Posted 29/11/2023 by Dr Emily Gibson
During October 2023, Dr Sophie Scamps MP (Independent) and Senator Sarah Hanson-Young (Australian Greens) introduced identical bills to expand the existing ‘water trigger’ in the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) ‘to ensure all proposed unconventional gas projects are assessed for their impacts on critical water resources’.
Dr Scamps and Senator Hanson-Young outlined several factors motivating their Bills:
What is the ‘water trigger’?
The EPBC Act provides a national regime for environmental assessment and approval of actions impacting matters of national environmental significance, and actions on or impacting Commonwealth land.
In 2013, the EPBC Act was amended to include the water trigger as a new matter of national environmental significance. The water trigger requires a person proposing a coal seam gas (CSG) or large coal mining development that has, will have, or is likely to have a significant impact on water resources to refer the proposal to the Minister for the Environment for assessment and approval under the Act (section 24D).
The Minister is required to seek the advice of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC) before making an approval decision on actions that may have a significant impact on water resources and may have adverse impacts on protected matters.
The water trigger was originally introduced to ‘address a perceived gap in an existing Australian Government regulatory regime, the EPBC Act, and to respond to public concern about the impacts to water resources of CSG and large coal mining development’ (p. 5).
Unconventional gas projects are not currently covered by the water trigger. These projects are assessed and approved under relevant state and territory legislation.
Proposed amendments
Items 14 and 15 of the Bills repeal the existing definition of coal seam gas development in the EPBC Act and add new definitions for petroleum, unconventional gas development, and unconventional gas extraction.
Items 1 to 13 then transpose those amendments in various sections across the EPBC Act, including requirements for approval, offences, the making of approval decisions, a requirement for the Minister to obtain the advice of the IESC, the making of conservation agreements, and the functions of the IESC.
Recent reviews
The Scientific inquiry into hydraulic fracturing in the Northern Territory, initiated by the NT Government in December 2016 and chaired by the Hon Justice Rachel Pepper, investigated ‘the environmental, social and economic risks and impacts of hydraulic fracturing… of onshore unconventional gas reservoirs and associated activities in the Northern Territory’. In April 2018, the Scientific Inquiry’s Final report recommended that the Australian Government amend the EPBC Act to apply the water trigger to onshore shale gas development, as one of its 135 recommendations (p. 118). The Final report states ‘there is no good reason why’ the water trigger should not be expanded (p. 118).
In October 2018, the Final report of the Senate inquiry into water use by the extractive industry recommended that the water trigger be expanded to include all forms of unconventional gas development (p. 72).
In August 2021, the Interim report of the Senate inquiry into oil and gas exploration and production in the Beetaloo Basin also recommended that the water trigger be expanded to include onshore shale gas developments (p. 93). In April 2023, the Senate inquiry’s Final report recommended that legislation be brought forward to amend the water trigger, to be in effect by the end of 2023 (p. 35).
However, the second independent review of the EPBC Act, undertaken by Professor Graeme Samuel in 2020–21, took a different view. In his Final report, Professor Samuel pointed out that ‘water resources’ were insufficiently defined for the purposes of the EPBC Act, there was inconsistency in regulating an activity of part of a specific sector, and that ‘the current construct of the ‘water trigger’ is inconsistent with the Commonwealth’s agreed role in environmental and water resources management’ (p. 46). Professor Samuel recommended that the water trigger ‘be amended to apply only to cross-border water resources’ and that restrictions on other parties (that is, states and territories) being accredited to undertake approvals of proposals assessed under the water trigger should be removed, where those approval processes were consistent with proposed national environmental standards (p. 48).
Response of the Albanese Government
In December 2022, the Albanese Government formally committed to expanding the water trigger in its response to the Samuel Review, the Nature Positive Plan (pp. 2, 15). The Plan states ‘the government will amend the water trigger to ensure the appropriate management and protection of water resources from all forms of unconventional gas’, that is, to include shale gas developments (p. 15).
However, the Plan foreshadows recognition of ‘Commonwealth, state and territory water management systems, where these adequately protect and manage water resources’ and ‘changes to expand the scope and access to independent expert advice provided by the [IESC]’ (p. 15). This suggests that the current prohibition on the Commonwealth devolving responsibility for water trigger approval decisions to the states or territories in bilateral agreements could be removed.
EPBC Act reforms
Preliminary information revealed during consultations for Australia’s new Nature Positive Laws is consistent with the government’s stated intention to expand the water trigger. However, a detailed assessment of the government’s proposal is not possible until an exposure draft is released for consultation or legislation is tabled in Parliament.
More about the Bills
Consistent with dissenting reports to the abovementioned inquiries, Coalition Senators have indicated they do not support the Bills. At the time of publishing, neither Bill has been referred to Committee for inquiry and report.
More information on the Bills can be found at: