The Commonwealth EPBC Act referral guidelines for the vulnerable koala
On 2 May 2012, the Commonwealth Department of the Environment (Department) listed the combined koala population of Queensland, New South Wales and the Australian Capital Territory (specifically Phascolarctos cinereus) as a "vulnerable" threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The Department subsequently released "interim koala referral advice for proponents" (in June 2012) and the "Draft EPBC Act referral guidelines for the vulnerable koala" (in December 2013) (Draft Guidelines).
In December 2014, the Department finalised its review of the Draft Guidelines and released the "EPBC Act referral guidelines for the vulnerable koala" (Guidelines).
This Alert, authored by Partner Sarah Macoun and Solicitor Robyn Lamb, provides an overview of the Guidelines and, given that industry participants have been working with the Draft Guidelines for some time, focuses on the differences between the Draft Guidelines and the finalised version of the Guidelines.
Key points of interest include:
- The Guidelines will apply to all new referrals and existing assessments of actions which may impact the koala. If an action has been "self-assessed" and not referred to the Department, proponents should reassess the action against the Guidelines to confirm whether or not referral is required.
- While the Guidelines and the Draft Guidelines are quite similar, there are differences between the two versions which ought to be considered and may have practical implications for certain development.
- The Guidelines amend a number of the definitions, including "contiguous landscape" and "barrier", which are relevant to determining a score for habitat connectivity under the koala habitat assessment tool.
- The Guidelines make it clear that proponents of development must undertake more detailed investigation which, at a minimum, involves checking the Protected Matters Search Tool and, where certain detailed mapping exists, checking that mapping as well. Where the Protected Matters Search Tool identifies the listed koala, it is also necessary to carry out an assessment under the Guidelines. Failure to do so would be highly risky in circumstances where a proponent intends to rely on "self-assessment" rather than referral.
- Under the Guidelines there is more detailed guidance about the survey methods for the koala and koala habitat which may be adopted, including a greater number of direct methods and indirect methods.
- The Guidelines recognise that urban areas are unlikely to achieve a score other than zero in relation to three of the five primary koala habitat attributes due to existing factors and likely continuing degradation of the area. As a result, development in an urban area may be more likely to score below the threshold level of five under the koala habitat assessment tool.
Purpose of the Guidelines
The koala, as a listed threatened species, is a matter of national environmental significance protected under the EPBC Act. The first consideration for a proponent in the EPBC Act process is whether to refer a proposed action to the Department for a decision about whether or not it is a "controlled action". Whether or not to refer will depend on an assessment of whether the action has, will have, or is likely to have a significant impact on a matter of national environmental significance. A "significant impact" is not defined in the Guidelines or the EPBC Act, but the EPBC Act's "Matters of National Environmental Significance - Significant Impact Guidelines 1.1" state:
"A 'significant impact' is an impact which is important, notable, or of consequence, having regard to its context or intensity. Whether or not an action is likely to have a significant impact depends upon the sensitivity, value, and quality of the environment which is impacted, and upon the intensity, duration, magnitude and geographic extent of the impacts. You should consider all of these factors when determining whether an action is likely to have a significant impact on matters of national environmental significance".
Where it is decided that a proposed action, or part of an action, is a "controlled action", it must be assessed and approved.
The Guidelines are intended to assist in the complex determination of whether an action would have a "significant impact" on the koala and to operate consistently across the various koala populations. The Guidelines are premised on "long term recovery planning for the koala", and are intended to be read in their entirety in order to make a robust assessment under the EPBC Act.
When do the Guidelines apply?
The Guidelines apply in areas where the koala, or koala habitat, occurs in Queensland, New South Wales and the Australian Capital Territory. They will apply to all new referrals and existing assessments of actions which may impact the koala. Where an action has been "self-assessed" (for example, against the Draft Guidelines) and not referred to the Department, it will be necessary for the proponent to undertake a reassessment of the action against the Guidelines to confirm whether or not referral is required.
The Department indicates that it does not anticipate the Guidelines will substantially impact on assessments which are underway as they take a similar approach to the Draft Guidelines. However, a note accompanying the Guidelines indicates that in cases where an assessment is already underway, the Department should be contacted to discuss the applicability of the Guidelines to the action.
Note that where an action is already underway when a species is listed, and that action does not qualify for an exemption under the EPBC Act, or has not already been determined to be "not a controlled action" or received an approval as a controlled action, approval under the EPBC Act may be required in respect of impacts on that species.
The Guidelines separate koala populations into coastal and inland koalas for the purposes of applying the EPBC Act's "significant impact" test. As under the Draft Guidelines, to determine the context in which the proposed action will occur, it is necessary to refer to the Bureau of Meteorology's average rainfall data and, if there is uncertainty, adopt the coastal context criteria.
How do the Guidelines differ to the Draft Guidelines?
Generally speaking, the Guidelines and the Draft Guidelines are quite similar. However, there are some differences between the two documents and some clarification in relation to definitions, some of which are discussed below.
Definitions of "barrier" and "contiguous landscape"
The definition of "barrier" in the Draft Guidelines identifies natural barriers and artificial barriers which include treeless areas more than 1 km wide. Under the Guidelines, the minimum width for treeless areas has doubled to 2km. In practice, the new minimum width may mean that fewer treeless areas will be considered a "barrier" in terms of koala habitat.
The definition of contiguous landscape has significantly changed between the Draft Guidelines and the recent release of the Guidelines. Previously the definition provided that contiguous landscape was "an area of koala habitat bounded by barriers". However, the definition has been changed as follows:
"Contiguous landscape: An area of koala habitat that is greater than 300ha in the coastal context, or greater than 500ha in the inland context, which encompasses no barriers but is bounded by barriers (see Barrier definition above)".
The definition of "contiguous landscape" is relevant to determining the score of habitat connectivity in Table 4: Koala habitat assessment tool.
The minimum area requirements, of 300ha in the coastal area or 500ha in the inland area, are a reflection of the area requirements for habitat connectivity in the habitat assessment tool. However, the definition of "contiguous landscape" now requires that an area is bounded by barriers, but does not encompass any barriers. This means that koala habitat must not contain any natural or artificial feature that is likely to prevent the movement of koalas, such as steep mountain ranges, unsuitable habitats, major rivers or water bodies or infrastructure (such as roads, rail, mines or large fences) without effective koala passage measures. As the definition focuses on large areas of koala habitat which do not contain any barriers, it seems less likely that areas of contiguous landscape will be identified, particularly in urban settings.
Other amended definitions
The Guidelines also amend other definitions as follows:
- "Evidence of breeding" in the Draft Guidelines includes adult koalas with juveniles (as well as observed mating, or the presence of one or more female koalas with back young), but the Guidelines' definition of "breeding" now includes a female with pouch young, but removes the reference to juveniles.This is mainly relevant to koala context attributes and direct observation methods under the Guidelines.The definition of "breeding" is somewhat narrower as juveniles are excluded from the definition, however, consultants and experts will be in a better position to comment on the practical implications of this change.
- The definition of "food tree" clarifies that primary and secondary food trees (as defined by some resource material) fall within the definition.
- Under the Draft Guidelines, "habitat critical to the survival of the koala" is defined as "Koala habitat that is considered to be important for the species' long term survival and recovery. An impact area that scores five or more using the habitat assessment tool for the koala in Table 3 of this guideline contains habitat critical to the survival".The Guidelines are more equivocal, in that areas which meet the threshold in the habitat assessment tool for the koala are "...highly likely to contain habitat critical to the survival of the koala" (our emphasis).The Guidelines therefore seem to be open to the possibility that an area is not critical habitat for koalas even where the requisite score on the koala habitat assessment tool is achieved.
- Part of the definition of "shelter trees" in the Draft Guidelines stated that shelter trees were those used for "...refuge, sheltering or resting during hot or inclement weather".The Guidelines have removed the reference to hot or inclement weather and deleted the definition of trees, potentially expanding the trees which will be identified as "shelter trees".Again, consultants and experts would be in a better position to comment on the practical implications of this change.
- The definitions seem to focus more on vegetation than plants.For example, "koala habitat" now refers to vegetation instead of plants, and the Draft Guidelines' definition of tree as a woody plant more than 5 metres tall does not appear in the Guidelines.
Could the impacts of the action occur within the modelled distribution of the koala?
As noted in the Draft Guidelines, the Protected Matters Search Tool contains up to date information on whether koalas occur in a project area.
Section 2 of the Guidelines has been amended to require that the Protected Matters Search Tool is part of any desktop survey process and that an assessment under the Guidelines must be undertaken if the Protected Matters Search Tool identifies the listed koala. Further, where there is finer resolution mapping which has been carried out by a reputable source such as a local government, that mapping should be given more weight. It is therefore made clear that proponents of development must undertake more detailed investigation which, at minimum, involves checking the Protected Matters Search Tool and, where certain detailed mapping exists, checking that mapping as well. Where the Protected Matters Search Tool identifies the listed koala, it is also necessary to carry out an assessment under the Guidelines. Failure to do so would be highly risky in circumstances where a proponent intends to rely on "self-assessment" rather than referral.
Geographic context of a proposed action
Table 1 identifies koala context attributes. The Guidelines seem to expand the range of koala habitat to include woodlands and forests, instead of riparian woodlands and forests; windbreaks and certain gum woodlands. It now recognises the primary threat to inland areas of mortality due to vehicle strikes and dog attack, and to coastal areas of high-intensity fire. The Guidelines also identify a new interim recovery objective for coastal areas of maintaining corridors and connective habitat that allows movement of koalas between large areas of habitat.
Surveying for the koala and koala habitat
While the Draft Guidelines encouraged proponents to carry out surveys before submitting a referral, Section 5 of the Guidelines now encourages proponents to engage a qualified specialist to carry out surveys before an assessment or referral. It also notes the availability of survey guidelines available from the Department and some local governments.
For a desktop survey, consultation with certain stakeholders should be carried out to confirm records of koala occurrence and to address any knowledge gaps. The Guidelines now identify, within the group of relevant stakeholders, koala conservation organisations and local government experts.
The Guidelines also make it clear that:
"If there are knowledge gaps, or if key pieces of information are missing, to the extent that an assessment of impacts on the species cannot be confidently made, on-ground surveys should be carried out. The absence of records in online databases is not necessarily sufficient evidence that the koala is not present, particularly if habitat is present".
It seems likely that in many cases on-ground surveys will be required. Importantly, where online records do not yield records of the presence of koalas, this will not be sufficient evidence in itself, especially where koala habitat is present.
The Guidelines also provide significantly more detail about survey methods. A new section about "survey effort" acknowledges the highly variable environmental factors and that the requisite effort is to be determined on a case by case basis. It also sets out a number of key principles for designing and implementing koala surveys, which are important for proponents of development and consultants to bear in mind, including that:
- Sampling is only appropriate in some circumstances (e.g. moderate or large study areas);
- Gathering data must be "...undertaken in a manner which maximises the chance of detecting the species";
- A single survey which does not detect animals or signs does not mean that the koala is absent, and spatial and temporal replication is required.
Surveying koalas and koala habitat is now separated into direct and indirect survey methods. The Guidelines provide more comments about direct observation methods and a wider range of methods, including mark-resight or mark-recapture, detection dogs and radio or satellite collars. Five indirect survey methods have also been identified.
As was the case under the Draft Guidelines, the Guidelines refer to the Department's Significant Impact Guidelines 1.1 but note that the concept of "important populations" has not been used in the Guidelines as there is insufficient detail to "...adequately identify and separate the nature of any important populations throughout the range of the listed species". However, the Guidelines indicate that this may be reviewed upon finalisation of the national recovery plan for the koala.
Could the impact area contain habitat critical to the survival of the koala?
Section 6 of the Guidelines contains the koala habitat assessment tool, which identifies five primary koala habitat attributes – koala occurrence, vegetation composition, habitat connectivity, existing threats and recovery value.
In relation to habitat connectivity, existing threats and recovery value, the Guidelines now state:
"In most cases, the value of these three attributes in urban areas is likely to be zero as the existing effects of habitat loss, fragmentation, vehicle strike, dog attack and other threats have and are likely to continue to degrade these areas over the medium to long-term".
The Guidelines therefore recognise that urban areas are unlikely to achieve a score other than zero in relation to three of the five primary koala habitat attributes due to existing factors and likely continuing degradation of the area. In particular, the new definition of contiguous landscape in relation to determining the score for habitat connectivity would seem to make it very unlikely that any urban areas would be capable of scoring a result other than zero. This means that development in an urban area may be more likely to score below the threshold requirement of five.
Some elements of the koala habitat assessment tool in Table 4 have also been amended. We note the following changes:
- For koala occurrence, a score of +1 (medium) in inland and coastal areas is achieved where evidence of one or more koalas is within 5 kilometres, instead of 2 kilometres, of the edge of the impact area within the relevant time period.
- Vegetation composition has been changed by removing the requirement that koala food tree species are "in the canopy".
- Key existing threats have been amended to make it clear that it is possible to score +2 (high) where there are no dog or vehicle threats present, even though koala occurrence was zero. Further, it is possible to score a +1 (medium) where koala occurrence is zero but the presence of some degree of dog or vehicle threat is likely. This means that a score of +2 or +1 can be achieved where there are no or some dog or vehicle threats, even though there is no evidence of koalas occurring in an area.
Whether the action will adversely affect habitat critical to the survival of the koala
Section 7 of the Guidelines now provides that while micro-siting can reduce the risk of adversely affecting such habitat, it is also necessary to consider indirect impacts which may interfere with the koala's recovery.
Figure 2 is a flow chart setting out when referral is required and how to assess the action where impacts are uncertain. The focus of the assessment is more on whether the area which would be impacted contains koala food trees, rather than there is evidence of koala presence.
The Guidelines also contain an amendment to the flow chart for assessing adverse effects. The first question is whether an impact area contains habitat critical to the survival of the koala, being a habitat score of 5 or more. Under the Draft Guidelines, where the answer to this was no, the response was that referral was not recommended as the area was unlikely to be important for the recovery of the species. The Guidelines now answer this question by directing the proponent to Section 9 as significant impacts may be likely for other reasons.
Whether the action interferes substantially with the recovery of the koala
Section 8 of the Guidelines provides for determining whether action interferes substantially with the recovery of the koala. It now contains several detailed examples in impact mitigation tables.
If an action requires approval by the Department, the approval stage will consider offsets that compensate for the action's significant residual impacts. Offsets are not considered at the referral stage.
The Guidelines contain a habitat assessment tool which may be used to assist with the EPBC Act Environmental Offsets Policy and the Offsets Assessment Guide.
The Guidelines and the Draft Guideline are quite similar. The Guidelines seem, in practice, to be directed towards the protection of large parcels of koala habitat, particularly those outside of urban areas. The Guidelines contain some changes, particularly in relation to the definitions and the habitat assessment tool, which may have consequences for certain development. It is also important to note the amendments which have been made to the requirements for surveying the koala and koala habitat, as this is relevant to both consultants and proponents of development.
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