For operators of quarries, waste facilities, mines, and ports in NSW, the regulatory landscape is about to become considerably more complex. On 1 July 2026, Australia's first independent national environmental regulator, the National Environmental Protection Agency (NEPA),  will commence operations.

NEPA is not a new concept. The Samuel Review of the EPBC Act in 2020 recommended an independent 'cop on the beat' to enforce Commonwealth environmental law. After the failure of the Nature Positive Bills in early 2025, the Environment Protection and Biodiversity Conservation Reform Act 2025 (Cth) (the Reform Act) enacted that recommendation into law. Royal Assent was granted on 1 December 2025.

The practical consequence for NSW operators is this: you are about to have a second environmental regulator with independent enforcement powers over your operations. Projects that trigger matters of national environmental significance (MNES) including coal seam gas and large coal mining developments, activities affecting threatened species, and activities near Ramsar wetlands or heritage places, will face concurrent oversight from both NEPA and the NSW EPA.

This article explains what NEPA is, how it compares to the NSW EPA, where your operations face dual exposure, and what you should be doing before 1 July 2026. The focus throughout is practical: what this means on the ground for quarry, waste facility and mine operators in NSW.

What is NEPA?

NEPA is established by the Reform Act as an independent statutory agency led by a CEO appointed by the Governor-General for a fixed five-year term. The CEO is not subject to ministerial direction on individual regulatory decisions. This is a deliberate design choice to address a key criticism of the existing EPBC Act compliance framework, which the Samuel Review found to be inadequate and overly influenced by political considerations.

What NEPA does 

NEPA will assume all compliance, assurance and enforcement functions currently performed by the Department of Climate Change, Energy, the Environment and Water (DCCEEW). From 1 July 2026, NEPA — not DCCEEW — is responsible for:

• Investigating potential breaches of the EPBC Act and approval conditions.
• Prosecuting EPBC Act offences in the Federal Court.
• Monitoring compliance with EPBC approval conditions across all approved projects.
• Auditing State and Territory decision-making processes under bilateral agreements — a new function that did not previously exist.
• Issuing Environment Protection Orders (EPOs). This is a significant new tool allowing the NEPA CEO to issue 14-day stop-work orders (extendable by 14 days) where there is imminent risk of serious damage to protected matters.

What NEPA does not do

NEPA is a regulator, not a decision-maker on project approvals. The Minister for the Environment retains the power to make controlled action decisions and grant or refuse EPBC approvals. NEPA's role is enforcement, compliance monitoring and audit — not the approval process itself.

NEPA's resources and mandate 

NEPA has been allocated approximately $76 million across 2025–26 and 2026–27 for establishment. The Samuel Review, which underpins NEPA's design, described the existing Commonwealth environmental compliance function as under-resourced and too closely connected to the approval-granting function it was meant to oversee. NEPA's entire purpose is to change that.

For operators accustomed to relatively light-touch compliance monitoring from DCCEEW, this is a material step-change. Once operational the enforcement culture of NEPA is expected to more closely resemble the active prosecutorial approach of the NSW EPA than the historically deferential approach of DCCEEW.

How NEPA compares to the NSW EPA

The NSW EPA is established under the Protection of the Environment Administration Act 1991 (NSW) as an independent statutory authority. It exercises enforcement powers under legislation including the Protection of the Environment Operations Act 1997 (NSW) (the POEO Act), which is NSW's principal pollution control legislation. The EPA has more than 30 years of operational history and is a well-developed and resourced regulator.

The following table compares the two regulators across the features most relevant to quarry, waste and mine operators:

What the comparison tells operators

Three differences are particularly significant in practice:

1. Licensing vs conditions. The NSW EPA controls operations through Environment Protection Licences (EPLs) — a licensing regime with site-specific conditions that can be varied and whose breach is a strict liability offence: POEO Act, s 64. NEPA has no licensing regime. Its leverage is approval conditions set at the project-approval stage. This means NEPA's control over ongoing operations is less flexible, but a breach of an EPBC approval condition is nonetheless a serious offence attracting significant civil penalties.
2. Enforcement maturity. The NSW EPA has a deep body of enforcement precedent, including binding Court of Criminal Appeal guidance on penalty principles from many years of jurisprudence mainly derived from cases involving breaches of the POEO Act and other waste legislation. NEPA has none. Proponents dealing with NEPA will be operating in a regulatory environment with less established expectations about enforcement approach, penalty quantum, and compliance priorities. This uncertainty cuts both ways.
3. Penalty philosophy. The NSW EPA's penalty regime has been judicially interpreted through extensive case law, with penalties calibrated by reference to aggravating and mitigating factors, amongst other things. NEPA's enhanced civil penalty regime, which takes effect from December 2026, will be linked to the commercial benefits of non-compliance. This is a more commercially-calibrated approach to deterrence, designed to ensure that the fine always exceeds the profit derived from the breach.

Where dual exposure arises

The EPBC Act and the POEO Act operate concurrently. A single project may require both an EPBC approval (if it triggers MNES) and an NSW EPL (if it involves scheduled activities under POEO Act Schedule 1). Dual exposure — simultaneous regulatory obligations to two independent enforcement bodies — arises wherever both requirements are met.

The water trigger: the sharpest area of dual exposure

Section 24D of the EPBC Act (the water trigger) applies to coal seam gas developments and large coal mining developments that may have a significant impact on water resources. For operators in these sectors, the water trigger creates unavoidable Commonwealth jurisdiction because:

• Sections 24D and 24E are non-devolvable under s 46(1) of the EPBC Act. They cannot be covered by bilateral agreements between the Commonwealth and NSW. There is no way to route a water trigger assessment through the NSW planning system as it must go direct to the Commonwealth.
• The Independent Expert Scientific Committee (IESC) must be consulted on all water trigger matters: EPBC Act, s 131AB.
• The NSW EPA is simultaneously the lead regulator for coal seam gas activities in NSW, with each CSG facility holding an EPL with site-specific conditions.
• Recent litigation has confirmed the concurrent application of both regimes: Australian Conservation Foundation v Minister [2021] FCA 550 confirmed the water trigger applies to coal seam gas; Mullaley Gas & Pipeline Accord v Minister [2025] FCA 1526 addressed CSG dual regulation in the most recent water trigger authority.

The bottom line: A coal seam gas operator in NSW faces NEPA (from 1 July 2026) as the Commonwealth regulator for water resource impacts and the NSW EPA as the State regulator for pollution and licensing. Two regulators. Two sets of conditions. Two enforcement regimes. No opt-out.

Projects involving threatened species, heritage and wetlands

Beyond the water trigger, dual exposure arises wherever a project triggers MNES thresholds while also holding an NSW EPL. The most common scenarios for NSW quarry, waste and mine operators are activities affecting listed threatened species or ecological communities, activities near or within Ramsar wetlands, and activities near World Heritage properties or National Heritage places. For these projects, both the EPBC Act (enforced by NEPA) and the POEO Act (enforced by NSW EPA) will apply to the same physical operation.

NEPA's audit function amplifies dual exposure

A new and often overlooked aspect of the Reform Act is NEPA's power to audit State decision-making processes under bilateral agreements. NEPA will audit whether NSW is applying the National Environmental Standards (NES) correctly in its assessment processes. This means that even where a project has been assessed through the NSW planning system under the bilateral agreement, NEPA may subsequently audit the process and, in an appropriate case, recommend that the Commonwealth Minister exercise the new call-in power.

Wide Bay Conservation Council v Burnett Water Pty Ltd (No 8) [2011] FCA 175 established that the Commonwealth can prosecute breaches of EPBC approval conditions independently of State enforcement. The Reform Act compounds this: not only can NEPA prosecute independently, but it can also audit the State process that generated the approval conditions.

Understanding the enforcement regimes

NSW EPA enforcement: tried and tested

The NSW EPA's enforcement framework under the POEO Act is comprehensive and well-tested. The tiered penalty regime — Tier 1 (wilful or negligent pollution, up to $10 million for corporations), Tier 2 (pollution of waters, land or air) and Tier 3 (minor offences) — is backed by extensive Land and Environment Court jurisprudence. The Grafil series ([2017] NSWLEC 88 through to [2022] NSWCCA 268, spanning seven judgments) provides binding Court of Criminal Appeal guidance on penalty assessment principles for environmental offences as do a number of other leading authorities.

The EPA's enforcement toolkit includes clean-up notices (directing remediation action), prevention notices (issued on reasonable suspicion of environmentally unsatisfactory activity), and prohibition notices (which can halt operations entirely). Directors may be held personally liable for corporate offences. Any person may bring civil enforcement proceedings in the Land and Environment Court.

Importantly, the NSW EPA cannot fetter its statutory power to investigate: Fordham v EPA. Once a potential breach is identified, the investigation must follow. For operators who have historically relied on informal resolution or regulatory discretion, this is a constraint worth understanding.

NEPA enforcement: new and untested

NEPA's enforcement powers are significant but untested. The NEPA CEO can issue  EPOs — 14-day stop-work orders (extendable by 14 days) for imminent risk of serious damage to protected matters. This is comparable to the NSW EPA's prohibition notice power but limited in duration. Remediation determinations and conservation orders are also available.

From 1 December 2026, NEPA's enhanced civil penalty framework takes effect, with penalties linked to the commercial benefits of non-compliance. This benefit-based approach is calculated by reference to the advantage gained or detriment avoided and means that the more profitable the non-compliance, the higher the potential penalty. There is no fixed ceiling for benefit-based penalties.

The absence of enforcement precedent from NEPA is itself a risk factor for operators. In the early years of operation, there will be uncertainty about NEPA's enforcement priorities, investigation thresholds, and penalty approach. Some operators may view this uncertainty as an opportunity; others will recognise it as a risk. Our view is that the mandate under the Reform Act combined with the Samuel Review's explicit criticism of existing Commonwealth environmental enforcement points strongly towards an active, not passive, enforcement posture from commencement.

What happens to existing EPBC approvals

The Reform Act contains detailed transitional provisions. The headline message for holders of existing EPBC approvals is straightforward: your approval remains valid and unaffected. Existing permits, licences and approvals continue on their current terms.

The key transitional matters for operators to understand:

• Document references. References to the 'Minister' or 'Secretary' in existing EPBC approvals will, from 1 July 2026, be read as references to the NEPA CEO. You are not required to formally amend your approval — the transition is automatic.
• Ongoing compliance. NEPA CEO inherits all ongoing compliance and enforcement activities from DCCEEW, including any matters currently under investigation. If you are currently in dialogue with DCCEEW about compliance issues, that dialogue will transfer to NEPA.
• Legal proceedings. NEPA CEO substitutes as party to ongoing legal proceedings commenced but not determined by 1 July 2026.
• Grandfathering for new projects. For projects not yet referred, the full new NEPA framework applies. For projects referred but without an assessment decision, the NES apply. For projects with an assessment decision, the existing framework continues.

The practical enforcement of existing conditions is, however, likely to intensify regardless of the absence of formal legal change. NEPA's mandate is a materially more active compliance function than DCCEEW has historically provided. Conditions that have been loosely monitored or informally enforced in the past should be reviewed and documented before 1 July 2026.

What operators should do before 1 July 2026

The following steps are recommended for all operators in the quarry, waste and mining sectors:

Step 1: Audit your EPBC exposure

Review all current operations and projects to identify:

• Any existing EPBC approvals and their conditions including projects approved under delegated or bilateral agreement processes.
• Any activities that may trigger MNES thresholds but have not been referred — particularly where the project is near listed ecological communities, threatened species habitat, heritage places or Ramsar wetlands.
• Any operations that fall within the water trigger by reason of proximity to coal seam gas or large coal mining activities.

An honest audit may reveal EPBC exposure that has been overlooked or treated as low risk in the past. From 1 July 2026, NEPA's enforcement mandate means that exposure is no longer theoretical.

Step 2: Review your EPBC approval conditions

From 1 July 2026, NEPA — not DCCEEW — will monitor and enforce your EPBC approval conditions. Before the transition:

• Confirm that you are complying with all conditions, including reporting conditions that may have been treated informally in the past.
• Ensure condition compliance documentation is current, accessible and capable of being produced to a regulator at short notice.
• Note that any condition referencing the 'Minister' or 'Secretary' will, from 1 July 2026, be read as a reference to the NEPA CEO: Reform Act, transitional provisions.

Step 3: Create a consolidated dual-compliance matrix

For operations subject to both EPBC approvals and NSW EPLs, create a consolidated compliance matrix that maps:

• Which conditions apply from which regulator.
• Where conditions overlap or potentially conflict — for example, where an EPBC approval condition and an EPL condition impose different requirements on the same activity.
• Where a breach of one regulator's conditions may also constitute a breach under the other regime, creating double penalty exposure.
• Reporting and notification obligations to each regulator and their respective deadlines.

Step 4: Prepare for a more active Commonwealth regulator

Operators accustomed to the relatively passive DCCEEW compliance function should recalibrate their expectations:

• Strengthen internal environmental compliance systems and documentation, with a particular focus on EPBC approval condition reporting.
• Prepare for enhanced compliance monitoring and potential unannounced inspections from NEPA officers.
• Implement the Mitigation Hierarchy under the reforms: demonstrate avoidance, mitigation, and repair before offsets are considered. NEPA will assess this.
• Budget for the additional compliance burden of managing concurrent NEPA and NSW EPA obligations.

Step 5: Monitor National Environmental Standards and consider referral timing

Two forward-looking steps are also important:

• Monitor NES publication. Final MNES Standards and Offsets Standard are expected March–April 2026. These will define how NEPA exercises its powers and will be critical for understanding your compliance obligations.
• Consider timing of planned referrals. Projects referred with an assessment decision before NEPA commencement benefit from full grandfathering — assessed under the existing EPBC Act framework including bilateral agreements. Projects referred without an assessment decision must comply with the NES. New projects not yet referred face the full new framework.

Looking ahead

Several developments in the coming months will shape how NEPA operates in practice:

• National Environmental Standards (March–April 2026). Final MNES Standards and Offsets Standard are expected before NEPA's commencement. These will define what NEPA requires in terms of environmental outcomes and how it will assess compliance with approval conditions.
• NEPA CEO appointment. The CEO has not been appointed as of the date of this article. The CEO's background, priorities and enforcement philosophy will significantly influence NEPA's operational culture, at least in its formative period.
• Enhanced penalty framework (1 December 2026). The benefit-based civil penalty framework takes effect five months after NEPA commences operations. Operators should budget for potential compliance costs before then.
• Bilateral agreement updates. All existing bilateral agreements between the Commonwealth and NSW must be updated to reflect the new National Environmental Standards. The updated bilateral agreement will affect how NEPA oversees NSW's assessment processes, including through its new audit function.
• NEPA–NSW EPA coordination protocols. No operational protocols have been published on how the two regulators will coordinate day-to-day. This is an area of ongoing uncertainty identified by both industry (Minerals Council of Australia) and environmental advocacy groups. Clarity on coordination protocols will be important for operators managing dual compliance obligations.

The reform of Commonwealth environmental law through the establishment of NEPA is the most significant structural change to the regulatory framework facing quarry, waste and mine operators since the enactment of the EPBC Act itself in 1999. For operators who are already compliant with their EPBC approval conditions, the transition may be manageable. For those who have treated Commonwealth environmental obligations as secondary to NSW EPA compliance, the window to get compliance in order is closing quickly. 1 July 2026 is not a distant deadline.