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This is a Bill, not an Act. For current law, see the Acts databases.
Water Management Amendment
Bill 2005
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Water Management Act 2000 No 92 2
4 Amendment of Protection of the Environment Operations
(General) Regulation 1998 2
Schedule 1 Amendment of Water Management Act 2000 3
Schedule 2 Amendment of Water Management Act 2000 relating to
irrigation corporations 31
Schedule 3 Amendment of Protection of the Environment Operations
(General) Regulation 1998 33
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2005
New South Wales
Water Management Amendment
Bill 2005
Act No , 2005
An Act to amend the Water Management Act 2000 in relation to plans of
management, environmental water and compensation and to amend other legislation
consequentially; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Water Management Amendment Bill 2005
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Water Management Amendment Act 2005.
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation,
except as provided by subsection (2).
(2) The provisions of Schedule 1 [48]-[57] commence on the date of assent
to this Act.
3 Amendment of Water Management Act 2000 No 92
The Water Management Act 2000 is amended as set out in Schedules 1
and 2.
4 Amendment of Protection of the Environment Operations (General)
Regulation 1998
The Protection of the Environment Operations (General) Regulation
1998 is amended as set out in Schedule 3.
Page 2
Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 Schedule 1
Schedule 1 Amendment of Water Management Act
2000
(Section 3)
[1] Section 8 Environmental water
Insert after section 8 (1):
(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] Sections 8A-8E
Insert after section 8:
8A Planned environmental water
(1) If the relevant management plan so provides, the Minister may
cancel any supplementary access licence, and any other 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) If the relevant management plan so provides, 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.
Page 3
Water Management Amendment Bill 2005
Schedule 1 Amendment of Water Management Act 2000
(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.
8C Adaptive environmental water through system improvements
(1) If the relevant management plan so provides, the Minister may
grant an access licence of a category or subcategory determined
by the Minister to the Minister, a catchment management
authority or other 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 through water savings
If the relevant management plan so provides, the Minister may
keep an access licence surrendered by the holder of the licence or
transfer it to a catchment management authority or other public
body, and may change the licence to a different category or
subcategory, if:
(a) the licence has been surrendered as a result of water
savings made by any means (for example, works or other
improvements or recycling), and
(b) the share component of the licence is equivalent to the
value of the savings made, and
(c) an adaptive environmental water condition is 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.
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Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 Schedule 1
(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) For the purposes of auditing compliance with the long-term
extraction limit under the relevant management plan, the delivery
of water pursuant to an access licence to which this section
applies:
(a) in the case of a licence to which section 8C relates--is not
to be accounted for as extraction, and
(b) in the case of a licence to which section 8B or 8D relates--
is to be accounted for as extraction.
(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.
[3] Section 20 Core provisions
Insert "and provisions relating to adaptive environmental water" after "rules"
in section 20 (1) (a).
Page 5
Water Management Amendment Bill 2005
Schedule 1 Amendment of Water Management Act 2000
[4] Section 20 (4) (b) and (c)
Omit section 20 (4) (b). Insert instead:
(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.
[5] Section 41 Making of management plan
Insert ", by order published in the Gazette," after "may" wherever occurring
in section 41 (1) (a) and (b).
[6] Section 42 Amendment of management plans
Insert after section 42 (2):
(3) Each management plan specified in Schedule 12 is amended as
set out in that Schedule.
(4) The amendment of a management plan by this or any other Act
does not prevent its later amendment or repeal in accordance with
this Act.
[7] Section 43A Extension of duration of management plan dealing with
water sharing
Omit "were" from section 43A (3) (b). Insert instead "are".
[8] Section 43A (3A)
Insert after section 43A (3):
(3A) If a report of the Natural Resources Commission under
subsection (3) recommends changes to a management plan that
will result in a reduction of water allocations in relation to which
compensation might be payable under section 87AA, the
Commission is to state in the report whether the purpose of the
proposed changes is:
(a) to restore water to the environment because of natural
reductions in inflow to the relevant water source, including
but not limited to changes resulting from climate change,
drought or bushfires, or
(b) to provide additional water to the environment because of
more accurate scientific knowledge that demonstrates that
the amount previously allocated to the environment is
inadequate.
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Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 Schedule 1
[9] Section 45 Minister may amend or repeal management plan
Omit section 45 (2).
[10] Section 46
Insert before section 47:
46 Making or amendment of management plan
(1) If the Minister makes a replacement management plan or amends
a management plan and the replacement plan or amendment will
result in a reduction of water allocations in relation to which
compensation might be payable under section 87AA, the
Minister is to include in the order in which the replacement plan
or amendment is made, or in another order, a statement as to
whether:
(a) the purpose of the reduction to water allocations is to
restore water to the environment because of natural
reductions in inflow to the relevant water source, including
but not limited to changes resulting from climate change,
drought or bushfires, or
(b) the purpose of the reduction to water allocations is to
provide additional water to the environment because of
more accurate scientific knowledge that demonstrates that
the amount previously allocated to the environment is
inadequate, or
(c) the reduction to water allocations results from a change in
government policy.
(2) A statement referred to in subsection (1):
(a) need not be made if the reduction concerned arises from
circumstances referred to in section 87AA (3) (a) or (c),
and
(b) in a case where the reduction is made for more than one of
the purposes referred to in subsection (1), is to specify each
of the relevant purposes and the extent to which the
reduction relates to each of those relevant purposes.
Page 7
Water Management Amendment Bill 2005
Schedule 1 Amendment of Water Management Act 2000
[11] Section 47 Validity of management plans and exercise of plan-making
functions
Omit the definition of plan-making function in section 47 (8). Insert instead:
plan-making function means:
(a) a function under this Act relating to the making of a
management plan (including relating to the amendment,
replacement or repeal of a management plan or the
extension of the duration of a management plan), or
(b) a function under section 46 of this Act relating to the
statement of the purpose for which any provision of a
management plan has been made.
[12] Section 56 Access licences
Insert after section 56 (4):
(4A) Without limiting subsection (1) (b), the extraction component of
an access licence may authorise the taking of water from a water
source specified in the share component of the licence and from
another water source not so specified if those water sources are
vertically abutting (either wholly or partly) water sources.
(4B) In the circumstances referred to in subsection (4A), the water
source specified in the share component of the access licence is
to be the water source that is the main source for the extraction of
water by the holder of the licence.
[13] Section 58 Priorities between different categories of licence
Insert after section 58 (2):
(3) In relation to the water management area or water source to
which it applies, a management plan may provide for different
rules of priority to those established by subsection (1).
(4) If a management plan so provides for different rules of priority,
those different rules are taken to have been established by this
section.
[14] Section 59 Available water determinations
Insert after section 59 (2):
(3) If the extraction component of an access licence authorises the
taking of water from a water source specified in the share
component of the licence and from another water source not so
specified and those water sources are vertically abutting (either
wholly or partly) water sources, the available water
Page 8
Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 Schedule 1
determinations that apply to the licence are those made in relation
to the water source specified in the share component of the
licence.
(4) If the Minister consents to the amendment of an access licence to
enable water to be taken by a specified water supply work or
group of water supply works in circumstances referred to in
section 71W (2) (b) or (c), the available water determinations that
apply to the licence are those made in relation to the water source
specified in the share component of the licence.
[15] Section 65 Controlled allocation of access licences
Omit section 65 (3) and (4) and the note to subsection (4).
[16] Section 67 Imposition of conditions after access licence is granted
Insert "to conditions imposed on an access licence as a result of action taken
under section 66 (3)" after "the access licence," in section 67 (2).
[17] Section 68A Amendment of share or extraction components of access
licences by Minister
Insert "this Act or" after "with" in section 68A (1).
[18] Section 68A (1A) and (1B)
Insert after section 68A (1):
(1A) The Minister may amend the share component or extraction
component (or both) of an access licence so as to alter the water
management area or water source to which the share component
of the licence relates, or the locations from which water may be
taken in accordance with the extraction component of the licence.
(1B) An amendment may only be made under subsection (1A) if:
(a) the amendment is for the purpose of enabling the holder of
the licence to take water from a different water source to
that authorised by the licence because erroneous location
data has resulted in the holder taking water from that
different source, and
(b) at the time at which the granting of the access licence was
recorded in the register, an access licence could have been
granted to the holder authorising the taking of water from
that different water source.
Page 9
Water Management Amendment Bill 2005
Schedule 1 Amendment of Water Management Act 2000
[19] Section 71B When matters required to be recorded in General Division
of Access Register have effect
Omit "Any" from section 71B (1).
Insert instead "Subject to this section, any".
[20] Section 71B (3)
Insert after section 71B (2):
(3) If an application for the extension of a term transfer under section
71N is received before the expiry of the term transfer, the
extension is to be recorded in the Register as taking effect from
the end of the current term of the term transfer.
[21] Section 71N Term transfers of entitlements under access licences
Insert "in relation to any water entitlements" after "concerned" in section 71N
(5).
[22] Section 71N (7A)
Insert after section 71N (7):
(7A) The period for which a term transfer has effect may be extended,
with the consent of the transferee, while the term transfer remains
in force.
[23] Section 71S Amendment of extraction component of access licence
Insert after section 71S (3):
(4) The Minister may, by order published in the Gazette, declare that
the right to apply for an amendment of the extraction component
of an access licence for a specified water management area or
water source is to be acquired by auction, tender or other means
specified in the order.
[24] Section 71W Access licence may nominate water supply works
Omit section 71W (2). Insert instead:
(2) The water supply work or group of water supply works
nominated must be in one or more of the following:
(a) the same water management area or water source as the
access licence concerned,
(b) a NSW water tagging zone,
Page 10
Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 Schedule 1
(c) an interstate water tagging zone in another State or
Territory if the operation of the work or works is lawful in
that zone and an arrangement is in place (as referred to in
section 391A) between the Minister and a Minister of the
other State or Territory.
(3) For the avoidance of doubt, a water supply work or group of
water supply works may be nominated under this section even
though no approval is required to be held in relation to the work
or works under this Act.
(4) In this section:
interstate water tagging zone means an interstate water tagging
zone established by the access licence dealing principles.
NSW water tagging zone means a NSW water tagging zone
established by the access licence dealing principles.
[25] Section 71Y General
Omit "or dealing on default" from section 71Y (1).
Insert instead ", dealing on default or assignment under section 71T or 71V".
[26] Section 71Z Access licence dealing principles
Omit "subject to any such rules," wherever occurring.
[27] Section 71Z (2) and (3)
Insert at the end of section 71Z:
(2) The access licence dealing principles may include provisions
relating to any or all of the following:
(a) the establishment of interstate water tagging zones for the
purposes of section 71W,
(b) the establishment of NSW water tagging zones for the
purposes of section 71W,
(c) the criteria to be considered for the granting of an
application in circumstances referred to in section 71W (2)
(b) or (c).
(3) The access licence dealing principles prevail over the access
licence dealing rules to the extent of any inconsistency.
Page 11
Water Management Amendment Bill 2005
Schedule 1 Amendment of Water Management Act 2000
[28] Section 72A
Insert after section 72:
72A Special provisions relating to co-holdings in access licences
(1) Except as provided by subsection (2) and section 74, any dealing
in relation to an access licence that is held by co-holders requires
the consent of all of the co-holders and is taken to be a dealing
with respect to the whole of the licence (rather than to a holding
in the licence).
(2) A holding in an access licence may only be the subject of a
dealing under section 71M (8) or 71N (11).
[29] Section 74
Insert after section 73:
74 Exit from co-held access licence
(1) On the application of one or more of the co-holders of an access
licence (the original access licence), the Minister may consent to
the extinguishment of the holdings of one or more co-holders in
the licence and the granting of a new access licence in accordance
with Schedule 1B.
(2) If the Minister extinguishes holdings in the original licence and
grants a new access licence under subsection (1), the Minister is
to reduce the entitlements under the original access licence to the
extent necessary to reflect the entitlements conferred by the new
licence.
(3) An application may not be made under subsection (1) without the
consent in writing of all of the co-holders of the access licence
concerned or of co-holders who hold a majority share of the
holdings under the licence.
(4) On the application of one or more co-holders of an access licence,
the Supreme Court may, if it considers it just and equitable to do
so, order that the consent referred to in subsection (3) need not be
obtained and may make ancillary orders for the purposes of this
section.
(5) When determining such an application where the water supply
work nominated by the access licence concerned is shared by
some or all of the co-holders of the licence, the Supreme Court is
to take into consideration the likely effect that the taking of action
under subsection (1) would have on the use of that work and the
co-holders who have the benefit of it.
Page 12
Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 Schedule 1
(6) This section does not apply to an access licence if:
(a) there is any money due under this Act in respect of the
access licence, including any civil penalties imposed under
this Act, or
(b) the co-holders hold the licence as joint tenants, or
(c) the access licence dealing principles or the access licence
dealing rules prevent an application being made under this
section.
(7) Schedule 1B has effect.
[30] Section 77A Cancellation of access licences that can no longer be used
or are no longer required
Insert after section 77A (2):
(2A) Subsection (2) does not apply to an access licence in relation to
which action is taken by the Minister under section 8D.
[31] Section 78 Suspension and cancellation of access licences
Omit section 78 (2). Insert instead:
(2) Instead of or in addition to suspending or cancelling an access
licence, the Minister may order a major utility or local water
utility to pay to the Minister a civil penalty of an amount not
exceeding $500,000 and a further civil penalty of an amount not
exceeding $20,000 for each day that the circumstances giving
rise to the initial civil penalty continue to exist.
[32] Section 86
Insert before section 87:
86 Definitions
In this Division:
compensation includes damages or any other form of monetary
compensation.
the Crown means the Crown within the meaning of the Crown
Proceedings Act 1988, and includes any officer, employee or
agent of the Crown.
[33] Section 87 Compensation payable in certain circumstances for
reductions in water allocations arising during initial period for which
management plan is in force
Omit section 87 (2) (a).
Page 13
Water Management Amendment Bill 2005
Schedule 1 Amendment of Water Management Act 2000
[34] Section 87 (2)
Insert at the end of section 87 (2) (c):
, or
(d) an amendment made by an Act to a management plan.
[35] Section 87 (9)
Insert after section 87 (8):
(9) Despite the other provisions of this section, compensation may be
claimed under this section only in respect of a reduction in water
allocations occurring during the period for which the first
management plan that established the bulk access regime
concerned is in force (excluding any period for which that plan is
extended under section 43A (1)).
[36] Sections 87AA and 87AB
Insert after section 87:
87AA Compensation payable in certain circumstances for reductions in
water allocations arising after initial period that management plan
is in force
(1) This section applies to the following categories and subcategories
of access licence:
(a) regulated river (high security) access licences,
(b) regulated river (general security) access licences,
(c) Murrumbidgee Irrigation (conveyance) access licences,
(d) Coleambally Irrigation (conveyance) access licences,
(e) unregulated river access licences,
(f) aquifer access licences,
(g) any other category or subcategory of access licence that is
prescribed by the regulations (other than supplementary
access licences or specific purpose access licences).
(2) A holder of an access licence to which this section applies whose
water allocations are reduced because of a change to provisions
of the relevant management plan dealing with water sharing is
entitled to compensation as assessed by the Minister in
accordance with subsections (5) and (6).
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Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 Schedule 1
(3) Despite subsection (2), the holder of an access licence is not
entitled to compensation under this section if:
(a) the reduction in water allocations occurred while the first
management plan (excluding any period for which that
plan was extended under section 43A (1)) was in force, or
(b) the reduction in water allocations occurred as a result of an
amendment of a management plan by the Minister under
section 45 that is authorised by the plan or that is required
to give effect to a decision of the Land and Environment
Court relating to the validity of the plan, or
(c) the reduction in water allocations is for the purpose of
restoring water to the environment because of natural
reductions in inflow to the water source, including but not
limited to changes resulting from climate change, drought
or bushfires.
(4) A reference in subsection (2) to a change in the provisions of a
management plan includes a change between the provisions of
the management plan concerned and provisions of the
management plan that it replaced.
(5) Compensation is payable to the holder of an access licence whose
water allocations are reduced because of a change in the
provisions of a management plan as a result of an amendment that
is specified under section 46 by the Minister as due to a change
in government policy.
(6) Compensation is payable as follows for a reduction in water
allocations for the purpose of providing additional water to the
environment because of more accurate scientific knowledge that
demonstrates that the amount previously allocated to the
environment is inadequate:
(a) no compensation is payable for reductions of 3% or less,
(b) compensation is payable for reductions of more than 3%
over any 10-year period commencing on or after the
expiration of the period for which the first management
plan for the relevant area was in force (including any
period for which that plan was extended under section 43A
(1)),
(c) only one third of the compensation payable for a reduction
of more than 3% but not more than 6% over any applicable
10-year period is liable to be paid under this section,
(d) only one half of the compensation payable for a reduction
of more than 6% over any applicable 10-year period is
liable to be paid under this section.
Page 15
Water Management Amendment Bill 2005
Schedule 1 Amendment of Water Management Act 2000
(7) The regulations may make provision for or with respect to the
following:
(a) the basis on which reductions in water allocations are to be
calculated or the method of determining such reductions
for the purposes of this section,
(b) the basis on which compensation is to be calculated or the
method for calculating the payment of compensation for
the purposes of this section,
(c) the manner and time of payment of compensation.
(8) This section has effect only while there is in force an agreement
entered into by, or on behalf of, the State and the Commonwealth
for or with respect to supplementing the payment of
compensation under this section.
(9) Despite any other provision of this section, no compensation is
payable under this section in respect of a reduction in water
allocations of a kind referred to in subsection (6) if the
Commonwealth has not provided funding in respect of that
reduction to meet its obligations under the agreement referred to
in subsection (8).
(10) A person may appeal to the Land and Environment Court on the
ground that the person is entitled to the payment of compensation
under this section but has not been determined as being entitled
to any compensation.
87AB Compensation is not payable in relation to certain conduct
(1) Compensation is not payable by or on behalf of the Crown in
respect of any relevant conduct in relation to a management plan.
(2) In this section, relevant conduct, in relation to a management
plan, means an act or omission occurring before the
commencement of the management plan in respect of the content,
effect or government policy concerning the management plan,
including the following:
(a) any act or omission, whether unconscionable, misleading,
deceptive or otherwise,
(b) a representation of any kind, whether made verbally or in
writing and whether negligent, false, misleading or
otherwise.
(3) This section has effect despite section 87.
(4) In this section, a reference to a management plan includes a
reference to an amendment of a management plan.
Page 16
Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 Schedule 1
[37] Section 100 Conditions of approval generally
Insert after section 100 (2) (and before the note to the section):
(3) Without limiting the types of conditions relating to the protection
of the environment that the Minister may impose under this
section on a water management work approval, those conditions
may include conditions relating to any or all of the following
matters:
(a) the undertaking of an investigation of the environmental
impact of cold water releases and the options for
mitigation of that impact,
(b) the preparation of a program to mitigate the impact of cold
water releases and the obtaining of approval to the
program from the Minister,
(c) the implementation of the program,
(d) the monitoring and reporting on actions taken to
implement the program and the impact of those actions on
the environment,
(e) the carrying out of new works or the making of alterations
to existing works, or both,
(f) the method of operation of water management works.
[38] Section 102 Imposition or variation of conditions after approval is
granted
Insert "or with the consent of" after "at the request of" in section 102 (2).
[39] Section 107 Amendment of approvals
Insert after section 107 (5):
(6) In considering any application under this section, the Minister is
to have regard to any order of the Supreme Court under section
74 that affects the matters covered by the application.
[40] Section 341 Unlawful taking of water
Insert after section 341 (1):
(1A) If a person who has the control or management of a water supply
work takes water by means of that work in contravention of
subsection (1) and the water supply work is nominated under
section 71W in relation to an access licence that is not held by
that person, the person who is the holder of the access licence is
also taken to have contravened subsection (1).
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Water Management Amendment Bill 2005
Schedule 1 Amendment of Water Management Act 2000
(1B) A person may be proceeded against and convicted under
subsection (1) pursuant to subsection (1A) whether or not the
person who has the control or management of the water supply
work concerned has been proceeded against or been convicted
under subsection (1).
[41] Section 341 (6) and (7)
Insert after section 341 (5):
(6) A person is not guilty of an offence under this section by reason
only of taking water under an access licence from a water
management area or water source that is different to that
specified in the extraction component for the licence if the person
does so in accordance with the consent of the Minister given in
circumstances referred to in section 71W (2) (b) or (c).
(7) A person who has the management or control of a water supply
work that is nominated under section 71W for an access licence
and who takes water by means of that water supply work is not
guilty of an offence under this section by reason only of not being
the holder of the access licence.
[42] Section 368 Appeals to Land and Environment Court
Insert "or local water utility" after "major utility" in section 368 (1) (m).
[43] Section 372 Functions of Ministerial Corporation
Insert after section 372 (1) (a):
(a1) to construct, maintain and operate gauging stations and
other monitoring equipment,
[44] Schedule 1A Access Register
Insert after clause 1 (1) (d):
(e) any adaptive environmental water condition to which the
licence, or a part of the licence, is subject.
[45] Schedule 1A, clause 2 (3) (a)
Omit "and a description of the dealing, and".
Insert instead ", a description of the dealing and the time and date of the
recording.".
[46] Schedule 1A, clause 2 (3) (b)
Omit the paragraph.
Page 18
Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 Schedule 1
[47] Schedule 1B
Insert after Schedule 1A:
Schedule 1B Provisions relating to exit from
co-held access licence
(Section 74 (7))
1 Definitions
In this Schedule:
extinguished holdings means the holdings in an access licence
extinguished by the Minister under section 74.
new access licence means an access licence granted by the
Minister under section 74 (1).
original access licence has the meaning given by section 74 (1).
2 Share component of new access licence
The share component of the new access licence:
(a) in a case where all the co-holders consented to the
application under section 74 (1)--is to be allocated
between the original access licence and the new access
licence in accordance with the directions in the
application, or
(b) in a case where co-holders who hold a majority of the
holdings under the original access licence consented to the
application under section 74 (1)--is to be allocated
between the original access licence and the new access
licence in the same proportions as the extinguished
holdings bear to the whole of the holdings in the original
access licence, or
(c) in a case where co-holders holding a majority of the water
entitlements under the original access licence did not
consent to the application under section 74 (1)--the share
component for the original access licence is to be
distributed between the original access licence and the new
access licence in accordance with the order of the Supreme
Court under section 74.
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Schedule 1 Amendment of Water Management Act 2000
3 Extraction component of new access licence
(1) If the extraction component of the original access licence did not
specify a volume limit or some other kind of restriction on the
amount of water to be extracted, the new access licence is to have
the same extraction component as applied to the original access
licence.
(2) If the extraction component of the original access licence
specified a volume limit or some other kind of restriction on the
amount of water to be extracted, the extraction component of the
new access licence:
(a) in a case where all the co-holders consented to the
application under section 74 (1)--is to be allocated
between the original access licence and the new access
licence in accordance with the directions in the
application, or
(b) in a case where co-holders who hold a majority of the
holdings under the original access licence consented to the
application under section 74 (1)--is to be allocated
between the original access licence and the new access
licence in the same proportions as the extinguished
holdings bear to the whole of the holdings in the original
access licence, or
(c) in a case where co-holders holding a majority of the water
entitlements under the original access licence did not
consent to the application under section 74 (1)--the
extraction component for the original access licence is to
be distributed between the original access licence and the
new access licence in accordance with the order of the
Supreme Court under section 74.
4 Water allocation account for new access licence
The water allocations for a water allocation account for an
original access licence and new access licence are to be adjusted
as follows:
(a) in a case where all the co-holders consented to the
application under section 74 (1)--the water standing to the
credit of the water allocation account for the original
access licence is to be distributed between the water
allocation accounts for the original access licence and the
new access licence in accordance with the directions in the
application,
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Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 Schedule 1
(b) in a case where co-holders who hold a majority of the
holdings under the original access licence consented to the
application under section 74 (1)--the water standing to the
credit of the water allocation account for the original
access licence is to be distributed between the water
allocation accounts for the original access licence and the
new access licence in the same proportions as the
extinguished holdings bear to the whole of the holdings in
the original access licence,
(c) in a case where co-holders holding a majority of the water
entitlements under the original access licence did not
consent to the application under section 74 (1)--the water
standing to the credit of the water allocation account for
the original access licence is to be distributed between the
water allocation accounts for the original access licence
and the new access licence in accordance with an order of
the Supreme Court under section 74 (4).
5 Conditions of new licence
A new access licence, at the time at which it is granted, is subject
to the same mandatory conditions to which the original access
licence was subject at that time.
6 Nominated water supply work for new access licence
A water supply work nominated in relation to an original access
licence is taken to be nominated in relation to the new access
licence unless a different water supply work is nominated in
accordance with this Act or an order of the Supreme Court made
under section 74 provides otherwise.
7 Security interests relating to new access licences
(1) A dealing under section 74 is not to be recorded in the register
unless the consent of any holder of a security interest in the
extinguished holdings of the original access licence has been
obtained.
(2) Any security interests that subsisted in the extinguished holdings,
as in force immediately before they were extinguished, become
equivalent interests in the new access licence.
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Water Management Amendment Bill 2005
Schedule 1 Amendment of Water Management Act 2000
[48] Schedule 9 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Water Management Amendment Act 2005
[49] Schedule 9, Part 5
Insert after Part 4 of Schedule 9:
Part 5 Provisions consequent on enactment of
Water Management Amendment Act 2005
70 Definition
In this Part, amending Act means the Water Management
Amendment Act 2005.
71 Management plans
(1) Any management plan (and any amendment of a management
plan) that was published in the Gazette before the
commencement of this clause is taken to have been validly made
and to be valid on and from the date that it was so published.
(2) Anything done or omitted to be done before the commencement
of this clause pursuant to a management plan or amendment of a
management plan referred to in subclause (1) (or done or omitted
purportedly in pursuance of such a plan or amendment) is taken
on and from the time at which it was done or omitted to be done
to have been validly done or validly omitted to be done.
(3) In this clause, a reference to a management plan, or an
amendment of a management plan, includes a reference to a
purported management plan or a purported amendment of a
management plan.
[50] Schedule 10 Conversion of former entitlements to access licences and
approvals
Omit clause 3 (1) (a). Insert instead:
(a) to the extent to which it entitles any person or body to take
a specified quantity of water, by an access licence held by
that person or body (subject to such of the conditions of the
entitlement as are applicable to an access licence):
(i) for the quantity of water so specified, or
(ii) if the relevant management plan, and regulations
made for the purposes of this paragraph, indicate
that a different quantity of water calculated in
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Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 Schedule 1
accordance with a specified methodology may be
taken under an access licence issued in relation to
the water management area or water source to which
the management plan applies--for a different
quantity of water calculated in accordance with that
methodology, and
[51] Schedule 10, clause 3 (3)
Insert after clause 3 (2):
(3) An access licence that replaces an entitlement may provide for a
specified reduction over a specified period of the quantity of
water that the holder of the licence is entitled to take or of the
share component of the licence if the relevant management plan
and any regulations made for the purposes of this subclause allow
the licence to provide for those matters.
[52] Schedule 10, clause 4 (3) and (4)
Insert after clause 4 (2):
(3) The regulations may amend Schedule 11 so as to insert, amend or
omit matter in Column 1, 2, 3 or 4 of that Schedule to make
provision for categories and subcategories of access licence
prescribed by the regulations (as referred to in section 57 (l) and
(2)).
(4) Despite subclause (3), if an entitlement has been replaced in
accordance with this Act before the commencement of an
amendment to Schedule 11 made pursuant to that subclause,
Schedule 11 as in force at the time the entitlement was replaced
continues to apply in relation to that entitlement.
[53] Schedule 10, clause 9A
Insert after clause 9:
9A Conditions relating to food safety and essential dairy care
(1) If an entitlement authorised water to be extracted for the purposes
of food safety or essential dairy care at times of low flows when
extraction of the water would not otherwise be allowed, an access
licence that replaces that entitlement is taken to contain the same
authorisation.
(2) An access licence referred to in subclause (1) is also subject to a
mandatory condition that the authorisation ceases to have effect
if the activity for which the extraction of water is permitted
ceases to be conducted at the same location or is not carried out
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Water Management Amendment Bill 2005
Schedule 1 Amendment of Water Management Act 2000
in the same manner as it was carried out immediately before the
entitlement concerned was replaced by the access licence.
[54] Schedule 10, clause 13 (3) (b)
Omit "the licence relates".
Insert instead "all the former entitlements related".
[55] Schedule 10, clause 13 (3) (c)
Omit the paragraph. Insert instead:
(c) a quantity of water calculated on the basis of the current
yield of the water management works controlled or
managed under all the former entitlements by the local
water utility by which the licence is taken to be held.
[56] Schedule 10, clause 16 Entitlements relating to bores
Insert at the end of clause 16:
(2) If the holder of a licence under Part 5 of the 1912 Act has been
taking water from a different water source to that authorised by
the licence because of erroneous location data, an access licence
that is taken to replace that licence may be issued with a share
component or extraction component (or both) that refers to the
different water source rather than to the water source referred to
in the replaced licence.
(3) A licence under Part 5 of the 1912 Act which, immediately before
the appointed day, related to a bore that intersects two water
sources that vertically abut each other is taken to have been
replaced by:
(a) an access licence that specifies in its share component the
water source that is the main source of extraction of water,
and
(b) a water supply work approval.
[57] Schedule 10, clause 19
Omit "24" from clause 19 (11). Insert instead "36".
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Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 Schedule 1
[58] Schedule 12
Insert after Schedule 11:
Schedule 12 Amendment of management plans
(Section 42 (3))
Part 1 Amendment relating to adaptive
environmental water
1 Management plans to be amended
The management plans to which this Part applies are all
management plans made before the commencement of this Part.
2 Amendment of management plans relating to adaptive
environmental water
Each management plan to which this Part applies is amended by
omitting subclause (2) of the clause titled "Adaptive
environmental water" and by inserting instead the following
subclauses:
(2) The Minister may grant an access licence in a water source
to which this Plan applies if the licence is subject to an
adaptive environmental water condition and arises through
water savings in the system made in that water source as
referred to in section 8C (1) of the Act.
(2A) The Minister may change the category or subcategory of
an access licence in a water source to which this Plan
applies if the licence is subject to an adaptive
environmental water condition that arises through water
savings as referred to in section 8D of the Act.
Part 2 Amendment relating to planned
environmental water
3 Management plans to be amended
The management plans to which this Part applies are all
management plans made before the commencement of this Part.
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Water Management Amendment Bill 2005
Schedule 1 Amendment of Water Management Act 2000
4 Amendment of management plans relating to planned
environmental water
Each management plan to which this Part applies (other than the
Water Sharing Plan for the Toorumbee Creek Water Source
2003) is amended by inserting after the last clause (with
appropriate numbering) in the Part titled "Amendment of this
Plan" the following clause:
Amendment relating to planned environmental water
(1) The Minister may amend this Plan to provide for the
recovery of planned environmental water as follows:
(a) the recovery is only to apply where the Minister has
cancelled an access licence held by the Minister in
accordance with section 8A of the Act,
(b) the amount of additional water to be provided as
planned environmental water is to be equivalent to
the annual average extraction of water under the
cancelled licence over the long-term,
(c) the average annual long-term availability of water
for the remaining access licences that relate to the
water source concerned is to be reduced by the
average annual long-term extraction of water under
the cancelled licence.
(2) The Minister may amend this Plan to specify the purposes
for which planned environmental water committed under
section 8A of the Act is to be used.
5 Amendment of Water Sharing Plan for the Toorumbee Creek Water
Source 2003
The Water Sharing Plan for the Toorumbee Creek Water Source
2003 is amended by inserting as the final Part (with appropriate
Part and clause numbering) the following Part:
Part Amendment of this Plan
Amendment relating to planned environmental water
(1) The Minister may amend this Plan to provide for the
recovery of planned environmental water as follows:
(a) the recovery is only to apply where the Minister has
cancelled an access licence held by the Minister in
accordance with section 8A of the Act,
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Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 Schedule 1
(b) the amount of additional water to be provided as
planned environmental water is to be equivalent to
the annual average extraction of water under the
cancelled licence over the long-term,
(c) the average annual long-term availability of water
for the remaining access licences that relate to the
water source concerned is to be reduced by the
average annual long-term extraction of water under
the cancelled licence.
(2) The Minister may amend this Plan to specify the purposes
for which planned environmental water committed under
section 8A of the Act is to be used.
Part 3 Amendment of management plans relating
to floodplain harvesting
6 Management plans to be amended
The management plans to which this Part applies are the
following:
(a) Water Sharing Plan for the Adelong Creek Water Source
2003,
(b) Water Sharing Plan for the Apsley River Water Source
2003,
(c) Water Sharing Plan for the Castlereagh River above
Binnaway Water Source 2003,
(d) Water Sharing Plan for the Commissioners Waters Water
Source 2003,
(e) Water Sharing Plan for the Coopers Creek Water Source
2003,
(f) Water Sharing Plan for the Dorrigo Plateau Surface
Water Source and Dorrigo Basalt Groundwater Source
2003,
(g) Water Sharing Plan for the Gwydir Regulated River Water
Source 2002,
(h) Water Sharing Plan for the Hunter Regulated River Water
Source 2003,
(i) Water Sharing Plan for the Jilliby Jilliby Creek Water
Source 2003,
(j) Water Sharing Plan for the Kangaroo River Water Source
2003,
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Water Management Amendment Bill 2005
Schedule 1 Amendment of Water Management Act 2000
(k) Water Sharing Plan for the Karuah River Water Source
2003,
(l) Water Sharing Plan for the Lachlan Regulated River
Water Source 2003,
(m) Water Sharing Plan for the Macquarie and Cudgegong
Regulated Rivers Water Source 2003,
(n) Water Sharing Plan for the Mandagery Creek Water
Source 2003,
(o) Water Sharing Plan for the Murrumbidgee Regulated
River Water Source 2003,
(p) Water Sharing Plan for the New South Wales Murray and
Lower Darling Regulated Rivers Water Sources 2003,
(q) Water Sharing Plan for the Ourimbah Creek Water Source
2003,
(r) Water Sharing Plan for the Phillips Creek, Mooki River,
Quirindi Creek and Warrah Creek Water Sources 2003,
(s) Water Sharing Plan for the Rocky Creek, Cobbadah,
Upper Horton and Lower Horton Water Source 2003,
(t) Water Sharing Plan for the Tarcutta Creek Water Source
2003,
(u) Water Sharing Plan for the Tenterfield Creek Water
Source 2003,
(v) Water Sharing Plan for the Toorumbee Creek Water
Source 2003,
(w) Water Sharing Plan for the Upper Billabong Water Source
2003,
(x) Water Sharing Plan for the Upper Brunswick River Water
Source 2003,
(y) Water Sharing Plan for the Upper Namoi and Lower
Namoi Regulated River Water Sources 2003,
(z) Water Sharing Plan for the Wandella Creek Water Source
2003,
(aa) Water Sharing Plan for the Wybong Creek Water Source
2003.
7 Amendment of management plans relating to floodplain
harvesting
Each management plan to which this Part applies (other than the
Plan referred to in clause 6 (v)) is amended by inserting as the
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Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 Schedule 1
final clause (with appropriate numbering) in the Part titled
"Amendment of this Plan" the following clause:
Amendment of Plan relating to floodplain harvesting
The Minister may amend this Plan so as to provide for the
floodplain harvesting of water by amending the waters or
water sources to which this Plan applies and by
consequential amendments so long as the amendments:
(a) if the Plan has already taken into consideration
floodplain harvesting extractions, do not affect the
outcomes of the long-term extraction limit specified
in the Plan, or
(b) if the Plan has not already taken into consideration
floodplain harvesting extractions, do not allow more
water being taken pursuant to access licences for
floodplain harvesting than permitted under
Schedule F to the Agreement within the meaning of
the Murray-Darling Basin Act 1992.
8 Amendment of Water Sharing Plan for the Toorumbee Creek Water
Source 2003
The Water Sharing Plan for the Toorumbee Creek Water Source
2003 is amended by inserting as the final clause (with appropriate
numbering) the following clause:
Amendment of Plan relating to floodplain harvesting
The Minister may amend this Plan so as to provide for the
floodplain harvesting of water by amending the waters or
water sources to which this Plan applies and by
consequential amendments so long as the amendments:
(a) if the Plan has already taken into consideration
floodplain harvesting extractions, do not affect the
outcomes of the long-term extraction limit specified
in the plan, or
(b) if the Plan has not already taken into consideration
floodplain harvesting extractions, do not allow more
water being taken pursuant to access licences for
floodplain harvesting than permitted under
Schedule F to the Agreement within the meaning of
the Murray-Darling Basin Act 1992.
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Water Management Amendment Bill 2005
Schedule 1 Amendment of Water Management Act 2000
[59] Dictionary
Omit "section 71L" from the definition of access licence dealing principles.
Insert instead "section 71Z".
[60] Dictionary
Insert in alphabetical order:
adaptive environmental water condition means a condition
imposed on an access licence of a type referred to in section 8 (1)
(b).
[61] Dictionary
Omit "Land and Water Conservation" from the definition of Department.
Insert instead "Natural Resources".
[62] Dictionary
Insert after paragraph (d) of the definition of general dealing:
(da) the grant of an access licence on an application under
section 74,
[63] Dictionary
Insert after paragraph (c) of the definition of Ministerial action:
(ca) the grant of an access licence under section 8C or the
imposition, revocation or amendment of an adaptive
environmental water condition under section 8B, 8C or
8D,
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Water Management Amendment Bill 2005
Amendment of Water Management Act 2000 relating to irrigation Schedule 2
corporations
Schedule 2 Amendment of Water Management Act
2000 relating to irrigation corporations
(Section 3)
[1] Section 71ZA
Insert after section 71Z:
71ZA Removal of certain restrictions on dealings relating to irrigation
corporations
(1) This section applies only in respect of regulated river (high
security) access licences and regulated river (general security)
access licences held by an irrigation corporation, but does not
apply to any subcategory of those categories of access licence.
(2) The Minister may order an irrigation corporation to pay a civil
penalty under this section if:
(a) any provision of its constitution, of any contract entered
into by it with a member of the corporation or of any other
document associated with the operation of the corporation
(such as transfer rules of the corporation) prevents, or
(b) the irrigation corporation conducts its operations so as to
prevent,
arrangements being made for the reduction in the share
component of an access licence held by it for the purpose of
permanently transferring a member's entitlement to water under
the access licence to another access licence that is not held by the
irrigation corporation.
(3) Subsection (2) does not apply to a provision referred to in
subsection (2) (a), or to the conduct of the operations of an
irrigation corporation in a manner, that prevents a transfer that
would result in the share component of an access licence held by
the irrigation corporation being reduced, in any period
commencing on 1 July in any year and ending on 30 June
(inclusive) in the following year, by an amount of more than 4%
of the share component that applied to the access licence at the
beginning of that period.
(4) If an irrigation corporation holds more than one access licence to
which this section applies, the percentage referred to in
subsection (3) is to be calculated on the basis of the combined
share component of all of those access licences held by the
corporation.
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Water Management Amendment Bill 2005
Schedule 2 Amendment of Water Management Act 2000 relating to irrigation
corporations
(5) The regulations may alter the percentage of share component
referred to in subsection (3).
(6) A regulation that increases the percentage of the share component
applying under subsection (3) is to provide for the increase to
take effect no earlier than 6 months after the regulation
commences.
(7) The Minister may order a civil penalty to be paid under this
section of an amount not exceeding $500,000 and a further civil
penalty of an amount not exceeding $20,000 to be paid for each
day that the circumstances giving rise to the initial civil penalty
continue to exist.
(8) For the purpose of enabling compliance with subsection (2), an
irrigation corporation may amend any water supply contract to
which it is a party.
(9) Any amendment of a water supply contract under subsection (8)
is to be notified by the irrigation corporation to the member of the
corporation who is a party to the contract and is taken to have
been accepted by the member when notification is served on the
member.
(10) No claim, action or demand may be made, asserted or taken
against an irrigation corporation for anything done by the
corporation in accordance with this section.
(11) In this section, water supply contract means a contract entered
into by an irrigation corporation with a member of the
corporation relating to the supply of water to the member by the
corporation.
[2] Section 368 Appeals to Land and Environment Court
Insert after section 368 (1) (l):
(la) a decision ordering an irrigation corporation to pay a civil
penalty to the Minister,
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Water Management Amendment Bill 2005
Amendment of Protection of the Environment Operations (General) Schedule 3
Regulation 1998
Schedule 3 Amendment of Protection of the
Environment Operations (General)
Regulation 1998
(Section 4)
Clause 56A
Insert after clause 56:
56A Exemption from water pollution offence in relation to cold water
releases
Section 120 of the Act does not apply to the release of water that
is more than 2 degrees Celsius colder than the water into which it
is discharged if the water is released from a water supply work
pursuant to an approval under the Water Management Act 2000
that contains one or more conditions relating to the work of a type
specified in section 100 (3) of that Act.
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