Environment Protection and Biodiversity Conservation Amendment (List of Threatened Ecological Communities (EC93)) Instrument 2026

The instrument operates around a small set of legal and ecological concepts expressly contained in its text.

• Declaration and amendment: The instrument is an amendment to the “Declaration under s178, s181, and s183 of the Environment Protection and Biodiversity Conservation Act 1999 - List of threatened species, List of threatened ecological communities and List of threatening processes” (Schedule heading; Schedule 1). It does not purport to amend other parts of the EPBC Act or to alter statutory offences or procedures; it alters the content of the Declaration by inserting a named ecological community in the “ECOLOGICAL COMMUNITIES THAT ARE ENDANGERED” category (Schedule 1, item 1).

• Endangered ecological community: The new entry is explicitly placed under the category “ECOLOGICAL COMMUNITIES THAT ARE ENDANGERED” (Schedule 1, item 1). The instrument therefore declares the community’s status as endangered for the purposes of the Declaration. The instrument does not define “endangered” within its text; it relies on the Declaration structure and the EPBC Act powers under which the Declaration is made.

• Ecological community description: Schedule 2 provides the operative description of the ecological community entitled “Wetlands and inner floodplains of the Macquarie Marshes”. The description sets out the community’s components: “the assemblage of native flora, fauna and other organisms associated with and dependent upon the lower Wambuul/Macquarie River, its anabranches, effluent streams and tributaries and associated floodplains” (Schedule 2, opening paragraph). It enumerates habitat elements (permanent/intermittent lowland streams, freshwater lakes, seasonal floodplain wetlands, woodlands, forests, shrublands, marshlands) and lists dominant vegetation assemblages and representative species.

• Spatial description methodology: The instrument uses descriptive, place-name‑based geography rather than coordinates. The “area in nature” is described as being within the northern Murray‑Darling Basin and by reference to towns, creeks and river confluences (Schedule 2, second paragraph). The ecological community “occurs where water regularly overflows (breaks out of) the main Wambuul/Macquarie River channel” and names specific channels and creeks (Schedule 2, fourth paragraph). The description also extends to areas “further upstream and downstream from the floodplain that have similar biophysical characteristics” (Schedule 2).

• Dynamic and variable ecotypes: The description explicitly acknowledges temporal variability driven by hydrology: ecotypes may “vary from wet to dry” and vegetation cover may range “from dense to sparse”; during dry periods, dryland species may encroach but are described as part of temporary cycles in natural systems (Schedule 2, fifth paragraph).

• Faunal components and threatened species: Schedule 2 makes plain that the community “includes a variety of aquatic and terrestrial fauna species” and notes that this “includes several functionally important species, and species that are listed individually as threatened at a national level” (final paragraph). The instrument does not name those species in the text.

These are the main operative concepts the instrument uses to identify and describe the newly listed ecological community. The instrument confines itself to declaration and description; it does not, within its text, specify regulatory consequences, management prescriptions, mapping coordinates, financial measures, monitoring requirements, or enforcement mechanisms.

The instrument itself names no categories of regulated persons or entities beyond the Minister who makes it. It is an amendment to the Commonwealth Declaration and therefore affects the legal status of areas and communities that meet the descriptive criteria in Schedule 2. From the instrument text the affected parties, and the nature of effects, can be described in terms that follow directly from the content.

• The Minister and Commonwealth administrative machinery: The instrument is signed and made by the Minister for the Environment and Water and is made under s 184 of the EPBC Act (front matter and cl 3). The Minister’s decision to amend the Declaration is the direct action recorded by the instrument. Administrative units that maintain the Declaration and the lists under the EPBC Act will be responsible for updating the declared lists to reflect this instrument.

• Land and water areas that match the description: The instrument affects “the assemblage of native flora, fauna and other organisms associated with and dependent upon the lower Wambuul/Macquarie River, its anabranches, effluent streams and tributaries and associated floodplains” as geographically described in Schedule 2. That description extends to areas “within the northern Murray-Darling Basin” with specified locality references (south-east of Brewarrina; near the Ginghet/Marra Creek confluence; Castlereagh/Wambuul/Macquarie River confluence; west of Quambone; north of Warren; occurrences upstream of the Marebone Weir near the Junction Creek and Wambuul/Macquarie River confluence) and named channels (Bulgeraga Creek, Gum Cowal Creek, Monkeygar Creek, Terrigal Creek, Ginghet Creek, Marthaguy Creek) (Schedule 2, second and fourth paragraphs). Any person, landowner, tenure holder, or authority whose land, waters or operations fall within the areas that satisfy this descriptive definition will be affected in the sense that the community on that land is now listed in the Commonwealth Declaration.

• Activities interacting with the listed community: The instrument does not itself list activities or approvals. However, by amending the Declaration and adding a community to the “endangered” category, it changes the legal status of the described assemblage. Entities that conduct activities physically in, or that may impact, environments that satisfy Schedule 2’s description are the parties most directly implicated by the change in status because the statutory list is the reference point for further Commonwealth decision-making under the EPBC Act (the instrument itself does not elaborate those downstream mechanisms).

• Conservation and scientific interests: The description emphasises assemblages, habitat complexity, and species that are “functionally important” or “listed individually as threatened at a national level” (Schedule 2). Organisations and individuals engaged in conservation science, ecological monitoring, environmental consulting and habitat restoration who operate in or near the described areas will find the Declaration changed and will likely need to update records, advice and project documentation to reflect the listing.

• State and local government bodies, and other regulators: The instrument does not expressly allocate responsibilities between levels of government. Nevertheless, the addition of an endangered ecological community to the Commonwealth Declaration will be relevant to any intergovernmental process or statutory decision-making that refers to the Commonwealth list. The instrument itself does not set cross-jurisdictional duties, but the listed status becomes part of the formal national record.

The instrument does not specify costs, funding, or compensatory measures, and it does not identify particular persons as liable for penalties. Those consequences are not found in the instrument text; the primary effect within the instrument is the formal addition of the named ecological community to the Declaration under the EPBC Act.

This instrument is declaratory in form and content. It does not itself create or specify duties, rights, permissions, approvals, or penalty provisions. The key actionable content is the insertion of the Wetlands and inner floodplains of the Macquarie Marshes into the list of ecological communities categorised as “endangered” and the provision of a textual description of that community (Schedule 1, item 1; Schedule 2).

What the instrument does provide, in operational terms, are focal points that will serve as the basis for any duties or rights that the EPBC Act or subordinate instruments elsewhere confer upon listing. The instrument does not: (a) set out any approval processes; (b) prescribe management measures; (c) specify monitoring or reporting obligations; or (d) identify compensatory, funding or grant mechanisms. Those sorts of duties and rights, if in existence, must therefore be located in the EPBC Act, the Declaration as amended, or in other legal instruments and policies that are not reproduced in this instrument.

Within the instrument text the following are concrete structural signposts about duties and rights:

• Ministerial exercise of power: The Minister has made this instrument under s 184 (cl 3). The decision to list the community is therefore an exercise of statutory instrument-making power by the Minister. The instrument does not reserve subsequent decision-making to any other actor within the instrument text.

• Declaratory content as the reference point: The textual description in Schedule 2 becomes the canonical description for the purposes of the Declaration as amended by Schedule 1. Persons and authorities that must identify whether land or hydrological units fall within the listed community will need to match on-the-ground circumstances to the language of Schedule 2: references to being “associated with and dependent upon the lower Wambuul/Macquarie River”, to locations “within the northern Murray‑Darling Basin”, and to specific channel and creek names will function as the legal descriptors to be applied.

• Ambiguity as to precise boundaries: The instrument uses descriptive place names and habitat indicators rather than precise coordinates or mapped boundaries. This means any duties or rights that hinge on spatial extent will require an interpretive step: determining whether a particular parcel, reach, or patch of habitat falls within the description.

• No express enforcement or penalties: Because the instrument does not itself stipulate enforcement mechanisms, any enforceable duties or rights will be those incorporated by reference in the EPBC Act or associated legal instruments. The instrument itself neither confers statutory permits nor creates exemptions.

In short, the instrument creates an updated declaratory fact , the community’s presence on the Commonwealth list as “endangered” with an associated descriptive schedule , but it leaves the particulars of statutory duties, rights and enforcement to the body of law in which this Declaration operates. The instrument is a legal trigger in the sense of altering the list; it does not, on its face, delineate legal obligations beyond that declaration.

The instrument contains no operative provisions establishing penalties, sanctions, enforcement procedures, or administrative penalties. It is an amendment instrument that inserts an endangered ecological community into the Commonwealth Declaration and supplies a descriptive schedule. The operative sections of the instrument , cl 1 (name), cl 2 (commencement), cl 3 (authority), cl 4 (schedules) and Schedule 1 and Schedule 2 , do not prescribe enforcement mechanisms or fines, nor do they identify enforcement agencies, compliance monitoring regimes, or time-limited penalty schemes.

Because the instrument amends the Declaration as made under ss 178, 181 and 183 of the EPBC Act (Schedule heading), any penalties, prohibitions or enforcement tools that apply to activities affecting listed ecological communities would need to be found in the EPBC Act itself or in subsidiary instruments that operationalise the Act. The instrument does not reproduce or summarise those provisions. Therefore, from the text alone:

• There are no penalties stated in this instrument for conduct impacting the listed community.

• There are no enforcement procedures specified, such as notice, remedial directions, injunctive processes, or administrative sanctions.

• There is no grant of additional enforcement powers to the Minister or any other official in this instrument.

• There is no timetable for compliance, monitoring, or reporting set out.

Practically, the absence of penalties and enforcement provisions in this instrument means it operates as a legal classification change; any legal consequences in terms of offences, approvals, or penalties must be traced to the EPBC Act and other instruments, not to this instrument itself. Users of the instrument should therefore not look to it for procedural or sanctions detail; they will need to consult the EPBC Act (particularly the provisions that relate to listed ecological communities), the amended Declaration in full, and any administrative guidance or subsidiary instruments that interpret or give effect to listing status.

The instrument is explicitly framed as an amendment to a Declaration under the EPBC Act. The only statutory cross-references contained in the instrument are to the EPBC Act itself. The front matter and Schedule heading identify the Declaration being amended as that under ss 178, 181 and 183 of the Environment Protection and Biodiversity Conservation Act 1999; the instrument is made under s 184 of the EPBC Act (cl 3). Those are the only internal statutory cross-references in the instrument text.

From the instrument’s content the following interaction points with other laws or instruments can be established directly:

• Amending the Declaration: The instrument modifies the content of a Commonwealth Declaration under particular EPBC Act sections (ss 178, 181 and 183). The Declaration concerned is titled “List of threatened species, List of threatened ecological communities and List of threatening processes” (Schedule heading). The instrument therefore changes the Commonwealth’s formal list that is part of the EPBC Act regime. Any other Commonwealth laws, delegated instruments, policies or administrative procedures that refer to the Commonwealth lists will, as a practical matter, now reflect the addition of the Wetlands and inner floodplains of the Macquarie Marshes when they draw upon the Declaration.

• Referential effect on decision-making frameworks: The instrument does not itself state how other laws must change; however, because it operates by amending the Declaration, it will be the referent that other laws or administrative decisions consult when they require identification of listed ecological communities. The instrument makes no attempt to list which other laws or instruments explicitly rely on the Declaration; such linkages must be determined by examining those other instruments.

• Spatial description vs mapped instruments: The instrument provides a descriptive geographic scope (Schedule 2) rather than coordinates or a statutory map. Where other laws or planning instruments require precise spatial delineation, there will be an interactional requirement to reconcile the textual description in this instrument with the mapping or spatial data requirements of those other instruments.

• No express interaction with state or local regimes: The instrument contains no statement about the relationship between this Commonwealth listing and any state or local government environmental laws, planning laws, water allocation laws, or land management regimes. Any effect on, or interface with, state or local regulatory regimes would derive from the broader federal-state legal architecture and cannot be inferred from this instrument’s text.

• No changes to other EPBC provisions set out: The instrument does not amend the substantive text of the EPBC Act beyond revising the content of the Declaration. It does not, for example, alter definitions, approval thresholds or referral processes within the EPBC Act; such changes, if relevant, are not contained in this instrument.

In sum, the instrument’s interaction with other laws is that of a content amendment to a statutory list which other instruments and decisions may reference. The instrument itself does not identify or alter parallel legal frameworks; its effect vis-à-vis other laws is therefore indirect and contingent on how those other laws reference the Commonwealth list and how administrative authorities apply the amended Declaration.

The instrument is an amending instrument whose purpose is to change the content of a named Declaration under the EPBC Act. The instrument’s own metadata provides the immediate amendment history that is available in the text.

• Instrument identity and date: The instrument is titled Environment Protection and Biodiversity Conservation Amendment (List of Threatened Ecological Communities (EC93)) Instrument 2026 and is dated 14 January 2026 (front page). It is made by Murray Watt, Minister for the Environment and Water (front page).

• Commencement: The instrument “commences on the day after it is registered” (cl 2). The instrument therefore takes legal effect immediately after registration as an instrument, absent any contrary commencement provision.

• Authority and statutory basis: The instrument is made under s 184 of the EPBC Act (cl 3). It identifies the specific Declaration being amended , the Declaration under ss 178, 181 and 183 concerning the Lists of threatened species, ecological communities and threatening processes , and provides that “Each instrument that is specified in Schedule 1 to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned” (cl 4).

• Scope of the amendment: Schedule 1 carries a single operative amendment: it inserts the Wetlands and inner floodplains of the Macquarie Marshes under the “ECOLOGICAL COMMUNITIES THAT ARE ENDANGERED” heading (Schedule 1, item 1). Schedule 2 contains the descriptive material for the inserted community.

• No prior amendments recorded in the instrument: The instrument does not contain a schedule of prior amendments to the Declaration or a consolidated text showing where this insertion sits in relation to other entries. It does not refer to any previous instrument number or prior amendment dates. Its effect is to be read against the existing Declaration as amended by prior instruments, but those prior instruments and their histories are not reproduced here.

Because the instrument is limited to this single functional amendment, the “amendment history” contained in this instrument is the addition of EC93 (as the instrument title suggests) as an endangered ecological community, effected by insertion and accompanied by the Schedule 2 description. Any earlier or subsequent amendments to the Declaration will be in other instruments; they are not described in this instrument’s text.

The instrument contains no material concerning litigation, challenges, judicial review, or prior court decisions. There are no recitals or notes about legal proceedings, and no cases are cited or mentioned. The instrument is purely an administrative amendment to the Declaration and, as presented, records a Ministerial decision documented by the making of an instrument. The text does not identify any disputes about the listing, nor does it record outcomes of review processes, merits review, or judicial proceedings.

Where litigative or review history exists in relation to the listing of an ecological community, such history is not recorded in, nor incorporated into, this instrument. The absence of any litigation material in the instrument means that anyone interested in litigation history must look beyond this instrument to court records, administrative review records, or other documentation not reproduced in this text.

In short, based on the instrument itself there is no litigation history to report; the instrument contains no references to legal challenges, judicial determinations, or contested administrative processes.

The text of the instrument contains several features that create interpretive or practical risks for users who must apply the listing in regulatory, land-management or project contexts. The following are concrete points drawn exclusively from the instrument.

• Descriptive spatial scope rather than coordinates: Schedule 2 describes the “area in nature” and occurrence of the community with references to the “northern Murray‑Darling Basin” and to towns, creeks and river confluences (south-east of Brewarrina; west of Quambone; north of Warren; upstream of Marebone Weir near the Junction Creek and Wambuul/Macquarie River confluence). The instrument supplies no coordinates, statutory map, or parcel identifiers. This makes spatial determination a matter of interpretation and may require mapping exercises to translate the textual description into precise boundaries for regulatory or project-assessment purposes.

• Use of functional hydrological language: Schedule 2 identifies occurrence “where water regularly overflows (breaks out of) the main Wambuul/Macquarie River channel” and as “a network of smaller channels and braided swamps” (fourth paragraph). The phrase “regularly overflows” is qualitative and will require factual assessment in any borderline case. Interpreting “regularly” and delineating the spatial extent of overflow areas may be contested in practice.

• Broad inclusion of upstream and downstream similar habitats: Schedule 2 expressly extends the ecological community to “areas further upstream and downstream from the floodplain that have similar biophysical characteristics” (fourth paragraph). The criterion “similar biophysical characteristics” is open-ended and will require ecological assessment to determine which upstream or downstream areas are included, creating potential uncertainty for landholders and regulators.

• Temporal variability of ecotypes: The instrument acknowledges that ecotypes vary between wet and dry years and that vegetation cover can vary widely (fifth paragraph). The text states that dryland species may encroach during dry periods but that “in natural systems this is a temporary cycle.” For regulatory purposes, the temporal dynamism means that a snapshot survey may not reflect longer-term ecological identity. Determinations about whether a given patch currently constitutes part of the listed community may be sensitive to timing, making assessment protocol critical.

• No named list of threatened species inside the community: The final paragraph states that the community “includes several functionally important species, and species that are listed individually as threatened at a national level,” but it does not identify those species. Users cannot rely on the instrument alone to know which nationally listed species are present; they must consult other lists or sources for species-level information.

• “Other organisms” and assemblage concept: The opening description includes “native flora, fauna and other organisms associated with and dependent upon” the river and floodplain system (Schedule 2). The inclusion of “other organisms” broadens the assemblage concept beyond plants and animals and could complicate impact assessments that have traditionally focused on flora and fauna.

• No procedural, enforcement, or financial detail: The instrument does not set out procedures for mapping, assessment, approvals, or funding. Parties seeking to understand immediate obligations or entitlements will not find operational guidance in the text; they must look to the EPBC Act and administrative procedures elsewhere.

• Placement within the Declaration: Schedule 1 instructs the insertion “in the appropriate position under the category heading ‘ECOLOGICAL COMMUNITIES THAT ARE ENDANGERED’.” The phrase “appropriate position” suggests editorial placement rather than a strictly rank‑ordered scheme, but it also leaves open the need to locate the entry correctly within the existing Declaration text.

These are not defects in the sense of invalidity; they are features of how the instrument accomplishes listing by means of a descriptive schedule. However, they are practical “gotchas” because they create interpretive demands and potential transactional frictions for landholders, proponents, consultants and administrators who must apply the listing in concrete circumstances.

Because this instrument is declaratory and does not set out procedural requirements, compliance work proceeds by reference to the amended Declaration and the EPBC Act regime of which it is a part. The instrument’s text suggests the following practical steps for organisations, landholders, advisers and regulators that need to align operations or decision-making with the new listing. These steps are framed strictly by the instrument’s content and by the mechanics it establishes.

1. Update administrative registers and records: The Minister has inserted the Wetlands and inner floodplains of the Macquarie Marshes into the Declaration under the “endangered” category (Schedule 1, item 1). Administrators responsible for maintaining the Declaration and any public registers should update the relevant lists to reflect this new entry effective from the instrument’s commencement (it “commences on the day after it is registered”, cl 2). Organisations that rely on the Commonwealth list for screening or policy should likewise update their internal lists.

2. Map the descriptive extent: The instrument supplies a textual geographic description rather than coordinates (Schedule 2). Parties that require spatial certainty should undertake a mapping exercise that translates the Schedule 2 description into GIS layers. The mapping should trace the descriptive references: the lower Wambuul/Macquarie River and its anabranches, occurrences south‑east of Brewarrina, west of Quambone, north of Warren, channels named in Schedule 2 (Bulgeraga Creek, Gum Cowal Creek, Monkeygar Creek, Terrigal Creek, Ginghet Creek, Marthaguy Creek), and upstream occurrences “near the Junction Creek and Wambuul/Macquarie River confluence” and “upstream of the Marebone Weir” (Schedule 2, second and fourth paragraphs). Because the text includes areas “further upstream and downstream … that have similar biophysical characteristics,” the mapping exercise should include an ecological assessment to define “similar biophysical characteristics” in operational terms.

3. Incorporate hydrological and temporal variability into assessments: Schedule 2 emphasises hydrological dynamics and that ecotypes vary across wet and dry years (fifth paragraph). Compliance assessments and ecological surveys should therefore be designed to account for seasonal and interannual variability. This may entail consulting historical hydrological records, conducting surveys at appropriate seasonal timing, or adopting protocols that recognise transient dryland encroachment as part of natural cycles.

4. Identify presence of nationally listed species: The Schedule notes that the community “includes several functionally important species, and species that are listed individually as threatened at a national level” (final paragraph). To determine the relevance of that statement for a particular site, parties should cross-reference national species lists and undertake targeted species surveys where appropriate. The instrument does not list species names, so species-level obligations (if any) must be checked against the national lists.

5. Consult the EPBC Act and administrative guidance: The instrument does not itself set approvals, offences or enforcement measures. Parties should consult the EPBC Act provisions and any Departmental guidance that explain the consequences of a community’s listed status and the practical processes for referrals, approvals or assessments. While this instrument effects the listing, operational compliance depends on the broader legal and administrative framework.

6. Record the instrument’s commencement and citation: For regulatory timelines, funding applications, planning referrals or environmental assessments, note that the instrument “commences on the day after it is registered” (cl 2) and is made under s 184 of the EPBC Act (cl 3). The instrument title and date (Environment Protection and Biodiversity Conservation Amendment (List of Threatened Ecological Communities (EC93)) Instrument 2026; 14 January 2026) should be recorded in project files.

7. Prepare for interpretive questions: Because the instrument uses qualitative descriptors such as “regularly overflows” and “similar biophysical characteristics,” expect interpretive questions from regulators, proponents and landholders. Mitigation includes commissioning ecological advice, preparing hydrological analyses, and documenting the reasoning used to map the textual description onto specific parcels or watercourses.

8. Update contractual and operational risk registers: Entities with operations within the described river system or floodplain should update risk assessments, planning approvals, environmental management plans and stakeholder communications to reflect the community’s newly listed endangered status.

These steps flow from the instrument’s text and the practical demands created by a narrative, place‑name-based listing. The instrument itself does not create process steps or penalties; compliance therefore consists of treating the amended Declaration as the authoritative record and then applying the EPBC Act and administrative guidance when determining whether particular actions require further referral, approvals or mitigation.