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Australia – Federal Reforms To Water Impact Assessment For Resource Projects: The Independent Expert Scientific Committee.

30 May 2012

 

Legal News & Analysis – Asia Pacific – Australia – Environment 

 

Coal seam gas and large coal mining projects will be subject to more rigorous assessment under reforms proposed by the Commonwealth government in November 2011.

The reforms, if achieved, will mean State governments will be bound by legislation to consider the advice of the Independent Expert Scientific Committee when assessing and approving coal seam gas and large coal mining projects which have significant potential impacts on water resources.

For industry, this will mean the scope and detail of water impact assessments will need to be sufficiently rigorous to meet the requirements of the Committee and avoid delays to project approvals.

 

Introduction

 

In November 2011, the Commonwealth government put forward its "two-pronged" approach to reforming environmental regulation of coal seam gas and large coal mining projects. The reforms have been developed largely in response to strong community concern surrounding the potential impacts of these industries on water resources.

 

The reform involves establishing:

 

  • an Independent Expert Scientific Committee (the Committee) to provide scientific advice in relation to coal seam gas and large coal mining projects likely to have a significant impact on water resources; and
  • a National Partnership Agreement to provide a mechanism for drawing the findings of the Committee into Commonwealth and State assessment and approval decisions.

 

The $200M reform package has been developed in exchange for the support of independents Tony Windsor MP and Rob Oakeshott MP for the Mining Resource Rent Tax (MRRT) legislation.

 

Independent Expert Scientific Committee (and interim arrangements)

 

The Committee will gather scientific evidence of the impacts on water resources caused by extractive industries, particularly coal seam gas and large coal mining projects.

 

The Committee will receive initial funding from the MRRT of $150 million over 5 years and will be supported by a dedicated office within the Department of Sustainability, Environment, Water, Population and Communities.

 

The Committee will have a statutory advisory role under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and will:  commission and fund assessments for priority areas;

 

  • advise on research priorities and determine priority regions for bioregional assessments; and
  • provide scientific advice to Commonwealth and State Ministers to inform assessment and approval decisions for extractive industries.

 

Advice of the Committee will be made publicly available.

 

In January 2012, an Interim Independent Expert Scientific Committee (the Interim Committee) was appointed pending formal establishment of the Committee.

 

The Interim Committee will meet monthly and convene additional workshops to:

 

  • frame and scope priority areas for research;
  • develop a framework for research investment;
  • advise on priority regions for conducting bioregional assessments in areas of high potential impacts from coal seam gas and large coal mining projects.

 

Until the reforms are formalised, Commonwealth, State (and territory) governments may seek the advice of the Interim Committee when assessing and approving coal seam gas and coal mining proposals under State regulatory frameworks.

 

Advice of the Interim Committee will also be made publicly available.

 

National Partnership Agreement

 

The second key component of the reforms is the establishment of a National Partnership Agreement through the Council of Australian Governments (COAG). The following key features are intended to be part of the Agreement:

 

  • Assessments: Commonwealth and State extractive industry assessments must take into account advice from the Committee relating to impacts of extractive industries.
  • Approvals: Commonwealth and State extractive industry approval decisions involving significant potential impacts must take into account advice from the Committee.

 

These features are to be achieved in practice by States amending environment, planning and other relevant legislation to give legal effect to the requirements. What if the States don't participate in the reforms? There are strong incentives for States to participate in the reforms, given:

 

  • States can take the benefit of research and expert advice given by the Committee; 
  • participation includes the payment of rewards to States upon demonstrated achievement of legislative amendments requiring assessment and approval decisions take into account the advice of the Committee. (This must be achieved within 12 months of COAG agreement to the National Partnership Agreement.)

 

If the Agreement is not achieved, the Commonwealth government intends to introduce legislation under the EPBC Act to create a trigger for Commonwealth assessment of cumulative impacts of extractive activity on water resources.

 

What do the reforms mean for industry?

 

  • The reforms, if achieved, will mean State governments will be bound by legislation to consider the advice of the Committee when assessing and approving coal seam gas and large coal mining projects which have significant potential impacts on water resources.
  • Groundwater impact assessments in particular will need to be sufficiently rigorous to meet the requirements of the Committee. Impacts relevant to both quality and quantity of water in aquifers will be relevant. Delays to project approvals can be expected if impact assessments are found lacking.
  • The scope of impact assessment will require significant expansion to capture, for example, impacts on the Great Artesian Basin, the Murray Darling Basin and agricultural land. 

 

 

For further information, please contact:

 

Caroline Ammundsen, Ashurst

caroline.ammundsen@ashurst.com

 

 

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