Although the water trigger Guidelines are helpful, the EPBC Act should remain the primary reference when determining whether to refer an action that may have a significant impact on the environment.
Proponents and other stakeholders now have the Federal Government's perspective on what is a significant impact from coal mining and CSG projects on water resources, with its release of the "Significant Impact Guidelines 1.3; Coal seam gas and large coal mining developments – impacts on water resources".
The Guidelines support the 2013 amendment to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), which introduced as a "matter of national environmental significance" an action involving coal seam gas development or large coal mining development that has, will have or is likely to have a significant impact on a water resource (the water trigger).
The purpose of the Guidelines is stated to be to assist a person who proposes to take an action which involves a CSG development or large coal mining development to decide whether the action has or is likely to have a significant impact on a water resource, and therefore whether the person should refer the project to the Federal Minister. The Guidelines will also assist in completing the referral form if a referral is made, and say they may also help members of the public or interest groups who may wish to comment on an action under the EPBC Act.
The Guidelines contain a number of examples that should be reviewed in determining whether the water trigger is likely to apply.
The Guidelines do not have statutory force, and they should be read with this caveat in mind, but they provide a good indication of the Federal Government's views on what a significant impact is, so they should help proponents in considering whether their projects will activate the water trigger, and in understanding how the Federal Minister will consider this issue too.
Activities covered by the water trigger
The Guidelines provide that a "CSG Development" and "Large Coal Mining Development" relate to impacts on water resources caused by activities that form part of the process of extracting CSG or coal. Accordingly, the Federal Government does not expect any separate development of associated infrastructure that is not part of the extraction process to be referred. However, if a project is referred, the whole project (including any associated infrastructure) will be considered.
The Guidelines indicate that that the water trigger could extend to actions involved in exploration, appraisal and pilot developments, although it is noted that exploration and pilot activity are less likely to have a significant impact on a water resource.
An expansion or modification to existing facilities may fall within the definition of CSG development or large coal mining development if the expansion or modification involves extractive CSG or coal mining activities.
The significant impact criteria
According to the Guidelines, an action is likely to have a significant impact on a water resource if there is a real or not remote chance or possibility that it will directly or indirectly result in a change to:
- the hydrology of a water resource – described as a change in water quantity, the integrity of hydrological or hydrogeological connections or changes in the extent or area of a water resource. The Department of Environment will assume that there is a connection between surface water and sub-adjacent aquifers and between adjacent aquifers, unless it can be shown otherwise; or
- the water quality of a water resource – where there is a risk that the ability to achieve relevant local or regional water quality objectives is materially compromised, and as a result the action creates adverse impacts on water quality, such as a risk to human or animal health, substantially reduces the amount of water available causes potentially harmful substances to accumulate in the environment, seriously affects the habitat or lifecycle of a native species dependent on a water resource, or causes the establishment of an invasive species.
A key consideration will be the utility of the water resource for third party uses, including environmental and other public benefit uses, such as:
- provisioning service, for example, use by other industries and use as drinking water;
- regulating services, such as the climate regulation or the stabilisation of coastal systems;
- cultural services, including recreation and tourism; and
- supporting services for example, the maintenance of ecosystem function.
Exemptions from the water trigger
The Guideline also comments on when the water trigger will not apply to a proposed action, and sets out the transitional provisions for the water trigger, and the broader EPBC Act exemptions.
The Guideline states, however, that the exemptions under the transitional provisions or the broader exemptions in the EPBC Act may not apply if the action being undertaken is substantially different to the action that was originally authorised or otherwise exempt.
While the Guidelines are designed to assist in determining whether the water trigger applies to a proposed action, proponents should remember that the Guidelines provide guidance only – the EPBC Act should remain the primary reference when determining whether to refer an action that may have a significant impact on the environment.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.