Agreement with the Australian Government
The NSW Government has an Assessment Bilateral Agreement (the Agreement) with the Australian Government relating to environmental assessment under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
The Australian Government has accredited NSW assessment approaches undertaken in the manner specified in Schedule 1 of the Agreement. The current Agreement endorses the (now replaced) NSW Biodiversity Offsets Policy for Major Projects and the Framework for Biodiversity Assessment as the basis for assessing and offsetting biodiversity impacts for most major development.
Actions that have been assessed under an accredited assessment approach under the EPBC Act and in the manner specified in the Agreement do not require a separate environmental impact assessment under the EPBC Act.
We are working collaboratively with the Australian Government to update the Agreement after recent changes to NSW biodiversity and planning legislation. The Australian Government is exhibiting the proposed changes until February 2019 and public submissions can be made through the Department of the Environment and Energy’s website. The original intent to streamline assessment processes remains and the existing content has been retained wherever possible.
The current Agreement remains operational and will continue to be used for projects that are being assessed under the Biodiversity Conservation Act 2016 transitional arrangements.
Projects under the Biodiversity Conservation Act 2016 that are determined to be controlled actions prior to the Amending Agreement being finalised may undergo an accredited assessment on a case by case basis.
Endorsing the NSW Biodiversity Offset Scheme
The Australian Government is seeking to endorse the NSW Biodiversity Offset Scheme (BOS) through the revised Agreement. NSW is continuing to work with the Australian Government to identify the best way to formally align the NSW BOS to the EPBC Act environmental offsets policy.
NSW and the Australian Government agree that endorsing the NSW BOS for avoiding, minimising and offsetting biodiversity impacts on both NSW and national matters will provide for the best biodiversity and streamlining outcomes. The Australian Government supports the use of the Biodiversity Assessment Method as the underpinning methodology for calculating biodiversity credit requirements.
NSW has committed to making minor amendments to the NSW BOS offset rules to align them to the Australian Government requirements. The NSW BOS has requirements for retiring like-for-like credits or funding conservation actions that directly benefit the species or community impacted. These meet the Australian Government’s requirements. The NSW BOS also allows for variation rules to be used after reasonable steps have been taken to source like-for-like credits. NSW is considering amendments to the Biodiversity Conservation Regulation that would prevent the use of the variation rules for offsets required for EPBC Act purposes for controlled actions. The variation rules would remain available to meet offset requirements for other NSW matters for controlled actions.
For meeting EPBC Act offset requirements under the NSW BOS proponents would retain the ability to:
- retire biodiversity credits based on the like-for-like provisions in the Biodiversity Conservation Regulation
- fund biodiversity conservation actions that are listed in the Ancillary rules (PDF 74KB) and benefit the threatened entity impacted
- commit to deliver mine site ecological rehabilitation that creates the same ecological community or threatened species habitat
- pay into the Biodiversity Conservation Fund, where the Biodiversity Conservation Trust would meet the EPBC Act offset requirement in a like-for-like manner.