RE: Comments on Biodiversity Law Reforms and Draft Biodiversity Legislation

Transcription

1 Dr Anna McConville NSW 2440 Australia Biodiversity Reforms - Have Your Say PO Box A290 Sydney South NSW 1232 RE: Comments on Biodiversity Law Reforms and Draft Biodiversity Legislation Dear Biodiversity Reform Team, I am a scientist, ecologist and practicing ecological consultant based in NSW and I wish to make comment on the proposed biodiversity law reforms and draft biodiversity legislation currently on public display. I have over 12 years experience as an ecological consultant in NSW, I have completed a PhD researching the ecology of one of our threatened insectivorous bat species and a Bachelor of Environmental Science Degree. The biodiversity law reforms affect me professionally as a scientist and as an ecological consultant and also with regards to my personal code of ethics. While I welcome a review and some revision of current legislation, I believe that the law reforms currently proposed will have poorer outcomes for biodiversity conservation. I have outlined my key points under the subheadings below and provide a summary of my recommendations at the end of the document. Page 1

2 BIODIVERSITY ASSESSMENT METHODOLOGY (BAM) Data underpinning the Act At the moment, the draft act is missing information that allows a critical review of whether the methodology will achieve conservation aims. Land Category maps, threshold values maps, methods to assess habitat suitability, sensitivity classes etc. The process of developing these components should not be rushed, but also should not be written into legislation without scientific evidence and thorough examination through paid reviews by expert committees and through public exhibition. This data needs to be robust prior to the implementation of the new Act and BAM. This cannot be rushed and mechanisms need to be in place to ensure that this process is transparent and the Government is held to this responsibility before the Act comes into force. I am concerned about the comprehensiveness of the data that is provided in the Threatened Species Profile Database and currently available mapping. We know from experience that these data are not complete, in some instance incorrect and yet it underpins the whole BAM process. The ability to confirm, edit and add to data to inform the preparation of the BAM report and associated impact assessments will be impaired by the reduction in field survey and the reliance on the use of inadequate data for desktop assessment. Recommendation: Provide full details of assessment methodology to expert committees and through public exhibition to ensure that the methodology is complete before the Act comes into force. Reduction in fauna survey requirements It is noted that the requirement for fauna assessment has been significantly reduced in the new Act. There is now a heavy reliance on habitat as a surrogate for determining the presence of fauna. Maps of Plant Community Types and vegetation condition, for the most part, do not lead to accurate predictions of the presence of fauna species, including threatened species, the structure of the fauna communities, and the environmental processes that are acting upon them. In some areas of NSW that have been well surveyed in the past, a reduction in fauna survey requirements may be justifiable. However, a blanket reduction in fauna survey requirements as is proposed under the proposed reforms is quite concerning. Our understanding of the habitat requirements of many of our Page 2

3 threatened fauna species is still quite poor. By reducing fauna survey requirements we reduce our ability to detect new populations and unusual occurrences. For example, my PhD research into Mormopterus norfolkensis (Eastern Coastal Freetailed Bat) which is currently listed as Vulnerable under the TSC Act found a large maternity colony (breeding population) roosting in mangroves in the Hunter Estuary. The habitat description of this species prior to this did not include mangroves as potential habitat, let-alone breeding habitat and would not have triggered the requirement for targeted survey or targeted offsets under the BAM. Standard fauna surveys undertaken by ecological consultants provide valuable background information on species distributions paid for by developers. If the government wishes to remove the need for routine fauna surveys under these reforms, then specific funding needs to be given to rigorous scientific studies to improve our understanding of habitat for our threatened species. This should not be placed within the catch-all of the Save Our Species funding but should be specifically legislated. Such targeted survey may actually improve conservation outcomes for these poorly understood threatened species. Recommendation: Either reinstate the requirement for standard fauna surveys or propose a specific funding allocation for research into classifying habitat for threatened fauna species Sensitivity classes Sensitivity classes will be used to establish if a development will have serious and irreversible impacts (similar to the BioBanking red flag areas). Serious and irreversible impact will prevent developments under Part 4 of EP&A Act proceeding, but can proceed with Ministerial consent for developments under Part 5 of the EP&A Act. Recommendation: The implications for developments and activities under Part 4 and Part 5 of the EP&A Act should be the same if a proposal will have serious and irreversible impacts. Control of Consulting Fees The new Act has a clause that seeks to control the rate that can be charged for a Biodiversity Assessment. Ecological consulting as a commercial industry should not have fees restricted, it is contrary to business growth. Quality work, by experienced staff should attract higher fees as in any other industry. The clause seeks to dictate the maximum BAM assessors can charge for their services. This should be influenced by market forces, supply and demand, quality of service, cost of time and materials, etc. rather than arbitrary decisions of a single department. Recommendation: Any clauses relating to government control over consultant fees is removed. Page 3

4 Conflict of interest BAM certification process How will the new Act ensure that unfair advantage is avoided in the BAM certification process? There is a need to maintain transparency and impartiality Recommendation: the OEH ensure that BAM certification training is undertaken by an independent education institution that does not have ties with the environmental consultancy industry Accreditation of Ecological Consultants for Ecological assessments outside of the BAM There is no provision for the accreditation of ecological consultants outside of the BAM process. Clause 7.21 states that the Environment Agency Head may accredit persons to prepare Species Impact Statements. However, there is no certification of persons undertaking assessments of significance, which is the most sensitive part of the assessment process. This step is prior to deciding if a BAM process or a SIS is required. The Ecological Consultants Association of NSW has established a rigorous accreditation process, Certified Practicing Ecological Consultant (CPEC) that could be endorsed by OEH to address those areas not covered by the BAM. The scheme establishes a high standard of practicing ecological assessment in NSW; and provides planning authorities and communities with a high level of confidence in ecological assessments prepared by CPEC. Recommendation: require certification of persons undertaking assessments of significance by a professional organisation such as the ECA. Assessment of significance The new Four-part Test of Significance for assessing potential impacts of development on threatened species or populations has removed irrelevant points or issues that plagued the previous Seven-part and Eight-part Tests. However, there is no reference to Key Threatening Processes in the Four-part Test, which are important processes to consider when assessing the potential of developments to impact on the status of a threatened species or population. I believe that an assessment of Key Threatening Processes in relation to proposed developments and activities is a crucial component of the Four-part Test of Significance. Recommendations: Insert consideration of Key Threatening Processes into the Assessment of Significance under the new legislation Special treatment for major projects Major projects such as those listed as State Significant Development can have enormous impacts on biodiversity. However, under current and the future legislative process, the biodiversity impact assessment process is much reduced in comparison with a much smaller project. This inequity is not justifiable in its Page 4

5 present state and needs to be addressed. While the State Significant Development pathway may need to be streamlined for economic reasons, this should not mean that biodiversity conservation laws are relaxed for these projects. Survey effort and offsetting should be proportional to the amount of habitat to be disturbed and the level of predicted biodiversity impact regardless of the project. Instead of removing biodiversity survey and assessment requirements, there should be a focus on better resourcing the approval bodies within Government that deal with these large projects so that they are assessed and offsets determined within a timely manner. Large projects with large impacts will cost more money. The legislation shouldn t be relaxed, just more effort put into speeding up the approvals process (e.g. more funding to have more Government employees to oversee the approval of these project). Perhaps fund this through a Major Project Levy on the proponent. It is incredibly unfair that big business pays very little compared to small one person developers with minimal relative impact. Recommendation: Equity - apply a maintain or improve standard to ALL development. Require the same level of assessment for major projects as for other developments in NSW. Allocate additional funding to Government approval authorities to expedite the process instead. OFFSET SCHEME The internationally accepted principles of offsetting include the use of like for like, additionality and restorability to offset the loss of biodiversity. The new Act has discarded this principle by redefining the term like for like in its variation rules, weakening the requirements for additionality and allowing biodiversity lost through native vegetation clearing to be paid for in lieu of an offset. It also fails to recognise the evidence on the limited restorability of native vegetation. Restoration has been used to offset the loss of biodiversity. Increasingly scientific publications of monitoring research are showing that restored areas do not result in the restoration of cleared vegetation communities or formations. The new Act has the opportunity to rectify this mistaken belief. Offsets don t have to be like for like The proposed scheme is heavily reliant on offsetting biodiversity impacts (by managing other areas for biodiversity) rather than preventing the impacts, and adopts the standards of the problematic Major Projects Offsets Policy. The Biodiversity Assessment Methodology (BAM) is therefore significantly weakened, for example, direct like-for-like offsetting requirements are relaxed and can be circumvented. Page 5

6 The option to pay money in lieu of an actual offset will result in net loss of certain threatened species and communities. Offset areas and set asides may be further offset later on rather than actually protected in perpetuity. The new Act defines suitable offset for impacted species to be another species from the same taxonomic order or another species that has the same life form. This shows a lack of understanding of the differences between these organisms and the specialised requirements of many threatened species. This is not an offset policy and that the diversity of living organisms will be significantly reduced by a policy that does not ensure like for like particularly at species level. If ecosystem types are so rare that there are few offset opportunities, then it probably shouldn t be removed in the first place. Recommendations: Implement offsetting principles that have scientific grounding e.g. like for like. There should be no provisions for consent authorities to alter offset types or reduce offset amounts. Make sure the methodology is robust to begin with. Biodiversity Conservation Trust for Offsets Allowing development proponents to pay money to the Biodiversity Conservation Trust, and for their offset obligations to be covered at this point, without ensuring the trust can in fact deliver on like-for-like requirements, is a significant problem. There should be strict requirements for like-for-like and the Trust must demonstrate that the offset requirements can be met before the obligation of the proponent is fulfilled. Recommendation: Provide a mechanism such that that offsets must be available before construction begins. E.g. conditional approval on offsets being found. Filled with uncertainty and the potential for inconsistency Current offsetting practices are uncertain and inconsistent. We have the opportunity here to make this process transparent and consistent. However, this is not the case with the proposed biodiversity conservation reforms in their current form. While great reliance is placed on a single scientific method to inform land-clearing decisions under the proposed biodiversity reforms, there is discretion as to whether a consent authority actually has to apply the results. Offset requirements may be discounted based on other subjective considerations. There is even some discretion around red lights, i.e., where clearing and development could cause serious and irreversible biodiversity loss. SEPPs, Regulations and variation certificates provide for unnecessary exemptions from standard pathways. This will create uncertainty and loopholes instead of clarity and consistency. If the Government wishes to use the BAM and Biobanking methodology then it should make the use of the offset scheme mandatory. There should be no room for authorities, other than the Minister (under only exceptional circumstances) to alter the offset amounts or Page 6

7 types. This will ultimately result in poor biodiversity conservation outcomes, increase the potential for corruption or political influence and make the process unfair. In addition, by allowing consent authorities control over whether or not to accept the full calculated offsets, Government will not be forced to make the offset calculation methodology robust and low in errors from the outset. Recommendation: Ground the offset methodology in good science. Make it mandatory with no room for authorities to alter offset amounts or types other than in exceptional circumstances by the Minister. Credit calculation discrepancies and changes over time Investigations by the NSW Ecological Consultants Association have found that the proposed BAM does not allocate as many credits for the same assessment as the current BioBanking method does. For both developments and offsets, the number of ecosystem credits is significantly decreased. As well, the credit ratio between development and offset is decreasing. How does the new Act deal with discrepancies between current and new credit calculator values in terms of biodiversity and value? Recommendation: If such tools are to be relied on heavily any changes should be first reviewed and approved by an independent scientific panel. LAND-CLEARING Lowering of Environmental Standards The Local Land Services Amendment Bill will replace the Native Vegetation Act and its world class Environmental Outcomes Assessment Methodology (EOAM) with self-assessable Codes, exemptions and discretionary clearing. There are no clear environmental baselines, aims or targets. There is no ban on broadscale clearing, no mandatory soil, water and salinity assessment, and no maintain-or-improve standard to ensure environmental outcomes either at the site scale or at the landscape scale. Provisions are less stringent, less evidence-based, less accountable, and are likely to result in significant clearing increases in NSW. No indication who will undertake compliance and enforcement responsibilities. Recommendation: ban broad-scale clearing and implement high biodiversity standards (ie maintain or improve) Vegetation mapping focused on woody vegetation The focus of the native vegetation regulatory map is on woody vegetation this ignores species, including threatened species, that are found in other habitat types (e.g. grasslands) or that use paddock trees (e.g. Law et al. 2000). Examples include roosting bats (Fischer et al. 2010), brown treecreepers (NSW Department of Environment and Conservation 2001), grey-crowned babblers (Davidson and Robinson Page 7

8 1992), superb parrots(webster 1988; Manning and Lindenmayer 2009), turquoise parrots (Department of Environment and Conservation 2005) and little lorikeets (NSW Scientific Committee 2009) dispersing through the landscape, and the critically endangered regent honeyeater (Oliver 2000) which feeds on the nectar of food tree species in paddocks. Recommendation: substantially revise the focus of the landholder assessment to ensure that these nonwoody habitats are still considered for fauna habitat potential. Or require that ecological consultants have a greater role in property assessments. Paddock trees Hollow-bearing trees and scattered paddock trees often form critical habitat for a number of threatened fauna species. They need special consideration under the new legislation. However, this does not appear to be the case. Under the proposed LLS Act the impacts of the removal of paddock trees can be self-assessed by a landholder under a self-assessable code. There is no requirement for an ecological consultant to undertake assessments. I am highly concerned that: There is no requirement for a landscape assessment of hollow availability or for the role of hollowbearing trees in the movement of animals through the landscape. Paddock trees in Category 1 land will be able to be cleared without assessment. There are large amounts of published, scientific information that support the crucial importance of these trees for fauna as habitat and as avenues to allow moment across vast, cleared landscapes. Some threatened species that use paddock trees have cryptic behaviour (e.g. hollow-dependent microbats) and are not likely to be detected by a landholder who does not have expertise in fauna surveys. A landholder involved in the self-assessment of the importance of paddock trees may not be aware of their episodic importance as threatened species habitat, especially if the self-assessment is conducted in between peak flowering periods e.g. many paddock trees are crucial food refuges for threatened species (e.g. threatened parrots and the critically-endangered regent honeyeater) when in flower, especially at times when flowering in other parts of these species ranges does not occur (e.g. in drought periods). Paddock trees as drought refuges for nectarivorous threatened species are crucial to their long-term survival. The removal of paddock trees has the potential to create a barrier to the movements of threatened bird species, and to gene flow within and between populations. Other threatened species use Page 8

9 paddock trees to disperse through the landscape. For instance, a recent CSIRO radio-telemetry study demonstrated that young Brown Treecreepers can disperse from their natal territories across open paddocks provided that the distances between paddock trees are no more than m. We are still learning how to manage the requirements of many taxa. Much of our fauna biodiversity is cryptic and not easily observed. Birds are not the only form of biodiversity and untrained observers are not always aware of the changing state of biodiversity. Recommendations: Substantially modify the paddock tree self-assessment OR involve ecological consultants in the process Assessment trigger threshold based on size of area to be cleared In the BAM both the streamline assessment and the full assessment are determined by thresholds based on the size of the area to be cleared in relation to the total size of the property. Scientific publications have shown that very small patches of vegetation can still have very high biodiversity values. Thresholds should relate only to the amount of vegetation to be cleared, not to the total property size. Varying trigger thresholds have no scientific basis, are confusing and unfairly favour landholders with large properties. Recommendation: Implement one trigger threshold only TRANSPARENCY Central Repository for Ecological Reporting documents I recommend a similar mechanism to those implemented for Heritage consultants whereby all Section 132C licences to undertake flora and fauna surveys must submit a copy of final reports to a central repository run by the NSW Government. Consultants may then query and opt to purchase from the NSW Government copies of these reports to use as background material for future studies. I believe this will encourage a higher standard of reporting by ecological consultants (as the reports will exist in perpetuity) and provide greater information to support Atlas of NSW Wildlife records. This may also be a way in which survey effort at a particular site may be justifiably reduced without a blanket survey effort reduction as proposed within the current draft legislation. If there are a number of background reports existing for the site or the local area, then perhaps the reduced fauna survey effort proposed by the BAM would be acceptable. In the absence of a reasonable level of previous survey effort, then full flora and fauna surveys should be undertaken. For example, in areas of farmland that are under investigation for rezoning. There is often little previous ecological information available for these areas and some unusual occurrences of threatened flora and fauna species may go undetected following the proposed BAM. Page 9

10 Recommendation: Setup a central repository for ecological assessment reporting undertaken under S132C licences. Transparency required in the process Decisions and instruments are not invalid even if consultation processes aren t followed. Public consultation may be based on summary documents, and issues raised in submission may be summarised by proponents instead of directly considered by decision-makers. The proposed public register provisions are far less detailed (for example, in terms of providing information about vegetation clearing and set asides). Summaries should not be accepted without the attachment of full detailed submissions. Recommendation: Make available full detailed submissions rather than permitting summaries only PRIVATE-LAND CONSERVATION I am extremely concerned that the Minister for the Environment has the ability to override conservation agreements if there is a mining or petroleum licence. Conservation agreements must be in perpetuity and should not be overturned, particularly for developments that are are major contributing factors to climate change and biodiversity loss. Recommendations: make conservation agreements in perpetuity MONITORING Mechanism to determine whether the aims of the legislation are met There is no mechanism in place to measure whether the act will slow the rate of biodiversity loss (Purpose (a) of the new Act). Rigorous monitoring overseen by an independent scientific panel is required to be included into the legislation. Specific state-wide monitoring programs should be developed for major flora and fauna groups. While not all biodiversity will be able to be included in such a program. Rigorous baseline data is required to determine the state of our biodiversity and should be a funding priority into the future. Recommendation: Implement a series of state-wide monitoring programs for major flora and fauna groups. Uncertain compliance, enforcement, monitoring and reporting The NSW Government has been unable to estimate how much landclearing will occur under the new relaxed system in particular, how much clearing will occur under the new self-assessable codes. The Page 10

11 proposed legislation includes updated offences and penalties, but there is no indication who will undertake compliance and enforcement responsibilities. The Biodiversity Conservation Bill s objects include improving and sharing knowledge (including drawing on local and Aboriginal knowledge) and the Biodiversity Panel s report hinged on high-quality environmental data, monitoring and reporting. However, the legislation does not set clear requirements for these essential elements so it will be difficult to determine how much biodiversity is being lost under the relaxed rules. Recommendation: Set clear requirements of how land-clearing monitoring and enforcement will be performed and funded. Establish a NSW Environment Commission - independent advice, transparency and reporting Sincerely, Dr Anna McConville PhD., B.Env.Sc. Ecologist / Director Page 11