The Final Countdown: what the proposed amendments to the EPBC Regulations mean for projects

These regulations are still in draft and may change before they are finalised. Even so, now is a good time to think about how they could affect projects in development and when referrals should be lodged.

In short, the proposed amendments would:

• make the four National Environmental Standards (NES) binding on decisions to approve projects and strategic assessments;

• ask much more of proponents at the referral stage, particularly those wanting a streamlined assessment;

• rewrite what an environmental impact statement (EIS) needs to cover;

• set up a register for advanced restoration actions; and

• set rules for how the Restoration Contributions Holder (Holder) spends the money it receives.

The National Environmental Standards become decision-making tests

Perhaps the most significant change is that all four National Environmental Standards, covering matters of national environmental significance (MNES), environmental offsets, community engagement, and data and information, will apply to decisions to approve projects and actions under strategic assessments. The NES apply as in force from time to time, so any later changes will flow through automatically.

The NES already apply to decisions about bilateral agreements and accreditation and now the real change is about to start for projects across the country. The Minister will not be able to approve a project unless satisfied that the decision is consistent with each of them. Requirements that may have been applied as policy in recent years will become a legal test.

The NES will also shape the new referral and EIS requirements. Expect to have to show, with evidence, that the project meets each Standard.

The Commonwealth government has made a commitment to progress negotiations of new bilateral agreements with the States and Territories, with a Memorandum of Understanding having already been signed with Western Australia and New South Wales. New assessment bilateral agreements are to be finalised by the end of the year, or early 2027 once State and Territory frameworks are confirmed to be consistent with the NES and other new approval tests. The Commonwealth and New South Wales governments are also targeting an approvals bilateral agreement in the first quarter of 2027, having released a draft bilateral agreement for public consultation on 22 October 2026.

Referrals: more detail, especially for streamlined assessment

Referral requirements are restructured into two tiers: information that every referral must include, and extra information needed if the proponent wants the benefit of the streamlined assessment pathway.

Even the baseline is considerably more demanding. Every referral will need a much fuller picture of the project, its impacts on each protected matter (including whether each is likely to be significant) and how those impacts will be avoided, mitigated or repaired. Proponents will also need to explain where their information has come from, how reliable it is and where the gaps are.

Importantly, the current flexibility to leave out information that it would be unreasonable to expect at the referral stage (for example, information that could only be obtained by preparing an EIS) is replaced with a short, closed list of exceptions, such as confidential, culturally sensitive or third-party personal information. The referral must say what kinds of information have been left out. This, however does not preclude the Minister from requesting the information.

Proponents seeking a streamlined assessment must go further. In effect, the referral must show that the project can be approved: no unacceptable impacts, the mitigation hierarchy applied, and a credible plan to compensate residual significant impacts so the project delivers a net gain (with evidence that any offsets meet the Offsets Standard). Environmental history (of the proponent, its executive officers and any parent company), economic and social matters and monitoring arrangements must also be addressed.

This detailed information is required because streamlined assessment is only available where the Minister is satisfied there is enough information to make an approval decision, the project is not a fossil fuel project and greenhouse gas emissions information has been provided. There are no further assessment steps, including no ability to ask any requests for information, and the approval decision is due within 30 business days of the decision to use that pathway. A project can be moved out of streamlined assessment into a longer pathway, but not the other way around. Put simply, a referral seeking this pathway needs to be decision-ready on the day it is lodged.

Expect to front-load the work – including engagement

Much of the work that has traditionally happened during assessment such as surveys and baseline data, impact assessment against the MNES Standard, applying the mitigation hierarchy, and developing an offset strategy (or deciding to pay a restoration contribution) – will need to be done before the referral is lodged, with no scope to put it off until later.

Pre-referral meetings with National Environmental Protection Agency will be important, to ensure that proponents and assessing officers agree on the details of the information required (e.g. the nature and extent of information required to show there will be no unacceptable impacts in the context of the specific action).

Engagement deserves particular attention. Every referral will need to describe any community engagement already undertaken, summarise the responses, explain whether the responses changed the project and say whether the engagement met the Community Engagement Standard. The Standard itself expects engagement to happen during the planning and design phase, as far as reasonably practicable. It points to a published engagement plan, a public comment period of at least 10 business days, genuine two-way dialogue with affected persons (which now includes anyone likely to be directly affected, not just neighbours), and a record of what was heard and how it shaped the project.

For a streamlined assessment, which has no public comment step after the referral stage, this engagement will in practice need to be finished and well documented before the referral is submitted. For projects assessed by EIS, the EIS will need to assess whether engagement met the Standard and show how the project changed as a result. Either way, engagement planning should be on the agenda early.

Advanced restoration actions

The draft sets up a public register of advanced restoration actions, that is, restoration that can be established ahead of a project’s impacts and later used to satisfy an approval condition requiring compensation. To register an action, an applicant will need to describe the site and the activities, the protected matters that will benefit, a baseline and target improvement, and a management plan with a monitoring framework.

The Minister will have 40 business days to decide whether to register an advanced restoration action, including one that has already started.

A registered action can be used once to satisfy an approval condition. Registrations can be varied or transferred, but the action must be monitored, recorded and reported on annually, or registration can be suspended or revoked. This creates a real opportunity to bank restoration ahead of impacts, and potentially to trade in it, but the data and management requirements should not be underestimated.

The Restoration Contributions Holder

For proponents who choose to pay a restoration contribution charge rather than deliver their own offsets, the draft amendments set out how the Holder must spend that money. Generally, restoration actions must start within three years of payment. They can be direct actions on the ground or indirect actions (such as research into threats) identified as a high priority in a recovery plan or similar document. The outcomes of direct actions must be maintained until they become durable (that is, able to withstand external pressures so they can be expected to last a long time) – but for no less than 25 years and no more than 100 years. The Holder must also have regard to the Offsets Standard.

Money paid under a bioregional plan must first go to restoration that delivers a net gain for the affected matter, with alternatives only as a last resort and after expert advice from the Restoration Contributions Advisory Committee. Management plans, a public register and annual reporting will give proponents better visibility of how and when their contributions are being used, which may also help when explaining a project’s environmental credentials to the community.

A consultation paper on the proposed methodology for calculating restoration contribution charges was released for public comment at the same time as the exposure draft. The restoration contributions system will be limited initially to a small subset of threatened species and threatened ecological communities, meaning many projects will not be able to rely on restoration contribution charges in the short term. The two case studies included in the paper are for Black Cockatoos and Koalas.

A new Restoration Contributions Calculator will determine the restoration contribution charge a proponent will have to pay the Holder to deliver restoration actions if relying on this offsets pathway. The calculator is designed to recover costs of planning, delivering, monitoring and maintaining restoration outcomes. Calculations will incorporate separate cost components for delivery, administration, and a reversal risk contingency to cover the cost of re-establishing the offset if the restoration outcomes are lost or reduced as a result of a disturbance event (e.g. climate change or bushfire). The current modelling builds in conservative cost estimates, including costs that have been estimated at a 90% confidence level and a contingency payment that is about 50% of the combined administration and offset delivery costs for a site with a medium risk of reversal (i.e. the estimated restoration charge included in the koala case study includes a $1 million contingency component for reversal risk, on top of the $2 million delivery and administrative costs).

Other changes

Other important changes include:

• Extending approvals: applications to extend an approval will need more identifying detail and, for projects referred after the reforms commence, evidence that the extension is consistent with the Standards, will not result in an unacceptable impact and will still deliver a net gain.

• Two assessment pathways removed: the rules supporting assessment on referral information and public environment reports are removed, reflecting their replacement in the Act by the streamlined assessment pathway.

• EIS content: an EIS will need to assess whether each impact is significant or unacceptable, show consistency with the MNES Standard and the mitigation hierarchy, explain how residual impacts will be compensated to achieve a net gain, and report on engagement against the Community Engagement Standard. Monitoring and information source requirements are also updated, and the requirement to describe the proponent’s environmental record is removed.

Transitional provisions

The new referral and EIS requirements will generally apply to projects referred on or after 1 December 2026, and the NES will only become an approval test for those projects. Projects that already have an assessment pathway decision before then will continue on their existing track.

Projects referred before 1 December 2026 but still awaiting that assessment decision will, however, be assessed under the new pathways, so a public environment report or assessment on referral information will no longer be an option.

Some procedural changes will apply regardless of when the project was referred.

What to do now

• Check the timing of planned referrals against 1 December 2026.

• Start engagement early and keep good records of what was heard and how it shaped the project.

• Line up surveys, impact assessment and a restoration contribution strategy before referral.

• Decide early whether streamlined assessment is realistic for the project.