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14 Mar 13
Water access licence now required to take water in the course of carrying out mining activities and petroleum exploration

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Significant amendments to the Water Management Act 2000 (WM Act) in relation to the taking of water in the course of carrying out mining activities and petroleum exploration in New South Wales have now commenced.

In 2010, a range of amendments to the WM Act were foreshadowed by the commencement of the Water Management Amendment Act 2010 (WMA Act) and since this time, some but not all of the proposed amendments have come into effect.

Importantly, section 60I of the WM Act came into effect on 1 March 2013 and provides that it is now an offence for a person without an access licence to take, remove or divert water from a water source, or relocate water from one part of an aquifer to another part of an aquifer, in the course of carrying out a mining activity.  

Various mining-related activities fall under section 60I, in particular:

  1. mining, including the removal of materials by excavation, dredging, drilling, tunnelling; the construction, operation and decommissioning of works; the stockpiling, processing and transportation of materials extracted; and rehabilitation of mining effected land;
  2. mineral exploration, including prospecting pursuant to an assessment lease, exploration licence, mineral claim, mining lease or opal prospecting licence; and
  3. petroleum exploration, including prospecting pursuant to a petroleum licence.

For example, this means that a mine will be required to obtain an access licence in situation where:

  1. underground mining has a direct hydrologic connection caused by subsidence; and
  2. mining activities result in alluvial inflows into open cut pits.

The intention of this new section in the WM Act is to expressly clarify that any dewatering as a result of mining activities must now be accounted for by a water access licence. There has previously been some inconsistent interpretations taken by the mining industry and the NSW Office of Water in respect of this issue.

A project which has Part 3A approval or is a State significant development, will still require water access licences for the taking of water as the exemptions under the Environmental Planning and Assessment Act 1979 (NSW) only exempt a project from the requirement to obtain water related approvals and does not extend the exemption to access licences.

There is no grace period under the WM Act for mining operators to obtain water access licences in respect of the taking of water from a water source. Therefore, it is essential that an immediate audit of your water licences is undertaken to identify whether sufficient water licences are held to account for situations where open cut or underground mining activities result in the taking of water through hydrologic connections and the relevant water source from which the water is taken is covered by a water sharing plan.

In addition, now that section 60I has commenced, we anticipate that the aquifer interference approval provisions will be activated soon and the exemption under the regulation from the requirement to hold access licences in circumstances where an aquifer interference approval is held will be removed.

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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