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Yesterday federal Environment Minister Tony Burke announced the decision of the government to include water as a trigger in the federal Environment Protection and Biodiversity Conservation Act 1999, motivated by a desire to have more control over coal seam gas and other mining projects in Australia. According to Burke, it will ‘simply give the federal government the clout the public assumed it already had’.

The Amendment Bill was tabled this morning.

If passed, ‘water resources’ impacted by certain projects will form a ‘matter of national environmental significance’ (MNES) under part 3 of the EPBC Act.

However, the trigger only captures water resources that are impacted upon by ‘coal seam gas development’ or ‘large coal mining development’. Both of these terms are already defined in the Act, as projects that have, or are likely to have, a significant impact on water resources. So it’s a very circular definition. Notably projects can trigger the Act in their own right, or when they are considered with other developments (whether past, present or reasonably forseeable). So the cumulative impacts of multiple projects can be considered, which is very positive.

What it all means is that a proponent for a CSG or large mining project that is likely to have a significant impact on a water resource, will need to refer their project to the federal Environment Minister for him or her to decide whether it is a controlled action or not under section 68 of the EPBC Act (or the Minister can request referral, s 70). If it is deemed a controlled action by the Minister, then it will need assessment and approval under the EPBC Act. The assessment and final approval decision will examine in detail the impacts on the water resource. The Minister will then have the power to refuse approval for the CSG or large mining project (or impose conditions on the project) on the basis that it will have unacceptable impacts on the water resource.

As we have previously written, we are supportive of strong federal involvement in environmental regulation and project approval, and we see the new water trigger as an extension of this.

To the extent that it adds a ‘layer’ of protection against coal seam gas and mining projects, this is a good thing.

However, it is important to remember that what a trigger does is bring a project in for possible consideration under the EPBC Act. That’s all. There is no guarantee that it will then be assessed under the Act. And there is certainly no guarantee that it will prevent projects from proceeding or prevent environmental damage.

While the EPBC Act generally contains better environmental safeguards that State and Territory environmental legislation, there is still a lot that need to be done to strengthen it to deliver guaranteed environmental protection outcomes. It’s important not to lose sight of the need to reduce the discretion in the EPBC Act regime that allows decision-makers to act according to short-term political imperatives rather than long-term environmental protection.

In summary, it’s unrealistic to believe that the inclusion of this new trigger it is going to magically overnight protect Australia from environmental harms associated with coal seam gas and mining.

But it’s a start.

*Update 22/3/13: The amendments create an exclusion for the new matter of national environmental significance from being handed over to the States via use of the approval bilateral provisions in the EPBC Act. This is what the Places You Love Alliance has been asking for, but for ALL matters of national environmental significance. Read here why we agree.