State environment protection policies (SEPPs) are subordinate legislation made under the provisions of the Environment Protection Act 1970. The SEPP provide more detailed guidance on the application of the Act and are used to achieve the Act’s policy objectives. The powers of a SEPP cannot exceed those provided in the primary Act.
In the context of the “Water for Victoria” plan, the Victorian Government committed to update State legislation on waters and set a single instrument (SEPP Waters) to guide water quality management and protection in Victoria, covering surface waters, estuarine and marine waters and groundwater across the State.
As part of developing the new SEPP (Waters), a draft version of the SEPP was published online on 26 February 2018 and subject to a four-month public consultation process by the Department of Environment, Land, Water & Planning (DELWP) and the Environment Protection Authority (EPA).
A total of 83 submissions were received and were taken into account in the finalisation of the SEPP Waters.
On 19 June 2018 AGL presented a submission in the SEPP (Waters) public consultation process. In its submission, AGL took special interest in Clause 22 of the draft SEPP, which prescribed that the EPA could not authorise new wastewater discharges in high conservation significance areas (such as Westernport bay, a Ramsar Wetland).
AGL argued in favour of weakening the prohibition on new wastewater discharges, specifically:
This submission was made after AGL had announced Crib Point (in Westernport Bay) as their preferred site for a liquefied natural gas (LNG) import terminal. The terminal would be capable of dumping up to 450,000,000 litres per day of cold, chlorinated seawater back into the bay.
AGL was clearly aware that the SEPP (Water) could derail their proposed project.
At the same time as trying to erode Victorian water policy, AGL was also preparing to submit a Referral Form to the Victorian Planning Minister, who would determine whether AGL’s LNG import terminal would be subject to an Environmental Effects Statement process. This is the highest level of environmental assessment in Victoria.
Obtaining a more favourable version of the SEPP (Waters) would certainly make this assessment process easier for AGL.
DELWP/EPA stated in the Summary of Comment and Response Report that the new SEPP (Waters) retains provisions that have been in statutory policy since 1988, and the objective of this provision is to ensure that beneficial uses were not further threatened by new wastewater discharges. The standard set by this clause is such that no new wastewater discharges have been authorised since a similar requirement was introduced into statutory policy in 2002.
While there were no substantial modifications to the original draft, a new subclause was introduced that gives some discretion to the EPA to approve wastewater discharges if they “protect the beneficial uses” in a high conservation significance area.
Legal advice obtained by Environment Victoria suggests that: