NSW Biodiversity Conservation Reforms Have Commenced

August 31, 2017

The Biodiversity Conservation Act 2016 (the Act) commenced on Friday 25 August 2017. The legislation largely acts to codify the assessment and offsetting of biodiversity that is currently applied to mining through the Biodiversity Offsets Policy for Major Projects. A new assessment method may result in higher offset ratios depending on the type of offset and the management proposed.
 
Some of the products that support the legislation are not finalised. In addition the there is currently no assessment bilateral between NSW and the Commonwealth applying to the new laws.
 
What is finalised?
 
There are a number of regulations and other products that support the BC Act that have been released in final form on 25 August:
 
 
Which products have the Government delayed or released but with a commitment to update?
 
A number of products have either been delayed or released with a commitment to update:
  • The Ancillary Offset Rules. This product contains a number of important rules including how the ecological rehabilitation of mine sites can generate biodiversity credits.
     
  • Serious and Irreversible Impacts (SAII) Guidelines. This Guidance sets out the criteria for determining SAII and what additional measures might be applicable for SSD where the consent authority determines that there are SAII. The draft Guidance provided very significant discretion to consent authorities, which would lead to inconsistent decisions.
     
  • The Offsets Fund Calculator. This calculator applies where a proponent opts to pay the Biodiversity Conservation Trust to take on the offset obligation of the project. A version of the calculator has been finalised. OEH have confirmed that the calculator will require further updating and have acknowledged that in regional areas the lack of data underpinning the calculator has been problematic.
In the meantime proponents will continue to have the option of securing and managing offsets or acquiring credits through a third party.
 
What are the practical changes from the Biodiversity Offsets Policy for Major Projects and the Framework for Biodiversity Assessment (FBA)?
  • Offset ratios under the BAM. The BAM provides for lower credit gains on offset sites than the previous scheme. Offset sites with only standard management actions under the FBA drove offset ratios of around 4:1. By contrast the BAM with standard management actions results in offset ratios of around 6:1. The BAM provides for active management (such as planting, installing nest boxes etc). Under active management ratios reduce to around 4:1 under the BAM, but obviously there is an additional cost.
     
  • Biometric data is different.  The BAM requires the collection of different biometric data from the FBA. This makes it difficult to convert data collected under the FBA to the BAM. Projects that have commenced assessment using the FBA should speak to the Department of Planning and Assessment assessments team immediately to confirm that your project is a transitional projects and will not require a BAM assessment (see below Transitional Arrangements).
 
 Other issues
  • Offset security and management costs. The Major Projects Offset Policy required for the first time that offsets must be secured using a BioBanking Agreement. BioBanking Agreements have been replaced by Biodiversity Stewardship Agreements, which will work in a similar manner. Under a Biodiversity Stewardship Agreement where a mine owns and manages an offset site it will be required to calculate the costs of the management of the site in perpetuity (total fund deposit) and pay those costs to the Biodiversity Conservation Trust (BCT) at the outset of the project. The mine will then receive an annual payment to manage the offset. 
 
What are the transitional arrangements?
 
Assessment of the S&T Regulation identifies a number of issues including how modifications under section 75W are dealt with as they fall outside the definition of ‘planning approval’ or ‘modification of planning approval’ in the S&T Regulation.
 
The following transitional arrangements apply:
  •  Where you have a transitional Part 3A – modification application under s75W:
  • Both the BC Act and the S&T Regulation are silent on how applications for modification of project approvals under s75W are to be assessed.
  • Where you have a new State significant development application (SSD) you will be able to continue under the old laws where
  • A development application has been lodged before the commencement of the BC Act but not yet determined
  • If SEARs issued by DPE prior to commencement of BC Act and the DA is lodged within 18 months of the commencement of the BC Act. If SEARs are re-issued then the DA must be made within 18 months after the re-issue of the SEARs (but no later than 3 years after the commencement of the BC Act)
  • If the Secretary of DPE determines in writing that the proponent had undertaken ‘substantial environmental assessment’ in connection with an EIS (to be submitted with the application) before the commencement of the BC Act, and the DA is lodged within 18 months after that determination
  • If the Secretary of DPE determines in writing (within 3 months after the commencement of the BC Act) that the proponent had submitted before that commencement the conceptual project development plan for the mining project that is required by departmental (DRG) policy before a DA is made, if the DA is made within 2 years after the commencement of the BC Act.
  • Where you have a SSD modification application under s96 (whether or not original development approval was granted before or after commencement of the BC Act)
  • When the s96 modification application lodged before the commencement of the BC Act but not yet determined
  • Where SEARs issued prior to commencement of BC Act and application for modification (with EIS) lodged within 18 months of the commencement of the BC Act. If SEARs are re-issued then the modification application must be made within 18 months after the re-issue of the SEARs (but no later than 3 years after the commencement of the BC Act)
  • If the Secretary of DPE determines in writing that the proponent had undertaken ‘substantial environmental assessment’ in connection with an EIS (to be submitted in connection with the application) before the commencement of the BC Act, and the modification application is lodged within 18 months after that determination
  • The Secretary of DPE determines in writing (within 3 months after the commencement of the BC Act) that the proponent had submitted before that commencement the conceptual project development plan for the mining project that is required by departmental policy before a DA is made, if the modification application is made within 2 years after the commencement of the BC Act.

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