Focus EPBC Act Koala guidelines released

Focus
EPBC Act Koala guidelines released
Planning and Environment
11 February 2015
WHO SHOULD READ THIS
The Commonwealth Government has released finalised referral
guidelines (Guidelines) to assist proponents and decision makers in
navigating the requirements of the Environmental Protection and
Biodiversity Act 1999 (EPBC Act), as it relates to koala conservation.
All stakeholders affected by
koala habitat.
THINGS YOU NEED TO
KNOW
A loss of as little as two
hectares of critical habitat
could be considered significant
and therefore trigger a
controlled action.
Background
In April 2012, the combined Queensland, New South Wales and Australian
Capital Territory koala populations were listed as 'vulnerable' under section 178
of the EPBC Act. This listing means that any action which will have, or is likely to
have a ‘significant impact’ on the koala population must be referred to the
Commonwealth Minister for approval before the action can commence.
The newly released Guidelines supersede the Draft Referral Guidelines released
in late 2013, and the Interim Koala Referral Advice, which was released shortly
after listing. The new Guidelines follow a similar approach as the Draft
WHAT YOU NEED TO DO
When planning a project use
the new guidelines to assess
Guidelines but provide greater clarity on specific matters raised in the public
consultation process, conducted in early 2014.
the impact it will have on the
Purpose
The Guidelines aim to address the complexity associated with koala protection
koala population. If
(including distribution, migration patterns and impacts) and provide guidance
appropriate, refer to the
which can be applied consistently across jurisdictions.
Commonwealth for a
determination.
The Guidelines are intended to:
 help decide whether actions should be referred to the Commonwealth for
consideration because of a potential ‘significant impact’ on the koala
 guide on the information expected to support a referral, survey planning,
standards for mitigating impacts and other matters, and
 aid in determining both impacts and offsets for significant residual impacts
on the koala in approval decisions.
Referral trigger
 The general Significant Impact Guidelines 1.1 - Matters of National
Environment Significance continue to apply to listed Koala species. It states
that actions are likely to have a ‘significant impact’ on a vulnerable species if
they ‘adversely affect habitat critical to the survival of the species’.
Key tools in the Guidelines
Habitat assessment tool
A loss of between 2 and 20 hectares of habitat critical to the survival of the koala will likely be a significant impact. The
Guidelines contain a habitat assessment tool, which can be used to identify this critical habitat. The assessment tool
categorises five primary koala habitat attributes, including:
 koala occurrence
 vegetation composition
 habitat and connectivity
 existing threats, and
 recovery value.
Each of these attributes is scored to indicate the value of the habitat in the impact area. This tool requires input from a
suitably qualified expert and will assist in determining habitat quality for any offset requirements.
Mitigation tables
The Guidelines also contain tables, which discuss mitigation measures for a range of impacts including:
 dog attacks
 vehicle strikes
 spread of disease or pathogens
 barriers to disbursement and fragmentation, and
 degradation of habitat through hydrological change.
These tables contain desirable measures for reducing impacts on the koala population. They are ranked on their
effectiveness in planning, monitoring and maintaining mitigation measures.
Transitional arrangements
The Guidelines apply to all new referrals and existing assessments of actions, which may impact the koala. If your proposed
action has already been referred to the Minister under the EPBC Act, and the Minister has decided whether the action is a
‘controlled action’, the proposal will not be affected. For existing undecided referrals, particular circumstances may require
proponents to provide further information about their proposed actions, but as the Guidelines are largely similar to the
Draft Guidelines we do not anticipate its introduction will have an onerous impact.
If you have not referred an action but the land is subject of the proposal may contain a koala habitat, we recommend that
you seek technical advice as to whether the action is required to be referred to the Commonwealth Environment
Department, as well as assessment at a State level.
Offsets
If an action requires Commonwealth approval, offsets that compensate for the significant residual impacts of the action are
considered in the assessment and approval stages. Offsets are not relevant considerations at the referral stage.
Interaction with State and Local Government
The Guidelines do not provide guidance on the requirements under state and local government laws. However, the
Guidelines have been prepared in a way that allows for alignment of definitions and assessment processes with those
required under state government frameworks.
Key Queensland laws include:
 the Southeast Queensland Koala Conservation Estate Planning Regulatory Provisions (SPRP) - an overarching planning
instrument, which regulates new development at the development assessment stage, and
 Environmental Offsets Act 2014 (Qld), which coordinates the delivery of environmental offsets in conjunction with the
Queensland Environmental Offsets Policy 2014 Version 1.1.
In addition to the SPRP and Offsets Policy, State government also provides for:
 State Government Supported Community Infrastructure Koala Conservation Policy 2010
 Nature (Koala) Conservation Plan 2006 and Management Program 2006 to 2016, and
 Koala Sensitive Design Guidelines.
Summary
Proponents should be aware that approval may be required at the local, state and Commonwealth levels. Any decision not
to refer to a project with a potential impact on koalas should be carefully documented, with input from suitably qualified
experts, to minimise risk of compliance action in future.
If having considered your project and the Guidelines a significant impact is likely, you must submit a referral. Submitting a
referral for consideration in any case will provide proponents with a concrete decision from the Department on which they
can rely. If the Minister decides that the proposed action is not a controlled action requiring approval, the Department
cannot later take enforcement action against the proponent for the subject matter of the referral. For this reason it is
important that the referral reflects significance and likelihood of impacts, and where the scope of a project changes the
referral should be re-visited.
Further information
For further information on any of the issues raised in this alert please contact:
 Stuart Macnaughton on +61 7 3233 8868
 Sarah Hausler on +61 7 3233 8563
 Madeleine McGann on +61 3233 8645
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and
should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.