This fact sheet explains some of the basic features of SA legislation dealing with the protection and conservation of water resources. It outlines certain responsibilities and prohibitions within each Act and the penalties for breaches of these prohibitions. It also provides contacts if you suspect someone is breaking the law.
What are water resources?
The term “water resource‟ refers to watercourses (rivers, creeks and other natural watercourses), lakes (natural lakes, ponds, lagoons, wetlands and springs), surface water flowing over land, (including dams and reservoirs), underground water and domestic and industrial wastewater (effluent). This can include the bed, banks and shores of watercourses or lakes as well as the water that is in them.
Natural resource management in South
Historically, the regimes for managing a number of our important natural resources, such as soil, water and native animals, were set out in different Acts (the relevant Act for water being the Water Resources Act 1997). However, the Natural Resources Management Act 2004 (“The Act”) seeks to adopt more holistic approach, by bringing the management of these key natural resources within the one Act.
Protection of water resources under South Australian Legislation
The Natural Resources Management Act provides for the management, conservation and protection of South Australia‟s water resources in two ways. First, by providing for the declaration of certain water resources as prescribed water resources (s 125) and by providing a variety of protections, such as restrictions on the removal of water and on other water-affecting activities (s 127). People may engage in certain water-affecting activities provided they have a permit or water licence granted by the relevant Minister (ss 126, 127). Second, by controlling the type of activities people can undertake in and around water courses. For example, a person who discharges water directly into a watercourse or lake or destroys vegetation growing in a watercourse, in contravention of any relevant water plans, could face a fine of up to $35,000. ($70,000 for companies) (s 127). One way the Act controls activities in and around watercourses is by providing for the making of natural resources management plans, which have specific provisions relating to the management of water resources.
Natural Resources Management Plans (“NRM plans”)
All areas of South Australia are covered by the State Natural Resources Management Plan 2006 (s 74). In addition, a given region will be covered by a regional NRM plan (s 75) and a water allocation plan (s 76).
Regional Natural Resources Management Plans
There are currently 8 natural resources management regions in South Australia. For each region, a regional NRM board is responsible for preparing and maintaining a regional NRM plan for that region.
Regional NRM Plans will assess the natural resources in the region, their state and condition and threats to them, and the environmental, social, economic and practical considerations relating to their use, management, conservation, protection, improvement and, if relevant, rehabilitation (s 75). Each NRM plan will contain specific provisions that relate to the management of water resources. These will take the place of the Catchment Water Management (“CWM”) Plans prepared by CWM boards under the old Water Resources Act 1997.
Before preparing a concept statement, which sets out the proposed content for an NRM plan, a board must advertise in a local newspaper, inviting written submissions from the general public (s 78). A draft plan is then prepared based on the concept statement and on any comments made by the relevant Minister, government departments, constituent councils and the public (s 79). Before approving an NRM plan, the Minister must take into account any public submissions received (s 80). From this information, guidelines for the granting of permits for the use of the region‟s water resources are drawn up (sub-s 75(3(k)).
The eight NRM regions are: Adelaide & Mt Lofty Ranges; Alinytjara Wilurara (Aboriginal Lands); Eyre Peninsula; Kangaroo Island; Northern and Yorke; South Australian Arid Lands; South Australian Murray Darling Basin; and South East. For further information on NRM plans, contact the Department for Water.
Water Allocation Plans (“WA Plans”)
WA plans cover prescribed water resources (prescribed under the Act). The aim of WA plans is to ensure that water from these prescribed water resources is allocated to users in a way that is socially, economically and environmentally equitable. Like NRM plans, WA plans will be drawn up by regional NRM boards. Procedures similar to those for CWM plans, including public consultation, must be followed for the preparation of plans (ss 77-80).
Environment Protection Act
In addition to the Natural Resources Management Act, the Environment Protection Act 1993 (“EP Act”) plays a role in the protection of South Australia‟s water resources.
The EP Act has provisions for the declaration of “Water Protection Areas”. “Water Protection Areas” are areas where surface and ground water is of a high quality and requires protection from pollution. There are 25 Water Protection Areas in SA. Contact the EPA for a list of them. Under the “EP Act”, the Minister has the power to order people who are or have been polluting a water protection area to stop polluting and clean up any remaining pollution (s 64A). The Minister also has the power to direct people to take steps to minimise the likelihood of pollution occurring (s 64B). If a person fails to comply with a notice from the Minister then they may be fined up to $75,000 (or $120,000 for companies)
The Development Act
The undertaking of any alterations to land itself or its use might be considered to be “development” as defined in the Development Act 1993. For further information about whether or not a specific alteration might come within the definition of “development”, please consult EDO Environmental Law Fact Sheet 3: “Development Control in South Australia”.
The River Murray Act
The River Murray Act 2003 aims to provide increased protection for the River Murray and its related areas and ecosystems. This Act provides that all persons must take all reasonable measures to prevent or minimise any harm to the River Murray through his or her activities (s 23). A person who breaches this “duty of care” will not be liable for a criminal offence, but the Minister may enforce compliance with the duty by issuing the person a protection order (s 24). The Minister may also issue a reparation order to force the person to rectify any damage caused to the River Murray.
The use of water resources – who, what, when, where, why?
The Natural Resources Management Act 2004 abolishes a person‟s common law right to take naturally occurring water (s 124(8)). However, a person who has lawful access to a creek, river, other natural watercourse, natural lake, pond, lagoon, wetland spring or well is entitled to take water from these sources for any purpose that is not prohibited under the Act (s 124). All owners and occupiers of land whose land adjoins a water resource are under an enforceable duty to take reasonable steps to prevent damage to those water resources (s 133).
Occupiers of land (s 124 – s 129)
In general, an occupier of land is prohibited from taking water from any: “prescribed water course” or from a “surface water prescribed area” without a “water licence” or “section 128 authorisation”; unless:
- they are taking it for drinking or cooking (at less than the prescribed rate); or
- they are using it for domestic purposes; or
- they are using it for the watering of stock (not being intensively farmed);
other (non-prescribed) watercourse, lake or well if the taking of the water would:
detrimentally affect the ability of another person to exercise their right to take water from the same source; or detrimentally affect the enjoyment of that water by another occupier of land, with whom the occupier in question shares that water source unless:
- they are using it for domestic purposes; or
- they are using it for the watering of stock (not being intensively farmed).
However, a declaration that a watercourse, lake or well is “prescribed” or that a certain area is a “prescribed surface water area” may totally prohibit the occupier of land from taking water for any purpose unless the occupier has a “water licence” or a “section 128 authorisation”. In addition, provisions of water plans can prohibit occupiers from taking any water from a particular source for any purpose without a “water licence” or “section 128 authorisation”.
Persons with lawful access (s 124 – s 129)
In general, a person with lawful access to a watercourse, lake or well (who is not an occupier) is prohibited from taking water from any: “prescribed water course” or from a “surface water prescribed area” without a “water licence” or “section 128 authorisation”, unless:
- they are taking it for drinking (at less than the prescribed rate);
other (non-prescribed) water course, lake or well, if it would:
- detrimentally affect the ability of another person to exercise a right to take water from the same source; or
- detrimentally affect the enjoyment of the amenity of water by an occupier of land where the watercourse or lake:
- is on their land; or
- runs through their land; or
- adjoins their land.
However, a declaration that a watercourse, lake or well is “prescribed” or that a certain area is a “prescribed surface water area” may totally prohibit a person from taking water for any purpose unless the person has a “water licence” or a “section 128 authorisation”. In addition, provisions of water plans can prohibit a person from taking any water from a particular source for any purpose without a “water licence” or “section 128 authorisation”.
A person in either of the above situations must examine the Act and any applicable NRM and water allocation plans to make sure that the purpose for which they want to take the water is not prohibited. For example, the building of a dam requires a permit if water is to be collected from any prescribed water course and certain non-prescribed watercourses (sub-ss 124 (1),(2), sub-s 127(3)). Enlarging an existing dam may also require a permit.
Generally, a permit is required to build a well which is more than 2.5 metres deep (sub-s 127(3), ss 142, 143, Schedule 2 clause 1). In addition, if you occupy land which has a well you must maintain it (s 144).
Authorisations, permits, licenses and emergency restrictions
Authorisations are made by the Minister for Environment and Conservation to authorise the taking of water from a prescribed watercourse, lake, well or surface water prescribed area for a particular purpose by publishing a notice in the Gazette. Permits are required to undertake certain activities, i.e. building a dam or a well. You must seek a permit from the relevant authority. Currently all permit applications for building dams and wells must be made to the Minister for Environment and Conservation through the Department for Water. For other types of permits, the relevant authority for granting permits is specified by the regional Natural Resources Management Plan for the Region in which your land is situated. For information on applications for permits ring the Department for Water on (08) 8463 6800.
Licences are necessary if you want to take water from a prescribed watercourse, lake or well, or to take surface water from a surface water prescribed area. Applications for a water licence must be made to the Minister for Environment and Conservation through the Department of Water. For information on applications for licences ring the Department of Water on (08) 8463 6876.
Notices of Restriction, issued by the Minister, can prohibit/restrict the taking of water from any area of the State if current or proposed water use rates are considered to threaten the viability of the water supply.
What if I suspect someone is using a water resource illegally?
If you suspect someone of using a water resource illegally you can contact one of the organisations listed below. If you wish to know whether someone has a water licence or permit for a specific activity, any one has the right to inspect the Minister‟s register of licences and permits. In addition, any person may apply to the Environment, Development and Resources (ERD) Court to prevent others from contravening the Act or to claim compensation due to damage caused by contravention to the Act (s 201).
|For more information |
To read and/or photocopy Acts: The Conservation Centre, Level 1, 157 Franklin St, Adelaide. (08) 8223 5155. To access Acts from the internet: http://www.austlii.edu.au/au/legis/sa/consol_act/, or the SA Parliamentary website: www.parliament.sa.gov.au
To purchase Acts contact Service SA , 108 North Tce Adelaide. Ph: 13 2324 or internet www.shop.service.sa.gov.au To download the State Natural Resources Management Plan (2006) from the internet: http://www.nrm.sa.gov.au To gain access to information which might be impacting on a water resource: see the EDO‟s environmental law fact sheets 6 & 7 – Access to Government Records / Freedom of Information in South Australia. For general enquiries: Department of Water on (08) 8463 6800, or you may want to contact your local council (listed individually in the white pages).
The Environmental Defenders Office (SA) inc, (EDO) is a non-profit community legal centre offering free advice to individuals and groups on all matters of environmental law. The EDO operates an advisory on Thursday evenings between 6-8PM at: 408 King William St Adelaide SA 5000 Fax +61 (08) 8410 3855. Appointments are necessary and must be made by ringing 8410 3833 or freecall 1800 337 566. It is not a substitute for proper legal advice. Important legal details have been omitted to provide a brief overview of this law. Contact the EDO or your solicitor for more detailed legal advice about your specific problem. This guide was funded by a grant from the Law Foundation of South Australia.