Department of the Environment, Water, Heritage and the Arts, 2008
Legislation annual reports 2007-08 (continued)
1. Protecting environment and heritage
- A total of 435 matters of national environmental significance were protected under the EPBC Act.
- More strategic approaches were adopted, providing better results all round for the environment, project proponents and communities.
- The Environmental Stewardship Program got under way. The program will engage land managers in protecting matters of national environmental significance on private land.
‘Matters of national environmental significance’ are identified under the EPBC Act as controlling provisions for actions that are likely to have significant environmental impacts upon them and therefore require assessment and approval. The Act also allows the minister to require certain actions to be undertaken in a ‘particular manner’, to avoid significant impacts on matters of national environmental significance. The matters of national environmental significance are: nationally listed threatened species and ecological communities; listed migratory species; Ramsar wetlands of international importance; the Commonwealth marine environment; World Heritage properties; National Heritage places; and nuclear actions.
In 2007–08 435 matters of national environmental significance were protected. Where proposals involved Commonwealth land or agencies, the environment more broadly was protected. Across Australia, the number of times an action would potentially have had effects on a matter of national environmental significance is set out in Table 5. 418 projects were received for assessment under the legislation and almost 1000 incidents were reported to the department and assessed for compliance with the EPBC Act (see details provided in section 4).
Impacts on threatened species and ecological communities were the most common trigger in every state and territory and for every activity category. The most common activity categories for referrals were residential development, marine exploration (mineral, oil and gas) and mining (see Table 4).
For example, in Western Australia the western ringtail possum, Carnaby’s and Baudin’s black cockatoos were threatened most often by urban development, and in Victoria the growling grass frog was the species most frequently threatened by urban development. On Commonwealth land and marine areas, threatened species and ecological communities were also the most common trigger, but no particular activity was responsible: there was an even spread between residential development, sale of Defence land, aquaculture, seismic surveys, and work on heritage buildings.
The department worked with state, territory and local governments to promote and encourage the use of the strategic provisions of the Act to achieve better environmental outcomes. The provisions encourage early consideration of matters of national environmental significance in planning processes; provide certainty to communities and developers over future development; eliminate unproductive red tape and reduce the administrative burden for proponents and government; and achieve better environmental outcomes than assessment of projects on a case-by-case basis.
Strategic approaches, policy statements and guidelines enable the department to see and address the cumulative effects of individual proposals on the landscape. In February 2008, the minister signed an agreement with the Western Australian Government to undertake a joint strategic assessment of the site selection and management of a common-user liquefied natural gas hub to service the Browse Basin gas reserves.
An EPBC Act policy statement for Magnetic Island is in preparation to provide guidance on matters of national environmental significance listed under the Act, including values of the Great Barrier Reef World Heritage Area. The department will negotiate with the local council to align planning processes and requirements with EPBC Act requirements where possible. Similar policy statements are also in preparation for the protected western ringtail possum and Carnaby’s and Baudin’s black-cockatoos in the Southern Swan Coastal Plain region of Western Australia.
The department funded information gathering to strengthen its decision-making ability on matters of national environmental significance in key regional areas. Studies have provided important information:
- on the range of the western ringtail possum in the Southern Swan Coastal Plain, Western Australia
- on the presence of the quokka in the Muddy Lakes region of Western Australia
- to refine existing matters of national environmental significance mapping for far north Queensland, including for the Mission Beach area. This was undertaken as part of the department’s contribution to development of the state government’s Far North Queensland 2025 Statutory Regional Plan.
The department funded development of a rapid landscape assessment methodology for mapping and defining biodiversity values, including EPBC Act listed grassy woodlands. The methodology allows identification of biodiversity values at a local level in a relatively simple and cost effective manner.
Environmental Stewardship Program
The Australian Government’s Environmental Stewardship Program will purchase environmental services from land managers to improve the extent and quality of targeted matters of national environmental significance on private land. The program’s first priority will be the critically endangered Box Gum Grassy Woodland ecological community. The program will begin delivery in 2008–09, with additional matters of national environmental significance to be targeted as the program matures and assessment and payment methods are refined.
- The department worked with other Australian Government agencies to ensure that actions by the Commonwealth, or on Commonwealth land, did not adversely affect matters of national environmental significance.
- Species and ecological communities protected included the grasslands earless dragon, golden sun moth and an area of natural temperate grasslands.
Actions by the Australian Government and actions on Commonwealth land
In 2007–08, four actions were determined to require approval under the EPBC Act because of likely significant impacts on the environment on Commonwealth land, and a further six actions by Australian Government agencies were determined to be controlled actions.
One action involved the transfer of Defence land at Majura in the Australian Capital Territory. The proposal to construct a road after the transfer had the potential to affect the grasslands earless dragon and the golden sun moth and an area of natural temperate grasslands. Mitigation measures included the requirement for a conservation agreement between the minister and any future lessee of the land. Conservation agreement conditions cover future development on the land and include retention of habitat on the site.
Advice on authorising actions
Advice under section 160 of the EPBC Act was requested nine times by the Department of Infrastructure, Transport, Regional Development and Local Government for proposals on Commonwealth airports. Of these nine requests, five did not require advice because their effect on the environment would be low, and three are still being assessed to determine if advice will be required.
One proposal – to develop a fourth runway, a commercial development and to expand existing aviation facilities at the Jandakot Airport in Western Australia – required advice and was assessed on preliminary documentation. For this proposal the referring department was advised to refuse the proposal to avoid unacceptable impacts on the grand spider-orchid (Caladenia huegelii), glossy-leaved hammer-orchid (Drakaea elastica), Carnaby’s black-cockatoo (Catyptorhynchus latirostris) and species of state conservation significance including the western brush wallaby (Macropus irma).
- The department now has assessment bilateral agreements in place with six of the states and territories, following the commencement of the South Australian bilateral agreement in July 2008. The Western Australian bilateral agreement has been operating successfully and the original five-year term of the agreement has been extended to 30 years.
- The department has actively sought to work with state and territory governments to identify opportunities for collaboration where it would result in early consideration of matters of national environmental significance under a jurisdiction’s planning regimes, a reduction in duplication of environmental assessment and approval processes, and greater certainty for developers.
- The department worked to align state/territory and Australian Government species and ecological community lists.
- The department worked with the Department of Agriculture, Fisheries and Forestry on identifying noxious ornamental fish species and developing Australia’s biosecurity system. Both issues potentially threaten both the environment and primary industry.
- The department doubled resources applied to strategic approvals to improve the quality of partnerships with state/territory and local governments.
The EPBC Act provides for the Australian Government to enter into bilateral agreements with states and territories. There are two forms of bilateral agreement: assessment agreements and approval agreements.
Assessment bilateral agreements are in place with Tasmania, the Northern Territory, Western Australia, Queensland, New South Wales and South Australia. The agreements recognise the environmental assessment processes of a state or territory for certain actions. This means that certain actions that would require assessment under both the EPBC Act and state or territory legislation can be assessed using a single assessment and public consultation process. Proponents prepare and submit one set of assessment documentation, with the transparency of the process maintained through comprehensive public consultation requirements. The Australian Government minister is still required to decide whether to approve and impose conditions for projects that will, or are likely to, have a significant impact on matters of national environmental significance. This year 75 projects (including five completed and four withdrawn) were assessed under bilateral agreements, an increase of 24 from the previous year.
The agreement with Western Australia was reviewed before its expiry on 14 August 2007 after five years of operation. The agreement was found to be meeting its objectives including minimising duplication of Australian Government and Western Australian assessment processes. As a result of the review, the agreement was extended from five to 30 years. Other minor amendments were made and the agreement has continued to operate effectively.
The department made substantial progress with development of assessment bilateral agreements with the other states and territories. The South Australian bilateral agreement was negotiated during the reporting year and subsequently commenced on 2 July 2008. It is expected that a bilateral agreement with the Australian Capital Territory will be soon finalised, following the completion of the public notification period on 26 June 2008. Substantial progress was also made in discussions with Victoria on a draft agreement. Prior to finalisation of agreements with South Australia, the Australian Capital Territory and Victoria, duplication was significantly reduced through using case-by-case accreditation of assessment approaches. This year 34 projects (including five completed and three withdrawn) were assessed in this way, an increase of six from the previous year.
An approval bilateral agreement allows the minister to recognise the approvals processes of a state or territory for a certain class of actions that would otherwise potentially trigger the referral, assessment and approval requirements of the EPBC Act. Where an approval bilateral agreement is in place, an action of a kind covered by the bilateral agreement would be subject to assessment and approval under the applicable state or territory legislation – the action would not need to be referred to, assessed or approved by, the minister under the EPBC Act.
There is currently an approval bilateral agreement in place with New South Wales for the National Heritage and World Heritage-listed Sydney Opera House. Under the agreement, the minister accredited the New South Wales management plan for the Sydney Opera House. Actions approved and taken in accordance with the management plan do not require separate approval under the EPBC Act.
The department is working with the Western Australian Government to develop an approval bilateral agreement for the National Heritage listed Dampier Archipelago (including the Burrup Peninsula).
Working strategically with states and territories
The department engaged with all state and territory governments to promote the benefits of using strategic approaches for addressing cumulative effects early in planning processes. The resources applied to strategic approvals were doubled to improve the quality of partnerships with state/territory and local governments.
In 2007–08 the department provided, for the second year, an expert geographic information systems officer to the New South Wales Department of Environment and Climate Change, to identify EPBC Act matters of national environmental significance during biodiversity mapping in that state. The resultant biodiversity maps include EPBC Act protected matters and are being used by 13 local governments in reviewing and developing new local planning and development schemes.
The department held ongoing discussions with the Western Australian, Victorian and New South Wales governments on opportunities to encourage greater consideration of matters protected under the EPBC Act in state planning processes. Discussions and early scoping work have focused on supporting the protection of matters of national environmental significance, within a framework that reduces duplication between Australian Government and state processes, provides certainty for developers and makes allowance for metropolitan growth.
This is consistent with the department’s work on the Council of Australian Government’s reform agenda, aimed at achieving a more harmonised and efficient system of environmental assessment and approval that meets all Australian Government and state and territory requirements.
Species Information Partnerships aim to achieve consistency between threatened species lists held by the Australian Government and those held by the states and territories, and to increase exchanges of information in the listing and recovery of threatened species. The Australian Government has contracts in place with South Australia, Western Australia, the Northern Territory, Tasmania and Victoria to prepare data sheets for threatened species listed under state and territory legislation. The partnerships help to focus limited conservation resources to achieve the best possible conservation outcomes for threatened species.
The data sheets are being used as the basis for assessment of species by the Threatened Species Scientific Committee, for listing under the EPBC Act.
In 2007–08, information provided by the states and territories under the partnerships supported listing decisions under the EPBC Act for one Western Australian species and four Tasmanian species. State and territory information was used by the Threatened Species Scientific Committee to assess a further 11 species for which recommendations are expected to be made to the minister in 2008–09.
Aligning ecological community lists
In 2007–08 the department made progress on aligning national ecological community listings under the EPBC Act with state and territory listings. It is important to note that many of the ecological communities already listed under the EPBC Act, and those on the 2007 Finalised Priority Assessment List that are being considered for national listing, cross state boundaries and/or equate to many more smaller communities or regional ecosystems that receive varying levels of protection by the states and territories. From 2007–08 onwards additional effort is also being made in EPBC Act listing advices to make clear cross-references to state and territory vegetation classification systems and listings that coincide with nationally listed ecological communities. The department is working with state agencies to develop a process for better aligning lists in the future. This includes prioritisation for future national listing of ecological communities already listed by states and territories that are under the greatest threat and would benefit most from additional protection under the EPBC Act.
Ornamental Fish Management Implementation Group
The department contributed to the Strategic Approach to the Management of Ornamental Fish in Australia (Department of Agriculture, Fisheries and Forestry, 2007) by participating in the Ornamental Fish Management Implementation Group and also by contributing funds to help implement the Strategic Approach to the Management of Ornamental Fish in Australia in 2007–08. The strategy is endorsed by the Natural Resource Management Ministerial Council. It brings together the states and territories, the Australian Government, and representatives of the ornamental fish industry, to identify noxious ornamental fish species and to increase awareness of the potential risks posed to the Australian environment by such species should they escape and establish.
In 2007–08 the Ornamental Fish Management Implementation Group focused on harmonising legislation by having each state and territory commit to reflecting the agreed list of noxious species in their respective legislation. The group began the major task of reviewing identified ornamental fish species in Australia (the ‘grey list’) to determine their status as potentially noxious or invasive species in the Australian environment. The review of the ‘grey list’ is expected to be completed by December 2008 and recommendations considered for adoption early in 2009. The outcomes will help inform the ornamental fish industry on freshwater species that could be considered for live import into Australia through industry or individual applications to amend the EPBC Act live import list.
As a signatory to the World Heritage Convention, the Australian Government cooperates closely with state authorities to ensure that the protection and promotion of state-managed World Heritage properties is consistent with Australia’s undertakings under the convention. The Australian Government has continued to work with state authorities to review existing World Heritage management plans for the Tasmanian Wilderness and the Wet Tropics of Queensland, and to develop World Heritage strategic plans for the Greater Blue Mountains and Shark Bay.
The interim review of the 1999 management plan for the Tasmanian Wilderness has progressed through a public comment phase. It will be finalised for ministerial endorsement shortly.
Revisions to the zoning regime are currently being considered as part of the review of the Wet Tropics of Queensland management plan.
The new strategic plan for the Greater Blue Mountains World Heritage Area has been approved by the Greater Blue Mountains World Heritage Area Management Committee, and is expected to be approved for publication by the relevant Australian and New South Wales government ministers in late 2008.
The final Strategic Plan for the Shark Bay World Heritage Property (2008–2020) has been released.
The department is also cooperating with state authorities and owners on management plans for the following World Heritage List and/or National Heritage List places: the Royal Exhibition Building and Carlton Gardens, the former ICI Building and the former High Court of Australia, all in Victoria; the Richmond Bridge in Tasmania; the Batavia Shipwreck Site and Survivor Camps Area 1629 – Houtman Abrolhos, and the Dirk Hartog Landing Site 1616 – Cape Inscription both in Western Australia; and Brewarrina Aboriginal Fish Traps (Baiames Ngunnhu) in New South Wales.
Australian Environmental Law Enforcement and Regulators Network
The department participated in and provided funding for the secretariat for the Australian Environmental Law Enforcement and Regulators Network. This network promotes cross-jurisdictional dialogue and cooperation for environmental law enforcement. The network supports agencies working together through sub-committees, such as training, best practice, and compliance and audit. It also engages local government agencies through state-based forums and the department participates in these forums by invitation (see Section 4 for more details).
Wetlands and Waterbirds Taskforce
The Wetlands and Waterbirds Taskforce, consisting of wetland experts from the relevant Australian and New Zealand state and territory government agencies, continued to advise the Natural Resource Management Standing Committee on the implementation of the Ramsar Convention and migratory bird agreements.
The bilateral agreement between the Republic of Korea and Australia to protect migratory birds (ROKAMBA) came into effect in July 2007 and China endorsed the multilateral Partnership for the Conservation of Migratory Waterbirds and the Sustainable Use of their Habitat in the East Asian-Australasian Flyway.
The first meeting to sign the Memorandum of Understanding (MoU) on the Conservation and Management of Dugongs and their Habitats throughout their Range, made under the Convention on Migratory Species, was held in the United Arab Emirates from 28 to 31 October 2007. Australia attended the East Indian Ocean and Pacific region technical workshop and signed the MoU on 31 October 2007. Other countries that signed included United Arab Emirates, Iran, Tanzania, France, Eritrea, Madagascar and Myanmar.
The department continued to work with the Department of Agriculture, Fisheries and Forestry to enhance Australia’s biosecurity system for primary production and the environment. Both departments supported this work through the AusBIOSEC steering group, which completed its terms of reference. Natural Resource Management and Primary Industry ministerial councils endorsed a draft intergovernmental agreement encompassing the AusBIOSEC developments.
- 435 matters protected under the Act were protected through the referral, assessment and approval process. This is an increase of 159 matters from 2006–07.
- The department managed 418 referrals (347 in 2006–07) and made 53 approval decisions (45 in 2006–07).
- The department improved its timeliness in processing referrals, assessments and approvals. 96 per cent of all decisions made under the Act were made within statutory timeframes.
- 32 fisheries were comprehensively assessed for the second time. All assessments were completed within statutory timeframes.
In 2007–08, 418 actions were referred to the Australian Government for a decision on whether approval was required under the EPBC Act (347 in 2006–07). Of these referrals, 34 were the result of compliance action taken by the department (8 per cent compared to 15 per cent in 2006–07). A total of 108 actions were determined to be controlled actions and a further 89 were determined not to be controlled actions if taken in a particular manner. 175 referrals were found not to be controlled actions and required no further assessment (see Tables 1 and 2). 26 referrals (a total of 142 since commencement of the Act in July 2000) were withdrawn or lapsed after a controlled action decision.
Profile of referrals
As in previous years the largest number of referrals came from Queensland, which continues to have the highest number of controlled action decisions (see Table 3). Across Australia, referrals were most common in the residential development, exploration (in marine areas, for minerals, oil and gas), land transport and mining activity categories, with a marked increase in the number of referrals in the exploration category. The categories with the highest number of controlled action decisions were residential development, mining and non-renewable energy generation and supply (see Table 4).
Example: Rocky Springs Masterplanned Community, Townsville, Queensland
Delfin Lend Lease is proposing to develop the Rocky Springs Masterplanned Community, located 15 kilometres south-east of Townsville in North Queensland. On 29 August 2007 the proposed action was determined to be a controlled action, requiring approval under the EPBC Act.
The proposal is to develop a large-scale residential and commercial planned community with a population of at least 37,000 people and up to 13,000 residential lots. The development covers 1,594 hectares and would be staged over 30 years.
The nominated controlling provisions (that is, matters of national environmental significance that may be affected by the proposed action) are:
- World Heritage properties
- National Heritage places
- wetlands of international importance
- listed threatened species and ecological communities
- listed migratory species.
The proposed action has the potential to affect the values of the nearby Great Barrier Reef World Heritage Area, migratory species such as the dugong and marine turtles, the Bowling Green Bay Ramsar site, and the listed endangered black-throated finch (southern).
The proposed action has been identified as a project of state significance under the Queensland Integrated Planning Act 1997 (IPA Act). It is being assessed through an environmental impact statement under the Commonwealth and Queensland bilateral agreement. The proposal is the first under the state IPA Act to be assessed under the bilateral agreement.
Delfin Lend Lease has prepared a draft environmental impact statement, which was released for a six week public review period on 4 August 2008. A decision on whether to approve the development is expected by mid–2009.
Example: Cape Lambert Port B Development, Pilbara region, Western Australia
The proposal, by Pilbara Iron Pty Ltd, is to develop a brownfield port at Cape Lambert to accommodate an expected increase in iron ore production in the Pilbara region of Western Australia. The proposed development is adjacent to the existing Cape Lambert Port.
New ship loading facilities are proposed. Construction of these facilities will require dredging to establish berth pockets, swing basins, a heavy offloading facility and tug harbour, and a connection to the existing shipping channel. The dredged material will be transported to existing or new spoil grounds. Laydown and storage areas, offices, a heavy offload facility and minor roads will be required to support the construction activities.
The nominated controlling provisions (that is, matters of national environmental significance that may be affected by the proposed action) are :
- Listed threatened species and communities
- Listed migratory species
- Commonwealth marine areas.
The project requires approval under the EPBC Act, the Western Australian Environmental Protection Act 1986 and the Commonwealth Environment Protection (Sea Dumping) Act 1981. The Australian Government and the Western Australian Government have agreed to coordinate their assessment processes, so the proponent only prepares one assessment document, with one public comment period. Separate decisions on whether to approve the action will be made at the conclusion of the assessment (a public environment report under the EPBC Act).
Assessment guidelines for the public environment report have been approved. Pilbara Iron Pty Ltd wish to release the public environment report for public comment in September 2008, with a decision on whether to approve the development sought by mid–2009.
Meeting statutory timeframes for referrals
The EPBC Act allows 20 business days from receipt of a referral for deciding whether an action requires approval. This includes a 10-day public comment period. This year there were two late decisions, or 0.5 per cent of the total. This compares with 73 late decisions last year (22 per cent of the total). Where the statutory timeframe was not met, this was due to delays in obtaining sufficient information to make an informed decision.
The 20-day timeframe for decision-making on referrals was suspended 121 times. This was primarily due to the need to seek further information to be able to make an informed decision.
Particular manner decisions
The EPBC Act provides for the minister to decide that a referred proposal is not a controlled action provided it is undertaken in a particular manner. This provision may be used when there is clear evidence that a particular mitigation or avoidance measure will be employed to avoid significant impacts. Penalties apply to breaches of ‘particular manner’ decisions.
This year 89 referrals were determined not to be controlled actions, provided they were carried out in a particular manner.
The department encourages proponents to design projects to avoid adverse impacts on matters of national environmental significance. The ‘particular manner’ provision promotes and supports industries and individual developments that are shifting to better environmental practices.
Example: Point Cook Coastal Park Trail, Victoria, Stage 3
The proposal was to construct and operate the northern section of stage 3 of a trail in Point Cook Coastal Park forming part of a 253 kilometre continuous, shared use (commuting and recreational) trail around Port Phillip Bay. This section of the trail is approximately 1.5 kilometres long; it is immediately adjacent to the Sanctuary Lakes residential housing development and lies along the western edge of the Cheetham Wetlands, a part of which is Ramsar listed. The project area is approximately 1.5 hectares.
The matters of national environmental significance potentially affected by the proposed action were:
- wetlands of international importance
- listed threatened species
- listed migratory species.
In the referral, the proponent specified that the following actions would be undertaken to ensure that the project would not have a significant impact on matters of national environmental significance:
- A documented project environmental management system must be in place before commencement of construction.
- Stormwater management measures will be designed and implemented in accordance with the Commonwealth Scientific and Industrial Research Organisation’s (CSIRO) Urban Stormwater Best Practice Environmental Management Guidelines.
- Sediment sampling will be undertaken to detect potential acid sulphate soils and contaminants and necessary remediation (for example, developing an environmental management plan to manage the acid sulphate soils) that addresses the Victorian Industrial Waste Management Policy (Waste Acid Sulfate Soils) if indicated.
- Refuelling all vehicles and storage of hazardous materials to be done off-site.
- Spills from machinery or similar to be addressed in accordance with Parks Victoria’s marine pollution incident procedure, which includes Environment Protection Authority notification.
- Contractors must have spill kits.
The project was determined to be not a controlled action if done in the particular manner as detailed above. The particular manner in which it is to be done will ensure that water quality is protected, thereby managing any potential issues with the Ramsar wetlands and the species that inhabit the wetlands.
Example: Labatt 3D Seismic Survey, T/47P Bass Strait, Tasmania
Implementation of the department’s seismic guidelines (EPBC Act Policy Statement 2.1, Interaction between offshore seismic exploration and whales, May 2007) has been a requirement for almost every seismic survey referred under the EPBC Act since the release of the guidelines in July 2007.
The Labatt 3D Seismic Survey is a typical example of application of the guidelines. The project involved Tap Oil Ltd acquiring sub-seabed geological seismic data by operating an acoustic source, towed by a survey vessel. The seismic data will be used to interpret the geology of the region and to identify potential hydrocarbon reserves. The survey area was 520 square kilometres, approximately 100 kilometres north of Tasmania. The survey was conducted over 33 days between December 2007 and January 2008.
The department assessed the potential impacts of the seismic survey and found that the timing of the survey was outside peak migratory periods for the humpback whale (Megaptera novaengliae) and the southern right whale (Eubalaena australis) and away from the feeding grounds of the blue whale (Balaenoptera musculus). The department concluded that provided the survey was undertaken in a particular manner, covered by Part A of the seismic guidelines, any significant impact on these species was unlikely.
Part A of the seismic guidelines includes a range of mitigation measures, such as gradually ‘ramping up’ the acoustic source; undertaking visual observations for whales within three kilometres of the seismic source; delaying start-up if whales are observed within two kilometres of the source; and reducing the power of the source or shutting down if whales are observed within two kilometres and 500 metres respectively during operations.
Upon completion of the survey, Tap Oil Ltd submitted a marine mammal observation report to the department in accordance with the guidelines. A total of two humpback whales, 15 common dolphins (Delphinus delphis) and one unidentified large cetacean were recorded during the survey. One power-down was initiated during the survey operations when a humpback whale approached to within two kilometres of the seismic source.
Statement of reasons
A statement of reasons may be requested by an ‘aggrieved person’ or by a person who is formally notified of a decision.
Thirty-seven requests for statements of reasons were received, three under the EPBC Act and 34 under the Administrative Decisions (Judicial Review) Act 1977. Statements of reasons were requested by more than one party for the following projects:
- Sugarloaf Water Pipeline, Victoria (three requests)
- Duffy’s Forest Residential Development, New South Wales (two requests)
- Gunns Pulp Mill, Tasmania (five requests).
Nine statements of reasons were provided outside statutory timeframes for a number of reasons, including delays because of the need to seek legal advice.
Reconsideration of decisions
In 2007–08, one referral decision was reconsidered (by the minister or his delegate) and no decisions were revoked and a new decision made. The number of reconsiderations is small in comparison with the total number of referral decisions and, through consultation with key stakeholders and interest groups, the department ensures that reconsiderations maintain the transparency and public accountability inherent in the EPBC Act. Reconsideration can be justified where there is substantial new information on, or a substantial change in, circumstances regarding the likely effects on matters protected by the EPBC Act or on the potential effects of the proposed action.
Example: Aerial mosquito spraying Vasse-Wonnerup Wetlands, Western Australia
The proposal to apply ‘Altosid’, a synthetic hormone, to control mosquito breeding sites in the Vasse-Wonnerup Ramsar site, was determined to be not a controlled action if undertaken in a particular manner on 22 April 2005. The original approval allowed spraying for a three year period, with monitoring to determine if the impacts were acceptable for long-term application. However, spraying occurred during only one year due to drought conditions making mosquito breeding less favourable. On 14 April 2008, the proponent requested the minister to reconsider the original decision and extend the spraying period. On 30 June 2008 the delegate decided that the request for reconsideration be accepted by revoking the original decision and substituting a new decision that the proposal is not a controlled action provided it is undertaken in an amended particular manner. The decision allows spraying for a maximum of two years prior to 31 December 2012 and requires monitoring and a report on the impacts of spraying.
Assessment of controlled actions
The assessment of potential environmental impacts of proposed actions uses the best available science, with comments and analysis sought from relevant experts within the department, other Australian Government or state and territory government agencies and, when necessary, external scientific institutions and organisations.
The EPBC Act provides a range of assessment approaches to ensure that an environmental assessment reflects the nature of the proposed actions, the quality of the information already available, the level of public interest and the nature and scale of the likely effects. Following the amendments to the EPBC Act that came into force in February 2007 assessment on referral information is now another option for assessing proposed actions. This approach is appropriate for projects where the degree of public concern is relatively low and where likely significant impacts are relatively confined. Decisions on the level of assessment for controlled actions in 2007–08 are summarised in Table 6.
The amendments mean that the decision on which assessment approach to take for controlled actions, is now made at the time of the controlled action decision rather than the department requesting preliminary information from the proponent. This has made the process more timely and efficient for both proponents and the department.
In 2007–08 the department completed three assessments by assessment on referral information, 35 by preliminary documentation, three by a public environment report, none by an environmental impact statement and 10 under an accredited process or a bilateral agreement. A further 156 assessments were in progress at 30 June 2008. Decisions on the assessment approach and the status of assessments are summarised in Table 6.
Meeting statutory timeframes for assessments
There were 35 out of 82 decisions on the appropriate assessment approach (43 per cent of the total) made outside the statutory timeframe. The main factors contributing to late decisions were administrative delays and the need to wait for states to provide advice as to whether or not the project would be assessed under a bilateral agreement.
The EPBC Act requires the minister to prepare written guidelines for the content of public environment reports and environmental impact statements, within 20 business days from the date on which the assessment approach was decided. The department prepared guidelines for two public environment reports. Three guidelines for environmental impact statements were finalised.
Once the minister has accepted final preliminary documentation, a finalised public environment report, or a finalised environmental impact statement, a recommendation report must be prepared for the minister prior to the end of the period specified in section 130 of the EPBC Act. Where an assessment is being done under a bilateral agreement, the state must prepare an assessment report. When the minister has received the assessment report, he must make a decision within the specified timeframe. This year there were 14 late recommendation reports out of 35 for assessment by preliminary documentation. There were no late reports for assessment by public environment report and assessment by environmental impact statement. Delays in these cases generally arose from the need for additional stakeholder consultation and to consider all relevant material. This material covers a diverse and complex range of issues and points of view (see Table 18).
A total of 108 controlled actions were approved; a further 16 were awaiting decision at 30 June 2008. Conditions attached to approvals include managing the environmental effects of construction, providing compensatory habitat to offset effects on listed species, monitoring programs to ensure water quality is maintained, independent audits, and measures for managing effects on cetacean species.
Example: Wiggins Island Coal Terminal, Port Curtis, Queensland
In April 2008 approval was given to Central Queensland Ports Authority and Queensland Rail for the development of a new coal export terminal, rail infrastructure and supporting infrastructure. The main effects of the project are on water quality in the Great Barrier Reef World Heritage Area and resulting effects on the heritage values of the area, and direct and indirect effects on threatened and migratory species.
The project was approved with the following conditions:
- The proponent must prepare an environmental management plan, including water quality monitoring, adaptive management options, acid sulphate soils management, noise reduction, turtle and dugong protection, management measures for introduced marine pests and monitoring and reporting information.
- The proponent must prepare a fauna management plan. The project’s detailed design phase would clarify the necessary measures to protect migratory birds, dugong and marine turtles. The proponent committed to rehabilitating intertidal wetland and mangrove communities, and will determine the extent of measures required in the detailed design phase.
- Sediment control measures must be in place, and any sedimentation dam must be of a pre-determined capacity. Stormwater runoff must be monitored and must meet recommended discharge limits.
- Acid sulphate soils must not be directly or indirectly released to the Great Barrier Reef World Heritage Area.
- The proponent must prepare a dust management plan that identifies dust control measures, dust emission thresholds and management options, monitoring programs for dust emissions, and reporting protocols.
Meeting statutory timeframes for approvals
In 2007–08 20 out of 36 approval decisions (55 per cent of the total) were made outside the statutory timeframe. These delays were largely due to ongoing negotiations with the proponent over the conditions of the approval (see Table 18).
Post referral and approval verification, monitoring and auditing
This year the department set up a team dedicated to undertaking post-approval monitoring, introduced a program of post-approval monitoring site inspections and expanded its audit program. This is discussed in more detail in Section 4.
Fisheries assessments and approvals
Under the EPBC Act, the department assesses the environmental performance of fisheries management arrangements to ensure that fisheries are managed in an ecologically sustainable way and to identify areas for improvement. All Commonwealth-managed fisheries and all state and territory fisheries with an export component, are required to undergo assessment.
A total of 122 fisheries have been declared as either exempt from the export provisions of the EPBC Act for five years, or as approved wildlife trade operations for periods of up to three years.
In 2007–08, 34 fisheries were comprehensively assessed for the second time; seven Commonwealth-managed fisheries and 27 state-managed fisheries. These assessments were completed within statutory timeframes and each received export approval, except for one fishery (the Joint Authority Northern Shark Fishery), which had its existing export approval revoked in 2007–08.
Eleven fisheries were exempted from the export provisions of the Act and 23 were approved as wildlife trade operations. Two short-term exemptions and one short-term wildlife trade operation approval were granted, while the management arrangements were being negotiated and improved.
As a result of the fisheries assessment process, conditions and recommendations were agreed between the department and fisheries management agencies. They require the agencies to demonstrate improved environmental performance, and actively enhance the ecologically sustainable management of fisheries in the short to medium term. The outcomes are published in detailed reports on the department’s website at www.environment.gov.au/coasts/fisheries/index.html.
It is anticipated that 40 fisheries will be assessed for the second time under the EPBC Act in 2008–09.
- The department values the role of local government in reaching the wider community. It sees local government as a key to success in protecting matters of national environmental significance and funded a compliance assurance project this year, working with several local government areas.
- The department used investigations into compliance incidents as opportunities to engage with local government and state environment agencies, and to raise awareness within the community.
- Nominations for the first Finalised Priority Assessment List were widely publicised. The list, prepared this year, reflected input from interested parties across Australia. The new system is both more extensive and more transparent in its consultation arrangements. A similar system is in place for heritage listing (see Section 3).
- The department consults widely among interested parties, and this year held policy statement workshops to gather expertise and advice on the growling grass frog, golden sun-moth, spiny rice-flower and black-throated finch. The workshops involve regulators, consultants, policy makers and experts, and are designed to guide decision-making with the best available information.
Referral, assessment and approval process
The following examples show how transparency and public participation are built into the referral, assessment and approvals process.
Example: Sugarloaf Pipeline – Goulburn River to Sugarloaf Reservoir, Victoria
The proposed Sugarloaf Pipeline project in Victoria involves the construction and operation of a 70 kilometre long water pipeline and associated infrastructure to transfer up to 75 gigalitres (or 75 billion litres) of water per year from the Goulburn River for treatment and distribution into the Melbourne metropolitan water grid.
The Sugarloaf Pipeline project is controversial and the extraction of water from the Goulburn River to supply Melbourne’s future requirements is opposed by many residents in downstream rural areas. One hundred and twelve public comments (including 39 campaign letters) were received on the referral. The submissions express doubt about the magnitude of water savings from the Food Bowl Modernisation Project, and raise concerns about the uncertainty of the final pipeline route, downstream environmental effects, effects on EPBC Act listed species and the proposed environmental assessment process. All submissions were taken into account in determining the proposal to be a controlled action requiring assessment under the EPBC Act. The issues raised will be addressed in the final assessment.
Example: Satori Resorts Ella Bay Pty Ltd development, Queensland
The development site has an area of 450 hectares. The site is located at Ella Bay and is surrounded by the Wet Tropics of Queensland and Great Barrier Reef World Heritage areas. The proposal includes the staged development of a residential area and a tourism resort, including an 18-hole golf course. Overall, a total of 1,400 dwellings (540 residential and 860 resort units and villas) will be built. It is proposed to be fully operational in 10 to 15 years at an estimated cost of $1.8 billion.
The proposal is being assessed under the bilateral agreement with Queensland at the level of an environmental impact statement. The proposal was determined to be a controlled action for its likely significant impacts on listed threatened species and World Heritage values of the Wet Tropics of Queensland World Heritage Area and the Great Barrier Reef World Heritage Area.
The environmental impact statement attracted 81 public and agency submissions, including 28 petitions with 191 signatures, during the public exhibition period. Given the numerous issues raised in the submissions, the developer was required to prepare a supplementary environmental impact statement addressing the issues and to publicly exhibit the supplementary documentation, which is outside the normal Queensland assessment process.
Consideration of the project for approval by the minister will occur following receipt of the assessment report from the Queensland Department of Infrastructure and Planning.
The department promoted use of the strategic assessment options available under the EPBC Act. Departmental staff took part in workshops and conferences on national environmental and assessment issues, including the World Wide Fund for Nature’s Kimberley Coast Natural Values Workshop in Broome and the International Association for Impact Assessment Conference in Perth. In Queensland strategic work in the Mission Beach region has been subsumed into development of the state government’s draft Far North Queensland 2025 Statutory Regional Plan. The department was a member of a technical working group that provided comments on the draft plan.
A specialist EPBC Act officer was appointed, based in Perth, to promote the strategic provisions of the Act and provide expert EPBC Act advice and support to stakeholders in Western Australia, including local and state government, industry and the community.
The National Farmers’ Federation Environment Liaison Officer, outposted with the National Farmers’ Federation in Canberra, provided personal assistance, often on-ground, to farmers and rural stakeholders, farming organisations, natural resource management groups, commodity groups and state/territory government agencies across the country on referral, assessment, approval and listing processes, conservation agreements, recovery planning, strategic assessments and compliance. The officer now also liaises on the broader environment programs managed by the department, including natural resource management, stewardship, water, weeds and feral animals.
Wildlife trade and regulation
Transparency in decision-making is a key element of the EPBC Act. The department is committed to ensuring that all interested parties have accurate and up-to-date information. It uses all available means of reaching people with this information. Before decisions are made on commercial wildlife harvesting programs, live import list amendments, and exceptional circumstances permits, the department consults relevant state governments, stakeholders and the public.
This year the department:
- launched the Australian Acupuncture and Chinese Medicine Association Endangered Species Certification Scheme in May 2008. The scheme recognises practitioners, traders and users of complementary medicines who ensure they do not use endangered species in their complementary medicines, and promote compliance with wildlife trade laws
- advertised in the popular press on wildlife issues and in the Australian Acupuncture and Chinese Medicine Association magazine on complementary medicines
- produced a wall chart on complementary medicines
- advertised in the Australian Federation of Travel Agents Travel Industry Yearbook, the Department of Foreign Affairs and Trade’s Hints for Travellers website and handbook and Australian Quarantine and Inspection Service Travel Guides
- sponsored (chief supporter category) The Thin Green Line, a documentary highlighting the issues of illegal wildlife trade
- advertised in all regional editions of the Pet Directory, a definitive resource for pet owners and suppliers in Australia
- advertised in in-flight magazines targeting outgoing passengers
- reviewed the If in Doubt – Check it Out brochure and distributed the revised version to Australian ports and travel industry professionals Australia wide
- loaned seized specimens to institutions, such as zoos and aquaria, universities and museums, for education or research purposes. It is a condition of display that these items are referenced as having been seized as illegal imports
- improved the exotic species regulation information on web pages, updating the live import assessment processes flowcharts and adding information on the exotic bird record-keeping scheme
- promoted a free call (1800 number) service for exotic bird keepers to use for information on the exotic bird record-keeping scheme
- advertised in bird-keeping magazines on the benefits of the exotic bird record-keeping scheme
- on request, distributed information packs on the exotic bird record-keeping scheme.
Threatened species and ecological communities
The 2007 amendments to the EPBC Act set new timelines for assessing nominations to list threatened species, ecological communities and key threatening processes, and more extensive requirements for public consultation.
In March 2007 the minister invited the public, for the first time under the new arrangements, to nominate species, ecological communities and key threatening processes for listing. The department published this invitation in state and territory newspapers and on its website. The Finalised Priority Assessment List for the assessment period commencing 1 October 2007 was published on the department’s website in September 2007. All nominations included in the Finalised Priority Assessment List were available on the department’s website for two months. As part of the assessment process, the Threatened Species Scientific Committee also consulted scientific experts and other interested parties for each assessment. Members of the public were invited to comment on the nominations.
The department undertook extensive expert and public consultation on nine ecological communities undergoing assessment. The process included inviting comments on: original nominations, technical workshop reports and draft diagnostic characteristics, conditions, land management actions and maps for these communities. Methods of consultation included: publishing technical workshop reports on the department’s website; emails and letters; meeting with state governments, non-government organisations and land managers, including conservation groups and farmers (consulted in conjunction with farmer groups and the National Farmers’ Federation EPBC Act Information Officer).
The department continued to publish the Threatened Species Scientific Committee’s listing advice on species, ecological communities and key threatening processes on its website.
The department publishes policy statements and information sheets for many listed ecological communities. This year it distributed a policy statement on the listing of two remnant ecological communities in South Australia: the Peppermint Box (Eucalyptus odorata) Grassy Woodland and the Iron-Grass Natural Temperate Grassland. These ecological community listings were also the subject of the Northern and Yorke Natural Resource Management Region EPBC Act workshop in South Australia in October 2007.
The department published three issues of the Communities for Communities newsletter, which informs the public about threatened ecological communities listed under the EPBC Act or nominated for listing. The newsletter also provides information on other departmental work to conserve biodiversity. Community groups are encouraged to use Communities for Communities as an information source when compiling their own newsletters.
The department hosts an online natural resource management tool that enables people to search for conservation advice on threatened species and ecological communities by specific natural resource management regions. In 2007–08, new conservation advices were added. This information helps regional planning bodies, community groups, landholders and others to plan activities to assist the conservation and recovery of newly listed threatened species and ecological communities.
Consultation is an integral component in developing new site listings and management plans for Ramsar sites. The department held a workshop on 13–14 May 2008 to assist in establishing national guidelines on developing Ramsar management plans and guidelines for nominating Ramsar sites. The National Framework and Guidance for Describing the Ecological Character of Australia’s Ramsar Wetlands and the Mapping Specifications for Australian Ramsar Wetlands have been endorsed by the Natural Resource Management Ministerial Council.
The department produces the Wetlands Australia National Wetlands Update each year, as part of its commitment to enhancing management of wetlands and awareness of their protected status under the EPBC Act. The update is released to coincide with World Wetlands Day, which is celebrated on 2 February each year. The Wetlands Australia National Wetlands Update brings together information from across Australia on wetlands conservation, management and education.
Functions and membership for each committee are listed in Appendix B of this report.
Threatened Species Scientific Committee
The committee met four times in 2007–08: in September 2007, December 2007, March 2008 and June 2008. The committee focused on assessing the conservation status of species and ecological communities on the Finalised Priority Assessment List for the assessment period commencing 1 October 2007, as well as continuing its work on aligning lists of threatened species at national, state and territory levels. The committee provided advice to the minister that led to the listing of seven new species and the Natural Temperate Grassland of the Victorian Volcanic Plain ecological community.
Under the conservation advice project, the committee considered 306 conservation advices for species and ecological communities already listed as threatened under the EPBC Act. The committee also considered a number of recovery plans and threat abatement plans. At its meeting in September 2007, the committee discussed national monitoring and reporting on significant species and ecological communities.
The committee continued to refine procedures to implement amendments to the EPBC Act. Late in 2007–08 it prioritised public nominations received during the assessment period commencing 1 October 2008, and determined its Proposed Priority Assessment List for consideration by the minister.
Indigenous Advisory Committee
The committee meets at least twice a year. Meetings are rotated around states and regions. This year the committee met in October 2007 at Cardwell in Queensland and in March 2008 in Canberra.
The committee advises the minister on the operation of the EPBC Act, taking into account the significance of Indigenous peoples’ knowledge of land management and the conservation and sustainable use of biodiversity. The committee is the key advisory group for the department’s Working on Country program. The committee provided advice on:
- the Northern Territory Emergency Response and employment of Indigenous rangers, under the Australian Government’s flexible funding pool
- the Northern Territory Healthy Country Healthy People Schedule under the Australian and Northern Territory governments’ bilateral agreement on Indigenous affairs
- the Indigenous national Caring for Country strategy
- the review of the National Biodiversity Strategy
- the Great Barrier Reef Marine Park Act 1975 as it relates to Indigenous representation on the Great Barrier Reef Marine Park Authority
- Traditional Use of Marine Resource agreements
- terms of reference for the strategic assessment of a plan for a common-user liquefied natural gas hub precinct in the Kimberley region
- the Harmful Marine Debris Threat Abatement Plan.
Committee member Mr Rocky Sainty attended the ninth meeting of the council of the parties to the Convention on Biological Diversity (Bonn, May 2008) to advise the Australian delegation on Indigenous issues related to the convention.
The Australian Heritage Council met five times in 2007–08. It held face-to-face meetings in Canberra, Portsea (Victoria), and Norfolk Island and one teleconference. The council provided the minister with 12 assessments for the National Heritage List, and seven for the Commonwealth Heritage List. It considered strategic issues within its functions, including exploring consistency and difference across Australian Government, state/territory and local government jurisdictions, on heritage criteria and thresholds; and raising the profile of the National Heritage List.
Biological Diversity Advisory Committee
The committee’s membership lapsed in 2007 and the minister is currently considering a forward work plan and candidates for appointment to the committee.
Freedom of information
The department received 71 requests under the Freedom of Information Act 1982 during 2007–08. Twelve of these requests related to EPBC Act decision-making procedures.
In this section
- About this report
- 1. Protecting environment and heritage
- 2. Conserving biodiversity
- 3. Managing heritage and protecting significant areas
- 4. Monitoring, compliance and legal actions
- 5. Reporting
- Appendix A – Statistics
- Appendix B – Committees
- Appendix C – Publications
- Appendix D – Compliance with timeframes (section 518 report)
- Case studies
Links to another web site
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