Water Journal : Water Journal August 2011
governance water AUGUST 2011 71 Environment Protection and Biodiversity Conservation Act 1999 (Cth). The circumstances in which these approvals are required are discussed below. In addition to obtaining necessary statutory approvals, scheme participants will also need to comply with general obligations to avoid adverse environmental or health impacts under state legislation, including the Environment Protection Act 1970 (Vic) and State Environment Protection Policies, the Occupational Health and Safety Act 2004 (Vic) and the Public Health and Wellbeing Act 2008 (Vic). Efforts are being made to harmonise regulatory requirements across the states, culminating in the publication by the Environment Protection and Heritage Council of the Australian Guidelines for Water Recycling: Managing Health and Environmental Risks (Phase 1) and other related guidelines. In Victoria, these guidelines may be used as a reference document by proponents and regulators, but they have not been given formal legal status. Environment Effects Statement Under the Environment Effects Act 1978 (Vic), the Minister for Planning can require an Environment Effects Statement (EES) to be prepared and assessed in respect of a proposal that could have a significant effect on the environment. It would be unusual for the proponents of a water recycling scheme to be required to prepare an EES because -- if properly executed -- a water recycling scheme should not have a significant effect on the environment. However, if an EES is required, the EES will be scoped by the Minister for Planning and the proponent will be required to prepare an EES document. There will be a public review of the EES, which will involve the documents being placed on public exhibition and the consideration of submissions on the documents (this may involve a public hearing). No decision can be made by decision-makers under other relevant Acts in relation to the works until the EES has been submitted, the Minister for Planning has assessed the EES, and the decision-maker has taken into account the Minister's assessment. Works approval and licence The Environment Protection Act 1970 (Vic) requires occupiers of premises to obtain a works approval for the construction, and licence for the operation, of a 'scheduled premises'. The list of scheduled premises includes: • Premises on, or from, which sewage effluent, exceeding a design or actual flow rate of 5000L per day, is treated, discharged or deposited; and • Premises on, or from, which industrial wastewater effluent not generated at the premises, exceeding a design or actual flow rate of 5000L per day, is discharged or deposited. As discussed above, a licence is not required for the discharge of treated sewage if it complies with the EPA Guidelines. This exemption does not apply in respect of works approvals, so the EPA retains the power to require a works approval in respect of the works associated with the use of reused water. Nor does the exemption cover the treatment plant, so if the plant will be used to treat more than 5000L per day of wastewater, it will be required to obtain a works approval and licence under the Environment Protection Act 1970 (Vic). Planning permit Victorian planning schemes identify a number of specifically defined land uses, and regulate the use and development of land. A planning permit is unlikely to be required for the use of recycled effluent. However, the use of land for an effluent treatment plant and/or the delivery of water may require a planning permit (depending on the scale of the plant and the planning controls applicable to the land). In addition, a planning permit might be required for the construction of buildings, the carrying out of works and removal of native vegetation (if relevant). The planning permit application process involves a public exhibition process, and gives members of the community the opportunity to submit objections in relation to the proposal. Environment Protection and Biodiversity Conservation Act 1999 Under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), 'controlled actions' (being actions that will have, or are likely to have, a significant impact upon either a matter of national environmental significance or the environment of Commonwealth land) must be approved by the Commonwealth Minister for the Sustainability, Environment, Water, Population and Communities. Matters of national environmental significance include World Heritage areas, National Heritage wetlands listed under the Ramsar Convention, listed threatened species and communities, listed migratory species, and Commonwealth marine areas. The production or application of treated water would be unlikely to trigger the requirement for an approval, but it is possible that it would in rare cases. For example, approval would be required if the construction of a pipeline linking the treatment plant to the end user could impact on the habitat of a listed threatened species. If a proponent is unsure whether a particular proposal is a controlled action, it should refer the action to the Minister administering the Act for a determination as to whether the action is or is not a controlled action. Conclusion According to figures published by the Victorian Department of Sustainability and Environment, just 14 per cent of Melbourne's wastewater is recycled. This is set to change, with both large- scale and small-scale water recycling likely to be a key part of the State's response to increased demands for water, and a growing level of acceptance in the community of non-potable applications of recycled water. To give effect to a proposed water recycling scheme, parties need to be prepared to take a collaborative and consultative approach, because the success of the scheme will depend on the parties jointly addressing inherent health and environmental risks to the satisfaction of the EPA. A collaborative approach need not derogate from the ability of the parties to agree on terms and conditions that provide a satisfactory level of certainty about the security and quality of water supply, and the allocation of risks in the case of an environmental or health incident. Note: Please see overleaf for an overview of Recycled Water Regulations in NSW, SA, QLD and WA. Acknowledgement The author wishes to thank Peter George and Emily Long of Minter Ellison Lawyers for their assistance in preparing this article. The Author Jillian Button (email: jillian. firstname.lastname@example.org) is a Senior Associate with Minter Ellison Lawyers, Melbourne, practising in Planning and Environmental Law.
Water Journal September 2011
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