With the Department of Climate Change, Energy, the Environment and Water (DCCEEW)'s formal declarations of an area in the Bass Strait off Gippsland, Victoria on 19 December 2022 and of an area in the Pacific Ocean off the Hunter, New South Wales on 12 July 2023 as suitable for offshore wind, momentum is building in the Australian offshore wind industry.
Overview of the offshore wind regulatory framework
The main regulatory framework for offshore wind developments in Australia is currently comprised of the Offshore Electricity Infrastructure Act 2021 (Cth) (OEI Act) and the Offshore Electricity Infrastructure Regulations 2022 (Cth) (OEI Framework). The OEI Framework provides a licensing scheme to enable the construction, operation and decommissioning of offshore renewable energy infrastructure (offshore wind and solar farms, wave energy plants etc.) and offshore electricity transmission infrastructure in Commonwealth waters (ie. offshore locations from three nautical miles off the coast to the outer boundary of Australia's exclusive economic zone).
The OEI Act empowers the Australian Government to designate areas to be used to develop offshore renewable energy infrastructure. In fact, such a ministerial declaration must be made before feasibility or commercial licences can be granted over an area under the OEI Act.
The OEI Framework has been designed to operate in conjunction with other applicable regulatory regimes, including the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and also the Environmental Protection (Sea Dumping) Act 1981 (Cth) and the Underwater Cultural Heritage Act 2018 (Cth). Applicable State and Territory legislation varies by jurisdiction and the degree to which individual project infrastructure intersects with State and Territory coastal waters and lands. Proponents will need to seek all required approvals and licences under relevant Commonwealth and State or Territory legislation before any offshore infrastructure activities can occur.
Approvals under the EPBC Act are required if an activity (an action) is expected to have a significant impact on a protected matter of national environmental significance (MNES) under Part 3 of the EPBC Act, including the Commonwealth marine area. It is a project proponent's responsibility to undertake a self-assessment to decide whether or not proposed activities (or a whole project) is likely to have a significant impact on MNES such that it should be referred to the Minister for the Environment for assessment under the EPBC Act.
Key environmental factors guidance
Following the Department's Area Declarations, the DCCEEW published guidance, "Key environmental factors for offshore windfarm environmental impact assessment under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth)". This Guidance identifies 13 key impacts typically associated with offshore wind projects which proponents should consider when deciding whether a referral under the EPBC Act is necessary / when undertaking their environmental impact assessment (EIA) for the purposes of the EPBC Act.
The 13 key impacts identified are:
- Underwater noise – mortality, injury and behavioural effects
- Turbine interactions – injury and mortality to birds and bats
- Electromagnetic fields
- Seabed disturbance – loss of/harm to benthic habitats
- Disturbance of underwater cultural heritage
- Physical presence – effects on hydrodynamics and sediment transport processes
- Physical presence – barrier effects and displacement of marine fauna
- Light emissions
- Vessel interactions – injury and mortality to marine fauna
- Invasive marine species
- Physical presence – socioeconomic: interference/displacement of existing uses
- Physical presence – socioeconomic: seascapes and visual amenity
- Multiple impact pathways – Australian marine parks and their values.
For each of the 13 key impacts identified, the Guidance provides information on:
- Key receptors and protected matters (sources of the impact) (eg. land and sea fauna and flora, cultural heritage and existing human uses (including views) etc.);
- Key statutory documents, management principles and other information and resources that may be relevant to an EIA of the impact;
- Examples to inform a defined acceptable level of impact against which to evaluate predicted impacts of a project; and
- Good practice management, including recommendations and/or potential requirements to minimise, monitor and mitigate potential impacts.
In order to manage uncertainty, the Guidance recommends a conservative approach to impact assessment and the selection of management measures and encourages proponents to seek further information about the environment which will be impacted to increase their understanding of the likely impacts. It notes the mandatory considerations for assessments under the EPBC Act. Proponents should take note of these considerations and examine how these considerations may apply to their projects.
It also notes that impact avoidance should always be a proponent's priority at the outset. While the declaration of an area as suitable for offshore wind under the OEI Act includes consideration for avoiding areas where significant environmental sensitivities are present, further avoidance measures may be required. Where adverse environmental impacts cannot be avoided completely, impact avoidance and mitigation measures such as micro-siting of wind turbines, seasonal activity scheduling and adopting environmentally-friendly infrastructure design should be investigated and adopted in project design.
The process of declaring areas suitable for offshore renewables under the OEI Act is likely to result in multiple large-scale offshore renewable energy projects being developed within each declared area. As such, proponents should, where possible, take into account the cumulative potential environmental impacts of each proposed/existing project. This will aid the Department in its approval decisions and consideration of the need to maximise the utility of a declared area for renewable generation while managing the cumulative environmental impacts of all projects.
The Department has flagged that it will continue to develop additional guidance and standards for the regulation of offshore renewable energy under the EPBC Act, including policies on managing cumulative impacts and regional approaches to planning and regulation. The Department is planning to engage with industry and co-regulators in the development of these.
Collection and provision of environmental data
As part of a broader suite of reforms to the EPBC Act announced when the Nature Positive Plan was released in December 2023, the Commonwealth is establishing Environment Information Australia, to identify and consolidate key environmental data to improve the availability, access and quality/accuracy. This EIA will have a legislative mandate to provide environmental data to the independent Environment Protection Agency, that will also be established as part of the reforms.
The Guidance notes that while these reforms are ongoing, offshore wind project proponents are encouraged to voluntarily provide data and study outcomes to the Department.