Posted on April 23, 2024 by Katie Mortimer 4

Release of the 5-year Review of the Biodiversity Assessment Method

The Minister for Environment has released the Biodiversity Assessment Method 5-year review report (Report).

The Biodiversity Conservation Act 2016 (BC Act) requires a review as soon as possible, 5 years after the Biodiversity Assessment Method (BAM) was first established. The review commenced in 2023 with public consultation occurring in July 2023 on 10 focus questions (see our post on that process here).

The Report is described as resulting from that public consultation, together with input from government experts and general feedback received from various channels over the last 5 years of the BAM’s operation.

The Report finds that the BAM is generally operating as intended, but includes 32 recommendations, divided into themes, aimed to improve efficiency, simplify processes, and provide support for implementation of the method. Each recommendation has been allocated to 1 of 3 ‘implementation categories’, immediate, short term or long term. The timeframes for those categories are described at the end of this post.

The NSW Department of Climate Change, Energy, the Environment and Water (Department) will now develop an implementation program to schedule the delivery of the Report’s 15 immediate and 7 short term recommendations by way of a revision to the BAM.

The Department will further analyse the Report’s long term recommendations and consider these together with any changes to the BAM arising from the NSW Government’s response to the 2023 Independent Review of the BC Act. Our post on that Independent Review is here, which found that the BC Act is not meeting its primary purpose of maintaining a healthy, productive and resilient environment, and is never likely to do so, and recommended changes to the BAM’s present approach of no net loss, to deliver net positive biodiversity outcomes.

The Report’s recommendations are set out in full below.

Recommendations 14 – 17 are particularly interesting for consent authorities and proponents. The Report recommends the publication of guidance on the concept of ‘avoidance’ by reference to Land and Environment Court rulings and updates to guidance relating to ‘serious and irreversible impacts’. We have previously posted about how these concepts are commonly misunderstood and the wide discretion that is given to decision makers – see here.

Recommendation 15 (which has been categorised long-term and requiring alignment with the response to the BC Act’s review, so may not come to fruition) suggests that consideration be given to the steps of avoid and minimise in the biodiversity mitigation hierarchy, being satisfied for a site if it can be demonstrated these measures were achieved at a strategic planning phase. This recommendation appears to be a direct response to Preston CJ’s decision in Planners North v Ballina Shire Council [2021] NSWLEC 120.

Recommendations

Improvements to assessing vegetation integrity

1. Develop and adopt robust and consistent methods to:
   • review and assess impacts of changes in vegetation condition benchmarks to the BAM
   • update vegetation condition benchmarks. – Immediate
2. Improve the assessment of derived native grassland by:
   • clarifying the definition of derived native grasslands
   • developing guidance to support assessments including the application of appropriate benchmarks (grassland benchmark or grassy woodland benchmark)
   • adopting a ‘floor-value’ for the sub-indices that comprise the vegetation integrity metric to ensure impacts to these communities are adequately assessed and offset. – Short term
3. Create a framework to support assessors to identify the most appropriate benchmarks to use in assessments, including:
   • a requirement to apply published dynamic benchmarks in certain conditions unless justification is provided
   • emphasis on using more appropriate local data where benchmark confidence is low. – Short term
4. Improve efficiency by revising assessment intensity via evaluation of the appropriateness of the number of plots required per area of vegetation zone. – Long term

Scalability of the BAM

5. Review species credit species survey requirements to include scalable survey approaches and promote the use of novel survey technologies, prioritising newly listed and most frequently assessed species. – Immediate

6. Develop guidance to address specific issues in applying the BAM to linear developments including case studies (to be replaced by Recommendation 7 when it is operational). – Immediate

7. Develop tailored assessment approaches, such as innovative modelling and mapping tools, for the biodiversity certification of strategic land-use planning proposals and linear developments that consider their unique nature and ensure efficient, representative assessment of biodiversity impacts. – Long term

Support threatened species assessments 

8. Proactively increase the departmental list of experts for commonly impacted species (for example, through an expression of interest process, directly approaching known experts, working with universities and other institutions). – Immediate

9. Provide additional survey guidance for species credit species that is fit for purpose and practical to apply including publication of taxa-specific guides. – Immediate

10. Prioritise methods to confirm presence of species credit species (for example, 1. survey, 2. expert report, 3. assume presence), with justification required where lower tiers or a combination of options are used. – Short term

11. Refine the process for identifying species that are likely to occur at a site and therefore require assessment. Using best available information for individual species to predict habitat more accurately may reduce assessment requirements. – Long term

Indices used to assess species credit species 

12. Review species credit species indices to:

• • develop a suite of taxa-specific abundance or habitat quality-based indices that are valid indicators of site value and are practical to measure and implement
  • identify the most appropriate indices for each species credits species. – Long term

13. Create a provision in the BAM to enable variation of the method in extreme conditions. The provision will include a:

• • clear definition of when it would apply
  • requirement to apply guidance published in accordance with the provision.

The provision will be supported by guidance to support assessments to achieve a no net loss outcome. – Short term

Strengthen avoid and minimise requirements

14. Publish guidance on avoidance with reference to NSW Land and Environment Court rulings. – Immediate

15. Consider allowing the requirement for site-based avoid and minimise assessment to be met where it can be demonstrated that these measures were achieved at the strategic planning phase. Note this recommendation will require alignment with the NSW planning system and the government response to the BC Act review. – Long term

Consideration of serious and irreversible impacts

16. Investigate opportunities to better support SAII assessments (for example, additional tools or information for the most commonly assessed entities). – Immediate 

17. Update guidance for decision-makers to include:

• • the department’s process to list entities at risk of an SAII
  • interpretation of information presented in a BDAR
  • examples and case studies including reference to the NSW Land and Environment Court decisions. – Immediate 

Strengthen protection of high biodiversity values 

18. Protect high biodiversity value and condition habitats by making changes to calculate higher credits obligations if these areas are impacted, for example, increasing the biodiversity risk weightings for highly threatened ecological communities and species, and/or adopting a multiplier for high-condition habitat. – Long term 

19. Review the thresholds that determine when offsets for threatened ecological communities are required, with a view to encouraging impact avoidance. – Long term 

Review prescribed impacts to clarify the objective of assessments

20. Continue to support accredited assessors to undertake prescribed impact assessments under the current settings through the BAM operational manuals and the development of targeted guides, as needed. – Immediate 

Ensure estimated gains for species credit species are robust and appropriate

21. Revise species gain models by:

• • assessing the ecological validity of current models for each taxon
  • refining or developing replacement models for taxa or functional groups where current approaches are inadequate. – Long term 

Support active restoration management actions (ARMA)

22. Develop and communicate evidence of successful active restoration on biodiversity stewardship agreement sites through case studies, online publishing of best-practice management actions and costings. – Immediate 

23. Amend the list of ARMA in the BAM, with input from the restoration practitioner community, to clearly delineate actions that may be used to create additional credits. – Short term

24. Increase the number of credits that can be obtained from ARMA based on an evidence and risk-based framework (replacing the current flat risk weighting). – Short term

Ensure averted loss and additionality settings are appropriate

25. Remove additionality provisions related to existing biodiversity stewardship agreement variations within a prescribed period of time (that is, Section 11.9(4) of the BAM). – Short term 

26. Update definitions and guidance on averted loss and additionality and streamline their calculation as a component of biodiversity gain. – Long term

Incentivise protection and enhancement of connectivity

27. Promote the establishment of biodiversity stewardship agreements in strategic corridors via program-level initiatives. – Immediate 

Recognise achievement of gains above those predicted by the BAM

28. Develop operational policy and guidance to support the implementation of staged credit release when habitat is restored, and species occupancy is detected in these areas of the biodiversity stewardship site. – Immediate

29. Develop explicit provisions to calculate additional credits where outcomes are above predicted gains (that is, re-assessment, re-calculation of the total fund deposit and payment schedule). – Long term

Improve operational delivery of the BAM 

30. Where appropriate, synchronise changes to guidance, data and systems based on a set schedule and communicate this schedule to stakeholders. – Immediate

31. Maintain the operability of the BAM credit calculator, including the user support and interface; managing ‘fixes’; and standardising data capture and collection to a central repository. – Immediate

32. Create streamlined templates to support consistent and high-quality reporting and provide confidence in outcomes for decision-makers. – Immediate

Implementation Categories

As shown above, each recommendation has been allocated as immediate, short term or long term. These categories are described in the Report as:

Immediate: Improvements to guidance, data and systems that support BAM assessments. These do not require an amendment to the BAM so implementation can begin immediately, although some recommendations may take up to 12 months to operationalise.

Short term: Relatively minor amendments to the BAM that improve quality or efficiency and address known issues. These recommendations are likely to have limited effect on the operation of the broader scheme and can be implemented within 12–18 months. Amending the BAM will require public exhibition in accordance with the BC Act.

Long term: Significant amendments that will require time to develop and test implications for the scheme as a whole (for example, market impacts). These changes are best considered alongside any changes to the BAM that result from reforms to the BC Act.

These implementation timeframes ‘assume sufficient resourcing for delivery’.

The Report is available here.

To discuss this post, please contact Katie Mortimer on 8235 9716.