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Australia – Final Significant Impact Guidelines For EPBC Act Water Trigger Now Available.

15 January, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Energy & Project Finance
 

WHAT YOU NEED TO KNOW

 

  • The Commonwealth Government has published its final guidelines to assist proponents of coal seam gas and large coal mining developments to decide whether to refer, and how to assess, the impacts of their projects on water resources, for the recently introduced “water trigger” under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

 


WHAT YOU NEED TO DO

 

  • When considering whether and how to refer their projects, proponents of coal seam gas and large coal mining developments should review the Guidelines with appropriate technical and legal expertise, particularly in determining the application of any exemptions.

 

The Commonwealth Department of the Environment (DOTE) has published its final guidelines to assist proponents of coal seam gas (CSG) and large coal mining (LCM) developments to decide whether to refer, and how to assess, the impacts of their projects on water resources, for the recently introduced “water trigger” under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).


The water trigger was introduced into the EPBC Act in June 2013 and allows the Federal Environment Minister to determine if the impacts of proposed CSG and LCM developments on water resources need to be comprehensively assessed and approved before a project proceeds.


Stakeholders were given an opportunity to comment on draft guidelines in 2013. The Guidelines contain significant amendments which address to a certain extent the concerns raised by stakeholders in submissions on the draft guidelines.


For example:

 

  • A more detailed “self-assessment flowchart”, including exemptions.
  • Greater detail and clarity around exemptions. The Guidelines contain a whole new section dealing with “exemptions from the water trigger” which: 
    • more clearly and completely lists the exemptions that are “hidden” in the amending legislation that introduced the water trigger (and which were previously set out at the end of the draft guidelines);
    • for actions with prior authorisation – poses a test for whether the action is “substantially the same” as the action with prior authorisation; and
    • addresses intensification of actions, expansions and modifications (providing illustrative examples).
  • Further clarity around exploration activities. Exploration activities are not necessarily exempt, but the Guidelines state that exploration, pilot and appraisal activities may be less likely to have a significant impact on water resources.
  • Emphasis on the implementation of the precautionary principle.
  • More detailed “significant impact criteria” including guidance on what types of changes to hydrology and water quality will constitute a significant impact.
  • Removal of the term “substantial change” from the significant impact criteria and the introduction of a materiality threshold for determining significance of impacts (relating to the utility and value of the water resource).
  • More clarity around the consideration of cumulative impacts. The Guidelines make it clear that the consideration of cumulative impacts is not limited to:
    • impacts from CSG and LCM developments; nor
    • the immediate project area or developments that occur “upstream” from the proposed action.
  • Further details on what information proponents need to provide to the DOTE when referring their CSG or LCM developments.

 
The Guidelines have certainly been improved, even if they are not as comprehensive as industry may have wished. The application of the water trigger is still potentially far reaching. When considering whether and how to refer their projects, proponents of CSG and LCM developments should review the Guidelines with appropriate technical and legal expertise, particularly in determining the application of any exemptions.

 

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For further information, please contact:

 

John Briggs, Partner, Ashurst
[email protected]

 
Melissa Bice, Ashurst
[email protected]

 

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