Senate Approves "Water Trigger" Amendment to EPBC
The "water trigger" amendment to the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act)
was recently approved by Senate and has become law.
Additional Analysis and Approvals for Coal Seam Gas and Large
Coal Mining Developments
The "water trigger" adds another layer of analysis and
approvals to coal seam gas and large coal mining developments.
To summarise, if a coal seam gas1or large coal mining
development2 will have, or is likely to have, a
significant impact on a water resource, the developments
will now require federal assessment and approval. The amendment
responds to community concerns about insufficient State water
resource regulation. The Commonwealth is given the ability to
ensure the protection of water resources and impose water specific
conditions on coal seam gas and large coal mining developments.
In addition to affecting new developments, the amendment may
affect existing developments. Existing developments being assessed
under the EPBC Act may be required to provide additional
information and seek approval under the "water
Amendments to Apply "Water Trigger" to Shale Voted
The Australian Greens proposed to the Senate that the
"water trigger" be extended to apply to shale
developments, we assume due to community concerns that shale could
pose a bigger threat to water resources than coal seam gas
developments. The amendment was voted down in the Senate and was
passed without the inclusion of shale developments.
Unnecessary Duplication Between Commonwealth and State?
The "water trigger" was opposed by many industry
stakeholders on the basis that it unnecessarily duplicated State
regulation, adding the potential for increased costs and delay.
Interestingly, the Productivity Commission recently released a
draft report on the state of mineral and exploration resources in
Australia and has noted that a real or perceived duplication of
regulation is a barrier to exploration investment. For further
information refer to our earlier Legal Insight.
Submissions about unnecessary duplication were made by industry
and considered by the Senate Committee. Ultimately, the Senate gave
greater weight to community concerns and the "water
trigger" was passed.
Both the Western Australia Chamber of Minerals and Energy and
Queensland Resources Council have reaffirmed these concerns and
made public statements on the duplication, additional layers of
bureaucracy and the increased costs and complications of doing
business in Australia.
Other Key Points
There are a few other key points industry should be aware
guidelines relating to a significant impact on a water
resource are not yet available. The Commonwealth has commenced
preparation of guidelines and is working to finalise these
cumulative impacts on a water resource will be taken into
account. Generally, a proposed development in an area of high water
use is more likely to have a significant impact on a water
it has been indicated that the "water trigger" will
be reviewed within two years of commencement.
1A coal seam gas development is any activity
involving coal seam gas extraction that has, or is likely to have,
a significant impact on water resources (including any impacts of
associated salt production or salinity) either in its own right or
as a result of cumulative impacts.
2A large coal mining development is any coal
mining activity that has, or is likely to have, a significant
impact on water resources (including any impacts of associated salt
production or salinity) either in its own right or as a result of
With the introduction of the Duties Act 2008 (Duties Act) to replace the Stamp Act 1921 (Stamp Act) in Western Australia, there has arguably been a change in the duty treatment of a transfer of a right to receive income under a royalty agreement.
The shale gas industry in Australia is very much in its infancy and the full extent is still far from being identified.
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