Briefing: The End of the Water Trigger?


The Government is moving to annul the Environment Protection Biodiversity Conservation Act 1999 water trigger, brought into Commonwealth law last year to protect water resources from large coal mines and coal seam gas mining. A Bill currently in the parliament, and two agreements being prepared with NSW and Queensland will unwind the year-old law and hand decision making power on water over highly damaging mining projects to the coal States.

What is the water trigger?

  • The water trigger has been part of Australian law for one year only: Saturday 21 June is the anniversary of its assent. It is given effect by virtue of s24D & 24E of the Environment Protection Biodiversity Conservation Act.
  • These provisions mean that large coal mines and coal seam gas mining project that are likely to have a significant impact on water resources are considered Matters of National Environmental Significance (MNES).
  • As a result, these projects must be referred to the Federal Government and assessed in accordance with their requirements, and the Federal Environment Minister must give approval for them to go ahead.
  • There are existing provisions in the EPBC Act that allow for Federal Governments to sign bilateral approval agreements with the States, and thus to effectively hand back decision-making powers – although no such agreements have ever been signed.
  • But section 46 of the current EPBC Act specifically excludes the water trigger (as set down in ss24D & 24E) from being subject to these agreements and thus deliberately prevents such agreements from handing decision-making powers on water back to the States.
  • In the twelve months since the water trigger came into effect, the trigger has been applied to 57 projects. Of these, seven coal mines and one coal seam gas project have since been approved. None have been rejected.

The Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014

  • The Bill passed the Lower House of Federal Parliament on the 16 June.
  • Schedule 3, Part 1 of the Bill, will hand sole decision-making power back to State Governments relating to water impacts for CSG and coal where a ‘bilateral agreement’ is in place.
  • Draft bilateral agreements have already been developed for NSW and Queensland. The water trigger will still exist on paper, but it will be rendered completely meaningless.
  • More broadly, this Bill changes the way that the Federal Government enters into agreements to hand decision making powers to the states for actions that impact on any MNES.
  • This Bill removes the need for any Federal Government referral of projects, such that if a project is deemed to fall within the bilateral agreement scope, it is never considered by the Federal Government at all. Clause?
  • This sweeping change applies to all MNES, including the water trigger provisions.
  • It also provides that it will apply to referrals that were made before these changes were made to the Act, What Clause?


Why is the water trigger important?

  • Water resources like the Murray Darling Basin, the Lake Eyre Basin and the Great Artesian Basin are important to the entire continent and its people and landscapes, and are at risk from coal and coal seam gas projects that have an irreversible impact on them.
  • States Governments have an major self-interest in promoting gas and coal developments, as they receive royalties from them. The Federal Government, however, can take a broader perspective and look at the impacts across state boundaries and cumulative impacts.
  • Some of the types of issues of concern in relation to water are as follows:
  • Drinking water for Adelaide, Brisbane and Sydney is supplied from water sources that are currently impacted or are threatened by coal and CSG.
  • The Murray-Darling Basin is at risk from a substantial increase in salt load plus other contaminants as a result of discharges of CSG wastewater into creeks and rivers. Projects like APLNG already have approval to discharge treated wastewater into the Condamine River. This is likely to increase over time.
  • The Great Artesian Basin is at risk from multiple coal and gas developments. The Pilliga Sandstone recharge area of the GAB is at risk from a major gas project near Narrabri. Wastewater storages have already contaminated local aquifers in the area, and penalties and prosecutions have been issued to Santos for pollution of waters and breaches of conditions.
  • The Independent Expert Scientific Committee has warned that the Watermark and Caroona coal mines will together reduce the flow of the Namoi River by an amount equivalent to about half again the current surface water extraction below Keepit Dam, north of Gunnedah. Cumulative drawdown of the highly productive Namoi alluvial aquifer is predicted to exceed 2m.

Impact of the Lower House Amendment

  • The amendment passed in the Lower House to the Bilateral Agreement Bill does not save the water trigger. All the amendment does is require that any bilateral agreement with the States that hands over decision-making power includes a provision requiring the States to seek and consider advice on water impacts from the Independent Expert Scientific Committee (IESC).
  • This amendment has no effect in NSW, Victoria, Qld and South Australia, as they were already required to seek and consider such advice as part of the National Partnership Agreement on Coal Seam Gas and Large Coal Mining Development. Other states have very little coal or CSG resources and very little development planned, so the provision has extremely limited application.
  • Notably, there is no requirement for the States to take the IESC advice – it has no standing in the decision-making process apart from a purely advisory one. This is no substitute for a proper Federal referral, assessment and decision-making process.

The bilateral approval agreements

  • Two bilateral approval agreements are in preparation, one with New South Wales and one with Queensland. The agreements, if they are adopted, would broadly accredit the existing standard approval pathways for coal mines and coal seam gas projects in Qld and NSW as meeting Federal requirements.
  • These agreements will create different standards and assessment processes for different states and result in the loss of standardised, consistent Federal process.