Water Resources (Barossa Prescribed Water Resources Area) Regulations 2005

These regulations re‑declare and expand a prescribed water resources area in South Australia and set time limits for a newly added sub‑area. Mechanically, they:

• Reconstitute the Barossa Prescribed Water Resources Area to consist of two mapped parts: the area shown on GRO Plan No 327/1992 (the Barossa area) and the area shown on GRO Plan No 128/2004 (the Greenock Creek catchment area) (regulation 3).
• Declare particular watercourses and wells within those mapped areas to be "prescribed" under the Water Resources Act 1997 (the Act). Specifically, the North Para River and its tributaries within the Barossa area are declared prescribed watercourses; wells already in the Barossa area and wells drilled there after these regulations commence are prescribed wells; and all watercourses in the Greenock Creek catchment area are prescribed watercourses (regulation 4(1)).
• Declare the consolidated Barossa Prescribed Water Resources Area to be a surface water prescribed area under section 8(2) of the Act (regulation 4(2)).
• Preserve the operation of section 7(5) of the Act in respect of the Barossa Prescribed Water Resources Area by expressly not excluding it (regulation 4(3); the preamble describes the practical effect claimed by the makers).
• Establish temporal rules for the Greenock Creek catchment area: an establishment period that ran from 18 February 1999 until the commencement of the prescribed period on 20 May 2004, and a prescribed period that commenced on 20 May 2004 and will end three years after these regulations come into operation (regulation 5(1)-(2)).
• Revoke, by Schedule 1, the earlier proclamation made under the Water Resources Act 1990 and the Water Resources (Surface Water Prescribed Area,Barossa) Regulations 1998 (Schedule 1).

The regulations operate by reference to the Act (they are made pursuant to section 8(1) and (2) of the Act, as stated in regulation 4 and the preamble). They change the formal legal status of named watercourses and wells from the older instruments (proclamation/regulations under earlier statutory regimes) to the new status of "prescribed" under the Act, and they fold an additional mapped catchment into the Barossa Prescribed Water Resources Area while imposing a finite prescribed period for that catchment (regulations 3-5, Schedule 1). The regulations come into force on their date of making (regulation 2).

The preamble explains the stated policy rationale for these mechanical changes: to continue existing declarations made under the prior Water Resources Act 1990, to declare additional prescribed watercourses and an additional surface water prescribed area, to add that additional area to the Barossa area and rename the whole the Barossa Prescribed Water Resources Area, and to leave in place the domestic and stock‑watering exception said to be provided by section 7(5) of the Act (preamble clause 5). The regulations implement those effects by re‑declaration, by alteration of the territorial definition, by temporal specification for the Greenock Creek catchment area, and by explicit non‑exclusion of section 7(5) (regulation 4).

The instrument is short and tightly framed around a handful of statutory concepts. All of them are defined or referenced within the regulations themselves.

• Act: the regulations define "Act" as the Water Resources Act 1997 (regulation 3). All operative provisions are expressed as exercises of power under that Act (regulation 4 refers explicitly to section 8(1) and (2) of the Act).
• Barossa Prescribed Water Resources Area: a defined geographic construct made up of two mapped components, namely the area shown on GRO Plan No 327/1992 and the area shown on GRO Plan No 128/2004 (regulation 3). The regulations treat that composite area as a single prescribed area for the purposes of the Act.
• Prescribed watercourse and prescribed well: the instrument converts earlier "proclaimed" designations into the Act's concept of "prescribed" watercourses and wells. Regulation 4(1) declares various named watercourses and wells within the mapped area to be prescribed watercourses and prescribed wells. The accompanying footnote (regulation 4(1) note) points users back to the earlier proclamation referred to in the preamble.
• Surface water prescribed area: the consolidated Barossa Prescribed Water Resources Area is declared to be a surface water prescribed area under section 8(2) of the Act (regulation 4(2)). The regulations do not set out the legal consequences of that label; they simply make the declaration.
• Establishment period and prescribed period: as to the Greenock Creek catchment area, the regulations identify an establishment period (18 February 1999 until commencement of the prescribed period on 20 May 2004) and a prescribed period (commencing 20 May 2004 and ending three years after the regulations come into operation) (regulation 5(1)-(2)). The notes record analogous past establishment and prescribed periods for the Barossa area under the revoked regulations.
• Revocation: Schedule 1 revokes the earlier proclamation (the 1992 proclamation made under the Water Resources Act 1990) and revokes the 1998 regulations (Schedule 1 items 1-2). The preamble explains the statutory continuity pathway by reference to Schedule 3, clause 2 of the Water Resources Act 1997: proclamations under the 1990 Act in force immediately before commencement of the Act continue as though they were regulations under section 8(1) of the Act and may be varied or revoked by regulation (preamble clause 4).

The regulations do not define rights, offences, licensing thresholds, notification requirements, monitoring or penalties. They operate primarily as mapping, temporal and status instruments: assigning the "prescribed" label to specified watercourses and wells, aggregating mapped areas, specifying dates for transition, and revoking prior instruments. The regulations also expressly preserve the operation of section 7(5) of the Act in relation to the Barossa Prescribed Water Resources Area (regulation 4(3)); the preamble explains the practical consequence the makers intended (permitting occupiers to take water for domestic purposes and to water stock other than intensively farmed stock).

The regulations change the statutory status of land, watercourses and wells in specific mapped areas; the directly affected parties are those with physical or operational connections to those mapped areas and to anyone intending to drill wells thereafter. Concretely, the primary groups affected are:

• Occupiers and landholders within the mapped areas shown on GRO Plan No 327/1992 (the Barossa area) and GRO Plan No 128/2004 (the Greenock Creek catchment area), because the regulations declare their areas to be part of the Barossa Prescribed Water Resources Area (regulation 3; regulation 4(2)). Occupiers are also mentioned in the preamble as the class intended to retain the section 7(5) domestic/stock watering entitlement.
• Owners and operators of wells already situated in the Barossa area, because those wells are declared to be prescribed wells (regulation 4(1)(b)). That status typically triggers any registration, licensing or operational requirements that the Act associates with prescribed wells, although the regulations do not themselves set those requirements.
• Persons who drill wells in the Barossa area after the commencement of the regulations, because the regulations expressly declare wells drilled after commencement to be prescribed wells (regulation 4(1)(b)). New well drillers therefore face the immediate effect of "prescribed" status from the moment of drilling.
• Water users and managers who rely on the North Para River and its tributaries within the Barossa area, and users of any watercourses in the Greenock Creek catchment area, because those watercourses are declared to be prescribed watercourses (regulation 4(1)(a)-(c)). This category includes agricultural water users, domestic users, irrigation enterprises and potential abstractors.
• Parties with historical legal interests tied to the earlier proclamation or the 1998 regulations, because Schedule 1 revokes the earlier proclamation and the 1998 regulations. Those parties must understand how their old rights or obligations have been preserved or transformed by the new instrument and the Act (Schedule 1; preamble clauses 1-4).
• Regulators and administrative bodies charged with administering the Act: while the regulations do not name the decision‑maker, they exercise powers available under section 8 of the Act (regulation 4). The practical effect is that the administrative regime under the Act will apply to the declared areas, watercourses and wells.

The regulations also have temporal effects. The Greenock Creek catchment area is placed on a specified timetable: an establishment period from 18 February 1999 until 20 May 2004, and a prescribed period starting 20 May 2004 and ending three years after the regulations commence (regulation 5). Users and decision‑makers therefore face a time‑limited regulatory state for that sub‑area, which will require attention as the end of the prescribed period approaches.

The regulations themselves operate mainly to declare and describe; they do not create detailed duties or sanctions. Nonetheless, they convert certain factual situations into legal categories under the Act, and those categories typically carry duties and rights under the Act. The regulations make the following concrete changes to legal status, which in turn trigger (but do not specify) duties and rights under the Act:

• Conversion of "proclaimed" designations into "prescribed" status. The preamble explains that earlier proclamations (made under the Water Resources Act 1990) continued as regulations under the Act and that the regulations are being made to continue those declarations as prescribed watercourses and prescribed wells under the Act (preamble clause 5(a); regulation 4(1) note). The legal effect is a status change of identified watercourses and wells to the Act's "prescribed" categories, so duties attached by the Act to prescribed watercourses or wells will now apply to these features.
• Declaration of surface water prescribed area. Regulation 4(2) declares the Barossa Prescribed Water Resources Area a surface water prescribed area pursuant to section 8(2) of the Act. The duties and rights that attach to a "surface water prescribed area" are not set out in these regulations; they will be found in the Act. The regulation nevertheless places the designated area within the Act's surface water regime.
• Preservation of section 7(5). The regulations expressly do not exclude the operation of section 7(5) of the Act in relation to the Barossa Prescribed Water Resources Area (regulation 4(3)). The preamble states the intended practical right that the makers attach to that preservation: allowing occupiers of land in the area to take water for domestic purposes or watering stock (other than stock subject to intensive farming) (preamble clause 5(e)). Therefore, the right or exemption that section 7(5) provides will remain operative in the Barossa area; the specific content and limits of that right, including any required qualifications, must be read directly from section 7(5) of the Act.
• Temporal limitation for Greenock Creek catchment area. Regulation 5 sets out that the Greenock Creek catchment area had an establishment period from 18 February 1999 to the commencement of the prescribed period on 20 May 2004 and that the prescribed period started on 20 May 2004 and will end three years from the day these regulations come into operation (regulation 5(1)-(2)). The temporal classification may affect what duties or restrictions are in force during prescribed and establishment periods under the Act; the regulations themselves set the dates but leave the substantive content to the Act.

The regulations are silent on penalties, enforcement procedures, and the administrative apparatus for compliance and dispute resolution. They function as declaratory and mapping instruments; they do not create or describe offences, fines, inspection powers, licence application procedures, enforcement processes or appeal pathways. Accordingly:

• No penalty provisions appear in the text of these regulations. The instrument contains no offence or sanction clauses, nor does it create enforcement mechanisms within its text.
• Enforcement and penalties, if any, will derive from the Water Resources Act 1997 and other relevant statutory instruments that the Act authorises. The regulations are expressly made pursuant to section 8 of the Act (see regulation 4(1)-(2) and the preamble's reference to section 8), so any enforcement powers and penalty provisions that apply when an area, well or watercourse is "prescribed" will be found in the Act itself.
• The regulations do not identify the decision‑maker who will administer the prescribed area, issue licences or take enforcement action. They merely make the declarations and revocations that bring the specified areas into the Act's regime. Administrative responsibility therefore depends on the roles and powers established by the Act.
• The preservation of section 7(5) (regulation 4(3)) must be read with the Act to determine the legal boundary between permitted domestic/stock watering and activities that require authorisation or may attract enforcement. The regulations do not define what constitutes domestic use, stock watering, or intensive farming, nor do they set thresholds for permissible extraction under section 7(5); those definitions and thresholds are for the Act or subsidiary instruments made under the Act.
• The time‑bound nature of the Greenock Creek catchment area prescribed period (regulation 5(2)) may affect enforcement options and the duration of any restrictions that apply under the Act during the prescribed period. Once the prescribed period ends, the statutory regime that applies to that catchment may change; the regulations do not prescribe transitional enforcement treatments beyond setting the dates.

For compliance planning and enforcement risk assessment, the practical implication is that one must consult the Water Resources Act 1997 and any subordinate instruments under it to determine applicable offences, penalties, inspection, monitoring and appeal rights. The regulations modify the spatial and temporal coverage of the Act but leave the substantive remedial and punitive architecture to the Act.

The regulations are explicitly framed in relation to the Water Resources Act 1997 and historical instruments made under the earlier Water Resources Act 1990. The preamble and operative provisions set out that interaction in specific terms:

• Continuity from the 1990 Act to the 1997 Act. The preamble records that a proclamation under section 33(1) and (2) of the Water Resources Act 1990 had declared the Barossa area watercourses and wells as proclaimed watercourses and wells, and that the proclamation came into operation on 1 July 1992 (preamble clauses 1-2). It then records that Schedule 3, clause 2 of the Water Resources Act 1997 provides that proclamations under the 1990 Act in force immediately before the commencement of the 1997 Act continue in force as though they were regulations under section 8(1) of the 1997 Act and may be varied or revoked by regulation (preamble clause 4). The current regulations operate with that statutory continuity in mind.
• Revocation and replacement. Schedule 1 of the regulations expressly revokes the earlier proclamation referred to in the preamble and the Water Resources (Surface Water Prescribed Area,Barossa) Regulations 1998 (Schedule 1). The preamble identifies the 1998 regulations as having been made pursuant to section 8 of the Act (preamble clause 3) and explains that the present regulations continue and make elaborations to those declarations (preamble clause 5). Thus, the instrument effects a formal revocation and replacement of prior subordinate instruments, aligning the legal designations with the 1997 Act.
• Reference to the Act for substantive change. The operative declarations are made "pursuant to section 8(1) of the Act" and the declaration of a surface water prescribed area is "pursuant to section 8(2) of the Act" (regulation 4(1)-(2)). The regulations therefore rely on the Act for their enabling power and leave the substance of regulation (licences, duties, penalties, administration) to the Act.
• Preservation of s7(5). The regulations make an explicit choice not to exclude the operation of section 7(5) of the Act in relation to the Barossa Prescribed Water Resources Area (regulation 4(3)). The preamble describes the intended substantive consequence of this non‑exclusion (allowing occupiers to take water for domestic use and to water stock except for intensive farming) (preamble clause 5(e)), but the legal content of that interaction resides in the Act itself.
• Mapped boundaries and legal description. The regulations identify the relevant geographic areas by reference to GRO plan numbers (GRO Plan No 327/1992 and GRO Plan No 128/2004) (regulation 3). That ties the regulations to the cadastral and mapping regime rather than attempting to define boundaries in text. Any interaction with land administration, easements, title instruments, planning laws or development controls will thus depend on how those regimes reference GRO plans and on the broader statutory framework; the regulations themselves do not create cross‑statutory derogations or exceptions.

The regulations were made in 2005 and are the principal instrument for the Barossa Prescribed Water Resources Area under the Water Resources Act 1997 at that time. The legislative history entries contained in the instrument and the preamble provide a concise chain of instruments and dates relevant to the status of the Barossa area:

• 1992 proclamation: The preamble records a proclamation made pursuant to section 33(1) and (2) of the Water Resources Act 1990, published in the Gazette on 14 May 1992 (preamble clause 1). That proclamation declared the North Para River and its tributaries within the Barossa area to be proclaimed watercourses and declared wells in the Barossa area to be proclaimed wells, including wells drilled after the proclamation (preamble clause 1). The proclamation came into operation on 1 July 1992 (preamble clause 2).
• 1998 regulations: Regulations made pursuant to section 8 of the Water Resources Act 1997 were the Water Resources (Surface Water Prescribed Area,Barossa) Regulations 1998, published in the Gazette on 17 December 1998 (preamble clause 3). Those regulations declared the Barossa area to be a surface water prescribed area under the 1997 Act.
• 2005 replacement regulations: These Water Resources (Barossa Prescribed Water Resources Area) Regulations 2005 were made and commenced on the day they were made (regulation 2); the legislative history identifies Gazette 19 May 2005 p1295 as the entry for Principal regulations 2005 No 34 (Legislative history). The regulations were made to continue, vary and expand the earlier declarations, to add the Greenock Creek catchment area to the Barossa area, and to preserve the operation of section 7(5) in the area (preamble clause 5).
• Revocations effected by these regulations: Schedule 1 revokes the 1992 proclamation referred to in the preamble and revokes the 1998 regulations (Schedule 1 items 1-2).

The instrument also records earlier temporal designations for establishment and prescribed periods for the Barossa area under the revoked regulations (regulation 5 notes). Specifically, the note to regulation 5(1) records that the establishment period for the Barossa area commenced on 5 December 1991 and ended at the commencement of the prescribed period on 18 December 1997; the note to regulation 5(2) records that the Barossa area's prescribed period commenced on 18 December 1997 and ended on 31 December 1999 (these notes refer back to regulation 4 of the revoked regulations).

No amendments beyond the 2005 instrument are recorded in the text provided. The instrument’s own Schedule 1 performs the function of updating and consolidating the status of the Barossa area by revoking the predecessor instruments and by redefining the prescribed area to include the Greenock Creek catchment area for a specified period. Practitioners should consult the current consolidated legislation (and any subsequent amending regulations or legislative action after 2005) to check whether later amendments have altered the declared areas, the durations of prescribed periods, or the relationship with section 7(5).

The regulations contain no references to litigation, court decisions, appeals or adjudications. The instrument itself does not record any judicial consideration, and there are no cases or judgments named in the text. All judicial issues that might arise from the operation of the regulations , for example disputes over the interpretation of mapped boundaries (GRO plan references), the scope of section 7(5) rights preserved by regulation 4(3), the duration and effect of the Greenock Creek catchment prescribed period, or contests involving licence refusals or enforcement under the Act , would be matters for the courts and tribunals empowered to hear disputes under the Water Resources Act 1997 and related procedural rules, but no such cases are referenced in the regulations.

Given the absence of litigation history in the instrument, practitioners requiring precedent for interpretation or enforcement outcomes must search case law and tribunal records outside this instrument. The regulations themselves will need to be read together with the Act to identify the legal pathways by which litigation might be brought, the bodies who might make decisions subject to review, and the statutory rights of appeal and review. For example, the non‑exclusion of section 7(5) raises potential interpretive questions as to the scope of that provision in practice; any contested interpretation would be resolved by reference to the Act and by the courts, but no litigation record is provided here.

In short, the instrument provides no litigation history; any relevant precedents will be found in cases decided under the Water Resources Act 1997 or earlier cases under the 1990 Act that the courts might still consider persuasive for transitional or interpretive issues.

Several features of the regulations can create practical traps if missed. These are matters for attention because they have operational, timing and compliance consequences that the text alone signals rather than resolves.

• Mapped boundaries as legal source. The regulations define the Barossa Prescribed Water Resources Area by reference to GRO plan numbers (GRO Plan No 327/1992 and GRO Plan No 128/2004) (regulation 3). That means the precise legal boundary is determined by those plans, not by descriptive text in the regulation. If a client’s interest depends on being inside or outside the area, legal advice should be based on inspection of the GRO plans, not on a generalised map or description. Misreading the mapping reference or relying on a different map may lead to incorrect conclusions about regulatory coverage.
• New wells are immediately "prescribed". Regulation 4(1)(b) declares that wells drilled in the Barossa area after the commencement of these regulations are prescribed wells. Anyone proposing to drill a well in the Barossa area after commencement cannot assume post‑commencement wells escape the prescribed regime; the declaration is prospective and immediate. That has potential compliance costs for new well drillers and owners.
• Temporal limit for Greenock Creek catchment area. Regulation 5(2) records that the Greenock Creek catchment area prescribed period commenced on 20 May 2004 and "will end 3 years from the day on which these regulations come into operation." Because the regulations commence on the day they are made (regulation 2) and were published in the Gazette on 19 May 2005 (Legislative history), the prescribed period for this catchment is expressly time‑limited. Parties relying on controls or relief that exist only during a prescribed period must note the end date and plan for the legal consequences after expiry. The regulation does not state what legal regime applies after the prescribed period ends; that requires reference to the Act and any follow‑on regulations.
• Revocation with re‑declaration. Schedule 1 revokes the earlier proclamation and the 1998 regulations, but regulation 4 recreates many of the earlier designations as "prescribed" under the Act. Practitioners should take care to review both the revoked instruments and these regulations to understand whether any historical permissions, transitional grandfathering, or specific exclusions that applied under the old instruments are preserved or lost. The preamble indicates continuity via Schedule 3, clause 2 of the Act (preamble clause 4), but the exact content and any transitional protections must be confirmed against the Act and its schedules.

Compliance under these regulations requires reading them together with the Water Resources Act 1997, because the regulations make declarations that trigger the Act’s substantive regime without themselves prescribing operational obligations. Practical compliance steps, grounded in what the regulations say, are:

1. Identify geographic coverage using GRO plans. Use GRO Plan No 327/1992 for the Barossa area and GRO Plan No 128/2004 for the Greenock Creek catchment area, because the regulated area is defined by those plans (regulation 3). Do not rely on informal maps. Confirm whether the land, wells or watercourses of interest fall within the mapped boundaries because all declarations in regulation 4 apply only within those mapped areas.

2. Determine whether a well is a "prescribed well". If a well is situated within the Barossa area at the time these regulations commence, it is declared a prescribed well (regulation 4(1)(b)). Any well drilled in the Barossa area after the regulations commence is likewise a prescribed well (regulation 4(1)(b)). Treat all such wells as falling within whatever registration, licensing or operational duties the Act imposes on prescribed wells.

3. Identify whether a watercourse is a "prescribed watercourse". The North Para River and its tributaries within the Barossa area are declared prescribed watercourses (regulation 4(1)(a)). All watercourses in the Greenock Creek catchment area are declared prescribed watercourses (regulation 4(1)(c)). For activities affecting those watercourses (abstraction, diversion, works, discharges), consult the Act to ascertain whether permits, licences or approvals are required.

4. Confirm applicability of section 7(5). Regulation 4(3) expressly preserves the operation of section 7(5) in the Barossa Prescribed Water Resources Area. Practitioners should obtain the text of section 7(5) from the Act to advise on the precise scope of the domestic and stock‑watering entitlement that remains available. Do not rely solely on the preamble’s summary; check the Act for definitions, conditions and limits.

5. Observe temporal limits for the Greenock Creek catchment area. Regulation 5(2) states that the prescribed period for Greenock Creek commenced on 20 May 2004 and will end three years from the day these regulations come into operation. Note the end point and plan for the consequences at expiry by consulting the Act and any subsequent instruments or policy statements that may follow. If any ongoing compliance obligations or approvals depend on the prescribed period status, ensure renewal or transition steps are taken in advance.