Introduction

The Federal Government has released the Draft significant impact guidelines - Coal seam gas and large coal mining developments: impacts on water resources (Draft Guidelines) for public comment.

The Draft Guidelines aim to provide proponents with greater certainty in relation to the application of the new water trigger under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to current and future coal seam gas (CSG) and coal mining developments.

Background

On 21 June 2013, the EPBC Act was amended to include a new matter of national environmental significance in relation to CSG and large coal mining developments, known as the ‘water trigger’.

As a result, CSG development or large coal mining development that has, will have, or is likely to have a significant impact on water resources will now generally require referral to (and potentially approval from) the Federal Environment Minister under the EPBC Act. The water trigger aims to provide direct protection to water resources by allowing the Federal Environment Minister to impose conditions directly relating to impacts on a water resource.

The water trigger applies broadly to CSG developments and large coal mining developments that may significantly impact on water resources ‘in its own right, or when considered with other developments, whether past, present or reasonably foreseeable developments’.

What do you need to know?

The Draft Guidelines were developed to clarify what constitutes a ‘significant impact’ in the context of water resources and to provide proponents with greater certainty about how the new water trigger will operate.

A summary of key points under the Draft Guidelines is set out below.

Associated infrastructure

An activity can only be a CSG development or large coal mining development where the extractive activities themselves have a significant impact on a water resource. This is because the definitions of ‘large coal mining development’ and ‘coal seam gas development’ refer explicitly to ‘mining’ and ‘extraction’ respectively. 

As a result, if the extraction/mining activity itself does not have a significant impact on a water resource, the water trigger will not apply regardless of whether any associated infrastructure (for example, processing, pipelines, rail lines) would have a significant impact on a water resource. However, if an action is referred under the water trigger, the significance of the whole of the referred action on the water resource (including associated infrastructure) would be considered.

Significant impact criteria

An action is likely to have a significant impact on a water resource if there is a real chance or possibility that it will directly or indirectly result in a substantial change to either the hydrology or water quality of a water resource. In determining this, the Draft Guidelines provide that regard should be had to the following:

  1. whether there are cumulative impacts of the activity (discussed below); and
  2. the timing and scale of the impacts and the value of the water resource.

The Draft Guidelines also provides some detail and examples in relation to what constitutes a substantial change to hydrology (i.e. a change to groundwater and/or surface water characteristics or processes) and water quality (i.e. a change significant to create a risk that would materially compromise the ability to achieve relevant local or regional water quality objectives).

Cumulative effect

A significant impact on a water resource may be caused by one action in relation to CSG or a large coal mine, or the cumulative effect of such actions. 

The Draft Guidelines clarify that an apparently small impact may still have significant impact if there are substantial cumulative effects, factoring in existing and reasonably foreseeable prospective actions. It highlights that the seriousness or intensity of the relevant impacts should be considered in context which m ay include specific developments which already exist and have an impact, planned developments which may have an impact and/or the overall development of a region.

Ecosystem function and integrity

If an action is likely to have an impact on hydrology or water quality, the Draft Guidelines require that consideration also be given as to whether the activity will result in a substantial change to the ecosystem function and integrity of a water resource. In this regard, the Draft Guidelines set out several criteria that define a substantial change to the ecosystem function and integrity of a water resource.

Exemptions from the water trigger

The Draft Guidelines also explain the transitional arrangements with respect to the ‘water trigger’. By way of summary, water trigger amendments under the EPBC Act will not impact on projects which:

  1. have been previously approved under the EPBC Act;
  2. have already been subject of a determination that it is not a ‘controlled action’;
  3. are currently being assessed under the EPBC Act where advice has been received from the Independent Expert Scientific Committee (IESC);
  4. are currently being assessed under State laws where advice has been received from the IESC; and
  5. are subject to prior environmental approval and did not require any further environmental approvals.

Conclusion

The Draft Guidelines are open for public comment until 25 July 2013.