The Regulation is built on a few recurring legal and operational concepts that determine who acts, who decides and what behaviour is regulated.

Regulatory Authority functions and POEO Act integration: Clause 4 designates that the Regulatory Authority may exercise the same functions as the EPA or other regulatory authorities under specified chapters and divisions of the POEO Act, but only in relation to a defined class of non-scheduled activities and certain offences in declared catchment areas. When the Regulatory Authority acts under these powers, the POEO Act’s offense, proceeding and appeal provisions apply to the Regulatory Authority’s exercise (cl 4(1), (5)). Clause 5 limits the permitted purposes for that exercise to water protection goals.

Scope limitations: Clause 6 draws bright-line limits. The Regulatory Authority cannot exercise regulatory authority functions over premises already defined in an environment protection licence, or non-scheduled activities authorised by such a licence. Clause 6(2) also prevents the Regulatory Authority regulating Water NSW activities where Water NSW itself is the regulatory authority for the functions concerned. The practical effect is to preserve EPA jurisdiction over licenced industrial or scheduled activities.

Consent as a defence and mechanism: The Regulation treats Water NSW consent as the key authorising instrument for otherwise prohibited conduct on special and controlled areas. Clause 9(1) creates an express defence to Part 3 offences except for certain enumerated offences. Clause 10 specifies how consent may be given: by a sign or notice displayed on relevant land or by written notice (for example an approval or lease), with consent capable of being general or personal, conditional, time-limited and capable of revocation (cl 10(1)-(4)).

Notice-based regulation and signs: Several powers vest legal effect in signs and notices. Signs can grant consent (cl 10(1)(a)), prohibit entry (cl 16), regulate conduct (cl 17), or set terms for fires (cl 23). The Regulation makes compliance with posted signs a stand-alone offence in several clauses.

Authorised officers and enforcement tools: The instrument relies on authorised officers to implement directions and enforce offences. Powers include directing persons to surrender things or allow inspection (cl 15), directing persons to leave in an emergency (cl 18), removing persons who contravene provisions (cl 19), driving away or impounding stock (cl 14(2)), and denying entry for non-payment of fees (cl 20(2)). Clause 4(5)(b) treats references to an authorised officer in the POEO Act as including authorised officers under the Water NSW Act when the Regulatory Authority exercises POEO powers.

Designated land categories and schedules: The Regulation repeats the distinction between special areas, controlled areas, Schedule 1 land and Schedule 2 land. Clause 21 defines Schedule 1 and Schedule 2 land for Division 4. Schedule 1 lists specific special areas and controlled areas (including Lake Burragorang catchment and named catchment proclamations), identifies excluded townships and defines controlled areas more broadly by the presence of infrastructure such as water transfer structures, roads or monitoring devices. Schedule 2 lists additional catchment areas except where already in Schedule 1.

Penalty design: Maximum penalties for serious breaches on many offences are set at 400 penalty units for corporations and 200 penalty units for individuals across several clauses (for example cls 9(2), 12(1), 13(1), 14(1) and many others). Schedule 3 sets fixed penalty notice amounts for many specified offences, with a matrix showing differing amounts for individuals and corporations.

Interaction with other statutory regimes: The Regulation calibrates its prohibitions against other licensing or approval regimes. It explicitly exempts authorised activities under the POEO Act licence regime (cl 13(2)), activities authorised by the Water Management Act 2000 or Water Act 1912 (cl 12(2)), on-site sewage installations authorised by EP&A Act or Local Government Act approvals (cl 13(3)), and pesticide use where domestic quantities or environment protection licences apply, while making clear that Pesticides Act obligations still apply (cl 29(2)-(3)). The Regulation also references the Wilderness Act and agreements under it for fire rules on certain Schedule 2 land (cl 23(2)).

Administrative transparency: Clause 8 requires the Regulatory Authority to keep and publish a register that must include details of each environment protection notice given by the Regulatory Authority, convictions in prosecutions it institutes under the POEO Act and Land and Environment Court results in civil proceedings instituted by or against the Regulatory Authority. The register must be available for inspection at its principal office and on its website, and copies may be obtained on payment of a fee set by the Regulatory Authority (cl 8(1)-(4)).

These main concepts structure who may act, what instruments create legal effect, where offences lie, how they are enforced and how the Regulation sits alongside existing statutory regimes.

The Regulation affects a mix of public bodies, land users, private owners, businesses and intermediaries. Below are the principal categories and the mechanisms through which their behaviour is constrained or rights are created.

Water NSW, the Regulatory Authority and authorised officers: The Regulation both empowers the Regulatory Authority and Water NSW to give consent, erect signs and take enforcement action. The Regulatory Authority may exercise EPA functions in defined circumstances (cl 4) and must keep a public register of notices and proceedings (cl 8). Water NSW may grant and revoke consent, erect signs and charges for entry and determine fees on Water NSW land (cls 9, 10, 16, 17, 20). Authorised officers, as that term is used in the Water NSW Act and treated as such when POEO functions are exercised (cl 4(5)(b)), are the operational actors empowered to direct, remove, impound, inspect and use force where authorised (cls 14(2), 15(2), 18(1), 19(2)-(3)).

Landowners, occupiers and private landholders: The Regulation applies to private land that lies within special areas or the Schedules (cl 21 and Schedule 1 note). Clause 30 explicitly applies to all land identified in Schedule 1 or Schedule 2, including private land, except land identified in Schedule 1 as excluded land. Owners and occupiers on those lands have duties not to erect certain animal production structures, to manage carcass disposal near watercourses and to comply with signage and directions.

Visitors, recreational users and commercial operators: Individuals visiting Water NSW land or Schedule 1/2 land are regulated tightly. Prohibitions cover entry and camping, use of fires, vessel use and washing in water, fishing and swimming on Schedule 1, vehicle and unmanned vehicle operation, aircraft landings, bringing plants, animals or weapons, and offensive behaviour (cls 22 to 29, 25, 26). Commercial operators or sellers of goods are required to obtain consent to conduct sales on regulated lands (cl 17(1)(g); cl 25(1)(e)). The fee and denied-entry mechanism in cl 20 makes entry conditional in practice on payment when Water NSW so determines.

Agricultural and animal owners: Stock owners and persons in charge of stock are subject to strict controls when their stock could enter Crown or Water NSW land in special or controlled areas. Clause 14(1) makes it an offence for stock to enter that land, clause 14(2) empowers authorised officers to remove or impound stock and clause 14(3) creates joint and several liability for the costs of removal, impounding, sale or destruction. Clause 30 prohibits certain intensive animal activities and structures on Schedule 1/2 land.

Business and industrial operators with licensed premises: Where premises are defined in an environment protection licence or non-scheduled activities are authorised by such a licence, the Regulatory Authority is excluded from exercising regulatory authority functions (cl 6(1)). That preserves the EPA’s primacy over licenced operations. Businesses that would otherwise contravene pollution or waste prohibitions but hold lawful EP licences are exempted from those particular offences (cl 13(2)).

Local government and specified councils: Clause 33 prescribes three local councils for the purposes of section 7(1)(c) of the Water NSW Act. The Regulation notes overlap with local authorities’ powers under section 6(3) of the POEO Act in cl 7’s note, creating potential interface with council powers regarding pollution control.

Regulated equipment and product suppliers: Persons bringing pesticides, environmentally hazardous chemicals, firearms, imitation firearms or prohibited weapons onto Schedule 1 or 2 land are regulated under cls 17, 25 and 29, with narrow exceptions such as police action or small domestic pesticide quantities (cl 29(2)).

Courts and the public: The Land and Environment Court and other courts hearing prosecutions or civil proceedings under the POEO Act or this Regulation are implicated by cl 4(5), which brings the POEO Act’s proceedings and appeal provisions to bear. The Regulatory Authority’s register must record convictions and results of civil proceedings (cl 8(1)(b)-(c)).

In short, the Regulation imposes duties and creates risks of enforcement particularly for those who enter, use, operate or manage land and water resources in declared catchments, controlled areas and the specially listed lands. It also affects public bodies through delegated enforcement functions and recordkeeping obligations.

The Regulation sets out a network of duties placed on users of Water NSW and Crown land, and parallel rights and administrative instruments held by Water NSW and the Regulatory Authority. Below are the principal duties, coupled with the rights or administrative settings that modify them.

Key duties of the public and land users

• Do not interfere with Water NSW water. Clause 12(1) prohibits damming, diverting or taking water that is Water NSW supply water or available for supply by Water NSW, on land in special or controlled areas. There is a statutory exception for lawful authority such as licences under the Water Management Act 2000 or Water Act 1912 (cl 12(2)).

• Do not bring pollutants or waste into or leave pollutants or waste on land in special or controlled areas, and do not pollute waters on those lands (cl 13(1)(a)-(b)). This duty is subject to lawful EP licences (cl 13(2)).

• Do not erect or operate on-site sewage facilities on special or controlled areas except under development consent, Local Government Act approval or an environment protection licence (cl 13(3)).

• Comply with directions from the Regulatory Authority or authorised officers regarding disposal or removal of relevant substances (pollutants, waste, or other substances that may detrimentally affect the land or adjoining land) (cl 13(4)).

• Stock owners must prevent stock entering Crown land or Water NSW land in special or controlled areas (cl 14(1)). If stock do enter without consent, authorised officers may drive, remove, impound, sell, destroy or otherwise dispose of the stock (cl 14(2)), with owners jointly and severally liable for costs (cl 14(3)).

• Comply with directions during investigations, including surrendering items or making them available for inspection where an authorised officer believes a person is on Crown or Water NSW land in contravention and holds a relevant thing (cl 15(1)-(3)).

• Obey signage and notices. Signage erected under cls 16 and 17 is enforceable: entering land contrary to a prohibition sign is an offence (cl 16(2)); acting contrary to a conduct-regulating sign is an offence (cl 17(2)).

• Leave land when directed to do so in emergencies (cl 18(1)-(2)) or when directed following contravention of the Act or Regulation (cl 19(1)-(2)), and remove any equipment, vehicle, animal or other item belonging to the person when leaving or being removed (cl 19(4)).

• Comply with limitations on activities on Schedule 1 and Schedule 2 land, including prohibitions on entry, camping, fires, vehicle use, drones, aircraft landings, taking of plants or animals, use of water, and use or carrying of pesticides and hazardous chemicals subject to narrow exceptions (cls 22 to 29).

• Pay fees determined by Water NSW for entry on Water NSW land when applicable, and be subject to denial of entry for non-payment (cl 20(1)-(3)).

Key administrative rights and instruments held by Water NSW and the Regulatory Authority

• Consent regime. Water NSW may authorise activities otherwise prohibited by Part 3 by sign or written notice. Clause 9(1) creates that conduct exclusion from offence liability if consent has been given, except for offences under cl 9 itself and cl 15, 18, 19 or 20. Consents may be conditional, time-limited, given to classes of persons and revoked (cl 10(1)-(4)).

• Direction and enforcement powers. Authorised officers have powers to give directions to leave (cl 18), direct surrender of items or inspection (cl 15), remove persons and items (cl 19), drive away or impound stock (cl 14(2)), and deny entry for non-payment of fees (cl 20(2)). Reasonable force may be used in removals (cl 19(3)). Clause 13(4) makes compliance with disposal and removal directions an offence.

• Delegated execution of EPA functions. When the Regulatory Authority exercises functions under clause 4, the POEO Act applies, including offence provisions, prosecution and appeal routes, and the recognised status of authorised officers (cl 4(5)(a)-(c)).

• Register and transparency duties. The Regulatory Authority must keep a publicly available register of environment protection notices, convictions from prosecutions it institutes under the POEO Act, civil proceeding results, and other matters it considers appropriate (cl 8(1)-(3)). Copies are available on payment of a fee set by the Regulatory Authority (cl 8(4)).

• Fee-setting and entry control rights. Water NSW may determine fees for entry to its land, refuse entry to persons who do not pay when requested and direct persons who entered without paying to leave (cl 20(1)-(3)).

Implementation and procedural caveats

• Exemptions tied to other frameworks. Several duties are modulated by existing licences, consents or approvals under other Acts. For example, lawful EP licences under the POEO Act exempt certain conduct from cl 13, and lawful water licences under the Water Management Act or Water Act 1912 exempt conduct from cl 12 (cl 13(2); cl 12(2)).

• Sign-based legality. Signage may create consent or prohibitions, and consent by sign may be general or class-based (cl 10(2)). That means take notice of signs on the ground as legally operative instruments.

• Penalty notice regime. Schedule 3 lists offences for which fixed penalty notices may be issued and prescribes the payable amounts, with cl 1 of Schedule 3 explaining the limits to when a penalty notice may be used.

These duties and rights allocate day-to-day decision-making and compliance obligations on land users while centralising authorisation, enforcement and recordkeeping with Water NSW and the Regulatory Authority.

The Regulation sets out both criminal sanctions via maximum penalties, and administrative enforcement via penalty notices and authorised officer powers. It also maps into the enforcement architecture of the POEO Act where the Regulatory Authority exercises delegated functions.

Criminal penalties and maximum fines

• Many primary offences carry maximum penalties of 400 penalty units for corporations and 200 penalty units for individuals. This maximum applies in relation to a wide range of offences, for example failing to comply with a condition of consent (cl 9(2)), interfering with Water NSW water (cl 12(1)), bringing pollutants or leaving waste or operating unauthorised on-site sewage facilities (cl 13(1), (3)), stock entering special Crown or Water NSW land (cl 14(1)), failing to comply with investigation directions (cl 15(3)), failing to leave when directed (cl 18(2) and cl 19(1)), and contraventions on Schedule 1 and 2 land such as entering or camping on Schedule 1 (cl 22(1)) or offences under cls 23, 25 and 28 (see those clauses for stated maximums).

• Some offences carry lower maximum penalties where indicated, for example offensive conduct under cl 26 is capped at 200 penalty units.

• The Regulation does not specify the monetary value of a penalty unit; that value is determined under broader New South Wales penalty unit legislation and is not in the Regulation text. The effect is that monetary exposure will vary with the statutory value of a penalty unit at the time of breach.

Penalty notices and fixed amounts

• Schedule 3 lists penalty notice offences and prescribes fixed penalty amounts for each offence, with separate columns for individuals and corporations. A non-exhaustive sample: clause 12(1) (interfering with water) attracts a $750 penalty for an individual and $1,500 for a corporation under the penalty notice regime; clause 16(2) (entering despite exclusion sign) lists $1,250 for an individual and $2,000 for a corporation; clause 22(1)(a) is assigned a $300 penalty for an individual and $1,000 for a corporation.

• Schedule 3 cl 1(1) confirms that offences specified are those for which a penalty notice may be issued for the amount specified. Schedule 3 cl 1(2) limits penalty notices to the kinds of offences or circumstances specified by the qualifying words in the provisions themselves.

Enforcement powers of authorised officers

• Authorised officers may give directions for investigations, including requiring surrender or inspection of things suspected to be connected with contraventions (cl 15). Failure to comply with such a direction is an offence with a maximum penalty of 400/200 penalty units.

• In emergencies, authorised officers may direct persons to leave Crown or Water NSW land; failure to comply is an offence but enforcement requires a prior warning that non-compliance is an offence (cl 18(1)-(3)).

• For non-compliant pedestrians or those contravening provisions, authorised officers may direct removal and may use reasonable force to effect removal (cl 19(2)-(3)). Those removed must take their equipment or items with them; failure to remove items is itself a penalised offence (cl 19(4)).

• For stock, authorised officers can drive stock away, remove, impound, sell or destroy it (cl 14(2)), and Water NSW may recover costs from owners jointly and severally (cl 14(3)).

• Water NSW can determine and require payment of fees for entry to Water NSW land; authorised officers may deny entry to persons or vehicles who do not pay and may direct people who have entered without payment to leave, with the penalty for failing to leave under this clause set at 5 penalty units (cl 20(1)-(4)).

Interaction with the POEO Act enforcement regime

• Where the Regulatory Authority exercises functions of the EPA or other regulatory authorities under clause 4, the POEO Act applies to those exercises, including provisions relating to offences, proceedings and appeals under that Act (cl 4(1), (5)(a)). Clause 4(3) and (4) further state that the Regulatory Authority has the same functions as the EPA under s 316 and as a regulatory authority under ss 319 and 320 of the POEO Act, bringing corresponding enforcement mechanisms into play.

Register and public transparency linked to enforcement

• Clause 8 requires the Regulatory Authority to maintain a register that includes details of each environment protection notice it gives, convictions in prosecutions instituted by it under the POEO Act and the results of civil proceedings before the Land and Environment Court instituted by or against it. The register must be publicly inspectable and placed on the Regulatory Authority’s website (cl 8(1)-(3)). This creates both a transparency mechanism and a record-keeping obligation that supports enforcement and public information.

Procedural safeguards and warning requirements

• Clauses 18(3) and 19(5) establish warning requirements: a person is not guilty of an offence for failing to comply with directions to leave unless it is established that the authorised officer warned the person that failure to comply was an offence. This injects a procedural step before criminal liability can be imposed for failure to obey these particular directions.

Limits on Regulatory Authority competence and potential conflicts

• Clause 6 excludes from the Regulatory Authority’s exercise of regulatory functions premises defined in an environment protection licence and non-scheduled activities authorised by such a licence. Clause 7 gives precedence to EPA notices where both the Regulatory Authority and the EPA issue environment protection notices in respect of the same pollution incident, premises or activity and compliance with both is impossible; the EPA notice prevails in that circumstance (cl 7(1)(a)). Otherwise, the Regulatory Authority’s notice prevails where the other regulatory authority is not the EPA (cl 7(1)(b)). These rules govern enforcement clashes between agencies.

In sum, enforcement combines criminal penalties, administrative fixed penalty notices, immediate operational powers for authorised officers to direct and remove, and a public register of notices and convictions. The POEO Act’s enforcement architecture becomes operative where clause 4 is engaged.

The Regulation deliberately meshes with multiple existing New South Wales statutes and their administrative regimes. It both imports and defers to other statutory frameworks, creating a layered regulatory field. Key interactions are set out below with clause references and explicit cross-references in the Regulation.

Protection of the Environment Operations Act 1997 (POEO Act)

• Clause 4 is the primary integration point. It permits the Regulatory Authority to exercise the same functions as the EPA or other regulatory authorities under specific parts of the POEO Act in relation to relevant non-scheduled activities and certain offences committed or alleged to be committed in declared catchment areas. Clause 4(1) specifies Chapter 4, Chapter 7 (other than s 186), and Division 2 of Part 8.2 of the POEO Act as the provisions that may be exercised.

• Clause 4(5)(a) states that when the Regulatory Authority exercises those functions, the POEO Act applies to that exercise, including offences, proceedings and appeal provisions, and references to authorised officers are to include authorised officers within the meaning of the Water NSW Act (cl 4(5)(b)). Clauses 4(3)-(4) extend those parallels by referencing specific sections of the POEO Act (s 316, ss 319 and 320) that apply to the Regulatory Authority.

• Clause 13(2) exempts conduct done in accordance with an environment protection licence under the POEO Act from the offences in cl 13(1). Clause 6(1) prevents the Regulatory Authority from exercising regulatory functions in relation to premises defined in an environment protection licence and activities authorised by such a licence. These provisions allocate primary enforcement for licenced activity to the EPA.

Water Management Act 2000 and Water Act 1912

• Clause 12(2) provides that a person does not commit an offence under cl 12(1) (no damming, diverting or taking Water NSW supply water) by reason of anything done with lawful authority, such as a licence or approval under the Water Management Act 2000 or the Water Act 1912. This explicitly preserves rights given under those water management frameworks.

Environmental Planning and Assessment Act 1979 and Local Government Act 1993

• Clause 13(3) prohibits erecting, installing or operating on-site sewage management facilities on land in a special area or controlled area unless done in accordance with either development consent under the Environmental Planning and Assessment Act 1979, an approval under the Local Government Act 1993, or an environment protection licence under the POEO Act. This cross-reference interfaces local land-use planning and local government health approval regimes with catchment protection.

Protection of the Environment Administration Act 1991

• The Regulation defines the EPA as the Environment Protection Authority constituted by the Protection of the Environment Administration Act 1991 (cl 3). That definition is used throughout cl 4 to import EPA functions.

Wilderness Act 1987 and National Parks and Wildlife Act 1974

• Clause 23(2) ties fire rules on certain parts of Schedule 2 land to the Wilderness Act and wilderness protection or conservation agreements under the National Parks and Wildlife Act. That is, fires lit in declared wilderness areas on Schedule 2 land must comply with the Wilderness Act or the terms of related agreements.

Pesticides Act 1999, Agvet Code and Agricultural and Veterinary Chemicals (New South Wales) Act 1994

• Clause 29 regulates pesticides and environmentally hazardous chemicals on Schedule 1 and 2 land. It defines “Agvet Code” by reference to the Agricultural and Veterinary Chemicals (NSW) Act 1994 and defines pesticide in terms of that code. Clause 29(2)(a) permits household quantities of pesticides; cl 29(3) emphasises that nothing in subclause (2) authorises use of a pesticide contrary to the Pesticides Act 1999. Thus, pesticide control operates across multiple overlapping regimes.

Fisheries Management Act 1994, Firearms Act 1996, Drug Misuse and Trafficking Act 1985, National Parks and Wildlife Act 1974

• The Regulation references these Acts to define the scope of certain prohibited conduct. For example, “fish” uses the Fisheries Management Act definition for cl 22(2); cl 25(2) uses the Firearms Act and National Parks and Wildlife Act definitions to prohibit firearms or prohibited weapons on Schedule 1/2 land; cl 26(d) references offences under the Drug Misuse and Trafficking Act for drug use prohibitions.

Standard Instrument (Local Environmental Plans) Order 2006

• Clause 30(4) adopts the meanings of words and expressions in that standard instrument for terms used in cl 30 that are not defined in the Act or this Regulation. This ties local environmental planning concepts into the meaning of terms such as “intensive livestock agriculture” or “animal boarding establishment”.

Local authority powers and overlap

• Clause 7 notes that the powers conferred on the Regulatory Authority overlap with powers of local authorities, such as local councils exercising powers under s 6(3) of the POEO Act. Clause 7(1) also establishes a precedence rule where both the Regulatory Authority and another regulatory authority give environment protection notices for the same incident: where the other authority is the EPA, the EPA notice prevails; otherwise the Regulatory Authority’s notice prevails.

Land and Environment Court and proceedings

• Clause 8(1)(c) requires the register to include results of civil proceedings before the Land and Environment Court instituted by or against the Regulatory Authority under the POEO Act. Clause 4(5)(a) brings provisions relating to proceedings for offences and appeals under the POEO Act into play when the Regulatory Authority exercises delegated functions.

Practical implications of these cross-references

• The Regulation creates a layered compliance environment where the POEO Act remains the primary instrument for many pollution and licensing matters, but the Regulatory Authority can step into that role for certain non-scheduled activities affecting declared catchments or controlled areas. It also preserves planning, local government and water licensing approvals as operative defences to a number of prohibitions. Signage, fee arrangements and consent mechanisms under this Regulation operate alongside those other regimes, and authorised officers enforcing the Regulation will do so in a statutory field where multiple Acts may need to be considered in deciding authorisation, enforcement or defence.

The Regulation contains a small number of explicit amendment notes within the text that indicate discrete updates since its 2020 commencement. The instrument itself commenced on 1 September 2020 and replaced the Water NSW Regulation 2013 (cl 2). The specific amendment notes contained in the text are as follows.

• Commencement and repeal of predecessor: Clause 2 records that the Regulation commenced on 1 September 2020 and replaced the Water NSW Regulation 2013, which was repealed on that date by the Subordinate Legislation Act 1989 (cl 2). This establishes the 2020 Regulation as the operative subordinate instrument from that date.

• Clause 3 amendment note: The definition clause contains a marginal note indicating it was amended by “Am 2024 No 10, Sch 2.6.” That identifies clause 3 as having been amended by a 2024 instrument, specifically Schedule 2.6 of Act No 10 of 2024. The Regulation text includes the amended definitions as presented, with the marginal note signalling that the definition set reflects that later amendment. The text does not set out the specific text of the amending instrument beyond that note.

• Schedule 1 amendment note: Schedule 1 carries a marginal note “sch 1: Am 2023 (75), sec 3.” That indicates Schedule 1 was amended by a 2023 instrument cited as (75) with section 3. The Schedule as printed includes the revised list of special areas, the definition of controlled areas and an exclusion for parts of specified townships. The marginal note links that content to the 2023 amendment.

• Savings provision: Clause 35 creates a savings provision preserving acts, matters or things that had effect under the former 2013 Regulation immediately before its repeal, such that they continue to have effect under this Regulation. That is a general carry-over mechanism for rights and instruments created under the repealed Regulation.

• Delegation authorisation: Clause 34 authorises the chief executive officer for the purposes of section 110 of the Water NSW Act. This is an administrative delegation statement included in the 2020 Regulation as published.

What the amendment notes do not show in the text

• The Regulation includes marginal notes indicating the existence of amendments, but the text of the instrument as supplied does not record all prior versions or the full explanatory history of the 2013 Regulation or subsequent Amending Acts. The supplied text therefore signals change points without reproducing the full amending instruments.

Practical consequences of the recorded amendment history

• Where particular provisions have been amended and marginal notes reference those amendments, a practitioner should check the named amending instruments (for example the 2023 amendment and the 2024 amendment cited) to confirm the precise textual changes, their dates of effect and transitional arrangements. Clause 35’s savings provision preserves earlier legal effects where necessary, but the marginal notes indicate that the Schedules and definitions have been modified since the 2020 commencement, which can affect which parcels of land are in Schedule 1 or Schedule 2 and the definition of key terms.

• The Regulation’s commencement note (cl 2) and the savings clause (cl 35) together mean that rights, consents and matters that pre-existed under the 2013 Regulation should continue under this instrument, but any statutory instruments or notices made under the predecessor should be checked for continuity or replacement where the marginal notes identify later amendments.

In short, the Regulation was brought into force on 1 September 2020 replacing the 2013 Regulation, and the text indicates at least two subsequent amendments affecting definitions and Schedule 1 in 2023 and 2024. The supplied text does not provide full amending instruments; practitioners must consult those amending instruments for precise changes.

The Regulation text supplied does not include or cite any cases or judicial decisions. It does, however, create reporting and litigation pathways that anchor where litigation arising under the Regulation would occur and how it would be recorded.

Where litigation or prosecutions are likely to occur

• Prosecutions under the Regulation’s own offences would be brought in the normal criminal courts or prosecuted under the enforcement provisions of the POEO Act where clause 4 has been invoked. Clause 4(5)(a) expressly imports the POEO Act’s provisions relating to the exercise of functions, offences, proceedings and appeals when the Regulatory Authority exercises a function of the EPA or another regulatory authority. That means prosecutions or enforcement proceedings connected to delegated EPA functions would follow POEO Act processes.

• Clause 8(1)(b) requires the Regulatory Authority to keep a register of details of convictions in prosecutions instituted by the Regulatory Authority under the POEO Act. Clause 8(1)(c) requires the register to include results of civil proceedings before the Land and Environment Court instituted by or against the Regulatory Authority under the POEO Act. This indicates the Land and Environment Court is the forum for civil proceedings tied to environmental enforcement engaged by the Regulatory Authority.

• The POEO Act reference and the Land and Environment Court mention together create a likely litigation pathway: where the Regulatory Authority acts as though it were the EPA under cl 4, contested enforcement actions or appeals would use the POEO Act machinery and Land and Environment Court jurisdiction.

What the Regulation requires to be recorded publicly

• The register obligation in clause 8 means that any convictions resulting from prosecutions instituted by the Regulatory Authority under the POEO Act must be recorded and made available for public inspection (cl 8(1)(b)-(3)). Similarly, results of civil proceedings before the Land and Environment Court instituted by or against the Regulatory Authority must be recorded (cl 8(1)(c)). The register therefore will serve as an internal litigation history repository produced by the Regulatory Authority.

Absence of named cases or judicial guidance in the text

• The Regulation itself does not cite or summarise any judicial decisions, or provide guidance based on case law. The Regulation’s references to the POEO Act, Land and Environment Court and other Acts imply that case law arising under those Acts will be relevant in interpreting obligations and enforcement powers, but the Regulation’s text contains no litigation history or cited precedents.

Practical note for advisers

• Advisers assessing enforcement or litigating under this Regulation should consider that: (a) where the Regulatory Authority exercises POEO functions, the POEO Act’s litigation pathways, evidentiary rules and appeal rights apply (cl 4(5)(a)); (b) the Land and Environment Court is identified as a venue for civil proceedings and their results must be recorded in the Regulatory Authority’s register (cl 8(1)(c)); and (c) the absence of litigation history in the Regulation itself requires checking case law under the POEO Act and related statutory regimes for guidance on procedure, enforcement thresholds and interpretation. The Regulation’s register obligation should produce a local record of litigation outcomes instituted by the Regulatory Authority, and that register is publicly inspectable (cl 8(3)).

In short, while the Regulation contains no litigation history within the instrument, it sets out where and how litigation will be recorded and the statutory basis (via the POEO Act and the Land and Environment Court) for proceedings arising from its enforcement activities.

This Regulation contains operational features and drafting choices that can produce surprising legal and practical effects. The following points identify specific issues that commonly cause compliance or implementation risk.

Consent by signage creates binding legal authorisation or prohibition

• Clause 10 permits consent to be given by a sign or notice displayed on the land and clause 10(2) allows such consent to be granted generally, to a class of persons, unconditionally or subject to sign conditions, and either for a specified period or until revoked. That means a member of the public could acquire lawful authorisation merely by observing a sign that purports to grant consent, or conversely commit an offence by contravening a sign-based prohibition (cls 16, 17). Reliance on the presence, content and legal sufficiency of signage therefore becomes a key operational risk.

Sign revocation is unilateral and immediate

• Clause 10(4) allows consent granted by written notice to be revoked or varied at any time by further written notification. There is no procedural requirement in the Regulation for notice periods or consultation before revocation. Practically, this can disrupt ongoing commercial activity or long-term arrangements where consent was previously given in writing, unless contractual protections have been put in place.

Overlap with EPA and other regulatory authorities can create conflicting notices

• Clause 7 sets a precedence rule where both the Regulatory Authority and another regulatory authority issue environment protection notices for the same incident and compliance with both is impossible. If the other authority is the EPA, the EPA’s notice prevails; otherwise the Regulatory Authority’s notice prevails (cl 7(1)). The risk is that multiple authorities will issue contradictory requirements in the same incident, necessitating careful legal interpretation to determine which notice must be complied with.

Authorised officers have wide seizure and direction powers without immediate warrant-type safeguards

• Clause 15 permits authorised officers, on reasonable belief that a person found on Crown or Water NSW land has something in their possession connected with a contravention, to direct surrender or inspection. Failure to comply is penalised. The Regulation does not require immediate judicial oversight for such directions. Similarly, cl 19 permits removal and reasonable force. Those operational powers require attention to procedural compliance and documentation to mitigate legal challenge risks.

Warning requirement creates a narrow procedural defence to non-compliance with leave directions

• Clauses 18(3) and 19(5) require that an authorised officer warn a person that failure to comply with a direction to leave an area is an offence before a person can be guilty. Failure by the authorised officer to warn provides a defence. Operationally, authorised officers must document their warnings to sustain enforcement actions.

Fees, denial of entry and small penalty for refusal to leave

• Clause 20 permits Water NSW to set fees and deny entry to those who do not pay. The maximum penalty for failing to leave when directed under cl 20(4) is only 5 penalty units, a low criminal sanction compared with larger fines elsewhere. However, the immediate enforcement tool is denial of entry, which may have immediate economic effect on businesses reliant on access.

Catchment mapping and Schedule boundary complexity

• Schedule 1 lists a number of special areas and controlled areas with descriptive phrases such as “the area of land submerged by Lake Burragorang, together with the area of land that surrounds the lake extending from the edge of the lake to a point 3 kilometres above the full supply level of the lake” and references to deposited maps. That raises practical issues in determining whether a parcel is within Schedule 1, particularly where private land abuts or is excluded (Schedule 1 excluded land note). Practitioners must consult the deposited maps and Water NSW records rather than rely solely on the text.

Exemptions and interplay with licences may be counterintuitive

• Clauses 12(2) and 13(2) provide that activities done under licences or approvals in other Acts are not offences under the corresponding provisions. However, the Regulation’s prohibition on erecting on-site sewage management facilities without specified approvals (cl 13(3)) requires separate planning or local government consent even where an EP licence might otherwise authorise discharges. This layering can create traps for operators who assume that one licence covers all regulatory requirements.

Pesticide and hazardous chemical definitions and domestic exceptions

• Clause 29(1) broadly prohibits pesticides and environmentally hazardous chemicals on Schedule 1 and 2 land, but cl 29(2)(a) carves out household or domestic quantities. Clause 29(3) makes clear that the domestic exception does not authorise contravention of the Pesticides Act 1999. Operators need to know both the Agvet Code definitions and Pesticides Act obligations to determine whether a permitted domestic use is lawful.

Penalty notice schedule anomalies

• Schedule 3 sets penalty notice amounts but contains an entry where the corporate penalty column is blank for clause 26 and clause 27. The presence of an em-dash or blank may indicate no corporate penalty amount is set for the penalty notice scheme for those entries, which can be confusing. Practitioners should confirm whether the absence means those offences are not subject to penalty notices for corporations, or whether it is merely a drafting display issue.

Delegation and authorised officer definitions

• Clause 4(5)(b) takes references to an authorised officer in the POEO Act to include an authorised officer within the meaning of the Water NSW Act, but the Regulation does not itself define “authorised officer.” The identity, appointment, qualifications and limits on authorised officers therefore depend on the Water NSW Act and Water NSW administrative practice. This matters for challenges to the validity of directions.

Register fees and public access limitations

• Clause 8 allows the Regulatory Authority to charge a fee for copies of parts of the register. While the register must be available for inspection during ordinary office hours and on the website (cl 8(3)), the fee regime for copies may be a practical barrier to access for some parties.

Collective effects on private activity

• The Regulation’s wide array of prohibitions, signage-based consents and fee-based entry controls means that private recreational, agricultural or commercial activity near or on catchments is subject to multiple, sometimes immediate constraints. Practitioners advising clients in affected areas must undertake both statutory mapping and on-the-ground signage and consent checks.

Identifying these “gotchas” and attending to the procedural particulars of signage, consents, warnings and cross-Act exemptions is central to avoiding enforcement and to defending or litigating actions under the Regulation.

This section offers practical, source-grounded compliance steps for land managers, local councils, businesses, legal advisers and compliance officers operating in or near special areas, controlled areas and lands listed in Schedules 1 and 2. Each suggested step references the Regulation provisions that create the obligations.

1. Map and review land status and signage

• Confirm whether land is within a special area, controlled area, Schedule 1 land or Schedule 2 land by consulting the maps deposited with Water NSW and the text of Schedules 1 and 2 (cl 21; Schedule 1; Schedule 2). Do not rely solely on property titles.

• Conduct an on-site survey for signs and notices, including signage that may grant consent or prohibit conduct. Because consent may be granted by a sign displayed on the land (cl 10(1)(a)) and regulatory prohibitions are enforced by sign in cls 16 and 17, a physical inspection is essential.

2. Where activity is proposed, obtain express consent in writing where possible

• If your client proposes activities that would otherwise contravene the Regulation, seek written consent from Water NSW rather than relying on an implicit or sign-based authorisation. Clause 10 allows written notices in the form of approvals, leases or other instruments to grant consent and provides for conditions and revocation (cl 10(1), (3)-(4)). Written consents give clearer evidence for defence under cl 9(1).

• Where only sign-based consent is available, obtain photographic evidence of the sign content, location, date and any accompanying written materials, because sign-based consent may be conditional, time-limited and could be revoked (cl 10(2)).

3. Check for overlapping licences and approvals

• Before undertaking activities involving water extraction, discharges, or polluting substances, verify whether the activity needs a licence under the Water Management Act 2000, Water Act 1912, EP&A Act, Local Government Act 1993 or an environment protection licence under the POEO Act. Clauses 12(2), 13(2) and 13(3) provide defences tied to proper authorisations from those statutes.

• If an activity is already subject to an environment protection licence, note clause 6(1) which excludes those activities from the Regulatory Authority’s exercise of POEO functions, leaving EPA jurisdiction intact.

4. For pollution and waste management, secure EP licences where appropriate

• Use the POEO licensing regime for activities likely to generate pollutants, and ensure the licence scope and premises definitions are clear, because cl 13(2) exempts licensed conduct from cl 13(1) offences and cl 6(1) guards jurisdiction over licenced premises.

5. Implement procedural safeguards for authorised officer interactions

• Establish internal protocols for compliance with authorised officer directions under cl 15 (surrender or inspection of items) and record keeping for any such interactions. Because failure to comply is an offence (cl 15(3)), and authorised officers may direct surrender on reasonable belief (cl 15(1)-(2)), rigorous documentation and prompt legal advice are advisable.

• Train staff to comply with lawful directions to leave under cls 18 and 19, and to expect that the authorised officer must warn that non-compliance is an offence before prosecution can be sustained (cl 18(3); cl 19(5)). Keep contemporaneous records of any warnings.

6. Control livestock and carcass disposal

• Physically prevent stock from entering Crown or Water NSW land in special or controlled areas (cl 14(1)). Implement fencing, mustering regimes and stock movement plans. If stock are found on such land without consent, authorised officers may impound or destroy stock and Water NSW may recover all resulting costs from owners (cl 14(2)-(3)).

• Avoid leaving carcasses within 100 metres of streams, reservoirs or watercourses on Schedule 1/2 land where cl 30(3) applies. Implement carcass collection and disposal protocols to avoid contravening cl 30(3).

7. Manage fires and fuel use carefully

• On Schedule 1 land, entry, camping and fires are prohibited (cl 22). On Schedule 2 land, fires are tightly regulated; use public fireplaces where provided and otherwise confine temporary fireplaces to the distances prescribed, in addition to complying with any posted notices (cl 23(1)). If land is a declared wilderness under the Wilderness Act, ensure fires comply with that Act or associated agreements (cl 23(2)).

• Train staff on leaving fires unattended and responding to fires that are beyond control, since failure to call for help or leaving a fire unattended is an offence under cl 23(1)(c)-(d).

8. Pesticide and hazardous chemical controls

• Prohibit the bringing onto, use of or keeping of pesticides or environmentally hazardous chemicals on Schedule 1 and 2 land except as permitted by cl 29(2). If domestic quantities are to be carried, ensure they are within household definitions, and confirm use is not in contravention of the Pesticides Act 1999 (cl 29(2)-(3)).

9. Drone, vehicle and aircraft operations

• Prohibit drone flights, vehicle use and aircraft landings on Schedule 1/2 land unless express consent is obtained (cl 25(1)(d), (c), (a)). For critical infrastructure access, secure written approval highlighting conditions, take-off/landing constraints and any environmental monitoring requirements.

10. Fees for entry and denial of access

• If operating on Water NSW land, budget for fees and determine whether fee payment will be required on entry under cl 20. Authorised officers can deny entry to persons or vehicles who have not paid and may direct those who entered without payment to leave (cl 20(2)-(3)). Ensure ticketing systems or permit systems are compliant with Water NSW fee arrangements.

11. Records, registers and transparency

• Maintain contemporaneous records of any consents received, signage relied upon, authorised officer interactions, disposal or removal directions and prosecutions or notices. Check the Regulatory Authority’s public register under cl 8 to monitor notices and convictions that may affect operations or inform risk assessments.

12. Legal planning and contract protections

• Where activities require ongoing access or involve removal risk (for example, facilities near controlled areas), include contractual protections, indemnities and expectations about signage-based consents, revocation rights, and immediate removal by authorised officers. Because cl 10(4) allows revocation of written consent at any time, contracts should address revocation contingencies.

13. Insure and budget for enforcement risk

• Given the large maximum penalties for many contraventions (400/200 penalty units) and the availability of fixed penalty notices for many offences (Schedule 3), ensure insurance and budgeted reserves account for potential penalty exposure. Note that some penalty notice amounts differ by person and corporation; consult Schedule 3 and verify current penalty unit values.

14. Engage early with Water NSW and the Regulatory Authority

• For activities that may affect catchment quality, engage early with Water NSW to obtain appropriate consents, to clarify conditions and to obtain written documentation of any class-based permissions provided by signage. Early engagement reduces the risk of enforcement action and supports coordinated environmental management.

15. Legal review for complex or overlapping permissions

• Where activities overlap with EP licences, local government approvals or water licences, obtain legal review to determine the order of priority and precise interplay, particularly given cl 6 and cl 7 which allocate jurisdiction and precedence in certain cases.

Following these steps aligns operations with the Regulation’s core mechanics: identification of regulated land, obtaining express authorisation, adherence to signage and directions, pesticide and waste restrictions, preparedness for authorised officer enforcement, and firm recordkeeping and contractual arrangements to manage the risks created by revocable consents and overlapping regulatory jurisdictions.