The Department of the Environment (DoE) released new Environmental Protection Biodiversity Conservation Act 1999 ‘(EPBC Act) Referral Guidelines for the Vulnerable Koala’ in late December 2014 (‘the new guideline’). The guidelines supersede the Draft Referral Guidelines that were in operation up to late last year. This blog provides a general overview of the new Referral Guidelines as gleaned by the author through practical application of the guidelines and from a briefing delivered by DoE Director of Assessments, Ms. Vicki Press, on the topic on 21 January 2015.
As background, Koala (combined populations of Queensland, New South Wales and the Australian Capital Territory) were listed as Vulnerable under the EPBC Act on 2 May 2012. Since the listing of the species, there have been three referral guidelines released on the matter. There was the Interim Koala Referral Advice (released in June 2012), the Draft EPBC Act Referral Guidelines (released in December 2013) and now the EPBC Act Referral Guidelines for the Vulnerable Koala (December 2014). It is noted that the new guideline is not a statutory instrument, yet it is used by DoE in referral assessment.
In our view, the new guideline is very similar to the former Draft Referral Guidelines. In that, assessment focus on koala habitat and the habitat assessment tool are generally unchanged. What the new guidelines do however, is provide greater clarity around DoE’s view of what constitutes ‘habitat critical to the survival’ and ‘important populations’ (of koala), provide more detailed definitions of terms used through the assessment process and provide a clearer indication of the ‘weighting’ that DoE will give to particular koala impact mitigation design measures.
A theme that comes through in the new guideline is for the EPBC Act assessment process to focus on larger areas of habitat likely to be important for long term survival / recovery of koala. We understand that the intent is for State and Local government planning processes to manage impacts on koala concerning smaller parcels of habitat. In this way, DoE expect that fewer projects will require EPBC Act approval for impacts on koala.
Key changes between the Draft Referral Guideline and the new guideline include:
- Greater alignment with State and Local Government definitions and assessment processes;
- Further detail on the level of habitat clearing likely to be deemed by DoE as significant;
- Greater detail around survey design expectations;
- Clarification of use of inputs in applying the ‘habitat assessment tool’ to a project;
- Clarifies that DoE does not consider koala translocation as an effective impact mitigation measure; and
- Specifies that DoE won’t consider offsets at referral stage. Rather, mitigation measures around reducing the
impact of development on site are a focus area at initial stages.
A few general points, taken straight from the new guidelines that may be of interest to those planning and managing projects are as follows:
- The loss of 20 hectares or more of high quality habitat critical to the survival (habitat score of ≥ 8) is highly likely to have a significant impact for the purposes of the EPBC Act;
- The loss of two hectares or less of marginal quality habitat critical to the survival (habitat score of 5) is highly unlikely to have a significant impact on the koala for the purposes of the EPBC Act;
- The loss of between 2 and 20 ha of habitat critical to the survival may have a significant impact on the koala for the purposes of the EPBC Act. Whether this is more likely or unlikely depends on the characteristics of your action; and
- Urban areas are not likely to contain habitat critical to the survival of the koala, as the existing effects of habitat loss, fragmentation, vehicle strike, dog attack and other threats are likely to continue to degrade these areas over the medium to long-term. These existing threats are best addressed by local remedial action, rather than through regulation under the EPBC Act.
As a general ‘heads up’, be aware that DoE has implemented a cost recovery for assessment of referrals process (for referrals made after 1 October 2014). This means that it is no longer free to have an EPBC Act referral assessed. To the contrary, assessment now can be fairly costly, starting with an application fee of $7352 (subject to the nature of the proposal) and in addition to this the cost of assessment (based on hours required to assess application) is passed on to the proponent. In the interest of cost reduction, it is all the more important that referral documentation is as comprehensive and ‘easy to assess’ as possible.
Looking to the future, DoE is in the process of finalising the National Koala Conservation Strategy and is developing the National Koala Recovery Plan in collaboration with State and Territory agencies. On this basis, we could expect to see another version of the koala referral guidelines in the not too distant future upon completion of the Recovery Plan in particular. Further, at a Queensland level, the implementation of the Bilateral Agreement between the Federal Government and Queensland will likely bring change as we start to see Queensland policy and assessment processes accredited under the EPBC Act.
The new guideline can currently be accessed at – http://www.environment.gov.au/biodiversity/threatened/publications/epbc-act-referral-guidelines-vulnerable-koala
Please don’t hesitate to give me a call should you require further detail.