Selecting the right EIS process can mean streamlined later approvals, upfront uncertainty in conditioning and management of subsequent public notification and objections processes.
With the commencement of the State Development, Infrastructure and Planning (Red Tape Reduction) and Other Legislation Amendment Act 2014, and the passing of the Mineral and Energy Resources (Common Provisions) Act 2014 and the Environmental Protection and Other Legislation Amendment Bill 2014, it's time to consider the range of options available for environmental assessments, and the issues to consider in selecting the right environmental assessment process for your project.
Existing EIS processes
Queensland has three primary EIS processes for larger scale projects:
- the coordinated project EIS process under the State Development and Public Works Organisation Act 1971 (Qld) (SDPWO Act) for projects that the Coordinator-General has declared are a "coordinated project";
- the EIS process under the Environmental Protection Act 1994 (Qld) which is primarily used for mining and petroleum projects; and
- the EIS process under the Sustainable Planning Act 2009 which has been used infrequently, and is proposed to be removed through the Planning and Development Bill.
Working out which process to use is a fundamental part of project planning, as this decision can impact the breadth of the environmental assessment, timeframes, conditions likely to be imposed and the interactions with later approvals.
All of these processes are accredited assessment processes under the current assessment bilateral agreement between the State of Queensland and the Commonwealth, meaning that the EIS assessment satisfies both State and Commonwealth processes for a controlled action. A separate approval is required from the Commonwealth Minister under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
Recent changes to the SDPWO Act EIS process
There have been a number of changes to the SDPWO Act EIS process in recent times.
From 1 October 2014, the introduction of an impact assessment report (IAR) process as an alternative to an EIS, which:
- may be declared if the Coordinator-General is satisfied the environmental effects of the project do not, having regard to their scale and extent, require assessment through the EIS process;
- does not require the preparation of terms of reference;
- only requires public notification where the Coordinator-General determines that notification is required, or where a subsequent "notifiable approval" - which is an approval that requires public notification - is required;
As for an EIS, the Coordinator-General's evaluation report can state conditions for certain subsequent approvals (that must be imposed), make recommendations and state enforceable imposed conditions for the project.
The timeframes for submission and acceptance of an EIS (and IAR) have also been shortened
- an EIS be accepted as the final EIS within 18 months of the terms of reference being finalised (subject to extension by the Coordinator-General);
- an IAR be accepted as the final IAR within 18 months of the coordinated project declaration being made.
There is also now a separate but parallel process for projects that are declared "bilateral projects" to accommodate the proposed approvals bilateral under the EPBC Act.
...with more changes on the way
In addition to the significant changes that have just commenced, further legislative changes to the EIS processes under the SDPWO Act and the Environmental Protection Act are proposed. These changes in the Common Provisions Act (which has been passed, but not commenced) will:
- remove the ability to object to an environmental authority where the evaluation report for an EIS or IAR states conditions for the environmental authority that the Coordinator-General is satisfied adequately addresses the environmental effects of the mining activity;
- mean that you won't necessarily have to go through the information stage and the notification stage for environmental authority applications under the Environmental Protection Act where the Coordinator-General's EIS process is used. These provisions are intended to be further amended through the Environmental Protection and Other Legislation Amendment Bill, which is expected to be debated later this year.
In addition to legislative changes, the Commonwealth Environment Minister has published a notice of intention in relation to the existing assessment bilateral, in order to accredit the IAR process and make other technical changes to the existing agreement.
Selecting the best approvals pathway for your project
The EIS processes on offer have and continue to undergo a significant amount of legislative and administrative change. Selecting the right EIS process can offer significant benefits to a project in terms of streamlining later approvals, upfront uncertainty in conditioning and management of subsequent public notification and objections processes.
In determining an approvals strategy for a new project, or reviewing whether an existing assessment process is the best process available, a number of issues need to be considered, including:
- whether the project is a resources (mining or petroleum) project;
- the complexity of the project, including whether it should be assessed in stages;
- differences in information requirements between the processes;
- application fees;
- the degree of environmental assessment and project certainty that can be provided by a proponent as part of the EIS;
- whether Commonwealth approvals are required, in particular under the EPBC Act;
- whether off-tenement activities are part of a resources project;
- what approvals subsequent to the EIS evaluation are needed;
- the interaction of the EIS process with subsequent assessment processes, including whether a second round of public notification will be triggered, and the relative timing of applications and processes;
- anticipated objections, and the most efficient way to manage the submission process; and
- implications for other legislation, and certainty in conditioning, including for conditions that can be imposed for offsets, social impacts and network contributions.
The legislative changes to the EIS processes have the potential to reduce the time required to obtain EIS evaluation reports and subsequent approvals. To ensure proponents take full advantage of this opportunity, the following steps should be considered:
- ensure the project description in application documents is sufficiently flexible to accommodate potential changes in the project;
- carefully review the terms of reference to ensure that required studies are relevant, proportionate to the impact and feasible within the timeframes;
- plan for the environmental assessment, and allow enough time to ensure that the terms of reference have been met, the assessment documentation is consistent between different disciplines and the mitigation measures and environmental management plans (where relevant) have been written with a view to project conditioning;
- work with the regulator to ensure timeframes are understood and met.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.