07 Apr 2010

The environmental approvals process in Western Australia is about to get a makeover

by Brad Wylynko, Amanda Burt

2010 will see the implementation of major revisions to the environmental approvals process in Western Australia. A recent EPA report recommended several priority items for implementation.

In Western Australia the EPA undertakes Environmental Impact Assessment (EIA) of proposals referred to it under Part IV of the Environmental Protection Act 1986 (WA). In March 2009, a comprehensive review of the EIA process recommended significant changes to the EIA process, in an effort to streamline WA's approval regime.

Five "priority one" implementation recommendations are now being actioned.

1. New Administrative Procedures

A key recommendation was to increase the certainty and clarity of the EIA process by updating the eight-year old EIA Administrative Procedures.

The EPA is now preparing updated Administrative Procedures which will, amongst other things, collapse the current five levels of review into two, and set target timelines. (We discuss timelines and levels of assessment below.)

These new Administrative Procedures will also incorporate amendments made to the Act in 2003.

Of course, as the new Administrative Procedures are still being finalised, the 2002 Administrative Procedures continue to apply to proposals referred to the EPA until the 2009 Administrative Procedures are gazetted.

2. Environmental Impact Assessment timelines

A second key recommendation related to a perceived lack of timeliness in the EIA process.

The EPA is currently in the process of developing its Environmental Assessment Guideline on Timelines for EIA of Proposals. Amongst other important issues the guideline will include the target timelines for each key step in the two new levels of the EIA process. This aims to assist in avoiding delays and to reduce project uncertainty and costs.

A draft guideline was released in March 2010.

3. Reduced levels of assessment

Another key recommendation was to make the process simpler.

Instead of five levels of EIA there will just be two. The first level will cover proposals that can be assessed by the EPA without needing a public review. The second level will cover proposals that warrant public review.

The EPA is expected to publish a guideline on the new levels of assessment imminently so watch this space).

4. Setting outcome-based conditions

The most dramatic recommendation was the suggestion to move to outcome-based conditions in the final Ministerial approval (which follows the EIA process).

In December 2009 the EPA released its draft Environmental Assessment Guideline entitled "Towards Outcome-based Conditions". The Guideline describes a method for the development of outcome-based conditions for use when preparing the EIA documentation. It also describes the issues to consider when developing the outcome-based conditions to ensure the intended outcome is delivered.

These conditions are likely to be highly specific to each proposal. Each condition will describe the required environmental outcome as it relates to the environmental issue and will include instructions on how the achievement of the outcome is to be demonstrated. The guideline gives examples of outcomes such as, "the avoidance of particularly significant vegetation or habitat, or the progressive rehabilitation of an area".

The move away from prescriptive conditions to outcome-based conditions will enable proponents to be more creative in ensuring environmental protection, but will still require extensive monitoring and reporting.

5. Risk-based approach to EIA

The EIA review also found that the use of a risk-based approach would significantly improve the EIA process. The EPA is now evaluating this approach and plans to implement it gradually after the methodology is refined.

The EIA review recommended that a risk-based approach provides a more systematic consideration of the likelihood and significance of potential environmental impacts, and provides a more transparent approach to assessment than the current method.

Two pilot projects are underway using the risk-based method, including an offshore petroleum production proposal at the Environmental Review and Management Programme level of assessment, and an iron ore mining proposal at the Public Environmental Review level of assessment. The proponents have conducted workshops with stakeholders to assist in the scoping of their documents, and have engaged independent facilitators to assist with the application of the new piloted approach.

The EPA has extended the development phase of this approach, and has yet to decide if the approach will be formally implemented.

So how does this all affect you and your projects?

In Western Australia, exciting and potentially significant changes in the law are underway.

Depending on when the Administrative Procedures are gazetted, presumably within the next month or so, proponents may wish to consider potential project benefits resulting from the referral of proposals after the gazettal.

It is important to keep an eye on the EPA's website for any new initiatives that might be likely to have an effect on your proposals.

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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 communication. Persons listed may not be admitted in all States and Territories.