The NSW EPBC Act1 Bilateral Agreement was amended on March 24, 2020 (Amending Agreement No. 1) as a result of both the NSW and Australian Governments’ commitment to:
- Streamlining environmental assessments and offsets for projects in NSW and
- Reducing the regulatory burden on proponents of projects in NSW.
The amendment has been anticipated for some time as it responds to the introduction of the NSW Biodiversity Conservation Act 2016 (BC Act) which ushered in new approaches to biodiversity assessments and biodiversity offsets.
The amendment is necessary to address discrepancies between how the NSW and Australian Governments consider biodiversity offset requirements for projects in NSW where both state and Commonwealth approvals are required.
Purpose of the Bilateral Agreement
Prior to the signing of the amended bilateral agreement, projects in NSW, particularly more substantial projects that required approval under the NSW Environmental Planning and Assessment Act 1979 and the EPBC Act, were assessed separately under different processes by NSW and Australian Government regulators.
The amended bilateral agreement acknowledges the comprehensive environmental assessment and biodiversity offset framework operating in NSW, and accredits those processes and policies for most project types2.
This accreditation allows for the development of a single environmental assessment and development of a streamlined set of project approval conditions3 under both NSW and Australian Government approvals processes.
What are the key changes?
The key amendments of the Bilateral Agreement include:
- Accrediting the BC Act which, as noted above, allows for a single assessment of projects that may result in biodiversity impacts to be assessed in a single process.
- Australian Government endorsement of the NSW Biodiversity Offsets Scheme (see further discussion below).
- Inclusion of Commonwealth land, actions and agencies in the bilateral assessment process (previously these were excluded).
- Excluding projects assessed under Division 5.1 of the NSW EP&A Act. These projects include projects assessed under Division 5.1 of the NSW EP&A Act and include projects that are ‘self assessed’ (some utilities and public infrastructure projects for example).
The Bilateral agreement provides improved access to the NSW Biodiversity Offsets Scheme (BOS)
The NSW Biodiversity Offsets Scheme (BOS) has now been endorsed by the Australian Government under the amended bilateral agreement.
Under the BOS, a project in NSW can be offset in several ways. They include:
- Purchasing and retiring biodiversity offset credits against a project’s residual impacts (credits may be sourced from the market or from a proponent’s own offset site).
- Use of the Biodiversity Offsets Payment Calculator (BOPC) to determine the cost of the credit obligation,and transfer this amount to the Biodiversity Conservation Fund via the BOAMS4. The Biodiversity Conservation Trust is then responsible for identifying and securing the credit obligation on behalf of the developer.
Prior to the amendment of the bilateral agreement, proponents in NSW could not access the Biodiversity Conservation Fund to discharge their offset requirements under the EPBC Act. The variation rules, which allow the BCT to source non like-for-like credits if like-for-like credits could not be found, did not satisfy the EPBC Act Environmental Offsets Policy. As part of the amendment to the bilateral agreement however, the NSW Biodiversity Conservation Regulation was also amended to prevent the BCT using the variation rules to offset impacts to EPBC Act-listed biodiversity values, if an EPBC Act offset was required for those values.
Similarly, proponents who source their own offsets under the amended bilateral agreement cannot use the variation rules to discharge the offset obligations of their project if their project has an EPBC Act offset requirement.
Are proponents still required to ‘Refer’ their project to the Commonwealth Environment Minister?
The short answer is yes! If a project in NSW is assessed as having the potential to have a significant impact on biodiversity values listed on the EPBC Act, a referral is still required.
If the project is determined to be a Controlled Action under the EPBC Act, as a result of the amended bilateral agreement, proponents will have access to the NSW BOS to discharge their offset obligations as noted above.
Is it working in practice?
It is early days in regards to the application of the amended bilateral agreement however, in our experience it is working.
Niche is currently finalising assessments for the several significant projects in NSW where the amended bilateral agreement has allowed us to re-frame our clients offset strategies in such a way as to avoid lengthy and disproportionately costly, post-approval obligations. By gaining access to the Biodiversity Conservation Fund, our clients will be able to avoid the near duplication of offsets under the previous bilateral arrangement achieving both time and cost savings, even though credit prices in the BOPC attracts a premium price.
We are here to help!
Biodiversity offsetting in NSW is expensive and complex. Understanding how to navigate this complexity is our core business. If you would like to discuss how we can assist you with your project, our offsetting leadership team would be more than happy to speak with you.
Niche Offsetting Leadership Team – NSW
Read more about our Biodiversity Offsetting services.
Project case study: Biodiversity Offsetting for Liverpool Range Wind Farm
Project case study: Appin West BioBank Site Establishment
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1 Environment Protection and Biodiversity Conservation Act 1999
2 Projects assessed under Division 5.1 of the EP&A Act are not covered by the amended bilateral agreement.
3 The Commonwealth Government has developed a Conditions Policy to accompany the amended bilateral agreement that will see projects approved with (1) a single condition requiring the proponent to comply with NSW approval conditions, (2) customised and separate conditions to the NSW consent, or (3) no conditions of approval under the EPBC Act.
4 Biodiversity Offsets and Agreements Management System