Review of the Environmental Impact Assessment Process in Western Australia

Environmental Protection Authority Perth, Western Australia March 2009

Executive summary
Western Australias environmental impact assessment (EIA) process is a critical component of the Governments wider development approvals process. EIA is a predictive tool that is systematically applied at the early planning and design stages of development proposals so that government and the community can form a view about a proposals environmental acceptability and what conditions, if any, should be applied to control potential risks and impacts. The Environmental Protection Authority (EPA) is the primary source of independent environmental advice to government on significant development proposals. The EPA is facing new and complex challenges in providing this advice, in particular the increasing scrutiny in terms of the EIA process delivering timely, high quality advice, and also the capacity of the EPA to identify, understand and control a rapidly expanding range of environmental issues, risks and impacts (including cumulative impacts) to community health and important ecosystems and biodiversity values. As a result of these growing pressures, the EPA commenced a review of EIA and its underpinning policy framework in February 2008 with the following objectives: Review and develop key EIA policies. Identify and address key issues raised by stakeholders. Review the EPAs short and long term workload. Prepare an EIA Review implementation plan. Highlight matters that may require further consideration.

The EIA Review has been wide-ranging with the general aim of enhancing the quality, timeliness and certainty of the EPAs advice to Government on development proposals. The Review process has involved extensive consultation with key stakeholders, and implementation of the Review outcomes has been progressive and will continue beyond the end of the Review. This report documents the Review process, the stakeholder consultation, the key findings and recommendations and their implementation status. The EPA has concluded that there are clear opportunities to deliver better environmental protection; to improve the efficiency, transparency and consistency of the EIA process and policies; and to enable environmentally sustainable development. The key outcomes from the Review will be: A new risk-based approach to EIA focus on the environmental risks and impacts that matter, greater consistency, rigour and transparency of decision-making. Outcome focused environmental conditions clear, relevant, reasonable and auditable environmental conditions.

Timelines for key steps in the EIA process transparent reporting on timelines, analysis of delays and recommendations for improvement. Revised environmental policy framework and reviewed priority policies better environmental outcomes, increase certainty and consistency. Increased parallel processing with other assessment and approval processes improve integration and timeliness across Government. Reduced number of levels of assessment from 5 to 2 simplify the process. Increased use of strategic environmental assessment better environmental outcomes, expedite assessment for subsequent development proposals. Improved management clear accountability, project management and tracking, escalation protocol, stop the clock rules, backlog clearance strategy. New Administrative Procedures increase certainty and clarity of process. Revised Memoranda of Understanding with other government agencies use a risk-based approach to determine the activities that do and dont need to be referred to the EPA. Common-user arrangements for spatial environmental data management better informed decision-making and management. Revise the environmental policy framework and review priority policies better environmental outcomes, increase certainty and consistency. Opportunities for co-investment by Government and industry in the EIA process enhance the process, improve timelines, manage short-term workload problems.

Since the EIA Review commenced, a new Government has been elected with clear policy directions relating to improving the broader development approvals processes across government. The EPAs Review objectives and outcomes are totally consistent with these policy directions and the EPA is working closely with other arms of government to deliver these improvements. The table below summarises the key recommendations of the EIA Review and their implementation status at the time of finalising the report. The table will provide the basis for a comprehensive implementation schedule, with clear timelines and accountabilities, that will be available on the EPAs website.

ii

Key Review Area

Recommendations

Status

Key Outcomes

Policy Review
Revise the current policy framework. Translate existing position and guidance statements to new policy instruments. Prepare a State Environmental Strategy (SES) to provide a strategic context for developing environmental protection policies. Review and revise EIA policies for greenhouse gas. Review and revise EIA policies for marine ecosystems. Review and revise EIA policies for environmental offsets. Completed Not yet commenced Not yet commenced Better environmental outcomes Increased certainty and consistency

Commenced drafting Commenced drafting Guidance statement and bulletin published Not yet commenced

Review and revise EIA policies for wetlands.

Parallel processing
Issue an Environmental Protection Bulletin clarifying restrictions and obligations under the EPA Act regarding parallel processing and decision-making. Proponents should clearly define their proposal, in particular what activities are, and are not, part of a proposal. Investigations required by the EPA for EIA should generally be considered to be permitted, and the EPA should phrase its requirements carefully. Activities that are clearly not part of the proposal may be issued approvals by other agencies before the EIA process is completed. The definition of the proposal in the Implementation Statement should reflect the referral and as amended during the EIA process. There should be a preference for describing the environmental footprint rather than the design attributes of the proposal in the key characteristics table. The EPA should only constrain those decision-making authorities that have a substantial decision-making role relevant to the proposal. Commenced drafting Improved integration and timelines across Government

Ongoing Ongoing

Ongoing

Ongoing

Completed

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Key Review Area

Recommendations

Status

Key Outcomes

Risk-based EIA
Standardise risk terminology and definitions. Guidance statement drafted and distributed for comment Trials commenced Greater consistency, rigour and transparency of decision-making

Use a risk-based approach to inform key stages of the EIA process scoping, assessment of impacts, assessment of mitigation measures. Use a risk-based approach to inform priority areas for compliance monitoring and auditing.

Not yet commenced

Outcome-based conditions
Use outcome-based conditions in favour of prescriptive conditions. Prepare guidelines for the development of outcome-based conditions. Develop suite of model outcome-based conditions for environmental factors. Amend the wording of the annual compliance reporting condition. Commenced Clear, relevant, reasonable and auditable environmental conditions

Guidelines drafted and distributed for comment Not yet commenced

Completed

Timelines
Set target timelines for key steps in the assessment process. Draft timelines included in revised administrative procedures Commenced drafting Transparent reporting on timelines, analysis of delays, recommendations for improvement

Prepare and implement an escalation protocol to guide when and how issues should be escalated to senior management for resolution. Prepare and implement an Environmental Protection Bulletin on the application of the stop the clock mechanism.

Not yet commenced

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Key Review Area

Recommendations

Status

Key Outcomes

Levels of assessment
Reduce the current five levels of assessment to two. Included in revised draft administrative procedures Commenced Simplified EIA process

The two levels of assessment should be: i) Those proposals which will be assessed by the EPA but not subject to a public review ii) Those proposals that will be assessed by the EPA and will be subject to a public review. Review the effectiveness and efficiency of the current scoping document assessment process to determine whether it would be more appropriate for the EPA to issue instructions, particularly for less significant proposals. Consider amendments to the EP Act to better address the streamlined non-public review level of assessment.

Not yet commenced

Not yet commenced

Administrative procedures
Review and revise the current administrative procedures: i) revise levels of assessment ii) PERMP should have emphasis on assessing both the impacts and the management measures iii) EPA to determine public review period on case-by-case basis iv) proponent to be given right to withdraw proposal if EPA considers unacceptable. Revised procedures drafted and distributed for comment Increased certainty and clarity of process

Strategic assessment
Explore opportunities for increasing the use of two-stage assessments initial non-binding strategic assessment (eg under Section 16(e)) followed by the binding assessment (under Part IV). Identify mechanisms for increasing stakeholder confidence in the strategic environmental assessment provisions in the EP Act, including legislative amendment. Encourage greater use of strategic environmental assessments. Develop specific mechanisms to ensure the referral of strategic proposals in appropriate circumstances: i) MOUs with agencies ii) Agreements with proponents. Commenced Improved environmental outcomes, expedited assessment for subsequent development proposals

Not yet commenced

Commenced Not yet commenced

Key Review Area

Recommendations Ensure the strategic environmental assessment process is consistent with the core principles (see body of report). Publish detailed guidelines/toolkits to assist responsible authorities and proponents with strategic environmental assessments.

Status

Key Outcomes

Not yet commenced

Not yet commenced

Management and resourcing

Pursue productivity improvements through improved project management, business systems, work practices and procedures. Consider co-investment by Government and industry to assist in managing the workload. Consider the EPA being given direct management control of its resources and business. Commenced A more effective EPA

Discussion paper commissioned and finalised. For Government to consider

Further work
Finalise MoUs with DMP, DPI, Health. DMP and DPI working groups established Improved understanding of the EPAs expectations, improved environmental outcomes through other government processes. A more effective EPA, improved reporting and analysis Increased access to environmental data for all stakeholders More effective eNGO and community engagement in the EIA process, improved environmental outcomes

Develop an effective project management system.

Commenced

Investigate and establish common-use or private/public partnerships for spatial environmental data acquisition, management and systems. Increase resourcing of non-government organisations to participate in risk-based assessment processes.

Not yet commenced

Not yet commenced

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Key Review Area

Recommendations

Status

Key Outcomes

Implementation programme
Retain the Stakeholder Reference Group. To be confirmed at the next meeting Terms of Reference to be redrafted

The Stakeholder Reference Groups role should be to provide comment on drafts, promote awareness of the reforms, give feedback on the reforms, identify any other issues. Develop a comprehensive implementation plan that details actions, priorities, responsibilities, timelines and performance reporting. Establish an EIA Review implementation team. Strategic Policy Division of the EPA Service Unit continue to assist with the development of priority policy and the review of current position and guidance statements. Allocate adequate resources to the development and updating of EPA assessment policies, bulletins and procedures.

Draft implementation plan distributed for comment

To be confirmed To be confirmed

To be confirmed

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Contents

Page

Executive Summary ..................................................................................................................I 1. Introduction..................................................................................................................... 1 1.1 1.2 1.3 1.4 BACKGROUND .......................................................................................................... 1 PURPOSE AND SCOPE OF THIS REPORT .................................................................... 2 TERMS OF REFERENCE OF THE EIA REVIEW ........................................................... 2 EIA REVIEW SCOPE, OBJECTIVES AND APPROACH ................................................... 3 1.4.1 Scope ........................................................................................................... 3 1.4.2 Objectives .................................................................................................... 3 1.4.3 Approach ..................................................................................................... 3 1.4.4 Components of the Assessment Process Examined .................................... 4 2 Stakeholder Involvement and Identification of Issues ................................................ 4 2.1 STAKEHOLDER INVOLVEMENT PROGRAMME ............................................................ 4 2.1.1 Identified Key Stakeholders ........................................................................ 4 2.1.2 Consultation Framework ............................................................................. 5 2.2 KEY ISSUES IDENTIFIED............................................................................................ 7 2.2.1 Stakeholder Forum ...................................................................................... 7 2.2.2 Submissions ................................................................................................. 7 2.2.3 Major Issues Associated with the EPA EIA Process................................... 9 3 Policy Review................................................................................................................... 9 3.1 REVIEW OF POLICY FRAMEWORK FOR EIA ............................................................. 9 3.1.1 Background.................................................................................................. 9 3.1.2 Findings ..................................................................................................... 11 3.1.3 Recommendations ..................................................................................... 11 3.2 PRIORITY POLICIES ARISING DURING THE EIA REVIEW ........................................ 14 3.2.1 Findings and Recommendations................................................................ 14 4 Parallel processing of approvals and definition of proposal..................................... 15 4.1 4.2 5 BACKGROUND ........................................................................................................ 15 4.1.1 Issues ......................................................................................................... 15 FINDINGS AND RECOMMENDATIONS ...................................................................... 15

Risk-based environmental impact assessment ........................................................... 17 5.1 BACKGROUND ........................................................................................................ 17

5.2 5.3

ISSUES .................................................................................................................... 18 FINDINGS AND RECOMMENDATIONS ...................................................................... 18 5.3.1 Consistency with the Precautionary Principle ........................................... 19 5.3.2 Key Considerations ................................................................................... 19

Focusing on environmental outcomes and outcome-based conditions .................... 21 6.1 6.2 6.3 BACKGROUND ........................................................................................................ 21 ISSUES .................................................................................................................... 21 FINDINGS AND RECOMMENDATIONS ...................................................................... 22

Timelines........................................................................................................................ 22 7.1 7.2 ISSUES .................................................................................................................... 22 RECOMMENDATIONS............................................................................................... 23 23

8.

Levels of assessment...................................................................................................... 23 8.1 BACKGROUND ........................................................................................................ 23 8.1.1 Current Levels of Assessment ................................................................... 23 8.1.2 Administrative Procedures ........................................................................ 24 8.2 8.3 ISSUES .................................................................................................................... 24 FINDINGS ................................................................................................................ 24 8.3.1 Levels of Assessment ................................................................................ 24 8.3.2 Administrative Procedures ........................................................................ 26 8.4 RECOMMENDATIONS .............................................................................................. 27 8.4.1 Levels of Assessment ................................................................................ 27 8.4.2 Administrative Procedures ........................................................................ 28

Strategic environmental assessment............................................................................ 28 9.1 9.2 9.3 9.4 BACKGROUND....................................................................................................... 28 ISSUES .................................................................................................................... 29 FINDINGS ................................................................................................................ 30 RECOMMENDATIONS .............................................................................................. 31

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Management and resourcing the EPAs workload.................................................... 32 10.1 BACKGROUND ........................................................................................................ 32 10.2 ISSUES .................................................................................................................... 33 10.3 FINDINGS ................................................................................................................ 33 10.4 RECOMMENDATIONS .............................................................................................. 35

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Further work required and implementation of EIA reforms................................... 35 11.1 FURTHER WORK ..................................................................................................... 35 11.2 IMPLEMENTATION PROGRAMME FOR EIA REFORMS .............................................. 35 11.2.1 Recommended Key Stakeholder Consultation.......................................... 35 11.2.2 Roll-Out of EIA Review Outcomes and Implementation ......................... 36 11.3 MANAGEMENT AND RESOURCES FOR IMPLEMENTATION OF REFORMS ................. 36

Tables 1. Options to address EIA Division workload ...................................................................... 34

Figures 1. 2.
Review process flowchart ...................................................................................................... 4 Proposed EPA policy framework ...................................................................................................12

Appendices
1. 2. 3. 4. 5. 6. 7. Report on Stakeholder Forum 9 April 2008 Risk-Based Assessment Terminology, Definitions - Discussion Paper Prepared for the EIA Review Application of Risk-Based Approach in all Stages of EIA - Discussion Paper Prepared for the EIA Review Examples of Outcome-Based Conditions - Discussion Paper Prepared for the EIA Review Draft Administrative Procedures - Discussion Paper Prepared for the EIA Review Review of Annual Auditing Compliance Reporting - Final Report of the AACR Working Group Strategic Environmental Assessment - Discussion Paper Prepared for the EIA Review

1.
1.1

Introduction
BACKGROUND

Environmental impact assessment (EIA) is a predictive tool that is systematically applied at the early planning and design stages of development proposals so that Government and the community can form a view about a proposals environmental acceptability and what conditions, if any, should be applied to control potential risks and impacts. Because EIA is a predictive tool it deals in uncertainty and risk. The environmental effects of development can be difficult to predict. Predictions must often be made when there is still uncertainty about outcomes, be they negative or positive. EIA is therefore information and knowledge dependent knowledge about environmental values that may be at risk from proposed development, knowledge about the nature, extent and duration of risks to which those environmental values may be exposed, knowledge about what can be done to prevent, avoid or mitigate those risks and identify opportunities, and knowledge about whether those identified risks were indeed controlled. It is this tension about how much information and knowledge is necessary to have confidence in predictions about impacts that is at the heart of EIA. The Environmental Protection Authority (EPA) must have sufficient confidence in the information available to make sensible judgements and provide high quality advice to Government on the environmental acceptability of development. The EPA is dealing with increasing pressures and complexities in its environmental impact assessment process. Firstly, there is increasing scrutiny on the EPAs capacity to deliver timely, high quality advice to Government. Secondly, EPA is required to pay attention to an expanding range of environmental issues and risks (including cumulative impacts) to community health and important ecosystems and biodiversity values. The primacy of the Part IV assessment process has meant that the approval by the Minister for Environment to allow the implementation of proposals under Part IV of the Environmental Protection Act 1986 (EP Act) is critical to the financing and investment decisions on projects. Initially, the onset of the resources boom and subsequently the land development boom following shortly thereafter, placed considerable stress on the EPAs assessment workload under Part IV of the EP Act. The implications of the current global financial crisis for the EPAs workload are still to become clear, although to-date there has not been a reduction in proposals being referred. Notwithstanding these global adjustments, it is essential that the EPA responds to concerns expressed about delays, process information requirements and the adequacy of some current policies integral to the EIA process in WA. Additional resources have been provided in the past for the administration of the EIA process but there have not necessarily been commensurate improvements in timelines or number of assessment reports produced. The complexity of projects has increased and the number of proposals undergoing assessment in the last 2-3 years has increased, leading to an increase in assessment workload. Further resources were provided recently for the next two years but not beyond. The implication of EPA marine assessment policies for port expansions or developments, lack of an appropriate wetlands policy, clarification of environmental offsets policy as well as the out of date EPA greenhouse gas emission assessment policy have been a cause for some concern.

Given this background, on 27 February 2008 the EPA Chairman announced a review of the environmental impact assessment process (the EIA Review). The Chairman stated that the EIA Review would be wide-ranging with the general aim of enhancing the quality and timeliness of the EPAs advice to Government on development proposals.

1.2

PURPOSE AND SCOPE OF THIS REPORT

This report documents the EIA Review process, stakeholder consultation, findings and recommendations of the EIA Review. It summarises the EIA Review outcomes, and the implementation status of those outcomes. The report also includes, as Appendices, a number of discussion papers prepared during the EIA Review. The issues addressed in these discussion papers are still being considered and developed with stakeholders, and final policy documents will progressively be published by the EPA in 2009.

1.3

TERMS OF REFERENCE OF THE EIA REVIEW

The terms of reference of the EIA Review were as follows: Part A (a) Review and report on appropriate environmental policy settings to inform the setting of environmental objectives and outcome-based conditions. (b) Review and make recommendations on improvements to the following steps in the EPAs proposal assessment process: (i) scoping of environmental issues / factors, proponent documentation and environmental assessment

(ii) scope and guidance for EMPs and, (iii) outcome-based recommended conditions; all within the context of a risk-based approach. (c) Examine opportunities and make recommendations on improving parallel project assessment/approvals processes under the EP Act and other primary legislation, to assist in improving the overall timeliness of project approvals. (d) Review and make recommendations on procedures for the accreditation of processes / people/ panels to assist in the environmental assessment process. (e) Advise and make recommendations on opportunities for establishing common-user or private/public partnerships for spatial environmental data acquisition, management and systems. (f) Review and revise the 2002 EPA Administrative Procedures to reflect legislative changes and agreed process changes resulting from 1(a) (e) above.

(g) Develop a draft communications and consultation strategy for engaging key stakeholders in the reform programme.

Part B Advise and make recommendations on environmental assessment approaches for strategic / cumulative impact project(s). Part C Make recommendations on amendment to Divisions 1 and 2 of Part IV of the EP Act that would, inter alia, give legislative effect to process improvements arising from Part 1 and 2 above.

1.4
1.4.1

EIA REVIEW SCOPE, OBJECTIVES AND APPROACH

Scope

The EIA Review addressed those components of the environmental impact assessment process that are the responsibility of the EPA. The EIA Review did not extend to the administration of the responsibilities of the Minister for Environment. The EIA Review focused on administrative reforms to facilitate more effective, efficient and timely administration of the existing environmental impact assessment process. Minor legislative changes have been considered where they may be needed to support and enhance the administrative reforms. All stages in the EPAs assessment process were reviewed to determine how services can be more effectively and efficiently delivered taking into account the issues raised by stakeholders during the review process. Effectiveness was to be judged on the environmental outcomes achieved, fulfilling statutory responsibilities, reasonableness and quality of outputs. Efficiency was to be judged in terms of timeliness, resources required, prioritisation and service delivery. 1.4.2

Objectives

The goal of the EIA Review was to improve the effectiveness and efficiency of the EPAs assessment process. The specific objectives of the review were to: 1. 2. 3. 4. 5. Review and develop key EIA policies. Identify and address key issues raised by stakeholders. Review the EPAs Part IV administrative short and long term workload. Prepare an EIA Review implementation plan. Highlight matters that may require further consideration.

1.4.3

Approach

The approach taken by the review involved: 1. Identification of issues relevant to all stages of the EPA assessment process under Part IV through stakeholder consultation (in particular the Stakeholder Reference Group), investigations by the review team and experience of implementation of the recommendations of previous inquiries, including the Review of Project Development Approvals System (termed the Keating Review). Preparation of papers addressing issues identified for consideration by the EPA and the Stakeholder Reference Group. Progressive implementation of review outcomes in accordance with a plan for implementation.

2. 3.

A flowchart of the review process is provided below (Figure 1).

Prepare draft policies and papers on relevant topics Consideration of draft papers and policies by EPA and SRG Implementation in consultation with affected groups

Finalise position

Figure 1 Review process flowchart 1.4.4 Components of the assessment process examined

The following is an outline of the key stages in the environmental impact assessment process under Part IV of the EP Act that were considered. 1. 2. 3. 4. 5. 6. 7. 8. 9. Pre-referral Referral of proposal or scheme Assessment and decision on referral Environmental scoping of issues and scoping document Scope and content of EIA document Assessment of EIA documents suitability for public release by the EPA Assessment of response to submissions by the EPA Assessment of proposal and assessment report by the EPA Assessment of management plans, monitoring programmes etc by the EPA

10. Assessment of Section 45C applications by the EPA

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2.1

Stakeholder involvement and identification of issues

STAKEHOLDER INVOLVEMENT PROGRAMME

The objectives of the stakeholder involvement programme were to: provide an opportunity for key stakeholders to provide input to the Review provide a forum for key stakeholders to participate in the development of outcomes from the Review

The programme concentrated on ensuring that input from key stakeholders was obtained during the early stages of the EIA Review. 2.1.1 Identified key Stakeholders

Stakeholders were classified into four groups for the purpose of the Review: 1. 2. 3. The general community. Key peak stakeholder organisations and Government agencies. Interested stakeholder organisations.

4.

Department of Environment and Conservation (DEC) staff involved in the EIA process. Consultation Framework General community

2.1.2 2.1.2.1

A web page was created for the EIA Review and review outcomes were posted progressively on this site. General community members were able to make a submission to the EIA Review through the website. The process for revision of priority policies included a public review period of at least four weeks for all penultimate draft policies. 2.1.2.2 Key peak stakeholder organisations and Government agencies

The Stakeholder Reference Group (SRG) was formed of representatives from key peak industry organisations, non government organisations and Government agencies. The member organisations of the SRG were: Association of Mining and Exploration Companies Australian Petroleum Production Exploration Association Chamber of Commerce and Industry Chamber of Minerals and Energy Conservation Council of WA Department of Environment and Conservation Department of Industry and Resources Department of Planning and Infrastructure Environmental Consultants Association Murdoch University Office of Development Approvals Coordination Urban Development Institute of Australia WA Local Government Association WA Planning Commission World Wildlife Fund

The SRG was the primary mechanism of consultation with peak organisations and their membership. In addition, working groups of member organisations were formed to address specific issues and oneon-one meetings were held with key sector groupings. The SRG and working groups were chaired by the Chairman of the EPA. The terms of reference for the SRG were: to initially provide input and advice on the Terms of Reference for the Review to identify issues to provide advice and comment on papers, matters and issues referred to the SRG for comment by the Review team to facilitate implementation of reforms

Two working groups were formed from members of the SRG and other interested organisations to review and revise Memoranda of Understanding (MoU) with the (then) Department of Industry and Resources (DoIR) and the Department for Planning and Infrastructure (DPI). Members of these groups were as follows: DoIR MOU Working Group (Chaired by Chairman of EPA): Association of Mining and Exploration Companies Australian Petroleum Production Exploration Association Chamber of Minerals and Energy Conservation Council of WA Department of Environment and Conservation Department of Industry and Resources World Wildlife Fund

DPI MOU Working Group (Chaired by Chairman of EPA): City of Wanneroo Conservation Council of WA Department of Environment and Conservation Department of Industry and Resources Department of Planning and Infrastructure Environmental Consultants Association Housing Industry Association Urban Development Institute of Australia World Wildlife Fund Interested organisations

2.1.2.3

This group included organisations such as the WA Conservation Commission, Marine Parks and Reserves Authority, other relevant Government agencies, LandCorp, NELA, EIANZ, Property Council, Housing Industry Association, key industries, Environmental Defenders Office, conservation groups (for example, The Wildflower Society) and other universities. These organisations were invited to participate in the Stakeholder Forum held in April 2008. Submissions to the EIA Review were encouraged from those who attended. 2.1.2.4 Environmental Impact Assessment Division and other DEC Staff

Regular briefings on the progress of the EIA review were provided to the EPA Service Unit and the Environmental Management Branch of DEC. A forum involving relevant DEC staff was held to provide an opportunity for input to the EIA Review. Presentations on risk-based approach to environmental impact assessment and outcome-based conditions were provided to the EPA Service Unit and the DEC Strategic Policy Division.

2.2
2.2.1

KEY ISSUES IDENTIFIED

Stakeholder forum

The key themes that arose from the independently facilitated Stakeholder Forum as areas requiring improvement were: more strategic approach to assessment complexity and duplication timing legislation resources and culture at DEC and EPA.

The independent facilitators report on the forum is provided in Appendix 1. Key conclusions drawn from the forum were: 1. 2. 3. The forum proved to be an effective and efficient way to consult with a broad base of stakeholders about issues they considered significant to the EIA Review. The forum provided the SRG with a clear understanding of the scope of issues concerning the EPAs stakeholders and a range of ideas on how to address those concerns. Key themes to arise from discussions were strategic planning, timeframes, resourcing and duplication as major areas for improvement. Some of the ideas for addressing those areas included introduction of regionally-based strategic planning, a fee for assessment, improved recruitment and retention of staff, better monitoring of compliance and public database of environmental information. Submissions

2.2.2

On the positive side, submissions indicated that the aspects of the current assessment process that should be retained were: appeals process as it is of public benefit public participation in the process transparency of the process levels of assessment based on severity of impact EPA website information good range of policy documents

The EIA and approval system in Western Australia is seen by many as having evolved into an overly complicated and onerous process. In summary, there are number of perceptions about the process as follows: confusion about the definition of a proposal perceived restrictions on DMAs to process applications related to a proposal before the Part IV process is completed reluctance to process approval applications in parallel restrictions on DMA decisions to issue approvals and proponents to undertake activities that may implement the proposal before the Part IV process is completed

too many levels of assessment lack of strategic assessment that may consider cumulative impacts from a number of proposals consideration of cumulative impacts on a proposal by proposal basis is considered onerous on individual proponents and less effective in terms of environmental protection uncertainty and concern with the development of land already zoned urban or industrial that was not considered by the EPA at the rezoning stage lack of certainty as to timeframes for completion of key stages of the process lack of a transparent mechanism for stopping the clock in assessments lack of procedures for escalation of issues to a senior level for resolution poor coordination and duplication between EPA and other Government agencies lack of clear guidelines for smaller proponents too many issues, often trivial, are being dealt with lack of risk-based approach and comprehensive upfront scoping too much detailed information is required lack of an outcome-based approach to conditions EPA is under-resourced reducing its ability to manage its workload better professional development and business systems within EPA Service Unit increased service-orientated approach by staff servicing the EPA many issues should be managed under other legislation rather than through implementation conditions issued under Part IV of the EP Act public notification of section 45C applications and decisions

With respect to policies, there were the following concerns: cumulative impact limits in policies are constraining port development lack of clear policy/guidance on wetlands lack of a transparent and accountable system for determining offsets approval of management plans provide for a second bite for environmental requirements virtually no public scrutiny of management plans disjunct between land which has been zoned for industrial purposes, and the ability to use the land for the purpose it was zoned

Some stakeholders were strongly of the opinion that more fundamental change was required including reform of the Ministerial appeals process under the EP Act and ensuring the ability of the EPA to manage its own resources by separating the staff that services the EPA from the DEC. Some submissions favoured introduction of fees for environmental impact assessment and the funds to be directed back to the EPA.

2.2.3

Major issues associated with the EPA EIA process

In summary, the major key issues that were identified and addressed in detail by the EIA Review (and addressed in this report) are: 1. 2. 3. 4. 5. 6. 7. 8. 9. Review and revise key EIA policies marine, environmental offsets, greenhouse gases and wetlands Parallel processing of approvals and definition of proposals Risk-based EIA identifying and concentrating on the key issues in the EIA process Outcome-based conditions concentrating on environmental outcomes rather than prescribing how outcomes are to be achieved Timelines and stop the clock in the EIA process Levels of assessment to simplify the process Strategic environmental impact assessment to ensure major and cumulative issues are dealt with at the planning stage rather than at the project design stage. Resourcing and funding of the EPAs workload and development of business systems and professional development of staff. EPA administrative arrangements with DoIR and DPI review of MoUs.

3
1. 2.

Policy review
Review of the EPA policy framework for EIA. Review of policies identified during the EIA Review as priorities greenhouse, marine, offsets and wetlands.

The policy review process was conducted in two stages:

3.1
3.1.1

REVIEW OF POLICY FRAMEWORK FOR EIA

Background

The current EPA policy framework is composed of the following: Environmental Protection Policies

The EPA may prepare and seek approval for environmental protection policies. Draft Environmental Protection Policies (EPPs) are prepared by the EPA pursuant to Part III of the EP Act where the Authority considers it desirable to protect any portion of the environment or to prevent pollution or environmental harm. These policies are approved by the Minister and ratified by Parliament, and have the force of law as if part of the EP Act. The process prescribed by the EP Act for the development of an EPP is lengthy and would normally take of the order of two or more years to complete. While some have been very successful (Kwinana and Goldfields EPPs, Lakes EPP) some have failed to gain the approval of the Minister (eg Swan Coastal Plain Wetlands) or achieve their original purpose (South West Wetlands EPP). Others have significantly influenced the formulation of new legislation (Swan-Canning EPP).

The 2003 EP Act amendments established clearer and wider reaching powers of protection, such as environmental harm provisions, possibly reducing the need to use EPPs in some circumstances. However, enforcement action is less desirable than clear rules in advance of development. Legal practice with respect to EPPs has also evolved in recent years. Today EPPs are drafted by Parliamentary Counsel and are only used: i. to provide a clear statement of intent to use the enforcement powers of the Act, when required, in order to adequately address an environmental issue; or to provide the ability in certain areas under controlled conditions to permit activities that would otherwise be unclear under the Act. Section 17(3)(d) - State Environmental Policies

ii.

The EPA under Section 17(3)(d) of the EP Act may consider and make proposals for policy to be followed in the State. In 2004 the EPA developed the State Environmental Policy (SEP) as a policy instrument to fill a need to have a more general and flexible policy mechanism. There is no statutory process spelt out for the development of these policies although a guide has been produced. As flexible mechanisms, SEPs could be implemented using statutory components such as EPPs, environmental impact assessment, licensing and/or regulations. It remains open to the EPA to use Section 17(3)(d) in other ways. Administrative Procedures

Administrative Procedures have been drawn up pursuant to Section 122 of the EP Act addressing the process that applies to various levels of assessment that may currently be set by the EPA under the EP Act. Under Section 122, the EPA may draw up these procedures for the purpose of establishing the principles and practice of environmental impact assessment. Position Statements

Position Statements have been prepared by the EPA to set out its views on matters of environmental importance and inform the public about environmental values and visions for the future. These statements were also originally to provide a basis for the development of associated guidance statements (refer below). Position Statements are not statutory documents or approved or signed off by the Minister. Normally a draft position statement is prepared and issued for public comment before finalisation. Guidance Statements

Guidance Statements are prepared by the EPA to provide an indication of the matters that the EPA takes into consideration when assessing impacts on environmental factors. They are meant to assist proponents and the public generally, to understand the minimum requirements, for protection of elements of the environment that the EPA expects to be met. Guidance Statements are not statutory documents or approved or signed off by the Minister. A draft Guidance Statement is usually prepared in consultation with key stakeholders and issued for public review for at least 8 weeks before being finalised by the EPA. Guidelines and others

10

The EPA has issued draft guidelines for applications for changes to a proposal pursuant to Section 45C of the EP Act and its position on the environmental management framework for Perths coastal waters. 3.1.2 Findings

The EIA Review found that the current policy framework lacks a systematic and rigorous approach to policy development including: there is no overarching State Environmental Strategy within which orderly policy development could take place. A key component of any environmental policy framework is to set the strategic context for the development of EPA environmental assessment and operational policies. Currently there is no such context and no requirement under the EP Act to prepare one. administrative or operational policies addressing matters of process such as timelines, guidance on preparation of EIAs, scoping documents etc are not adequately addressed. currently there is some confusion as to the difference between and the objectives of Position Statements, Guidance Statements and guidelines. there is no practice of making pronouncements by the EPA on matters that need to be clarified urgently. there is a view that there should be a policy instrument more binding than that of an SEP but less onerous than an EPP. Recommendations

3.1.3

It is recommended that 3.1.3.1 The current policy framework should be replaced by that described in Figure 2 which is based to some extent on the planning policy framework developed by the WA Planning Commission. The role of position and guidance statements should be translated to new policy instruments (environmental assessment policies, administrative procedures and environmental protection bulletins) as described above. A State Environmental Strategy (SES) should be prepared to provide a strategic context for the development of environmental policies. The SES would identify priority areas or segments of the environment requiring a high level of environmental protection and would provide the basis for the preparation of environmental policies to address those priority areas. The recommended framework should consist of the following policy instruments: State Environmental Strategy An overarching State Environmental Strategy would be developed jointly by the EPA and the DEC to set the strategic context for the development of environmental policies in WA.

3.1.3.2

3.1.3.3

3.1.3.4

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Environmental Protection Act 1986 and other relevant legislation including CALM Act and Wildlife Conservation Act

State Environmental Strategy

State of the Environment reporting

Government/DEC environmental policies

Environmental Protection Policies

Administrative Procedures and Guidelines

DEC operational procedures under Part V Environmental Assessment Policies and Guidelines

Environmental Protection Bulletins

EPA responsibility or function

Joint EPA /DEC responsibility

DEC responsibility or function

Figure 2 Proposed EPA policy framework Binding EPPs with regulatory powers Draft EPPs would be initiated by EPA and prepared under Section 26 of the EP Act as is currently the case. A simplified process for the preparation of EPPs should be considered as an option to expedite the development of EPPs but amendments to the EP Act may be required to enable this to occur. Other statutory policies that may bind decision makers only The preparation of less regulatory policies (SEPs) under Section17(3)(d) may continue. SEPs in general do not bind decision makers under the EP Act. An option that should be considered is to make SEPs binding on decision makers but this would require changes to the EP Act. Alternatively, components of an SEP can use existing powers under the EP Act or other legislation to achieve their objectives, eg regulations. Rationalisation of these two existing EPP policy instruments should be pursued to reduce confusion and to clarify their purpose and scope.

12

Environmental Assessment Policies and Guidelines Environmental Assessment Policies (EAPs) prepared under Section 16(k) or Section 17(3)(d) would be non-statutory and address matters including: criteria that would apply in the EPAs environmental assessment of impacts on sensitive segments or environmental factors, for instance coastal areas, wetlands, marine habitat, vegetation key environmental protection concepts or measures, for instance best practice, offsets activities/sectors, for instance marinas or land development

The structure of these policies would be simpler than current guidance statements and is proposed as follows: Introduction and background Objectives intent of the policy Scope of the policy Definition of terms used in the policy Policy measures the environmental criteria, practices, monitoring etc.

Further consideration should be given to whether these policies should be a) given a statutory basis, and b) legally binding on the EPA and Appeals Convenor by requiring they have due regard for them when making decisions or providing advice. This would reflect more closely the role of Statements of Planning policies under the Planning and Development Act 2005. Environmental Assessment Guidelines (EAGs) prepared under Section 16(k) would be nonstatutory (and recommended to remain so) and address the more technical aspects of the assessment process including: methodologies for environmental investigations, consultation, rehabilitation and monitoring risk-based approach to impact assessment

The process for preparation of EAPs and EAGs would be consultative and involve public review before being completed. Environmental Protection Bulletins Environmental Protection Bulletins (EPBs) are intended to provide an avenue for the EPA to make statements or make its position clear on matters of process or policy requiring urgent attention. The EPBs may also be used to establish interim policy while the formal process for policy development is being completed. EPBs would focus on clear, simple and brief explanations of environmental policy but may also be used to explain legislative requirements or to announce proposed changes to administrative procedures or guidelines where there is an urgent need to notify such changes in advance of administrative procedures or guidelines being amended.

13

The preparation and issue of EPBs would be with limited consultation. They would of necessity be advisory and not statutory. Administrative Procedures and Guidelines Administration procedures prepared under Section 122 of the EP Act should address in broad terms the assessment process and the form and content of environmental impact assessments. Administrative guidelines would be non-statutory and address assessment process matters in more detail but consistent with any legislative requirements. Topics would include guidance on preparation of Section 45C applications, referrals and scoping documents, EIA documents and condition setting. The process for the preparation of these guidelines would be an internal consultative process with external consultation as required. 3.1.7.1 The new framework and policy structure should apply to all new policies currently subject to the EIA review. Existing Position and Guidance Statements that are not subject to current EIA review should be migrated directly (without restructuring or amendment) across to the new framework as appropriate. There are some Position Statements and Guidance Statements (for example environmental offsets) that cover the same topic that will require rationalisation between policy (objectives and measures) and guidelines which indicate how to comply with the policy.

3.2
3.2.1

PRIORITY POLICIES ARISING DURING THE EIA REVIEW

Findings and Recommendations

Greenhouse Gas There is a need for an environmental assessment policy under the new EPA policy hierarchy for greenhouse gases. A set of principles to guide the EPAs assessment of proposals that have greenhouse emission impacts is required, especially in the light of the Federal Governments role and the proposed Emissions Trading Scheme. Marine Ecosystems The EPA has received a report of the review of the EPAs policies relating to protection of marine habitats. The EPA is considering the review report and a programme for implementation of its recommendations. Environmental Offsets Environmental offsets was identified as a topic needing refinement. The EPA recently finalised the Guidance Statement for Environmental Offsets Biodiversity, No 19, together with Environmental Protection Bulletin No.1. Wetlands Wetlands continue to play an important part of EIA. The EPA has determined that the need for additional or revised policies for EIA will be reviewed in 2009.

14

4
4.1

Parallel processing of approvals and definition of proposal

BACKGROUND

Section 41 of the EP Act prevents a decision-making authority (DMA) from making a decision that could have the effect of causing or allowing a proposal to be implemented once it receives notice of the EPAs decision to assess a proposal under Section 39A of the EP Act. In addition, under Section 41A a person is not permitted to commence implementation of a proposal once the EPA decides to assess the proposal and before a Statement is published by the Minister for Environment under Section 45. 4.1.1 Issues

There are primarily three concerns that arise from the current application of Sections 41 and 41A of the EP Act: perceived restrictions under Section 41 on DMAs to process applications for approval related to the proposal before the Minister for Environments implementation decision. perceived and actual restrictions on DMAs to issue approvals before the Minister for Environments implementation decision. perceived and actual restrictions on proponents to undertake certain activities that may implement the proposal under Section 41A(1) before the Minister for Environments implementation decision.

These perceptions and restrictions have resulted in other agencies not proceeding to process applications under their respective legislation in parallel with the environmental assessment and decision-making process. Also, proponents are confused as to what activities could be considered to implement a proposal. Some stakeholders have suggested that Section 41 be deleted to enable other approvals to be issued independent of the EP Act process, based on a view that this could reduce overall timelines for proposals.

4.2
1. 2. 3.

FINDINGS AND RECOMMENDATIONS

Part IV of the EP Act proceeds on the basis that the implementation of a significant proposal will require the grant of some other approval, or the taking of some action, under another State law. Section 38(5) of the EP Act requires a DMA to refer to the EPA a proposal that appears likely, if implemented, to have a significant effect on the environment. Under Section 40 of the EP Act, the EPA may, for the purpose of assessing a proposal, require the proponent to undertake an environmental review and the EPA can prescribe the specific requirements of that review. It is open to the EPA to specify the investigations to be done as part of the review.

There are several fundamental constructs of the EP Act which are relevant:

15

4.

Sections 41(2) and 41(3) of the EP Act prevent the referring DMA, and any other DMAs nominated by the EPA, from making a decision that could have the effect of causing or allowing the proposal to be implemented. Section 45(1) of the EP Act requires that the Minister for Environment attempt to reach agreement with the other DMAs nominated by the EPA on whether a proposal can be implemented and, if so, under what conditions. This requirement is intended to ensure alignment and consistency in outcomes between the decision of the Minister for Environment and other significant decision-makers across government. The EP Act also provides for third party referral and EPA call-in powers. There is no obligation on proponents to refer a significant proposal to the EPA.

5.

6.

There is significant scope for addressing the concerns raised during the review without legislative amendment, in particular through improvements in three areas: 1. 2. 3. The proponents definition of the proposal. The EPAs requirements for the environmental review, including investigations to be undertaken by the proponent. The EPAs nomination of DMAs.

The emphasis of the EP Act is to consider a referred proposal on the basis of its potential for significant adverse effects on the environment and to determine whether the proposal may be implemented. The proponent is seeking approval to implement a proposal on the basis of its potential environmental impacts. An environmental approval provides a defence to the proponent to offences of environmental harm or pollution under the EP Act. The proponents decision on how to define a proposal has a major influence on those activities that may be undertaken while a proposal is in the assessment process. The EPAs decision as to what it requires for the environmental review has a major influence on what investigations (and associated activities) can and must be undertaken by the proponent to prepare the proponents environmental review document. The definition of a proposal should emphasise the environmental footprint of the proposal, and this should flow through to the implementation statement and conditions as appropriate. A proponent may seek to have certain activities or processes, such as project resource assessment/exploration activities, excluded from the description of a proposal referred to the EPA on the basis that those activities would not add significantly to the cumulative effect of the proposal. Where this is agreed, the relevant DMA for that activity would determine whether the activity is environmentally significant and should be referred separately to the EPA. In regard to DMA nomination, rather than a catch-all approach, the EPA should limit the formal DMAs for a proposal to those that have a substantial decision-making role with respect to the proposal and where there is an expectation that the Minister for Environment would consult and reach agreement before a decision is made. This allows the DMAs to complete their assessment in parallel with that of the EPA (short of making the final decision) and use their assessment to inform their input to the Minister for Environments Section 45(1) consultation process. The constraint on DMAs is on the timing of their final decision, and not the processing of the application. The EP Act requires that a DMA defers its decision on an application until the Minister for Environment has consulted and reached agreement with the DMAs for a proposal, and issued a Section 45 notice.

16

Recommendations It is recommended that: 4.2.1 4.2.2 The EPA should issue an Environmental Protection Bulletin clarifying the restrictions and obligations under Part IV of the EP Act regarding parallel processing and decision-making. Given the broad definition of a significant proposal, care should be taken by proponents to clearly define the proposal and identify what activities or processes that affect the environment are, and are not, part of a referred proposal. Investigations that are required by the EPA to gain information for the EIA of a proposal should generally be considered permitted under Section 40 of the EP Act. To this end, the EPA should phrase its requirements carefully. Activities that are clearly not part of a proposal and not environmentally significant will generally not be constrained by the EPA and can therefore be approved by other agencies (such as a well construction licence) before the EP Act process is completed. The definition of the proposal on the first page of an Implementation Statement should reflect that provided in the referral and as amended in accordance with Section 43A during the assessment process. In the key characteristics table there should be a preference for describing the permitted environmental footprint rather than the design attributes of the proposal. Design attributes should be included where they are related to the environmental impacts of the proposal. The EPAs decision as to which DMAs are to be constrained while a proposal is being assessed should be limited to those DMAs that have a substantial decision-making role with respect to the proposal and where there is an expectation that the Minister for Environment would consult and reach agreement before a decision is made.

4.2.3

4.2.4

4.2.5

4.2.6

5
5.1

Risk-based environmental impact assessment

BACKGROUND

An environment risk is the chance of something happening that will have an environmental impact combined with the degree or consequence of that impact, and the process that addresses risk is called environmental risk management (AS/NZS 4360:2004). Risk assessment and EIA are similar in concept as they both deal with the prediction of the future impacts or consequences arising from proposals and uncertainties about the exact nature, probability, frequency and magnitude of impact or consequences. Both seek to inform the decision making process about the significance of detrimental impacts and the appropriateness of risk treatments or mitigation measures. Notwithstanding this affinity, these approaches have been developing in parallel with little mutual cross fertilisation. The European Union has encouraged its members to apply risk assessment in EIA, particularly to extreme events but very little specific guidance is available on how to apply risk assessment in EIA.

17

Risk assessment in EIA has often been restricted to human health and safety risk assessments with little application to ecosystem impacts.

5.2

ISSUES

There are concerns that assessments are being required to address minor issues instead of key issues which should be identified early in the process. Establishing a systematic, consistent and transparent way of identifying key environmental issues and determining the scale and acceptability of impact and an appropriate management response commensurate with the severity of impact is a major challenge for environmental impact assessment. The construction of a transparent risk-based assessment framework was widely supported provided the following issues are addressed: Clearly define the new concepts and terms. Develop an approach to classifying consequences and identifying commensurate management responses. Confront the different stakeholder views about the values of the environment.

Involvement of key stakeholders in the risk-based approach was also considered to be critical to acceptance of risk assessment outputs.

5.3

FINDINGS AND RECOMMENDATIONS

Environmental risk management and EIA processes both involve stakeholder consultation and establishing the context of the assessment. The risk-based EIA involves melding both processes to utilise benefits of risk assessment while satisfying statutory assessment processes prescribed under the Act, and encouraging the application of contemporary environmental protection practices. Currently, the identification of key issues, the determination of the acceptability of impacts and the appropriate management response according to a scale of impact in the EIA process is not systematic, consistent or transparent in most instances particularly when assessing impacts on biodiversity. The current process rightly involves judgements on these matters but they are not always well documented or transparent. The risk-based approach provides systematic consideration of the likelihood and significance of potential environmental impacts and a transparent approach to addressing these matters. Depending on how it is applied, it can also provide an opportunity for stakeholders and regulators to participate in the process to determine levels of impact significance, acceptability and mitigation. A risk-based approach is capable of being applied to key stages of the EIA process from scoping to mitigation. The application of a risk-based approach early in the process should contribute to early identification of key issues which would become the focus of subsequent detailed assessment phases. This approach recognises that the level of information and knowledge regarding risks would increase during the environmental impact assessment process. The terminology and risk scales used in risk management by proponents can vary from proposal to proposal thereby potentially leading to confusion in the interpretation of risk assessment outcomes. Risk-based EIA would need to develop its own definitions and terminology based on a risk assessment

18

framework described in HB 203:2006 Environmental Risk Management Principles and Process blended with commonly used EIA terminology defined in AS/NZS ISO 14004. The risk-based assessment process will lead to considerable debate and judgements being made explicitly and transparently around the following matters: what are acceptable environmental risks or impacts? what is an appropriate scale of environmental consequences and risk levels? what are appropriate mitigation responses to risk levels? what level of risk is an appropriate environmental outcome for a proposal? Consistency with the precautionary principle

5.3.1

The application of a risk-based approach infers that there is no zero risk associated with proposals as this is not achievable. The precautionary principle (one of the guiding principles in the Act) is sometimes used to justify that zero risk is an appropriate policy position. This is not the intent of the principle which reads: Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: i. ii. careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and an assessment of the risk-weighted consequences of various options.

A risk-based approach to EIA can be consistent with the precautionary principle which is often invoked when considering impacts on ecosystems which are inherently complex and normally where there is far from complete understanding. There are divergent views about whether the application of this principle should be a science-based risk assessment and the extent to which community values and policy requirements are recognised in the risk assessment process. A risk-based approach will involve a blend of science, policy and community values particularly where there are significant risks to highly valued and protected environmental assets. Community or stakeholder input to the process will be important in these circumstances to ensure a balanced outcome. 5.3.2 Key considerations

A risk-based approach has the potential for a number of advantages including: greater transparency in decision-making processes support informed, consistent and defensible decision-making consistent with the precautionary principle more systematic approach to evaluating the magnitude of environmental impacts

19

prioritises the environmental impacts of concern, the application of management and controls and the focus of audit programmes improves environmental accountability of proponents provides an effective basis for the engagement of key stakeholders to influence environmental outcomes provides a sound basis for the development of targeted research and development programmes.

A risk-based approach also has potential challenges including: ensuring there is sufficient data to inform the risk assessment and decision-making recognising complex ecosystem linkages and dependencies building a common understanding of the risk assessment approach and associated concepts and definitions ensuring the approach is responsive to different situations recognising the legitimate role of the EPA to be informed by the risk assessment and then make a judgement

Recommendations It is recommended that: 5.3.2.1 5.3.2.2 Risk terminology and definitions should be standardised to provide a common basis for understanding risk assessment presented in EIA documentation. Risk-based approaches should be used to inform key stages of the environmental impact assessment process: - scoping of the proposal at or following referral - evaluation of impacts and design of mitigation measures by the proponent - assessment of impacts arising from the proposal by the EPA - assessment of proposed mitigation measures by the EPA Within each of these phases, risk analyses and evaluations of environmental risks should be conducted to an increasing level of detail as a proposal proceeds through the process. 5.3.2.3 A risk-based approach should be used to inform priority areas for compliance monitoring and auditing subsequent to the setting of conditions and issue of an Implementation Statement by the Minister for Environment.

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6
6.1

Focusing on environmental outcomes and outcomebased conditions

BACKGROUND

The EPA endeavours, when it assesses proposals, to determine the environmental acceptability of proposals and in so doing, to achieve the best environmental outcomes that are reasonably and practicably achievable given the circumstances. Focusing on the acceptability of environmental outcomes and what may be achieved by the application of best practice management and mitigation rather than prescribing how outcomes may be achieved, enables more effective and efficient use of resources. The EPA recommends to the Minister for Environment environmental conditions for proposals. These conditions have historically led to the requirement for the preparation of environmental management plans and have rarely specified environmental outcomes. This move was in part been due to inadequate information at the time of the assessment. The Keating Review recommended that conditions should be outcome-based and should not prescribe how environmental aspects will be managed but rather, concentrate on specifying the outcome required with the means to achieve that outcome left to the proponent. The outcome-based approach is regarded as providing an incentive for process/system improvements to achieve better outcomes and flexibility for the proponent as to how the outcome may be achieved. The recent review conducted by a joint industry/DEC Annual Audit Compliance Reporting (AACR) Working Group found that outcome-based conditions: encouraged continuous improvement and adaptive management focussed on achieving environmental standards

The Working Groups Final Report defined outcome-based conditions are those that may impose: a specific environmental outcome (for example avoidance of a sensitive habit or not exceeding a receiving environment standard) an environmental performance standard (for example an emission limit)

The Working Group also recommended revised wording for the standard annual compliance reporting condition.

6.2

ISSUES

A prescriptive approach to setting environmental conditions shifts the focus from environmental outcomes to how these outcomes will be achieved. The move away from setting prescriptive environmental management measures in conditions is seen as allowing proponents to apply adaptive management to operations to achieve environmental outcomes. However, there will still be exceptional circumstances where it may be appropriate to prescribe the management measures to be used, particularly where there is a high level of uncertainty and it is difficult to predict the environmental outcome. This may also be the case where the outcome will not be known for a generation or more, or external factors beyond the control of the proponent are likely to affect the outcome (eg extreme weather events).

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6.3

FINDINGS AND RECOMMENDATIONS

clarity and accountability as to the outcome (environmental, social etc) that is to be achieved by the proponent transparency as to the environmental outcomes to be achieved opportunities for participation by the community in the monitoring of environmental conditions flexibility for the proponent as to how the outcome may be achieved, thereby providing the opportunity for the proponent to use innovation and improvements in technology to achieve the outcome reduced involvement of the decision maker in prescribing the means by which an outcome will be achieved.

Outcome-based conditions will deliver the following benefits:

In contrast, prescriptive conditions (those that prescribe management measures that will be applied) can have the effect of discouraging a proponent to go beyond compliance. Prescriptive conditions do not permit flexibility in how the outcome or performance will be achieved by the proponent, and do not encourage responsive and adaptive management by the proponent. It is also beneficial to avoid the requirement for secondary approval processes associated with management plans after the issue of a Ministerial Statement, providing the predicted impacts and mitigation measures have been adequately considered during the assessment. Conditions requiring both the preparation and implementation of management plans and the matters to be addressed in those plans are considered prescriptive. Recommendations It is recommended that: 6.3.1 Outcome-based conditions should be used in favour of prescriptive conditions where the intended outcome can be clearly defined and measured. Only where there is uncertainty and it is difficult to predict the environmental outcome, additional management measures may be required and it may be appropriate to prescribe them in the conditions. Guidelines should be prepared for the development of outcome-based conditions and should outline the opportunities for their use. A suite of model outcome-based conditions for environmental factors should be developed. The wording of the annual compliance reporting condition should be amended, consistent with the recommendation in the Final Report of the AACR Working Group (Appendix 6).

6.3.2 6.3.3 6.3.4

7
7.1

Timelines
ISSUES

A lack of confidence and certainty with EIA process timelines has been raised consistently by proponents as an area of key concern. Unnecessary delays can have direct financial consequences for the proponent and the state, and can also reduce overall confidence in a project.

22

Specific areas for attention identified during the review are: Agreed timelines for key steps in the process An escalation protocol to ensure projects are not stalled Guidelines for using the stop the clock mechanism

7.2

RECOMMENDATIONS

It is recommended that: 7.2.1 The EPA should set target timelines for key steps in the assessment process in the revised Administrative Procedures to enable transparent and accurate reporting and comprehensive analysis. The EPA should prepare and implement an escalation protocol to guide when and how issues should be escalated to senior management for resolution (both from the EPA Service Unit and the proponent). The EPA should prepare and implement an Environmental Protection Bulletin on the application of the stop the clock mechanism.

7.2.2

7.2.3

8.
8.1

Levels of assessment
BACKGROUND

The EPA, upon referral of a proposal, makes a decision under Part IV of the EP Act whether or not to assess the proposal and if the EPA decides to assess it, the EPA will then decide at what level the proposal is to be assessed. 8.1.1 Current levels of Assessment

Currently there are five levels of assessment (excluding a public inquiry) for which Administrative Procedures have been gazetted as follows: 1. Assessment on Referral Information (ARI) an expedited level of assessment (quick yes) where there are only one or two issues of local significance that can be readily managed and there is no formal public review stage. Environmental Protection Statement - an expedited level of assessment (normally considered a quick yes) where there are a number of issues of local significance that can be readily managed and there no formal public review is considered necessary because adequate consultation with stakeholders has been conducted by the proponent. Proposal Unlikely to be Environmentally Acceptable (PUEA) an expedited level of assessment (quick no) where the EPA indicates that a proposal is clearly environmentally unacceptable and cannot be reasonably modified to become acceptable. Public Environmental Review (PER) a level of assessment with a public review period where there is a number of complex local and regional issues of interest where it must be demonstrated that they can be managed in an environmentally acceptable manner.

2.

3.

4.

23

5.

Environmental Review and Management Programme (ERMP) a level of assessment with a public review period applied to a proposal of State interest which raises a number of complex issues of a strategic nature requiring substantial assessment to determine whether they can be managed in an environmentally acceptable manner.

The EPA may also initiate a public inquiry with the approval of the Minister for Environment to assist with the assessment of a proposal. A public inquiry has not been initiated to date. 8.1.2 Administrative Procedures

The Environmental Impact Assessment (Part IV Division 1) Administrative Procedures 2002 (the Administrative Procedures) are currently in place and describe general procedures that apply to the current levels of assessment. These procedures are prepared and gazetted by the EPA pursuant to Section 122 of the EP Act. This section indicates that procedures can be prepared by the EPA for the purposes of the EP Act and in particular for the purpose of establishing the principles and practices of environmental impact assessment.

8.2

ISSUES

Some comments received from the Stakeholder Reference Group (SRG) members and submissions to the review suggested that there are too many levels of assessment and this leads to confusion for proponents and the community. There is a feeling that expedited yes levels of assessment appear to be assuming the proportions of a PER and therefore the process is not meeting its original intention. Scoping documents required under current procedures sometimes take an unreasonable time to complete because of the requirements of the DEC on the extent of investigation required to support an environmental impact assessment. The alignment between Commonwealth and State EIA processes is not ideal for those expedited or non-public review levels of assessment. These levels are not addressed in the bilateral agreement with the Commonwealth for accreditation of the Western Australian assessment process. The review of the Administrative Procedures was necessitated by the proposed EIA reforms described in this report and the fact that the procedures were last updated more than six years ago. The opportunity has also been taken to include consideration of the evolving practices of regulatory reform.

8.3
8.3.1

FINDINGS
Levels of Assessment

Retention of both a streamlined process for the assessment of less significant proposals or proposals clearly in breach of environmental policy is supported but there are significant issues associated with the current procedures for these levels of assessment: 1. The lack of a defined scope in expedited assessments can lead to delays in the assessment process,

24

2. 3.

The lack of opportunity for public comment on the information submitted to the EPA for assessment and; The streamlined levels of assessment do not sit comfortably with the current provisions of Part IV of the EP Act. In particular, the level of assessment for the proposal cannot be formally determined by EPA until full documentation is submitted to EPA. There is a possibility that the EPA may still set a higher level of assessment (or the Minister on appeal) once the documentation has been received.

Notwithstanding these perceived shortcomings, the streamlined or non-public review levels of assessment are: seen as providing an incentive to proponents to design proposals that are more environmentally benign and to undertake community consultation in order to streamline the assessment process enable a quick no thereby saving both the resources of the proponent, the EPA and the community on the continuance of the assessment process.

Reasonable consistency or compatibility with the Commonwealth assessment procedures (including levels of assessment) would be preferable. Greater consistency with Commonwealth assessment approaches is advisable given the Council of Australian Governments (COAG) interest in regulatory and approval process reform. The public review level(s) of assessment are necessary for more environmentally significant proposals. The procedural differences between the current PER and ERMP levels of assessment are not large with the main differences being: a public review for the scoping document is usually required for an ERMP a longer public review period is usually required for an ERMP.

Current procedures require the proponent to prepare a scoping document for a PER and ERMP for approval by the EPA. These documents can sometimes take considerable time and resources to complete. An alternative to this requirement is for the EPA to issue instructions which would define the scope of the assessment based on information (including a preliminary risk assessment) to be provided with the referral of the proposal. The EPA currently requires management plans/measures to accompany the environmental review document for both levels of assessment (not always the case historically). The difference between the investigatory work required for a PER and an ERMP is not necessarily significant and is very much dependent on the environmental significance and complexity of the proposal. When the highest level of assessment (ERMP) is applied to a proposal, it can be perceived as more likely to be environmentally unacceptable than a proposal assessed at PER level. This is not necessarily correct as proposals that have been the subject of PERs have been found to be environmentally unacceptable. Proponents may strive to seek a lower level of assessment to reduce this perception of their proposal. On the other hand, community groups may on the basis of the same perception, push to raise the level of assessment through appeals to the Minister.

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8.3.2 8.3.2.1

Administrative procedures Role and Status of procedures

The role and status of the Administrative Procedures is sometimes unclear to stakeholders. This lack of clarity arises for several reasons including: 1. 2. 3. The EP Act does not refer to Administrative Procedures beyond making provision for their establishment, The EP Act does not require either the EPA or proponents to be consistent with the Administrative Procedures, nor does it make it an offence to not comply with the procedures, The current Administrative Procedures include a variety of information ranging from extracts of the EP Act, re-stating of obligations established under the EP Act, description of processes, as well as general information for proponents, The content of the current Administrative Procedures is broader than the purpose described in the Administrative Procedures, (ie set out the procedures adopted by the EPA for dealing with referrals), The EPA and the DEC have produced a range of detailed guidelines and information products for proponents that outline the expectations and requirements for the EIA process under Part IV of the EP Act and; The Administrative Procedures have been drafted in the style of legislation. Purpose of procedures

4.

5.

6.

8.3.2.2

The Administrative Procedures are not intended to be enforceable at law. Instead, they enable the EPA to establish operational standards. This approach has the potential to improve efficiencies and outcomes by aligning the operational delivery to the pursuit of the Object of the EP Act. The primary audience for the Administrative Procedures is, in the first instance, the EPA and the DEC. The purpose of the Administrative Procedures is different from general guidelines developed by the EPA and the DEC where the primary audience is the community (either as proponents, NGOs, interested parties or the general public) and the aim is to inform them of their obligations and rights under the EP Act. For reasons of transparency and accountability, and for the information of all parties with an interest in the process, the Administrative Procedures are publicly available. Administrative procedures are also an important consideration in any bilateral agreement with the Commonwealth for accreditation of the WA EIA process. 8.3.2.3 Objectives to be achieved by procedures

Assessment processes, particularly those involving public review can require significant time and resource commitments by government and business. It is paramount that there is a clear understanding of the importance of these processes, and in particular the objectives of these processes. The Administrative Procedures should be consistent with the core objectives of EIA and reflect EIA process principles. This will provide additional context and understanding, and importantly provide higher-level guidance on the application of operational procedures.

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8.3.2.4

Form and styles of procedures

The current Administrative Procedures have evolved over time and include various information, suggestions and statutory obligations. The purpose of Administrative Procedures described above should be reflected in the content of the procedures. In addition, quoting sections of the Act should be limited for the following reasons: it can result in the Administrative Procedures becoming overly lengthy it encourages the reader to consider the Administrative Procedures in isolation from the Act (where the provisions need to be considered within the context of the whole Act) it introduces risks of currency if the Act is changed and it introduces the risk of errors.

Administrative Procedures should not include detail that is subject to regular changes or adaptations by maximising the use of supporting guidelines. The current Administrative Procedures include, in the flow charts, reference to the role of the Minister in the approvals process. The EP Act also provides for the development of Administrative Procedures in relation to appeals (Section 107D). While the Act does not specify the form of the Administrative Procedures (eg one or multiple documents), the procedures associated with the role of the Minister and appeal processes should not be included in the EPAs Administrative Procedures for EIA. The legislative writing style of procedures can be confronting to those not accustomed to this format. Administrative Procedures are intended to establish the framework for administration by the EPA and the DEC and thus thelegislative drafting style has been retained. This approach however, recognises that Administrative Procedures are not, in themselves, legislation or subsidiary legislation.

8.4
8.4.1

RECOMMENDATIONS
Levels of assessment

It is recommended that: 8.4.1.1 8.4.1.2 The current five levels of assessment should be reduced to two to make the assessment process simpler and less confusing to communicate. The two levels of assessment should be as follows: 1. Assessment on Referral or Additional Information (ARAI) - Proposals that potentially have environmental consequences that warrant assessment, but not a public review. These could include proposals which are assessed at the referral stage as environmentally unacceptable. Public Environmental Review and Management Programme (PERMP) - Proposals that potentially have environmental consequences that warrant assessment and a public review.

2.

8.4.1.3

The effectiveness and efficiency of the current scoping process should be reviewed to determine whether it would be more appropriate for the EPA to issue guidelines or instructions, particularly for less significant proposals.

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8.4.1.4

Amendments to the EP Act to better address the streamlined non-public review level of assessment should be considered. Administrative Procedures

8.4.2

Recommendations: The current Administrative Procedures should be revised to reflect the following: 8.4.2.1 8.4.2.2 The current PER and ERMP assessment levels should be melded into one level and called a PERMP. The PERMP level of assessment should keep the emphasis on not only reviewing environmental impacts to establish their significance but also establishing clear performance measures and demonstrating that management measures can be taken to ensure environmental outcomes can be achieved and risks managed. The PERMP assessment procedure should be similar to the existing assessment procedure for an ERMP but amended to provide discretion for the EPA to set a public review period from 4-12 weeks depending on the environmental significance of the proposal. The EPA should also decide on a case by case basis whether the scoping document would be subject to public review before being finalised. The EPA should, before reporting to the Minister on the unacceptability of a proposal at the referral stage, formally advise the proponent that the proposal is considered unacceptable and provide the proponent an opportunity to withdraw the proposal and submit a new amended proposal within a period nominated by the EPA. This would be consistent with the Commonwealth EPBC Act procedures.

8.4.2.3

8.4.2.4

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9.1

Strategic environmental assessment

Background

Strategic environmental assessment of policies, plans and programmes occurs in many overseas jurisdictions with Europe and Canada being some of the more prominent examples. The assessment process may vary substantially depending on the circumstances within the country or state. An emphasis in overseas jurisdictions is the early integration of environmental considerations into the planning process and the preparation of assessments by the proponent agencies with assistance or guidance from environmental agencies. Key aspects of the application of strategic environmental assessment based upon international experience include: the requirement for strategic environmental assessment can be mandated by legislation or government directive early interaction between the environmental and responsible authorities is required to assist environmental input to options or alternatives and the establishment of objectives the integration of environmental considerations and preparation of an environmental report is the responsibility of the proponent agency gathering adequate data to support a strategic environmental assessment is essential

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Strategic environmental assessment is intended to contribute to sustainable development by ensuring the incorporation of environmental considerations into policies, plans and programmes that set the framework for subsequent activities. Good governance and public participation, transparency and good quality information are all important principles applied to the strategic environmental assessment process (as well as project-based EIA). In some circumstances, strategic environmental assessment has included consideration of social and economic issues. Under Section 146 of the Commonwealth Environment Protection and Biodiversity Act 1999 (EPBC Act), strategic environmental assessment is conducted of actions that may be taken under a policy, plan or programme that may adversely affect matters protected under the EPBC Act. The policy, plan or programme may be endorsed by the Minister and actions taken in accordance with the endorsed policy, plan or programme may be approved by the Minister more expeditiously. A number of strategic environmental assessments of Commonwealth-managed fisheries have been conducted under the EPBC Act. The assessment process resembles that of project-based environmental impacts assessments under the EPBC Act. Amendments to the EP Act in 2003 enabled the EPA to undertake a statutory assessment of a strategic proposal which is defined as a proposal that may become a significant proposal or future proposals that may have a significant effect on the environment. The referral of strategic proposals is voluntary. If a subsequent proposal is consistent with the assessed strategic proposal it may be declared a derived proposal by the EPA under certain circumstances. The EPA has also conducted a number of non-binding strategic assessments of broad scale land development (for instance proposed industrial estates and Structure Plans), port development and industrial estates pursuant to Section 16(e) of the EP Act. A recent example is the EPAs report on the proposed sites for a Kimberley LNG precinct. This can be the first stage of a two stage assessment process for significant proposals where: 1. The first stage strategic assessment is non-binding and usually includes an assessment of alternatives and options. The strategic assessment identifies key environmental issues and determines information that will be required for a detailed assessment and whether the proposal may be potentially environmentally acceptable. An assessment of alternatives or options is usually part of this stage. The second stage assessment is binding, and includes a more detailed assessment of key issues and mitigation that may be applied to the proposal.

2.

Section 16(e) assessments have provided substantial flexibility to both the EPA and proponents for major complex proposals by going through a staged assessment.

9.2

ISSUES

One of the major themes from the Stakeholder Forum held in April 2008 was that there should be a greater use of strategic environmental assessment. The EIA Review identified that the lack of strategic environmental impact assessment that addresses cumulative impacts that may arise from a number of proposals may lead to the following: potentially onerous requirements on individual proponents to address cumulative impacts on a proposal by proposal basis sub-optimal environmental outcomes

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missed opportunities for streamlining project approvals

9.3

FINDINGS

Strategic environmental assessments are under-utilised in Western Australia. The advantages of conducting strategic environmental assessments, both binding and non-binding, include: encourages a more regional approach to resource management and land use planning alternatives and options are better considered early in the planning process addresses cumulative impacts more readily than EIA of individual projects pre-requisites for development are better known upfront better design of developments more certainty for subsequent projects or development through the upfront resolution of footprint issues streamlining of subsequent assessment processes for development proposals that are in accordance with the plan, policy or programme under which the proposal is developed.

Possible reasons as to why so few strategic proposals are referred to the EPA for assessment include: 1. 2. 3. 4. 5. A lack of awareness of the facility and the benefits, The absence of a directive or agreement between the EPA and other agencies or Ministers for strategic proposals to be subject to strategic environmental assessment, Perception that strategic environmental assessment may take a long time to complete, The setting of binding conditions on responsible authorities by the Minister for Environment and; Lack of confidence that the assessment process for subsequent proposals will actually be streamlined.

There may also be some organisational or cultural issues that have impeded the referral of strategic proposals including: other agencies often do not have sufficient capability to prepare documentation for assessment other agencies are sometimes not inclined to seek advice or contributions from EPA on alternatives or options during early planning

Examples of potential government strategic proposals that could be the subject of strategic environmental assessments include: 1 Plans and strategies land use concept plans, structure plans and outline development plans rural and regional planning strategies water resource plans forest management plans selection of industrial land sites

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 development plans for residential or industrial zoned land which was not previously the subject of an assessed scheme regional air quality management plans river protection strategies selection of port locations 2 Programmes 3 road development programmes roadside conservation programmes water source development programmes industrial estate development programmes land re-development programmes

Policies mining or exploration approval policy within a region state planning policies

The wording of the EP Act in regard strategic environmental assessments (section 39B(4)) is perceived by some as introducing substantial uncertainty as to whether subsequent proposals will be declared derived proposals by the EPA thereby reducing the benefits of referring strategic proposals to the EPA for assessment.

9.4

RECOMMENDATIONS

It is recommended that: 9.4.1 The EPA should explore with proponents, government agencies and responsible authorities opportunities for increasing the use of two-stage assessments initial non-binding strategic assessment (eg under Section 16(e)) followed by the binding assessment (under Part IV). The EPA should identify mechanisms for increasing stakeholder confidence in the strategic environmental assessment provisions in the EP Act, including legislative amendment. Strategic environmental assessment should be encouraged in the following matters to enable streamlining of downstream proposals: options, environmental criteria or proposed environmental investigations being considered in the process of formulating a proposal. Non-binding advice under Section 16(e) may be provided in this instance structure and outline development plans if these are not captured by Section 48A or Section 38 of the EP Act. The EPA should consider amending Section 48A of the EP Act to enable the referral of structure plans, outline development plans and corridor plans or amendments schemes - as is currently the case development plans, policies or programmes for land that has already been zoned urban or industrial but was not referred to the EPA (termed pre-1996 zoned land) by

9.4.2 9.4.3

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planning authorities unless they are considered to be State Planning Policies which are subject to Section 48A other plans, policies and programmes of Government agencies (eg policies for the approval of exploration proposals, water allocation plans, planning strategies) with environmental implications development plans for a particular class of proposals prepared by private proponents (eg mines within a region) early planning or design stages of individual projects

9.4.4

The EPA should develop the following mechanisms to ensure the referral of strategic proposals to the EPA in appropriate circumstances: MOUs with individual agencies and responsible authorities individual agreements with proponents of major complex proposals which would benefit from a two stage assessment process or multi-site proposals of a similar kind

9.4.5

The strategic environmental assessment process should be conducted consistent with the following principles: relevant government agencies and proponents should be responsible for and capable of deciding whether strategic proposals or projects should be referred to the EPA and conducting the necessary investigations and project management to support a strategic environmental assessment environmental considerations should be integrated early in the development of strategic proposals or projects when environmental criteria, alternatives or options are being considered the EPAs strategic environmental assessment process should integrate with other strategic processes across government where appropriate, recognising public consultation should not be compromised as a result the EPAs strategic environmental assessment process should be transparent and open with stakeholder involvement as required sufficient information should be collected by the responsible government authorities to support the strategic environmental assessment process the responsible authority should be responsible for tracking and auditing the environmental effects of the implementation of strategic proposals

9.4.6

The EPA should provide detailed guidelines/toolkits to assist responsible authorities to determine whether a strategic assessment of a proposal would be appropriate and beneficial, and to provide guidelines on the strategic assessment process.

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10.1

Management and resourcing the EPAs workload

BACKGROUND

In 2007, the EPA commissioned an independent review of the provision of services to the EPA by the Environmental Impact Assessment and Strategic Policy Divisions of the Department of Environment and Conservation (DEC). This review was triggered by concerns of the previous Chairman of the

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EPA about the EPAs ongoing capacity to deliver an appropriate response to the growing complexity, scale and volume of environmental impact assessments submitted to the EPA. Additional resources (18 FTEs) were subsequently allocated over a two year period to the EPA Services Unit and other sections within the DEC to support the environmental impact assessment function of the EPA. The resources boom, and following on, the land development surge, put additional pressure on the EPA assessment resources. More recently, the changes in the global financial crisis is expected to reduce those pressures in the short term, although it is difficult to predict to what extent.

10.2

ISSUES

Mining and petroleum industry organisations considered that resourcing of the environmental impact assessment function of EPA was the most important issue for the EIA Review to examine. The securing of funding for EPA resources over both the short term and long term is critical to ensure that the EPA can manage its workload.

10.3

FINDINGS

A review of EPAs predicted workload over the next two years was conducted during the EIA Review which found that is likely to be a substantial shortfall of resources if the current project management and business systems and internal work practices within the EPA Services Unit continue to be employed. The estimates of future workload were based on a number of assumptions including best judgement of the resources required to process assessments and the anticipated future assessment workload. These assumptions were based upon a desktop review of current information and interviews with experienced senior staff. The review examined the operations and systems in the EPA Services Unit and confirmed that there was a significant workload and a significant backlog of assessment work. In particular, the review found that: 50% of proposals being formally assessed are considered delayed 34% of proposals being formally assessed were referred to the EPA prior to 2006, 46% prior to 2007 10% of proposals should be considered for termination 12% of proposals are on hold by the proponent There is a significant workload in the consideration of referrals and in the request for further information prior to setting level of assessment There is a significant workload associated with appeals on the EPAs Reports There are significant delays on up to 30% of proposals at the scoping phase where two or more iterations of the scoping document are required before approval External factors have contributed significantly to delays in progressing assessments, in particular poor quality proponent documentation. The review focused on the internal causes of delays and found these to be complex, falling into three key areas: process and procedural deficiencies

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staff management (including culture) issues reporting on the progress of assessments

The EPA itself does not have direct management control of its resources and business systems but is accountable for the quality and timeliness of assessments as well as the quality of service provided. This disparity may have contributed to some of the concerns expressed by stakeholders. Resourcing of the EPA to ensure it can manage its workload was considered by the EIA Review and the following options identified: 10.3.1 1. 2. Management options Productivity improvements through change in culture and better project management, business systems, work practices and operating procedures Use of external specialists to assist with some assessments (eg environmental management plans and Section 45C assessments). Funding options 1. 2. Greater CRF contribution. Targeted co-investment by industry organisations and Government to manage short term workloads.

10.3.2

Table 1 provides an evaluation of the above options. Table 1 Options to address EIA Division workload
Option Management options Productivity improvements through change in culture, better project management, business systems and work practices and procedures Independent of proponent Low cost Potential for significant improvements in the medium to long term No cost to proponents External specialists to assist the EPA Service Unit to conduct some assessments (EMPs and s.45Cs) Can have an effect on addressing workload in the short term depending on accreditation requirements No increase in funding to EPA required if cost is met by proponent. Funding options Greater CRF funding Independent of proponents No cost to proponents Justification of resource increase will be difficult without productivity improvements May not be permanent Short term targeted co-investment by Government and industry organisations Independent of proponents and not related to any individual assessment. Full funding of resource for workload Fees can be allocated back to the EPA May assist in short-term CRF allocation may be reduced by amount gained through fees Expectation by proponents of more timely service Cost to proponent organisations Potential for independence of the process to be compromised without proper governance Potential for independence of the process to be compromised without proper governance Cost to proponents Quality control by EPA will be necessary Some additional investment required Unlikely to have a major impact in the short term Pro Con

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10.4

RECOMMENDATIONS

It is recommended that: 10.4.1 10.4.2 10.4.3 Productivity improvements which address project management, business systems and work practices and procedures in the EPA Service Unit should be pursued. Consideration should be given to co-investment by Government and industry to assist in managing the short to medium term workload problem Consideration should be given to the EPA being provided management control of its resources and business in line with its statutory assessment responsibilities.

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11.1

Further work required and implementation of EIA reforms

FURTHER WORK

There are a number of areas identified through the EIA Review that require further investigation and will be important in the achievement of the reforms. These areas are: 11.1.1 11.1.2 Agreements (MOUs) between the EPA and the Departments of Mines and Petroleum, Planning and Infrastructure, and Health. Development of an effective project management system that will enable the tracking and management of proposals through the assessment process by the EPA, proponent and community. Establishment of common-user or private/public partnerships for spatial environmental data acquisition, management and systems. Resourcing of non government organisations to participate in the risk-based assessment process. Without additional resources, there would be an increased likelihood of appeals, conflict at later stages of the assessment process and reduced acceptance of environmental decisions. The Conservation Council of WA (CCWA) has estimated its additional resource needs: one full time officer (including on-costs and overheads) access to external independent expertise on a project by project basis

11.1.3 11.1.4

11.2
11.2.1

IMPLEMENTATION PROGRAMME FOR EIA REFORMS

Stakeholder consultation

It is recommended that: 11.2.1.1 The SRG should be retained and become the main mechanism for consultation on implementation with key stakeholder groups, perhaps with an expanded brief that goes beyond reform implementation. Working groups on specific matters composed of SRG members should be formed as required.

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11.2.1.2

The role of the SRG during implementation should be: providing comments on draft policies, guidelines and Administrative Procedures being kept aware of the progress of implementation and advising member organisations of this progress promoting awareness of reforms, changes to processes and procedures and policy settings and progress of implementation within member organisations feedback on success of reforms and recommendations for future improvements discussion of any issues requiring further consideration

11.2.2

Roll-out of EIA Review outcomes and implementation

It is recommended that: 11.2.2.1 A comprehensive plan that details actions, priorities, responsibilities, timelines and performance reporting should be developed for the implementation of the EIA Review outcomes. The plan should include: An ongoing consultation programme on the EIA Review outcomes, and more generally EIA policies, procedures and guidelines. The consultation programme should include a series of seminars across the State, opportunistic presentations by EPA members and senior officers, circulation of revised documents, and an extensive web page A training programme for officers working in the EIA Division, other relevant parts of the DEC, and relevant government agencies on the application of the EIA reforms An updated internal work procedures manual.

11.3

MANAGEMENT AND RESOURCES FOR IMPLEMENTATION OF REFORMS

The implementation of the EIA Review will require a dedicated implementation team until December 2009 to coordinate implementation, manage inquiries, oversee consultation and overview the preparation of documentation. The development of project and business management systems is required to address longer term improvements in effectiveness and efficiency. There are a number of assessment policies and guidelines and administrative procedures and guidelines that will need to be prepared or amended to reflect the reforms and support the Administrative Procedures. In some instances, it will be necessary to prepare Environmental Protection Bulletins (information sheets) to inform stakeholders on matters while more detailed policies and guidelines are being prepared. EPA position and guidance statements will require recasting into the new policy framework. A programme is being prepared and implemented for the revision and recasting of these documents. The intention is for all policies and guidelines to be provided to the SRG for comment and subsequently subject to a public comment period before being finalised. Recommendations To meet the timeframe for implementation the following is proposed:

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11.3.1 11.3.2

An EIA Review implementation team is appointed and adequately resourced. The Strategic Policy Division continues to assist the EPA with the development of priority EIA policies and prepares a timetable for the review of all current position and guidance statements. Resources are made available for the development of assessment policies, bulletins and procedures, and to assist with the upgrading of existing position and guidance statements in line with the new framework and contemporary environmental practice.

11.3.3

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Appendix 1

Report on Stakeholder Forum 9 April 2008

April 2008

REPORT ON STAKEHOLDERS FORUM WEDNESDAY 9 APRIL 2008

EPA EIA Processes Review

Submitted to: Environmental Protection Authority of WA The Atrium 168 St Georges Terrace PERTH WA 6000

REPORT
Project Number: 087643174 001 R Rev0 1 Copy Environmental Protection Authority of WA (electronic) 1 Copy Golder Associates

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BACKGROUND
The Environmental Protection Authority (EPA) of Western Australia is undertaking a review of the environmental impact assessment (EIA) process with a view to improving the efficiency of the system, eliminating duplication and ensuring better use of EPA resources. The review was announced by State Environment Minister David Templeman on 27 February 2008 and has a four-month timeline to identify issues and consider solutions. The EPA established a reference group with representatives from stakeholder groups to provide input and advice to EPA Chairman Dr Paul Vogel, who heads the review. The EPA invited a group of more than 120 stakeholders to a forum held on April 9, 2008 in the Boundary Room at the Western Australian Cricket Association ground, to provide direct input to the review process. The EPA engaged Golder Associates for forum process design and facilitation. This report is a record of the information presented at that forum, the discussions that took place and the ideas and suggestions for solutions that emerged. Stakeholders can contribute further to the review via a form available at the EPAs website at www.epa..wa..gov.au.

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TABLE OF CONTENTS SECTION 1.0 2.0 3.0 PAGE

INTRODUCTION.................................................................................. 1 INQUIRE .............................................................................................. 1 ANALYSE............................................................................................. 3

3.1 3.2 Results from Worksheet 1 ................................................................... 3 Panel Discussion ................................................................................. 6 Table Discussion on Suggested Solutions (Worksheet 2)................... 9

4.0 5.0

DECIDE (ACTIONS) ............................................................................ 8

4.1

CONCLUSION ....................................................................................11

LIST OF TABLES
Table 1: Summary of Results from Worksheet 1 ..................................................................... 4 Table 2: Summary of Results from Worksheet 2 ..................................................................... 9

LIST OF APPENDICES
Appendix A Appendix B Appendix C Environmental Impact Assessment Process Review Forum presentation by Paul McLeod, Golder Associates Approvals in Western Australia presentation by Gavin Price, BHP Billiton The Environmental Approvals Process (i) presentation and (ii) speaking notes by Debra Goostrey, Urban Development Institute of Western Australia A Voice for the Environment, Environmental Impact Assessment Review presentation by Chris Tallentire, Conservation Council of Western Australia Worksheets (Table Responses)

Appendix D Appendix E

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1.0

INTRODUCTION

The Environmental Protection Authority (EPA) invited stakeholders to a four-hour morning forum held at the Western Australian Cricket Association grounds Boundary Room on Wednesday April 9, 2008. The forum was part of an EPA-led review of the Environmental Impact Assessment (EIA) process in Western Australia. Participants were allocated table numbers to promote diversity of perspectives represented at each table. The bigger proportion of attendees represented industry and development. A smaller proportion represented conservation and community groups. The forum was facilitated by Golder Associates Leader Social Strategy, Paul McLeod, and was structured according to a three-step process consisting of Inquire, Analyse and Decide (actions). This structure also forms the basis for this report.

2.0

INQUIRE

During the inquiry stage, stakeholders were presented with a spread of information from a variety of sources. This ensured all participants entered into the subsequent stages of analysis and decision making with an equitable command of knowledge on the associated issues, and a sound understanding of other perspectives. The inquiry stage consisted of a series of presentations by invited speakers representing industry, developers and conservation. A summary of each speakers presentation is contained here and the PowerPoint presentations and speaker notes are included in the Appendices B, C and D. Gavin Price BHP Billiton Gavins presentation (Appendix B) represented the perspectives of the Chamber of Minerals and Energy (CME) and the Australian Petroleum Production and Exploration Association (APPEA). He said industry had moved past the point of telling war stories about their problems with environmental assessment. They were now interested in finding solutions to issues of timeliness, governance and resourcing. Gavin said industry was looking for reforms in the following areas; strategic regional planning, a risk-based scoping process, assessment and condition setting linked to a risk-based profile, outcomes based conditions, a review of timelines, improved governance and innovative resourcing. He referred to the stop the clock provision in the legislation and said it was problematic for proponents who had to deal with the introduction of delays at any time. He also stressed that industry did not consider the government solely responsible for resolving all the issues. Industry was prepared to take an active and constructive role in improving their own practices and contributing to the improvement of the system overall.

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There was a broad range of performance levels among companies and Gavin said it was important to raise the level of the lowest common denominator. One of the key areas for improvement by proponents was in the quality and timeliness of submissions. Debra Goostrey Urban Development Institute of Western Australia Debra began her presentation (Appendix C) with a slide showing the page 3 news report from that mornings The West Australian. The article blamed land developers for overpriced housing blocks. She said the report was an indication of the level of public scrutiny faced by developers. Debra indicated that much of the information for her presentation came from the results of a major review conducted by the Urban Development Institute of Australia (UDIA) in 2005/2006. One of the key impressions gained from the review was that developers were concerned to remove emotive language from the discussions. There was encouragement for a new emphasis on a collegiate approach with both government and community stakeholders. The earlier review highlighted a range of areas for improvement. These included recommendations regarding the need for a strategic approach to assessment, the removal of complexity and duplication from the process, legislative changes, clear guidelines regarding wetlands, better definitions for threatened ecological communities, a consistent approach to acid sulfate soils and improvements in culture and resources for the agencies dealing with assessments. Full details of UDIAs recommendations for the EIA process are contained in Debras presentation in the Appendix C. Chris Tallentire Conservation Council Western Australia Chris began his presentation (Appendix D) by stating that there was a need for proponents to do their homework before going into the EIA process. He said the cases where proponents claimed to have difficulty with the assessment process could often be explained by their level of preparation for the task. Chris said EPA services were facing an unprecedented workload and, while there was room for improvement, it was important to retain many good aspects of the assessment process. Overriding that, he said it was important to maintain a high level of community engagement, which had helped to improve projects in the past. Things the conservation movement wanted to see retained included; stop the clock, referral rights, scoping, appeal rights, submission opportunities and appeals on bulletins. Chris said the emphasis needed to remain on the assessment part of the process, rather than thinking of it as an approvals process. In that case, industry and the community would have to accept that some projects will not get through the system.

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Among the areas for additions and improvements, Chris said a fee for service could be considered to help resource the EPA to handle assessments. He emphasised the need for resources for community engagement and encouraged the introduction of a quick no to prevent the waste of time and resources assessing projects that were unlikely to be environmentally acceptable. He also stressed the need for more strategic environmental planning at the regional level. Chris emphasised that conservation groups would be unhappy about changes to process and legislation that were geared toward catering for the economic boom. He said the overriding principles of protecting the environment had to remain at the forefront of EIA processes.

3.0

ANALYSE

During the analysis stage, participants were given the task of processing the information they heard from the presenters in a table discussion. They were invited to identify the key issues and their consequences but refrain from forming new solutions until the final stage of the process. They were aided by a two-page issues summary sheet that was the facilitators attempt to identify common themes from the three presentations. It identified the following themes: 3.1 more strategic approach to assessment; timing; complexity and duplication of process; legislation; and resources and culture at DEC and EPA. Results from Worksheet 1

The following table provides a summary of the common responses and recurring ideas that came through on the worksheets. A full record of the material recorded by each table is contained in Appendix E.

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Table 1: Summary of Results from Worksheet 1

Themes More strategic approach to assessment Summary of points discussed

Needs government direction on which approach to take. One-stop shop preferred. Need more Kimberley action-25 year plans but allow for new knowledge. Strategic planning should be sustainable and linked to EIA considering social, economic and indigenous employment issues. Perhaps assessment should be done by independent lead agency not EPA. Who does cumulative assessments government or proponents? More transparency on operations e.g. Cockburn Sound Management Council. Statewide biodiversity mapping. Needs to be true strategic process, not create further duplication. Strategic approach to regions or strategic approach to projects? Consider sector-specific approach mining, forestry, fishing, etc. Upfront risk-based assessment serviced by independent technical advisory group funded by the proponent. Need for new approach to assessment to facilitate dredging and port development. Certainty of timing to build into project timetable, with standards for each step. One pass approach. Not EPA service units job to do proponents work. Boom is not the only reason for review timing needs to be reasonable and align environmental decisions with funding decisions. Scoping process is too long and of less benefit lags behind the survey work in most cases. Key issue is ministerial/appeals process with no timelines. Regulator needs to resist temptation to save comments to the end of process. Greater rigour needed around stop the clock process to know when clock has restarted. Local government and EPA. Reassessment post EPA process e.g. through Part V of the Environmental Protection Act 1986 and the Department of Industry and Resources. Part IVand Part V of the Environmental Protection Act 1986. New assessment process for Part V cumbersome. Cross agency cooperation needed especially Department of Environment and Conservation and Department of Water. Several licenses and decision making authorities for each project; approval stage, compliance stage. Identify significant issues and remove matters that can be dealt with by other agencies. Linkage needed between various approvals processes in government. Memoranda of Understanding currently applied with little transparency and lack of consultation with proponent. Lack of clarity in interaction between State and Commonwealth assessment processes.

Timing

Complexity and duplication of process

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Legislation

Lack of consistency/interpretation of what needs to be referred (interaction between the Environmental Management Branch and Environmental Regulation Division). Early identification of government stakeholders with clear MOUs or bilateral agreements. Proposals need to be better quality. Need for internal review. Draft conditions/discussion with government-public comment. S45C and S46 are empowering. Need to look at a streamlined process for simple changes. Ambiguity around implementation decisions, who decides? Cabinet? Fix appeal to decision maker. Need to be able to add significant issues at late stage of EIA. Useful to review how section of Act works (e.g. S46 Appeals or schemes). Legislation needs to have compensation provisions in Environmental Protection Act 1986. EP Act is not broken, reform should focus more on process. Fee for service/user pays on scalable rate. Need to ensure it is not buying approval. User pays adequate government funding. Case managers could be funded. Mentoring and development of staff needs attention. Lack of consistency in EPA advice and conditions, also happens with individual Department of Environment and Conservation offices. Preference for dealing with consultants. Reluctance to look at other jurisdiction/science. Ongoing risk not accepted. Culture not fair incredible detail required, response raised where there is controversy, bogged down in process. High turnover, lack of corporate knowledge, lost more than 6 senior EIA staff last year. Retention bonus needs to be looked at for government employees. Lack of experience/training. Resources could extend to non-government organisations and community groups. Desire for one point of contact. Compliance not being addressed post-approval. Risk based approach need to define methodology upfront. Quality of industry submissions do homework upfront Delegations and MOU-relationships with other agencies (e.g. DEC and DOIR). Trust and communication is essential. Conditions are a big issue, obligations and clearance process is not clean. Must be legally enforceable or are useless. Assessment under the Commonwealths Environmental Protection and Biodiversity Conservation Act bilateral places burden on EPA. Need more Minister or

Resources and culture at DEC and EPA

Other issues

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Appeals timing and natural justice of process. Appeals are a problem. We should be working towards a system where appeals are the exception, but must remain as a last resort. Improve scoping streamline to focus on issues. Offsets. Office of development Approvals Coordination is missed opportunity not effective in getting all issues on table at beginning. Role of Office of development Approvals Coordination (what role?). Process maps what next? Resourcing community groups. Poor guidance information on EPA website incumbent on EPA and DEC to make sure proponents understand EIA process. Appeals process needs to be reviewed. Increase use of expert panel. Reconsider when consultation process occurs maybe it should be at the beginning? Encourage proponents to engage with stakeholders earlier. Collation of disparate environmental data into one public database (for use by Government and consultants) is needed. Should ports be considered differently to the rest of the coast, given their strategic economic importance to the State?

3.2

Panel Discussion

A panel discussion was held after the groups had completed their table discussions. The three presenters formed a panel of experts and were prepared to answer any questions arising from the table discussions. The panel was asked to consider the issue of environmental offsets. How do they fit into the strategic review process and can they continue ad infinitum? Chris Tallentire answered that he would prefer to deal with the question in two parts strategic review and then the offset issue. In the case of the Kimberley, where there has been a search for the ideal place to create a hub for industry, he said the strategic review process had allowed for consideration of a lot of different issues. Can we even have development in the Kimberley? How do we get the best results for indigenous people? The strategic review approach was a lot better than ad hoc decision making that goes with dealing with individual development as it comes along. In the case of offsets, Chris said a register of offsets was definitely needed. In this case, he said he was referring to biodiversity offsets not greenhouse offsets. He said there were companies who had made great commitments but were not recognised for their efforts. Other companies were involved in double-dipping several people saying they were responsible for

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the same work. This undermined community confidence in offsets and could only be dealt with through a proper register. Debra Goostrey said the issue of sustainability had to be considered when talking about offsets. There were about 800 people a week moving to WA and all those people needed to be housed. We should consider economic, social and environmental issues. She agreed a register of offsets was needed so that there was more transparency in the process. Gavin Price said we needed to be mindful that there was a mechanism for what offsets were available and how they could apply to projects. The panel was asked about the issue of stop the clock and whether it should be removed from the process? Suggestion was that stop the clock could be removed on the understanding that if any new environmental information came forward, the proponent would have to start back at the beginning of the approvals process. Chris Tallentire said the importance of stop the clock was that it made sure projects were of the utmost quality. Projects should reach the EPA prepared, researched and properly developed. Stop the clock was a very important safety valve. Debra Goostrey said she wanted to see stop the clock gain process. She said it did come back to the question of quality, but developers needed to know what was required of them. Everyone needed to know what the standard was. Belinda Barstow, from the Chamber of Minerals and Energy, asked the panel to define what they regarded as a risk based approach to assessment. She said there seemed to be different ideas according to the industry/discipline carrying out the assessment. Debra Goostrey said risk was all about consequences; how big is the potential disaster and how likely is it to occur. It is about understanding all that is contained within a site and all the issues that could arise outside the boundary of the property. These have different consequences. She said most developers were very conscious of what was on their land. Gavin Price said a risk based mechanism was fundamental to decision-making. What the mining industry needed to get its head around was the different levels of understanding of risk and that is based on perception. He said there could be some improvement both ways. He did not think there would be a right answer but suggested a mechanism that enabled people to list issues based on priority some of that would be based on perception but that was also reality. Ms Barstow said she was asking the question to highlight the problems with the term and differences in the way people understood it to work. Graham Cobby, Director of the Environment Division for the Department of Industry and Resources, said a model for risk based legislation could be found in the Commonwealth

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Petroleum (Submerged Lands) Act. The legislation had also been reviewed and could be found in the Commonwealth PSL (Management of Environment) Regs 1999. The panel was asked to comment further on the idea of a strategic approach to planning. Suggestion that there needed to be agreement on one strategic approach to get clarity otherwise there was a lot of different processes going on and not a lot of consensus. Chris Tallentire said the strategic approach in the Kimberley was still a good example of one that seemed to work. He agreed there had to be an agreed approach and said timelines were also important. Debra Goostrey said the WA Planning Commission was doing this type of work when considering development for regions. Gavin Price said the strategic review process mechanism had not been well-tried. He said it needed to be productive enough for people to want to take part in it. He said he thought people (industry) were a bit reluctant to enter into it. Lee McIntosh, of Mallesons Lawyers, raised the issue of fee for service. She said there had been discussion about whether it could work as a way of improving resourcing for the EPA. People at her table had been concerned the fee could not be considered a fee for an outcome, but if it improved the ability of the agency to attend to the assessment process, it could be a good thing. Chris Tallentire said it should be considered if it could give the agency the resources it needs and deserves. He had concerns about how Treasury would see the fee and there would need to be provisions to make sure the money did go back to the EPA and was proportionate to the volume of work going on. Debra Goostrey said she suspected it would be accepted by industry as long as it led to greater efficiencies. Gavin Price said caution needed to be applied to any fee structure so that it is not see by parties to be a fee for an outcome. He said he thought industry would support an outcome that delivered efficiencies.

4.0

DECIDE (ACTIONS)

During this final stage of the workshop, participants were asked to get creative and think of some of their own solutions to the issues discussed through the inquiry and analysis stages. The second worksheet asked for ideas and specific actions to affect change. Participants were also asked what steps would be required to bring about the change, who should take the lead role and what target deadlines should apply.

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Table Discussion on Suggested Solutions (Worksheet 2)

The following table provides a summary of the common responses and recurring ideas that were supplied on Worksheet 2. A full record of the material recorded by each table is contained in Appendix E. Table 2: Summary of Results from Worksheet 2
Solutions Resources/ culture

Improve recruitment advertising. Improve salaries conditions, flexibility. Documentation required for applying for government positions too onerous look at streamlining. Consider overseas recruitment. Fee for service, needs careful consideration. Allocate resources to cumulative/significant projects rather than simple projects. Fee needs to be dedicated to DEC for EIA staff, retention, professional development. Need to encourage and retain experienced staff, plus mechanism for accessing expert advice (e.g. consultancies). Need one officer to coordinate but with round table meetings up front to get input from key technical experts. Industry willing to provide funding. Retention policies including promotion of women Training not just training in technical areas, but how to be a government officer/customer service. Appoint an independent academic think-tank. Money should be supplied for community engagement. Ministerial taskforce could be established to drive strategic planning. A State Development Agency to develop strategic plans. A one-stop shop to direct traffic possibly regional. Initial scoping to include risk assessment public review of risk assessment then go back to proponent with items for assessment. Establish formal screening process for documents before they enter EIA process. Is the documentation up to scratch? Develop best and worst practice models. Work with industry/proponents to improve their standards. Develop EIA triage system different levels of assessment. Suggested independent review team of experts to screen assessment document. Funded through fees collected from proponents. If we get risk based system right, do we need the current levels of assessment? Maybe we remove these levels and replace with risk based system. Establish office of coordinator general who coordinates all approvals. Case management offices located in regions. Methodology: DOIR/DEC lead taskforce to establish regional based strategic assessments. Define what a risk-based process should contain, do not prescribe each

Strategic planning

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component but focus on key components and environmental outcome.

Timing

Specified minimum standard (set high) where proposals that meet the standard will not need assessment. Non-statutory timeframes disclosed on department websites, reporting against timeframes. Timeframes need to be short as applicable. Strict timeframes to project manage assessment process. Stop the clock should be retained, but refined. Need to filter projects not up to standard. Important to bolster community trust in government departments. Ensure all agencies use the same nomenclature for projects/proposals. Compliance introduce a public register for proponents who have not met conditions. Conditions need to be demonstrated and auditable so proponent can show compliance. Draft conditions proponents to propose conditions they can live with. Move appeals process to State Administrative Tribunal. Initiate regular review of MOUs. Possible EP Act amendment to follow information from proponent to be available on a central database. Retain current set up of move to judicially-based appeals process (SAT). Current review of SAT legislation in upper house. Legislative change to S48A referrals. Risk based approach needs to continue throughout system (i.e. remove trivial matters and regulatory burden). Geographic Information Systems database of existing data for previous projects. Target priority policies for review and review through joint working groups greenhouse, wetlands. Early facilitated stakeholder issues identification use an experienced facilitator and involve all stakeholders. Allow proponents to include this process in their referral forms. Need to consider resourcing of community groups. Ministerial conditions need to be audited regularly. Create a public portal of environmental data. DEC needs more money and greater focus on licensing, monitoring and auditing.

Complexity/ duplication

Legislation

Other issues

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5.0

CONCLUSION

The forum proved an effective and efficient way to consult with a broad base of stakeholders about issues they considered significant to the EIA Processes Review. The reference group advising the review now has a clear understanding of the scope of issues concerning the EPAs stakeholders and a range of ideas on how to address those concerns. Key themes to arise from the discussions identified strategic planning, timeframes, resourcing and duplication as major areas for improvement. Some of the plans for addressing those areas included the introduction of regionally-based strategic planning, qualified endorsement for a fee for assessment, ideas for recruitment and retention of staff, better monitoring of compliance and a public database of environmental information. Many of the stakeholders participating in the EPAs forum will make their own submission for consideration in the review. For those that do not, the forum has given them an opportunity to workshop and discuss their observations and concerns with a group of colleagues, some like-minded and others from traditional points of adversary. It is hoped that the style and structure of the forum allowed each point of view to be heard and that a catalogue of all themes and ideas can now be used to inform the final report. GOLDER ASSOCIATES PTY LTD

Paul McLeod Leader Social Strategy

Charlie Wilson-Clark Community Relations Adviser

\\Golderwa1\Jobs\Jobs408\Environ\087643174 - Epa Eia Process Review Report\Report\087643174 001 R Revo Epa Eia Processes Review Forum Report Final.Doc

Golder Associates

APPENDIX A ENVIRONMENTAL IMPACT ASSESSMENT PROCESS REVIEW FORUM PRESENTATION BY PAUL MCLEOD, GOLDER ASSOCIATES

Golder Associates

Introduction
Social Strategy at Golder Associates Facilitation, Social Risk Analysis, Risk Communication, Public Participation
Environmental Impact Assessment Process Review Forum

88 - 08 Youth Worker, PR/Corporate Comms, DEP/DOE/EPA, Consultant

Golder

Golder

Process for the morning

8.50am - 9.20am Presentations

Agenda

Inquiry Deliberation Action

Conservation perspective Chris Tallentire, CCWA Industry perspectiveGavin Price, BHP Billiton Iron Ore Development perspective Debra Goostrey, UDIA

9.20am 9.30am 9.30am 10.15am 10.15am 10.40am 10.40am 11am 11.00am 12.00pm 12.00pm 12.20pm

Summary of issues Table discussion on issues Panel discussion/questions Morning Tea Table discussion on solutions Consolidation Close and way forward Paul Vogel

Golder

Golder

12.20pm 12.30pm

Summary of issues
More strategic approach to assessment

Timing

Complexity and duplication of process

Legislation

Resources and culture at DEC and EPA

Golder

APPENDIX B APPROVALS IN WESTERN AUSTRALIA PRESENTATION BY GAVIN PRICE, BHP BILLITON

Golder Associates

The Chamber of Minerals and Energy of WA & The Australian Petroleum Producing & Exploration Association

Approvals In Western Australia

Presented by Gavin Price Manager Environment & Sustainable Development BHP Billiton Iron Ore
1 10/04/2008

www.cmewa.com

The journey so far

Industry welcomed the Ministers and WA EPA Chairmans announcement to review the EIA process. Joint approvals working group established identifying common ground between CME & APPEA. CME & APPEA looking forward to working collaboratively with government & stakeholders throughout the review process.

Maintain integrity of process Not diminish environmental outcome

2 10/04/2008

www.cmewa.com

Key Reform a strategic framework

Strategic policy framework
Integration of regional planning policy

Risk based scoping process Assessment and condition setting linked to risk profile Outcome based conditions Change Management Process
Regulatory impact assessment process Ministerial appeal mechanism Up front loading risk based Eliminate the open scoping process Mentoring inexperienced Enhanced communication mechanisms across and within agencies

Strategic Framework
(Governance)

= Environmental Outcome

Review of Timelines Improved governance

Scoping & Assessment

Enforceability
(Submission/Appeal)

Innovative resourcing options

10/04/2008

www.cmewa.com

The way forward for CME & APPEA

Actively and constructively participate in the review process Improving our own practices
raise the level of performance of all industry participants.
- adopting international standards of sustainable development.

improve quality and timeliness of submissions demonstrate risk based scoping process environmental outcomes based proposals minimise use of regulators to necessity

Providing solutions
Alternative resourcing options Guidance for service providers

10/04/2008

www.cmewa.com

Over-riding principles

Maintain integrity of process Not diminish environmental outcome

10/04/2008

www.cmewa.com

APPENDIX C THE ENVIRONMENTAL APPROVALS PROCESS PRESENTATION AND SPEAKING NOTES BY DEBRA GOOSTREY, UDIA WA

Golder Associates

THE ENVIRONMENTAL APPROVALS PROCESS

PRESENTATION TO THE EPA ON THE ENVIRONMENTAL IMPACT ASSESSMENT REVIEW

Debra Goostrey CEO, UDIA WA

BACKGROUND TO THE REVIEW

UDIA review addressed the following issues:
The need for a strategic approach to assessment Complexity and duplication of process Legislative Changes Wetlands Threatened Ecological Communities Acid Sulfate Soils Resources and Culture

STRATEGIC APPROACH
ISSUES Timing highlighted by industry as primary issue Issues currently the subject of conditions of subdivision should have been considered and resolved prior to subdivision stage Process required to manage workload generated by all developments being considered by EPA

STRATEGIC APPROACH
RECOMMENDATION Develop formal procedure for referral of major projects to DEC and EPA at outline development plan/ structure planning phase

COMPLEXITY AND DUPLICATION

ISSUES Over-regulation = overly complex approvals system Duplication between agencies = lack of clarity as to which agency is responsible Policy preparation ad hoc and lacks transparency Draft policies implemented as final More than one agency named as clearing authority

COMPLEXITY AND DUPLICATION

RECOMMENDATIONS Minimise draft policies in decision making Introduce procedural guidelines for policy preparation Clarify roles and responsibilities of each agency No more than one agency as clearing authority per condition Appropriately worded conditions to avoid misunderstanding/ conflict

LEGISLATIVE CHANGE
ISSUES

Fundamental issues with Environmental Protection Act (1986)

Out of date Provides wide administrative and Ministerial discretions with little accountability (Section 41.2) Lack of procedural fairness (Parts IV & V)

LEGISLATIVE CHANGE
RECOMMENDATIONS Procedural fairness guidelines should be published Part IV & V Appeals should be transferred to SAT Internal review process/ pathway for internal review of decision by senior members Agreed procedure for handling of informal referrals to EPA

WETLANDS
Issues Primary source of conflict Lack of transparent process or scientifically repeatable criteria for assessment No clear escalation pathway for issues resolution UDIA supports DPI wetland buffer policy through participation on the working group

WETLANDS
RECOMMENDATIONS

Publish procedural guidelines for assessment and decision making procedure relating to wetlands Criteria for determining management categories should be revised Industry forum on wetlands UDIA supports current review of Environmental Protection (Wetlands) Policy

THREATENED ECOLOGICAL COMMUNITIES

ISSUES Process for identification and criteria for classification of vegetation communities as TECs is not clear or transparent Difficult to obtain consensus on what is a TEC Conflict between levels of government in relation to species management

THREATENED ECOLOGICAL COMMUNITIES

RECOMMENDATIONS

Undertake review of scientific criteria for TECs with view to develop standard criteria Prepare guidelines for assessment and decision making process in relation to TECs

RESOURCES AND CULTURE

ISSUES Shortage of qualified and experienced staff High staff turnover Officers need a better understanding of whole development process Need for customer focused and transparent decision making

RESOURCES AND CULTURE

RECOMMENDATIONS Allocation of adequate funding to recruit and retain staff Increase internal focus and resources for staff training and professional development Employ an industry liaison officer within DEC Increase transparent decision making based on policy to promote a greater customer service focus Introduce a case management system

KEY ISSUES
Timing (the earlier the better) Improve transparency and clarity of process and assessment criteria Remove duplication by agencies Improve escalation and appeals process

FINAL UDIA UDIA is the peak body representing the development industry in Western Australia with membership across developers, consultants, State and Local Government agencies as well as Universities. The role of UDIA is to provide leadership for the urban development industry which is facilitated through the various policy committees which include: Sustainability, Urban Water, Infrastructure and Planning. UDIA has a long and collaborative relationship with the State Government, including the Minister for the Environment and the Environmental Protection Authority, and it is this collaborative spirit that we enter into the review of the environmental impact assessment process. BACKGROUND TO THE REVIEW UDIA undertook an extensive review of the environmental approvals process in 2005/2006 with the subsequent final report endorsed by the then Minister for Environment. The outcomes are largely based on the experiences of UDIA members within the environmental approvals process. A steering committee consisting of UDIA and government representatives then worked toward implementing the recommendations of the final report. These recommendations will hopefully inform the current review. The UDIA review covered a number of issues including: o o o o o o o o The need for a strategic approach to assessment Complexity and duplication of process Legislative Changes Wetlands Urban Water Threatened Ecological Communities Acid Sulphate Soils. Staffing, Resources and Culture

STRATEGIC APPROACH TO ASSESSMENT The need for a more strategic approach to the environmental assessment of development projects has been identified by industry as an issue for consideration by the EPA to improve the approvals process. UDIA agrees that the process should move to a risk-based approach, targeting significant environmental issues.

It is concerning to industry members that issues that are currently the subject of conditions of subdivision should have been considered and resolved (at least from a strategic perspective) prior to the subdivision stage of the process. This particularly refers to major issues or show stoppers such as contamination, wetland and water source protection and rare and endangered flora and fauna. A process is required to manage the workload generated by all developments being considered by EPA when less than 2% go on to formal assessment. At present, the Town Planning and Development Act requires all planning proposals to be referred to the EPA for assessment, totalling over 200 with planning origin, or half the total referrals to the EPA, per year. Recommendation Develop a formal procedure for the referral of major development projects to the EPA at outline development plan/structure planning phase of the planning and development process. This would enable consideration and resolution of major/strategic issues early in the development process with detailed design issues considered at subdivision phase. A second recommendation would be to consider a review the relevant sections of Town Planning and Development Act, to allow Responsible Authorities delegated authority as to whether referral is required (for example small lot subdivisions). COMPLEXITY AND DUPLICATION OF PROCES Over-regulation, particularly in regards to conservation, has resulted in an overlycomplex approval system. There is duplication between different agencies, adding to the complexity of the approvals process and leading to a general lack of clarity in regards to which agency is responsible for particular aspects of the process and how different agencies interact. A decision making authority needs to be clearly identified. The nomination of more than one agency (and often multiple agencies) as a clearing authority for an individual condition of subdivision leads to serious delays and problems for proponents where the policy requirements of the agencies differ and are not reconcilable. In relation to urban water issues, the Department of Water should take the lead role in decision-making, particularly where local government is concerned. Requirements for urban water management plans should be set by DoW to ensure consistency between jurisdictions

Policy preparation and implementation is ad hoc and lacks transparency and there appears to be a large number of draft and incomplete policies being implemented as if final. There also appears to be different interpretations in different regional offices due to the decentralised nature of decision making. There is also a lack of understanding regarding the process environmental agencies use to deal with correspondence/referrals from WAPC/DPI in relation to a planning approval. Underpinning the complexity are time delays that add to the cost for the end purchaser in the form of the increased price of subdivided land and unit development. This factor needs to be recognised by EPA as part of the review. A statutory time frame would be extremely helpful as the stop clock approach fails to give certainty to the industry. Recommendation 1. Exclude draft policies from the decision making process until reviewed and finalised. 2. Publish and implement procedural guidelines for policy preparation incorporating process for industry and community consultation and feedback and for the assessment of the social, economic and environmental impacts of all new policies which introduce new requirements into the approval process. 3. Establish administrative arrangements such as Memoranda of Understanding (MOUs) between different agencies involved in the approvals process clarifying the roles and responsibilities of each agency. Specific agencies which industry believes could benefit from this type of arrangement include DEC and EPA, DPI, SRT and the Water Corporation. 4. No more than one agency should be nominated as the clearing authority for an individual condition of subdivision. 5. Agencies should ensure that conditions of approvals are appropriately worded to avoid any potential conflict between the policies of clearing agencies. To achieve this increased emphasis should be placed on communication between different agencies to achieve consensus prior to conditions being placed on an approval. The practice of issuing of draft conditions to applicants should continue.

LEGISLATIVE CHANGE UDIA members have identified a number of fundamental issues associated with the Environmental Protection Act (1986) which industry believes underpin many of the flaws and problems exhibited by the approvals process. There is a deep-seated industry view that the EP Act is out of date and no longer reflects modern community and industry views, culture or aspirations. In this regard industry has expressed concern that the Act provides very wide administrative and Ministerial discretions with very little accountability. This concern relates in part to the statutory injunction provided under Section 41.2 of the EP Act which gives the environmental assessment process precedence over all others. This means that other authorities, including the State Administrative Tribunal, cannot make decisions on other aspects of a proposal until an environmental assessment has been completed, causing unnecessary delays for both proponents and other approval and appeal bodies. Industry concern also relates to both the Part IV and Part V Appeals process which industry members believe lack procedural fairness. Key issues identified by industry members in this regard include: Insufficient/incomplete natural justice/procedural fairness in the approval process due to the lack of a merits based appeals system. Appeals are dealt with through an ad hoc process facilitated by the Appeals Convenor (do not follow principles of natural justice). Lack of transparency and perception of bias in the appeals process (for example: advisors to the Minister are perceived to be too closely associated with the department from which the appeal originated; the office of the Appeals Convenor lacks independence; proponents are often unaware of who another party to an appeal is; and the Appeals Convenor meets with parties privately and separately and there is no ability for all of the parties to understand how the process has operated and what has influenced final decision making). Referrals being treated as correspondence rather than formal referrals (at the discretion of the EPA). Stopping the Clock during the 28 day setting level of assessment (to seek further information), without restart, can allow timelines to extend dramatically.

No process or path through which issues which have reached impasse at officer level can be escalated for internal review within the Department using fair process (industry is currently escalating issues on an ad hoc and case by case basis directly to the Chairman). No procedural fairness guidelines for decision making (meaning that industry members are not aware of the criteria and processes used by officers to make decisions and, as a result, decisions lack transparency). Whilst outside the scope of this review, an overall industry is concerned that the environment remains in balance with other aspects of sustainability. To this end the EPA should be involved as part of the development approvals process rather than a veto agency. Recommendation 1. Procedural fairness guidelines should be published by the Environment Protection Authority in regards to the environmental assessment process. 2. Procedural fairness guidelines should be published by the Appeals Convenor on behalf of the Minister for Environment in relation to the decision making process for appeals. 3. Timeframes for Stop the Clock during the setting of the level of assessment should be developed. 4. Part IV and Part V Appeals should be transferred to the State Administrative Tribunal. 5. An internal review process/pathway should be established for the internal review of decisions by senior members where problems/issues cannot be resolved at officer level (for this to be effective procedural guidelines for assessment and decision making would need to be in place). 6. Develop an agreed procedure for the handling of formal referrals to the EPA. WETLANDS Wetland management appears to be a primary source of conflict between industry and environmental agencies and UDIA therefore believes that priority should be given to resolving these problems by the DEC. However we all agree that wetland conservation is important.

Lack of transparent process or scientifically repeatable criteria for the assessment of development relating to wetlands, and buffers as a result industry does not know how decisions are made and this leads to conflict between applicants and assessment officers. Industry is experiencing out of date criteria, inconsistent and inaccurate advice from officers, time delays in processing and determinations. Feedback is that wetlands classification is carried out by officers who may not have sufficient experience to achieve off-sets or balance issues. There is no procedure or process available to industry to get issues resolved (issues are currently being escalated directly to the senior regulators, which is time and resource consuming). The classification of wetlands needs the appeals rights normally associated with land use planning they should go to SAT. UDIA understands that the DEC has given consideration to the issue of wetland buffers and has advised that the Department considers wetland buffers to be a planning issue and that the current process will be amended to a process whereby DEC will provide advise to WAPC/DPI in regard to wetland buffers however WAPC will be the final decision making body. Industry recognises the value in wetland buffer decisions being made by a planning agency and is currently actively involved in the DPI Wetlands Buffer Working Group. There remains a need to ensure that the advice provided by DEC to DPI Officers is accurate and based on up to date criteria and transparent decision making processes. The Wetlands database on the DEC website is not intuitive and difficult to follow. Further, the Environmental Protection (Swan Coastal Plain Lakes) Policy 1992 is outdated and incorrectly mapped (skewed). The 2000 review failed to be implemented. This Policy creates red tape through the requirement to refer projects to the EPA where the EPP wetland may be no more than a paddock. Wetland conservation is adequately achieved through the management category and buffers definitions, and no additional value is achieved through the policy. . In addition industry retains a fundamental view that the environmental and planning processes should be complementary with due recognition of the reservation and compensation issues that apply: i.e. if a wetland needs to be protected it should be reserved for protection ensuring that the landowner is provided appropriate avenues for compensation, rather than penalty for adding to the State (communitys) conservation estate.

Recommendation 1. Publish updated procedural guidelines for assessment and decision making procedures relating to wetlands. 2. Criteria for determining buffers to wetlands, based on sound scientific and local evidence, should be revised as soon as possible in consultation with industry. 3. Undertake a forum involving industry, the Wetlands Branch and DPI officers to identify issues associated with wetlands management, assessment and approvals with a view to gaining an understanding of the issues facing each group and identifying a consensus view on steps to improve the process in the future. 4. Review of Environmental Protection Policy regarding wetlands to give consideration to industry concerns identified in this report. THREATENED ECOLOGICAL COMMUNITIES Industry has expressed concern that the process for identification and criteria for classification of vegetation communities as TECs is not clear or transparent. It is therefore extremely difficult to obtain consensus in the scientific community as well as between industry and government representatives on what is a TEC, leading to conflict during the approvals process. There is also increasing concern in relation to conflicts between State, Federal and Local Governments in environmental management and assessments. Recommendations 1. Undertake a full, open review of the scientific criteria for TECs with the view to developing an agreed, standard set of criteria. 2. Prepare guidelines for the assessment and decision making process in relation to TECs.

ACID SULFATE SOILS There have been a number of problems for both industry and government relating to Acid sulfate soils (ASS), including: Limited existing knowledge base on ASS in WA and, as a result an overly cautious approach to management being applied by regulatory authorities. Limited education and training about ASS management within both government and industry. Inadequate resources within DEC (industry has recognised that the officers responsible for ASS management within DEC are doing an excellent job within the limited resources available). More recently there have been issues relating to the monitoring regime, in particular the availability of auditors and the scope of the audits required. Recommendation 1. Increase officer and industry training on ASS. 2. Increase resource allocation for ASS within the DEC. RESOURCES AND CULTURE UDIA recognises that, in the current market conditions, there is an extreme shortage of qualified and experienced staff across industry including DEC. The current high staff turnover in DEC is leading to a lack of continuity in case file management and officer attitude is often anti-development and staff do not perceive their role as being to facilitate development (while ensuring the protection of the environment). UDIA is keen to ensure that officers gain a better understanding of the urban development and planning process and there is a need for increased leadership from senior staff members to promote a more customer focused and transparent decision making process. Ideally the industry would like case management of an application by a single staff member. Recommendations 1. Environmental agencies should be allocated with adequate funding to ensure that they are able to recruit and retain appropriately qualified and experienced staff. Increase internal focus and resources available for staff training and

professional development including training on the planning and development process. 2. Employ an Industry Liaison Officer within the Department of Environment and Conservation to act as a troubleshooter or mediator between industry issues and internal decision making (similar to the model currently used by the Water Corporation). 3. Increased on ensuring transparent decision making based on policy and to promote a greater customer service focus within environmental agencies. 4. Instigate regular (annual or half-yearly) forums between industry and environmental agency staff (providing officers with greater understanding of the industry and vice versa). 5. Introduce a case management system where an individual staff member (overseen by their manager or team leader) is responsible for the management of an application from receipt to final decision. CONCLUSION Key take away messages Timing (the earlier the better) Improve transparency and clarity of process and assessment criteria Remove duplication by agencies Improve escalation and appeals process

APPENDIX D A VOICE FOR THE ENVIRONMENT, EIA REVIEW PRESENTATION BY CHRIS TALLENTIRE, CONSERVATION COUNCIL OF WA

Golder Associates

Environmental Protection Act Part IV Review

Vital to integrity of system that it be properly respected as an assessment system, not an approvals process! Recognition that community engagement is one of the great strengths of the system. Many projects have been dramatically improved because of community input. There should be no weakening of community engagement.

Conservation Council of Western Australia

A voice for the environment

EIA Review
Chris Tallentire
chris.tallentire@conservationwa.asn.au www.conservationwa.asn.au

Environmental Protection Act Part IV Review

Retain
Stop the clock Referral rights Scoping Appeal rights Submission opportunities Appeal rights on Bulletins

Environmental Protection Act Part IV Review Additions and improvements

Fee for use of assessment resources Resourcing for community engagement EPA to be involved in choice of consultants Use of Proposal Unlikely to be Environmentally Acceptable legislate to make a quick No Need Strategic Environmental Reviews and industry based regional plans (like the recent Banded Iron Formation Mid West and Yilgarn Review) Misleading nature of Informal Advice Misuse of Environmental Protection Statement and Assessment on Referral Information levels of assessment.

Environmental Protection Act Part IV Review

Changes made to a proposal during EIA process must be part of a public process. Conditions that produce management plans:
a) Need objective based conditions b) Process of public consultation for management plans

Environmental Protection Act Part IV Review

Stop misuse of sections 45c and 46
Theres no equivalent to these sections in the Cwlth process. If significant enough for EPA consideration, then do a new assessment.

Urgent need for reform of section 48A

Its unacceptable that there are no appeal rights on level of assessment. There are no administrative procedures dealing with this section.

Environmental Protection Act Part IV Review

It should be an offense to implement a proposal in any other manner than that indicated through the EIA process. Should be a condition that a proposal will be implemented in accordance with Schedule 1. Dont change legislation and process because of the boom!

APPENDIX E WORKSHEETS (TABLE RESPONSES)

Golder Associates

Worksheet 1: Issues identification Andre Maynard Clayton Utz If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue Full support?

Issue

Full support?

1. More strategic approach to assessment What does strategic assessment mean? -Key environmental outcomes -Assessing multiple use -Project ready industrial land precincts -Common database-assess cumulative impact -Consultation vital component-strategic reviews -Whole of categorical strategic assessment -Identify constraints and potential user=first level. Talk about ___ etc=second level -Look to good model -Triple bottom line assessment

1. Appeals Process -Court or expert panel under minister? -How to increase use of expert panel -Either remove appeals governor for Court (SAT) or retain appeals governor 2.

3. Questions for the panel (10 mins)

2. Timing -No timeframe for minister -Clearly defined timeframe: each section has timeframe which is appealable (e.g. Regulator has 30 days, if not done, automatic referral-appealable). 3. Complexity and duplication of process -How to avoid appeals mechanism? Need for internal review -Draft conditions/discussion with government-public comment -Need for certified auditor scheme for flora/fauna studies for EIS/PER etc. 4. Legislation -Allow minister to consider strategic review in process -Need to firm up judicial process -Internal review then appeal to court -Independent, transparent review process -First place in non-legal review, second is court 5. Resources and culture at DEC and EPA -Ultimate limiting factor -Propose change to assessment approach

Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1.

2.

3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply? 1. Strategic Assessment Approach -Methodology: DOIR/DEC lead taskforce to establish regional based strategic assessments 2. State Register -Possible EP Act amendment to follow information from proponent to be available on a central database -Veracity of data: government issued, proponent issued, consultant 3. Appeals Process -Retain current set up of move to judicially-based appeals process (SAT) -Current review of SAT legislation in upper house -More investigation required as to benefits of this process 4. Timeframes -Strict timeframes to project manage assessment process -Each component of process has a strict timeframe-if project is rejected by government and project must be resubmitted (this process is appealable) 5. Resources -Fee for service structure (based on level of assessment), if project rejected an extra charge applies. -Royalties better utilized?

Notes Registered Environmental Professionals Scheme

Worksheet 1: Issues identification Lee McIntosh-Mallesons If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue Full support?

Issue

Full support?

1.

1. More strategic approach to assessment -Need to have new review if strategic out of date -Macro level strategy-government referred/planned, not fair to let it be forced by proponent (existing process (which would stop adhoc, would allow cumulative) not used) -Fisheries example-fishing management plans made by government 2. Timing Scoping/planning up front helps this, especially in framework of strategic planning 3. Complexity and duplication of process -Case management -MOUs needed, delegation too. 4. Legislation -Not lower the bar on standards/rigour. -Consider SAT for appeals

Need to be able to assess range of options/alternatives so can reduce charges afterwards and do assessment early 2.

Conditions with management plans yet to be approved unacceptable. 3. Outcome conditions needed-certainty Questions for the panel (10 mins) Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1.

5. Resources and culture at DEC and EPA -Case manager could be funded -Fees for assessment could be used to pay for resources---would be prepared to pay some assessment see especially if it would reduce the delay from under resourcing -ERMP-$20, 000 -PER-$10, 000 -Also used to fund community

2.

3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply?

Notes

1. Government to fund strategic planning in areas, proponent own risk if want to develop outside them 2. Need fees for assessment once level assessment set, to be used to resource assessment sliding scale 3. Need to reduce/avoid management plan conditions, use objective conditions 4. Proponents to suggest a range of options, indicative areas so can get approval early in process-adds certainty and removes need for change afterwards

Worksheet 1: Issues identification Table 1 If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue Full support?

Issue 1. More strategic approach to assessment -Are right things being referred to EPA -Government framework for assessment/project context setting -Policy setting important -One stop shop preferred approach -Strategic approach to a series of future projects -Who does cumulative assessments-government or proponents

Full support?

1. -Delegations and MOU-relationships with other agencies (e.g. DEC and DOIR) 2. -Innovative resourcing-improving capacity to audit, assess etc 3. -Trust and communication is essential

2. Timing -Certainty of timing to build into project timetable -EPBC has time limits on parts of process that help progressing assessment -Need timing and delivery for each step -Scale of project and place in assessment process-big gets attention? 3. Complexity and duplication of process -Local government and EPA -Reassessment post EPA e.g. Part v and DOIR -Part iv and Part v EP Act -DEC and DOW

4. -Assessment under EPBC bilateral places burden on EPA. Need more Commonwealth support. 5. -Implementation of proposals (e.g. EMPs, audit) should not be forgotten 6. -Appeals-Timing and natural justice of process 7. -Need to better define terms of process 8. -Offsets

4. Legislation S45C and S46 are empowering. Need to look at a streamlined process for simple changes. 5. Resources and culture at DEC and EPA -Fee for service/user pays on scaleable rate -Should not be revenue driven -Mentoring/support to staff/development of staff -Unevenness of approach/requirements of individual DEC offices

9. -ODAC is missed opportunity-not effective in getting all issues on table at beginning Questions for the panel (10 mins) Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1. 2. 3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply? 1. Innovative Resourcing Solutions -Legislative change to S48A referrals -Use standard conditions on standard projects, then use compliance to determine performance -Allocate resources to cumulative/significant projects rather than simple projects -Screening and scoping is too fine-needs to be related to material effect on environment -Industry taking increased lead in community consultation and scoping, rather than EPA/EPASU -Fee for service-certainty of timing of assessment -Peer reviews and expert panels -Case managers appoint for whole assessment -Pre-referral scoping discussions essential 2. Risked Based Assessment Process -Used to producing information on all issues and hence challenge to keep focus on key, agreed issues. Scoping is essential. -Use standards to define environmental objectives to be met as much as possible. -Define what a risk-based process should contain, dont prescribe each component but focus on key components and environmental outcome. -Proponents with a risk-based framework should explain to the EPA what different models can deliver. If comfortable, then allow companies to use their approach. Need basic EPA framework for proponents who dont have one.

Notes

Worksheet 1: Issues identification Table 2 If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue Full support?

Issue 1. More strategic approach to assessment -Whole of government integration plus strategic at project level-risk based -Need more Kimberley action-25 year plan but allow for new knowledge -More transparency on operations e.g. CSMC -Recognise EPA flavour changes/role of judgment 2. Timing -Certainty is key -One pass approach -Not EPASU job to do proponent work 3. Complexity and duplication of process -Several licenses/DMAs for each project -Approval stage -Compliance stage -Environmental complexity to be understood 4. Legislation -Ambiguity around implementation decisions -Who decides? Minister or Cabinet -Fix appeal to decision maker -Open ended timelines -Open ended conditions 5. Resources and culture at DEC and EPA -Resources -Culture not fair -incredible detail -controversy-response to calls -process -Preference for dealing with consultants -Reluctance to look at other jurisdiction/science -Ongoing risk not accepted -CCWA

Full support?

1. -Role of ODAC (what role?) SIAC -Process maps-what next? 2.

X X

-OADC for SMEs?

3.

-Schemes-disjointed decisions on scheme and a project (e.g. WWTP) Questions for the panel (10 mins) Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1.

2.

3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply? PEOPLE STEPS People development internally Workshop with EIA discussion Marry to external stakeholder process LEADER Chair Director/HR DEADLINES 3rd-Ongoing COMMENTS

Notes -Policy-create space intellectually -Responsible agencies develop policy e.g fisheries -Proponent agency for SMEs -DOCEP/DEC coordinate MoU like DOIR -More transparent appeal system -Effectiveness and efficiency clauses in Act? -Mentoring/training/management capacity/culture Director/Christine S This month -Decision making, right place, chain of command at right level, structure -Process improvement-Toyota model Director/Christine S Next month No blame; resourcing; systems; process; quality; managed change -Scaled fees/size/forecast -Leadership by EPA of staff -What would success look like? -Environmental protection at least continued LEADER Director of policy DEADLINES One month COMMENTS Scientists, policy people swap with regulators EPA Three months -People are the solution-what does EPASU need to go from good to great

Urgent feedback about this process POLICY STEPS Separate policy Alternate source of advice from policy Policy on timeframes in administration procedures Quid pro quo is to have minimum quality standards

Paul/Director

This Friday

EPA

Three months

Worksheet 1: Issues identification Table 4 If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)? Issue Full general support?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue 1. Offsets 2. EPS/ARI-Documents similar, but ARI quicker 3. Fee for service 4. Improve scoping---streamlined to focus on key issues 5. Resourcing community groups -Funding/benefits following implementation -Currently done for DIA issues -Tim Nickol funded by DIOR e.g. Desal (Binningup Community) Questions for the panel (10 mins) Full support?

1. More strategic approach to assessment -Strategic sustainable (e.g. social, economic, indigenous employment) -Perhaps taken out of the EPA, DPI etc---independent agency. -E.g. Kimberley (should have been done earlier); Midwest (could have been more comprehensive) and only internal-no industry participation. -Precautionary principle by default. -Work well if driven by lead agency (responsible for conditions) 2. Timing -Standard response times. -Addressing other issues will help timing. -2 scenarios: a-New proposals b-Active proposals (tighter constraints e.g. workforce) 3. Complexity and duplication of process -Duplication of process-part iv, part v, DIA, DOW -DOIR-(EPA---agencies etc EIA) at end back to DOIR -Identify significant issues-remove matters that can be managed by other. Points 3 and 4: Federal and State Legislation? 4. Legislation -Consultary legislation (should not be combatant) -Need to be able to add significant issues at late stage of EIA -Useful to review how section of Act works (e.g. S46 Appeals or schemes) -A lot can be done in process and policy (legislative reform longer term)

Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1.

5. Resources and culture at DEC and EPA -High turnover, lack of corporate knowledge -Lost more than 6 senior EIA staff last year -Private offering retention bonus-needs to be looked at for government employees -If remaining senior staff leave, system could grind to a halt -Need training and mentoring program -EPA needs to focus on important matters-need to prioritise on significant issues (e.g. scheme referrals, bush forever) -Industry offer to fund (central revenue), but may be seen as buying approvals 6. Section 48? Incorporate in S38? Only refer in significant 7. Transparency -Not clear on (level of assessment)

2.

3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply? 1. Compliance/Audit Conditions (especially biodiversity) need to be demonstrated and auditable, to give industry certainty of compliance. (i.e. Proponent can show compliance) 2.Scoping -First cut risk approach, (remove minor/insignificant factors and /or factors that can be managed by other agencies. e.g. DOW part v) -Proponent needs to prioritise (in scoping documents) and identify the key issues (to be addressed in PER). -EPA to review/agree scope 3.Draft Conditions -Proponents to propose conditions (that they can live with) i.e. targets/action level etc for the EPA to consider in the PER document. 4.Resourcing -Need to maintain and retain experienced staff plus mechanism for accessing expert advice (e.g. consultancies) -E.g DOIR attraction and retention bonus -Training of junior staff, career path etc -External input (reference group, ACTEPA etc) 5.Offsets Should only be used for residual impact. Need a proper legal framework to cover offsets

Notes -Risk based needs to continue throughout system (i.e. remove trivial matters and regulatory burden) -No culling of factors at scoping stage, identify which of the identified factors need to be addressed in PER. -Need standards/benchmarks (e.g. criteria for dust on DRF, health monitoring on floristic communities). Difficult/impossible to demonstrate compliance with conditions and audits. -Set outcomes (e.g. SO2 STD), risk---level of certainty that proposal can meet this outcome. If no standards, the proponent should propose criteria in PER. -Do homework (especially biodiversity) upfront. -In OH & S safety case, if an accident/fatality, then liable to prosecution (no conditions upfront).

Worksheet 1: Issues identification Table 5 If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue 1. Appeals -Process needs to be reviewed Full support?

X X

Issue 1. Quality of Industry Submissions Do homework upfront 2. Resourcing -User pays/adequate government funding/retention -Lack of experience, training 3. Proponents to Guide Quality -Consultants work-industry -Groups have a leading role

Full support?

X X X X X X X X

2. -Linkage between EIA and strategic economic and social planning is required. 3. -Linkage between the various approvals process in government Questions for the panel (10 mins) Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1.

4. Strategic Policy Framework -Key-target key policy areas and develop with stakeholders/industry groups/ 5. Scoping Process -Essential but need to be structured, risk based 6. Strategic Project Assessment -Like Midwest bit review and Kimberly review

7. Poor Guidance -Poor guidance information on EPA website -Incumbent on EPA and DEC to make sure stakeholders understand the EIA process 8. Planning Assessments -Deal with show stopped at scheme level, not submission level.

2.

3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply? 1. Make the Goalposts Clearer -GIS database of existing data for previous projects -Target priority policies for review and review through joint working groups-existing policies review-Greenhouse, wetlands. -Need new policies-ASS, mine closure 2. Proponents to Ensure Quality Documents Submitted -Having goalposts clear (#1) will help -Need one officer to coordinate but with round table meetings up front to get in put from key technical experts -Special process for smaller end of town-industry liaison officer? -Need an ODAC for the small end of town. NB-environmental significance is not always proportional to scale of proposal 3. Resourcing Automated IT Systems -Industry happy to provide funding -Retention policies-including promotion of women -Training-not just training in technical areas, but how to be a government officer/customer service. 4. Strategic Approaches -To be used more widely (even if no one wants to do a strategic assessment)

Notes

Worksheet 1: Issues identification Table 6 If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue 1. Risk based approach -Need to define methodology upfront Full support?

Issue 1. More strategic approach to assessment

Full support?

-Statewide Biodiversity Mapping (GIS) -Strategic (S16e) process has not delivered outcome for proposal in the past

2. Scoping document -Might be improved by risk based approach-currently too much detail and too many low priority issues 3. Proportionality LOA needs to be proportional to risk -maybe risk-based approach could change the current one size fits all approach -Implication for Commonwealth bilateral 4. Conditions -Are a big issue, obligations and clearance process is not clean -Must be legally enforceable or are useless

2. Timing -Boom is not the only reason for review-timing needs to be reasonable-align Environmental decisions with funding decisions -Open endedness is the problem, more so than length of time -Scoping process is too long and of less benefit-lags behind the survey work in most cases 3. Complexity and duplication of process -Assessment work is often dragged into scoping phase -MOUs-currently applied with little transparency and lack of consultation with proponent -Guidance-had two camps of thoughts: a) too prescriptive b) need minimum standards -Lack of clarity in interaction between State and Commonwealth assessment processes -Lack of consistency/interpretation of what needs to be referred. (interaction between EMB and ERD) 4. Legislation -Planning Act requires referral of too much-ineffecient 5. Resources and culture at DEC and EPA -Conflict between shortening timing and resources -Community has to have impact.

X X

5. Appeals -Are a problem-we should be working towards a system where appeals are the exception. But must remain as a last resort. Questions for the panel (10 mins) Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1. What is each members interpretation of the risk based approach and what it means? 2. 3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply? 1. Strategic Approach to Assessment -Industry based approach that specified minimum standards that would be acceptable -Proposals that meet standards do not need assessment (e.g. minimum standards (set high) for gold mining. Proposal could meet higher standards or undergo assessment to argue for a lower standard). ADMIN -EPA needs to endorse concept -Peak industry groups identify who would like to enter such a process -Decision on whether it is worthwhile in terms of resources and expected efficiencies 2. Risk based Assessment-Timing -Preliminary risk assessment at referral stage -Challengeable-filters out insignificant risks/issues that cannot be revisited 3. Complexity and Duplication -Initiate regular review of MOUs -Measure effectiveness against: -Number of referral assessed (i.e. high proportion of referrals should be assessed) -MOU trigger points 4. Currently -Planning, environmental has important processes -Hard for proponent and hard for community -Coordinated SEE assessment process -No solution within EIA review 5. Case Management Approach -Single point of contact for environmental issues

Notes

Worksheet 1: Issues identification Table 8 If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue Full support?

1. -Assessment of impact of any proposed regulatory or other changes

Issue Full support? 1. More strategic approach to assessment Conditional -So long as not a second process (need upfront agreement with key environmental issues) -Does SEA introduce duplication of process? -CME in full support, dont want duplicate -Adequate guidance for appropriate decisions -Duplication is an issue, if true strategic good. Needs to be a set process so doesnt change along the way (ground rule shouldnt change) 2. Timing Important -No end point to appeals process -No strong views-adequacy of information does impact timing -For Port Authority input-cant crystal ball whats coming, so need certainty of process to advise proponents. Agree with what said-need certainty (appeals process needs to be more formalized) 3. Complexity and duplication of process Duplication is a big issue-Pl and government can go round and round (more agency level than EPA). -Complexity not assessed, needed approving authority, DMA not identified. Agree, is duplication. -Once have Part iv approval then sometimes new assessment process for Part v. Cumbersome and additional condition -EMPs 4. Legislation -EPA uses draft policies, not accepted by government-jumping the gun. -Trying to develop structure plan for port, but insufficient guidelines from environmental point of view-have been told cant assess-need more clarity re: SEA. -Need clarity and definitions e.g. S16, SEA etc. -Legislation needs to have compensation provisions in EP Act. 5. Resources and culture at DEC and EPA Major Issue -Aware resourcing is an issue -Lack of consistency in EPA advise and conditions (different offices involved). -Lack of upholding after regulatory issues. No EPASU people in regions, only DEC. -Structure of department disengaged. Regulatory office and HO. -Need clarity of timelines, what are the Keating/ODAC timelines? -Need timeline and understanding about what and why clock stop.

2. -Delivery offsets difficult to achieve for proponent and government-cant continue information 3. -Industry liaison and case management offices should be established-would also exist in regions. Questions for the panel (10 mins) Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1. What are you views of offset into the future (marine, land, financial)? 2. Can you foresee an upfront process to involve views of conservative community? 3. How can we achieve a sufficient duration for SEA approvals to encompass proposals though long-term projects?

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply? 1. Strategic Assessment/Complexity and Duplication Establish office of coordinator general who coordinates all approvals STEPS Consider Keating review. Look at old model-examine outcomes based risk management approval LEAD EPA/DEC/DOIR/DPI/DP C etc TARGET/TIMEFRAME Commence and complete October 2008

Notes

2. Recourses -Trial case input approach with existing EPA/DEC framework, to identify advantages and disadvantages -Case management offices located in regional areas. Lots of scoping done in Perth. Quite a few views that there is still a need for that in Perth. STEPS Scoping ER etc to end of process LEAD EPA/DEC TARGET/TIMEFRAME Immediately, with review after each 6-12 months depending on complexity and targets

3. -Review GS e.g. Berthic Primary Producers, acknowledging area set aside for major infrastructure such as ports. -Review practicality of all GSs and PSs 4. -Produce guidelines on stop the clock, when it should be used, when proponents should be advised LEAD: EPASU/DOIR/DEC

Worksheet 1: Issues identification Table 9 If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)? Issue Full support?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue Full support?

1. More strategic approach to assessment Need to be careful about what strategic means. 2 contexts: a) Strategic assessment of region/concepts (e.g. Midwest Iron, Kimberley Hub, Regional assessment) b) Strategic assessment of a project = aimed at providing certainty for process going forward. Revolved more around better scoping/risk assessment 2. Timing -If timing too long at the end (e.g time to settle EMPs after issue of ministerial), we need to adjust and accept that much more work had to happen at front end. -Regulator needs to resist temptation to save comments to the end of process 3. Complexity and duplication of process -Early identification of government stakeholders (DMAs) and bring them into condition setting process early. BUT must have clear coordination (MOUs?) or bilateral agreements. -Better education of DMAs of other approvals process/e.g. DEC vs Petroleum vs Mining). 4. Legislation -Use of 45C useful for industry-introduce public consultation concept for 45C process (equivalent to works application/liaising); Publication of reasons-greater transparency 5. Resources and culture at DEC and EPA -Ensure that decision made/policies at the higher level are communicated down the organizational structure (down to project officer level).

1. Reconsider when consultation process occurs-public/government. Put at the beginning0before submissions? 2.

3. Questions for the panel (10 mins)

Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1.

2.

3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply? 1. Formal screening process for referral documentation before they enter the EIA system object: Is the documentation up to scratch? -work in conjunction with improving industry/consultant standards -develop precedents or examples of best (and worst) practice. -monitor the level of detail in scoping documents: rank significant issues and focus on them. 30 pages vs 200! 2. EIA Triage System 2 Level assessment process? (2 tiered) -major proposals vs low level -get better screening system with other agencies to filter (better MOUs?) -could be done administratively 3. Early Facilitated Stakeholder Issues Identification -query whether should be pre-referral stage OR after the referral (before scoping) -use an experienced facilitator (independent of coy, DMA) Establish panel of accredited facilitators? -involve all stakeholders-government agencies, communities, conservation groups, traditional owners -if you do it before referral, then include it as a box on the referral form (see point 1) -need to consider resourcing of community/conservation groups

Notes Query: When a referral document (PER/ERMP) is submitted following a scoping document that has been approved, does the project officer check the PER against the scoping document? If so, can this be communicated to the proponent? If not, why? Ultimately, the screening/assessment process has to be about delivering CERTAINTY: -certainty of issues to be addressed ; certainty of level of analysis; certainty of timelines.

Worksheet 1: Issues identification Table 11 If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue 1. Full support?

Issue 1.

Full support?

More strategic approach to assessment -Planning/policy improvements required to help decision making (beyond scope of town planning)-overcomes project by project assessment. Question: What is meant by more strategic approach? -Discussion on strategic assessment in EP Act-use more (check for formal flows) -To be used in a way that is appropriate-everyone needs to be informed 2. Timing -Time constraints between proponents and regulatory/advisory agencies are two different things-needs to be reconciled 3. Complexity and duplication of process

-Mistrust of what is delivered in EIA-need to overcome this and develop system to give community confidence in what is delivered 2.

3.

Questions for the panel (10 mins) Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1. Recourses and independence of fee for service

4.

Legislation -Support that the EP Act is not broken-reform should not need to undertake wholesale review: focus more on process. 5. Resources and culture at DEC and EPA -Need to ensure control is not with the proponent because they pay! In relation to fee fore service (i.e. need an independent value) -Peer review to decrease the burden-consider use -Resources could extend to NGOs/community

2.

3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply?

Notes For Solutions points 1 and 2: Caveat-no way of guaranteeing jobs will be diverted to assessment process.

1. Resourcing -Fee for service for more resources, better human resources -HR-organisational structure: attract and maintain staff -Redefine the business model for EPA/EPA SU 2. Mistrust of EIA Objectivity i.e. Confidence that community can have in reports -Two reasons for community to respond (i.e NGOs) -Pool of peer review process -Sharing of data pool, information would assist; would benefit regulatory body -Disclosure and accountability on proponent (e.g Review to find NGOs) 3. Stop the Clock -Be retained, but further defined; need to filter projects not up to standard -May be used to award -More information does not________ 4.Strategic Approach -Should be government led, to be ahead of the development front -Not just in geographic sense, but through policy Proponent costs

Cost for Government If business with money, what do we get; aim for etc

Worksheet 1: Issues identification Table 13 If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue Full support?

Issue 1. More strategic approach to assessment -Important for flagging issues, needs to be expanded a bit beyond veto. -Reactive nature of assessment process

Full support?

1. -EPA process to function well. Key priority areas need strategic planning that has environmental 2. -Encourage proponents to engage with stakeholders/interest groups early on (dont wait for formal consultation process) 3. Questions for the panel (10 mins) Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1.

2. Timing -Greater rigour around the stop the clock process to know when the clock has restarted, which comes down to transparency. 3. Complexity and duplication of process -Argument the process is complex and duplicates

4. Legislation Wider than EPA -General bodies of legislation handling of the planning approvals process creates wider issues which impact the EPA 5. Resources and culture at DEC and EPA -Short staffing is a problem -Adequate resourcing to keep corporate memory and to deliver the projects on time -Meeting with proponents pre-submission to signal issues

2.

3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply? 1. -Supporting the process with more strategic assessment -Funding? State finding for South Coast strategy, ultimately dependent on scale, but it should be addressed by whole of government approach. -The Northern Development Taskforce (NOT) has received strong table support, which has had strong leadership from Cabinet and has succeeded as a result. -Provide some legitimacy to long range plans so that short term consideration. -Deadlines? Apply a similar model for Australia 2. Timing -Review of administrative guidelines around the restarting the clock and creating greater clarity and transparency in the process 3. Information is needed -A State Development Agency that will develop strategic plans. -A champion group for planning of broad strategic plans that has a minister 4. Resources and Culture at DEC and EPA -Appoint an independent academic think tank -An expert panel, like the DAF reform in South Australia, applied to environment

Notes -You shouldnt be looking at EIA process, but at EPA process -Cumulative impact assessment, for example Ningaloo, needs more resourcing -More baseline information required -EPA should have a role trying to provide greater certainty

Worksheet 1: Issues identification Table 15 If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)? Issue 1. Full support? More strategic approach to assessment -Needs Government direction on which approach to take/EPAs role; -Regional/Sub-regional plans; Industrial parks/sustainable industrial areas; -Strategic EIA; -Northern task force (Kimberley); -Question of industry specific/sector approach (forestry, minerals, infrastructure, fisheries -Sustainable assessment. 2. Timing -Need enough time to consider issues and resources to do it (consultants and DEC); -Proper scoping and good environmental report from proponent; -Concurrent other approvals during EIA (Planning, heritage)-with EP Act approval needed

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue Full support?

1. Social surrounds issues? If HIA comes in then EPA doesnt need to do this (including for Aboriginal heritage)-adjust EP Act. 2. Collation of disparate environmental data into one public database (for use by Government and consultants) is needed 3.

x x x

etc.);

x x

-Full Support check box: DIA and Conservation Council -Issue of screening projects by EPA, so that most become informal advice (and no appeals then on level of assessment)-is this due to staffing levels or risk? Questions for the panel (10 mins) Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1. How is the review process going to be implemented?

first.
needs reform Complexity and duplication of process -Advice from other departments than DEC/EPA (Water, DPI)-too many delays; -S.48 for land development: planning/environment works well; -Question of big project consultation: should other approvals be considered at the same time as environmental? Mid sized projects often an issue more; -Greater pressures now due to resource boom; -Specific criteria and standards need greater attention and resources.

3.

Legislation -Not enough time for formal consultation at times; -Need legislation to require concurrent approvals; -S.48 rigor on level of assessment/audit conditions needed: greater attention to major proposals needed Resources and culture at DEC and EPA -Case management approach (need to engage community too?); -Greater resources - DEC/EPA, greater professional development through fees to applicants for EIA?; -Outcome based ministerial statements; -Need money for licensing, monitoring and auditing (in DEC); -Staff shortages currently/high turnover rate. 5.

4.

x x

2.

3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply?

Notes 5. Planning Assessment -Administrative procedures needed for S.48 assessment with interaction between DEC and DPI staff clarified -Need to finalise EPA planning guidance and streamline EPA/WAPC flow chart for assessment where possible -Ministerial conditions need to be audited regularly -Level of assessment and an appeal mechanism should be set for large projects and major plans (not just S.16 advice) -Focus of EPA should be on detailed assessment of region schemes 6. International EPA Advice -Should be careful to consider environmental risks of proposals first, to see if needs to be formally assessed. -EPA should also consider environment (Government) policies, using strategic EIA, more often 7. Environmental Data -Create a public portal to WA environmental data from Government, industry and universities/consultants SOE information as a part of this 8. Specific Criteria and Standards -Improve upon these, especially for wetlands and threatened species/communities 9. Compliance -DEC needs more money and greater focus on licensing, monitoring and auditing

1. Resources and Culture at DEC and EPA -Fee for assessment, dedicated to DEC for EIA staff (and increasing pay levels / professional development); only for EPS or greater level of assessment; money could be also be used for additional resources (e.g. Accredited consultants, Universities, CSIRO etc) -Money for community engagement/assist with their submissions -Fees for assessment of Aboriginal heritage and HIA-dedicated funds/similar purpose -Question of client focus versus impartiality of public servants (and political pressure)this needs greater guidance. 2. Social Surrounds -If HIA comes in: have DOH do this, DIA do Aboriginal heritage, EPA do environmental: drop social surrounds from EP Act 3. Strategic Approach -Strategic Environmental EIA (proponent driven) in EP Act, but not used. -Needs to tie in more with regional planning, especially for large projects -Cumulative (sub regional) impacts need to be considered -Kimberley task force (e.g. What about the Pilbara?) 4. Timing -Process agreed to with EPA by proponent at start; scoping done well-critical factors identified -Alternative options/potential offsets considered early on for large projects (public comment?) -Question of getting timely advice to EPA from departments: these need resources/strong direction to be able to comply in required timeframe.

Worksheet 1: Issues identification (unnumbered table) If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue Full support?

Issue

Support?

1. Organisational Identity

1. More strategic approach to assessment Strategic assessment need to be further scoped and made more flexible to adapt to current situation. Upfront risk-based assessment serviced by independent technical advisory group funded by the proponent. 2. Timing Wrong heading, suggest-More Efficient Process? And Focusing on Appropriate Issues

-DoE has been swallowed into DEC-loss of funding and prioritization -Still have to deal with multiple sections of DEC during EIA process. 2.

-Strong support for regulatory impact assessment -Outcomes based conditions are supported but consideration needs to be given to part v working with part iv -Impact assessment of regulations 3. Complexity and duplication of process

3.

Questions for the panel (10 mins) Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions

Acceptance that it occurs, duplication needs to be fixed. Assessment System 4.

Notes

Legislation

1.

5.
Notes

Resources and culture at DEC and EPA

2.

3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply?

Notes

Where/How do you minimize the bumper sticker mentality?

Plain English interpretations of the science etc. What are the implications of the project risks?

1. Initial scoping to include risk assessment-public review of risk assessment (argument for formal process). Back to proponent with items for assessment *with opportunities to address important issues apply*.

Do we keep same levels of assessment? If we get risk based system right do we need the current levels of assessment? Maybe we remove these levels and replace with risk based system as suggested. (NB: Often proposals submitted at higher level of assessment to provide greater level of certainty of process. This increases perception of greater risk that doesnt necessarily reflect the level of risk involved.

2. Science when satisfied---assessment doc---Suggested independent review team of experts to screen include uni based team from experts throughout the country. Funded through fees collected from proponents.

Important to bolster community trust in government departments, linkage between part iv and v.

3.

4.

Worksheet 1: Issues identification (unnumbered table) If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue 1. Full support?

Issue

Full support?

1. More strategic approach to assessment Strategic approaches to be adequately resourced, upfront investments, but allows improvements down the track. Not a silver bullet/better use of PUEA 2. Timing -There are existing timelines for formal process that should be adhered to -Proponents to work up front -Key issue is ministerial/appeals process with no timelines 3. Complexity and duplication of process -Cross agency cooperation/focus -Complexity relates to land development industry -Duplication related to minerals/energy industry -Land development industry get a free ride on Swan Coastal Plain

X X X

Strategic planning needs to identify and implement areas for high conservation and area for development (with environmental impact expected). 2.

Should ports be considered differently to the rest of the coast, given their strategic economic importance for the State? 3.

Questions for the panel (10 mins)

4. Legislation Key components exist already-level of assessment, process is set out, changes are allowed. Disagree that legislation is out of date 5. Resources and culture at DEC and EPA -Turnover/resources etc -Use of risk based approach-need to focus on the key issues -Desire for one point of contact

Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1.

2.

3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply? 1. Resources/Culture -Recruitment-advertisements (other options?), overseas staff (maybe discuss with police who ran similar process). Documentation required for application process too onerous-look at streamlining -Salaries-if they cant compete, look at conditions, flexibility etc 2. Strategic Planning -Needs to identify areas for high conservation and areas for development (with environmental impact expected). These plans need to be implemented. -Should ports be considered differently to the rest of the coast, given their strategic economic importance to the State? -Can strategic work be prioritized, rather than always being reactive to individual proposals etc? Resources need to be freed up for this -Perhaps a ministerial task force could be established to drive strategic planning (environment, state development, heritage etc), overseeing number of agencies to do work (who to lead process?). 3. Timing -Not all parts of process have fixed timeframes, they should, and clock stops should be explained/more transparent. 4. Complexity/Duplication -Seems to relate mainly to land developments, smaller players not being aware of process etc. Can industry groups (UDIA/PIA) get that information out to its members and explain process better?

Notes

Key Issue: Appeals/ministerial process. Under timeframes/legislation a statutory timeframe should be established between bulletin release and ministers decision (either uphold, dismiss or ask for further information).

Worksheet 1: Issues identification (unnumbered table) If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue Full support?

Issue

Full support?

1. More strategic approach to assessment Integration across State agencies- e.g. EPA with Heritage State/Federal government interaction needs improvement to streamline process 2. Timing No clear timelines in the Act 3. Complexity and duplication of process -Proposals need to be better quality -Process needs to filter out and deal with the significant issues 4. Legislation -Need to ensure appeal process rights under all sections of the Act -Dont just react to the Boom-look long term 5. Resources and culture at DEC and EPA Compliance not being addressed post approval

X X X ? X

1. -Cultural heritage (environmental) values to be better clarified and considered -Cultural values to be included in conditions 2. Compliance-need to ensure approvals and plans are what eventuates

X X X

3. Government to prioritise funding of relevant agencies to ensure adequate resourcing of process. Questions for the panel (10 mins) Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1. What is a good timeline?

2.

3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply? 1. Consistency Between Agencies (Centralised tracking issue) -Make sure all government agencies use the same nomenclature for projects/proposals, not different names within different departments. E.g. An application identity or key number (ODAC for smaller applications). Formal interdepartmental communication. 2. Strategic/Cumulative Assessment -A one stop shop to direct traffic (possibly on a region by region basis - i.e. regional offices), to ensure compliance with all regional strategic assessments. 3. Timeframes -Introduction of non-statutory timeframes, disclosure of timeframes on department websites, reporting against timeframes. -Develop clear processes for with departments. -Auditing process -Electronic copies of documents for use within assessment process. 4. Compliance -Maintain annual reporting requirement for companies and introduce increased penalties/review public reporting requirements to ensure reputational risk in an incentive for companies to comply. -Introduce a public register for non-compliance 5. Fees For Service Needs careful consideration-fees based on consumption of resources of assessment criteria although basis of fees not universally accepted.

Notes

Worksheet 1: Issues identification (unnumbered table) If not this

Issues presented (20 mins) Discussion questions Do you agree or disagree with the issues presented? Do conflicts exist between the different perspectives offered? Can you see common ground between the perspectives? Do you need more information about any of the issues identified to form an opinion? Based on the presentations, which issues stand out for you as most significant or important to address? Are there any issues for which full support exists from all table participants (if yes, tick the box)?

then what?
Other issues (15 mins) Discussion questions What other issues does the group feel should be considered? Are these sufficiently captured in the issues presented? Issue Full support?

Issue 1. More strategic approach to assessment

Full support?

1.

-Management plans/offsets-uncertainties for the proponents, e.g. dredging at ports.

-The ports are managed in the public interest. The S29 10% cumulative disturbance limits and related offsets system restricts development (at a cost) and increases the demands for new ports. A new approach (and cumulative level) is required to facilitate dredging and port development. -No fairness/high cost to offsets for dredging at ports. 2. Timing

2.

3.

3.

Complexity and duplication of process

Questions for the panel (10 mins) Following round-table discussions, participants will be invited to ask questions and discuss issues of the presenters. What questions would you like to put to the panel? Are there issues they raised that you feel require clarification? Are there other issues you would like to run past the them? Think forward to the final session when we will consider specific actions and reforms Are there ideas you would like to float for discussion? Questions 1.

4.

Legislation

5.

Resources and culture at DEC and EPA

2.

3.

Worksheet 2: Solutions

Solutions This is the creative part of the program. Having considered the issues that may require change to improve the Environmental Impact Assessment process, now we will consider specific actions to affect change. What are the ways forward? Practically, what steps are required to bring about change? Who should take the lead? What target deadlines should apply? 1. -Move appeals process to State administrative tribunal 2. -Use as 4360 as basis for risk assessment 3. -Treat all ports differently for cumulative disturbance purposes, i.e. S29 10% limits needs to be raised for public service facilities and to prevent proliferation of ports. The port boundary is arbitrary and small compared to state coastline. 4. -Resourcing-Regulatory agencies need to be adequately resourced to deal with their responsibilities. Application fees? 5. -Timeframes-Needs to be as short as practicable

Notes

Appendix 2
Risk-based Assessment Terminology, Definitions Discussion paper prepared for the EIA Review

(subject to comment from the Stakeholder Reference Group)

1.

Risk-based EIA interpretations

definitions,

terminology

and

The use of consistent and readily understood terminology is important to risk communication and will facilitate broad understanding of the risk-based EIA process. The following sections provide definitions of terms to be used in risk-based EIA based on a combination of terminology used in AS/NZS 203:2006 and AS/NZS ISO 14001 Standards. 1. Definition of terms

The terms applied in risk assessment and conventional EIA are different but translatable as shown in Table. The risk-based EIA approach in Western Australia applies a combination of these terms but retains terminology commonly applied in the conventional EIA process while introducing additional risk management terms as required and as defined in HB 203:2006 Environmental Risk Management Principles and Process. The recommended terminology to be used in risk-based EIA is shown in Table 1 in bold italics. A schematic representation of the relationship between various proposed terms is illustrated in Figure 1 In some instances, both risk and conventional EIA terms which are similar in meaning may be used depending on the circumstances. The definitions provided below are for the preferred terms addressed in Table 1. Table 1 Risk assessment and conventional EIA terminology
Conventional EIA terminology Environmental aspects Environmental factors Policy context, community values Environmental impact Risk assessment Hazard or source of risk, an event or incidents ie spills, explosions Receptors Context Examples Clearing, spills, runoff, emissions, effluent discharges Flora, fauna, wetlands, groundwater, surface water, residences Regulatory and policy requirements, stakeholder values Loss of flora and fauna, damage to wetlands, contamination of water, effect on environmental values Environmental consequences Magnitude of the loss of flora and fauna, damage to wetlands, contamination of water or effect on environmental values Chance of the magnitude of loss of flora and fauna, damage to wetlands, contamination of water or effect on environmental values occurring (eg 1 in 100) Chance of the loss of flora and fauna, damage to wetlands, contamination of water or effect on environmental values of a certain magnitude occurring Rehabilitation, fauna relocation, spill response, waste water treatment Significance of the chance of the loss of flora and fauna, damage to wetlands, contamination of water or effect on environmental values of a certain magnitude occurring

Magnitude of environmental impact

Probability of an impact of a particular magnitude occurring

Likelihood

Risk

Mitigation Environmental outcome before mitigation

Risk treatment Inherent environmental risk level

Conventional EIA terminology Mitigation criteria

Risk assessment Environmental risk treatment criteria

Examples Circumstances and extent of rehabilitation, fauna relocation, spill response, waste water treatment is required. Can also address acceptability of impact or the need for the risk to be addressed in more detail Significance of the chance of loss of flora and fauna, damage to wetlands, contamination of water or effect on environmental values of a certain magnitude The level of confidence or reliability in the environmental risk level determined

Environmental outcome after mitigation

Residual environmental risk level

Uncertainty

Uncertainty

Proposal (Consists of elements and activities)

Environmental aspects (Elements or activities of a proposal that interact with the environment)

Environmental factors (Components of the environment affected by environmental aspects)

Environmental Impact (Change in an environmental factor)

Likelihood (Probability of consequence occurring)

Consequence (Magnitude of an impact)

Inherent environmental risk level for a specific environmental factor (Combination of a particular consequence and the likelihood of that particular consequence occurring before risk treatment)

Environmental risk treatment (Treatment or mitigation required to reduce risk)

Residual environmental risk level for a specific environmental factor (Combination of a particular consequence and the likelihood of that particular consequence occurring after risk treatment)

Figure1 Relationship between risk-based EIA terms

Context The context of the proposal is the environmental and cultural setting, policy and regulatory context, stakeholders that may be potentially affected by the environmental aspects or interested in the environmental impacts of the proposal and stakeholder values associated with the environmental and cultural setting. Environmental aspects Environmental aspects are normally activities or elements of a proposal that interact with an environmental factor or present a risk to a receptor. These are determined as the first step in the riskbased assessment process. For example: emissions, waste disposal or effluent discharge, spills, clearing, earthworks, vehicle movement, physical dimensions of an object, drainage, rehabilitation or recycling. Environmental consequences An environmental consequence is an indication of the magnitude of an environmental impact resulting from an environmental aspect. Environmental consequences may be expressed in qualitative or quantitative terms in a table format (table of consequences) Table 2 provides an example that may apply to the scoping phase of a proposal. Consequences can include community values (social values associated with environmental assets ie national parks, nature reserves, cultural area) and policies Consequences can be categorised, on a scale of 6, as follows: 1. 2. 3. 4. 5. 6. Catastrophic Massive Major Moderate/significant Minor Negligible/slight

Table2
Catastrophic 1

Example of environmental consequences table for the scoping phase

Significance/Environmental consequence

Massive 2

Major 3

Moderate/ Significant 4

Minor 5

Negligible/ slight 6

Human fatalities Loss of ecosystem function across a wide area Extinction of a species regionally Loss of major portion of a critical asset at the regional level Significant loss of a critical asset, plant communities, benthic habitat or significant species at a regional level Well in excess of an environmental limit A critical asset is more significantly affected Chronic or acute effects on a significant portion of a human population Extinction of a species locally Chronic or acute effects on some sensitive humans (asthmatics) Significant loss of significant species or at the local level A critical asset is less significantly affected Habit of significant fauna is significantly affected. Vegetation communities significantly affected at regional level Near an environmental limit Sub-lethal impacts to highly sensitive humans (ie exercising asthmatics) Significant deterioration/loss of vegetation communities at a local level A high value asset is significantly affected A critical asset is affected but not significantly A significant species is affected but not significantly Significantly below an environmental limit Nuisance to humans May cause adverse effects in sensitive individuals Small number (<5%) of individuals in the local population of non-significant species or plant communities may be affected. Will not affect a critical asset Well below (50%) of an environmental limit No nuisance or health effect on any humans Very small number of individuals (<1.0%) in local population of non-significant species or plant communities may be affected. Will not affect a critical or high value asset No significant addition to background level, Non-detectable change

Environmental factors Environmental factors are environmental components or values supported by an environmental component(s). For example, flora, fauna, surface water, groundwater, heritage, visual amenity, recreation, groundwater dependent ecosystems. Environmental impact A change in an environmental factor (component) resulting from an environmental aspect of a proposal Environmental risk An environmental risk is the chance of something happening that will have an impact on an environmental factor. An environmental risk may arise from an environmental aspect.

Environmental risk level An environmental risk is the chance of something happening that may affect an environmental outcome. Environmental risk is measured in terms of a combination of a particular consequence for an environmental factor and the likelihood of that particular consequence occurring. A risk level is also an indication of the significance of an environmental impact. Environmental risk level should be expressed on a scale of 5 as follows: Extreme High Medium Low Very low

Inherent risk level is the level of risk before the application of mitigation or risk treatment measures. Residual risk level is the level of risk after the application of mitigation or risk treatment measures. An environmental risk matrix maybe composed of a range of consequences and probabilities to determine the risk level. Some matrices include an arbitrary quantitative risk rating for every cell in the risk matrix to provide a finer scale assessment of risk. In this situation, each risk level will consist of a specified range of risk ratings. An example of a risk assessment matrix is provided in Table 3. Table 3 Example of a risk matrix
Consequences / significance Negligible Almost certain Likelihood Likely Possible/ occasionally Unlikely Rare/remote LOW LOW VERY LOW VERY LOW VERY LOW Minor MEDIUM LOW LOW VERY LOW VERY LOW Significant/ moderate HIGH MEDIUM LOW LOW VERY LOW Major EXTREME HIGH MEDIUM LOW LOW Massive EXTREME EXTREME HIGH MEDIUM LOW Catastrophic EXTREME EXTREME EXTREME HIGH MEDIUM

Environmental risk treatment criteria (mitigation criteria) Risk treatment criteria are developed for each risk level (negligible/slight to catastrophic) to indicate: the acceptability of the risk the extent of risk treatment or mitigation required at the scoping stage, those factors and aspects requiring detailed assessment.

Extreme risk should normally be regarded as unacceptable however, the aim should be to reduce the level of risk to all environmental factors to low or moderate. An example of the risk treatment criteria applicable to the scoping stage of the EIA process is shown in Table 4. Table 4 Scoping risk treatment criteria according to risk rating
Risk rating Extreme Major Medium Low Very Low Risk treatment criteria Potentially unacceptable, modification of proposal required Major mitigation (including offsets) may be required Assessment required of factors and aspects Substantial mitigation required Assessment required of factors and aspects Some mitigation may be required No detailed assessment of factors and aspects required but addressed in EMP as routine controls No further assessment required

Likelihood Likelihood is the probability or frequency of an impact or consequence occurring and takes into consideration the probability and frequency of the following: the environmental aspect occurring the environmental factor being exposed to the environmental aspect the environmental factor being affected.

The likelihood of a consequence may be expressed in qualitative or quantitative terms in a table format (likelihood table). A likelihood table should be constructed showing a range of probabilities preferably on a scale of 1-5 or more ranging from as follows: 1. 2. 3. 4. 5. Almost certain Likely Possible/occasionally Unlikely Rarely/remote

Table 5 provides an example of a likelihood table that may apply to the scoping phase of a proposal.

Table 5 Example of likelihood table

Likelihood definitions Almost certain 1 Likely 2 Possible/ occasionally 3 Unlikely 4 Rare/ improbable 5 Common repeating occurrence, ongoing Will occur most often Planned occurrence/action Will probably occur in most circumstances There is at least 50% chance that it may happen Might occur at some time Could occur but not often 5% chance it could happen Unusual occurrence Unexpected May occur only in exceptional circumstances Unheard of

Uncertainty Uncertainty is the level of confidence or reliability in the environmental risk level determined (refer below for detailed discussion of uncertainty). 2. Uncertainty

The treatment of uncertainty in risk assessment is important to provide an understanding of the reliability and confidence in the risk assessment outcomes. The assessment of risks associated with impacts on ecosystems or individual species is particularly uncertain in the early stages of proposal development when not much may be known of the species, communities or habitats that are present. Similarly, information on meteorology, hydrology or coastal processes may also be limited causing uncertainty in the prediction of impacts by models or otherwise. Uncertainty may be addressed in two ways in risk-based EIA: 1. 2. Obtain more information through environmental investigations to refine risk; and/or Conduct screening level risk assessments with conservative assumptions.

The former may be required in instances where information available is insufficient to conduct a meaningful risk assessment or where there are statutory obligations under other legislation (for example to determine the presence or otherwise of rare flora species). Uncertainty will be a consideration at the scoping phase of a proposal and should be transparent in risk assessment outputs. This may be accomplished by indicating a level of confidence in risk levels determined as follows: High confidence Reasonable confidence Low confidence

Even after further investigations it may not be possible to obtain a high level of confidence. In these situations conservatism should be built into the risk assessment to provide a sufficient margin of safety in any risk determination. In addition, consideration should be given to an adaptive management approach. An example of an uncertainty table is provided in Table 6.

Table 6 Confidence in predicted risk rating

High confidence Several expert investigations/studies Excellent survey data Long term monitoring results available Modelling conducted and calibration shows good adherence to real occurrences. Reasonable confidence Survey data available from one expert complies with EPA guidance Short term monitoring results available Modelling conducted but calibration shows occasional aberration from occurrences. Available information is adequate Low confidence No survey data No model verification possible No modelling conducted Available information is inadequate

Appendix 3

Application of Risk-Based Approach in all Stages of EIA Discussion paper prepared for the EIA Review

(Subject to comment from the Stakeholder Reference Group)

Key stages in the risk-based EIA process

The EPA decides whether a proposal referred to it should be assessed and if so, at what level, under Part IV of the Act. The EPA makes this decision on information provided to it with the referral and its own investigations or requests for further information from the proponent. The proponent is obliged to prepare an environmental impact assessment document for those proposals that are to be assessed. The proponent is required to scope the impact assessment and provide a Scoping Document to EPA for approval, where a public review level of assessment has been set, before submitting the environmental impact assessment document. The EPA requires the proponent to include management plans for relevant environmental factors in the environmental impact assessment document to illustrate that the outcomes stated in the document can be reasonably achieved. The EPA assesses the environmental impact assessment document with or without public comment and provides its assessment report to the Minister for the Environment. In the above assessment process there are three key decision points for the EPA: 1. 2. 3. Whether the proposal should be assessed and if so at what level based on available information and its own investigations. Whether the proponents scoping and assessment documents are adequate for public review. Whether the proposal is environmentally acceptable and if so, under what conditions the proposal should be implemented based on the proponents assessment document (including mitigation of impacts), any submissions received and the EPAs own investigations. In the past, Statements have been issued by the Minister with conditions requiring the preparation and approval of management plans following the submission of the EPAs assessment report to the Minister.

This decision making framework provides a basis for the key phases for the risk-based EIA process as follows: 1. 2. 3. 1.1 Scoping of the proposal at or following referral but before completion of the impact assessment document by the proponent (decision points 1 and 2 above). Detailed assessment of impacts arising from the proposal by the EPA (decision point 3 above). Assessment of proposed mitigation measures including offsets etc (decision point 3 above). Risk-based EIA process

An environment risk is the chance of something happening that will have an environmental impact and the process that addresses risk is called environmental risk management (AS/NZS 4360:2004). Environmental risk management and EIA processes both involve stakeholder consultation and establishing the context of the assessment. The risk-based EIA in Western Australia involves melding both processes to utilise benefits of risk assessment while satisfying statutory assessment processes prescribed under the Act, and encouraging the application of contemporary environmental protection practices.

Figure 1 provides an outline of the risk-based EIA process divided into three broad phases corresponding to stages in the conventional EIA process for proposals - scoping, detailed impact assessment and mitigation.
SCOPING
1 Establish context (external) Perform initial scan of the environment, identify stakeholders, identify policy requirements and environmental objectives to establish context

2 Identify risks Identify environmental aspects, relevant environmental factors and potential environmental impacts (risk) arising from aspects. Prepare initial consequence and likelihood tables and risk level matrix.

3 Initial analysis of risks Determine initial consequences and likelihood of consequences, initial risk level and uncertainties after application of standard controls.

Stakeholder Consultation

4 Initial evaluation of risks Evaluate risk level to determine initial acceptability and if unacceptable whether it is treatable. Determine potential risk treatment. Determine key environmental factors (those at a medium or greater risk level) for detailed analysis. Other factors will be addressed in EMP. Define investigations for key environmental factors

DETAILED ASSESSMENT
5 Detailed analysis of risks Establish detailed context for key environmental factors, refine consequence tables and review risk treatment criteria. Determine risk level to key environmental factors defined after application of standard controls/management. Identify any new significant issues and consider uncertainty

6 Detailed evaluation of risks Determine the acceptability of risk to key environmental factors and the degree to which further mitigation or risk treatment is required using risk treatment criteria. Consider whether unacceptable risks are treatable.

MITIGATION
7 Treat/mitigate risks Mitigate according to mitigation hierarchy. Apply best practice. Refine consequences table to facilitate management response. Determine management responses based on risk level. Prepare management plans (including monitoring program)

Figure1 Risk-based EIA Process Within each of these phases, risk analyses and evaluations of environmental risks are conducted to an increasing level of detail as a proposal proceeds through the process. For instance, at the scoping

stage a preliminary risk assessment would be performed using more generic consequence tables whereas at the detailed impact assessment stage more detailed consequence tables would be constructed at factor and or species levels depending on risk. 1.2 Scoping phase pre-referral to submission of Scoping Document

The scoping phase of a proposal can commence very early in proposal development and well before referral of the proposal to the EPA. A preliminary risk assessment should be conducted as early as possible in the scoping phase and would be refined as the design of the proposal and characteristics of environmental aspects and the environment are determined. This phase essentially consists of following steps, roughly in the order shown (some steps may be conducted in parallel): Establish context 1. 2. 3. 4. Perform an initial scan of the environment. Identify stakeholders. Construct a preliminary stakeholder consultation programme for all phases of the process. Establish the policy and regulatory context

Identify risks 5. 6. 7. 8. Identify the environmental aspects of the proposal. Identify any relevant environmental factors based on the environmental scan. Identify relevant policies, statutory requirements and community values associated with relevant environmental factors. Construct initial consequence and likelihood tables and risk level matrix based on the environmental scan, policy and regulatory context of the proposal and stakeholder values associated with environmental factors. Develop preliminary risk treatment criteria.

9.

Initial analysis of risks 10. Determine potential environmental impacts arising from each environmental aspect. 11. Conduct a preliminary risk assessment in spreadsheet form (aspect risk assessment spreadsheet) addressing all environmental aspects to determine: likelihood of the impact from each aspect; consequence or magnitude of the impact from each aspect; the level of risk to relevant environmental factors arising from each relevant environmental aspect after the application of standard controls; and key relevant environmental factors those factors for which the proposal poses a medium or higher risk

Initial evaluation of risks 12. Determine uncertainties associated with the risk level

13. Determine whether the risk level is unacceptable and potentially treatable and additional potential mitigation or risk treatment that may be required by comparing risk level against risk treatment criteria. 14. Determine relevant environmental factors for which the proposal poses a low or very low risk and do not require detailed impact assessment or risk assessment. The remaining environmental factors will be key environmental factors subject to detailed assessment. 15. Determine what further information is required to refine the preliminary risk assessment and to perform a detailed impact assessment for key relevant environmental factors. 16. Consolidate all risks into a spreadsheet according to the relevant environmental factor affected (environmental factor risk assessment spreadsheet). Documentation This risk-based scoping process and its outcomes should be presented in documentation accompanying the referral of a proposal and subsequent assessment documentation or Scoping Document if the EPA has decided to assess the proposal. If a Scoping Document is required the following risk assessment information should be included: consequence and likelihood tables, risk matrix and risk treatment criteria that were used; risk assessment spreadsheet for all environmental aspects identified; risk assessment spreadsheet for each relevant environmental factor; potential additional risk treatment; stakeholder involvement in the risk assessment process; and stakeholder issues that have been identified.

Examples of risk assessment spreadsheets are provided in Appendix 1 for a hypothetical iron ore mining proposal in the Pilbara. It is important to note that these spreadsheets would be an Appendix to the scoping and assessment documents, and would not replace the main body of the documents that should continue to provide a clear and concise narrative on the issues that matter. 1.2.1 Stakeholder input to the scoping process

The extent of stakeholder involvement in this phase will depend on the complexity and community interest in the proposal as would be the case with the current EIA process. These proposals would normally be assessed and the level of assessment set at Public Environmental Review and Management Programme (PERMP) and the scoping document subject to public review. Early and meaningful stakeholder consultation is advisable to determine the context of the proposal, input to determining the acceptability and response to a range of consequences and to conduct an informed preliminary risk assessment. The active participation of key non-government organisations in the risk assessment process is particularly advisable for complex proposals and proposals of substantial community interest. . 1.2.2 EPA involvement in the scoping process

Proponents have the responsibility to perform their own impact assessment and prepare associated documentation. The EPA through its support staff and published policies and guidelines can provide

information on the policy and regulatory context that may apply to a particular development as part of pre-referral discussion with proponents. EPA support staff and experts from DEC and other agencies may attend risk assessment workshops for complex proposals or proposals of substantial community interest which would normally be proposal subject to the PERMP level of assessment with public review of the scoping document. This assistance would include advice on the policy and regulatory context relevant to the proposal that may assist in the construction of consequence tables and the risk treatment criteria. EPA support staff resources are limited and any assistance during this process would have to be determined on a case by case basis during pre-referral discussions. 1.3 Detailed impact assessment

The detailed assessment phase would apply to those proposals that are being assessed by the EPA. Detailed investigations and modelling will be completed during this phase and will provide data upon which the previous risk assessments conducted in the scoping phase can be refined. The environmental outcomes and residual risks of the assessment should be well defined by the end of this phase. This phase would involve the following: 1.3.1 1. Detailed analysis of risks Revise consequences tables in light of new information and construct them to address each factor and may individually address significant species. For example, the EPA would expect each critical asset, Declared Rare flora species, and Threatened fauna species to be addressed individually in these tables. Conduct of a detailed risk assessment (quantitative where possible) and detail assumptions. Show how all relevant stakeholder issues identified during the scoping phase were taken into consideration. Determine the inherent risk (after the application of standard management measures) posed to each key environmental factor identified in the scoping phase. Identification and risk assessment of any new key environmental factors or environmental aspects that have been determined since initial scoping. Determine uncertainty in the predicted risk levels. Detailed analysis of risks 1. 2. 3. Determine any unacceptable risks and whether they are treatable, and if not acceptable, consider amending the proposal. Determine mitigation in addition to standard measures in accordance with risk treatment criteria. Determine cumulative risk level for each key environmental factor after taking all reasonable and practicable measures (input from mitigation phase below) to reduce risk levels to each key environmental factor arising from environmental aspects of the proposal to the range of very low to medium. Consider adaptive management approaches where environmental outcomes or risk levels are difficult to determine.

2. 3. 4. 5. 6. 1.3.2

4.

Documentation This phase and the subsequent mitigation phase would be iterative to reduce risk as low as practicable. The risk assessment following mitigation would be provided in the impact assessment document. Impact assessment documentation prepared by the proponent should include (amongst other things): refined consequence and likelihood tables and risk treatment criteria for mitigation of inherent impacts; risk level matrix used in the assessment; assumptions used in the risk assessment; spread sheet summary of the risk assessment, including assumptions, for each key environmental factor which builds on the spreadsheet used for scoping; and the preliminary risk assessment completed during scoping as an Appendix to the document. EPA involvement in the detailed impact assessment phase

1.3.3

EPA support staff and experts from DEC and other agencies will restrict assistance to providing policy guidance on any new environmental aspects or factors that may arise following scoping. 1.3.3 Stakeholder input

Stakeholder input would be as advised in assessment documentation or indicated in the proponents Scoping Document. There would be a particular mutual benefit to both stakeholders and the proponent to involve key non-government organisations or individuals in the process of refining the risk assessment particularly, for complex proposals and proposals of substantial community interest (PERMPs with public review of scoping documents). Some assistance to non- government organisations to obtain technical advice in order to participate meaningfully in this phase of the riskbased EIA process is likely. 1.4 Mitigation

The outcomes (residual risk levels or impacts) of the risk assessment and the risk treatment criteria developed in the previous phase would provide the basis for determining the extent of mitigation required. The following mitigation hierarchy (EPA 2006) should be applied to determine appropriate proposal re-design and controls to reduce the risks as far as practicable (application of best practice) to low or medium levels: 1. 2. 3. 4. 5. Avoid avoid the impact altogether. Minimise limit the severity of the impact. Rectify repair affected site as soon as possible. Reduce eliminate impact over time. Offset significant residual impacts on critical and high value assets (unacceptable impacts cannot be offset).

This phase would involve the following: Treatment of risks 1. Construct consequence tables and risk treatment criteria addressing medium or greater inherent risks to key environmental factors.

2. 3. 4. 5. 6.

Develop management objectives, management actions, performance indicators and targets to address medium (or greater) inherent risks to key environmental factors. Develop monitoring programme to determine performance against targets and objectives Specify contingency measures if targets are not met. Conduct a risk assessment to determine the residual risk level for each key environmental factor following the application of key management measures. Develop adaptive management criteria where environmental outcomes are difficult to predict to provide the basis for a management response to monitoring results according to the consequence scale. Prepare management plans for key environmental factors and other relevant factors as required outlining risk treatments.

7.

Documentation A management plan for a key environmental factor would include (amongst other things): refined consequence and likelihood tables and risk level matrix used to assess the residual risk; environmental management objectives, management actions, performance indicators and targets addressing the risks; and spread sheet summary of the risk assessment (essentially an expansion of the spreadsheet shown in the detailed assessment document) including assumptions, for each key environmental factor based on the implementation of key management actions, contingencies and adaptive response to monitoring results EPA involvement in the mitigation phase

1.4.1

EPA support staff and experts from DEC may assist proponents where proposals are complex and/or have substantial community interest. This assistance may be by way of providing advice on the policy and regulatory context relevant to the preparation of management plans that may facilitate the construction of consequence tables, risk treatment criteria, management measures, formulation of adaptive response criteria and contingency measures. 1.4.2 Stakeholder input

Stakeholder input would be as advised in assessment documentation or in the proponents Scoping Document. Consultation may be more concentrated during scoping and the detailed assessment phases. For particularly complex proposals (PERMPs), the involvement of non-government organisations may be beneficial to the proponent in facilitating good working relationship with the community. In such cases, some assistance maybe provided to these organisations to obtain technical advice in order to participate meaningfully in the phase of the risk-based EIA process.

Attachment Scoping case study Hypothetical iron ore mining proposal in the Pilbara

HYPOTHETICAL IRON ORE MINING PROPOSAL

The following hypothetical has been developed to illustrate the application of the risk-based EIA in the scoping stage. 1.1 LOCAL ENVIRONMENT - CONTEXT

Based on desktop studies a scan of the local environment the following information was gathered on the proposal area and its environs: 1.2 weathered mesas potential for subterranean fauna hummock grasslands no listed TECs or DRF remote from residences or sensitive premises no nearby streams potential for Aboriginal sites in the vicinity PROPOSAL AND ENVIRONMENTAL ASPECTS

The broad characteristics of the hypothetical proposal include: mining rate of 15 mtpa above the watertable open cut mining (to be confirmed) crushing and screening haul road to rail siding some distance away water supply from local bores (to be constructed) diesel generated power

Environmental aspects include: clearing site excavation runoff fire liquid (septage) and solid wastes spill and leaks gaseous air emissions dust emissions physical structures noise emissions light spill vehicle movements dewatering/groundwater abstraction

1.3

RELEVANT ENVIRONMENTAL FACTORS (RISK ANALYSIS)

Environmental factors identified from environmental scan and consideration of environmental aspects were as follows 1.4 flora and vegetation. terrestrial fauna. subterranean fauna. surface water quantity and quality. groundwater quantity and quality. greenhouse gases. soils and landform. amenity. Aboriginal heritage. RISK ASSESSMENT SPREADSHEETS

Attached are two spreadsheets illustrating outputs of the risk assessment process (Tables 1 and 2 following). 1. Aspects risk assessment spreadsheet (Table 1). This spreadsheet provides a description of the environmental risks to environmental factors that arise from environmental aspects of the proposal. Flora and vegetation risk assessment spreadsheet (Table 2). This spreadsheet groups together all those environmental aspects that may affect flora and vegetation

2.

Appendix 1

Table 1
Environmental Aspect

Aspects Risk Assessment Spreadsheet

Consequence Consequence Residual risk Inherent risk Likelihood Likelihood

Environmental factor

Potential impacts

Assumptions/comments

Potential Mitigation

Assumptions/comments

Confidence level

Clearing

Disturbance of general flora species and vegetation communities Disturbance of conservation significant vegetation communities (e.g. TECs and 'at risk' communities) Disturbance of conservation significant flora (e.g. DRF and Priority flora)

High

Likelihood a certainty Consequence is long-term and mostly permanent (impact is removal not degradation of vegetation) Unlikely TECs are present possible 'at risk' communities are present

Rehabilitation may reduce consequence level, but still long-term impact Minimising disturbance footprint

High

Likelihood is still a certainty Consequence is still long term and mostly permanent during operation

Desktop scoping study has been undertaken. Level 2 flora and vegetation survey commissioned to cover 2 seasons As above Will use results from survey work to determine if TECs and/or 'at risk' communities are present (and re-assess risk if present) As above Although considered to be a low inherent risk, will use results from survey work to reassess risk

Flora and vegetation

Medium

If present, avoid in the first instance, then reduce impact

Low

Assuming 'at risk' vegetation communities are critical assets

Low

DRF not expected to be present. Priority flora not a critical asset Likelihood a certainty Direct disturbance of habitat, therefore it is highly likley there will be direct disturbance to fauna individuals Consequence rating high due to the nature of SREs (i.e. can not readily move away from disturbance & population may be restricted in distribution) Fauna can move away from disturbance (be be relocated) Likelihood a certainty Consequence is long term and mostly permanent (impact is removal not degradation of habitat) Does not consider potential impact to SREs (potential impacts to SREs assessed above) Might affect conservation significant species but this is not considered to be significant

If present, avoid in the first instance, then reduce impact. Inclusion of species in rehabilitation Rehabilitation may reduce consequence level, but still long-term impact Minimising disturbance footprint Likelihood is still a certainty Rehabilitation will be progressive and will take time to establish suitable habitat

Disturbance of individuals (general fauna)

High

High

Desktop scoping study has been undertaken Level 2 fauna survey commissioned to cover 2 seasons

Disturbance of population of Short Range Endemics (SREs)

High

If present, avoid significant SRE habitat, then reduce impact

High

Consequence is still significant due to the nature of SREs

As above

Terrestrial fauna

Disturbance of conservation significant fauna

Medium

If present, relocation program

Low

Relocation of conservation significant species is possible

As above Will use results from survey work to determine if conservation significant fauna are present (and re-assess risk if present) As above Will use results from survey work to determine if significant fauna habitat is present (and re-assess risk if present)

Disturbance of fauna habitat

High

Rehabilitation may reduce consequence level, but still longterm impact Minimising disturbance footprint

High

Likelihood is still a certainty Consequence is still long term and mostly permanent during operation

Habitat fragmentation

Low

Rehabilitation may reduce consequence level, but still longterm impact (fragmentation not fully overcome until closure and decommissioning phase)

As above

Appendix 1
Consequence Consequence Residual risk Inherent risk Likelihood Likelihood

Environmental Aspect

Environmental factor

Potential impacts

Assumptions/comments

Potential Mitigation

Assumptions/comments

Confidence level

Soils and landform

Erosion

Low

Could lead to degradation of some habitats but not irreversible loss This impact considers direct disturbance/alteration to natural drainage systems There will be a need for crossings of major waterways and interception of natural drainage lines This impact considers impacts to volumes of flows Haul road will obstruct sheet-flows and flows in waterways at crossing sites Unlikely to occur given mining will be above the water table but if did occur would result in persistent change (longterm impairment) Likelihood a certainty Localised irreversible change (long term) It is possible that there are heritage sites present in the Project area

Drainage management plan no uncontrolled runoff, sediment traps etc. Drainage management plan divert flows around rather than obstruct flows, culverts under haul road to allow natural flow of drainage lines

As above

Disturbance and/or modification (e.g. diversion) of natural drainage systems Surface water Alteration to natural drainage patterns (e.g. reduced flow volumes and/or increased flow volumes) Salinisation of groundwater by evapotranspiration of accumulation of water in post-mine void

Medium

Medium

Likelihood is still a certainty but consequence level remains low

Desktop scoping study has been undertaken More detailed hydrological assessment has been commissioned

Medium

As for above

Medium

Likelihood is still a certainty but consequence level remains low

As above

Groundwater Site disturbance/ excavation

Low

Closure strategy to avoid the accumulation of groundwater in pits (i.e. backfilling etc.)

Desktop scoping study has been undertaken More detailed hydrologeological assessment has been commissioned to describe the groundwater characteristics in greater detail 1 4 High Likelihood is still a certainty Based assessment on knowledge of other similar operations PNTS has undertaken site clearances for the exploration program Consultation undertaken to date has not addressed visual amenity Future consultation will address visual amenity Assessment based on other similar projects Desktop scoping study has been undertaken Subterranean fauna surveys have been commissioned Desktop scoping study has been undertaken More detailed hydrological assessment has been commissioned

Soils and landforms Aboriginal heritage

Changes in landform

High

Minimising disturbance footprint Avoid sites, relocate, consultation etc. in accordance with a s18 consent to disturb (Aboriginal Heritage Act 1972)

Disturbance of archaeological sites

Medium

Low

If undertaken in accordance with a s18 consent to disturb

Visual amenity

Detraction from the visual qualities/character of the area

Medium

Likelihood a certainty Some locals will have concern relating to visual amenity

Consultation

Low

Due to the remoteness of the site and lack of public access opportunities it is likely that there will be no issue with visual amenity

Subterranean fauna

Direct loss of troglofauna habitat

Major

Likelihood a certainty Localised irreversible change (long term) If it occurred, impact would be localised but long-term degradation

Minimising disturbance footprint

Runoff

Surface water

Sedimentation of natural drainage systems

Low

Drainage management plan to include sedimentation sumps etc.

Flora and vegetation

Decline in health and/or death of vegetation sensitive to inundation (where there is unnatural

Low

Assuming no conservation significant vegetation is present in area affected

Drainage management plan divert flows around rather than obstruct flows, culverts under haul road to allow natural flow

Desktop scoping study has been undertaken More detailed hydrological and flora/vegetation

Appendix 1
Consequence Consequence Residual risk Inherent risk Likelihood Likelihood

Environmental Aspect

Environmental factor

Potential impacts

Assumptions/comments

Potential Mitigation

Assumptions/comments

Confidence level

pooling of water) Decline in health and/or death of vegetation dependent on drainage flows (where there is a reduction in flows) Soils and landforms Erosion

of drainage lines Drainage management plan culverts under haul road to sustain flows, river crossing construction management measures Drainage management plan no uncontrolled runoff, sediment traps etc.

assessments have been commissioned

Low

Assuming no conservation significant vegetation is present in area affected Could lead to degradation of localised soils/landforms but not irreversible loss Only an issue if karstic formations present Assumes no karstic formations Consequence level assumes a critical asset is present Consequence level assumes a critical asset is present Consequence level assumes a critical asset is present Consequence level assumes a critical asset is present Affect would be highly localised Unlikely to occur and if it did occur effects would be highly localised Unlikely to occur (due to distance from septic disposal site to watercourses) and if it did occur effects would be localised Unlikely to occur (due to depth to groundwater) and if it did occur effects would be localised Assumes a critical asset the be present (e.g. conservation significant subterranean fauna species) Assumes a critical asset the

As above

Low

Desktop scoping study has been undertakenMore detailed hydrological assessment has been commissioned Exploration drilling data available - inidcates no karstic formations present

Subterranean fauna

Sedimentation of aquifer leading to localised loss of stygofauna Loss of vegetation community Alteration to vegetation community composition Loss of habitat

V low

Flora and vegetation Fire ignition Terrestrial fauna

Low

Fire prevention and response measures Rehabilitation may reduce consequence level Fire prevention and response measures Fire prevention and response measures 3 4 Low Consequence level assumes a critical asset is present 3 4 Low Consequence level assumes a critical asset is present

Desktop scoping study has been undertaken Flora and vegetation surveys have been commissioned As above As above Desktop scoping study has been undertaken Fauna surveys have been commissioned Based assessment on knowledge of other similar operations Based assessment on knowledge of other similar operations Desktop scoping study has been undertaken More detailed hydrological assessment has been commissioned Desktop scoping study has been undertaken More detailed hydrologeological assessment has been commissioned Desktop scoping study has been undertaken Subterranean fauna surveys have been commissioned As above

2 3

4 4

Medium Low

Injury or death of fauna

Medium

Soil contamination Soils and landform Erosion

Low

V low

Surface water Liquid (septic) and solid waste disposal Groundwater

Surface water contamination

V low

Groundwater contamination

V Low

Subterranean fauna

Contamination of subterranean habitats Nutrient loading of

4 4

4 4

Low Low

Appendix 1
Consequence Consequence Residual risk Inherent risk Likelihood Likelihood

Environmental Aspect

Environmental factor

Potential impacts

Assumptions/comments

Potential Mitigation

Assumptions/comments

Confidence level

subterranean habitats

be present (e.g. conservation significant subterranean fauna species) 3 5 Low Affect of spills would be highly localised Unlikely to occur (due to depth to distance from potential spill sources to waterways and standard prevention measures) and if it did occur effects would be localised Unlikely to occur due to depth to groundwater Based assessment on knowledge of other similar operations Desktop scoping study has been undertaken More detailed hydrological assessment has been commissioned Desktop scoping study has been undertaken More detailed hydrologeological assessment has been commissioned Desktop scoping study has been undertaken. Level 2 flora and vegetation survey commissioned to cover 2 seasons As above Desktop scoping study has been undertaken. Level 2 flora/vegetation and fauna surveys commissioned to cover 2 seasons As above Desktop scoping study has been undertaken Subterranean fauna surveys have been commissioned Desktop scoping study has been undertaken Subterranean fauna surveys have been commissioned Based assessment on knowledge of other similar operations Based assessment on

Soils and landform

Soil contamination

Surface water

Surface water contamination

Low

Groundwater

Groundwater contamination

Low

Loss of vegetation Spills and leaks (acute/chronic/c umulative) Flora and vegetation Reduced plant growth

Low

Consequence level assumes a critical asset is present. Could be critical asset present Consequence level assumes a critical asset is present. Could be critical asset present Unlikely to occur and if it did occur effects would be localised Unlikely to occur and if it did occur effects would be localised Consequence level assumes a critical asset is present Contamination of habitat more likely than direct toxicity but consequence of toxicity higher Volume of combustion products utilised not expected to be high and generation of emissions will be widely dispersed Volume of combustion

Low

Terrestrial fauna

Smothering or toxicity to habitat and/or fauna

Low

Toxicity to sensitive habitat and/or fauna Contamination of subterranean habitats Subterranean fauna Toxicity of subterranean habitat and/or fauna

Low

Low

Low

Atmospheric emissions (other than dust)

Air quality

Decrease in air quality from NOx and SOx and other combustion products Contribution to climate

V low

V low

Appendix 1
Consequence Consequence Residual risk Inherent risk Likelihood Likelihood

Environmental Aspect

Environmental factor

Potential impacts

Assumptions/comments

Potential Mitigation

Assumptions/comments

Confidence level

change from CO2 emissions

products utilised not expected to be high and generation of emissions will be widely dispersed Will be highly localised (e.g. restricted to edge of disturbance areas) and assumes no critical assets present Will be highly localised (e.g. restricted to edge of disturbance areas) Likelihood and consequence is low due to remoteness of operation Culverts under roads and river crossings to maintain natural flows. Drainage management plan - controlled drainage system

knowledge of other similar operations

Flora and vegetation Dust emissions (from vehicle movements, dust lift-off from bare surfaces)

Retarded growth due to smothering of foliage Effects on vegetated habitats and forage plants (i.e. making them unsuitable for consumption) Nuisance at nearby residences Change in natural drainage patterns (inc. runoff shadows adjacent to haul road) and erosion; impediment of natural flows in waterways Change in water infiltration and recharge rates

V low

Desktop scoping study has been undertaken. Level 2 flora/vegetation and fauna surveys commissioned to cover 2 seasons Desktop scoping study has been undertaken. Level 2 flora/vegetation and fauna surveys commissioned to cover 2 seasons Based assessment on knowledge of other similar operations Desktop scoping study has been undertaken More detailed hydrological assessment has been commissioned Desktop scoping study has been undertaken More detailed hydrologeological assessment has been commissioned Desktop scoping study has been undertaken Level 2 fauna survey commissioned to cover 2 seasons PNTS has undertaken site clearances for the exploration program Consequence assumes a critical asset (e.g. conservation significant subterranean fauna species) is present Desktop scoping study has been undertaken Subterranean fauna surveys have been commissioned Desktop scoping study has been undertaken Level 2 fauna survey commissioned to cover 2 seasons As above

Terrestrial fauna

V low

Amenity

V low

Surface water

Medium

Likelihood a certainty

Medium

Likelihood a certainty

Groundwater Physical presence of infrastructure (including waterway crossings)

Medium

Likelihood a certainty but potential impacts localised

Medium

Likelihood a certainty

Terrestrial fauna

Change in fauna behaviour/movement Interference of ethnographic sites associated with the waterway Reduction in habitat suitability due to sealing of recharge areas

High

Likelihood a certainty but potential impacts localised

Fauna passage-ways under haul road (e.g. culverts)

Medium

Likelihood a certainty

Aboriginal heritage

Low

Assumes some permanent damage to heritage sites Consequence assumes a critical asset (e.g. conservation significant subterranean fauna species) is present Lighting strategy (e.g. shielding and positioning of lights etc.)

Subterranean fauna

High

Major

Light emissions

Terrestrial fauna

Change in movement/behaviour of fauna species Changes to community structures in areas affected

Medium

Long-term affect

Medium

Still long-term affect

Low

Assuming no critical assets present

Appendix 1
Consequence Consequence Residual risk Inherent risk Likelihood Likelihood

Environmental Aspect

Environmental factor

Potential impacts

Assumptions/comments

Potential Mitigation

Assumptions/comments

Confidence level

by light spill Terrestrial fauna Noise and vibration emissions Subterranean fauna Assuming critical asset present Desktop scoping study has been undertaken Level 2 fauna survey commissioned to cover 2 seasons Desktop scoping study has been undertaken Subterranean fauna surveys have been commissioned Desktop scoping study has been undertaken Level 2 fauna survey commissioned to cover 2 seasons Desktop scoping study has been undertaken. Level 2 flora and vegetation survey commissioned to cover 2 seasons Desktop scoping study has been undertaken More detailed hydrologeological assessment has been commissioned Desktop scoping study has been undertaken More detailed hydrological assessment has been commissioned As above Desktop scoping study has been undertaken. Level 2 flora and vegetation survey commissioned to cover 2 seasons

Behavioural changes

Medium

Habitat disturbance through collapse of strata and mesocaverns within the remnant mesa formation Injury or death of individual fauna

Low

Assuming no blasting will be undertaken (e.g. surface miners will be used)

Terrestrial fauna Vehicle movements Flora and vegetation

Medium

Assuming critical asset present

Speed limits, limiting night-time driving

Low

Assuming critical asset present

Introduction and/or spread of weeds Contamination of groundwater resources due to generation of acid sulphate soils (from groundwater drawdown) Altered flow volumes due to disposal of dewater product

Medium

Could result in long term effects

Weed management plan (hygiene, weed control, monitoring etc.)

Low

Groundwater

Medium

Assumes no dewatering only abstraction for water supply Low likeihood but the consequence is high

ASS testing to determine presence of such soils and treatment if they are present

Low

Dewatering and/or groundwater abstraction

V low

Assumes no advanced dewatering

Surface water Contamination of surface waters due to generation of acid sulphate soils (from groundwater drawdown) Flora and vegetation Decline in health and/or death of groundwaterdependent vegetation (where groundwater drawdown occurs) 3 4 Low

Medium

Assumes drawdown of alluvial aquifers

Montoring to determine if there is any affect and using another

Low

Appendix 1

Table 2

Environmental factor risk assessment spreadsheet for flora and vegetation

Consequence Consequence Residual risk Inherent risk Likelihood Likelihood

Environmental Aspect

Potential impacts

Assumptions/ comments

Potential mitigation

Assumptions/ comments

Confidence level

Disturbance of general flora species and vegetation communities Disturbance of conservation significant vegetation communities (e.g. TECs and 'at risk' communities) Disturbance of conservation significant flora (e.g. DRF and Priority flora) Decline in health and/or death of vegetation sensitive to inundation (where there is unnatural pooling of water) Decline in health and/or death of vegetation dependent on drainage flows (where there is a reduction in flows) Loss of vegetation community Fire ignition Alteration to vegetation community composition

High

Likelihood a certainty Consequence is long term and mostly permanent (impact is removal not degradation of vegetation) Unlikely TECs are present - possible 'at risk' communities are present

Rehabilitation may reduce consequence level, but still long term impact Minimising disturbance footprint If present, avoid in the first instance, then reduce impact

High

Likelihood is still a certainty Consequence is still long term and mostly permanent during operation

Vegetation/ habitat clearing

Medium

Low

Assuming 'at risk' vegetation communities are critical assets

Low

DRF not expected to be present. Priority flora not a critical asset

If present, avoid in the first instance, then reduce impact. Inclusion of species in rehabilitation Drainage management plan - divert flows around rather than obstruct flows, culverts under haul road to allow natural flow of drainage lines Drainage management plan - culverts under haul road to sustain flows, river crossing construction management measures Fire prevention and response measures Rehabilitation may reduce consequence level Consequence level assumes a critical asset is present

Low

Assuming no conservation significant vegetation is present in area affected Assuming no conservation significant vegetation is present in area affected Consequence level assumes a critical asset is present Consequence level assumes a critical asset is present Consequence level assumes a critical asset is present. Could be critical asset present Consequence level

Runoff

Desktop scoping study has been undertaken. Level 2 flora and vegetation survey commissioned to cover 2 seasons As above Will use results from survey work to determine if TECs and/or 'at risk' communities are present (and re-assess risk if present) As above Although considered to be a low inherent risk, will use results from survey work to re-assess risk Desktop scoping study has been undertaken More detailed hydrological and flora/vegetation assessments have been commissioned

Low

As above

Low

Desktop scoping study has been undertaken Flora and vegetation surveys have been commissioned 3 4 Low As above Desktop scoping study has been undertaken. Level 2 flora and vegetation survey commissioned to cover 2 seasons As above

Medium

Spills and leaks (acute/chronic/ cumulative)

Loss of vegetation

Low

Reduced plant growth

Low

Appendix 1 Consequence Consequence Residual risk Inherent risk

Likelihood

Environmental Aspect

Potential impacts

Assumptions/ comments

Potential mitigation

Likelihood

Assumptions/ comments

Confidence level

Dust emissions (from vehicle movements, dust lift-off from bare surfaces) Vehicle movements

Retarded growth due to smothering of foliage

V low

assumes a critical asset is present. Could be critical asset present Will be highly localised (e.g. restricted to edge of disturbance areas) and assumes no critical assets present Could result in long term effects Weed management plan (hygiene, weed control, monitoring etc.)

Introduction and/or spread of weeds Decline in health and/or death of groundwaterdependent vegetation (where groundwater drawdown occurs)

Medium

Low

Dewatering and/or groundwater abstraction

Medium

Assumes drawdown of alluvial aquifers

Montoring to determine if there is any affect and using another

Low

Desktop scoping study has been undertaken. Level 2 flora/vegetation and fauna surveys commissioned to cover 2 seasons Desktop scoping study has been undertaken. Level 2 flora and vegetation survey commissioned to cover 2 seasons Desktop scoping study has been undertaken. Level 2 flora and vegetation survey commissioned to cover 2 seasons

Appendix 4

Examples of Outcome-based Conditions Discussion paper prepared for the EIA Review

(Subject to comment from the Stakeholder Reference Group)

Moving away from management plan conditions

Statement 735 for Dampier to Bunbury pipeline Statement 718 for Gwindinup Mineral Sands Mine Statement 757 Pluto for Liquified Natural Gas Development.

Statements that have been used to illustrate the use of outcome-based conditions are as follows:

Replacing management plan conditions with outcome-based conditions has the advantage that the focus is returned to achieving environmental outcomes (consistent with the environmental legislation) rather than the specific management measures that will be in place to achieve them. However, where environmental risk assessment suggests that specific key management or contingency measures are required to ensure an acceptable outcome, a schedule listing key management actions/measures may be included in the Statement together with a condition requiring their implementation. This approach will also simplify compliance reporting requirements and ensure that it focuses on key issues. 1.1 Requirements of conditions

The requirements of conditions can be grouped as follows: further investigations remediation or rehabilitation specific key management, or contingency measures baseline and performance monitoring bonds compliance and performance reporting decommissioning.

Management plans have sometimes been required to address all of the above requirements. The following sections address how outcome or performance-based conditions can address the above requirements thereby avoiding the need for subsequent approval of management plans. 1.1.1 Further investigation and avoidance requirements

A condition may require a further investigation where the overall project has been judged environmentally acceptable but additional information is required prior to construction to determine exactly the extent of impact and develop final management measures. This requirement is included with requirements to submit the investigation results and to prepare a management plan within which the results are to be addressed. 1.1.1.1 Example: Condition 7, Statement 735 Dampier to Bunbury pipeline

This condition read as follows:

7.1

Prior to the commencement of vegetation clearing, the proponent shall submit a report to the CEO which details the results of the spring surveys undertaken in 2006. This report shall: 1. 2. 3. Record the location of any Declared Rare, Priority Flora and other species of conservation significance; Identify any Threatened Ecological Communities and other environmentally sensitive areas; Describe the habitat in which specially protected or conservation-significant flora species are found, and the extent of the contiguous area of the same habitat in the local area; Specify the degree of impact of the proposed works on specially protected or conservation-significant flora species, its identified contiguous habitat or Threatened Ecological Communities and other environmentally sensitive areas;

4.

7.2

Prior to the commencement of vegetation clearing, the proponent shall prepare, in consultation with the Department of Environment and Conservation, a Flora and Vegetation Management Plan, which shall: 1. Identify the proposed management strategy for the protection of Declared Rare Flora, Priority Flora, Threatened Ecological Communities, other conservation-significant species and other environmentally sensitive areas identified; and 2. Include a post activity monitoring plan for specially protected or conservationsignificant flora species.

7.3 7.4

The proponent shall implement the Flora and Vegetation Management Plan required by condition 7.2. The proponent shall make the Flora and Vegetation Management Plan required by 7.2 publicly available in a manner approved by the CEO.

In addition, condition 8 in the Statement required the proponent: to delineate areas of disturbance on the ground not to cause disturbance to vegetation outside areas of disturbance not to cause disturbance to vegetation outside the 20 m easement in environmentally sensitive areas.

Recasting condition 7 in an outcome or performance-based form it would in summary, read as follows: 7.1 would remain unchanged.

Condition 7.2 requires preparation of a management plan covering a variety of topics. The requirement for a plan could be replaced with an outcome-based requirement (in addition to those specified in condition 8) to avoid clearing flora species and vegetation of conservation significance as follows: 7.2 The proponent shall not disturb vegetation or flora with the following conservation status identified by the spring flora surveys referred to in condition 7.1 - unless otherwise authorised by the CEO of DEC; 1. Declared Rare Flora and Priority Flora

2.

Threatened Ecological Communities.

Adding the words unless otherwise approved by the CEO of DEC gives some flexibility to the proponent to seek approval for unavoidable disturbance. However, no additional approvals should be required if the avoidance condition is met. Conditions that require the proponent to avoid disturbance of a particular environmental value are a simple example of an outcome-based condition. This type of condition may be applied to avoidance of clearing conservation significant flora or vegetation but may also be applied to limiting the footprint so that heritage sites, wetland buffers, riparian zones etc are protected. Condition 7-2 also contains a requirement for preparing a monitoring plan in consultation with DEC. The monitoring plan is not prescribed in the condition. Recasting this requirement in a form that would make monitoring requirements clear may read as follows in a separate condition: 7.3 7.4 7.5 7.6 The proponent shall monitor flora and vegetation of conservation significance within 200 m of the disturbance footprint (as identified in the flora surveys referred to in Condition 7.1) The monitoring required by condition 7.3 shall be conducted in spring over 2 consecutive years following construction. The monitoring required by condition 7.3 shall determine the condition, abundance and extent of conservation significant species and communities. The proponent shall submit the results of the monitoring programme to DEC within 6 months of completing the second spring survey.

The original conditions 7.3 and 7.4 may then be deleted. 1.1.2 Requirements for remediation or rehabilitation

The requirement for clean up or rehabilitation has generally resulted in a management plan condition being applied. These conditions have generally outlined the objectives of the plan, the required content of the plan (sometimes detailing outcomes required) and the review and reporting requirements. The key outcome required however, is that the rehabilitation is carried out to an acceptable standard in an appropriate timeframe. 1.1.2.1 Example: Condition 8 of Statement 718 for Gwindinup Mineral Sands Mine requiring preparation and implementation of an Integrated Mining and Rehabilitation Plan

The condition prescribes the objectives of the plan and 15 other requirements of the plan (including collection of baseline information, preparation of other management plans, rehabilitation criteria, stakeholder consultation, monitoring etc), to the requirements of the Minister on the advice of several agencies. The condition reads as follows: 8-1 The proponent shall carry out rehabilitation in accordance with an Integrated Mining and Rehabilitation Plan prepared to the requirements of the Minister for the Environment on advice of the Environmental Protection Authority, the Department of Conservation and Land Management and the Department of Industry and Resources.

The objectives of this Plan are: to ensure that rehabilitation and closure planning are considered as an integral part of mine planning, development and operation; and to ensure that rehabilitation and closure are subsequently carried out successfully.

The areas to be rehabilitated are shown on figure 2 and figure 3 of schedule 1. This Plan shall include the following: 1. 2. Re-introduction of native vegetation in all rehabilitation areas using native plant species of local provenance; Preparation of an ecological baseline for vegetation coverage which includes highresolution mapping (showing geographic coordinates) and assessment prior to clearing; Collection of baseline information on the pre-mining soil profiles; Collection of baseline information on the hydrology of the Gwindinup North site; including surface expressions of the groundwater (paluslope wetlands) and Gynudup Brook, before mining; Collection of baseline information on the hydrology of the Gwindinup South site before mining; Preparation of plans for re-establishing soil and hydrological conditions comparable to those which existed before mining, for both the Gwindinup North and Gwindinup South sites; procedures for soil profile restoration; restoration of hydrogeological characteristics; revegetation (including Priority Flora); and dieback and weed control; Specific rehabilitation criteria to be achieved for the re-establishment of vegetation comparable to the pre-mining vegetation type for each area, including criteria for the re-establishment of all Priority species and any other species of particular conservation significance, such as undescribed species of flora; Objectives, requirements and framework for stakeholder consultation and reporting; Protection of remnant vegetation on the mining lease areas from mining and nonmining impacts;

3. 4.

5. 6.

7.

8. 9.

10. A final land use/landform plan;

11. A strategy which integrates the mining and rehabilitation schedules and requirements; 12. A programme to monitor rehabilitation success and to compare with criteria to be achieved; 13. Contingency measures in the event that expected performance is not achieved; and 14. Internal review, audit and continual improvement. 8-2 The proponent shall make the Integrated Mining and Rehabilitation Plan required by condition 81 publicly available.

Expressing rehabilitation requirements in an outcome-based form is a greater challenge than other requirements because of the complexity of rehabilitation and the performance of rehabilitation over

time is usually uncertain. Rehabilitation is more suited to an adaptive management approach which should be reflected through any condition imposed. Rehabilitation requirements may also duplicate requirements set under the Mines Act. A rehabilitation condition in outcome or performance-based form may include the following requirements: baseline surveys the area to be rehabilitated performance or completion criteria rehabilitation monitoring timeframe for achieving rehabilitation milestones.

A rehabilitation condition replacing condition 8 above may be as follows: 1. The proponent shall conduct surveys to collect the following baseline information prior to mining: 2. pre-mining soil profiles groundwater levels.

The proponent shall commence rehabilitation of mined area described in Schedule 1 as mining progresses in accordance with the following: final land use indicated for the mined areas in Schedule 1 or as otherwise approved by the CEO of DEC re-establishment of vegetation in rehabilitation area shall be comparable to that of the pre-mining vegetation such that the following criteria are achieved within xx years (or as otherwise approved by the CEO of DEC): species diversity is >75% of the known original species diversity % plant coverage (not including weeds) is >80% on average % weed coverage is <10%.

3.

The proponent shall monitor progressively, the performance of rehabilitation against criteria in 2 above based on annual monitoring in spring of xx 10 m x 10 m quadrats per hectare of rehabilitation. The results of rehabilitation shall be reported annually to the CEO of DEC and the annual report shall address the following: progress towards meeting criteria in 2 above and milestone criteria before then contingency measures where criteria are unlikely to be achieved etc.

4.

Further information on the rehabilitation process would be provided as part of the impact assessment documentation.

1.1.3 1.1.3.1

Management or contingency actions Example: Condition 10 Statement 718 for the Gwindinup Mineral Sands Mine requiring a Groundwater Monitoring and Management Plan to be prepared, approved and implemented

The condition prescribes the objectives and outlined what the plan should contain and reads as follows: 10-1 Prior to any ground-disturbing activities and during mining, the proponent shall monitor groundwater in accordance with a Groundwater Monitoring and Management Plan prepared in consultation with adjoining and nearby landowners and to the requirements of the Minister for the Environment on advice of the Department of Environment and the Department of Conservation and Land Management. The objectives of this Plan are: to take management action to avoid impacts upon native vegetation adjacent to the Gwindinup North and Gwindinup South mining areas; to manage impacts on local water supplies; and to monitor groundwater levels.

This Plan shall: 1. 2. 3. 4. 5. include baseline data on native vegetation health prior to mining or groundwater extraction; define locations for groundwater monitoring stations; define trigger levels for management actions to be taken in the event that impacts on groundwater are likely to affect native vegetation; define management actions (contingency measures) to be implemented in the event that unacceptable impacts on native vegetation occur as a result of groundwater drawdown; define management actions (contingency measures) to be implemented in the event that unacceptable impacts on local water supplies occur as a result of groundwater drawdown; and to establish procedures for landowners to report any interruptions to their water supplies, and for the timely resolution as to whether this has been caused by mining operations, along with the timely reinstatement of a similar capacity water supply; and be subject to independent technical review prior to finalisation.

6.

10-2 The proponent shall make the Groundwater Monitoring and Management Plan required by condition 10-1 publicly available. The condition may be replaced with an outcome-based condition as follows: 8.1. Mine dewatering shall not result in groundwater drawdowns of more than 1 m within 500 m of the mining tenement boundary shown in Schedule 1. This condition may be accompanied by performance monitoring and reporting requirements prescribed in separate conditions.

In some cases there is insufficient certainty to define a set environmental outcome during the EPA assessment and a more of adaptive management approach would be best reflected in conditions. For example the following requirements could be addressed by conditions in these circumstances: Groundwater drawdown shall be adaptively managed as follows: 8.2.At least 1 year prior to dewatering, the proponent shall install groundwater monitoring wells at a density of xx wells per hectare of the modelled dewatering impact zone. 8.3.The proponent shall monitor water levels in the monitoring wells xx monthly prior to dewatering commencing and xx weekly during dewatering. 8.4.The proponent shall immediately cease or reduce groundwater abstraction if groundwater drawdowns 200 m from where mine dewatering occurs are 20% greater than groundwater drawdown specified in condition xx. Groundwater abstraction must cease until the groundwater levels has returned to within 20% of the specified drawdown level. 8.5.The proponent shall monitor vegetation condition monitoring in drawdown area xx monthly in summer and autumn during the first year of dewatering. 8.6.The proponent shall conduct an investigation if an adverse change in condition rating is recorded to determine whether the cause of the change was related to dewatering. 1.1.4 1.1.4.1 Dredging condition Example: Condition 6 (dredging impacts) in Statement 757 the Pluto Liquefied Natural Gas Development

Condition 6 consists of 14 parts and includes a number of requirements including: containment of impact to a nominated area impact trigger values (contained in a schedule) report exceedences of trigger values actions when exceeding trigger values prepare and implement dredge impact management plan for approval resourcing of management group to advise the Minister prepare and submit a baseline marine habitat survey report for approval conduct field surveys in accordance with approved survey report.

The condition reads as follows: 6-1 The proponent shall undertake all works to ensure that the Limits of Coral Loss, specified in Schedule 2, associated with each of the designated Impact Criteria Zones described and defined in Figure 3, are not exceeded. If any Level 1 Coral Condition Management Trigger Criterion referred to in Schedule 3 is exceeded, within 12 hours following detection of the exceedance, the proponent shall notify the CEO and provide details of the actions being taken to reduce turbidity-generating activities which are affecting that site; and within 24 hours of the criterion being exceeded, the proponent

6-2

shall implement management actions to keep impacts within approved limits specified in schedule 2. 6-3 If any Level 2 Coral Condition Management Trigger Criterion referred to in schedule 3 is exceeded at any monitoring site, the proponent shall: 1. 2. immediately suspend all dredging and dredge spoil activities that contributed to the exceedance; provide a report to the CEO on the measures to be implemented to keep impacts below the limits in schedule 2, prior to recommencing any dredging and dredge spoil activities that contributed to the exceedance which could affect that site; and provide a report, on advice of the Dredge Environmental Management Group, defining marine water quality conditions which will be met for the endorsement of the Minister for the Environment on advice of the CEO to allow for the recommencement of dredging to ensure that mortality and / or impacts will not exceed the limits specified in schedule 2.

3.

6-4

If any Level 3 Coral Condition Management Trigger Criterion referred to in schedule 3 is exceeded at any monitoring site, the proponent shall: 1. 2. immediately suspend all dredging and dredge spoil activities that contributed to the exceedence; and provide a report to the Minister for the Environment regarding the non-compliance with condition 6-1.

6-5

Prior to commencement of turbidity-generating activities, the proponent shall prepare a Dredge Impact Management Plan for dredge activities which demonstrates that the activities can achieve the management targets for the Marine Park as set out in the Indicative Management Plan for the Proposed Dampier Archipelago Marine Park and Cape Preston Marine Management Area, and which demonstrates that management strategies will be employed which will minimise impacts on benthic habitats and communities (including corals) outside the Marine Park, to the requirements of the Minister on advice of the Environmental Protection Authority. This Plan shall address the following: 1. 2. 3. 4. 5. 6. 7. comprehensive monitoring of water quality, sediment deposition, and coral condition; best practice dredge procedures; selection of a suitable location for the off-shore spoil ground which demonstrably does not cause impacts on the Marine Park; optimum timing of works with respect to sea and meteorological conditions; establishment of conservative stop work trigger levels; identification and temporal definition of key ecological windows when dredging activity will not occur, such as during coral spawning periods; and contingency plans.

Further details on the content required in this Plan is provided in schedule 4.

6-6 6-7 6-8

The proponent shall implement the Dredge Impact Management Plan required by condition 6-5. The proponent shall make the Dredge Impact Management Plan required by condition 6-5 publicly available in a manner approved by the CEO. The proponent shall resource a Dredge Environmental Management Group for the duration of the marine works and for such time before and after the marine works so as to carry out its function, to the requirements of the Minister for the Environment. The role of the Dredge Environmental Management Group is to provide the Minister for the Environment, the Department of Environment and Conservation and the proponent with advice including, but not limited to: 1. 2. 3. 4. 5. 6. 7. the marine management plans; the marine monitoring programmes; the management of turbidity-generating activities and marine works; impacts on marine fauna and flora, including corals; reporting; new management measures; and Level 1 and 2 Coral Condition Management Trigger Criteria for Zone C as required in Schedule 3.

The membership of the Dredge Environmental Management Group may include: an independent chair appointed by the Minister for the Environment on advice from the CEO; and experts appointed by the Minister for the Environment;

and the following may nominate one member each: 6-9 the Department of Fisheries; the Dampier Port Authority; the Department of Environment and Conservation; and the proponent.

Prior to commencement of any marine works, the proponent shall prepare and submit to the Department of Environment and Conservation, a Scope of Baseline Marine Habitat Survey document to the requirements of the Minister for the Environment. The objective of this document is to specify procedures to quantitatively determine the predevelopment baseline distribution, community composition and health of benthic marine habitats (see note below) within the area which may be affected by any works associated with the proposal. This document shall address the following: 8.7.survey methods;

8.8.location and establishment of survey sites; 8.9.timing and frequency of surveys; 8.10. habitat classification schemes; 8.11. treatment of survey data; and 8.12. mapping methodologies. Note: Marine habitats includes hard and soft coral communities, sponge communities, seagrass and macro-algal communities. 6-10 The proponent shall provide an initial report on a detailed survey of coral habitat and communities, and a map showing the general distribution of other benthic habitat types (including soft corals, sponges, algal reef communities) within and adjacent to the area of predicted effects of dredging to the Department of Environment and Conservation at least one month prior to the commencement of dredging. 6-11 The proponent shall conduct a comprehensive field survey, consistent with the approved Scope of Baseline Marine Habitat Survey document, and provide a report of the results to the Department of Environment and Conservation within six months following commencement of any marine works associated with the proposal. This report shall: 1. contain spatially accurate (e.g. rectified and geographically referenced) maps showing the locations and spatial extent of the different marine habitat types and percentage cover of each component of their associated benthic communities including corals, macroalgae, non-coral macro-invertebrates and seagrass; 2. record the existing hard and soft corals, macroalgae, non-coral benthic macroinvertebrates, seagrass and demersal fish observed within the communities; 3. record the population structure, as size class frequency distributions, and other population statistics, such as recruitment, survival and growth, of key hard coral species; 4. evaluate baseline pre-development health of the benthic communities at representative survey sites; and 5. include data provided in an appropriate Geographic Information System data set format. 6-12 Within three months following completion of the marine works, the proponent shall repeat the Comprehensive Field Survey required by condition 6-11, and shall submit a report on the results of that survey to the Department of Environment and Conservation. This will constitute the first Post-Dredging Marine Habitat Survey, reporting any changes which may have occurred between the Baseline Marine Habitat Survey and the first PostDredging Marine Habitat Survey. 6-13 The proponent shall repeat the Post-Dredging Marine Habitat Survey referred to in condition 6-12, at the same time of the year annually for three years, or until such time, as determined by the Minister for the Environment on advice of the Department of Environment and Conservation and the Department of Fisheries.

6-14 Within three months following completion of each of the surveys required by conditions 6-12 and 6-13, the proponent shall report the findings of each of the surveys to the Department of Environment and Conservation. This condition is an example of how avoidance conditions, triggers and contingencies have been historically incorporated into a Statement. The contingency actions are included as conditions and the triggers as a Schedule. Under an outcome-based approach, this condition may be modified (without questioning the trigger levels set) as follows: The required outcome in this condition would be retained but the condition reworded to more clearly state the outcome required for coral loss (schedule 2). This condition requires the development and implementation of management measures when a trigger level (level 1) are exceeded, which is below the limit of impact permitted in 6.1, to ensure these limits are not exceeded. Under an outcomes-based approach it is questionable whether this condition is necessary other than to report on the trigger value being exceeded, corrective and preventative actions being taken and the level of anticipated risk to the marine environment. The proponent would still be bound by the limits in 6.1. As with 6.2, this condition requires the development and implementation of a management response when level 2 triggers are exceeded to keep impacts below limits in 6.1 but in the mean time, dredging would cease immediately. Under an outcomes-based approach it is questionable whether this condition is necessary other than to report on the trigger value being exceeded, corrective and preventative actions being taken and the level of anticipated risk to marine environment. As with 6.3, this condition requires the immediate cessation of dredging and a report to the Minister if level 3 triggers are exceeded which are equivalent to the limit of impact in 6.1. Under an outcomes-based approach this condition may be appropriate given that the limit is exceeded and provided the level of risk to the marine environment would be high if dredging continued. The dredge would remain shutdown until it could be established that the level of risk to the marine environment was acceptable under new management actions or new limits of impact were authorised. Condition 6-5 in the statement requires a management plan to be prepared. This is unnecessary as the scope of the required management plan repeats the requirements that have already been clearly set out in other conditions. This condition would be deleted. As for 6-5. As for 6.5. This requires the resourcing of a management group (composed of government agencies and experts appointed by the Minister) to advise the Minister on management plans, programmes, impacts, reporting, management measures and triggers. Under a risk-based and outcome-based approach, an expert group may be appropriate to provide advice on the proposed management actions and the risk assessment prepared by the proponent in the event of level 3 trigger being exceeded. This condition requires a baseline monitoring programme and would be consistent with an outcome-based approach. As for 6-9.

As for 6-10. As for 6-11. as for 6-12. as for 6-13. Condition 6 may be reworded as follows 6-1 6-2 The proponent shall cause no loss of coral in excess of the limits of coral loss in impact zones prescribed in Schedule 2. If any Level 1 or 2 Coral Condition Management Trigger Criterion prescribed in schedule 3 is exceeded, within 12 hours following detection of the exceedance, the proponent shall notify the CEO, provide details of the actions being taken to reduce turbidity-generating activities which are affecting that site and provide an assessment of risk to the marine environment once the new management actions are implemented. The proponent shall immediately suspend all dredging and dredge spoil disposal activities, until the Minister advises otherwise, that contribute to the exceedence of any Level 3 Coral Condition Management Trigger Criterion at any monitoring site within each impact zone referred to in schedule 3. The proponent shall provide a report to the Minister for the Environment on any exceedence of the limits prescribed in condition 6.1. The proponent shall in the report required by condition 6.4, provide details of any new actions that will be taken to reduce turbidity-generating activities which are affecting that site and provide an assessment of risk to the marine environment once any new management actions are implemented. The proponent shall provide a peer review report of the risk assessment and proposed management actions required in condition 6.5 by an independent expert group acceptable to the Minister together with the report required by condition 6.4. Prior to commencement of any marine works, the proponent shall prepare and submit, a Marine Habitat Baseline and Dredging Survey Programme for the approval by the Department of Environment and Conservation. This programme shall address the following: 1. 2. 3. 4. 5. 6. survey methods for baseline and subsequent surveys following commencement and completion of dredging. location and establishment of survey sites. timing and frequency of surveys. habitat classification schemes. treatment of survey data. mapping methodologies.

6-3

6.4 6.5

6-6

6-7

Note: Marine habitats includes hard and soft coral communities, sponge communities, seagrass and macro-algal communities. 6-8 The proponent shall provide an initial report on a detailed survey of coral habitat and communities, and a map showing the general distribution of other benthic habitat types (including soft corals, sponges, algal reef communities) within and adjacent to the area of predicted effects of dredging to the Department of Environment and Conservation at least one month prior to the commencement of dredging. The proponent shall conduct a comprehensive field survey, consistent with the approved Marine Habitat Baseline and Dredging Survey Programme and provide a report of the results to the Department of Environment and Conservation within six months following commencement of any marine works associated with the proposal. This report shall: 1. contain spatially accurate (e.g. rectified and geographically referenced) maps showing the locations and spatial extent of the different marine habitat types and percentage cover of each component of their associated benthic communities including corals, macroalgae, non-coral macro-invertebrates and seagrass. record the existing hard and soft corals, macroalgae, non-coral benthic macroinvertebrates, seagrass and demersal fish observed within the communities. record the population structure, as size class frequency distributions, and other population statistics, such as recruitment, survival and growth, of key hard coral species. evaluate baseline pre-development health of the benthic communities at representative survey sites. include data provided in an appropriate Geographic Information System data set format.

6-9

2. 3. 4. 5.

6-10 Within three months following completion of the marine works, the proponent shall repeat the Comprehensive Field Survey required by condition 6-9, and shall submit a report on the results of that survey to the Department of Environment and Conservation. This will constitute the first Post-Dredging Marine Habitat Survey, reporting any changes which may have occurred between the Baseline Marine Habitat Survey and the first PostDredging Marine Habitat Survey. 6-11 The proponent shall repeat the Post-Dredging Marine Habitat Survey referred to in condition 6-12, at the same time of the year annually for three years, or until such time, as determined by the Minister for the Environment on advice of the Department of Environment and Conservation and the Department of Fisheries. 6-12 Within three months following completion of each of the surveys required by conditions 6-10 and 6-11, the proponent shall report the findings of each of the surveys to the Department of Environment and Conservation.

Appendix 5

Draft Administrative Procedures Discussion paper prepared for the EIA Review

(subject to comment from the Stakeholder Reference Group)

Proposed Administrative Procedures

Environmental Impact Assessment Administrative Procedures 2008 prepared pursuant to section 122 of the Environmental Protection Act 1986 These Administrative Procedures are published as provided for under section 122 of the Environmental Protection Act 1986 (the Act). These Administrative Procedures set out the standard administrative processes and decision making framework that will be applied in exercising the statutory powers relating to environmental impact assessment under Part IV of the Act. Failure to comply with these administrative procedures does not constitute an offence under the Act, but may result in delays in completing administrative processes or necessitate the recommencement of assessment processes. These procedures should be read in conjunction with the Act, the relevant regulations established under the Act, and guidelines published by the EPA. 1. Citation These procedures may be cited as the Environmental Impact Assessment Administrative Procedures 2008. 2. 2.1. Interpretation Derived proposal means a proposal that is subject to conditions of an assessed strategic proposal and raises no new environmental risks, the environmental risks raised by the proposal were adequately assessed when the strategic proposal was assessed and there is no new information that would justify a re-assessment of these risks. Environment has the meaning as defined under section 3 of the Environmental Protection Act 1986. Environmental aspect means an element or activity of a proposal or scheme that may interact with a component of the environment. Environmental impact means a change in a component of the environment resulting from an environmental aspect of a proposal or scheme. Implementation condition means a condition of a Statement issued by the Minister for the Environment to permit the implementation of a proposal or scheme. Minister means the Minister responsible for the administration of the Environmental Protection Act 1986. Original proposal means a proposal or scheme for which a Statement has been issued by the Minister for the Environment to permit its implementation. Proponent means the person or public authority responsible for a proposal or scheme. Proposal has the meaning as defined under section 3 of the Environmental Protection Act 1986. Referral means a proposal or scheme that has been referred to the Environmental Protection Authority for consideration under Part IV of the Environmental Protection Act 1986.

2.2. 2.3. 2.4. 2.5. 2.6. 2.7. 2.8. 2.9. 2.10.

2.11. 2.12. 2.13. 2.14. 2.15. 3. 3.1.

Risk means the chance of something happening that will have an effect on a component of the environment. Scheme has the meaning as defined under section 3 of the Environmental Protection Act 1986. Significant proposal means a proposal likely, if implemented, to have a significant effect on the environment. Statement means a statement published by the Minister that a proposal may be implemented subject to any implementation conditions. Strategic proposal has the meaning as defined under section 3 of the Environmental Protection Act 1986. Purpose and objective of Administrative Procedures and environmental impact assessment The purpose of these Administrative Procedures is to set out the procedures that will be applied by the Environmental Protection Authority (the EPA) and its supporting agency for processing proposals and schemes that are received and considered under Part IV of the Act. The purpose of the environmental impact assessment (EIA) process in Western Australia is to ensure that there is an opportunity for the Government and the community to be engaged in the assessment of the environmental impacts of environmentally significant proposals and schemes, and to ensure the environment is protected should a proposal or scheme be implemented. The objective of EIA is to ensure that proposals and schemes are environmentally acceptable and implementation can be managed to achieve desired outcomes. The objective of these Administrative Procedures is to facilitate the achievement of the purpose and objective of EIA consistent with EIA process principles and the provisions of the Act. EIA Process Principles to be applied in decision making

3.2.

3.3. 3.4.

4. 4.1.

In exercising its statutory powers under the provisions of Part IV of the Act, the EPA and its administering agency will consider the Objects of the Act, the objective and purpose of EIA and the EIA Process Principles outlined below in all decisions made under Part IV and other relevant provisions of the Act. Consideration of environmental aspects. All decisions will consider the short and long term and cumulative impacts of environmental aspects of proposals and schemes on the environment. Risk-based assessment of potential impacts. A systematic, rigorous and transparent risk based assessment is required to identify and characterise the significant potential impacts associated with proposals and schemes, and that decisions made are in proportion to the significance of the environmental risks posed by the environmental aspects of a proposal or scheme.

4.2.

4.3.

4.4.

Consideration of alternatives or options. All assessments are required to consider options or alternatives wherever practicable in order that an optimal environmental outcome may be achieved. Proponent responsibility for determining environmental impact assessments of their proposals. The proponent is responsible for undertaking environmental assessments to demonstrate that all reasonable and practicable measures are taken, and that any residual risks or impacts are acceptable. Community engagement. Effective community engagement (including with the indigenous community) is required to ensure that the community clearly understands the potential impacts and proposed management measures of proposals and schemes, and to allow the community the opportunity to provide input into the decision making process. Pursuit of best practice. Each proposal and scheme must demonstrate that the practices and processes are towards best practice by taking all reasonable and practicable measures to reduce any detrimental effects to lowest levels reasonably achievable (this includes that there are systems in place for management of environmental risks and impacts and for continuous improvement of environmental performance). Accountability and Transparency. Clear rules and processes that describe the decisions, the decision making criteria, and the basis for decisions, are appropriately documented and made available to the proponent, DMA, the community and other interested parties. Communication. In all decision making processes, an emphasis is placed on clear and regular communication between the agencies, the proponent, the community and other stakeholders. The use of plain English and clear and concise correspondence is preferred. Sound science as a justification. Evidence based decision making using the best available information will be the standard approach. Identification of environmental hazards, risks, industry best practice and best available technology economically achievable will need to be presented and demonstrated using standard methods. Fairness, equity and consistency. Procedures and processes will be applied in a consistent manner with equity and integrity. Timeliness and quality. Performance standards are established and communicated at the beginning of processes and these are monitored and reported against. Peer review. Where the potential environmental consequences are high, or there is sufficient uncertainty or complexity to research, a peer review process will be used to provide further confidence in the assessment process. Decision making on referred proposals, changes to an original proposal and changes to implementation conditions

4.5.

4.6.

4.7.

4.8.

4.9.

4.10.

4.11. 4.12. 4.13.

5. 5.1.

Figures 1, 2 and 3 illustrate the administrative procedures for the environmental impact assessment of proposals, changes to an original proposal, changes to implementation conditions, strategic proposals and schemes, that will be applied by the EPA in exercising its statutory powers and powers delegated to it under Part IV and other relevant provisions of the Act. Upon referral of a proposal or a change to an original proposal or an implementation condition, the EPA will:

5.2.

a) b)

Decide whether sufficient information is provided with the referral to make a decision under this Section. Where insufficient information is provided with the referral to make a decision under this section, request further information from the person who referred the proposal and will not proceed to consider any further the referral until the required information is supplied. Decide whether the proposal is a strategic proposal and subject to the assessment procedure described in Section 19. Decide whether the proposal or change to an original proposal is a derived proposal (pursuant to s. 39A of the Act). Decide whether the proposal, change to an original proposal as implemented or change to implementation conditions is likely to have a significant detrimental effect on the environment. Decide whether the change to an original proposal as implemented is likely to have a detrimental effect in addition to or different from the original proposal as implemented. Where a proposal is unlikely to have a significant detrimental effect, the EPA will advise the person who referred the proposal or change and the proponent accordingly and the EPA will not consider the proposal or change further. Where a change to an original proposal is unlikely to have a detrimental effect in addition to or different from the original proposal as implemented, the proposal or change will not be considered further and the proponent will be advised accordingly. Where a change to an original proposal as implemented is unlikely to have a significant detrimental effect on the environment but might have a detrimental effect in addition to or different from the original proposal as implemented, the EPA will require the change(s) to be subject to the approval process outlined in Section 10. Where a proposal, change to an original proposal or change to an implementation condition is likely to have a significant effect on the environment, the EPA will:

c) d) e)

f) 5.3.

5.4.

5.5.

5.6. a)

Decide whether the proposal or change to an original proposal is likely to be environmentally unacceptable.

b) Decide whether the proposal or change to an original proposal will be assessed and if so, at what level, and advertise its decision in a statewide newspaper and on the EPAs website. c) Decide the assessment procedure that will be applied to an inquiry by the EPA into a change to an implementation conditions requested by the Minister in accordance with these procedures.

6. 6.1.

Determination of whether sufficient information has been submitted for a decision on referral The EPA may consider that sufficient information accompanies the referral where a completed referral form with appropriate detail, including spatial data in the required format, is submitted.

6.2.

Notwithstanding the completion of a referral form the Authority may require additional information, including the following: a) a description of the proposal, changes to an original proposal or changes to implementation conditions; b) the environmental setting; c) the relevant environmental aspects; d) the potential environmental impacts and environmental risks that may arise from relevant environmental aspects; and e) the controls that are proposed to address identified environmental risks, with particular reference to the mitigation hierarchy.

7. 7.1.

Request for additional information upon receipt of referral Where the EPA considers that insufficient information has been included with the referral to make a decision as to whether: a) to assess, and if so at what level, a proposal or a change to an original proposal; or b) the extent of inquiry into a change to implementation conditions; or c) whether to declare a proposal or a change to an original proposal a derived proposal, the EPA may request further information in writing from the proponent and/or advising agencies to be supplied within a time specified by the EPA. 7.2. The EPA may proceed to assess and set the level of assessment for a proposal or a change to an original proposal or inquire into a change to implementation conditions based on available information if further information is not forthcoming within the time specified by the EPA. Proposal, change to original proposal or change to implementation conditions considered likely to be environmentally unacceptable upon referral 8.1. The EPA may consider a proposal, change to an original proposal or change to implementation conditions is unlikely to be environmentally acceptable if: a) unacceptable and irreversible impacts are likely to occur to critical environmental or high value assets; and/or

8.

b) it is clearly inconsistent with statutory requirements or with EPA or other Government environmental policies or standards. 8.2. a) Where the EPA considers upon referral, that a proposal, change to an original proposal or change to implementation conditions may be environmentally unacceptable, the EPA will: provide advice to the proponent that the proposal or change is unlikely to be environmentally acceptable and advise that:

(i) the proponent may withdraw the proposal, or provide additional information to indicate why the environmental impact of the proposal is not unacceptable, within a time specified by the EPA; and (ii) the EPA intends to advise the Minister that the proposal should not be implemented. 8.2.1. If the proponent does not satisfactorily respond within the required time or the response does not materially change the unacceptability of the proposal, change to the original proposal or a change to implementation conditions, the EPA will advise the Minister accordingly.

9. 9.1.

Decision not to assess a proposal or changes to an original proposal The EPA may determine not to assess a proposal or a change to an original proposal where: a) the environmental risks of the proposal or change to an original proposal are low and the predicted environmental impacts are localised; or

b) adequate regulatory controls already exist (eg within Part V or can be applied by the referring body) to manage environmental impacts to reasonable and practicable levels; or c) 9.2. the change to the original proposal is unlikely to have a significant effect on the environment in addition to or different from the effect of the original proposal. The EPA may provide advice and/or recommendations to the proponent when it decides not to assess a proposal or a change to an original proposal where it considers that further actions can be taken by the proponent to pursue the principles of environmental protection and the objects of the Act. Application for approval to change an original proposal that is unlikely to have a significant detrimental effect on the environment in addition to or different from the original proposal Where the EPA considers a change to an original proposal may have an effect on the environment in addition to or different from the effect of the original proposal but is unlikely to be significant, the EPA will assess the change pursuant to s. 45C of the Act in accordance with the delegation from the Minister pursuant to s.18 of the Act. The application to the EPA for the approval of the change to the original proposal pursuant to s. 45C shall address the following: a) b) c) d) e) f) the content of the original proposal as implemented; the detrimental effects of the original proposal as implemented; the content of the proposed changes; any detrimental effects of the proposed changes; any detrimental effects in addition to or different from the original proposal as implemented; and significance of any detrimental effects of the changes that are in addition to or different from original proposal as implemented.

10. 10.1.

10.2.

11. 11.1. 11.2.

Decision as to whether a proposal or a change to an original proposal is a derived proposal The EPA may refuse to declare a proposal or a change to an original proposal a derived proposal on the basis of criteria prescribed in s. 39B of the Act. The EPA will require any request for a declaration of derived proposal to include the following information: a) description of the environmental setting including assessment of any new information on the local environment that has become available since the strategic proposal was assessed by the EPA; environmental factors affected by the proposal or a change to an original proposal and considered in the assessment of the relevant strategic proposal by the EPA; environmental issues (including environmental aspects and risks) arising from the proposal or a change to an original proposal and considered in the assessment of the relevant strategic proposal by the EPA; and environmental controls or conditions imposed on the relevant strategic proposal assessed by the EPA. The EPA, following its assessment of the request for declaration of the referred proposal or a change to an original proposal as a derived proposal will: a) b) declare the proposal or change to an original proposal a derived proposal, advise the proponent accordingly, and advertise publicly its decision; declare the proposal or change to an original proposal a derived proposal but inquire into whether the implementation conditions applying to the assessed strategic proposal should be changed in accordance with these Administrative Procedures, advise the proponent accordingly, and advertise publicly its decision; or not declare the proposal or change to an original proposal to be a derived proposal but assess it in accordance with these Administrative Procedures, advise the proponent accordingly, and advertise publicly its decision.

b) c)

d) 11.3.

c)

12. 12.1.

Decision on the assessment process to apply to changes to implementation conditions by inquiry The EPA may apply the procedures for the appropriate level of assessment (Sections 13 and 14) for inquiries into changes to implementation conditions for significant proposals when requested by the Minister if they are likely to have a significant effect on the environment. The EPA may apply the procedures for strategic environmental assessment in Section 19 for inquiries into changes to implementation conditions for strategic proposals. Determination of the level of assessment and public review period Where the EPA decides to assess a proposal or change to an original proposa,l the EPA will set the level of assessment at one of the following two levels: a) Public Environmental Review and Management Programme (PERMP) which will include public review of any environmental review document prepared by the proponent; or

12.2. 13. 13.1.

b) Assessment on Referral or Additional Information (ARAI) which will not involve public review of proponent documentation. 13.2. The EPA will require a PERMP level of assessment where a preliminary environmental risk assessment indicates that the proposal or change to an original proposal has the potential (cumulatively or otherwise) to: a) b) c) d) e) 14. 14.1. 14.2. result in significant environmental impacts at the regional (or larger) scale; result in significant environmental impacts to high or critical value assets; substantially affect public health or the public amenity of the area surrounding the proposal; have multiple significant environmental impacts; and/or be of substantial public interest.

Procedural requirements for ARAI level of assessment The EPA may proceed to assess a proposal or a change to an original proposal based on sufficient information provided with the referral. Where the EPA considers it does not have sufficient information to proceed with its assessment, the EPA will request the proponent to supply specified additional information in a specified time, relevant to assessing the proposal or the change to the original proposal. The EPA may proceed to assess the proposal and provide its report to the Minister where the information requested by the EPA is not supplied within the specified time unless other arrangements are agreed by the EPA. The EPA, following the receipt of the specified additional information, will: a) require the proponent to publish on an appropriate website information received with the referral and the specified information requested by the EPA and seek public comment for a period of not more than four weeks, or proceed to assess the proposal or change to an original proposal and provide its assessment report to the Minister. Where the EPA has requested the publication of information, the EPA will require the proponent to respond to any comments received within a specified time and will then proceed to assess the proposal or change to an original proposal and provide its assessment report to the Minister. Scoping Document requirements for PERMP level of assessment The EPA will require a proponent to prepare a Scoping Document where the level of assessment for a proposal or change to an original proposal is set at PERMP. The EPA will not require public review of a Scoping Document where: a) the proposal or change to an original proposal is relatively simple and does not require complex environmental investigations; or

14.3.

14.4.

b) 14.5.

15. 15.1. 15.2.

b) the environmental scope of the proposal does not warrant public consideration in addition to that conducted by the proponent. 15.3. The Scoping Document will require the approval of the EPA before any required environmental review, prepared by the proponent, may be submitted to the EPA for assessment or public release. Where a public review of the Scoping Document is required, the EPA will require: a) b) 15.5. a) b) c) d) e) f) g) h) i) 16. 16.1. a two week public review period; and the proponent to submit a draft Scoping Document to it for assessment before the EPA will authorise the release of the Scoping Document for public review. The EPA will not authorise the release of Scoping Document for public review or approve the Scoping Document unless it contains appropriate details on: the proposal or change(s) to the original proposal as implemented or condition of a Statement issued by the Minister for the Environment; broad description of the receiving environment and the regional environmental values; likely relevant environmental factors; environmental aspects; a preliminary environmental risk assessment, including cumulative impacts; results of previous investigations (brief summary); proposed scope and methodologies of environmental investigations to address environmental risks and any relevant EPA environmental guidelines for investigations; timetable for completion of investigations and preparation of the environmental review and management document; stakeholder consultation programme

15.4.

Requirement for the form and content of a PERMP Where the PERMP level of assessment has been set, the EPA will require proponents to prepare an PERMP document that is readily understandable by the public and addresses the following: a) b) c) d) e) the assessment process; the proposal, or change to an original proposal. or change to implementation conditions; alternatives or options; relevant environmental factors; key environmental aspects;

f)

environmental impacts, including cumulative impacts, and the level of inherent and residual environmental risks to key relevant environmental factors arising from the proposal; relevant environmental policies and procedures; risk-based assessment of environmental impacts, including cumulative impacts; consistency with relevant environmental principles, policies and guidelines, and the regional environmental values; risk treatment including management actions and any environmental offsets to mitigate significant environmental risks to high value or critical assets; stakeholder consultation and response to issues arising from consultation; management plans addressing risks to relevant environmental factors;

g) h) i) j) k) l)

m) proposed environmental conditions (outcome-based wherever practicable); and n) 17. 17.1. appendices containing key environmental investigations.

Public release of PERMP documents and proponent response to submissions The EPA will not authorise the release of the proponents PERMP document for public review unless the requirements of Section 16 and the environmental issues or relevant environmental factors identified in the approved Scoping Document are addressed. The EPA may set a period of four to twelve weeks for public review depending on the complexity and public interest in the proposal or change to an original proposal or change to implementation conditions. The EPA may extend the period of public review in the following circumstances: a) b) c) upon the request of the proponent; where submissions may be delayed because of circumstances beyond the control of the potential submitters; or where a complete set of documentation required by the EPA (including draft management plans) has not been publicly available during the public review period. For the purposes of section 40(6)(iii) of the Act, the EPA will require the proponent to: a) b) c) d) ensure all the PERMP documents are accessible via the Internet, with a link on the EPAs website; provide CDs of all the PERMP documents free of charge; charge a maximum of $5 (ex GST) for a hardcopy of the scoping document; charge a maximum of $20 (ex GST) for a hardcopy of the environmental assessment document;

17.2.

17.3.

17.4.

e) 17.5.

charge a maximum of $10 (ex GST) for a hardcopy of the Appendices. The EPA will require the proponent to prepare and submit a response in writing to issues in submissions from the community and any relevant submissions from Government agencies received during the public review period. The EPA will require the response to issues to contain the following :
1

17.6. a)

a summary of issues,

b) a detailed response to issues; and c) 17.7. any proposed amendments to the proposal, change to the original proposal or change to implementation. The EPA will review the response to issues in submission prepared by the proponent and request the proponent to consider any comments provided by the EPA in the finalisation of the response to submissions. The EPA will not assess a PERMP document and provide its report to the Minister until after the completion of the required public review period and the receipt of an appropriate response from the proponent to issues raised in submissions except where: a) b) 18. 18.1. a reasonable period has elapsed for the provision of the response; and the EPA has given notice of its intention to proceed to complete its assessment and report to the Minister.

17.8.

Changes to proposals or amendments to changes to an original proposal during assessment The EPA may consent to changes to a proposal or amendments to a change to an original proposal during the assessment provided that the change or amendment is unlikely to significantly increase any impact to the environment. Where these changes or amendments cause a significant increase in impacts compared with the original proposal, the EPA will require the proponent to refer the amended proposal as if it was a new proposal to the EPA.

18.2.

Guideline on form of responding to public comment to be developed.

New proposal/change submitted

Yes
No further consideration and referrer advised

Proposals, Changes to original proposal or Changes to implementation conditions referred to EPA

Yes No
Proposal or change withdrawn

The referral contains sufficient information to make a decision whether there is likely to be significant effect on the environment?

No

Referrer or proponent is required to provide additional information or withdraw referral

No

Yes
Is the change to the original No proposal likely to have a significant effect on the environment?

Is the proposal or change to condition likely to have a significant effect on the environment?

Yes
Proponent is required to provide additional information

No

The referral contains sufficient information to make a decision on to assess or not and level?

The change to the original proposal will be assessed as a derived proposal

Yes

Proponent advised and decision advertised

Yes Yes No
Proposal - response to proponent with or without public advice Change to conditionsreport to the Minister Proponent advised to submit a new proposal or change

No
Assess the change under section 45C as delegated by the Minister

Yes

Proposal is unlikely to be environmentally acceptable

No No
EPA will assess the proposal or change to conditions or original proposal

Yes

Is the proposal a strategic proposal?

Yes

Strategic proposal assessment process

Yes

Refer Figure 2

No
Proponent invited to Yes provide additional information/ EPA no longer considers proposal or change unacceptable/

No
Response provided to proponent along with any public advice

Yes

EPA determines assessment level

No

Is it a change to implementation conditions?

No

No No
Public review specified?

Yes

Yes

Assessment on Referral or Additional Information

Sufficient information to assess proposal or change to conditions

Public Environmental Review and Management Program

Environmental assessment released for public review

No
Public review of a scoping document be required

No

No specifies requirements for EPA

additional assessment

EPA specifies requirement for Scoping document

EPA forwards comments to proponent for response

Yes
Proponent prepares a response to the comments from public review

Proponent undertakes assessment

Yes
Proponent prepares Scoping document Proponent prepares Scoping document EPA considers that the response is adequate to the issues raised by the public submissions

No

No

Yes
EPA assesses environmental impacts and risks

No

EPA considers Scoping document suitable for public review

No

EPA considers Scoping document suitable

Yes
EPA assess environmental impacts and risks

Yes
Scoping document released for public review

Yes Yes

Proponent undertakes assessment in accordance with Scoping document

EPA forwards comments to proponent for consideration

No
EPA considers that Scoping document suitable

No

EPA considers whether assessment is consistent with Scoping Document and suitable for public review

Yes

EPA provides its Assessment Report to the Minister

Figure1 Procedures for assessing proposals and changes to an original proposals and implementation conditions

19. 19.1.

Assessment procedure for strategic proposals under the Act The EPA will seek agreements with proponents to apply strategic environmental assessment early in planning and design stages of project development and formulation of Government policies, plans and programmes that have environmental implications. The EPA will determine the assessment process that will apply to strategic proposals in consultation with the proponent and as specified in any agreement or memorandum of understanding with the proponent. The EPA may adapt strategic environmental assessment procedures to the process for development of strategic proposals by the proponent. The EPA may apply one or both of the following assessment procedures to strategic proposals as shown in Figure 2 and as described below as appropriate: a) an assessment procedure which would be developed in conjunction with the proponent according to the circumstances in which the EPA would provide non-binding advice particularly in cases involving the evaluation of options or alternatives early in the development of a strategic proposal. an assessment procedure where binding conditions may be imposed under Part IV of the Act and would resemble the process applied to significant proposals in these Administrative Procedures An outline of the strategic environmental assessment procedure is provided in Figure 2. Where the EPA requires a Scoping Document to be prepared as part of the strategic environmental assessment process, the procedure in Section 15 would apply. Assessment of schemes under Part IV of the Act The assessment process that applies to schemes is shown in Figure 3. The EPA will liaise with the responsible authority (or others on their behalf) where insufficient information is provided with a referral before the EPA makes a decision on whether or not to assess the scheme. If the EPA decides not to assess the scheme, the EPA may provide non-binding advice to the responsible authority. The EPA would not assess a scheme where: a) the scheme is relatively minor in nature;

19.2.

19.3. 19.4.

b)

19.5. 19.6. 20. 20.1. 20.2.

20.3. 20.4.

b) proposed conditions or requirements of a scheme can manage the environmental consequences of proposals that may be implemented under the scheme; and c) there is limited public interest in the proposed scheme.

Responsible authority or proponent seeks advice from EPA on criteria, alternatives/options

EPA assesses relative merit of options, environmental criteria etc under s. 16(e). Assessment procedure agreed between EPA and responsible authority or proponent

Responsible authority or proponent consider advice and develop proposal

EPA provides public advice to responsible authority or proponent

Finalise scope of proposal assessment and refer PPP proposal to EPA in accordance with MOU

Advice given NO

EPA decides whether the proposal requires assessment

YES Responsible Authority or proponent takes into account advice and finalises proposal

EPA requires the preparation of a scoping document or issues instructions for preparation of environmental review

Responsible Authority or proponent prepares the environmental review and proposal

EPA approves release of Environmental review for public comment together with proposal

Final proposal with responses to submissions submitted to EPA for assessment

EPA submits assessment report to the Minister

Figure 2 Assessment procedures for strategic proposals

Responsible authority refers scheme to EPA

Advice given NO

EPA decides whether the proposal requires assessment

YES Responsible Authority takes into account advice and finalises scheme

EPA issues instructions for preparation of environmental review

Responsible Authority prepares the environmental review

EPA approves release of Environmental review for public comment together with release of the scheme by the responsible authority

Finalised scheme with responses to submissions submitted to EPA for assessment

EPA submits assessment report to the Minister

Figure3 20.5. a) b)

Assessment procedure for Schemes under Part IV of the Act

If the EPA decides to assess a scheme, the following procedures would apply: The EPA would issue instructions for the preparation of an environmental review to be prepared by the responsible authority; The EPA would require the environmental review to be prepared in accordance with the instructions and submitted to the EPA for approval to release for public review with the scheme; The EPA would require the responsible authority to prepare a response to the submissions; The EPA would consider the response together with the environmental review and any amendments to the scheme and prepare an assessment report; and The EPA will submit its assessment report to the Minister.

c) d) e)

21. 21.1. 21.2. 21.3.

Termination or suspension of an assessment The EPA may terminate an assessment in accordance with the criteria in Section 40A of the Act. The EPA may suspend an assessment at the proponents request if there are reasonable grounds for doing so. Where the EPA suspends or terminates an assessment it will document the ground on which the termination or suspension was decided and advise the proponent and report to the Minister. EPA Assessment Report to the Minister The EPA will prepare an assessment report upon the completion of its assessment of a proposal, scheme, change to original proposal, or change to implementation conditions, and submit its report to the Minister. The EPAs assessment report will address those matters required by s. 44 or 48D of the Act and other matters including: a) b) c) d) e) f) g) a summary description of the proposal, scheme, change to original proposal or change to implementation;. regional environmental values; key relevant environmental factors and aspects; a description of the environmental impacts, including cumulative impacts, and risks; recommendation as to whether the proposal or scheme should be implemented; recommended outcome-based conditions and procedures if the proposal or scheme may be implemented; and other advice and recommendations addressing broader issues arising out of consideration of the proposal or scheme.

22. 22.1.

22.2.

Table 1. Target timelines

PERMP After referral EPA issues notice requesting additional information 14 days from receipt of referral Proponent responds to notice requesting additional information 28 days from receipt of notice EPA makes decision to assess and at PERMP level 28 days from receipt of all information Proponent prepares and submits draft scoping document 42 from decision to assess the scheme EPA issues comment on draft scoping document 49 days from receipt of draft scoping document Proponent submits revised scoping document 21 days from receipt of comment EPA may require public review (2 weeks) of scoping document EPA approves scoping document 28 days from receipt of revised scoping document Proponent prepares and submits draft PERMP 84 days from approval of scoping document EPA issues comment on draft PERMP 49 days from receipt of draft PERMP Proponent submits revised PERMP 28 days from receipt of comment on draft PERMP EPA approves release of PERMP 14 days from receipt of revised PERMP Public review 28 84 days EPA conveys summary of submissions to the proponent 15 days from close of public review period

PERMP Proponent submits response to submissions 28 days from close of public review period EPA submits assessment report to the Minister 70 days from receipt of response to submissions

ARAI After referral EPA issues notice requesting additional information 14 days from receipt of referral Proponent responds to notice requesting additional information 28 days from receipt of notice EPA makes decision to assess and at ARAI level 28 days from receipt of all information EPA issues notice specifying additional information required 14 days from decision to assess at ARAI level Proponent prepares and submits additional information 28 days from receipt of notice EPA submits assessment report to the Minister 42 days from receipt of additional information

Scheme (s48A) * statutory timeline After referral EPA issues notice requesting additional information 14 days from receipt of referral Responsible Authority responds to notice requesting additional information 28 days from receipt of notice EPA decides whether the scheme should be assessed 28 days* from receipt of all information

Scheme (s48A) * statutory timeline EPA issues instructions for scope and content of environmental review 60 days* from decision to assess the scheme Responsible Authority prepares and submits draft environmental review 84 days from issue of instructions EPA issues comment on draft environmental review 49 days from receipt of draft environmental review Responsible Authority submits revised environmental review 28 days from receipt of comment EPA approves release of environmental review document 30 days* from receipt of revised environmental review Public review ? Responsible Authority conveys submissions to the EPA 7 days* from close of public review period Responsible Authority submits response to submissions 42 days* from close of public review period EPA submits assessment report to the Minister 60 days* from close of public review, or 30 days* from receipt of response to submissions (the later applies)

Change to conditions (s46) After Minister requests EPA to inquire into change of conditions EPA decides on assessment process 14 days from receipt of request If EPA decides to apply the procedures for PERMP, then the relevant timelines apply If EPA decides to apply the procedures for ARAI, then the relevant timelines apply Change to proposal (s45C), Minor change to conditions (s46C), EMP

Change to conditions (s46) After referral EPA issues notice requesting additional information 7 days from receipt of referral Proponent responds to notice requesting additional information 28 days from receipt of notice EPA makes decision to approve/not approve 28 days from receipt of all information

Note: 1. 2. Days are calendar days. Stop the clock mechanism may be invoked by the EPA Chairman or delegate, and in accordance with established policy. The timelines include provision for agency advice to the EPA at certain steps, and 28 days has been allocated for the provision of that advice.

3.

Appendix 6

Review of Annual Auditing Compliance Reporting

Final Report of the AACR Working Group

Review of Annual Auditing Compliance Reporting

Prepared by AACR Working Group April 2008

Review of Annual Auditing Compliance Reporting

EXECUTIVE SUMMARY
The Minister for the Environment has required proponents to report on their compliance with conditions in Ministerial Statements. This requirement is based on a principle that senior company personnel have a responsibility of ensuring and reporting publicly on compliance and ensuring that appropriate procedures are in place to properly assess compliance. The current form and application of the annual audit compliance reporting (AACR) condition in Statements in association with the draft DEC guidelines for compliance audits has created considerable concern for proponents. The Minister has noted these concerns and has requested a review of the condition and supported the formation of a Working Group to assist this review. This report addresses the findings and recommendations of the Working Group.

KEY ISSUES

The problems associated with the current condition arise from the drafting and application of the condition and not the application of the above principle. The application of any compliance auditing condition is also critically affected by the auditability and clarity of other conditions in Implementation Statements. The key issues and associated findings and recommendations of the Working Group fell logically into two groups; however, both are required to be addressed to effectively allay concerns. The two groups are: 1. 2. Those that are specifically related to the wording and content of the current AACR condition. Those that are related to the content and subject of other conditions to ensure that they are compatible with an effective and efficient compliance auditing system.

The key issues identified and addressed by the Working Group associated in the first group were: self-incrimination verifiable evidence comprehensive vs exception compliance reporting applying a compliance reporting condition to all existing Statements audit of management actions, procedures and commitments in management plans.

The key issues identified and addressed in the second group were: form and content of Part IV conditions and commitments conditions are effectively perpetual one report for all.

Annual Auditing Compliance Reporting FINAL - 17/04/2008

Review of Annual Auditing Compliance Reporting

GROUP 1 FINDINGS AND RECOMMENDATIONS

Potential self-incrimination Some form of compliance auditing on a regular basis with sign-off by senior company personnel is required to reinforce the principle that proponents are responsible for compliance and ensure that effective procedures are in place to determine compliance. There was some debate on the legal implications of signing-off on non-compliance, however, careful use of terminology in audit reports and application of conditions with requirements that are clear and auditable, substantially reduces the concern with both sign-off and the requirement for regularly reporting on compliance. Recommendations: 1. 2. The wording of audit findings/conclusions should use the terms potential non-compliance, or substantial compliance. The requirements of conditions (outcome or performance-based) should be clear and auditable to facilitate compliance assessment.

Verifiable evidence The term verifiable evidence has legal and resource implications that may not have been appreciated at the time the condition was developed. The original intent of the condition was to ensure the proponent employed proper and reasonable procedures to assess and record compliance and that such information would be made available upon request. Recommendation: 3. Amend the current AACR condition and compliance reporting guidelines to: 3.1. remove the requirement for submission of verifiable evidence in compliance reports 3.2. require the proponent to provide information on potential non-compliances 3.3. require the proponent to use reasonable measures for determining compliance 3.4. require the proponent to retain reasonable supporting information records on how compliance was determined 3.5. enable DEC to request records on the determination of compliance as required. Comprehensive vs exception compliance reporting Exception reporting is the most resource-efficient and is also effective in ensuring compliance is given due attention by proponents. Exception reporting substantially reduces the administrative workload for both Government and industry while maintaining vigilance on compliance with conditions. Exception reporting is consistent with the practice for reporting compliance with conditions of licence in Western Australia. A new requirement to report non-compliances with Part IV conditions as soon as practicable is recommended to be consistent with the approach taken for reporting non-compliances with conditions of licences in Western Australia.

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Recommendations: 4. 5. Amend the condition to require only the submission of an exception statement of compliance with details provided of potential non-compliances. (Refer also to Section 2.3) Include a requirement for reporting any potential non-compliance as soon as practicable.

Applying a compliance reporting condition to all existing Statements The insertion of compliance reporting condition into all existing Statements addresses equity (a level playing field) but may lead to many difficulties because of the form of current conditions. This process would require detailed consultation with industry on the intended process. There are effectively three different situations which will need to be addressed; specifically, those Statements that: do not have the current compliance reporting condition insertion of the new compliance reporting condition should be linked to a review of conditions do have the current condition the replacement of the current compliance reporting condition with the proposed condition may or may not be linked to a review of conditions depending on the proponents circumstances have yet to be issued new proposed condition would be used with outcome-based conditions.

Recommendation: 6. A compliance reporting condition should be progressively inserted into, or replace the current AACR condition in all active Ministerial Statements subject to: 6.1. being based on addressing proposals with highest environmental risks first or at the proponents request 6.2. being preceded by a formal process of reviewing conditions to ensure they are in a contemporary, auditable form or as otherwise requested by the proponents 6.3. prior consultation with proponents and industry organisations on a program for upgrading Ministerial Statements 6.4. assessing the workload implications for DEC. Audit of management actions, procedures and commitments in management plans In effect, the current condition prescribes in detail, management that will apply to the proposal rather than focussing on achieving environmental outcomes, environmental standards and monitoring the environmental performance of the proposal. The current approach also discourages continuous improvement or adaptive management and adds to DEC workload without improved environmental outcomes. Recommendation: 7. For existing statements, amend the requirement for assessing compliance with the contents of environmental management plans and instead, assess compliance with the key management measures in the plan.

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8.

For future statements, key management measures may be required to be implemented by a condition where the environmental risk is significant. (Refer to Section 3 below)

Recommended model compliance assessment conditions to replace the current AACR condition The following are the recommended compliance assessment conditions to the replace the current AACR condition. 1. 2. The proponent shall prepare and maintain a compliance assessment plan to the satisfaction of the Chief Executive Officer of the Department of Environment and Conservation. The proponent shall submit to the Chief Executive Officer of the Department of Environment and Conservation, the compliance assessment plan required by condition 1 at least 6 months prior to the first compliance report required by condition 6. The compliance assessment plan shall indicate: 2.1 frequency of compliance reporting 2.2 approach and timing of compliance assessments 2.3 retention of compliance assessments 2.4 reporting of potential non-compliances and corrective actions taken 2.5 table of contents of compliance reports 2.6 public availability of compliance reports. 3. 4. The proponent shall assess compliance with conditions in accordance with the compliance assessment plan required by condition 1. The proponent shall retain reports of all compliance assessments described in the compliance assessment plan required by condition 1 and shall make those reports available when requested by the Chief Executive Officer of the Department of Environment and Conservation. The proponent shall advise the Chief Executive Officer of the Department of Environment and Conservation of any potential non-compliance as soon as practicable. The proponent shall submit a compliance assessment report annually from the date of issue of the Implementation Statement No. xx addressing the previous twelve month period or as agreed by the Chief Executive Officer of the Department of Environment and Conservation. The compliance assessment report shall: 6.1 be endorsed by the proponents Managing Director or a person, approved in writing by the Department of Environment and Conservation, delegated to sign on the Managing Directors behalf 6.2 include a statement as to whether the proponent has complied with the conditions 6.3 identify all potential non-compliances and describe corrective and preventative actions taken 6.4 be made publicly available in accordance with the approved compliance assessment plan 6.5 indicate any proposed changes to the compliance assessment plan required by condition 1.

5. 6.

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GROUP 2 FINDINGS AND RECOMMENDATIONS

Form and content of other Part IV conditions and commitments The EPAs and DECs preference is for the application of outcome-based conditions on the basis of environmental risk rather than requiring the preparation and implementation of environmental management plans through conditions. Proponents will be encouraged to propose such conditions in assessment documentation to enable input by the community during public review of the documentation. This approach would encourage continuous improvement or adaptive management of environmental issues; in other words, managing beyond compliance is a beneficial goal. The opportunity for including an adaptive management approach in a condition may be considered where there are significant issues to be addressed. The current performance review condition and proposed adaptive management condition may be melded. Conditions requiring the preparation and implementation of management plans are contrary to this principle but there are some instances where a risk-based approach may warrant the prescription of mitigation or management measures through conditions. Duplication of conditions or requirements with other approval processes (particularly between Part IV and Part V) has occurred in the past. In these situations, the EPA is still required to address the issue but may defer to other processes if it understands that the issue will be satisfactorily managed. This will require better coordination between the administrations of these Parts of the EP Act. Recommendations: 9. Conditions should be: 9.1 performance or outcome-based wherever practicable 9.2 clear, unambiguous and auditable 9.3 address monitoring and reporting on performance. 10. Proponents should be encouraged to propose conditions in impact assessment documentation. 11. Key management or mitigation measures may be placed in a Schedule to a Statement where the prescription of measures is required on the basis of environmental risk and where there is substantial uncertainty that the performance or outcome can be achieved. 12. Key measures should be auditable and through a condition, the proponent should be required to respond to any non-conformance with these measures. 13. Adaptive management or continuous improvement may be formalised in a condition with nonbinding targets (but a response would be required from the proponent) for significant issues where improvements over time, are desirable. 14. Conditions should generally not be imposed where it has been demonstrated during the EPA assessment process that issues are capable of being managed under other statutory approvals developed to specifically address the issues unless the EPA is of the view that a performance standard or outcome needs to be defined for the other statutory approvals. 15. Where it is not possible to define or set a performance standard or outcome, the condition may be set to require:

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further investigations the setting of an interim performance standard or outcome a process for modifying the interim performance standard or outcome-based on the results of further investigations appropriate adaptive management response to the changing performance standard or outcome.

Conditions are effectively perpetual The need for an occasional review of conditions in accordance with s.46 of the EP Act is a matter that needs to be addressed in consultation with industry. Proponents may voluntarily request review of conditions pursuant to s.46 at any time. A review of conditions could coincide with any report on performance required by condition. Not withstanding the merits of an occasional review of conditions, there are resource implications (and perhaps legal implications) for both DEC and EPA in conducting such reviews. Recommendations: 16. DEC to consult with industry organisations on the development of any intention to routinely review conditions. 17. Consider linking any review of conditions to the submission of a performance review report required by condition. One report for all There was strong support from proponents for the submission of one overall annual report to Government covering various agencies reporting requirements. Such reports may be structured to clearly address the requirements of all agencies. The Office of Development Approvals Coordination (ODAC) may have a role in developing a universal annual reporting system. Recommendation: 18. DEC and the Department of Industry and Resources should develop a universal reporting system to satisfy reporting requirements of all agencies. Examples of outcome-based conditions Examples showing how some existing conditions in Statements may be redrafted into an outcomebased form have been developed and presented in Appendix 1 to this report.

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TABLE OF CONTENTS
1. INTRODUCTION
1.1 1.2 1.3 1.4 BACKGROUND FORMATION OF AACR WORKING GROUP REVIEW APPROACH
THE AACR CONDITION

1
1 1 2 3

2.

KEY ISSUES, FINDINGS AND RECOMMENDATIONS FOR THE WORDING AND CONTENT OF AACR CONDITION
2.1 2.2 OBJECTIVES OF ANNUAL COMPLIANCE REPORTS POTENTIAL SELF INCRIMINATION 2.2.1 2.2.2 2.3 Background Findings and Recommendations

4
4 4 4 6 7 7 7 8 8 9 9 9 9 10

VERIFIABLE EVIDENCE 2.3.1 2.3.2 Background Findings and recommendations

2.4

COMPREHENSIVE VS EXCEPTION COMPLIANCE REPORTING 2.4.1 2.4.2 Background Findings and recommendations

2.5

APPLYING AACR CONDITION TO EXISTING STATEMENTS 2.5.1 2.5.2 Background Finding and recommendations

2.6

AUDIT OF MANAGEMENT ACTIONS, PROCEDURES AND COMMITMENTS IN MANAGEMENT

PLANS

2.6.1 2.6.2 2.7

Background Findings and recommendations

10 10 11

RECOMMENDED MODEL CONDITIONS TO REPLACE CURRENT AACR CONDITION

3.

KEY ISSUES AND FINDINGS ON CHANGES TO OTHER CONDITIONS FOR EFFECTIVE AACR
3.1 FORM AND CONTENT OF PART IV CONDITIONS AND COMMITMENTS 3.1.1 3.1.2 3.2 Background Findings and recommendations

14
14 14 15 17 17 17

CONDITIONS ARE EFFECTIVELY PERPETUAL 3.2.1 3.2.2 Background Findings and recommendations

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3.3

ONE ANNUAL REPORT FOR ALL 3.3.1 3.3.2 Background Findings and recommendations

17 17 18

LIST OF TABLES 1. 2.
Working Group Membership Comparison of current AACR condition and proposed compliance assessment conditions 2 12

LIST OF APPENDICES 1.
Examples of the application of outcome-based conditions

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1. 1.1

INTRODUCTION BACKGROUND

In 2006, the Minister for the Environment requested a condition be imposed in all future Ministerial Statements issued under Part IV of the Environmental Protection Act 1986 (EP Act) requiring the submission of an annual audit compliance report (AACR) signed off by the proponents Managing Director. The Ministers request was based on the principle that senior company personnel have a responsibility of ensuring and reporting on compliance and ensuring that appropriate procedures are in place to properly assess compliance. The Department of Environment and Conservation (DEC) developed a condition which gave effect to this requirement which was subsequently imposed in Ministerial Statements consistent with recommendations from the Environmental Protection Authority (EPA). The Minister has become aware of proponent concerns from the Australian Petroleum Production and Exploration Association (APPEA), Chamber of Minerals and Energy (CME), and the Chamber of Commerce and Industry (CCI) about the application of the AACR condition and has requested the DEC to review it. These concerns included complexity, legal ramifications and discouragement of good environmental practice that may potentially arise from the current form of the condition and the way that other conditions have been drafted in the past.

1.2

FORMATION OF AACR WORKING GROUP

The Minister in his letter of 25 October 2007 supported the establishment of an Industry-Government agency Working Group to review reporting issues arising from the application of the condition and to report back to the Minister on its findings and recommendations. In December 2007, the terms of reference of the AACR Working Group were agreed between DEC, APPEA and CME and are as follows: 1. Develop clear objectives for Annual Audit Compliance Reports and performance review conditions, having regard to the existing legal framework, nature and purpose of Part IV conditions and issues identified with historical conditions. Review the form and application of Annual Audit Compliance Reports with a view to improving the relationship between Part IV and Part V application. If management plans and Annual Audit Compliance Reports are to be linked, then review draft DEC guidelines on preparing an audit program, performance and compliance reporting and preparing environmental management plans. Identify the benefits or drawbacks associated with the different forms of Annual Audit Compliance Reports and performance review conditions imposed in Ministerial Statements over recent years. Compare interstate compliance reporting practices for approvals akin to Ministerial Statements and the benefits or drawbacks associated with interstate practices.

2. 3.

4.

5.

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6.

Recommend options for improvement in the wording of the condition and its operation.

The membership of the Working Group is provided in Table 1.

Table 1
Member Kim Taylor (Chair) Anne Price Colin Murray Garry Davies Garry Middle Gavan Price Gordon Baird Ian Briggs Mark Bailey Peter Skitmore Richard Ellis Sophie Williams

Working Group Membership

Affiliation Department of Environment and Conservation Alcoa World Alumina Department of Environment and Conservation Rio Tinto Appeals Convenor Chamber of Minerals and Energy Woodside Petroleum Department of Industry and Resources Environmental Consultants Association Department of Environment and Conservation Australian Petroleum Production and Exploration Association Chevron

Mr Charlie Welker, Principal with Strategen was appointed to assist the Working Group in the conduct of this review.

1.3

REVIEW APPROACH

The review involves a series of facilitated workshops and in the first instance, one-on-one interviews with Working Group members. The first workshop was conducted to discuss the objectives and viewpoints on compliance reporting. Subsequent workshops considered: 1. At the second workshop the Working Group considered a key issues paper which outlined key issues and potential solutions. These issues and solutions were identified from one-on-one interviews with Working Group members, the EPA Chairman and other personnel within member organisations. At the third workshop and subsequent out-of-session consideration of matters, the Working Group: finalised its report and recommendations developed a model AACR condition finalised a guideline for the development of an environmental management measures schedule developed examples of Part IV outcome-based conditions.

2.

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1.4

THE AACR CONDITION

An example of the wording of the AACR condition that has been imposed since the Ministers request is as follows: The proponent shall submit annually an audit compliance report, for the previous twelve month period. The audit compliance report shall: 1. be endorsed by the proponents Managing Director or a person, approved in writing by the Department of Environment and Conservation, delegated to sign on the Managing Directors behalf; include a statement as to whether the proponent has complied with the conditions, procedures, commitments and actions within the Environmental Management Plans; identify all non-compliances and describe the related corrective and preventative actions taken; review the effectiveness of all corrective and preventative actions taken; provide verifiable evidence of compliance with conditions, procedures and commitments; describe the state of implementation of the proposal; and be prepared in accordance with an audit program in a format acceptable to the Department of Environment and Conservation.

2. 3. 4. 5. 6. 7.

The proponent shall make the audit compliance report publicly available in a manner approved by the Department of Environment and Conservation.

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2.

KEY ISSUES, FINDINGS AND RECOMMENDATIONS FOR THE WORDING AND CONTENT OF AACR CONDITION

The Working Group found that problems associated with application of the condition arose chiefly from both the current wording of the AACR condition itself and the difficulty of interpreting the specific requirements of many historic conditions and auditing the implementation of management plans. Key issues and associated findings and recommendations of the Working Group fall logically into two groups but both are required to give effect to: 1. Those that specifically related to the wording and content of the current AACR condition. Those that are related to the content and subject of other conditions to ensure that they are compatible with an effective and efficient compliance auditing system. The Working Group agreed that an audit compliance reporting system is appropriate and that: the obligations or requirements of conditions should be clear and auditable proponent auditing requirements should be efficient administration of the response to compliance reporting should not be unduly onerous for DEC.

2.1

OBJECTIVES OF ANNUAL COMPLIANCE REPORTS

The Working Group agreed that the objectives of a compliance reporting regime should be: 1. 2. 3. To provide the Minister for the Environment, DEC and the community with reassurance that proponents are complying with the conditions of the Ministerial Statement. To obtain better environmental outcomes. To ensure that environmental compliance receives attention at senior company level.

The Working Group considered that the respective roles of the regulator and the proponent in any compliance auditing regime are: DEC encourages proponents to maintain compliance and takes enforcement action if this is not the case. Monitoring of compliance may be achieved by a combination of regulator and proponent audits the proponent has a responsibility to remain in compliance and to report, as required, where this is not the case.

2.2
2.2.1

POTENTIAL SELF-INCRIMINATION
Background

Self-incrimination was of concern to industry as the AACR condition requires the Managing Director or delegate to sign off on compliance/non-compliance. This is particularly a concern given the non-

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specific nature of requirements in some conditions and management plans which are the subject of a condition. The potential penalties that may be imposed for non-compliance increased the concern of senior personnel particularly where the non-compliance may be technical or minor (for instance, timing of submission or changes to a management procedure). s.47(1) of the EP Act states that: if a proponent does not ensure. that the implementation of a proposal is carried out in accordance with the implementation conditions, the proponent commits an offence. Non-compliance with a condition of a Statement is a Tier 1 offence with penalties for an individual up to $125,000 and up to $250,000 for a body corporate. In addition, the proponent may also be judged by DEC to have caused serious or material environmental harm or pollution as result of the noncompliance, in which case the penalties can be more severe and include jail terms for an individual. Common law privilege There is an accepted common law privilege which protects against self-incrimination by individuals but not corporate bodies. In the United States this protection is enshrined in the Bill of Rights the Fifth Amendment. This privilege can be taken away or eroded by specific State or Commonwealth legislation. Under the EP Act, there is explicit protection (but also some erosion of the protection) in this regard for individuals under s.112A where individuals are required to answer questions or provide documents. This section indicates that an individual is not excused from answering questions or producing documents when required to do so under Part VI (enforcement provisions) of the EP Act on the grounds that the answers or documents may incriminate that individual. If the individual objected at the time, any answers or documents given of this nature are not admissible in evidence in any criminal proceedings against the individual. Notwithstanding this protection in criminal proceedings against an individual, s.118 of the EP Act indicates where a body corporate commits an offence, a person who is a director or involved with the management of the body corporate is taken to have committed the offence subject to defences that include: the person did not know and could not reasonably have known that the offence was being committed the person was not in a position to influence the conduct of the body corporate or if in such a position, used all due diligence and reasonable precautions to prevent the offence the body corporate would not have been found guilty of the offence.

It does not necessarily follow that a director or a person concerned in the management of a body corporate, who signs an AACR which specifies a non-compliance, commits an offence pursuant to s.118 of the EP Act. It does however, reinforce the need for a director or person concerned in the management of a body corporate, to take proactive steps to ensure that they adopt management practices and implement management systems which best ensure they can avail themselves of the defence under s.118(b) (ii), that is, they use all due diligence and reasonable precautions to prevent the commission of an offence.

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Wording of compliance assessment The language used by auditors or proponents when reporting on compliance can have a substantial affect on the liability of the person signing off the compliance report. The offence is created where a proponent does not ensure that the proposal is implemented in accordance with implementation conditions. Use of the words non-compliance or breach may be seen by some as implying inadvertently an admission of guilt or liability which can only be determined by a court of law with all information available to it. There are also some doubts as to whether a non-compliance with a small or minor component of a management procedure or action is a non-compliance with the whole procedure or a condition, particularly where the condition requires the implementation of management plan of which the procedure is only one element. Similarly, a technical breach of an element of a monitoring program would be considered a noncompliance of a condition when it may in effect, have resulted from a power or equipment failure. Other factors affecting self-incrimination concerns The uncertainty in the interpretation of the requirements and ambiguity of conditions accentuate selfincrimination concerns. Ministerial conditions often do not clearly specify a requirement, outcome or performance standard. The requirement to sign-off on compliance (with attendant verifiable evidence of compliance or non-compliance) with all of the management plan commitments, procedures and actions is seen by proponents as unduly onerous and unreasonable. This approach is seen by industry as reducing application of continuous improvement or adaptive management to enhance environmental outcomes. Quite often, management actions and procedures become redundant or are amended/replaced with newer and more appropriate measures than those stated in the approved management plan. To advise and approve/review these ongoing changes throughout the life of a proposal would be unduly burdensome to both regulator and industry. 2.2.2 Findings and Recommendations

Some form of compliance auditing on a regular basis with sign-off by senior company personnel is required to reinforce the principle that proponents are responsible for compliance and ensure that effective procedures are in place to determine compliance. The current situation discourages continuous improvement or adaptive management. There is some debate on the legal implications of signing-off on non-compliance but careful use of terminology in audit reports and application of conditions with requirements that are clear and auditable substantially reduces the concern with both sign-off and the requirement for reporting regularly on compliance. Recommendations: 1. 2. The wording of audit findings/conclusions should use the terms potential non-compliance, or substantial compliance. The requirements of conditions (outcome or performance-based) should be clear and auditable to facilitate compliance assessment.

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2.3
2.3.1

VERIFIABLE EVIDENCE
Background

The current AACR condition requires the proponent to provide verifiable evidence of compliance with conditions, procedures and commitments. The meaning of the term verifiable evidence taken to its full extent would mean: evidence on every management action, procedure, condition and commitment would have to be provided legally, verifiable evidence implies sworn statements that are admissible as evidence in court.

The current condition could be read to imply that if verifiable evidence is not provided for compliance, the proponent may be in breach of the AACR condition. If the proponent is unable to assess compliance with a condition or management action (because no evidence is available or it may be not auditable), the proponent may also be in breach of the AACR condition. The intent of the condition was to ensure that reasonable steps were taken to determine compliance (for example, a third party auditors report). The requirement to supply evidence is considered unduly onerous given the resources that can be consumed in gathering the evidence and evidence may not be available despite best intentions of proponents. In New South Wales and Western Australia, the reporting on compliance with conditions of environmental licences does not require the submission of verifiable evidence but information is to be provided on the non-compliance. 2.3.2 Findings and recommendations

The term verifiable evidence has legal and resource implications that may not have been appreciated at the time the condition was developed. The original intent of the condition was to ensure the proponent employed proper and reasonable procedures to assess and record compliance and such information would be made available upon request. Recommendation: 3. Amend the condition and audit compliance reporting guidelines to: 3.1 remove the requirement for submission of verifiable evidence in compliance reports 3.2 require the proponent to provide information on potential non-compliances 3.3 require the proponent to use reasonable measures for determining compliance 3.4 require the proponent to retain reasonable supporting information on how compliance was determined 3.5 enable DEC to request records on the determination of compliance as required.

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2.4
2.4.1

COMPREHENSIVE VS EXCEPTION COMPLIANCE REPORTING

Background

The current AACR condition requires a comprehensive compliance report on all conditions, management actions, procedures and commitments to be prepared by the proponent together with verifiable evidence. In addition, the current DEC draft guidelines require further information to be submitted including: details of any internal and external audits summary of complaints register summary of monitoring information trends in monitoring stakeholder consultation.

These requirements result in very large reports being prepared that require the commitment of considerable resources by the proponent and the DEC by way of review. The guidelines seem to be seeking information on performance (in effect, an annual environmental report) rather than just compliance with conditions. The resource implications for DEC are substantial in the reviewing of such reports and determining compliance with the current AACR condition. Under the current system, a minor procedure can effectively be treated with equal weight as a condition resulting in important compliance issues being diluted in the process. If this requirement was imposed on all Ministerial Statements issued since 1986, about 600 of these large reports may be received annually by DEC to process. In Western Australia and New South Wales, reporting on compliance with environmental licence conditions is required on an exception basis together with an annual environmental report. The annual compliance statements under these regimes do not require the submission of verifiable evidence but details of the potential non-compliance are required to be submitted with the report. In Western Australia, a condition of licence may require all potential non-compliances to be reported as soon as possible without waiting to be reported in an AACR. The DEC licensing compliance statements simply ask: Were all conditions of licence complied with (including monitoring and reporting requirements) Yes or No. If the answer is no, then the licensee is required to supply specific information on the potential noncompliances. These compliance statements are usually only a few pages in length depending on the number and type of potential non-compliances.

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2.4.2

Findings and recommendations

Exception reporting is the most resource-efficient and is also effective in ensuring compliance is given due attention by proponents. Exception reporting substantially reduces the administrative workload for both Government and industry while maintaining vigilance on compliance with conditions. Exception reporting is consistent with the practice for reporting compliance with conditions of licence in Western Australia. Recommendation: 4. 5. Amend the condition to require only the submission of an annual exception statement of compliance with details provided on potential non-compliances. (Refer also to Section 2.3) Include a requirement for reporting any potential non-compliances as soon as practicable.

2.5
2.5.1

APPLYING AACR CONDITION TO EXISTING STATEMENTS

Background

Ideally, all Ministerial Statements should have a compliance reporting condition to ensure both a level playing field for proponents and environmental protection. Notwithstanding this, insertion of a compliance reporting condition in Statements will have some practical difficulties because: the workload involved (about 600 existing Statements) many current conditions in Ministerial Statements are often vague and non-specific in their requirements, difficult to audit and therefore difficult to determine compliance conditions would need to be recast to be auditable before a compliance reporting condition could be effectively imposed. Finding and recommendations

2.5.2

The insertion of an AACR condition into pre-September 2006 Statements addresses equity (a level playing field) but may lead to many difficulties because of the form of current conditions. This process would require detailed consultation with industry on the intended process. There are effectively three different situations which will need to be addressed, specifically those Statements that: do not have the current compliance reporting condition insertion of the new compliance reporting condition should be linked to a review of conditions do have the current condition the replacement of the current compliance reporting condition with the proposed condition may or may not be linked to a review of conditions depending on the proponents circumstances have yet to be issued new proposed condition would be used with outcome-based conditions.

Recommendation: 6. A compliance reporting condition should be progressively inserted into,or replace the current AACR condition in all active Ministerial Statements subject to:

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6.1 being based on addressing proposals with highest environmental risks first or at the proponents request 6.2 being preceded by a formal process of reviewing conditions to ensure they are in a contemporary, auditable form or as otherwise requested by the proponents 6.3 prior consultation with proponents and industry organisations on a program for upgrading Ministerial Statements 6.4 assessing the workload implications for DEC.

2.6

AUDIT OF MANAGEMENT ACTIONS, PROCEDURES AND COMMITMENTS IN MANAGEMENT

PLANS

2.6.1

Background

The current AACR condition requires proponents to audit compliance with management actions, procedures and commitments in environmental management plans. There is a concern that nonconformance with a commitment or management action (no matter how trivial) in a management plan is a non-compliance with the condition requiring implementation of the plan. The identification of the auditable elements in management plans is often quite difficult. In addition, environmental management is a dynamic or adaptive process often leading to changes to procedures and management actions to those originally approved by DEC. The current AACR condition is considered by many industries to inhibit adaptive management and the emphasis is on compliance with an approved plan instead of continuous improvement through target setting. The emphasis on compliance leads also to conservative management plans in order that compliance can be assured. Approval of updated management plans places a substantial additional burden on DEC with little improvement or focus on environmental outcomes or continuous improvement. 2.6.2 Findings and recommendations

In effect, the current condition prescribes in detail, management that will apply to the proposal rather than focussing on achieving environmental outcomes, environmental standards and monitoring the environmental performance of the proposal. The current approach also discourages continuous improvement or adaptive management and adds to DEC workload without improved environmental outcomes. Elsewhere in this report, alternative means to ensure the implementation of key management measures is addressed. Recommendation: 7. For existing statements, amend the requirement for auditing compliance with the contents of environmental management plans and instead, audit compliance with the key management measures in the plan

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8.

For future statements, key management measures may be required to be implemented by a condition where the environmental risk is significant. (Refer to Section 3 below)

2.7

RECOMMENDED MODEL CONDITIONS TO REPLACE CURRENT AACR CONDITION

The former Department of Environment developed an audit table which provided guidance to proponents on the evidence and audit elements associated with conditions. It is felt that there are benefits in producing a compliance audit program upfront for DECs approval as required by the current condition. This plan would consequently provide the proponent with certainty as to compliance audit requirements and records that are to be kept. The application of any compliance reporting condition will require other conditions in the Ministerial Statement to be in a form that are auditable. The following rewording of the AACR condition is recommended. A comparison of the current AACR condition and the proposed compliance assessment conditions is provided in Table 1 below. 1. 2. The proponent shall prepare and maintain a compliance assessment plan to the satisfaction of the Chief Executive Officer of the Department of Environment and Conservation. The proponent shall submit to the Chief Executive Officer of the Department of Environment and Conservation, the compliance assessment plan required by condition 1 at least 6 months prior to the first compliance report required by condition 6. The compliance assessment plan shall indicate: 2.1. frequency of compliance reporting 2.2. approach and timing of compliance assessments 2.3. retention of compliance assessments 2.4. reporting of potential non-compliances and corrective actions taken 2.5. table of contents of compliance reports 2.6. public availability of compliance reports. 3. 4. The proponent shall assess compliance with conditions in accordance with the compliance assessment plan required by condition 1. The proponent shall retain reports of all compliance assessments described in the compliance assessment plan required by condition 1 and shall make those reports available when requested by the Chief Executive Officer of the Department of Environment and Conservation. The proponent shall advise the Chief Executive Officer of the Department of Environment and Conservation of any potential non-compliance as soon as practicable. The proponent shall submit a compliance assessment report annually from the date of issue of the Implementation Statement No. xx addressing the previous twelve month period or as agreed by the Chief Executive Officer of the Department of Environment and Conservation. The compliance assessment report shall: 6.1. be endorsed by the proponents Managing Director or a person, approved in writing by the Department of Environment and Conservation, delegated to sign on the Managing Directors behalf 6.2. include a statement as to whether the proponent has complied with the conditions

5. 6.

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6.3. identify all potential non-compliances and describe corrective and preventative actions taken 6.4. be made publicly available in accordance with the approved compliance assessment plan 6.5. indicate any proposed changes to the compliance assessment plan required by condition 1.
Table 2 Comparison of current AACR condition and proposed compliance assessment conditions
Current condition Proposed conditions 6.1. *The proponent shall prepare and maintain a compliance assessment plan to the satisfaction of the Chief Executive Officer of the Department of Environment and Conservation. 6.2. *The proponent shall submit to the Chief Executive Officer of the Department of Environment and Conservation, the compliance assessment plan required by condition 1 at least 6 months prior to the first annual compliance report required by condition 6. The compliance assessment plan shall indicate: 1. 2. 3. 4. 5. 6. frequency of compliance reporting approach and timing of compliance assessments retention of compliance assessments reporting of potential non-compliances and corrective actions taken table of contents of compliance reports public availability of compliance reports.

6.3. *The proponent shall assess compliance with conditions in accordance with the compliance assessment plan required by condition 1. Not addressed by current condition (new requirement) 6.4. The proponent shall retain reports of compliance assessment described in the compliance assessment plan required by condition 1 and shall make those reports available when requested by the Chief Executive Officer of the Department of Environment and Conservation. 6.5. The proponent shall advise the Chief Executive Officer of the Department of Environment and Conservation of any potential non-compliance as soon as practicable. 6.6. The proponent shall submit a compliance assessment report annually for the date of issue of the Implementation Statement No. xx addressing the previous twelve month period or as agreed by the Chief Executive Officer of the Department of Environment and Conservation. The compliance assessment report shall: 1. be endorsed by the proponents Managing Director or a person, approved in writing by the Department of Environment and Conservation, delegated to sign on the Managing Directors behalf include a statement as to whether the proponent has complied with the conditions

Not addressed by the current condition (new requirement)

The proponent shall submit annually an audit compliance report, for the previous twelve month period

The audit compliance report shall: be endorsed by the proponents Managing Director or a person, approved in writing by the Department of Environment and Conservation, delegated to sign on the Managing Directors behalf; include a statement as to whether the proponent has complied with the conditions, procedures, commitments and actions within the Environmental Management Plans; identify all non-compliances and describe the related corrective and preventative actions taken; review the effectiveness of all corrective and preventative actions taken;

2.

3.

identify all potential non-compliances and describe corrective and preventative actions taken

Deleted

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Current condition provide verifiable evidence of compliance with conditions, procedures and commitments; describe the state of implementation of the proposal; and be prepared in accordance with an audit program in a format acceptable to the Department of Environment and Conservation. Deleted Deleted

Proposed conditions

Refer * above modified and details content of compliance assessment 4. be made publicly available in accordance with the compliance assessment plan required by condition 1

The proponent shall make the audit compliance report publicly available in a manner approved by the Department of Environment and Conservation.

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3.

KEY ISSUES AND FINDINGS ON CHANGES TO OTHER CONDITIONS FOR EFFECTIVE AACR FORM AND CONTENT OF PART IV CONDITIONS AND COMMITMENTS
Background

3.1
3.1.1

The EPA assessment report provides recommended environmental conditions which are used by the Minister for the Environment as the basis for consultation with the decision-making authorities (DMAs) under s.45 of the EP Act. The Minister for the Environment is required to obtain the agreement of relevant DMAs on the conditions and procedures, if any, that are to apply to the proposal. Should agreement not be obtained, the matter may go to the Governor or Appeals Committee, depending on whether the DMA is a Minister. The outcomes of appeals against the EPAs assessment report often require changes to the EPA recommended conditions. Consequently, the formal consultation process with DMAs occurs after the Minister determines the appeals. Draft conditions that might apply to a proposal are not available during the EPA assessment process denying the community an opportunity to have a say on the potential conditions during the assessment process. In addition, the EPA does not have the full benefit of community input on appropriate conditions before finalising its recommendations to the Minister. There is an opportunity for the community to appeal against the EPA recommended conditions after it issues its assessment report. Risk and outcome-based conditions The EPA is promoting risk-based regulation as part of its reform of administrative procedures under Part IV of the EP Act. This is to enable the EPA, DEC and proponents to concentrate their resources in areas where they are most needed whilst maintaining environmental standards. The EPA and DEC are also promoting the application of outcome-based conditions and monitoring of performance. The Keating Review recommended that conditions should be outcome-based and should not prescribe how environmental aspects will be managed but rather, concentrate on specifying the outcome required with the means to achieve that outcome left to the proponent. The outcome-based approach is regarded as providing an incentive for process/system improvements to achieve better outcomes and flexibility for the proponent as to how the outcome may be achieved. An outcome-based condition is defined by the Working Group as one that may impose: 1. A specific outcome to be achieved. For example, avoidance of particularly significant vegetation or habitat or not exceeding a receiving environment standard. 2. A performance standard that is to be met. For example, standards that detail the limits or criteria (such as an emission limit) but do not describe how such limits or standards will be met. The EPA, DEC and the Keating Review prefer outcome-based conditions to prescriptive conditions that prescribe environmental management or require the preparation and implementation of management plans.

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Clarity of conditions A number of current conditions are considered to be ambiguous or unclear as to their requirements, sometimes do not make sense and often leave substantial discretion as to what requirements are to be met. Proponent commitments Proponent commitments are given effect through conditions in Ministerial Statements but historically have been difficult to audit because they are often vague or ambiguous. Recently, the EPA has indicated that it will not be recommending that proponent commitments be given legal effect through conditions. Conditions requiring approval and implementation of management plans The use of management plans (more specifically, strategies) were considered by the Keating Review to be consistent with the intent of outcome-based conditions as they enabled the proponent (rather than the approval agency) to choose the means by which a management objective could be achieved. Past practice however, requires management plans to be approved and the actions in these plans to be implemented, audited and reported which in effect, prescribes the management that must be applied. The subsequent approval of management plans are seen as providing a second bite for environmental management requirements on a proposal that already has approval to be implemented. The EPA favours setting of management requirements upfront in recommended conditions in its report to the Minister. Conditions requiring the subsequent approval and implementation of management plans have been seen by some proponents as a way to expedite approval as it may take longer or may be more difficult to determine a performance standard or outcome. Proposals which may be the subject of other approvals The subject of Ministerial conditions may sometimes overlap with other statutory approvals. The Keating Review in particular emphasised that such overlap should be avoided to reduce duplication. This approach acknowledges that an issue is best managed under the legislation which was drafted specifically for the purpose of administering that issue. In particular, substantial overlap/duplication with Part V approvals of the EP Act has occurred in the past. 3.1.2 Findings and recommendations

The EPAs and DECs preference is for the application of outcome-based conditions (which would include limits on the extent to which the environment can be affected) on the basis of environmental risk rather than requiring the preparation and implementation of environmental management plans through conditions. Proponents will be encouraged to propose such conditions in assessment documentation to enable input by the community during public review of the documentation. This approach would encourage continuous improvement or adaptive management of environmental issues; in other words, managing beyond compliance becomes a beneficial goal. The opportunity for including an adaptive management approach in a condition may be considered where there are significant issues to be addressed. The condition could specify performance targets in addition to the

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specified outcome. While exceedance of the outcome would be a breach of the condition, not meeting the targets would not be a breach but instead, a management response would be required from the proponent. The current performance review condition and proposed adaptive management condition may be melded. Conditions requiring the preparation and implementation of management plans are contrary to this principle but there are some instances where a risk-based approach may require the prescription of mitigation or management measures through conditions. The EPA and DEC are likely to share some of the liability with the proponent on the achievement of environmental management outcomes through the process of approval or assessing whether the plan meets the requirements of the Minister or EPA. The clarity of conditions in many Statements will be difficult to audit for compliance. Specific training or detailed guidance should be available for the preparation of clear, concise and legally binding conditions. Duplication of conditions or requirements with other approval processes (particularly between Part IV and Part V) has occurred in the past. In these situations, the EPA is still required to address the issue but may defer to other processes if it understands that the issue will be satisfactorily managed. Recommendations: 9. Conditions should be: 9.1 performance or outcome-based wherever practicable 9.2 clear, unambiguous and auditable 9.3 address monitoring and reporting on performance. 10. Proponents should be encouraged to propose conditions in impact assessment documentation. 11. Key management or mitigation measures may be placed in a Schedule to a Statement where the prescription of measures is required on the basis of environmental risk and where there is substantial uncertainty that the performance or outcome can be achieved. 12. Key measures should be auditable and through a condition, the proponent should be required to respond to any non-conformance with these measures. 13. Adaptive management or continuous improvement may be formalised in a condition with nonbinding targets (but a response would be required from the proponent) for significant issues where improvements over time, are desirable. 14. Conditions should generally not be imposed where it has been demonstrated during the EPA assessment process that issues are capable of being managed under other statutory approvals developed to specifically address the issues unless the EPA is of the view that a performance standard or outcome needs to be defined for the other statutory approvals. 15. Where it is not possible to define or set a performance standard or outcome, the condition may be set to require: further investigations the setting of an interim performance standard or outcome a process for modifying the interim performance standard or outcome-based on the results of further investigations

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appropriate adaptive management response to the changing performance standard or outcome.

3.2
3.2.1

CONDITIONS ARE EFFECTIVELY PERPETUAL

Background

Under current practice, Ministerial conditions are not normally reviewed by the Minister unless requested by proponents. Ministerial Statements are in effect, issued in perpetuity without an opportunity to upgrade conditions and ensure relevant contemporary standards are in place. The EPA and DEC have therefore in practice, had very limited scope to impose contemporary standards or outcomes to proposals in previous Ministerial Statements; notwithstanding any shift in community values or Government policy. Ministerial Statements issued in 1986 that have not been revised or upgraded, still apply the standards of that time rather than contemporary standards. The Part V environmental licensing process requires regular renewal of licence where conditions may be reviewed and updated. This limitation makes the EPA extremely cautious in the conditions that are set and is reflected by the emphasis on the implementation of management plans, the AACR condition and potentially through the imposition of a performance review condition. 3.2.2 Findings and recommendations

The need for an occasional review of conditions in accordance with s.46 of the EP Act is a matter that needs to be addressed in consultation with industry. Proponents may voluntarily request review of conditions pursuant to s.46 at any time. A review of conditions could coincide with any report on performance required by condition. Not withstanding the merits of an occasional review of conditions, there are resource implications (and perhaps legal implications) for both EPA and DEC in conducting such reviews. Recommendations: 16. DEC to consult with industry organisations on the development of any intention to routinely review conditions. 17. Consider linking any review of conditions to the submission of a performance review report required by condition.

3.3
3.3.1

ONE ANNUAL REPORT FOR ALL

Background

Proponents are required to submit annual reports covering similar matters under several jurisdictions including: EP Act - Part IV AACR condition EP Act - Part V licence conditions compliance and monitoring reports

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Agreement Acts - annual and triennial reports Mining Act - reports on tenement condition Rights in Water and Irrigation Act - water licence conditions may require reports on monitoring and water usage. Findings and recommendations

3.3.2

There was strong support from proponents for the submission of one overall annual report to Government covering various agencies reporting requirements. Such reports may be structured to clearly address the requirements of all agencies. 18. DEC and the Department of Industry and Resources should develop a universal reporting system to satisfy reporting requirements of all agencies.

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Appendix 1 Examples of the application of outcome-based conditions

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MOVING AWAY FROM MANAGEMENT PLAN CONDITIONS

Statements that have been used to illustrate the use of outcome-based conditions are as follows: Statement 735 for Dampier to Bunbury pipeline Statement 718 for Gwindinup Mineral Sands Mine Statement 757 Pluto for Liquified Natural Gas Development.

The EPA is moving away from recommending conditions that require the preparation, approval and implementation of environmental management plans. Avoiding the requirement for subsequent approval of management plans after the issue of a Ministerial Statement is beneficial to both proponents and DEC/EPA as it avoids an additional approval process. Replacing management plan conditions with outcome-based conditions has the advantage that the focus is returned to achieving environmental outcomes (consistent with the environmental legislation) rather than the specific management measures that will be in place to achieve them. However, where environmental risk assessment suggests that specific key management or contingency measures are required to ensure an acceptable outcome, a schedule listing key management actions/measures may be included the Statement together with a condition requiring their implementation. This approach will also simplify compliance reporting requirements and ensure that it focuses on key issues. 1.1 REQUIREMENTS OF CONDITIONS

The requirements of conditions can be grouped as follows: further investigations remediation or rehabilitation specific key management, or contingency measures baseline and performance monitoring bonds compliance and performance reporting decommissioning.

Management plans have sometimes been required to address all of the above requirements. The following sections address how outcome or performance-based conditions can address the above requirements thereby avoiding the need for subsequent approval of management plans. 1.1.1 Further investigation and avoidance requirements

A condition may require a further investigation where the overall project has been judged environmentally acceptable but additional information is required prior to construction to determine exactly the extent of impact and develop final management measures. This requirement is included with requirements to submit the investigation results and to prepare a management plan within which the results are to be addressed.

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Example: Condition 7, Statement 735 Dampier to Bunbury pipeline This condition read as follows: 7.1 Prior to the commencement of vegetation clearing, the proponent shall submit a report to the CEO which details the results of the spring surveys undertaken in 2006. This report shall: 1. 2. 3. Record the location of any Declared Rare, Priority Flora and other species of conservation significance; Identify any Threatened Ecological Communities and other environmentally sensitive areas; Describe the habitat in which specially protected or conservation-significant flora species are found, and the extent of the contiguous area of the same habitat in the local area; Specify the degree of impact of the proposed works on specially protected or conservation-significant flora species, its identified contiguous habitat or Threatened Ecological Communities and other environmentally sensitive areas;

4.

7.2

Prior to the commencement of vegetation clearing, the proponent shall prepare, in consultation with the Department of Environment and Conservation, a Flora and Vegetation Management Plan, which shall: 1. Identify the proposed management strategy for the protection of Declared Rare Flora, Priority Flora, Threatened Ecological Communities, other conservation-significant species and other environmentally sensitive areas identified; and 2. Include a post activity monitoring plan for specially protected or conservationsignificant flora species.

7.3 7.4

The proponent shall implement the Flora and Vegetation Management Plan required by condition 7.2. The proponent shall make the Flora and Vegetation Management Plan required by 7.2 publicly available in a manner approved by the CEO.

In addition, condition 8 in the Statement required the proponent: to delineate areas of disturbance on the ground not to cause disturbance to vegetation outside areas of disturbance not to cause disturbance to vegetation outside the 20 m easement in environmentally sensitive areas.

Recasting condition 7 in an outcome or performance-based form it would in summary, read as follows: 7.1 would remain unchanged.

Condition 7.2 requires preparation of a management plan covering a variety of topics. The requirement for a plan could be replaced with an outcome-based requirement (in addition to those specified in condition 8) to avoid clearing flora species and vegetation of conservation significance as follows:

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7.2 The proponent shall not disturb vegetation or flora with the following conservation status identified by the spring flora surveys referred to in condition 7.1 - unless otherwise authorised by the CEO of DEC; 1. 2. Declared Rare Flora and Priority Flora Threatened Ecological Communities.

Adding the words unless otherwise approved by the CEO of DEC gives some flexibility to the proponent to seek approval for unavoidable disturbance. However, no additional approvals should be required if the avoidance condition is met. Conditions that require the proponent to avoid disturbance of a particular environmental value are a simple example of an outcome-based condition. This type of condition may be applied to avoidance of clearing conservation significant flora or vegetation but may also be applied to limiting the footprint so that heritage sites, wetland buffers, riparian zones etc are protected. Condition 7-2 also contains a requirement for preparing a monitoring plan in consultation with DEC. The monitoring plan is not prescribed in the condition. Recasting this requirement in a form that would make monitoring requirements clear may read as follows in a separate condition: 7.3 7.4 7.5 7.6 The proponent shall monitor flora and vegetation of conservation significance within 200 m of the disturbance footprint (as identified in the flora surveys referred to in Condition 7.1) The monitoring required by condition 7.3 shall be conducted in spring over 2 consecutive years following construction. The monitoring required by condition 7.3 shall determine the condition, abundance and extent of conservation significant species and communities. The proponent shall submit the results of the monitoring program to DEC within 6 months of completing the second spring survey.

The original conditions 7.3 and 7.4 may then be deleted. 1.1.2 Requirements for remediation or rehabilitation

The requirement for clean up or rehabilitation has generally resulted in a management plan condition being applied. These conditions have generally outlined the objectives of the plan, the required content of the plan (sometimes detailing outcomes required) and the review and reporting requirements. The key outcome required however, is that the rehabilitation is carried out to an acceptable standard in an appropriate timeframe. Example: Condition 8 of Statement 718 for Gwindinup Mineral Sands Mine requiring preparation and implementation of an Integrated Mining and Rehabilitation Plan The condition prescribes the objectives of the plan and 15 other requirements of the plan (including collection of baseline information, preparation of other management plans, rehabilitation criteria, stakeholder consultation, monitoring etc), to the requirements of the Minister on the advice of several agencies. The condition reads as follows:

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8-1

The proponent shall carry out rehabilitation in accordance with an Integrated Mining and Rehabilitation Plan prepared to the requirements of the Minister for the Environment on advice of the Environmental Protection Authority, the Department of Conservation and Land Management and the Department of Industry and Resources. The objectives of this Plan are: to ensure that rehabilitation and closure planning are considered as an integral part of mine planning, development and operation; and to ensure that rehabilitation and closure are subsequently carried out successfully.

The areas to be rehabilitated are shown on figure 2 and figure 3 of schedule 1. This Plan shall include the following: 1. 2. Re-introduction of native vegetation in all rehabilitation areas using native plant species of local provenance; Preparation of an ecological baseline for vegetation coverage which includes highresolution mapping (showing geographic coordinates) and assessment prior to clearing; Collection of baseline information on the pre-mining soil profiles; Collection of baseline information on the hydrology of the Gwindinup North site; including surface expressions of the groundwater (paluslope wetlands) and Gynudup Brook, before mining; Collection of baseline information on the hydrology of the Gwindinup South site before mining; Preparation of plans for re-establishing soil and hydrological conditions comparable to those which existed before mining, for both the Gwindinup North and Gwindinup South sites; procedures for soil profile restoration; restoration of hydrogeological characteristics; revegetation (including Priority Flora); and dieback and weed control; Specific rehabilitation criteria to be achieved for the re-establishment of vegetation comparable to the pre-mining vegetation type for each area, including criteria for the re-establishment of all Priority species and any other species of particular conservation significance, such as undescribed species of flora; Objectives, requirements and framework for stakeholder consultation and reporting; Protection of remnant vegetation on the mining lease areas from mining and nonmining impacts;

3. 4.

5. 6.

7.

8. 9.

10. A final land use/landform plan;

11. A strategy which integrates the mining and rehabilitation schedules and requirements; 12. A program to monitor rehabilitation success and to compare with criteria to be achieved; 13. Contingency measures in the event that expected performance is not achieved; and 14. Internal review, audit and continual improvement.

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8-2

The proponent shall make the Integrated Mining and Rehabilitation Plan required by condition 8-1 publicly available.

Expressing rehabilitation requirements in an outcome-based form is a greater challenge than other requirements because of the complexity of rehabilitation and the performance of rehabilitation over time is usually uncertain. Rehabilitation is more suited to an adaptive management approach which should be reflected through any condition imposed. Rehabilitation requirements may also duplicate requirements set under the Mines Act. A rehabilitation condition in outcome or performance-based form may include the following requirements: baseline surveys the area to be rehabilitated performance or completion criteria rehabilitation monitoring timeframe for achieving rehabilitation milestones.

A rehabilitation condition replacing condition 8 above may be as follows: 1. The proponent shall conduct surveys to collect the following baseline information prior to mining: 2. pre-mining soil profiles groundwater levels.

The proponent shall commence rehabilitation of mined area described in Schedule 1 as mining progresses in accordance with the following: final land use indicated for the mined areas in Schedule 1 or as otherwise approved by the CEO of DEC re-establishment of vegetation in rehabilitation area shall be comparable to that of the pre-mining vegetation such that the following criteria are achieved within xx years (or as otherwise approved by the CEO of DEC): species diversity is >75% of the known original species diversity % plant coverage (not including weeds) is >80% on average % weed coverage is <10%.

3.

The proponent shall monitor progressively, the performance of rehabilitation against criteria in 2 above based on annual monitoring in spring of xx 10 m x 10 m quadrats per hectare of rehabilitation. The results of rehabilitation shall be reported annually to the CEO of DEC and the annual report shall address the following: progress towards meeting criteria in 2 above and milestone criteria before then contingency measures where criteria are unlikely to be achieved etc.

4.

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Further information on the rehabilitation process would be provided as part of the impact assessment documentation. 1.1.3 Management or contingency actions

Specific key management or contingency action requirements can be incorporated into a Management Requirements Schedule. The operation of major control equipment or waste reuse schemes (e.g. air quality scrubbers, or reuse of process waste water) may be prescribed as requirements in a schedule to the Statement. Key management actions would be included in the requirements schedule where considered essential for the achievement of acceptable environmental outcomes. Example: Condition 10 Statement 718 for the Gwindinup Mineral Sands Mine requiring a Groundwater Monitoring and Management Plan to be prepared, approved and implemented The condition prescribes the objectives and outlined what the plan should contain and reads as follows: 10-1 Prior to any ground-disturbing activities and during mining, the proponent shall monitor groundwater in accordance with a Groundwater Monitoring and Management Plan prepared in consultation with adjoining and nearby landowners and to the requirements of the Minister for the Environment on advice of the Department of Environment and the Department of Conservation and Land Management. The objectives of this Plan are: to take management action to avoid impacts upon native vegetation adjacent to the Gwindinup North and Gwindinup South mining areas; to manage impacts on local water supplies; and to monitor groundwater levels.

This Plan shall: 1. include baseline data on native vegetation health prior to mining or groundwater extraction; 2. define locations for groundwater monitoring stations; 3. define trigger levels for management actions to be taken in the event that impacts on groundwater are likely to affect native vegetation; 4. define management actions (contingency measures) to be implemented in the event that unacceptable impacts on native vegetation occur as a result of groundwater drawdown; 5. define management actions (contingency measures) to be implemented in the event that unacceptable impacts on local water supplies occur as a result of groundwater drawdown; and to establish procedures for landowners to report any interruptions to their water supplies, and for the timely resolution as to whether this has been caused by mining operations, along with the timely reinstatement of a similar capacity water supply; and 6. be subject to independent technical review prior to finalisation.

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10-2 The proponent shall make the Groundwater Monitoring and Management Plan required by condition 10-1 publicly available. The condition may be replaced with an outcome-based condition as follows: 1. Mine dewatering shall not result in groundwater drawdowns of more than 1 m within 500 m of the mining tenement boundary shown in Schedule 1.

This condition may be accompanied by performance monitoring and reporting requirements prescribed in separate conditions. In some cases there is insufficient certainty to define a set environmental outcome during the EPA assessment and a more of adaptive management approach would be best reflected in conditions. For example the following requirements could be addressed by conditions in these circumstances: Groundwater drawdown shall be adaptively managed as follows: 1. At least 1 year prior to dewatering, the proponent shall install groundwater monitoring wells at a density of xx wells per hectare of the modelled dewatering impact zone. 2. The proponent shall monitor water levels in the monitoring wells xx monthly prior to dewatering commencing and xx weekly during dewatering. 3. The proponent shall immediately cease or reduce groundwater abstraction if groundwater drawdowns 200 m from where mine dewatering occurs are 20% greater than groundwater drawdown specified in condition xx. Groundwater abstraction must cease until the groundwater levels has returned to within 20% of the specified drawdown level. 4. The proponent shall monitor vegetation condition monitoring in drawdown area xx monthly in summer and autumn during the first year of dewatering. 5. The proponent shall conduct an investigation if an adverse change in condition rating is recorded to determine whether the cause of the change was related to dewatering. 1.1.4 Dredging condition

Example: Condition 6 (dredging impacts) in Statement 757 the Pluto Liquefied Natural Gas Development Condition 6 consists of 14 parts and includes a number of requirements including: containment of impact to a nominated area impact trigger values (contained in a schedule) report exceedences of trigger values actions when exceeding trigger values prepare and implement dredge impact management plan for approval resourcing of management group to advise the Minister prepare and submit a baseline marine habitat survey report for approval conduct field surveys in accordance with approved survey report.

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The condition reads as follows: 6-1 The proponent shall undertake all works to ensure that the Limits of Coral Loss, specified in Schedule 2, associated with each of the designated Impact Criteria Zones described and defined in Figure 3, are not exceeded. If any Level 1 Coral Condition Management Trigger Criterion referred to in Schedule 3 is exceeded, within 12 hours following detection of the exceedance, the proponent shall notify the CEO and provide details of the actions being taken to reduce turbidity-generating activities which are affecting that site; and within 24 hours of the criterion being exceeded, the proponent shall implement management actions to keep impacts within approved limits specified in schedule 2. If any Level 2 Coral Condition Management Trigger Criterion referred to in schedule 3 is exceeded at any monitoring site, the proponent shall: 1. 2. immediately suspend all dredging and dredge spoil activities that contributed to the exceedance; provide a report to the CEO on the measures to be implemented to keep impacts below the limits in schedule 2, prior to recommencing any dredging and dredge spoil activities that contributed to the exceedance which could affect that site; and provide a report, on advice of the Dredge Environmental Management Group, defining marine water quality conditions which will be met for the endorsement of the Minister for the Environment on advice of the CEO to allow for the recommencement of dredging to ensure that mortality and / or impacts will not exceed the limits specified in schedule 2.

6-2

6-3

3.

6-4

If any Level 3 Coral Condition Management Trigger Criterion referred to in schedule 3 is exceeded at any monitoring site, the proponent shall: 1. 2. immediately suspend all dredging and dredge spoil activities that contributed to the exceedence; and provide a report to the Minister for the Environment regarding the non-compliance with condition 6-1.

6-5

Prior to commencement of turbidity-generating activities, the proponent shall prepare a Dredge Impact Management Plan for dredge activities which demonstrates that the activities can achieve the management targets for the Marine Park as set out in the Indicative Management Plan for the Proposed Dampier Archipelago Marine Park and Cape Preston Marine Management Area, and which demonstrates that management strategies will be employed which will minimise impacts on benthic habitats and communities (including corals) outside the Marine Park, to the requirements of the Minister on advice of the Environmental Protection Authority. This Plan shall address the following: 1. 2. 3. comprehensive monitoring of water quality, sediment deposition, and coral condition; best practice dredge procedures; selection of a suitable location for the off-shore spoil ground which demonstrably does not cause impacts on the Marine Park;

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4. 5. 6. 7.

optimum timing of works with respect to sea and meteorological conditions; establishment of conservative stop work trigger levels; identification and temporal definition of key ecological windows when dredging activity will not occur, such as during coral spawning periods; and contingency plans.

Further details on the content required in this Plan is provided in schedule 4. 6-6 6-7 6-8 The proponent shall implement the Dredge Impact Management Plan required by condition 6-5. The proponent shall make the Dredge Impact Management Plan required by condition 6-5 publicly available in a manner approved by the CEO. The proponent shall resource a Dredge Environmental Management Group for the duration of the marine works and for such time before and after the marine works so as to carry out its function, to the requirements of the Minister for the Environment. The role of the Dredge Environmental Management Group is to provide the Minister for the Environment, the Department of Environment and Conservation and the proponent with advice including, but not limited to: 1. the marine management plans; 2. the marine monitoring programs; 3. the management of turbidity-generating activities and marine works; 4. impacts on marine fauna and flora, including corals; 5. reporting; 6. new management measures; and 7. Level 1 and 2 Coral Condition Management Trigger Criteria for Zone C as required in Schedule 3. The membership of the Dredge Environmental Management Group may include: an independent chair appointed by the Minister for the Environment on advice from the CEO; and experts appointed by the Minister for the Environment;

and the following may nominate one member each: the Department of Fisheries; the Dampier Port Authority; the Department of Environment and Conservation; and the proponent.

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6-9

Prior to commencement of any marine works, the proponent shall prepare and submit to the Department of Environment and Conservation, a Scope of Baseline Marine Habitat Survey document to the requirements of the Minister for the Environment. The objective of this document is to specify procedures to quantitatively determine the predevelopment baseline distribution, community composition and health of benthic marine habitats (see note below) within the area which may be affected by any works associated with the proposal. This document shall address the following: 1. survey methods; 2. location and establishment of survey sites; 3. timing and frequency of surveys; 4. habitat classification schemes; 5. treatment of survey data; and 6. mapping methodologies. Note: Marine habitats includes hard and soft coral communities, sponge communities, seagrass and macro-algal communities.

6-10 The proponent shall provide an initial report on a detailed survey of coral habitat and communities, and a map showing the general distribution of other benthic habitat types (including soft corals, sponges, algal reef communities) within and adjacent to the area of predicted effects of dredging to the Department of Environment and Conservation at least one month prior to the commencement of dredging. 6-11 The proponent shall conduct a comprehensive field survey, consistent with the approved Scope of Baseline Marine Habitat Survey document, and provide a report of the results to the Department of Environment and Conservation within six months following commencement of any marine works associated with the proposal. This report shall: 1. contain spatially accurate (e.g. rectified and geographically referenced) maps showing the locations and spatial extent of the different marine habitat types and percentage cover of each component of their associated benthic communities including corals, macroalgae, non-coral macro-invertebrates and seagrass; 2. record the existing hard and soft corals, macroalgae, non-coral benthic macroinvertebrates, seagrass and demersal fish observed within the communities; 3. record the population structure, as size class frequency distributions, and other population statistics, such as recruitment, survival and growth, of key hard coral species; 4. evaluate baseline pre-development health of the benthic communities at representative survey sites; and 5. include data provided in an appropriate Geographic Information System data set format.

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6-12 Within three months following completion of the marine works, the proponent shall repeat the Comprehensive Field Survey required by condition 6-11, and shall submit a report on the results of that survey to the Department of Environment and Conservation. This will constitute the first Post-Dredging Marine Habitat Survey, reporting any changes which may have occurred between the Baseline Marine Habitat Survey and the first PostDredging Marine Habitat Survey. 6-13 The proponent shall repeat the Post-Dredging Marine Habitat Survey referred to in condition 6-12, at the same time of the year annually for three years, or until such time, as determined by the Minister for the Environment on advice of the Department of Environment and Conservation and the Department of Fisheries. 6-14 Within three months following completion of each of the surveys required by conditions 6-12 and 6-13, the proponent shall report the findings of each of the surveys to the Department of Environment and Conservation. This condition is an example of how avoidance conditions, triggers and contingencies have been historically incorporated into a Statement. The contingency actions are included as conditions and the triggers as a Schedule. Under an outcome-based approach, this condition may be modified (without questioning the trigger levels set) as follows: 6.1 6.2 The required outcome in this condition would be retained but the condition reworded to more clearly state the outcome required for coral loss (schedule 2). This condition requires the development and implementation of management measures when a trigger level (level 1) are exceeded, which is below the limit of impact permitted in 6.1, to ensure these limits are not exceeded. Under an outcomes-based approach it is questionable whether this condition is necessary other than to report on the trigger value being exceeded, corrective and preventative actions being taken and the level of anticipated risk to the marine environment. The proponent would still be bound by the limits in 6.1. As with 6.2, this condition requires the development and implementation of a management response when level 2 triggers are exceeded to keep impacts below limits in 6.1 but in the mean time, dredging would cease immediately. Under an outcomes-based approach it is questionable whether this condition is necessary other than to report on the trigger value being exceeded, corrective and preventative actions being taken and the level of anticipated risk to marine environment. As with 6.3, this condition requires the immediate cessation of dredging and a report to the Minister if level 3 triggers are exceeded which are equivalent to the limit of impact in 6.1. Under an outcomes-based approach this condition may be appropriate given that the limit is exceeded and provided the level of risk to the marine environment would be high if dredging continued. The dredge would remain shutdown until it could be established that the level of risk to the marine environment was acceptable under new management actions or new limits of impact were authorised. Condition 6-5 in the statement requires a management plan to be prepared. This is unnecessary as the scope of the required management plan repeats the requirements that have already been clearly set out in other conditions. This condition would be deleted. As for 6-5.

6.3

6.4

6.5

6.6

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6.7 6.8

As for 6.5. This requires the resourcing of a management group (composed of government agencies and experts appointed by the Minister) to advise the Minister on management plans, programs, impacts, reporting, management measures and triggers. Under a risk-based and outcome-based approach, an expert group may be appropriate to provide advice on the proposed management actions and the risk assessment prepared by the proponent in the event of level 3 trigger being exceeded. This condition requires a baseline monitoring program and would be consistent with an outcome-based approach.

6.9

6.10 As for 6-9. 6.11 As for 6-10. 6.12 As for 6-11. 6.13 as for 6-12. 6.14 as for 6-13. Condition 6 may be reworded as follows 6-1 6-2 The proponent shall cause no loss of coral in excess of the limits of coral loss in impact zones prescribed in Schedule 2. If any Level 1 or 2 Coral Condition Management Trigger Criterion prescribed in schedule 3 is exceeded, within 12 hours following detection of the exceedance, the proponent shall notify the CEO, provide details of the actions being taken to reduce turbidity-generating activities which are affecting that site and provide an assessment of risk to the marine environment once the new management actions are implemented. The proponent shall immediately suspend all dredging and dredge spoil disposal activities, until the Minister advises otherwise, that contribute to the exceedence of any Level 3 Coral Condition Management Trigger Criterion at any monitoring site within each impact zone referred to in schedule 3. The proponent shall provide a report to the Minister for the Environment on any exceedence of the limits prescribed in condition 6.1. The proponent shall in the report required by condition 6.4, provide details of any new actions that will be taken to reduce turbidity-generating activities which are affecting that site and provide an assessment of risk to the marine environment once any new management actions are implemented. The proponent shall provide a peer review report of the risk assessment and proposed management actions required in condition 6.5 by an independent expert group acceptable to the Minister together with the report required by condition 6.4. Prior to commencement of any marine works, the proponent shall prepare and submit, a Marine Habitat Baseline and Dredging Survey Program for the approval by the Department of Environment and Conservation. This program shall address the following:

6-3

6.4 6.5

6-6

6-7

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1. 2. 3. 4. 5. 6.

survey methods for baseline and subsequent surveys following commencement and completion of dredging. location and establishment of survey sites. timing and frequency of surveys. habitat classification schemes. treatment of survey data. mapping methodologies.

Note: Marine habitats includes hard and soft coral communities, sponge communities, seagrass and macro-algal communities. 6-8 The proponent shall provide an initial report on a detailed survey of coral habitat and communities, and a map showing the general distribution of other benthic habitat types (including soft corals, sponges, algal reef communities) within and adjacent to the area of predicted effects of dredging to the Department of Environment and Conservation at least one month prior to the commencement of dredging. The proponent shall conduct a comprehensive field survey, consistent with the approved Marine Habitat Baseline and Dredging Survey Program and provide a report of the results to the Department of Environment and Conservation within six months following commencement of any marine works associated with the proposal. This report shall: 1. contain spatially accurate (e.g. rectified and geographically referenced) maps showing the locations and spatial extent of the different marine habitat types and percentage cover of each component of their associated benthic communities including corals, macroalgae, non-coral macro-invertebrates and seagrass. record the existing hard and soft corals, macroalgae, non-coral benthic macroinvertebrates, seagrass and demersal fish observed within the communities. record the population structure, as size class frequency distributions, and other population statistics, such as recruitment, survival and growth, of key hard coral species. evaluate baseline pre-development health of the benthic communities at representative survey sites. include data provided in an appropriate Geographic Information System data set format.

6-9

2. 3. 4. 5.

6-10 Within three months following completion of the marine works, the proponent shall repeat the Comprehensive Field Survey required by condition 6-9, and shall submit a report on the results of that survey to the Department of Environment and Conservation. This will constitute the first Post-Dredging Marine Habitat Survey, reporting any changes which may have occurred between the Baseline Marine Habitat Survey and the first PostDredging Marine Habitat Survey. 6-11 The proponent shall repeat the Post-Dredging Marine Habitat Survey referred to in condition 6-12, at the same time of the year annually for three years, or until such time, as determined

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by the Minister for the Environment on advice of the Department of Environment and Conservation and the Department of Fisheries. 6-12 Within three months following completion of each of the surveys required by conditions 6-10 and 6-11, the proponent shall report the findings of each of the surveys to the Department of Environment and Conservation.

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Appendix 7

Strategic Environmental Assessment

Discussion paper prepared for the EIA Review (Subject to comment from the Stakeholder Reference Group)

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Paper No.7 Strategic Environmental Assessment

1. 1.1 INTRODUCTION PURPOSE AND SCOPE

The purpose of this paper is to provide: definition and advantages of strategic environmental assessment (SEA) background on the application of SEA locally and overseas recommendations for the future application of SEA in WA recommended general administrative procedure that may apply to SEA in WA.

1.2

WHAT IS STRATEGIC ENVIRONMENTAL ASSESSMENT?

The definition of strategic environmental assessment (SEA) varies depending on the jurisdiction. Notwithstanding these differences the overall concept of SEA is to strengthen the role of environmental issues in strategic decision making (Tonk and Verheem 2000). The Netherlands Commission for Environmental Assessment defines this term as: as a family of approaches that aim to integrate environmental considerations into policies, plans and programmes and evaluate their interlinkages with economic and social considerations The Commission maintains that EIA aims to achieve better individual projects whereas SEA aims to achieve better strategies. The distinctions between conventional EIA and SEA include: SEA is more qualitative SEA is more able to consider potential cumulative impacts SEA would be more likely to involve the comparison of alternatives as compared with project EIA which compares the selected development option against standards and guidelines.

The European Economic Union has issued Directive 2001/42/EC requiring member States to assess the environmental effects of plans and programs. The Directive indicated that: The adoption of environmental assessment procedures at the planning and programming level should benefit undertakings by providing a more consistent framework in which to operate by the inclusion of the relevant environmental information into decision-making. The inclusion of a wider set of factors in decision-making should contribute to more sustainable and effective solutions. Others see environmental impact assessment as a continuum with the division between project-based EIA and SEA as being somewhat artificial and may actually limit what may be expected from projectbased EIA (Angus Morrison-Saunders pers comm.).

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An EIA may be considered more strategic where there is a consideration of options that address the following: 1. 2. 3. The most suitable use or activity of an area. The best place to conduct an activity or use. The best way of conducting an activity or use in an area.

This paper will continue to use the term SEA as the consideration of options in project-based EIA is in reality, most often constrained. SEA is more likely to be associated with internal or external planning processes that set the framework for the development of subsequent projects or proposals.

1.3

ADVANTAGES OF APPLYING SEA

The advantages of conducting SEA include: encourages a more regional approach to resource management and land use planning alternatives are better considered early in the planning process addresses cumulative impact more readily than EIA of individual projects prerequisites for development are better known upfront better design of developments more certainty for subsequent projects or development through the upfront resolution of footprint issues streamlining subsequent approval or assessment of development proposals that are in accordance with the plan, policy or program under which the proposal is developed.

The advantages of SEA includes not only the achievement of better environmental outcomes through the addressing environmental considerations early in planning processes but should also enables the streamlined consideration of project proposals that are in accordance with the endorsed project plans and programs (PPPs).

2. 2.1

CURRENT APPLICATION OF SEA INTERNATIONAL

The SEA of government PPPs occurs in many overseas jurisdictions with Europe and Canada being some of the more prominent examples. The assessment process may vary substantially depending on the circumstances within the country or state. An emphasis in overseas jurisdictions is the early integration of environmental considerations into the planning process and the preparation of assessments by the proponent agencies with assistance or guidance from environmental agencies. The European Union (EU) has issued Directive 2001/42/EC requiring Member States to conduct SEA of plans and programs. The EU SEA Directive enshrines environmental assessment as an important tool for integrating environmental considerations into the preparation and adoption of government plans and programs. SEA ensures that significant environmental effects of implementing plans and programs are taken into account during their preparation and before their adoption.

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The EU Directive also requires Member States also to monitor the significant environmental effects of the implementation of plans and programs in order to identify at an early stage unforeseen adverse effects, and to be able to undertake appropriate remedial action. Key aspects of the application of SEA to PPPs based on internationally experience include: the requirement for SEA of PPPs is mandated by legislation or government directive early interaction between the environmental and responsible authorities is required to assist environmental input to options or alternatives and the establishment of SEA objectives the integration of environmental considerations and application of SEA to PPPs is the responsibility of the responsible agency gathering of adequate data to support qualitative SEA preparation of an environmental report or review is the responsibility of responsible authorities (or others on their behalf) comments or advice from environmental agencies on environmental reports on draft PPPs is taken into account by responsible authorities (who need to publically demonstrate how so) when finalising PPPs. Principles that have applied to overseas SEA

2.1.1

SEA is intended to contribute to sustainable development by ensuring the incorporation of environmental considerations into PPPs that set the framework for subsequent activities. Good governance and public participation, transparency and good quality information are all important principles applied to the SEA process (as well as project-based EIA). In some circumstances, SEA has included consideration of social and economic issues. In Canada, government agencies are encouraged to incorporate environmental considerations into the review process of PPPs. The following principles apply to SEA of public policies, plans and programs in Canada enforced through the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals: Early integration - The analysis of environmental considerations should be fully integrated into the development of a PPP. The consideration of environmental effects should begin early in the conceptual planning stages of the proposal before irreversible decisions are made. Examine alternatives - SEA provides the opportunity to evaluate and compare the environmental effects of alternatives in the development of a new PPP. This comparison will help identify how modifications or changes to the PPP can reduce environmental risk. Flexibility Proponents should have discretion in determining how they conduct strategic environmental assessments, and should be encouraged to adapt and refine analytical methodologies and tools appropriate to their circumstances. Self-assessment - Each proponent is responsible for applying SEA to its proposed PPPs by determining how an assessment should be conducted, performing the assessment and reporting on the findings of the assessment.

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Appropriate level of analysis - The scope of analysis of potential environmental effects should be commensurate with the level of anticipated effects. Accountability - SEA should be part of an open and accountable decision-making process. Accountability should be promoted through the involvement of affected individuals and organisations, when appropriate, and through documentation and reporting mechanisms. Use of existing mechanisms - In conducting a SEA, proponents should use existing mechanisms to conduct any analysis of environmental effects, involve the public if required, evaluate performance and report the results.

Similar principles are also applied in the United Kingdom (including Northern Ireland, Scotland, Wales) where the European Union (EU) Directive 2001/42/EC (SEA Directive) is implemented through local legislation requiring SEA for plans and programs.

2.2

COMMONWEALTH

Under s.146 of the Commonwealth Environmental Protection and Biodiversity Act 1999 (EPBC Act) SEA is conducted of actions that may be taken under a policy, plan or programme that may adversely affect matters protected under the EPBC Act. The PPP may be endorsed by the Minister and actions taken in accordance with the endorsed PPP may be approved by the Minister more expeditiously. A number of strategic environmental assessments of Commonwealth-managed fisheries have been conducted under the EPBC Act. The assessment process resembles that of project-based environmental impacts assessments under the EPBC Act (Figure 1).

2.3
2.3.1

WESTERN AUSTRALIA
Strategic proposals as defined under the EP Act

Recent amendments (introduced in 2004) to the EP Act enables the EPA to assess a strategic proposal which is defined as a proposal that may become a significant proposal or future proposals that may have a significant effect on the environment. If a subsequent development is consistent with the assessed strategic proposal it may be declared a derived proposal by the EPA under certain circumstances. The circumstances (s. 39B(4)) under which the EPA may decide to assess project proposals are as follows: environmental issues were not adequately considered when the strategic proposal was assessed there is significant new or additional information that justifies re-assessment of issues there has been a significant change in the relevant environmental factors since the strategic proposal was assessed.

A derived proposal cannot be assessed by the EPA once so declared. In the Western Australia the referral of strategic proposals is voluntary but the outcome is regulated with legally binding conditions. This is the converse of the overseas experience where it is compulsory for SEA of PPPs but the outcomes are not legally binding on the responsible authority.

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While no strategic proposals have been assessed and formal assessment procedures have not been developed it is understood that EPA may have applied project style assessments procedures to these proposals.

Ministerial Agreement with proponent for the policy, plan or program to be assessed

Draft terms of reference issued for public comment

Revised terms of reference prepared by the proponent submitted to the Minister

Agreement on revised terms of reference

Draft Report prepared by proponent in accordance with the terms of reference

Draft report issued for public comment

Proponent prepares amended draft report or supplementary report prepared taking into account public comment

Final report with responses to submissions submitted to the Minister

Minister considers final report

Minister endorses the plan

Figure 1

Commonwealth strategic environmental assessment process

2.3.2

Assessment of schemes under the EP Act

In Western Australia, the assessment of town and regional planning schemes (schemes) has been occurring under the Environmental Protection Act 1986 (EP Act) since 1996. The assessment process that currently applies may be summarised as follows: 1. All schemes are referred to EPA by responsible authorities.

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2. 3. 4.

Interaction between EPA and responsible authorities (or others on their behalf) on referrals before decision is made as to whether EPA will assess the scheme. If the EPA decides not to assess the scheme, the EPA may provide informal advice which may be incorporated into the scheme by the responsible authority. If the EPA decides to assess the scheme the following would apply: EPA issues instructions for the preparation of an environmental review to be prepared by the responsible agency (usually by others on their behalf) an environmental review is prepared in accordance with the instructions and is submitted to EPA for approval to release for public review with the scheme response to submissions is prepared by the responsible agency for EPA consideration together with the environmental review and any amendments to the scheme EPA prepares its assessment report with recommended implementation conditions and submits it to the Minister for the Environment The Minister publishes the report and sends it to the responsible Minister and responsible authority seeking the responsible Ministers agreement if there is agreement between the Ministers, the Minister for Environment issues a Statement with or without conditions a responsible authority may request a review of any implementation conditions by the responsible Minister before the scheme is approved and if the responsible Minister agrees with the request, the Ministers will attempt to agree on the conditions that will apply.

The vast majority of schemes referred are not assessed by the EPA (about 1% are assessed) but public advice is given on a large number of them (about 30%) as a result of discussions and liaison with the responsible authority. 2.3.3 Section 16(e) strategic assessments

The EPA has conducted a number of informal strategic assessments (outputs are not directly binding) of broad scale land development (for instance proposed industrial estates and Structure Plans) as well as the assessment of Forest Management Plans pursuant to 16(e) of the EP Act. The EPA has assessed conceptual project outlines pursuant to s. 16(e) of the EP Act to provide advice on fatal flaws (for example the Oakajee Port concept). This was in effect the first stage of a two stage assessment process for significant proposals where: 1. The first stage identifies key environmental issues and determines information that will be required for a detailed assessment and whether the proposal may be potentially environmentally acceptable. Also an assessment of alternatives is usually part of this stage. The second stage a more detailed assessment of key issues and mitigation that may be applied to the proposal.

2.

2.4

JOINT COMMONWEALTH/WA SEAS

The Commonwealth and WA Governments have agreed to undertake a strategic assessment pursuant to s.146 of the EPBC Act of a Plan for a Common User Liquefied Natural Gas Hub Precinct in the

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Kimberley region. The Plan will also be subject to assessment as a strategic proposal under Part IV of the EP Act which will be conducted in parallel with the Commonwealths s. 146 process. The Minister for Industry and Resources is the proponent for the strategic proposal. It is understood that the EPA will provide s. 16(e) advice on the short list of options for the location of the Gas Hub Precinct. Both Commonwealth and WA environmental legislation enable streamlining of the approval of proposals or actions under assessed plans or strategic proposals.

3.

A PROPOSAL FOR FUTURE STRATEGIC ENVIRONMENTAL ASSESSMENT IN WA

The practice to date in WA has been to focus on the assessment of statutory schemes with occasionally providing strategic advice under s. 16(e), despite recent amendments to the Act which permits wider application of strategic assessment to other plans and potentially programs and policies. The application of SEA should not be considered as applying only to strategic proposals but also to providing input to the process of formulation of these proposals. The EPA may provide non-binding strategic environmental advice pursuant Section 16(e) on matters other than proposals such as the acceptability of environmental criteria used in the evaluation of alternatives and/or advice on the alternatives themselves.

3.1

WHY ARENT STRATEGIC PROPOSALS (OTHER THAN SCHEMES) REFERRED TO THE EPA?

No strategic proposals have been assessed by the EPA since the EP Act was amended in 2004. The reasons why this is the case is not clear but may include: 1. 2. 3. Lack of awareness of the facility and benefits of SEA under the EP Act. The lack of a directive or agreements between the EPA and other agencies for PPPs to be subject to SEA. The setting of binding conditions on responsible authorities by the Minister for the Environment at the end of the process may deter referral of proposals. the lack of certainty in streamlining the approval of subsequent proposals implemented under an assessed (or not assessed) strategic proposal.

There may also be some organisational or cultural issues that have impeded the referral of strategic proposals including: other agencies may be very reliant on environmental input from the EPA/DEC and do not have sufficient capability to prepare documentation for assessment are not inclined to seek advice or contributions from the EPA on alternatives during early planning a perception that the EPA tends to reactively judge things presented to it rather than proactively inform and advise on the development of proposals and options.

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3.2
3.2.1

SEA MODEL FOR WA

Staging of SEA

EPA input to the process for the development PPPs would seem to be as important (if not more so) in achieving a more desirable environmental outcome as the assessment of the draft or final PPPs. A combination of non-binding (potentially under s. 16(e) of the EP Act) and binding (strategic proposal) assessment outcomes may be applied. SEA could be applied at one or more stages in the development of PPPs depending on the PPP and the agreed arrangement between the EPA and the responsible authority. The process may ideally be as follows: 1. First stage (may be split into further stages) during the PPP development process. The EPA would provide strategic non-binding advice to the responsible authority on options, consistency with environmental policy, adequacy of environmental criteria and/or required environmental investigations to support subsequent development of the PPP. The outcome of this assessment is not binding and is considered by the responsible authority in the development of PPPs which may be referred to EPA subsequently as a strategic proposal. Second or final stage once PPP is formulated. Assessment of the PPP as a strategic proposal under the EP Act. The outcome of this assessment is binding and is recognised subsequently in the consideration of significant proposals under PPPs that have been assessed. It is important that the environmental framework of the assessed PPP is formally recognised in the environmental approval process applied subsequently to development proposals. Creating more certainty for subsequent development proposals

2.

3.2.2

The re-opening of issues by EPA based on the wording of s. 39B(4) is perceived as creating uncertainty and a reluctance to refer strategic proposals to EPA. There may be greater acceptance of SEA of strategic proposals if the EP Act was amended as follows: by aligning the wording of s. 39B(4) with that of s. 48I for Government strategic proposals, provide the opportunity for the responsible authority through the responsible Minister to seek a review of conditions once a statement has been issued but before the PPP is finalised as is the case under s. 48G development proposals that are consistent with the strategic proposal referred to EPA but not assessed may be considered derived proposals. Currently, a strategic proposal has to be assessed by the EPA before a proposal may be considered to be a derived proposal.

3.3

WHAT SHOULD/COULD BE SUBJECT TO SEA?

SEA may be applied to the following to enable better environmental outcomes and streamlining of downstream strategic and development proposals: 1. Options, environmental criteria or proposed environmental investigations being considered in the process of formulation of PPPs. Non-binding advice provided under s. 16(e).

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2.

Structure, outline development and corridor plans. These are not captured by s.48A but may be considered strategic proposals. Best managed under the same provisions as schemes but an amendment to the EP Act would be required to give this effect. Schemes - as is currently the case. Development plans, policies or programs for land that has already been zoned urban or industrial but was not referred to the EPA (termed pre-1996 zoned land) by planning authorities. State Planning Policies are subject to s.48A but other plans (such as amendments to corridor plans) are not. Other plans, policies and programs of government agencies (policy for the approval of exploration proposals, water allocation plans, planning strategies) with environmental implications. These PPPs may be considered strategic proposals. Development plans for a particular class of proposals prepared by private proponents (i.e. construction camps or mines within a region). These may be considered strategic proposals but none have been referred to the EPA. Examples of strategic proposals

3. 4.

5.

6.

3.3.1

Government proposals to which the above may apply include: land use concept plans, structure plans and outline development plans rural planning strategies water resource plans conservation estate management plans forest management plans industrial estate development plans plans for selection of industrial land sites development plans for residential or industrial zoned land which was not previously the subject of an assessed scheme. mining or exploration approval policy or plan within a region policy for location of port developments regional air quality management plans water source development program river protection strategies

Confirmation from the State Solicitors Office as to the extent to which the above may be considered strategic proposals is warranted. Whilst the above approach may be implemented, consideration should be to amending s. 48A of the EP Act to enable the referral by responsible authorities of structure plans, outline development plans and corridor plans or amendments thereto if they believe the plans address potentially significant proposals.

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3.4

OPTIONS FOR REFERRAL OF STRATEGIC PROPOSALS

There are three alternative ways for ensuring the referral of strategic proposals to EPA: 1. 2. Cabinet or Government directive requiring responsible authorities to referral strategic PPP proposals as has been the case overseas. In the absence of a Cabinet directive, agreements through MOUs with individual agencies (responsible authorities) - as has been done with s.39 referrals. Agreements on the application of SEA and integration with strategic proposal development processes could be achieved through MOUs with key agencies including DPI, DoIR, DOW and DEC Individual agreements with proponents of multi-site proposals of a similar kind.

3.

3.5

SUPPORTING THE STRATEGIC ENVIRONMENTAL ASSESSMENT FUNCTION

Currently there is no capacity within EPASU to take on a greater SEA role without increased resources or re-allocation of priorities. The increased emphasis on the strategic environmental assessment will require the development of a branch within EPASU, based on the existing Land Use Assessment branch in association with a broader environmental sustainability function in the DEC, to specialise in strategic environmental assessments.

3.6

PRINCIPLES THAT SHOULD APPLY IN SEA

The SEA process should be consistent with the following principles: 1. Responsible authorities should be responsible for deciding whether PPPs should be referred to EPA and conducting SEA of them. This implies that responsible authorities should be capable of making these assessments (not currently the situation) and integrating environmental considerations in the development of PPPs. Integration of environmental considerations early in the development of PPPs when environmental criteria, alternatives or options are being considered. Policy advice and guidance from the EPA on relevant environmental considerations would be encouraged. The EPA SEA process should integrate with the PPP development process. The SEA process should be transparent and open with stakeholder involvement as required. Sufficient information should be collected by the responsible authorities to support the SEA process. If a strategic proposal is assessed, an environmental review should be prepared by the responsible authority and made available for public review. If a strategic proposal is not assessed, any subsequent proposal consistent with the not assessed strategic proposal should be declared a derived proposal. Currently under the EP Act this cannot be done. The responsible authority should demonstrate how stakeholder input has been considered in its response to submissions. The responsible authority should track the environmental effects of the implementation of PPPs.

2.

3. 4. 5. 6. 7.

8. 9.

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10. The EPA should provide detailed guidelines/toolkit to assist responsible authorities to determine whether PPPs require referral and apply SEA in the development of PPPs.

3.7

RECOMMENDED ADMINISTRATIVE PROCEDURE FOR SEA

The proposed assessment process for strategic proposals is based on the assessment procedure that currently applies to schemes and to advice provided under s. 16(e). The opportunity for assessment of alternatives or informal input on alternatives to the formulation of PPPs is proposed (Figure 2). The proposed SEA process enables: EPA input early in the development of the PPP integration with the PPP formulation process stakeholder input EPA assessment or advice on alternatives

The responsible authority would be responsible for judging when a PPP requires referral in line with any MOU and ensuring appropriate environmental documentation accompanies the referral and where required the subsequent environmental review is prepared.

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Development/formulation of PPP commences EPA assesses relative merit of options, environmental criteria etc under s. 16(e). Assessment procedure agreed between EPA and responsible authority

Responsible authority seeks advice from EPA on criteria, alternatives/options

Consider advice and develop PPPs

EPA provides public advice to responsible authority

Finalise scope of PPP assessment and refer PPP proposal to EPA in accordance with MOU

Advice given NO

EPA decides whether the PPP requires assessment YES

Responsible Authority takes into account advice and finalises PPP

EPA issues instructions for preparation of environmental review

Responsible Authority prepares the environmental review and draft PPP

EPA approves release of Environmental review for public comment together with draft PPP

Final proposal with responses to submissions submitted to EPA for assessment

EPA submits assessment report to the Minister

Implementation of proposal permitted by Minister

Responsible authority monitors environmental effects of implementation

Responsible authority reports on performance to EPA

Figure 2

Strategic proposal assessment process

YES

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