KIMBERLEY WHALE WATCHING

Submission in response to

EPA Report 1444: Browse LNG Precinct, James Price Point, Shire of Broome

Kimberley Whale Watching

Appeal

Report and Recommendations of the EPA for the Browse Liquified Natural Gas PrecinctAssessment number 1730.

The decision of the EPA to grant conditional approval to the Minister for State Development for the establishment of the Browse liquified natural gas precinct should be rejected and reassessed.

The Strategic Assessment for the James Price Point development is totally inadequate and does not provide for an “appropriately high level of assessment” to ensure that the derived proposals of the foundation proponent, Woodside and its join venture partners, and other proponents can be implemented without “significant deleterious impacts” on the environment.

The scope of this assessment has not allowed for consideration of cumulative impacts from the exploration of oil and gas in onshore reservoirs in the Canning Basin and adjacent to the James Price Point industrial precinct, and in nearshore areas in both state and commonwealth waters along the Dampier Peninsula between the Lacepede Islands and Broome. The scope of this assessment has not allowed for consideration of downstream processing of oil and gas (such as fertilized plants and gas to liquids) outside of the precinct boundaries, but adjacent to the James Price Point development.

The scope of this assessment does not allow for consideration of the possible expansion of the gas processing facility above 50,000,000 tonnes per year (50 Mtpa). This is a distinct possibility given the exploration success of Buru Energy in the Canning Basin and the likelihood of further discoveries in the Browse, Canning and Rowley sub-basins.

For these reasons the assessment of the James Price Point development as a strategic proposal cannot form the basis for a “high level assessment” by the EPA to assess properly the cumulative impacts of the development of the oil and gas industry at James Price Point or the surrounding area.

These obvious fatal flaws render this assessment totally inadequate as the EPA does not have “sufficient information” to make “reasonably informed decisions” on the potential impacts of the proposed and associated developments.

We recognize that the choice of an industrial location on the Kimberley coast has been an arduous process that has frustrated the State Government, the proponents and the Kimberley community. The EPA has been given the onerous task, in a politically charged environment, to rule on the James Price Point development without having the latitude of assessing other options such as Gourdon Bay, piping the gas to existing infrastructure in Karratha or considering floating LNG or other offshore options.

We also note that the EPA has stated that any derived proposal such as that of the foundation proponent Woodside and its joint venture partners will receive automatic conditional approval because their development was recognized in the Strategic Proposal and Assessment. This should be questioned under the EPA’s own guidelines. “The EPA may refuse to decide that a future proposal is a derived proposal if:

1.The environmental issues raised by it were not adequately assessed during the assessment of the strategic proposal2.There is significant new or additional information that justifies the reassessment of the issues raised by the future proposal, or 3.There has been a significant change in the relevant environmental factors since the strategic proposal was assessed.”

The strategic assessment at the James Price Point development by the EPA has not adequately assessed the environmental issues raised by the strategic proposal nor has it properly considered “significant new or additional information that justifies the reassessment of both this strategic proposal and any future proposals.

There is no opportunity for the reassessment of the James Price Point development (once the approval for the strategic assessment has been given) under Commonwealth law (EPBC Act).

Section 158A states that the introduction of any new evidence after the approval has been given cannot affect that development approval or any future expansions of the project. There is a clear contradiction between the WA EPA’s stated position and that of the Commonwealth Government at law (EPBC Act), so there is no certainty that any future proposals under the strategic assessment will have to be reassessed.

Despite these limitations, the specific environmental assessment of the James Price Point Industrial Precinct and the report presented by the Chairman for the EPA need to be considered on their merits.

Our objection to the granting of the conditional approval for the James Price Point industrial development area is also based on the following considerations:

Marine Fauna

The EPA has recognized that “whales, dolphins, dugong, turtles and fish are important inhabitants of the marine environment at James Price Point. Turbidity from dredging, loss of habitat, oil spills, industrial discharges, noise, light and vessel strikes have the potential to adversely affect these animals”.

The EPA states that “the whale population requires careful protection consistent with state and federal laws”.

The coastal waters off James Price Point in both state and federal waters are part of the Australian Whale Sanctuary. The WA State Government and Federal Governments also have a clear legal and moral obligation to protect individual animals within this population. The Department of Environment and Conservation already goes to considerable lengths to rescue stranded whales and individual whales tangled in ropes and fishing gear and carefully regulates vessel interaction for recreational boating and whale watching in western Australian waters.The same precautionary principles should apply toheavy industrial developments in Australian waters along the west coast.

The Australian Government strongly condemns the hunting of individual whales by the Japanese whaling fleet in the Antarctic waters within the Australian whale sanctuary and recently and publicly condemned South Korea’s proposal to start hunting Minke whales.

A recent report “An Unusual Mortality Event in the West Coast Population of Humpback Whales” (D. Coughran and N.Gales) reported a dramatic spike in reported deaths and strandings of Humpback whales along the West Australian coast. These deaths followed, but have not been linked to the Montara oil spill disaster on the Kimberley coast.

The EPA has acknowledged that the Kimberley coast is a critical calving ground for Humpback whales and that the area between the Lacepede Islands and Camden Sound is an important calving area.

The EPA has not acknowledged that the area between Eco Beach and and the Lacepede Islands and including the waters around Broome and James Price Point as an important calving and resting area. Recent community surveys and whale watching interaction logs held by DEC clearly show that this is an important area for Humpback whales.

There are clear deficiencies in the available scientific information on the distribution and concentration of Humpback whales along the Kimberley coast and the relative importance of the different locations for cows and calves.

There are also clear contradictions between the results of Woodside funded surveys which have been relied upon by the EPA, and community based surveys. The EPA states that the whales migrate past James Price Point each year with about 95% of these individuals passing more than 8km offshore.

The most up to date survey on the distribution of Humpback whales in the James Price Point area (2012 Broome Community Whale Survey) has recorded over 450 whales within 6km of the coast at James Price Point between the 1st and 18th July 2012.

There is clear evidence that the coastal waters off James Price Point are critical habitat for the whales. We propose that the EPA does not have sufficient up to date information on the Humpback whale population in Kimberley waters to make an informed decision on the likely threats to Humpback whales from the James Price Point development at both a population or individual whale level.

We propose that the EPA needs to commission further independent surveys to test the contradictions between industry and community based surveys.The Woodside surveys That the EPA has relied on are already three years out of date.

The EPA has acknowledged the creation of the Camden Sound Marine Park by the state government. This can be considered as one of the environmental offsets for the James Price Point development.

The main calving grounds for the Kimberley’s Humpback whales (Breeding Stock D) extend from Eco Beach to Camden Sound and cover an area of around 60,000km2. The area set aside as a whale conservation zone in the Camden Sound Marine Park covers approximately 3% of these calving grounds. Fifty per cent of the marine park is left open to mining, oil and gas exploration and development, drift-net fishing and trawling. This could realistically wipe out any perceived protection for whales within the marine park.

Eighty five percent of the main calving grounds for the Kimberley’s Humpback whales have been left open for oil and gas exploration and development.

There is a clear risk to the survival of these whales at a both a population and individual level.

The EPA has noted that “the population of Humpback whales has continued to increase exponentially since commercial whaling ceased off the west coast in the 1960s, despite the significant increase in shipping and offshore hydro carbon production due to the advent of the iron ore and petroleum industries in Western Australia over the same period.” The EPA fails to point out that there has been no significant mining and petroleum development in the Kimberley calving grounds over that time. The success of the population recovery is in part due to the calving grounds , up until now, being protected by their isolation from major industrial development and disturbance.

The Montara oil spill disaster clearly demonstrates the potentially catastrophic risks to the marine habitat and Humpback whale population along the Kimberley coast. The EPA has concluded that “while there may be some impact on individuals, its objectives for the protection of whales and turtles at the population level are likely to be met.”

The EPA has an obligation to adopt a precautionary approach to the development in assessing the cumulative impacts and potential risks to threatened migratory species. The EPA has not met this requirement.

Benthic Habitats

The EPA has recognized that “dredging and construction have the potential to adversely affect the benthic (seabed) habitats that support algae, seagrass, scattered corals and filter feeders that are an important foundation of marine ecosystems in the precinct area”. The EPA has acknowledged that there is uncertainty about predictions of the dredging activities based on the modeling undertaken by Woodside and the Western Australian Marine Science Institute.

The dredging will take place continuously for at least 21 months and excavate at least 34 million tonnes of dredge spoils. The EPA has noted that the zone of influence for the dredging could extend from Beagle Bay in the north to Gantheume Point in the south. The modeling that has been relied upon by the EPA does not include consideration of the movement and transport of sediments under severe cyclonic conditions. The EPA’s assessment does not include an assessment of the fate of dredge spoils (34 million cubic metres) that will be dumped in Commonwealth waters adjacent to the James Price Point development. While the EPA may have decided that consideration for the fate and effects of these dredge spoils is outside its jurisdiction, once they have been dumped in

commonwealth waters, they have a clear obligation to consider this as part of the assessment. Cyclones are a common occurrence along the Dampier Peninsula, and should not be considered as an “act of God”. The effects of these dredge spoils under cyclonic conditions could potentially destroy the benthic habitat from Roebuck Bay to Beagle Bay, including the turtle feeding, breeding and nesting areas around the Lacepede Islands.

The EPA has clearly not adopted a precautionary approach to this issue, nor has it sufficient information to make an informed decision.

Marine Environment Quality

The EPA “aims to ensure that emissions to the marine environment do not adversely affect designated environmental values such as ecosystem health,” and that “the quality of the marine environment is maintained by ensuring that water, sediment and biota are free of harmful levels of contaminants.” This aim is clearly unachievable given the potential and acknowledged impacts of the dredge spoils.

The emissions to water and their potential impacts to the marine environment have not been properly considered in this report. These contaminants include copper and compounds, arsenic and compounds, mercury oil, biosides and corrosion inhibitors to name a few.

The standards that apply to the offshore oil and gas industry and outlined under the national pollution inventory clearly state minimum reporting threshold levels that may be too high to guarantee that they have no lethal effects in the marine environment off James Price Point. The oil and gas industry is allowed to discharge between 30-50mg/l of oil in the production water that they discharge.

Billions of litres of produced formation water will be discharged every year. The EPA should adopt a precautionary approach and review the national pollution inventory standards. This should be a minimum requirement, especially in the wake of both the Montara and Deepwater Horizon oil spills and the massive discharges of contaminants into the marine environment at James Price Point.

Groundwater

The proposed gas refinery at James Price Point is estimated to use around 8 billion litres of water per annum, which is approximately one and a half times the current requirement for the Broome Community. The EPA has no information on how this will affect the Broome and Canning Basin aquifers as no testing has been completed.

Industrial use of water should be a critical part of the EPA’s assessment. No decision or approval should have been handed down until this issue had been adequately assessed.

If there is insufficient water available from these aquifers, where will the water come from? Will the water come from a desalination plant or from a dam on the Fitzroy River?

The cumulative long term impacts of all of these options should have been considered as a priority in the assessment.

Greenhouse Gases

The EPA report states that the annual emissions of carbon dioxide at an LNG production rate of 50 Mtpa would be 41 million tonnes per annum, based on an average of 10% co2 content in the feed gas.

The EPA has recommended that any “future proponents offset remaining greenhouse emissions (particularly reservoir gas emissions) for the life of the project”. The EPA has recommended that the proponents for the James Price Point development offset their emissions by investing in a “co-operative fire management strategy with traditional owners and other land managers across the Kimberley to limit late season fires to reduce greenhouse emissions from burning.

The EPA’s recommendation is fraught with danger, and is irresponsible given that there is no scientific basis for its recommendations. Investment in the Commonwealth Savannah Burning Initiative as a way of offsetting emissions has not been researched or tested under Kimberley conditions.

No scientific studies have been completed that show any measurable reduction in CO2 emissions from fire abatement programmes in the Kimberley. No scientific studies have been completed that examine the pros and cons of these programmes on the conservation

and biodiversity values of the Kimberley. No studies have been undertaken to examine the effects on the water quality and boidiversity of the rivers and how the bioaccumulation of organic carbon and ash in the marine environment from river inflows will affect marine biodiversity. The EPA’s recommendation could also direct investment into the Department of Environment and Conservation’s programmes, setting up a conflict of interest.

DEC has a regulatory function to provide oversight for some aspects of the James Price Point development and its operations as outlined in the EPA report. DEC should not be receiving any commercial benefit from any mining offsets from the James Price Point development if they are to remain as an independent regulator.

Conditions

Many of the conditions that have been set out by the EPA are unlikely to reduce the environmental impact of the development or ensure that the public has access to data, plans, programmes and surveys. For example, condition 29 states that “all validated environmental data be made publicly available, except where it can be demonstrated that it is commercially sensitive information or where publication would put important environmental assets such as dinosaur footprints or threatened species at risk.

The environmental monitoring for the developments will be carried out by the proponent and be self regulating. Employees will no doubt be required to sign confidentiality agreements. The environmental monitoring, the reporting and release of information will be controlled by the proponent.

The environmental monitoring should be carried out and reported on by an independent third party.

The Environmental Protection Authority has attempted to deliver a comprehensive environmental assessment of the James Price Point Industrial development. The EPA has not had sufficient time to prepare this report, nor has it had sufficient information to make an informed decision on what, should be, a high level assessment.

The political pressure to deliver a decision before the 2013 State election, and to enable Woodside to make a final investment decision by 2013 has undermined this process.

The manner in which the environmental assessment has been conducted and the content of this report has done nothing to enhance the reputation of the EPA, and has only served to undermine the public’s confidence in the EPA’s ability to deliver an independent

assessment. This report has highlighted many deficiencies in the strategic assessment process, and its ability to provide any real environmental protection in the face of these massive industrial developments.