2013 EPBC Act amendment Water trigger
An amendment to Australia's national environment law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was introduced into Federal Parliament on 13 March 2013, to provide that water resources are a matter of national environmental significance, in relation to coal seam gas and large coal mining development.
The amendment - the EPBC Amendment Bill 2013 passed the Parliament on 19 June 2013, and received Royal Assent on 21 June 2013.
Introduction
The water trigger allows the impacts of proposed coal seam gas and large coal mining developments on water resources to be comprehensively assessed at a national level.
The Australian Government is responding to community concern to ensure the long term health and viability of Australia's water resources and the sustainable development of the coal seam gas and coal mining industries.
- Greater protection for water resources - media release 12 March 2013
Significant impact guidelines
- Consultation on the Draft significant impact guidelines: Coal seam gas and large coal mining developments impacts on water resources - comments close at 5pm on Thursday 25 July 2013
Questions and Answers
Overview
Q. What is the amendment?
This amendment to Australia's national environment law, the EPBC Act, makes water resources a matter of national environmental significance, in relation to coal seam gas and large coal mining development.
This means that such developments will require federal assessment and approval to ensure the protection of water resources.
Q. Why was amendment necessary?
Before this amendment was made, projects with water related risks could only be regulated if they had flow on impacts to existing matters of national environmental significance, such as nationally endangered plants and animals.
This new matter of national environmental significance will allow the impacts of proposed coal seam gas and large coal mining developments on water resources to be comprehensively assessed at a national level.
The Government has responded to community concern to ensure the long term health and viability of Australia's water resources and the sustainable development of the coal seam gas and coal mining industries.
Our nation's water resources are among our most vital natural resources and it is important that we take reasonable steps to ensure they are protected.
Q. How is this different to the current assessment process for coal seam and large coal developments?
Any coal seam gas and large coal developments that have a significant impact on any of the existing matters of national environmental significance, e.g. nationally threatened plants and animals, already have to be referred under the EPBC Act.
Since 2012 these projects have been referred to the Independent Expert Scientific Committee for advice on the impacts on water resources. The Minister takes this advice into consideration when making a final decision. However, the Minister does not currently have the power to consider and impose conditions directly relating to impacts on a water resource itself.
This amendment adds water as a trigger in its own right, and the Minister can set appropriate conditions as part of the project approval to ensure that any significant impacts on a water resource are acceptable.
Q. Does the amended Act apply to shale gas development?
No. The amendment does not apply to shale gas. The amendments to the EPBC Act build on the objectives of the National Partnership Agreement on Coal Seam Gas and Large Coal Mining (NPA).
Q. Does the Australian Government have constitutional power to include this trigger under federal legislation?
The Australian Government has relied on two main heads of power under the Constitution for the new matter of national environmental significance. These heads of power are the power to regulate constitutional corporations and to regulate trade and commerce.
Q. When did this trigger take effect?
The water amendment was passed by the Parliament on 19 June 2013, and received Royal Assent on 21 June 2013. The amendment therefore commenced on 22 June 2013.
Q. Why was the power to enter into approval bilateral agreements for the new water trigger removed?
The Government has responded to community concern to ensure the long term health and viability of Australia's water resources and the sustainable development of the coal seam gas and coal mining industries.
Given the high levels of community concern around this matter it is important to maintain stronger control over decisions to approve such projects.
Existing projects and assessments
Q. Will this amendment affect developments currently being assessed, and what is the effect of the transitional arrangements?
Yes, in some circumstances. The amendment applies to any developments currently referred for a decision that is in the approval process, unless the Independent Expert Scientific Committee has given advice and a proposed decision on the project has been made.
That does not mean that projects will have to go right back to the beginning and start their full environmental impact assessment again.
The department is working closely with proponents to identify what additional information is required to assess these impacts. The department will rely on information that has already been collected in the existing state and EPBC Act processes as much as possible, to ensure current assessments proceed efficiently.
The transitional arrangements provide that if the process of having a development assessed under the EPBC Act has already commenced, the Minister has 60 days (from the commencement of the Bill) to decide whether the project requires approval in relation to the new water trigger. The Minister then has to advise and consult with the individual proponents affected on the proposed decision for a period of 10 days before a final decision is made.
Q. What is the effect of the amendment on existing bilateral assessments?
For projects currently being assessed under existing bilateral agreements, should the new trigger be determined to apply, the action can continue to be assessed under the bilateral agreement.
Assessments will rely as much as possible on information that has already been collected in the existing state / territory and EPBC Act assessment processes, to ensure assessments proceed efficiently.
If the Minister decides that the new provisions do apply to the proposed action, impacts relating to the new matter of NES will be considered in deciding whether to approve the action and whether to impose conditions under Part 9 of the EPBC Act.
Q. Does this amendment affect previously approved projects?
The amendment will not apply to actions already approved under the EPBC Act. However if an approved project has a substantial change to how it is conducted or an extension, the new MNES may apply if there is likely to have a significant impact on a water resource.
Q. How many more CSG and coal mining projects are likely to be assessed once this water trigger is in place?
This amendment requires that all proponents of CSG and large coal mining projects will need to consider significant impacts on a water resource, in addition to current matters of national environmental significance when determining whether the project needs to be referred under the EPBC Act.
Q. How many projects currently under assessment will be impacted by this decision?
There are currently about 60 projects, predominately large coal mines, under assessment that are likely to be impacted by this decision.
Q. What stage are these assessments up to?
These assessments are predominately being assessed under bilateral or accredited arrangements with relevant states.
In most cases the department has not started its final assessment, as the state assessment process is currently underway.
Q. What are the arrangements for communicating with proponents where the new matter of NES applies to existing projects or proposals?
On 12 March 2013, the department wrote to all proponents with projects currently undergoing EPBC Act assessment to which the new water resources trigger may apply.
The department will continue to engage proponents and stakeholders in the lead-up to and following the commencement of the amendments, should they be passed by Parliament, to provide guidance on the application of the new environmental law to their projects, including the likely information requirements. In particular, the Bill requires that, if the process of having a development assessed under the EPBC Act has already commenced, the Minister has 60 days to decide whether project requires approval. Within that period the Minister has to advise and consult with the individual proponents affected for a period of 10 days before a final decision is made.
Q. How do proponents avoid duplication of process between state and territory and Commonwealth assessment of impacts on water resources?
The department will rely as much as possible on information that has already been collected in the existing state or territory and EPBC Act assessment processes, to ensure current assessments proceed efficiently.
Additionally, existing bilateral agreements with states and territories are currently being used on a regular basis for the assessment of many coal seam gas and large coal mining developments and we anticipate this will continue. These bilateral agreements enable a single assessment process that meets both state and Commonwealth assessment requirements, minimising duplication for proponents.
Legislative definitions and guidance
Q. What is the definition of a water resource?
The definition of a water resource in this amendment is the same as currently used in the Water Act 2007. A water resource relates to ground water and surface water, and includes organisms and ecosystems that contribute to the physical state and environmental value of the water resource.
Q. What is a significant impact on water resources?
The department has released draft significant impact guidelines for the proposed water resources trigger. The department will be working to finalise guidance quickly, to provide greater certainty to proponents about the application of the proposed water resources trigger.
Like the existing significant impact guidelines available for other protected matters under the EPBC Act, these guidelines will provide over arching guidance on determining whether a coal seam gas or large coal mining development is likely to have a significant impact on the new protected matter.
In addition to seeking the expert scientific advice of the IESC, the department is consulting with states, territories, industry stakeholders, environment and other non-government organisations on the proposed guidelines.
There are several existing guidance documents that the department will build upon in developing significant impact guidelines for water resources. EPBC guidelines define a significant impact as one which is important, notable, or of consequence, having regard to its context or intensity.
Whether or not an action is likely to have a significant impact depends upon the sensitivity, value, and quality of the environment which is impacted. It also depends upon the intensity, duration, magnitude and geographic extent of the impacts. More information on the guidelines is at Significant Impact Guidelines 1.1: Matters of National Environmental Significance.
A significant impact on water resources may be caused by one development action relating to coal seam gas or large coal mine, or the cumulative impact of such actions. Under the National Partnership Agreement, factors which may directly or indirectly bring about a significant impact on water resources could include those that:
- change in the quantity, quality or availability of surface or ground water
- alter ground water pressure and/ or water table levels
- alter the ecological character of a wetland
- result in rivers or creeks diverted or impounded
- alter drainage patterns
- 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 substantially adversely affected, or
- substantially increase demand for, or reduce the availability of water for the environment.
Q. Can there be more guidance around the way coal seam gas and large coal mining developments are defined? Do these definitions include development of associated infrastructure?
The definition of "large coal mining development" in the EPBC Act (section 528) 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 and/or salinity), in its own right or when considered with other developments, whether past, present or reasonably foreseeable developments." The definition relates to the development's likely significant impact on a water resource and not the size of the proposed mine.
The definitions of 'large coal mining development' and 'coal seam gas development' refer explicitly to 'mining' and 'extraction' respectively. The department considers that the definitions of large coal mining and coal seam gas developments include only activities directly related to the extraction of coal or coal seam gas which have a significant impact on a water resource. Therefore, if the extraction activity does not have a significant impact on a water resource then the provisions of the Bill would not apply.
Actions which involve only associated infrastructure, such as processing, pipelines, rail lines and other transportation facilities, would not be captured in the definition, as these are non-extractive actions.
However, if it were determined that a coal seam gas development or a large coal mining development were to have a significant impact on a water resource, the whole of the action which involves the development would need to be referred both the extractive and non-extractive components. This is consistent with existing practice under the EPBC Act under which an "action" as referred is assessed in relation to its likely impacts on matters of national environmental significance.
Q. How will cumulative impacts by other industries be accounted for?
The definitions of coal seam gas development and large coal mining development in the Bill would require the significance of the impacts of an action to be considered with other developments, whether past, present or reasonably foreseeable. In general, this would indicate that proposed CSG or coal mining in an area of high water use would be more likely to involve a significant impact on a water resource.
Q. How is emergency discharge of water from operations (for example, during flood events) treated under the amendments?
In the case of an emergency, and where legal certainty is required for discharges which may have a significant impact, the federal environment minister has power under the EPBC Act to issue an urgent exemption if it is determined that this is in the national interest. This is a broader power in the EPBC Act that applies for all matters of national environmental significance and will include the water trigger.
Q. How do the exemptions apply under the new provisions?
The new water trigger provisions do not apply to a proposed action which, before commencement of the legislation:
- was approved by the Minister under Part 9 of the EPBC Act; or
- the Minister determined was not a controlled action or not a controlled action if taken in a particular manner as specified in a section 77 notice; or
- was determined to be a controlled action where the Minister has:
- made a proposed decision on the project, and
- obtained advice from the Independent Expert Scientific Committee (IESC).
Where a particular coal seam gas or large coal mining action was not referred under the EPBC Act because it did not trigger any provisions of the EPBC Act prior to the Bill commencing, but would have a significant impact on a water resource, the new controlling provision may apply unless:
- a State or Territory has obtained advice from the IESC before 13 March 2013 in relation to the action for the purposes of giving a "specific environmental authorisation" (see below for definition) for the action under a State or Territory law.
- before the commencement of the Bill, the action was authorised by a "specific environmental authorisation" (including Commonwealth, state, or territory approval) where no other approvals or authorisations were required for the action to proceed. The specific environmental authorisation must still be in force when the action commences. (This exemption is similar to an existing exemption in s.43A of the EPBC Act.)
For projects currently undergoing assessment and approval under the EPBC Act which fall outside the scope of these exemptions, the new provisions may apply.
A "specific environmental authorisation" is an authorisation which is:
- for the purpose of protecting the environment or to promote the conservation and ecologically sustainable use of natural resources, and
- which specifically identifies the particular action, i.e. is not just a general authorisation for a class of activities. The decision maker granting the authorisation must have specifically considered the activities associated with the particular action.
A specific environmental authorisation must be made under Commonwealth or State or Territory legislation. Environmental authorisations may include permits, licences, authorities and approvals which are issued under a law for actions associated with coal seam gas or large coal mining development such as:
- vegetation clearance or wildlife relocation;
- water extraction;
- impoundment.
The authorisation must be related to environmental approvals, but need not be specific to impacts on water resources. A renewal or extension of a specific environmental authorisation may still be a specific environmental authorisation if:
- the action is the same as the action that was originally authorised before the water trigger legislation commenced; and
- the renewal or extension can be given without any further consideration of the environmental impacts of the action.
If a further assessment of the impacts of the action is required for the specific environmental authorisation, then the new provisions of the EPBC Act may apply to the renewal or extension if the new proposed action is likely to have a significant impact on a water resource.
Q. How does s.24D(4) affect the burden of proof?
Section 24D(4) operates as an exemption from liability for a civil penalty. It is not currently specified in the EPBC Act who bears the evidential burden of showing that an exemption exists from the civil penalty provisions in relation to other matters of national environmental significance. Since the provisions in the EPBC Act were drafted, drafting practice has changed so that, where a civil penalty provision contains an exception, legislation must specify the exception is something for the prosecution or the defendant to prove.
The new provision places the evidentiary onus on the person seeking to show that an exception exists. This is because the matters which a person would have to show to rely on proposed section 24D are easily adduced by the person wishing to rely on those matters and the effort required for discovery would not place an onerous burden upon that person. For example, if a project has previously received a "not a controlled action particular manner" decision, the proponent is best placed to provide evidence of approval.
Conversely, it would be very difficult for the department to prove the absence of an approval and therefore the onus of proof is more practically placed with the proponent.
Role of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development
Q. What does this mean for the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development?
The Independent Expert Scientific Committee will continue to provide advice for coal seam gas and large coal mining projects which may require a federal environmental assessment, including assessments of significant impacts on water resources.
Q. What does this mean for state and territory assessments of coal seam gas and coal mining projects?
States that have signed the National Partnership Agreement and have operating protocols that explain which projects will be referred to the Independent Expert Scientific Committee are already committed to referring coal seam and large coal mining projects with water-related impacts to the Committee.
Coal seam gas and large coal mining development may also require assessment and approval under state law, in relation to matters of state responsibility.
Q. What does this mean for the National Partnership Agreement?
The National Partnership Agreement remains in force, including its objectives to strengthen regulation of coals seam gas and large coal mining.
All CSG and large coal seam mine projects that are expected to have water-related impacts will be referred to the Independent Expert Scientific Committee either by the Australian Government or by signatory states to the National Partnership Agreement.
Q. Will Independent Expert Scientific Committee advice be sought before the amendment is passed?
There is a process already in place for the Independent Expert Scientific Committee to provide advice to both the Australian Government and to states.
That process will continue to apply where a state or the Australian Government seeks the Independent Expert Scientific Committee s advice before the amendment to the EPBC Act is passed.
The Minister has formally requested that the IESC provide advice on several matters relating to the water trigger and the IESC's advice will be taken into account in developing the department's policy guidance on this matter.
Other EPBC Act reforms
Q. What is the progress on other EPBC Act reforms?
The Australian Government is committed to delivering an improved system of national environmental law that supports sustainable development.
In August 2011, the government's response to the Independent Review of the EPBC Act outlined our approach of moving to a strategic landscape and ecosystem approach to environment and heritage protection.
A number of those reforms have already been introduced, including improved administrative practices such as early engagement with proponents of major projects, the development of a new national EPBC Act environmental offset policy and significantly increased the number of a strategic assessments being conducted.
The Australian Government remains committed to efficient administration of environmental law and our focus is on working directly with business and providing better guidance while ensuring the Australian public is confident that strong environmental protection is in place.
We are continuing to work with state and territory governments and to create a more efficient and effective environmental approval system.
Q. Will the amendment introduce more layers of bureaucracy?
This amendment is about ensuring that the water-related impacts from coal seam gas and large coal mining developments will be fully assessed under the Environment Protection and Biodiversity Conservation Act 1999, and that the Minister will put in place appropriate protections to ensure that any impacts are acceptable.
This amendment will provide increased certainty to business about the regulatory framework in which they will operate.