Water data and the legitimacy deficit: a regulatory review and nationwide survey of challenges considering cumulative environmental effects of coal and coal seam gas developments

ABSTRACT

Environmental water management in relation to groundwater occurs mainly by controlling groundwater withdrawals under water and environmental assessments and approvals, rather than by actively managing groundwater rights for environmental purposes. Despite apparently close regulation of coal mining and coal seam gas developments, significant public concerns remain regarding the assessment and approval processes that seek to control their cumulative effects on groundwater-dependent ecosystems. This paper analyses a key element of concern: regulatory aspects of water data relevant to assessments and approvals. It outlines a three-part framework for considering requirements for water information in the regulatory context. It then analyses Australian federal legal requirements in relation to water information and data from a new nationwide, exploratory survey of groundwater professionals. Both suggest improved legal measures are required to govern the nature of groundwater data that is produced by governments and proponents, and how and when it is produced.

KEYWORDS:

• Groundwater
• law
• coal mining
• coal seam gas
• data
• information
• legitimacy
• water law
• environmental law
• groundwater-dependent ecosystems

Acknowledgments

This work benefited from thoughtful feedback from Amanda Cravens, Nicola Ulibarri, Anne Siders, Jason Schroeder, research assistance from Tyrone O’Connell, and helpful feedback from two anonymous reviewers. I also express my sincere thanks to all the survey participants, and to IAH (Australia) and the National Centre for Groundwater Research and Training for hosting the lecture tour that gave rise to the survey.All errors remain those of the author.

Notes

1. Mining or petroleum and gas legislation and environmental legislation also regulate these activities at the state level, but a detailed discussion of these laws is outside the scope of this paper.

2. These include State government departments and agencies, local government, water utilities, irrigation districts, and regional natural resources management agencies. Water Regulations 2008 (Cth) rr1.03(1), 7.10; Bureau of Meteorology, Persons and Classes of Persons (2010), http://www.bom.gov.au/water/regulations/schedules/document/Persons_and_Classes_of_Persons.pdf.

3. See http://www.bioregionalassessments.gov.au/.

4. House of Representatives Hansard, Second Reading Speech (Tony Burke), Environment Protection and Biodiversity Conservation Amendment (Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development) Bill 2012, 22 March 2012, pp 3956–7.

5. See http://www.iesc.environment.gov.au/committee-advice/proposals.

6. Approved by the Human Research Ethics Committee of The University of Melbourne, HREC 1,648,051.1.

7. International Association of Hydrogeologists (Australia)/National Centre for Groundwater Research and Training Distinguished Lecture, ‘Regulating the Cumulative Impacts of Groundwater Withdrawals: Australia and Further Afield’, delivered in Melbourne, Sydney, Canberra, Brisbane, Townsville, Perth, Adelaide, Darwin, and Hobart from Oct-Dec 2016.

Additional information

Funding

This work is based on research funded by the University of Melbourne Early Career Researcher Grants Scheme (#502356) and the Australian Research Council (#DE180101154).

Notes on contributors

Rebecca Nelson

Rebecca Nelson is a Senior Lecturer, Melbourne Law School, University of Melbourne, and Fellow (Non-Resident) of the Stanford Woods Institute for the Environment at Stanford University. Dr Nelson’s main areas of research lie in domestic and comparative natural resources law. A particular focus is the interaction between water law and environmental law, and designing legal structures to deal with complex, dynamic, interconnected and uncertain natural systems. The regulation of cumulative environmental effects is a key context for exploring these challenges.