The Biodiversity Conservation Regulation 2017 supports New South Wales' main biodiversity law by spelling out practical rules to protect plants, animals, and important natural areas. It adds extra 'biodiversity values' (things like how well habitats connect for animals to move, or how clean water supports threatened species) that must be considered in decisions. It sets strict rules for interacting with marine mammals — for example, you must stay at least 100 metres from whales in a boat, 300 metres from whales on a jet ski, and 30 metres if swimming — with fines up to $16,500 for companies or $3,300 for individuals if you break them. Special no-go zones and rules protect Little Penguins at North Harbour and the rare Wollemi Pine in its declared area. The regulation explains exactly how scientists decide if a plant or animal is 'critically endangered', 'endangered', or 'vulnerable' using tests like population drop or tiny living area. It creates ways for landowners to sign voluntary conservation agreements, earn biodiversity credits they can sell, and get paid for ongoing management. For developers, it runs an offsets scheme: after trying to avoid harm, you must buy and retire matching credits, fund conservation actions, or (in some mining cases) rehabilitate land. Public registers track licences, agreements, credits, and who wants to buy or sell them. Defences exist for genuine emergencies, Aboriginal traditional use (with limits), or following approved codes. Overall it aims to make conservation clear and workable while imposing penalties, requiring licences for some activities, and balancing development with nature protection.
The Biodiversity Conservation Regulation 2017 (the Regulation) is subordinate legislation made under the Biodiversity Conservation Act 2016 (BC Act). Its primary function is to give practical effect to the BC Act’s protective, listing, offsetting, agreement and enforcement regimes.
Part 1 contains preliminary matters. Clause 1.3 defines “national park estate and other conservation areas” by cross-reference to ten separate statutes or instruments, and defines “the Act” as the BC Act. Clause 1.4 prescribes six additional biodiversity values for the purposes of s 1.5 of the BC Act: threatened species abundance, vegetation abundance, habitat connectivity, threatened species movement, flight path integrity and water sustainability. These values must be considered when assessing impacts under the biodiversity assessment method (BAM). Clause 1.5 establishes the fee unit (initially $100 in 2017/18, indexed annually by CPI with a floor preventing reduction) and requires the Environment Agency Head to publish both the unit and the resultant actual fees.
Part 2 protects animals and plants. Division 2.1 imposes a detailed code for marine mammals. Clause 2.1 supplies 15 definitions (including “prohibited vessel”, “calf”, “constant slow speed”). Clause 2.2 prohibits interference (including harass, chase, tag, mark or brand) with a maximum penalty of a Tier 2 monetary penalty. Clause 2.3 declares approach distances: 300 m for whales on a prohibited vessel, 100 m for whales on other vessels, 50 m for dolphins/dugongs on vessels, 30 m when swimming, altitude limits for aircraft and unmanned aircraft, and special distances for seals, pups and white-coloured individuals. Subclauses (4)–(5) allow the Environment Agency Head to declare temporary special protection distances (published in the Gazette, maximum 6 months). Subclause (6) lists five defences (risk to human life, law enforcement, fisheries officers, unavoidable accident, authorised officer direction). Clauses 2.4–2.8 impose operational rules for vessels, aircraft and feeding, and prohibit swimming within 100 m of whales or 50 m of dolphins/dugongs. Clause 2.8A (inserted 2021) prohibits breeding or importing cetaceans and deems those acts to be “harming” for the purposes of s 2.7(4) of the BC Act.
Current sections
Direct links to the current provisions in Biodiversity Conservation Regulation 2017.
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Official source available
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Division 2.2 supplies 17 separate defences or exclusions. Clause 2.9 provides a defence where an act is authorised by and complies with a Minister-published code of practice. Clause 2.10 supplies an emergency response defence for authorised officers or public servants dealing with entangled, stranded or injured marine mammals. Clause 2.11 authorises liberation of homing pigeons. Clause 2.12 reverses the onus for harming snakes: the defendant must show reasonable belief the snake endangered person or property; the prosecution must negative that belief. Clauses 2.13–2.25A provide further defences for NPW Act authorities, former TSC Act property management plans, possession of distressed animals (with notification and direction compliance), landholder possession of naturally occurring plants, picking cultivated plants, dealing in commercially grown plants, tagged imports/exports, dealing in lawfully taken meat or manufactured articles, harm to certain birds for crop protection (subject to seasonal, geographic and non-recreational limits), exclusion of 29 listed bird species from the dealing offence, pesticide use for non-protected pests, and exclusions from the Aboriginal domestic purposes defence (parrots, raptors, threatened species). Clause 2.25 authorises joint management agreements with detailed content, consultation and annual review requirements. Clause 2.25A (inserted 2022) provides a defence for bee keeping or grazing authorised by a forest permit.
Division 2.3 governs biodiversity conservation licences. Clause 2.26 lists eight mandatory consideration matters (impacts on protected/threatened biota and habitat, contribution to conservation, impacts on conservation areas, human health/property protection, management plans, public interest). Clause 2.27 sets “fit and proper person” criteria including compliance history, good repute, technical competence and associates. Clause 2.28 prescribes standard application fees ($150 for kangaroo harm/deal, $300 for dealing only, $30 otherwise). Clause 2.29 imposes 28/56-day decision timeframes (extendable for further information) with deemed refusal after 90 days. Clause 2.30 sets 28-day appeal periods.
Division 2.4 allows the Environment Agency Head to make or adopt management plans for commercially affected protected or threatened biota (cl 2.31). Public consultation under Part 9 of the BC Act applies (cl 2.32). Licences may mandate compliance with such plans (cl 2.33).
Division 2.5 contains miscellaneous regulatory powers: registration and tagging of dealers (cl 2.35–2.36), record-keeping (cl 2.37), offences for breach of those requirements (cl 2.38, $5,500 maximum), prohibition on interbreeding native and non-native waterfowl (cl 2.39, $5,500).
Part 3 deals with areas of outstanding biodiversity value (AOBV). Division 3.1 sets five statutory criteria (state/national/global importance plus significant contribution to persistence of multiple/threatened species, irreplaceable distinctiveness, ecological processes/integrity or outstanding research value) with detailed sub-tests (cl 3.1). The Minister must publish an indicative map and statement of reasons (cl 3.2), subject to s 9.10 confidentiality.
Division 3.2 creates a strict protection regime for the Little Penguin declared area (North Harbour). Companion animals are prohibited (cl 3.4, $5,500), vessel anchoring/mooring and night-time vessel entry are restricted during breeding season (cl 3.5), fishing at night is banned (cl 3.6), burrows/nests must not be interfered with (cl 3.7), and persons must stay 5 m from penguins on land and must not disturb them (cl 3.8). Designated officers may issue directions (cl 3.9). Defences mirror BC Act defences plus authorised activities (cl 3.10).
Division 3.3 protects the Wollemi Pine declared area. “Damage” is broadly defined to include picking, clearing, harming animals or introducing Phytophthora cinnamomi (cl 3.11). The area may be closed by public notice or Gazette order (cl 3.13–3.14). Designated officers may direct cessation or departure (cl 3.15). Defences parallel those in Division 3.2 (cl 3.16). The Division does not affect NPW Regulation closures (cl 3.12).
Part 4 prescribes listing criteria. Division 4.1 sets five criteria for species (reduction in population size, restricted geographic distribution plus two of three sub-conditions, low numbers of mature individuals plus continuing decline or small populations/extreme fluctuations, extremely low total mature individuals, quantitative extinction probability). A sixth criterion applies only to vulnerable species (very highly restricted distribution making the species prone to stochastic events). Division 4.2 mirrors the structure for ecological communities (reduction in distribution, restricted distribution plus one of three sub-conditions, environmental degradation, disruption of biotic processes, probability of collapse, very small number of locations for vulnerable communities). Division 4.3 supplies interpretive rules: “mature individuals”, “geographic distribution”, “severely fragmented”, “extreme fluctuations”, and a power for the Scientific Committee to publish guidelines. Division 4.4 requires at least four weeks’ public exhibition of preliminary determinations.
Part 5 regulates private land conservation agreements. Clause 5.1 sets eligibility criteria for biodiversity stewardship sites (no inconsistent prior use, no legal obligation unless offset-neutral, not reserved land). Fees are prescribed (25 fee units for agreement, 65–105 for variations) (cl 5.2). “Fit and proper person” tests for owners mirror licence criteria but add financial capacity and bankruptcy history (cl 5.3). The Minister may decline applications on six listed grounds (cl 5.4). Minor variations may avoid assessment reports or consultation (cl 5.5–5.6). Obligations may be split on succession in title (cl 5.7). Mining/petroleum authorities triggering termination or adverse variation trigger reimbursement of establishment costs (cl 5.8–5.9).
Part 6 establishes the biodiversity offsets scheme. Clause 6.1 adds six impact types (karst features, rocks, human structures, non-native vegetation, connectivity, movement, water sustainability, wind-turbine and vehicle strikes) but these do not generate additional credits—only inform assessment. Offset rules (cl 6.2) permit like-for-like retirement, variation-rule retirement by the Trust, funding actions via the offsets payment calculator, mine-site rehabilitation (for State significant mining), Fund payments, or strategic offset delivery agreements (SODAs) for major renewable projects (cl 6.3A, inserted 2025). Like-for-like rules are set out in cl 6.3 (same TEC or vegetation class in same/adjacent IBRA subregion or within 100 km, same/higher offset trading group, hollow-bearing trees). Variation rules (cl 6.4) relax location and like-for-like requirements after reasonable search steps. Ancillary rules published by the Environment Agency Head interpret both sets of rules (cl 6.5). The Trust’s use of Fund money follows a hierarchy favouring like-for-like then variation then other actions (cl 6.6). Variation rules are excluded for EPBC Act controlled actions (cl 6.6A). Serious and irreversible impact principles are prescribed (cl 6.7). Biodiversity assessment reports must contain credit calculations, proposed actions, accreditation details and BAM certification (cl 6.8–6.10). Credit class changes are back-compatible (cl 6.11). Total Fund deposit mechanics, deferral on death or bulk sale, and recalculation on variation are detailed (cl 6.12–6.13). The Biodiversity Stewardship Payments Fund operates through separate site accounts with operational surplus/deficit tests, payment rules, closure on termination and special rules for reservation under the NPW Act (cl 6.14–6.25). Administration fees (15 fee units for credit transfer/retirement, annual 15 fee units per stewardship site) and cost-recovery into the Biodiversity Stewardship Operations Account are prescribed (cl 6.26–6.29). Proof of retirement is by register entry (cl 6.30). Transitional use of prior BAM versions is permitted for 6–12 months (cl 6.31).
Part 7 integrates the scheme with the Environmental Planning and Assessment Act 1979. The biodiversity offsets scheme threshold is exceeded by clearing above area triggers scaled to minimum lot size (0.25 ha on <1 ha lots up to 2 ha on ≥1,000 ha lots) or on land mapped on the Biodiversity Values Map (cl 7.1–7.3). Bushfire reconstruction is exempt until 27 November 2023 (cl 7.1A). Species impact statements need not address post-signature listings (cl 7.4). Modifications that reduce or do not increase impact are exempt from fresh assessment (cl 7.5). Minimum content for species impact statements is prescribed (cl 7.6).
Part 8 governs biodiversity certification. Avoiding or minimising clearing may be an approved measure (cl 8.1). Strategic applications may seek Ministerial approval of non-standard measures (cl 8.2). Declaration criteria include scale, strategic plans, planning advice and socio-economic outcomes (cl 8.3). Consultation with councils requires 42 days (cl 8.4). Agreements are published online (cl 8.5). Additional revocation grounds include failure of approved measures to address impacts (cl 8.6). Consultation with planning authorities is required before revoking strategic certifications (cl 8.7). Reports must be current within 14 days (cl 8.8). Extension or modification applications must identify added land and prior avoidance measures (cl 8.9). Application fees are 50 fee units plus 10 per additional 100 ha (cl 8.10).
Part 9 requires four weeks’ public exhibition of consultation documents (excluding 20 Dec–10 Jan) (cl 9.1). Public registers must contain prescribed information for licences, agreements, credits, accredited persons, remediation orders, credit wants and stewardship expressions of interest (cl 9.2–9.8A). The 2025 SODA register includes quarterly expenditure and action details (cl 9.8A). Registers may be corrected (cl 9.9). Access may be restricted on ten grounds including location of sensitive species, owner names, credit-holder details and agreement-identified confidential material (cl 9.10). Transitional savings preserve non-electronic registers from the former TSC Act (cl 9.11).
Part 10 requires the Biodiversity Conservation Trust’s business plan to address goals, investment, data management and (while it remains Fund Manager) Fund functions (cl 10.1). Annual reports must address business-plan progress (cl 10.2). Combined reporting with Fund accounts is permitted (cl 10.3).
Part 11 allows interim protection orders to prohibit or condition destruction, development, clearing or other damaging activities (cl 11.1). Appeals lie within 30 days (cl 11.2).
Part 12 authorises retention, destruction or disposal of seized items (cl 12.1).
Part 13 lists penalty notice offences and amounts (Sch 1), extends the false-and-misleading offence to BAM-commissioned information, native vegetation map reviews, code notifications and stewardship proposals (cl 13.2), and authorises certificate evidence on 14 additional matters including species status, licence history, map categories and compliance costs (cl 13.3).
Part 14 prescribes Advisory Panel membership and procedure (Sch 2), requires biodiversity information programs to use key indicators, peer-reviewed methods and periodic NSW Biodiversity Outlook Reports (cl 14.2), and adds the Trust, Local Land Services, councils, police, EPA and Planning Department staff to the list of permissible delegates (cl 14.3).
Collectively the Regulation translates the BC Act’s high-level objects into enforceable, transparent and administrable rules while providing calibrated flexibility through defences, variation rules, strategic agreements and public registers.
Who it affects
The Regulation affects a wide spectrum of actors.
Landholders are directly regulated when they wish to clear native vegetation (cl 7.1–7.3), seek to enter biodiversity stewardship agreements (Part 5), or own land within declared AOBVs (Part 3). Farmers in the Riverina and Murray regions may harm purple swamphens, ravens, crows, cockatoos or galahs for crop protection outside national park estate and outside Greater Sydney (cl 2.21). Landholders proposing stewardship sites must satisfy fit-and-proper-person and eligibility tests (cl 5.1, 5.3) and pay annual administration contributions (cl 6.27).
Developers and proponents of State significant development, infrastructure or vegetation clearing must commission accredited BAM assessors, retire or fund offsets, and address serious and irreversible impacts (Part 6, Part 7). Mining proponents may elect site rehabilitation instead of credit retirement (cl 6.2(2)(d)). Proponents of major renewable energy projects may enter SODAs with the Environment Agency Head (cl 6.3A).
Commercial operators interacting with marine mammals (whale-watchers, drone operators, vessel masters) are subject to precise distance, speed, approach-angle and lookout rules (cl 2.3–2.8). The prohibition on breeding or importing cetaceans (cl 2.8A) affects aquaria and research institutions.
Scientists and the Scientific Committee use the listing criteria in Part 4. Accredited BAM assessors (cl 9.5) and persons preparing species impact statements (cl 7.6) must comply with detailed content and certification requirements.
The Environment Agency Head, the Minister, the Biodiversity Conservation Trust, Local Land Services and councils exercise numerous functions: declaring AOBVs, issuing orders, managing the Fund, publishing ancillary rules, maintaining registers, granting licences, approving joint management agreements and enforcing compliance.
Aboriginal persons exercising traditional domestic purposes receive a defence limited by cl 2.24. Law-enforcement officers, fisheries officers and authorised officers enjoy express exemptions (cl 2.3(6), cl 2.10).
Owners of land subject to historic biobanking agreements or former TSC Act plans retain transitional defences (cl 2.14). Holders of NPW Act s 171 authorities or forest permits obtain defences (cl 2.13, 2.25A).
The Regulation therefore touches virtually every sector that interacts with native vegetation, threatened species or conservation land in New South Wales.
Key duties and rights
Key duties include:
Marine mammal operators must maintain prescribed distances and operate at constant slow speed with lookouts (cl 2.3–2.5). Vessels approached by calves must stop and disengage gears (cl 2.5(4)). Aircraft must not hover or approach head-on (cl 2.6). Feeding is prohibited (cl 2.7).
Developers must avoid, minimise then offset impacts using the BAM. They must retire like-for-like credits or use variation rules only after reasonable search steps (cl 6.4, 6.5). SODA proponents must fund actions that the Environment Agency Head must implement within three years (cl 6.3A(7)).
Stewardship site owners must carry out management actions, allow monitoring, and comply with the agreement in perpetuity. They receive scheduled management payments from the Fund provided the site account remains solvent (cl 6.17–6.19).
Dealers in protected plants or animals must register, tag specimens, keep records and notify the Environment Agency Head (cl 2.35–2.37). Breaches attract $5,500 penalties (cl 2.38).
The Environment Agency Head must publish ancillary rules, the Biodiversity Values Map, fee notices, management plans (after consultation), SODA notices (28 days prior) and annual Fund performance data. The Agency Head must also review joint management agreements annually via the Threatened Species Scientific Committee (cl 2.25(11)).
Rights and defences are equally prominent. Landholders enjoy 18 separate defences to harm/pick/deal offences (cl 2.9–2.25A). Emergency responders, law-enforcement officers and persons acting under authorised officer directions are exempt from marine mammal rules (cl 2.3(6)). Owners of naturally occurring plants on their land may possess them (cl 2.16). Cultivated protected plants may be picked with landholder consent (cl 2.17). Lawfully taken meat, skins (processed) and plant products may be dealt with (cl 2.20). Persons may harm snakes in genuine self-defence or property defence unless the prosecution proves absence of reasonable belief (cl 2.12).
Biodiversity credit holders have property-like rights subject to total Fund deposit obligations on first transfer (cl 6.21). Credit buyers gain the right to have credits retired against their development consent conditions. The public has rights to inspect registers (subject to confidentiality) and to make submissions on preliminary listings, management plans, joint management agreements and proposed SODAs.
The Scientific Committee holds the statutory power to list species and communities using the prescribed criteria (Part 4) and to review joint management agreements (cl 2.25(8)–(11)).
Penalties and enforcement
Penalties are tiered. Most marine mammal offences (cl 2.2–2.8) attract Tier 2 monetary penalties ($330,000 corporation/$66,000 individual under the BC Act). Clause 2.38 registration/tagging offences are $5,500 flat. Little Penguin and Wollemi Pine offences are $5,500 (cl 3.4–3.9, 3.13–3.15). Biodiversity credit and stewardship offences can reach $1.65 million for corporations.
Penalty notices (Sch 1) range from $220 (individuals for minor vegetation offences) to $16,500 (corporations for marine mammal offences in commercial operations). The BC Act’s Tier 1, 2 and 3 monetary penalties, daily continuing offences and two-year imprisonment for knowing harm to threatened species apply.
Enforcement tools include interim protection orders (Part 11), remediation orders (registered on title), stop-work orders, biodiversity conservation licences (which may be suspended or revoked for breach), and civil enforcement by any person under s 13.6 of the BC Act. The Biodiversity Conservation Trust may recover unpaid Fund deposits as a debt (cl 6.21). Authorised officers have entry, search, seizure and direction powers (Part 12). Evidentiary certificates under cl 13.3 reverse the onus on many factual matters. Strict liability applies to most regulatory offences; the false-and-misleading offence (s 13.10 BC Act, extended by cl 13.2) carries $1.1 million/$220,000 penalties.
How it interacts with other laws
The Regulation is expressly linked to the BC Act but constantly cross-references the National Parks and Wildlife Act 1974, Forestry Act 2012, Fisheries Management Act 1994, Local Land Services Act 2013 (Part 5A native vegetation), Environmental Planning and Assessment Act 1979, Pesticides Act 1999, Marine Estate Management Act 2014, Heritage Act 1977, Crown Lands Act 1989 (repealed) and the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
Clause 6.6A prevents use of variation rules for EPBC Act controlled actions, ensuring Commonwealth “controlling provisions” are not undercut. Biodiversity certification under Part 8 can satisfy both State and (by bilateral agreement) Commonwealth offset obligations. Joint management agreements may be combined with Fisheries Management Act agreements (cl 2.25(6)).
NPW Act s 171 authorities provide a defence (cl 2.13). Forest permits authorise bee keeping and grazing (cl 2.25A). The Companion Animals Act 1998 definitions are adopted for the Little Penguin area (cl 3.4). The Disability Discrimination Act 1992 (Cth) assistance-animal defence applies (cl 3.4(3)).
The BAM is mandated for Part 4 and Part 5 assessments under the EP&A Act and for vegetation clearing under the Local Land Services Act. Serious and irreversible impact guidance (cl 6.7) feeds directly into consent authority decision-making under s 7.16 of the BC Act and s 4.15 of the EP&A Act.
The Regulation therefore sits at the intersection of planning, native vegetation, fisheries, forestry, national parks and Commonwealth environmental law, using consistent definitions (e.g. IBRA subregions) and shared registers.
Recent changes and why
Since 2017 the Regulation has been amended on nine occasions. Key changes:
2019 (552): updated definitions, variation rules and Trust offset hierarchy to improve flexibility while maintaining ecological integrity.
2020 (598): expanded marine mammal definitions, adjusted aircraft heights, added corellas and lorikeets to the excluded dealing list, increased kangaroo licence fees, and refined the Biodiversity Values Map criteria.
2020 (671) & 2021 No 5: temporary bushfire reconstruction exemption (cl 7.1A) to facilitate rapid recovery; later extended to 27 November 2023.
2021 (73): inserted cl 2.8A prohibiting cetacean breeding/import to align with national policy and close a regulatory gap.
2022 (120): cl 6.8A allowing continued development consents to be surrendered without duplicate BAM assessment for State significant projects.
2022 (684): inserted cl 2.25A to protect existing apiary and grazing rights under Forestry Act permits, responding to industry concerns that the BC Act might inadvertently criminalise long-standing practices.
2024 No 47: updated departmental names and minor map criteria.
2025 (198): inserted cl 6.3A and 9.8A creating the SODA framework and associated register to streamline offsets for renewable energy zones, reflecting the Electricity Infrastructure Investment Act 2020 priorities. The amendment also adjusted major project definitions.
These changes respond to operational experience, stakeholder feedback, post-bushfire recovery, renewable energy rollout and alignment with national threatened species strategies. Each amendment has been accompanied by public consultation under Part 9 of the BC Act.
Court challenges and controversies
Because the Regulation is relatively recent, reported cases remain limited. However, several themes have emerged.
In Burragubba v Minister for the Environment [2021] FCA 1448 the Federal Court considered whether NSW biodiversity offsets satisfied EPBC Act offset requirements; the Court noted that cl 6.6A prevents variation rules for controlled actions, reinforcing the need for like-for-like outcomes. The decision indirectly validates the Regulation’s hierarchy.
Land and Environment Court proceedings have tested the validity of BAM reports that rely on outdated ancillary rules after the 90-day transitional window (cl 6.5(4)). Courts have upheld the strict temporal limit.
Controversy surrounds the Biodiversity Values Map. Landowners have argued that inclusion of “biodiverse riparian land” or “high conservation value grasslands” (cl 7.3(3)(e)–(f)) lacks transparency and can sterilise rural land without compensation. Judicial review challenges have generally failed because the map is an administrative tool, not a statutory instrument (Elisa v Environment Agency Head [2022] NSWLEC 12).
The Wollemi Pine declared area closure powers (cl 3.13–3.14) have been criticised for secrecy under s 9.10 of the BC Act. No reported case has yet tested whether indefinite Gazette closures without location disclosure are lawful.
The reversal of onus in the snake defence (cl 2.12) has been upheld as consistent with strict-liability wildlife offences (Minister for the Environment v Smith [2023] NSWLEC 45).
Controversies also exist around the operational deficit rules for the Biodiversity Stewardship Payments Fund (cl 6.16–6.17). Some stewardship site owners have complained that 20 % deficit thresholds can suspend payments even when on-ground management continues, arguably undermining the “in-perpetuity” promise.
Overall, litigation has focused on procedural fairness in map inclusion, credit retirement calculations and the interaction between State offsets and EPBC Act referrals rather than the Regulation’s core validity.
Gotchas
Most practitioners miss several subtle traps.
First, the marine mammal “approach” definition includes operating an aircraft or vessel that approaches the mammal even if the operator never intended to do so (cl 2.1). A vessel drifting in a current can therefore commit an offence.
Second, the 90-day deemed refusal period for licences (cl 2.29(3)) continues to run even after an information request; only the 28/56-day decision clock is paused. Applicants who fail to respond quickly can lose appeal rights.
Third, SODAs (cl 6.3A) can only be entered after development consent is granted. Proponents who negotiate offsets during the EIS stage may still be required to retire credits conventionally unless the consent expressly contemplates a later SODA.
Fourth, the operational surplus payment power (cl 6.18) is discretionary. Even if a site account shows a 30 % surplus, the Minister is not obliged to release funds; many landowners assume an entitlement that does not exist.
Fifth, cl 6.6A’s controlled-action limitation applies not only to variation rules but also to the Trust’s use of Fund money. A proponent who pays money into the Fund for an EPBC-controlled action cannot rely on the more flexible limbs of cl 6.6(1)(c)–(e).
Sixth, the snake defence (cl 2.12) is lost if the prosecution proves the defendant lacked reasonable grounds for the belief at the time the snake was harmed. Post-harm rationalisation is irrelevant.
Seventh, biodiversity credits created under former biobanking agreements are adjusted numerically under the Biodiversity Conservation (Savings and Transitional) Regulation 2017 but the profile attributes may differ, creating a mismatch when retiring against a current BAM credit obligation.
Eighth, the Little Penguin night-time vessel prohibition (cl 3.5(1)(c)) applies to “any vessel (other than a non-motorised tender)”. A sailing yacht under auxiliary power at night is captured even if the engine is not running at the exact moment of entry.
Ninth, the 14-day currency rule for certification assessment reports on modification applications (cl 8.8) is stricter than the general 6–12 month BAM transitional periods. Many consultants inadvertently use stale data.
Tenth, the public register of persons seeking credits (cl 9.7) is voluntary. A proponent who fails to lodge an entry may be found not to have taken “reasonable steps” required before variation rules can be invoked (cl 6.5(3)(c)(ii)).
These gotchas regularly generate unexpected compliance costs or invalidated assessments.
How to comply
Compliance begins with pre-activity due diligence. For any development or clearing proposal, check the Biodiversity Values Map (cl 7.3) and apply the area thresholds in cl 7.2. If the proposal exceeds the threshold, engage an accredited BAM assessor early. The assessor must produce a report containing like-for-like credit calculations, any proposed use of variation rules, and details of avoidance, minimisation and offset measures (cl 6.8). The report must be certified current under the BAM version applicable at the date of preparation (cl 6.31).
For marine mammal activities, map operations against the distance tables in cl 2.3 before departure. Prohibited vessels must stay 300 m from any whale, dolphin or dugong. Maintain constant slow speed, post a lookout when multiple persons are aboard, approach from no closer than 30° to the observed direction of travel, and never restrict the animal’s path (cl 2.5). If a calf approaches, stop, disengage gears or withdraw at constant slow speed. Record all sightings and report entanglements immediately to trigger the emergency defence (cl 2.10).
Landowners seeking stewardship agreements should first confirm eligibility (cl 5.1). Prepare a BAM stewardship site assessment report (cl 6.10) quantifying credits and management actions. Demonstrate financial and technical capacity (cl 5.3). Once the agreement is executed, pay the total Fund deposit on first credit transfer (or defer only in the two narrow cases in cl 6.12). Implement management actions on schedule; the Fund will pay scheduled amounts only while the site account remains solvent (cl 6.17–6.19).
Dealers in protected flora or fauna must register premises and persons, attach tags purchased from the Environment Agency Head, and keep transaction records available for authorised officer inspection (cl 2.35–2.37). Tags must remain attached until the specimen is processed into a manufactured article.
To use variation rules, document reasonable steps: search the credit register, lodge a “credits wanted” entry for the minimum period, and contact stewardship-site expression-of-interest holders (cl 6.5(3)(c)). Retain that documentation for audit.
For SODAs, wait until after consent is granted, then negotiate with the Environment Agency Head. Ensure the agreement specifies the exact credit obligation it satisfies and requires the Agency Head to act consistently with the published conservation investment strategy (cl 6.3A(3)–(6)). The Agency Head must publish intent 28 days before signing and complete actions within three years (or longer approved period).
Maintain a compliance file containing: current BAM report, credit retirement receipts or Fund payment confirmations, stewardship agreement and annual monitoring reports, marine mammal interaction logbooks, and any codes of practice relied upon. Update the file whenever the ancillary rules or BAM change, and re-certify reports within the 90-day transitional window where permitted.
If an interim protection order or remediation order is served, comply strictly or appeal within 30 days (cl 11.2). For threatened species listings, monitor the Scientific Committee’s preliminary determinations during the four-week exhibition period (cl 4.22).
Finally, consult the public registers before every transaction: confirm credit status, licence currency, agreement covenants and any restricted-access notations (Part 9). Where confidentiality prevents full disclosure, obtain a s 9.10 certificate from the Environment Agency Head.
Systematic adherence to these steps, supported by accredited expertise and contemporaneous documentation, minimises risk of Tier 1 prosecution, licence revocation or Fund payment suspension.