Publications / Projects and Infrastructure
The Environment Protection and Biodiversity Conservation Amendment Bill 2013 (Cth) (Bill) passed the House of Representatives on 21 March 2013, incorporating some amendments following its first reading speech.
If passed by the Senate, the Bill will provide for the protection of water resources from large coal mining developments and coal seam gas developments as a matter of national environmental significance (proposed water trigger). It will be an offence for a person to take these actions without approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) if the actions have, or are likely to have, a significant impact on a water resource.
The proposed water trigger will apply to practically all large coal projects and coal seam gas projects. Specifically, projects undertaken by constitutional corporations or for the purpose of trade and commerce that extends beyond a State or Territory will be captured.
The EPBC Act defines ‘large coal mining developments’ and ‘coal seam gas developments’ as any coal mining or coal seam gas activity that has, or is likely to have, a significant impact on water resources. The impact on water resources may be in its own right or as a result of cumulative impacts of past, present or reasonably foreseeable developments in the region.
A ‘water resource’ is also broadly defined to mean surface water or ground water, a watercourse, lake, wetland or aquifer (whether or not it currently has water in it), and includes all aspects of the water resource (including water, organisms and other components and ecosystems that contribute to the physical state and environmental value of the water resource).
The Department of Sustainability, Environment, Water, Population and Communities has suggested that factors which may result in a significant impact on water resources include changes to the quantity, quality or availability of surface or ground water, alteration to ground water pressure and/or water table levels and alteration to drainage patterns. This is relevant because most large coal mining and coal seam gas projects will impact water resources in some of these ways.
The approval of actions under the EPBC Act can be made by a State or Territory in accordance with a bilateral agreement between the Commonwealth and the State or Territory. Such actions do not require approval under the EPBC Act. Amendments made to the Bill on 21 March 2013 prevent the proposed water trigger from being considered by a State and Territory through a bilateral agreement.
The Bill does not alter the role of the recently established Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC). For further details, refer to earlier Focus publication 6 Decemeber 2012: ‘Changes ahead for Federal environmental assessment process’.
Impact on approved projects and projects currently under assessment
The Bill does not apply:
- to projects that have been previously approved by the Minister under the EPBC Act
- to projects that have been subject to a determination by the Minister that the project is not a controlled action
- where, immediately before 13 March 2013, none of the provisions of Part 3 were controlling provisions for the action and a State or Territory has obtained advice from the IESC for the purpose of giving authorisation for the action under State or Territory law
- where the action has a prior authorisation and no further environmental authorisation is necessary to allow the action to be lawfully undertaken, or
- where the Minister has informed the proponent of the decision the Minister proposes to make, and has obtained advice from the IESC, in relation to the action.
In some circumstances, the Minister will need to decide (within 60 business days from commencement of the Bill) whether or not the proposed water trigger will be a controlling provision for an action. This will be the case where the approval process for a controlled action is under way, but the Minister has not informed the proponent of the decision the Minister proposes to make or has not yet obtained advice from the IESC.
Here, the Minister must give a proponent notification of the Minister’s proposed decision, to which the proponent has 10 business days to comment. The Minister must consider any comments received from the proponent within that period. The Minister can request more information from a proponent when making the decision, however time stops whilst further information is sought.
If the Minister determines that the proposed water trigger is a controlling provision for the action, the EPBC Act applies as if the primary decision for the action was varied to include the proposed water trigger as a controlling provision for the action.
This means that when deciding whether to approve the action, and what conditions should be attached to any approval, the Minister will consider impacts relating to the proposed water trigger. The Bill provides the power for regulations to be made for transitional matters, and may provide additional information about assessment requirements for transitional projects.
Implications and next steps
If passed by the Senate, the Bill is likely to increase the number of large coal mining projects and coal seam gas projects which require EPBC Act approval, because most of these projects will impact water resources. Proponents will need to consider the proposed water trigger and ensure relevant information is provided to minimise cost and delay.
There are approximately 40 large coal mining projects and coal seam gas projects which are currently being assessed under the EPBC Act, and which may be subject to the transitional provisions in the Bill. To assess the risk of further delay and even more stringent conditioning, proponents of these projects need to look at the application of the proposed water trigger and their assessment work to date.
The Bill has been referred to the Senate Environment and Communications Legislative Committee which will report back on 14 May 2013. An exemption from regulatory impact statement requirements has been granted, and it is expected that the Government intends to accelerate the passage of the Bill prior to September 2013.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.