On 26 September 2013 the Commonwealth Minister for the Environment issued a media release declaring that the ‘water trigger’ provisions in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) will apply to the Commonwealth environmental assessment of 47 major coal developments and coal seam gas (CSG) projects.

The water trigger was introduced in June this year by the Environment Protection and Biodiversity Conservation Amendment Act 2013 (Cth). In a nutshell, the EPBC Act was amended to make the impacts of large coal mining projects and CSG developments on significant water resources a matter of ‘National Environmental Significance’ (NES).

Of the 50 projects addressed in the release, the Minister determined that:

  • 47 will be subject to assessment based on their impact on significant water resources;
  • the water trigger would not apply to one project; and
  • further information needed to be sought in relation to two projects.

What is the significance of the Minister’s media release?

The Minister’s decision released the listed projects from procedural ‘limbo’, by determining finally whether the water trigger will be one of the matters of NES upon which each project is assessed.

The need for the decision arose because the projects in question fell under transitional arrangements in the amending Act designed to capture proponents that were already in the process of having a development assessed under the EPBC Act when the amendments came into effect. Under the transitional provisions, the Minister can decide whether the project is required to have approval in relation to the new water trigger.

However, the transitional provisions would not apply where the decision has been further advanced (where the Independent Expert Scientific Committee has given advice to the Minister and a proposed decision on the project has been made).

What happens next?

For the 47 projects that the Minister determined would be subject to the new water trigger, the assessment of each of these projects will now include the project's potential impacts on water resources in addition to the other matters protected under national environment law for which they were already being assessed.

The proponents will not be required to start the assessment process from scratch. Instead, the Minister will rely on the material already submitted as much as possible, and will call on a proponent for any additional information or submissions that may be needed in order to make the assessment.

Does the water trigger apply to your project?

The water trigger only applies to major coal developments and CSG developments. If your project falls within these categories, it will be important to consider the new water trigger when deciding whether to apply to the Commonwealth Minister for assessment under the EPBC Act.

Proponents of projects that have completed the EPBC Act approval process prior to the commencement of the amending Act are excluded from its application, and therefore there is no need to reapply for assessment.

Key Takeaways

  • The Environment Protection and Biodiversity Conservation Amendment Act 2013 (Cth) is now in effect and makes the impacts of certain projects on significant water resources a matter of NES, known as the ‘water trigger’;
  • The transitional provisions of the amending Act apply to projects whose assessment under the EPBC Act was underway when the Act commenced;
  • The Minister for the Environment has issued a media release setting out his decision that the water trigger will apply to 47 of 50 transitional projects.