Biodiversity Conservation Regulation 2017

In this Regulation—

a wilderness area declared under the Wilderness Act 1987,

land reserved under the National Parks and Wildlife Act 1974 or acquired by the Minister administering that Act under Part 11 of that Act,

land dedicated or set apart as a flora reserve under the Forestry Act 2012 (or any Act repealed by that Act),

land to which an interim heritage order or listing on the State Heritage Register under the Heritage Act 1977 applies,

a declared area of outstanding biodiversity value under the Act,

an area declared to be critical habitat under Division 3 of Part 7A of the Fisheries Management Act 1994,

a declared World Heritage property within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth,

land dedicated or reserved under the Crown Lands Act 1989 for similar public purposes for which land is reserved, declared or listed under the other Acts referred to in this definition,

land to which an interim protection order under Part 11 of the Act applies,

Lord Howe Island.

Notes included in this Regulation do not form part of this Regulation.

threatened species abundance—being the occurrence and abundance of threatened species or threatened ecological communities, or their habitat, at a particular site,

vegetation abundance—being the occurrence and abundance of vegetation at a particular site,

habitat connectivity—being the degree to which a particular site connects different areas of habitat of threatened species to facilitate the movement of those species across their range,

threatened species movement—being the degree to which a particular site contributes to the movement of threatened species to maintain their lifecycle,

flight path integrity—being the degree to which the flight paths of protected animals over a particular site are free from interference,

water sustainability—being the degree to which water quality, water bodies and hydrological processes sustain threatened species and threatened ecological communities at a particular site.

For the purposes of this Regulation, a fee unit is—

in the financial year 2017/2018—$100, and

in each subsequent financial year—the amount calculated as follows—

The amount of a fee unit and the amount of a fee calculated by reference to a fee unit is to be rounded to the nearest dollar (and an amount of 50 cents is to be rounded down).

However, if the amount of a fee unit calculated for any financial year is less than the amount that applied for the previous financial year, then the amount for that previous financial year applies instead.

As soon as practicable after the CPI number for the March quarter is first published by the Australian Statistician, the Environment Agency Head is required to publish on the NSW legislation website a notice of the amount of the fee unit for the next financial year. That notice may be published by the addition of an editorial note relating to the amount of the fee unit in the in force version of this Regulation published on the NSW legislation website.

The Environment Agency Head is also required to give public notice on an appropriate government website of the actual amounts of the fees applying in each financial year resulting from the application of the amount of fee unit calculated under this clause.

This clause operates to change an amount of a fee that is calculated by reference to a fee unit and that change is not dependent on the publication of a notice by the Environment Agency Head under this clause.

In this clause—

to determine or exercise control over the course or direction of the vessel or over the means of propulsion of the vessel (whether or not the vessel is underway), and

to pilot the vessel.

A person must not interfere with a marine mammal.

In this clause, interfere with includes harass, chase, herd, tag, mark and brand.

A person must not approach a marine mammal any closer than the distance declared by or under this clause.

The following distances are declared for any marine mammal (except a marine mammal to which subclause (3) or (4) applies)—

300 metres—if the person is approaching a whale, dolphin or dugong and is on, or using, a prohibited vessel,

100 metres—if the person is approaching a whale and is on, or using, a vessel other than a prohibited vessel,

50 metres—if the person is approaching a dolphin or dugong and is on, or using, a vessel other than a prohibited vessel,

30 metres—if the person is approaching a whale, dolphin or dugong and is swimming,

a height lower than 100 metres within a horizontal radius of 100 metres—if the person is operating an unmanned aircraft,

a height lower than 300 metres within a horizontal radius of 300 metres—if the person is operating an aircraft (other than a helicopter, gyrocopter or unmanned aircraft),

a height lower than 500 metres within a horizontal radius of 500 metres—if the person is operating a helicopter or gyrocopter,

10 metres—if the person is approaching a seal or sea lion (other than a pup) that is in the water and the person is in, or on, a vessel or is swimming or is a pedestrian,

40 metres—if the person is approaching a seal or sea lion (other than a pup) that is hauled out on land and the person is swimming, operating a vessel or vehicle or is a pedestrian,

80 metres—if the person is approaching a pup.

The following distances are declared for any whale, dolphin or dugong that is predominantly white in colour and that is approached by a person operating a vessel or aircraft—

500 metres—if the person is operating a vessel,

a height lower than 610 metres within a horizontal radius of 610 metres—if the person is operating an aircraft (other than an unmanned aircraft),

a height lower than 100 metres within a horizontal radius of 100 metres—if the person is operating an unmanned aircraft.

The Environment Agency Head may, by order, declare a special protection approach distance for a marine mammal described in the order that is approached by a person in the circumstances described in the order if satisfied that the marine mammal is—

a dugong or other rarely sighted species of marine mammal, or

a morphological or colour-variant marine mammal, or

a female marine mammal that has recently given, or is about to give, birth, or

a calf separated from a mother or group of marine mammals, or

a sick or injured marine mammal, or

at risk of harassment, injury or death.

Until the order declaring a special protection approach distance is so published, the order does not apply to any persons who establish that they were not aware of the declaration.

This clause does not apply to a person approaching a marine mammal in the following circumstances—

the person is approaching in the course of taking action that is reasonably necessary to prevent a risk to human health or to deal with a serious threat to human life or property,

the person is approaching in the course of taking action in the person’s capacity as an officer of or person acting on behalf of a law enforcement agency and the action is reasonably necessary for the purposes of law enforcement,

the person is approaching in the course of taking an action in the person’s capacity as a fisheries officer under the Fisheries Management Act 1994 and the action is reasonably necessary for the purposes of exercising a law enforcement function conferred on the officer under that Act,

the person is approaching in the course of taking action that is a result of an unavoidable accident, other than an accident caused by the person’s negligent or reckless behaviour,

the person is approaching in the course of taking any action as a result of the person being given a direction by an authorised officer (within the meaning of Part 12 of the Act) and that is being taken in accordance with that direction.

In this clause—

the NSW Police Force or the police force of another State or Territory, or

the Australian Federal Police, or

the New South Wales Crime Commission, or

Transport for NSW, or

the Department of Climate Change, Energy, the Environment and Water.

In this clause—

for a dolphin or dugong (including a calf)—150 metres,

for a whale (including a calf)—300 metres.

Within the caution zone for a whale, dolphin or dugong (other than a calf), a person operating a vessel that is not a prohibited vessel—

must operate the vessel at a constant slow speed and in a manner that consistently minimises noise, and

must make sure that the vessel does not drift closer than—

for a dolphin or dugong—50 metres, or

for a whale—100 metres, and

if the whale, dolphin or dugong shows signs of being disturbed—must immediately withdraw the vessel from the caution zone at a constant slow speed, and

if there is more than one person on the vessel—must post a lookout for whales, dolphins or dugongs, and

without limiting paragraph (b), must approach a whale, dolphin or dugong only—

from the rear, at an angle of no closer than 30 degrees to its observed direction of travel, or

by positioning the vessel ahead of the whale, dolphin or dugong at more than 30 degrees from its observed direction of travel, and

must make sure the vessel does not restrict the path of the whale, dolphin or dugong, and

must make sure the vessel is not used to pursue the whale, dolphin or dugong.

A person operating a vessel that is not a prohibited vessel must not allow the vessel to enter the caution zone of a calf.

If a calf approaches a vessel that is not a prohibited vessel so that the vessel comes within the caution zone of the calf, the person operating the vessel—

must immediately stop the vessel, and

must—

turn off the vessel’s engines, or

disengage the vessel’s gears, or

withdraw the vessel from the caution zone at a constant slow speed.

A person operating a vessel that is not a prohibited vessel must not enter the caution zone of a whale, dolphin or dugong if there are more than 2 vessels in the caution zone.

If a whale (other than a calf) approaches a vessel that is not a prohibited vessel or comes within the limits specified in subclause (2)(b), the person operating the vessel must—

disengage the vessel’s gears and let the whale approach, or

reduce the speed of the vessel and continue on a course away from the whale.

If a dolphin or dugong (other than a calf) approaches a vessel that is not a prohibited vessel or comes within the limits specified in subclause (2)(b), the person operating the vessel must not suddenly change the course or speed of the vessel.

A person must not operate an aircraft so as to approach a marine mammal from head-on for the purpose of observing a marine mammal.

A person must not operate an aircraft so as to hover over a marine mammal.

A person must not land an aircraft on water for the purpose of observing a marine mammal.

A person must not intentionally feed or attempt to feed a marine mammal that is in its natural environment.

In this clause—