EPA WA developments: 10 key things you need to know about proposed changes to the Environmental Protection Act 1986 (WA)

In brief 9 min read

On 16 April 2020, the Environmental Protection Amendment Bill 2020 (WA) was introduced into Parliament. Although described in its second reading as the most significant reform of the Environmental Protection Act 1986 (WA) (EP Act) since its inception, the changes proposed in the Bill reflect a fairly modest reform agenda targeting improvements to the existing legislative framework.

Below is our summary of the 10 (or so) key things you need to know about the reforms proposed in the Bill.

'New look' Part IV (environmental impact assessment)

Part IV of the EP Act will have a 'makeover', with the aim of making it easier to work through. Although it would look different (including some new section numbers), the underlying environmental impact assessment processes are to remain much the same, with a few tweaks to address known administrative issues. Some of the more notable changes proposed in the Bill include:

• new standalone provisions for dealing with 'significant amendments' to approved proposals;
• broader powers for proponents to amend and withdraw proposals before they are assessed by the Western Australian Environmental Protection Authority (EPA);
• tighter 'stop the clock' provisions where the EPA requests a proponent provide further information;
• broader powers for the Minister to approve the amendment of an approved proposal without further assessment, with the existing section 45C test to be replaced by a new power allowing approval of amendments that are not 'significant amendments'; and
• provisions for the withdrawal, expiry, 'splitting' and consolidation of Ministerial Statements.

Express power for other decision-making processes to be considered by EPA

In deciding whether to assess a proposal, and in considering the key environmental factors and recommendations for a proposal, the EPA will be expressly empowered to take into account other statutory decision-making processes that are relevant to the environmental impacts of the proposal.

This power will be relevant where a proposal's key impacts will be subject to other approvals processes (eg impacts to Aboriginal heritage, which will trigger a separate consent process under Aboriginal heritage protection legislation). The express power to take these other processes into account may provide more scope for the EPA to decide not to assess particular proposals or to otherwise limit the scope of factors to be considered in the environmental assessment process.

Consideration of cumulative impacts required

'Cumulative effect' is not defined and ... there is no generally accepted methodology for a cumulative impact assessment.

The proposed reforms to the EP Act will include a new section 3(1B) to confirm that the 'effect of a proposal on the environment includes the 'cumulative effect of impacts of the proposal'. 'Cumulative effect is not defined and, as many practitioners will know, there is no generally accepted methodology for a cumulative impact assessment.

Although the explanatory memorandum to the Bill describes this as a 'clarification', the consideration of the cumulative effect of impacts is not mandated under the current legislative framework and is ultimately discretionary. The proposed amendment will have implications for proponents at all stages of the environmental impact assessment process, including when determining whether a proposal is a 'significant proposal' for the purposes of Part IV. Ultimately, this aspect of the reforms would benefit from further clarification, potentially through publication of guidance material on the methodology for cumulative impact assessments, as foreshadowed by the EPA's Strategic Plan (2019-2022).

Cost recovery for Part IV processes to be introduced

The Bill provides for cost recovery in relation to the referral, assessment and implementation of proposals under Part IV and compliance audits.

These amendments will bring WA into line with other jurisdictions such as Queensland and the Commonwealth, which charge fees for similar services. Details concerning the methodology for cost recovery have been deferred to future regulations.

New provisions for bilateral agreements

In November 2019, the WA Government announced its intention to work with the Federal Government in establishing a new 'approvals bilateral', which will ultimately facilitate a streamlined approvals process for WA-based proposals. While the WA Government's position is that this bilateral agreement can be established under existing laws, a new Part VIIIA is proposed to be inserted into the EP Act to provide further colour to existing provisions and smooth the way forward.

The progress of an approvals bilateral agreement between the Federal and WA Governments is worth keeping an eye on as it will impact assessment and approval processes and timeframes for major projects in WA.

New 'opt-in' clearing referral process

If the reforms proceed, these published clearing referral documents are likely to be of keen interest to all stakeholders for their 'precedent' value.

The Bill proposes to introduce a new 'optional' referral system for clearing proposals. In short, proponents will have the option to refer non-exempt clearing proposals to the CEO for a determination as to whether a clearing permit is required.

This referral process will give the CEO a new power to effectively 'exempt' clearing proposals from the permit requirements under the EP Act. Such exemption would be personal to the referrer and cannot be transferred.

In making a determination, the CEO must have regard to statutory criteria including the size of the area, relevant environmental values, current scientific acknowledge and whether conditions are required to manage impacts. Referrals and decisions will need to be published but there is no requirement for these documents to be kept on the public record unless it later forms part of a permit application. If the reforms proceed, these published clearing referral documents are likely to be of keen interest to all stakeholders for their 'precedent' value.

New look to licencing of prescribed premises and 'voluntary' licences

Part V, Division 3 of the EP Act will be replaced by 'new look' provisions. A key change proposed is the consolidation of works approvals and licences into a single instrument which would regulate both 'controlled works' and 'prescribed activities'.

Proponents will need to navigate these new provisions carefully to ensure their licences authorise both works and emissions associated with their operations at all relevant times. As projects transition from the construction phase into the operational phase, licences will need to be amended to authorise the relevant 'prescribed activities' as they commence. Proponents will need to carefully consider how operations can be licenced during commissioning phases.

The new provisions also provide for the grant of licences to 'deal with' the carrying out of activities that do not meet the prescribed thresholds for a 'prescribed activity'. That is, operators of facilities that do not meet relevant statutory thresholds can 'opt in' to the licensing framework.

While the rationale for this new 'opt-in' regime is to provide an avenue of protection from the standard environmental offences under the EP Act for smaller operators, these operators will need to carefully weigh up these benefits against the considerable compliance and reporting obligations which may arise by operating under a 'voluntary' licence.

Part IV referrals would prevent 'related' decisions under Part V

The proposed 'new look' Part V will include new provisions preventing the grant, amendment or transfer of clearing permits or licences that are 'related' to a proposal referred under Part IV of the EP Act. These provisions are broader than existing prohibitions and will capture applications for works, activities or clearing which do not actually form part of the referred proposal but are otherwise 'connected or associated with it'. In the mining context, obvious examples of 'related' applications would include permits and licences for related 'upstream' infrastructure, such as clearing permits required for road upgrades or amendments to processing or port licences.

If enacted, these provisions will need to be considered by proponents and their contractors in sequencing approvals for all projects in WA.

New levy for environmental monitoring programs

The Bill proposes to introduce new provisions providing for development, implementation and funding of environmental monitoring programs targeting cumulative environmental impacts from 'prescribed activities'. While much of the detail will be left to regulations, these new powers are clearly intended to allow the WA Government to direct operators to work collaboratively to undertake monitoring on a regional basis or to otherwise fund such programs through payment of levies.

Other notable features of the Bill

• Increase to environmental harm thresholds: In response to stakeholder feedback, the Bill proposes increases in the thresholds for material and serious environmental harm. The threshold for material harm will increase from $20,000 to $50,000 and, for serious environmental harm, the threshold will jump from $100,000 to $500,000.
• Environmental protection covenants: New powers will allow the CEO to enter into an environmental protection covenant with the owners and occupiers of land where such a covenant is required as a condition of approval. These new covenants are expected to provide one possible mechanism for securing environmental offsets on land.
• Offences and defences reworked: Consequential changes are proposed to the offence provisions in the EP Act, responsive to the 'new look' Part V. The Bill also proposes to explicitly limit the scope of the defence provision in section 74A of the EP Act to emissions that are expressly authorised by a licence. Licence holders will need to ensure their licences explicitly authorise all emissions from their operations to ensure this defence remains available to the greatest extent possible.
• New grounds for revocation of a licence: The Bill will include additional grounds for revocation and suspension of a licence, including in circumstances where the holder fails to pay a licence fee, a development approval or planning instrument is no longer in force or the CEO considers the licence holder no longer has, or is no longer capable of exercising, 'substantial control' over the carrying out of the work or activity.
• Transitional arrangements: While transitional provisions will continue existing permits and licences in force, the CEO will have power to reissue works approvals to conform with the new regime once it is in force. In summary, undecided section 45C applications will be decided under the new Part IV provisions, undecided clearing permit applications will be deemed to be 'referrals' and undecided licence applications will be processed under the new provisions.
• Regulations: As identified above, key aspects of the reforms have been deferred to regulations which will be of keen interest to all stakeholders. The development of these regulations will also provide an opportunity to rework the 'prescribed premises' categories to fit a new-look Part V. Broad consultation on these categories will be critical.