Senate Approves "Water Trigger" Amendment to EPBC Act
The "water trigger" amendment to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was recently approved by Senate and has become law.
Additional Analysis and Approvals for Coal Seam Gas and Large Coal Mining Developments
The "water trigger" adds another layer of analysis and approvals to coal seam gas and large coal mining developments.
To summarise, if a coal seam gas1or large coal mining development2 will have, or is likely to have, a significant impact on a water resource, the developments will now require federal assessment and approval. The amendment responds to community concerns about insufficient State water resource regulation. The Commonwealth is given the ability to ensure the protection of water resources and impose water specific conditions on coal seam gas and large coal mining developments.
In addition to affecting new developments, the amendment may affect existing developments. Existing developments being assessed under the EPBC Act may be required to provide additional information and seek approval under the "water trigger".
Amendments to Apply "Water Trigger" to Shale Voted Down
The Australian Greens proposed to the Senate that the "water trigger" be extended to apply to shale developments, we assume due to community concerns that shale could pose a bigger threat to water resources than coal seam gas developments. The amendment was voted down in the Senate and was passed without the inclusion of shale developments.
Unnecessary Duplication Between Commonwealth and State?
The "water trigger" was opposed by many industry stakeholders on the basis that it unnecessarily duplicated State regulation, adding the potential for increased costs and delay. Interestingly, the Productivity Commission recently released a draft report on the state of mineral and exploration resources in Australia and has noted that a real or perceived duplication of regulation is a barrier to exploration investment. For further information refer to our earlier Legal Insight.
Submissions about unnecessary duplication were made by industry and considered by the Senate Committee. Ultimately, the Senate gave greater weight to community concerns and the "water trigger" was passed.
Both the Western Australia Chamber of Minerals and Energy and Queensland Resources Council have reaffirmed these concerns and made public statements on the duplication, additional layers of bureaucracy and the increased costs and complications of doing business in Australia.
Other Key Points
There are a few other key points industry should be aware of:
guidelines relating to a significant impact on a water resource are not yet available. The Commonwealth has commenced preparation of guidelines and is working to finalise these quickly
cumulative impacts on a water resource will be taken into account. Generally, a proposed development in an area of high water use is more likely to have a significant impact on a water resource
it has been indicated that the "water trigger" will be reviewed within two years of commencement.
 A coal seam gas development is any activity involving coal seam gas extraction that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production or salinity) either in its own right or as a result of cumulative impacts.
 A large coal mining development 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 or salinity) either in its own right or as a result of cumulative impacts.