Step 1: Determining if Your Project Needs Environmental Approval

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The fundamental trigger for requiring environmental assessment is whether a proposed project is likely to have a "significant effect on the environment". This initial determination is a crucial first step for any business embarking on a new project or expanding an existing one. Several specific scenarios and project categories typically necessitate environmental approval in Western Australia.

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Projects with the potential to impact Matters of National Environmental Significance (MNES), as defined under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999, will likely require Commonwealth approval in addition to any State-level approvals. These MNES include declared World Heritage properties, National Heritage places, Wetlands of International Importance (Ramsar wetlands), listed threatened species and ecological communities, listed migratory species (protected under international agreements), Commonwealth marine areas, the Great Barrier Reef Marine Park, nuclear actions (including uranium mining), and water resources in relation to coal seam gas and large coal mining development. If a project could significantly affect any of these, referral to the Commonwealth Environment Minister is mandatory.

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Projects that fall under the definition of "prescribed premises" according to Part V of the Environmental Protection Act 1986 also require specific approvals. Prescribed premises are facilities and activities that have the potential to cause emissions and discharges to air, land, or water above certain threshold levels. Schedule 1 of the Environmental Protection Regulations 1987 lists 89 distinct categories of prescribed premises, each with its own trigger threshold. Businesses should consult this schedule to determine if their operations, such as cattle feedlots, intensive piggeries, mineral processing plants, mine dewatering operations, waste treatment facilities, and power generation plants, are classified as prescribed premises.

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Furthermore, projects that involve clearing native vegetation that is not otherwise exempt under Part V of the Environmental Protection Act 1986 will typically require a permit. Clearing native vegetation is generally prohibited unless a specific exemption applies, such as for projects already assessed under Part IV EIA or those covered by an approved Programme of Work or Mining Proposal. There are two main types of Native Vegetation Clearing Permits (NVCP): Area Permits, which allow clearing of a defined area within a specific timeframe, and Purpose Permits, which cover clearing across multiple areas for various purposes over an extended period.

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The mining and petroleum sectors have their own specific environmental approval requirements for both exploration and production activities. Any ground-disturbing activities on a mining tenement, including exploration, require approval through a Programme of Work (PoW) under the Mining Act 1978. Additionally, activities on a mining lease necessitate a comprehensive Mining Proposal and Mine Closure Plan under the same Act, which undergoes its own environmental impact assessment process.

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Projects that necessitate significant extraction or use of water resources or involve interference with the banks or beds of watercourses, as governed by the Rights in Water and Irrigation Act 1914, will also require approvals. This includes activities such as constructing bores, taking water from surface or groundwater sources in proclaimed areas, and altering riverbanks.

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Finally, it is important to note that a referral can be made to the Environmental Protection Authority (EPA) by the project proponent, other government agencies, non-government organizations, or even members of the public if there is a perceived likelihood of a significant environmental effect. This mechanism acts as a broad safeguard to capture projects that might not fall neatly into the specific categories mentioned above. The referral process involves submitting a detailed proposal to the EPA for their initial consideration.

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Given the complexities involved, businesses are strongly encouraged to consult the official websites of the Environmental Protection Authority (EPA) (www.epa.wa.gov.au) and the Department of Water and Environmental Regulation (DWER) (www.dwer.wa.gov.au) for the most current information, specific guidelines, and any available self-assessment tools or checklists that can assist in determining the need for environmental approvals. Early consultation with these agencies is also highly recommended, especially for projects with potentially complex environmental impacts.

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Step 2: Understanding the Key Players and Legislation

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Navigating the environmental approvals process requires understanding the roles of the key government agencies involved and the relevant legislative frameworks. In Western Australia, the primary agencies are the Environmental Protection Authority (EPA) and the Department of Water and Environmental Regulation (DWER).

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The Environmental Protection Authority (EPA) is an independent statutory authority that provides expert advice to the Minister for the Environment on environmental matters. Operating independently in its assessment processes, the EPA's core functions include conducting Environmental Impact Assessments (EIAs) for significant development proposals, developing statutory Environmental Protection Policies (EPPs), and preparing and publishing guidelines for managing environmental impacts. Businesses should utilise the EPA's official website (www.epa.wa.gov.au) as a central resource for information on EIA processes, policies, guidelines, and the status of current assessments.

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The Department of Water and Environmental Regulation (DWER) is the government department that supports the EPA in conducting EIAs and is responsible for administering a wide range of environmental regulations and approvals on a day-to-day basis. DWER's key responsibilities relevant to businesses include the assessment and issuance of Native Vegetation Clearing Permits (NVCPs), Works Approvals, and Prescribed Premises Licences under Part V of the Environmental Protection Act 1986, as well as approvals related to water resources under the Rights in Water and Irrigation Act 1914. Environment Online (environmentonline.dwer.wa.gov.au) serves as the primary online platform for businesses to submit applications, manage their approvals, and access relevant information from DWER.

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The principal legislative instruments governing environmental approvals in WA are:

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The Environmental Protection Act 1986 (WA) is the overarching piece of legislation aimed at protecting the environment, preventing pollution, and managing environmental harm. Key parts of this Act relevant to businesses seeking approvals include:

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- Part IV: This section focuses on Environmental Impact Assessment for significant development proposals.

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- Part V: This section deals with pollution control, the clearing of native vegetation, and the requirements for Works Approvals and Licences for prescribed premises.

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The Environment Protection and Biodiversity Conservation Act 1999 (Cth) primarily aims to protect the environment, particularly matters of national environmental significance (MNES). Projects deemed likely to have a significant impact on MNES will require referral and approval under this Commonwealth Act, often in addition to any approvals required under WA legislation.

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Other significant legislation that may be relevant, depending on the specific project, includes:

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The Mining Act 1978 (WA) governs mining activities, including the environmental aspects of Programs of Work, Mining Proposals, and Mine Closure Plans.

The Aboriginal Heritage Act 1972 (WA) deals with the protection of Aboriginal heritage sites and requires permits (Section 18) for any activities that might disturb such sites.

The Rights in Water and Irrigation Act 1914 (WA) regulates the allocation and use of water resources and requires permits for activities affecting water quantity and quality.

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Understanding the distinct yet interconnected roles of the EPA and DWER is crucial. The EPA primarily focuses on the assessment of significant projects and provides independent advice, while DWER is responsible for the administration and enforcement of a broader range of environmental regulations and approvals. Depending on the nature and scale of their project, businesses will likely interact with both agencies throughout the environmental approvals process

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Step 3: Navigating the Environmental Impact Assessment (EIA) Process (for significant proposals)

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For development proposals with the potential for significant environmental impacts, the Environmental Impact Assessment (EIA) process under Part IV of the Environmental Protection Act 1986 is the primary pathway for obtaining approval. This process involves several distinct stages:

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Stage 1: Referral of a Proposal to the EPA: The process formally begins with the referral of a proposal to the EPA. This can be initiated by the project proponent, other government agencies, non-government organisations, or even members of the public who believe a project is likely to have a significant environmental effect. It is highly advisable for proponents to engage in early discussions with the Department of Water and Environmental Regulation (DWER) and other relevant stakeholders before submitting the formal referral to identify potential issues and streamline the subsequent stages. There is an initial fee payable to DWER by the proponent at the time of referral.

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Stage 2: EPA to Decide Whether to Assess a Referred Proposal: Once a valid referral is registered, the EPA undertakes a preliminary assessment to determine if a formal EIA is necessary. If the EPA decides to assess the proposal, it will also determine the level of assessment required, which can be either a Public Environmental Review (PER), the highest level of assessment, or an Assessment on Proponent Information (API), a less formal process. The EPA invites public comments on whether the proposal should be assessed and, if so, at what level. It is important to note that the EPA's decision on whether or not to assess a proposal and the determined level of assessment are not subject to appeal.

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Stage 3: Assessment of Proposals: The assessment phase involves a series of potential steps, the specific requirements of which depend on the level of assessment determined by the EPA:

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- Scoping the Proponent Environmental Review (Often Required): If the EPA deems more detailed information necessary, an Environmental Scoping Document (ESD) is prepared, either by the EPA or the proponent. The ESD outlines the specific requirements for the proponent's environmental review, including the key environmental factors to be addressed and the necessary studies and investigations.

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- Preparation of Additional Assessment Information: The EPA may require the proponent to conduct a comprehensive environmental review and prepare an Environmental Review Document (ERD) detailing their findings. Proponents may also need to develop Environmental Management Plans (EMPs) to demonstrate how environmental impacts will be managed. The EPA can also request information from any relevant party.

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- Public Review (Often for PER): For proposals undergoing a PER, the ERD and other relevant information are typically made available for public review. The proponent is then responsible for addressing any submissions received.

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- Preparation of EPA Draft Assessment Report: After gathering sufficient information and completing the public review (if applicable), the EPA assesses the proposal, considering all information received, including the referral, ERD, public submissions, and its own investigations. The EPA also considers the adequacy of the proposed EMPs and develops draft conditions. Finally, a draft assessment report is prepared.

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- Completion of the EPA Assessment: The EPA finalises its assessment by considering the draft report and proposed conditions. The Authority agrees on the key environmental factors, decides whether to recommend implementation, adopts the final assessment report, and approves its submission to the Minister.

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Stage 4: EPA Report and Recommendations to the Minister: Upon completing the assessment, the EPA prepares a report with its recommendations for the Minister for the Environment. This report outlines the key environmental factors, the EPA's recommendation on whether the proposal should proceed, and any conditions or procedures that should apply. For strategic proposals, the report will also address the implementation of future related proposals. The EPA's report and recommendations are made publicly available on its website. Following publication, there is a period during which any person can appeal to the Minister against the report's content and recommendations.

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Stage 5: Ministerial Decision: The final decision rests with the Minister for Environment, who considers the EPA's report, any public appeals, and consults with other relevant Ministers and any public appeals and consults with other relevant ministers and decision-making authorities. If the Minister approves the proposal, a Ministerial Approval Statement is issued, outlining the specific conditions and procedures the proponent must follow during implementation. Compliance with these conditions, including any required EMPs, is monitored by DWER. After a Ministerial Approval Statement is issued, proponents can request changes to the proposal or implementation conditions under specific circumstances and with relevant approvals. Fees are payable to DWER at various stages of the EIA process.

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Step 4: Exploring Other Necessary Approvals

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Beyond the formal EIA process for significant proposals, businesses in WA may require a range of other environmental approvals, often running concurrently or independently:

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Native Vegetation Clearing Permits (NVCP): Under Part V of the EP Act, clearing native vegetation generally requires a permit unless an exemption applies. The application process and assessment by DWER consider factors such as the type and extent of vegetation, its conservation significance, and the proposed clearing purpose.

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Works Approvals and Licences for Prescribed Premises: Facilities with the potential for significant emissions require a Works Approval before construction or alteration and a Prescribed Premises Licence to operate. These approvals, granted under Part V of the EP Act, contain conditions to manage and monitor potential environmental impacts.

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Mining Act Approvals: Mining projects require specific approvals under the Mining Act 1978. A Programme of Work (PoW) is needed for exploration activities, outlining proposed works and environmental controls. For mining leases, a comprehensive Mining Proposal and Mine Closure Plan are mandatory, detailing the environmental impact assessment and rehabilitation plans.

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Water-Related Approvals: The Rights in Water and Irrigation Act 1914 governs the use of water resources. Permits are required for activities such as constructing bores, extracting water from various sources, and interfering with watercourses, reflecting the increasing importance of water management in WA.

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Aboriginal Heritage Act Approvals: If a project is likely to impact Aboriginal heritage sites, a Section 18 Permit is required under the Aboriginal Heritage Act 1972. This process emphasises consultation with relevant Traditional Owners to ensure the protection of cultural heritage.

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Commonwealth EPBC Act Approvals: Projects with the potential to significantly impact Matters of National Environmental Significance will necessitate a separate referral and assessment process under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999. While bilateral agreements aim to streamline assessments, businesses must be aware of their obligations under both State and Commonwealth legislation.

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The need for multiple environmental approvals underscores the complexity of the regulatory landscape. Businesses should conduct thorough due diligence early in the project lifecycle to identify all necessary permits and understand their interdependencies to ensure a smooth and compliant project progression. Recent reforms aim to facilitate parallel processing of certain approvals, which could potentially expedite overall project timelines.

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Step 5: Understanding Timelines and Costs

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The timelines associated with environmental approvals in Western Australia can vary significantly depending on the project's scale, complexity, environmental sensitivity, and the thoroughness of the application. While the EPA's target timeframe for formal environmental assessments is a minimum of 40-58 weeks, actual timeframes often extend beyond this. For instance, a major infrastructure project like the Westport port development is expected to take 2-3 years for environmental approvals. Statutory timelines do exist for certain EPA decisions, such as the 28-day period for deciding whether to assess a proposal. However, concerns about increasing assessment timeframes and government efforts to address these bottlenecks are ongoing.

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The costs associated with environmental approvals in WA are governed by the Environmental Protection (Cost Recovery) Regulations 2021 for Part IV EIA referrals and assessments. The initial referral fee is currently $32,000. If a formal assessment is required, the total cost can vary significantly, with the average cost for a formally assessed proposal being around $448,000. The fees are structured into several categories, including the referral fee, a base assessment fee, a complexity fee (which depends on factors like the project being strategic, involving a Commonwealth-accredited assessment, requiring public comment, the number of key environmental factors, the need for offsets, and the project's footprint), annual compliance fees for approved proposals, and amendment fees. Businesses can utilise the EPA Fee Calculator on the Environment Online platform and refer to DWER's cost recovery information for more detailed estimates. Separate fees also apply for other approvals like Native Vegetation Clearing Permits, Works Approvals, and Prescribed Premises Licences.

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Step 6: Identifying and Addressing Common Challenges

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Navigating the environmental approvals process in WA often presents several challenges. The complexity of the regulatory framework, with its multiple layers of legislation and numerous agencies, can be difficult for businesses to navigate. Delays in EPA assessments due to increasing workloads and the complexity of applications are a growing concern. Submitting inadequate or incomplete referral information can lead to requests for more information and prolong the initial stages. The public and stakeholder consultation phases can also be challenging, requiring detailed responses to concerns raised. The potential for appeals against EPA recommendations or Ministerial decisions can introduce further delays. Historically, obtaining timely approvals from other decision-making authorities has been a hurdle, although recent reforms aim to address this. Changes to the project scope during the approvals process can necessitate amendments and further assessment. A lack of sufficient baseline environmental data can also lead to delays as further studies may be required. While bilateral agreements exist, potential duplication between State and Commonwealth assessment requirements can still occur. Finally, emerging environmental issues and evolving government policies can lead to changes in assessment requirements. The WA Premier's acknowledgment that the "system isn't working" highlights the significant challenges businesses face. Public and stakeholder engagement, while crucial, can cause delays if concerns are not proactively addressed. Recent reforms aiming to streamline the process, particularly through parallel approvals and reduced duplication, offer hope for improved efficiency.

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Step 7: Key Considerations for a Smooth Approval Process

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To navigate the environmental approvals process in WA more effectively, businesses should consider the following:

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- Engage Early and Often: Initiate discussions with environmental consultants and relevant agencies (EPA and DWER) early in project planning.

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- Invest in Thorough Preparation: Ensure all documentation is comprehensive, accurate, and supported by robust environmental data.

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- Clearly Understand All Approval Requirements: Identify all necessary approvals at both State and Commonwealth levels.

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- Proactive Stakeholder Engagement: Consult with the community, Traditional Owners, and other interested parties early and throughout the process.

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- Develop Robust Environmental Management Plans (EMPs): Prepare detailed plans demonstrating how environmental impacts will be managed.

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- Be Responsive and Timely: Respond promptly and thoroughly to information requests and public submissions.

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- Seek Expert Guidance: Engage experienced environmental consultants and legal professionals.

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- Stay Informed About Regulatory Changes: Keep up-to-date with changes in legislation, policies, and guidelines.

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- Budget Adequately for Time and Costs: Account for the potentially lengthy timelines and significant costs involved.

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- Consider Strategic Proposal Assessment (for large projects): Explore this option for large, complex projects.

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- Early engagement and thorough preparation are consistently highlighted as critical for a smoother approval process. Strong stakeholder engagement can build trust and potentially reduce objections.

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Conclusion

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Navigating environmental approvals in Western Australia requires a thorough understanding of the regulatory landscape, proactive engagement with relevant government agencies and stakeholders, and meticulous preparation. The process, while potentially complex and time-consuming, is crucial for ensuring sustainable development and protecting the state's valuable environment. Businesses are advised to commence planning early, seek expert guidance, and maintain open communication throughout the approval journey. Our law firm possesses the expertise to assist businesses with every stage of this process, from initial assessment to final approval.

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Contact us today for a consultation to discuss your project's environmental approval needs and how we can help you navigate this critical path effectively.

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