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20 Aug 2015

Release of draft policy statement on EPBC Act advanced environmental offsets

by Ian Motti, Karen Trainor, Kathryn Pacey

The draft policy statement sets out when the Commonwealth Department of the Environment will consider to be advanced offsets.

The Commonwealth Department of the Environment has released a working draft of its policy statement on advanced environmental offsets under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) for public consultation.

The draft policy statement provides guidance on the Commonwealth Government's approach to the use and consideration of advanced environmental offsets.

What is an advanced environmental offset?

An advanced environmental offset is the supply of an environmental offset for the future use, transfer or sale by proponents or offset providers. Unlike traditional environmental offsets, advanced offsets are put in place prior to any environmental impact occurring.

Advanced offsets can improve environmental outcomes by allowing early implementation of conservation benefits which provides greater confidence that those conservation benefits will be achieved. In theory, this should enable a lower overall offset area to be provided as the risk of offset delivery is removed.

Under the EPBC Environmental Offsets Policy, advanced offsets are required to deliver a conservation benefit for the protected matter that is impacted and that benefit must be new, or additional to what is already required by a duty of care, or environment and planning laws at any level of government.

What does the draft policy statement do?

The draft policy statement sets out when the Department will consider advanced offsets and is designed to be read in conjunction with the EPBC Act, the EPBC Environmental Offsets Policy, October 2012, and the "How to use the offsets assessment guide".

The Department will consider advanced offsets that deliver a conservation benefit that have been implemented after the commencement of the EPBC Act on 16 July 2000, where:

  • it is demonstrated the site or action was established for the purposes of advance offsetting;
  • there is sufficient baseline information to enable a clear assessment of the conservation benefit;
  • the offset is demonstrated to be additional to existing obligations under other planning regimes, legislation, schemes or duty of care.

The draft policy statement also notes that proponents or offset providers may wish to consider, and demonstrate to the Department, how the proposed advanced offset could potentially align with other Australian Government policies and strategies including Australia's Biodiversity Conservation Strategy 2010-2030, Australia's Native Vegetation Framework, the Indigenous Advancement Strategy and The Reef 2050 Plan, among others.

Proponents and offset providers looking to implement advanced offsets are encouraged to discuss their plans with the Department as early as possible. However, a proposed action or project to which that offset relates will need to be referred and proceed to the assessment stage under the EPBC Act, before the Department makes a determination on the suitability of the offset.

How can I comment on the draft policy statement?

Comments can be made on the draft policy statement until 12 October 2015. A review of the draft policy statement will follow in late 2015.

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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.