The Commonwealth Government has released finalised referral guidelines (Guidelines) to assist proponents and decision makers in navigating the requirements of the Environmental Protection and Biodiversity Act 1999 (EPBC Act), as it relates to koala conservation.
In April 2012, the combined Queensland, New South Wales and Australian Capital Territory koala populations were listed as 'vulnerable' under section 178 of the EPBC Act. This listing means that any action which will have, or is likely to have a ‘significant impact’ on the koala population must be referred to the Commonwealth Minister for approval before the action can commence.
The newly released Guidelines supersede the Draft Referral Guidelines released in late 2013, and the Interim Koala Referral Advice, which was released shortly after listing. The new Guidelines follow a similar approach as the Draft Guidelines but provide greater clarity on specific matters raised in the public consultation process, conducted in early 2014.
The Guidelines aim to address the complexity associated with koala protection (including distribution, migration patterns and impacts) and provide guidance which can be applied consistently across jurisdictions.
The Guidelines are intended to:
- help decide whether actions should be referred to the Commonwealth for consideration because of a potential ‘significant impact’ on the koala
- guide on the information expected to support a referral, survey planning, standards for mitigating impacts and other matters, and
- aid in determining both impacts and offsets for significant residual impacts on the koala in approval decisions.
- The general Significant Impact Guidelines 1.1 - Matters of National Environment Significance continue to apply to listed Koala species. It states that actions are likely to have a ‘significant impact’ on a vulnerable species if they ‘adversely affect habitat critical to the survival of the species’.
Key tools in the Guidelines
Habitat assessment tool
A loss of between 2 and 20 hectares of habitat critical to the survival of the koala will likely be a significant impact. The Guidelines contain a habitat assessment tool, which can be used to identify this critical habitat. The assessment tool categorises five primary koala habitat attributes, including:
- koala occurrence
- vegetation composition
- habitat and connectivity
- existing threats, and
- recovery value.
Each of these attributes is scored to indicate the value of the habitat in the impact area. This tool requires input from a suitably qualified expert and will assist in determining habitat quality for any offset requirements.
The Guidelines also contain tables, which discuss mitigation measures for a range of impacts including:
- dog attacks
- vehicle strikes
- spread of disease or pathogens
- barriers to disbursement and fragmentation, and
- degradation of habitat through hydrological change.
These tables contain desirable measures for reducing impacts on the koala population. They are ranked on their effectiveness in planning, monitoring and maintaining mitigation measures.
The Guidelines apply to all new referrals and existing assessments of actions, which may impact the koala. If your proposed action has already been referred to the Minister under the EPBC Act, and the Minister has decided whether the action is a ‘controlled action’, the proposal will not be affected. For existing undecided referrals, particular circumstances may require proponents to provide further information about their proposed actions, but as the Guidelines are largely similar to the Draft Guidelines we do not anticipate its introduction will have an onerous impact.
If you have not referred an action but the land is subject of the proposal may contain a koala habitat, we recommend that you seek technical advice as to whether the action is required to be referred to the Commonwealth Environment Department, as well as assessment at a State level.
If an action requires Commonwealth approval, offsets that compensate for the significant residual impacts of the action are considered in the assessment and approval stages. Offsets are not relevant considerations at the referral stage.
Interaction with State and Local Government
The Guidelines do not provide guidance on the requirements under state and local government laws. However, the Guidelines have been prepared in a way that allows for alignment of definitions and assessment processes with those required under state government frameworks. Key Queensland laws include:
- the Southeast Queensland Koala Conservation Estate Planning Regulatory Provisions (SPRP) - an overarching planning instrument, which regulates new development at the development assessment stage, and
- Environmental Offsets Act 2014 (Qld), which coordinates the delivery of environmental offsets in conjunction with the Queensland Environmental Offsets Policy 2014 Version 1.1.
In addition to the SPRP and Offsets Policy, State government also provides for:
- State Government Supported Community Infrastructure Koala Conservation Policy 2010
- Nature (Koala) Conservation Plan 2006 and Management Program 2006 to 2016, and
- Koala Sensitive Design Guidelines.
Proponents should be aware that approval may be required at the local, state and Commonwealth levels. Any decision not to refer to a project with a potential impact on koalas should be carefully documented, with input from suitably qualified experts, to minimise risk of compliance action in future.
If having considered your project and the Guidelines a significant impact is likely, you must submit a referral. Submitting a referral for consideration in any case will provide proponents with a concrete decision from the Department on which they can rely. If the Minister decides that the proposed action is not a controlled action requiring approval, the Department cannot later take enforcement action against the proponent for the subject matter of the referral. For this reason it is important that the referral reflects significance and likelihood of impacts, and where the scope of a project changes the referral should be re-visited.