Environment Protection and Biodiversity Conservation Amendment (List of Threatened Ecological Communities (EC187)) Instrument 2026

The instrument rests on two basic concepts: statutory listing as a formal amendment to a national Declaration, and a descriptive ecological-community definition that sets the biological and geographic contours of that listing. The statutory device used is a legislative instrument made by the Minister under s 184 of the EPBC Act (s 3). That device does not itself create an offence or procedural regime in the text of this instrument; it changes the content of the Declaration under the EPBC Act by inserting the named ecological community into the declared lists (Schedule 1, and title of Schedule 1 which names the "Declaration under s178, s181, and s183").

The descriptive component is contained in Schedule 2. It operationalises what is being listed by providing morphological, floristic, structural, and locational attributes that can be used to identify occurrences. The Schedule describes the community as follows (selective concrete elements taken verbatim or paraphrased from the description):

• Dominant taxon: Eucryphia moorei (pinkwood, plumwood, eastern leatherwood) is "the dominant tree species in most occurrences" of the community.
• Structure: "a simple, closed forest structure with dense horizontally-held foliage and abundant ferns and mosses", closed canopy averaging 20 m in height, microphyll foliage, with emergent trees generally absent except for occasional eucalypts. Understorey includes tree ferns and mesophyllous shrubs averaging 3.7 m, and a ground layer dominated by ferns and forbs.
• Associated species: lists of commonly occurring tree species (Hedycarya angustifolia, Syzygium smithii, Doryphora sassafras, Synoum glandulosum, Elaeocarpus holopetalus, Atherosperma moschatum), ground layer forbs (Australina pusilla, Urtica incisa), tree ferns (Dicksonia antarctica, Cyathea australis) and shrubs (Coprosma quadrifida, Olearia argophylla), pepperbushes Tasmannia lanceolata and T. insipida, and several characteristic vines (Fieldia australis, Smilax australis, Pandorea pandorana, Parsonsia brownii, Marsdenia rostrata, Clematis aristata).
• Spatial distribution: "generally occur as small patches (mostly less than 20 ha)" and are "scattered mainly between the Illawarra escarpment west of Wollongong in the north and in the vicinity of the NSW-Victorian border in the south", occurring in the South East Corner, South East Highlands and Sydney Basin bioregions.
• Topographic and edaphic limits: occur on "sheltered upper slopes and gully heads, usually with a southerly or easterly aspect", at elevations "usually around 400 m to 1050 m above sea level", on a range of lower fertility felsic to intermediate volcanic and fine-grained siliciclastic sedimentary substrates.
• Faunal note: the community "includes a variety of fauna species, including several species that are listed as threatened at a national or state level", though no fauna species are specified in the instrument.

Two structural features of the instrument are important for interpretation. First, the Schedule’s language is descriptive and qualifying: words such as "typically", "generally", "usually", and "mostly" occur repeatedly. That indicates the Schedule is setting out a typical or descriptive definition rather than a precise mapping by coordinates or a rigid statutory boundary. Second, the instrument effects a textual amendment to the identified Declaration under the EPBC Act; the substantive legal consequences of that listing (permits, approvals, offences, or regulatory procedures) are governed by the EPBC Act provisions that the Declaration implements (the instrument itself does not reproduce those procedural or penalty provisions).

The instrument alters the national Declaration under the EPBC Act by adding an ecological community description. The primary legal significance is to the set of persons and entities whose activities or landholdings intersect with the occurrences defined in Schedule 2. The instrument itself identifies the geographic and ecological footprint of the listed community: occurrences are "scattered mainly between the Illawarra escarpment west of Wollongong in the north and in the vicinity of the NSW-Victorian border in the south" and occur within named bioregions (South East Corner, South East Highlands and Sydney Basin). Therefore, those parties with land, infrastructure, operations, or development proposals in those parts of south-east New South Wales and far east Victoria are the immediate cohorts whose land or projects overlap the described community.

The instrument also identifies habitat characteristics,elevation (around 400-1050 m), sheltered upper slopes and gully heads, southerly or easterly aspect, and specific substrate types,and a set of dominant and associated species (Eucryphia moorei as dominant; lists of overstorey, understorey, fern and vine species) that a practitioner would use to determine whether a particular patch falls within the description. Consequently, ecologists, environmental consultants, land managers, state and local government planners, private landholders, forestry operators, and infrastructure proponents operating in the named bioregions are the practical audience who will need to check whether a given site matches the Schedule 2 description.

Who decides: materially the instrument was made by the Minister for the Environment and Water (Minister Murray Watt), dated 13 March 2026, using the power in s 184 of the EPBC Act (s 3 and instrument signature). The instrument's insertion into the Declaration changes the content of the national list; administrative decisions about whether a specific area or project is covered by that listing will require comparison of a site against the description in Schedule 2 and, where necessary, engagement with the Commonwealth agency that administers the EPBC Act (the instrument itself does not set an administrative decision-making procedure).

Who pays: the instrument does not itself specify funding, financial assistance or compensatory measures. Because it changes the statutory list, any financial or regulatory costs that arise as a result of being on that list will fall to the interests that occupy or propose activities within occurrences that meet the Schedule 2 description. The instrument does not allocate costs or specify funding sources. The instrument’s immediate fiscal effect is therefore indirect and contingent on the operation of the EPBC Act and any subsequent administrative processes or programs that apply to listed ecological communities; no grant, compensation or dedicated funding appears in the instrument.

This instrument is a listing instrument: it amends the content of the national Declaration under the EPBC Act by inserting the named ecological community and supplying a textual description (Schedule 1 and Schedule 2). The instrument contains no express operative duty, permit regime, or penalty provision within its own text. Its legal effect is to change the content of the Declaration; the rights, duties and procedural consequences that attach to that content are those located in the EPBC Act provisions and associated instruments referenced in the Declaration (the instrument’s Schedule 1 title explicitly names the Declaration under s178, s181 and s183).

Key points drawn from the instrument text about duties and rights are therefore limited and procedural:

• The instrument changes the national list as that list is constituted under the Declaration effected by ss 178, 181 and 183. Any duties or prohibitions that flow from inclusion on that list are not created by this instrument but by the underlying EPBC Act provisions implementing the Declaration. The instrument does not reproduce or restate those substantive EPBC Act obligations.
• The instrument imposes an obligation on administrators to update the text of the Declaration and any official list products to reflect the insertion. Section 4 of the instrument gives the standard operation: "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." In practical terms, that requires the declaratory instrument(s) specified to be amended to include the entry.
• The Schedule 2 description provides the criteria that vested parties (ecologists, assessors, land managers) must use to determine whether a given site falls within the listed community. Those criteria include dominant species, canopy and understorey structure, associated species, elevation, aspect, patch size, geographic range and substrates. For example, a site where Eucryphia moorei is the dominant tree species, with a closed canopy averaging around 20 m, and lying at around 400-1050 m elevation in the named bioregions, matches the description in Schedule 2.
• The instrument provides no express rights of access to Commonwealth funding, nor any exemptions, compensatory measures, or permit grants. Any such rights would have to be located in other statutory provisions or administrative programs, which the instrument does not itself create.

Practically, therefore, the immediate "duties" introduced by the instrument are administrative and identificatory: the Declaration must be updated and practitioners must compare sites against Schedule 2 to determine listing status. Any further statutory duties or rights (for example, procedural requirements for approvals or prohibitions on particular actions) are governed by the EPBC Act's provisions referenced but not reproduced in this instrument.

The instrument contains no penalty clauses, enforcement measures, or compliance mechanisms within its own text. It is an amending instrument that modifies the content of a Declaration under the EPBC Act by inserting an additional entry into the list of threatened ecological communities (Schedule 1). The instrument’s Authority clause states it is made under s 184 of the EPBC Act (s 3), and Schedule 1 references the Declaration under s178, s181, and s183. The effect is to alter the statutory list; any penalties, prohibitions or enforcement practices that may apply to activities affecting listed ecological communities are part of the EPBC Act framework and related instruments, not this instrument.

Concretely, what this instrument does for enforcement is limited to creating a new listed object to which whatever enforcement architecture and sanctions the EPBC Act and its associated instruments attach will then apply. Because the instrument does not include the EPBC Act text, no provision in this instrument itself specifies criminal, civil or administrative penalties, nor does it prescribe compliance pathways, remedial measures or enforcement priorities.

For practitioners and affected parties, the relevant enforcement architecture to consult is therefore the EPBC Act provisions and the official Declaration instrument that has been amended. The instrument’s s 4 requires the specified instrument to be amended as set out, so administrative updating is necessary; enforcement will depend upon the EPBC Act and related administrative policy. The instrument provides no details on monitoring, inspection, or enforcement resourcing.

The instrument amends a Commonwealth Declaration under the EPBC Act by adding a new ecological-community entry (Schedule 1). That places the instrument within the Commonwealth statutory scheme for threatened species and ecological communities. The instrument itself does not purport to amend state laws; however, the geographic scope of the described ecological community straddles state boundaries, as the description expressly locates occurrences in south-east New South Wales and far east Victoria and names specific bioregions (South East Corner, South East Highlands and Sydney Basin). The instrument therefore has a cross-jurisdictional footprint in physical terms, even though it is a Commonwealth legislative instrument.

Two interaction features are evident from the instrument text:

• Referential interaction: Schedule 1 expressly names the Declaration under s178, s181 and s183 of the EPBC Act. The instrument changes the content of that Declaration. Interaction with other Commonwealth instruments or the EPBC Act itself takes place by reference: the instrument is authorised by s184 of the EPBC Act and operates to alter a separate Declaration instrument. The substantive duties, prohibitions and administrative procedures relevant to the updated listing are contained in the EPBC Act provisions and any related instruments and policies that implement them.
• Spatial and administrative interface with states: Schedule 2’s geographic description includes the South East Corner, South East Highlands and Sydney Basin bioregions and a linear geographic band running from the Illawarra escarpment west of Wollongong to the NSW-Victorian border. Because the instrument does not prescribe maps or coordinates, there is likely to be an administrative interface with state planning authorities and local government who hold cadastral maps and finer-scale spatial data. The instrument does not itself harmonise, displace, or amend state-level conservation or planning regimes; whether and how state regulatory regimes overlap, mirror or differ from the Commonwealth treatment of the listed community is not addressed in the instrument.

Additionally, the Schedule’s descriptive approach (species composition, canopy height, elevation, aspect, substrate types) means that terrestrial land-use law and rules that turn on ecological description (for example, native vegetation clearing controls or regional biodiversity overlays) will need to reconcile their own criteria with the Schedule 2 text when determining overlap. The instrument does not set out mechanisms for dispute resolution between Commonwealth and state regulators about boundary or classification mismatches.

Finally, because the instrument directs textual amendment to a Commonwealth Declaration, any interaction with other Commonwealth laws that reference the lists in the Declaration will follow automatically from the updated list: that is a mechanical effect of changing the list content. The instrument itself contains no express cross-referencing amendments beyond the named Declaration.

The instrument is self-contained and amends the national Declaration by inserting one named ecological community. The instrument’s metadata and internal clauses document the immediate amendment history:

• Instrument identity: "Environment Protection and Biodiversity Conservation Amendment (List of Threatened Ecological Communities (EC187)) Instrument 2026" (s 1).
• Date and signatory: the instrument is dated 13 March 2026 and signed by Murray Watt, Minister for the Environment and Water.
• Commencement: the instrument "commences on the day after it is registered" (s 2). The text does not provide a registration date within the body, but the date of signing is 13 March 2026; registration would trigger the commencement rule in s 2.
• Authority and enabling provision: the instrument is made under s 184 of the EPBC Act (s 3). The use of that section is the statutory mechanism that allows the Minister to make this kind of amendment to the Declaration.
• Scope of amendment: Schedule 1 instructs that the Declaration under s178, s181, and s183 is amended in the "appropriate position under the category heading 'ECOLOGICAL COMMUNITIES THAT ARE ENDANGERED'" by inserting the specific ecological community. The instrument’s s 4 clarifies the general operational rule 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, and any other item in Schedule 1 to this instrument has effect according to its terms."

No prior amendment history is included in the text of this instrument; the instrument itself is the amendment. The instrument does not list prior versions of the Declaration, nor does it detail any consultation, prior listings, or draft instruments leading to this insertion. The only amendment enacted by the instrument is the insertion described in Schedule 1 and the corresponding descriptive Schedule 2.

The text of the instrument contains no litigation history or references to legal challenges. It does not state that the amendment is a response to a court order, nor does it record any proceedings, judicial review, or case law in connection with the listing. The instrument is a short legislative instrument effecting a single list insertion; its text contains no recounting of disputes or litigation.

Because the instrument is an amendment to a Declaration made under the EPBC Act, any litigation that might arise in future would presumably relate to administrative decisions applying the amended Declaration (for example, disputes about whether a particular patch matches the Schedule 2 description, or judicial review of a Commonwealth decision that relies on the listing). However, such potential litigation is not recited or analysed in the instrument itself, and there are no cases named in the instrument. The instrument therefore supplies no litigation history for this specific measure.

Practically, readers should note that the instrument’s lack of litigation history in the text does not mean litigation is unlikely; it only means the instrument itself contains no record of prior or contemporaneous legal proceedings. Determination of any litigation risk or precedential questions would require consultation of case law and administrative decisions external to this instrument, which are not reproduced here.

The instrument’s drafting and the form of the Schedule 2 description produce several practical points that require attention when applying the listing to real sites or projects. These are matters of interpretation, administrative practicality, and evidentiary burden, and they flow directly from the instrument’s wording.

1. Descriptive, not cartographic: Schedule 2 provides a textual, ecological description rather than mapped boundaries, cadastral references or coordinates. Words such as "generally", "typically", "usually" and "mostly less than 20 ha" appear repeatedly. Consequently, whether a particular patch falls within the listed community will depend on an ecological assessment against those descriptive criteria rather than a check against a statutory map included in this instrument. That creates potential for fact-based dispute, and for a need for technical ecological evidence.

2. Ambiguity in thresholds: multiple phrases in the Schedule are qualified,"dominant tree species in most occurrences", "generally occur as small patches (mostly less than 20 ha)", "elevations usually around 400 m to 1050 m", "sheltered upper slopes and gully heads, usually with a southerly or easterly aspect". These qualifiers leave room for borderline cases: patches marginally larger than 20 ha, or at 350 m elevation, or on a north-west aspect, may require careful ecological argument about whether they are "typical" or "representative" occurrences. Expect contested expert interpretation in marginal cases.

3. No exhaustive species list: the Schedule lists many common associated species but does not claim to be exhaustive. A site lacking one or more listed associates but otherwise matching the core structural and floristic features may still be within the community. Conversely, presence of some listed species on a site alone, without the other structural attributes (closed canopy, dominance of Eucryphia moorei, particular understorey composition) will not necessarily suffice to demonstrate inclusion. The dominant-species criterion (Eucryphia moorei in most occurrences) and structural criteria (closed canopy averaging 20 m, fern-rich ground layer) are central.

4. Cross-jurisdictional footprint without state-level alignment: Schedule 2 locates occurrences in both New South Wales and Victoria. The instrument makes a Commonwealth listing and does not amend state instruments. If state planning, clearing or conservation laws use different classificatory tests, parties will need to reconcile state and Commonwealth approaches locally. The instrument provides no process for resolving discrepancies.

5. Faunal vagueness: the Schedule states that the community "includes a variety of fauna species, including several species that are listed as threatened at a national or state level", but gives no list. That means one cannot, from this instrument alone, identify which threatened fauna are associated with the community. For many activities the faunal component of habitat value is a critical factor; further authoritative sources will be needed to identify the specific fauna of conservation concern.

6. Administrative update requirement: the instrument requires that the specified Declaration be amended as set out. Practically, administrative bodies must update official lists and any published material that tracks EPBC listings. Delay or failure to update ancillary materials (databases, mapping tools, guidance documents) could create uncertainty for proponents and assessors.

7. Immediate commencement on registration: the instrument commences the day after registration. That short timeframe can create an immediate legal effect for activities that are imminent or in-flight at the time of registration. Because the instrument amends the Declaration directly, parties with projects in the region should not assume a long lead time before the listing is effective.

8. Reliance on expert ecological assessment: given the descriptive nature of the Schedule, accurate application will necessitate ecological surveys, species identification, canopy and understorey measurement, substrate identification and topographic assessment. The instrument’s descriptive criteria make technical expertise essential for site classification.

In short, the primary "gotchas" derive from the instrument’s descriptive rather than cartographic approach, its use of qualified language, its lack of exhaustive species lists, and the immediate operational effect on the national Declaration which may not be mirrored in state instruments.

Compliance in the context of this instrument has two immediate layers: (1) administrative compliance with the changed Declaration (for agencies and record-keepers), and (2) on-the-ground compliance for landholders, proponents, and practitioners determining whether a given site falls within the listed community. The instrument’s text supplies the criteria necessary for the latter; use those criteria as the compliance checklist. Steps flow directly from the instrument.

For administrators, record-keepers and advisers:

• Update the Declaration: follow section 4 of the instrument which requires that "Each instrument that is specified in Schedule 1 ... is amended" as set out. Ensure the official Declaration instrument under ss 178, 181 and 183 is updated to insert the new entry in the category “ECOLOGICAL COMMUNITIES THAT ARE ENDANGERED”. Also ensure any Commonwealth databases, registers and public-facing lists that mirror the Declaration are revised promptly to reflect the insertion.
• Note commencement: the instrument "commences on the day after it is registered" (s 2). Record the registration date and ensure any administrative systems treat the listing as operative from the commencement day.
• Prepare guidance: because the Schedule uses descriptive criteria and not maps, prepare technical guidance for assessors and stakeholders explaining how to apply the Schedule 2 descriptors (dominant species, canopy structure, elevation band, aspect, substrate, patch size and bioregion). Document the evidentiary standards expected for surveys and expert reports.

For landholders, proponents, consultants and local authorities conducting site assessments:

• Compare site features to Schedule 2 descriptors. Key variables to document include:
  • Dominant overstorey species: presence and dominance of Eucryphia moorei.
  • Canopy structure and height: closed canopy averaging around 20 m, microphyll foliage characteristics, absence or rarity of emergent trees other than occasional eucalypts.
  • Understorey composition: presence of tree ferns and mesophyllous shrubs, typical understorey species and ferns as listed.
  • Ground layer: dominance of ferns and forbs, presence of epiphytic and lithophytic ferns, and common ground forbs such as Australina pusilla and Urtica incisa.
  • Vines: presence of the characteristic vines listed in Schedule 2.
  • Spatial criteria: location within the named bioregions (South East Corner, South East Highlands, Sydney Basin) and within the geographic band described (Illawarra escarpment west of Wollongong down to the NSW-Victorian border).
  • Topography and edaphics: sheltered upper slopes and gully heads, southerly or easterly aspect, elevation around 400-1050 m, and the specified substrate types.
  • Patch size: most occurrences are "mostly less than 20 ha"; record the area of the patch and surrounding landscape context.
• Commission ecological surveys where relevant. Given the Schedule’s descriptive criteria, a competent ecological assessment will be required to establish whether a patch falls within the listed community. Ensure the assessment covers species identification, canopy metrics, understorey composition, substrate sampling and mapping.
• Keep contemporaneous records: because the Schedule lacks mapped boundaries, decisions will rest on evidence. Maintain clear survey reports, photographs, GPS coordinates, and expert statements that link observed features to the Schedule criteria.
• Consult the amended Declaration: the instrument amends the Declaration under ss 178, 181 and 183. Practitioners should review the updated Declaration instrument to confirm the exact textual insertion and any cross-references or footnotes that appear in the updated text.
• Engage with the administering authority: where there is uncertainty about classification or administrative consequences, contact the Commonwealth agency responsible for the EPBC Act and the Declaration for advice on interpretation and process. The instrument does not set administrative pathways or exceptions within itself.
• Account for cross-jurisdictional coordination: for activities that interact with state permits or approvals in NSW or Victoria, proactively coordinate with state regulators to determine whether state-level planning or vegetation laws are affected, and to reconcile any differences in classification criteria.

Limitations and evidence base: the instrument’s Schedule 2 is the primary source for defining the listed community. It contains no coordinates, no exhaustive faunal list, and uses qualifying language. Compliance therefore depends on applying the Schedule’s descriptors sensibly and documenting the factual basis for classification. Where a project straddles marginal descriptor thresholds (size slightly larger than "mostly less than 20 ha", elevation or aspect slightly outside the stated ranges), seek ecologist advice and engage early with administrators to avoid disputes.

Finally, note that the instrument does not itself create operational exemptions, permits or funding; it is the amended Declaration under the EPBC Act that will generate any additional statutory obligations or procedures. Practitioners should therefore ensure they understand and follow the broader EPBC Act framework referenced by the instrument when considering compliance obligations tied to the listing.