Legislation update

New legislation ensures water quality in the Great Barrier Reef catchment area

By Damian Roe and Elizabeth Harvey / 28 May 2021
3 min.
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Worthwhile read for: Mining industry professionals

From 1 June 2021, the Environmental Protection (Great Barrier Reef Protection Measures) and Other Legislation Amendment Regulation 2019 will come into effect, with the aim of ensuring there is no net decline in water quality from new and existing developments in the Great Barrier Reef (GBR) catchment area. 

Under the Environmental Protection Regulation 2019, the administering authority makes environmental management decisions with respect to environmentally relevant applications. From 1 June 2021, the administering authority must refuse an application if it considers that the activity will, or may, have a residual impact on the GBR due to particular contaminants. 

In this article, Partner, Damian Roe, Senior Associate, Elizabeth Harvey and Law Clerk, Matthew Clarke discuss how applications for environmental authorities (EAs) or for the amendment of an EA located in GBR catchment areas will now need to address the residual impact of the proposed activities on the GBR.

Meaning of residual impact

A residual impact of a relevant activity is the presence of fine sediment or dissolved inorganic nitrogen (DIN), in GBR catchment areas or adjacent waters, that:

  • was released to the water because of the relevant activity; and
  • remains, or is likely to remain, (whether temporarily or permanently) in the water despite mitigation measures for the relevant activity.

A release is taken to occur if any amount of fine sediment of DIN, above what is already authorised to be released, enters the GBR catchment waters via a point source release.

Activities likely to attract the provisions

Extractive activities and mining are likely to create fine sediment. DIN releases are typically associated with sewage treatment, aquaculture, abattoirs/meat processing and intensive use of fertiliser. 

Contaminants released both during day-to-day operations during dry weather days, as well as during wet weather days as ordinarily conditioned as part of an EA, will be captured under the provision. The provisions are not intended to apply to uncontrolled, unplanned or emergency releases. Similarly, waterway diversions are not covered by the provision. 

Mitigation measures

Applicants for EAs must now propose mitigation measures for applications falling under the scope of the new provision. These measures may include onsite avoidance, minimisation techniques and point source water quality offsets.

If a release of contaminants is proposed, the applicant must provide modelling to demonstrate there will be no residual impact. In these circumstances, the EA will be conditioned to ensure no residual impact is caused by the release.

Evidence that water quality impacts will be avoided or minimised could include:

  • erosion and sediment control measures;
  • a stormwater management plan; 
  • description of how DIN is being removed; and
  • a description of monitoring that will be applied to ensure no releases occur.

Where applicants cannot avoid or minimise their water quality impacts, it is possible to meet the requirement for no residual impact through a water quality offset condition. Such conditions will be guided by the Point Source Water Quality Offsets Policy. 

Private members bill — overturning the amendments?

A private members bill was introduced to Parliament by Nick Dametto MP on 21 April 2021 seeking to repeal the 2019 Regulation in its entirety, citing concerns from the agricultural industry. However, the Bill will not affect the commencement of the provisions on June 1 and will be subject to Parliamentary hearings in June and September. 

If you would like any further information on the above, please do not hesitate to contact our Resources and Energy or Planning and Environment team. 

Authors
Damian Roe
Partner
Damian is a Partner of our leading Resources, Energy and Projects practice.
Elizabeth Harvey
Senior Associate
Elizabeth is a Senior Associate in our Resources and Energy practice.

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