EPBCA and Translocating the Devil “Down Under”

Vol. 27 No. 2

Craig T. Donovan is an attorney-advisor in the Branch of Public Lands of the U.S. Department of the Interior’s Division of Land and Water Resources and a member of the editorial board of Natural Resources & Environment. The views expressed in this article by the author are in his personal capacity only and do not necessarily represent those of the Office of the Solicitor, the Department of the Interior, or the United States.

The gradual isolation of Australia from Antarctica about 45 million years ago as a result of continental drift allowed for the extensive development of unique and unusual ecosystems and biodiversity on the Australian mainland and its nearby islands. In order to protect Australia’s rich ecological and cultural heritage, the Australian government tries to balance the protection of important environmental and cultural values with economic and social needs through a statutory framework and decision-making process based on ecologically sustainable development principles. The main Australian environmental statute for this purpose is the Environment Protection and Biodiversity Conservation Act 1999 (EPBCA). EPBCA provides for the protection of parts of the Australian environment that constitute matters of national environmental significance (NES). EPBCA, 1999, Ch. 1, Part 1 (Austrl.).

EPBCA requires that a person must not take an action that has, will have, or is likely to have a significant impact on a matter of NES without approval from the Australian Government Minister for Sustainability, Environment, Water, Population and Communities (the Minister). Id. Ch. 2, Part 2, Sec. 11. The Act covers eight (8) “matters of NES”: world heritage properties, national heritage places, wetlands of international importance, listed threatened species and ecological communities, listed migratory species protected under international agreements, Commonwealth marine areas, the Great Barrier Reef Marine Park, and nuclear actions (including uranium mines). Id. Ch. 2, Part. 3, Div. 1. In addition, the Act covers proposed actions that will have a significant impact on Commonwealth land or undertaken by a Commonwealth agency. Id.

The Act defines “action” broadly as a project, development, undertaking, activity or series of activities, or an alteration or modification to any project, development, undertaking, or existing infrastructure. Id. Ch. 8, Part 23, Div.1, Subdiv. A, § 523; Australian Government, Matters of National Environmental Significance, Significant Impact Guidelines 1.1 at 2. An “action” may include construction, expansion, alteration or demolition of buildings, structures, infrastructure, or facilities; industrial processes; mineral and petroleum resource exploration and extraction; storage or transport of hazardous materials; waste disposal; earthworks; impoundment; extraction and diversion of water; agricultural activities; aquaculture; research activities; vegetation clearance; culling of animals; and dealings with land. In addition, actions may have both beneficial and adverse effects on the environment. Adverse impacts, however, are the main focus when determining whether approval is required under EPBCA. Significant Impact Guidelines 1.1 at 2.

EPBCA’s environmental decision-making process consists of two parts: (1) the referral stage and (2) the assessment stage. Id. Ch. 4, Part 7, Div. 1 and Part 8. During the referral stage, the proponent of the action who believes that the project is likely to have an impact on a matter of NES, or a governmental body aware of such a proposal, may refer the proposal to the Minister. The proponent fills out a referral form and submits it to the Commonwealth’s Department of the Environment, Water, Heritage and the Arts. The referral form will identify the proponent and briefly describe the proposed action, the project location, the nature and extent of any potential impacts, and proposed mitigation measures. To determine whether an action will have, a significant impact, the proponent should consider the “sensitivity, value and quality of the environment which is impacted, as well as the intensity, duration, magnitude, and geographic extent of the impacts.” Significant Impact Guidelines 1.1 at 3. A “significant impact” is “an impact which is important, notable, or of consequence, having regard to its context or intensity” and has a real chance of occurring. Id. If the Minister decides that the proposed action will, or is likely to have a significant impact on a matter of NES, then the action becomes a “controlled action” subject to the assessment stage and approval. During the assessment stage, the Minister will specify the particular “matters of NES” impacted by the proposed action and choose a proper assessment method. The Minister may conduct the assessment by using a process established by bilateral agreement, specified in a declaration or accredited by a Minister; information included in the referral; preliminary documentation provided by the proponent; a public environmental report; an environmental impact statement; or a public inquiry. Id. Ch. 4, Parts 7, Div. 2, § 75 and Part 8 and 7, Div. 1, § 80. Once the assessment process is completed, the Minister must decide whether to approve or not approve the action, and what conditions should attach to the decision. Failure to comply with EPBCA’s requirements may result in civil penalties of up to $5.5 million in fines and criminal penalties of imprisonment up to seven years. Significant Impact Guidelines 1.1 at 2.

Recently, the Australian government used EPBCA’s decision-making process in its efforts to protect the severely endangered Tasmanian devil (Sarcophilus harrisii). This carnivorous marsupial is threatened with extinction due to the emergence of an infectious cancer known as Devil Facial Tumor Disease (DFTD). DFTD was first identified in 1996 and continues to spread rapidly throughout populations of this animal. David Quammen, What’s Killing the Tasmanian Devil?, Yale Env’t 360 at http://e360.yale.edu. DFTD causes the development of large tumors and lesions around the face and neck of the devil. The tumors obstruct the animal’s ability to eat and eventually metastasize throughout the devil’s body. The disease is contracted through biting and social contact when devils compete for mates, food, and other resources. The DFTD tumor cells can be transferred between animals without immune recognition. The devil’s low genetic diversity and the tumors’ own evolutionary adaptive mechanisms may allow DFTD to survive without detection in the tissues of a new host. Alexandre Kreiss et al., Allorecognition in the Tasmanian Devil (Sarcophilus harrisii), an Endangered Marsupial Species with Limited Genetic Diversity, Plos One, Vol. 6, Issue 7 (July 2011). Ninety-five percent of Tasmanian devil populations with DFTD have declined with no indication that the spread of the disease is slowing. Scientists predict that DFTD will spread throughout all of the Tasmanian devil’s habitat within the decade and the species may become extinct within 20 years. Id. at 1.

In order to establish a healthy, viable insurance population in the wild for this endangered species, Tasmania’s Department of Primary Industries, Parks, Water and Environment (the Department) has proposed a management action that will separate a number of DFTD-free Tasmanian devils from those infected with the disease, and translocate the DFTD-free individuals to Maria Island National Park located off the southeast coast of Tasmania. Up to fifty devils will be translocated initially to the island after undergoing extensive screening for behavioral and genetic suitability and health examinations to minimize the risk of introducing new diseases to Maria Island. In December 2011, the Department referred the translocation proposal with a detailed risk assessment to the Minister and invited public comment on the document. EPBC Referral No. 2011/6216 (Dec. 7, 2011).

The Department’s referral of proposed action and risk assessment analyzed several possible impacts that Tasmanian devil translocation may have on matters of NES on Maria Island. For instance, the translocation area includes the important Australian convict site of Darlington Probation Station. This site is one of the twelve Australian penal sites listed as a World Heritage Property by UNESCO and a National Heritage Place. EPBC Referral No. 2011/6216, Risk Assessment for Proposed Translocation of Tasmanian Devils to Maria Island (risk assessment) Aug. 2011 at 34. Some of the potential impacts included the possibility that Tasmanian devils could build dens beneath the station’s historic buildings resulting in weakened foundations. In addition, the construction of temporary fencing or enclosures around the station’s perimeter could alter the station’s structural framework. Id. at 35–36. The translocation area also contains several nationally listed endangered and threatened species like the common wombat (Vombatus ursinus) and the broad-toothed stag beetle (Lissotes latidens) and important listed migratory and marine species like the white-bellied sea-eagle (Haliaeetus leucogaster) and the little penguin (Eudyptula minor). The risk assessment identified several potential impacts including the possibility that devils could directly compete with the common wombat for habitat and increasingly prey on juveniles, which might result in a decrease in the breeding success and a decline in the wombat’s population numbers on the island in the future. There was also the possibility that the translocation could result in habitat loss for the stag beetle as devils build dens in logs inhabited by the beetles. Moreover, the little penguin could undergo increased predation from devils, which might result in a decline in the penguin’s population and alter the penguin’s nesting sites and behavior on the island. Furthermore, nesting of the white-bellied sea-eagle could be impacted by the translocation through direct competition of Tasmanian devils with eagles for prey sources, and noise from traffic and road construction. Id. at 50–51, 69-70, 77–79, 88–89.

On December 22, 2011, the Minister found that the proposed action was not a controlled action and therefore required no further assessment under EPBCA before the action could proceed. Notification of Referral Decision, EPBC 2011/6216 (Dec. 22, 2011). The proposed translocation was highly unlikely to significantly impact the Darlington Probation Station because the Department would continuously monitor for any potential damage in the event of devil nesting under historic buildings. Devils would also be trapped and removed from the structures. In addition, any construction associated with the translocation would not be adjacent to or obstruct important sight lines of the buildings within the property. Moreover, the potential impacts on these listed species were relatively moderate to low. The Department would conduct ongoing monitoring of the devils and their effect on the island’s listed species and implement mitigation measures if needed.

Although EPBCA has improved protection of matters of NES in Australia by increasing public accountability and making information available on proposed development, the Act has some critical shortcomings. These shortcomings and some recommendations for statutory reform are highlighted in a recent government-commissioned, independent review of the Act. One shortcoming is EPBCA’s focus on direct and immediate impacts from an individual project only, rather than assessing the cumulative or synergistic effects from an individual project collectively with other environmental stressors affecting listed endangered or threatened species and their habitat. A failure to analyze these effects may have a significant impact on listed species because multiple environmental stressors may mutually reinforce each other so that the total effect of harm on listed species is greater than the sum of a project’s individual effects. Another shortcoming is the Australian government’s heavy reliance under EPBCA on species-specific or project-specific assessment approaches, rather than on landscape-scale assessment approaches to biodiversity conservation. Using a landscape-scale assessment approach could better address multiple environmental impacts over longer time periods and larger areas, and maximize conservation outcomes by focusing on impact effects and the interconnectedness of ecosystems, organisms and ecological processes. Reorienting EPBCA’s focus toward a more landscape-scale assessment approach to biodiversity conservation that incorporates analysis of synergistic effects would improve environmental protection, and contribute to the future success of conservation efforts to save the Tasmanian devil down under.


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