A pathway through the maze of evironment law • earthtrade

Thomas Key, CEO earthtrade

State offsets vs the EPBC Act: which do I need — one, both, or neither?

The quick answer to the title is the defining feature of offsets. Simply put, it depends. It depends on which state, which trees, and potentially, what kind of developer you are and where you are doing the work.

Australian environmental approvals law is a tangle of international, national, state and local politics.

Biodiversity offsets, once a quiet corner of the system, have become one of its most frequently invoked instruments.

It’s pointed to by investors, landholders, miners, renewable energy developers, lobbyists, community groups and governments alike, often at one another.

Start with the EPBC Act

The EPBC Act is national law. If your project sits within the nation — including marine areas — it needs at least a passing thought.

In New South Wales, a passing thought and some paperwork is often all it is.

NSW’s assessment bilateral with the Commonwealth, paired with an accredited offsets scheme, means most matters can be handled through the state process, with the efficiency of an established crediting market behind it — costly, but quick.

For the rest of the country, I hope your project has some time up its sleeve.

Two schemes, not one

With Western Australia recently losing its bilateral status most of the country now has to work through both a state and a federal scheme.

These schemes usually list different matters, species and ecosystems to the ones the Commonwealth identifies.

Where they overlap, they have traditionally deferred to the federal scheme when it applies. And it does not always apply.

Stacking in Queensland

In Queensland, that overlap is an opportunity: choose the land well and the offsets can be stacked.

Queensland’s Matters of State Environmental Significance (MSES) framework identifies regional ecosystems, remnant vegetation, watercourses and selected species.

The Commonwealth’s Matters of National Environmental Significance (MNES) often turn up koalas, greater gliders and threatened ecological communities in the same country.

Find an offset site with the right regional ecosystems, the right vegetation mix and habitat for every listed species, and the same dirt satisfies both schemes — one impact, one offset. It also makes offsets exceedingly project-specific.

Western Australia is learning the hard way

WA projects are discovering this firsthand.

With the bilateral gone, what used to be ‘pay the state and walk away’ has become an exercise in ecological land appraisal and social licence and project planning at the same time involving the landholders whose country becomes the offset.

A further question sits underneath it: do you still have to pay the state as well? In a system used to receiving the money, will the regulator accept a stacked, land-based offset? We are testing that now.

And local government?

Do not forget the possible third layer. Local planning schemes can carry their own vegetation and biodiversity protections, so clearing that satisfies the state and federal gates may still need a local nod. Especially important for local councils developing in their own backyard.

The lesson?

Plan for both and hope for neither. The key is making sure your timeline can absorb both schemes. In NSW, EPBC may be little more than a paperwork exercise. Anywhere else, give yourself the runway to source offsets manually. And, as we set out last time, budget for it.