S.I. No. 241/2010 - European Communities (Conservation of Wild Birds (Iveragh Peninsula Special Protection Area 004154)) Regulations 2010.

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 4th June, 2010.

I, JOHN GORMLEY, Minister for the Environment, Heritage and Local Government, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) (as amended by section 2 of the European Communities Act 2007 (No. 18 of 2007) and by section 4 of the European Union Act 2009 (No. 33 of 2009)) and for the purpose of giving further effect to Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 and Council Directive 92/43/EEC of 21 May 1992 (as amended by Council Directive 97/62/EC of 27 October 1997, Regulation (EC) No. 1882/2003 of the European Parliament and of the Council of 29 September 2003, Council Directive 2006/105/EC of 20 November 2006 and as amended by Act of Accession of Austria, Sweden and Finland (adapted by Council Decision 95/1/EC, Euratom, ECSC), Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded and as amended by the Corrigendum to that Directive (Council Directive 92/43/EEC of 21 May 1992)), hereby make the following Regulations:

1. (1) These Regulations may be cited as the European Communities (Conservation of Wild Birds (Iveragh Peninsula Special Protection Area 004154)) Regulations 2010.

(2) These Regulations come into operation on 26th May 2010.

2. (1) In these Regulations—

“Directive” means Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009;

“farm or land management plan” means an agreement between the holder of any estate, right or interest in land within the special protection area and the Minister or the Minister for Agriculture, Fisheries and Food for the purposes of, inter alia, compliance with the Directive and Council Directive No. 92/43/EEC of 21 May 1992. Without prejudice to the generality of the foregoing, this may take the form of a plan under the Farm Plan Scheme administered by the Department of Environment, Heritage and Local Government or a Rural Environment Protection Scheme plan (REPS) administered by the Department of Agriculture, Fisheries and Food, or any similar or successor plan;

“foreshore area” means the bed and shore, below the line of high water of ordinary or medium tides, of the sea and of every tidal river and tidal estuary and of every channel, creek and bay of the sea or of any such river or estuary;

“land” includes any structure and any land covered with water (whether inland or coastal), any substratum of land and any estate, right or interest in, on, over or under land;

“Minister” means the Minister for the Environment, Heritage and Local Government;

“public authority” means:—

(a) a Minister of the Government;

(b) a local authority within the meaning of the Local Government Act 2001 (No. 37 of 2001); or,

(c) a board or other body (but not including a company under the Companies Acts) established by or under statute;

“Special Protection Area” or “SPA” means the area which is designated under Regulation 3;

“waterbird” means any bird ecologically dependent on a wetland habitat wholly, or for at least part of their annual cycle;

“wetland” refers to areas of habitat containing water, whether natural or artificial, permanent or temporary, static or flowing, fresh, brackish, or marine.

(2) A word or expression that is used in these Regulations and is also used in the Directive shall, unless the contrary intention appears, have in these Regulations the meaning that it has in the Directive.

3. In order to ensure the survival and reproduction of the species to which Article 4 of the Directive relates, including in particular the species specified in Schedule 3 and having taken account of the matters referred to in Article 4 of the Directive, the area referred to in Schedule 2 and further identified by reference to the maps contained in Schedule 1, is designated as a Special Protection Area.

4. (1) Subject to paragraph (2), a person shall not perform any operation or activity specified in Schedule 4 in the Special Protection Area without the prior written consent of the Minister.

(2) There is no requirement to obtain the consent of the Minister if:—

(a) the operation or activity is licensed by or subject to the permission of another public authority, or

(b) the operation or activity is specified as permitted in a farm or land management plan (subject to compliance with any conditions set out therein).

5. (1) Any person who contravenes Regulation 4(1) commits an offence and is liable:—

(a) on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 6 months, or both, or

(b) on conviction on indictment to a fine not exceeding €500,000 or imprisonment for a term not exceeding 3 years, or both.

(2) A summary offence under these Regulations may be prosecuted by the Minister.

SCHEDULE 1

SCHEDULE 2 DESCRIPTION OF AREA

The area known as Iveragh Peninsula Special Protection Area is situated in the County of Kerry being the land and waters enclosed on the map (contained in Schedule 1 to these Regulations) within the inner margin of the red line and hatched in red. The area of land known as Iveragh Peninsula Special Protection Area is situated in whole or in part in the townlands of Alachaí Beag Theas, Alachaí Beag Thuaidh, Alachaí Mór, An Gleann Iarthach, An Ráth (T: Cathair Dónall), An Rinn Iarthach, An Rinnín, An Tuairín (T: Toghroinn Fhíonáin), Athghort, Baile An Sceilg, Baile Na Bhflann, Baile Na hAbhann [T: Toghroinn Fhíonáin], Bólas, Buaile Uí Chuill, Cill Ón Chatha, Cill Rialaigh, Clochán Ceannúigh, Com An tSleabhcáin, Doire Fhíonáin Mór, Duichealla, Maoroisc, Oileán An Chapaill, Ráth Ciaráin.

Abbey Island, Ballycarbery East, Ballycarbery South, Ballycarbery West, Beginish (Caher), Bray, Castlequin, Cloghanelinaghan, Coarha Beg, Coarha More, Cool East, Cool West, Coolnaharragill Upper, Coomanaspig, Coomnahincha, Dohilla, Doory (E.D. Portmagee), Drom West (E.D. Glanbehy), Emlagh (E.D. Castlequin), Feaghmaan West, Foilnageragh, Foughil Island, Glanleam, Gleensk, Gortaforia, Gortgower, Hogs Head, Illaunanesk, Kells, Kilkeehagh, Killelan East, Killelan West, Killurly Commons, Kimego East, Kimego West, Laharan North, Lamb Island (E.D. Castlequin), Lambs Island (E.D. Caherdaniel), Lambs Island (E.D. Derrynane), Leaghcarrig Island, Lemontounagher Rock, Reencaheragh, Roads, Rossbehy, Tinnies Upper and Two Headed Island.

SCHEDULE 3 SPECIAL CONSERVATION INTERESTS

Bird Species

SCHEDULE 4 OPERATIONS OR ACTIVITIES REQUIRING CONSENT OF THE MINISTER AND CONTROLLED NATIONALLY UNDER THE PROVISIONS OF THE WILDLIFE ACTS 1976-2000

1.Any activity that involves the deliberate killing or capture of any species of naturally occurring bird in the wild state, save where a specific derogation within the meaning of Article 9 of the Directive is in place.

2.The destruction, damage or removal of nests or eggs or any disturbance, particularly during periods of breeding or rearing, save where a specific derogation within the meaning of Article 9 of the Directive is in place.

3.The rearing or keeping of birds, the hunting and capture of which is prohibited, save where a specific derogation within the meaning of Article 7 of the Directive is in place.

SITE SPECIFIC OPERATIONS OR ACTIVITIES REQUIRING CONSENT

4.Land reclamation or habitat destruction, except for routine maintenance.

5.Removal or alteration of earth/stone banks, including associated fences.

6.Fishing by any type of nets.

7.Any other activity of which notice may be given by the Minister from time to time.

GIVEN under my Official Seal,

26 May 2010.

JOHN GORMLEY, T.D.,

Minister for the Environment, Heritage and Local Government.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds provides for the conservation of wild birds by, among other things, classifying important ornithological sites as Special Protection Areas for them. The effect of these Regulations is to designate a site as a Special Protection Area in accordance with Article 4 of the Directive and to provide that contravention of the provisions of these Regulations shall constitute an offence.

Under Article 5 of the Directive all species of birds are afforded protection from disturbance, capture and damage to nests and eggs, not just the birds listed on Schedule 3 (with the exception of those birds covered under Articles 7 for hunting, and Article 9 where derogations are listed).

Please note that operations/activities other than those listed at Schedule 4 to these Regulations, such as effluent discharge, planning permission, aquaculture, fishing or forestry require a licence or permission from the appropriate consent authority.