By Mark Barnett,
Technical Director
E: Mark@28south.com.au;
M: 0411 251 072
Editorial note: At the time of publication, reform of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is progressing through the parliamentary inquiry phase. The proposed Environment Protection Reform Bills have passed the House of Representatives, and public consultation on the draft National Environmental Standards remains open until 5 December 2025.
Major reform of the EPBC Act has been talked about for years, but with the introduction of the Environment Protection Reform Bill, the impending creation of the new National Environmental Protection Agency (NEPA) and draft National Environmental Standards (NES), we are now moving from theory to reality. This is no longer an abstract policy discussion. It is imminent structural change.
A lot of the coverage so far has focused on the politics of the reforms or the headline-level question of whether they are “good” or “bad.” But across the clients we work with – urban development, roads, renewables, transmission, pipelines – a far more immediate question keeps surfacing:
“Given where my project sits right now, what should I actually do?”
The answer depends entirely on your project’s position in the pipeline. The reforms will not affect everyone equally. Some projects are exposed in ways proponents may not yet recognise; others have opportunities they may not have realised.
Before we step through the main categories of project, it’s worth acknowledging something important that has been missing from much of the public commentary.
While the reforms aim, ultimately, to produce a more efficient, transparent and consistent assessment system, the transition to that more stable future will take years, not months. In the meantime, an environment of compounded uncertainty will need to be navigated. NEPA must be established, staffed and trained. The NES need to be finalised. Offset calculators need to be built. Net-gain requirements need to be road-tested by real projects. Bioregional plans must be developed and zoned before they become usable decision tools. Even the “streamlined assessment pathway” needs detailed design and regulator training.
Until these pieces settle, proponents, consultants, NEPA and the Department of Climate Change, Energy, the Environment and Water (DCCEEW) will all be operating within a framework that’s still under construction. That brings schedule, cost and regulatory uncertainty – and it’s essential to plan for that now.
With that context in mind, here is what proponents should be thinking about based on where their project sits today.
Projects that are intending to be referred – but haven’t yet
Not all unsubmitted projects are alike. Some are ‘clearly referrable’ under the current Act: their potential MNES impacts are well understood, the likelihood of a controlled action determination is high, and the question is one of timing rather than eligibility. These projects stand directly in the path of the reforms. If proponents wait too long, they face an untested assessment pathway, mandatory net-gain offsets (which remain undefined), and a more decisive unacceptable-impact test – each of which materially changes the feasibility and cost profile of the project. For these, there is a strong argument for acting now, while the rules and expectations are still familiar and settled. Even so, commencement of the EPBC Act reforms offers no guaranteed immunity for projects that are already in the system.
More challenging are the ‘borderline referrable’ projects. These are the ones where it is genuinely arguable – based on survey results, habitat condition, design avoidance, or uncertainty about species use – that the project may not constitute a significant impact to MNES under the current Act. For many, the driver for referral is not ecological at all but commercial: lenders seeking legal certainty, investors seeking clarity, or proponents wanting to avoid downstream disputes about whether a referral should have been made.
These projects face a different kind of exposure. If referral is delayed and the new framework commences first, the threshold for what constitutes “acceptable risk” may tighten. Under the MNES Standard, the evidentiary requirement is expected to be higher and the unacceptable-impact test to be stricter. Decision-makers may adopt a more conservative stance while the new system beds down. A borderline project that does not require referral today may find itself required to refer tomorrow simply because the criteria around it have shifted.
For these proponents, the question is not “refer now or later?”, but “is it safer to resolve this under the current, better-understood rules?” For some, the answer will be “yes”. For others – particularly in areas likely to be earmarked as development zones under future bioregional plans – it may be worth holding on. But the risk of being caught between frameworks is significant, and proponents should consider that risk carefully.
Projects that have self-assessed as “not requiring referral”
There will be a sizeable number of projects that proponents have self-assessed under the current Significant Impact Guidelines and determined do not require EPBC referral. This is a perfectly legitimate position under the existing system, particularly where impacts are minor, well-mitigated or genuinely unlikely to be significant.
However, this group faces a distinct set of risks under the reform pathway, because the threshold for what is considered a significant or unacceptable impact is likely to shift. Draft policy material indicates that the MNES Standard will introduce a more structured interpretation of evidence, a tighter application of the mitigation hierarchy, and a clearer articulation of what constitutes unacceptable impacts – particularly where MNES are highly sensitive or occur in fragmented, vulnerable landscapes.
In that environment, projects that are currently considered borderline-non-referrable may well fall into referral territory once the new law commences. NEPA will have explicit authority to examine non-referred actions and “call in” projects where it believes MNES may be significantly affected.
This creates a very real risk that a project which has progressed some way through planning, design or early works under the assumption that EPBC Act referral is not required may suddenly become the subject of a late-stage federal assessment. Depending on the project’s level of commitment – contractual, financial or otherwise – that shift could be deeply disruptive and expensive.
For proponents in this category, the question is not simply whether referral is required under the current Significant Impact Guidelines. It is whether the defensibility of a non-referral decision will hold under a different framework, tested by a different regulator, applying a different threshold. In some cases, the prudent step may be to seek advice now on whether a voluntary referral under the existing, better-understood rules is strategically safer than waiting to see how NEPA interprets matters once the new Act is in force.
Projects referred but deemed “Not a Controlled Action”
“Not a Controlled Action” (NCA) decisions often feel like a shield. Under the reforms, that shield has some cracks.
Should the Bill be adopted in its current form, NCA determinations will expire after five years with no option for extension. A meaningful design change after that period may require re-referral or reconsideration. And when NEPA becomes operational, it will inherit responsibility for re-assessing all lapsed NCA decisions. NEPA is likely to approach “no significant impact” determinations with a more structured, formal interpretation than current practice.
For an NCA decision made under the current legislation, it is not yet clear whether the 5-year currency rule will automatically apply (unless transitional provisions explicitly impose it). If you’re holding an NCA determination, you should not assume that you have unlimited time. Until the transition rules are finalised, treat the existing NCA decision as potentially at risk of lapsing if you do not substantially commence within a reasonable timeframe (e.g., within 5 years).
Now is the time to re-examine your project. Confirm your MNES baseline remains accurate. Be very cautious with design amendments. The risk of inadvertently stepping into a new referral and a new assessment framework is real.
Projects under assessment (PD, PER or EIS)
This is the group facing the greatest exposure.
A project already deep into its assessment may still face new requirements late in the process if reforms commence before approval, and if transitional protections are not provided. The transition rules, and the scope of any exemptions they provide, will be critical for determining how projects in this space are treated.
The MNES Standard is expected to raise the evidentiary bar substantially. It is likely to demand more explicit demonstration of the mitigation hierarchy, with greater emphasis on avoidance measures. The Draft Policy Position for the Standard emphasises “appropriate and suitable” data, which may necessitate revisiting surveys, strengthening modelling outputs or refining ecological justification.
First Nations knowledge will have to be included in a more structured, transparent way. Greenhouse gas reporting (Scope 1 and 2), even for projects that did not originally anticipate it, may emerge as an additional information requirement.
Even the assessment pathway itself may change. If the new streamlined model commences partway through your process, your documentation may need to be re-aligned. For proponents currently benefiting from bilateral assessment arrangements, the suspension of those agreements until state processes are realigned may have both schedule and regulatory implications.
Offsets present a further source of uncertainty. The proposed introduction of a Restoration Contribution Charge (financial offset option), expanded access to advanced offsets and a mandatory net-gain framework with fixed management terms for proponent-delivered offsets (up to 100 years) all have the potential to disrupt existing offset logic. Projects that have already progressed significant offset negotiations under the current EPBC Offset Policy may find their strategy rendered inadequate under the new framework.
In this environment of uncertainty, early action is the strongest defence. Review your assessment and offset strategy against the emerging MNES and Offsets Standards. Identify potential gaps. Seek clarity from DCCEEW about transitional arrangements. It is far better to understand your exposure now than to be told that key elements need re-work deep into the process.
Projects with EPBC approval, now in delivery
These projects are more insulated but not immune.
If NEPA becomes operational on 1 July 2026, as intended, it will assume compliance responsibility for all existing approvals. It is unlikely to administer them as DCCEEW has.
Expect a more assertive compliance environment: increased site inspections, tighter documentation standards, more formal interpretations of approval conditions, and far less tolerance for informal or undocumented agreements. Offset delivery will face heightened scrutiny, particularly where performance is marginal or monitoring is inconsistent.
This is the time to get your house in order. Document informal understandings, tighten reporting, audit your conditions, and check offset trajectories before NEPA’s compliance arm comes online.
Final thought
These reforms are designed to build a stronger, clearer environmental approvals system. Over time, they may achieve that. But between now and that point of stability lies an unsettled period in which the rules will shift, the tools will be incomplete, and key decision-makers will still be finding their feet.
Understanding where your project sits in the pipeline, and acting early, is the best way to stay ahead of that uncertainty.
28 South Environmental is working with proponents across Queensland and beyond to help them navigate this transition. If you’d like to understand your project’s exposure, we’re here to help.
All project and general enquiries can be forwarded to projects@28south.com.au.