Australia enacts landmark legislation to protect Ramsar sites and migratory birds

01/11/2000

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Administrative Guidelines for determining whether an action has or is likely to have a significant impact on a matter of national environmental significance under the Environment Protection and Biodiversity Conservation Act 1999

July 2000

Introduction

Purpose of these Guidelines

Under the Environment Protection and Biodiversity Conservation Act 1999 (the Act), an action will require approval from the Environment Minister if:

  • the action has, will have, or is likely to have a significant impact on a matter of national environmental significance*; and
  • the action is not subject to one of the exceptions identified below.

The matters of national environmental significance are:

  • World Heritage properties,
  • Ramsar wetlands of international importance,
  • listed threatened species and communities,
  • migratory species protected under international agreements,
  • nuclear actions, and
  • the Commonwealth marine environment.

The purpose of these guidelines is to assist in determining whether an action should be referred to the Environment Minister for a decision on whether approval is required. In particular, they are intended to provide guidance on whether a proposed action is likely to have a significant impact on any of the matters of national environmental significance.

The guidelines will be subject to review following experience with operation of the Act in order to improve the guidance available to proponents, industry, conservation groups and other members of the community.

A person who proposes to take an action should consider whether the action is covered by one of the exceptions identified below (see page 3). If an action qualifies for one of these exceptions then it does not require approval under the Act and it is not necessary to refer the action to the Environment Minister.

The Referral Process – Triggering the Act

If a proposed action is not covered by one of the exceptions identified below, a person proposing to take an action that he or she thinks will have, or is likely to have, a significant impact on a matter of national environmental significance must refer that action to the Minister for the Environment.

The Minister will decide whether the action will, or is likely to, have a significant impact on a matter of national environmental significance.

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* In addition to actions having a significant impact on a matter of national environmental significance, the Act provides that certain actions taken by the Commonwealth, and actions affecting Commonwealth land, also require approval. These guidelines do not seek to deal with actions in these categories.

  • If the Minister decides that the action is likely to have a significant impact on a matter of national environmental significance, then the action requires approval under the EPBC Act.
  • If the Minister decides that the action is not likely to have a significant impact on a matter of national environmental significance, then the action does not require approval under the Act.

The Minister is generally required to make a binding decision on whether an action requires approval within 20 business days of receiving a referral (in some cases the decision must be made within 10 business days). If the Minister's decision is that an action does not require approval, a person will not contravene the Act if the action is taken in accordance with that decision.

If the Minister decides that an action requires approval, then an environmental assessment of the action must be carried out. The Minister decides whether to approve the action, and what conditions (if any) to impose, after considering the environmental assessment.

Documentation on the referral process, including documentation requirements, can be obtained by contacting Environment Australia's Community Information Unit on 1800 803 772 or by accessing the Environment Australia home page at www.environment.gov.au.

Determining whether an action is likely to have a significant impact on a matter of national environmental significance

The guidelines set out below include criteria which are intended to assist in determining whether the impact of an action on any matter of national environmental significance is likely to be significant.

Criteria are set out for each matter of national environmental significance.

The guidelines are intended to provide general guidance on the types of actions that will require approval and the types of actions that will not require approval. They are not intended to be exhaustive or definitive. The particular facts and circumstances of a proposed action will need to be taken into account in determining whether that action will have a significant impact on a matter of national environmental significance.

In order to decide whether an action is likely to have a significant impact, it is necessary to take into account the nature and magnitude of potential impacts.

In determining the nature and magnitude of an action’s impact, it is important to consider matters such as:

  • all on-site and off-site impacts,
  • all direct and indirect impacts,
  • the frequency and duration of the action,
  • the total impact which can be attributed to that action over the entire geographic area affected, and over time,
  • the sensitivity of the receiving environment, and
  • the degree of confidence with which the impacts of the action are known and understood.

The Act provides that the Minister must, in deciding whether an action is likely to have a significant impact on a matter of national environmental significance, take account of the precautionary principle. Accordingly, the fact that there is a lack of scientific certainty about the potential impacts of an action will not itself justify a decision that the action is not likely to have a significant impact on a matter of national environmental significance.

The Act provides that in deciding whether the action is a controlled action, the Minister must not consider any beneficial impacts that the action has, will have or is likely to have. Therefore, activities which will have only beneficial impacts will not be captured by the Act.

Exceptions

An action does not require approval from the Environment Minister under the Act if:

  • the action is approved under, and taken in accordance with, a State management plan that is accredited by the Commonwealth for the purposes of a bilateral agreement (see section 46 of the Act), or
  • the action is approved under, and taken in accordance with, a Commonwealth management plan that is accredited by the Environment Minister for the purposes of a Ministerial declaration (see section 33 of the Act), or
  • the action is a forestry operation taken in a Regional Forest Agreement region (see Part 4, Division 2 of the Act), or
  • the action is taken in the Great Barrier Reef Marine Park and is authorised by certain instruments issued under the Great Barrier Marine Park Act 1975 (see section 43 of the Act), or
  • the action has been authorised by a Government decision on which the Minister’s advice has been sought (see section 160 of the Act).

In addition, an approval is not required for an action if:

  • the action was authorised by the Commonwealth, a State or a Territory prior to the EPBC Act commencing (16 July 2000), and
  • at the time the EPBC Act commences, no further authorisation is required to allow the action to be lawfully taken.

Finally, the EPBC Act provides that approval is not required for an action that is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of the Act. (This exception does not apply to an enlargement, intensification or expansion of an existing use.)

Information is available on the Internet through the Environment Australia home page at www.environment.gov.au. Hard copies of lists, recovery plans and threat abatement plans can also be obtained from Government Information Shops or by contacting Environment Australia’s Community Information Unit on 1800 803 772.

State and Territory Government agencies also have a range of information that may be useful, including geographic information.

Wetlands of International Importance

An action will require approval from the Environment Minister if the action has, will have, or is likely to have a significant impact on the ecological character of a declared Ramsar wetland. (However, an action does not require approval if it is covered by one of the exceptions identified at page 3 above.)

A declared Ramsar wetland is an area that has been designated under Article 2 of the Ramsar Convention or declared by the Minister for the Environment to be a declared Ramsar wetland in accordance with section 16 the Act.

Note that an action which has, will have, or is likely to have a significant impact on the ecological character of a declared Ramsar wetland might take place outside the boundaries of the wetland.

Criteria

An action has, will have, or is likely to have a significant impact on the ecological character of a declared Ramsar wetland if it does, will, or is likely to result in:

  • areas of the wetland being destroyed or substantially modified, or
  • a substantial and measurable change in the hydrological regime of the wetland – for example, a substantial change to the volume, timing, duration and frequency of ground and surface water flows to and within the wetland, or
  • the habitat or lifecycle of native species dependant upon the wetland being seriously affected, or
  • a substantial and measurable change in the physico-chemical status of the wetland – for example, a substantial change in the level of salinity, pollutants, or nutrients in the wetland, or water temperature which may adversely impact on biodiversity, ecological integrity, social amenity or human health, or
  • an invasive species that is harmful to the ecological character of the wetland being established in the wetland*.

(*Introducing an invasive species into or near the wetland may result in that species becoming established. An invasive species may cause harm by direct competition with native species, modification of habitat, or predation.)

The ecological character of each Ramsar wetland is described in the Ramsar Information Sheet, which is available through the Environment Australia home page at www.environment.gov.au, or by contacting Environment Australia’s Community Information Unit on 1800 803 772. The Ramsar Information Sheets may also provide further guidance on whether an action is likely to be significant.

Listed Migratory Species

An action will require approval from the Environment Minister if the action has, will have, or is likely to have a significant impact on a listed migratory species. (However, an action does not require approval if it is covered by one of the exceptions identified at page 3 above.)

Lists of migratory species are established by the Minister for the Environment under Part 13, Division 2, Subdivision A of the Act. The lists are available through the Environment Australia homepage at www.environment.gov.au. Hard copies of lists can be obtained by contacting Environment Australia’s Community Information Unit on 1800 803 772.

Note that some migratory species are also listed as threatened species. The criteria below are relevant to migratory species that are not threatened.

Criteria

An action has, will have, or is likely to have a significant impact on a migratory species if it does, will, or is likely to:

  • substantially modify (including by fragmenting, altering fire regimes, altering nutrient cycles or altering hydrological cycles), destroy or isolate an area of important habitat of the migratory species, or
  • result in invasive species that is harmful to the migratory species becoming established* in an area of important habitat of the migratory species, or
  • seriously disrupt the lifecycle (breeding, feeding, migration or resting behaviour) of an ecologically significant proportion of the population of the species.

(* Introducing an invasive species into the habitat may result in that species becoming established. An invasive species may harm a migratory species by direct competition, modification of habitat, or predation.)

An area of important habitat is:

  1. habitat utilised by a migratory species occasionally or periodically within a region that supports an ecologically significant proportion of the population of the species, or
  2. habitat utilised by a migratory species which is at the limit of the species range, or
  3. habitat within an area where the species is declining.

Listed migratory species cover a broad range of species with different life cycles and population sizes. Therefore, what is an ecologically significant proportion of the population varies with the species (each circumstance will need to be evaluated).

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Number of » Contracting Parties: 168 Sites designated for the
» List of Wetlands of
International Importance
2,187 Total surface area of designated sites (hectares): 208,608,257

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