The EPBC Act Opportunities and Implications for Rural Landholders

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1 The EPBC Act Opportunities and Implications for Rural Landholders 1. INTRODUCTION The Environment Protection and Biodiversity Conservation Act 1999 (Cwlth) (the EPBC Act ) provides the legal framework for the Commonwealth's involvement in environmental impact assessment and biodiversity conservation. This fact sheet briefly describes the key ways in which the EPBC Act may affect farmers. It looks at the following topics: What are the key effects of the EPBC Act on farmers? When must farmers obtain Commonwealth environmental impact approval for their activities? When can farmers enter into conservation agreements with the Commonwealth, and what are the benefits? Plans made under the EPBC Act. What opportunities for assistance are there for farmers under the EPBC Act? Where to find further information. 2. WHAT ARE THE KEY EFFECTS OF THE EPBC ACT? The EPBC Act has the potential to impact upon farmers in a number of ways, presenting both potential constraints and opportunities. Some of the key effects are as follows. Activities proposed by farmers may require Commonwealth assessment and approval under the environmental impact assessment provisions of the Act. Plans made under the Act may provide farmers with guidance for future land management activities. Farmers may enter into conservation agreements with the Commonwealth under the Act. A conservation agreement may require the Commonwealth to provide financial assistance to a farmer in return for biodiversity conservation measures taken under the agreement. Farmers may be able to access various forms of financial and technical assistnce under the Act. Each of these is discussed in more detail below. The EPBC Act has a number of specific effects on people operating within Commonwealth areas. However, this fact sheet deals only with farmers operating outside Commonwealth areas. For more information on the provisions relating to Commonwealth areas, see the EPBC Unit s Fact Sheets on Commonwealth Lands and the Marine Environment. 3. WHEN MUST FARMERS OBTAIN COMMONWEALTH APPROVAL FOR THEIR ACTIVITIES? 3.1 Activities which impact on "matters of national environmental significance" or on Commonwealth land Actions which are likely to have a significant impact on a "matter of national environmental significance" ( MNES ) must be assessed and approved by the Commonwealth Environment Minister (the Minister). In 1

2 addition, actions which are likely to have a significant environmental impact on Commonwealth land must be assessed and approved by the Minister, even if those actions are taken outside Commonwealth land. Carrying out such an action without the Minister's approval is a criminal offence subject to severe penalties. Actions are defined for these purposes as including a project, development, undertaking, activity or a series of activities. However, an action does not include a decision of a government body to grant a governmental authorisation or to provide funding by way of a grant. 3.2 What is a "matter of national environmental significance"? At present, the following are MNES: world heritage values of declared World Heritage properties; ecological character of declared Ramsar wetlands; listed threatened species (other than extinct and conservation dependent species) and ecological communities (other than vulnerable ecological communities); migratory species listed under the Act; nuclear actions that are likely to have a significant impact on the environment; and the Commonwealth marine environment, which covers: - activities taken in a Commonwealth marine area that are likely to have a significant impact on the environment; - activities taken outside a Commonwealth marine area that are likely to have a significant impact on the environment in a Commonwealth marine area; and - fishing in a Commonwealth managed fishery that is likely to have a significant impact on the environment. Environment Australia ( EA ) has an EPBC Act website, which provides farmers and others with information concerning MNES, including an interactive search map to determine whether any MNES may be present in a particular area. Information available from State and Territory agencies relating to conservation matters may also indicate or cross reference Commonwealth information on the MNES in the vicinity of a site. Farmers should be aware that listings of threatened species and ecological communities will change with the addition and removal of species and communities. Further information on this process is available on EA s website. 3.3 What is a significant impact? Significant impact is not defined in the EPBC Act. However, EA has produced a set of Administrative Guidelines to assist in determining whether an action is likely to have a significant impact on an MNES. The Guidelines set out criteria for significance for each MNES. For example, the Guidelines provide that an action will be likely to have a significant impact on a listed threatened species in the critically endangered or endangered categories if it is likely to: lead to a long-term decrease in the size of a population of the species; reduce the area of occupancy of the species; fragment an existing population of the species into two or more populations; adversely affect habitat critical to the survival of the species; disrupt the breeding cycle of a population of the species; modify, destroy, remove, isolate or decrease the availability or quality of habitat to the extent that the species is likely to decline; 2

3 result in invasive species that are harmful to the species becoming established in the species' habitat; or interfere with the recovery of the species. Supplements to the Administrative Guidelines on Significance have also been prepared in relation to spectacled flying-foxes, grey-headed flying-foxes and Bluegrass (Dichanthium spp.) dominant grasslands of the Brigalow Belt Bioregions (North and South). These supplements provide information on when referrals should be made in relation to actions that may affect these flying-fox species and bluegrass ecological communities. Copies of EA's Administrative Guidelines on Significance (including the supplements) are available on the EA website at: In general, the guidelines indicate that minor activities such as the maintenance of existing facilities are not expected to have a significant impact on an MNES. Actions by farmers that may require approval include: the clearing of native vegetation that provides habitat for listed threatened species, or which forms part of a listed threatened ecological community, where the clearing is likely to have a significant or notable impact on the relevant species or community; a large-scale irrigation project in the catchment of a declared Ramsar wetland, where the project is likely to have a significant impact on the hydrology of the wetland; and pest management activities on a property adjacent to a declared World Heritage property, where the pest contributes to the world heritage values of the property and the management activities are likely to have a significant impact on the numbers of the pest in the property. 3.4 How does the Commonwealth approval process start? The decision about whether or not an action is likely to have a significant impact is a matter for the Minister. A farmer must refer an action to the Minister if he or she thinks it may have a significant impact on an MNES, or to have a significant environmental impact on Commonwealth land. Actions can also be referred to the Minister by a State or Territory Government, and the Minister can 'call in' an action. The Minister then decides whether or not the action needs assessment and approval under the EPBC Act. The Minister is usually required to make this decision within 20 business days of receiving the referral. If the action requires assessment and approval: the Minister then decides on the appropriate assessment approach; that assessment is carried out; and the project in question is either approved or refused. The time the assessment and approval process takes will depend upon the level of assessment that is required and the speed with which the proponent can complete necessary elements of the assessment process. 3.5 Exemptions There are a number of exemptions to the need for Commonwealth assessment and approval under the EPBC Act. Perhaps most relevantly, an action will not need approval if it is a lawful continuation of a use of land that was occurring immediately before the Act came into force (however, an expansion or intensification of a lawful use is not a continuation of that use). Most routine farming activities that occur on a regular or seasonal basis are likely to fall under this exemption (for example, seasonal cropping and crop rotations, drought fodder, weed and pest management and routine fire controls). 4. PLANS MADE UNDER THE EPBC ACT The EPBC Act provides for the preparation of a number of different types of plans which have the potential to help guide future management decisions by farmers. These plans may also assist farmers by gathering information in the one place and making it publicly available. 3

4 The plans provided for under the EPBC Act include: bioregional plans; recovery plans for threatened species and ecological communities listed under the Act; threat abatement plans for "key threatening processes" listed under the Act; wildlife conservation plans for, amongst other things, migratory species and "conservation dependent" species listed under the Act; management plans for World Heritage properties declared under the Act; management plans for Ramsar wetlands declared under the Act; and management plans for designated Biosphere reserves. These plans can be prepared solely for Commonwealth areas or, where appropriate, on a joint basis with relevant States or Territories. 5. CONSERVATION AGREEMENTS AND THEIR BENEFITS Conservation agreements are voluntary agreements made under the EPBC Act between the Minister (on behalf of the Commonwealth) and a farmer or any other person for the protection and conservation of biodiversity. They can relate to private or public land. The Minister may not enter into a conservation agreement unless satisfied that: the proposed agreement will result in a net benefit to the conservation of biodiversity; and the proposed agreement is consistent with any relevant recovery plan, threat abatement plan or wildlife conservation plan made under the EPBC Act. Conservation agreements are legally binding on the parties and their successors in title. They can provide for a range of things, including that specified activities be carried out, or prohibited, in order to promote the conservation of biodiversity. Potential benefits to farmers from entering into conservation agreements include the fact that an agreement can require the Commonwealth to provide financial and technical assistance to a person bound by the agreement (for example, a farmer). The Minister is required to make copies of conservation agreements available to the public. However, there are various exceptions to this, including where the Minister is satisfied that disclosure of an agreement would disclose matters that are commercial-in-confidence. For more information on conservation agreements, farmers should contact EA. Further information about conservation agreements is contained in the EPBC Unit s Fact Sheet on Conservation Agreements. 6. OPPORTUNITIES FOR ASSISTANCE A number of potential avenues for assistance exist for farmers under the EPBC Act. Examples include: financial and technical assistance can be given to a farmer or any other person bound by the terms of a conservation agreement, as described above, and financial or other assistance can be given to a farmer or any other person for the purpose of identifying and monitoring "components of biodiversity" (which is defined broadly). It is also feasible that: 4

5 a farmer who takes on a key role in implementing a recovery plan, a threat abatement plan or a wildlife conservation plan made under the EPBC Act could obtain financial or other assistance from the Commonwealth; and a farmer who takes on a key role in protecting or conserving a declared World Heritage property or Ramsar wetland could obtain financial or other assistance from the Commonwealth. In many instances, involvement in activities related to the EPBC Act can lead to opportunities to obtain funding under other government programs. For example, a farmer who assists in implementing a recovery plan for a threatened species may be eligible for funding from the Natural Heritage Trust. For information on opportunities to obtain funding from the Natural Heritage Trust to assist in the conservation of listed threatened species and ecological communities, contact the National Coordinator of the Threatened Species Network on (or via - tsn@wwf.org.au). 7. WHERE TO GO FOR FURTHER INFORMATION The EPBC Act and related information is available on Environment Australia s website at: EPBC Unit Website: Ph: (02) Fax: (02) epbc@wwf.org.au Environment Australia Community Information Unit Ph: ciu@ea.gov.au Compliance and Enforcement Ph: (02) compliance@ea.gov.au Threatened Species Network Website: WWF Australia Website: Phone: enquiries@wwf.org.au Humane Society International Website: Phone: (02) enquiries@hsi.org.au Tasmanian Conservation Trust Website: Phone: (03) tct@southcom.com.au National Environmental Defender s Office Network Website: Warning!! This fact sheet has been prepared for information purposes only. WWF Australia, Humane Society International and the Tasmanian Conservation Trust shall not be liable for any loss or damage that may be occasioned directly or indirectly through the use of, or reliance on, the contents of this document. 5