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Freshwater Pearl Mussel Amendment Regulations 2018 struck down

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Ireland

The Freshwater Pearl Mussel
 
The Freshwater Pearl Mussel is a highly threatened animal, categorised as critically endangered in Ireland and across Europe. Juvenile survival is dependent on a clean, well oxygenated river bed and activities that result in changes in river flow, increased levels of silt, and increased levels of nutrients are contributing to the decline of freshwater pearl mussels. This includes the intensification of land use in river catchment areas.
 
The EU Environmental Objectives (Freshwater Pearl Mussel) Regulations 2009
("The 2009 Regulations")
 
In response to the stark decline in the number of Freshwater Pearl Mussels in Irish waters, the Minister for Culture, Heritage and the Gaeltacht enacted regulations in 2009. These regulations include a number of protective measures to guard against further decline in the species and require the Minister, amongst other things, to:
 
  • Carry out a programme of investigation and monitoring in various rivers and lakes to establish baseline conditions, threats and pressures to Freshwater Pearl Mussel.
  • Prepare a programme of measures for the attainment of particular ecological objectives in the appropriate rivers and lakes.
  • Publish a sub-basin management plan for each.
 
27 different populations and water bodies were identified in the 2009 Regulations as requiring the protection, the largest being the Munster Blackwater population in the Munster Blackwater River (main channel).
 
The EU Environmental Objectives (Freshwater Pearl Mussel) (Amendment) Regulations 2018
("The 2018 Regulations")
 
In 2018, the Minister enacted further regulations, removing the Munster Blackwater population and the Munster Blackwater River (main channel) from the list of protected populations and sites.
 
Challenge to the 2018 Regulations
 
Environmental activist, Peter Sweetman, challenged the 2018 Regulations arguing that they breached EU directives on environmental protection. Mr Sweetman claimed that the 2018 Regulations narrowed the obligation on the Minister to put in place conservation measures in respect of the Freshwater Pearl Mussel, which lessened the chances of conserving the species.
 
The Decision
 
By way of a consent Order made on 5 December 2019, Judge Meenan quashed the 2018 Regulations, on the basis that the Regulations were made in breach of the SEA Directive.
 
 
Impact of this Decision
 
As the 2018 Regulations have now been struck down, the effect of those Regulations on the 2009 Regulations is reversed. The 2009 Regulations now apply again to the Munster Blackwater population of Freshwater Pearl Mussel and to the Munster Blackwater River (main channel), as do the various obligations imposed on the Minister by the 2009 Regulations.
 
 

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