Rigged Russell Vale recommendation: Concerns raised that NSW Planning advice to Wollongong Coal is unlawful

Published: October 19, 2020

Lock the Gate Alliance has raised concerns that contradictory Planning Department advice provided to Wollongong Coal suggesting the mining company could remove 10 million litres from the Sydney water drinking catchment without obtaining a water licence may be unlawful.

The Independent Planning Commission hearing into Wollongong Coal’s planned Russell Vale coal mine expansion is happening today and tomorrow.

LTGA has received legal advice that loopholes recommended by the department so Wollongong Coal can access the water - roughly one fifth of the water available in the Upper Nepean River Tributaries Headwaters Management Zone - may not be lawful.

“The Planning Department has suggested to the IPC that it would be okay for Wollongong Coal to “offset” taking 10 million litres from the catchment area using its groundwater licences,” said Lock the Gate Alliance NSW spokesperson Georgina Woods.

“It appears the department has done this because no clear path exists for Wollongong Coal to ensure it has licences to account for the surface water its Russell Vale expansion will cause to be lost from the drinking water catchment.

“Instead, the Department is proposing ‘alternative mechanisms’ which we argue are not lawful and are to be put in place after the IPC has made its decision. Neither the Department of Planning nor the Independent Planning Commission has the authority to bypass the Water Management Act and sustainable water planning for Greater Sydney’s drinking water catchment. 

“It’s bad enough that the department recommends further mining in the drinking water catchment of the Greater Sydney area, but to propose unlawful take of water without a licence is a dangerous development that should worry everyone who relies on the proper management of this water.”

Under the Water Management Act, Wollongong Coal would require a water access licence to take 10 million litres of surface water that will be lost as a result of the mine. But as the trading between water management zones is not permitted, the Water Division of the Department has advised that such licences will be difficult to obtain (see page 34 of this document). 

The only ways to obtain water access licences, which are legal property in NSW, is by buying one on the water market, or being granted one via a “controlled allocation” process, which can only occur in areas where there is available unallocated water. 

To get around this problem, the Planning Department recommended (see page 31 of this document) that in the event Wollongong Coal could not lawfully acquire the necessary water access licences for its mine, it would negotiate a range of “alternative mechanisms,” with the Natural Resources Access Regulator and Water NSW, such as “offsetting” surface water take with groundwater licences.

However, the Water Division of the Department advised (Page 3) this would not be permitted and recommended that the company be required to obtain its water access licences prior to a decision being made by the Independent Planning Commission.

Despite this advice, the Department of Planning has persisted with its recommendations and has included a condition in the draft approval which suggests that instead of obtaining the necessary licences, there may be “an alternative mechanism agreed by the Planning Secretary and DPIE Water.” (see Condition B12 on page 11). 

“Legal advice provided to Lock the Gate has found that ‘alternative mechanisms’ proposed to get around our water laws are highly likely not to be lawful,” said Ms Woods.

“We are alarmed at the suggestion that extra-legal arrangements might be made to allow this company to take surface water from Sydney’s drinking water catchment without lawful licence to do so. There’s no mechanism in the Water Management Act to do what the Department of Planning is proposing, as was made clear to them by the water agency. 

“The Independent Planning Commission relies on the Department of Planning to provide it with an assessment of coal mine projects that is objective, accurate and consistent with law. The IPC needs to be able to rely on the department’s assessment, so to see it proposing essentially unlawful mechanisms to allow a coal mine to bypass water laws inside the most sensitive area of our water catchment is quite shocking.

“We are calling on Planning Minister Rob Stokes to investigate how his department came to make a fundamental error and a potentially unlawful recommendation as part of its assessment of this mine. We ask that he confirm the government has no intention of subverting the Water Management Act to give this coal mining company an avenue to take non-existent water and do further damage to Sydney’s drinking water catchment.”

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  • Dom Geiger
    published this page in Media Releases 2020-10-19 12:24:05 +1100

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