Given the fundamental importance of water to business and communities it is fundamental that Government act to allocate responsibility. The current system has so many interwoven and overlying pieces of regulation, it would be fair to say that no one statutory State or Commonwealth body is to blame. Unfortunately the same can be said of responsibility at the Government level, thus enabling the States and the Commonwealth to engage in the finger pointing at which they are very good already. This article briefly examines the issue in NSW.

What is Regulated?

Water is at the conjunction of at least 9 schemes of legislation. Broadly these schemes are:

a) regulation of river flows, dams and ground water – primarily administered by the State;
b) water quality through pollution control - primarily administered by the State;
c) catchment management generally - primarily administered by the State (EPA);
d) operation of dams primarily administered by the State (State Water);
e) environmental planning – administered by Local and State Government;
f) threatened species conservation – administered by the State and the Commonwealth;
g) heritage protection – administered by the State and the Commonwealth;
h) land access and "infrastructure connection/interference" legislation which is primarily about getting approval to connect to existing State infrastructure – administered by the State; and
i) provision of water to customers through bodies such as Sydney Water.

The first scheme operates primarily through the Water Management Act 2000. The Water Management Act regulates:

a) the allocation or amount of water (including water trading);
b) works and infrastructure to take the water; and
c) the use of the water.

This system was designed to separate land ownership and water entitlements, and attempts to recognise the different economic value and functional requirements of each part of the water extraction process.

However, the allocation of water entitlements has not been integrated with the other schemes above, and in particular the protection of physical catchments, their associated ecological and social communities and competing development pressures.

This creates an ambiguity in the planning process as well as in the subsequent assessment and approvals process. Decisions on land use planning are not necessarily made at the same time or by the same entities as those which make decisions regarding water allocation and protection of endangered ecological communities.

Attempts at Coordination

Better coordination of these processes is highly desirable but has proven politically difficult in NSW. There are always protests whenever council amalgamations are mentioned and the formation of "super ministries" such as the (now disaggregated) Department of Infrastructure, Planning and Natural Resources also proved to be unpopular. Efforts to integrate water and ecological considerations into the land zoning and planning process have been very difficult, even where attempted, because it tends to create winners and losers based on an often vaguely articulated environmental agenda.

There is a good case for a comprehensive Regulatory and Institutional reform so that this vital resource is able to be managed for the benefit of the nation.

Case Study

et out below is an indicative list of approvals that may be required for a hypothetical development which needs to increase its existing water supply. This proposal involves constructing pumping works on a river; transporting the water via a pipeline; and then storing the water in a dam on the site. It should be noted that this list is indicative only and obtaining one approval may in some circumstances obviate the need for another approval. However it does not address the further complexities in regulation and institutions involved in actually providing water to retail customers, as the space allocated for this article precludes it.

Water Licensing – Administered by Department of Natural Resources – under the Water Management Act 2000

• Water use approval (to use the water)
• Water management works approval (eg pump, pipeline and dam)
• Activity approval (eg to place structure or excavations near a watercourse)
• Access licence (to take water as allocation – water trading vehicle)

Alternatively –

Water Licensing – Administered by Department of Natural Resources (if Water Management Act does not apply)- under the Water Act 1912 (NSW)

• Part 2 licence

Works around lakes/rivers – Administered by Department of Natural Resources or Council (depending on scale and process) and if Water Management Act does not apply – under the Rivers and Foreshores Improvement Act 1948 (NSW)

• Part 3A permit

Planning – Administered by the Minister for Planning or the Council (depending on scale and process) -under Environmental Planning and Assessment Act 1979 (NSW)

• Development Consent (or Part 3A Planning approval)

Vegetation – Administered by the Department of Natural Resources or the local CMA - under the Native Vegetation Act 2003 (NSW)

• Consent to clear native vegetation or approval of a Property Vegetation Plan

Threatened Species – Administered by Department of Environment and Conservation under the National Park and Wildlife Act 1974:

• Threatened species licence (eg to take or pick a threatened species)

Matters of National Environmental Significance – Administered by Department of Environment and Heritage (Cth) - Environment Protection and Biodiversity Conversation Act 1999 (Cth)

• Approval to take action having a significant impact on matters of national environment significance (for example, Commonwealth listed threatened species)

Aboriginal Cultural Heritage – Administered by Department of Environment and Conservation – National Parks and Wildlife Service under National Parks and Wildlife Act 1974 (NSW)

• Permit to disturb and consent to destroy Aboriginal objects

European Heritage – Administered by NSW Heritage Office under Heritage Act 1977 (NSW)

• Heritage approval/excavation permit to impact European heritage

Roads – Administered by RTA or other Roads Authority under the Roads Act 1993

• Approval to construct works to cross a road

Pipeline – Administered by Minister for Water Utilities under the Pipelines Act 1967 (NSW)

• Pipelines Licence

Pollution – Administered by Department of Environment and Conservation – Environment Protection Authority under the Protection of the Environment Operations Act 1997

• Environment Protection Licence (if discharge to water or if equipment is of capacity to be a scheduled premises)

This article provided by

Michael Astill
Partner
Blake Dawson Waldron Lawyers

Disclaimer: The Warren Centre publishes articles relating to new technology and innovation that are often based on information supplied by third parties. While an editorial process is applied, we make no exhaustive investigation into the accuracy of the information, thus no liability will be accepted for its accuracy. Please note that in providing this information, The Warren Centre is not supporting or promoting any technology or company, merely seeking to inform. Interested readers should take their own steps to verify the information prior to relying on it in any way.

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