Environmental assessment guidance issued to the emerging offshore wind sector

By Meg Lee and Brendan Tobin

The Department of Climate Change, Energy, the Environment and Water (DCCEEW) has released important guidance to the fast-growing offshore wind sector in Australia, namely, ‘Key environmental factors for offshore windfarm environmental impact assessment under the Environment Protection and Biodiversity Conservation Act 1999‘ (the Guide). The release of the Guide (on 24 July 2023) is timely, following the recent declaration of the Hunter offshore wind area and current process for applications for feasibility licences in that area, as well as the recent completion of the bid process in Victoria off the Gippsland coast.

Background

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) protects matters of national environmental significance, Commonwealth land (and waters) and Commonwealth heritage places from proposed actions.

Under the EPBC Act, proponents of projects that will have or are likely to have a significant impact on any of the matters of national environmental significance must obtain approval from the Federal Minister for the Environment.

It is then the proponents’ responsibility to investigate the efficacy and effectiveness of impact avoidance, minimisation, and mitigation measures.

Overview of the Guide

The Guide has been developed and released to assist proponents of offshore wind proposals (which are largely in Commonwealth waters) to develop referrals and conduct assessments under the EPBC Act.

The first section of the Guide summarises the regulatory context and statutory requirements under the EPBC Act for offshore wind proposals. This section the Guide provides a useful summary of key guidance materials, websites, and tools for proponents of offshore wind projects.

Importantly, the Guide suggests that proponents should consider the potential impacts of the likely multiple projects within a Declared Area when doing their assessments under the EPBC Act. There will obviously be a balance in approving projects under the EPBC Act between maximising the utility of a declared area for renewable generation while also managing the cumulative environmental impacts of all projects. The Guide foreshadows that the Department may release a policy under the EPBC Act to support regional regulation to manage the potential cumulative impacts of the emerging offshore wind industry.

The Guide also highlights that proponents need to consider avoidance techniques as the first step in the hierarchy of impact mitigation. This is in the context that the areas declared under the Offshore Electricity Infrastructure Act 2021 (Cth) have already taken into account, and sought to avoid, areas where significant environmental sensitivities are present. We consider this will be challenging for proponents in a market where we are assuming the whole of each Declared Area is likely to be in demand. Other than micro-siting within the area, or potentially constructing less than the desired number of turbines, it will be difficult to achieve ‘avoidance’. However, the Guide notes that proponents should consider:

• scheduling activities to avoid biologically important times and breeding habitat; and
• incorporating design features that eliminate pressure on protected matters, including by orientation and modifying the layout.

The Guide also notes that the DCCEEW is proposing to release further guidance on survey protocols and data standards and will carry out consultation with industry to assist in defining appropriate standards. It notes too that it expects data to be shared with regulators and across the industry so as to assist with assessment of cumulative effects and a better understanding of the baseline. It is proposed that this will be mandated through further reforms and the establishment of a body to be known as Environment Information Australia (EIA) and the new Commonwealth Environmental Protection Authority.

Sources of impact

The second section of the Guide then considers each of the likely sources of impact of offshore wind proposals on protected matters. For each source of impact, the key receptors and protected matters impacted by the action are identified. The Guide then provides examples of how proponents can minimise, monitor and mitigate impacts upon receptor groups and protected matters.

The table below summarises the impacts, receptor groups and protected matters likely to be affected by an offshore wind proposal and the and good practice management examples provided by the Guide.

Impact	Receptor groups/protected matters affected	Good practice management examples
Underwater noise – mortality, injury and behavioural effects	Baleen whales Toothed whales and porpoises Seals and sea Lions Sharks and rays Turtles Seabirds Migratory shore birds Fish Benthic habitats Marine environment quality	Minimise: selection of foundation types which do not require pile driving for installation; utilising vibratory pile driving over impact pile driving; and shutdowns during biologically important seasons and events. Monitor and mitigate: establishing a marine fauna monitoring program.
Turbine interactions – injury and mortality to birds and bats	Seabirds Migratory shore birds Shore birds Land birds	Minimise: utilising blade design features and patterning found to reduce collision risk; in-field bird detection techniques coupled with near-real time turbine control and/or shutdown. Monitor and mitigate: early baseline monitoring programs to enhance understanding of flight activity and offshore movements; and implementing monitoring programs to verify collision risk predictions.
Electromagnetic fields	Sharks and rays Turtles Fish Marine environment quality	Minimise: engineering controls that reduce electromagnetic field (EMF) emissions including flow, voltage, cable configuration and design; and separating cables and sensitive receptors by burying cables. Monitor and mitigate: monitoring effectiveness of controls including measuring EMF-emitting operational cables; and considering data in the context of biological effects studies.
Seabed disturbance – loss of/harm to benthic habitats	Sharks and rays Turtles Migratory shore birds Fish Benthic habitats Marine environment quality	Minimise: site identification in consideration of the presence of unique or sensitive benthic communities; selecting seabed intervention method for cable installation; and designing scour protection to minimise erosion. Monitor and mitigate: monitoring programs designed to measure impacts and trigger adaptive management to prevent impacts to habitat.
Disturbance of underwater cultural heritage	Benthic habitats Marine environment quality Cultural heritage	Minimise: utilising design features and construction methods that reduce the potential impacts on underwater cultural heritage values. Monitor and mitigate: upfront studies and assessment alongside continual surveys to assess any impacts; and consultation with relevant First Nations People.
Physical presence – impact on hydrodynamics and sediment transport processes	Baleen whales Toothed whales and porpoises Seals and sea lions Grey nurse sharks Migratory shore birds Benthic habitats	Minimise: undertake modelling to inform site selection and the adoption of best practices in design of physical infrastructure; and consideration of impacts on natural ocean water currents, waves and sediment dynamics in modelling. Monitor and mitigate: committing to monitoring programs designed to measure the effects of infrastructure on biological productivity and sediment dynamics.
Physical presence – barrier effects and displacement of marine fauna	Baleen whales Toothed whales and porpoises Seals and sea lions Grey nurse sharks Sea birds Shore birds Land birds Fish	Minimise: consider design features that minimise potential effects, such as configuration of turbines within the offshore wind farm (OWF) area, and the potential creation of corridors. Monitor and mitigate: consider engaging qualified experts to review existing data, input on survey program design, predictive modelling, interpretation of data and modelling results and make appropriate recommendations.
Light emissions	Turtles Seabirds Migratory shore birds Shore birds Land birds View sheds/heritage values Cultural heritage Existing human uses	Minimise: reducing light emitted to the minimum required to meet standards for safety and navigation; and ensure careful lighting design that is tailored to manage spectral sensitivities of receptors, and considering factors such as wavelength, orientation/shielding, intensity and timing. Monitor and mitigate: monitoring wildlife interactions with activities and using results to inform ongoing management of lighting.
Vessel interactions – injury and mortality to marine fauna	Baleen whales Toothed whales and porpoises Seals and sea lions	Minimise: limiting transit speeds to reduce likelihood of collisions with fauna; and scheduling offshore works to limit the numbers of vessel movements to and from OWFs. Monitor and mitigate: monitor compliance with procedures to limit vessel speed; and Maintain watch and observation zones to reduce collision risk.
Invasive marine species	Seabirds Migratory shore birds Benthic habitats Marine environment quality View sheds/heritage values Cultural heritage Existing human uses	Minimise: comply with location dependant biosecurity obligations to minimise translocation risk; and use best-practice marine growth prevention. Monitor and mitigate: initiating programs to monitor presence of invasive species on infrastructure.
Physical presence – socioeconomic: interference/displacement of existing uses	View sheds/heritage values Cultural heritage Existing human uses	Minimise: plan major construction and installation activities to avoid key times of importance for marine uses. Monitor and mitigate: communication and operation protocols that enable effective and adaptive management to reduce impacts to marine users.
Physical presence – socioeconomic: seascapes and visual amenity	Cultural heritage Existing human uses	Minimise: be sure to utlise design features to minimise impact on seascapes and visual amenity such as colour schemes and use of lighting. Monitor and mitigate: have transparent consultation with the public to adopt additional suggested measures.
Multiple impact pathways – Australian marine parks and their values	Baleen whales Toothed whales and porpoises Seals and sea lions Sharks and rays Turtles Seabirds, shore birds, migratory shore birds Benthic habitats Marine environment quality View sheds/heritage values Cultural heritage Existing human uses	Minimise: ensure infrastructure minuses impacts for all pathways to receptors. Monitor and mitigate: apply mitigation factors for all impacts to receptors as detailed in other areas.

Next steps

Lodging an EPBC Act Referral is not a necessary part of lodging a feasibility licence application and indeed, the Guidance released by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) in relation to the feasibility licence application process states clearly that applicants who have lodged EPBC Act Referrals prior to lodging their feasibility licence application will not be in any better position than those who have not yet done so. And, further, that to do so prior to an area being Declared, or prior to the grant of a licence, is at the proponent’s risk.

Some applicants for licences in the Gippsland area had already lodged their EPBC Referrals prior to lodging their feasibility applications. This may have been a tactical measure to demonstrate to competitors that they are well advanced and have selected their proposed licence area based on their environmental assessments and Referral. However, our learnings from the first round of applications in the Gippsland round were that, while it is certainly helpful to have at least carried out some preliminary environmental investigations and have a sound understanding of the environment and potential impacts and management measures that will be required within the Declared area as well as along the proposed landfall and route to transmission, it was not necessary to have completed an EPBC Referral to put forward a robust application.

The Guide will be a useful resource for those clients making applications for feasibility licences as well as for those proceeding with lodging Referrals.

As noted, further guidance will be released in coming months and industry consultation will occur on the data collection standards and, importantly, on cumulative impact assessment. We will keep our clients updated on these processes.