Submission to Mr Leonard Allen, Port Stephens Council
21 March 2014
Re: Development Application 16-2012-57-1
Dear Mr Allen:
EcoNetwork – Port Stephens Inc. strongly objects to DA 16-2012-57-1 which proposes a 58 berth extension to the existing marina at Soldiers Point. This submission is provided to:
1) correct some of the incorrect information in our previous submission dated 17 February 2014,
2) clarify our position on the likely significant threat to the local population of critically endangered beach stone curlews breeding on Dowardee Island and the endangered loggerhead and green turtles that seasonally reside in Port Stephens,
3) call on Port Stephens Council (PSC), as the custodian of the natural environment of the Port Stephens Shire and consent authority for this DA, to complete the Species Impact Statement (SIS) process that PSC started with letters to the Office of Environment and Heritage (OEH) on 16 May 2012 (informing OEH that significant effects on threatened species were likely) and to the proponent (Clippers Anchorage) on 29 May 2012 (notification that an SIS with concurrence of OEH is required for this development). See the submission on this DA from Jean Armstrong dated 21 March 2014 for more detail of the correspondence between PSC, OEH and the proponent.
Correction of Econetwork submission dated 17 February 2014
In our previous submission we mistakenly accused OEH of negligence for not following through with the SIS requirements for this development. We have subsequently learned that legal obligations under the Environmental Planning and Assessment Act 1979 (EP&A Act) for determining the likelihood of a significant impact on threatened species and implementing the SIS process for threatened species actually lie with PSC. The fact that PSC did not proceed beyond the initial correspondence referred to in Point 3 above and did not seek to establish concurrence with OEH, reveals that PSC is the negligent authority, not OEH.
Assessment of likelihood of significant effect on threatened species
We have subsequently determined how the likelihood of a significant impact on threatened species should be assessed under the EP&A Act and Threatened Species Conservation Act (TSC Act) by referring to the document on the OEH website entitled “Threatened species assessment guidelines The assessment of significance” hereafter referred to as the Guidelines. It is apparent that Mr David Paull, the Environmental Officer at PSC who initially recommended that an SIS should be required for this DA (see details in submission from Jean Armstrong 21 March 2014), is well versed in the application of the Guidelines and associated legislation. This is confirmed by the fact that he subsequently left his job at PSC and now works for OEH assessing impacts on threatened species. The fact that implementation of an SIS for this development ceased when Mr Paull left PSC, indicates that the current staff in the Resource Unit at PSC do not have the necessary knowledge and understanding of the Guidelines and associated legislation to enforce the statutory SIS requirements.
The Guidelines indicate that the initial step in the “assessment of significance” is: “The applicant/proponent should develop a list of threatened species, populations and ecological communities (“listed on Schedules 1, 1A and 2 of the TSC Act and Schedules 4, 4A and 5 of the Fisheries management Act”) which may be affected directly or indirectly by the proposed action, development or activity.” However the proponent for this DA has not yet been required to provide a comprehensive list of all threatened species that are known to occur in the vicinity of the proposed development site, despite the fact that Econetwork has called for such a list in each of our previous submissions. The proponent has also made no attempt within the EIS to show that a threatened species has not been listed in the EIS based on the following criteria specified in the Guidelines: “A species does not have to be considered as part of the assessment of significance if adequate surveys or studies have been carried out that clearly show that the species: does not occur in the study area, or will not use on-site habitats on occasion, or will not be influenced by off-site impacts of the proposal. Otherwise all species likely to occur in the study area (based on general species distribution information), and known to use that type of habitat, should be considered in the rationale that determines the list of threatened species, populations and ecological communities for the assessment of significance.” In an internal memorandum from David Paull to Amanda Gale and Leonard Allen dated 12 December 2012, Mr Paull listed three threatened sea turtle species, 12 threatened marine mammal species, 17 threatened marine and shore birds and 27 marine and shore birds with international JAMBA AND CAMBA protection from the NSW Wildlife Atlas that may be “using the waters of Port Stephens”. Most of these species are not even mentioned in the proponent’s Environmental Impact Statement (EIS) or the Addendum Report.
The next step in the assessment of significance is to assess each threatened species using “Factors of assessment” as specified in the Guidelines: “These guidelines have been prepared to help applicants/proponents of a development or activity with interpreting and applying the factors of assessment. The aim of the guidelines is to help ensure that a consistent and systematic approach is taken when determining whether an action, development or activity is likely to significantly affect threatened species, populations or ecological communities, or their habitats either directly or indirectly.” The proponent makes no reference to these factors of assessment in the EIS for this DA and simply states the opinion of the paid private consultant that this development will have no significant impact on any flora or fauna. Whereas the Guidelines state: “ The assessment of significance should not be considered a ‘pass or fail’ test but a system allowing applicants/proponents to undertake a qualitative analysis of the likely impacts, and ultimately, whether further assessment needs to be undertaken through a species impact statement. All factors must be considered and an overall conclusion must be drawn from all factors in combination. Where there is reasonable doubt regarding the likely impacts, or where detailed information is not available, a species impact statement should be prepared.
The case for requiring an SIS
Our previous submissions have expressed particular concerns for likely impacts of this development on three threatened species: 1) the Beach Stone Curlew (listed under the NSW TSC ACT as Critically Endangered), 2) the Loggerhead Turtle (listed under the TSC Act as Endangered) and 3) the Green Turtle (listed under the TSC Act as Vulnerable). We believe that a case for significance with respect to the Beach Stone Curlew results from the application of the first factor of assessment in the Guidelines: “in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction”. We believe the pair of Beach Stone Culews that breed on Dowardee Island and their two young offspring constitute a unique local population (the southern-most of the 13 adults found in NSW during a survey conducted by OEH in 2009). As documented by David Paull and submissions on this DA by Econetwork, Hunter Bird Observers Club, Trevor Murray and the Soldiers Point Community Group the significant threat to this population is abandonment of the nest by the breeding pair due to increased boat traffic near the island, increased noise and lights during both the construction and operation phases of the development, as well as impacts on nearby foraging habitat. It is quite possible that the existing nesting site on Dowardee Island is the only suitable site in Port Stephens, so that abandonment will result in extinction of the local population.
We believe that a case for significance with respect to the Loggerhead and Green Turtles results from the application of the factor of assessment in the Guidelines which states: “in relation to the habitat of a threatened species, population or ecological community: (i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and (ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and (iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality”.
Our previous submissions have all emphasised that this development will result in a narrower channel, increased boat traffic and increased tidal currents in this area. We believe this will result in an increased number of fatal boat strikes that will impact on the long-term survival of these species, particularly the declining population of Loggerhead Turtles. This factor was also highlighted by David Paull.
The bottom line
We believe that the case for significance with respect to these species is strong based on concurrence by David Paull (your own Environmental Officer), Hunter Bird Observers Club (with membership who are highly respected experts in this field), and Econetwork (the peak body for local conservation groups) and other knowledgeable individuals such as Trevor Murray. Even if you doubt the scientific basis for this concurrence, please note that the Guidelines say: “Application of the precautionary principle requires that a lack of scientific certainty about the potential impacts of an action does not itself justify a decision that the action is not likely to have a significant impact. If information is not available to conclusively determine that there will not be a significant impact on a threatened species, population or ecological community, or its habitat, then it should be assumed that a significant impact is likely and a species impact statement should be prepared.” As custodians of the natural environment of Port Stephens Shire and the consent authority for development, please do the right thing and require a comprehensive Species Impact Statement for this DA so that recognised professional staff at OEH can make the final decision about the significance of the impact on threatened species.
EcoNetwork Port Stephens Incorporated has made no reportable political donations within the last two years.
Dr. Bruce Pease
President of EcoNetwork-Port Stephens Inc.