Transitional arrangements are in place for assessments started under the previous legislation.
The test of significance
The test of significance (under s.7.3) determines whether the proposed activity is likely to significantly affect threatened species or ecological communities, or their habitats.
If the activity is likely to have a significant impact, or will be carried out in a declared Area of Outstanding Biodiversity Value (AOBV), the proponent must either apply the Biodiversity Offsets Scheme or prepare a species impact statement (SIS).
The environmental impact of activities that will not have a significant impact on threatened species will continue to be assessed under s.111 of the Environmental Planning and Assessment Act 1979.
The assessment of significance and SIS requirements were previously set out in the Threatened Species Conservation Act 1995. These have been moved into the Biodiversity Conservation Act 2016 and Biodiversity Conservation Regulation 2017, with some minor changes.
Transitional arrangements have been put in place for Part 5 activities to allow time for assessments that started under the Threatened Species Conservation Act 1995 to be completed.
Opting-in to the Biodiversity Offsets Scheme
If the proponent of the Part 5 activity chooses to opt-in to the Biodiversity Offsets Scheme, they must engage an accredited assessor to apply the Biodiversity Assessment Method (BAM) to the proposal.
After applying the BAM, the accredited person will prepare a Biodiversity Assessment Report (BAR) that sets out how the proponent has applied steps to avoid and minimise impacts on biodiversity and identifies the number and type of ecosystem and species credits required to offset residual impacts of the activity on biodiversity (the ‘credit obligation’). The BAR will also identify if the activity is likely to have any serious and irreversible impacts. The impacts on biodiversity as assessed in the BAR must be considered by the determining authority.
If the Part 5 activity is determined to proceed, the credit obligation (and any other actions required) will be included as conditions of the determination or approval. The determining authority has the discretion to increase or decrease the credit obligation set out in the BAR. If the obligation is decreased, the determining authority must give reasons for this decision. Concurrence from the Environment Agency Head is not required.
The proponent must meet the credit obligation before the biodiversity impacts occur. The offset rules set out the range of options available for meeting a credit obligation under the Biodiversity Offsets Scheme.
One option is to make a payment into the Biodiversity Conservation Fund, managed by the Biodiversity Conservation Trust. This allows proponents to transfer responsibility for securing offsets to the Trust and begin their activity immediately.
Proponents can also purchase and retire the required like-for-like credits directly from the market or fund biodiversity conservation actions (PDF 68KB) (with the approval of the determining authority), following the offset rules. If the proponent is unable to find like-for-like credits after completing defined reasonable steps (PDF 58KB), the determining authority can approve the use of the variation offset rules.
Preparing a species impact statement
If the proponent does not opt-in to the Biodiversity Offsets Scheme and their proposed activity will have a significant impact or will be carried out in an AOBV, they must prepare a SIS and seek concurrence from the Environment Agency Head.
The content required for an SIS is set out in clause 7.6 of the Biodiversity Conservation Reguation 2017. In addition, the proponent must request and comply with the Environment Agency Head's requirements for the preparation of the SIS.