Water resources - 2013 EPBC Act amendment - Water trigger

Australia's national environment law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), was amended in June 2013, to provide that water resources are a matter of national environmental significance, in relation to coal seam gas and large coal mining development.

The amendment - the EPBC Amendment Bill 2013 – commenced on 22 June 2013.

Introduction

The water trigger allows the impacts of proposed coal seam gas and large coal mining developments on water resources to be comprehensively assessed at a national level.

Significant impact guidelines

The Department has released significant impact guidelines to assist any person who proposes to take an action which involves a CSG development or a large coal mining development to decide whether the action will have or is likely to have a significant impact on a water resource.

Questions and Answers

Overview

Q. What is the water trigger?

Australia's national environment law, the EPBC Act, includes water resources as a matter of national environmental significance, in relation to coal seam gas and large coal mining developments. This is known as the water trigger.

This means that coal seam gas and large coal mining developments require federal assessment and approval if they are likely to have a significant impact on a water resource.

Q. When did this trigger take effect?

The Environment Protection and Biodiversity Conservation Amendment Act 2013 was passed by Federal Parliament on 19 June 2013, and received Royal Assent on 21 June 2013. The amendment therefore commenced on 22 June 2013.

Q. How does this change the assessment process for coal seam and large coal developments?

Any coal seam gas and large coal developments that have a significant impact on any of the other matters of national environmental significance, e.g. nationally threatened plants and animals, already have to be referred under the EPBC Act.

Since 2012 these projects have been referred to the Independent Expert Scientific Committee for advice on the impacts on water resources. The Minister has taken this advice into consideration when making a final decision. However, the Minister did not previously have the power to consider and impose conditions directly relating to impacts on a water resource itself.

As a result of the water trigger, the Minister can set appropriate conditions as part of the project approval to ensure that any significant impacts on a water resource are acceptable.

Q. Does the Australian Government have constitutional power to include this trigger under federal legislation?

The water trigger legislation relied on two main heads of power under the Constitution. These heads of power are the power to regulate constitutional corporations and to regulate trade and commerce.

Q. Does the water trigger apply to shale gas development?

No. The water trigger does not apply to shale gas. The amendments to the EPBC Act build on the objectives of the National Partnership Agreement on Coal Seam Gas and Large Coal Mining (NPA).

Q. How are cumulative impacts accounted for?

The definitions of coal seam gas development and large coal mining development in the EPBC Act require the significance of the impacts of an action to be considered with other developments, whether past, present or reasonably foreseeable. In general, this would indicate that proposed CSG or coal mining in an area of high water use would be more likely to involve a significant impact on a water resource.

General guidance

Legislative definitions and guidance

Q. What is the definition of a water resource?

The definition of a water resource for the water trigger is the same as currently used in the Water Act 2007. A water resource relates to ground water and surface water, and includes organisms and ecosystems that contribute to the physical state and environmental value of the water resource.

Q. What is a significant impact on a water resource?

The department has released Significant Impact Guidelines for the water trigger, to assist any person proponents of CSG or large coal mining projects to decide whether the action will have or is likely to have a significant impact on a water resource. The significant impact guidelines are available at: Significant Impact Guidelines 1.3: Coal seam gas and large coal mining developments - impacts on water resources.

The guidelines state that an action is likely to have a significant impact on a water resource if there is a real or not remote chance or possibility that it will directly or indirectly result in a change to:

  • the hydrology of a water resource; or
  • the water quality of a water resource,

that is of sufficient scale or intensity as to reduce the current or future utility of the water resource for third party users, including environmental and other public benefit outcomes, or to create a material risk of such reduction in utility occurring.

Whether or not an action is likely to have a significant impact depends upon the sensitivity, value, and quality of the environment which is impacted. It also depends upon the intensity, duration, magnitude and geographic extent of the impacts. More information on what amounts a significant impact is at Significant Impact Guidelines 1.1: Matters of National Environmental Significance.

A significant impact on water resources may be caused by one development action relating to coal seam gas or large coal mine, or the cumulative impact of such actions.

Q. What is a coal seam gas or large coal mining development? Do these definitions include development of associated infrastructure?

The definition of "large coal mining development" in the EPBC Act (section 528) is "any coal mining activity that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity), in its own right or when considered with other developments, whether past, present or reasonably foreseeable developments." The definition relates to the development's likely significant impact on a water resource and not the size of the proposed action.

The definitions of “CSG development” and “large coal mining development” relate to impacts on a water resource of activities that form part of the process of extracting CSG or coal. The development of associated infrastructure that is not part of the extraction process is not included in the definitions of CSG development or large coal mining development. More information on the definitions of CSG and large coal mining developments is at: Significant Impact Guidelines 1.3: Coal seam gas and large coal mining developments - impacts on water resources.

Actions which involve only associated infrastructure, such as processing, pipelines, rail lines and other transportation facilities, would not be captured in the definition, as these are non-extractive actions.

However, the EPBC Act requires the assessment of a referred action as a whole. As such, where an action referred to the department includes both a CSG development or large coal mining development and associated infrastructure then the significance of the whole of the referred action on water resources would be considered at the assessment stage.

Role of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development

Q. What does this mean for the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development?

The Independent Expert Scientific Committee will continue to provide advice for coal seam gas and large coal mining projects which may require a federal environmental assessment, including assessments of significant impacts on water resources.

Q. What does this mean for state and territory assessments of coal seam gas and coal mining projects?

States that have signed the National Partnership Agreement and have operating protocols that explain which projects will be referred to the Independent Expert Scientific Committee are already committed to referring coal seam and large coal mining projects with water-related impacts to the Committee.

Coal seam gas and large coal mining development may also require assessment and approval under state law, in relation to matters of state responsibility.

Q. What does this mean for the National Partnership Agreement?

The National Partnership Agreement remains in force, including its objectives to strengthen regulation of coals seam gas and large coal mining.

All CSG and large coal seam mine projects that are expected to have water-related impacts will be referred to the Independent Expert Scientific Committee either by the Australian Government or by signatory states to the National Partnership Agreement.

Information for Proponents

Transitional arrangements

Q. Does the water trigger affect developments being assessed before 22 June 2013, and how are they affected by the transitional arrangements?

The water trigger applies to any developments that were referred for a decision that is in the approval process, unless the Independent Expert Scientific Committee has given advice and a proposed decision on the project was made before 22 June 2013.

That does not mean that projects will have to go right back to the beginning and start their full environmental impact assessment again.

The department is working closely with proponents to identify what additional information is required to assess these impacts. The department will rely on information that has already been collected in the existing state and EPBC Act processes as much as possible, to ensure current assessments proceed efficiently.

Q. What is the effect of the amendment on existing bilateral assessments?

For projects being assessed under existing bilateral agreements when the water trigger commenced, should the new trigger be determined to apply, the action can continue to be assessed under the bilateral agreement.

Assessments will rely as much as possible on information that has already been collected in the existing state / territory and EPBC Act assessment processes, to ensure assessments proceed efficiently.

Q. How do proponents avoid duplication of process between state and territory and Commonwealth assessment of impacts on water resources?

The department will rely as much as possible on information that has already been collected in the existing state or territory and EPBC Act assessment processes, to ensure assessments proceed efficiently.

Additionally, existing bilateral agreements with states and territories will continue to be used on a regular basis for the assessment of many coal seam gas and large coal mining developments and we anticipate this will continue. These bilateral agreements enable a single assessment process that meets both state and Commonwealth assessment requirements, minimising duplication for proponents.

Exemptions from the water trigger

Q. Does the water trigger affect previously approved projects?

The water trigger does not apply to actions already approved under the EPBC Act. However if an approved project has a substantial change to how it is conducted or an extension, the new matter of national environmental significance may apply if it is likely to have a significant impact on a water resource.

Q. How is emergency discharge of water from operations (for example, during flood events) treated under the water trigger?

In the case of an emergency, and where legal certainty is required for discharges which may have a significant impact, the federal environment minister has power under the EPBC Act to issue an urgent exemption if it is determined that this is in the national interest. This is a broader power in the EPBC Act that applies for all matters of national environmental significance and includes the water trigger.

Q. Which projects are exempt from the water trigger?

The water trigger provisions do not apply to a proposed action which, before 22 June 2013:

  • was approved by the Minister under Part 9 of the EPBC Act; or
  • the Minister determined was not a controlled action or not a controlled action if taken in a particular manner as specified in a section 77 notice; or
  • was determined to be a controlled action where the Minister had:

Where a particular coal seam gas or large coal mining action was not referred under the EPBC Act because it did not trigger any provisions of the EPBC Act prior to the water trigger commencing on 22 June 2013, but would have a significant impact on a water resource, the water trigger may apply unless:

  • a State or Territory had obtained advice from the IESC before 13 March 2013 in relation to the action for the purposes of giving a "specific environmental authorisation" (see below for definition) for the action under a State or Territory law.
  • before 22 June 2013, the action was authorised by a "specific environmental authorisation" (including Commonwealth, state, or territory approval) where no other approvals or authorisations were required for the action to proceed. The specific environmental authorisation must still be in force when the action commences. (This exemption is similar to an existing exemption in s.43A of the EPBC Act.)

More information on the exemptions from the water trigger is at: Significant Impact Guidelines 1.3: Coal seam gas and large coal mining developments - impacts on water resources.