The inflows into Lake Menindee, which supplies Broken Hill with water, have dwindled to almost zero, resulting in a risk to Broken Hill’s water supply. Broken Hill, known for its boom and bust cycles due to mining activity in that area, may also face some environmental constraints if a new water supply is unable to be sourced. The NSW Office of Water is therefore proposing to create a bore field so that Broken Hill can access an emergency reserve water supply. Part of the proposal involves the NSW Office of Water conducting a groundwater investigation in the northern margin of Lake Menindee from November 2014 to 2015. The groundwater investigation will assess the geology of the area, quality of the groundwater and amount of groundwater available.1

This article considers the legislative framework for the NSW Office of Water to undertake these investigations. It identifies that the NSW Office of Water has had to consider Commonwealth and NSW legislation, State Environmental Planning Policies, the Central Darling Local Environment Plan 2012 and licensing requirements for water use. In addition, the activity touches upon issues relating to Aboriginal heritage, the environment and fishery resources, which we also canvas in this article.

PROBLEM 

The Menindee Lakes consists of seven shallow lakes, one of which is Menindee Lake, linked to the Darling River.2

Broken Hill is reliant on Lake Menindee for water. However, the current drought that has already reduced the amount of water in Lake Menindee is predicted to worsen in the 2014/2015 summer months. There are a number of short term measures currently in place, including:

  • the transfer of water from Lake Pamamaroo to Copi Hollow to lessen the evaporation in the Lake
  • the provision of landholders with water for stock and domestic use
  • the building of banks to accumulate water in the Lower Darling.

These measures should provide Broken Hill with enough water for 2015.This is a short-term measure and medium term mechanisms need to be introduced.

The Commonwealth and NSW Governments have been working together for a number of years to improve the water storage capacity of the Menindee Lakes and secure the water supply for Broken Hill. This work has included extensive hydrogeological investigations of the groundwater resources in the Menindee Lakes region, which has identified a number of discrete areas which contain fresh to acceptable ground water. Following these investigations, the NSW Office of Water is now investigating the feasibility of sourcing groundwater in conjunction with desalination to improve the water availability for the Broken Hill township.

The NSW Office of Water plans to install six test production bores on the northern margin of Lake Menindee at a depth of approximately 250 metres during the initial investigation.4 The drilling process is estimated to take 3 – 6 weeks for each bore. In order to access the quality of the groundwater, the NSW Office of Water will test the exploratory bores for up to seven days.5

The purpose of this initial investigation is to test whether the groundwater is capable of providing Broken Hill with an emergency water supply at a capacity of 24 Mega litres (ML) per day.6 If proven suitable, production bores are proposed to then be constructed to provide Broken Hill with an emergency water supply. 

PLANNING APPROVAL

Groundwater bore investigations are exempt development under the Environmental Planning and Assessment Act 1979 (EP&A Act) and therefore development consent is not required. This is because the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) authorises a public authority, such as the NSW Office of Water, to carry out development for the purpose of water reticulation systems without development consent.7 As a result, the controls of the Central Darling Local Environment Plan 2012 also do not apply to the proposal. 

The NSW Office of Water is still required to consider the potential environmental impacts of the bore drilling activity under Part 5 of the EP&A Act. The NSW Office of Water has engaged GHD to undertake this assessment – commonly known as a Review of Environmental Factors (REF). GHD published its report of findings in November 2014.8

Section 112 of the EP&A Act requires the NSW Office of Water to consider whether the activity is ‘likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats’ prior to undertaking the activity. If the activity will have significant impacts, an environmental impact statement must be prepared. The GHD report concludes that the initial groundwater bore investigation is unlikely to result in significant impacts and therefore it is suitable for the NSW Office of Water to determine that the activity can proceed. 

ENVIRONMENTAL IMPACT OF THE ACTIVITY

The Menindee Lakes host rare, endangered and migratory species under the NSW Threatened Species Conservation Act 1998 (TSC Act), the NSW Fisheries Management Act 1994 (FM Act) and the CommonwealthEnvironmental Protection and Biodiversity Conservation Act 2001 (EPBC Act). The REF includes a review of all threatened flora and fauna species and the likelihood that the activity may impact upon them. The REF concludes that the proposal will not have a significant impact on any species or communities listed under the TSC Act, FM Act or the EPBC Act.

The activity is proposed to be undertaken in accordance with a comprehensive construction environmental management plan (CEMP), which will set out mitigation measures and controls. The CEMP is designed to ensure any potential environmental impacts are minimised. 

LICENCE REQUIREMENTS FOR WATER USE 

The Water Management Act 2000 applies to all water sources in NSW which currently have a water sharing plan in place. This includes the Menindee Lakes. A water source can be a lake, river, estuary or a place where water occurs naturally on or below the ground surface.9 In order to use water from a water source, a person generally needs to have a water use approval for that use. There are a limited number of exemptions, including for the use of water under a basic landholder right.10

In order to carry out work or to carry out any activity affecting the quantity or flow of water in a water source11, a person needs to obtain controlled activity approval.12 In order to carry out an aquifer interference activity, a person needs aquifer interference approval.13 As a result, the NSW Office of Water will require a water access licence and works approval for the activity.14

The activity may also result in the discharge of saline groundwater into Lake Menindee.15 The REF has identified that the Office of Water may need to consult with the Environmental Protection Agency to determine whether an environmental protection licence will be required for the activity. Without such a licence, the works may result in a water pollution offence under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act).

ABORIGINAL HERITAGE

The Menindee Lakes area has many archaeological sites, which are significant for Aboriginal heritage and culture. A 2003 study found 4978 new archaeological sites in the region.16 These sites included stone tools, burial sites and scarred trees.17 Given that the proposal could affect sites of Aboriginal cultural significance, the National Parks and Wildlife Act 1974 (NSW) (NPW Act) applies. It is an offence to harm an Aboriginal object that a person knows is an Aboriginal object.18 A defence exists if that person exercised due diligence to decide whether an act or omission would harm an Aboriginal object and reasonably determined that the act or omission would not harm an Aboriginal object.19 Accordingly, the Department of Environment, Climate Change and Water has conducted due diligence, which has shown that the proposal is unlikely to affect Aboriginal sites due to construction planning designs.20

The REF has identified that four of the proposed borehole drilling locations are situated on undisturbed land in close proximity to identified Aboriginal sites and may therefore have unconfirmed sites in the vicinity. The REF states that if bores are proposed to be drilled in these locations, further investigations would be required in accordance with the Code of Practice for Archaeological Investigation of Aboriginal Objects in New South Wales in order to determine whether Aboriginal sites are present, and whether an Aboriginal Heritage Impact Permit is required under the NPW Act.21

The NSW Office of Water has also consulted with the traditional owners of the Lake Menindee region in relation to the proposed groundwater investigations. At one of these meetings, it was proposed that minimal disturbance drilling methods be adopted for the project, including initial hand augering of bore holes, to ensure a compliant and respectful way to monitor potential impacts and ensure that the due diligence remained correct.22

CONCLUSION

The NSW Office of Water needs to address the water supply issue in the medium term for Broken Hill. The groundwater bore investigation project is an important step in that process. The environmental assessment for the project has identified the environmental sensitivity and Aboriginal significance of the area. As a result, whilst development consent is not required for the project, the NSW Office of Water will need to closely monitor the environmental and cultural impacts of the proposal and may need to obtain approvals and/or licences under the Water Management Act, the POEO Act and the NPW Act in order to comply with all of the legislative controls.