National recovery plan for the Downy Wattle (Acacia pubescens)

NSW National Parks and Wildlife Service
Environment Australia, February 2003
ISBN 0 7313 6504 6

2. Legislative Context

2.1 Legal Status

Acacia pubescens is listed as a vulnerable species on Schedule 2 of the Threatened Species Conservation Act 1995 (TSC Act ). The species is also listed as a vulnerable species on Schedule 1, Part 2 of the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

2.2 Recovery Plan Preparation

The EPBC Act 1999 (Cth) and the TSC Act 1995 (NSW) require the Commonwealth Minister for the Environment and the Director-General of National Parks and Wildlife to prepare recovery plans for all Commonwealth listed species and communities, and State listed species, populations and ecological communities respectively. Both legislative instruments include specific requirements for the matters to be addressed by recovery plans and the process for preparing recovery plans. This plan satisfies the provisions of both the EPBC Act 1999 (Cth) and the TSC Act 1999 (NSW), and as such there will only be one recovery plan operating for A. pubescens.

The TSC Act 1995 (NSW) requires that in the preparation of a recovery plan, that consideration must be given to any special knowledge or interests that indigenous people may have in the species and the measures to be contained in the plan (section 57). In addition, the EPBC Act 1999 (Cth) requires that in the preparation of a recovery plan, that regard must be had to the role and interests of indigenous people in the conservation of Australia's biodiversity (section 270(3)(e)). There are a number of indigenous community groups in the area affected by this recovery plan, including the Deerubbin, Gandangara and Metropolitan Local Aboriginal Land Councils. These groups were not consulted prior to preparation of the plan, and although wattles are and were used for a variety of purposes by indigenous peoples (eg. for spear-throwers, boomerangs, clubs, string bags and baskets and the seeds and gum are/were eaten), no information exists of any use of A. pubescens specifically. However, implementation of recovery actions under this plan will include consultation with these groups and consideration of their role and interests in the region (see section 14.3.1).

2.3 Recovery Plan Implementation

The TSC Act 1995 (NSW) requires that a public authority must take any appropriate measures available to implement actions included in a recovery plan for which they are responsible. In addition, the Act specifies that public authorities must not make decisions that are inconsistent with the provisions of the plan. Public authorities responsible for the implementation of this recovery plan are many, including the NPWS, Councils, the Department of Land and Water Conservation, the Department of Employment Education and Training, Rail Infrastructure Corporation, Roads and Traffic Authority, State Rail Authority, Sydney Catchment Authority and Sydney Water. Consequently, these land managers must manage A. pubescens in accordance with the approved plan.

The TSC Act requires that public authorities identified in a recovery plan as responsible for the implementation of measures included in the plan, must report on actions that have been implemented in its annual report to Parliament. Likewise, Councils must report on implementation in their state of the environment report.

The EPBC Act 1999 (Cth) states that Commonwealth agencies must implement a recovery plan on those areas that apply to Commonwealth lands. Those lands relevant to this recovery plan include sites at Prestons, University of Western Sydney (Bankstown Campus) and Holsworthy Military Reserve. The EPBC Act also specifies that a Commonwealth agency must not take any action that contravenes a recovery plan.

2.4 Critical Habitat

The TSC Act makes provision for the identification and declaration of critical habitat only for those endangered species, populations and ecological communities listed on Schedule 1 of the TSC Act . As A. pubescens is listed on Schedule 2 of the TSC Act as a vulnerable species, critical habitat cannot be declared for this species.

Under the EPBC Act 1999 (Cth), critical habitat may be identified 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. At this stage, habitat critical to the survival of A. pubescens cannot be identified given the clonal nature of the species and a lack of genetic information about this clonality. However, genetic analysis will be further investigated as an outcome of the plan (see section 13.3.1).

2.5 Environmental Assessment

The TSC Act amendments to Part 3 of the Environmental Planning and Assessment Act 1979 (EP&A Act) require that when draft environmental studies or environmental planning instruments are being prepared, Councils and Planning NSW must consult with the NPWS, if critical habitat, or threatened species, populations or ecological communities, or their habitats, will or may be affected by the instrument (termed a 'section 34A consultation'). The NPWS considers that these consultations are a very useful mechanism which can minimise the problems that arise due to development pressures in relation to threatened biota.

The TSC Act amendments to the environmental assessment provisions of the Environmental Planning and Assessment Act 1979 (EP&A Act) requires that consent and determining authorities consider relevant recovery plans when exercising a decision making function under Parts 4 & 5 of the EP&A Act. Consent and determining authorities, when considering any development or activity which may affect A. pubescens, must consider the conservation strategy outlined in this plan. These authorities may be assisted by the guidelines for environmental impact assessment that have been included as Appendix 3 of this plan. Any other action not requiring approval under the EP&A Act, and which is likely to have a significant impact on A. pubescens will require a Section 91 Licence from the NPWS under the provisions of the TSC Act . Such a licence may be issued with or without conditions, or refused.

As A. pubescens 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. This is in addition to any State or Local Government approval requirement specified above for the NSW EP&A Act.

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 of A. pubescens and the species is in, or on a Commonwealth area, a permit issued by the Commonwealth Minister under the EPBC Act, will be required.

2.6 Key Threatening Processes

There are currently two key threatening processes listed on Schedule 3 of the TSC Act that are relevant to Acacia pubescens .

'Clearing of native vegetation' is listed as a key threatening process and is identified as a threat to Acacia pubescens . Past clearing of the habitat of this species is a major reason for its listing as vulnerable.

'High frequency fire resulting in the disruption of life cycle processes in plants and animals and loss of vegetation structure and composition' is another key threatening process which is relevant to this species. Some sites of A. pubescens are subject to repeated fire, apparently due to arson. Appropriate fire regimes must be considered when developing management strategies for all sites of A. pubescens. For more details on appropriate fire regimes see section 7.4 of this recovery plan.