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6 Dec 12
Changes ahead for Federal environmental assessment process

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The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was amended on 9 November 2012 to provide for the establishment of the independent expert scientific committee on coal seam gas (CSG) and large coal mining developments (Expert Committee).

The establishment of the Expert Committee affects all coal mining and CSG companies operating CSG developments and large coal mines in NSW, Queensland, South Australia and Victoria.

Environment Ministers in these states are now required to take into account advice provided by the Expert Committee when making a decision to approve a CSG or large coal mine development, if it is likely that the development will have a significant impact on water resources.

National Framework Agreement

The Commonwealth of Australia and the States of Queensland, New South Wales, Victoria, South Australia and the Northern Territory (Declared States) entered in the National Partnership Agreement on Coal Seam Gas and Large Coal Mining Development (Agreement) in February 2012.

This Agreement has been given force through the recent amendments to the EPBC Act and provides that the Declared States are required to amend relevant State laws, regulations and guidelines by 31 March 2013 to provide that CSG or coal mining developments that are likely to have a significant impact on water resources are to be referred to the Expert Committee for advice, and that the decision makers on applications which have been referred to the Committee must take into account the Committee’s advice in a transparent manner. 

By 30 September 2012, the Declared States were also required to publish a protocol that describes the decision-making process for determining which proposed developments should be referred to the Expert Committee for advice. 

How will the amendments impact on your mining project?

New South Wales

As yet NSW has not published its protocol for project referrals, however we understand that this is in the process of being finalised and will be linked in with the NSW strategic regional land use plans and the White Paper for the new planning system.

Once the NSW Protocol is in place, the State Government will be required to follow the process, of requesting that all CSG and coal mining developments be referred to the Expert Committee.

Queensland

Queensland has signed and finalised its protocol for referrals.  Projects that will be referred to the Expert Committee from Queensland are those for CSG or large coal mining developments that is likely to cause a ‘significant impact on water resources’ and:

  • are undertaken as a project, namely one or more activities that are of significant scale and are to be undertaken in stages and as a single integrated operation
  • requires an environmental impact statement under either the Environmental Protection Act 1994 or the State Development and Public Works Organisation Act 1971, and
  • at 30 December 2012, the related Queensland EIS evaluation or assessment report has not been completed.

The Queensland protocol identifies a significant impact as one which is important, notable or of consequence, having regard to its context or intensity.  The protocol defines significant impact on water resources in the same terms as the Agreement, which has been based upon the Significant Impact Guidelines (Department of the Environment, Water, Heritage and the Arts 2010).  

In referring projects for which EIS evaluations have not been completed, the decision maker is required to take into consideration the extent to which assessment has been completed for those projects which are in the final stages of preparation prior to 1 January 2013.

If a modification of an existing CSG project is proposed and if the expansion being considered will result in less than a 10% increase in the number of wells approved to operate on a tenure, it is likely that these will not be referred.

The Queensland Protocol identifies that the decision maker may refer a proposal to the Committee at any time.  This decision should be made based on the facts and circumstances of the particular project application.  However, the Queensland Protocol identifies that a formal referral to Expert Committee will occur immediately prior to, or during the publication of the EIS.  Unless there are extenuating circumstances, a proposal will only be referred once to the Committee.

The Queensland Government will amend generic EIS terms of reference and guideline documents to ensure that all new EIS contain a section that packages the surface and groundwater information in a format suitable for direct referral to the Committee.  This will aim to overcome any ‘doubling up’ of investigations or reports relating to surface and groundwater.

The Expert Committee

An interim Expert Committee was established in early 2012 to provide advice to the Commonwealth Government on any CSG or large coal mining development which was likely to have a significant impact on water sources.

The Minister for Sustainability, Environment, Water, Populations and Communities (Commonwealth Minister) is currently making appointments for the permanent Expert Committee.  The Expert Committee is to consist of between five and eight independent members with scientific qualifications or expertise in the fields geology, hydrology, hydrogeology or ecology.

Once established, the Expert Committee will be required to provide advice to the Minister within two months, when requested by the Minister (or at the request of a Minister of a Declared State or Territory), if it is likely that the proposed development will:

  • have a significant impact on water resources, including any impacts of associated salt production and or salinity, or
  • if the proposed development may have an adverse impact on other matters of national environmental significance (including nationally threatened and migratory species, wetlands of international importance, or national or world heritage places) that are protected under the EPBC Act. 

The Minister is required to take into account all relevant advice provided by the Expert Committee before deciding whether to approve or not approve a controlled action.   However, the Committee’s role is to be advisory only, and it has no responsibility for issuing approvals for projects or recommending whether a project should or should not be approved.

What else will trigger a Declared State to request advice?

A Declared State may request that the Expert Committee provide advice to the Commonwealth Minister in relation to a proposed CSG or large coal mining development in the Declared State that is likely to have a significant impact on water resources.  The Commonwealth Minister may also request the Expert Committee to provide advice on a CSG or large coal mining development that is the subject of a referral under the EPBC Act.

Under the EPBC Act amendments, with approval from the Commonwealth Minister, the appropriate Minister of a Declared State can also request advice from the Expert Committee on any matter that the Expert Committee has sufficient scientific expertise to address.

At this stage, a Declared State is not required to take into account the Expert Committee’s advice for regulatory decisions that relate to any other kind of extractive activity, or other development activity that has the potential to have significant impacts on water resources.  However it is considered likely, that in the future, Declared States will also be required to seek advice from the Expert Committee on any projects that are likely to have a significant impact on water resources, even if these projects do not trigger the EPBC Act approvals process (i.e. projects that will not significantly impact on matters of national environmental significance).

CSG and large coal mining development definition

Coal Seam Gas Development’ and ‘Large Coal Mining Development’ are activities involving CSG extraction, or any coal mining activity that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and or salinity) in its own right; or when considered with other developments (whether past, present or reasonably foreseeable developments).

Significant impact on water resources’ is not defined in the amendments to the EPBC Act, however the term ‘water resource’ takes relates to any surface water, groundwater, watercourse, lake, wetland or aquifer and also includes all aspects of the water resource including water, organisms and other components and ecosystems that contribute to the physical environmental value of the water resource.

It is likely that the Declared States and the Expert Committee will adopt the definition of ‘significant impact on water resources’ as it has been defined in the Agreeme

A single action or the cumulative impact of multiple actions which would directly or indirectly:

  • result in a substantial change in the quantity, quality or availability of surface or ground water
  • substantially alter ground water pressure and/or water table levels
  • alter the ecological character of a wetland that is State significant or a Ramsar wetland
  • divert or impound rivers or creeks or substantially alter drainage patters
  • 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 adversely affects, or
  • substantially increase demand for, or reduce availability of water for human consumption.

Therefore, a development is likely to be referred to the Expert Committee by a Declared State if there is a real chance or possibility that the proposed development will:

  • measurably reduce the quantity, quality or availability of surface or ground water
  • channelise, divert or impound rivers or creeks or substantially alter drainage patterns, or
  • measurably alter water table levels.

Bioregional assessments

In addition to assessing the impacts of CSG and large coal mining developments on water resources, the Expert Committee will be required to provide advice to the Commonwealth Minister about how bioregional assessments should be conducted in areas where CSG or large coal mining development is being carried out or has been proposed.

There are currently five regions identified in New South Wales and Queensland that the interim Expert Committee has announced bioregional assessments will be undertaken; the Lake Eyre Basin, Northern Inland Catchments, Northern Sydney Basin and Gloucester Basin (encompassing the Hunter Central Rivers and Hawksbury-Nepean), Southern Sydney Basin and Clarence-Moreton Basin.  These regions have been identified based upon the current levels of exploration for CSG or current CSG and coal mining developments as well as the presence of water assess of concern in these regions.

The bioregional assessments will examine the conditions of the region, and are likely to form the basis of advice provided by the Expert Committee on the impacts of CSG and coal mining developments on the environment and water resources of those regions.

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.

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