Water sources at risk in the Hunter

EMMA CARMODY*

Changes have been made to the rules governing the water use of mining companies in the Hunter region of NSW. These changes mean that from 2015 all large open-cut and underground coal mines in the Hunter will be exempt from rules that were supposed to protect both groundwater sources (known as ‘alluvial aquifers’) and rivers, particularly during periods of drought. This highlights the importance of assessing cumulative impacts properly, as well as the need for the community to be consulted on decisions that impact how water is managed across NSW.

Changes to the Hunter Water Sharing Plan
The NSW Minister for Primary Industries recently made over 100 changes to the Water Sharing Plan for the Hunter Unregulated and Alluvial Water Sources (Hunter Water Sharing Plan). Water sharing plans establish rules for how water is allocated between different users in a particular area. This includes a requirement to set aside some water for the environment.

The Hunter Water Sharing Plan includes rules intended to protect aquifers and the rivers to which they are connected from ‘over-extraction.’ For example, it contains a set of rules which prohibit pumping water from specified aquifers during drought. These  rules are also designed to protect ecosystems that depend on the health of these aquifers and rivers. These ‘groundwater dependent ecosystems’ include dramatic limestone caves containing subterranean lakes which support a variety of fauna such as numerous bat and invertebrate species.

However, two of the recent amendments to the Hunter Water Sharing Plan mean that all licenced major projects approved under NSW planning laws are exempt from these rules. Most mining developments in NSW are categorised as major projects.

What does this mean for the environment?
While there is still much to learn about groundwater systems across NSW, we do know that alluvial aquifers in the Hunter are shallow and therefore easily contaminated. We also know that they are under strain from extractive use, and are highly connected to other water sources. The recent amendments to the Hunter Water Sharing Plan risk exacerbating these problems, as well as undermining the health of ‘groundwater dependent ecosystems’.

The changes also seem to be designed to counteract new laws which require mining companies to hold licences for all water that they extract, including ‘incidental take’.  Incidental take, which is ‘take’ that occurs when a mine is excavated through the water table, is often uncontrolled and continuous. It would therefore have been difficult for mining companies to comply with rules which prohibited pumping water from specified alluvial aquifers during periods of drought.

In a region characterised by an unusually high concentration of open-cut coal mines, the changes are problematic, not least of all because they undermine the objects and principles of the Water Management Act.

Lack of community consultation
There was no legal requirement for the Minister to consult with the community before making the changes discussed above.  Changes of this nature have significant implications for the environment and other users. As such, EDO NSW believes that it is necessary to amend the Water Management Act to ensure that the public can participate in important policy decisions which determine how water is managed across the State.

Click here to read Emma’s article in the Australian Environment Review.

*Emma Carmody is a Policy and Law Reform Solicitor at EDO NSW.

The limits of adaptive management

KIRSTY RUDDOCK*

Last week the Land and Environment Court applied the precautionary principle and refused a mining project that provided insufficient information in its environmental assessment about the impacts of the mine on groundwater and surface water. The case sets an important benchmark in environmental decision making that can now be applied to all planning decisions.

The case
In SHCAG Pty Ltd v Minister for Planning and Infrastructure and Boral Cement Ltd [2013] NSWLEC 1031, Commissioner O’Neill and Acting Commissioner Adam refused the continued operation of the Berrima Colliery. The expansion application sought to double the output from the Berrima Colliery to 440,000 tonnes per year and allow continued operation for eight years. Southern Highlands Coal Action Group (SHCAG) argued that Boral did not adequately consider the impact the project would have on the local groundwater resources, groundwater biodiversity, and the Wingecarribee River in preparing its environmental assessment, and that the impacts of the project on groundwater, groundwater ecologies, and surface water pollution are inconsistent with the principles of Ecologically Sustainable Development, the Wingecarribee Local Environmental Plan, and State Environmental Planning Policy (Sydney Drinking Water Catchment).

The consequences
As a result of the decision Boral will not be able to continue the operations until they submit and have approved a further Environmental Assessment. While this will have a significant impact on their operations, it emphasises the importance of ensuring detailed environmental assessments and baseline monitoring are completed prior to seeking approval for a mining project.

The precedent
The Court stressed that the preparation of a management plan as a condition of consent is not a panacea to overcome the necessity to consider all of the environmental impacts of a proposal. In this case there was an absence of monitoring data to calibrate and confirm Boral’s assumptions and therefore the Planning Assessment Commission had not considered all of the impacts and the means of controlling them. The Court was therefore satisfied that the precautionary principle is activated and that the Boral had not established that its activities would not cause harm to the environment. The Court also found that they could not determine appropriate conditions to address these impacts as there was not adequate information before them to allow for the imposition of clear limits in the approval that can be adaptively managed to ensure they are met. Adaptive management requires precise limits on the cumulative operations of the colliery which the evidence showed did not exist in the Water Management Plan.

Importantly the Court also found it was required to assess not only the new impacts but the continued impacts of dewatering over the whole mine workings. This was important here as some of the impacts related to the previous mining activities, and the mine had argued that only the new impacts should be considered.

The Court also found the residents had valid concerns about noise dust and safety impacts on the Medway Road through Medway village. They found the road was unsuitable for 132 truck movements per day and the haulage road needed to avoid the village.

EDO NSW perspective
The Court has not in recent years applied the precautionary principle to refuse a mining operation. The case is important in strengthening the environmental standards that apply to environmental assessment. It has also set limits on the use of adaptive management, so that it cannot be used to overcome the deficiencies in Environmental Assessments.  This will ensure that the onus is on companies to show through baseline monitoring and other assessments that their project is not likely to cause environmental harm.

Our conclusion
The case will be useful for all communities affected by mining and will provide guidance  to people making submissions on environmental assessments.

*Kirsty Ruddock is the Principal Solicitor at EDO NSW

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Launch of ‘Mining Law in NSW: A Guide for the Community’

JEFF SMITH*

This week’s launch of EDO NSW’s Mining Law in NSW guide has turned out to be an incredibly timely reminder of a critical but often little understood role that the Environmental Defender’s Office has played for decades.

We provide a relief valve for communities and individual landholders who feel beset by powerful forces like government agencies and big mining companies, and who contemplate more extreme action if they can’t get help under the law.

For the launch of the mining law guide we invited representatives from three different communities who are grappling with coal and coal seam gas (CSG) development projects to join us in Sydney and tell their stories.

Unlike us lawyers, who can be more guarded in our public commentary, these are people who say exactly what they think. It reveals the depth of emotion that exists when people are confronted with a danger to their community and their natural environment.

Space doesn’t allow me to do justice to all of what was said when our panel guests, Julie, Peter and Scott, described their communities, their challenges and their frustrations. But let me share a taste:

  • Scott Franks, one of the Registered Native Title Claimants for the Plains Clans of the Wonnarua people in the Hunter region. Scott talked about how the planning and heritage laws seek to protect cultural artefacts like spear heads and bones, but can fail to take into account the land itself: ‘The bigger picture is being missed. It’s the environment that sustains our people … we are still in the embryonic stage of understanding this land. How can we destroy something that we don’t totally understand? We all have an onus to protect the environment of this country … One thing the EDO did for me personally was to take the emotion out of it and focus on the law.’
  • Julie Lyford, one of the organisers of the recent CSG conference in Gloucester. Julie described her Gloucester community as having the second lowest socio-economic standing in NSW, while facing major coal and CSG projects and grappling with the implications locally and globally. ‘Rural communities are doing it extremely tough … the EDO is the only thing that communities such as ours can rely on. The rise of community activism across NSW is huge and it’s going to get bigger.’
  • Peter Martin, a semi-retired Sydney businessman with a farm in the Southern Highlands. Peter critiqued the role of politicians and successive governments across the political spectrum, and he condemned the mining laws as a ‘complete travesty’ for communities, highlighted a community role for ‘non-violent civil action’, and also questioned the independence of the legal profession itself. ‘All the big law firms are conflicted … and will only act for mining companies. Even if we can pay for them we can’t get them. Without the EDO, we’d never be able to take these people on. Communities don’t have enough money to do all of this on their own.’

As professional lawyers, the EDO NSW team deals every day with community representatives like Julie, Scott and Peter who are looking to protect the environment, their communities and their assets. Our telephone advice line takes 1,500 calls a year from across NSW.

Emotions can run high, but our job is to help our clients and their communities to navigate within the law, when a clear public interest environmental law issue arises. Our Mining Law in NSW guide is for everyone who looks to the law to give them and the environment a fair go.

NOTE: The guide was funded by the NSW Government through the Environmental Trust, and includes input from the Department of Planning and Infrastructure. This has allowed EDO NSW to address a notoriously complex area of the law and we are extremely grateful for this support.

*Jeff Smith is the Executive Director of EDO NSW.

Mining Law in New South Wales: A guide for the community