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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Natural Resources Management (Water Resources and Other
Matters) Amendment Bill 2007
A BILL FOR
An Act to amend the Natural Resources Management Act 2004 and
to make related amendments to the Ground Water (Qualco-Sunlands) Control
Act 2000.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Natural Resources Management
Act 2004 to facilitate interstate trade in water
entitlements
4 Variation of
section 100—Interpretation
5 Variation of
section 101—Declaration of levies
6 Variation of
section 104—Liability for levy
7 Substitution of
section 107
107 Cancellation etc of entitlement for
non-payment of levy
8 Amendment of section 112—Recovery
rights with respect to unpaid levy
9 Amendment of section
115—Declaration of penalty in relation to the unauthorised or unlawful
taking or use of water
10 Amendment of section 127—Water affecting
activities
11 Insertion of section 146A
146A Special
authority to take water in South Australia under interstate
agreement
Part 3—Amendment of Natural Resources Management
Act 2004 to address administrative matters and revise water
entitlements
12 Amendment of section
3—Interpretation
13 Amendment of section 5—Territorial and
extra-territorial operation of Act
14 Amendment of
section 38—Annual reports
15 Amendment of section 53—General
powers
16 Substitution of
section 56
56 Accounts
17 Amendment of
section 57—Annual reports
18 Amendment of section
76—Preparation of water allocation plans
19 Amendment of section
80—Submission of plan to Minister
20 Amendment of section
81—Review and amendment of plans
21 Amendment of
section 89—Amendment of plans without formal
procedures
22 Amendment of section 92—Contributions by constituent
councils
23 Amendment of section 100—Interpretation
24 Amendment of
section 101—Declaration of levies
25 Repeal of section
102
26 Amendment of section 103—Special purpose water
levy
27 Amendment of section 104—Liability for levy
28 Amendment of
section 106—Determination of quantity of water taken
29 Substitution of
section 107
107 Cancellation etc of entitlement for
non-payment of levy
30 Substitution of section
112
112 Recovery rights with respect to unpaid
levy
31 Amendment of section 114—Refund of
levies
32 Amendment of section 115—Declaration of penalty in relation
to unauthorised or unlawful taking of water
33 Amendment of section
124—Right to take water subject to certain requirements
34 Amendment of
section 126—Determination of relevant authority
35 Amendment of section
127—Water affecting activities
36 Amendment of section
129—Activities not requiring a permit
37 Amendment of section
130—Notice to rectify unauthorised activity
38 Repeal of
section 140
39 Substitution of Chapter 7 Part 3
Part 3—Licensing and associated rights and entitlements
Division 1—Water licences
146 Nature of water
licences
147 Water licences—applications and
matters to be considered
148 Issuing of water
licences
149 Variation of water
licences
150 Transfer of water
licences
151 Surrender of water
licences
Division 2—Allocation of water
152 Source of
allocation
153 Issuing of water
allocation
154 Water allocations—matters to be
considered
155 Reduction of water
allocations
156 Variation of water
allocations
157 Transfer of water
allocations
158 Surrender of water
allocations
Division 3—Water resource works approvals
159 Water
resource works approvals—applications and matters to be
considered
160 Issuing of
approvals
161 Variation of
approvals
162 Notice
provisions
163 Cancellation if works not constructed or
used
164 Nature of approval
Division 4—Site use approval
164A Site use
approval—applications and matters to be
considered
164B Issuing of
approvals
164C Variation of
approvals
164D Notice
provisions
164E Cancellation
164F Nature
of approval
Division 5—Delivery capacity
entitlements
164G Delivery capacity
entitlements—applications and matters to be
considered
164H Issuing of delivery capacity
entitlements
164I Delivery capacity entitlements to
relate to point of extraction
164J Variation of
delivery capacity entitlements
164K Transfer of
delivery capacity entitlements
164L Surrender of
delivery capacity entitlements
Division 6—Interstate agreements
164M Interstate
agreements
Division 7—Related matters
164N Allocation on
declaration of prescribed water resource
164O Schemes
to promote the transfer or surrender of certain
entitlements
164P Consequences of breach of water
management authorisations
164Q Effect of cancellation
of water management authorisations
164R Law governing
decisions under this Part
40 Amendment of
section 167—Allocation of reserved water
41 Amendment of section
173—Water recovery and other rights subject to board's functions and
powers
42 Amendment of section 174—Preliminary
43 Amendment of
section 178—Sale of contaminated items
44 Amendment of section
179—Offence to release animals or plants
45 Amendment of section
202—Right of appeal
46 Amendment of section
211—Compensation
47 Amendment of section 226—NRM
Register
48 Insertion of Schedule 3A
Schedule 3A—The Water Register
Part
1—Preliminary
1 Interpretation
2 Applications
3 Minister's
power to require information
4 Form of record and
management of register
5 Authentication of
searches
Part 2—Registration of entitlements issued under
Chapter 7
6 Registration of
entitlements
7 Special arrangement as to
transfers
Part 3—Registration of security
interests
8 Creation of security
interests
9 Priority of
interests
10 Variation of registered security
interests
11 Transfers
12 Discharge
of registered interests
13 Enforcement of security
interests
Part 4—Caveats
14 Caveats
Part
5—Miscellaneous
15 Devolution
16 Recording
monetary consideration
17 Correction of
instruments
18 Cancellation of
registration
19 Address for service of
notices
20 ERD Court
49 Amendment of
Schedule 4—Repeals and transitional provisions
Schedule 1—Related amendments and transitional
provisions
Part 1—Amendment of Ground Water (Qualco-Sunlands)
Control Act 2000
1 Amendment of
section 3—Interpretation
2 Amendment of
section 40—Waterlogging and salinity management
allocation
3 Substitution of section 67
67 Problem of
disposal of water not to be considered on application for water licence
etc
Part 2—Transitional
provisions
4 Interpretation
5 Water licences
6 The Water
Register
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Natural Resources Management (Water
Resources and Other Matters) Amendment Act 2007.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the Acts Interpretation Act 1915 does
not apply to this Act or a provision of this Act.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Natural Resources Management
Act 2004 to facilitate interstate trade in water
entitlements
4—Variation of
section 100—Interpretation
Section 100(2)—delete subsection (2) and substitute:
(2) For the purposes of this Division but not for any other
purpose—
(a) a water licence that is endorsed with a water (holding) allocation
will be taken in respect of that allocation to give the holder of the licence
the right to take the quantity of water allocated; and
(b) a right to an allocation of water under the terms of an Interstate
Water Entitlements Transfer Scheme will be taken in respect of that allocation
to give the holder of the right the right to take the quantity of water
allocated.
5—Variation of
section 101—Declaration of levies
(1) Section 101(1)(a)—delete paragraph (a) and
substitute:
(a) are the holders of—
(i) water licences granted in relation to a water resource within a
specified NRM region; or
(ii) a right to an allocation of water under the terms of an Interstate
Water Entitlements Transfer Scheme; or
(2) Section 101(10)—after "a water allocation and"
insert:
insofar as is relevant
6—Variation of
section 104—Liability for levy
(1) Section 104(1)—delete subsection (1) and
substitute:
(1) A person who—
(a) holds a water licence at any time during a financial year in respect
of which a levy for the right to take water has been declared is, subject to
subsection (8), liable to pay to the Minister the full amount of the levy
whether he or she holds the licence throughout the year or not; or
(b) who holds a right to an allocation of water under the terms of an
Interstate Water Entitlements Transfer Scheme at any time during a financial
year in respect of which a levy for the right to take water has been declared is
liable to pay the full amount of the levy whether he or she holds the right
throughout the year or not.
(2) Section 104(4)(a)—after subparagraph (ii) insert:
(iia) if a right to an allocation of the water arises under the terms of
an Interstate Water Entitlements Transfer Scheme and the right was not in
existence at the commencement of the financial year to which the levy relates
but arose after that commencement—at the time when the right to the
allocation arose under the terms of that scheme; or
(3) Section 104(9)—after "the licence" insert:
or the terms of the Interstate Water Entitlements Transfer Scheme
Section 107—delete the section and substitute:
107—Cancellation etc of entitlement for non-payment
of levy
(1) If a person who holds a water licence, a right to an allocation of
water under the terms of an Interstate Water Entitlements Transfer Scheme or an
imported water permit has failed to pay a levy, or an instalment of a levy,
within 3 months after being served with a notice under section 105, the
Minister may serve further notice on the person requiring payment within a
period of not less than 1 month and stating that the licence, right or permit
(as the case may be) may be cancelled, suspended or varied by the Minister if
the amount is not paid within that time.
(2) The Minister may cancel, suspend or vary the water licence, right or
imported water permit by 7 days written notice served on the holder of the
licence or permit if the levy or instalment is not paid in accordance with the
notice referred to in subsection (1).
8—Amendment of
section 112—Recovery rights with respect to unpaid
levy
Section 112—after its present contents, now to be designated as
subsection (1), insert:
(2) In addition, any levy that is not paid in accordance with a notice
under section 105, together with any interest under section 110, may
be recovered by the Minister as a debt from any person who is liable to pay the
levy.
(3) No statute of limitations bars or affects any action or remedy for
recovery by the Minister of an amount under subsection (2).
(4) Any action to recover any levy (and interest) as a debt does not
prejudice any action to recover any levy (and interest) as a charge on land, and
vice versa, but any amount sought to be recovered under 1 right must be adjusted
to take into account any amount actually recovered under the other
right.
9—Amendment of
section 115—Declaration of penalty in relation to the unauthorised or
unlawful taking or use of water
(1) Section 115(1)(a)—delete paragraph (a) and
substitute:
(a) a person who is—
(i) a licensee who takes water in excess of the water allocation of a
water licence; or
(ii) the holder of a right to an allocation of water under the terms of an
Interstate Water Entitlements Transfer Scheme who takes water in excess of the
relevant water allocation; or
(2) Section 115(1)(c)—after "water licence" insert:
or a right to an allocation of water under the terms of an Interstate Water
Entitlements Transfer Scheme
10—Amendment of
section 127—Water affecting activities
(1) Section 127(1)(a)(i)—after subsubparagraph (B) insert:
(C) under an IWETS authority issued by the Minister under
section 146A in respect of a right to an allocation of water under the
terms of an Interstate Water Entitlements Transfer Scheme; or
(2) Section 127(6)(b)—after "a permit" insert:
, or an IWETS authority under section 146A,
After section 146 insert:
146A—Special authority to take water in South
Australia under interstate agreement
(1) The Minister may, in order to facilitate the interstate trading of
allocations of water, so as to provide for authority to a person to take water
in South Australia under the terms of an Interstate Water Entitlements Transfer
Scheme, issue an authority (to be called an IWETS authority) under
this section.
(2) An application for an authority under this section must be in a form
approved by the Minister and must be accompanied by the prescribed
fee.
(3) The Minister may refuse to grant an authority under this section on
the grounds that apply under subsection (3) of section 146 as if the
application for the authority were an application for a licence under that
section.
(4) The Minister may grant an authority under this section that is subject
to—
(a) conditions prescribed from time to time by the regulations;
and
(b) such other conditions as are endorsed on the authority by the
Minister.
(5) An authority under this section—
(a) remains in force until the authority is terminated by or under this
Act; and
(b) may specify intervals at which the Minister may vary the conditions of
the authority.
(6) Without limiting the operation of subsection (4), a condition of
an authority under this section that relates to a water resource within the
Murray-Darling Basin may include—
(a) a requirement that the holder of the authority enter into a bond in
such sum and subject to such terms and conditions specified by the Minister, or
enter into some other arrangement specified by the Minister (which may include
the payment of a sum or sums of money into an account specified by the
Minister), to ensure that money is available to address the costs of any damage
to the River Murray (being the costs of any such damage within the meaning of
section 3(5) of the River Murray Act 2003) that may be
attributable to the taking or use of water by virtue of the licence;
(b) a requirement that the holder of the authority—
(i) develop to the satisfaction of the Minister an environment improvement
program containing requirements specified by the Minister, and then comply with
the requirements of that program to the satisfaction of the Minister;
or
(ii) participate in a specified environment improvement program (including
a program that applies with respect to any part of the River Murray);
(c) a requirement that the holder of the authority participate in any
other form of scheme to protect, restore or otherwise benefit the River Murray
specified by the Minister (including a scheme established by the Minister or any
other person or body that has effect in relation to any part of the River Murray
and including by payment of a sum or sums of money into an account established
or used for the purposes of the scheme).
(7) Without limiting the operation of subsection (6), a condition of
a kind referred to in that subsection may be imposed with respect to any damage
to the River Murray occurring before the commencement of this section.
(8) A condition of a kind referred to in subsection (6) may also be
imposed with respect to damage to the River Murray occurring before the
imposition of the condition.
(9) Sections 147 to 164 (inclusive) will apply to an IWETS authority
issued under this section as if it were a water licence issued under
section 146, subject to such modifications as may be necessary for the
purpose or as may be prescribed by regulations made for the purposes of this
provision.
(10) An IWETS authority is personal property vested in the holder of the
licence and will pass to another person under Division 3 (as applied by
subsection (9) or (subject to that Division)) in accordance with any other
law for the passing of property.
Part 3—Amendment
of Natural Resources Management
Act 2004 to address administrative matters and revise water
entitlements
12—Amendment of
section 3—Interpretation
(1) Section 3(1), definition of construct—after
"alter" insert:
, reduce, enlarge
(2) Section 3(1)—after the definition of construct
insert:
consumptive pool means the water that will from time to time
be taken to constitute the resource within a particular part of a prescribed
water resource for the purposes of Chapter 7, as
determined—
(a) by or under a water allocation plan for that water resource;
or
(b) in prescribed circumstances—by the Minister;
(3) Section 3(1)—after the definition of CPI
insert:
delivery capacity entitlement means a delivery capacity
entitlement issued under Chapter 7 Part 3 Division 5;
(4) Section 3(1), definition of Interstate Water Entitlements
Transfer Scheme—delete the definition and substitute:
Interstate Water Entitlements Transfer Scheme or
IWETS means—
(a) a scheme for the transfer of entitlements between 2 or more States
under the Agreement approved under the Murray-Darling Basin
Act 1993; or
(b) an agreement between South Australia and 1 or more other States or a
Territory entered into under Chapter 7 Part 3
Division 6;
(5) Section 3(1)—after the definition of SA Water
insert:
Schedule 3A entitlement means—
(a) a water licence; or
(b) a water access entitlement (or part of a water access entitlement);
or
(c) a water allocation (or part of a water allocation);
security interest means a mortgage or charge over, or other
arrangement of a kind prescribed by the regulations in respect of, a water
management authorisation that secures the payment of a debt or the performance
of some other obligation under a contract or other legally enforceable
arrangement;
(6) Section 3(1)—after the definition of sell
insert:
site use approval means a site use approval issued under
Chapter 7 Part 3 Division 4;
(7) Section 3(1)—after the definition of vehicle
insert:
water access entitlement—see section 146(2);
(8) Section 3(1), definition of water allocation,
(a)—delete paragraph (a) and substitute:
(a) in respect of a water licence, means an allocation of water under the
terms of the licence in accordance with Chapter 7 Part 3
Division 2 and includes, if the context so requires, a component or part of
such an allocation, or the water available in connection with the
entitlement;
(ab) in respect of an Interstate Water Entitlements Transfer Scheme, means
an allocation of water under the terms of that scheme and the provisions of
Chapter 7 Part 3 Division 2 and includes, if the context so
requires, a component or part of such an allocation, or the water available in
connection with the entitlement;
(9) Section 3(1), definition of water (holding)
allocation—delete the definition
(10) Section 3(1), definition of water licence—delete
the definition and substitute:
water licence means a licence granted by the Minister under
section 146;
water management authorisation means—
(a) a water licence; or
(b) a water allocation; or
(c) a site use approval; or
(d) a water resource works approval; or
(e) a delivery capacity entitlement;
The Water Register—see section 226(1a) and
(1b);
(11) Section 3(1)—after the definition of water
resource insert:
water resource works approval means a water resource works
approval issued under Chapter 7 Part 3 Division 3;
(12) Section 3(1), definition of water (taking)
allocation—delete the definition
(13) Section 3(1)—after the definition of wetland
insert:
works means—
(a) dams or reservoirs;
(b) wells or channels;
(c) pumps, pumping stations, pipes and tanks;
(d) drains, machinery or other plant or equipment;
(e) other forms of structures or apparatus;
(f) other items brought within the ambit of this definition by the
regulations,
whether on, above or under land, but does not include any items excluded
from the ambit of this definition by the regulations.
(14) Section 3(5) and (6)—delete subsections (5) and (6) and
substitute:
(5) A reference in this Act to varying a water management authorisation
(in any of its forms) includes a reference to varying the conditions attached to
the particular water management authorisation.
(6) The conditions of an authorisation or permit under this Act may be
varied by the addition, substitution or deletion of 1 or more
conditions.
13—Amendment of
section 5—Territorial and extra-territorial operation of
Act
Section 5—after subsection (3) insert:
(4) This Act may also apply so as to give effect within the State or
outside the State to any intergovernmental agreement relevant to the operation
of this Act to which the State is a party.
14—Amendment of
section 38—Annual reports
Section 38(2)(b)—after "regional NRM board" insert:
(together with any relevant accounts and financial information that relate
to any NRM groups within its region)
15—Amendment of
section 53—General powers
Section 53(2)(b)—delete "properly" and substitute:
property
Section 56—delete the section and substitute:
56—Accounts
(1) The regional NRM board or boards that have responsibility for an NRM
group must ensure that proper accounts are kept of the NRM group's financial
affairs.
(2) The accounts required under subsection (1) will form part of the
accounts of a regional NRM board and those accounts, and any related financial
information, will be incorporated into the accounts and financial statements of
that board for financial reporting and auditing purposes.
17—Amendment of
section 57—Annual reports
Section 57(2)—delete subsection (2) and substitute:
(2) The report must include any information required by or under the
regulations.
18—Amendment of
section 76—Preparation of water allocation plans
(1) Section 76(4)—after paragraph (a) insert:
(ab) determine, or provide a mechanism for determining, from time to time,
a consumptive pool, or consumptive pools, for the water resource; and
(2) Section 76(4)(b)—delete paragraph (b) and
substitute:
(b) set out principles associated with the determination of water access
entitlements and for the taking and use of water so that—
(i) an equitable balance is achieved between environmental, social and
economic needs for the water; and
(ii) the rate of the taking and use of the water is sustainable;
and
(3) Section 76(4)(f) and (g)—delete paragraphs (f) and (g)
(4) Section 76—after subsection (4) insert:
(4a) A water allocation plan may provide for the constitution of 2 or more
consumptive pools with respect to a particular part of a water resource and, in
relation to each consumptive pool, assign a particular purpose to that
consumptive pool.
(4b) The basis on which a water access entitlement is to be determined may
be expressed—
(a) as a specified share of the water that constitutes the relevant
consumptive pool from time to time, expressed—
(i) as a number of units of a total number of units; or
(ii) as a percentage,
(as made available over a specified period); or
(b) as a specified maximum volume over a specified period; or
(c) if relevant in view of the nature of the particular water resource, as
a specified proportion of water held in the relevant water resource, or a
specified proportion of any inflow of water; or
(d) on any basis prescribed by the regulations; or
(e) on any other basis that the regional NRM board considers should apply
under the water allocation plan.
(4c) The periods specified for the purposes of a water access entitlement
under subsection (4b) may be recurrent periods (such as financial
years).
(4d) A water allocation plan may—
(a) set out appropriate policies and principles to assist in regulating
the transfer of, or other dealings with, water management authorisations or
water access entitlements (which policies may include provisions that provide
for the varying of any water management authorisation or water access
entitlements or prevent specified classes of transfers or dealings in specified
circumstances); and
(b) specify the classes of applications which will be subject to the
operation of sections 162 or 164D.
(4e) A water allocation plan may provide for the variation of site use
approvals or water resource works approvals of classes specified by the plan in
circumstances specified by the plan.
(5) Section 76(8)—delete "by the licence" and substitute:
in relation to the licence
19—Amendment of
section 80—Submission of plan to Minister
Section 80(8)—after "If a plan" insert:
prepared under Division 1
20—Amendment of
section 81—Review and amendment of plans
(1) Section 81(7)(a)(i)—delete "the prescribed" and
substitute:
a specified
(2) Section 81(7)(a)(ii)—delete "the prescribed" and
substitute:
a specified
(3) Section 81(7)(b)—delete "the prescribed" and
substitute:
the specified
21—Amendment of
section 89—Amendment of plans without formal
procedures
(1) Section 89(2)—after paragraph (c) insert:
or
(d) to achieve greater consistency with the terms or requirements of the
Border Groundwater Agreement under the Groundwater (Border Agreement)
Act 1985; or
(e) to achieve greater consistency with the terms or requirements of the
Lake Eyre Basin Intergovernmental Agreement under the Lake Eyre Basin
(Intergovernmental Agreement) Act 2001; or
(f) to achieve consistency with any other relevant intergovernmental
agreement,
(2) Section 89(2)—delete "water allocations" and
substitute:
water access entitlements
(3) Section 89(2)—after "affected by the plan"
insert:
or the basis for the determination of a consumptive pool
22—Amendment of
section 92—Contributions by constituent councils
(1) Section 92(2)—delete "Subject to subsection (3)" and
substitute:
Subject to this section
(2) Section 92—after subsection (7) insert:
(7a) If a piece of rateable land that is relevant to the operation of this
section is divided—
(a) by the boundaries of 2 or more NRM regions; or
(b) by the boundaries of 2 or more councils,
then the whole of the land will be taken to be assigned to a particular NRM
region or a particular council area (as the case requires) in accordance with a
scheme set out in the regulations (and the other provisions of this Chapter will
then apply accordingly so that only 1 regional NRM levy is imposed in
relation to the whole of the land in accordance with the assignment and so that
the whole of the levy so imposed will be payable with respect to the regional
NRM board for the region to which the assignment relates).
23—Amendment of
section 100—Interpretation
Section 100(2), (3) and (4)—delete subsections (2), (3) and (4) and
substitute:
(2) For the purposes of this Division, water will be regarded as being
allocated under the terms of a water access entitlement even if the right to the
allocation is held by a person who is not the holder of the water
licence.
24—Amendment of
section 101—Declaration of levies
(1) Section 101(1)(a)—delete paragraph (a) and substitute:
(a) are the holders of any water management authorisation granted in
relation to a water resource within a specified NRM region; or
(2) Section 101(4)—delete "expanded" and substitute:
expended
(3) Section 101(5) and (6)—delete subsections (5) and (6) and
substitute:
(5) Without limiting the operation of any other
subsection—
(a) levies under subsection (1)(a) may—
(i) in respect of a levy with respect to a water licence or water
allocation—be declared with respect to 1 or both of the
following:
(A) the right to an allocation of water under the terms of a water access
entitlement or IWETS;
(B) the allocation of water under the terms of a water access entitlement
or IWETS;
(ii) in respect of a levy with respect to a water resource works
approval—be declared with respect to 1 or both of the following:
(A) the potential use of the relevant works for the purposes of taking
water;
(B) the use of the relevant works for the purposes of taking
water;
(iii) in respect of a levy with respect to a site use approval—be
declared with respect to 1 or both of the following:
(A) the right to use water;
(B) the use of water; and
(b) levies under subsection (1)(c) may be declared with respect to 1 or
both of the following:
(i) the right to take water;
(ii) the water taken.
(5a) Levies may be declared, applied or imposed even if water is yet to be
made available under the terms of a water access entitlement or IWETS.
(6) A levy may comprise of 1 or more components based on 1 or more of the
following factors (in any combination):
(a) a fixed charge;
(b) the quantity of water allocated;
(c) the quantity of water received or taken;
(d) the quantity of water passing through any works;
(e) the size, type or capacity of any works;
(f) the quantity of water used;
(g) the share of the water that makes up the relevant water
resource;
(h) the area of land where water may be used, or the area of land where
water is used;
(i) the effect that taking or using water has, or may have, on the
environment, or some other effect or impact that, in the opinion of the
Minister, is relevant and that is capable of being determined, measured or
applied.
(6a) A quantity of water may be determined according to a unit,
percentage, volume or proportion of water.
(4) Section 101(7)—delete "(e)" and substitute:
(i)
(5) Section 101(10)—delete subsection (10)
(6) Section 101(15)—delete subsection (15) and substitute:
(15) A notice under subsection (1) with respect to a watercourse, lake or
well, or surface water taken from a particular area of the State, may be
published in the Gazette within 1 month after the watercourse, lake or well
became a prescribed watercourse, lake or well or the area became a surface water
prescribed area.
Section 102—delete the section
26—Amendment of
section 103—Special purpose water levy
(1) Section 103(1)(b)—delete paragraph (b) and substitute:
(b) it is not fair or reasonable that all persons who have water
management authorisations in relation to the water resource should contribute,
or contribute to the same extent, to the amount needed for that purpose;
and
(2) Section 103(3)—delete subsection (3) and substitute:
(3) A person cannot be specified in a notice under subsection (1)
unless, at some time during the period of 1 month immediately preceding
publication of the notice, he or she held a water management authorisation that
relates to the water resource.
(3) Section 103(4)—delete "their entitlement to take water has
subsequently ceased" and substitute:
any entitlement to which a relevant water management authorisation relates
has subsequently ceased or otherwise come to an end
(4) Section 103(7)—delete "water licence" and substitute:
water management authorisation
(5) Section 103(8)—delete "water licence" and substitute:
water management authorisation
27—Amendment of
section 104—Liability for levy
(1) Section 104(1) and (2)—delete subsections (1) and (2) and
substitute:
(1) For the purposes of this section—
(a) a Category A levy is a levy within the ambit of
section 101(5)(a)(i)(A), (ii)(A) or (iii)(A); and
(b) a Category B levy is a levy within the ambit of
section 101(5)(a)(i)(B), (ii)(B) or (iii)(B).
(2) Subject to this section, a person who holds a water management
authorisation at any time during a financial year in respect of which a levy has
been declared is liable to pay to the Minister the full amount of the levy
whether he or she holds the water management authorisation throughout the year
or not.
(2) Section 104(4)—delete subsection (4) and substitute:
(4) If a levy applies in relation to water that is intended to be used, or
is used, for irrigating land or in the course of carrying on a business on land,
the following persons are jointly and severally liable to the Minister for
payment of the levy in addition to the person primarily liable under subsection
(2) or (3):
(a) in the case of a Category A levy—the owner of the land (if the
owner is not the person primarily liable under
subsection (2))—
(i) if the levy was declared during the financial year to which the levy
relates—at the time the levy was declared;
(ii) if a relevant water management authorisation was not in existence in
relation to that land at the commencement of the financial year to which the
levy relates but was granted after the commencement of that year—at the
time when the water management authorisation was granted;
(iii) if the levy is payable with respect to or on account of an increase
in a water allocation—at the time of the increase;
(iv) in any other case—at the commencement of the financial year to
which the levy relates; and
(b) in the case of a Category B levy—the owner of the land (if the
owner is not the person primarily liable under subsection (2)) when the
relevant water was taken (including under another water management
authorisation); and
(c) in the case of a levy with respect to an authorisation under section
128—the owner of the land (if the owner is not the person primarily liable
under subsection (3)) when the water was taken; and
(d) all persons who own or occupy the land at any time—
(i) after the person primarily liable under subsection (2) or (3) or
the person liable under paragraph (a), (b) or (c); and
(ii) before the levy is paid.
(3) Section 104(5)—delete "(1),"
(4) Section 104(6) to (9) (inclusive)—delete subsections (6) to (9)
and substitute:
(6) If 2 or more persons are liable under subsection (2) or (3) with
respect to water taken (including under another water management authorisation)
during different parts of an accounting period and the water is used to irrigate
the same land or is used in the course of carrying on business on the same land,
the following provisions apply:
(a) the last of those persons to have access to the water during the
accounting period will be liable under subsection (2) or (3) to the
Minister for the amount of the levy with respect to water taken during the whole
of that period; and
(b) that person is entitled to contribution from the other person or
persons with respect to water taken during another part or parts of the
accounting period, calculated on the basis of respective amounts of water
taken.
(7) A person is liable under this section for a levy with respect to a
water management authorisation whether the water management authorisation was
granted before or after the commencement of the Natural Resources Management
(Water Resources and other Matters) Amendment Act 2007.
(8) A levy is payable even though taking water under the terms of a water
management authorisation (including another relevant water management
authorisation) has been prohibited or restricted under this Act or under a
relevant water management authorisation.
(5) Section 104(11)—delete "Subject to section 102(2), a" and
substitute:
A
28—Amendment of
section 106—Determination of quantity of water taken
(1) Section 106(1)(c)(iii)—delete "other"
(2) Section 106(11)—delete subsection (11)
29—Substitution of
section 107
Section 107—delete the section and substitute:
107—Cancellation etc of entitlement for non-payment
of levy
(1) If a person who holds a water management authorisation or an imported
water permit has failed to pay a levy, or an instalment of a levy, within 3
months after being served with a notice under section 105, the Minister may
serve further notice on the holder of the water management authorisation or
permit requiring payment within a period of not less than 1 month and
stating that the water management authorisation or permit (as the case may be)
may be cancelled, suspended or varied by the Minister if the amount is not paid
within that time.
(2) The Minister may cancel, suspend or vary the water management
authorisation or imported water permit by 7 days written notice served on the
holder of the water management authorisation or permit if the levy or instalment
is not paid in accordance with the notice referred to in
subsection (1).
30—Substitution of
section 112
Section 112—delete the section and substitute:
112—Recovery rights with respect to unpaid
levy
(1) In the case of an OC-NRM levy, the levy will be a first charge on
rateable land in accordance with a scheme established by the
regulations.
(2) In the case of an NRM water levy, other than a levy imposed in
relation to a water licence or water allocation, the levy will be a first charge
on—
(a) in the case of a levy imposed in relation to a site use approval or
delivery capacity entitlement—any land where any water that relates to the
relevant water management authorisation is used;
(b) in the case of a water resource works approval—the land where
the relevant works are located, or to which they are connected (taking into
account any principles prescribed by the regulations),
in accordance with a scheme established by the regulations.
(3) In addition, any levy that is not paid in accordance with a notice
under section 105, together with any interest under section 110, may
be recovered by the Minister as a debt from any person who is liable to pay the
levy.
(4) No statute of limitations bars or affects any action or remedy for
recovery by the Minister of an amount under subsection (3).
(5) Any action to recover any levy (and interest) as a debt does not
prejudice any action to recover any levy (and interest) as a charge on land in a
case where subsection (2) applies, and vice versa, but any amount sought to
be recovered under 1 right must be adjusted to take into account any amount
actually recovered under the other right.
31—Amendment of
section 114—Refund of levies
Section 114(10)(a)—delete "water licence" and
substitute:
water management authorisation
32—Amendment of
section 115—Declaration of penalty in relation to unauthorised or unlawful
taking of water
(1) Section 115(1)—delete paragraphs (a), (b) and (c) and
substitute:
(a) a person who is the holder of a water allocation who takes water in
excess of the amount available under the allocation; or
(b) a person who is the holder of a water resource works approval who
takes water contrary to the provisions that apply in relation to that water
resource works approval; or
(c) a person who is the holder of a site use approval who uses water
contrary to the provisions that apply in relation to the site use approval;
or
(ca) a person who is the holder of a delivery capacity entitlement who
takes water contrary to the provisions that apply in relation to that delivery
capacity entitlement; or
(cb) a person who takes water and is not authorised under section 128
or as part of a water allocation to take that water, and so acts in
contravention of this Act; or
(2) Section 115(2)(a)—after "taken" insert:
or used
(3) Section 115(3)—delete "subsection (1)(a)" and
substitute:
subsection (1)(a), (b), (c) or (ca)
(4) Section 115(3a)—after "paragraph (a)" insert:
, (b), (c) or (ca)
(5) Section 115(3a)—after "taking" insert:
or use
(6) Section 115(4)—delete "subsection (1)(b) or (c)" and
substitute:
subsection (1)(cb)
33—Amendment of
section 124—Right to take water subject to certain
requirements
(1) Section 124(3)(a)—delete paragraph (a) and substitute:
(a) —
(i) an authorisation under section 128; or
(ii) a water allocation that relates to the relevant water
resource,
is required to take water from a prescribed watercourse, lake or well or to
take water from a surface water prescribed area; and
(2) Section 124(7)—delete "unless the water is taken pursuant to a
water licence or an authorisation under section 128" and substitute:
unless the water is taken pursuant to an authorisation under
section 128 or a water allocation that relates to the relevant water
resource
34—Amendment of
section 126—Determination of relevant authority
Section 126(1)—delete "water licence" and substitute:
water management authorisation
35—Amendment of
section 127—Water affecting activities
(1) Section 127(1)(a)(i)—delete subparagraph (i) and
substitute:
(i) —
(A) authorised to do so under section 128; or
(B) taking the water as part of a water allocation that relates to the
relevant water resource; or
(2) Section 127(1)(b)—delete "water licence" and
substitute:
water management authorisation
(3) Section 127(3)—delete "water licence" and substitute:
water management authorisation
(4) Section 127(3)(d)—delete "or enlargement" and
substitute:
, modification, enlargement or removal
(5) Section 127(3)(d)—after "divert" insert:
, or collects or diverts
(6) Section 127(5)(a)—delete "or enlargement" and
substitute:
, modification, enlargement or removal
(7) Section 127(5)(a)—after "divert" insert:
, or collects or diverts,
(8) Section 127—after subsection (5) insert:
(5a) Without limiting a preceding subsection, in the case of a prescribed
watercourse, lake or well or a surface water prescribed area—
(a) a person must not construct, maintain or operate any works for the
purposes of taking water or surface water (as the case may be) from the relevant
water resource unless authorised to do so by a water resource works approval;
and
(b) a person must not use water or surface water (as the case may be)
taken from the relevant water resource unless authorised to do so by a site use
approval; and
(c) if the relevant water allocation plan so requires—a person must
not take water or surface water (as the case may be) unless authorised to do so
by a delivery capacity entitlement.
(5b) Subsection (5a) does not apply—
(a) in the case of subsection (5a)(a)—to any works prescribed
by regulation under this paragraph;
(b) in the case of subsection (5a)(b)—to any circumstance or
situation, or after any point, prescribed by regulation under this
paragraph;
(c) in the case of subsection (5a)(c)—to any circumstance or
situation prescribed by regulation under this paragraph.
(9) Section 127(6)(a)—delete "or (3)" and substitute:
(3) or (5a)
(10) Section 127(6)—after paragraph (a) insert:
(ab) contravenes or fails to comply with a term or provision of a water
management authorisation; or
(11) Section 127(6)(b)—delete paragraph (b) and
substitute:
(b) contravenes or fails to comply with a condition to which a management
authorisation, an authorisation under section 128 or a permit is
subject,
(12) Section 127(6), Expiation fee item—delete "licence" and
substitute:
water management authorisation
36—Amendment of
section 129—Activities not requiring a permit
Section 129(1)(a)—delete "water licence" and substitute:
water management authorisation
37—Amendment of
section 130—Notice to rectify unauthorised activity
(1) Section 130(1)(b)—delete "water licence" and
substitute:
water management authorisation
(2) Section 130(3), definition of relevant authority,
(a)—delete "water licence" and substitute:
licence, authority
(3) Section 130(3), definition of relevant authority,
(b)—delete "licence" wherever occurring and substitute, in each
case:
water management authorisation
Section 140—delete the section
39—Substitution of
Chapter 7 Part 3
Chapter 7 Part 3—delete Part 3 and substitute:
Part 3—Licensing and associated rights and
entitlements
Division 1—Water licences
146—Nature of water licences
(1) The Minister may grant a licence (a water licence) in
respect of a prescribed watercourse, lake or well or in respect of the surface
water in a surface water prescribed area or part of a surface water prescribed
area.
(2) A water licence provides an entitlement to the holder of the licence
to gain access to a share of water available in the consumptive pool or
consumptive pools to which the licence relates, as specified by the licence and
after taking into account any factors specified by the relevant water allocation
plan or prescribed by the regulations (and this entitlement will be called a
water access entitlement).
(3) A water access entitlement is subject to—
(a) a determination of the Minister under subsection (4);
and
(b) any other provision of this Act that operates with respect to the
licence or the water access entitlement; and
(c) the conditions attached to the licence.
(4) The Minister will from time to time, by notice in the Gazette,
determine the volume of water that is to be made available from a consumptive
pool for allocation under this Act during a period specified by the
Minister.
(5) The Minister may, by further notice in the Gazette, vary a
determination under subsection (4).
(6) If the regulations so require in prescribed circumstances, the
Minister must, before acting under subsection (4) or (5)—
(a) consult with the Minister to whom the administration of the River
Murray Act 2003 is committed; and
(b) comply with the Minister's directions (if any) in relation to the
matter.
(7) A determination of the Minister under subsection (4) (including
on account of a variation under subsection (5)) must, in relation to a
water resource within the Murray-Darling Basin, take into account the terms and
requirements of the Agreement approved under the Murray-Darling Basin
Act 1993, and any relevant resolution of the Ministerial Council under
that Agreement (insofar as they may be relevant).
(8) A water licence is personal property and may pass to another in
accordance with the provisions of this Act or, subject to this Act, in
accordance with any other law for the passing of property.
147—Water licences—applications and matters
to be considered
(1) An application for a water licence must be in a form approved by the
Minister and must—
(a) specify the water resource in relation to which the licence is being
sought; and
(b) be accompanied by the fee prescribed by the regulations; and
(c) be accompanied by such other information or material as the Minister
may require.
(2) The Minister may, if the Minister thinks fit, issue licences with
respect to a particular water resource, or a particular part of a water
resource, on the basis of applications submitted to the Minister under
procedures determined by the Minister as being appropriate in the relevant
circumstances (including procedures that require applications to be submitted as
tenders or furnished as part of an auction process).
(3) The Minister may refuse to grant a water licence—
(a) if in the opinion of the Minister—
(i) it would be contrary to the provisions of the relevant water
allocation plan to grant a water access entitlement under the terms of the
licence that is being sought; or
(ii) a water access entitlement under the terms of the licence that is
being sought would relate to water that is so contaminated that its use would
create a risk to the health of people or animals; or
(b) if the application has not been successful under the terms of any
procedure established under subsection (2); or
(c) to a person, or to the associate of a person, who formerly held a
water management authorisation that was cancelled under this Act; or
(d) to a person who has acted in contravention of this Act; or
(e) on any ground prescribed by the regulations; or
(f) on any other reasonable ground.
(4) If an application for a water licence is within a class of
applications prescribed by the regulations for the purposes of this provision,
the Minister must, before making a decision on the application—
(a) consult the Minister to whom the administration of the River Murray
Act 2003 is committed; and
(b) comply with the Minister's directions (if any) in relation to the
application (including a direction that the application not be granted, or that
if it is to be granted, then the licence be subject to conditions specified by
the Minister).
(5) The Minister's decision on an application for a water licence that
relates to a water resource within the Murray-Darling Basin must take into
account the terms and requirements of the Agreement approved under the
Murray-Darling Basin Act 1993, and any relevant resolution of the
Ministerial Council under that Agreement (insofar as they may be
relevant).
(6) In addition, the Minister's decision on the grant of a water licence
must—
(a) be made in the public interest; and
(b) be consistent with requirements (if any) prescribed by the
regulations.
(7) The Minister may, if the licence is being issued under procedures that
require the payment of a fee or purchase price with respect to the licence,
require the relevant payment before granting a water licence.
(8) In this section—
relevant water allocation plan
means the water allocation plan that relates to the water resource in relation
to which the licence is sought and includes the water allocation plan of another
water resource (if any) that includes provisions relating to the taking, or the
taking and use, of water from the firstmentioned water resource.
148—Issuing of water licences
A water licence—
(a) must specify, in such manner as the Minister thinks fit, the water
resource to which it relates; and
(b) must specify the basis on which the water access entitlement is to
apply; and
(c) is subject to the conditions—
(i) prescribed from time to time by the regulations; or
(ii) endorsed on the licence by the Minister; and
(d) takes effect from the time of registration in The Water Register;
and
(e) remains in force until the licence—
(i) is terminated by or under this Act; or
(ii) if relevant, expires under the terms of the licence.
149—Variation of water
licences
(1) A water licence may be varied by the Minister—
(a) at any time on the application of, or with the consent of, the
licensee; or
(b) if the licence provides for intervals at which the conditions of the
licence may be varied—at those intervals if, in the opinion of the
Minister, the variation is necessary or desirable to more effectively regulate
the use of water from the resource—
(i) in accordance with the relevant water allocation plan and this Act;
or
(ii) in accordance with the objects of the River Murray
Act 2003 or the Objectives for a Healthy River Murray under that
Act; or
(c) at any time if there has been an alteration to the water allocation
plan for the water resource to which the licence relates and the variation is
necessary, in the opinion of the Minister, to prevent the licence from being
inconsistent (as to the basis on which the water access entitlement is
determined) or seriously at variance (as to the licence conditions) with the
plan; or
(d) at any time if the variation is to impose or vary a condition of a
licence that relates to a water resource within the Murray-Darling Basin and the
Minister is of the opinion that the variation is appropriate or desirable to
prevent, reduce or address damage to the River Murray; or
(e) if the Minister is authorised to do so by another provision of this
Act; or
(f) if the Minister is authorised to do so by the regulations.
(2) An application under subsection (1)(a) must—
(a) be made in a form approved by the Minister; and
(b) if a person is recorded on The Water Register as having an interest in
the water licence (other than as a licensee), be made with the written consent
of that person; and
(c) be accompanied by the fee prescribed by the regulations.
(3) The Minister's decision on the variation of a water
licence—
(a) must—
(i) as to the water access entitlement—be consistent with the
relevant water allocation plan; and
(ii) as to the conditions attached to the licence—not be seriously
at variance with the relevant water allocation plan,
and for the purposes of this paragraph the relevant water allocation plan
includes the water allocation plan of another water resource (if any) that
includes provisions relating to the taking, or the taking and use, of water from
the water resource in relation to which the licence was granted; and
(b) must be made in the public interest; and
(c) if the licence relates to a water resource within the Murray-Darling
Basin, must be made after taking into account the terms and requirements of the
Agreement approved under the Murray-Darling Basin Act 1993, and any
resolution of the Ministerial Council under that Agreement (insofar as they may
be relevant); and
(d) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a variation must be refused).
(4) A licensee may appeal to the ERD Court against—
(a) a decision to refuse to grant an application to vary his or her
licence under subsection (1)(a); or
(b) the variation of his or her licence under subsection (1)(b), (c)
or (d).
(5) However, if the licence relates to a water resource within the
Murray-Darling Basin then no right of appeal will arise under
subsection (4) if the regulations so provide.
(6) The Minister is not required to conduct a hearing or to give notice to
a third party before varying a water licence under this section.
(7) The Minister must, after making a variation, give notice of the
variation to a person with a prescribed interest in the licence in accordance
with the regulations.
150—Transfer of water licences
(1) Subject to this Act and the relevant water allocation plan, the holder
of a water licence may—
(a) transfer the licence to another person; or
(b) transfer a water access entitlement, or part of a water access
entitlement, under the licence to another person.
(2) In the case of a transfer under subsection (1)(b), the transfer
must be—
(a) to the holder of another licence (including a licence created to
receive the transfer), or to the Minister; or
(b) to any other person or the Minister under an Interstate Water
Entitlements Transfer Scheme.
(3) A transfer may be absolute or for a limited period.
(4) A transfer requires the approval of the Minister.
(5) An application to the Minister for his or her approval
must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(6) The Minister may refuse to grant approval for a transfer under this
section to a person on the same grounds as those on which the Minister would
refuse to grant an application by that person for a licence.
(7) The Minister may refuse to grant approval for a transfer under this
section—
(a) if the licensee is in breach of a condition of the licence;
or
(b) unless or until any NRM water levy that has been imposed in relation
to the licence has been paid.
(8) In addition, the Minister's decision to grant or refuse approval for
the transfer of a licence—
(a) must be consistent with the relevant water allocation plan (and for
the purposes of this paragraph the relevant water allocation plan includes the
water allocation plan of another water resource (if any) that includes
provisions relating to the taking, or the taking and use, of water from the
water resource in relation to which the licence was granted); and
(b) must be made in the public interest; and
(c) if the licence relates to a water resource within the Murray-Darling
Basin, must be made after taking into account the terms and requirements of the
Agreement approved under the Murray-Darling Basin Act 1993, and any
resolution of the Ministerial Council under that Agreement (insofar as they may
be relevant); and
(d) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a transfer must be refused).
(9) Subsection (8)(a) operates subject to the terms or requirements of an
Interstate Water Entitlements Transfer Scheme.
(10) If an application for a transfer relates to a licence that relates to
a water resource within the Murray-Darling Basin and falls within a class
prescribed by the regulations for the purposes of this provision (which class
may be prescribed so as to consist of all such applications), the Minister must,
before making his or her decision on whether to grant the
application—
(a) consult with the Minister to whom the administration of the River
Murray Act 2003 is committed; and
(b) comply with the Minister's directions (if any) in relation to the
application (including a direction that the application not be granted, or that
if it is granted, then the Minister exercise a specified power under
subsection (13) or impose conditions specified by the Minister as part of
his or her direction).
(11) If an application for a transfer relates to a licence held by SA
Water, the Minister's decision on the application must be made with the
concurrence of the Minister for the time being administering the Waterworks
Act 1932.
(12) If a person is recorded on The Water Register as having an interest
in a water licence (other than as a licensee), the Minister must not grant
approval for a transfer under this section without the written consent of that
person.
(13) The Minister may, when granting an application for a transfer under
this section—
(a) vary the water access entitlement under the licence (including as to
the basis on which the water access entitlement is determined);
(b) vary any condition of the licence—
(i) to ensure consistency with the relevant water allocation plan;
or
(ii) in the case of a licence that relates to a water resource within the
Murray-Darling Basin—to comply with any direction under
subsection (10) or otherwise to take action to prevent, reduce or address
damage to the River Murray;
(c) if relevant, take any other action required or permitted under an
Interstate Water Entitlements Transfer Scheme.
(14) As an example but without limiting subsection (13), if,
following a transfer, the water will not be taken from the same part of the
water resource as before, the Minister may exercise his or her powers under
subsection (13)—
(a) to ensure that the demand for water from the part of the water
resource from which the water will be taken in future does not prejudice other
licensees by exceeding the availability of water in that part of the water
resource; or
(b) to reflect the loss to the water resource of part of the water
represented by the transfer by reason of evaporation or any other cause as the
water flows to the part of the resource from which it will be taken in
future.
(15) A transfer is subject to the operation of Schedule 3A,
clause 7.
(16) A water licence or part of a water access entitlement that has been
transferred for a limited period reverts automatically to the transferor when
the period expires (and the Minister may then take such action as the Minister
thinks fit, including to cancel any licence that is no longer
required).
(17) Despite the provisions of the Stamp Duties Act 1923, the
transfer of a water licence or part of a water access entitlement is not
chargeable with duty under that Act.
151—Surrender of water
licences
(1) Subject to subsection (2), a licensee may surrender his or her
water licence at any time.
(2) If a person is recorded on The Water Register as having an interest in
the water licence (other than as a licensee), a water licence cannot be
surrendered without the written consent of that person.
Division 2—Allocation of water
152—Source of allocation
(1) A water allocation may be obtained—
(a) on account of a water access entitlement under a water licence;
or
(b) under an Interstate Water Entitlements Transfer Scheme.
(2) In a case where subsection (1)(a) applies, the water allocation
may be obtained—
(a) by the holder of the relevant water licence, on the basis that the
water allocation is being granted by the Minister under the terms of the water
licence; or
(b) by a person, whether or not the person is the holder of a water
licence, on the basis of a transfer of a water allocation that has been provided
by the Minister under the terms of a water licence.
(3) In a case where subsection (1)(b) applies, the Minister will
issue a water allocation that is to take effect for the purposes of this
Act.
(4) A water allocation will relate to a specified water resource (or part
of a water resource)—
(a) endorsed on the relevant instrument under the terms of the water
licence to which the allocation is attributable (as determined under the water
access entitlement); or
(b) determined under the terms of the relevant Interstate Water
Entitlements Transfer Scheme.
(5) A water allocation is subject to—
(a) any other provision of this Act that operates with respect to the
water allocation; and
(b) the conditions attached to the water allocation.
(6) A water allocation is personal property and may pass to another in
accordance with the provisions of this Act or, subject to this Act, in
accordance with any other law for the passing of property.
(7) A water allocation will relate to a specified period (not exceeding
12 months) and if water is not taken under the terms of the allocation
during that period then that particular allocation will expire in any event at
the end of that period.
153—Issuing of water
allocation
(1) A water allocation granted or issued by the Minister—
(a) must be consistent with the relevant water access entitlement or IWETS
(as the case requires) in relation to the volume of water granted; and
(b) must be consistent with the provisions of the relevant water
allocation plan; and
(c) is subject to the conditions—
(i) prescribed from time to time by the regulations; or
(ii) endorsed on a relevant water licence, or on the water allocation
itself by the Minister.
(2) Without limiting any other provision, a water allocation
may—
(a) comprise 1 or more components that expire on a future date;
(b) restrict the purpose for which any component or volume of water may be
used.
(3) In this section—
relevant water allocation plan means the water allocation
plan that relates to the water resource in relation to which the water
allocation applies and includes the water allocation plan of another water
resource (if any) that includes provisions relating to the taking, or the taking
and use, of water from the firstmentioned water resource.
154—Water allocations—matters to be
considered
(1) The Minister may determine not to grant or issue a water
allocation—
(a) if in the opinion of the Minister—
(i) it would be contrary to the provisions of the relevant water
allocation plan to grant or issue the water allocation; or
(ii) the water allocation would relate to water that is so contaminated
that its use would create a risk to the health of people or animals;
or
(b) to a person, or to the associate of a person, who formerly held a
water management authorisation that was cancelled under this Act; or
(c) to a person who has acted in contravention of this Act; or
(d) on any ground prescribed by the regulations; or
(e) on any other reasonable ground.
(2) If a water allocation is within a class prescribed by the regulations
for the purposes of this provision, the Minister must, before granting or
issuing the water allocation—
(a) consult the Minister to whom the administration of the River Murray
Act 2003 is committed; and
(b) comply with the Minister's directions (if any) in relation to the
matter (including a direction that the water allocation not be granted or issued
or, if it is granted or issued, then the water allocation be subject to
conditions specified by the Minister).
(3) The Minister's decision on the grant or issue of a water allocation
that relates to a water resource within the Murray-Darling Basin must take into
account the terms and requirements of the Agreement approved under the
Murray-Darling Basin Act 1993, and any relevant resolution of the
Ministerial Council under that Agreement (insofar as they may be
relevant).
(4) In this section—
relevant water allocation plan
means the water allocation plan that relates to the water resource in relation
to which the water allocation applies and includes the water allocation plan of
another water resource (if any) that includes provisions relating to the taking,
or the taking and use, of water from the firstmentioned water
resource.
155—Reduction of water
allocations
(1) The Minister may reduce the water allocations that apply in relation
to a particular water resource if in the opinion of the Minister it is necessary
or desirable to do so—
(a) to prevent a reduction, or further reduction, in the quality of the
water in the resource or in a water resource that is affected by the taking of
water from the firstmentioned resource; or
(b) to prevent damage, or further damage, to an ecosystem that depends on
that water or on the water from a resource that is affected by the taking of
water from the firstmentioned resource; or
(c) because there is insufficient water to meet the existing demand or
expected future demand for water from that resource or from a water resource
that is affected by the taking of water from the firstmentioned resource;
or
(d) because there has been, or is to be, a reduction in the quantity of
water available under or by virtue of the Groundwater (Border Agreement)
Act 1985 or the Murray-Darling Basin Act 1993.
(2) Subject to regulations made under subsection (3), the Minister
must, in acting under this section, reduce the allocation of all water
allocations that apply in relation to a particular water resource
proportionately.
(3) Instead of the allocations being reduced proportionately, they may be
reduced pursuant to a scheme set out in regulations made by the Governor on the
recommendation of the Minister.
(4) The reduction of a water allocation under this section comes into
operation at the expiration of 7 days after notice of the reduction is
served by the Minister in accordance with the regulations.
(5) Before making a recommendation to the Governor for the purposes of
subsection (3), the Minister must—
(a) consult the relevant regional NRM board; and
(b) cause to be published in the Gazette, in a newspaper circulating
generally throughout the State and in a local newspaper a notice outlining the
proposed recommendation, stating the reasons for it and inviting interested
persons to make written submissions to the Minister in relation to the proposal
within a period (being at least 3 months) specified in the notice (and then have
regard to all submissions made in accordance with the notice); and
(c) have regard to the views of the regional NRM board and all submissions
made in accordance with the notice.
(6) The Minister may, in taking action under this section, make
corresponding variations to water access entitlements and delivery capacity
entitlements that relate to relevant water allocations reduced under this
section.
(7) Nothing in this section limits or affects the operation of
section 156.
156—Variation of water
allocations
(1) A water allocation may be varied by the Minister—
(a) at any time on the application of, or with the consent of, the holder
of the water allocation; or
(b) if the water allocation provides for intervals at which the conditions
of the water allocation may be varied—at those intervals if, in the
opinion of the Minister, the variation is necessary or desirable to more
effectively regulate the use of water from the resource—
(i) in accordance with the relevant water allocation plan and this Act;
or
(ii) in accordance with the objects of the River Murray
Act 2003 or the Objectives for a Healthy River Murray under that
Act; or
(c) at any time if there has been an alteration to the water allocation
plan for the water resource to which the water allocation relates and the
variation is necessary, in the opinion of the Minister, to prevent the water
allocation from being inconsistent (as to the basis on which the water
allocation is determined) or seriously at variance (as to the conditions of the
water allocation) with the plan; or
(d) at any time if the variation is to impose or vary a condition of a
water allocation that relates to a water resource within the Murray-Darling
Basin and the Minister is of the opinion that the variation is appropriate or
desirable to prevent, reduce or address damage to the River Murray; or
(e) if the Minister is authorised to do so by another provision of this
Act; or
(f) under a scheme established under section 164O; or
(g) if the Minister is authorised to do so by the regulations.
(2) An application under subsection (1)(a) must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(3) The Minister's decision on the variation of a water
allocation—
(a) must—
(i) be consistent with the relevant water allocation plan; and
(ii) if the variation relates to conditions attached to the water
allocation—not be seriously at variance with the relevant water allocation
plan,
and for the purposes of this paragraph the relevant water allocation plan
includes the water allocation plan of another water resource (if any) that
includes provisions relating to the taking, or the taking and use, of water from
the water resource in relation to which the water allocation was granted;
and
(b) must be made in the public interest; and
(c) if the water allocation relates to a water resource within the
Murray-Darling Basin, must be made after taking into account the terms and
requirements of the Agreement approved under the Murray-Darling Basin
Act 1993, and any resolution of the Ministerial Council under that
Agreement (insofar as may be relevant); and
(d) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a variation must be refused).
(4) The holder of a water allocation may appeal to the ERD Court
against—
(a) a decision to refuse to grant an application to vary the water
allocation under subsection (1)(a); or
(b) the variation of the water allocation under subsection (1)(b),
(c) or (d).
(5) However, if the water allocation relates to a water resource within
the Murray-Darling Basin then no right of appeal will arise under
subsection (4) if the regulations so provide.
(6) The Minister is not required to conduct a hearing or to give notice to
a third party before varying a water allocation under this section.
(7) Nothing in this section limits or affects the operation of
section 155.
157—Transfer of water
allocations
(1) Subject to this Act and the relevant water allocation plan, the holder
of a water allocation may transfer the water allocation to another
person.
(2) A transfer requires the approval of the Minister.
(3) An application to the Minister for his or her approval
must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(4) The Minister may refuse to grant approval for the transfer of a water
allocation—
(a) if the holder of the water allocation is in breach of a condition of
the water allocation; or
(b) unless or until any NRM water levy that has been imposed in relation
to the relevant water licence has been paid.
(5) In addition, the Minister's decision to grant or refuse approval for
the transfer of a water allocation—
(a) must be consistent with the relevant water allocation plan, (and for
the purposes of this paragraph the relevant water allocation plan includes the
water allocation plan of another water resource (if any) that includes
provisions relating to the taking, or the taking and use, of water from the
water resource in relation to which the water allocation was granted);
and
(b) must be made in the public interest; and
(c) if the water allocation relates to a water resource within the
Murray-Darling Basin, must be made after taking into account the terms and
requirements of the Agreement approved under the Murray-Darling Basin
Act 1993, and any resolution of the Ministerial Council under that
Agreement (insofar as they made be relevant); and
(d) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a transfer must be refused).
(6) If an application for the transfer of a water allocation relates to a
water resource within the Murray-Darling Basin and falls within a class
prescribed by the regulations for the purposes of this provision (which class
may be prescribed so as to consist of all such applications), the Minister must,
before making his or her decision on whether to grant the
application—
(a) consult with the Minister to whom the administration of the River
Murray Act 2003 is committed; and
(b) comply with the Minister's directions (if any) in relation to the
application (including a direction that the application not be granted, or that
if it is granted, then the Minister exercise a specified power under
subsection (8) or impose conditions specified by the Minister as part of
his or her direction).
(7) If an application for the transfer of a water allocation is made by SA
Water, the Minister's decision on the application must be made with the
concurrence of the Minister for the time being administering the Waterworks
Act 1932.
(8) The Minister may, when granting an application for the transfer of a
water allocation—
(a) vary the basis on which the water allocation is determined;
(b) reduce the water allocation;
(c) vary any condition of the water allocation—
(i) to ensure consistency with the relevant water allocation plan;
or
(ii) in the case of a water allocation that relates to a water resource
within the Murray-Darling Basin—to comply with any direction under
subsection (6) or otherwise to take action to prevent, reduce or address
damage to the River Murray.
(9) As an example but without limiting subsection (8), if, following
the transfer of a water allocation, the water will not be taken from the same
part of the water resource as before, the Minister may exercise his or her
powers under subsection (8)—
(a) to ensure that the demand for water from the part of the water
resource from which the water will be taken in future does not prejudice other
holders of water allocations by exceeding the availability of water in that part
of the water resource; or
(b) to reflect the loss to the water resource of part of the water
represented by the transferred water allocation by reason of evaporation or any
other cause as the water flows to the part of the resource from which it will be
taken in future.
(10) Despite the provisions of the Stamp Duties Act 1923, the
transfer of a water allocation is not chargeable with duty under that
Act.
158—Surrender of water
allocations
The holder of a water allocation may surrender the water allocation at any
time.
Division 3—Water resource works
approvals
159—Water resource works
approvals—applications and matters to be considered
(1) An application for a water resource works approval must be in a form
approved by the Minister and must—
(a) specify—
(i) the water resource in relation to which the approval is being sought;
and
(ii) the nature and extent of the works for which the approval is being
sought; and
(iii) the place where the works will be located; and
(b) be accompanied by the fee prescribed by the regulations; and
(c) be accompanied by such other information or material as the Minister
may require.
(2) The Minister may, after receiving an application, request the
applicant to provide such additional information or material as the Minister
thinks fit in order to assess the application.
(3) The Minister may refuse to grant an approval—
(a) if in the opinion of the Minister—
(i) it would be contrary to the provisions of the relevant water
allocation plan to grant the approval; or
(ii) the proposed works are inappropriate after taking into account any
matter prescribed by the regulations, or such other matters as the Minister
thinks fit; or
(b) to a person, or to the associate of a person, who formerly held a
water management authorisation that was cancelled under this Act; or
(c) to a person who has acted in contravention of this Act; or
(d) on any ground prescribed by the regulations; or
(e) on any other reasonable ground.
(4) If an application for an approval is within a class of applications
prescribed by the regulations for the purposes of this provision, the Minister
must, before making a decision on the application—
(a) consult the Minister to whom the administration of the River Murray
Act 2003 is committed; and
(b) comply with the Minister's directions (if any) in relation to the
application (including a direction that the application not be granted, or that
if it is to be granted, then the approval be subject to conditions specified by
the Minister).
(5) The Minister's decision on an application for a water resource works
approval that relates to a water resource within the Murray-Darling Basin must
take into account the terms and requirements of the Agreement approved under the
Murray-Darling Basin Act 1993, and any relevant resolution of the
Ministerial Council under that Agreement (insofar as they may be
relevant).
(6) In addition, the Minister's decision on the grant of an approval
must—
(a) take into account any relevant environmental, social or economic
impacts associated with the construction or use of the relevant works;
and
(b) be consistent with requirements (if any) prescribed by the
regulations.
160—Issuing of approvals
(1) A water resource works approval—
(a) must specify, in such manner as the Minister thinks
fit—
(i) the site where the works are authorised to be located; and
(ii) the nature and extent of the works that are authorised; and
(b) is subject to conditions—
(i) prescribed from time to time by the regulations; or
(ii) specified from time to time by the relevant water allocation plan;
or
(iii) endorsed on the approval by the Minister.
(2) Without limiting the operation of subsection (1)(b), a condition
of a water resource works approval that relates to a water resource within the
Murray-Darling Basin may include—
(a) a requirement that a person who has the benefit of the approval enter
into a bond in such sum and subject to such terms and conditions specified by
the Minister, or enter into some other arrangement specified by the Minister
(which may include the payment of a sum or sums of money into an account
specified by the Minister), to ensure that money is available to address the
costs of any damage to the River Murray (being the costs of any such damage
within the meaning of section 3(5) of the River Murray
Act 2003) that may be attributable to the taking or use of water from
the resource;
(b) a requirement that a person who has the benefit of the
approval—
(i) develop to the satisfaction of the Minister an environment improvement
program containing requirements specified by the Minister, and then comply with
the requirements of that program to the satisfaction of the Minister;
or
(ii) participate in a specified environment improvement program (including
a program that applies with respect to any part of the River Murray);
(c) a requirement that a person who has the benefit of the approval
participate in any other form of scheme to protect, restore or otherwise benefit
the River Murray specified by the Minister (including a scheme established by
the Minister or any other person or body that has effect in relation to any part
of the River Murray and including by payment of a sum or sums of money into an
account established or used for the purposes of the scheme).
(3) A condition of a kind referred to in subsection (2) may also be
imposed with respect to damage to the River Murray occurring before the
imposition of the condition.
161—Variation of approvals
(1) A water resource works approval may be varied by the
Minister—
(a) at any time on the application of, or with the consent of, the holder
of the approval; or
(b) if the approval provides for intervals at which the conditions of the
approval may be varied—at those intervals if, in the opinion of the
Minister, the variation is necessary or desirable to more effectively regulate
the taking of water from the resource—
(i) in accordance with the relevant water allocation plan and this Act;
or
(ii) in accordance with the objects of the River Murray
Act 2003 or the Objectives for a Healthy River Murray under that
Act; or
(c) at any time if there has been an alteration to the water allocation
plan for the water resource to which the approval relates and the variation is
necessary, in the opinion of the Minister, to prevent the approval from being
seriously at variance with the plan; or
(d) at any time if the variation is to impose or vary a condition of an
approval that relates to a water resource within the Murray-Darling Basin and
the Minister is of the opinion that the variation is appropriate or desirable to
prevent, reduce or address damage to the River Murray; or
(e) if the Minister is authorised to do so by the regulations.
(2) An application under subsection (1)(a) must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(3) The Minister's decision on the variation of an
approval—
(a) must not be seriously at variance with the relevant water allocation
plan; and
(b) must be made in the public interest; and
(c) if the approval relates to a water resource within the Murray-Darling
Basin, must be made after taking into account the terms and requirements of the
Agreement approved under the Murray-Darling Basin Act 1993, and any
resolution of the Ministerial Council under that Agreement (insofar as they may
be relevant); and
(d) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a variation must be refused).
(4) The holder of a water resource works approval may appeal to the ERD
Court against—
(a) a decision to refuse to grant an application to vary the approval
under subsection (1)(a); or
(b) the variation of his or her licence under subsection (1)(b), (c)
or (d).
(5) However, if the approval relates to a water resource within the
Murray-Darling Basin then no right of appeal will arise under
subsection (4) if the regulations so provide.
(6) The Minister is not required to conduct a hearing or to give notice to
a third party before varying a water resource works approval under this
section.
(7) However, the Minister must, after making a variation, give notice of
the variation to a person with a prescribed interest in the relevant land in
accordance with the regulations.
(8) Without limiting a preceding subsection, a water resource works
approval may be varied by operation of the provisions of the relevant water
allocation plan (and that variation will take effect by force of this
subsection).
162—Notice provisions
If an application for a water resource works approval or the variation of a
water resource works approval falls within a class specified by the relevant
water allocation plan for the purposes of this section—
(a) notice of the application must be given by the Minister, in accordance
with the regulations, to those persons specified in the plan and to those
persons (if any) prescribed by the regulations, and to the public generally;
and
(b) if notice of an application has been given under this section, any
person who desires to do so may, in accordance with the regulations, make
representations in writing to the Minister in relation to the granting or
refusal of the application; and
(c) the Minister must forward to the applicant a copy of the
representations (if any) made and allow the applicant an opportunity to respond,
in writing, to those representations; and
(d) the response referred to in paragraph (c) must be made within the
number of days prescribed by the regulations after the relevant material is
forwarded to the applicant; and
(e) the Minister must allow a person who made a representation and who, as
part of that representation, indicated an interest in appearing before the
Minister, a reasonable opportunity to appear personally or by representative
before the Minister to be heard in support of the representation; and
(f) if a person appears before the Minister under paragraph (e), the
Minister must also allow the applicant a reasonable opportunity, on request, to
appear personally or by representative in order to respond to any relevant
matter; and
(g) if representations have been made under this subsection, the Minister
must, within the period prescribed by the regulations—
(i) give to each person who made a representation notice of the Minister's
decision on the application and of the date of the decision and of the person's
appeal rights under this Act; and
(ii) give notice to the ERD Court—
(A) of the Minister's decision on the application and of the date of the
decision; and
(B) of the names and addresses of persons who made representations to the
Minister under this section; and
(h) a person who is entitled to be given notice of the decision under
paragraph (g) may, within 15 business days after the date on which the
notice was given to him or her, appeal to the ERD Court against the decision;
and
(i) if an appeal is lodged by a person who is entitled to be given notice
of the decision under paragraph (g), the applicant for the water resource
works approval or variation (as the case may be) must be notified by the ERD
Court of the appeal and will be a party to the appeal; and
(j) a decision of the Minister in respect of which representations have
been made under this section does not operate—
(i) until the time within which any person who made any such
representation may appeal against a decision to grant the application has
expired; or
(ii) where an appeal is commenced—
(A) until the appeal is dismissed, struck out or withdrawn; or
(B) until the questions raised by the appeal have been finally determined
(other than any question as to costs).
163—Cancellation if works not constructed or
used
(1) The Minister may, in accordance with a scheme prescribed by the
regulations, cancel a water resource works approval if works within the ambit of
the approval are not, over a period prescribed by the
regulations—
(a) constructed, or substantially completed; or
(b) used, or used to any significant degree.
(2) The holder of a water resource works approval may appeal to the ERD
Court against a decision under subsection (1).
(3) However, if the approval relates to a water resource within the
Murray-Darling Basin then no right of appeal will arise under
subsection (2) if the regulations so provide.
164—Nature of approval
A water resource works approval applies to the site to which the approval
relates and is attached to the land constituting that site.
Division 4—Site use approval
164A—Site use approval—applications and
matters to be considered
(1) An application for a site use approval must be in a form approved by
the Minister and must—
(a) specify—
(i) the purpose or purposes for which the water is proposed to be used;
and
(ii) the place at which the water is proposed to be used; and
(iii) prescribed information about the proposed extent, manner and rate of
use of the water; and
(b) be accompanied by the fee prescribed by the regulations; and
(c) be accompanied by such other information or material as the Minister
may require.
(2) The Minister may, after receiving an application, request the
applicant to provide such additional information or material as the Minister
thinks fit in order to assess the application.
(3) The Minister may refuse to grant an approval—
(a) if in the opinion of the Minister—
(i) it would be contrary to the provisions of the relevant water
allocation plan to grant the approval; or
(ii) the use of the water under the terms of the application would have an
unreasonable impact on a water resource or other form of natural resource;
or
(b) to a person, or to the associate of a person, who formerly held a
water management authorisation that was cancelled under this Act; or
(c) to a person who has acted in contravention of this Act; or
(d) on any ground prescribed by the regulations; or
(e) on any other reasonable ground.
(4) If an application for an approval is within a class of applications
prescribed by the regulations for the purposes of this provision, the Minister
must, before making a decision on the application—
(a) consult the Minister to whom the administration of the River Murray
Act 2003 is committed; and
(b) comply with the Minister's directions (if any) in relation to the
application (including a direction that the application not be granted, or that
if it is to be granted, then the approval be subject to conditions specified by
the Minister).
(5) The Minister's decision on an application for a site use approval that
relates to a water resource within the Murray-Darling Basin must take into
account the terms and requirements of the Agreement approved under the
Murray-Darling Basin Act 1993, and any relevant resolution of the
Ministerial Council under that Agreement (insofar as they may be
relevant).
(6) In addition, the Minister's decision on the grant of an approval must
be consistent with requirements (if any) prescribed by the
regulations.
164B—Issuing of approvals
(1) A site use approval—
(a) must specify, in such manner as the Minister thinks
fit—
(i) the place where the use is allowed; and
(ii) the manner and use of water authorised by the approval; and
(b) is subject to conditions—
(i) prescribed from time to time by the regulations; or
(ii) specified from time to time by the relevant water allocation plan;
or
(iii) endorsed on the approval by the Minister.
(2) Without limiting the operation of subsection (1)(c), a condition
of a site works approval that relates to a water resource within the
Murray-Darling Basin may include—
(a) a requirement that a person who has the benefit of the approval enter
into or maintain a bond in such sum and subject to such terms and conditions
specified by the Minister, or enter into some other arrangement specified by the
Minister (which may include the payment of a sum or sums of money into an
account specified by the Minister), to ensure that money is available to address
the costs of any damage to the River Murray (being the costs of any such damage
within the meaning of section 3(5) of the River Murray
Act 2003) that may be attributable to the taking or use of water from
the resource;
(b) a requirement that a person who has the benefit of the
approval—
(i) develop to the satisfaction of the Minister an environment improvement
program containing requirements specified by the Minister, and then comply with
the requirements of that program to the satisfaction of the Minister;
or
(ii) participate in a specified environment improvement program (including
a program that applies with respect to any part of the River Murray);
(c) a requirement that a person who has the benefit of the approval
participate in any other form of scheme to protect, restore or otherwise benefit
the River Murray specified by the Minister (including a scheme established by
the Minister or any other person or body that has effect in relation to any part
of the River Murray and including by payment of a sum or sums of money into an
account established or used for the purposes of the scheme).
(3) A condition of a kind referred to in subsection (2) may also be
imposed with respect to damage to the River Murray occurring before the
imposition of the condition.
164C—Variation of approvals
(1) A site use approval may be varied by the Minister—
(a) at any time on the application of, or with the consent of, the holder
of the approval; or
(b) if the approval provides for intervals at which the conditions of the
approval may be varied—at those intervals if, in the opinion of the
Minister, the variation is necessary or desirable to more effectively regulate
the taking of water from the resource—
(i) in accordance with the relevant water allocation plan and this Act;
or
(ii) in accordance with the objects of the River Murray
Act 2003 or the Objectives for a Healthy River Murray under that
Act; or
(c) at any time if there has been an alteration to the water allocation
plan for the water resource to which the approval relates and the variation is
necessary, in the opinion of the Minister, to prevent the approval from being
seriously at variance with the plan; or
(d) at any time if the variation is to impose or vary a condition of an
approval that relates to a water resource within the Murray-Darling Basin and
the Minister is of the opinion that the variation is appropriate or desirable to
prevent, reduce or address damage to the River Murray; or
(e) if the Minister is authorised to do so by the regulations.
(2) An application under subsection (1)(a) must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(3) The Minister's decision on the variation of an
approval—
(a) must not be seriously at variance with the relevant water allocation
plan; and
(b) must be made in the public interest; and
(c) if the approval relates to a water resource within the Murray-Darling
Basin, must be made after taking into account the terms and requirements of the
Agreement approved under the Murray-Darling Basin Act 1993, and any
resolution of the Ministerial Council under that Agreement (insofar as they may
be relevant); and
(d) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a variation must be refused).
(4) The holder of a site use approval may appeal to the ERD Court
against—
(a) a decision to refuse to grant an application to vary the approval
under subsection (1)(a); or
(b) the variation of his or her licence under subsection (1)(b), (c)
or (d).
(5) However, if the approval relates to a water resource within the
Murray-Darling Basin then no right of appeal will arise under
subsection (4) if the regulations so provide.
(6) The Minister is not required to conduct a hearing or to give notice to
a third party before varying a site use approval under this section.
(7) However, the Minister must, after making a variation, give notice of
the variation to a person with a prescribed interest in the relevant land in
accordance with the regulations.
(8) Without limiting a preceding subsection, a site use approval may be
varied by operation of the provisions of the relevant water allocation plan (and
that variation will take effect by force of this subsection).
164D—Notice provisions
If an application for a site use approval or the variation of a site use
approval falls within a class specified by the relevant water allocation plan
for the purposes of this section—
(a) notice of the application must be given by the Minister, in accordance
with the regulations, to those persons specified in the plan and to those
persons (if any) prescribed by the regulations, and to the public generally;
and
(b) if notice of an application has been given under this section, any
person who desires to do so may, in accordance with the regulations, make
representations in writing to the Minister in relation to the granting or
refusal of the application; and
(c) the Minister must forward to the applicant a copy of the
representations (if any) made and allow the applicant an opportunity to respond,
in writing, to those representations; and
(d) the response referred to in paragraph (c) must be made within the
number of days prescribed by the regulations after the relevant material is
forwarded to the applicant; and
(e) the Minister must allow a person who made a representation and who, as
part of that representation, indicated an interest in appearing before the
Minister, a reasonable opportunity to appear personally or by representative
before the Minister to be heard in support of the representation; and
(f) if a person appears before the Minister under paragraph (e), the
Minister must also allow the applicant a reasonable opportunity, on request, to
appear personally or by representative in order to respond to any relevant
matter; and
(g) if representations have been made under this subsection, the Minister
must, within the period prescribed by the regulations—
(i) give to each person who made a representation notice of the Minister's
decision on the application and of the date of the decision and of the person's
appeal rights under this Act; and
(ii) give notice to the ERD Court—
(A) of the Minister's decision on the application and of the date of the
decision; and
(B) of the names and addresses of persons who made representations to the
Minister under this section; and
(h) a person who is entitled to be given notice of the decision under
paragraph (g) may, within 15 business days after the date on which the
notice was given to him or her, appeal to the ERD Court against the decision;
and
(i) if an appeal is lodged by a person who is entitled to be given notice
of the decision under paragraph (g), the applicant for the site use
approval or variation (as the case may be) must be notified by the ERD Court of
the appeal and will be a party to the appeal; and
(j) a decision of the Minister in respect of which representations have
been made under this section does not operate—
(i) until the time within which any person who made any such
representation may appeal against a decision to grant the application has
expired; or
(ii) where an appeal is commenced—
(A) until the appeal is dismissed, struck out or withdrawn; or
(B) until the questions raised by the appeal have been finally determined
(other than any question as to costs).
164E—Cancellation
(1) The Minister may, in accordance with a scheme prescribed by the
regulations, cancel a site use approval in prescribed circumstances.
(2) The holder of a site use approval may appeal to the ERD Court against
a decision under subsection (1).
(3) However, if the approval relates to a water resource within the
Murray-Darling Basin then no right of appeal will arise under
subsection (2) if the regulations so provide.
164F—Nature of approval
A site use approval applies to the site to which the approval relates and
is attached to the land constituting that site.
Division 5—Delivery capacity
entitlements
164G—Delivery capacity
entitlements—applications and matters to be
considered
(1) An application for a delivery capacity entitlement must be in a form
approved by the Minister and must—
(a) specify—
(i) the water resource in relation to which the delivery capacity
entitlement is being sought; and
(ii) the place or area where water is proposed to be taken; and
(iii) prescribed information about the times and rates at which it is
proposed to take water; and
(iv) prescribed information about the extent to which priority is being
sought over other delivery capacity entitlements issued in relation to the same
water resource (or a specified part of the water resource); and
(b) be accompanied by the fee prescribed by the regulations; and
(c) be accompanied by such other information or material as the Minister
thinks fit in order to assess the application.
(2) The Minister may, after receiving an application, request the
applicant to provide such additional information or material as the Minister
thinks fit in order to assess the application.
(3) The Minister may, if the Minister thinks fit, issue delivery capacity
entitlements with respect to a particular water resource, or a particular part
of a water resource, on the basis of applications submitted to the Minister
under procedures determined by the Minister as being appropriate in the relevant
circumstances (including procedures that require applications to be submitted as
tenders or furnished as part of an auction process).
(4) The Minister may refuse to grant a delivery capacity
entitlement—
(a) if in the opinion of the Minister it would be contrary to the
provisions of the relevant water allocation plan to grant a delivery capacity
entitlement under the terms being sought; or
(b) if the application has not been successful under the terms of any
procedure established under subsection (3); or
(c) to a person, or to the associate of a person, who formerly held a
water management authorisation that was cancelled under this Act; or
(d) to a person who has acted in contravention of this Act; or
(e) on any ground prescribed by the regulations; or
(f) on any other reasonable ground.
(5) The Minister's decision on an application for a delivery capacity
entitlement that relates to a water resource within the Murray-Darling Basin
must take into account the terms and requirements of the Agreement approved
under the Murray-Darling Basin Act 1993, and any relevant resolution
of the Ministerial Council under that Agreement (insofar as they may be
relevant).
(6) In addition, the Minister's decision on the grant of a delivery
capacity entitlement must—
(a) be made in the public interest; and
(b) be consistent with requirements (if any) prescribed by the
regulations.
(7) The Minister may, if the delivery capacity entitlement is being issued
under procedures that require the payment of a fee or purchase price with
respect to the delivery capacity entitlement, require the relevant payment
before granting a delivery capacity entitlement.
(8) In this section—
relevant water allocation plan
means the water allocation plan that relates to the water resource in relation
to which the delivery capacity entitlement is sought and includes the water
allocation plan of another water resource (if any) that includes provisions
relating to the taking, or the taking and use, of water from the firstmentioned
water resource.
164H—Issuing of delivery capacity
entitlements
(1) A delivery capacity entitlement—
(a) must specify, in such manner as the Minister thinks fit, the terms of
the entitlement; and
(b) is subject to conditions—
(i) prescribed from time to time by the regulations; or
(ii) specified from time to time by the relevant water allocation plan;
or
(iii) endorsed on the approval by the Minister; and
(c) may be granted on the basis that it cannot be transferred except in
conjunction with the transfer of a specified water licence, water access
entitlement or water allocation; and
(d) remains in force until the delivery capacity
entitlement—
(i) is terminated by or under this Act; or
(ii) if relevant, expires under the terms of the delivery capacity
entitlement.
(2) Subject to any provision made under subsection (1)(c), a delivery
capacity entitlement is personal property and may pass to another in accordance
with the provisions of this Act or, subject to this Act, in accordance with any
other law for the passing of property.
164I—Delivery capacity entitlements to relate to
point of extraction
A delivery capacity entitlement—
(a) may be applied to any aspect of the taking of water from the relevant
water resource at a point of extraction; but
(b) must not be applied to any part of an irrigation system that
distributes water after extraction from the relevant water resource (other than
indirectly through the operation of paragraph (a)).
164J—Variation of delivery capacity
entitlements
(1) A delivery capacity entitlement may be varied by the
Minister—
(a) at any time on the application of, or with the consent of, the holder
of the delivery capacity entitlement; or
(b) if the delivery capacity entitlement provides for intervals at which
the conditions of the delivery capacity entitlement may be varied—at those
intervals if, in the opinion of the Minister, the variation is necessary or
desirable to more effectively regulate the use of water from the
resource—
(i) in accordance with the relevant water allocation plan and this Act;
or
(ii) in accordance with the objects of the River Murray
Act 2003 or the Objectives for a Healthy River Murray under that
Act; or
(c) at any time if there has been an alteration to the water allocation
plan for the water resource to which the delivery capacity entitlement relates
and the variation is necessary, in the opinion of the Minister, to prevent the
delivery capacity entitlement from being inconsistent with the plan;
or
(d) at any time if the variation is to impose or vary a condition of a
delivery capacity entitlement that relates to a water resource within the
Murray-Darling Basin and the Minister is of the opinion that the variation is
appropriate or desirable to prevent, reduce or address damage to the River
Murray; or
(e) if the Minister is authorised to do so by another provision of this
Act; or
(f) if the Minister is authorised to do so by the regulations.
(2) An application under subsection (1)(a) must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(3) The Minister's decision on the variation of a delivery capacity
entitlement—
(a) must be consistent with the relevant water allocation plan and for the
purposes of this paragraph the relevant water allocation plan includes the water
allocation plan of another water resource (if any) that includes provisions
relating to the taking, or the taking and use, of water from the water resource
in relation to which the delivery capacity entitlement was granted;
and
(b) must be made in the public interest; and
(c) if the delivery capacity entitlement relates to a water resource
within the Murray-Darling Basin, must be made after taking into account the
terms and requirements of the Agreement approved under the Murray-Darling
Basin Act 1993, and any resolution of the Ministerial Council under
that Agreement (insofar as they may be relevant); and
(d) must be consistent with requirements (if any) prescribe by regulation
under this paragraph (which regulation may prescribe circumstance where an
application for a variation must be refused).
(4) The holder of a delivery capacity entitlement may appeal to the ERD
Court against—
(a) a decision to refuse to grant an application to vary his or her
delivery capacity entitlement under subsection (1)(a); or
(b) the variation of his or her delivery capacity entitlement under
subsection (1)(b), (c) or (d).
(5) However, if the delivery capacity entitlement relates to a water
resource within the Murray-Darling Basin then no right of appeal will arise
under subsection (4) if the regulations so provide.
(6) The Minister is not required to conduct a hearing or to give notice to
a third party before varying a delivery capacity entitlement under this
section.
164K—Transfer of delivery capacity
entitlements
(1) Subject to this Act, the relevant water allocation plan and the terms
of the delivery capacity entitlement, the holder of a delivery capacity
entitlement may transfer the delivery capacity entitlement to another
person.
(2) A transfer may be absolute or for a limited period.
(3) A transfer requires the approval of the Minister.
(4) An application to the Minister for his or her approval
must—
(a) be made in a form approved by the Minister; and
(b) be accompanied by the fee prescribed by the regulations.
(5) The Minister may refuse to grant approval for the transfer of a
delivery capacity entitlement to a person on the same grounds as those on which
the Minister would refuse to grant an application by that person for a delivery
capacity entitlement.
(6) The Minister may refuse to grant approval for the transfer of a
delivery capacity entitlement—
(a) if the holder of the delivery capacity entitlement is in breach of a
condition of the delivery capacity entitlement; or
(b) unless or until any NRM water levy that has been imposed in relation
to the delivery capacity entitlement has been paid.
(7) In addition, the Minister's decision to grant or refuse approval for
the transfer of a delivery capacity entitlement—
(a) must be consistent with the relevant water allocation plan (and for
the purposes of this paragraph the relevant water allocation plan includes the
water allocation plan of another water resource (if any) that includes
provisions relating to the taking, or the taking and use, of water from the
water resource in relation to which the delivery capacity entitlement was
granted); and
(b) must be made in the public interest; and
(c) if the delivery capacity entitlement relates to a water resource
within the Murray-Darling Basin, must be made after taking into account the
terms and requirements of the Agreement approved under the Murray-Darling
Basin Act 1993, and any resolution of the Ministerial Council under
that Agreement (insofar as they may be relevant); and
(d) must be consistent with requirements (if any) prescribed by regulation
under this paragraph (which regulation may prescribe circumstances where an
application for a transfer must be refused).
(8) Subsection (7)(a) operates subject to the terms or requirements of an
Interstate Water Entitlements Transfer Scheme.
(9) If an application for the transfer of a delivery capacity entitlement
relates to a delivery capacity entitlement that relates to a water resource
within the Murray-Darling Basin and falls within a class prescribed by the
regulations for the purposes of this provision (which class may be prescribed so
as to consist of all such applications), the Minister must, before making his or
her decision on whether to grant the application—
(a) consult with the Minister to whom the administration of the River
Murray Act 2003 is committed; and
(b) comply with the Minister's directions (if any) in relation to the
application (including a direction that the application not be granted, or that
if it is granted, then the Minister exercise a specified power under
subsection (12) or impose conditions specified by the Minister as part of
his or her direction).
(10) If an application for the transfer of a delivery capacity entitlement
relates to a delivery capacity entitlement held by SA Water, the Minister's
decision on the application must be made with the concurrence of the Minister
for the time being administering the Waterworks Act 1932.
(11) The Minister may, before granting an application for the transfer of
a delivery capacity entitlement, direct that an assessment of the effect of
granting the application be made (at the expense of the applicant) by an expert
appointed or approved by the Minister.
(12) The Minister may, when granting an application for the transfer of a
delivery capacity entitlement—
(a) vary the terms of the delivery capacity entitlement;
(b) vary any condition of the delivery capacity
entitlement—
(i) to ensure consistency with the relevant water allocation plan;
or
(ii) in the case of a delivery capacity entitlement that relates to a
water resource within the Murray-Darling Basin—to comply with any
direction under subsection (9) or otherwise to take action to prevent,
reduce or address damage to the River Murray;
(c) if relevant, take any other action required or permitted under an
Interstate Water Entitlements Transfer Scheme.
(13) A delivery capacity entitlement that has been transferred for a
limited period reverts automatically to the transferor when the period
expires.
(14) Despite the provisions of the Stamp Duties Act 1923, the
transfer of a delivery capacity entitlement is not chargeable with duty under
that Act.
164L—Surrender of delivery capacity
entitlements
The holder of a delivery capacity entitlement may surrender his or her
delivery capacity entitlement at any time.
Division 6—Interstate
agreements
164M—Interstate agreements
(1) The Minister may (on behalf of the State of South Australia) enter
into an agreement with a Minister of any other State or a
Territory—
(a) for the conversion of water entitlements or equivalent rights in 1
State or Territory into water entitlements or equivalent rights in another State
or Territory;
(b) for the recognition of water entitlements or equivalent rights in 1
State or Territory in another State or Territory;
(c) for the assignment of water allocations from 1 State or Territory to
another State or Territory.
(2) In this section—
water entitlement means—
(a) a water licence (and an associated water access
entitlement);
(b) a water allocation;
(c) a delivery capacity entitlement.
Division 7—Related matters
164N—Allocation on declaration of prescribed water
resource
(1) On declaration of a watercourse, lake or well as a prescribed
watercourse, lake or well or declaration of a part of the State as a surface
water prescribed area, an existing user of water from the water resource
concerned—
(a) may, subject to a restriction or prohibition under section 132,
continue to use water without a water management authorisation until the end of
the prescribed period or, if he or she applies for any necessary water
management authorisation (depending on the circumstances of the particular case)
within 6 months after the publication in the Gazette of the regulation declaring
the resource to be a prescribed resource, until all relevant applications have
been granted or refused;
(b) is, subject to subsection (3), entitled to be granted, without
the payment of any purchase price, the necessary water management
authorisations, subject to any determination by the Minister under
subsection (2) after consultation with the existing user.
(2) The water access entitlement that applies under subsection (1)(b)
will be the share of a consumptive pool that will, in the opinion of the
Minister, meet the future requirements of the existing user—
(a) based on his or her reasonable requirements during the establishment
period; or
(b) for water for a development, project or other undertaking to which he
or she was legally committed or in respect of which he or she had committed
significant financial or other resources during the establishment period;
or
(c) under both paragraphs (a) and (b).
(3) If at the expiration of the prescribed period, the aggregate of water
access entitlements assigned to existing users under subsections (1) and
(2) exceeds, in the opinion of the Minister, the capacity of the resource, the
Minister may—
(a) reduce each water access entitlement proportionately; or
(b) reduce each water access entitlement pursuant to a scheme set out in
the regulations.
(4) Before determining the capacity of the resource the Minister must
prepare a report assessing the need for water of ecosystems that depend on the
resource for water.
(5) The Minister must make the report publicly available.
(6) An existing user may appeal to the ERD Court against a determination
or decision of the Minister under subsection (1) or (2).
(7) Subject to a restriction or prohibition under section 132, a
person who is not an existing user may take water from the water resource
without a water management authorisation until the end of the prescribed
period.
(8) If the quantity of water available for allocation exceeds the
entitlements of existing users, the Minister may allocate the excess in
accordance with this Act and the relevant water allocation plan.
(9) An entitlement under subsection (1)(b) may be transferred to
another person with the approval of the Minister but subject to any requirement
or limitation prescribed by the regulations.
(10) In this section—
establishment period in relation to the declaration of a
water resource means the period prescribed for the purposes of this definition
by the regulation declaring the resource to be a prescribed resource being a
period that ends at the commencement of the prescribed period;
existing user means, subject to subsection (11), a
person—
(a) who took water from the resource at any time during the establishment
period; or
(b) who did not take any water during that period but who needs water for
a development, project or undertaking to which he or she was legally committed
or in respect of which he or she had, in the opinion of the Minister, committed
significant financial or other resources during the establishment
period;
prescribed period in relation to a water resource commences
on the date of publication in the Gazette, a newspaper circulating generally
throughout the State or a local newspaper (whichever occurs first) of the notice
inviting submissions in relation to the proposed regulation declaring the
resource to be a prescribed resource and ends on the date specified for that
purpose in the regulation.
(11) A person ceases to be an existing user if the person does not make
the necessary applications under subsection (1) within 6 months after
publication in the Gazette of the regulation declaring the resource to be a
prescribed resource.
164O—Schemes to promote the transfer or surrender
of certain entitlements
(1) The Minister may, by notice in the Gazette, establish a
scheme—
(a) to promote the transfer or surrender of water allocations, or water
allocations of a specified class, that relate to an area within the
Murray-Darling Basin;
(b) to promote the surrender of water licences, or water licences of a
specified class, that relate to a specified area within the Murray-Darling
Basin.
(2) A scheme under subsection (1) will be a scheme—
(a) under which any holder of a water allocation of a specified class
must, in accordance with the terms of the scheme, make an offer—
(i) to transfer the whole or a specified part of the water allocation to
the Minister or to a person of a specified class—
(A) for a price specified by the holder of the water allocation;
or
(B) for a price determined under the terms of the scheme, being a price
that equals or exceeds a reserve price specified by the holder of the water
allocation; or
(ii) to surrender the whole or a specified part of the water allocation to
the Minister, for a price specified by the holder of the water
allocation;
(b) under which the holder of a water licence of a specified class must,
in accordance with the terms of the scheme, make an offer to surrender the
licence for a price specified by the holder of the licence;
(c) under which the Minister will, in accordance with the terms of the
scheme—
(i) make an offer to any holder of a water allocation of a specified class
to pay a price specified by the Minister for the surrender of the whole or a
specified part of the water allocation;
(ii) make an offer to the holder of a water licence of a specified class
to pay a price specified by the Minister for the surrender of the
licence.
(3) Neither the Minister nor the holder of a water allocation or a water
licence is required to accept an offer under a scheme established under this
section.
(4) Subject to subsection (5), the Minister must not reject any
acceptance of an offer within the terms of a scheme under
subsection (2)(c).
(5) The Minister may reject such an acceptance if—
(a) the Minister has, in establishing the particular scheme, set a maximum
amount of water allocation with respect to which the Minister is willing to make
a payment and that maximum had been achieved before the receipt by the Minister
of the relevant acceptance; or
(b) the Minister has, in establishing the particular scheme, set a limit
on the amount of money that the Minister is willing to expend under the scheme
and that limit has been achieved before the receipt by the Minister of the
relevant acceptance; or
(c) the NRM Register includes a notation that a person has an interest in
the relevant water allocation or water licence and the acceptance has been made
without the written consent of that person; or
(d) the Minister receives the relevant acceptance after the Minister has
brought the scheme to an end; or
(e) any other prescribed circumstance applies.
(6) The Minister may in the Minister's absolute discretion, by notice in
the Gazette, bring a scheme to an end at any time.
(7) When a scheme is brought to an end, any unaccepted offers
automatically lapse.
(8) The Governor may, by regulation, make provision for related or
ancillary matters connected with the operation of this section.
164P—Consequences of breach of water management
authorisations
(1) If the holder of a water management authorisation, or a person acting
on behalf of the holder of a water management authorisation—
(a) takes water in excess of any entitlement under the water management
authorisation, or contrary to a provision of the water management authorisation;
or
(b) contravenes or fails to comply with a condition of the water
management authorisation; or
(c) uses water taken pursuant to the water management authorisation for an
illegal purpose,
the Minister may cancel, suspend or vary the water management authorisation
by 7 days written notice served on the holder of the water management
authorisation.
(2) If the holder of a water management authorisation, or a person acting
on behalf of the holder of a water management authorisation, contravenes or
fails to comply with a notice under section 132, the Minister may cancel,
suspend or vary the water management authorisation by 7 days written notice
served on the holder of the water management authorisation.
(3) If—
(a) the holder of a water management authorisation, or a person acting on
behalf of a water management authorisation—
(i) has contravened an environment protection order under the
Environment Protection Act 1993 or a protection order under the
River Murray Act 2003; or
(ii) has failed to comply with a clean-up order under the Environment
Protection Act 1993 or a reparation order under the River Murray
Act 2003; and
(b) the Minister is satisfied that the quality of the water in the water
resource to which the water management authorisation relates has been
detrimentally affected by the contravention or failure,
the Minister may cancel, suspend or vary the water management authorisation
by 7 days written notice served on the holder of a water management
authorisation.
(4) A holder, or former holder, of a water management authorisation may
appeal to the ERD Court against a decision of the Minister under this
section.
(5) The Minister must, after taking action to cancel, suspend or vary a
water management authorisation under this section, give notice of the action to
a person with a prescribed interest in the water management authorisation in
accordance with the regulations.
164Q—Effect of cancellation of water management
authorisations
(1) Any entitlement under a water management authorisation that has been
cancelled under this Act is forfeited to the Minister.
(2) If—
(a) a water licence, water access entitlement, water allocation or
delivery capacity entitlement (an entitlement) is forfeited under
subsection (1); and
(b) the entitlement has sufficient value to cover the costs associated
with its sale; and
(c) the entitlement can be transferred consistently with the relevant
water allocation plan and the provisions of the entitlement,
the Minister must endeavour to sell the entitlement—
(d) by public auction or tender; or
(e) by some other process considered by the Minister to be reasonable in
the circumstances (including by private sale).
(3) The proposal to sell the entitlement must be advertised on at least 2
separate occasions in a newspaper circulating in the area in which the water
resource is situated.
(4) If 1 process fails, the Minister may proceed to another.
(5) The Minister should, in taking action to sell the entitlement, take
reasonable steps to achieve the best price that can reasonably be
obtained.
(6) Any money received by the Minister on the sale of the entitlement
under this section must be applied as follows:
(a) firstly—in paying the costs of the sale and any other costs
incurred in proceedings under this section;
(b) secondly—in discharging any liability (if any) for an unpaid
levy or instalment of a levy under Chapter 5, and any interest in respect
of an unpaid levy or instalment, in relation to the entitlement;
(c) thirdly—in discharging any other liability of the former holder
of the entitlement under this Act to the Minister or to any other authority
under this Act;
(d) fourthly—in discharging any liabilities of the former holder of
the entitlement of which the Minister knows that are secured by a charge over
the entitlement;
(e) fifthly—in payment to the former holder of the
entitlement.
(7) If the former holder of the entitlement cannot be found after making
reasonable enquiries as to his or her whereabouts, an amount payable to the
former holder of the entitlement must be dealt with as unclaimed money under the
Unclaimed Moneys Act 1891.
(8) The purchaser of an entitlement under this section takes the
entitlement free of all charges.
164R—Law governing decisions under this
Part
(1) If a decision is being made under this Part with respect
to—
(a) an application for a water management authorisation; or
(b) a water allocation (including in relation to a water allocation under
an IWETS); or
(c) the variation of a water management authorisation; or
(d) the transfer of a water management authorisation (including with
respect to an interest in a water management authorisation),
the law to be applied in deciding the matter, and the provisions of the
regional NRM plan that are relevant to the consideration or determination of the
matter (including in any subsequent review or appeal proceedings (whether
brought under this Act or not)), is the law in force, and the provisions of the
regional NRM plan as in force, at the time that the matter falls to be decided,
considered or determined (including when that time is the time of any decision
on a review or appeal).
(2) To avoid doubt, a reference in subsection (1) to the regional NRM
plan includes a reference to a water allocation plan that is taken to form part
of that regional NRM plan under Chapter 4 Part 2
Division 2.
(3) However, if the Minister does not determine an application for a water
management authorisation within the prescribed period, the provisions of the
relevant regional NRM plan that are relevant to the determination of the matter
will be the provisions as in force at the end of that prescribed
period.
(4) Subject to subsection (5), the prescribed period is
6 months from the date of the relevant application.
(5) If the Minister requests an applicant for a water management
authorisation—
(a) to provide such additional documents or information; or
(b) to carry out any form of assessment or test; or
(c) to take any other action,
as the Minister may reasonably require in order to allow the Minister to
assess the application, then any period between the date of the request and the
date of compliance is not to be included in the calculation of the prescribed
period.
40—Amendment of
section 167—Allocation of reserved water
(1) Section 167(1)(b)—delete paragraph (b) and
substitute:
(b) the allocation will be for a limited term of not more that
15 years and may be based on a water access entitlement specified by the
Minister;
(2) Section 167(1)(e)—delete paragraph (e)
(3) Section 167(1)(f)—delete "licensee" wherever occurring and
substitute, in each case:
person
41—Amendment of
section 173—Water recovery and other rights subject to board's functions
and powers
Section 173(a)—delete "water licence" and substitute:
water management authorisation
42—Amendment of
section 174—Preliminary
Section 174(7)—delete "subsection (6)(a)" and substitute:
subsection (6)
43—Amendment of
section 178—Sale of contaminated items
(1) Section 178(1), penalty provision—delete "animal or" wherever
occurring
(2) Section 178(2)—delete "section 179" and substitute:
section 177
44—Amendment of
section 179—Offence to release animals or plants
Section 179(3)—after "subsection (1)" insert:
or subsection (2)
45—Amendment of
section 202—Right of appeal
(1) Section 202(1)(b)(ii) to (iv)—delete subparagraphs (ii) to (iv)
(inclusive) and substitute:
(ii) an applicant for a water management authorisation, a well driller's
licence or a permit under Chapter 7 may appeal to the Court against a
refusal to grant or issue the authorisation, licence or permit or the imposition
of conditions in relation to the authorisation, licence or permit (other than in
a case involving the allocation of reserved water within the meaning of
Chapter 7 Part 4);
(iii) an applicant for the transfer of a water management authorisation
may appeal to the Court against a refusal to grant the application or a decision
to vary the conditions of the transferred water management authorisation or, in
the case of a water allocation, to reduce the water allocation;
(2) Section 202(1)(b)(v)—after "the holder of a" insert:
water management authorisation,
(3) Section 202(1)(b)(v)—after "cancellation of the"
insert:
authorisation or
(4) Section 202(2)—delete "water licence" and substitute:
water management authorisation
(5) Section 202(3)(a)—delete paragraph (a) and substitute:
(a) in the case of an appeal against an order or reparation authorisation
under Chapter 9 or variation of such an order or authorisation—within 21
days after the order or authorisation or variation is served; or
46—Amendment of
section 211—Compensation
(1) Section 211(1)—delete "water licence" and substitute:
water management authorisation
(2) Section 211(2)—delete "a water licence" and
substitute:
or in respect of a water management authorisation
(3) Section 211(2)—delete "to the licence or approved the transfer
of the licence or a water allocation to the licence" and substitute:
under this Act or approved the transfer of any water management
authorisation or any interest in any water management authorisation
47—Amendment of
section 226—NRM Register
(1) Section 226(1)(a)—delete paragraph (a) and substitute:
(a) water management authorisations granted or issued under this Act;
and
(2) Section 226—after subsection (1) insert:
(1a) The register may be divided into such parts as the Minister thinks
fit but the Minister must at least establish 1 part that specifically relates to
Schedule 3A entitlements under Chapter 7.
(1b) The part established under subsection (1a) that specifically
relates to Schedule 3A entitlements under Chapter 7—
(a) will be known as The Water Register; and
(b) will be subject to the operation of Schedule 3A.
(3) Section 226(2)—delete "subsection (3)" and
substitute:
this section
(4) Section 226—after subsection (3) insert:
(3a) The Minister may also establish or authorise arrangements that
restrict or prohibit access to the register (or a part of the register) to
protect information that, in the opinion of the Minister, is commercially
sensitive or should be protected for some other reasonable cause.
(5) Section 226(5)—delete subsection (5) and substitute:
(5) Information on the register may be made available on conditions
determined or approved by the Minister.
(6) Without limiting a preceding subsection, any part of the register may
be kept in the form of a computer record.
After Schedule 3 insert:
Schedule 3A—The Water Register
Part 1—Preliminary
1—Interpretation
In this Schedule—
register means The Water Register.
2—Applications
An application under this Schedule—
(a) must be in a form approved by the Minister; and
(b) must be accompanied by any relevant fee prescribed by the
regulations.
3—Minister's power to require
information
The Minister may, for the purposes of this Schedule, require a person to
provide any information specified by the Minister before performing or
exercising a function or power under this Schedule.
4—Form of record and management of
register
(1) The Minister may record any information under this Schedule in such
manner, and to such extent, as the Minister thinks fit.
(2) The Minister may, in addition to recording any information required
under this Schedule—
(a) record such other information in the register as the Minister thinks
fit;
(b) hold instruments as part of the register.
(3) The Minister may from time to time, as the Minister thinks fit, make
any amendment or alteration to the register to correct or address any error or
omission, to record more up-to-date or accurate information, or to take such
other action that may appear appropriate in the management of the
register.
5—Authentication of searches
The Minister may authenticate—
(a) any information on the register; or
(b) any search of the register,
in such manner as the Minister thinks fit.
Part 2—Registration of entitlements issued under
Chapter 7
6—Registration of entitlements
The Minister must ensure that the following information is recorded on the
register with respect to a Schedule 3A entitlement granted or issued under
this Act—
(a) the name and contact details of the holder or holders of the
Schedule 3A entitlement;
(b) the water resource to which the Schedule 3A entitlement relates,
including any zone or other relevant information as to its location;
(c) the date on which the Schedule 3A entitlement was issued and, if
relevant, the date on which the Schedule 3A entitlement will expire under
the terms of the Schedule 3A entitlement;
(d) any of the following in relation to the Schedule 3A entitlement
(insofar as may be relevant):
(i) the date of any variation;
(ii) the date of any transfer;
(iii) the date of any surrender or cancellation;
(e) as to any security interest that relates to a water licence or water
access entitlement that is lodged for registration under this
Schedule—
(i) the date and time of registration;
(ii) the name of the person who has the benefit of the security
interest;
(iii) the nature of the interest (determined according to criteria adopted
by the Minister);
(iv) the date and time of any registration of any variation, transfer,
surrender or cancellation of the security interest;
(f) prescribed information as to any caveat registered under
Part 4;
(g) any other information prescribed by the regulations.
7—Special arrangement as to
transfers
(1) In this clause—
complying application means an application that complies with
the requirements of this Act and the Minister for the purposes of the
registration of a transfer of a Schedule 3A entitlement;
prescribed period means, in relation to the transfer of a
Schedule 3A entitlement, the period commencing on the day on which the
Minister grants approval to the transfer and expiring on the day fixed or
determined by or under the regulations.
(2) A transfer of a Schedule 3A entitlement will not have any force
or effect unless—
(a) the Minister gives effect to the transfer in accordance with a
procedure recognised by the regulations for the purposes of this paragraph;
or
(b) a complying application for the registration of the transfer is lodged
with the Minister within the prescribed period.
(3) If a transfer of a prescribed kind is not lodged within the prescribed
period that applies under subclause (2), the Minister's approval under
Chapter 7 in relation to the transfer will, by force of this clause, lapse
and have no further effect.
(4) This clause does not apply to the reversion of an interest in a
prescribed entitlement at the end of a transfer made for a limited
period.
Part 3—Registration of security
interests
8—Creation of security
interests
(1) A security interest recognised for the purposes of this Part may only
relate to—
(a) a water licence; or
(b) a water access entitlement, or part of a water access
entitlement.
(2) A security interest recognised for the purposes of this Part must be
created by the execution of an instrument evidencing the existence of the
security interest over or in respect of the relevant licence or
entitlement.
(3) An instrument under subclause (2)—
(a) must be in a form approved by the Minister; and
(b) will not have any force or effect for the purposes of this Act unless
or until it is registered on the register.
(4) In addition, the Minister must not register a security interest under
this clause if to do so—
(a) is prevented by anything already recorded on the register;
or
(b) is prevented by the regulations.
(5) When a security interest is registered under this clause, the security
interest—
(a) has the effect prescribed by the regulations; but
(b) does not operate as a transfer of the licence or entitlement to which
it relates.
9—Priority of interests
(1) Subject to this clause, the priority of security interests registered
under this Part will be determined according to dates and times of registration
(so that a security interest registered at an earlier time will have priority
over a security interest registered at a later time).
(2) The priority between registered security interests may be varied by
application by all interested parties made in accordance with the
regulations.
(3) Subject to this clause, a registered security interest has priority
over an unregistered security interest.
(4) A priority established by a preceding subclause—
(a) has effect subject to any caveat of a prescribed kind; and
(b) has effect despite different dates for the execution of instruments or
the provision of any consents (if relevant); and
(c) has effect subject to any exclusions or exceptions prescribed by the
regulations.
(5) This clause is declared to be a Corporations law displacement
provision for the purposes of section 5G of the Corporations
Act 2001 of the Commonwealth in relation to the provisions of
Chapters 2K and 5 of that Act.
10—Variation of registered security
interests
(1) The parties to a security interest registered under this Part may
apply to vary the security interest.
(2) If the security interest is subject to another security interest that
has been subsequently recorded on the register, the agreement in writing to the
variation must be obtained from the holder of the subsequent security
interest.
(3) Subject to subclause (2), an application under subclause (1)
must be accompanied by a copy of the instrument that evidences or gives effect
to the variation.
(4) Subject to subclause (5), the Minister must, on receipt of an
application in accordance with the requirements of subclauses (2) and (3),
register the variation.
(5) The Minister must not register a variation under subclause (4) if
to do so is prevented by the regulations.
(6) The instrument furnished under subclause (3) will be held as part
of the register.
11—Transfers
(1) A person holding a prescribed interest with respect to a security
interest registered under this Part may apply to the Minister for a transfer of
the prescribed interest to another person.
(2) An application under subclause (1) must be accompanied by an
instrument that evidences or gives effect to the transfer.
(3) The Minister must, on receipt of an application in accordance with the
requirements of subclause (2), register the relevant transfer.
12—Discharge of registered
interests
(1) The Minister will, on application by a person holding a registered
prescribed interest in a security interest under this Part, discharge the
registration of the security interest.
(2) The Minister may also discharge the registration of a prescribed
interest in the circumstances prescribed by the regulations.
13—Enforcement of security
interests
(1) The regulations may prescribe a scheme for the enforcement of any
security interest registered under this Part.
(2) Without limiting the generality of subclause (1), a scheme
prescribed under this clause may—
(a) allow the exercise of a power of sale in prescribed
circumstances;
(b) provide for the application of purchase money obtained by the exercise
of a power of sale;
(c) provide for the transfer, vesting or discharge of any interest in a
water licence or water access entitlement (or part of a water access
entitlement);
(d) provide for the transfer or vesting of a water licence or water access
entitlement (or part of a water access entitlement).
Part 4—Caveats
14—Caveats
The regulations may prescribe a scheme for the registration, operation and
discharge of caveats for the purposes of the register.
Part 5—Miscellaneous
15—Devolution
(1) A person to whom an interest in a water licence or water allocation
has devolved by operation of law may apply to the Minister to be recorded in the
register as the holder of the relevant interest.
(2) On the death of a person recorded on the register with another person
as joint owners of an interest in a water licence or water allocation, the
survivor may apply to the Minister for a record of the transmission to the
survivor to be made in the register.
16—Recording monetary
consideration
The Minister may require the monetary consideration for any transfer of a
Schedule 3A entitlement to be stated in connection with an application to
register the transfer under this Schedule.
17—Correction of instruments
(1) The Minister may, in the Minister's discretion, register an instrument
under this Schedule despite any error in or omission from the instrument, or in
any other instrument or document that may be provided in connection with the
instrument.
(2) The Minister may, in the Minister's discretion, correct an error in or
omission from an instrument in connection with the administration or operation
of this Act.
18—Cancellation of
registration
The Minister may cancel a registration or recording in the
register—
(a) in a case involving fraud; or
(b) in any other prescribed circumstance.
19—Address for service of
notices
The regulations may establish a scheme for the recording of names and
addresses for the purposes of serving notices in connection with the operation
or administration of the register.
20—ERD Court
The regulations may confer jurisdiction on the ERD Court with respect to
any matter associated with the operation of this Schedule, or with any
instrument registered or recorded (or sought to be registered or recorded) under
this Schedule.
49—Amendment of
Schedule 4—Repeals and transitional provisions
(1) Schedule 4, clause 45(7), (8) and (9)—delete
subclauses (7), (8) and (9) and substitute:
(7) The Chief Officer must ensure that proper accounts are kept of a
prescribed body's financial affairs.
(8) The accounts required under subclause (7) will, according to a
determination of the Chief Officer, form part of the accounts of a regional NRM
board specified by the Chief Officer and those accounts, and any related
financial information, will be incorporated into the accounts and financial
statements of that board for financial reporting and auditing
purposes.
(2) Schedule 4, clause 56(1)—delete "this Act" and
substitute:
a relevant Act
(3) Schedule 4, clause 56(2)—delete "this Act" and
substitute:
the relevant Act
(4) Schedule 4, clause 56(4)—delete subclause (4) and
substitute:
(4) The Acts Interpretation Act 1915 will, except to the
extent of any inconsistency with the provisions of this Schedule or
Schedule 1 of the Natural Resources Management (Water Resources and
Other Matters) Amendment Act 2007, or regulations made under this
Schedule, apply to any amendment or repeal effected by a relevant Act.
(5) In this clause—
relevant Act means—
(a) this Act; or
(b) the Natural Resources Management (Water Resources and Other
Matters) Amendment Act 2007.
Schedule
1—Related amendments and transitional provisions
Part 1—Amendment of Ground Water
(Qualco-Sunlands) Control Act 2000
1—Amendment of
section 3—Interpretation
(1) Section 3(1), definition of irrigated land,
(b)—after "water licence" insert:
or water allocation
(2) Section 3(1), definition of irrigated property,
(a)—after "water licence" insert:
or water allocation
(3) Section 3(6)(b)—after "water licence" insert:
or water allocation
(4) Section 3(6)—after "water licence" insert:
or water allocation
2—Amendment of
section 40—Waterlogging and salinity management
allocation
Section 40(4)—after "water licence" insert:
or a water allocation under the Natural Resources Management
Act 2004
Section 67—delete the section and substitute:
67—Problem of disposal of water not to be
considered on application for water licence etc
(1) Despite the provisions of the Natural Resources Management
Act 2004 or the relevant water allocation plan under that Act, the
problem of the disposal of water used for irrigation must not be considered by
the Minister under that Act when considering—
(a) an application for a water licence or a water allocation, or for an
increase in a water allocation, under that Act; or
(b) an application for the transfer of a water licence, a water access
entitlement (or part of a water access entitlement) or a water allocation (or
part of a water allocation); or
(c) the use of water under a water allocation,
if—
(d) the relevant water management authorisations under that Act authorise,
or will authorise, the use of the water for irrigation on irrigated land to
which a waterlogging and salinity risk management allocation is attached but not
on any other land; and
(e) (unless the regulations provide otherwise) the land on which the water
can be used under the relevant water management authorisations under that Act
does not include the category of land having the highest degree of risk;
and
(f) the Minister is satisfied that the waterlogging and salinity risk
management allocation attached to the land authorises, or will authorise, the
use on the land of all the water allocated.
(2) Where a person has made an application referred to in
subsection (1) under the Natural Resources Management Act 2004,
an assessment under that Act of the effect of allocating additional water must
not include an assessment of the problem of disposing of the water
used.
Part 2—Transitional provisions
In this Part—
licence means a water licence granted under the principal
Act;
principal Act means the Natural Resources Management
Act 2004;
relevant day means the day on which this Part comes into
operation.
(1) A licence in force under section 146 of the principal Act
immediately before the relevant day will continue as a licence under the
principal Act as amended by this Act.
(2) The following provisions apply in connection with the operation of
subclause (1):
(a) until the Minister otherwise determines, a licence under
subclause (1) (as in force under the principal Act as amended by this
Act)—
(i) need not make express provision for a water access entitlement in the
manner contemplated by section 146(2) (as enacted by this Act);
and
(ii) will be subject to the conditions that applied immediately before the
relevant day, unless or until varied by determination of the Minister (either
under the principal Act or under this clause); and
(iii) will be taken to provide the holder of the licence with a water
allocation in the manner contemplated by section 152 (as enacted by this
Act), subject to such action as the Minister may take, by determination, to
convert a water (holding) allocation to a water (taking) and subject to such
provisions or modifications as may be prescribed under clause 56 of
Schedule 4 of the principal Act; and
(b) until the Minister otherwise determines, the holder of a licence under
subclause (1) (as in force under the principal Act as amended by this
Act)—
(i) may proceed to construct, maintain or operate any works for the
purposes of taking water or surface water (as the case may be) under the terms
of the licence without the authority of a water resource works approval;
and
(ii) may use water or surface water (as the case may be) under the terms
of the licence without the authority of a site use approval.
(3) A determination of the Minister under this clause—
(a) may be of general or limited application; and
(b) may make different provision according to the matters or circumstances
which it is expressed to apply; and
(c) may be made from time to time; and
(d) may provide for other matters of an ancillary or incidental
nature.
(1) The Minister may, by notice in the Gazette, convert an interest
constituting a mortgage or charge over a water entitlement registered under
section 226 of the principal Act before the commencement of this clause to
a security interest registered on The Water Register under Schedule 3A of
the principal Act (as enacted by this Act).
(2) A notice under subclause (1) may be expressed to apply to
specified classes of interests.
(3) In this clause—
water entitlement means a water licence or a water allocation
(or part of a water allocation).