Australia: New Bill to change the way resource authority holders deal with water

Resources and Energy Alert: 11 Mar 2013

A new Bill introduced into Queensland Parliament last week is set to improve the way resource authority holders and landowners access, deal with and dispose of water.

If passed, the Land, Water and Other Legislation Amendment Bill 2013 (Qld) will reduce the current regulatory burden for resources companies, who currently need to comply with a number of different laws when accessing, diverting or disposing of water.

Partner Martin Klapper, senior associate Damian Roe and law clerk Alyce Hamlin outline the key changes proposed.

Benefits of the changes

For all resource authority holders:

  • Certainty of long-term access to water for resources projects
  • Reduced regulatory burden for destroying vegetation in a watercourse, lake or spring
  • Reduced regulatory burden for watercourse diversions associated with resource activities
  • The ability to take water for weed wash downs without a water authority

For petroleum tenure holders:

  • Clarification of which CSG and water pipelines are regulated under which Act
  • The ability to dispose of associated water without a licence
  • The ability to convert petroleum wells to water supply or observation bores and transfer them to landholders
  • The ability to construct water monitoring and observation bores without a water authority

For landholders:

  • Access to new water supplies

Long-term access to water

Under the Land, Water and Other Legislation Amendment Bill, the term of all current and new water licences will be extended from a period of 10 years to 99 years, expiring on 30 June 2111, unless otherwise provided under water resource plans or resource operation plans.

This change will mean greater certainty for resources proponents looking to access or interfere with water for the duration of their projects.

Pipelines carrying produced water

The Bill clarifies proponents' obligations by setting out which CSG pipelines are regulated under which Act.

Under the Mines Legislation (Streamlining) Amendment Act 2012, pipelines carrying CSG water (often laid in the same trench as gas pipelines) are regulated by the Work Health and Safety Act 2011, while gas pipelines are regulated by the Petroleum and Gas (Production and Safety) Act 2004.

The Bill clarifies that:

  • pipelines carrying produced water free of petroleum will be regulated under the Work Health and Safety Act 2011; and
  • pipelines containing produced water containing petroleum will be regulated under the Petroleum and Gas (Production and Safety) Act 2004.

The amendments do not address all the issues that proponents have in relation to water regulation. For example, proponents will be subject to obligations under both Acts where, at different stages of processing and production, water is (or is not) completely separated from petroleum. While the changes clarify proponents' obligations in this respect, they do not adequately reduce the regulatory burden in all instances.

No water licence required for associated water

At present, landholders' access to associated water is restricted to water produced from tenures that overlap their land. Petroleum tenure holders currently require a water licence to supply associated water to any other user. Proponents and landowners have raised this as an unnecessary regulatory burden, and the changes introduced by the Bill will mean holders are free to supply associated water to users (regardless of whether their property overlaps the tenure) without the need for a water licence.

Conversion of petroleum wells

The changes allow landholders to access new water supplies without incurring the costs of drilling a separate water bore. Currently, petroleum wells cannot be converted to water bores and transferred directly to landholders until the end of the petroleum tenure. The amendments will allow petroleum wells to be converted to water supply and transferred to landowners throughout the duration of the tenure, under a new code of practice yet to be published.

The practical benefits for proponents include the ability to:

  • begin converting wells to water bores and transferring them to landholders progressively throughout the project;
  • use the converted wells to assist in monitoring ground water quality; and
  • potentially offset landholder compensation.

Destruction of vegetation in a watercourse, lake or spring

Currently, a person undertaking vegetation clearing in a watercourse, lake or spring is required to comply with multiple laws including the Vegetation Management Act 1999, the Sustainable Planning Act 2009 and the Water Act 2000.

The Bill will remove the requirement for a 'riverine protection permit' under the Water Act to destroy vegetation in a watercourse, lake or spring. The frameworks to be considered will be reduced and simplified to only those applying under the Vegetation Management Act and the Sustainable Planning Act.

Watercourse diversions associated with resource activities

A proponent of a resource activity wishing to divert a watercourse is currently required to obtain a water licence under the Water Act. This essentially requires the proponent to undergo two assessment and approval processes:

  • The process under the Water Act 2000
  • The process required for an environmental authority under the Environmental Protection Act 1994

The changes mean that a proponent will no longer require a water licence to divert a watercourse associated with resource activities. The diversion will be authorised under the relevant environmental authority, simplifying the approvals framework.

Weed wash downs, water monitoring and observation bores

If the Land, Water and Other Legislation Amendment Bill is passed, a person will be able to take or interfere with water for minor consumptive take (including weed wash downs) without requiring an authorisation under the Water Act.

Additionally, proponents will be able to construct water monitoring and observation bores without the regulatory burden of obtaining an authority under the Water Act.

The changes outlined above are the main ones under the Petroleum Act 1923, the Petroleum and Gas (Production and Safety) Act 2004 and the Water Act 2000. However, the Bill also seeks to amend a further 16 pieces of legislation, including the Land Act 1994 and the Land Title Act 1994.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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