06 Jun 2013

New EPA guidelines: when should projects be referred to the Northern Territory EPA?

The Northern Territory Environmental Protection Authority (NT EPA) has released draft guidelines that will assist proponents and government agencies when determining whether projects require referral for assessment by the NT EPA.

Referral of projects to the NT EPA: why the guidelines are needed

Generally, where a project is likely to have a significant effect on the environment, it must be referred to the NT EPA before it can be approved.

This referral, or "Notice of Intent" (NOI), is then considered by the NT EPA for the purpose of deciding whether a public environmental report or environmental impact statement should be required for the project.

Previously, there has been little published guidance on when a project will be considered to have a significant effect on the environment.

Different draft guidelines for different projects

The draft guidelines clarify when a project will not require a NOI.

Separate guidelines have been released in relation to the following:

  • development projects under the Planning Act;
  • mining projects under the Mining Management Act;
  • onshore petroleum exploration and production projects under the Petroleum Act; and
  • land clearing proposals under the Pastoral Lands Act.

Each of these guidelines contain criteria relating to matters such as: impacts on fauna, waterways, groundwater and soils, as well as waste management, land clearing and social and economic impacts. The intention is that, where all of these criteria are fulfilled, referral to the NT EPA will not be required.

What do the guidelines cover?

There are some differences across the guidelines. However, common criteria include:

  • the proposed development is unlikely to have the potential to significantly obstruct or alter existing waterways or groundwater flows;
  • the proposed development is unlikely to have the potential to involve significant ground or surface water extraction;
  • the proposed development is not located within, or in close proximity to, a national park, conservation reserve, marine park or reserve, or site of conservation significance; and
  • the proposed development is unlikely to have a significant impact on a matter of national environmental significance protected under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

The guidelines' benefits – and challenges

Given the potential for approvals processes to be shortened where a NOI is not required, it will be important for proponents to consider the relevant guidelines prior to lodging an application. If all applicable criteria can be met, this should be clearly demonstrated in application documents.

As can be seen from the examples given above, there is also some scope for uncertainty in relation to some of the criteria. Advice may need to be sought from the NT EPA in these circumstances.

Next steps

Comment is being invited on the draft guidelines until 15 July 2013.

Submissions can also be made in relation to seven other NT EPA draft guidelines, including guidelines relating to:

  • environmental offsets and associated approval conditions;
  • preparation of an economic and social impact assessment; and
  • assessment of impacts on terrestrial biodiversity.

Copies of the guidelines, as well as details on how to make a submission, are available on the NT EPA website. If you would like help in drafting a submission, or more information on the implications of these guidelines for your project, please contact a member of our team.

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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.