Water resources - now a matter of national environmental significance

From 22 June 2013, coal seam gas (“CSG”) and large coal mining projects that will have, or are likely to have, a significant impact on a ‘water resource’ will require federal environmental assessment and approval under changes to the Environment Protection and Biodiversity Conservation Act 2000(Cth) (“EPBC Act”).

This change will not only affect future CSG or coal mining projects, but require projects which have already been referred to the department of Sustainability, Environment, Water, Population and Communities (“SEWPAC”) but not yet determined, to now update their referral with information if there are likely to be significant impacts on water resources. SEWPAC has advised that there are 50 projects currently being assessed by the Minister, predominantly large coal mines that are likely to be impacted by the amendments.

Who does this affect?

Subject to the transitional provisions outlined below, anyone who has an interest in a future, or as yet undetermined, CSG or large coal mining development proposal in Australia.

Transitional provisions

The amendments to the EPBC Act do not apply to projects:

  1. that have already received approval under the EPBC Act;
  2. that are already the subject of a determination by the Minister that they are not controlled actions;
  3. in relation to which the Minister has advised of his/her decision and has obtained advice from the Independent Expert Scientific Committee (“IESC”);
  4. that are already the subject of a specific environmental authorisation that continues to be in force in circumstances where no further specific environmental authorisation was necessary; and
  5. that have been assessed under State laws where the relevant State Minister has obtained advice from the IESC.

However, it is important to note that the amendments will apply immediately to all CSG and large coal mining projects which have been referred to the Minister because of potential impacts on other matters of national environmental significance (“MNES”) and are still not determined.

What do you need to do?

If your project is affected, there may be a requirement to prepare additional information which will impact on the assessment and approval of your project. We recommend that you consider the potential impacts of the amended legislation on your project, including strategies to minimise and mitigate potential cost, delay and approval risks.

Background

While the States and Territories have traditionally been responsible for land use decision-making and natural resources management, “actions” (defined broadly in the EPBC Act, including, a project, development or undertaking) that have, or are likely to have, a significant impact on a MNES require approval from the Federal Minister for SEWPAC (“Minister”).

On 21 November 2011, the Government announced the establishment of the IESC to provide advice on the likely water and groundwater effects of CSG and large coal mining projects as part of a deal to secure the support of two independents for the Government’s mining tax legislation. Amendments to the EPBC Act in 2012 established a requirement on the Minister to take into account the advice of the IESC before deciding whether or not to approve an action that is a CSG or large coal mining development that the Minister believes is likely to have a significant impact on water resources where the action has been referred to him because it is likely to have an adverse impact on a MNES.

As a result of the amendments to the EPBC Act which commenced on 22 June 2013, water resources have now been added as a further matter on the list of MNES in relation to impacts of CSG and large coal mining developments. This means the Minister will no longer have to rely on existing MNES in order to trigger the assessment and approval (including the imposition of conditions on any approval) of CSG and large coal mining developments.

The definitions of a “water resource”, “coal seam gas development” and “large coal mining development” were added to the EPBC Act when the IESC provisions were inserted in 2012 and have not been amended. Interestingly, the definitions of “coal seam gas development” and “large coal mining development” in the EPBC Act relate not to the size of the proposed development, but to the development’s likely significant impact on a water resource.

Factors which may directly or indirectly bring about a significant impact on water resources as set out in guidance from SEWPAC and the National Partnership Agreement on CSG and Large Coal Mining (executed by the Commonwealth, NSW, Queensland, Victorian and South Australian Governments to increase the regulation of coal seam gas and large coal mining development) include those that:

  • result in a change to the quantity, quality or availability of surface or ground water;
  • alter ground water pressure and/or water table levels;
  • alter the ecological character of a wetland;
  • result in rivers or creeks diverted or impounded;
  • alter drainage patterns;
  • reduce biological diversity or change species composition;
  • alter coastal processes, including sediment movement or accretion, or water circulation patterns;
  • result in persistent organic chemicals, heavy metals, or other potentially harmful chemicals accumulating in the environment such that biodiversity, ecological integrity, human health or other community and economic use may be substantially adversely affected; or
  • substantially increase demand for, or reduce the availability of water for the environment.