Part 1 Preliminary

1 Short title

This Act may be cited as the Water Management Act 1999 .

2 Commencement

The provisions of this Act commence on a day or days to be proclaimed.

3 Interpretation

(1)  In this Act, unless the contrary intention appears –

Advisory Committee means the Advisory Committee established under section 114 ;

[Section 3 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Agency has the same meaning as in the State Service Act 2000 ;

[Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016] ANCOLD consequence category means a consequence category referred to in the Guidelines on the Consequence Categories for Dams, published in October 2012 by the Australian National Committee on Large Dams Incorporated, as amended or substituted from time to time;

[Section 3 Subsection (1) amended by No. 18 of 2021, s. 347, Applied:05 Nov 2021]

[Section 3 Subsection (1) amended by No. 18 of 2021, s. 347, Applied:05 Nov 2021] Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal;

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] [Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] [Section 3 Subsection (1) amended by No. 56 of 2008, s. 5, Applied:11 Feb 2009]

approved form means a form approved under section 300 ;

[Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016]

authorisation means –

(a) a licence, permit or transfer; or

(b) an approval for a water entity to administer a water management plan under Division 4 of Part 4 or a water district under Part 9 ; or

(c) any other authority granted under this Act permitting a person to undertake an activity;

authorised officer means an authorised officer appointed under section 237 ;

best practice environmental management has the same meaning as in the EMPC Act;

[Section 3 Subsection (1) amended by No. 76 of 2007, Sched. 1, Applied:01 Jul 2008] [Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016]

channel includes –

(a) a drain, gutter or pipe; and

(b) a part of a drain, gutter or pipe;

commencement day means –

(a) in section 303 and Schedule 4 , the day on which section 307 commences; or

(b) in Schedule 5 , the day on which section 308 commences;

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] [Section 3 Subsection (1) amended by No. 28 of 2009, s. 62, Applied:01 Sep 2009]

[Section 3 Subsection (1) amended by No. 28 of 2009, s. 62, Applied:01 Sep 2009] Commission means the Tasmanian Planning Commission;

contravene includes fail to comply with;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] [Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] dam means a permanent or temporary barrier or structure that stores, holds back or impedes the flow of water and includes –

(a) any spillway or similar works for passing water around or over the barrier or structure; and

(b) a pipe or other works for passing water through or over the barrier or structure; and

(c) water stored or held back by the barrier or structure and the area covered by that water; and

(d) [Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] an artificial depression or hole excavated in a watercourse that holds water or impedes the flow of water; and

(e) [Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] an artificial levee or bank that holds back or diverts water in a watercourse –

but does not include –

(f) associated works and canals used in, or in relation to, the generation of electricity; or

(g) a tank or reservoir unless –

(i) the storage of water involves flooding natural ground; or

(ii) the tank or reservoir is on a watercourse; or

(h) roads, buildings and other ancillary works that are not part of the dam;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003]

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] [Section 3 Subsection (1) amended by No. 30 of 2005, s. 4, Applied:11 Jul 2005] [Section 3 Subsection (1) amended by No. 6 of 2007, s. 7, Applied:16 Jul 2007] [Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016] [Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016] dam works means any works for the construction, erection, enlargement, modification, repair or removal of a dam, or for the conversion of land to a dam or any work on any dam which may significantly increase the dam's safety risk;

[Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016]

[Section 3 Subsection (1) amended by No. 76 of 2007, Sched. 1, Applied:01 Jul 2008] Director means the Director, Environment Protection Authority;

[Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016] Director of Inland Fisheries means the Director of Inland Fisheries appointed under section 11 of the Inland Fisheries Act 1995 ;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] dispersed surface water means –

(a) water flowing over land otherwise than in a watercourse –

(i) after having fallen as rain or hail or having precipitated in any other manner; or

(ii) after rising to the surface naturally from underground; or

(b) water as mentioned in paragraph (a) that has been collected in a dam or reservoir;

[Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016] Division 3 permit has the same meaning as in Part 8 ;

[Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016] Division 4 permit has the same meaning as in Part 8 ;

domestic purpose means personal use for drinking, cooking and washing but does not include taking water to be used in carrying on a business unless it is for the personal use of persons employed in the business;

drilling, in the case of a well, means drilling the well or excavating the well in any other manner and includes deepening or widening an existing well;

[Section 3 Subsection (1) amended by No. 56 of 2008, s. 5, Applied:11 Feb 2009]

electricity entity means a body corporate which uses, or intends to use, water for the generation of electricity as mentioned in section 115 ;

EMPC Act means the Environmental Management and Pollution Control Act 1994 ;

environmental agreement has the same meaning as in the EMPC Act;

environmental harm has the same meaning as in the EMPC Act;

environmental improvement programme has the same meaning as in the EMPC Act;

environmental nuisance has the same meaning as in the EMPC Act;

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] environmental objectives means the objectives of a water management plan proposed to further the provisions of section 6(1)(c) ;

equipment means a pump or meter or valves, pipes or any other device used to take water and includes a part of any such equipment;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] functions includes powers, authorities and duties;

[Section 3 Subsection (1) amended by No. 56 of 2008, s. 5, Applied:11 Feb 2009]

groundwater means –

(a) water occurring naturally below ground level; or

(b) water pumped, diverted or released into a well for storage underground;

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004]

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] groundwater area means an area of land that is appointed as a groundwater area by an order made by the Minister under section 124A ;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] highway means –

(a) a State highway or subsidiary road within the meaning of the Roads and Jetties Act 1935 ; or

(b) a local highway within the meaning of the Local Government (Highways) Act 1982 ;

hydro-electric district means a hydro-electric district created under Part 9 ;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] incident, in the case of a dam, means any incident or event relating to the structural integrity or safety of the dam which causes, or has the potential to cause –

(a) death or injury to a person; or

(b) damage to, or loss of, property or services; or

(c) material environmental harm or serious environmental harm;

infrastructure means –

(a) artificial lakes; or

(b) dams, weirs or reservoirs; or

(c) embankments, walls, channels or other works; or

(d) buildings or structures; or

(e) pipes, machinery or other equipment;

[Section 3 Subsection (1) amended by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] infringement notice means an infringement notice served under Division 1 of Part 13 ;

intensive farming means a method of keeping animals in the course of carrying on the business of primary production in which the animals are confined to a small space or area and are usually fed by hand or by mechanical means;

interested person has a meaning given by section 270 or 274 ;

lake means a natural lake, pond, lagoon, wetland or spring (whether modified or not) and includes –

(a) part of a lake; and

(b) a body of water declared by the regulations to be a lake;

land includes –

(a) buildings and other structures permanently fixed to land; and

(b) land covered with water; and

(c) water covering land; and

(d) any estate, interest, easement, privilege or right in or over land;

[Section 3 Subsection (1) amended by No. 36 of 2023, s. 15, Applied:11 Dec 2023] licence means a licence granted and in force under Part 6 , except in Part 10A ;

[Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016] [Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016] local newspaper means a newspaper circulating in the area in which a relevant water resource, dam or well is situated or in which a proposed or existing dam is to be situated;

material environmental harm has the same meaning as in section 5(2) of the EMPC Act;

[Section 3 Subsection (1) amended by No. 56 of 2008, s. 5, Applied:11 Feb 2009]

[Section 3 Subsection (1) amended by No. 56 of 2008, s. 5, Applied:11 Feb 2009] meter means an instrument that measures and records a flow or level of water and includes any ancillary device attached to or incorporated in the instrument;

[Section 3 Subsection (1) amended by No. 6 of 2007, s. 7, Applied:16 Jul 2007] natural values means the variety of all life-forms native to land including plants, animals and micro-organisms, the genes that they contain, the ecosystems of which they are a part (including landforms, soils, water) and the processes that sustain them;

[Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016] nest means –

(a) a structure or place where a bird lays eggs and shelters its young; and

(b) an animal's breeding place, den or burrow;

occupier of land means a person who has, or is entitled to, possession or control of the land and includes –

(a) a person who occupies the land or part of the land jointly or in common with any other person; and

(b) a person who occupies part of the land;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] [Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016]

[Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016] owner has the meaning given by section 3A ;

person includes an Agency, a statutory authority and any emanation of the Crown in right of the Commonwealth;

[Section 3 Subsection (1) amended by No. 57 of 2002, s. 13, Applied:05 Dec 2002] [Section 3 Subsection (1) amended by No. 3 of 2019, s. 26, Applied:03 Feb 2021] [Section 3 Subsection (1) amended by No. 57 of 2002, s. 13, Applied:05 Dec 2002] [Section 3 Subsection (1) amended by No. 3 of 2019, s. 26, Applied:03 Feb 2021]

[Section 3 Subsection (1) amended by No. 3 of 2019, s. 26, Applied:03 Feb 2021] pipeline licensee means the holder of a licence under the Gas Industry Act 2019 in relation to a gas infrastructure planning corridor;

[Section 3 Subsection (1) amended by No. 3 of 2019, s. 26, Applied:03 Feb 2021] pipeline planning corridor means a gas infrastructure planning corridor declared under the Gas Industry Act 2019 ;

planning scheme means a planning scheme in force under section 29 of the Land Use Planning and Approvals Act 1993 ;

prior right means a right to take water under this Act which was in force immediately before the publication of a notice under section 18 ;

record means –

(a) a documentary record; or

(b) a record made by an electronic, electromagnetic, photographic or optical process; or

(c) any other kind of record;

[Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016]

[Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016] register of dams means the register of dams kept under section 12(1A) ;

[Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016] register of licences, water allocations and permits means the register of licences, water allocations and permits kept under section 12(1) ;

regulations means regulations made and in force under this Act;

relevant water management plan means a water management plan for a water resource which may be affected by the exercise of any powers under this Act;

repealed Act means the Water Act 1957 ;

responsible water entity means a water entity responsible for the administration of a water management plan under section 38(1) or the administration of a water district under Part 9 ;

riparian tenement means land that adjoins a watercourse or through which a watercourse runs, or that adjoins a lake or on which a lake is situated;

Secretary means the Secretary of the Department;

serious environmental harm has the same meaning as in section 5(2) of the EMPC Act;

small claim means a small claim within the meaning of the Magistrates Court (Small Claims Division) Act 1989 ;

[Section 3 Subsection (1) amended by No. 56 of 2008, s. 5, Applied:11 Feb 2009] special Act – see section 189(b) and section 190(b) ;

special licence means a licence granted and in force under Division 6 of Part 6 ;

State policy means a Tasmanian Sustainable Development Policy made under section 11 of the State Policies and Projects Act 1993 ;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] statutory authority means a person, body or authority, whether incorporated or unincorporated, constituted by or under an Act, or appointed by the Governor under the authority of an Act, to administer or control a department, office, business or undertaking on behalf of the State;

[Section 3 Subsection (1) amended by No. 56 of 2008, s. 5, Applied:11 Feb 2009] statutory rule means a statutory rule for the purposes of the Rules Publication Act 1953 ;

stock watering means the provision of water for drinking by livestock and for normal husbandry practices associated with the keeping of livestock, but does not include the provision of water for livestock or animals subject to intensive farming;

surety means the actual or relative probability with which a water allocation is expected to be available in any year having regard to the natural variability of the supply of water;

[Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016] take, in relation to threatened species, has the same meaning as in the Threatened Species Protection Act 1995 ;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003]

taking, in the case of water from a water resource, includes –

(a) taking water by pumping or syphoning the water; and

(b) stopping, impeding or diverting the flow of water over land (whether in a watercourse or not) for the purpose of collecting or storing the water; and

(c) diverting the flow of water in a watercourse from the watercourse; and

(d) releasing water from a lake; and

(e) permitting water to flow under natural pressure from a well, unless the water is flowing from a natural opening in the ground that gives access to groundwater; and

(f) permitting stock to drink from a watercourse, a natural or artificial lake, a dam or reservoir;

[Section 3 Subsection (1) amended by No. 33 of 2015, s. 4, Applied:01 Jan 2016] threatened species has the same meaning as in the Threatened Species Protection Act 1995 ;

[Section 3 Subsection (1) amended by No. 56 of 2008, s. 5, Applied:11 Feb 2009] tidal area means any part of a watercourse that is below the mean high-water mark;

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] tributary means any watercourse that contributes its flow to a larger watercourse;

trust means a board of trustees holding office under Division 1 of Part 10 ;

trustee means one of the persons constituting a trust under Division 1 of Part 10 ;

waste means residue, by-product, surplus or reject material which is to be, or is required to be, disposed of in a manner of which utilisation to commercial or other advantage is not a primary purpose;

water allocation means a quantity of water that a licensee is entitled to take and use under a licence;

water district means a water supply district, irrigation district, riverworks district, hydro-electric district or drainage district created under Part 9 ;

water entity means –

(a) a Government Business Enterprise; or

(b) a council; or

(c) an authority under Division 4 of Part 3 of the Local Government Act 1993 or any other statutory authority; or

(d) [Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] a body corporate under the Corporations Act; or

(da) [Section 3 Subsection (1) amended by No. 29 of 2018, s. 50, Applied:10 Dec 2018] a body or corporation registered as a co-operative under the Co-operatives National Law (Tasmania); or

(e) [Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] a trust established under Part 10 ; or

(f) an electricity entity; or

(g) [Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] [Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] [Section 3 Subsection (1) amended by No. 52 of 2008, Sched. 1, Applied:01 Jul 2009] a body registered under the Cooperatives Act 1999 ; or

(h) [Section 3 Subsection (1) amended by No. 52 of 2008, Sched. 1, Applied:01 Jul 2009] [Section 3 Subsection (1) amended by No. 51 of 2012, Sched. 2, Applied:01 Jul 2013] the Corporation within the meaning of the Water and Sewerage Corporation Act 2012  –

and, if the Minister is administering a water management plan under a notice referred to in section 47(3) , includes the Minister;

[Section 3 Subsection (1) amended by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008]

water management plan means a water management plan in force under Part 4 and includes an interim water management plan under section 31 ;

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] water regime means –

(a) in respect of a watercourse, the pattern of flow in the watercourse, which is to be described in terms of the major features of its volumetric and temporal variation and which, in the case of a lake, is to include the fluctuation in the water level of the lake; or

(b) in respect of groundwater, the pattern of flow or fluctuation in the level of groundwater or pressure which is to be described in terms of the major features of its temporal variation;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] [Section 3 Subsection (1) amended by No. 56 of 2008, s. 5, Applied:11 Feb 2009]

[Section 3 Subsection (1) amended by No. 56 of 2008, s. 5, Applied:11 Feb 2009] water resource means –

(a) a watercourse, lake or any dispersed surface water or groundwater; or

(b) a tidal area that a declaration under section 5A relates to;

watercourse means a river, creek or other natural stream of water (whether modified or not) flowing in a defined channel, or between banks, notwithstanding that the flow may be intermittent or seasonal or the banks not clearly or sharply defined, and includes –

(a) a dam that collects water flowing in any such stream; and

(b) a lake through which water flows; and

(c) a channel into which the water of any such stream has been diverted; and

(d) [Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] part of any such stream; and

(da) [Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] the floodplain of any such stream –

but does not include –

(e) a channel declared by the regulations to be excluded from this definition; or

(f) a drain or drainage depression in the contours on the land which only serves to relieve upper land of excess water in times of major precipitation;

well means –

(a) [Section 3 Subsection (1) amended by No. 56 of 2008, s. 5, Applied:11 Feb 2009] an opening in the ground below the surface of the earth excavated or used for the taking of groundwater; or

(b) a natural opening in the ground that gives access to groundwater; or

(c) any other excavation as may be provided by the regulations;

[Section 3 Subsection (1) amended by No. 12 of 2004, s. 4, Applied:09 Jun 2004] well works means an excavation undertaken to give access to groundwater, any other works undertaken to repair or modify the structure of a well or any works undertaken to plug, backfill, seal or decommission a well;

[Section 3 Subsection (1) amended by No. 49 of 2002, s. 4, Applied:01 Mar 2003] working day means a day that is not –

(a) a Saturday or Sunday; or

(b) a statutory holiday within the meaning of the Statutory Holidays Act 2000 ;

works means a drain, outfall, bridge, culvert, channel, dam (including associated infrastructure), defence or other work of a water entity responsible for administering a water district or a water management plan and includes all machinery and appliances used, or intended to be used, for the purposes of any such district or plan but does not include a bridge over a natural watercourse if the bridge is on, or forms part of, a highway.

(2)  In this Act –

(a) a reference to a watercourse is taken as a reference to either –

(i) the bed and banks of the watercourse; or

(ii) the water for the time being within the bed and banks of the watercourse –

or both, depending on the context; and

(b) a reference to a lake is taken as a reference to either –

(i) the bed, banks and shores of the lake; or

(ii) the water for the time being held by the bed, banks and shores of the lake –

or both, depending on the context; and

(c) a reference to varying a licence is taken to include a reference to varying a water allocation of the licence or the conditions attached to the licence; and

(d) a reference to a water allocation is taken to include a reference to a part of the water allocation; and

(e) a reference to a condition of a licence is taken to include a reference to a water allocation of the licence.

3A Meaning of owner

[Section 3A Inserted by No. 33 of 2015, s. 5, Applied:01 Jan 2016]

(1)  In this Act, owner, in relation to land, means each of the following persons:

(a) in the case of a fee simple estate in land – the person in whom that estate is vested;

(b) in the case of land not registered under the Land Titles Act 1980 and subject to a mortgage – the equity of redemption in that mortgage;

(c) in the case of land held under a tenancy for life – the person who is the life tenant;

(d) in the case of land held under a lease –

(i) for a term of not less than 99 years – the lessee; or

(ii) if another period is prescribed by the regulations, for a term of not less than that period – the lessee;

(e) in the case of land in respect of which a person has a prescribed interest – that person;

(f) in the case of land that is unalienated from the Crown – the Crown.

(2)  In this Act, owner, in relation to –

(a) a dam that has been constructed, means each of the following persons:

(i) the person who owns the dam;

(ii) any person who owns land that may be covered by water when the dam is at maximum operating level (other than because of flood discharge) or, if there is a controlled spillway in relation to the dam, when water is at the spillway crest level; or

(b) a dam under construction, means each of the following persons:

(i) the holder of a Division 3 permit or a Division 4 permit under which the dam is being constructed;

(ii) any person who is the owner of the land on which dam works in relation to the dam are being, or are to be, undertaken.

4 Act binds Crown

(1)  This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

(2)  No criminal liability attaches to the Crown itself (as distinct from its agents, instrumentalities, officers and employees) under this Act.

5 Application of Act

(1)  This Act prevails over any other Act which confers a right to take water unless the other Act is expressed to apply notwithstanding this Act.

(2)  [Section 5 Subsection (2) amended by No. 56 of 2008, s. 6, Applied:11 Feb 2009] Except as provided by section 5A , nothing in this Act affects the taking of water from a tidal area.

(3)  Nothing in this Act is taken to imply that any water taken or used under an authorisation or as permitted by this Act is fit or sufficient for the purposes for which it is taken or used.

5A Tidal areas

[Section 5A Inserted by No. 56 of 2008, s. 7, Applied:11 Feb 2009]

(1)  The Minister may, by order, declare that the taking of water in any tidal area is subject to this Act.

(2)  The order is a statutory rule.

Part 2 Objectives of Act

6 Objectives of Act

(1)  The objectives of this Act are to further the objectives of the resource management and planning system of Tasmania as specified in Schedule 1 and in particular to provide for the use and management of the freshwater resources of Tasmania having regard to the need to –

(a) promote sustainable use and facilitate economic development of water resources; and

(b) recognise and foster the significant social and economic benefits resulting from the sustainable use and development of water resources for the generation of hydro-electricity and for the supply of water for human consumption and commercial activities dependent on water; and

(c) [Section 6 Subsection (1) amended by No. 6 of 2007, s. 8, Applied:16 Jul 2007] maintain ecological processes and genetic diversity for aquatic and riparian ecosystems; and

(d) provide for the fair, orderly and efficient allocation of water resources to meet the community's needs; and

(e) increase the community's understanding of aquatic ecosystems and the need to use and manage water in a sustainable and cost-efficient manner; and

(f) encourage community involvement in water resource management.

(2)  It is the obligation of the Minister, the Secretary, a water entity and any other person on whom a function is imposed or a power is conferred under this Act to perform the function or exercise the power in such a manner as to further the objectives specified in subsection (1) and in Schedule 1 .

Part 3 Administration

7 Abolition and vesting of rights to water

(1)  All rights existing at common law immediately before the commencement of this section to the flow of, or for the taking of, naturally occurring water are abolished.

(2)  Except as provided by this Act, all rights to the taking of water from the water resources of Tasmania are vested in the Crown to be administered in accordance with this Act.

(3)  This section does not derogate from any rights conferred under Part 5 .

8 Functions and duties of the Minister

(1)  The functions and duties of the Minister under this Act are –

(a) to manage the water resources of Tasmania in accordance with the objectives of this Act; and

(b) to develop and coordinate policies relating to the sustainable use and development of those water resources; and

(c) [Section 8 Subsection (1) amended by No. 49 of 2002, s. 5, Applied:01 Mar 2003] to allocate the water available from watercourses, lakes and wells and dispersed surface water in a manner consistent with the objectives of this Act; and

(d) to compile, maintain and update information in respect of the water resources of Tasmania; and

(e) to promote public awareness of the importance of Tasmania's water resources and to encourage the conservation of those resources; and

(f) [Section 8 Subsection (1) amended by No. 33 of 2015, s. 6, Applied:01 Jan 2016] to encourage community involvement in water resource management; and

(g) [Section 8 Subsection (1) amended by No. 33 of 2015, s. 6, Applied:01 Jan 2016] any other functions and duties imposed on the Minister by this Act, including, but not limited to, functions and duties imposed under Part 8 in relation to dam works.

(2)  When making a decision under this Act that is based wholly or partly on an assessment of the quantity of water available or the period or periods during which water is available from a water resource, the Minister must take into account –

(a) [Section 8 Subsection (2) amended by No. 12 of 2004, s. 5, Applied:09 Jun 2004] the needs of the major ecosystems that depend on that water resource for water; and

(b) any effect that the decision may have on the commercial operations of major users of water from that water resource.

9 Minister may establish committees

(1)  The Minister may establish committees to provide information and advice to the Minister on matters related to the administration of this Act.

(2)  The Minister may appoint any person who has expertise, knowledge or skills relevant to the functions of a committee as a member of that committee on any terms and conditions that the Minister determines.

10 Delegation by Minister

(1)  Subject to subsection (5) , the Minister may delegate any of his or her functions or powers under this Act (except this power of delegation) to any other person.

(2)  A delegation under this section –

(a) is to be by instrument in writing; and

(b) may be absolute or conditional; and

(c) does not derogate from the power of the Minister to act in any matter; and

(d) is revocable by the Minister.

(3)  Where a function or power is delegated under subsection (1) to a water entity, the Minister may make an agreement with that water entity for the reimbursement of the costs incurred by it in performing that function or exercising that power.

(4)  Where the performance of a function or the exercise of a power is dependent on the opinion or belief of the Minister, a delegate may act on his own opinion or belief in performing that function or exercising that power.

(5)  The Minister may not delegate –

(a) the function of making recommendations to the Governor in respect of the making of proclamations; or

(b) [Section 10 Subsection (5) amended by No. 49 of 2002, s. 6, Applied:01 Mar 2003] [Section 10 Subsection (5) amended by No. 33 of 2015, s. 7, Applied:01 Jan 2016] any power conferred under section 11 , 28 , 34(4)(c) or 47 , Division 6 of Part 6 , section 165L(5) , 176(2) , 178(1) , 183(1) , 186(1) , 188(1) , 192 , 206 , 225 or 259(6) ; or

(c) [Section 10 Subsection (5) amended by No. 49 of 2002, s. 6, Applied:01 Mar 2003] [Section 10 Subsection (5) amended by No. 49 of 2002, s. 6, Applied:01 Mar 2003] [Section 10 Subsection (5) amended by No. 56 of 2008, s. 8, Applied:11 Feb 2009] [Section 10 Subsection (5) amended by No. 56 of 2008, s. 8, Applied:11 Feb 2009] [Section 10 Subsection (5) amended by No. 33 of 2015, s. 7, Applied:01 Jan 2016] the power to authorise a person to enter on land under section 46 , 94(3) , 127(1) , 147(5) , 165J(2) , 165L(7) , 165M(1) , 165N(4) , 229(1) , 282(4) or 164ZM ; or

(d) [Section 10 Subsection (5) amended by No. 6 of 2007, s. 4, Applied:30 Apr 2007] [Section 10 Subsection (5) amended by No. 33 of 2015, s. 7, Applied:01 Jan 2016] [Section 10 Subsection (5) amended by No. 36 of 2023, s. 16, Applied:11 Dec 2023] any power under Part 10A ; or

(e) [Section 10 Subsection (5) amended by No. 6 of 2007, s. 4, Applied:30 Apr 2007] any power under Part 14A .

(6)  The Minister may not delegate the power to hold a review under Division 1 of Part 14 to a person who has made the decision which is the subject of the review.

10A Delegation by Secretary

[Section 10A Inserted by No. 33 of 2015, s. 8, Applied:01 Jan 2016] The Secretary may delegate any of his or her functions or powers under this Act, other than this power of delegation, to any person.

11 Exemption from Act

(1)  [Section 11 Subsection (1) amended by No. 56 of 2008, s. 9, Applied:11 Feb 2009] Subject to subsection (5) , the Minister may, by order published in the Gazette, exempt a person from any provision of this Act subject to any conditions that the Minister determines.

(1A)  [Section 11 Subsection (1A) inserted by No. 56 of 2008, s. 9, Applied:11 Feb 2009] The order is not a statutory rule.

(2)  The Minister may not grant an exemption if –

(a) [Section 11 Subsection (2) amended by No. 33 of 2015, s. 9, Applied:01 Jan 2016] there would be a likely material adverse effect on any licensee or the holder of a permit under this Act or prior right; or

(b) it would be inconsistent with the objectives of this Act to do so; or

(c) the effect of the exemption would, or be likely to, cause material environmental harm or serious environmental harm; or

(d) the Minister having the administration of the Public Health Act 1997 has advised that the exemption would be inconsistent with that Act or any guidelines in force under that Act.

(3)  An exemption may have effect notwithstanding a provision of a water management plan.

(4)  An exemption remains in force until –

(a) it is revoked; or

(b) the date specified in the order as the date on which the exemption ceases to be in force –

whichever first occurs, but the exemption may be renewed in accordance with this section.

(5)  The Minister may not exempt a person from any requirement not to cause material environmental harm or serious environmental harm under this Act.

12 Minister to keep certain registers

(1)  [Section 12 Subsection (1) amended by No. 33 of 2015, s. 10, Applied:01 Jan 2016] [Section 12 Subsection (1) amended by No. 33 of 2015, s. 10, Applied:01 Jan 2016] [Section 12 Subsection (1) amended by No. 56 of 2008, s. 10, Applied:11 Feb 2009] [Section 12 Subsection (1) amended by No. 56 of 2008, s. 10, Applied:11 Feb 2009] The Minister must keep a register of all licences, water allocations and permits granted or issued under any Part of this Act in such form and containing such information as the Minister thinks fit.

(1A)  [Section 12 Subsection (1A) inserted by No. 33 of 2015, s. 10, Applied:01 Jan 2016] The Minister must keep a register of dams for the purposes of this Act.

(2)  Where a licence is transferred, or a water allocation of a licence is transferred, the Minister must record in the register such particulars as he or she thinks fit relating to the transfer.

(3)  [Section 12 Subsection (3) amended by No. 56 of 2008, s. 10, Applied:11 Feb 2009] A person may inspect the register without charge, excluding any information as to demerit points allocated to the licence of any other person, during normal business hours at such places as the Minister may direct.

(4)  Where any demerit points are allocated to a licence under Division 2 of Part 13 , the register is to include a notation to that effect.

(5)  A person may, on payment of the prescribed fee, obtain a copy of, or an extract from, an entry in the register but is not entitled to any information as to demerit points allocated to the licence of any other person.

(6)  A person may, on payment of the prescribed fee, inspect any notation in the register of demerit points allocated to his or her licence or, with the authority in writing of another licensee, to the licence held by that licensee.

(7)  The Minister may –

(a) of his or her own motion; or

(b) on application by a person in respect of whom an entry has been made in the register –

amend the entry if satisfied that the entry is incorrect owing to an accidental or inadvertent error, omission or misstatement or a change of address or change of name by a licensee.

(8)  [Section 12 Subsection (8) inserted by No. 33 of 2015, s. 10, Applied:01 Jan 2016] The Minister may, of his or her own motion, amend the register of dams to add, amend or remove any particulars, in relation to a dam, relating to dam safety.

12A Application requirements

[Section 12A Amended by No. 33 of 2015, s. 11, Applied:01 Jan 2016] [Section 12A Inserted by No. 56 of 2008, s. 11, Applied:11 Feb 2009] An application to the Minister or Secretary on any matter under this Act is to be in an approved form and must –

(a) be accompanied by the prescribed fee, if any; and

(b) [Section 12A Amended by No. 33 of 2015, s. 11, Applied:01 Jan 2016] be supported by such evidence or information as the Minister or Secretary may require, either at the time of lodgment or subsequently, in order to consider the application; and

(c) comply with such additional requirements under this Act, if any, as relate specifically to the application.

Part 4 Water Management Plans

Division 1 Nature of water management plans

13 Water management plans

[Section 13 Substituted by No. 12 of 2004, s. 6, Applied:09 Jun 2004]

(1)  The Minister may determine that a water management plan is to be prepared in respect of a water resource or water resources in Tasmania.

(2)  A water management plan may, in whole or in part, rescind, replace or alter any water management plan previously approved under this Act.

14 Scope of water management plans

(1)  [Section 14 Subsection (1) amended by No. 49 of 2002, s. 7, Applied:01 Mar 2003] A water management plan may be prepared for –

(a) [Section 14 Subsection (1) amended by No. 30 of 2005, s. 5, Applied:11 Jul 2005] a watercourse, several joined watercourses or part of a watercourse, including a water supply channel declared under section 192(1) ; or

(b) a lake; or

(c) [Section 14 Subsection (1) amended by No. 12 of 2004, s. 7, Applied:09 Jun 2004] one or more groundwater resources; or

(ca) [Section 14 Subsection (1) amended by No. 56 of 2008, s. 12, Applied:11 Feb 2009] a tidal area that a declaration under section 5A relates to; or

(d) [Section 14 Subsection (1) amended by No. 56 of 2008, s. 12, Applied:11 Feb 2009] any combination of paragraphs (a) , (b) , (c) and (ca) , whether the water resources are joined naturally or artificially –

and may include dispersed surface water that normally flows into or replenishes the water resource or water resources in the plan.

(2)  [Section 14 Subsection (2) substituted by No. 12 of 2004, s. 7, Applied:09 Jun 2004] A water management plan is to include –

(a) a statement of the objectives of the plan, including the environmental objectives; and

(b) a description of the water regime that best gives effect to the environmental objectives and other relevant objectives of the plan; and

(c) an assessment of the ability of that water regime to achieve the environmental objectives and other relevant objectives of the plan; and

(d) an assessment of likely detrimental effects of the plan on the quality of water.

(3)  A water management plan may –

(a) [Section 14 Subsection (3) amended by No. 12 of 2004, s. 7, Applied:09 Jun 2004] provide for the allocation and use of water having regard to the objectives stated under subsection (2)(a) ; and

(b) provide for the licensing of all or specified classes of persons taking water from the relevant water resource, including persons who under Part 5 would otherwise have a right to take water without a licence; and

(c) provide for the transfer of, and other dealings with, water allocations, including the imposition of conditions under which those transfers or dealings may take place; and

(d) [Section 14 Subsection (3) amended by No. 33 of 2015, s. 12, Applied:01 Jan 2016] .  .  .  .  .  .  .  .  

(e) specify a date on which the plan will take effect; and

(f) provide for the administration of the plan by a responsible water entity in accordance with section 38(1) ; and

(g) include such other information or material as may be required for the administration of this Act.

15 Effect of plan on water allocation

Where a water management plan provides for the allocation and use of water under section 14(3)(a) , the plan must  –

(a) include an assessment of the capacity of the relevant resource to meet the likely demands for water by existing and future users; and

(b) take into account the needs of existing and future users and state the likely effect of the plan on those users, including any effect on businesses carried on by those users.

16 Changes to allocations

(1)  A water management plan may, in order to improve the management of a water resource, change the basis on which water is allocated from the resource notwithstanding that a consequential variation of a licence to maintain consistency with the plan results in a reduction or increase in a water allocation of the licence.

(2)  Where a change to the basis of allocating water from a water resource requires a reduction in the water allocations of licences to take water from the resource –

(a) the water management plan must provide an equitable procedure for effecting the reduction; and

(b) the procedure must give effect to the various sureties attaching to the licences or to the components of water allocations of the licences.

17 Links with other water resources

(1)  Where the taking, or the taking and use, of water from a water resource has, or is likely to have, a detrimental effect on the quantity or quality of water that is available from another water resource, the water management plan for the first-mentioned resource –

(a) must take into account the needs of persons and ecosystems using water from the other resource as well as the needs of persons and ecosystems using water from its own resource; and

(b) may, to achieve an equitable balance between competing interests, include provisions designed to prevent or reduce any such detrimental effect.

(2)  Where the taking or use of water from a water resource affects, or is likely to affect, the management of water in another water resource, the water management plan for the second-mentioned water resource may include provisions relating to the taking or use of water from the first-mentioned water resource.

Division 2 Preparation of water management plans

18 Notice of plan

As soon as practicable after the Minister determines that a water management plan is to be prepared, the Secretary must –

(a) by notice in a local newspaper, notify the public that a water management plan is to be prepared; and

(b) prepare a draft water management plan.

19.

[Section 19 Repealed by No. 12 of 2004, s. 8, Applied:09 Jun 2004]

20 Consistency with other statutory requirements and consultation

[Section 20 Substituted by No. 12 of 2004, s. 9, Applied:09 Jun 2004]

(1)  When preparing a draft water management plan, the Secretary must have regard to the consistency of the plan with –

(a) any relevant State policy; and

(b) relevant environmental agreements and environmental improvement programmes; and

(c) relevant planning schemes; and

(d) Part 6 of the Public Health Act 1997 and guidelines issued under Part 8 of that Act; and

(e) such other plans, policies or guidelines as are prescribed by the regulations; and

(f) the objectives of this Act –

and for that purpose must consult with –

(g) [Section 20 Subsection (1) amended by No. 76 of 2007, Sched. 1, Applied:01 Jul 2008] the Director, Environment Protection Authority; and

(h) the Director of Public Health; and

(i) any council within the municipal area of which a relevant water resource is situated; and

(j) such other persons as the Minister may direct.

(2)  The Secretary must also consult with –

(a) any Agency that has a direct interest in the draft water management plan; and

(b) any relevant water entity or relevant licensee –

so far as may be practicable and may also consult generally with such other persons as he or she thinks fit.

21 Effect of plan on prior rights

(1)  In preparing a draft water management plan, the Secretary must ensure that any user of water with a prior right to take water from a water resource to which the plan relates continues to enjoy that right unless it is abrogated as provided by subsection (2) .

(2)  Where –

(a) [Section 21 Subsection (2) amended by No. 12 of 2004, s. 10, Applied:09 Jun 2004] the total allocations of water available to the holders of prior rights to take water from a water resource to which the plan relates prevent the achievement of the water regime that best gives effect to the environmental objectives referred to in section 14(2)(a) ; or

(b) the total allocations of water available to the holders of those rights or the conditions of use attached to those rights may not enable the relevant water resource to be managed consistently with the objectives of this Act –

the draft water management plan may provide for the abrogation of any such prior right but only to the extent necessary to ensure that requirements can be met as to –

(c) [Section 21 Subsection (2) amended by No. 12 of 2004, s. 10, Applied:09 Jun 2004] providing the water regime that best gives effect to the environmental objectives referred to in section 14(2)(a) ; and

(d) management of the resource consistently with the objectives of this Act.

(3)  Where a draft water management plan abrogates rights under this section, the Secretary must in accordance with section 24 give notice of the plan to persons holding those rights.

22 Compensation for abrogation of prior right

(1)  The holder of a prior right that is abrogated under section 21 is entitled to compensation for any liability incurred or loss sustained unless –

(a) [Section 22 Subsection (1) amended by No. 12 of 2004, s. 11, Applied:09 Jun 2004] the abrogation is necessary to ensure that the total quantity of water permitted to be taken from the relevant water resource does not prevent the achievement of the water regime that best gives effect to the environmental objectives referred to in section 14(2)(a) ; or

(b) the holder consents to the abrogation or reduction.

(2)  [Section 22 Subsection (2) amended by No. 9 of 2011, Sched. 1, Applied:01 Oct 2012] In default of an agreement between the Minister and the holder of the prior right, the amount of compensation is to be determined in accordance with the Commercial Arbitration Act 2011 .

(3)  [Section 22 Subsection (3) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] For the purposes of this section, any compensation is to be paid out of the Public Account without further or other appropriation than this section.

(4)  In determining the amount of compensation under subsection (1) , any benefit to the holder of the prior right arising from the abrogation is to be taken into account.

23 Requirement to report particulars of wells

A notice under section 18 may require that the owner or occupier of land on which a well is situated in a specified area must, within such time as is specified in the notice –

(a) notify the Secretary, in the approved form, of the existence of the well; and

(b) describe the location of the well on that land and provide such other information as may be specified in the notice.

Penalty:  Fine not exceeding 10 penalty units.

24 Consultation on draft plan

(1)  When the draft water management plan is completed, the Secretary must serve written notice of it stating the particulars required by section 25 on –

(a) [Section 24 Subsection (1) amended by No. 12 of 2004, s. 12, Applied:09 Jun 2004] the persons and bodies referred to in section 20(1) ; and

(b) [Section 24 Subsection (1) amended by No. 12 of 2004, s. 12, Applied:09 Jun 2004] .  .  .  .  .  .  .  .  

(c) any licensees who may take water from a water resource to which the draft plan relates; and

(d) any holders of prior rights abrogated under section 21 ; and

(e) any licensee who may take water from a water resource that may be affected under section 17 by the draft plan; and

(f) such other persons as the Secretary considers appropriate.

(2)  The notice must contain the same particulars as a notice under section 25(1) .

25 Public exhibition of draft plan

(1)  As soon as possible after a draft water management plan has been prepared, the Secretary must, by notice in the Gazette and in a local newspaper, state –

(a) that a draft plan has been prepared; and

(b) the water resource or water resources to which the draft plan relates; and

(c) [Section 25 Subsection (1) amended by No. 56 of 2008, s. 13, Applied:11 Feb 2009] that a person may submit written representations on the draft plan; and

(d) the period during which representations may be made; and

(e) the address to which representations may be sent; and

(f) the place at which a copy of the draft plan may be obtained; and

(g) the cost, if any, of obtaining a copy of the draft plan; and

(h) the place at which the draft plan is exhibited; and

(i) the period during which the draft plan is to be exhibited; and

(j) the time and place at which a public meeting will be held to discuss the draft plan.

(2)  The period during which representations may be made and the period during which the draft water management plan is to be exhibited are to be each at least 60 days after the date on which the notice is first published.

(3)  Unless the Minister determines otherwise, the public meeting referred to in subsection (1)(j) must be held within 30 days after the date on which the notice is first published.

26 Consideration of representations

[Section 26 Amended by No. 56 of 2008, s. 14, Applied:11 Feb 2009] [Section 26 Substituted by No. 12 of 2004, s. 13, Applied:09 Jun 2004] After considering the written representations on a draft water management plan, the Secretary is to forward to the Commission –

(a) a copy of those representations; and

(b) a report containing –

(i) a summary of the representations; and

(ii) the Secretary's opinion on the merits of the representations, including a statement as to whether he or she believes that the representations are of sufficient merit to warrant modification of the draft water management plan; and

(iii) a summary of any proposed modification to the draft water management plan; and

(iv) any additional information that the Secretary considers relevant.

27 Review by Commission

[Section 27 Substituted by No. 12 of 2004, s. 13, Applied:09 Jun 2004]

(1)  [Section 27 Subsection (1) amended by No. 56 of 2008, s. 15, Applied:11 Feb 2009] The Commission, on the direction of the Minister, is to review the representations and the report of the Secretary forwarded under section 26 on the draft water management plan.

(2)  Within 21 days after receipt of the copies of the representations and the report of the Secretary, or within any further period that the Minister allows, the Commission is to decide whether or not to hold a hearing to assist in its review of the representations and the report.

(3)  If the Commission decides to hold a hearing, the Commission is to notify the Minister of that decision.

(4)  If the Commission decides not to hold a hearing, the Commission, within 14 days after making that decision, is to give written notice of that decision to –

(a) the Minister; and

(b) the Secretary; and

(c) any person who has submitted a representation under section 25(1)(c) .

(5)  [Section 27 Subsection (5) amended by No. 28 of 2009, s. 63, Applied:01 Sep 2009] A hearing is to be conducted in accordance with Part 3 of the Tasmanian Planning Commission Act 1997 .

(6)  The Commission, as soon as practicable after receipt of the copies of the representations and the report of the Secretary forwarded under section 26 , is to notify by public notification –

(a) the places at which copies of the representations and report are to be exhibited; and

(b) the period during which they are to be exhibited; and

(c) any other information that the Commission considers relevant.

(7)  At least one of the places referred to in subsection (6)(a) is to be near the area where the relevant water resource is located.

27A Report of Commission

[Section 27A Inserted by No. 12 of 2004, s. 13, Applied:09 Jun 2004]

(1)  The Commission, within a period determined by the Minister, is to provide the Minister with –

(a) a report of its review under section 27 ; and

(b) copies of the representations and the report of the Secretary forwarded under section 26 .

(2)  As soon as practicable after the period referred to in subsection (1) , the Commission is to publish in the Gazette notice of –

(a) the making of its report; and

(b) the place where copies of its report are available for inspection by the public.

27B Consideration of Commission's report

[Section 27B Inserted by No. 12 of 2004, s. 13, Applied:09 Jun 2004]

(1)  In considering the matters referred to in section 27A(1)(a) and (b) , the Minister is to have regard to the objectives of this Act.

(2)  The Minister may request the Secretary to submit for final approval –

(a) an unaltered draft water management plan; or

(b) a draft water management plan containing any alterations that the Minister thinks appropriate having regard to the matters specified in section 27A(1)(a) and (b) .

Division 3 Adoption and amendment of water management plans

28 Adoption of plan by Minister

[Section 28 Substituted by No. 12 of 2004, s. 14, Applied:09 Jun 2004] The Minister adopts a draft water management plan or amended draft water management plan by signing a certificate endorsed on the plan that he or she has adopted that plan and, on adoption, the draft water management plan or amended draft water management plan becomes a water management plan.

29 When do water management plans take effect?

[Section 29 Substituted by No. 56 of 2008, s. 16, Applied:11 Feb 2009] A water management plan or amended water management plan takes effect on the publication of a notice in the Gazette that the Minister has adopted the plan or amended plan.

30.

[Section 30 Subsection (1) amended by No. 12 of 2004, s. 15, Applied:09 Jun 2004] [Section 30 Subsection (2) amended by No. 12 of 2004, s. 15, Applied:09 Jun 2004] [Section 30 Repealed by No. 56 of 2008, s. 17, Applied:11 Feb 2009]

31 Interim water management plan

(1)  The Minister, by notice published in the Gazette, may declare that a draft water management plan referred to in a notice under section 25(1) is to have effect as an interim water management plan.

(1A)  [Section 31 Subsection (1A) inserted by No. 56 of 2008, s. 18, Applied:11 Feb 2009] The notice is not a statutory rule.

(2)  A notice under subsection (1) is to state the date on which the interim plan is to take effect.

(3)  An interim plan has the same effect as a plan adopted under section 28 .

(4)  An interim plan ceases to have effect on –

(a) a date specified in a notice under subsection (1) for that purpose or, if no such date is specified, 12 months after the date on which it took effect; or

(b) the date on which a water management plan in respect of the relevant water resource takes effect –

whichever first occurs.

32.

[Section 32 Repealed by No. 12 of 2004, s. 16, Applied:09 Jun 2004]

33 Availability of water management plans

The Secretary must make a water management plan prepared under this Division available for inspection and purchase.

34 Review and amendment of water management plans

(1)  [Section 34 Subsection (1) amended by No. 12 of 2004, s. 17, Applied:09 Jun 2004] After adoption by the Minister of a water management plan, the Secretary must review the plan, in accordance with the requirements specified in the plan, if any, or a direction under subsection (1A) or where it is necessary to do so to ensure the consistency of the plan with any relevant State policy.

(1A)  [Section 34 Subsection (1A) inserted by No. 12 of 2004, s. 17, Applied:09 Jun 2004] The Minister may direct the Secretary to review a water management plan if satisfied that it is necessary or desirable to do so owing to environmental, economic or other reasons relating to the water resource to which the water management plan relates.

(2)  In reviewing the plan, the Secretary –

(a) [Section 34 Subsection (2) amended by No. 12 of 2004, s. 17, Applied:09 Jun 2004] must propose amendments (if any) that are required for the consistency of the plan with any relevant State policy; and

(b) may propose such other amendments to the plan that the Secretary considers to be necessary or desirable to give effect to the objectives of this Act.

(3)  Subject to subsections (4) and (5) , the procedures provided by Division 2 for the preparation and adoption of a water management plan are to be followed when the plan is amended.

(4)  Where the only amendments to the plan are those referred to in subsection (2)(a) , it is not necessary to follow the procedures referred to in subsection (3) if –

(a) [Section 34 Subsection (4) amended by No. 56 of 2008, s. 19, Applied:11 Feb 2009] the Secretary publishes a copy of the proposed amendments in a local newspaper together with a notice inviting members of the public to provide written representations on the proposed amendments within one month after publication of the notice; and

(b) the Secretary considers all written representations received in accordance with the notice and makes a recommendation to the Minister on the proposed amendments; and

(c) the Minister has regard to that recommendation before adopting the amendments.

(5)  The Minister may amend a water management plan in order to –

(a) correct an error in the plan; or

(b) [Section 34 Subsection (5) amended by No. 12 of 2004, s. 17, Applied:09 Jun 2004] make a change of form, not involving a change of substance, in the plan; or

(c) [Section 34 Subsection (5) amended by No. 12 of 2004, s. 17, Applied:09 Jun 2004] [Section 34 Subsection (5) amended by No. 3 of 2005, s. 9, Applied:12 Apr 2005] give effect to amendments to the plan for the purposes of the consistency of the plan with a State policy or an order under section 26(6) or (8) , 26A or 26B of the State Policies and Projects Act 1993  –

without following the procedures for amendment required by this Part.

35 Notice of water management plan

[Section 35 Substituted by No. 56 of 2008, s. 20, Applied:11 Feb 2009]

(1)  Within 14 days after a water management plan or amended water management plan takes effect, the Minister is to give written notice of that fact to –

(a) the council of each municipal area with a relevant water resource; and

(b) the persons, if any, who made representations on the plan or the relevant amendments.

(2)  The notice is to include details of any alteration made under section 27B(2)(b) .

Division 4 Implementation of water management plans

36 Implementation of plans

(1)  A water management plan has no effect unless it has been adopted by the Minister.

(2)  On the adoption of a water management plan by the Minister, the Minister must act consistently with the plan in undertaking duties under Parts 6 and 7 .

(3)  [Section 36 Subsection (3) substituted by No. 56 of 2008, s. 21, Applied:11 Feb 2009] An Agency or water entity must act consistently with a water management plan in performing, under this or any other Act, functions that affect or may affect water resources to which the plan relates.

37 Application by water entity or landowners

(1)  [Section 37 Subsection (1) amended by No. 12 of 2004, s. 18, Applied:09 Jun 2004] Where a water management plan has been adopted under section 28 or an interim water management plan is in force, a water entity or a group of landowners may apply to the Minister for an order that the water entity or a proposed water entity is to be responsible for the administration of the whole or a part of the plan.

(2)  [Section 37 Subsection (2) amended by No. 12 of 2004, s. 18, Applied:09 Jun 2004] [Section 37 Subsection (2) substituted by No. 56 of 2008, s. 22, Applied:11 Feb 2009] The application –

(a) must be in accordance with section 12A ; and

(b) is to be made jointly by persons who hold the majority of licences granted to take water from the water resource or water resources to which the plan relates; and

(c) must recite an agreement by those persons to create a water entity; and

(d) must include particulars of –

(i) the water entity or proposed water entity; and

(ii) the functions for which the water entity would be responsible; and

(iii) the proposed arrangements for funding the water entity’s administration.

(3)  [Section 37 Subsection (3) omitted by No. 56 of 2008, s. 22, Applied:11 Feb 2009] .  .  .  .  .  .  .  .  

(4)  [Section 37 Subsection (4) amended by No. 56 of 2008, s. 22, Applied:11 Feb 2009] The Minister must give notice of the application –

(a) in the Gazette and at least once in a local newspaper; and

(b) to all licensees who may take water from the water resource or water resources to which the relevant water management plan relates.

(5)  The notice is to –

(a) include full details of the application; and

(b) invite written representations from any persons who may be affected by the application; and

(c) state a period of at least 28 days from the publication of the notice in the Gazette, during which the representations may be made and the address to which they are to be sent.

38 Approval of application

(1)  Where, on an application under section 37 , the Minister is satisfied that approval of the application will assist in giving effect to the water management plan or in furthering the objectives of this Act, the Minister may, by order published in the Gazette, declare that the water entity or the proposed water entity is to be responsible for the administration of the whole or a part of the relevant water management plan.

(1A)  [Section 38 Subsection (1A) inserted by No. 56 of 2008, s. 23, Applied:11 Feb 2009] The order is not a statutory rule.

(2)  [Section 38 Subsection (2) amended by No. 12 of 2004, s. 19, Applied:09 Jun 2004] The declaration may be subject to conditions consistent with the plan or may be without conditions and, where the application is made by landowners, the declaration is to be conditional on the creation of the proposed water entity.

(3)  Approval of an application under section 37(1) that relates to a water resource in a hydro-electric district may be given only with the agreement of the relevant electricity entity and that agreement –

(a) may not be unreasonably withheld; and

(b) may be subject to reasonable conditions imposed by the electricity entity.

(4)  If the agreement is subject to any such conditions, the Minister must include those conditions in any declaration that he or she makes under this section.

39 Withdrawal of representation

(1)  [Section 39 Subsection (1) substituted by No. 56 of 2008, s. 24, Applied:11 Feb 2009] A representation made under section 24 , 25 or 34 may be withdrawn, by notice in writing to the Secretary by the person who made it, at any time before the Secretary –

(a) forwards a copy of the representation to the Commission under section 26 ; or

(b) if applicable, makes a recommendation to the Minister under section 34(4)(b) .

(2)  A representation made under section 37 may be withdrawn by notice in writing to the Secretary by the person who made it at any time before the Minister makes a declaration under section 38(1) .

(3)  A person who withdraws a representation under this section is taken, for the purposes of this Act, as having not made the representation.

40 Notice of declaration

Within 14 days after making a declaration under section 38 , the Minister must give written notice of the declaration and of any rights of review or appeal under Part 14 to –

(a) the applicant; and

(b) the council or councils in the municipal area or areas of which a relevant water resource is situated; and

(c) if representations have been made in relation to the draft plan, any person who made them; and

(d) any relevant electricity entity referred to in section 38(3) .

41 Notice of refusal of application

Within 14 days after refusing an application under section 37 , the Minister must give written notice of the refusal and of any rights of review or appeal under Part 14 to the applicant.

42 Notice not required in certain circumstances

Where –

(a) a water management plan includes arrangements for a water entity to be responsible for the administration of the whole or a part of the plan; and

(b) the arrangements proposed in an application under section 37(1) are consistent with the plan –

a notice under section 37(4) is not required.

43 Approval of application by Minister

Before making a decision on an application under section 37(1) , the Minister –

(a) must consider any written representations made under section 37(5) ; and

(b) may consult with any persons on the application.

44 Powers of water entities

(1)  For the purpose of the administration of a water management plan by a responsible water entity –

(a) the entity may exercise any powers delegated under section 10 in accordance with any conditions imposed under section 38(2) ; and

(b) the entity may, with the approval of the Minister, impose fees on the licensees affected by the plan so as to recover the cost of its administration of the plan.

(2)  The fees may include separate components for the various activities arising from the administration of the plan and the water entity may differentiate between licensees in charging for the different components.

45 Annual reports to Minister

(1)  During August in each year and at any other time when so required by the Minister, a responsible water entity must provide the Minister with a written report on its administration of a water management plan during the preceding period of 12 months.

(2)  The report is to include –

(a) a full financial statement of all matters relating to the water entity's administration; and

(b) details of all activities undertaken in discharging its responsibilities; and

(c) such other information as the Minister may require for the purpose of ensuring the due administration of the water management plan.

(3)  The Minister may require that a prescribed fee is to be paid by a responsible water entity on providing the report.

46 Powers of Minister

For the purpose of ensuring the due administration of a water management plan, the Minister may –

(a) authorise the undertaking of surveys; and

(b) authorise the taking of measurements and samples of water and any other material which may affect the quality of water; and

(c) authorise the entry on land by persons approved by the Minister for any such purpose; and

(d) require the responsible water entity to provide the Minister with information relating to any activity arising from, or for the purpose of, the plan.

47 Revocation of approval

(1)  In this section,

transfer day means the day on which a notice under subsection (2) takes effect.

(2)  Where a responsible water entity –

(a) fails to comply with a requirement to provide the Minister with the information relating to any activity arising from, or for the purpose of, a water management plan; or

(b) contravenes a condition to which its administration of the plan is subject; or

(c) otherwise fails to discharge its obligations under the plan –

the Minister may, by notice published in the Gazette, revoke the approval for the water entity to administer the plan.

(2A)  [Section 47 Subsection (2A) inserted by No. 56 of 2008, s. 25, Applied:11 Feb 2009] The notice is not a statutory rule.

(3)  The notice may provide for the substitution of the Minister or any suitable water entity as the authority to administer the relevant water management plan, but without otherwise affecting the plan.

(4)  On the revocation, the Minister may recover from the responsible water entity as a debt due to the Crown any expense actually and reasonably incurred by the Minister in –

(a) administering the plan as a result of the failure or contravention; or

(b) making good any damage done by the water entity.

(5)  A notice under subsection (2) may provide that –

(a) the property of the responsible water entity used in the administration of the water management plan vests in any other substituted water entity; and

(b) the functions, powers and obligations of the responsible water entity relating to that administration are transferred to the other water entity; and

(c) any legal proceedings relating to that administration pending immediately before the transfer day and which were instituted by, or against, the responsible water entity may be continued by or against the other water entity; and

(d) any legal proceedings relating to that administration by, or against, the responsible water entity to enforce a right that had accrued, and was in existence, immediately before the transfer day may be commenced by or against the other water entity; and

(e) a judgment or order of a court relating to that administration obtained before the transfer day by or against the responsible water entity may be enforced by or against the other water entity; and

(f) a document relating to that administration addressed to the responsible water entity may be served on the other water entity; and

(g) a contract relating to that administration made or entered into by the responsible water entity before the transfer day but not performed or discharged before that day is taken to have been made or entered into by the other water entity.

Part 5 Rights in respect of Water

48 Rights to take water

(1)  In this section –

casual use of land means lawful use by persons or stock not normally resident on land which adjoins a watercourse or lake from which water is taken and includes camping, recreational use and use by travelling livestock;

specified purpose means –

(a) a domestic purpose; or

(b) irrigation of a household garden; or

(c) stock watering; or

(d) firefighting; or

(e) drilling under section 168 of the Mineral Resources Development Act 1995 ;

tenement to which this section applies means –

(a) a riparian tenement; and

(b) land that would be a riparian tenement but for the existence of a Crown reserve not exceeding 20 metres in width between it and a watercourse or lake; and

(c) land that would be a riparian tenement but for the existence of a Crown reserve exceeding 20 metres in width between it and a watercourse or lake where the Secretary of the responsible department in relation to the Crown Lands Act 1976 has, in writing, permitted the occupier of the land to take water across the reserve.

(2)  Subject to this Act –

(a) a person who is an occupier of a tenement to which this section applies may take water from a watercourse or lake on, or adjoining, that tenement for a specified purpose; and

(b) a person may, in casual use of land, take water from a watercourse or lake on, or adjoining, that land for a specified purpose.

(3)  Subsection (2) does not confer any rights over a riparian Crown reserve but the Secretary of the responsible department in relation to the Crown Lands Act 1976 may grant an easement or licence over the reserve for taking water to the land to which a right conferred under this Part attaches.

(4)  [Section 48 Subsection (4) amended by No. 12 of 2004, s. 20, Applied:09 Jun 2004] [Section 48 Subsection (4) amended by No. 49 of 2002, s. 8, Applied:01 Mar 2003] An owner or occupier of land may take dispersed surface water from the land for any purpose.

(4A)  [Section 48 Subsection (4A) inserted by No. 12 of 2004, s. 20, Applied:09 Jun 2004] [Section 48 Subsection (4A) substituted by No. 56 of 2008, s. 26, Applied:11 Feb 2009] An owner or occupier of land may take groundwater from the land for any purpose.

(5)  [Section 48 Subsection (5) amended by No. 12 of 2004, s. 20, Applied:09 Jun 2004] The amount of water which can be taken under subsection (2) or from a well under subsection (4A) and the methods of taking any such water may be prescribed by the regulations.

(6)  Nothing in this section is taken to affect any interest in land held by any person or any rights or obligations of an owner or occupier of land which exist otherwise than under this Part.

49 Hydro-electric generation

Subject to this Act, a person who has lawful access to a watercourse or lake may use water from the watercourse or lake for the purpose of generating electricity if the use does not –

(a) [Section 49 Amended by No. 49 of 2002, s. 9, Applied:01 Mar 2003] cause material environmental harm or serious environmental harm or significant detrimental effects to other users; and

(b) contravene any other Act.

50 Water management plan may require licence

A licence may be required to take water in accordance with this Part if a water management plan provides that a licence is required.

51 Taking not to cause environmental harm

Nothing in this Part entitles a person to take water from a watercourse, lake or well if the taking would cause, either directly or indirectly, material environmental harm or serious environmental harm.

52 Taking not to affect owner or occupier

A person who is not an owner or occupier of a tenement to which section 48 applies must not take water from a watercourse or lake if to do so would detrimentally affect the ability of any other such owner or occupier to exercise a right under subsection (2) of that section to take water from the watercourse or lake.

Penalty:  Fine not exceeding 20 penalty units and, in the case of a continuing offence, a further fine not exceeding 2 penalty units for each day during which the offence continues.

53 Exceptions to general rights

Nothing in this Part entitles a person to take water –

(a) [Section 53 Amended by No. 56 of 2008, s. 27, Applied:11 Feb 2009] contrary to –

(i) a water management plan; or

(ii) a licence; or

(iii) a permission under section 90 ; or

(iv) an authorisation under section 90A ; or

(v) a notice under section 92(1) ; or

(vi) a temporary transfer under section 103 ; or

(vii) an authorisation under section 123A ; or

(viii) an order under section 124A ; or

(ix) a permit under section 135C ; or

(x) a direction under section 280D ; or

(b) in excess of the person's reasonable requirements.

Part 6 Licensing and Allocation of Water

54 Licences

[Section 54 Subsection (1) amended by No. 49 of 2002, s. 10, Applied:01 Mar 2003] [Section 54 Subsection (2) amended by No. 12 of 2004, s. 21, Applied:09 Jun 2004] [Section 54 Subsection (2) amended by No. 12 of 2004, s. 21, Applied:09 Jun 2004] [Section 54 Subsection (2) amended by No. 30 of 2005, s. 6, Applied:11 Jul 2005] [Section 54 Subsection (2) amended by No. 30 of 2005, s. 6, Applied:11 Jul 2005] [Section 54 Substituted by No. 56 of 2008, s. 28, Applied:11 Feb 2009]

(1)  A person must not, without a licence, take –

(a) water from a watercourse, lake or well; or

(b) dispersed surface water; or

(c) water from a tidal area that a declaration under section 5A relates to.

Penalty:  Fine not exceeding 500 penalty units and, in the case of a continuing offence, a further fine not exceeding 50 penalty units for each day during which the offence continues.

(2)  However, subsection (1) does not apply to the taking of water under and in accordance with –

(a) Part 5 ; or

(b) an exemption under section 11 ; or

(c) a permission under section 90 ; or

(d) an authorisation under section 90A ; or

(e) a direction under section 280D ; or

(f) an irrigation or other right under the Irrigation Clauses Act 1973 .

(3)  Also, subsection (1) does not apply to the taking of water directly from a dam or other works if the water in the dam or works has previously been taken under and in accordance with this Act.

(4)  A person may apply for a licence under section 62 or a special licence under Division 6 .

55 Authority of licence

A licence authorises the holder of the licence to take water in accordance with the licence and is subject to –

(a) any relevant water management plan; and

(b) any condition specified in the licence.

56 Details of licence

(1)  A licence –

(aa) [Section 56 Subsection (1) amended by No. 56 of 2008, s. 29, Applied:11 Feb 2009] is to specify the name and address of the licensee; and

(a) [Section 56 Subsection (1) amended by No. 56 of 2008, s. 29, Applied:11 Feb 2009] may specify the water resource from which the water is to be taken; and

(b) [Section 56 Subsection (1) amended by No. 49 of 2002, s. 11, Applied:01 Mar 2003] may be endorsed with a water allocation or water allocations expressed as provided by section 83 notwithstanding that all or part of the water allocation or water allocations may be temporarily transferred to another licensee under Division 4 ; and

(c) may, where the Minister considers it to be appropriate, specify the surety with which a water allocation can be expected to be available for taking; and

(d) may specify conditions under which the licensee may take water or the licence or a water allocation of the licence may be transferred under Division 4 ; and

(da) [Section 56 Subsection (1) amended by No. 12 of 2004, s. 22, Applied:09 Jun 2004] may specify conditions under which the licensee may undertake well works; and

(e) [Section 56 Subsection (1) amended by No. 56 of 2008, s. 29, Applied:11 Feb 2009] may specify when the Minister may vary the conditions of the licence; and

(f) [Section 56 Subsection (1) amended by No. 56 of 2008, s. 29, Applied:11 Feb 2009] may specify such other conditions and matters as the Minister thinks fit.

(2)  [Section 56 Subsection (2) amended by No. 56 of 2008, s. 29, Applied:11 Feb 2009] Where a licence is endorsed with more than one water allocation, subsection (1) may apply in respect of each allocation separately.

57 Duration of licence

(1)  [Section 57 Subsection (1) amended by No. 56 of 2008, s. 30, Applied:11 Feb 2009] Unless revoked earlier, a licence remains in force for such period as the Minister determines and specifies in the licence.

(2)  A water allocation of a licence ceases to have effect on the expiration of the licence or on any earlier date specified in the licence.

58 Restriction on use of allocation

[Section 58 Substituted by No. 49 of 2002, s. 12, Applied:01 Mar 2003]

(1)  Without limiting section 56 , the Minister may determine that a water allocation of a licence may be –

(a) taken from, or used on, only a specified area of land; or

(b) used only for a specified purpose; or

(c) [Section 58 Subsection (1) amended by No. 6 of 2007, s. 9, Applied:16 Jul 2007] used only to allow the taking of water into a specified dam or proposed dam; or

(d) [Section 58 Subsection (1) amended by No. 6 of 2007, s. 9, Applied:16 Jul 2007] used only in accordance with conditions for the avoidance, minimisation or management of associated environmental risks.

(2)  Where a water allocation is determined under subsection (1)(c) to be used for the taking of water into a proposed dam or to increase the quantity of water to be taken into an existing dam, the allocation may be made conditional on the completion of –

(a) the construction of the proposed dam; or

(b) the dam works increasing the existing dam's capacity.

(3)  [Section 58 Subsection (3) inserted by No. 6 of 2007, s. 9, Applied:16 Jul 2007] In this section –

environmental risk means a material risk that a water allocation may, in respect of any water resource or land, cause –

(a) a rise in underground water levels; or

(b) soil waterlogging; or

(c) increased salination; or

(d) increased soil erosion; or

(e) the destabilisation of the bank or bed of a watercourse; or

(f) the degradation of a riverine or estuarine environment; or

(g) a deterioration of water quality.

59 Surety attaching to allocation of licence

For the purposes of section 56(1)(c) , the surety or sureties may be specified as a class or classes of surety common to all allocations of similar surety.

60 Licence to be personal property

A licence, including the right to a water allocation endorsed on it, is the personal property of the licensee and is alienable in accordance with Division 4 or 6 and any other law relating to the passing of property.

61 Notification of financial interest

(1)  [Section 61 Subsection (1) amended by No. 56 of 2008, s. 31, Applied:11 Feb 2009] A licensee must, within 10 days after becoming aware of any financial interest of another person in the licence or in a water allocation endorsed on the licence, provide the Minister in writing with details of the interest.

(2)  [Section 61 Subsection (2) amended by No. 56 of 2008, s. 31, Applied:11 Feb 2009] A person is not taken to have a financial interest for the purposes of subsection (1) by reason only of the fact that he or she is a shareholder in, or a member of, a body corporate that holds the licence.

(3)  [Section 61 Subsection (3) amended by No. 33 of 2015, s. 13, Applied:01 Jan 2016] On receipt of notification under subsection (1) , the Minister must make a notation in the register of licences, water allocations and permits to that effect.

(4)  [Section 61 Subsection (4) amended by No. 33 of 2015, s. 13, Applied:01 Jan 2016] [Section 61 Subsection (4) amended by No. 56 of 2008, s. 31, Applied:11 Feb 2009] If the Minister is satisfied, on notification in writing by a person, that he or she has a financial interest in a licence or water allocation, the Minister must make a notation in the register of licences, water allocations and permits to that effect.

(5)  [Section 61 Subsection (5) amended by No. 33 of 2015, s. 13, Applied:01 Jan 2016] Where the register of licences, water allocations and permits includes a notation made under subsection (3) that a specified person has a financial interest in a licence or a water allocation of a licence, the Minister must, on written notification by that person that that interest no longer exists, remove that notation from the register.

(6)  [Section 61 Subsection (6) amended by No. 33 of 2015, s. 13, Applied:01 Jan 2016] Where the register of licences, water allocations and permits includes a notation made under subsection (3) that a specified person has a financial interest in a licence or a water allocation of a licence, the Minister must, on written notification by that person that that interest has been varied, amend that notation in the register accordingly.

(7)  [Section 61 Subsection (7) omitted by No. 56 of 2008, s. 31, Applied:11 Feb 2009] .  .  .  .  .  .  .  .  

(8)  A licensee who fails to provide the Minister with details of a financial interest as required by subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units.

62 Application for licence

[Section 62 Substituted by No. 56 of 2008, s. 32, Applied:11 Feb 2009]

(1)  An application for a licence is to be made to the Minister.

(2)  The application must –

(a) be in accordance with section 12A ; and

(b) where a water allocation of the licence is to be comprised wholly or partly of a water allocation purchased under section 85 , be accompanied by the amount agreed to be paid for the allocation.

63 Approval of application

[Section 63 Amended by No. 49 of 2002, s. 13, Applied:01 Mar 2003] [Section 63 Substituted by No. 6 of 2007, s. 10, Applied:16 Jul 2007]

(1)  Except as provided by section 64 , the Minister must approve an application for a licence that –

(a) is in accordance with section 62 ; and

(b) is consistent with the objectives of this Act and any relevant water management plan; and

(c) could not reasonably be expected to lead to material environmental harm or serious environmental harm; and

(d) will not have a significant adverse impact on other persons taking water from the relevant water resource or on the commercial operations of a major user of water from that water resource.

(2)  An approval under subsection (1) takes effect on such day as is specified for that purpose in the notice of the approval given under section 68 .

64 Refusal of application for a licence

[Section 64 Amended by No. 56 of 2008, s. 33, Applied:11 Feb 2009] The Minister may refuse an application for a licence if –

(a) [Section 64 Amended by No. 56 of 2008, s. 33, Applied:11 Feb 2009] it is not possible to endorse a water allocation on the licence consistently with the objectives of this Act or any relevant water management plan; or

(b) the Minister is satisfied –

(i) [Section 64 Amended by No. 49 of 2002, s. 14, Applied:01 Mar 2003] [Section 64 Amended by No. 56 of 2008, s. 33, Applied:11 Feb 2009] that the licence would have a significant adverse impact on any existing licensee or a person taking water under Part 5 or on the commercial operations of a major user of water from the relevant water resource; or

(ii) after consultation with the Director of Public Health, that the water to be taken under the licence is so contaminated that its use would create a risk to the health of people or that the taking or use of the water would contravene the Public Health Act 1997 or any guidelines in force under that Act; or

(iii) that the water to be taken under the licence is so contaminated that its use would create a risk to the health of animals; or

(iv) [Section 64 Amended by No. 76 of 2007, Sched. 1, Applied:01 Jul 2008] after consultation with the Director, Environment Protection Authority, that the proposed taking or use of the water would contravene the EMPC Act; or

(c) the applicant –

(i) has been convicted of an offence under this Act; or

(ii) [Section 64 Amended by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] has accepted an infringement notice.

65 Notice of application for licence

(1)  This section applies to an application for a licence –

(a) where there is no water management plan for the water resource from which a water allocation of the licence is proposed to be taken; or

(b) where a relevant water management plan does not provide for the allocation of water under section 14(3)(a) ; or

(c) where the relevant water management plan requires that the application be advertised –

but does not apply to an application where the proposed water allocation is a water allocation of another licence.

(2)  The Minister must give notice of the application in a local newspaper and the notice is to –

(a) include details of the application, the relevant water resource, each proposed allocation, the purpose for which each proposed allocation will be used and such other information as the Minister may determine; and

(b) invite written representations from any person who may be affected by the application; and

(c) state a period of at least 14 days from the publication of the notice during which representations may be made and the address to which they are to be sent.

(3)  [Section 65 Subsection (3) inserted by No. 56 of 2008, s. 34, Applied:11 Feb 2009] However, the Minister, in his or her discretion, need not comply with subsection (2) if satisfied that –

(a) the water allocation to which the proposed licence relates would be solely for stock or domestic use, or a combination of those uses; and

(b) the maximum daily quantity of water taken under the proposed licence would be less than 0.01 megalitres; and

(c) the taking of the water allocation would not have a significant effect on other users of water or the environment.

66 Withdrawal of representation

(1)  A representation made under section 65(2) may, by notice in writing to the Minister, be withdrawn at any time before the Minister approves an application under section 63 or refuses an application under section 64 .

(2)  A person who withdraws a representation under subsection (1) is taken, for the purposes of this Act, as having not made the representation.

67 Consideration of application

Before making a decision on an application to which section 65 applies, the Minister must have regard to any representations made in accordance with a notice under section 65(2) .

68 Notification of decision

Within 7 days after approving an application under section 63 or refusing an application under section 64 , the Minister must give written notice of the approval or refusal and of any rights of review or appeal under Part 14 to –

(a) the applicant; and

(b) any person who has made a representation under section 65(2) .

69 Variation of licences

(1)  The Minister may vary a licence as provided by this section.

(2)  The licence may be varied –

(a) with the written consent of the licensee and of any other person as required by subsection (3) ; or

(b) [Section 69 Subsection (2) amended by No. 56 of 2008, s. 35, Applied:11 Feb 2009] subject to subsection (3) , on application by the licensee; or

(c) [Section 69 Subsection (2) amended by No. 56 of 2008, s. 35, Applied:11 Feb 2009] where the licence specifies when the conditions of the licence may be varied, at or within the times so specified if the Minister reasonably determines that the variation is necessary or desirable to further the objectives of this Act; or

(d) if so provided by a water management plan; or

(e) if the Minister is authorised to do so under section 106 ; or

(f) [Section 69 Subsection (2) amended by No. 56 of 2008, s. 35, Applied:11 Feb 2009] to give effect to a reduction in a water allocation of the licence by the Minister under section 88 ; or

(fa) [Section 69 Subsection (2) amended by No. 6 of 2007, s. 11, Applied:16 Jul 2007] [Section 69 Subsection (2) amended by No. 33 of 2015, s. 14, Applied:01 Jan 2016] if a water allocation endorsed on a licence is for the taking of water into a dam to which a Division 3 permit or a Division 4 permit relates and either –

(i) those dam works are not completed in accordance with that permit; or

(ii) conditions in relation to the operation, in accordance with the objectives of this Act, of the dam, when constructed, are to be placed on the licence; or

(g) [Section 69 Subsection (2) amended by No. 56 of 2008, s. 35, Applied:11 Feb 2009] on a transfer under Division 4 ; or

(h) [Section 69 Subsection (2) amended by No. 56 of 2008, s. 35, Applied:11 Feb 2009] to give effect to an order under section 192 .

(3)  [Section 69 Subsection (3) amended by No. 33 of 2015, s. 14, Applied:01 Jan 2016] If, in the case of a variation under subsection (2)(a) or (b) , the register of licences, water allocations and permits includes a notation that a person has a financial interest in the licence or a water allocation of the licence, the written consent of that person to the variation is required unless the effect of the variation is to increase the water allocation.

70 Requirements for application to vary licence

[Section 70 Substituted by No. 56 of 2008, s. 36, Applied:11 Feb 2009] An application under section 69(2)(b) must –

(a) be in accordance with section 12A ; and

(b) where the variation consists of a variation of a water allocation of the licence, be accompanied by the amount required to be paid for the water allocation or the amount agreed to be paid for it under section 85 .

71 Notice of application to vary licence

(1)  This section applies to an application for the variation of a licence if the effect of the variation would be to increase the amount of water that may be taken from a water resource under a licence and if –

(a) the relevant water management plan requires that the application be advertised; or

(b) the Minister is of the opinion that the variation may have a significant effect on other users of water or the environment.

(2)  [Section 71 Subsection (2) amended by No. 56 of 2008, s. 37, Applied:11 Feb 2009] When considering an application to which this section applies, the Minister must, by notice published in a local newspaper, invite affected persons to make written representations to the Minister on the application.

(3)  A notice under subsection (2) is to state –

(a) details of the application, the relevant water resource, each water allocation, the purpose for which each proposed allocation will be used and such other information relating to the application as the Minister may require for the purposes of this Part; and

(b) the name and address of the person to whom representations may be sent and the time by which they are to be received.

(4)  [Section 71 Subsection (4) amended by No. 56 of 2008, s. 37, Applied:11 Feb 2009] [Section 71 Subsection (4) inserted by No. 30 of 2005, s. 7, Applied:11 Jul 2005] However, a notice under subsection (2) is not required where –

(a) notification is given in a local newspaper of a public meeting to be held of persons holding licences for irrigation to discuss their requirements for water for irrigation and the Minister's intention to conduct a survey of the usage of water for irrigation; and

(b) the Minister is satisfied from evidence produced by those persons and the survey that the variation of a licence is necessary or desirable having regard to –

(i) the survey referred to in paragraph (a) ; and

(ii) the amount of water required to maintain any existing commercial enterprise at a specific time.

(5)  [Section 71 Subsection (5) inserted by No. 56 of 2008, s. 37, Applied:11 Feb 2009] Also, the Minister, in his or her discretion, need not comply with subsection (2) if satisfied that –

(a) the water allocation to which the proposed variation relates would be solely for stock or domestic use, or a combination of those uses; and

(b) the maximum daily quantity of water taken under the proposed variation would be less than 0.01 megalitres; and

(c) the taking of the water allocation would not have a significant effect on other users of water or the environment.

72 Consideration of application to vary licence

Before making a decision on an application to which section 70 applies, the Minister must have regard to any representations made in accordance with a notice under section 71 .

73 Approval of application to vary licence

[Section 73 Amended by No. 49 of 2002, s. 15, Applied:01 Mar 2003] [Section 73 Substituted by No. 6 of 2007, s. 12, Applied:16 Jul 2007]

(1)  [Section 73 Subsection (1) amended by No. 56 of 2008, s. 38, Applied:11 Feb 2009] Except as provided in section 74 , the Minister must approve an application for variation of a licence if satisfied that the variation –

(a) is in accordance with section 70 ; and

(b) is consistent with the objectives of this Act and any relevant water management plan; and

(c) [Section 73 Subsection (1) amended by No. 56 of 2008, s. 38, Applied:11 Feb 2009] could not be expected to lead to material environmental harm or serious environmental harm; and

(d) will not have a significant adverse impact on other persons taking water from the relevant water resource or on the commercial operations of a major user of water from that water resource.

(2)  An approval under subsection (1) takes effect on such day as is specified for that purpose in the notice of the approval given under section 75 .

74 Refusal of application to vary licence

The Minister may refuse to approve the variation of a licence –

(a) on any ground specified in section 64 ; or

(b) [Section 74 Amended by No. 12 of 2004, s. 23, Applied:09 Jun 2004] .  .  .  .  .  .  .  .  

(c) if the licensee has not paid any fees payable under this Act.

75 Notification of decision

Within 7 days after approving an application under section 73 or refusing it under section 74 , the Minister must give written notice of the approval or refusal and of any rights of review or appeal under Part 14 to –

(a) the applicant; and

(b) any person who has made a representation under section 71(2) .

76 Withdrawal of representation

(1)  A representation made under section 71(2) may be withdrawn by notice in writing to the Minister at any time before the Minister approves the application under section 73 or refuses it under section 74 .

(2)  A person who withdraws a representation under subsection (1) is taken, for the purposes of this Act, as having not made the representation.

77 Surrender of licences

[Section 77 Substituted by No. 56 of 2008, s. 39, Applied:11 Feb 2009]

(1)  Subject to subsection (2) , a licensee may surrender his or her licence at any time by giving the Minister written notice to that effect.

(2)  [Section 77 Subsection (2) amended by No. 33 of 2015, s. 15, Applied:01 Jan 2016] However, if the register of licences, water allocations and permits includes a notation that a person has a financial interest in the licence or a water allocation of the licence, the surrender is not effective unless it has the written consent of that person.

(3)  On the surrender, a water allocation of the licence vests in the Minister.

78.

[Section 78 Repealed by No. 56 of 2008, s. 40, Applied:11 Feb 2009]

79 Fees for licences

(1)  [Section 79 Subsection (1) amended by No. 28 of 2006, s. 4, Applied:01 Oct 2006] The Minister may charge a fee for the granting, holding, administration or management of licences by a lump sum or periodical payments as may be prescribed by the regulations, which may differentiate between licensees in respect of –

(a) the place from which the water is taken; and

(b) the purpose for which the water is taken; and

(c) the time of the year at which the water is taken; and

(d) the surety of the licence; and

(e) the method by which the water is taken; and

(f) a water allocation of a licence; and

(g) such other matters as may be provided by the regulations.

(2)  The fees may include separate components for the various activities arising from the administration of the licence and the Minister may differentiate between licensees in charging for the different components.

80 Renewal of licences

[Section 80 Substituted by No. 56 of 2008, s. 41, Applied:11 Feb 2009]

(1)  The Minister must renew a licence that is otherwise about to expire if satisfied that –

(a) the licensee has paid the prescribed licence renewal fee, if any; and

(b) the licensee has paid all previous fees and charges payable in respect of the licence; and

(c) the licensee has complied with the conditions of the licence during its current term; and

(d) the licensee is not disqualified from holding the licence; and

(e) the renewal is not inconsistent with the objectives of this Act or any relevant water management plan.

(2)  If the Minister is not satisfied as required under subsection (1) , the Minister may –

(a) renew the licence subject to any conditions the Minister thinks fit; or

(b) refuse to renew the licence.

(3)  If subsection (2)(b) applies, the Minister is to notify the licensee as soon as practicable of –

(a) the refusal; and

(b) the reasons for the refusal.

81 Granting of licences on adoption of water management plan

(1)  This section applies to a person who before the adoption of a water management plan held a right to take water under Part 5 if the plan requires him or her to hold a licence for the taking of that water.

(2)  A person to whom this section applies –

(a) may, subject to a restriction or prohibition under section 92 , continue to take water without a licence –

(i) for a period of 3 months after the date of adoption of the relevant water management plan; or

(ii) if he or she applies for a licence within that period, until the application is granted or refused; and

(b) is entitled to have endorsed on the licence, without payment of a fee, a water allocation determined by the Minister in accordance with the relevant water management plan.

82 Offence for breach of licence, &c.

(1)  A licensee must not –

(a) take water in excess of a relevant allocation endorsed on the licence; or

(b) contravene a condition of the licence; or

(c) use water taken under the licence for a purpose that is not specified in the licence.

(2)  A licensee who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 500 penalty units and, in the case of a continuing offence, a further fine not exceeding 50 penalty units for each day during which the offence continues.

83 Method of fixing water allocation

For the purposes of this Act –

(a) a water allocation may be fixed by specifying the volume of water that may be taken and used or by reference to the purpose for which the water may be taken and used or in any other manner; and

(b) a water allocation may be specified as being a water allocation of another licence.

84 Allocation of water

(1)  A water allocation, or a component of a water allocation, of a licence may be granted by the Minister in accordance with subsection (2) .

(2)  The Minister must allocate water in accordance with any relevant water management plan or, where there is no relevant water management plan, so as to give effect to the objectives of this Act.

(3)  The Minister may allocate water subject to conditions and those conditions, or such of them as the Minister specifies, are taken to be conditions of the licence to which a water allocation is for the time being attached.

(3A)  [Section 84 Subsection (3A) amended by No. 33 of 2015, s. 16, Applied:01 Jan 2016] [Section 84 Subsection (3A) inserted by No. 49 of 2002, s. 16, Applied:01 Mar 2003] [Section 84 Subsection (3A) substituted by No. 6 of 2007, s. 13, Applied:16 Jul 2007] If a water allocation is granted for the taking of water into a dam to which relates a Division 3 permit, or a Division 4 permit, that authorises dam works but those dam works are not completed in accordance with that permit, the Minister, by written notice, may –

(a) cancel the water allocation; or

(b) vary the water allocation as provided by section 69(2)(fa) .

(4)  A water allocation, or a component of a water allocation, of a licence may be transferred, if the licence so provides and the Minister approves –

(a) in the case of a special licence, under Division 6 ; or

(b) in any other case, under Division 4 .

85 Payment for allocation

(1)  The Minister may charge a fee for the granting of a water allocation.

(2)  The Minister may sell a water allocation by public auction or tender to any person who holds a licence.

(3)  The purchaser of a water allocation under subsection (2) must hold a licence before he or she is entitled to the allocation.

(4)  The Minister may refuse to accept a bid or tender for a water allocation under subsection (2) from a person who has been convicted of an offence against this Act.

86 Requirement for additional information

(1)  [Section 86 Subsection (1) amended by No. 12 of 2004, s. 24, Applied:09 Jun 2004] [Section 86 Subsection (1) amended by No. 12 of 2004, s. 24, Applied:09 Jun 2004] Before allocating water, the Minister may, by notice in writing served on the applicant, direct that an assessment of the effect of allocating the water be made by a person approved by the Minister.

(1A)  [Section 86 Subsection (1A) inserted by No. 12 of 2004, s. 24, Applied:09 Jun 2004] A notice under subsection (1) may require that –

(a) the assessment is to be verified by a person approved by the Minister or by a person or class of persons holding specified qualifications; or

(b) the assessment is to be provided in a specified form; or

(c) the assessment includes a statement as to how the water is intended to be used so as to meet the relevant objectives of this Act.

(2)  The Minister may require that all or part of the cost of providing the assessment is to be included in the fee charged for the granting of a water allocation under section 85(1) .

87 Re-allocation of water

(1)  The Minister may re-allocate all or part of a water allocation that –

(a) has been forfeited to the Minister on cancellation of the licence on which it was endorsed; or

(ab) [Section 87 Subsection (1) amended by No. 56 of 2008, s. 42, Applied:11 Feb 2009] has vested in the Minister on the surrender of the licence on which it was endorsed; or

(b) is an allocation of a licence which has been suspended, in which case the re-allocation may not be for a period longer than the period of suspension.

(2)  Any money received by the Minister following the re-allocation is to be applied as follows:

(a) firstly, in paying the costs of the re-allocation and any other costs incurred in any cancellation or suspension referred to in subsection (1) ;

(b) secondly, in discharging any liability of the former licensee under this Act to the Minister or a water entity;

(c) [Section 87 Subsection (2) amended by No. 56 of 2008, s. 42, Applied:11 Feb 2009] thirdly, in discharging any liability of the former licensee that is secured by a financial interest in the licence, or the water allocation, noted in the register;

(d) fourthly, in payment to the former licensee.

(3)  [Section 87 Subsection (3) amended by No. 40 of 2015, Sched. 2, Applied:01 Jul 2016] If the former licensee cannot be found after reasonable enquiries as to his or her whereabouts, any amount payable to him or her is to be dealt with as unclaimed money under the Unclaimed Money Act 2015 .

88 Reduction of water allocations

(1)  [Section 88 Subsection (1) amended by No. 33 of 2015, s. 17, Applied:01 Jan 2016] Where necessary to give effect to a water management plan, the Minister may reduce a water allocation of a licence, by notice in writing given to the licensee and, where the register of licences, water allocations and permits includes a notation that a person has a financial interest in the licence or a water allocation of that licence, to that person.

(2)  A reduction under subsection (1) is to be made in accordance with a relevant water management plan.

(3)  A notice under subsection (1) must include notification of any rights of review or appeal under Part 14 .

(4)  The reduction is to take effect on the day specified in the notice under subsection (1) .

89 Compensation for reduction of water allocation

(1)  A licensee whose water allocation is reduced under section 88(1) is entitled to compensation for any liability incurred or loss sustained unless –

(a) [Section 89 Subsection (1) amended by No. 12 of 2004, s. 25, Applied:09 Jun 2004] the reduction is necessary to ensure that the total quantity of water permitted to be taken from the relevant water resource does not prevent the achievement of the water regime that best gives effect to the environmental objectives referred to in section 14(2)(a) ; or

(b) the licensee consents to the reduction.

(2)  [Section 89 Subsection (2) amended by No. 9 of 2011, Sched. 1, Applied:01 Oct 2012] In default of an agreement between the Minister and the licensee, the amount of compensation is to be determined in accordance with the Commercial Arbitration Act 2011 .

(3)  [Section 89 Subsection (3) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] For the purposes of this section, any compensation is to be paid out of the Public Account without further or other appropriation than this section.

(4)  In determining the amount of compensation under subsection (1) , any benefit to the licensee arising from the abrogation or reduction is to be taken into account.

90 Temporary water allocations

[Section 90 Substituted by No. 56 of 2008, s. 43, Applied:11 Feb 2009]

(1)  An authorised officer may, subject to this section –

(a) permit a person to take water from a water resource for a limited period; or

(b) permit a class of persons to take water from a water resource in a particular way.

(2)  The permission may be granted unconditionally or on such conditions as the authorised officer thinks fit having regard to the objectives of this Act.

(3)  However, the permission may only be granted if the authorised officer is satisfied that the taking of the water would –

(a) be consistent with any relevant water management plan; and

(b) not adversely affect the taking of water by other persons with a right to take water from the water resource; and

(c) not cause material environmental harm or serious environmental harm.

(4)  Also, in the case of water from a water resource within a hydro-electric district, the permission may only be granted with the agreement of the relevant electricity entity, which agreement –

(a) may be given subject to reasonable conditions; but

(b) is not to be unreasonably withheld.

(5)  If subsection (4)(a) applies, the electricity entity's conditions are to be made conditions of the permission.

(6)  The permission is to be granted –

(a) for subsection (1)(a) , by individual notice in writing; and

(b) for subsection (1)(b) , by general notice published in a local newspaper or such other means as the authorised officer thinks fit.

(7)  The Minister may give an authorised officer directions as to the exercise of powers under this section and the authorised officer must comply with those directions.

(8)  If a fee is prescribed for the purposes of subsection (1)(a) , a person is not eligible to be granted a permission under that subsection unless that fee has been paid.

(9)  A person who has permission to take water from a water resource for a limited period under this section may, without further authority, take that water under and in accordance with the conditions, if any, of that permission.

(10)  A person belonging to a class of persons that has permission to take water from a water resource in a particular way under this section may, without further authority, take that water under and in accordance with the conditions, if any, of that permission.

(11)  A person must not –

(a) take water from a water resource in contravention of a permission under this section; or

(b) contravene any condition of a permission under this section.

Penalty:  Fine not exceeding 500 penalty units and, in the case of a continuing offence, a further fine not exceeding 50 penalty units for each day during which the offence continues.

(12)  In this section –

limited period means a period not exceeding 6 months.

90A Short-term water allocations

[Section 90A Inserted by No. 56 of 2008, s. 43, Applied:11 Feb 2009]

(1)  To alleviate a significant but temporary water shortage, the Minister may authorise either or both of the following things:

(a) the short-term taking of water by any person adversely affected by the shortage;

(b) the short-term transfer of a water allocation from any person to a person adversely affected by the shortage.

(2)  The authorisation may be granted on such conditions as the Minister thinks fit having regard to the objectives of this Act and any relevant water management plan.

(3)  Without limiting the Minister's discretion under subsection (1) , the conditions may impose time restrictions on the granting of any subsequent authorisation.

(4)  In this section –

short-term means for a period not exceeding 7 days.

91 Inadequate supply or overuse of water

(1)  This Division applies in the following circumstances:

(a) if the rate at which water is taken from a watercourse, lake, groundwater area or well –

(i) is such that the quantity of water available can no longer meet the demand or there is a risk that the available water will not be sufficient to meet future demand; or

(ii) is adversely affecting, or is likely to adversely affect, the quality of the water in the watercourse, lake, groundwater area or well; or

(iii) is having a serious effect on another watercourse, lake or groundwater area that depends on water from the first-mentioned watercourse, lake or groundwater area for replenishment;

(b) if the rate at which water is taken from a well or groundwater area is such that an underground aquifer is likely to collapse or suffer any other damage;

(c) [Section 91 Subsection (1) amended by No. 49 of 2002, s. 17, Applied:01 Mar 2003] if the rate at which dispersed surface water is taken –

(i) [Section 91 Subsection (1) amended by No. 49 of 2002, s. 17, Applied:01 Mar 2003] is such that the dispersed surface water available can no longer meet the demand; or

(ii) [Section 91 Subsection (1) amended by No. 49 of 2002, s. 17, Applied:01 Mar 2003] is having a serious effect on a watercourse or lake, or the level of water in an underground aquifer, that depends on the dispersed surface water for replenishment;

(d) if the rate at which, or the manner in which, water is taken from a water resource is causing, or is likely to cause, damage to ecosystems that depend on water from the water resource.

(2)  In determining the demands on available water for the purposes of subsection (1) , the need for water on the part of the ecosystems that depend on water from the water resource concerned must be taken into account.

92 Notice of water restrictions

(1)  Where a circumstance mentioned in section 91 occurs, the Minister may, by notice published in a local newspaper or by notice served personally or by post on a person, prohibit or restrict the taking of water from a water resource.

(2)  The notice –

(a) takes effect at a time that is specified in the notice for that purpose; and

(b) remains in force for such period not exceeding 12 months as is specified in the notice unless it is revoked under section 94(4) .

(3)  If a case of urgent necessity arises from a circumstance mentioned in section 91 , a notice under subsection (1) may be given by radio, television or telephone but a further notice must then be given in accordance with that subsection as soon as practicable.

(4)  A person who contravenes a notice under this section is guilty of an offence.

Penalty:  For breach of this subsection, fine not exceeding 500 penalty units and, in the case of a continuing offence, a further fine not exceeding 50 penalty units for each day during which the offence continues.

93 Form of water restrictions

A notice under section 92(1) may, without limitation –

(a) require the removal or modification of the means by which water can be taken from a watercourse, lake or well; or

(b) specify conditions subject to which water may be taken from a watercourse, lake or well; or

(c) specify any action to be taken to remove or reduce the damage or the risk of damage mentioned in section 91(1)(d) .