Biobanking: an improvement on current approaches to balancing biodiversity conservation and developmental imperatives?

1
Biobanking an improvement on current
approaches to balancing biodiversity conservation
and developmental imperatives?

• Professor David Farrier
• University of Wollongong

2
OVERVIEW

• The major players
• Offsetting biodiversity loss under clearing
  legislation in rural areas
• Conserving biodiversity through planning and
  threatened species legislation in urban areas
• Biobanking and offsetting proposals for urban
  areas

3
Conserving native vegetation

• The threats
• Agriculture 13 of original vegetation removed
  since European settlement
• Urbanisation
• Clearing
• Fragmentation
• Exotic species

4
Key Legislation in NSW

• Environmental Planning and Assessment Act 1979
  (EPAA)
• Threatened Species Conservation Act 1995
• Catchment Management Authorities Act 2003
• Native Vegetation Act 2003
• Natural Resources Commission Act 2003

5
And the Commonwealth!

• Environment Protection and Biodiversity
  Conservation Act 1999

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Influencing land use

• Command regulation
• Prohibitions at the strategic planning level
• Ad hoc regulation of individual development
  proposals
• Economic instruments
• Stewardship payments
• Biobanking

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The Key Players in NSW

• Department of Planning/local councils
• Land use planning legislation
• Department of Environment and Climate Change
• Threatened species legislation
• Land clearing legislation

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The Key Players in NSW

• Natural Resources Commission
• Natural Resources Commission Act
• Catchment Management Authorities (CMAs), under
  the direction and control of Minister for
  Climate Change and Environment
• Catchment management legislation
• Land clearing legislation

9
CMAs

• Natural resource management (NRM) rather than
  land use planning
• Skills and knowledge not representatives
• Providing financial assistance and carrying out
  works for natural resource management
• Managing existing uses rather than controlling
  new development

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CMAs

• Catchment action plans
• Must comply with State-wide NRM standards and
  promote achievement of targets in State Plan
• By 2015 there is an increase in native
  vegetation extent and an improvement in
  condition
• Regulatory functions under land clearing
  legislation

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Native Vegetation Act 2003

• Prohibits clearing of remnant native vegetation
  and protected regrowth
• Approval via property vegetation plans (PVPs)
• Approval only where clearing concerned will
  improve or maintain environmental outcomes
• Offsets

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Offsets in PVPs

• Environmental Outcomes Assessment Methodology
• comparing adverse impact of clearing on
  environmental values with predicted impact of
  offset management actions
• environmental values water quality, salinity,
  land degradation as well as biodiversity

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Offsets under the NVA

• No bank of offsets
• Offsetting usually onsite because of transaction
  costs
• Red light areas
• Threatened ecological communities
• Vegetation types over 70 cleared
• where vegetation is in at least moderate
  condition

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Rural/urban divide in NSW

• NVA does not apply to
• Sydney and Newcastle all zones
• Residential, industrial and business zones
• NVA applies to
• All other zones outside the Sydney metropolitan
  area
• Includes rural residential zones

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Biodiversity assessment in urban areas

• Development prohibited under the plan? If not
• Development consent required? If so
• Will proposal have a significant effect (7-Part
  test). If so
• Species impact statement (SIS)

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Biodiversity assessment in urban areas

• Site-by-site, rather than landscape assessment?
• Procedural, not substantive, protection
• Discretionary decisions
• Discretionary offsetting
• No commitment to maintaining or improving
  biodiversity outcomes
• No commitment to preventing irreversible impacts
  on biodiversity

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The culture of the land use planning system

• Origins in UK to address urban squalor
• Public health and amenity
• Presumption in favour of development, subject to
  ameliorating conditions
• Expansion beyond urban issues to take on board
  rural issues
• Confronting the ideology of private property
• The assumption that downzoning requires
  compensation

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The culture of the land use planning system

• Changing concerns but same tools
• Command regulation through zoning
• Focus on reactive decisions to particular
  development proposals rather than binding
  commitments at a strategic planning level
• Existing uses (eg agriculture) exempted from
  regulation

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Role of regional strategies

• Local environmental plans to be consistent with
  whole-of-government regional strategies for key
  priority areas
• Strategies appropriate development sites,
  infrastructure priorities, high conservation
  areas
• Concentrating housing development in urban
  centres, BUT
• 60 of new dwellings in the Lower Hunter on
  greenfield sites

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Role of regional conservation plans

• Lower Hunter Draft Regional Conservation Plan
  (October 2006)
• in some areas, it was determined that social
  and economic considerations outweigh biodiversity
  considerations and, as a result, some of the
  proposed development areas include high
  conservation values. In addition, previous land
  use decisions have resulted in areas of high
  biodiversity value being zoned for development
• 635ha of an endangered ecological community to be
  cleared

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Biodiversity certification of plans

• Biodiversity certification where a plan will
  lead to the overall improvement or maintenance of
  biodiversity values BUT
• No scientific methodology
• likely social and economic consequences of
  implementation of the plan to be considered
• Certification is optional
• Special legislation in the face of legal
  challenge Threatened Species Conservation
  (Special Provisions) Act 2008

22
Biobanking in urban areas

• Biobanking agreements between landowners and
  Minister, creating biobank sites
• Generating biodiversity credits to
• Provide offsets for development
• Fund private conservation initiatives

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Generating biodiversity credits through management

• Credits generated not by the current state of
  biodiversity on the site, however pristine, but
  by management actions, including management
  predicted to enhance biodiversity
• Area may already be substantially protected from
  development through an environmental protection
  zoning, but management needed
• If vegetation is already in good condition,
  management may not generate many credits

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A bank without funds

• landowners may hold off the final step of
  entering into an agreement and commencing
  management of the site until they have buyers for
  their credits (and therefore income for
  management actions)

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Biobanking Trust Fund

• When credits first sold, the site owner must pay
  in from sale price an amount equal to the total
  present value of the estimated cost of management
  actions
• Any extra covers set-up costs and profit to the
  site owner

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Offsetting development

• an alternative path for developers to the
  current threatened species assessment of
  significance process, enabling urban development
  to proceed more efficiently in NSW

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Offsetting development

• Developers have the option of applying for a
  biobanking statement
• Certifies that proposal will improve/maintain
  biodiversity values
• Inducement no threat of an SIS
• Assessment Methodology, based on best available
  science
• Assessment carried out by accredited consultants
  employed by the developer
• Councils can still say no.

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Red flag areas

• Presence of threatened species that cannot
  withstand further loss
• Endangered ecological community, in at least
  moderate condition or
• Vegetation type with less than 30 of original
  distribution remaining, in at least moderate
  condition

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Red flags, not red lights!

• Ordinarily, these areas cannot be offset to allow
  their development, but
• development consent can still be sought under
  current procedures
• Director-General has discretion to allow red
  light areas to be offset in some situations

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Lowering the Red Flag!

• Discretionary decision by Director-General
• Contribution to regional biodiversity values is
  low
• Viability is low
• All reasonable measures to avoid adverse impact
  or improve viability have been considered
• Offsets must still be provided

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The Pros

• Theoretically, prioritises biodiversity
  conservation in decision-making processes
• Theoretically, an empirical question not a
  discretionary decision
• Polluter pays for public costs of development

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The Pros

• Stewardship payments paid by private sector
• Ongoing incentive for landholders to actively
  manage land for biodiversity
• Enables the strategic location of offsets on
  larger areas, as opposed to the retention of
  small fragments onsite

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The Cons

• A scientifically uncertain methodology?
• Probably dependent on ongoing development
• Credits can be allocated and used before
  biodiversity enhanced
• In the short-term, better areas will be lost to
  development than those retained through offsets

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The Cons

• Like for like, but continuing loss of hectares?
• No offsetting for other values of natural areas,
  eg amenity resulting in part from the size of a
  natural area

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Cons

• Biobank owner, not the developer, bears risk (eg
  of inadequate investment returns to fund
  management payments)
• Community bears the risk that the application of
  the Methodology will not improve/maintain
  biodiversity outcomes
• Switches the focus of compliance from developers
  to owners of biobank sites