NSW Department of Environment and Conservation, 2005
ISBN: 1 7412 2143 9
2 Legal Status
- 2.1 Recovery plan preparation
- 2.2 Recovery plan implementation
- 2.3 Relationship to other Legislation
- 2.4 Key threatening processes
- 2.5 Critical habitat
- 2.6 Environmental assessment
Zieria granulata is listed as an endangered species on Schedule 1 of the NSW Threatened Species Conservation Act 1995 (NSW TSC Act) and as an endangered species under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
Among the consequences of a species being listed on the schedules of the NSW TSC Act are the following:
- a recovery plan must be prepared;
- consideration must be given to the species when assessing the impacts of developments and activities, with the aim of minimising adverse impacts; and
- other actions that are likely to result in the harming or picking of that species or damage to its habitat must be licensed.
The NSW TSC Act provides a legislative framework to protect and encourage the recovery of threatened species, endangered populations and endangered ecological communities in NSW.
Under this legislation the Director-General of the Department of the Environment and Conservation (DEC) has a responsibility to prepare recovery plans for all species, populations and ecological communities listed as endangered or vulnerable on the NSW TSC Act schedules. Similarly, the EPBC Act requires the Commonwealth Minister for the Environment to ensure the preparation of a recovery plan for nationally listed species and communities or adopt plans prepared by others including those developed by State agencies. Both Acts include specific requirements for the matters to be addressed by recovery plans and the administrative process for preparing recovery plans.
This recovery plan has been prepared to satisfy both the requirements of the NSW TSC Act and the EPBC Act and therefore will be the only recovery plan prepared for the species. It is the intention of the Director-General of DEC to forward the final version of this recovery plan to the Commonwealth Minister of the Environment for adoption.
The NSW TSC Act requires that a public authority must take any appropriate measures available to implement actions included in a recovery plan for which they have agreed to be responsible. Public authorities identified as responsible for the implementation of recovery plan actions are required by the NSW TSC Act to report on measures taken to implement those actions. In addition, the Act specifies that public authorities must not make decisions that are inconsistent with the provisions of the plan.
The public authorities relevant to this plan are the DEC, the Department of Infrastructure Planning and Natural Resources (DIPNR), the Department of Lands (DOL), the Department of Education and Training (DET), the Rural Fire Service (RFS), Kiama Municipal Council and Shellharbour City Council. Consequently, the actions outlined for each of these public authorities must be implemented as described in the plan.
The EPBC Act specifies that a Commonwealth agency must not take any action that contravenes a recovery plan.
The lands on which Z. granulata occurs include those that are owned or managed by the DEC, DOL, RTA, Kiama Municipal Council, Shellharbour City Council, and private landholders.
Relevant NSW and Commonwealth legislation includes:
- Environmental Planning and Assessment Act 1979;
- Local Government Act 1993;
- Native Vegetation Act 2003;
- National Parks and Wildlife Act 1974;
- Rural Fires Act 1997;
- Rural Fires and Environmental Assessment Legislation Amendment Act 2002;
- Threatened Species Conservation Act 1995;
- Threatened Species Conservation Amendment Act 2002; and
- Commonwealth Environment Protection and Biodiversity Conservation Act 1999.
A key threatening process (KTP) is a process listed under the NSW TSC Act that threatens, or has the capability to threaten, the survival or evolutionary development of species, populations, or endangered ecological communities.
Clearing of native vegetation has been observed to affect Z. granulata. The Final Determination for this KTP defines clearing as the destruction of a sufficient proportion of one or more strata (layers) within a stand or stands of native vegetation so as to result in the loss, or long term modification, of the structure, composition and ecological function of a stand or stands (NSW Scientific Committee 2001).
Other KTPs that may affect Z. granulata include:
- High frequency fire resulting in the disruption of life cycle process in plants and animals and loss of vegetation structure and composition;
- Invasion of native plant communities by bitou bush and boneseed;
- Invasion of native plant communities by exotic perennial grasses; and
- Anthropogenic climate change.
In addition to these key threatening processes, a number of other threats to the survival of Z. granulata exist (see Section 8.3).
The NSW TSC Act makes provision for the identification and declaration of critical habitat. Under the NSW TSC Act, critical habitat may be identified for any endangered species, population or ecological community occurring on NSW lands.
Once declared, it becomes an offence to damage critical habitat (unless the action is exempted under the provisions of the NSW TSC Act) and a Species Impact Statement is mandatory for all developments and activities proposed within declared critical habitat.
Under the EPBC Act, critical habitat may be registered for any nationally listed threatened species or ecological community. When adopting a recovery plan, the Commonwealth Minister for the Environment must consider whether to list habitat identified in the recovery plan as being critical to the survival of the species or ecological community. It is an offence under the EPBC Act for a person to knowingly take an action that will significantly damage critical habitat (unless the EPBC Act specifically exempts the action). This offence only applies to Commonwealth areas. However an action which is likely to have a significant impact on a listed species is still subject to referral and approval under the EPBC Act.
To date, critical habitat has not been declared for Z. granulata under the NSW TSC Act or the EPBC Act. However, this recovery plan identifies the habitat features and locations (Sections 5 & 6; Appendices 1 & 2) that would contain habitat that is critical to the survival of the species, as required by the EPBC Act.
It is not currently considered a high priority to nominate critical habitat for Z. granulata, as no demonstrable conservation outcome would accompany its identification and declaration. Action
1.5 in this recovery plan provides a mechanism for the recovery team to reconsider the need for a critical habitat nomination during the third year of implementation of the plan.
2.6.1 New South Wales
The New South Wales EP&A Act requires that consent and determining authorities, and the Director General of DEC, as a concurrence authority, consider relevant recovery plans when exercising a decision-making function under Parts 4 and 5 of the EP&A Act. Decision-makers must consider known and potential habitat, biological and ecological factors and the regional significance of individual populations.
The following public authorities have a decision making function in relation to Z. granulata:
- DIPNR as a consent authority, in the making of Environmental Planning Instruments under the EP&A Act and in relation to private land that is subject to the provisions of the Native Vegetation Act;
- DEC as a land manager, licensing authority and in a concurrence role under the EP&A Act;
- RTA as a land manager and determining authority;
- The Department of Lands as a land manager;
- Kiama Municipal Council and Shellharbour City Council as land managers, consent and determining authorities, and in the making of Environmental Planning Instruments under the EP&A Act;
- The Southern Rivers Catchment Management Authority, in relation to land that is subject to the provisions of Native Vegetation Act; and
- The Rural Fire Service as a determining authority and when issuing Bush Fire Hazard Reduction Certificates.
Additional public authorities may have responsibilities if the species is located in other areas in the future.
Any activity not requiring a consent or approval under the EP&A Act, and which is likely to affect Z. granulata, requires a Section 91 licence from the Director General of DEC under the provisions of the NSW TSC Act. Such a licence can be issued with or without conditions, or can be refused. If a significant effect on Z. granulata is unlikely, the Director General can issue the applicant with a Section 95(2) certificate, which acts as a defence to prosecution under sections 118A-D of the National Parks and Wildlife Act 1974.
A scientific licence issued under Section 132 (c) of the NP&W Act is required to pick Z. granulata or damage its habitat for scientific, educational or conservation purposes.
Routine agricultural activities are exempt from the provisions of the NSW TSC Act. This means, for example, that where Z. granulata occurs on private rural land, in some circumstances it can legally be subject to grazing by livestock under the provisions of the NSW TSC Act.
The EPBC Act regulates actions that may result in a significant impact on nationally listed threatened species and ecological communities. It is an offence to undertake any such actions in areas under State or Territory jurisdiction, as well as on Commonwealth-owned areas, without obtaining prior approval from the Commonwealth Minister for the Environment.
As Z. granulata is listed nationally under the EPBC Act, any person proposing to undertake actions likely to have a significant impact on this species should refer the action to the Commonwealth Minister for the Environment for consideration. The Minister will then decide whether the action requires EPBC Act approval.
The Commonwealth Department of Environment and Heritage has prepared administrative guidelines (www.deh.gov.au/epbc) to assist proponents in determining whether their action is likely to have a significant impact. In cases where the action does not require EPBC Act approval, but will result in the death or injury to Z. granulata in a Commonwealth area, a permit issued by the Commonwealth Minister for the Environment under the EPBC Act will be required.
The Commonwealth Minister for the Environment can also delegate the role of assessment and approval to other Commonwealth Ministers under a Ministerial Declaration and to the States and Territories under bilateral agreements. The development of a bilateral agreement between NSW and the Commonwealth is not complete at the date of this publication, but when in place may avoid the need for duplication of environmental assessment.