making and the provision of information on the decision in accordance with Articles 4 to 9;

In relation to the second point (b) above in respect of "the effectiveness of the consultation" - we specifically note the requirements of the SEA Directive and Aarhus Convention Article 7, and Article 6(3), (4) and (8) in particular in respect of the effectiveness of the Consultation. We submit that:

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• The absence of the NSPA and its SEA, significantly compromise the consultation for the Draft OP and its SEA given the content implications, and thus necessarily the effectiveness of the consultation.

• The timefrarnes afforded are such as to compromise effective consultation given the timeframe of one month which incorporated the Easter Holiday period when many people and particularly those with families are on vacation, and given the volume and technical nature of much of the material which extends to over:

• 356 pages between the Draft Op and associate Environmental Report; and in

the order of • 1000+ pages of EU legislation and Regulation which it needs to be read in the

context of

That in branding the Draft OP "Seafood Development Programme", the Minister has, with respect, done a disservice to the sustainable and environmental focus of the EMFF, and failed to ensure that the pertinence and relevance of the programme is clear to multiple stakeholder groups in the widest definition of the public as required by the Aarhus Convention Articles 7, and Article 6(3), (4) and (8) in respect of both effective consultation and encouragement of public engagement. We therefore submit that not only an extension to the consultation is required, but a re-branding and a re-launch of the consultation is required to ensure the obligation in respect of effective consultation is addressed by Government.

In conclusion, we thank the Minister for his consideration of our remarks and look forward

to:

• receiving the requested documents by return, and

• an assurance and public communication regarding the proposals herein so that:

o effective consultation can be facilitated as legally required, and

o the funding for Ireland from the EU is not compromised, and

o the effectiveness and sustainability ofthe programmes and plans proposed

can be properly supported as intended by the underpinning legislative

provisions.

Kind regards

Coordinator of The Environmental Pillar

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