New South Wales Consolidated Regulations

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BIODIVERSITY CONSERVATION REGULATION 2017

- Made under the Biodiversity Conservation Act 2016
- As at 24 October 2023
- Reg 432 of 2017

TABLE OF PROVISIONS

   PART 1 - PRELIMINARY

   1.1.    Name of Regulation
   1.2.    Commencement
   1.3.    Definitions
   1.4.    Additional biodiversity values (section 1.5 of the Act)
   1.5.    Fee unit for purposes of this Regulation

   PART 2 - PROTECTION OF ANIMALS AND PLANTS

           Division 2.1 - Protection of marine mammals

   2.1.    Definitions
   2.2.    Interfering with marine mammals
   2.3.    Approaching marine mammals
   2.4.    Operation of prohibited vessels approached by marine mammals
   2.5.    Operation of vessels that are not prohibited vessels
   2.6.    Operation of aircraft in vicinity of marine mammals
   2.7.    Feeding marine mammals
   2.8.    Swimming with whales, dolphins or dugongs
   2.8A.   Breeding or importing animal of the order Cetacea
           Note

           Division 2.2 - Defences and other exclusions

   2.9.    Defences provided by codes of practice (section 2.9)
   2.10.   Emergency response in respect of marine mammals (section 2.9)
   2.11.   Authority to liberate homing pigeons (section 2.6(3))
   2.12.   Harming snakes (section 2.9)
   2.13.   Authority to harm or pick in reserved areas etc under NPW Act (section 2.9)
   2.14.   Authority conferred by property management plan under former TSC Act (section 2.9)
   2.15.   Protecting distressed animals (section 2.9)
   2.16.   Landholder possessing naturally occurring plants on the land (section 2.9)
   2.17.   Picking protected plants on private land by or with consent of landholder (section 2.9)
   2.18.   Buying, selling or otherwise dealing in plants obtained from commercial plant grower (section 2.9)
   2.19.   Authorised import or export of protected plants (section 2.9)
   2.20.   Dealing in meat and other products of protected animals or plants lawfully killed or picked (section 2.9)
   2.21.   Harm to swamphens, raven, crow, cockatoo or galah (section 2.9)
   2.22.   Exclusion of certain animals from offence of dealing in animals (section 2.5)
   2.23.   Pest control (section 2.9)
   2.24.   Exclusions from defence for acts done by Aboriginal persons for domestic purposes (section 2.8(1)(k))
   2.25.   Acts authorised by joint management agreements
   2.25A.  Activities resulting from bee keeping and grazing authorised by forest permit (section 2.9)

           Division 2.3 - Biodiversity conservation licences

   2.26.   Assessment of application for licence (section 2.17)
   2.27.   Persons eligible to hold a licence (section 2.17)
   2.28.   Standard application fee for licence (section 2.12)
   2.29.   Time for dealing with application for licence (section 2.17)
   2.30.   Time for appeal against licence decisions (section 2.16(4))

           Division 2.4 - Management plans for protected animals and plants

   2.31.   Environment Agency Head may make or adopt management plans (section 2.19(2)(d))
   2.32.   Public consultation on management plans
   2.33.   Biodiversity conservation licences may require compliance with management plans

           Division 2.5 - Miscellaneous

   2.34.   Definition of "relevant instrument"
   2.35.   Registration of persons or premises in relation to dealing in protected animals or plants (section 2.19(2)(b))
   2.36.   Tagging of protected animals or plants (section 2.19(2)(c))
   2.37.   Keeping of records etc with respect to dealing in protected animals or plants (section 2.19(2)(c))
   2.38.   Offences relating to registration, tagging and record keeping (section 2.19(2))
   2.39.   Prohibition on breeding native waterfowl with non-native waterfowl (section 2.19(2)(a))

   PART 3 - AREAS OF OUTSTANDING BIODIVERSITY VALUE

           Division 3.1 - Criteria for declaration

   3.1.    Criteria for declaring areas of outstanding biodiversity value (section 3.2)
   3.2.    Minister to publish map of area and reasons area eligible to be declared etc

           Division 3.2 - Little Penguin declared area
           Note

   3.3.    Definitions
   3.4.    Companion animals prohibited
   3.5.    Anchoring, mooring and access by vessels
   3.6.    Fishing
   3.7.    Interference with burrows or nests
   3.8.    Interference with Little Penguins
   3.9.    Directions given by a designated officer
   3.10.   Defences

           Division 3.3 - Wollemi Pine declared area
           Note

   3.11.   Definitions
   3.12.   Operation of Division
   3.13.   Closure by public notice
   3.14.   Closure by order
   3.15.   Directions given by a designated officer
   3.16.   Defences

   PART 4 - THREATENED SPECIES AND ECOLOGICAL COMMUNITIES--LISTING CRITERIA

           Division 4.1 - Criteria for listing of threatened species

   4.1.    Specific eligibility criteria for determinations by Scientific Committee of threatened species listings (section 4.4)
   4.2.    Reduction in population size of species
   4.3.    Restricted geographic distribution of species and other conditions
   4.4.    Low numbers of mature individuals of species and other conditions
   4.5.    Low total numbers of mature individuals of species
   4.6.    Quantitative analysis of extinction probability
   4.7.    Very highly restricted geographic distribution of species--vulnerable species

           Division 4.2 - Criteria for listing of ecological communities

   4.8.    Specific eligibility criteria for determinations by Scientific Committee of threatened ecological communities listings (section 4.5)
   4.9.    Reduction in geographic distribution of ecological community
   4.10.   Restricted geographic distribution of ecological community
   4.11.   Environmental degradation of ecological community
   4.12.   Disruption of biotic process or interactions in ecological community
   4.13.   Quantitative analysis of probability of collapse of ecological community
   4.14.   Very small number of locations--vulnerable ecological community

           Division 4.3 - Interpretation of listing criteria

   4.15.   Application of Division
   4.16.   Establishing matters or things in criteria
   4.17.   Mature individuals
   4.18.   Geographic distribution
   4.19.   Severely fragmented
   4.20.   Extreme fluctuations
   4.21.   Guidelines on application of listing criteria

           Division 4.4 - Procedure for listing

   4.22.   Publication of notice of preliminary determination (section 4.13(3)(c))

   PART 5 - PROVISIONS RELATING TO PRIVATE LAND CONSERVATION AGREEMENTS

   5.1.    Criteria for determining if land eligible to be designated as biodiversity stewardship site (section 5.7(3))
   5.2.    Fees payable in connection with biodiversity stewardship agreements
   5.3.    Fit and proper person requirements for owners of proposed biodiversity stewardship sites (section 5.8(5))
   5.4.    Other grounds on which Minister may decline a request to enter into a biodiversity stewardship agreement (section 5.8(6))
   5.5.    Determination that application to vary biodiversity stewardship agreement need not be accompanied by assessment report (section 5.11(7))
   5.6.    Minor variations of biodiversity stewardship agreements without required consent or consultation (section 5.11(8))
   5.7.    Splitting of obligations and entitlements where different successors in title of different parts of biodiversity stewardship site (section 5.13(3))
   5.8.    Reimbursement of site establishment costs of owner or Minister by holder of mining or petroleum authority on termination or variation of biodiversity stewardship agreement (section 5.18(11))
   5.9.    Reimbursement provisions with respect to termination or variation of conservation agreements following grant of mining or petroleum authority (section 5.23(10))

   PART 6 - BIODIVERSITY OFFSETS SCHEME

           Division 6.1 - General

   6.1.    Additional biodiversity impacts to which scheme applies (sections 6.3 and 6.6(2))
   6.2.    Offset rules under biodiversity offsets scheme (section 6.4)
   6.3.    Like-for-like biodiversity credits (section 6.4)
   6.4.    Variation rules under biodiversity offsets scheme (section 6.4(4))
   6.5.    Ancillary rules of Environment Agency Head for purposes of biodiversity offset and variation rules (section 6.4)
   6.6.    Offset and other rules applying to Biodiversity Conservation Trust applying Fund money towards securing biodiversity offsets (sections 6.31 and 10.12)
   6.6A.   Limitation of variation rules in relation to controlled actions under Environment Protection and Biodiversity Conservation Act 1999 (Cth) (sections 6.4, 6.6 and 6.31)
   6.7.    Principles applicable to determination of "serious and irreversible impacts on biodiversity values" (section 6.5(1))

           Division 6.2 - Biodiversity assessment reports

   6.8.    Content of biodiversity development assessment reports (section 6.16)
   6.8A.   Content of biodiversity development assessment reports for certain State significant development (section 6.16)
   6.9.    Content of biodiversity certification assessment reports (section 6.16)
   6.10.   Content of biodiversity stewardship site assessment reports (section 6.16)

           Division 6.3 - Creation, transfer etc of biodiversity credits

   6.11.   Change of class of biodiversity credit (section 6.4(2)(a))
   6.12.   Deferral of payment of total fund deposit until subsequent transfer (section 6.21(6))
   6.13.   Determination of total fund deposit (section 6.21(6) and (7))

           Division 6.4 - Biodiversity Stewardship Payments Fund

   6.14.   Definitions
   6.15.   Separate accounts to be kept in relation to each biodiversity stewardship site (sections 6.34 and 6.36)
   6.16.   Account balances (sections 6.34 and 6.36)
   6.17.   Payments from biodiversity stewardship site account that has an operational deficit (sections 6.34 and 6.36)
   6.18.   Payments from biodiversity stewardship site account that has an operational surplus (sections 6.34 and 6.36)
   6.19.   Payments from biodiversity stewardship site account that has insufficient funds to cover payment (sections 6.34 and 6.36)
   6.20.   Termination of biodiversity stewardship site account (sections 6.34 and 6.36)
   6.21.   Biodiversity stewardship sites that become national parks or other reserves (sections 6.34 and 6.36)
   6.22.   Fund to be kept separate from other accounts (section 6.36)
   6.23.   Winding up of Fund (section 6.34(5))
   6.24.   Establishment of committees to advise and oversee Fund Manager (section 6.36)
   6.25.   Directions to fund Manager by Minister (section 6.36)

           Division 6.5 - Fees and administration costs

   6.26.   Fees payable in connection with biodiversity offsets scheme
   6.27.   Biodiversity offsets scheme administration cost recovery from participants in scheme (section 6.38)
   6.28.   Additional money required to be paid into the Biodiversity Stewardship Operations Account (section 6.39(3)(e))
   6.29.   Fees for services provided by staff of Environment Agency Head or Biodiversity Conservation Trust (section 6.6(2))

           Division 6.6 - Miscellaneous

   6.30.   Proof of retirement of biodiversity credits (section 6.6(2))
   6.31.   Changes in biodiversity assessment method

   PART 7 - BIODIVERSITY ASSESSMENT AND APPROVALS UNDER PLANNING ACT

   7.1.    Biodiversity offsets scheme threshold (section 7.4)
   7.1A.   Certain bushfire-affected development involving clearing taken not to exceed threshold
   7.2.    Clearing of area of land that exceeds threshold
   7.3.    Clearing on land within Biodiversity Values Map exceeds threshold
   7.4.    Amendments to list of vulnerable threatened species or ecological communities (section 7.10)
   7.5.    Modification of Part 5 activity (sections 7.8 and 7.17)
   7.6.    Content of species impact statement relating to impact on threatened species or ecological communities (section 7.20(2))

   PART 8 - BIODIVERSITY CERTIFICATION OF LAND

   8.1.    Avoiding or minimising impacts of clearing and loss of habitat may be specified as related other approved measures in order conferring biodiversity certification (section 8.3(3)(c))
   8.2.    Other approved conservation measures proposed in strategic application for approval by Minister (section 8.3(2)(b))
   8.3.    Criteria to be taken into account by Minister when declaring strategic application (section 8.5(2))
   8.4.    Consultation with local councils on biodiversity certification applications (section 8.26(6))
   8.5.    Publication of biodiversity certification agreements (section 8.20)
   8.6.    Additional grounds for suspension or revocation of biodiversity certification (sections 8.21(2)(d) and 8.22(4)(d))
   8.7.    Consultation with planning authorities on proposed suspension or revocation of biodiversity certification following strategic application for certification (section 8.21(3))
   8.8.    Currency of biodiversity certification assessment report (section 8.26(6))
   8.9.    Extension of period or modification of biodiversity certification (section 8.26(6))
   8.10.   Fees payable in connection with biodiversity certification (section 8.26(6)(a))

   PART 9 - PUBLIC CONSULTATION AND PUBLIC REGISTERS

           Division 9.1 - Public consultation

   9.1.    Exclusion of Christmas/New Year period (section 9.6)

           Division 9.2 - Public registers

   9.2.    Public register of biodiversity conservation licences (sections 9.7(1)(a) and 9.11)
   9.3.    Register of private land conservation agreements (sections 9.7(1)(c) and 9.11)
   9.4.    Public register of biodiversity credits (sections 9.7(1)(d) and 9.11)
   9.5.    Public register of accredited persons who apply BAM (sections 9.7(1)(e) and 9.11)
   9.6.    Public register of remediation orders (sections 9.7(1)(h) and 9.11)
   9.7.    Public register of biodiversity credits wanted (sections 9.7(1)(j) and 9.11)
   9.8.    Public register of biodiversity stewardship site expressions of interest (sections 9.7(1)(j) and 9.11)
   9.9.    Correction of public registers (section 9.11)
   9.10.   Additional authority for restriction of access to information in public registers (section 9.10)
   9.11.   Transitional provision relating to information about licences, agreements and credits under repealed Act

   PART 10 - BIODIVERSITY CONSERVATION TRUST

   10.1.   Preparation and publication of Trust business plan (section 10.7(5))
   10.2.   Additional matters to be included in annual reporting information for Trust (section 10.12)
   10.3.   Combination of Trust annual reporting information with annual reporting information as Fund Manager of the Biodiversity Stewardship Payments Fund (section 6.37)

   PART 11 - REGULATORY COMPLIANCE MECHANISMS

   11.1.   Terms of interim protection orders (section 11.9(2))
   11.2.   Time for appeal against interim protection orders (section 11.13(2))

   PART 12 - INVESTIGATION POWERS

   12.1.   Retention, destruction or disposal of seized animals or plants (section 12.18)
   12.2.   (Repealed)

   PART 13 - CRIMINAL AND CIVIL PROCEEDINGS

   13.1.   Penalty notice offences (section 13.5)
   13.2.   Provision of information on additional matters for which offence of false and misleading information applies (section 13.10(2)(c))
   13.3.   Certificate evidence of additional matters (section 13.31)

   PART 14 - MISCELLANEOUS

   14.1.   Provisions relating to members and procedure of Biodiversity Conservation Advisory Panel (section 14.2)
   14.2.   Biodiversity information programs (section 14.3)
   14.3.   Additional persons to whom functions may be delegated by Minister or Agency Head (section 14.4)
           SCHEDULE 1
           SCHEDULE 2


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