EPBC Act reforms: consultation on proposed regulations to support final tranche of reforms

The Department of Climate Change, Energy, the Environment and Water (DCCEEW) has released a suite of consultation papers setting out the proposed regulatory settings to support the final tranche of Australia's environment protection reforms. 

The consultation papers cover the proposed subordinate legislation needed to operationalise the remaining reforms to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), which are due to commence on or before 1 December 2026. This final stage of environmental reforms brings into effect the substantive heart of the reforms, including new approval tests, streamlined assessment pathways, and a new bioregional plan framework. 

The four key areas covered by the consultation papers are:

1. Streamlining single project approvals (Consultation Paper 1);
    
2. Enabling landscape scale pathways (Consultation Paper 2);
    
3. Delivering new compensation options (Consultation Paper 3); and
    
4. Other consequential amendments (Consultation Paper 4).

With submissions closing on 13 October 2026 and the reforms due to commence by 1 December 2026, the window for influencing the final regulatory design is narrow. This Insight explores the key takeaways from the consultation papers and areas of significance to watch in this new regulatory space. 

Regulations supporting changes to referrals and assessment pathways 

Consultation Paper 1 addresses the proposed regulatory amendments to support the incoming changes to the referral, assessment and approval framework in the EPBC Act. The Paper proposes changes to Schedules 2 and 4 and Parts 4 and 5 of the Environment Protection and Biodiversity Conservation Regulations 2025 (Cth) (EPBC Regulations), which prescribe information requirements for referrals and assessments. 

EPBC Act project assessment pathways

Consultation Paper 1 states that under the current EPBC Act, the assessment pathway for a project is commonly chosen based on the complexity of the proposed action. Once the final tranche of reforms commences, eligibility for a particular assessment pathway will be based on the availability of information for a project. The final tranche of reforms will consolidate the Environment Impact Statement (EIS) and Public Environment Reports into a single assessment pathway. Consultation Paper 1 outlines criteria for the following consolidated assessment pathways:

1. Streamlined assessment – available where a proponent is able to provide all information required to make an approval decision at the time of referral. This assessment pathway is not available for fossil fuel projects. Streamlined referrals could receive approval within 50 business days of submission.
    
2. Preliminary documentation – this pathway is available to projects which are close to qualifying for streamlined assessment but require minor additional information before an approval decision can be made. This assessment pathway allows the missing information to be obtained without the requirement of a full EIS assessment.
    
3. Environmental Impact Statement – the EIS pathway will be used wherever the information available for a project does not satisfy the requirements for streamlined or preliminary documentation assessment.

The proposed regulations will provide a clear checklist for proponents and decision-makers regarding the information requirements for each of these assessment pathways, as well as the information requirements for bilateral and public inquiry assessments. In particular, Schedule 4 and Part 5 of the EPBC regulations will be updated to provide the information requirements for each assessment pathway, according to the following categories:

• Social and economic matters;
   
• Demonstration of avoidance, mitigation and repair measures;
   
• Demonstration that the residual significant impact obligations meet the net gain test;
   
• Environmental record of the person proposing to take the action; and
   
• Spatial and data information.

For further information regarding the reforms which have commenced in relation to the bilateral assessment pathway, see our previous Insight EPBC Act: New National Environmental Standards and commencement of further reforms. 

EPBC Act project referrals

The proposed regulations will also prescribe information requirements for referrals. These changes will be provided in Schedule 2 and Part 4 of the EPBC regulations and will include:

• Administrative changes – referrals must be submitted electronically, contain an email address and specify how sensitive information will be managed;
   
• Project information – referrals must contain project location, proposed activities and timeframes, and a description of the nature and extent of the likely impacts on relevant protected matters for each of the project activities; and
   
• Mitigation information – referrals must provide information clarifying any impact reduction measures, including adding repair to the mitigation hierarchy and information regarding the benefits of offsets where applicable.

Information requirements at the referral stage will ensure that proponents are able to access the appropriate assessment pathway at the assessment stage based on the information provided. The proposed regulations will also clarify information requirements regarding:

• Data and information – they will consolidate existing regulatory requirements for data and information to ensure that the EPBC regulations do not duplicate the Data and Information National Environmental Standard (NES);
   
• Consistency with NES – they will provide a non-mandatory opportunity for proponents to demonstrate alignment with relevant NES within the referral documentation; and
   
• Environmental history – they will clarify the requirement to provide information on the environmental history of the proposed approval holder at the referral stage and at any stage where there is a change in the holder of the approval.

Changes to assessment of controlled actions

Section 136A of the EPBC Act, which is in the final tranche of reforms, will significantly change the way controlled actions are assessed and approved by requiring approvals, to be consistent with prescribed NES. Consultation Paper 1 states that the EPBC regulations will be amended to prescribe the NES for Matters of National Environmental Significance (MNES), Environmental Offsets, Community Engagement, and Data and Information for the purposes of section 136A(1). The Paper does not mention the First Nations NES, which is still being progressed. 

Consultation Paper 1 proposes changes to Part 5 of the EPBC regulations to support the NES framework, the net gain test and the unacceptable impacts test. This includes updating information requirements for a request to extend an approval period or vary a proposed action.

The Paper also notes that provisions relating to national interest proposals will commence on 1 December 2026 and do not require supporting regulations.

Changes to cost recovery measures

Consultation Paper 1 proposes to update Part 5 of the EPBC regulations to prescribe a baseline fee of $6,225 for assessment through the Streamlined Assessment Pathway. The EPBC regulations will also prescribe contingent fees for applications and decisions under the following sections of the EPBC Act, which will commence with the final tranche of reforms:

• Agreement to undertake minor or preparatory works (s 74AA): $1,353
   
• Reconsideration of a particular manner decision (s 79A): $6,577
   
• Reconsideration of a decision that a referral is clearly unacceptable (s 74C): $6,577
   
• Request to surrender an approval (s 145AA): $1,967

The proposed EPBC regulations will provide transitional arrangements to clarify how fees are applied to project approvals in the assessment pipeline prior to the commencement of the regulations. 

For further information regarding proposed fees, see Schedule A of Consultation Paper 1.

Introduction of bioregional plans

Consultation Paper 2 sets out the proposed regulatory landscape for new bioregional plans and strategic assessment pathways.

The final tranche of reforms will retain the guidance-type bioregional plans under Part 12 of the EPBC Act (now called bioregional guidance plans) and introduce bioregional plans as binding regulatory instruments under the proposed Part 12A. 

The proposed EPBC regulations for bioregional planning will prescribe key information about how bioregional plans will be made. For example, the regulations will prescribe that bioregional plans must be consistent with all four NES, and that bioregional guidance plans must be consistent with the Community Engagement NES and the Data and Information NES.

Consultation Paper 2 further proposes mandatory inclusions for bioregional plans, including:

• identifying the location of all MNES;
   
• specifying any residual impacts that will be addressed;
   
• justifying the boundaries of the plan;
   
• providing a monitoring plan for environmental objectives; and
   
• providing a Registration Charge Information Statement to determine how the bioregional plan registration charge payable by developers will be calculated.

The proposed EPBC regulations will prescribe further mandatory considerations for the five-yearly review of bioregional plans under proposed section 177CD of the EPBC Act. 

The proposed regulations will also prescribe NES for decisions under the strategic assessment pathway under Part 10 of the EPBC Act.

Consultation Paper 2 also states that there will be additional transitional rules.

Delivering new compensation options

Under the new section 527K of the EPBC Act, a controlled action that has a residual significant impact passes the net gain test if the approval attaches a condition requiring either or both compensation for damage to the impacted matter or payment to the restoration contribution fund. The restoration contribution fund will be managed by the Restoration Contribution Holder (RCH), a new statutory officeholder established in the last tranche of reforms on 24 August 2026. The final tranche of reforms will introduce the substantive provisions to enable this new compensation mechanism, allowing proponents to pay a restoration contribution charge as an alternative to, or alongside, delivering offsets.

Key regulatory settings proposed for the RCH include:

• Environmental Offsets Standard – the RCH must have regard to (but is not required to be consistent with) the Environmental Offsets Standard when delivering all types of restoration actions. A ‘have regard to’ rather than a ‘consistency’ standard is proposed because some Offsets Standard principles may not be applicable in the RCH context. For example, Principle 8 (offsets commencing prior to impact) may not always be achievable when a restoration contribution has already been paid;
   
• Commencement timeframe – restoration actions must be secured, registered and commenced within three years of the contribution being received;
   
• Acquitting liabilities in advance – the RCH can acquit liabilities through outcomes achieved by previous expenditure, effectively enabling restoration actions to be delivered in advance.  This power will be extended to bioregional plan amounts and exemption amounts, with unspent funds redirectable to other relevant projects;
   
• Maintenance period – restoration actions must be maintained for a minimum of 25 years, with a maximum of 100 years;
   
• Pooling of funds – the RCH may pool contributions across similar impacts to deliver larger, more strategic restoration outcomes;
   
• Alternative restoration actions – where a general restoration action is not feasible, the RCH may select an alternative. However, it must wait a minimum of one year before doing so, with the alternative to commence within four years of receipt. The same mechanism applies for alternative bioregional restoration actions.
   
• Transparency – the regulations will provide comprehensive management plans, a public register and annual reports. 

Advanced restoration actions (previously known as advanced offsets) allow proponents to register offsets in advance of project approval. While advanced offsets previously occurred through a policy framework, the final tranche of reforms will formalise a legal framework for advanced restoration actions under the proposed Part 11 of the EPBC Act. Consultation Paper 3 provides the proposed regulations to support this aspect of the reforms, including:

• Scope – advanced restoration actions apply to Part 9 assessments by regulation but will also be available administratively for projects progressing through Parts 4, 5, 10, and 12, and for actions by the RCH;
   
• Registration – DCCEEW will maintain a public register of advanced restoration actions, which will include detailed information including baseline conditions, spatial data, expected outcomes per protected matter and progress updates;
   
• Consistency with NES – a person applying for an advanced restoration contribution will need to ensure that the relevant project meets the requirements of the applicable NES at the time of application for the contribution; and
   
• Existing offsets – the framework will recognise and register actions already undertaken where it can be demonstrated they were carried out for an offsetting or restoration purpose, including under previous unlegislated arrangements.

Consultation Paper 4 addresses minor consequential amendments to the EPBC Regulations to support the incoming reforms regarding the removal of Commonwealth-authorised exemptions, radiological exposure actions, and bilateral agreements. The Paper also proposes to modernise how decisions under the EPBC Act are publicised, removing gazette and newspaper requirements and instead requiring a single publication location on the DCCEEW website.

Next steps to prepare for new environmental laws

This proposed regulatory landscape will determine how projects are assessed and approved under the new environmental laws. Submissions to the consultation process are open until 13 October 2026 and can be made through the DCCEEW Consultation Page. Exposure drafts of the proposed regulations will be released in late September, with the regulations proposed to commence on or before 1 December 2026 in line with the final tranche of reforms.