The Commonwealth Department of the Environment has introduced two Bills to Parliament to amend the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”) and to implement its One Stop Shop policy for environmental approvals. The One Stop Shop policy aims to cut green-tape by removing the need for environmental assessment and approvals at both the State and Commonwealth levels. Once a State or Territory’s environmental planning system has been accredited through the execution of a ‘bilateral agreement’, it may conduct the whole approvals process.On 14 May 2014, the two Bills were introduced by the Minister for the Environment, Greg Hunt. In addition, approvals bilateral agreements between the Commonwealth and NSW, and the Commonwealth and Queensland respectively were tabled in Parliament. These two bills and the two new agreements are discussed below.

Background

On 16 October 2013, the Minister for the Environment announced a three-step framework for the implementation of the Government’s One Stop Shop policy. The framework includes each State and Territory signing a Memorandum of Understanding (“MoU”) with the Commonwealth and then entering into an assessment bilateral agreement, followed by an approval bilateral agreement.

An assessment bilateral agreement provides for a single environmental assessment process conducted by the State. At the completion of the assessment, the State provides a report to the Commonwealth Government, assessing the likely impacts of the project on matters of national environmental significance. Following the assessment stage, the State and the Commonwealth each make a decision on the approval of the project and on conditions to meet differing requirements, resulting in two approval decisions and two sets of conditions.

An approval bilateral agreement provides for a single approval process, whereby the State or Territory assesses the likely impacts of a project on the environment and makes a decision on whether to grant approval, accounting for both State or Territory concerns and matters of national environmental significance (“MNES”). MNES is defined in the EPBC Act.

MoUs have now been finalised with all States and Territories. Assessment bilateral agreements have been agreed with Queensland and New South Wales. Most other States and Territories plan to enter into assessment bilateral agreements later this year.

On 14 May 2014, the first two draft approval bilateral agreements with NSW and Queensland were released for public comment. At the same time, the Minister introduced two Bills, the EPBC Amendment (Bilateral Agreement Implementation) Bill 2014 and the EPBC Amendment (Cost Recovery) Bill 2014 into Parliament. These Bills would, if passed, amend the EPBC Act to facilitate the operation of bilateral agreements. The changes proposed by these Bills are outlined below.

We expect that complementary legislative amendments will be introduced in NSW. The Queensland Government has already introduced a bill to amend the State Development and Public Works Organisation Act 1971 (Qld) for the purpose of the proposed approvals bilateral agreement between Queensland and the Commonwealth.

EPBC Amendment (Bilateral Agreement Implementation) Bill 2014

This Bill proposes a number of amendments to the EPBC Act to further the bilateral agreement process. As the EPBC Act already provides for bilateral agreements, the proposed amendments involve changes to existing provisions to implement the One Stop Shop policy.

Significantly, the Bill will remove an exclusion that previously prohibited States and Territories assessing and approving large coal mining and coal seam gas developments that are likely to have a significant impact on a water resource – often referred to as the 'water trigger' under the EPBC Act.

Further, the Bill clarifies that approval bilateral agreements may include approvals made by any person or organisation authorised by the State or Territory, such as local governments.

The Bill also clarifies various issues that were previously outstanding or uncertain. For example, it provides that where the Environment Minister or the relevant Minister of a State or Territory declares that an action specified in an agreement is no longer covered by the agreement, a person proposing to take the action is deemed to have referred the proposal to the Environment Minister under the EPBC Act.

Other amendments are more minor. The Bill will enable States and Territories to make minor amendments to statutory processes without the need for reaccreditation. Further, the issue of what happens when an approval bilateral agreement is suspended or cancelled is clarified by ensuring that the Commonwealth can step in and complete the approval process.

The proposed amendments will also allow all States and Territories to request advice from the Independent Expert Scientific Committee for Coal Seam Gas and Large Coal Mining Development.

Draft approval bilateral agreements for NSW and Queensland

The draft agreements are broadly similar in their structure and terms, with some departures specific to each State’s environmental context. Both agreements set out, in Schedule 1, several classes of actions which will not require approval under Part 9 of the EPBC Act. In NSW, these include development for which development consent is required, approved State significant infrastructure, transitional Part 3A projects and action taken in accordance with a licence. In Queensland, the classes of action will include an authorised resource activity and a declared coordinated project, including actions wholly or partly within the Great Barrier Reef Marine Park.

The draft agreements provide that the relevant State decision maker will request the proponent of an action to identify any likely impacts on MNES. For the purposes of the draft agreements, MNES are defined as those matters protected by Part 3 of the EPBC Act as specified in Schedule 1 of the respective agreements.

In both States, the general approach to assessment requires the decision maker to obtain sufficient information on the impacts of the action on each MNES to be able to make an informed decision. A key consideration for a decision maker will be the avoidance of unacceptable or unsustainable impacts on relevant MNES, by applying the “avoid, mitigate, offset” hierarchy of principles stated in the draft agreements. The draft agreements provide that the extent of assessment will be proportionate to the level of likely environmental risk. In Queensland, the decision maker will be able to consider whether or not the proponent is a suitable person to be granted approval, based on that person’s history in relation to environmental matters.

EPBC Amendment (Cost Recovery) Bill 2014

The EPBC Amendment (Cost Recovery) Bill 2014 is unrelated to the Commonwealth’s One Stop Shop policy. This Bill provides the Commonwealth with a means to recover costs for environmental assessments and some strategic assessments under the EPBC Act. It is intended that the fees will be in place from 1 July 2014. However, this depends on the legislation being passed by both Houses of Parliament, thus the real implementation time is likely to be later.

The fees will apply to all projects other than small business projects (which are exempt) and projects for which the Minister may determine to waive the fee. Fees will be determined on a case by case basis and relate to the specific resourcing of projects, with the proponent to be consulted in this process. Fees determined by the Minister will not be appealable; however fees determined by the Department (using a matrix yet to be developed) will be appealable.

At the moment, cost recovery for environmental assessment applies only to assessment work done by the Commonwealth, and is payable to and recoverable by the Commonwealth. However, it is likely that the States will introduce their own cost recovery bills shortly.

What do you need to do?

Be aware that the new cost recovery amendments, will, if passed, impose fees for assessment of applications under the EPBC Act.

Be aware of the potential new arrangements for bilateral approvals in NSW and Queensland, which will, if finally agreed, remove the need to refer projects to the Commonwealth for environmental assessment and approval under the EPBC Act.

If you would like to make a submission to the Government on the draft approval bilateral agreement for NSW and/or Queensland, you have until 13 June 2014 to do so. The draft agreement and guidelines for submissions are available on the Department’s website (available http://www.environment.gov.au/topics/environment-protection/environment-assessments/bilateral-agreements/nsw).