The Finfish Farming Environmental Regulation Act 2017 (the Act) takes effect on 4 December 2017.
The Act makes changes to the following legislation:
- Environmental Management and Pollution Control Act 1994 (EMPCA)
- Living Marine Resources Management Act 1995 (LMRMA)
- Marine Farming Planning Act 1995 (MFPA)
- Inland Fisheries Act 1995
- Resource Management and Planning Apeal Tribunal Act 1993
Since 1 July 2016, the Director of the Environment Protection Authority (EPA) has been delegated responsibilities for managing environmental impacts of finfish farms under the LMRMA and MFPA. The Act creates direct regulatory powers under EMPCA, officially giving the EPA Director responsibility for environmental regulation of finfish farms.
The most significant changes are summarised below, and discussed in more detail on the following pages.
- Finfish farming operations will be classed as “Level 2 activities” under Schedule 2 of EMPCA
- New and existing finfish farm operators will need an Environmental Licence to operate
- Applications for a new Environmental Licence will be made to the EPA Director
- Applications for inland finfish farm activities or related land-based activities must be referred to the EPA Board for assessment
- For applications for activities in State waters, the EPA Director will have discretion as to whether or not the application requires a full assessment by the EPA Board. In most cases, the EPA Director will determine the application without referral to the EPA Board
- Applications referred to the EPA Board will be subject to public consultation and rights of appeal. Applications determined by the EPA Director alone will not.
- Conditions of an Environmental Licence can include limits on biomass, monitoring and reporting obligations, security bonds for remediation and restrictions on the volume or source of water used in the operations. The conditions of an Environmental Licence prevail over any inconsistent conditions in a Marine Farming Development Plan.
- Environmental Licences for finfish farming may be suspended or cancelled where the operator fails to comply with conditions, commits an offence under EMPCA, or where the relevant marine farming lease
- Any person with a “proper interest” can seek civil enforcement orders against a finfish farm operator who is not complying with Environmental Licence conditions
- Marine farm exclusion zones can be declared (and revoked) by Parliament. The Act creates an exclusion zone for Mercury Passage (excluding the existing Okehampton Bay lease), but also allows for additional exclusion zones to be declared in future.
- The Act applies to the farming of finfish (salmon, trout etc, but excluding eels). Regulated activities include farming, culturing, hatching, rearing, ranching, breeding and related activities, involving annual production of over 5 tonnes of fish, or more than 2 tonnes biomass.
- The Act creates a new instrument – an Environmental Licence (EL) – for both existing and new finfish farms. The EL will be required in addition to any Marine Farming Lease, Marine Farming Licence or Development Permit that may be required for the farm.
- An EL may be limited to one location, or may cover farms in more than one location, provided “prescribed criteria” are satisfied. The prescribed criteria have yet to be finalised, and may be established by later regulation.
- ELs may be granted for a limited or indefinite period. However, if an existing authorisation (such as a Marine Farming Licence or Environment Protection Notice) includes an expiry date, any EL issued for the same operation must expire on that day. This would not prevent the operator from re-applying for a new EL after the existing licence expires.
- ELs are to be recorded on the EPA’s register of environmental management and enforcement instruments, and available for the public to search (subject to a search fee – currently $17.05).
Existing Finfish Farms
- ELs will be automatically granted for all authorised finfish farms existing at 4 December 2017, unless the farm has not been used since at least 4 september 2007. Inactive farms will need to apply for an EL if new finfish fishing activities are proposed.C**
- ELs granted to existing operations will be subject to similar environmental conditions to those imposed by existing licences / permits for the farm. The Director may also impose additional environmental conditions, where they are not in conflict with existing conditions.
- Existing finfish farm operators have a limited right of appeal to the Resource Management and Planning Appeal Tribunal (RMPAT) to challenge any additional conditions imposed on an EL.
New Finfish Farms
Different assessment processes are proposed for new finfish farms1 depending on the type of finfish activity being undertaken:
- Where an application relates to finfish farms in State waters, the EPA Director has discretion as to whether to refer the application to the EPA Board for assessment. There are no criteria for how the EPA Director is to decide which projects are to be referred to the Board. If the application is not referred, it will not be publicly advertised. If an application is referred to the EPA Board, the applicant will pay an additional fee to cover the higher assessment costs.
- Where an application relates to finfish farms in inland waters, or on land (for example, hatcheries)2, the application must be referred to the EPA Board for assessment in accordance with the Environmental Impact Assessment Principles. These applications will be publicly advertised and representations invited. After considering the application representations, the Board may grant an environmental licence, or direct that the environmental licence be refused. If a planning permit is also required for the activity, the permit must not be granted if the Board refuses to grant an environmental licence.
- The Director and Board may grant an Environmental Licence only if they are “satisfied that it is appropriate to do so”.
- If an EL is granted, it may be subject to conditions regulating a range of matters, such as:
- Limits on finfish biomass to be kept on, or produced from, a lease;
- Introduction of raw materials (including smolt) to a lease;
- Limits on the amount of water or energy used to conduct finfish farming;
- Limits on the types, quantities or concentrations of pollutants from the lease;
- Environmental monitoring obligations;
- Rehabilitation requirements at the conclusion of farming operations.
- If there are any inconsistencies between conditions of a Marine Farming Development Plan and an EL, the EL conditions will prevail.
- The EL may require operators of new and existing finfish farms to pay financial assurances (bonds), which can be used to cover the expense of any future remediation.
- The EPA Director has a broad power to vary the conditions of an EL, including conditions imposed by the Board, if “satisfied that it is appropriate to do so”.
- Variations can be requested by the finfish operator or imposed at the initiative of the Director.
- If a variation is requested by the finfish operator, the EPA Director may agree to vary the EL, refuse to vary the EL, or refer the application to the EPA Board for assessment.
- Where no changes are required to the relevant Marine Farming Licence, but the EPA Director is satisfied that the proposed variation to the EL is a major variation (for example, where the variation will significantly increase the environmental impacts), the Director must refer the proposed variation to the Board for assessment as if it was a new Level 2 activity.
- Where no finfish farming activities have been undertaken under an existing licence for at least 10 years, the Director must refer the proposed variation to the Baord for assessment.
- Where a proposed variation requires a planning permit, the EPA Director cannot vary the EL until the permit is granted.
- Breaches of the conditions of an EL (or operating without an EL) can attract fines up to $159,000 for a corporation, or $79,500 for an individual.
- The Act allows for regulations to prescribe “special penalties” that must be imposed by the Court in particular circumstances. No “special penalties” are prescribed, yet.
- If a finfish farming operation causes serious or material environmental harm, it will be a defence for the farm operator to demonstrate that it has complied with the conditions of an EL. However, compliance with conditions relating to biomass, the amount of finfish capable of being produced, the volume of raw materials, or the volume of water used in operations will not automatically provide a defence.
- ELs may be suspended or cancelled by the EPA Director where the holder of the EL has:
- breached a condition;
- been convicted of an offence under EMPCA or another law;
- had their Marine Farming Lease cancelled;
- failed to pay the fees due, or
- caused, or is likely to cause, serious or material environmental harm which cannot be mitigated within a reasonable time by simply varying the EL.
- The EPA Director will also have the power to:
- require EL holders to implement environment improvement programs,
- issue an Environment Protection Notice to secure compliance with the Act, or
- require renewal of an Environmental Licence if the Director considers it necessary to continue to regulate the area to reduce environmental harm, or to provide for decommissioning or rehabilitation
- Where a finfish farm operator is not complying with EL conditions, the EPA, a local council, or a person with a “proper interest in the subject matter” may commence civil enforcement proceedings in the RMPAT against a finfish farm operator seeking compliance and / or remediation orders.
- Finfish farm operators may appeal to the RMPAT against various decisions of the EPA Director and EPA Board, including refusing EL applications, imposing conditions on an EL, or variations to the EL.
- Where applications have been referred to the EPA Board, any person who made a representation during the public comment period can appeal against the EPA Board’s decision.
- All appeals will need to be lodged within 14 days of receiving notice of the decision.
MARINE FARM PLANNING REVIEW PANEL
- The EPA Director is no longer a member of the Marine Farming Planning Review Panel (the Panel). Instead, the Panel must:
- consult the EPA Director on draft Marine Farming Development Plans, and ensure any environmental management issues specified by the Director are addressed in environmental impact statements and considered by the Panel
- notify the EPA Director before approving an amendment to Marine Farming Development Plan or issuing any emergency orders or emergency plans for finfish farms
- The Panel will now include additional members – a person with “ability and experience in environmental management” and a person “with ability and expertise in fish health and biosecurity”
- The Act provides for the Governor to declare marine farming exclusion zones within State waters. The Governor may only declare an exclusion zone if the declaration is approved (or not disallowed) by both Houses of Parliament.
- The first exclusion zone proposed will cover Mercury Passage, excluding the lease areas already approved for Tassal’s Okehampton Bay operation.
- Once an exlclusion zone is declared, Marine Farming Development Plans will not apply to the zone.
1. Where a finfish farm is declared to be a Project of Regional Significance, these application processes will not apply
2. Which will generally require a development permit under Land Use Planning and Approvals Act 1993