24 Jan 2024Water security challenges loom as groundwater and river systems under threat
Australia is a dry continent, and it is only getting drier. The country’s largest river and groundwater systems are under threat. As competing interests assert their right to water access, it is important to understand the laws governing water use.
Regional towns and industries continue to face water security challenges in a warming and ever-changing environment. Efficient and practical water management is critical to ensuring a suitable water supply for farmers, regional communities and the environment.
Ensuring access to water is a vital consideration for many regional businesses and landowners.
Efficient, economical and secure water access is critical when buying or selling a farm, starting a new agribusiness, or considering succession planning for an existing primary producer.
Commonwealth and state laws governing water use
The regulatory regime in NSW is complex. This complicated management system has different and competing laws, rules, regulations, resource-sharing plans and licensing requirements.
The law governing water use in NSW is comprised of both Commonwealth and state-based legislation, including the following.
- Water Act 2007 (Cth)
- Water Act 1912 (historical water licences)
- Water Management Act 2000 (NSW)
- Water Management Amendment Act 2014 (NSW)
- Dam Safety Act 2015 (NSW)
- Water NSW Regulation 2020 (NSW)
Together, these water laws are enforced by government agencies to protect NSW surface and groundwater resources, maintain its delivery systems and regulate the water market.
Government agencies responsible for water management in regional NSW
There are four primary government agencies responsible for the regulatory framework for water management in regional NSW.
- Department of Industry
- WaterNSW
- Office of Environment and Heritage
- Natural Resources Access Regulator (NRAR)
Depending on the nature of the water resource and extraction scenario, the Department of Primary Industries, Fisheries, the Land Registry Service and local government may also become regulatory stakeholders.
“I want to pump water from a nearby natural resource. What’s next?”
Water users must navigate the approvals process for water extraction and water use in NSW. Generally, landowners will need approval to take water and may also need a licence to use that water.
A Water Supply Work Approval authorises its holder to construct and use a work that takes water from a river, lake, or groundwater source. This includes pumps, bores, dams, weirs, irrigation channels, banks and levees and dewatering.
A Water Supply Work Approval is needed to ensure that these works don’t harm the water source, the surrounding environment or the plants and animals that depend on them. Approvals also ensure that your activity doesn’t affect other water users.
However, exemptions from obtaining a Water Supply Work Approval do apply in certain situations, such as taking water for domestic and stock purposes.
This is different to a Water Supply Use Approval, which allows you to use water for a particular purpose, such as irrigation, town water supply, public recreation, power generation or mining.
Importantly, approvals cannot be transferred to another property or location.
In contrast, a Water Access Licence (“WAL”) entitles the holder to have shares in a particular water resource. A WAL allows for water extraction at specific times, rates and volumes and in particular circumstances from a specific area. However, a Water Supply Work Approval is still often required in addition to a WAL.
Simply put, a WAL identifies how much water can be taken and used from a particular water source. A water entitlement is often indicated as a share of the total water available.
A WAL is a valuable financial resource, as it can be sold, transferred or traded. A WAL issued by WaterNSW is generally required to extract water from rivers or aquifers for industrial or commercial irrigation.
However, and most importantly, a WAL is generally not required for taking or using water for domestic or stock watering purposes.
What are my domestic and stock rights?
Domestic and stock rights are a type of basic landholder right under section 52 of the NSW Water Management Act 2000.
In most situations, NSW water law entitles a landowner, without the need for a Water Access Licence, a Water Supply Work Approval or a Water Supply Use Approval, to take water from any river, lake or estuary to which their land has frontage, or from any groundwater source underlying the land.
The landowner is entitled to construct or install a water supply work (such as a dam, weir, pump or bore) to take water from a river or other water source.
Water taken under a domestic and stock right can be used around the house and garden for general domestic purposes. It can also be used to provide drinking water for stock.
Under the act, domestic consumption means water consumed for normal domestic household purposes.
Stock water means the “watering of stock animals being raised on the land but does not include the use of water in connection with the raising of stock animals on an intensive commercial basis that is housed or kept in feedlots or buildings for all (or a substantial part) of the period during which the stock animals are being raised.”
These basic water rights and entitlements allow you to take and use water for domestic consumption and non-intensive stock watering without a WAL or Water Supply Use Approval.
Water use not covered by domestic and stock rights
Domestic and stock rights do not allow for water to be used for activities such as:
- Irrigating stock feed crops
- Washing down commercial sheds and equipment
- Intensive livestock operations
- Aquaculture
- Commercial purposes (eg caravan parks and large-scale B&B accommodation)
Landowners must obtain a WAL for most commercial, aquaculture, irrigation and intensive farming operations.
Water bores may need to have a water meter installed
A WAL is not needed to take water under domestic and stock entitlements. However, a Water Supply Work Approval must be obtained to construct and use a bore, and, in some instances, a water meter must be installed on this equipment. (The regulatory requirements relating to non-urban water metering are complicated, and exemptions may apply depending on your approval or licence conditions.)
As the climate changes and water security become integral to many regional businesses, landowners and business operators must know and understand their rights and entitlements under NSW water law. (For more information please see Drought, flood, bushfire and insurance risk – the impact of climate change on property transactions.)
Speak to a lawyer to understand how you can efficiently access water on your property without the risk of being fined or subjected to criminal prosecution.
