Please note: In circumstances where multiple approvals are required under separate provisions of the EPBC Act the Department of the Environment, Water, Heritage and the Arts will endeavour to coordinate all approvals through a single application process.
The Department of the Environment, Water, Heritage and the Arts has developed seismic guidelines (EPBC Act Policy Statement 2.1 - Interactions between offshore seismic operations and larger cetaceans) to address the potential for interaction between offshore seismic exploration activities and whales and other cetaceans. The document outlines standards and procedures to be followed when undertaking seismic surveys, as well as advising operators conducting seismic surveys on their legal responsibilities.
Additionally, a general environmental approval or clearance from the NES under the EPBC Act does not necessarily cover all interactions with cetaceans. A separate permit may be required from the Department of the Environment, Water, Heritage and the Arts when an action may interfere with cetaceans. 'Interference' involves causing a significant change in behaviour, including a significant deviation from their migratory path, or a substantial change in respiration or swimming pattern.
If a proposed seismic survey has the potential to result in a significant impact or interference with whales, the seismic guidelines will assist operators in preparing a referral and/or permit application under the EPBC Act.
The seismic guidelines can be found at: www.environment.gov.au/epbc/publications/seismic.html
Commonwealth Marine Reserves
A separate EPBC Act approval may also be required if an action is to be undertaken within any Marine Protected Areas (MPA). There are currently 26 MPA's in Australian Commonwealth waters in a diverse range of locations. This number includes 14 new reserves declared in 2007, being the Cod Grounds Commonwealth Marine Reserve off the NSW north coast and 13 new Commonwealth Marine Reserves declared in the South-East Marine Region. These can be found at: www.environment.gov.au/coasts/mpa/index.html
Management Plans are required to be developed and implemented for each Commonwealth MPA. A management plan, among other things, establishes zoning arrangements and sets out how each zone within a reserve is to be managed, including specifying if mining operations (including petroleum) can be carried out in the reserve and the conditions that under which it may be carried out. Mining operations in Commonwealth reserves that are authorised by a prior usage right relating to the seabed that predates the proclamation of the reserve are not subject to the Commonwealth reserve provisions of the EPBC Act. Information on undertaking activities within a Reserve can be found in the individual Management Plan for each Reserve. Plans of management for current reserves can be found at: www.environment.gov.au/coasts/mpa/index.html
Where a management plan does not exist for a Commonwealth reserve, including the South-east Commonwealth Marine Reserve Network, mining operations (including petroleum activities) can only be carried out under an approval by the Director of National Parks (DNP) issued under section 359B of the EPBC Act. Two classes of approval have been established for the process as outlined below:
- Class 1 - Class 1 operations include seismic surveys and vessel transit in connection with mining operations. A general approval will be given for all class 1 activities to be carried out in accordance with a set of conditions and will not require any further authorisation.
- Class 2 - All other mining operations. Class 2 mining operations will be considered on a case by case basis and may be subject to specific conditions. Consideration of class 2 operations will take into account the likely impact of the operation on the specific conservation values of the Commonwealth reserve. The DNP approval of a mining operation under s 359B and the referral, assessment and approval of an action under Chapter 4 of the EPBC Act are related processes and therefore an application for a s359B approval can be supplied in the form of a referral under Chapter 4.
Further information on interim management arrangements and the requirements for an approval can be found at: www.environment.gov.au/coasts/mpa/southeast/interim.html
The South-east Commonwealth Marine Reserve Network is one of the key outcomes of large scale regional marine planning. Marine Bioregional Plans will be developed under the EPBC Act across the Commonwealth's five marine regions. The plans aim to provide greater guidance about marine environment conservation priorities and will assist in understanding the impacts of actions on the Commonwealth marine environment and determining the circumstances under which actions can take place. The process includes the identification and establishment of marine protected areas in the Commonwealth managed waters of Australia. Further information on the Marine Bioregional Planning can be found at: www.environment.gov.au/coasts/mbp/index.html
For further information on offshore petroleum environmental assessment processes contact:
Environment, Safety and Security Section
Department of Resources, Energy and Tourism
GPO BOX 1564
CANBERRA ACT 2601
Telephone: +61 2 6276 1490
Development of Carbon Capture and Storage Legislation
Legislation for the geological storage of CO2 in geological formations in Commonwealth offshore waters received royal assent on 21 November 2008. The legislation takes the form of an amendment to Australia's offshore petroleum legislation which is now titled the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
Major features of the legislation include:
- the provision of access and property rights through a title system similar to that used for petroleum;
- ensuring safe and secure storage;
- mechanisms for managing interactions with the petroleum industry;
- site closure and the treatment of long term liability.
Management of interactions with the petroleum industry includes a number of key elements. In relation to petroleum titles that were in existence, known as pre-commencement titles, when the legislation came into force (pre-commencement titles include future titles in the same series), rights are protected through a 'significant impact test'. Under this test, a storage operation cannot be approved unless the relevant Commonwealth Minister is satisfied that the operation does not pose a significant risk of a significant adverse impact on a pre-commencement petroleum title OR there is a commercial agreement between the two title holders. For post commencement titles, if there is no agreement between title holders, and the two operations cannot coexist, the Minister will make a decision on which operation should proceed in the public interest. However, once granted, a post commencement petroleum production licence is also protected through the significant impact test.
The legislation also deals with a wide range of other matters relating to the rights of the petroleum industry.
Regulations and guidelines to underpin the legislation are currently under development in consultation with stakeholders.