Environmental Offsets Policy

Four submissions welcomed release of an ACT policy that provides for governance and administrative arrangements which are more transparent and publicly accountable.

• Inclusion of provisions for species which are threatened in the ACT but not protected under the Commonwealth legislation was supported.

Noted.

Three submissions expressed concern about the use of environmental offsets for development that impacts on vulnerable or endangered species’ habitat or ecosystem communities. Views expressed included that development should be restricted to infill.

One submission commented that ‘improve or maintain’ can only be met if development is constrained to least sensitive areas.

One submission suggested micro-offsets, for example by doing track repairs or replanting, where rectification and rehabilitation is not 100%. A further submission requested offsets apply to removals of native vegetation for the purposes of fire protection.

Disagree.

A primary objective of the Environmental offsets policy will be that ‘Areas of high conservation value or irreplaceable assets are avoided, or avoided and mitigated.’ The use of environmental offsets cannot be used to make inappropriate actions¹, appropriate.

Environmental offset are a measurable conservation outcome resulting from actions designed to compensate for unavoidable significant adverse environmental impacts of development on matters of NES and relevant ACT protected species.

No further development in ‘greenfields’ and reliance on infill is not consistent with the ACT planning strategy of other Government policies.

Three submissions sought environmental offsets to address compensation for biodiversity, not just threatened habitat and species.

Two submissions requested clarity on how strategic conservation planning is integrated with the offset policy.

Disagree/Noted.

The Environmental Offsets Policy is delivered in a broader framework for biodiversity conservation. A number of other government policies and strategies are aimed at building resilience of ecosystems and biodiversity to reduce risks of species becoming threatened, including management of protected areas, programs for the restoration of biodiversity and implementation of a range of strategies and plans.

Environmental offsets are a subsidiary approach to managing significant impacts of actions, primarily from urban development, on matters of NES and ACT protected species.

One submission suggested that the Conservator should be tasked with assessing whether the development has the potential to move a species or habitat onto the threatened list and require an environmental offset if that is likely to be the case.

Noted.

The Scientific Committee keeps a watching brief on the status of non-threatened species, in addition to its formal roles.

The proposed new Nature Conservation Act provides for provisional listing of threatened species, which would require consideration in an Environmental Impact Assessment process. However, it is not possible to determine the appropriate offset requirements until the listing assessment and approval processes are finalised.

One-stop shop

Three submissions indicated they did not support the devolution of the Commonwealth’s environmental powers and the ACT having responsibility for a “One-Stop-Shop”.

A couple of submissions stressed the need for clear mechanisms to avoid conflicts of interest as the ACT Government is often both developer and regulator. In relation to decision making by the Conservator for Flora and Fauna, the following comments were provided:

• the role of the Conservator in advising on the appropriateness of proposed offsets is positive and recognises the Conservator’s role within the ACT,
• the Conservator has only an advisory role – an insufficient safeguard,
• the Conservator’s position should be independent,
• an independent panel of experts should have the last say in offset decisions.

Disagree.

The Commonwealth and ACT governments have both committed to exploring a one-stop shop for environmental approvals.

Safeguards will be incorporated into legislation (Planning and Development Act 2007) and a bilateral agreement. Increased statutory processes are proposed including a key role for the Conservator for Flora and Fauna, whereby a development which has a significant impact on a matter of NES cannot be approved by the planning and land authority if it is inconsistent with the advice of the Conservator.

In relation to their Statutory roles, the Conservator is independent of Government. Creating additional independence is not warranted.

Objective – net gain

Three submissions called for “net gain” or ‘conservation gain’.

One submission raised concern about how to measure ‘averting future loss’,

Agree.

The policy requires delivery of an overall conservation outcome that improves or maintains the viability of the aspect of the environment that is within the scope of the policy and is impacted by the proposed action. The ACT approach to assessing net gain is included in the environmental offsets assessment methodologies. Net gain is the concept of maintenance and improvements of the protected matter from an ecological perspective. The assessment of net gain is complex and varies across species and ecosystems but generally has two key elements:

• Improving current quality of a site to a better condition.
• Increasing the functional extent of a site.

Additionality

Seven submissions commented on the principle of ‘additionality’, commenting on the need for explicit and unambiguous additionality criteria, that offsets should be additional to current regulatory requirements, additional to best practice on-site environmental management, must not be currently funded / potentially funded in the future under another program, exclude any lands previously identified in Action Plans.

Four submissions strongly indicated that volunteer efforts should not be used by a developer to meet ‘additionality’ and sought clarity on how volunteer effort will be taken into account and the record keeping requirements.

One submission commented that adding offset areas to the reserve network is essential but not adequate. Reserving land must always be accompanied by a) a commitment to improve the values of the land in the short term, and b) resources to ensure adequate long term management of the land.

Agree.

The policy requires that environmental offsets are additional to what is already required, determined by law or planning regulations or agreed to under other schemes or programs. However judgement will be required as documents are not always explicit about what components are obligations and what elements are aspirational.

Guidelines under the Planning and Development Act 2007 will provide additional guidance about consideration of ‘additionality’.

Criteria for ‘additionality’ is reflected in assessment tools such as the Environmental Offsets Management Methodology (EOMM) and Environmental Offsets Calculator (EOC) and Commonwealth Environmental Offsets Guide (EOG).

Information through fact sheets will also be provided to improve understanding of how offset concepts are being applied, for example in relation to volunteer effort and ‘additionality’.

‘Like for Like’

Three submissions supported the concept of ‘like for like’ and a number of submissions sought further clarity.

Agree.

The principle of like for like means that any offset must relate to that same specific matter which is impacted. ‘Like for Like’ is a requirement in the policy. How it is applied is reflected in assessment tools (EOMM and EOC and Commonwealth EOG). For ACT protected matters, some flexibility around the like for like principle may be considered. Guidelines will identify when this is appropriate.

Perpetuity

Two submissions highlighted the importance of maintaining offsets in perpetuity.

Agree.

Offsets are generally required to be put in place for the duration of the impact. For urban development, this essentially requires offsets to be delivered in perpetuity.

In the ACT there are a range of measures that can be used to secure outcomes, such as reservation, lease variations and zoning. Guidelines under the Planning and Development Act will provide additional guidance.

Avoid, mitigate, offset hierarchy

Seven submissions commented on the need for the framework to clearly state that offsets should only be considered as an option if avoidance and mitigation strategies are not able to reduce impacts to an appropriate level.

Agree.

A primary objective of the ACT’s environmental offsets policy will be that ‘Areas of high conservation value or irreplaceable assets are avoided, or avoided and mitigated.’

Developers will need to provide evidence of how avoidance and mitigation measures have been taken, which will be considered by the Conservator for Flora and Fauna and planning and land authority in considering the appropriateness of offsets.

Connectivity

Five submissions requested more emphasis on functional connectivity issues across the landscape. One submission referred to ‘appropriate weighting should also be applied to the level of connectivity and the significance of this locally and regionally.’

Noted.

The Policy requires landscape attributes such as connectivity to be considered.

Connectivity is a consideration built into assessment tools such as the Environmental Offsets Management Methodology (EOMM) and ACT Environmental Offsets Calculator (EOC) and Commonwealth Environmental Offsets Guide (EOG).

A Fact Sheet will provide details about how connectivity is considered and incorporated.

Location/proximity

Five submissions supported the hierarchy of location of offset sites, preferring that offsets be as close to the impact site as possible and preferably within the ACT border.

One submission stated the ACT should be presenting a policy for future development that is sustainable within its own borders.

Agreed in part.

Suitability of the location of the offset site is one of the 6 matters identified in the policy to be considered.

The policy articulates that:

1. In the ACT preference is for direct offsets to be provided in the following order:
   • in the ACT in the same district as the impact;
   • in the ACT, but in a different district to the impact;
   • outside of the ACT, but close to the ACT border;
   • in the relevant bioregion (Australian Alps or Southern Tablelands)¹; then
   • elsewhere in Australian where the protected matter occurs.
2. Other compensatory measures (indirect offsets) must be provided in the ACT for ACT protected matters.

Reserves

Nine submissions commented on offsets being located within existing reserves.

Comments ranged from:

• the use of existing reserves as offsets to be rare and only where there is an obvious and significant potential for environmental improvement in the existing reserve
• changing zoning of a less secure piece of land is preferred to existing protected areas
• Nature Reserves should not be used as offsets
  any sites selected as offsets in reserves should not impact on infrastructure (e.g. water infrastructure assets).

Agree.

The policy does not allow offsets in existing conservation reserves (Wilderness, National Park, Nature Reserves) except as provided under the Advance Offsets Policy.

A guideline will be prepared on advance offsets on public land, Given Community concern about potential misuse of provision of advance offsets in existing conservation reserves, the guideline will indicate that consultation with the Community should occur prior to this type of offset being used.

Degraded

Highly degraded areas should not be ignored as offsets.

Agree.

Improving quality and functional extent of a highly degraded area is appropriate. Monitoring of progress of these offsets will be is essential.

Where a proposed offset site has a lower habitat quality than that of the impact site, the offset must be managed and resourced over a defined period of time so that its habitat quality is improved to meet the quality of habitat originally impacted.

Unleased land

One submission called for a provision for applying offsets on other unleased land that may not result in reservation. E.g. roadsides or Hall Cemetery.

Agree.

Use of other unleased land is not excluded from the Policy.

Leased land

Four submissions supported environmental offsets occurring on privately held land in the ACT, if voluntary.

The documents should clearly state that no mandatory land acquisition (i.e. lease withdrawal), land use rezoning or imposition of lease conditions will be used to force a leaseholder to enter into an environmental offset agreement.

Landholders should always be compensated for any loss of amenity or land value, or ongoing management costs created by government actions.

Noted.

A range of options for securing offsets on leasehold land can be used. The intent is that these arrangements are entered into through voluntary agreements.

If arrangements are not voluntary then, provisions are in place that provide for land acquisition with adequate compensation. No changes to the Lands Acquisition Act 1994 are proposed.

Leased land

One submission detailed that offsets on land under lease should consider the following:

1. Local knowledge and expertise in management of the offset area by the current lessee.
2. An offset kept within a lease can benefit by having convenient access to tools, machinery, (spray units etc.) and livestock for BAZ commitments.
3. The financial viability of the whole of the property where there has been substantial reduction of the ratio of viable agricultural land to non-viable agricultural land i.e. productive land subsidises the control of weeds and pest of the areas of high ecological value.
4. Trespass risk – major cause of dumping of rubbish, pests, weeds and vandalism.

Agree.

These are matters to be considered in negotiations between proponent and leaseholder (rural landholder).

Advanced Offsets

Seven submissions commented on advanced offsets. There was strong support for identification of potential offset sites as early as possible, retaining a public register of these, and ACTmapi to clearly indicate existing and advanced offsets.

Noted.

Advanced offsets are a supply of offsets for potential future use, transfer or sale.

Information on advanced offsets will be publicly provided.

One submission questioned how advanced offsets would be reassessed to ensure they still meet requirements.

Noted.

The ACT EOC is used to assess Advance Offset Sites. This sets a baseline of credits that can then be used as the basis for ensuring that the values are maintained, or improved over time and count towards the use of the offset. The data inputs for the tool are stored. If the methodology changes, the data can be re-entered to ensure that the baseline has not deteriorated. Matters that were not measured during setting of the original baselines (because of timing or resource constraints) can also be measured at the time the offset is used.

Direct and Indirect Offsets

Seven submissions commented on direct and indirect offsets. Comments ranged from:

• Supports a minimum of 90% direct offsets, for EBC Act and ACT threatened species and indirect offsets must be strictly limited.
• There could be more flexibility in the weighting of different offset options to recognise that the ACT is uniquely placed to add significant value to biodiversity conservation through research initiatives due to its concentration of excellent academic and research institutions.
• Research should only be considered if directed at species or ecosystem recovery
• Research to enable more effective management could make a more lasting contribution than money for management of the existing reserve system.
• Education as part of the offset package is doubtful
• Useful to provide clearer guidance on the type and use of indirect offsets.

Agreed.

The Policy requires offset packages to deliver 90% of the offset requirement through direct offsets for matters of NES. Direct offsets are those with in on-ground outcome that directly compensates for the impact on the species or ecological community being offset.

The Environment offsets policy allows other compensatory measures to include education and training, research or projects which relate to the matter of NES that is impacted. Education is a lower priority than research, however may be useful to include in an offset package where education can be used to reduce threats from human behaviour.

For ACT protected matters, in addition to education, training or research, compensatory measures will also include broad habitat measures that improve outcomes for a broad range of species, and not just the species impacted by the development. This might include the provision of funds for improving general connectivity or for establishing buffer areas around significant habitat areas.

Assessment /Tools

Five submissions commented on assessment tools, ranging from:

• supports the development of a robust assessment methodology based on the best available science that consistently implements the fundamental principles of offsetting.
• Concerned whether offset calculators can be applied appropriately to such small sites, given that the EPBC calculator (Offset Assessment Guide) is generally used for larger areas of land containing other vegetation, such as woodlands and forests.
• Environmental offset tools and baseline monitoring needs to be transparent.
• The use of ‘red flag’ or ‘no go’ areas are essential to make it clear there are certain matters and areas where offsetting cannot be an appropriate strategy.
• Public should be given a chance to provide comment on the Offsets Calculator and the draft Environmental Offsets Assessment Methodology (EOAM) for the calculator.
• Any offset assessment guide or calculator should be subject to independent peer review.

Agreed.

The extent to which the proposed offset actions correlate to, and adequately compensate for, the impacts on the attributes for the protected matter will be assessed using assessment tools such as the ACT EOC or Commonwealth Offset Assessment Guide (Commonwealth OAG).

These tools inform assessment and approval processes such as through environmental impact assessment and Strategic Assessments and conditions for development approvals.

The tools include red flags to indicate inappropriate actions that create an unacceptable risk that a species could become extinct.

A guideline on Red Flags will be prepared.

The Offsets Calculator tool and EOAM for the calculator will be made publicly available.

Awareness will be provided through public demonstrations of the EOC to stakeholders.

Resourcing of Offsets

Eight submissions commented on management and resourcing of offsets, including:

• Developers need to contribute to the long term maintenance of areas used as offsets.
• Funding and required management long term must be considered in the approval process.
• Offset management plans must be immune to budget cycles.
• Offsets within reserves must include long term management and resources.
• If long term finance is required, then the mechanism for ensuring this is provided needs to be established. In addition funding of monitoring needs to be clearly defined.
• ‘Additional support’ could be provided to the community as part of the offset package”.
• The cost of development needs to be higher in sensitive areas to compensate for impacts on biodiversity.

Agreed in part

Consideration of management and resourcing of offsets is proposed to be addressed through the DA process. In this process, consultation will occur with relevant agencies, including TAMS and the Conservator. Consideration of appropriate financial contributions will be considered in detail in the DA process (and probably earlier; in the EIS or s211 process). Conditions of approval will be used to regulate these requirements. For leased Territory land, leases could be varied to include a requirement to comply with any offset management plan.

It is agreed that offset money should be available to achieve the stated objective of conditions of approval.

Any offset package will be limited to addressing unacceptable impacts on MNES and some ACT protected matters. Unless it meets the principles of the offset policy, it would be inappropriate for an offset package to provide ‘additional support’ to the community.

Monitoring, Reporting and evaluation

Four submissions sought greater detail about on-going management of offsets including for funding, and responsibilities for managing and monitoring, ranging from:

• Monitoring and evaluation of approved offsets arrangements must be established, adequately resourced, and results publicly available.
• Offset Management Plans are independently reviewed
• Audit of approval conditions should be undertaken by a suitably qualified and experienced environmental professional.
• The developer needs to bear the costs of the monitoring.
• Conservation management activities must be better recorded and reported to ensure that activities funded under an offset are additional to this already being carried out.

• Monitoring offsets in NSW.

Noted.

An appropriate regime for monitoring offset sites and offset actions will be established through the offset management plan as required through the conditions of approval for each development.

The appropriate monitoring regime for an offset site is dependent upon the type of offset (public, leasehold or NSW land), the scale of the offset site, and its current condition. For example, sites in good condition may need less monitoring than sites in poor condition that need active management.

A fact sheet on monitoring of offset sites will be prepared to assist understanding.

Enforcement and compliance

• Seven submissions commented on enforcement and compliance:
• Conditions about an approval should be very clear about monitoring and compliance and the cost of compliance should be part of the offset.
• Policy would be strengthened by the inclusion of a more rigorous monitoring and compliance framework.
• More detailed description of how compliance will work and who will be responsible for enforcement of approval conditions relating to offsets.
• Further clarification around the mechanisms for the regulation and potential penalties for non-compliance.
• Policy should clarify how defaults will be addressed and look at the adoption of cost recovery options.
• Clear line of responsibility and recompense should the offset outcomes not be achieved.
• Further clarification on the level of public scrutiny
• Review by an independent body.
• Responsibilities and strategies for ‘unanticipated outcomes’ that impact on the value of the offset needs to be clear.

Noted.

The appropriate compliance and audit regime will depend upon the type of offset – whether it is on public land, leasehold land or land in NSW.

A range of legislative provisions are contained in the Planning and Development Act which can be used to ensure compliance.

Audit of approval decisions will be undertaken to ensure proponents comply with conditions of approval. This includes conditions relating to offsets. The audit of approval conditions associated with an offset should be undertaken by a suitably qualified and experienced environmental professional. Further information on how this will operate will be identified in a fact sheet or similar.

It should also be noted that there are legal obligations in the approval bilateral agreement in relation to auditing, compliance and enforcement.

Conditions of Approval

Six submissions commented on the requirements for offsets as part of the approval process. There were a range of views on what is required for approval, including:

• A properly formulated management plan must be in place for any land in an offset package.
• Offsets should be in place before the development commences.
• An offset should be fully implemented and verified prior to a development proposal going ahead.
• Offsets established – and providing credits – in advance of losses is preferred.

Noted

It is preferable that environmental offsets are in place and agreed before development approval is given. However, there may be some circumstances where the offset is negotiated and agreed before development approval, but is not finalised. The circumstances in which this occurs may be that the proposed offset is to be delivered by a third-party and contracts fall through, or the Legislative Assembly disallows a Territory Plan variation creating a new reserve.

Conditions of approval would generally indicate that Development cannot commence until offsets are in place.

The Planning and Development Act provides for variation of conditions of Development Approval. In circumstances where a condition relating to a variation of an offset is sought, the requirements for the variation need to meet the same requirements for the original offset or better. This means that an amendment to a development approval would not:

• reduce the level(s) of protection afforded to protected matters;
• reduce the effectiveness of any avoidance, mitigation and/or offset measure imposed to address impacts on protected matters;
• result in an increase of impacts on protected matters.

One submission requested the same conditions of approval for Matters of NES and ACT matters, in particular that the conservator advice will be followed.

Disagree.

It is not appropriate for advice from the Conservator relating to ACT Protected Matters to have the same requirements for approval as those relating to Matters of NES. Species that are only listed in the ACT (and not a matter of NES) are of regional significance, rather than national significance. A key offset principle is that offset requirements be in proportion to the level of statutory protection that applies to the protected matter.

Register

Three submissions provided suggestions about the register of offset sites (and ACTmapi)

• should include information on a : the location of the development and offset; all relevant information and data that underpins the assessment, including all data used in the assessment calculator, conditions of approval and up-to-date progress towards the conditions of approval;
• should include details of all offset sites that are: declared for land in NSW; and within the ACT that are determined under the EPBC Act and NSW Environmental Planning and Assessment Act 1979 (NSW);
• should contain reference to any submission ACT Government receive on the posting of an area as an offset.

Agreed.

The planning and land authority will be responsible for maintaining a register of offset sites.

All offsets will be registered and details, such as spatial information (for example GPS data), information on the relevant protected matters and the ongoing management actions required will be recorded. This information will be made publicly available on the Environment and Planning Directorate’s website.

• The register of offset sites should include details of all offset sites that are declared for land in NSW, if any.
• The register of offset sites ACTmapi should include details of all offsets within the ACT that are determined for matters of NES.
• The register of offset sites together with ACTmapi should include details of all offsets within the ACT (if any) that are determined under the NSW Environmental Planning & Assessment Act 1979.
• Submissions made during the EIS process are made publicly available on the ACTPLA website.

Information to be made public

Two submissions sought clarity on the availability of information on both the process and the detail of each assessment including analysis and modelling.

Noted.

To be considered as part of the administrative arrangements.

Consultation with volunteer groups

Two submissions encouraged early engagement of park volunteer groups and greater transparency and opportunities for public involvement, including in determining the sites of Advanced Offsets.” Community representation on the proposed Environmental Offsets Working Group was suggested as a mechanism.

Noted.

Volunteers will be consulted in the identification of advanced offsets.

Expert Advice

Four submissions commented on expert advice including:

• Advice in implementing the offsets policy requires careful consideration and funding dedicated to the task
• Information on the scientific support provided to the Conservator would be helpful so the public can appreciate depth of advice.
• An independent expert body should assist in determining the offset’s suitability.
• Incorporate a breadth of independent expert opinion in considering offset proposals.

Noted.

The Flora and Fauna Committee (proposed to become the Scientific Committee) can provide advice on the appropriateness of methodologies for calculating offsets and, in particular, threshold issues for species that are included in the methodologies.

The Conservator also receives significant scientific advice from research ecologists within the Environment and Planning Directorate.

Minister – call in powers

Five submissions referred to the Minister’s call in powers and suggested:

• Should be immediately referred to the Commonwealth (for their decision).
• Should not be permitted to override inadequate environmental offsets.
• Should be subject to a transparent and public process.
• Strong caution be exercised.

Noted.

If a decision is proposed to be made under the Ministerial call-in provisions, it should be consistent with the advice of the Conservator. However, if a decision is proposed to be made that is inconsistent with the advice of the Conservator; it must meet the public interest test and be referred to the Commonwealth Minister. The proposed approval bilateral agreement will have provisions to address potential risk of unacceptable impacts on MNES. There are also provisions under the EPBC Act that enable the Commonwealth to deal with potential unacceptable impacts on MNES.

It should be noted that the reason for calling in a project may not be linked to issues regarding matters of NES or environmental offsets, so the situations where the Conservator’s advice is not taken are likely to be limited. If a project is called in, and is likely to impact on conservation measures, there is a range of measures in the legislation and the Bilateral agreement that come into play. This includes provisions that the Commonwealth must be advised and the steps in the Bilateral Agreements can be initiated if required.

Information Needs

Two submissions highlighted the need for more detailed information on:

• requirements for ACT species, in particular the Hooded Robin
• offsite impacts, in particular for aquatic species and migratory birds.

Noted.

Information on species is continually being improved. An Action Plan for listed migratory species that occur within the ACT, covered by the Matters of NES, is currently being developed.

Structure/Content

The ACT’s policy should be a standalone document.

Agreed.

The policy has been revised to be a standalone document.

Further information about whether there is intention to apply the new policy retrospectively to existing offsets.

Agreed.

The Policy clearly states that offsets would not be required to be applied retrospectively.

In particular, there should be guidelines on:

• The required period for monitoring;
• Funding for monitoring activities (funding should be built into project cost from the start, including on ‘cost recovery’ basis as necessary);
• Circumstances in which remedial actions will be required;
• Types of remedial actions that may be appropriate;
• Liability issues for failed offsets (which we recommend should rest with the proponent).

Noted.

Additional information will be provided through guidelines, fact sheets and other information material.

The offsetting regime is subject to legislation and not to mechanisms such as regulation or policy

Noted.

The offsets policy will be implemented as appropriate through legislation, regulation, guidelines, and other information provision.

Other

Two submissions commented on the importance of land used for food production.

Noted.

How will non-government developers find secure and manage offsets?

Noted.

Responsibility for finding, securing and managing offsets is the responsibility of the developer/proponent.

Discounting offset values because of fire management needs to occur at the time the offset package is developed.

Agreed.

Offset calculation methodologies allow for the discounting of the value of an offset to take into account requirements for management, including for fire.