Written by Matthew Austin, Sarah McCamley, Stephanie Garibaldi and Julius Moller
In November 2021, the Department of Environment and Science (DES) released its Annual Strategic Compliance Priorities (ASCP), outlining its views, as Queensland’s environmental regulator, on key focus areas and associated compliance strategies for the 2021 – 2022 year.
Of note is the inclusion of the Great Barrier Reef (GBR) – and in particular, agricultural activities conducted by producers in this catchment – as a key area of focus. This follows the recent commencement of a suite of expanded environmental protections for the GBR catchment on 1 June 2021.
1. A renewed focus on the Great Barrier Reef
The ASCP outlines the DES’s compliance strategy "to engage, monitor and respond to environmental obligations under the reef regulations”, with a particular focus on activities undertaken by regulated agricultural producers across the GBR catchment. Emphasis is placed on voluntary compliance with the regulatory regime; indeed, an outcome of the strategy is to “inform and enable” the agricultural industry to achieve such compliance, with enforcement action to be taken where there is non-compliance.
The ASCP also includes several targets to be achieved during the 2021 – 2022 period, including:
- the provision of continued guidance on the regulatory requirements to affected stakeholders, prioritising newly regulated areas and commodities;
- the implementation and continuation of compliance programs for new and existing regulated areas and commodities respectively;
- the implementation of assessment and compliance functions for the DES’s prescribed standards in relation to commercial cropping and horticulture in the GBR catchment; and
- focusing inspection activities in high-risk areas for reef water quality and undertaking further compliance activities in line with the DES compliance strategy.
It is apparent that the DES’s compliance strategy is largely built around the expanded protections for the GBR catchment recently introduced into the Environmental Protection Regulation 2019 (Qld) (EP Regulation).
2. Expanded legislative protections for the Great Barrier Reef
On 1 June 2021, the Environmental Protection (Great Barrier Reef Protection Measures) and Other Legislation Amendment Regulation 2019 (Qld) (GBR Protections Regulation) entered into force, with the aim of strengthening and expanding GBR protection measures to improve the quality of water entering the catchment.
Prior to the amendments, runoff restrictions were already in place for three major GBR catchments – Mackay Whitsunday, Wet Tropics and Burdekin – for grazing and cane growing. As a result of the GBR Protections Regulation, the restrictions under the EP Regulation now extend to new commodities and areas such as banana production, grain and water culture in all six major catchments that run into the GBR, including those within the Cape York, Fitzroy and the Burnett Mary regions.1
3. What do the expanded protections cover?
The amendments to the EP Regulation now require proponents applying for or amending environmental authorities (EAs) to address the “residual impact” of their activities on the GBR catchment to achieve no net decline in reef water quality. The administering authority must refuse to grant an application if it considers that the relevant activity will, or may, have a residual impact on the GBR catchment and cannot be adequately counterbalanced by offset measures.
Under s 41AA of the EP Regulation, the “residual impact” of a relevant activity includes the presence of fine sediments and dissolved inorganic nitrogen in GBR catchments released into the water as a result of that activity, and which will remain or will be likely to remain in the water despite mitigating measures.2
The protections also apply to an expanded range of Environmentally Relevant Activities (ERA) (listed under Schedule 2 of the Regulations) and resource activities such as mining activities, sewage treatment, waste disposal and land-based aquaculture (point source pollution) releasing nutrients and sediments into GBR waterways.3
While existing point source emitters are not required to apply for new EAs where their operations remain consistent with their existing approvals, they will be required to obtain new or amended EAs if their operations expand or significantly change.4
In applying for or amending an EA, proponents will now be required to propose mitigation measures as part of their applications. In relation to such measures, the DES has published a Point Source Water Quality Offsets Policy 2019 which provides helpful guidance regarding the range of measures that can be implemented to offset water quality impacts and meet the requirement of no residual impact under the EP Regulation.5
4. Recent attempts to repeal amendments
The GBR Protections Regulation has encountered some criticism, with a private members’ Bill introduced to Parliament in April 2021 seeking to repeal the Regulation. In October 2021, following a public inquiry into the Bill, the Queensland Parliament’s Health and Environment Committee issued its recommendation that the Bill not be passed.
As a result, the expanded protections under the EP Regulation continue to govern both existing and new projects conducting operations in the six listed GBR catchment areas,6 and affected proponents should remain mindful of the need to address the legislative requirements when making EA applications.
1 Explanatory Notes to the Environmental Protection (Great Barrier Reef Protection Measures) and Other Legislation Amendment Bill 2019, pg 4 (Explanatory Notes).
2 EP Regulation, s 41AA 4)(a), (b).
3 Explanatory Notes, pg 2.
4 Explanatory Notes, pg 6.
5 Explanatory Notes, pg 6.
6 Queensland Parliament Health and Environment Committee, Report No. 14 on Environmental and Other Legislation (Reversal of Great Barrier Reef Protection Measures) Amendment Bill 2021.