The Commonwealth Department of Climate Change, Energy, the Environment and Water (DCCEEW) has released a guidance document (Guidance Document) titled ‘Key environmental factors for offshore windfarm environmental impact assessment under the Environmental Protection and Biodiversity Conservation Act 1999’ (EPBC Act).
Key takeaways
- The Guidance Document sets out 13 key environmental factors to be considered when developing offshore wind projects in the Australian marine environment under the EPBC Act.
- The Guidance Document also provides some commentary on the assessment of potential cumulative impacts and the application of the impact mitigation hierarchy of avoid – mitigate – offset.
Context
The Offshore Electricity Infrastructure Act 2021 (Cth) (OEI Act) sets out the legislative framework to enable offshore electricity infrastructure projects to be undertaken in Australian Commonwealth waters (which is the area that is more than 3 nautical miles from shore, extending to the boundary of Australia’s exclusive economic zone).
Offshore electricity infrastructure projects are also subject to environmental approval requirements under environmental legislation, including the EPBC Act.
Approvals will be required under the EPBC Act if the activity is expected to have a significant impact on a matter of national environmental significance, Commonwealth land (and waters) and Commonwealth heritage places, including nationally threatened species and ecological communities, migratory species the environment of the Commonwealth marine area and the Great Barrier Reef Marine Park.
The Guidance Document sets out the key environmental factors to be considered when:
- determining whether an offshore wind farm will have a significant impact on a matter of national environmental significance and therefore, whether approval will be required under the EPBC Act for that project; and
- assessing the impacts of an offshore wind farm in an application for approval under the EPBC Act.
Key environmental factors
Thirteen key environmental factors are identified in the Guidance Document as being potentially relevant to offshore wind projects. For each environmental factor, information is provided on the potential source of the impact and the key statutory documents, management principles and relevant EPBC Act resources. Guidance is also provided on strategies considered to comprise ‘good practice management’.
The thirteen factors are:
1. Underwater noise – mortality, injury and behavioural effects
2. Turbine interactions – injury and mortality to birds and bats
3. Electromagnetic fields
4. Seabed disturbance – loss of/harm to benthic habitats
5. Disturbance of underwater cultural heritage
6. Physical presence – effects on hydrodynamics and sediment transport processes
7. Physical presence – barrier effects and displacement of marine fauna
8. Light emissions
9. Vessel interactions – injury and mortality to marine fauna
10. Invasive marine species
11. Physical presence – socioeconomic: interference/displacement of existing use
12. Physical presence – socioeconomic: seascapes and visual amenity
13. Multiple impact pathways – Australian marine parks and their values
Cumulative impacts
The Guidance Document acknowledges that the process of declaring areas suitable for offshore renewables under the OEI Act is likely to result in multiple large-scale offshore renewable energy projects being developed within each declared area.
The Guidance Document accordingly states that proponents should take into account, where possible, the potential impacts of the other projects within a region. It also notes that DCCEEW is considering a policy approach under the EPBC Act to manage the potential cumulative impacts of this emerging industry.
The impact mitigation hierarchy: avoid – mitigate – offset
The Guidance Document makes clear that DCCEWW considers that the impact mitigation hierarchy is fundamental to best practice environmental management. Proponents will accordingly need to demonstrate that impact avoidance and minimisation measures were explored at an early stage in project planning.
Further comments
The Guidance Document provides a useful checklist of the factors proponents should consider when preparing their referral and assessment applications for the purposes of the EPBC Act.
Obtaining EPBC Act approval is one of five main regulatory process steps that need to be undertaken for commercial project infrastructure installation in Commonwealth waters. The others being: area declarations; feasibility licences; management plans, commercial licences and transmission and infrastructure licences.
The guidance issued by the Australian Government titled ‘Offshore renewables environmental approvals’ makes clear that licences issued under the OEI Act are separate to approvals under the EPBC Act and that approval under one Act does not guarantee approval under another. Given differences in the timelines for the various assessment processes, proponents will need to be strategic in the way in which they make their various applications.
If you would like to discuss the Guidance or any other element of renewable energy assessment and approval at the Commonwealth or State level, please get in touch.
Jennifer Hughes, Timothy Allen
This material has been produced by Beatty Hughes & Associates for the purposes of providing general information and does not constitute legal advice.