New South Wales Bilateral Agreement Information

Read the notice of intent to enter into Amending Agreement No.1.

We made the draft Assessment Bilateral Agreement available for public comment from 11 January 2019 to 21 February 2019. We received 6 submissions.

See a summary of submissions we received.

There are small changes between the final version of Amending Agreement No. 1 and the published draft. They reflect:

• corrections to minor errors and referencing
• change to the responsible Ministers
• updated wording in Clause 7, to reflect our endorsement of the NSW Biodiversity Offsets Scheme.

Most changes reflect wording in the new NSW legislation, where names and numbers have changed.

There are also minor administrative changes to make Amending Agreement No.1 more relevant and fit for purpose. The most significant of these are:

Broadening the scope to include Commonwealth land, actions and agencies - Clause 4.2

The Original Agreement excludes actions in Commonwealth areas or by Commonwealth agencies. Amending Agreement No. 1 now allows such projects to be assessed by the NSW Government, if agreed by the Commonwealth Minister for the Environment and the NSW Minister for Planning.

Excluding Part 5 projects - Schedule 1 (ix) and (x)

Amending Agreement No. 1 exclude projects assessed under Part 5 of the NSW EP&A Act. Part 5 projects are primarily carried out by or on behalf of NSW public authorities and do not require development consent through the NSW Department of Planning, Industry and Environment. There are therefore limited savings from including Part 5 projects within Amending Agreement No. 1.

Transitional Arrangements - new clause 5.0 in Amending Agreement No. 1

The Original Agreement still applies for projects assessed under NSW former planning provisions because they pre-date the BC Act or are being assessed in accordance with the Biodiversity Conservation (Savings and Transitional) Regulation 2017.

Previously endorsed NSW impact assessment and offset methodologies will remain endorsed by the Australian Government and can still be used to calculate EPBC Act offsets for transitional projects. These include the NSW Biodiversity Offsets Policy for Major Projects, the FBA, and the Biobanking rules established under section 127B of the now-repealed Threatened Species Conservation Act 1995.

The Department of Agriculture, Water and the Environment has endorsed the NSW Biodiversity Offsets Scheme (BOS). It includes the Biodiversity Assessment Method (BAM), the biodiversity credit system, and the offset rules set out in the BC Regulation. Both governments agree that endorsement of the BOS for both NSW and Commonwealth-listed threatened species and communities will provide for robust, transparent, and streamlined biodiversity protection outcomes.

The BOS is largely consistent with NSW’s previous offsetting approaches. NSW has amended the BC Regulation to align with Australian Government requirements and ensure like-for-like offsets are achieved for Commonwealth-listed threatened species and communities.

Endorsement of the BOS applies to all NSW projects that require EPBC Act approval not just State Significant projects under the Bilateral Agreement.

A statutory review of the operation of the Bilateral Agreement is required to be undertaken by the Australian and NSW Governments at least once every five years. The first statutory review, scheduled for 2020, will focus on the effectiveness of the Commonwealth’s endorsement of NSW offset approaches in ensuring long-term environmental outcomes for relevant matters of national environmental significance over the previous five years.

In addition, the Department of Agriculture, Water and the Environment will undertake more regular monitoring of how offsets are secured under NSW offsetting arrangements for the purposes of EPBC Act approvals at the project scale.

Holders of an approval under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) can meet their offset obligations in accordance with the NSW offset rules. This means proponents may seek to generate and retire like-for-like credits through Biodiversity Stewardship Agreements or purchase and retire credits directly from the market.

Holders of an approval under the EPBC Act may be able to pay into the NSW Biodiversity Conservation Fund to meet the conditions of their approval if they have:

1. A legal obligation to retire biodiversity credits under NSW law (generally via development consent conditions issued by an NSW consent authority under the EP&A Act), and
2. EPBC Act approval that was made on or after 24 March 2020 or if issued prior to this date, EPBC Act conditions of approval that allow for payment into a Commonwealth-endorsed Fund.

EPBC Act approval holders not eligible under the above criteria seeking to pay into the Biodiversity Conservation Fund as an alternative to existing offset obligations should contact the Post Approvals Section in the Department of Agriculture, Water and the Environment (postapproval@awe.gov.au).

The BAM establishes a single consistent approach to assessing biodiversity values and biodiversity impacts from development. The BAM builds on and supersedes previous NSW statutory assessment and offsetting mechanisms; BioBanking and the FBA.

The BAM uses a framework to avoid, mitigate and offset proposed impacts to biodiversity. Where offsets are required, the BAM achieves no net loss of biodiversity.

Despite technical changes, the BAM’s coverage and approach remain conceptually consistent with prior approaches.

The offset rules require the retirement of like-for-like biodiversity credits or funding conservation actions that directly benefit the listed species or community impacted. These meet the Australian Government’s requirements.

The NSW offset rules allow for variations where like-for-like offsets cannot be found. However, NSW has amended the BC Regulation to prevent the variation rules from applying to projects that need EPBC Act approval and that have an offset obligation for nationally-listed species and communities. It ensures offsets for EPBC Act purposes achieve like–for-like outcomes.

The Australian Government considers mine rehabilitation an important component of landscape-scale biodiversity conservation and recognises that rehabilitation activities can contribute to offsetting outcomes where they directly benefit matters of national environmental significance. The quantum of a mine’s offset obligation to be met through rehabilitation will be determined on a case by case basis.

NSW will also ensure payments into the Biodiversity Conservation Fund for EPBC Act projects are disbursed in a like-for-like manner to meet Australian Government requirements.