The NSW Department of Environment and Conservation (DEC) has released BioBanking: A Biodiversity Offsets and Banking Scheme - Working Paper which builds on a discussion paper released in July 2005 entitled Biodiversity certification and banking in coastal growth areas. The 2005 paper envisages integrating a Regional Conservation Plan into the Government’s Regional Strategies. Draft regional conservation plans will identify ‘green-light’, ‘amber-light’ and red-light’ areas based on the level of biodiversity values contained in those regions. All Environmental Planning Instruments will then need to be consistent with Regional Strategies. Of most significance to biodiversity certification are Local Environmental Plans (LEPs). Once an LEP is compatible with a regional plan it can be submitted to the Minister for biodiversity conservation. This will occur if the Minister is satisfied that the LEP will lead to the overall improvement or maintenance of biodiversity values within the area it is intended to cover. Certification will last for ten years.
Development in ‘amber-light’ areas
The effect of the policy is that if development is proposed in an ‘amber-light’ area (zoned residential, business, industrial or rural where it is necessary to retain biodiversity) it will only be allowed to proceed if appropriate offsets can be made. These offsets will occur within a biodiversity banking framework in which developers will be forced to participate. The first step will be to quantify the anticipated biodiversity losses. The developer will then need to take one of the following steps: reconfigure the project to eliminate the loss; or secure offset works either on or off-site to maintain or improve the current biodiversity situation; or transfer responsibility for taking action by purchasing the requisite number of credits from a scheme manager or an approved conservation broker. It is the scheme manager’s responsibility to:
- create credits by encouraging landholders to improve biodiversity values at various locations
- sell these credits and aggregate the funds received to invest in more cost-effective measures to build towards the biodiversity objectives identified in the regional conservation plan
- work with landholders through the Nature Conservation Trust or local catchment management authority (CMA), and
- report on the biodiversity bank’s programs indicating the cash and credit flows and the program’s contribution towards achieving the goals of the regional conservation plan.
Activities in ‘red-light’ areas
Red-light areas are those where the suggested zoning is either environment protection or existing zoning. It is clear that it is in these areas that the majority of biodiversity credits will be generated. In these areas existing-use rights will not be affected, but new development will be limited to ensure that there is no loss of on-site biodiversity values. Landholders in these areas will be encouraged to participate in biodiversity banking in the following way:
- each year an investment strategy will be published to achieve the restoration objectives identified in the regional conservation plan
- landholders will then come forward with tender proposals which will be ranked according to their value and the most cost-effective proposals will be purchased, and
- approved proposals will be secured through in-perpetuity conservation agreements and funding provided from the scheme’s bank.
Clearly, credits derived in ‘red-light’ areas will be sold to developers in ‘amber-light’ areas.
BioBanking: A Biodiversity Offsets and Banking Scheme - Working Paper now provides further details and includes proposals on how the scheme may work in principle, including the issues that need to be considered in the detailed design and administration of the scheme. The scheme is being developed to support the Biodiversity Certification process already implemented under the 2004 amendments to the Threatened Species Conservation Act 1995 (TSCA).
The Working Paper sets out the following matters for comment:
How a BioBanking scheme would support biodiversity certification
The 2004 amendments to the TSCA allow the Minister to certify an environmental planning instrument (EPI) if satisfied that there will be an overall maintenance or improvement of biodiversity values. Biodiversity certification has the effect that the clearing of native vegetation, authorised by a property vegetation plan developed under the Native Vegetation Act 2003, will not need to be licensed under the National Parks and Wildlife Act 1974 (NPWA). Consequently, biodiversity certification is a defence to prosecution under the NPWA. Also where a person applies for development consent to clear native vegetation, this will also not require preparation of a species impact statement, or consultation between the Ministers for Planning and Environment regarding the application. Where it is anticipated that development will cause biodiversity loss, gains will be needed in other appropriate areas within the region to offset the loss such as via the BioBanking scheme in order for consent to be given. The DEC is currently preparing guidelines on how new environmental planning instruments should be constructed to warrant biodiversity certification and also how BioBanking can be used with immediate effect where new Local Environmental Plans (LEPs) will take 2 - 5 years to prepare. BioBanking may also be used in other circumstances and not only in the context of biodiversity certification of an EPI. Essentially, BioBanking will be used as an alternative to the licensing and other procedures currently required under the TSCA and the Environmental Planning and Assessment Act 1979 (NSW). A spatial analysis will determine whether or not offsets can improve or maintain biodiversity.
Biodiversity offsets
The DEC states in the Working Paper that the assessment of biodiversity must be based on sound ecological principles and must:
- include an assessment of structure, function and composition
- operate across scales
- consider the conservation status of ecological communities, and
- ensure the long term viability and functionality of biodiversity.
In addition, offsets must never reward ongoing poor environmental performance and must result in net environmental improvement, and must meet all standard regulatory requirements.
Overview of BioBanking Scheme
The DEC envisages using the following types of biodiversity offsets:
- enhancing habitat on private land to improve its biodiversity value
- reconstructing habitat in strategic areas to link areas of high conservation value or increase buffer zones around areas of high conservation value, and
- buying land that contains very high conservation values.
There will be two main types of participants in the scheme: offset providers whose conservation projects generate credits and developers who need to acquire the credits before consent is granted. Brokers will need to be appointed to act as intermediaries between providers and developers and may include Catchment Management Authorities, non-government organisations, not-for-profit organisations or the private sector. The DEC will be the scheme manager. Conservation agreements will be used to ensure that any permanent loss is met by permanent gains and, instead of being voluntary, will be enforceable on current and subsequent landholders. Scheme administration costs will have to be paid.
The DEC is trialling the scheme in NSW and will implement the scheme through the TSCA and the National Parks and Wildlife Act 1974 (NSW). The DEC will also develop a rulebook setting the parameters and requirements of the scheme.
Elements of the scheme in more detail
A biodiversity assessment tool will be developed to consider:
- the area of impact (including any off-site impacts)
- the threatened species affected
- the connectivity between the site and other areas of habitat, corridors, and protected areas
- the condition of the habitat measures against benchmarks
- the conservation significance of the ecological communities affected, and
- the score to be attributed to the management actions which lead to biodiversity gains.
A price for the biodiversity credits will be set by the market, although the DEC will have to verify and audit the credits generated by the projects. The DEC may use seed funding to initially act as conservation broker and invest in offset measures. The DEC is likely to establish an expression of interest register for landholders who are interested in establishing offsets. The selection of projects is likely to occur on a tender or auction basis. Successful landholders will have to develop an in-perpetuity conservation agreement with the DEC and will be paid to maintain the offset projects.
Administration of the scheme
The DEC will act as scheme manager and will be advised by an Advisory Panel chaired by the DEC. The scheme manager will maintain and register and report on participation in the scheme and credit allocation, as well as preparing an annual report which will include a statement of funds received and spent. Offset programs will be verified, monitored and audited by the scheme administrator.
Comments on the Working Paper should be sent to the DEC by 28 February 2006 to biobanking@environment.nsw.gov.au
Source: Department of Environment and Conservation NSW, 23 December 2005.
