National recovery plan for the Tallong Midge Orchid (Genoplesium plumosum)

NSW National Parks and Wildlife Service, May 2002
ISBN 0 731 36457 0

1. Introduction

The Tallong Midge Orchid (Genoplesium plumosum (Rupp) D. L. Jones and M. A. Clements) occurs only in New South Wales and is currently known from a few sites in and near the town of Tallong, and one site south-east of Wingello. Both towns are located east of Marulan on the Southern Tablelands. The species is a small ground orchid that is only readily visible for about a month when flowering between late summer and autumn.

This document constitutes the formal National and State Recovery Plan for the Tallong Midge Orchid. It considers the requirements of the species across its known range, identifies the actions to be taken to ensure its long-term viability in nature and the parties who will carry these out.

The attainment of the objectives of this Recovery Plan is subject to budgetary and other constraints affecting the parties involved. It is also subject to amendments, if necessary. The information in this Plan is accurate to May 2002.

2. Legislative Context

2.1 Legal Status

The Tallong Midge Orchid is listed as Endangered under the Commonwealth's Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and Endangered (Schedule 1, Part 1) 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 for the species;
  • consideration must be given to the species when 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.

2.2 Recovery Plan Preparation

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 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 their preparation.

This Recovery Plan has been prepared to satisfy both the requirements of the TSC Act and the EPBC Act. 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.

2.3 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 it 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 the Plan. The main Government agencies relevant to this Plan are the New South Wales National Parks and Wildlife Service (NPWS), the Department of Land and Water Conservation (DLWC) Mulwaree Shire Council (MSC) and the State Rail Authority (SRA). 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 a Recovery Plan.

2.4 Relationship to Other Legislation

The lands on which the Tallong Midge Orchid occurs include those that are owned or managed by MSC, DLWC, NPWS, the Tallong Park Association, Santa Sabina College, SRA and other private landowners. 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 Native Vegetation Conservation Act 1997
  • NSW Crown Lands Act 1989
  • 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 clearing of native vegetation in NSW is subject to consent from the Department of Land and Water Conservation (DLWC) in accordance with the NSW Native Vegetation Conservation Act 1997 (NVC Act). The NVC Act is integrated with the Environmental Planning and Assessment Act 1979 (EP&A Act), and requires that threatened species are taken into account when considering clearing applications under Part 4 of the EP&A Act. There are however, a series of exemptions and the NVC Act does not apply to certain types of land, including land zoned as 'residential', 'township', 'village', 'industrial', or 'business'. Some of the fragments of the population of Tallong Midge Orchid occur on land zoned 2(v) 'village' and thus the NVC Act does not apply. However the other fragments are located within 'rural' zones and thus are subject to the NVC 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 (ESDESD) 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.

2.5 Environmental Assessment

New South Wales

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. In relation to threatened species, decision-makers must consider known and potential habitat, biological and ecological factors and the regional significance of individual populations when undertaking s.5A (eight-part test) assessments.

Currently the following public authorities have a decision making function in relation to the Tallong Midge Orchid:

  • MSC as both a consent authority and the owner of land which has the species present;
  • the NPWS as the land manager and determining authority for the population 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 the purposes of sale) is required (all tenures);
  • the SRA as the owner of land which has the species present; and
  • the DLWC in relation to Crown land, subject to the provisions of the Crown Lands Act 1989, and in relation to private land under the requirements of the NVC Act.

Additional public 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 Tallong 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. Routine agricultural activities however, are exempt from the provisions of the TSC Act. This means, for example, that if populations of the Tallong Midge Orchid occur on private rural land, in some circumstances they can legally be subject to grazing by domestic stock under the provisions of the TSC Act.

Commonwealth of Australia

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 Tallong 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 Tallong 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.

2.6 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.

To date, Critical Habitat has not been declared for this species under the TSC Act. However, declaration of Critical Habitat for the Tallong Midge Orchid will be considered within the life of this Plan.

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 (unless the EPBC Act specifically exempts the action). Although this offence only applies to a Commonwealth area, any action that is likely to have a significant impact on a listed species on other areas is still subject to referral and approval under the EPBC Act. Further, it is likely that such actions will be subject to additional scrutiny by the Commonwealth Minister where they are to occur within registered Critical Habitat.

This Plan does not specifically identify habitat that is critical to the survival of the Tallong Midge Orchid. However, NPWS considers that the areas critical to the survival of the 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.