What’s happened?

On 24 August 2011, the Department of Sustainability, Environment, Water, Population and Communities (DSEWPAC) announced proposed amendments to the Environment Protection Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

These proposals will have significant implications for the developers of projects, as they will impact upon the reach of the Commonwealth’s interest in environmental matters and affect the time and cost involved in undertaking an environmental assessment of the project and seeking the government’s approval.

Details of the amendments are set out in several documents.1 The principal document is Reforming national environmental law: An overview.2

What can you do?

The documents which have been released include a draft EPBC Act Environmental Offsets Policy3 and Australian Government Biodiversity Policy.4 These documents are available for public comment until 21 October 2011. If you need further information regarding the issues in these documents, or if you wish to prepare a submission concerning them, we are happy to help.

A number of amendments to the EPBC Act are also proposed, and the more important of those proposed amendments are summarised below. Details of these amendments have yet to be announced, and it remains to be seen whether and to what extent the announced amendments are reflected in amending legislation. We will closely follow the progress of the amending legislation. When these details are released, we will be happy to assist you with further information about them and with preparing a submission concerning them.

Proposed legislative amendments

DSEWPAC’s announcement responds to the review of the EPBC Act which was conducted by Dr Allan Hawke AC and which was reported on 21 December 2009.5 Our summary of that report can be found in our article ‘Reform proposals for Commonwealth EIA’.6 The Hawke report recommended 71 amendments to the EPBC Act, but few of those are now proposed to be adopted.

The more important changes now proposed are set out below.

New strategic approaches to environmental assessment

New regional environmental plans (REP), strategic assessments (SA), and whole-of-ecosystem management in priority areas will identify where developments can occur. Broad classes of actions identified by the Minister may be approved if they are consistent with the REPs and SAs without further assessment under the EPBC Act. If the proposed action is inconsistent with the REPs and SAs, the proponent can still use the current referral processes to obtain EPBC Act approval. The government expects these new approaches will reduce the number of environmental impact assessments carried out on a project-by-project basis, which would result in quicker determinations, reduction in unnecessary compliance costs, and more certainty to proponents. If the strategic approaches are not suitable for a proposed action, individual project assessments continue to be available, albeit in a more streamlined manner.

Significant impact determinations

In an effort to streamline assessment processes, the EPBC Act will be amended to grant the Minister a power to create binding determinations as to particular classes of actions that will or will not have a significant impact on matters of national environmental significance. Proponents will have legal certainty about whether their project requires referral and assessment by allowing them to do a self-assessment in accordance with the determination. This is hoped to avoid situations where proponents submit a referral for legal certainty even if it is likely that the proposed action will be found not to need an assessment.

No more ‘assessment on referral information’

A faster assessment method called ‘approval on referral information’ will replace the ‘assessment on referral information’. Proponents will be able to obtain a final approval decision in 35 business days for projects that meet specific criteria such as compliance with pre-referral requirements, demonstrating impacts of the action with high degree of certainty, a single matter of national environmental significance triggered by the proposed action, and clear documentation of avoidance, mitigation, rehabilitation and compensation measures to reduce the impacts of the action to an acceptable level.

Two new matters of national environmental significance

‘Ecosystems of national significance’ is proposed as a new matter of national environmental significance. The ‘matter protected’ will be the ecosystem itself, and will be declared as such through the REPs, SAs and conservation agreements. ‘Vulnerable ecological communities’ is also proposed to be added as a matter of national environmental significance. Vulnerable species (together with endangered and critically endangered species and ecological communities) are already a matter of national environmental significance, but vulnerable ecological communities are not. This anomaly is proposed to be fixed by the proposed amendment.

Integrated approach to biodiversity

A draft Australian Government Biodiversity Policy has been issued for consultation which will provide a framework for all Australian Government action on biodiversity conservation. A market-based mechanism for supplying environmental offsets will provide for the use or accreditation of biodiversity banking schemes which meet national standards. An Environmental Offsets Policy has also been released to explain the role of environmental offsets to compensate for environmental impacts of proposals.

One national list of threatened species and ecological communities

Currently, the government maintains a single list of nationally threatened species and ecological communities. Given that not all species threatened in one jurisdiction are threatened in others or nationally, a single national list of threatened species would assist in reducing inconsistencies between jurisdictions.

How will these proposed amendments affect your business?

The proposed amendments to the EPBC Act seek to provide more streamlined processes, which in turn the government hopes will lead to less red tape, more upfront and greater certainty for proposed actions, faster timelines for determinations, and better environmental outcomes.

Businesses will be required to contribute to the costs of assessment. Currently, cost recovery under the EPBC Act is very limited. With the proposed amendment to implement cost recovery mechanisms, the government hopes to ensure that resources to undertake these assessments are linked with demand. This is expected to lead to more timely and more robust environmental assessments.