Development Assessment within Queensland’s new Protected Plants Framework

In Brief
The new requirement for permits for clearing of threatened plants and the processes for assessment under the Nature Conservation Act 1992 have now been finalised by DEHP. Key points about the changes for the development assessment (DA) process are:

• Clearing of least concern plants is generally exempt from requiring a clearing permit (except in situations where they form supporting habitat within 100m of a threatened plant species).
• When clearing an EVNT plant or the least concern plants within 100m of an EVNT plant, a clearing permit is required.
• Flora surveys are only required in high risk areas as shown on the trigger map.
• Flora surveys are to be conducted in accordance with the ‘Flora Survey Guidelines’.
• In a high risk area, a clearing permit will generally only be required for clearing endangered, vulnerable and near threatened plants (‘EVNT plants’). Where a flora survey identifies that there are no EVNT plants present or impacts can be avoided that clearing will be exempt from requiring a permit.
• If no EVNT are found in the clearing impact area after survey, the proponent must still submit an ‘exempt clearing notification’ and flora survey report to DEHP.
• In an area other than a high risk area, a clearing permit is only required where a person is, or becomes, aware that EVNT plants are present.
• Clearing permits are current for two years and now focus on authorising the clearing of an area of land rather than the individual species of plant. This means an approval to clear an area will not be subject to further reassessments where additional species are found while clearing is already underway.

Full Article
Following the assent of the Nature Conservation (Protected Plants) and Other Legislation Amendment Act 2013 on the 29 October 2013, the new requirement for permits for clearing of threatened plants and the processes for assessment under the Nature Conservation Act 1992 have been clarified. The amendments have resulted in a number of changes since the superseded permit system, with the most prevalent being:

• Clearing of least concern plants is generally exempt from requiring a clearing permit (except in situations where they form supporting habitat within 100m of a threatened plant species).
• When clearing an EVNT plant or the least concern plants within 100m of an EVNT plant, a clearing permit is required.
• Flora surveys are only required in high risk areas as shown on the trigger map.
• Flora surveys are to be conducted in accordance with the ‘Flora Survey Guidelines’.
• In a high risk area, a clearing permit will generally only be required for clearing endangered, vulnerable and near threatened plants (‘EVNT plants’). Where a flora survey identifies that there are no EVNT plants present or impacts can be avoided that clearing will be exempt from requiring a permit, however, the proponent must still submit a notification to DEHP.
• Clearing permits are current for two years and now focus on authorising the clearing of an area of land rather than the individual species of plant. This means an approval to clear an area will not be subject to further reassessments where additional species are found while clearing is already underway.

This represents a risk based approach where flora surveys and permits are not required in ‘low risk’ situations. However, under the legislation it still remains that an EVNT plant cannot knowingly be cleared or impacted without a clearing permit issued by Queensland Department of Environment and Heritage Protection (DEHP). Hence, if an activity is occurring in a low risk area and during the course of action a threatened plant is located and impacts will occur within 100m of that plant, then a permit will be required. A person must apply for a clearing permit where it is known that EVNT plants are present. A flow chart representing the process for assessment for clearing of protected plants is shown below.

From above it is apparent that there are two key components to the process: conducting the flora survey and making an application. There are also a number of new exemptions, some of which are industry specific, that consultants should become familiar with.

Surveying
The ‘protected plant flora survey trigger map’ shows high risk areas requiring threatened plant surveys. High risk areas cover approximately 3.5% of the state and are areas where endangered, vulnerable and near threatened (EVNT) plants are present or highly likely to be present. They have been defined by placing a 2km buffer around existing threatened plant records. The trigger map will be updated at least annually, but a downloaded map will be current for its particular application or exemption purposes for a period of one year from the date the map is downloaded. For projects subject to an Environmental Impact Statement (EIS) application process, the copy of the trigger map will remain valid for a period of five years from the date the final Terms of Reference are issued (an additional four years has been added to the standard one year currency to account for the long EIS project lead times).

Surveys in high risk areas must be in accordance with the guideline, if surveys are not in accordance with the guideline any deviation from the approved methodology must be justified. The guideline specifies that the main objective of the flora survey will be to locate any EVNT plants that may be present in the clearing impact area. The flora survey must cover the area to be cleared as well as a buffer area of 100m around the clearing. This total area is referred to as the ‘clearing impact area’. Surveys must be undertaken by a suitably qualified person (i.e. suitable training and at least 5 years experience) and a CV must be included in the document. Any deviation from the qualifications of the surveyor or the size of the survey area (e.g. if access cannot be gained to the whole area) must be justified and approved by DEHP. The process for surveying is outlined below.

1. Undertake desktop assessment to determine what threatened plants are likely.
2. Determine target species list, survey effort and timing.
3. Gain landholder access (in some instances the 100m buffer may be located on adjacent land, therefore permission must be sought from neighbouring land holders).
4. Conduct survey. There are several suggested methods for undertaking the survey and the one selected depends on the size of the clearing impact area and is a EVNT population is known or located. The methods are as follows:

a)  Timed meander survey to locate EVNT – a survey of each patch of each habitat type (or each vegetation polygon) in a random meander (to maximise coverage) until no new species have been recorded for 30 minutes or when the entire habitat area has been surveyed. Meanders must be undertaken (at a minimum) at the following rate per area of habitat:

• <10ha, two meanders or until the whole area is searched (whichever comes first)
• Between 10ha and 100ha, between 2 and 5 meanders
• >100 ha 5 meanders

b)  Systematic transect search method to locate EVNT – typically used on larger sites when surveying and entire site. It follows parallel transects spaced equidistant over the area to provide the greatest coverage possible.
c)  EVNT population survey once an EVNT is located – mapping of the population within the clearing impact area is to be undertaken by traversing the periphery of the population whilst capturing spatial data. With regards to population density, the total number of individuals comprising the EVNT population is to be recorded. Where an EVNT population may be too dense for this to be practical, the density of the overall population should be estimated by counting the number of individuals within the quadrat (50m x 10m, unless a smaller quadrat is more suitable). Within the quadrat the following is recorded:

• The GPS location of each corner
• The number of individuals of the EVNT species, as well as any other observations such as the age structure (if possible), reproductive state and health.
• A description of the vegetation structure, including noting the Regional Ecosystem (where relevant).
• The identities of all flora taxa found in each of the strata comprising the vegetation community.
• The landscape attributes including the landform type, soil type, geology, slope, aspect and altitude.
• Any specific habitat or micro-habitat features associated with the EVNT species. Notes must also be included on the nature and degree of any disturbance to the habitat.

With regards to timing of the survey, the survey is to be undertaken when there is the highest possible chance of detecting the EVNT species indicated as likely to occur. Where project timeframes are constrained such that the flora survey cannot be undertaken within an appropriate timeframe, this fact and the reasons for it must be articulated in the report. If a plant taxon cannot be identified during field investigations and is suspected of being an EVNT species, a specimen must be collected and preserved for later identification.

If EVNT plant species are identified in the clearing impact area, then the flora survey report will be required to support an application for a protected plant clearing permit. If the survey establishes that EVNT plants species are not present within the clearing impact area, the proposed clearing will be exempt and, following notification to the department, a clearing permit will not be required.

A flora survey report must be submitted to DEHP at least one week before clearing commences on a high risk site and each report is only valid for a period of 12 months. The flora survey report is to contain the following:

• A description of the location where the clearing activity is to take place
• Purpose of the clearing
• Flora survey methods including:
  • justification of the timing of the flora survey and detail of any limitations associated with the timing of the survey
  • measure of power or, if not practical, error for the estimates must be included.
  • statement to justify the suitability and qualifications of the person undertaking the flora survey
• Flora survey results including:
  • the species of EVNT found, their location on the site, and an estimate of the populations of those species in the clearing impact area.
  • description of the supporting habitat around any EVNT’s identified in the buffer area
  • map or plan of the proposed land use requiring the area to be cleared (GIS shapefile)
  • map of the different habitat types identified for the clearing impact area and the on-ground surveys undertaken (GIS shapefile)
  • map or plan of the clearing impact area including the locations of all EVNT species or populations (GIS shapefile)
• A discussion of the potential impacts and mitigation measures
• The date or dates the clearing is expected to occur
• Curricula vitae for the survey team undertaking the flora survey

Making an application
You need a clearing permit if your proposed activity involves the legitimate taking or destruction of protected plants in the wild, except where an exemption applies. There is an application form available online (http://www.ehp.qld.gov.au/licences-permits/plants-animals/protected-plants/index.html#clearing) and applicants are required to nominate the following:

• Person responsible for the activity on the ground
• Species of protected plant and quantity to be removed
• Location of clearing
• Reason for clearing
• Salvage activities (if relevant)
• Impacts and impact mitigation (justification of removal and proof that avoidance and mitigation have been applied as far as possible)
• Attachments must include trigger map, flora survey report and impact management plan (which may be part of the flora survey report).

The application will be assessed in accordance with the Protected Plants Assessment Guideline (DEHP 2014) and approved if impacts on EVNT plants can be managed through appropriate avoidance, mitigation or offsetting measures (including translocation, propagation and rehabilitation). The permit will authorise the applicant to clear the site, within a period of two years from the grant of permit and will allow re-clearing of the area up to a period of 10 years from the grant of permit. The new permit fee ($2,500) has been calculated to allow partial recovery of the costs involved in administering permit assessment and compliance. While this is a new fee, the reduced time involved in assessing and approving permits and exemptions is expected to provide industry with an overall cost saving. This fee can be reduced for some purposes such as education, research, conservation and property maintenance.

There is a requirement to submit a notification form to DEHP if you intend to undertake clearing in a high risk area, but are exempt from requiring a permit. A person may take a protected plant if a flora survey report is submitted to the chief executive, providing evidence that endangered, vulnerable or near threatened plants are not present in a clearing impact area, or these plants are present but the proposed clearing could avoid the plants by 100m. An ‘exempt clearing notification’ form is to be used to notify DEHP of clearing that is exempt from the requirement of a permit. The form requires that a flora survey report is provided at least one week before the person starts clearing, but no later than 12 months after the flora survey was undertaken.

Exemptions
Exemptions for taking protected plants are listed in Part 3 of the Nature Conservation (Wildlife Management) Regulation 2006. General exemptions have not changed significantly and include:

• Taking a protected plant to avoid or reduce risk of death or serious injury to a person;
• Taking a protected plant to avoid or reduce risk of serious damage to buildings or property;
• Taking a protected plant during hazard reduction activities that are authorised under the Fire and Rescue Service Act 1990;
• Taking of a propagated protected plant or parts by the propagator.

The DEHP has aimed to promote a transparency and fairness around exemptions within the new Protected Plants Framework. Anyone making an application to clear protected plants is now assessed under the one consistent and transparent process and given the same opportunity to be granted an exemption. In the past clearing permit exemptions were granted for entities that had made agreements with DEHP for clearing EVNT’s and least concern plants within approved infrastructure easements. While existing exemptions included in these agreements will remain in force (for a transitional period), no new individual agreements will be made available. Transitional arrangements are in place for existing class exemptions for a two year period (or until the agreements expire) for entities that have registered. After this time all class exemptions will cease.

For industry, under the new framework existing easements and leases (in the case of the resource sector) will remain exempt under the NC Act. However, all other tenures and new projects are not eligible for any exemptions. New exemptions have been added where the clearing of protected plants has been authorised under another Act or law if done in accordance with the protected plants assessment guidelines. A provision is included to allow for a clearing permit to be issued for new infrastructure projects with overriding public interest for the supply of electricity to proceed even where impacts on the sustainability of an EVNT plant cannot be guaranteed. This applies where an easement has been obtained.

For the primary industry/agriculture sector a number of clearing permit exemptions and concessions now support critical land management activities as follows:

• There is a general exemption for clearing protected plans where the purpose of the clearing is to reduce or avoid risk of serious injury or death to a person, to reduce or avoid serious damage to buildings or property, or to reduce a fire hazard (e.g. conduct a hazard reduction burn).
• A landholder may take and use a protected plant if the plant is consumed by stock grazing on private land or, under a lease, permit or other authority on state land.
• A landholder may take or use protected plants that are least concern, special least concern or near threatened as fodder for stock. Protected plants that are endangered or vulnerable plants cannot be harvested for fodder.
• A person is exempt from requiring a clearing permit when re-clearing for routine maintenance of existing infrastructure, for the life of the infrastructure (e.g. maintenance of buildings, roads, stockyards), or maintenance associated with an existing use of the land, such as a plantation management activity or cropping activity where the land was previously lawfully cleared.
• A person is also exempt from requiring a clearing permit for maintaining a firebreak or fire management line.
• A landholder may also harvest protected plants for a conservation or revegetation program for use on their property or adjoining land that is within the natural range of the species being harvested. Only seed, propagative material and whole plants from plants other than endangered plants can be harvested (endangered plants cannot be harvested for conservation or revegetation purposes without an appropriate authority).
• New exemptions have been added to allow clearing of protected plants in any area for thinning, managing weeds or encroachment, if this complies with the requirements of the self-assessable clearing code under the Vegetation Management Act 1999.