Dear friends,

A huge thanks to all out there who took part in our recent email campaign to call out the most recent failure in community consultation when the developer Sealark had Eco Logical Australia (ELA) submit an application to the Department of Climate Change, Energy, the Environment and Water (DCCEEW) about the West Culburra Subdivision without adequately notifying the community.

The result of our efforts is that the developer has been told by the Minister for the Environment to extend the exhibition period until 5pm, 28 November, 2023. Anyone can make a submission expressing concerns about the report before then. Doing so will affect the decision the Minister makes about bulldozing the native forest for the West Culburra development!

Submissions should be emailed to: RobertH@ecoaus.com.au

Or posted to:
Robert Humphries
Principal Consultant
Eco Logical Australia
PO Box 12, Sutherland, NSW 1449

Once your submission has been forwarded to DCCEEW by Mr Humphries you will receive a confirmation email from EPBC to confirm receipt.  Please keep an eye out to make sure you receive this confirmation.

Since hearing of the extended deadline, we have been busy gathering information and reading the 150-page report by ELA. You can read the report yourself here if you want to: https://www.ecoaus.com.au/westculburraepbc

Below is a summary of our team’s thoughts and findings.  Please be sure to choose the issues that resonate with you and put them into your own words when making your submission. You are NOT expected to be an expert, but your voice as a concerned individual IS valued.

Background:
Because of the environmental sensitivity of the West Culburra Development (WCD) site, the developer Sealark is required to submit a referral to DCCEEW for assessment as a 'controlled action' under the Environment Protection and Biodiversity Act 1999 (EPBC Act). This is action that will have a “significant impact” on listed threatened species and communities but allows the developer to justify and/or offset the action by leaving a small area undeveloped.

The DCCEEW’s role in protecting the environment under the EPBC Act is “to apply the law to protect Australia's unique animals, plants, habitats and places”, so the focus of this assessment is on the environmental impacts.

Sealark has commissioned Eco Logical Australia (ELA) to conduct surveys of the West Culburra site’s flora and fauna to assess what animals rely on the forest at the site and the likelihood of rare or endangered species living and/or breeding there.

PROBLEMS WITH THE REPORT
We believe there are several serious issues with the ELA assessment of the development site and its EPBC referral report.

1.  Water quality and pollution issues are unlikely to be solved by the developer’s proposed stormwater ponds
Flooding and stormwater overflow will cause pollution of Curleys Bay, the Crookhaven River and Estuary, and destroy marine life habitat and the oyster industry already there. ELA says (page 17), that the site has not “recently been affected by floods, fires or other significant natural disasters”.  This is not true.  

Major flood activity impacted the site during the period 2020-2022, including significant inundation to several parts of the controlled action area. Flood levels during these events ended up being HIGHER than two of the three ‘stormwater ponds’ Sealark has designed to maintain the water quality of the river and bay, which would have overflowed and spread pollution through the entire catchment area.

Treated water released to the buffer zone will impact riparian communities including saltmarsh, mangroves, mudflats and seagrass. The report does not mention this nor the fact that the impact would be ongoing.  What’s more, there are two communities (patches) of Coastal Swamp Oak in the West Culburra site. These are critically endangered types of wetland forest that make preferred feeding ground for the glossy black cockatoo (also critically endangered) and other species.

Both communities are near a proposed stormwater treatment pond, which will put the Coastal Swamp Oak at a much higher risk of destruction than ELA has estimated in its report. The report has assessed the risk to Coastal Swamp Oak as “not significant” but they have underestimated the direct and indirect impacts by using a flawed water management plan and failing to consider recent flood events.

2. The report underestimates the biodiversity value of flora at the site
ELA reported that “the action area is comprised of regrowth woodland that is approximately 40 years old.  The hollow-bearing tree density is 10 hollow-bearing trees across 46 ha of development footprint, which equates to 0.23 hollows per hectare.”

We think this is incorrect in a couple of ways. 

First, the land was partly clear-felled in the 1940s but not logged since, making the forest closer to 80 years old. Some trees not originally felled for timber back in the ‘40s may be older than this and constitute ‘old-growth forest’.

Second, with this age of forest it is unlikely that there are only 10 hollow-bearing trees across 46ha. We believe a more thorough assessment by an independent body should be conducted.

3. The report underestimates biodiversity value of fauna at the site
ELA assessed that only one ‘Matter of National Environmental Significance (MNES)’ — the Glossy Black Cockatoo — has been found at the site, with another five threatened species found in adjacent lands but not within the action area (the Yellow-Bellied Glider, Greater Glider, Gang Gang Cockatoo, Green and Golden Bell Frog, and Grey-Headed Flying Fox).

We disagree. 

Several more fauna species are listed as Vulnerable, Endangered or Critically Endangered under the EPBC Act that the ELA report has not identified as needing to be surveyed in the ‘action area’. One example of this is the Eastern Brown Bandicoot, despite recent sightings listed on BioNet. ELA has conducted no surveys of Eastern Brown Bandicoot in the action area since 2016. 

Other species not sufficiently surveyed include Powerful Owl, several migratory birds, the White Footed Dunnart, and Gang Gang Cockatoos. ELA seems to have decided these species are simply no longer at the site, despite anecdotal sightings by locals suggesting otherwise.

There are also earlier ELA reports that show all of the above species being found on the site in 2018. In the conservation advice for the Glossy Black Cockatoo published by the DCCEEW, it clearly states:

“When considering habitat loss, alteration or significant impacts to habitat in any part of the south-eastern glossy black cockatoo’s range, including in areas where the subspecies ‘may occur’, surveys for occupancy at the appropriate times of the year and identifying breeding sites and preferred foraging species remain an important tool in refining understanding of the area’s relative importance for the subspecies. Both recent survey data and historical records need to be considered when assessing the relative importance of a region for the subspecies, as their seasonal movements is poorly understood, areas that constitute habitat critical to the survival might not have birds in any one given year.”

In light of this advice that both recent and historical survey data must be considered, the reliability of the latest Eco Logical survey of the Glossy Black Cockatoo and its habitat must be questioned.

ELA has conducted insufficient surveys of the site since bushfires displaced many native species throughout the South Coast and Shoalhaven in 2019-2020. For example, it has spent only eight hours spotlighting for arboreal mammals (Greater Gliders, Yellow-Bellied Gliders and Grey-Headed Flying Fox) over 2021 and 2022. It has not used any audio-monitoring or call-back surveys for gliders, nor diurnal bird studies, nor pitfall traps, despite these being best-practise methods for surveying these species.

Most of the survey data chosen by ELA to assess the biodiversity value of the site are from before 2017 – more than five years old.

In its assessment of critical habitat for endangered Glossy Black Cockatoo, ELA downplays the likelihood of appropriate nesting hollows on the site without providing supporting evidence. 

Similar problems exist with surveys for Greater Gliders and Yellow Bellied Gliders. ELA acknowledges the development site meets the criteria for critical habitat for Greater Gliders but deems “the proposed action would remove 46.27 ha of native vegetation that does not form potential habitat for the Greater Glider.” (Page 53)

However, DCCEEW’s 2022 advice on the endangered Greater Glider is that: “irrespective of the current abundance or density of Greater Gliders or the perceived quality of the site ... forest areas currently unoccupied by the Greater Glider may still represent habitat critical to survival, if the recruitment of hollow-bearing trees as the forest ages, could allow the species to colonise these areas and ensure persistence of a subpopulation”. 

The West Culburra development site has several hollow-bearing trees in species preferred by Greater Gliders and Yellow-Bellied Gliders that meet this criteria. Therefore it should be protected as future habitat critical to the survival of the species. 

We also note that five kilometres away at the Sealark Callala development site, the same environmental assessors (ELA) failed to report several recent sightings of Greater Gliders and known nesting hollows for its EPBC referral application in 2022. Their report incorrectly mapped important vegetation at the site and was later found by expert ecologists to have overlooked critical Greater Gliders and their habitat. 

CRRAG believes that, like the Callala survey, the methodology for assessing the West Culburra site for Greater Gliders was inadequate. This survey effort does not meet the standards set out by the NSW Department of Planning Industry & Environment’s Biodiversity Assessment Method (2020) nor the DCCEEW’s ‘Survey Guidelines for Australia’s threatened mammals: Guidelines for detecting mammals listed as threatened under the Environment Protection and Biodiversity Conservation Act 1999’ (2011). 

4. Insufficient Aboriginal and Community Consultation
Sealark and Eco Logical Australia have failed to carry out meaningful community consultation with Culburra Beach residents and First Nations people for the past 10 years.  In this EPBC application, ELA claims “field survey did not identify any Aboriginal heritage items within the action area” despite confirming several middens and artefact deposits adjacent to the development site and along the water’s edge.

Jerrinja Local Aboriginal Land Council (JLALC) CEO Alfred Wellington explains, “the project has potential to adversely impact the Crookhaven River and irreversibly impact on Aboriginal cultural heritage, in particular the Crookhaven midden complex.” (Jerrinja LALC submission to West Culburra amended proposal SSD-3846. February 25, 2021)

Sealark has not engaged with the Jerrinja people about submitting its EPBC referral application, and the claim in ELA’s report that “additional consultation and surveys are currently being completed in relation to the development footprint proposed as part of this referral” is incorrect. 

It is a legal responsibility of the proponent to consult with the community throughout the planning and approvals process, and yet Halloran Trust trustees like Sealark have engaged in a history of divisive, strategic meetings that seek to exclude instead of inform many community members. Some of its meetings are advertised as being “for supporters only”, with attendees required to register their details prior, while others have witnessed speakers being loudly abused during presentations of their invited views. 

The fact that Sealark initially had ELA submit its EPBC referral application on October 9 without a single notification to Culburra residents shows the contempt with which trustees have treated locals from the beginning. They didn’t put up a single notice in the Culburra Beach or Orient Point areas and exhibited their report only at the Nowra Library – more than 20kms away!

5.The Biodiversity Offset scheme is seriously flawed
The Environmental Defenders Office (EDO) submission to the Inquiry into the integrity of the NSW Biodiversity Offsets Scheme (BOS) in 2021, states:

“It is EDO’s view that the policy settings underpinning the BOS do not align with best practice science-based biodiversity offsetting; permit an inappropriate level of variation and discretion; and do not adopt the ecologically necessary limits to prevent extinctions (e.g. ‘red flags’). The BOS will not deliver the intended biodiversity outcomes, including to conserve biodiversity and maintain the diversity and quality of ecosystems.” 

Key issues raised by the EDO included:

• No clear and objective requirement to improve biodiversity outcomes.
• Like-for-like offsetting requirements and variation rules provide too much flexibility.
• Biodiversity conservation measures are allowed in lieu of genuine direct offsets.
• Payments can be made to the Biodiversity Conservation Fund in lieu of securing offsets.

We believe that the above issues make it too easy for developers to exploit the Biodiversity Offset Scheme.

Please put in a submission raising your concerns about the West Culburra subdivision!

THANK YOU FOR YOUR SUPPORT
Culburra Residents & Ratepayers Action Group (CRRAG)