Environmental Compliance Under EPBC for Developers and Manufacturers

In Australia, environmental compliance is not just a regulatory requirement. It’s a critical part of sustainable development. As industries expand and infrastructure projects accelerate, there is growing pressure on natural ecosystems, and protected species. 

To safeguard these resources, the Australian government enforces a range of environmental laws, the most comprehensive of which is the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The EPBC Act serves as the cornerstone of federal environmental legislation. It provides a legal framework to protect and manage Matters of National Environmental Significance (MNES), including endangered species, national parks, wetlands of international importance, and heritage sites. Any action that is likely to have a significant impact on these protected matters requires federal assessment and approval under the EPBC.

For developers and manufacturers, understanding and complying with the EPBC Act is crucial. Whether you’re building a housing estate, expanding a factory, or launching a large-scale infrastructure project, your activities may intersect with sensitive environmental areas or species habitats. 

In this article, let’s understand the environmental compliance under EPBC for developers and manufacturers. 

What Is the EPBC Act?

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is Australia’s central piece of environmental legislation. It provides a national framework for protecting the environment, particularly in areas and for species considered to be of national environmental significance.

The primary goal of the EPBC Act is to ensure that activities with the potential to impact Australia’s unique natural and cultural heritage significantly are assessed and regulated appropriately. This includes environmental concerns and the protection of Indigenous heritage, World Heritage properties, and ecological communities that are at risk of degradation or extinction.

At the heart of the Act is a set of MNES, specific triggers that require federal oversight if a proposed action could have a significant impact. These matters include:

• World Heritage properties
• National Heritage places
• Wetlands of international importance (Ramsar sites)
• Listed threatened species and ecological communities
• Listed migratory species
• Commonwealth marine areas
• The Great Barrier Reef Marine Park
• Nuclear actions (e.g., uranium mining)

If a proposed development or industrial activity is likely to affect any of these MNES, it must be referred to the federal environment minister for assessment under the EPBC Act. This ensures that environmental protection remains consistent across state and territory lines and that decisions are made with the long-term sustainability of Australia’s natural assets in mind.

Who Must Comply with the EPBC Act?

Compliance with the EPBC Act is required by any individual or organization undertaking an “action” that is likely to have a significant impact on an MNES. Under the Act, an “action” is broadly defined and includes:

• Construction or expansion of infrastructure
• Industrial or commercial development
• Land clearing or vegetation removal
• Resource extraction, including mining or quarrying
• Changes in land or water use
• Emissions, discharges, or waste disposal that affect protected ecosystems

This broad definition encompasses a wide range of stakeholders, including developers and manufacturers, within the compliance scope.

Developers

Real estate developers, infrastructure firms, and mining or energy companies must comply when projects intersect with ecologically sensitive areas or protected habitats. For example:

• Building a residential or commercial complex near a wetland
• Constructing roads, rail lines, or pipelines through bushland home to threatened species
• Establishing renewable or non-renewable energy projects that may disturb MNES

Manufacturers

Manufacturing operations may trigger EPBC compliance when their activities result in environmental impacts such as pollution, habitat disruption, or expansion into sensitive zones.
Common triggers include:

• Facility expansions or upgrades that increase emissions or waste discharge
• Construction of new plants on or near protected land or waterways
• Waste storage or disposal that could affect threatened species or ecosystems

Whether a project involves physical development or operational changes, the responsibility to assess and manage environmental risks under the EPBC lies with the project proponent, that is, the individual, business, or entity proposing the action. Failing to fulfill this obligation can result in severe legal and financial consequences, including stop-work orders and substantial penalties.

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Key Compliance Triggers Under the EPBC Act

Not every activity requires federal oversight, but certain key triggers under the EPBC Act determine when an action must be referred for federal environmental assessment. Understanding these triggers is essential for developers and manufacturers to avoid unintentional breaches.

When Does an Action Require Federal Assessment?

An action must be referred to the federal environment minister if it is likely to have a significant impact on any MNES. Significance is judged not by intent, but by consequence, even unintended or indirect effects can trigger assessment requirements.

If there’s uncertainty about whether an action will be significant, project proponents are encouraged to refer their proposal voluntarily. This precautionary step can help avoid non-compliance.

Examples of Triggering Activities

The following types of activities typically require EPBC assessment when they intersect with protected areas or species:

• Clearing native vegetation that provides habitat for threatened species
• Developing land near wetlands listed under the Ramsar Convention
• Excavation, drilling, or waste disposal in or adjacent to World Heritage sites
• Expanding industrial facilities where emissions or discharges may impact a Commonwealth marine area
• Altering water flows affecting migratory bird habitats or sensitive ecosystems

Even projects with local or state approvals can still require federal review if MNES are at stake.

State vs. Federal Triggers: What’s the Difference?

Australia operates under a dual environmental governance model, with both state/territory and federal laws applying. While state-level approvals focus on local impacts, the EPBC Act zeroes in on nationally and internationally significant values.

For example:

• A developer may receive state approval for a housing estate, but if the site supports a nationally listed threatened species, it must also undergo EPBC referral.
• A manufacturer may hold a state environmental license, but if expansion impacts a Ramsar wetland, federal compliance is still required.

In some cases, bilateral agreements between the Commonwealth and the states streamline the process by recognizing certain state assessment processes as equivalent, but referral to the EPBC regulator remains the first step.

The Approval Process of the EPBC

Understanding the EPBC approval process can seem complex, but it follows a structured path designed to ensure that environmental impacts are thoroughly assessed before any significant action proceeds. 

Here’s a step-by-step breakdown of how developers and manufacturers should approach compliance under the EPBC Act.

Step 1: Determining Whether Approval Is Required

Before taking any action, proponents must determine if their project is likely to have a significant impact on MNES. This can be done through:

• Self-assessment using EPBC significance guidelines
• Engaging environmental consultants to evaluate potential impacts
• Seeking advice from the Department of Climate Change, Energy, the Environment and Water (DCCEEW)

If there’s any uncertainty, it’s safer to refer to the action voluntarily, penalties for failing to refer are severe.

Step 2: Submitting an EPBC Referral

If the proposed action may have a significant impact, the next step is submitting a referral to the federal environment minister. The referral must include:

• A clear description of the proposed activity
• Details of the location and potential environmental impacts
• Supporting documentation, including maps and studies

The minister (or a delegate) will review the referral and make one of three determinations within 20 business days:

1. Approval not required: The project can proceed without further EPBC assessment
2. Approval required: The project will be assessed under the EPBC Act
3. More information needed: Additional details must be submitted before a decision is made

Step 3: Environmental Assessment

If approval is required, the project undergoes an environmental impact assessment, which can take one of several forms depending on the complexity of the action:

• Referral with preliminary documentation: For lower-impact projects with straightforward issues
• Environmental Impact Statement (EIS): or more complex or controversial projects
• Public Environment Report (PER): Includes public consultation and targeted impact analysis
• Assessment by inquiry: Used in rare, high-stakes cases

The chosen assessment level will dictate the extent of studies required and whether public consultation is mandatory.

Step 4: Ministerial Decision and Conditions of Approval

After the assessment is complete, the minister reviews the findings and determines whether to approve the action, and if so, under what conditions. These conditions often include:

• Environmental management plans
• Habitat protection or offset requirements
• Regular monitoring and reporting obligations
• Limitations on operating hours or emissions

Once approved, these conditions become legally binding. Breaching them can result in enforcement actions, fines, or revocation of approval.

This process, while rigorous, gives businesses legal certainty and helps reduce long-term environmental risks. Early engagement and thorough preparation can significantly streamline approval timelines and improve project outcomes.

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Compliance Obligations for Developers and Manufacturers

Securing EPBC approval is only the beginning. Once a project is approved, developers and manufacturers must adhere to a range of ongoing compliance obligations to ensure their activities continue to align with environmental expectations. These responsibilities are not optional, they are legally enforceable and critical for maintaining project continuity and reputation.

1. Conducting Environmental Assessments

Prior to receiving approval, proponents must carry out thorough environmental assessments as required by the EPBC process. This includes:

• Biodiversity and habitat surveys
• Impact assessments on water, air, soil, and nearby ecosystems
• Cultural heritage evaluations, where applicable

These assessments form the foundation for determining project viability and establishing mitigation measures.

2. Maintaining Records and Reporting

Once the project is approved, developers and manufacturers are required to:

• Maintain accurate records of all activities related to environmental management
• Submit regular compliance reports to the DCCEEW
• Report any non-compliance incidents immediately, along with corrective actions

Failure to maintain transparent records can lead to audits, penalties, or revocation of approval.

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3. Meeting Conditions of Approval

Each EPBC approval is issued with site-specific conditions, which may include:

• Habitat offsets or rehabilitation programs
• Limits on emissions, noise, or clearing activities
• Time-bound operating constraints (e.g., seasonal restrictions to protect breeding species)

Meeting these conditions is a legal requirement. Non-compliance can trigger enforcement measures, including civil or criminal proceedings.

4. Ongoing Monitoring and Adaptive Management

Approved projects must implement ongoing monitoring programs to:

• Track environmental indicators (e.g., water quality, species population, soil erosion)
• Detect unanticipated impacts early
• Adapt mitigation strategies as needed through adaptive management plans

This continuous feedback loop ensures the project remains aligned with environmental standards over time.

5. Integration with State Environmental Laws

While the EPBC Act governs matters of national significance, developers and manufacturers must also comply with state and territory environmental regulations. These may include:

• Local environmental impact assessments
• Licensing for emissions, waste, or water use
• Planning and zoning requirements

Many jurisdictions have bilateral agreements with the federal government to streamline overlapping processes, but proponents remain responsible for ensuring full compliance across all levels of government. Tracking state and federal requirements doesn’t have to be complicated. ComplianceOps helps you stay on top of everything with easy tracking, automated alerts, and simple reporting.

Adhering to these obligations not only minimizes legal and reputational risk but also demonstrates a genuine commitment to environmental stewardship, an increasingly important factor for stakeholders, investors, and communities.

Penalties for Non-Compliance with the EPBC Act

If a court determines that you’ve violated the EPBC Act or its associated regulations, you may be subject to civil or criminal penalties, including substantial fines and, in serious cases, imprisonment.

Fines under the EPBC Act are calculated using penalty units, the value of which is set under the Crimes Act 1914. As of 1 July 2024, one penalty unit is valued at $313, with adjustments made every three years to account for inflation.

Based on the current rate:

• Individuals can face civil penalties of up to 5,000 penalty units
• Corporations may be fined up to 50,000 penalty units
• Criminal penalties can include up to 7 years in prison and/or fines of up to 420 penalty units.

The severity of the penalty depends on several factors, such as whether:

• Your actions impacted an MNES
• You acted on or affected Commonwealth land without proper approval
• You breached conditions set in an approval or permit
• You provided false or misleading information, resulting in environmental harm

Understanding these consequences underscores the importance of strict compliance with EPBC requirements at every stage of your project.

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Common Pitfalls and How to Avoid Them

Environmental compliance under the EPBC Act can be complex, and many developers and manufacturers encounter challenges that cause costly delays or legal issues. Being aware of common pitfalls and knowing how to avoid them can save time, money, and reputational damage.

1. Failing to Identify MNES Early in Project Planning

One of the most frequent mistakes is failing to identify MNES at the earliest project stages. Overlooking these critical triggers can lead to unanticipated referral requirements later on, causing project delays or redesigns.

How to avoid:

• Conduct thorough environmental due diligence before project approval.
• Engage qualified environmental consultants to identify MNES.
• Use government resources and mapping tools to screen project sites early.

2. Ignoring Cumulative Impacts

Focusing only on the direct impacts of a single project ignores the cumulative effects—the combined environmental consequences of multiple projects or ongoing activities in the same area. This can lead to underestimating risks to threatened species or ecosystems, which may result in increased scrutiny.

How to avoid:

• Evaluate cumulative impacts as part of environmental assessments
• Collaborate with regulators and local stakeholders to understand broader regional pressures
• Incorporate adaptive management strategies to address evolving environmental conditions

3. Inadequate Stakeholder Consultation

Failing to engage with Indigenous groups, local communities, and environmental organizations can lead to missed cultural heritage issues or community opposition, resulting in reputational damage or legal challenges.

How to avoid:

• Initiate consultation early and maintain transparent communication
• Respect Indigenous heritage and involve traditional owners in decision-making
• Document all consultation efforts and address stakeholder concerns proactively

4. Delaying Referral Until Late in the Project Lifecycle

Waiting until the detailed design or construction phases to make an EPBC referral can stall projects and increase costs significantly if environmental approvals are required midstream.

How to avoid:

• Prioritize early referral or at least preliminary discussions with DCCEEW
• Integrate EPBC considerations into initial project planning and budgeting
• Use referral decisions to inform project timelines and avoid last-minute surprises

By proactively addressing these common pitfalls, developers and manufacturers can improve their chances of smooth EPBC compliance, reduce risks, and foster positive relationships with regulators and communities alike.

Best Practices for EPBC Compliance

Achieving seamless compliance under the EPBC Act requires a strategic approach that integrates environmental responsibility into every phase of a project. Developers and manufacturers who adopt best practices not only reduce risks but also contribute positively to sustainable development.

1. Early Engagement with Environmental Consultants and Legal Advisors

Bringing experts on board from the outset ensures that environmental and legal complexities are addressed proactively. Consultants help identify potential MNES and assess risks, while legal advisors ensure that regulatory requirements are clearly understood and met.

• Conduct preliminary environmental audits during project conceptualization
• Use expert advice to shape project scope and avoid non-compliance pitfalls

2. Incorporating Biodiversity Impact Studies in Feasibility Stages

Integrating detailed biodiversity and ecological studies early in the feasibility phase allows projects to identify sensitive habitats or species that may be affected. This informs design modifications or mitigation measures before costly investments are made.

• Commission targeted flora and fauna surveys before finalizing project plans
• Use study findings to develop effective environmental management and offset strategies

3. Using Digital Tools for Environmental Risk Mapping

Advanced digital mapping and Geographic Information Systems (GIS) enable precise identification of environmentally sensitive areas, MNES locations, and potential impact zones.

• Leverage government and commercial GIS datasets for site screening
• Utilize risk-mapping software to visualize and quantify environmental risks
• Integrate mapping outputs with project planning software for real-time decision-making

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• Link location-based risks with control owners and deadlines.
• Conduct collaborative risk workshops to localize responses.
• Trigger automated workflows for mitigation strategies.

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4. Transparent Community Engagement Strategies

Maintaining open and honest communication with Indigenous communities, local stakeholders, and environmental groups fosters trust and can ease the approval process.

• Develop clear engagement plans outlining consultation timelines and methods
• Respect cultural values and incorporate feedback into project designs
• Document all interactions and provide updates on project progress and mitigation efforts

By embedding these best practices into their operational framework, developers and manufacturers can easily deal with the EPBC compliance efficiently while supporting Australia’s environmental conservation goals.

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Understanding environmental regulations like the EPBC Act requires more than technical reports. It demands organized workflows, clear documentation, and reliable oversight. VComply helps developers and manufacturers stay compliant throughout the entire process, from planning to post-approval, reducing risk and ensuring accountability.

Key Features:

• Regulatory Task Management: Track EPBC approval milestones, referral deadlines, and permit conditions in one centralized dashboard.
• Environmental Compliance Framework: Align internal processes with EPBC and state laws through built-in policy templates and approval checklists.
• Monitoring & Reporting Tools: Maintain audit-ready records, schedule recurring environmental reports, and document site inspections effortlessly.

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Final Thoughts

Environmental compliance under the EPBC Act is a critical responsibility for developers and manufacturers operating in Australia. Aligning your projects with EPBC requirements safeguards nationally significant ecosystems and species while protecting your business from costly delays, penalties, and reputational damage.

The key to successful compliance lies in starting early, engaging with environmental and legal experts, and leveraging modern digital tools to identify and manage risks effectively. By adopting a proactive and transparent approach, you can streamline approvals, foster positive community relationships, and contribute to sustainable development.

Start early. Stay compliant.

EPBC compliance is more than a requirement; it’s part of responsible project delivery. VComply helps you identify, document, and manage environmental risks from the outset, with a clear audit trail and integrated workflows. Strengthen your compliance posture and reduce delays with a streamlined, tech-driven approach. Request a free demo to see how VComply supports EPBC-aligned risk management.