Caladenia arenaria Fitzg. Recovery Plan

Threatened Species Unit, Western
The State of New South Wales, Department of Environment and Conservation, 2004
ISBN: 0731365399

9 Legislation

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 the Department of Environment and Conservation 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 Environmental Protection and Biodiversity Conservation (EPBC) Act requires the Commonwealth Minister for the Environment to ensure 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 DEC 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.

Recovery Plan Implementation

The TSC Act requires that a public authority must take any appropriate measures available to implement actions included in a Recovery Plan for which they have agreed to be responsible. Public authorities 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 the Recovery Plan.

Public authorities responsible for the implementation of this Recovery Plan are the NSW Department of Environment and Conservation.

The EPBC Act specifies that a Commonwealth agency must not take any action that contravenes a Recovery Plan.

Critical Habitat

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, population or ecological community occurring on NSW lands. Once declared, it becomes an offence to damage Critical Habitat (unless the action is exempted under the provisions of the TSC Act) and a Species Impact Statement is mandatory for all developments and activities proposed within declared Critical Habitat. The declaration of critical habitat in NSW is not considered to be a priority for the species, at this stage, as other mechanisms provide for its protection.

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 on Commonwealth land that will significantly damage Critical Habitat (unless the EPBC Act specifically exempts the action). Although this offence only applies to Commonwealth land, any action that is likely to have a significant impact on a listed species occurring within registered Critical Habitat 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.

The relatively broad habitat tolerances of C. arenaria make the definition of critical habitat difficult, although it would be possible to declare critical habitat just over the area of known populations. The major populations occur on State Forest, and are excluded from logging. Clearing of the population on private land is unlikely to be approved, given the presence of two endangered species (C. arenaria & Diuris sp. "Oaklands") and recognition of the area by Benson et al. (1996) as a unique vegetation community in the Riverina. Since development is not a significant threat, declaration of critical habitat is not necessary and is likely to be a waste of resources.

Environmental Assessment

The New South Wales Environmental Planning and Assessment Act 1979 (EPA Act) requires that consent and determining authorities, and the Director-General of the Department of Environment and Conservation, as a concurrence authority, consider relevant Recovery Plans when exercising a decision-making function under Parts 4 and 5 of the EPA Act. Decision-makers must consider known and potential habitat, biological and ecological factors and the regional significance of individual populations.

State Forests and the Rural Lands Protection Board are public authorities that must consider C. arenaria when undertaking activities that may harm the species. Any other action not requiring approval under the EPA Act, and which is likely to have a significant impact on C. arenaria, will require a Section 91 Licence from the Director-General of DEC under the provisions of the TSC Act. Such a licence may be issued with or without conditions, or 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 C. arenaria 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.

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 approval under the EPBC Act, but will result in the death or injury of C. arenaria and the plant occurs in, or on Commonwealth land, 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.

Role and interests of indigenous people

Indigenous communities involved in the regions affected by this plan have not yet been identified. Implementation of recovery actions under this plan will include consideration of the role and interests of indigenous communities in the region.