20 Jun 2013

Senate passes EPBC "water trigger" Bill

Additional Commonwealth approvals triggers will soon apply to large coal mining and coal seam gas projects, following the passage of a Bill through the Federal Senate yesterday.

The Bill will amend the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to include as a "matter of national environmental significance" an action involving coal seam gas development or large coal mining development that has, will have, or is likely to have a significant impact on a water resource. As a consequence, these actions will require approval under the EPBC Act once the changes commence.

We previously looked at the scope of the proposed water trigger in the Bill as introduced, how it would affect projects already undergoing assessment and the implications for CSG and coal mining.

During its passage through the House of Representatives, the Bill was amended to prevent water trigger-related actions from being able to be approved by the States and Territories under an approvals bilateral agreement. The Senate retained this amendment, despite some stern opposition to it from industry groups and the Federal Opposition.

An approvals bilateral agreement is an agreement between the Commonwealth and a State or Territory which allows actions to be assessed under an accredited State or Territory process and approved by the State or Territory without further assessment or approval from the Commonwealth Minister under the EPBC Act. They differ from assessment bilateral agreements, which accredit a State or Territory assessment process but still require the action to be separately approved by the Commonwealth.

Currently, the Commonwealth and all States and Territories have assessment bilateral agreements in place. The Government attempted last year to negotiate approvals bilateral agreements with the States, and the Federal Opposition has indicated its intention to re-commence those negotiations if it wins government in September 2013. The amendment is particularly significant, because it could make the water trigger the only exception in the EPBC Act to Commonwealth authorisation of State approvals of EPBC Act matters, if approvals bilateral agreements are made.

Passage through the Senate

A number of amendments to the Bill were proposed in the Senate.

These included proposed amendments to:

  • extend the application of the water trigger to shale gas, tight-gas and coal gasification;
  • prevent the Commonwealth Minister from approving the taking of the water trigger-related action unless he or she is satisfied that the land owner has obtained independent legal advice, has obtained advice in relation to the likely impacts of the action and has freely given informed consent in relation to the taking of the action;
  • include actions which have or are likely to have a significant impact on the environment within National Parks as a matter of national environmental significance.

The proposed amendments were voted down and the Bill passed the Senate unchanged.


The Bill is awaiting assent by the Governor-General. The changes will commence the day after the Bill is assented to.

Implications for CSG and large coal mining projects

Proponents of large coal mining and coal seam gas projects, including those already undergoing assessment, will need to consider the effect of the new water trigger on their projects.

In particular, proponents will need to consider the timing of a referral under the EPBC Act to minimise unnecessary rework and duplication in their environmental impact assessment process.

Once commenced, the amendments have the potential to:

  • increase the number of large coal mining and CSG projects which require EPBC Act approval, which would not otherwise trigger other controlling provisions;
  • broaden the scope of the Commonwealth Government's assessment in the exercise of its approval functions; and
  • result in additional assessment requirements, resulting in delay to future projects and projects currently undergoing assessment, where those projects meet the criteria to be considered by the Minister for the new water trigger.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.