New South Wales bilateral agreement for environmental assessments

Bilateral agreements can reduce duplication. They allow states or territories to use their own processes to assess actions under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Assessment bilateral agreements have existed with all states and territories since 2015. The Australian Government updated its agreement with NSW in 2020.

 

Bilateral agreements allow each state or territory to assess proposed actions (projects or developments) on behalf of the Australian Government.

They remove the need for a separate assessment, reducing duplication. The Commonwealth Environment minister uses a state or territory's environmental assessment report to inform the final decision about whether to approve an action.

Assessment bilateral agreements have existed with all states and territories since 2015.

Assessment agreement with NSW

Under the assessment bilateral agreement, the Commonwealth minister can use the NSW process to inform an assessment of the impacts of any eligible action.

In March 2020, the NSW and Australian governments signed Amending Agreement No. 1 in response to changes to NSW legislation. This updated the 2015 assessment bilateral agreement made under section 45 of the EPBC Act.

Amending Agreement No. 1 (PDF 2 MB
Amending Agreement No. 1 (DOCX 162 KB)

In 2017, NSW introduced the Biodiversity Conservation Act 2016 (BC Act) and amended the Environmental Planning and Assessment Act 1979 (EP&A Act).

The Amending Agreement addresses these changes and reinforces both governments' commitment to:

The changes are minor. They ensure that, for NSW projects, the agreement continues to minimise duplication of:

  • environmental assessments
  • offsetting requirements. 

The Amending Agreement’s intent is the same, and still includes original content wherever possible.

The agreement now includes 2 new pages, with additions and deletions, in Attachment A.

Amending Agreement No. 1 took effect on 24 March 2020. The original agreement still applies for projects the NSW Government was already assessing. 

Public consultation

We published the draft of Amending Agreement No. 1 for public comment on 11 January 2019, and received 6 submissions.

In response to feedback, we made minor administrative changes between the draft and final version to make it more relevant and fit-for-purpose. 

Find out more

Transitional review

The original agreement included a 12-month review to see if it was meeting its objectives. Since no project assessments were completed under the agreement, the review took place after 2 years. 

The review found that both parties had made good progress in implementing the agreement. This resulted in increased:

  • awareness of obligations under the EPBC Act
  • consistency and coordination of issuing environmental assessment requirements.

It also identified some areas for improvement, such as:

  • early engagement 
  • reviewing administrative arrangements.

You can read the full Transitional review of the New South Wales Bilateral Agreement (PDF 465 KB).

Five-year review

Section 65 of the EPBC Act requires a review of the Agreement's operation at least once every 5 years.

Together with us, NSW finalised this review in November 2021.  

The review identified several priorities to make the agreement's operation more effective. These included:

  • reviewing the existing key performance indicators (KPIs) and strategy to ensure they best support and measure environmental and efficiency goals
  • clarifying roles and educating stakeholders on the bilateral assessment process
  • reviewing capacity-building measures and governance arrangements to ensure they're effective, efficient and timely
  • exploring ways to improve state assessment reports, so they better support Australian Government decision-makers
  • exploring ways to increase offset impact mitigation transparency for protected matters, including ensuring that offsets meet environmental goals.

We're working together with the NSW Government to implement these priorities. We'll continue to monitor how offsets are secured under NSW offsetting arrangements for protected matters.  

As part of undertaking the review, Nous Group evaluated how the agreement had performed.  

The length of time since an offset has been secured can significantly influence the effectiveness of a review. Due to the timing of the review, only 11 projects made up the data set. The 2025 review will consider a much larger set. This will provide statistically better data and more meaningful findings on the effectiveness of the agreement. 

Read the full 5-year review of the Bilateral Agreement relating to environmental assessment.

Endorsement of the NSW Biodiversity Offsets Scheme

The Australian Government has endorsed the NSW Biodiversity Offsets Scheme (BOS). This includes the:

NSW has also amended the BC Regulation to align with Australian Government requirements. This will mean like-for-like offsets for listed threatened species and communities under the EPBC Act.

The endorsement applies to all NSW projects that need EPBC Act approval, not just those assessed under the bilateral agreement.

See a list of endorsed policies in Appendix A of the EPBC Act Condition-setting Policy.

Using the BOS under the EPBC Act

If you hold an approval under the EPBC Act, you can meet your offset obligations in line with the BOS. This means you may be able to generate and retire like-for-like credits through Biodiversity Stewardship Agreements. 

You can also buy and retire credits directly from the market.

You may also be able to pay into the NSW Biodiversity Conservation Fund to meet your approval conditions. To do this, you must have both:

  • a legal obligation to retire biodiversity credits under NSW law (generally via development consent conditions issued under the EP&A Act)
  • an EPBC Act approval dated 24 March 2020 or after.

If you received your approval before 24 March 2020, check if your approval conditions allow you to pay into a Commonwealth-endorsed fund.

If you don't meet the criteria and want to pay into the Biodiversity Conservation Fund instead of existing offset obligations, email postapproval@dcceew.gov.au.

Biodiversity Assessment Method

The BAM establishes a single consistent approach to assessing biodiversity values and impacts from development. It builds on previous NSW statutory assessment and offsetting mechanisms such as BioBanking and the Framework for Biodiversity Assessment.

The BAM uses a framework to avoid, mitigate and offset proposed impacts to biodiversity. 

Despite technical changes, the BAM’s coverage and approach are similar to earlier systems.

Applying the offset rules under the NSW Biodiversity Conservation Regulation

The offset rules in the BC Regulation require either:

  • like-for-like biodiversity credits
  • funding conservation actions that directly benefit the protected matter that an action impacts.

They allow for variations if there's no like-for-like offset. However, NSW has amended the BC Regulation to stop variation rules applying to projects that:

  • need EPBC Act approval
  • have an offset obligation for an EPBC Act protected matter.

This amendment ensures offsets under the BOS for EPBC Act purposes achieve like-for-like outcomes.

The NSW Government will also disburse payments into the Biodiversity Conservation Fund for EPBC Act projects in a like-for-like manner.

Mine rehabilitation

The Australian Government sees mine rehabilitation as an important component of landscape-scale biodiversity conservation. Rehabilitation activities can help to restore habitat. They can do this while also contributing to offsets that directly benefit protected matters.  

We determine how much of a mine’s offset obligation you can meet through rehabilitation on a case-by-case basis.

Get in touch

If you have any questions about bilateral agreements with NSW: