ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVA TlON ACT 1999 Part 10 Strategic Assessme11ts

Sectio11 146 (1) Agreeme11t

Relating to the assessment of the impacts of actions under the Molonglo Valley Plan for the Protection of Matters of National Environmental Significance, regarding urban development,

associated infrastructure and broad acre land use at East and West Molonglo and North Weston in the Australian Capital Territory.

between

THE COMMONWEALTH OF AUSTRALIA

and

THE AUSTRALIAN CAPITAL TERRITORY

1 PARTIES

The Pmties to this Agreement are:

The Commonwealth of Australia, represented by the Minister for the Environment, Heritage and the Arts

and

The Australian Capital Territory Government, represented by the Minister for Planning.

2 DEFINITIONS

2.1 Unless stated otherwise in this Agreement, the definitions, meanings and terms in the Environment Protection and Biodiversity Consel1l(ltion Act 1999 apply to this Agreement and its attachments.

2.2 In this Agreement:

ACT means the Australian Capital Territory.

Minister means the Minister for the Environment, Heritage and the Arts.

MNES means Matters of National Environmental Significance.

The Act means the Environment Protection and Biodiversity Conserl'atioll Act 1999 (Commonwealtit).

The Final Report means a compilation of the Draft Report, Supplementary Report, the Structure Plan and the NES Plan.

The NES Plan means the Molonglo Valley Plan for Protection of Matters of National Enviromnental Significance.

The Structure Plall means the Molonglo and North Weston Structure Plan.

Workillg days means a business day as measured in Canberra, ACT.

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3 PREAMBLE

3.1 The Pm1ies agree that the Molonglo Valley (Attachment A) has significant environmental values, and that significant environmental, social and economic values may be derived from implementing the NES Plan. The NES Plan will address development in the Molonglo Valley and the management of the impacts of this development on the MNES as an important pm1 of the implementation of the Structure Plan.

3.2 Recognising those significant environmental values, the Pm1ies commit to undertake an assessment of impacts of actions under the Plan on all matters protected by Part 3 of the Act.

3.3 The NES Plan will describe actions to be taken in the Molonglo Valley, being those that are also provided for in the Structure Plan and will focus on the measures that will protect MNES.

3.4 The NES Plan will detail how MNES will be protected by implementing commitments in the NES Plan through ACT Government legislation, policies and programs.

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4 BACKGROUND

4.1 The NES Plan is being developed by the ACT as an important document that will be relevant to the Structure Plan, which is being implemented by the ACT in order to set out the broad principles and policies that will apply to the Molonglo Valley development areas in accordance ACT's Planning and Development Act 2007. The Structure Plan gives effect to The Canberra Spatial Plan (2004) and the Territory Plan.

4.2 Significant environmental values have been identified as potentially being impacted by actions covered by the NES Plan which will operate in conjunction with the Structure Plan. As a result, a strategic assessment of the impacts of actions under the NES Plan is being undertaken between the Commonwealth and ACT Governments on all matters protected by Part 3 of the Environment Protection and Biodiversity Conservation Act 1999 (the Act).

4.3 The NES Plan has been considered for a strategic assessment under the Act because, while the Structure Plan addresses broad principles and policies that apply to actions to be taken in the development areas of the Molonglo Valley. The NES Plan will provide for the taking of these actions subject to measures that will specifically address the impacts on MNES.

4.4 In addition the strategic assessment will consider the impacts of broad acre land use on MNES at West Molonglo.

4.5 Section 146(1) of the Act allows the Minister to agree in writing with a person responsible for the adoption or implementation of a policy, plan or program that an assessment be made of the impacts of actions under the policy, plan or program on a matter protected by a provision of Part 3 of the Act. For the purpose of this Agreement the NES Plan is the policy, plan or program.

4.6 Assessment ofthe impacts of the Plan will be undel1aken through a rep011 prepared in accordance with Sections 146(2) of the Act. This will include preparation of Terms of Reference for a rep011 on the impacts of the actions taken in accordance with the NES Plan, preparation of the repol1 and consideration by the Minister of that rep011.

4.7 The Molonglo Valley (Attachment A) includes the proposed development locations of: (a) East Molonglo for urban development and associated infrastructure; and (b) West Molonglo for broadacre land use and associated infrastructure.

4.8 For the removal of doubt, the provisions of this Part 4 are intended to be statements of infonnation and intent only.

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5 TERMS OF REFERENCE FOR THE REPORT

5.1 The ACT Government shall as soon as practicable and possible seek public comment on the Draft Terms of Reference (Attachment B) for the preparation ofa report on the impacts of actions under the Plan.

5.2 The ACT Government shall provide the Draft Terms of Reference for public comment by notice: (a) posted on the ACT Government's website; and (b) published in newspapers circulating nationally and in the ACT.

The notice must advise that the Draft Terms of Reference are available and how copies may be obtained, provide contact details and invite public comments on the Draft Terms of Reference for not less than 28 days.

5.3 The Pm1ies may each notify other parties of the notice in paragraph 5.2 and of the availability of the Draft Terms of Reference. Each Pm1y will make copies of the notice and Draft Terms of Reference available electronically through its website.

5.4 Following the consideration of public comments on the Draft Terms of Reference the ACT Govenl1nent will submit to the Minister: (a) the Revised Draft Terms of Reference; (b) public responses relating to the Draft Terms of Reference; and (c) comments on how the public responses have been taken into account in the Revised Draft

Terms of Reference.

5.5 Following receipt of the Revised Draft Terms of Reference, the Minister shall as soon as practicable notify the ACT Government that the Revised Draft Terms of Reference (for assessment of the impacts of the actions under the Plan): (a) are approved; or (b) are not approved. In this instance the Minister will:

(i) notify the ACT Govel11ment of his concerns and invite the ACT Government to provide Revised Draft Terms of Reference which take those concerns into account; and

(ii) within IS working days of receipt of the Revised Draft Terms of Reference mentioned above, either:

(A) notify the ACT Govel11ment of his approval of the Revised Draft Terms of Reference; or (B) provide approved Terms of Reference that meet his requirements.

5.6 With mutual consent between the two pm1ies, the Commonwealth Minister for the Environment may make minor amendments to the terms of reference (including after the Terms of Reference are finalised under section I 46(1 B)) so far as it does not affect the ability of the ACT Government to prepare the rep0l1 (Clause 6).

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6 PREPARATION OF REPORT

6.1 The ACT Government will as soon as practicable cause a Draft Report to be prepared in accordance with the approved Terms of Reference (c1anse 5.5).

6.2 The ACT Government shall provide the Draft Report for public comment by notice: (a) posted on the ACT Government's website; and (b) published in a newspapers circulating nationally and in the ACT.

The notice must advise that the Draft RepOlt is available and how copies may be obtained, provide contact details for obtaining further information, invite public comments on the Draft RepOlt and set a period of28 days within which comments must be received.

6.3 The Pmties: (a) may each notify interested parties of the notice in paragraph 6.2 and of the availability of the

Draft RepOlt; and (b) will each make copies of the notice in paragraph 6.2 and Draft RepOlt available

electronically through their websites.

6.4 The ACT Government will prepare, within 60 days of the closure of the public comment period (clause 6.2), a Revised Draft Report, or a Supplementary RepOlt to the Draft RepOlt, taking account of the comments received.

7 CONSIDERATION OF THE REPORT

7.1 The ACT Government will submit to the Minister: (a) the Final Report, comprised of:

(i) the amended Draft Report, or (ii) the Draft RepOlt and a Supplementary Report (clause 6.4);

(b) the NES Plan; (c) public responses relating to the Draft RepOlt; and (d) comments on how the public responses have been taken into account in the Final Report.

7.2 The Minister will consider the Final RepOlt.lfthe Minister is not satisfied that the Final RepOlt adequately addresses the impacts of the actions to which this Agreement relates: (a) The Minister will make reconnnendations to the ACT Government, as he considers

appropriate, regarding the Final RepOlt and implementation of the NES Plan. (b) The ACT Government may provide the Minister with advice, or seek clarification from the

Minister on recommendations in subclause (a). (c) The ACT Government will provide to the Minister a summary of the recommendations,

advice or clarification in subclauses (a) and (b), and how those recommendations, advice or clarification are given effect through modifications to the NES Plan.

(d) The Minister will consider the revised NES Plan and suppOlting material and may accept the Final Report or request further information or clarification if not satisfied that it addresses adequately the impacts of the actions to which this Agreement relates.

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7.3 The Minister will endorse the NES Plan if satisfied that the Report adequately addresses the impacts to which this Agreement relates, and: (a) that any recommended modifications to the NES Plan or modifications having the same

effect have been made; and (b) the requirements set out in Attachment C are met.

8 VARIATION

8.1 The parties may vary this Agreement by an exchange of letters (including electronic communications) to the extent only that such variation is consistent with the provisions of the Act.

9 CONFLICT RESOLUTION

9.1 In the event that any dispute arises under this Agreement, the parties will settle it by direct negotiation using their best endeavours, acting in a spirit of cooperation. The pm1ies agree that in the event of a dispute, discussions aimed at resolution will normally take place at official's level in the first instance. This clause does not purport to limit the rights and obligations of each party under relevant sections of the Act.

SIGNED BY:

The Hon. Peter Garrett AM MP Minister for the Environment, Heritage and the A11s

The Hon. Andrew Barr MLA Minister for Planning

Dated this ......... day of .............. 2008

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Attachment A: Molonglo Valley development area affected by the NES Plan (C1anse 3.1).

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Attachment B

Terms of Reference for the Strategic Assessment ofthe Molonglo Valley Plan for the Protection of Matters of National Environmental Significance, relating to urban development, associated infrastructure and broadacre land use in the Molonglo and the North Weston areas of the ACT.

1. PROJECT PURPOSE AND DESCRIPTION The RepOlt, referred to in clause 6 of the Agreement, must describe the NES Plan, including:

(a) how the NES Plan has been developed and its legal standing; (c) the basis of land/asset tenure; (c) the regional context (natural and human) in which the urban area will exist; (d) the actions or classes of actions that are subject of the NES Plan, including the short, medium

and long term aspects of the actions or classes of actions at or associated with the NES Plan. These could include relevant constmction and operational aspects as well as a description of proposed urban development and associated infrastmeture; and

(e) management arrangements and the person(s) or authority responsible for the adoption or implementation of the NES Plan and the RepOlt.

2. PROMOTING ECOLOGICALLY SUSTAINABLE DEVELOPMENT AND BIODIVERSITY CONSERVATION.

2.1. Environment affected by the NES Plan. The RepOlt must provide a detailed description of the environment likely to be impacted by actions covered by the NES Plan, being those actions arising from development in the Molonglo Valley under the Stmcture Plan. This includes impacts to the environment arising from stormwater management measures (e.g. inundation and flow effects from water quality control dams/ponds/wetlands) for the proposed development area, and the constmction of any major infrastmcture associated with the development (e.g. bridge crossings of the Molonglo River). This description must identify the environmental assets and characteristics, including biophysical processes associated with the area set to be developed in the NES Plan and the surrounding telTestrial, riparian and aquatic environments (e.g. Kama woodlands; Molonglo River and riparian corridor) likely to be directly or indirectly impacted, including:

(a) components of biodiversity and maintenance of impOltant ecological processes; (b) listed threatened species under the Act and other protected and significant species; (c) a description of ecological communities, with specific reference to Threatened Ecological

Communities as listed under the Act (or ACT legislation) or other significant ecological C0111111unities;

(d) any physical environmental processes (e.g. fire) influencing the environmental characteristics of the site or sUlTounds, or influencing the potential impacts on the site or sUlTounds; including the impacts on any Ramsar sites; and

(e) indigenous, natural, and historic heritage values, including areas of potential heritage value.

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In addition the report will make specific reference to the environmental values contained in the lower Molonglo river corridor (to the confluence with the Murrumbidgee River), the area between and immediately surrounding the development area and identify whether development is likely to impact directly or indirectly on these values.

2.2 Project need and jnstification. The Report must provide the social and economic justification to pursue urban development and related infrastructure under the NES Plan. The RepOJ1 should include an analysis of the socio­economic issueslimplications associated with the development and how these might relate to, or integrate with, environmental values of the NES Plan area and the choice of altemative development design options to maintain or enhance these values.

2.3 Planning for ecologically sustainable development and biodiversity conservation. The RepOJ1must describe theplanning and design process that has lead to the NES Plan, with particular reference to the treatment of environmental and cultural heritage through assessment and selection of altemative plans and designs to maximise environmental, social and economic outcomes. To this end the Report must describe how planning and design processes underpinning the NES Plan have responded to national strategies developed by the Council of Australian Govemments, including for:

(a) water quality management; (b) environmental flows and water for ecosystems; (c) pests and weeds; (d) managing native vegetation; and (e) biodiversity conservation, including climate change adaptation.

The Report must identify and outline ACT plans and strategies that seek to achieve ecologically sustainable development and biodiversity conservation outcomes in the NES Plan area (e.g. fire management). The Report must also set out:

(I) actions to maintain or enhance biodiversity, having regard for species diversity and abundance, and the extent, condition, connectivity and protection of native vegetation; and

(g) how the NES Plan will affect implementation of actions in identified plans and strategies, and how those plans and strategies will be modified to achieve their objectives in the NES Plan area.

3. PREVENTING IMPACTS ON MATTERS OF NATIONAL ENVIRONMENTAL SIGNIFICANCE, AND PROMOTING THE PROTECTION AND CONSERVATION OF BIODIVERSITY AND HERITAGE VALUES.

3.1 Nature and significance of impacts. The Repol1 must include a comprehensive analysis of the potential impacts of the NES Plan on the environment (with specific reference to matters of national environmental significance), areas of high biodiversity and indigenous or non-indigenous heritage value. The analysis must include:

(a) areas potentially eligible for listing as matters of national environmental significance; (b) a description of potential impacts, including anyindirect impacts; (c) an assessment of whether any impacts will be short, long term or irreversible, local or

regional, discrete or cumulative, or exacerbated by the likely impacts of climate change;

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(d) an assessment of the scientific confidence associated with the likelihood and consequence(s) of potential impacts, including reference to technical data and other information relied upon in identifying and assessing those impacts; and

(e) an analysis of potential impacts on matters of national environmental significance - with reference to the EPBC Act Policy Statements and Guidelines,

3,2 Management, mitigation or offset of likely impacts The RepOlt must identify and describe the management measures (e.g. works, on-ground actions) and control actions, (e.g. regulatory interventions, area-specific management plans, market based instruments) that will be implemented prior, during or post development to prevent, minimise, rehabilitate or offset the potential environmental impacts caused by implementing the actions or classes of actions (Clause I (dll with specific reference to matters of national environmental significance.

For management measures and control actions, the RepOlt must set out: (a) the whole of ACT Government approach taken to addressing the impacts of the actions or

classes of actions; (b) the predicted effectiveness of the proposed measures and actions. Claims regarding

effectiveness of measures and actions must be substantiated, including a description of the methodology used to formulate these predictions/confidence limits;

(c) maintenance or operational requirements associated with proposed management measures; (d) compliance and enforcement requirements associated with proposed control actions; (e) the agency or agencies responsible for each management measure and/or control action

including the budgetary, regulatory and anticipated or proposed programmatic arrangements to implement measures and actions, compliance and enforcement, and maintenance or operational requirements; and

(f) timelines and accountabilities for implementing proposed measures and actions, and associated compliance and maintenance requirements.

3.3 Addressing uncertainty and managing risk The Report must identify key uncertainties associated with implementation of the management measures and control actions, for example where there is a high level ofuncel1ainty related to:

(a) the timing of uptake or effectiveness of management measures; or (b) the timing and nature of control actions, or their enforcement and compliance.

For key uncertainties the Rep0l1must set out: (c) responses by the ACT Government to ensure an acceptable level of cel1ainty, and therefore

actively manage risks associated with implementing the actions or classes of actions (Clause I (d));

(d) when measures and actions will be reviewed in light of anticipated new information; and (e) how and when NES Plan implementation will be revised in light of new information.

3.4 Reasonable assurance The Report must include a "reasonable assurance statement' that gives a high degree of confidence that the management measures and control actions will be implemented, and that the impacts of actions or classes of actions (Clause led)) will not result in unacceptable impacts on matters of national environmental significance.

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4. ADAPTIVE MANAGEMENT, AUDITING AND REPORTING. The Report must set out monitoring and public reponing processes, effective during the development period. that describe the NES Plan's implementation. and associated management measures and control actions, and how unce11ainty is being targeted and addressed during NES Plan implementation. The Report must also set out commitments for independent, third pm1y auditing of the NES Plan implementation.

5. REVIEW, MODIFICATION AND ABANDONMENT The Rep0l1must identify and analyse the likely circumstances and procedures that may result in the review, modification or abandonment of the NES Plan or this Rep0l1, such that changing community standards or new information relating to the impacts of the NES Plan may be introduced. reassessed and accounted for in management of the development area.

6. ENDORSEMENT CRITERIA The Report must describe how the NES Plan together with any associated management arrangements meets the criteria set out in Attachment C Endorsement Criteria.

7. INFORMATION SOURCES For information used in the assessment, the Report must state:

(a) the source of the information; (b) how recent the information is; (c) how the reliability of the information was tested; and (d) what unce11ainties are in the information.

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Attachment C Strategic Assessment - Endorsement Criteria

The EPBC Act permits the Minister to approve the taking of actions or classes of actions in accordance with an endorsed policy, plan or program (section 146B). The effect of such a decision is that the approved actions or class of actions would not need further approval from the Minister under the EPBC Act.

When deciding whether to endorse a policy, plan, or program the Minister must be satisfied that the assessment report adequately addresses the impacts to which the Agreement relates, and that any recommendations to modify the policy, plan or program have been responded to appropriately.

In determining whether or not to endorse the Plan the Minister will have regard to the extent to which the Plan meets the Objects of the EPBC Act. In pm1icular, that it:

• protects the environment, especially matters of national environmental significance; • promotes ecologically sustainable development; • promotes the conservation of biodiversity; and • provides for the protection and conservation of heritage.

Accordingly, the Plan and Final Rep0I1 should: • avoid actions from being taken in any location that have an impact on matters of national

enviromllental significance or of high biodiversity or heritage value; or • where potential impacts can not be avoided, then the impacts should be reduced to an

acceptable level; and • provide for effective management, mitigation or offset of the likely impacts; and • contain an etlective system of adaptive management that is independently audited and

publicly reported.

The extent to which the Plan and Final Rep0I1 adequately incorporates the precautionary principle and the other principles of ecologically sustainable development, in particular, intergenerational equity in relation to areas containing matters the Minister considers have a high likelihood of being potentially eligible for listing as matters of national environmental significance, will also be considered.

In arriving at a decision to approve an action or a class of actions the Minister must act in accordance with his obligations, including give consideration to:

• issues relevant to any matter protected by a provision of the Act; and • social and economic matters.

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