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Publications archive - Annual reports


Key departmental publications, e.g. annual reports, budget papers and program guidelines are available in our online archive.

Much of the material listed on these archived web pages has been superseded, or served a particular purpose at a particular time. It may contain references to activities or policies that have no current application. Many archived documents may link to web pages that have moved or no longer exist, or may refer to other documents that are no longer available.

Department of the Environment and Heritage Annual Report 2002-03

Department of the Environment and Heritage, 2003
ISSN 1441 9335

Operation of the Environment Protection and Biodiversity Conservation Act 1999 (continued)

1. Protecting the environment (continued)

1.4 Providing a more efficient, timely and effective assessment and approval process with greater certainty

2002-03 at a glance

2002-03 at a glance
ANAO performance audit

The Department's administrative arrangements for processing referrals, assessments and approvals were further refined during the year and reviewed by the ANAO. Experience gained with the operation of the Act has also been used to refine administrative procedures resulting in increased efficiency and quicker decisions. At the same time, the Department and the Minister have come under increasing public scrutiny in terms of both administrative efficiency and environmental effectiveness. The first judicial reviews of decisions on referrals have commenced. Many decisions are still being made well within the maximum times provided for in the Act.

From July 2002 to October 2002 the ANAO conducted a performance audit of the implementation of the Act. The final report was tabled in the Parliament in April 2003.

The objective of the audit was to examine and report on the quality and timeliness of environmental assessments and approvals under the Act, as well as on the Department's activities to ensure compliance with the Act.

There were six recommendations in the report (See Appendix 5 to this report), which have been accepted by the Department without qualification. Implementation of these recommendations will lead to further improvements in the Department's performance in administration of the Act.

The audit report was the first opportunity for the Department to receive comprehensive, objective external feedback on its performance in administering the Act. The report provides valuable information on the Department's performance against external benchmarks, current best-practice guidelines and client expectations.

Major events and issues
  • The ANAO report on the administration of referrals, assessments and approvals endorsed the effectiveness of the Department's approach to administration and provides a basis for improved performance.
  • Referrals numbers are slightly higher than previous years but the types and distribution of the projects involved are similar.
  • There were more 'specified manner' decisions, reflecting better environmental planning by proponents.
  • Timeframes for decisions are largely being achieved.
  • The number of decisions submitted for reconsideration increased.
  • There were more complex and high-level assessments, a higher completion rate and greater use of state processes.
  • For the first time a project was denied an approval.
  • The first judicial reviews of decisions under the Act commenced.
  • There was greater attention to audit and follow-up of environmental outcomes.

Referral activity report

In 2002-03, 337 actions were referred to the Commonwealth for decision on whether approval was required under the Act. Approximately 8 per cent of these referrals were the result of compliance action taken by the Department. The Minister decided that 75 actions were controlled actions.

The status as of 30 June 2003 of actions referred for approval is shown in Table 3.

Table 3. Referrals receipt and processing 2002-03
Referrals received
Deemed referrals
Referrals withdrawn or lapsed before decision
Referrals decisions made (initial decision, before reconsideration)
  Approval required - controlled action
  Approval not required - action to be taken in particular manner
  Approval not required - not controlled action
Referrals being processed at 1 July 2002
Referrals being processed at 30 June 2003
Reconsideration of decisions
  No change in decision *
  Controlled action decision changed to not controlled action
  Controlled action decision changed to action to be taken in particular manner *
  Not controlled action decision changed to action to be taken in particular manner *
  Not controlled action decision changed to controlled action
Reconsiderations pending at 30 June 2003
* Includes reconsiderations related to decisions made in 2000-01 and 2001-02.

Further statistics on referral screening, assessment and approval are in Appendix 1 of this report.

Profile of actions referred under the Act

The overall number of referrals received, state and sectoral breakdowns and percentage of controlled action decisions were consistent with trends in 2000-01 and 2001-02 (see Appendices). Queensland continues to have a significantly higher percentage of controlled action decisions when compared to the other states. This reflects the pattern of development along the Queensland coast where there is a concentration of nationally significant environmental values such as in the Great Barrier Reef and Wet Tropics World Heritage areas, important Ramsar wetlands and many listed threatened species and ecological communities. The distribution of referrals received and of actions requiring approval under the Act in 2002-03 is shown in Figure 1.

Figure 1. Distribution of referrals and controlled actions 2002-03

Figure 1. Distribution of referrals and controlled actions 2002-03

Controlled action decisions
External territory
Commonwealth Marine Areas

Controlled action decisions relate to decisions made in 2002-03 that an action is a controlled action. The referral may have been received in the previous year.

Activity categories for which a relatively large number of referrals were received include urban and commercial new development, mineral exploration (onshore and offshore) and mining. Infrastructure projects, including roads, ports, transmission lines and water projects also continued to feature strongly in referrals.

Tourist and recreational projects referred include Castaway Bay at Cliffords Beach on the Queensland Whitsunday Coast, upgrade of the Happy Valley Resort on Fraser Island, upgrade of access and walking track facilities at Cradle Mountain, Tasmania, upgrade of the Myall Shore Eco-tourism Resort at Myall Lakes, New South Wales and the proposed North Arm Cove Resort on the shores of Port Stephens, New South Wales.

The number of late decisions on whether an action requires approval (over the ten/20 business days stipulated under the Act) continued to decline. There were 14 late decisions in 2002-03, which is 4 per cent of the total referral decisions made in the year. This compares with 19 late decisions in 2001-02 (6 per cent of total referral decisions for that year).

The average days late since the Act commenced on 16 July 2000 is less than three business days. Where the statutory timeframe was not met, this was due to the need to seek legal advice on issues related to the decision, and/or the need to seek further technical advice on complex or difficult proposals. Staff absences over the summer holiday period and the shutdown of Departmental offices over the Christmas-NewYear period also led to some minor delays in processing decisions. This is however traditionally a slow period in the development industry.

The 20-day period includes a ten-day opportunity for public comment. This has been facilitated by publishing referrals for comment on the EPBC web site. Comments were received on 80 referrals in 2002-03.

Sub-section 77(4) of the Act allows a person taking an action that the Minister has decided is a controlled action to request reasons for the decision. During 2002-03, 17 such requests were handled. The timeframe was not met for two requests. Performance in meeting this timeframe has continued to improve throughout 2002-03.

Compliance education leading to better environmental outcomes - clearing of Buloke trees, Western Victoria

Around 8 per cent of all referrals received in 2002-03 resulted directly from intervention by the Department following reports of suspected non-compliance with the Act. The Department's first response, particularly where the activity concerned is widespread, is to undertake a targeted education campaign to make sure people are aware of their obligations and the options open to them to comply.

Following reports of a number of clearing activities affecting Buloke trees in the West Wimmera region of Victoria, the Department undertook a series of coordinated compliance and educational activities designed to improve local knowledge of and compliance with the Act. The Buloke trees are an important food source for the endangered red-tailed black cockatoo and were being cleared for agricultural purposes, including irrigation systems.

Constructive engagement with local landholders, as well as the relevant local and state government regulators, meant that the fundamental environmental issues of protecting the cockatoos' food source could be addressed by investigating the various options available to farmers to avoid, minimise or mitigate the impact of clearing. This work was intended to help farmers design their proposed activities in a way that does not result in significant impacts on either the Buloke communities or the red-tailed black cockatoo, while still being able to carry out their agricultural business. Some irrigation proposals were modified, important remnant stands of Buloke were protected and given a better chance to flower and provide food for cockatoos, and Buloke seedlings were re-established in areas not required for irrigation.

There is now a heightened awareness of the issue in the region and a number of referrals for these activities have been received. The process has resulted in improved longer-term protection for Buloke trees in the region.

The Department is continuing to work on this issue and is exploring ways to develop better advice for farmers on best practice. This work is being done as part of the development of sector-specific guidelines on significance.

Decision trends - 'specified manner' and reconsideration of decisions

Section 77(3) of the Act provides for the Minister to decide that a referred proposal is not a controlled action provided it will be taken in a particular or 'specified' manner. This provision may be appropriately used when there is clear evidence that a particular mitigation or avoidance measure can and will be employed to avoid significant impacts.

Seventy-five referrals during 2002-03 were deemed not to be controlled actions because of the specific manner in which they were to be undertaken. This is an increase in the use of section 77(3) over the two previous years, with 'specified manner' decisions rising from 11 per cent of referral decisions in 2000-01 and 6 per cent in 2001-02 to 23 per cent in 2002-03.

The proportions of 'controlled action - approval required' and 'not controlled action - approval not required' decisions have both declined over the same period. The Department believes that this change in the outcomes of referrals reflects both an overall improvement in the quality of referrals and, particularly, the sophistication of more and more proponents in addressing relevant environmental concerns prior to submitting a referral. Projects that receive a 'specified manner' decision typically have been designed to minimise or eliminate adverse impacts on matters of national environmental significance.

The Department is actively encouraging proponents through its education activities to design projects and activities in ways that avoid impacts on matters of national environmental significance. The use of the 'specified manner' provisions allows the Minister to lock in these voluntary commitments, thus improving outcomes. The Department intends to increase the amount of best practice guidance available to proponents in an effort to increase this behavioural change.

The Department believes that this trend reflects the fact that the Act is increasingly effective in promoting and supporting a shift to better environmental practices by key industries. The Department believes that this trend is a positive one for both industry and the environment.

This outcome is being supported by an increased emphasis on monitoring compliance with 'specified manner' decisions. The Department initiated during the year four audits of projects that have received 'specified manner' decisions. The Department supports moves by the Government and the Parliament to strengthen the provisions of the Act relating to 'specified manner' decisions, specifically to ensure a stronger compliance regime for such decisions. Greater certainty in this area will have the effect of concentrating more attention on the planning and design phase of projects, rather than on strict compliance with the provisions of the Act after designs are finalised.

Reconsideration of decisions

Another notable trend in 2002-03 was the increasing number of requests received for reconsideration of referral decisions. Sixteen decisions were reconsidered during the year and a further five requests were outstanding at 30 June 2003. In six cases the original decision was confirmed. Two decisions were changed from the project requiring approval to not requiring approval and a further seven were changed from requiring approval to not requiring approval provided a 'specified manner' was employed in undertaking the action. One decision was changed from not requiring approval to requiring approval.

While the number of reconsiderations is small in relation to the total number of referrals received, the Department has been concerned to ensure that any reconsideration decisions maintain the transparency and public accountability inherent in the overall framework of the Act. Reconsideration can be justified, and can contribute to better environmental outcomes, where there is new information on the impacts of an action available to the decision-maker. A procedure was implemented during the year to ensure that where reconsideration does proceed, any person who made a public comment on the relevant referral is also consulted about the reconsideration.

Using 'specified manner' to deliver better environmental outcomes - The Arthur Road Project, Tasmania

In September 2002, the Department became aware, as a result of compliance action, of a proposal to seal a road in the Arthur River area of north-west Tasmania. The Tasmanian Conservation Trust expressed concern that upgrading and sealing the road could have the potential for a significant impact on the listed spotted-tailed quoll (Dasyurus maculatus maculatus). The spotted-tailed quoll is Australia's largest surviving marsupial carnivore and the Arthur River region is recognised as a quoll 'hotspot'. Studies elsewhere in Tasmania have indicated a connection between road sealing, increased traffic speed and an increase in road deaths for quolls.

Taking account of their responsibilities under the Act the responsible council, Circular Head, referred the road project to determine whether the Minister's approval would be required. Based on the information available at the time of referral the Minister determined that approval was required for the project and preliminary road widening work was halted.

As a direct result of the Department's management of the assessment process local and Tasmanian government wildlife experts were brought together to assist Circular Head Council in its provision of substantial new information and the development of appropriate mitigation measures designed to reduce impacts of the upgraded road on quolls.

The proposed mitigation measures addressed issues of:

  • traffic speed and driver attitudes;
  • availability of roadside food and shelter;
  • improved warning signals for wildlife;
  • wildlife underpasses; and
  • road user education and awareness.

These measures were developed in full consultation with the Department and the Tasmanian Conservation Trust, who provided initial comment on the referral.

Thus under the reconsideration process, the original decision that this action required the Minister's approval was revoked and a new decision made that the action did not require approval provided it was undertaken in the manner specified by the Circular Head Council. The timing of this decision meant that the project could be completed before the onset of winter rain made the project impractical.

This case study highlights the transparency of the Act and its capacity to work with stakeholders, combined with effective use of the 'specified manner' decision power, to deliver win-win outcomes for stakeholders and effective on-ground conservation outcomes.

Assessment of controlled actions

The Act provides a range of assessment approaches to ensure that environmental assessment reflects the nature of the activity, the adequacy of information already available, the degree of public interest and the nature and scale of the likely impacts.

In 2002-03, the Minister made a decision on assessment approach for 36 controlled actions (in addition four were assessed under bilateral assessments) (see Figure 2). Assessment by accredited process was decided upon for 15 projects, reflecting increasing cooperation between the Commonwealth and states and territories. Assessment by public environment report was decided on for two projects and assessment on preliminary documentation for 19 projects. A full list of projects undergoing assessment through a public environment report is in Appendix 1 of this report.

Eighty-six per cent of decisions on assessment approach were made within the statutory timeframes. Where the statutory timeframes were not met, this was due to extended consultation with state ministers on the potential for one-off accreditation of their assessment processes. During the year the use of accredited processes continued to increase.

Figure 2: Assessment Approach Decisions

Figure 2: Assessment Approach Decisions

The Act requires the Minister to prepare written guidelines for the content of a public environment report or environmental impact statement within a 20-day statutory timeframe. Two guidelines prepared during 2002-03 were outside the timeframe, one due to the need to provide further advice to the Minister on aspects of the guidelines.

The Department completed 28 assessment reports following finalisation of relevant documentation by the proponent. Seven of these reports were completed outside the 20-day statutory timeframe.

Environmental impact assessment of the National Low Level Radioactive Waste Repository

The Department conducted an environmental impact assessment of the proposal, based on an environmental impact statement prepared by the proponent, the Department of Education, Science and Training. Over 650 public comments were received.

Public comments and those of relevant government agencies were considered in preparation of the assessment report. The key issues related to risk assessment. Given the importance of the issue, the Department carried out its own analysis, taking further advice from other agencies including the Department of Education, Science and Training, the Department of Defence, Geoscience Australia, the Bureau of Rural Sciences, and the independent reviewer, URS Australia. Scientific and detailed quantitative risk analysis was provided by the Office of the Supervising Scientist. The analysis demonstrated that the site proposed by the proponent was unacceptable, but that two alternative sites would be suitable provided a range of conditions were able to be met.

This case demonstrates the importance of the Department's detailed and independent analysis of assessment documentation. It also highlights the capacity for the Department to obtain required expert advice from elsewhere in the Environment Portfolio, such as from the Office of the Supervising Scientist.

After receipt of the assessment report and recommended conditions of approval, Minister Kemp decided on 7 May 2003 on approval of two alternative sites (40a and 45a) for the proposed repository.

Planting a fodder crop (Leucaena) in strips through the endangered Bluegrass ecological community to provide improved pasture for cattle grazing

The EPBC Information Officer seconded to the National Farmers' Federation assisted with the referral of a proposal to improve pasture within a stand of the endangered Bluegrass ecological community. With the assistance of the information officer the proponent (the farmer) modified the proposal to avoid the possible adverse impacts on the endangered ecological community.

As part of the revised proposal the current frequency and intensity of grazing is to be maintained and surveys will be conducted on the Leucaena plantings to provide a better understanding of how the Bluegrass ecological community reacts to this sort of intervention. Department funds are covering the costs of these surveys.

The proposal was referred and it was decided that it was not a controlled action provided it was undertaken in the specified manner, i.e. there was no need for assessment and approval provided the current grazing regime was not intensified and that the surveys were conducted in the manner agreed.


Twenty-five controlled actions were approved in 2002-03, and a further 18 were awaiting decision on approval as of 30 June 2003. Approval has been refused for one action, the operation of an electrical grid on a lychee farm. The action was not approved because it would threaten the World Heritage values of the Wet Tropics World Heritage Area.

Actions approved included the Scoresby Freeway from Dandenong to Seaford in Victoria, the Ranford Road Residential Development in Western Australia, the Yabulu Nickel Refinery Extension adjacent to the Great Barrier Reef and the Falls Creek Ski Lift in Victoria.

Four approvals were made outside the statutory timeframe. These delays were due to the complexities of the issues under consideration, including the resolution of legal issues.

Of the 25 approvals all were conditional except one. The conditions of approval were designed to safeguard the matters protected by the Act. Some examples of conditions are requirements to avoid impacts on important populations of species, provide compensatory habitat for affected species, monitor impacts and prepare detailed plans for the Minister's approval to mitigate impacts on matters of national environmental significance.

Why are most projects approved?

The purpose of any environmental assessment and approvals scheme is to minimise adverse impacts. During the assessment phase, the Department, the proponent and the affected community have the opportunity to work together to achieve that outcome in the context of the proposed project. Both assessment and approval involve negotiation between the interested parties and, ultimately, the Department strives to get agreement on the conditions under which the project can proceed without significant impacts. This objective, of achieving a 'win-win' outcome for the environment and the project proponent, is the key contribution of environmental regulation to achieving sustainable development in Australia.

First project to be refused approval

If approval for a project is denied it means that it was not possible to find conditions under which the referred project could proceed without having unacceptable impacts on matters protected by the Act. The first project to be denied approval under the Act involved the use of high voltage electric grids to protect a fruit crop in northern Queensland from damage by a species of flying fox. The inevitably high number of animals that would be killed in relation to the known size of the population and the important role the species plays in the maintenance of World Heritage values of the Wet Tropics meant that it was not possible to mitigate impacts by applying conditions. The Minister considered economic and social implications in taking this decision.

Auditing outcomes and performance

The Department is developing a strategy and processes that effectively monitor actions referred under the Act, assist in fine-tuning the Department's processes and provide useful case studies that can be promoted. This approach is based on a series of trial audits in 2002-03 of actions determined non-controlled actions provided they were undertaken in a 'specified manner'. At the end of 2002, there had been 83 of these actions, the majority of which were in the exploration category and involved offshore seismic surveys. The Department therefore invited four companies from this sector that had undertaken seismic surveys to participate in the audits. All four companies agreed to participate in the audits to evaluate compliance with 'specified manner' requirements as well as the effectiveness and efficiency of the Department's decision-making under the Act. The audits were also expected to identify opportunities for improvement, allowing both the Department and the companies involved to demonstrate the ecological sustainability of their activities and decisions.

Strategic assessment - offshore petroleum exploration and appraisal activities

The terms of reference for a strategic assessment of offshore petroleum exploration and appraisal activities under Part 10 of the Act were finalised in 2002 following consideration of public comment on draft terms of reference.

The strategic assessment will examine the environmental effects of all aspects of petroleum exploration activities that fall within the jurisdiction of the Australian Government under the Petroleum (Submerged Lands) Act 1967. The scope of the strategic assessment will cover the selection and release of offshore exploration acreage, the award of exploration titles, exploration activities (airborne surveys, seismic surveys, exploration drilling) and appraisal activities. It is not intended to examine the impacts of production-related activities.

The assessment process will provide an opportunity for all stakeholders to express their views on the significance of petroleum exploration activities on marine ecosystems. An important outcome is expected to be a clear understanding of threshold levels of environmental significance of proposed petroleum exploration and resource assessment actions under the Act. This in turn should ensure that the discovery and development of petroleum resources can continue with as much certainty as possible for industry operators, at the same time ensuring high levels of environmental protection.

The Department of Industry, Tourism and Resources is responsible for the preparation and submission of the strategic assessment documentation and is at present developing a draft report reviewing the impacts of petroleum exploration for public consultation late in 2003.

Strategic assessment of activities on Christmas Island

Following an in-principle agreement between Ministers, the Department of Transport and Regional Services is developing terms of reference for a strategic assessment under Part 10 of the Act that will address the environmental impacts of activities associated with the policy of normalisation of Christmas Island. This policy looks to ensure that the residents of Christmas Island enjoy the same services, opportunities and responsibilities as other Australians in comparable mainland communities, including by fostering economic development within the constraints of applicable legislation. The Department of Transport and Regional Services has recently consulted with stakeholders on Christmas Island in order to further define what actions may be included in the strategic assessment, but there is not yet a formal agreement on the terms of reference for the assessment.

Strategic Assessment of fisheries

Commonwealth managed fisheries are required to initiate strategic assessments within five years of the date of implementation of the Act. Assessment of the Heard Island and McDonald Islands Fishery was completed during the year. Over half of the Commonwealth managed fisheries have now commenced assessment. The status of all fisheries assessments is shown in Appendix 1 of this report.

Ecologically sustainable management of Australia's fisheries

The depletion of fish stocks and the ecological sustainability of global fisheries are issues of international concern. While the status of Australia fish stocks is generally better than elsewhere in the world, there is still evidence of overfishing and a high level of uncertainty.

The Australian Government has responded to the ongoing concerns about the environmental impacts of fishing and the risk of overexploitation of marine resources by incorporating ecological sustainability requirements into Commonwealth environment and fisheries legislation.

Under the Act, the Department assesses the environmental performance of fisheries management arrangements to ensure that, over time, fisheries are ecologically sustainable.

The assessment process incorporates a flow of communication between fishery managers and the Department, in order to facilitate the best outcome for the fishery.

The assessment process is catalysing a change in management practices across Australia's commercial fisheries. There has been a positive shift in focus to ecologically sustainable management, moving away from largely target species-focused management to an ecosystem-based management approach.

Fishery management agencies have demonstrated a commitment to ecologically sustainable fisheries management practices, such as spatial management, independent research and data collection, cross jurisdictional management approaches, harvest strategies for byproduct species, mitigation and reporting of protected species interactions, the development of biological reference points for target species, and the development of compliance systems and measures to reduce illegal take.

Fisheries that have received export approval - such as the Tasmanian Rock Lobster and Tasmanian Abalone fisheries - have highlighted the benefits of the assessment process, particularly the ability to forge new export markets and promote existing ones. The outcomes of the Commonwealth assessments provide increased certainty for fishery operators, processors and exporters, and will strengthen the environmental performance of the industry.

Transitional arrangements

In accordance with transitional provisions for the Act, 31 projects continued to be assessed under the Australian Government's previous impact assessment regime - the Environment Protection (Impact of Proposals) Act 1974. During 2002-03, 15 assessments were completed while 15 projects were either lapsed because the proponent did not meet the deadline for transitional arrangements or were referred for approval under the Environment Protection and Biodiversity Conservation Act.

One project, Stuart Oil Shale Stage 2, is still undergoing assessment under the Environment Protection (Impact of Proposals) Act.


One of the key aims of the Environment Protection and Biodiversity Conservation Act is to provide certainty for individuals and the community about the Commonwealth's environmental requirements. This is largely achieved by the referrals process, through which any person can find out whether or not their project requires approval. The Department aims to ensure that the process remains easy, quick, fair and accessible for all potential users, from farmers and small-scale developers to the largest multi-national corporations and government agencies. Feedback from clients, users of the EPBC web site and the ANAO report suggests that this aim is being achieved for most groups of clients. Continued improvement in client services remains a strong commitment.

One of the other ways to give greater certainty is to make sure that information about the matters protected by the Act is available to the people who need it. This can and does take many forms. Maps of protected areas and species habitat, information sheets and guidelines on what could constitute a 'significant impact' are produced and updated regularly. The fact remains that knowledge of Australia's environmental assets, and how to protect and manage them, is still poor. The Department relies heavily on the data and research work of state conservation agencies, the CSIRO and universities to assist decision-making. Some larger corporations and community groups have also been active in contributing to the knowledge base about particular areas or environments. The work of the Environmental Resources Information Network is critical to bringing this information together and helping to guide policy and decision-making under the Act.

Protection of Brigalow near Rolleston, Queensland

The Brigalow ecological community is protected under the Act as an endangered ecological community. Not all Brigalow country is included in the listed community, however, as the listed community must retain the species composition and structural elements only found in undisturbed areas.

The EPBC Information Officer seconded to the National Farmers' Federation assisted a farmer who wished to develop his property containing large areas of Brigalow, although not necessarily all the listed community. The officer visited the property with an expert consultant to identify the listed community and assist the farmer with his proposal. An EPBC referral was developed to clear 2300 hectares of Brigalow country but to protect an important 1100 hectares of the listed community. The proposal was constructed such that areas of remnant Brigalow mapped by the Queensland Herbarium were retained and protected under the Queensland Vegetation Management Act 1999. The proponent also developed a Property Vegetation Management Plan (as required under state legislation) to protect remaining remnant stands of Brigalow and to maintain suitable buffer areas adjacent to the remnant stand. As a result, when this proposal was referred under the provisions of the Act the decision was made that it was not a controlled action (i.e. it did not require assessment and approval under the provisions of the Act) if the steps described above were undertaken.

The Australian Government is funding surveys and assisting the farmer with the development of his plan.