NSW Land Management and Biodiversity Conservation Reforms. Draft regulations and supporting products Summary of submissions report 2017

Transcription

1 NSW Land Management and Biodiversity Conservation Reforms Draft regulations and supporting products Summary of submissions report 2017

2 2017 State of NSW With the exception of photographs, the State of NSW is pleased to allow this material to be reproduced in whole or in part for educational and non-commercial use, provided the meaning is unchanged and its source, publisher and authorship are acknowledged. Specific permission is required for the reproduction of photographs. The State of NSW has compiled this report in good faith, exercising all due care and attention. No representation is made about the accuracy, completeness or suitability of the information in this publication for any particular purpose. The State of NSW shall not be liable for any damage which may occur to any person or organisation taking action or not on the basis of this publication. Readers should seek appropriate advice when applying the information to their specific needs. All content in this publication is owned by the State of NSW and is protected by Crown Copyright, unless credited otherwise. It is licensed under the Creative Commons Attribution 4.0 International (CC BY 4.0), subject to the exemptions contained in the licence. The legal code for the licence is available at Creative Commons. The State of NSW asserts the right to be attributed as author of the original material in the following manner: State of New South Wales Published by: Office of Environment and Heritage on behalf of the NSW Government 59 Goulburn Street, Sydney NSW 2000 PO Box A290, Sydney South NSW 1232 Phone: (switchboard) Phone: (environment information and publications requests) Phone: (national parks, general environmental enquiries, and publications requests) Fax: TTY users: phone , then ask for Speak and listen users: phone , then ask for info@environment.nsw.gov.au Website: Report pollution and environmental incidents Environment Line: (NSW only) or info@environment.nsw.gov.au See also ISBN OEH 2017/0481 August 2017

3 Table of Contents List of figures... v List of tables... v Summary About this report Purpose of this report How many submissions were received? Who made the submissions? Publication of submissions How were submissions analysed? Overview of the public exhibition engagement process Overview of comments on the proposed reforms Ecologically sustainable development Offset rules Serious and irreversible impacts (SAII) Biodiversity Offsets Scheme threshold (BOS threshold) Biodiversity Assessment Method (BAM) Assessor accreditation Biocertification Offsets payment calculator Savings and transitional arrangements (BC Regulation) Protecting native animals and plants Threatened species and ecological communities listing processes Risk-based framework for managing wildlife interactions Areas of outstanding biodiversity value (AOBV) General comments on protecting native animals and plants Private land conservation (PLC) Agreements Reimbursement associated with mining Savings and transitional arrangements (PLC) Biodiversity Conservation Trust Land management Native Vegetation Regulatory Map (NVR Map) Allowable activities The Land Management (Native Vegetation) Code 2017 (the Code) Set asides Travelling Stock Reserves iii

4 8. Environmental Planning and Assessment Amendment Regulation Vegetation State Environmental Planning Policy (SEPP) General issues relevant to the Department of Planning and Environment (DPE) Delegations, monitoring, compliance and penalties, public registers Delegations Monitoring Compliance and penalties Public registers Other land management and biodiversity conservation reform issues Public consultation process and timeframes for commencement of the reforms Regulatory Impact Statement (RIS) Koala habitat Climate change Attachment A Acronyms Attachment B Unique comments in campaign submissions iv

5 List of figures Figure 1. Breakdown of 8924 submissions by stakeholder category, including campaign submissions. 3 Figure 2. Breakdown of 542 submissions by stakeholder category, excluding campaign submissions. 4 List of tables Table 1. Summary of the reform themes and the percentage of submissions that commented on the theme, including and excluding campaign submissions. 9 v

6 Summary Draft regulations and other key products to support the NSW Government s new Biodiversity Conservation Act 2016 and Local Land Services Amendment Act 2016, were on exhibition from 10 May until 21 June The community was invited to make submissions on the material on exhibition. A total of 8924 submissions were received, including 8382 campaign submissions and 542 unique submissions from groups and individuals. All submissions have been analysed, including campaign submissions. Additional or unique comments included as part of campaign submissions were also analysed. This report provides a summary of the issues raised in submissions. It identifies the key submission themes, summarises the level of interest raised by stakeholders under each theme and highlights representative views to show the range of opinion on the reform proposals. Submissions were categorised into nine stakeholder groups: individuals (8749), government bodies (50), environment groups (51), business and industry groups (29), wildlife groups and operators (19), community groups (14), scientific and research organisations (5), political parties (4), farming sector (3). Generally, individuals, government bodies, political parties, environment and community groups, scientists and wildlife operators were concerned that the reforms would result in an increase in a loss of biodiversity in New South Wales. Business and industry groups and the farming sector supported the streamlining of environmental assessment and land management legislation but considered elements of the reforms were overly restrictive. 1

7 1. About this report 1.1 Purpose of this report Draft regulations and other key products to support the Government s new Biodiversity Conservation Act 2016 and Local Land Services Amendment Act 2016 were on exhibition from 10 May until 21 June The following materials were exhibited: Draft Biodiversity Conservation Regulation 2017 and its supporting regulatory impact statement Draft Local Land Services Amendment Regulation 2017 Draft Environmental Planning and Assessment Amendment (Biodiversity Conservation) Regulation 2017 Explanation of Intended Effect for the State Environmental Planning Policy (Vegetation) 2017 Land Management (Native Vegetation) Code Biodiversity Assessment Method (BAM) and BAM Tool Accreditation Scheme for the Application of the Biodiversity Assessment Method Draft Sensitive Biodiversity Values Land Map Serious and irreversible impacts guidance Offsets payment calculator and User Manual. The community was invited to make submissions on the exhibited material via the land management and biodiversity conservation reform website ( or by post. Submissions were also received by NSW Government Ministers and the Office or Environment and Heritage Environment Line address. This report provides a summary of the issues on exhibited material that were raised in submissions. This report does not provide the NSW Government s response to the issues raised in submissions. 1.2 How many submissions were received? A total of 8924 submissions were received on the material on exhibition, including 8382 campaign submissions and 542 unique submissions from groups and individuals. Some stakeholder groups ran campaigns or provided guidance to support individual submissions. The Nature Conservation Council (NCC), International Fund for Animal Welfare (IFAW) and Stand Up For Nature (SUFN) campaigns generated 7666 submissions (86% of all submissions). A further 12 campaigns generated correspondence from 716 individuals that were treated as submissions. 1.3 Who made the submissions? The 8924 submissions have been categorised by stakeholder category as follows: (and represented in Figure 1) 2

8 8749 from individuals (8382 campaign submissions, 367 unique) 50 from government bodies (including 49 councils) 51 from environment groups 29 business and industry groups (housing, property, development, mining, ecological consultants) 19 from wildlife groups and operators 14 from community groups 5 from scientific and research organisations 4 from political parties 3 from the farming sector All submissions have been analysed, including additional or unique comments included in campaign submissions. Refer to Attachment B for an overview of the unique comments raised in the NCC, IFAW and SUFN campaign submissions, that were additional to the standardised campaign text. Figure 1. Breakdown of 8924 submissions by stakeholder category, including campaign submissions. 3

9 Figure 2 shows the proportion of the 542 unique submissions classified by stakeholder category, excluding campaign submissions. Figure 2. Breakdown of 542 unique submissions by stakeholder category, excluding campaign submissions. 1.4 Publication of submissions Individual submissions will be made available on the land management and biodiversity reforms website: How were submissions analysed? The Office of Environment and Heritage, the Department of Primary Industries and the Department of Planning and Environment have reviewed and analysed all submissions received. This report identifies the key submission themes and summarises the level of interest raised by stakeholders under each theme. The level of interest is represented by the percentage of unique submissions that commented on each theme. 4

10 Given the volume of feedback, this report does not attempt to document every comment made on the material on exhibition. The report focuses on key points raised by stakeholders and highlights representative views to show the range of opinion on the reform proposals. Each section of this report includes a brief summary of the key policy proposal that was included in the exhibition materials. 1.6 Overview of the public exhibition engagement process A series of stakeholder engagement activities was undertaken to support the public exhibition. Engagement included: land management website five fact sheets and four submission guides 45+ targeted stakeholder briefings four webinars. 5

11 2. Overview of comments on the proposed reforms Environment and community groups, councils, scientists and many individuals were keen to see stronger environmental protection in the reforms. Industry, farming and mining stakeholders and the development sector supported the streamlining of environmental assessment and land management legislation. Development proponents were concerned, however, that the reforms will impact on costs of development. Many stakeholders felt as though concerns highlighted during previous consultation were not taken into consideration. Concern about the proposed reforms impact on biodiversity Councils, environment and community groups and individuals expressed concern that the reforms would result in biodiversity loss and environmental degradation due to excessive land clearing. Many stakeholders requested changes to the legislation. SCCG is concerned that the biodiversity reforms constitute a severe weakening of environmental protections in NSW The proposed reforms, as they currently stand, cannot possibly achieve enhanced biodiversity, or the proposed no net loss, and in all likelihood will lead to broadscale vegetation loss, local extinctions and accelerated pathways to uplisting or total extinctions for many threatened species and communities across NSW. (Sydney Coastal Councils Group) There is no scientific data suggesting that the Government s proposed Biodiversity Offset Scheme will protect or enhance NSW biodiversity. What is very clear, however, is that this scheme will allow developers to clear native vegetation, including endangered ecological communities and threatened species habitat, where they currently cannot. This is not in the public interest nor is it compatible with the principles of Ecologically Sustainable Development In urban areas, particularly the Greater Sydney region, where remnant bushland is scarce and the pressure of development intense, there is no doubt that the application of this Biodiversity Offset Scheme will likely result in a significant decline of native vegetation, including endangered ecological communities and threatened species habitat. (Better Planning Network Inc.) Environment groups, councils and individuals expressed concern that the draft Land Management (Native Vegetation) Code 2017 (the Code) will enable significant vegetation clearing. Many stakeholders requested the codes be reconsidered. Part 6 Equity: This part of the Code permits significant clearing of native vegetation on category 2 regulated land; provides for re-categorisation of areas cleared of native vegetation in accordance with the Part; and provides for establishment of set aside areas on category 2 regulated land We do not support this code as the scale of the clearing potentially permitted is so significant that it equates to broadscale land clearing. Any clearing of this scale should be properly assessed by the NV Panel and not allowable under a code. The code is confusing, highly discretionary, and extremely risky. Set aside requirements are riddled with exceptions and discretions We therefore recommend deleting clauses relating to the Equity code i.e., delete Part 6. If our recommendation is not accepted, serious efforts must be made to address our concerns. (Environmental Defenders Office NSW, EDO) 6

12 The equity code allows broadscale tree clearing, up to 625 ha in any three-year period, leading to a cumulative level of habitat loss that is unacceptable, and will prove disastrous for biodiversity Self-assessment codes for land clearing should only apply to small-scale routine activities such as clearing for fence lines, as was recommended by the Government s original Review Panel. (Clarence Environment Centre) Support for streamlining development Farming and development stakeholders were supportive of reform processes to streamline agricultural production and development. NSW Farmers supports the approach to managing low-risk clearing activities through self-assessable Codes to allow farmers to maintain and improve the productivity of their farm. (NSW Farmers Association (NSW Farmers)) HIA supports the introduction of a single method for assessing the impacts of actions on threatened species and threatened ecological communities and their habitats. (Housing Industry Association (HIA)) However, there was concern the reforms will increase the cost of development. In summary the reforms will make both major projects and local development significantly more expensive with impacts on jobs, the growth of industry and the price of housing inevitable. (NSW Minerals Council) Concern that the reforms will commence prior to the finalisation of key details and public consultation Councils, environment groups and individuals expressed concern that key instruments would not be finalised prior to commencement. There are high risks in rushing commencement of the Biodiversity Offsets Scheme (BOS), and the new rural land-clearing system including the Native Vegetation Code (Code) by August We strongly recommend delaying commencement of the BOS, the Code and other clearing via the Native Vegetation Panel (NV Panel), until the relevant institutions are fully established, regulatory maps and sensitive values maps are finalised and quality-assured, sufficient qualified staff are recruited and trained, and biodiversity conservation strategies and priorities are developed. (EDO) The Law Society has serious concerns about the regulatory risk of commencing the new native vegetation management scheme before the maps have been finalised... We submit that the criteria are not clear and that there is a high risk that substantial clearing based on self-assessment of whether land is regulated is likely to lead to significant amounts of clearing. This arrangement assumes that landholders have the ecological expertise to determine whether their vegetation is on regulated or unregulated land. If commencement does proceed without finalisation of accurate mapping, we strongly endorse the recommendation of EDO NSW that all levels of code-based clearing require LLS certification, not only notification, during the transitional period. (The Law Society of NSW) All stakeholder groups welcomed the opportunity to provide further feedback on these instruments. Concern that the reforms are overly complex The property sector, local councils, environment groups and individuals believe the reforms are too complex and may not reduce red tape. 7

13 We are very concerned that the biodiversity reforms increase complexity and thus fail to address key objectives of the reform agenda. We are seasoned Council officers with many combined years of both private and government ecological and planning experience. We are very concerned about the apparent complexity of the new regime. Further, it is evident that complex administrative systems are not addressed in the reforms and there remain complexities and uncertainties with this new legislation and other statutes such as the Mining Act, Environmental Planning & Assessment Act, State Environmental Planning Policies, Local Environmental Planning Policies and Development Control Plans. (MidCoast Council) Council supports attempts to simplify the vegetation clearing rules for rural landowners and to reduce red tape for farmers while also providing appropriate levels of biodiversity protection. Eurobodalla Shire Council recently completed a Rural Lands Strategy. The strategy identified that land management processes need to be simplified. This is essential for carrying out efficient, effective and sustainable agricultural operations at all scales. Council is not convinced that the reforms achieve this outcome, primarily due to the complex nature of the reforms proposed. For example, the proposal to have two similarly named maps ( Sensitive Biodiversity Values Land Mapping and category 2 sensitive regulated land ) is likely to be confusing to the general public. While they are separate maps under separate legislation, they are both sensitive lands mapping. Council supports the intention of the NSW Government to develop a tool to assist landowners to navigate the requirements of the new legislation and mapping. (Eurobodalla Shire Council) Councils are concerned that local planning processes will be undermined by the reforms Councils expressed concern that local-level policies and legislation, programs and contextspecific knowledge and data will be undermined by the reforms. Council has a long history of managing local planning processes and biodiversity in the LGA and has significant in-house knowledge and data on species, landscapes and habitats in Port Stephens. The introduction of legislation, regulations and the move to external approvals (from local government) that reduces the ability for Council to manage land-use planning and local biodiversity issues is concerning. Council is interested in achieving biodiversity conservation and land-use planning outcomes through utilising the most accurate datasets available to ensure that genuine conservation and community development outcomes can be achieved, whilst providing certainty and minimising costs for proponents. (Port Stephens Council) We are concerned that our gains since 1999 to secure and protect (and restore) functional native vegetation to our catchments to protect water quality and provide the ecosystem services that underpin our regional economy (which relies on naturebased tourism and primary production from healthy catchments) will be impaired and reversed. This loss should not be a consequence of the reform process. (MidCoast Council) Summary of stakeholder comments by reform theme The five key themes raised in the 8382 campaign submissions were: offset rules (97%), koala habitat (96%), travelling stock reserves (94%), public consultation process and timeframes for commencement of the reforms (90%), the Land Management (Native Vegetation) Code (85%). Table 1 summarises the reform themes analysed and the percentage of unique submissions that commented on the theme. Detail on each theme can be found in the body of the report. 8

14 Table 1. Summary of the reform themes and the percentage of unique submissions that commented on the theme. Theme Unique submissions Offset rules 50% The Land Management (Native Vegetation) Code (the Code) 48% Public consultation process and timeframes for commencement of the reforms 42% Native Vegetation Regulatory Map (NVR Map) 36% Koala habitat 35% Vegetation SEPP 27% Biodiversity Assessment Method (BAM) 24% Serious and irreversible impacts (SAII) 23% BOS Threshold (area trigger and SBVL Map) 22% Travelling Stock Reserves (TSRs) 21% Climate change 18% Areas of outstanding biodiversity value (AOBV) 17% Biodiversity Conservation Trust 16% General comments on protecting native animals and plants 14% Agreements 11% Assessor accreditation 10% Threatened species and ecological communities listing processes 9% General issues relevant to DPE 8% Offsets payment calculator 7% Biocertification 6% Set asides 6% Monitoring 5% Allowable activities 3% Compliance and penalties 3% Savings and transitional arrangements (BC Reg) 2% Delegations 2% Public registers 2% Risk-based framework for managing wildlife interactions 1% Reimbursement associated with mining 1% Savings and Transitional Arrangements (PLC) 1% Regulatory Impact Statement (RIS) 1% 9

15 3. Ecologically sustainable development The Biodiversity Offsets Scheme will simplify biodiversity assessment and improve biodiversity outcomes by creating consistent assessment requirements to measure the likely biodiversity loss of development proposals and gains in biodiversity value. 3.1 Offset rules The offset rules will govern the types of offsets that can be used to meet an offset obligation under the Biodiversity Offsets Scheme. If a proponent is not able to find like-for-like credits and chooses not to use the other offset options, they can vary their offset obligation credit type by applying the variation rules. Unique submissions 50% Differing stakeholder views on the offset rules Stakeholders from environment groups and councils believe that offsetting should always be like-for-like and located as close as possible to the vegetation being lost. These rules should also apply to the Biodiversity Conservation Trust (BC Trust). Offsets must be underpinned by the maintain or improve principle; be genuine likefor-like to the level of plant community or fauna species; occur within the same subbioregion; contain red-flag species and ecosystems that are off-limits to clearing. (Stand Up for Nature Alliance (SUFN)) However, some within this group consider like-for-like does not take into account niche habitat requirements. Similarly, habitat offsetting for one set of threatened species (e.g. threatened plant species such as Grevillea juniperina ssp. juniperina and Pimelea spicata in Cumberland Plain Woodland) are unlikely to result in adequate offsetting for other threatened species that live in the same habitat (e.g. regent honeyeaters, speckled warblers, brown treecreepers, swift parrots). This is because, although threatened species within a community may occur in the same habitat, they also have different microhabitat preferences, and this is not taken into account in the offsetting process. (Royal Zoological Society of NSW (RZS)) Councils are concerned about the cumulative negative effect on local biodiversity through sourcing offsets outside their LGA. The new offset system design leaves each LGA with the potential to have biodiversity values significantly reduced through cumulative effects of offset purchases outside the LGA for clearing activities within its boundaries. Although likefor-like is preferred in a highly cleared landscape or vegetation community, the likelihood of finding similar vegetation types in the area may be very low. With successive applicants purchasing or providing offset credits outside the LGA over time, the cumulative effects on vegetation cover and biodiversity values in a single LGA could be significant. LGAs experiencing higher development demand are more vulnerable to this outcome. (Yass Valley Council) 10

16 Application of variation rules NSW Farmers has stated that limiting the variation rules will increase the costs of credits and therefore cost of development. the offset rules require like-for-like credits to be sought in the first instance. This limits access to the variation rules and imposes unnecessary constraints on the nonlike-for-like credits that may be retired to discharge a credit retirement obligation. This will have the effect of creating numerous discrete credit markets by limiting the range of credit types that a proponent may retire. This will inflate the cost of credits and thereby increase the cost of development Flexibility should be built into the offsets scheme to ensure that development, including agricultural development, can proceed at a reasonable cost. (NSW Farmers) Councils and environment groups submit that endangered ecological communities should not be subject to variation rules. Variation rules should not be able to be used for endangered ecological communities, as well as the existing proposal to exclude their use for critically endangered ecological communities. Allowing variation rules to apply to endangered ecological communities will ultimately result in further loss of these communities rather than encouraging their protection and conservation. The aim of the reforms should be to discourage further loss of threatened species and communities rather than providing opportunities to do so. (Penrith Council) Flexible offset options applying to the Biodiversity Conservation Trust There was concern about the options available to the Biodiversity Conservation Trust to secure biodiversity offsets. With such safeguards in place we recognise that some flexibility for the BC Trust is necessary to exercise its obligations under the BC Fund effectively. However, the extent of the proposed variation rules is excessive and likely to lead to significant biodiversity declines in NSW. We reiterate our support for clear and specific governance and integrity arrangements to apply to the BC Trust (or other BC Fund manager). (EDO NSW) We ask that the supplementary conservation actions and payments to the Biodiversity Conservation Fund be removed from the final Biodiversity Conservation Regulation. (Maules Creek Branch of CWA of NSW) 3.2 Serious and irreversible impacts (SAII) The Biodiversity Offsets Scheme recognises that there are some types of serious and irreversible impacts that the community expects will not occur except where these impacts are significantly outweighed by the social and economic benefits that development will deliver to the State. Proposed principles for identifying serious and irreversible impacts are set out in the draft Biodiversity Conservation Regulation (BC Regulation). Unique submissions 23% 11

17 Opposing views on serious and irreversible impacts The mining industry is concerned about the impacts on major projects. SAII creates a red flag for local development and could effectively red flag major projects depending on the additional measures proposed. It is extremely important that SAII are applied carefully and with consistency. In addition, there is no guidance on what might amount to additional and appropriate measures giving proponents no guidance about the potential cost implications of these measures, and of the ultimate final cost of the offset for any project with SAII. (NSW Minerals Council) Environment groups and local government are concerned about the level of discretion that can be applied and recommend the SAII principles be extended to include: any significant effect on the following (as determined by a species impact statement or equivalent BAM process): vulnerable and endangered species and ecological communities; salinity, erosion, soil quality, water quality, hydrological processes and carbon stores (building on the existing Environmental Outcomes Assessment Methodology); important rivers and biodiversity corridors. (SUFN) All stakeholder groups were concerned that thresholds for serious and irreversible impacts were not provided. 3.3 Biodiversity Offsets Scheme threshold (BOS threshold) There are two elements to the Biodiversity Offsets Scheme Threshold an area trigger and a Sensitive Biodiversity Values Land Map trigger. Unique submissions 22% Differing opinions relating to the area trigger Environment groups argue that there should be a standard 0.25 ha BOS threshold regardless of lot size, councils believe the thresholds are too high in the urban context, NSW Farmers has stated the thresholds are too low and developers consider the threshold should not be based on lot size. This scale is not justified on an ecological basis (i.e. the biodiversity impacts of clearing are affected both by the area to be cleared but also the particular vegetation type and location) and a uniform threshold of 0.25ha should apply regardless of minimum lot size. (SUFN) The small area development threshold does not allow for the consideration of the value that a small remnant of vegetation may play as part of a biodiversity corridor or vegetated stepping stones. (Sydney Coastal Councils Group) the thresholds for the BOS threshold for development consent seem very low, and routine management activities must be included. (NSW Farmers) 12

18 PIA members have suggested that lot size is an artificial construct and the scheme threshold should only relate to the amount of vegetation (ha) cleared. (Planning Institute of Australia, NSW Division (PIA)) We submit the BOS should never be triggered at a development application stage on urban land. (Property Council of Australia) Environment groups and councils are concerned the threshold does not take into consideration the cumulative impacts of clearing at a regional scale. A strong BOS threshold is very important to capture cumulative impacts of smallscale clearing (including incremental clearing by stealth), which can have disastrous effects on biodiversity, including in urban areas and environmental zones. (EDO) Many local governments also consider that they should retain involvement in the development approval process for applications for clearing above the BOS threshold. The Sensitive Biodiversity Values Land Map (SBVL Map) All stakeholder groups expressed concern over the accuracy of the SBVL Map and the scale at which it will be produced and requested it be exhibited for public consultation prior to commencement. Timber NSW does not support a SBVL Map. The NSW Minerals Council considers that the current list of possible inclusions in the Map is: excessively broad and provides a significant degree of uncertainty for industry as to what areas may be included in the Sensitive Biodiversity Values Land Map. (NSW Minerals Council) Environment groups suggest the inclusions could be broader. We strongly support the list of matters proposed for inclusion in the sensitive values map. Note we make further recommendations to extend this category to include TSRs, a minimum mapped riparian buffer of 20m around all watercourses, and the coastal zone. (EDO) Many councils would welcome the opportunity to provide local biodiversity maps included as overlays to the SBVL Map. This is supported by the Planning Institute of Australia. A significant issue is the extent to which OEH and Council mapping products are consistent. The Sensitive Biodiversity Values mapping should take into consideration existing mapping of local councils. Many councils already have similar layers mapped as part of their Local Environment Plan. Councils are appropriate agencies to provide this information as they have the most detailed on-ground knowledge of their local area. (PIA) Developers, councils and environment groups all requested that the reforms not commence until the map is complete. 3.4 Biodiversity Assessment Method (BAM) The BAM assesses the biodiversity value of land and calculates likely losses in biodiversity values resulting from clearing of native vegetation and habitat destruction. It also calculates likely gains in biodiversity values from conserving native vegetation and actively managing land for conservation as a stewardship site. Unique submissions 24% 13

19 The BAM is too complex Councils are concerned that the BAM is too complex and difficult for an unaccredited person to use. While the preparation of a single tool for assessment is supported, the draft BAM is incredibly complex and reliant on interactions between numerous formulas and the outcomes of multiple aspects of field assessment. Without substantial experience and/or training in applying the methodology, it is difficult to provide detailed comment on the ability of the BAM to properly inform the offset process. (Tweed Shire Council) Concern that applying the BAM will increase costs The mining sector and development groups are concerned that development costs will increase under the BAM. The implications for the NSW mining industry and other developers in NSW is that the cost of any future development will increase significantly under the BAM and higher offset ratios will reduce the areas available for offsetting. (NSW Minerals Council) NSW Farmers is concerned that the BAM will preclude some from entering into Biodiversity Stewardship Agreements. Cost estimates to run the BAM on one property are as high as $80, ,000 per property and some cost estimates using the offset calculator set credit costs impossibly high. This will prevent entry for low return industries like agriculture. Landholders will not be able to make informed decisions about whether to offer their vegetation as an offset (i.e. run the BAM to generate credits) without knowing the cost of applying the BAM and the price generated credits will fetch in the market. Landholders will not be able to judge whether to offer vegetation in good condition into the private land conservation estate without knowing what government will pay for its conservation. (NSW Farmers) 3.5 Assessor accreditation The Biodiversity Conservation Act requires that BAM assessments be undertaken by assessors accredited to use the BAM. This will ensure assessments are robust and consistent. OEH has developed a draft scheme to accredit assessors. Unique submissions 10% General support for the assessor accreditation scheme There is general support for the new assessor accreditation scheme, particularly where it supports the independence and integrity of biodiversity assessors. EDO NSW has long supported the accreditation of consultants to undertake biodiversity assessments. As indicated by the number of inquiries and concerns received by EDO NSW, the independence and integrity of biodiversity assessors is 14

20 fundamental to an effective regulatory regime. We therefore welcome the proposed accreditation scheme and recommend changes that will help to ensure the scheme is transparent, robust and includes sufficient penalties for consultants who do not comply with the scheme. (EDO) Availability of accredited assessors upon commencement of the reforms Councils and developers expressed concern about whether there would be sufficient accredited assessors available upon commencement of the reforms. A number of councils commented on the importance of having their staff adequately trained to assess Biodiversity Development Assessment Reports. Developers are concerned this will result in delays in applications. Developments lodged with Council following 25 August 2017 will experience significant assessment delays given that no Council ecologists are currently accredited or trained. (LWP Property Group) Interaction with existing third-party accreditation schemes A number of environment consultancies were interested in how the new assessor accreditation scheme will interact with existing third-party accreditation schemes. EIANZ supports the accreditation of assessors using the BAM EIANZ would be interested in participating in the establishment of an accreditation scheme, and supports the consideration of ethical standards (e.g. via a code of conduct etc.) as well as technical standards for using the methodology. (EIANZ) 3.6 Biocertification Biodiversity certification encourages the assessment and protection of biodiversity values at the strategic planning stage at a landscape scale. The new biodiversity certification framework permits both landowners and planning authorities to apply for biodiversity certification, and also includes the new concept of strategic biodiversity certification, which provides tools for landscape-scale conservation planning. Unique submissions 6% Concern about lack of consultation with councils Councils and some developers are concerned that under the proposed arrangements, councils sponsorship of projects will not be a requirement, resulting in local government planning objectives not being considered. The potential exists for local government objectives, polices, strategies and LEPs to be undermined. Local government requires a higher level and more significant role in applications for biocertification. Biocertification is intended to be a strategic planning process to accompany rezoning, so the links with the planning process need to be explicit. The proponent should be required not only to consult but to gain Local government support for the biocertification proposal. At the very least consultation with local government should be directly with OEH rather than through the proponent. (Lake Macquarie City Council) 15

21 Issues regarding strategic biocertification Some councils are concerned that strategic biocertification does not acknowledge existing local planning controls as being strategic. The Minister for the Environment is responsible for declaring proposals to be strategic. The draft BC Regulation sets out criteria that the Environment Minister must consider when declaring a proposal to be strategic. This is seen as inadequate given the strong planning controls around biodiversity within LEP 2015, being the existing strategic level planning document that applies in the Blue Mountains The above biodiversity certification approach would appear to be predicated on the assumption that existing planning controls, through LEPs and DCPs, do not take a strategic approach to the management of biodiversity. (Blue Mountains City Council). Some environment groups and councils were concerned about the criteria to be taken into account by the Minister when declaring strategic application Noting our concerns about weaker, discretionary environmental standards for strategic biocertification, we consider the proposed criteria in clause 8.2 are vague and inadequate. There are no specific environmental heads of consideration (such as the principles of ESD which underpin the Act), and there is no requirement to seek advice from the Environment Agency Head, the Biodiversity Conservation Advisory Panel, or the Threatened Species Scientific Committee which lists species and communities and evaluates their extinction risks. These requirements should be inserted into the Regulation Furthermore, as noted above (clause 6.2), strategic biocertification impacts should only be offset by like-for-like credits (or limited variation rules). (EDO). 3.7 Offsets payment calculator The purpose of the draft offsets payment calculator is to determine how much a proponent must pay into the Biodiversity Conservation Fund to satisfy an offset obligation. The payment is based on predicting the costs that will be incurred by the Fund when securing the necessary offset credits. Unique submissions 7% Concern about assumptions in the calculator Developers are concerned that market regions and their groupings are inappropriate. They should not be based on bioregional boundaries, but on the actual and likely future need for offset land. This is directly related to where development is expected to occur. (Environment Institute of Australia and New Zealand, EIANZ) Environment groups and councils are concerned that the calculator does not adequately factor in scarcity of particular plant community types (PCT). The belief that as certain credits become scarcer, and the market price of these credits increase will protect biodiversity loss, is not supported whilst ever the variation rules exist that enable the purchase of 'like for similar', nor does this account for 16

22 developers willing to pay a premium for particular developments. (Port Stephens Council) The 'risk' loading is not supported for different reasons. Some environment groups are concerned that the risk of not finding a suitable offset is not factored in, while developer groups suggest that the price of credits should already incorporate all risks. There is also concern that the calculator is based on plant community types and is not suitable for determining offsets for threatened species. The intent of offsetting appears to specifically offset impacts to threatened species and communities. However, the offsets calculator works on the basis of plant community types (PCTs), which do not have any kind of direct correspondence to listed threatened ecological communities (and indeed do not directly factor into the way communities are defined for assessing threatened status). Thus, it is entirely unclear what mechanisms might be used to apply offsets to threatened ecological communities. (NSW Scientific Committee) Concern about the costs estimated by the calculator Developer groups are concerned that the calculator estimates a cost of paying into the Biodiversity Conservation Fund that is too high and this will deter proponents from paying into the Fund to meet an offset obligation. Developers raise concerns that this will undermine the work of the Biodiversity Conservation Trust to expand private land conservation. In order to be successful the calculator must from the beginning generate appropriate prices. It does not do so at this time and if it is allowed to commence in its current form will be a failure for the mining industry, other industries, continue the uncertainty for landowners such as farmers who may wish to participate in biodiversity conservation and highlight process failures by the NSW Government. (NSW Minerals Council) 3.8 Savings and transitional arrangements (BC Regulation) Savings and transitional arrangements have been proposed to ensure a smooth transition to the Biodiversity Offsets Scheme. These arrangements will be implemented through legislative changes. The draft legislative provisions were not exhibited. Unique submissions 2% Savings and transitional provisions not included in the draft Regulation There was concern from development groups and councils that savings and transitional arrangements were not included in the draft Biodiversity Conservation Regulation. This is creating uncertainty within the industry about how development proposals that commenced their assessment process under existing legislation will be transitioned. As yet, there are still no savings or transitional provisions in the Regulations These circumstances are all unsatisfactory and simply generate uncertainty for the development industry. (UDIA) 17

23 4. Protecting native animals and plants 4.1 Threatened species and ecological communities listing processes Part 4 of the Regulation sets out the listing criteria for threatened species (Division 4.1), ecological communities (Division 4.2), interpretation of listing criteria (Division 4.3) and procedure for listing (Division 4.4). Unique submissions 9% Updating the listing criteria to align with IUCN and Environment Protection and Biodiversity Conservation Act was widely supported. Council support this change and consider the move towards alignment of threatened species criteria with the criteria established by the IUCN and the Environment Protection and Biodiversity Act 1999 (EPBC Act) to be a positive step. Council are also supportive of the regulation s maintenance of a criteria to list a species population as endangered. (Ku-ring-gai Council) The mining industry, scientists and individuals sought further guidance on definitions of key terms, and criteria to list threatened species, populations and ecological communities. There did not appear to be any definitions of geographic area or what was meant by the different categories of restriction, possibly interpreted as different circumstances. (Centre for Ecosystem Science, UNSW Australia) The BC Regulation should provide further information on the listing of populations, including what threatened categories they can be listed under (critically endangered, endangered, vulnerable) and listing criteria. The Regulation should provide further guidance on criteria to be used to determine the eligibility of listing of collapsed ecological communities. (NSW Minerals Council) The NSW Famers thought the listing process lacks transparency and rigour and wanted to be involved in the listing process. The farming community should be involved in consultation on the listing process, not only to provide relevant local input but to ensure the flow of information is occurring and all parties are aware of listings and the reasons for listings. (NSW Farmers) Timber NSW wanted the regulations to mandate a review of all existing listed species and the EDO and NSW Famers wanted regular reviews to ensure that the lists are complete and up-to-date. It is critical that the BC regulations mandate a comprehensive and systematic review of all existing listed species. This approach is essential if the new BC Act and Regulation are to be seen as consistent and credible when it comes to the creation of private conservation reserves. (Timber NSW) Environment groups, scientists and individuals sought inclusion of the precautionary principle when assessing extinction risk. 18

24 Concepts of environmental degradation, disruption, collapse and probability of collapse are potentially open to differing interpretations. The precautionary principle should be taken into account throughout the legislation to ensure that biodiversity decline is arrested, a key goal of the legislation. (Centre for Ecosystem Science, UNSW Australia) 4.2 Risk-based framework for managing wildlife interactions This section includes comments received on Biodiversity Conservation Licences (Biodiversity Conservation Regulation Part 2 Division 2.3) Unique submissions 1% Issues related to the transition from wildlife licensing to a risk-based framework Councils, environment groups, wildlife carers and individuals expressed concern about the move from a wildlife licensing system to a risk-based framework and the potential impacts on conservation areas, threatened species and wildlife held in captivity, including the list of exempt species. A number of these submissions were also concerned about the absence of the codes of practice. The removal of the licensing system in favour of a code of practice is not supported. It is essential that all wildlife kept in captivity are recorded under a licensing system. The code of practice has yet to be developed and there is a risk that codes will not be developed in the future and that anyone can capture and/or keep native wildlife without any form of record or licence. This not only endangers native wildlife it also increases concern for animal welfare and human safety all so that costs and time can be cut by reducing red tape. (Sydney Coastal Councils Group) In contrast, the avicultural community supported the development of a streamlined licensing regime to protect wild populations and minimise regulation for low-risk activities. No registration or licence for exempt and code-based avian species. The large majority of aviculturists, such as most finch and parrot breeder/keepers fall in this category. Shop-front style commercial pet stores to be able to freely trade in all exempt and code-based avian species without the need for a fauna dealer licence. (The Canary and Cage Birds Federation of Australia) Licence classes for animals and plants The avicultural community was concerned about the proposal to create an additional licence class for dealers operating from home and/or over the internet. Wildlife carers sought licensing certainty for carers to ensure appropriate handling of all injured and displaced wildlife. The plant industry wanted different categories for hobbyists, and small- and large-scale commercial operations. I am concerned with the blanket approach to buying, selling or dealing in native plants which are listed under the BC Act. Plants from gardens should not be treated 19

25 the same way as plants from large commercial nurseries. All traders should be licensed but there should be different categories of sellers, e.g. less than 50 plants, more than 1000 plants. If the licensing provisions are made too expensive or onerous people will trade illegally. (Maria Hitchcock) Environment groups had concerns about the exclusion of certain animals from the offence of dealing in animals. The Scientific Committee noted that the scarlet-chested parrot is listed as a vulnerable species. The offence of dealing in animals appears not to apply to a long list of birds including several rarer parrot, quail and pigeon/dove species, such as hooded parrot, scarletchested parrot, princess parrot and emerald dove. Clarification is needed that it would not be permissible to deal in wild birds of such uncommon species, or to trap them. (Cumberland Bird Observers Club) We recommend narrowing the exemption to persons authorised to deal in those birds/species. (EDO) Councils wanted biodiversity conservation licences to be included in a public register. All biodiversity conservation licences, including existing licences should be included in the public register. (Sydney Coastal Councils Group) Councils raised concerns that certain penalties may be too low for offences under the Biodiversity Conservation Act. SSROC is concerned that the penalties for offences under the Act may be too low, as in some cases they appear to be lower than black-market prices. For example, the International Fund for Animal Welfare reported that Australia s unique birds are in high demand and can fetch upwards of $40,000 each SSROC recommends that penalties, if they are to act as a deterrent, should be higher than the black-market price the offender might have received. (Southern Sydney Regional Organisation of Councils) 4.3 Areas of outstanding biodiversity value (AOBV) This section includes comments received on criteria for declaration of AOBV; the little penguin and Wollemi pine declared area (Biodiversity Conservation Regulation, Part 3). Unique submissions 17% Proposed criteria Local councils, farmers, industry, environment groups and individuals raised concerns that the criteria for declaring areas of outstanding biodiversity value are too vague, lack transparency and are open to interpretation rather than being based on scientific evidence. The inclusion of Areas of Outstanding Biodiversity Value (AOBVs) is welcome in the Act and regulations, however the application of such values remains unclear and unsatisfactory. (SUFN) We submit that the proposed criteria for AOBVs have been written in highly descriptive terms that are not scientifically quantifiable. (Timber NSW) 20