NSW National Parks and Wildlife Service, May 2002
ISBN 0 731 36253 5
- Legal Status
- Recovery Plan Preparation
- Recovery Plan Implementation
- Relationship to Other Legislation
- Environmental Assessment
- Critical Habitat
The East Lynne Midge Orchid is listed as Vulnerable under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and Vulnerable (Schedule 2) on the NSW Threatened Species Conservation Act 1995 (TSC Act).Among the consequences of listing a threatened species on the TSC Act are:
- A Recovery Plan must be prepared;
- consideration must be given to the species in assessing the impacts of developments and activities with the aim of minimising adverse impacts; and
- other actions that are likely to result in the harming or picking of that species or damage its habitat are licensed.
The TSC Act provides a legislative framework to protect and encourage the recovery of threatened species, endangered populations and endangered ecological communities in NSW. Under this legislation the Director-General of National Parks and Wildlife (NPW) has a responsibility to prepare Recovery Plans for all species, populations and ecological communities listed as Endangered or Vulnerable on the TSC Act schedules. Similarly, the EPBC Act requires the Commonwealth Minister for the Environment ensures the preparation of a Recovery Plan for nationally listed species and communities or adopt Plans prepared by others, including those developed by State agencies. Both Acts include specific requirements for the matters to be addressed by Recovery Plans and the administrative process for preparing Recovery Plans.
This Recovery Plan has been prepared to satisfy both the requirements of the TSC Act and the EPBC Act and therefore will be the only Recovery Plan for the species. It is the intention of the Director-General of NPW to forward the final version of this Recovery Plan to the Commonwealth Minister of the Environment for adoption, once it has been approved by the NSW Minister for the Environment.
The TSC Act requires that a public authority must take any appropriate measures available to implement actions included in a Recovery Plan for which it has agreed to be responsible. Public authorities and councils identified as responsible for the implementation of Recovery Plan Actions are required by the TSC Act to report on measures taken to implement those actions. In addition, the Act specifies that public authorities must not make decisions that are inconsistent with the provisions of a Recovery Plan. The Government agencies relevant to this Plan are the New South Wales National Parks and Wildlife Service (NPWS), State Forests of NSW, (SFNSW), Shoalhaven City Council (SCC) and the Roads and Traffic Authority (RTA). Consequently, the actions outlined for each of these agencies must be implemented as described in the Plan.
The EPBC Act specifies that a Commonwealth agency must not take any action that contravenes an approved Recovery Plan.
The lands on which the East Lynne Midge Orchid occurs include those that are owned or managed by NPWS, SFNSW, SCC, RTA and the Commonwealth. Relevant NSW and Commonwealth legislation includes:
- NSW National Parks and Wildlife Act 1974
- NSW Environmental Planning and Assessment Act 1979
- NSW Local Government Act 1993
- NSW Rural Fires Act 1997
- NSW Forestry Act 1916
- NSW Forestry and National Parks Estate Act 1998
- Commonwealth Environment Protection and Biodiversity Conservation Act 1999
The interaction of these Acts with the TSC Act legislation is varied. The most significant implications are described below and in Section 2.5.
The NSW Forestry and National Parks Estate Act 1998 integrates the various regulatory regimes for threatened species conservation, environmental planning and assessment, and the protection of the environment. Approval for the carrying out of forestry operations on State Forests is granted under this Act via the Integrated Forestry Operations Approval. The Integrated Forestry Operations Approval for the Southern Region (IFOA) (New South Wales Government 2001 - see Appendix B 'Terms of Licence under the Threatened Species Conservation Act 1995') includes measures that protect the known populations of the East Lynne Midge Orchid.
In those instances where the activities or actions planned to be carried out in State Forest do not come under the IFOA then the provisions of the Environmental Planning and Assessment Act 1979 (EP&A Act) must be considered. Further, any action not requiring approval under the EP&A Act, and which is likely to have a significant impact on the East Lynne Midge Orchid requires a Section 91 licence from the NPWS under the provisions of the TSC Act.
The Rural Fires Act 1997 requires that all parties involved in fire suppression and prevention must have regard to the principles of Ecologically Sustainable Development (ESD) when exercising their functions and when preparing Draft Operational Plans and Draft Bush Fire Risk Management Plans. Consideration of the principles of ESD must include the conservation of biological diversity and ecological integrity. Within this, consideration must be given to the impact on threatened species and their habitats.
The New South Wales Environmental Planning and Assessment Act 1979 (EP&A Act) requires that consent and determining authorities, and the Director-General of National Parks and Wildlife, as a concurrence authority, consider relevant Recovery Plans when exercising a decision-making function under Parts 4 and 5 of the EP&A Act. Decision-makers must consider known and potential habitat, biological and ecological factors and the regional significance of individual populations.The following public authorities are currently known to have a decision making function in relation to the East Lynne Midge Orchid:
- State Forests of NSW
- SCC as the manager of a road easement which has the species present and which is vested in SCC under section 145 of the Roads Act, 1993;
- The NPWS as the land manager and determining authority where populations occur on NPWS estate; where a concurrence or consultation role under the EP&A Act is required (all tenures); or where a Section 91 Licence (under the TSC Act) or a Section 132 Licence (Licence to grow protected or threatened plants for sale) (under the NPW Act) is required (all tenures).
Additional authorities may have responsibilities if the species is located in other areas in the future.
Any other activity not requiring development consent under the EP&A Act, and which is likely to have a significant impact on the East Lynne Midge Orchid, requires a Section 91 licence from the Director-General of NPW under the provisions of the TSC Act. Such a licence can be issued with or without conditions, or can be refused.
The EPBC Act regulates actions that may result in a significant impact on nationally listed threatened species and ecological communities. It is an offence to undertake any such actions in areas under State or Territory jurisdiction, as well as on Commonwealth-owned areas, without obtaining prior approval from the Commonwealth Environment Minister. As the East Lynne Midge Orchid is listed nationally under the EPBC Act, any person proposing to undertake actions likely to have a significant impact on this species should refer the action to the Commonwealth Minister for the Environment for consideration. The Minister will then decide whether the action requires EPBC Act approval.
Administrative guidelines are available from Environment Australia to assist proponents in determining whether their action is likely to have a significant impact. In cases where the action does not require EPBC Act approval, but will result in the death or injury of an individual East Lynne Midge Orchid and the individual is in, or on a Commonwealth area, a permit issued by the Commonwealth Minister under the EPBC Act, will be required.
The Environment Minister can also delegate the role of assessment and approval to other Commonwealth Ministers under a Ministerial Declaration, and to the States and Territories under bilateral agreements. The development of a bilateral agreement between NSW and the Commonwealth is not yet complete, but when in place will avoid the need for duplication of environmental assessment.
The TSC Act makes provision for the identification and declaration of Critical Habitat. Under the TSC Act, Critical Habitat may be identified for any endangered species, endangered population or endangered ecological community occurring on NSW lands.
Given that the East Lynne Midge Orchid is listed as Vulnerable, Critical Habitat cannot be declared for this species under the TSC Act.
Under the EPBC Act, Critical Habitat may be registered for any nationally listed threatened species or ecological community. When adopting a Recovery Plan the Federal Minister for the Environment must consider whether to list habitat identified in the Recovery Plan as being critical to the survival of the species or ecological community. It is an offence under the EPBC Act for a person to knowingly take an action that will significantly damage Critical Habitat on Commonwealth land (unless the EPBC Act specifically exempts the action). Any action that is likely to have a significant impact on a listed species occurring within registered Critical Habitat on other areas is still subject to referral and approval under the EPBC Act. Proposed actions within registered Critical Habitat on non-Commonwealth areas are likely to receive additional scrutiny by the Commonwealth Minister.
This Plan does not specifically identify habitat that is critical to the survival of the East Lynne Midge Orchid. However, NPWS considers that the areas critical to the survival of this species must include as a minimum all habitat currently occupied by it. The distribution, habitat and ecological information included in this Plan (sections 3.2 - 3.6) would assist the Federal Minister for the Environment in identifying habitat that is critical to the survival of this species. NPWS does not consider it appropriate that this Recovery Plan identifies or maps the occurrences of this species in the detail that would be required to define the Critical Habitat.