Water Management Act 2000 (NSW)

Water Management Act 2000 No 92 An Act to provide for the protection, conservation and ecologically sustainable development of the water sources of the State, and for other purposes. Chapter 1 Preliminary 1 Name of Act This Act is the Water Management Act 2000. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation. (2) Different days may be appointed for the commencement of a single provision of Schedule 7 or 8 for the purpose of commencing the repeals or amendments effected by the provision on different days. (3) Schedule 13A commences on a day or days to be appointed by proclamation. 3 Objects The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular— (a) to apply the principles of ecologically sustainable development, and (b) to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and (c) to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including— (i) benefits to the environment, and (ii) benefits to urban communities, agriculture, fisheries, industry and recreation, and (iii) benefits to culture and heritage, and (iv) benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water, (d) to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources, (e) to provide for the orderly, efficient and equitable sharing of water from water sources, (f) to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna, (g) to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users, (h) to encourage best practice in the management and use of water. 4 Interpretation (1) Words and expressions that are defined in the Dictionary at the end of this Act have the meanings set out in that Dictionary. (1A) A word or expression (not being a word or expression defined in the Dictionary to this Act) that is used in this Act and that is defined in the Real Property Act 1900 has the same meaning in this Act in relation to an access licence (or holding in an access licence) or dealing in such a licence (or holding) as it has in that Act in relation to land or an estate or interest in land. (1B) Subsection (1A) applies except in so far as the context or subject-matter otherwise indicates or requires. (2) Notes in the text of this Act do not form part of this Act. 4A Meaning of "overland flow water" (1) In this Act, overland flow water means water (including floodwater, rainfall run-off and urban stormwater) that is flowing over or lying on the ground as a result of— (a) rain or any other kinds of precipitation, or (b) rising to the surface from underground, or (c) any other process or action of a kind prescribed by the regulations. (2) Water is flowing over the ground for the purposes of subsection (1) even if it flows over the ground by means of artificial structures such as roads, canals or road gutters. (3) However, subsection (1) does not include— (a) water that is collected from a roof (including water collected from a roof using a rainwater tank), or (b) water that is flowing over or lying on the bed of a river, lake or estuary, or (c) water flowing over or lying on the ground in such circumstances as may be prescribed by the regulations. Chapter 2 Water management planning Part 1 General Division 1 Water management principles 5 Water management principles (1) The principles set out in this section are the water management principles of this Act. (2) Generally— (a) water sources, floodplains and dependent ecosystems (including groundwater and wetlands) should be protected and restored and, where possible, land should not be degraded, and (b) habitats, animals and plants that benefit from water or are potentially affected by managed activities should be protected and (in the case of habitats) restored, and (c) the water quality of all water sources should be protected and, wherever possible, enhanced, and (d) the cumulative impacts of water management licences and approvals and other activities on water sources and their dependent ecosystems, should be considered and minimised, and (e) geographical and other features of Aboriginal significance should be protected, and (f) geographical and other features of major cultural, heritage or spiritual significance should be protected, and (g) the social and economic benefits to the community should be maximised, and (h) the principles of adaptive management should be applied, which should be responsive to monitoring and improvements in understanding of ecological water requirements. (3) In relation to water sharing— (a) sharing of water from a water source must protect the water source and its dependent ecosystems, and (b) sharing of water from a water source must protect basic landholder rights, and (c) sharing or extraction of water under any other right must not prejudice the principles set out in paragraphs (a) and (b). (4) In relation to water use— (a) water use should avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land should be rehabilitated, and (b) water use should be consistent with the maintenance of productivity of land in the long term and should maximise the social and economic benefits to the community, and (c) the impacts of water use on other water users should be avoided or minimised. (5) In relation to drainage management— (a) drainage activities should avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land should be rehabilitated, and (b) the impacts of drainage activities on other water users should be avoided or minimised. (6) In relation to floodplain management— (a) floodplain management must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and (b) the impacts of flood works on other water users should be avoided or minimised, and (c) the existing and future risk to human life and property arising from occupation of floodplains must be minimised. (7) In relation to controlled activities— (a) the carrying out of controlled activities must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and (b) the impacts of the carrying out of controlled activities on other water users must be avoided or minimised. (8) In relation to aquifer interference activities— (a) the carrying out of aquifer interference activities must avoid or minimise land degradation, including soil erosion, compaction, geomorphic instability, contamination, acidity, waterlogging, decline of native vegetation or, where appropriate, salinity and, where possible, land must be rehabilitated, and (b) the impacts of the carrying out of aquifer interference activities on other water users must be avoided or minimised. Division 2 State Water Management Outcomes Plan and water source classification 6 State Water Management Outcomes Plan (1) The Governor may, by order published in the Gazette, establish a State Water Management Outcomes Plan for the development, conservation, management and control of the State's water resources in furtherance of the objects of this Act. (2) The objects of a State Water Management Outcomes Plan are as follows— (a) to set the over-arching policy context, targets and strategic outcomes for the management of the State's water sources, having regard to— (i) relevant environmental, social and economic considerations, and (ii) the results of any relevant monitoring programs, (b) to promote the water management principles established by this Act, (c) to give effect to any State government policy statement in relation to salinity strategies. (3) The State Water Management Outcomes Plan must be consistent with— (a) government obligations arising under any inter-governmental agreement to which the government is a party, such as the Murray-Darling Basin Agreement set out in Schedule 1 to the Water Act 2007 of the Commonwealth, and (b) government obligations arising in connection with any international agreement to which the government of the Commonwealth is a party, and (c) State government policy, including State government policy in relation to the environmental objectives for water quality and river flow. (4) For the purposes of this section, State government policy includes such matters as are declared by the regulations to be State government policy. (5) The regulations may make provision for or with respect to the public consultation procedures to be complied with in relation to the establishment or amendment of a State Water Management Outcomes Plan. (6) A State Water Management Outcomes Plan has effect for the period of 5 years commencing on the date on which it is published in the Gazette. 7 Classification of water sources (1) The Minister may, by order published in the Gazette, classify water sources for the purposes of this Act. (2) Such an order may only be made with the concurrence of the Minister for the Environment. (3) Water sources are to be classified as follows— (a) as to the extent to which they are at risk (that is, the extent to which harm to the water source or its dependent ecosystems is likely to occur), (b) as to the extent to which they are subject to stress (that is, the extent to which harm to the water source or its dependent ecosystems has occurred or is occurring), (c) as to the extent of their conservation value (that is, the extent to which their intrinsic value merits protection from risk and stress). (4) It is the intention of Parliament that, within 12 months after the date of assent to this Act— (a) the water sources of the State be classified in accordance with this section, and (b) bulk access regimes be established for such of those water sources as are classified high risk, high stress or high conservation value. (5) A bulk access regime referred to in subsection (4) (b) is to be established by means of a Minister's plan made, in the case of a water source that is within a water management area for which a management committee has been established, in consultation with that committee. (6) A bulk access regime referred to in subsection (4) (b) has effect for 10 years from the date on which it is established, but may be varied under section 45 as if it had been established by a management plan, in which case section 87 applies accordingly. (7) The regulations may prescribe rules in accordance with which water sources are to be classified for the purposes of this Act. 8 Environmental water (1) For the purposes of this Act, environmental water comprises the following— (a) water that is committed by management plans for fundamental ecosystem health or other specified environmental purposes, either generally or at specified times or in specified circumstances, and that cannot to the extent committed be taken or used for any other purpose (planned environmental water), (b) water (licensed environmental water) that is— (i) committed by an adaptive environmental water condition under section 8B, 8C, 8D or 63B, or (ii) taken or permitted to be taken under a licence of an environmental subcategory, or (iii) taken or permitted to be taken under a licence of a class prescribed by the regulations for the purposes of this paragraph. (1A) A management plan is to commit water as planned environmental water in at least 2 of the following ways (whether by 2 separate ways or a combination of 2 ways)— (a) by reference to the commitment of the physical presence of water in the water source, (b) by reference to the long-term average annual commitment of water as planned environmental water, (c) by reference to the water that is not committed after the commitments to basic landholder rights and for sharing and extraction under any other rights have been met. (2) A management plan must contain provisions for the identification, establishment and maintenance of planned environmental water (environmental water rules). The environmental water rules relating to a water source do not need to specify that a minimum quantity of water is required to be present in the water source at all times. (3) Environmental water rules are to be established for all of the water sources in the State as soon as practicable after the commencement of this section. (4) (Repealed) 8A Planned environmental water (1) The Minister may cancel any category or subcategory of licence prescribed by the regulations that is held by the Minister and commit an equivalent amount of water as determined in accordance with the management plan as planned environmental water for the water source to which the licence related. (2) Planned environmental water committed under this section is to be used for only those purposes specified in the relevant management plan. (3) Sections 78, 78A and 87 do not apply to the cancellation of an access licence under this section. 8B Adaptive environmental water through dedication of existing water entitlements (1) The holder of an access licence may request that the Minister impose an adaptive environmental water condition in respect of the whole or a part of the access licence. (2) A condition imposed under this section may be amended, and is to be revoked, by the Minister at the request in writing of the holder of the access licence, except as provided by the regulations. 8C Adaptive environmental water through system improvements (1) The Minister may grant an access licence of a category or subcategory determined by the Minister to the Minister, Local Land Services or another public body, without the need for an application to be made for the licence in accordance with Part 2 of Chapter 3, so long as— (a) works or other actions result in water savings in the system being made in the water source in respect of which the licence is granted, and (b) the share component of the licence is equivalent to the value of water savings in the system made, and (c) an adaptive environmental water condition is imposed on the licence. (2) In this section, system means that part of a water source to which a management plan applies that is not identified by the plan for commitments to basic landholder rights and for sharing and extraction under any other rights. 8D Adaptive environmental water conditions after surrender of licences (1) The Minister may keep an access licence surrendered by the holder of the licence or transfer it to Local Land Services or another public body, and may change the licence to a different category or subcategory, if— (a) the share component of the licence is equivalent to the share component of the surrendered licence (subject to the application of any conversion factor prescribed by the access licence dealing principles or the regulations), and (b) an adaptive environmental water condition is or has been imposed on the licence. (2) The Minister may cancel an access licence surrendered by the holder of the licence and transfer the share component of the surrendered licence (subject to the application of any conversion factor prescribed by the access licence dealing principles or the regulations) to another licence if an adaptive environmental water condition is or has been imposed on the licence. 8E General provisions relating to access licences with adaptive environmental water conditions (1) This section applies to access licences that are subject to an adaptive environmental water condition. (2) For the purposes of this Act (but subject to section 8B (2)), an adaptive environmental water condition is a mandatory condition. (3) The terms of an adaptive environmental water condition imposed in respect of an access licence are to further the objectives of the relevant management plan. (4) If the adaptive environmental water condition on an access licence requires the water to be left in the water source for environmental purposes, then the water allocation account is to be debited when the water is available in accordance with the condition. (5) If the adaptive environmental water condition requires the environmental water to be taken from the water source then the water allocation account is to be debited when it is taken. (6) (Repealed) (7) Before imposing an adaptive environmental water condition on an access licence, the Minister is to approve a plan for the implementation of the condition. (8) The Minister is to ensure that the plan referred to in subsection (7), and a requirement to comply with the plan, forms part of the adaptive environmental water condition. (9) An access licence to which this section applies, or a part of such a licence to which the adaptive environmental water condition concerned is expressed to relate, may be the subject of a dealing in accordance with this Act if the plan approved under subsection (7) so provides. 8F Auditing of compliance with extraction limits (1) This section applies for the purpose of auditing compliance with the long-term extraction limit (however expressed) under a management plan. (2) The long-term extraction limit is taken to be varied by the amount of any change to the amount of water committed as licensed environmental water. (3) The variation in the long-term extraction limit is to be determined in accordance with a methodology approved by the Minister and published in the Gazette. (4) To avoid doubt, water savings in a system (within the meaning of section 8C) are not to be taken into account when determining the variation. (5) Water committed as licensed environmental water is not to be accounted for as extraction. Division 3 General 9 Act to be administered in accordance with water management principles and State Water Management Outcomes Plan (1) It is the duty of all persons exercising functions under this Act— (a) to take all reasonable steps to do so in accordance with, and so as to promote, the water management principles of this Act, and (b) as between the principles for water sharing set out in section 5 (3), to give priority to those principles in the order in which they are set out in that subsection. (2) It is the duty of all persons involved in the administration of this Act to exercise their functions under this Act in a manner that gives effect to the State Water Management Outcomes Plan. 10 Review of work and activities of Department (1) The Minister is to ensure that the work and activities of the Department are reviewed at intervals of not more than 5 years for the purpose of determining whether they have been effective in giving effect to the water management principles of this Act and the State Water Management Outcomes Plan. (2) The results of each review under this section are to be included in the relevant annual reporting information prepared for the Department under the Government Sector Finance Act 2018. Part 2 Management committees 11 Constitution of water management areas (1) The Minister may, by order published in the Gazette, constitute any land as a water management area. (2) An order under this section must name the area and fix its boundaries. 12 Establishment of management committees (1) The Minister may, by order published in the Gazette— (a) establish a management committee to carry out a specific task in relation to water management in a water management area, and (b) set terms of reference in accordance with which the committee is to carry out that task. (2) The task for which a management committee is appointed may relate to any aspect of water management, including (without limitation) water sharing, water source protection, floodplain management and drainage management. (3) At any time the Minister may, by order published in the Gazette, abolish a management committee, and may do so whether or not it has completed the task for which it was established. (4) Nothing in this section prevents the establishment of two or more committees for the same water management area so long as they do not have overlapping functions. 13 Membership of committee (1) A management committee consists of at least 12, but not more than 20, members appointed by the Minister, of whom— (a) at least two are to be persons appointed to represent the interests of environmental protection groups, and (b) at least two are to be persons appointed to represent the interests of water user groups, and (c) at least two are to be persons appointed to represent the interests of local councils, and (d) at least one is to be a person nominated by Local Land Services, and (e) at least two are to be Aboriginal persons appointed to represent the interests of Aboriginal persons, and (f) at least one is to be a member of staff of the Department, and (g) at least one is to be a person nominated by the Minister for the Environment, and (h) such other persons as are appointed to represent such interests as the Minister considers require representation, and (i) one is to be a person (not being a member of staff of the Department) who is appointed as an independent chairperson for the committee. (2) The regulations may make provision with respect to qualifications for appointment as a member of a management committee. (3) The members appointed as referred to in subsection (1) (a)–(e) should, as far as practicable, be persons who reside within the water management area for which the management committee is being constituted. (4) Schedule 6 has effect with respect to the constitution and procedure of a management committee. 14 Functions of management committees (1) The principal function of a management committee is to carry out the task for which it is appointed. (2) The task for which a committee is appointed may include any one or more of the following— (a) to prepare a draft management plan for the whole or any part of the management area or of the water sources in the area, (b) to review a management plan that is in force in the water management area, (c) to investigate such matters affecting the management of the water management area as the Minister refers to it for investigation, (d) to report to the Minister on such matters affecting the management of the water management area as the Minister refers to it for report, (e) to advise the Minister on such matters affecting the management of the water management area as the Minister refers to it for advice. (3) It is the duty of a management committee to exercise its functions consistently with the principles of ecologically sustainable development. Part 3 Management plans Division 1 Preliminary 15 Preparation of draft management plan (1) The Minister may, by the order by which a management committee is established or by a subsequent order in writing— (a) direct the committee to prepare a draft management plan, and review any related implementation program, on any aspect of water management, including (but not limited to)— (i) water sharing, and (ii) water source protection, and (iii) drainage management, and (iv) floodplain management, and (b) set terms of reference in accordance with which such a plan is to be prepared. (2) A management committee to which such an order is given is to prepare a draft management plan in accordance with the terms of reference specified in the order. (3) If the management committee fails to prepare a draft management plan in accordance with its terms of reference, the Minister may make a Minister's plan under section 50 in respect of the matter. (4) (Repealed) 16 Management plans to be consistent with other instruments (1) A management plan must be consistent with— (a) the State Water Management Outcomes Plan, and (b) any State environmental planning policy under the Environmental Planning and Assessment Act 1979, and (c) any protection of the environment policy under the Protection of the Environment Operations Act 1997, and (d) any regulation under the Water NSW Act 2014 or the Googong Dam Catchment Area Act 1975, and (e) State government policy, including State government policy in relation to the environmental objectives for water quality and river flow. (2) For the purposes of this section, State government policy includes such matters as are declared by the regulations to be State government policy. 17 Provisions applicable to all management plans A management plan may, in respect of a water management area or water source to which it applies, contain the following kinds of provisions— (a) provisions with respect to the preservation and enhancement of the quality of water, (b) provisions with respect to the kinds of monitoring and reporting requirements that should be imposed as conditions of approvals, (b1) provisions with respect to the advertisement of applications for approvals, (c) provisions with respect to the conditions to which access licences and approvals are to be subject, (d) provisions indicating the circumstances in which, the matters in respect of which and the extent to which the management plan may be amended by the Minister during the period for which it is in force, (e) provisions with respect to such other matters as may be authorised by the regulations. 18 Matters for consideration (1) In formulating a draft management plan, the management committee must have due regard to the socio-economic impacts of the proposals considered for inclusion in the draft plan. (1A) In formulating a draft management plan, the management committee must also have due regard to the provisions of any relevant local strategic plan under the Local Land Services Act 2013. (2) Due regard may also be had, in the formulation of the plan's proposals, to the effect within each water management area or water source to which the plan applies of activities occurring, or likely to occur, outside each such area or water source. Division 2 Water sharing 19 Application of Division (1) This Division applies to the provisions of a management plan to the extent to which they deal with water sharing. (2) The water sharing provisions of a management plan may apply to the whole or any part of a water management area, or to the whole or any part of one or more water sources within a water management area. 20 Core provisions (1) The water sharing provisions of a management plan for a water management area or water source must deal with the following matters— (a) the establishment of environmental water rules for the area or water source, (b) the identification of requirements for water within the area, or from the water source, to satisfy basic landholder rights, (c) the identification of requirements for water for extraction under access licences, (d) the establishment of access licence dealing rules for the area or water source, (e) the establishment of a bulk access regime for the extraction of water under access licences, having regard to the rules referred to in paragraphs (a) and (d) and the requirements referred to in paragraphs (b) and (c). (2) The bulk access regime referred to in subsection (1) (e)— (a) must recognise and be consistent with any limits to the availability of water that are set (whether by the relevant management plan or otherwise) in relation to the water sources to which the regime relates, and (b) must establish rules according to which access licences are to be granted and managed and available water determinations to be made, and (c) must recognise the effect of climatic variability on the availability of water, and (d) may establish rules with respect to the priorities according to which water allocations are to be adjusted as a consequence of any reduction in the availability of water, and (e) may contain provisions with respect to the conditions that must (as mandatory conditions) be imposed on access licences under section 66 (1), including conditions providing for the variation, from time to time, of the share and extraction components of access licences, and (f) must be consistent with the water management principles. (3) The rules referred to in subsection (2) (d) must comply with the priorities established under section 58. (4) The access licence dealing rules established under subsection (1) (d)— (a) must comply with the access licence dealing principles, and (b) must not deal with any matter for which the access licence dealing principles may make provision under section 71Z (2), and (c) subject to paragraph (b) and the access licence dealing principles, may regulate or prohibit any dealing under Division 4 of Part 2 of Chapter 3. 21 Additional provisions The water sharing planning provisions of a management plan for a water management area or water source may also deal with the following matters— (a) the rates, times and circumstances under which water may be taken from any water source in the area, or the quantity of water that may be taken from any water source in the area or delivered through the area, (b) the kinds of water supply works that may be constructed and used in the area, (c) the operation of water accounts for the area or water source, such as the carrying over of credits from one accounting period to the next, the maximum credit that may be allowed to accumulate in any account and the withdrawal of water from any account by reason of evaporation or dam spill or in such other circumstances as may be prescribed by the regulations, (d) water sharing measures for the protection and enhancement of the quality of water in the water sources in the area or for the restoration or rehabilitation of water sources or their dependent ecosystems, (e) measures to give effect to the water management principles and the objects of this Act, (e1) measures, not inconsistent with this Act, that are necessary because of requ