The ‘water trigger’ – an important first step, but there’s room for improvement

By Policy and Law Reform Solicitor Dr Emma Carmody

2 February 2016

The ‘water trigger’ has been a good addition to environmental laws in Australia. But there are ways it can be improved. EDOs of Australia has just made some recommendations regarding the scope and operation of this important regulatory mechanism.

What is the ‘water trigger’?
The Environment Protection and Biodiversity Conservation Act (EPBC Act) is Australia’s main piece of national environmental legislation.

Under the EPBC Act, developments that are likely to have a significant impact on one of nine ‘matters of national environmental significance’ (MNES) must be approved by the Commonwealth Minister for the Environment (Minister) before they can go ahead.

The ‘water trigger’ is the most recent addition to the list of MNES. Added in 2013, the trigger requires CSG developments and large coal mining developments that are likely to have a significant impact on water resources to be assessed and determined by the Minister.

In making their decision, the Minister must ‘take into account’ advice from the Independent Expert Scientific Committee (IESC) about the impacts of the development on water resources.

Why do we need a ‘water trigger’?
The ‘water trigger’ was added to the EPBC Act due to widespread concern among the community, scientists and conservation groups about the impacts of CSG and large coal projects on water resources, in particular groundwater.

In 2013, EDOs of Australia supported the inclusion of the ‘water trigger’ for a number of reasons. Key arguments in our submission were:

  • There is a great deal we don’t know about groundwater, so it is vitally important that all developments that may damage, contaminate or drain aquifers be subject to rigorous laws designed to protect these resources into the future.
  • Our analysis indicates that State and Territory laws do not adequately protect Australia’s water resources from the impacts associated with gas and mining projects.
  • States and Territories must assess and approve the very gas and mining projects from which they receive large royalties. This may give rise to a conflict of interest, reinforcing the need for Commonwealth oversight.

How can the ‘water trigger’ be improved?
In our 2013 submission, we argued that the water trigger should be expanded to cover all unconventional gas projects (such as shale and tight gas) and all mining projects that excavate beneath the water table.

We reiterated this argument in our recent submission on the 2016 review of the trigger.

Now that we have two years’ worth of data on how the ‘water trigger’ works, we’re also in a position to make additional recommendations about how the trigger could be improved.

It doesn’t make sense to have a committee of scientific experts providing advice about high-impact developments, but no requirement that this advice actually influence the Government’s decision-making process.

Our biggest concern is that the Minister need only ‘take into account’ the advice provided by the IESC. This means that the Minister can ignore issues raised by the IESC about impacts on water resources and approve a project regardless.

Where the Minister approves a project (which they almost always do), they are not obliged to add ‘conditions of consent’ that deal with any concerns raised by the IESC.

It doesn’t make sense to have a committee of scientific experts providing advice about high-impact developments, but no requirement that this advice actually influence the Government’s decision-making process.

We therefore recommend that the EPBC Act be amended so that:

  • the Minister ‘must not act inconsistently’ with the IESC’s advice when determining a project; 
  • conditions of consent are required to reflect the IESC’s advice; and
  • the Minister must not approve a project until the developer has adequately addressed any concerns raised by the IESC in their report.

EDO NSW believes that any Government that is genuinely interested in building community confidence in national environmental laws and protecting water resources would take these recommendations seriously. The future health of our rivers and aquifers depend on it.


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