EPBC evolution: what will the changes mean for your next project?

In August 2011, the Federal Government released its response to the independent review of the Environment Protection and Biodiversity Conservation Act (1999) (the Review), detailing which of the 71 recommendations from the Review it will adopt.

The Government’s response comes just under two years since the Review was released and just under three years since Dr Allan Hawke was appointed to head the Review. This article outlines key areas of importance for project managers, construction managers and those planning projects.

A key part of the Review that the Government did not accept was replacing the Environment Protection and Biodiversity Conservation Act (1999) (EPBC Act) in its entirety with a new act. Instead, the Government will amend the current legislation however; there is no information as to when this will occur. This leaves uncertainty for projects commencing under the current regime and how the transition will affect them.

Key themes throughout the Government’s response include the removal of duplication, streamlining and simplification of listings for threatened species and ecological communities and increased public consultation and transparency.

Other key changes will include:

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  • Strategic assessment and regional planning as the best course for protecting Matters of National Environmental Significance;
  • Early involvement with project proponents and early investigation of feasible project alternatives;

  • Creation of further guidelines and provision of industry-specific information pertaining to the EPBC Act and its processes;
  • Increased and more rigorous compliance and performance auditing, transitioning towards this being normal rather than the exception; and,
  • Increased attention on implementation of approval conditions once activity starts on an approved project.
  • A new Matter of National Environmental Significance (MNES) will be introduced – “˜Ecosystems of National Significance’ – which will trigger referral on established, healthy ecosystems rather than just those that are already in decline and “˜endangered or threatened’. The criteria for this new MNES is yet to be defined and its impact on projects will be dependent on how widespread these “˜ecosystems’ are.

    The current array of threatened species and communities lists maintained by state, territory and federal governments will be compiled into one threatened species and communities list. The list will have eight parts, one covering “˜nationally threatened’ and seven others covering species and communities threatened in each state or territory.

    The Government has outlined that it will lead discussion of a national system or standards for biodiversity banking, however, for the moment the process of biodiversity banking is still likely to differ between states and territories.

    A broadening of the “˜critical habitat’ definition will see a change from a habitat that is “˜critical to the survival’ to “˜all elements of a species’ habitat that are important to its ongoing persistence and resilience in a landscape and/or marine environments’.

    A new “˜Biodiversity Scientific Advisory Committee’ will be created, replacing the Threatened Species Scientific Committee and Biological Diversity Advisory Committee. The new committee will offer scientific advice to the Minister on areas including threatened species and ecologically sustainable use of biological resources.

    In a positive move, the introduction of improved guidelines of what constitutes a controlled action will help clarify if a project will be subject to the assessment and approval process under the EPBC Act.

    A more efficient way to deal with referred actions that are simpler in nature will be established. A new class, “˜approval on referral information’, will provide a final approval decision in 35 business days where a project is simpler in nature and meets a number of criteria including:

      >Pre-referral requirements being completed with the department;

    • The impacts of the action being demonstrated with a high degree of certainty;
    • The impacts of the action being limited to a single MNES; and,
    • The proponent has clearly documented all avoidance, mitigation and rehabilitation.
    • For more complex assessments (controlled actions), there remains no level of commitment to how long the assessment should take to complete.

    There will also be more scope to include variations following approval for a project should circumstances change, increasing or decreasing compliance measures dependent on the impacts due to the change to the project.

    A number of key changes will be introduced that cover public consultation and transparency of the processes under the EPBC Act. Enhanced transparency measures include the publication of:

    • Additional information provided to the Minister;
    • Additional information requested from and provided by proponents;
    • Environmental management plans made in accordance with an approval; and,
    • Reports and outcomes from audits undertaken under the Act.

    In addition, proponents will be required to publish all comments made to them (except for pro-forma campaign letters – which will be summarised) and the government will also publish comments it receives, again excluding campaign letters.

    Other changes to public participation will include giving the Minister discretion, on the basis of specified criteria, to seek and consider public comment on draft environmental management plans prepared in accordance with the conditions of an approval. The Federal Department of Sustainability, Environment, Water, Population and Communities (SEWPaC) will also develop guidelines for best practice public consultation with stakeholder groups and the wider community.

    Two significant changes for project managers to be aware of are the minimum period of public consultation will be no shorter than 11 business days and that a “˜business day’ will exclude any day from 24 December to 1 January.

    Some of the increased public participation and transparency changes could affect the best timing of when a proponent should involve SEWPaC.

    The response put forward by the Government could be considered to be “˜commercially naïve’ for many projects. For example, the response raises early involvement regarding alternatives (allowing the Minister to require information on alternatives at the end of the referral stage if the proposed action will have a potentially unacceptable impact) to stop proponents investing time and money into actions that aren’t going to be accepted. However, this quite often isn’t possible due to any number of commercial or project planning constraints.

    Resourcing the proposed changes to the Act remains the largest barrier to effectively managing the EPBC process in a “˜cradle to grave’ manner as the Government has strongly committed to doing in its response to the Review. To assist in resourcing the Government has said that it will introduce new cost recovery processes replacing the current limited cost recovery capacity. To determine the cost recovery mechanisms, there will be a consultation process undertaken by the Government in accordance with the Australian Government Cost Recovery Guidelines.

    In short, complex projects should expect to have additional expense, but in theory will benefit from a faster and more efficient assessment processes.

    More specific guidelines, additional public input, strategic and regional assessment, a new MNES and compliance and performance auditing all point towards a revision of the EPBC Act that has a more rigorous focus on assessment, approval and implementation.

    To date, implementation is where the EPBC process has traditionally not met expectations and will be a critical watch point for the industry. The Government is moving towards provision for further monitoring and compliance but it is not yet clear where the resourcing required to achieve these outcomes will come from.

    The changes to the EPBC Act will create a number of additional issues to be aware of for those responsible for project approvals and implementation, including the possibility of a period of uncertainty for projects caught in the crossover between the current and amended legislation.

    Ian Spence is General Manager – Western Australia for CNC Project Management and can provide advice on what the proposed changes will mean for your projects.

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