Water Allocation and Sustainable Management: Chapter 2 of

Water Allocation and SustainableManagement: Chapter 2 of theWater Bill 2000

Nicolee Dixon

LEGISLATION BULLETIN NO 9/00

WATER ALLOCATION AND SUSTAINABLEMANAGEMENT: CHAPTER 2 OF THE

WATER BILL 2000

LEGISLATION BULLETIN NO 9/00

NICOLEE DIXON

QUEENSLAND PARLIAMENTARY LIBRARYResearch Publications and Resources Section

BRISBANEAugust 2000

ISSN 1324-860XISBN 0 7242 7890 7

This Legislation Bulletin was prepared to assist Members in their consideration ofthe Bill in the Queensland Legislative Assembly. It should not be considered as acomplete guide to the legislation and does not constitute legal advice.

The Bulletin reflects the legislation as introduced. The Queensland LegislationAnnotations, prepared by the Office of the Queensland Parliamentary Counsel, or theBills Update, produced by the Table Office of the Queensland Parliament, should beconsulted to determine whether the Bill has been enacted and if so, whether thelegislation as enacted reflects amendments in Committee. Readers are also directedto the relevant Alert Digest of the Scrutiny of Legislation Committee of theQueensland Parliament.

© Queensland Parliamentary Library, 2000

Copyright protects this publication. Except for purposes permitted by the CopyrightAct 1968, reproduction by whatever means is prohibited, other than by Members ofthe Queensland Parliament in the course of their official duties, without the priorwritten permission of the Parliamentary Librarian, Queensland ParliamentaryLibrary.

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ABSTRACT

The Water Bill 2000 (Qld) was introduced into the QueenslandParliament on 22 June 2000. The main objectives of the Bill are toestablish:

• a sustainable management framework for the planning,allocation and use of water and other resources;

• a regulatory framework for service providers covering assetmanagement, customer standards, and dam safety; and

• a governance regime for statutory authorities that providewater services.

This Bulletin focuses on the first of those matters, to which Chapter 2 ofthe Bill relates. First, the Bulletin provides an overview of theevolution in water resource management at an international andnational level which provides the background for the development of aplanning, management and allocation framework for the use of water inQueensland.

The remainder of the Bulletin discusses the provisions in Chapter 2 thatdeal with Water Resource Plans (the blueprint planning document for abasin), and their implementation through Resource Operations Plans(putting the Water Resource Plan into operational effect in particularparts of a basin), Resource Operations Licences (issued toinfrastructure operators), and Water Allocations (to replace waterlicences).

CONTENTS

1. INTRODUCTION............................................................................................ 1

2. BACKGROUND TO WATER ACCESS MANAGEMENT INQUEENSLAND................................................................................................ 1

2.1. THE PROBLEM IN A NATIONAL CONTEXT..................................................... 2

3. WATER REFORM FRAMEWORK ............................................................. 3

3.1. INTERNATIONAL AGREEMENTS AND POLICIES............................................... 4

3.2. NATIONAL AGREEMENTS AND POLICIES........................................................ 5

3.3. THE 1994 COAG WATER REFORM FRAMEWORK AND NATIONAL

COMPETITION POLICY .................................................................................. 6

3.4. WATER RESOURCE POLICY REFORMS ........................................................... 73.4.1. Water Pricing......................................................................................... 83.4.2. Water Allocations And Entitlements................................................... 103.4.3. Water Trading ..................................................................................... 113.4.4. Institutional Reform ............................................................................ 123.4.5. Environment and Water Quality.......................................................... 143.4.6. Water Capping..................................................................................... 14

4. BACKGROUND TO THE NEW WATER BILL 2000.............................. 15

4.1. EXISTING FRAMEWORK............................................................................... 16

4.2. PROCESS OF DEVELOPING THE WATER BILL ............................................... 17

4.3. FRAMEWORK OF THE WATER BILL 2000 ..................................................... 18

5. CHAPTER 2: ALLOCATION AND SUSTAINABLE MANAGEMENT 19

5.1. INTRODUCTION............................................................................................ 19

5.2. PURPOSE ..................................................................................................... 19

5.3. WATER RIGHTS........................................................................................... 215.3.1. Rights of the State Under Existing Law.............................................. 215.3.2. Rights of the State Under the Water Bill............................................. 225.3.3. Overland Flow Water, Subartesian Water and Water Resource Plans 22

6. WATER PLANNING .................................................................................... 24

6.1. OVERALL PLANNING................................................................................... 24

6.2. WATER RESOURCE PLANS .......................................................................... 246.2.1. Aims of the Planning Process.............................................................. 25

6.3. CONTENTS OF A WATER RESOURCE PLAN ..................................................25

6.4. MAKING THE WATER RESOURCE PLAN........................................................296.4.1. Information Report...............................................................................296.4.2. Notice of Intention ...............................................................................296.4.3. Preparing the draft WRP......................................................................316.4.4. Final Plan .............................................................................................31

6.5. EXAMPLES OF WATER RESOURCE PLANS ....................................................326.5.1. The Fitzroy Basin WAMP ...................................................................326.5.2. Draft Condamine-Balonne WAMP......................................................34

6.6. EXAMPLES OF WATER MANAGEMENT PLANS ..............................................37

7. IMPLEMENTING THE WATER RESOURCE PLAN .............................39

7.1. RESOURCE OPERATIONS PLANS...................................................................39

7.2. INTERIM MEASURES.....................................................................................41

7.3. RESOURCE OPERATIONS LICENCES..............................................................42

7.4. WATER ALLOCATIONS.................................................................................43

7.5. WATER TRANSFERS .....................................................................................44

7.6. EXISTING WATER LICENCES AND PERMITS .................................................46

7.7. WORKS APPROVALS ....................................................................................48

8. MANAGING WATER USE...........................................................................48

8.1. WATER USE PLANS......................................................................................48

8.2. LAND AND WATER MANAGEMENT PLANS ...................................................49

9. COMPENSATION .........................................................................................50

10. REMAINING MATTERS..............................................................................52

11. CONCLUSION................................................................................................53

BIBLIOGRAPHY..................................................................................................55

APPENDIX A - GLOSSARY................................................................................59

APPENDIX B - DICTIONARY............................................................................60

APPENDIX C - ALLOCATION AND MANAGEMENT OF WATER...........62

APPENDIX D – DEPARTMENT OF NATURAL RESOURCES - MAP OFWATER RESOURCE PLANNING - LOCALITY PLAN .........................63

Allocation and Sustainable Management: Chapter 2 of the Water Bill 2000 Page 1

1. INTRODUCTION

The Water Bill 2000 (Qld) was introduced into the Queensland Parliament on 22June 2000. The main objectives of the Bill are to establish:

• a sustainable management framework for the planning, allocation and useof water and other resources;

• a regulatory framework for service providers covering asset management,customer standards, and dam safety; and

• a governance regime for statutory authorities that provide water services.

This Bulletin focuses on the first of those matters, to which Chapter 2 of the Billrelates. First, the Bulletin provides an overview of the evolution in water resourcemanagement at an international and national level which provides the backgroundfor the development of a planning, management and allocation framework for theuse of water in Queensland.

The remainder of the Bulletin discusses the provisions in Chapter 2 that deal withWater Resource Plans (the blueprint planning document for a basin), and theirimplementation through Resource Operations Plans (putting the Water ResourcePlan into operational effect in particular parts of a basin), Resource OperationsLicences (issued to infrastructure operators), and Water Allocations (to replacewater licences).

2. BACKGROUND TO WATER ACCESS MANAGEMENT INQUEENSLAND

Water Resource Plans are part of the overall water reform strategy currently beingundertaken by the Queensland Government. They are an integral component toQueensland meeting its obligations under the Council of Australian Governments(CoAG) Water Reform framework and other national and international agreementsfocussed upon ecologically sustainable use of water resources.

Page 2 Allocation and Sustainable Management: Chapter 2 of the Water Bill 2000

2.1. THE PROBLEM IN A NATIONAL CONTEXT

Australia is possibly the driest continent in the world after Antarctica, having theleast amount of water in rivers and the smallest area of permanent wetlands.1

Water is Australia’s most valuable natural resource but it has suffered fromrelatively rapid clearing of vegetation, inefficient farming practices and inadequatemanagement. It is only in the past decade that any decisive measures have beentaken to manage water resources to serve Australia’s future needs.

In the past, water seemed to be available to everyone for all types of uses, and atvery low cost. When demand began to outstrip supply, the short-term solution wasto build dams and other water storage infrastructure. Approximately 70% ofavailable water is used for irrigation, with urban and industrial use amounting toabout 21% and other rural uses accounting for approximately 9%.2

Water has contributed to Queensland’s economic growth. There is a long history ofgovernments establishing infrastructure (particularly dams), without which manyirrigation projects may not have been feasible. There are currently eight IrrigationAreas and 29 projects in the State with production valued at approximately $1.5billion annually. In 1917, the first government sponsored irrigation scheme forsugarcane production was introduced in the Burdekin region followed by a majorirrigation project in the Dawson Valley. Water storage facilities were also built tocater for other purposes such as power generation and mining.3

The stress on river systems and their dependent ecosystems from development and,in some areas, overuse has been documented for some time. Where rivers,wetlands and inland seas have deteriorated from lack of flows, species of aquaticplants and animals have disappeared.4 Freshwater resources are an essentialcomponent of the earth’s hydrosphere and an indispensable part of all terrestrialecosystems. In-stream ecosystems are integral to the maintenance of healthy watersupplies. The interaction between water and the living environment substantiallyshapes the character of the hydrological cycle, the regulation of climate, theformation of soils, the maintenance of soil fertility and the absorption and

1 Australia. State of the Environment Advisory Council, Australia: State of the Environment,

1996, p 7-4.2 Australia: State of the Environment, 1996, p 7-11.3 Queensland. Department of Natural Resources, Improved Planning in the Supply of Water in

Queensland, Draft Policy Paper, October 1999, p 3.4 ‘Putting water into perspective’, Australian Landcare, March 1999, p 30.


breakdown of pollutants.5 Concern about the health of rivers is felt not just byenvironmentalists, but also by farmers who recognise danger to their futurelivelihoods if sustainable management of water does not occur.

Nowhere has the problem of deteriorating river systems become more acute than inthe Murray-Darling Basin which covers three states, South Australia, New SouthWales and Queensland. Salinity is a major problem. Approximately 2,500 tonnesof salt is washed down the river system each day. It is possible that agriculturalland the size of Victoria will be unusable by 2050 and it has been reported thatAdelaide’s water may be undrinkable within the next century.6 Water tables arerising at a rapid rate, particularly in regions in the southern basin.

When it is appreciated that the Murray-Darling basin contains 42% of Australianfarms and produces 90% of Australia’s irrigated crops, representing about $22.8billion of national agricultural exports,7 the need for prompt remedial action isobvious. There have been a number of reports that have provided a focus ondifferent aspects of the overall picture. Among the most recent is the joint NationalFarmers’ Federation and Australian Conservation Foundation Report, ‘NationalInvestment in Rural Landscapes’ which found that unless action is taken, the costof degradation may blow out to $6 billion a year within 20 years.8

3. WATER REFORM FRAMEWORK

During much of the twentieth century, legislation dealing with water resources hasfavoured a public system of management with the right to use and control water inrivers and lakes being vested in the State (or the Crown). That regime is largelybased on a philosophy of resource development rather than one of conservation andsustainable use (eg Water Conservation and Utilisation Act 1910 (Qld)).9

However, more recent legislation has placed greater emphasis upon sustainabledevelopment and management of water resources and the need for protection ofecosystems dependent upon such resources.10

While environmental groups and many rural bodies have been pressing forecologically sustainable development of water resources and for governments to 5 Hon Mark Vale, Commonwealth Minister for Agriculture, Fisheries and Forestry, ‘The quest to

manage water quality nationally’, Australian Landcare, March 1999, p 28.6 Asa Wahlquist, ‘Sold down the river’, Australian, 18 March 2000, p 25.7 Robert Hill, ‘Let’s avoid crying over spilled water’, Australian, 28 February 2000, p 17.8 Asa Wahlquist, ‘Land forecast rubs salt in the wounds of farmers’, Australian, 17 May 2000,

p 13.9 D E Fisher, Water Law, LBC Information Services, Sydney, 2000, p 6.10 Fisher, p 7. See, for example, Water Resources Act 1997 (SA), s 6(1).


reform water management, there is little doubt that various national andinternational agreements, concerning natural resource conservation, have drivenrecent reforms and legislative initiatives at state and federal levels.

3.1. INTERNATIONAL AGREEMENTS AND POLICIES

International policies influencing the direction of Australia’s water managementlaws and strategies for water resource use include:

• the Ramsar Convention on Wetlands of International Importance1971 which obliges signatories to establish nature reserves on wetlands topromote their conservation and to designate wetlands of internationalsignificance for inclusion on a ‘List of Wetlands of InternationalImportance’ (eg part of the Narran Lakes in the New South Wales segmentof the Condamine-Balonne Basin is included on the List);

• the World Charter For Nature 1982 which requires parties to managenatural resources, ecosystems, and organisms to achieve and maintainoptimum sustainable productivity but not in such a way as to endanger theintegrity of coexisting ecosystems or species.11 It contains ‘rules’ aboutrecycling and reuse of resources, including water, where they are notconsumed as they are used and about the need for restrained exploitationof non-renewable resources.12 Parties are required (by Article 22) to giveeffect to the provisions of the Charter, taking into account the sovereigntyof each State over their natural resources;

• the United Nations Conference on Environment and Development1992 developed a document called ‘Agenda 21’ which sets out a strategyto enable individual countries to achieve integration of environmentalprotection and natural resource development.13 Chapter 18 deals with themeans by which countries might take an integrated approach to protecting,developing and managing fresh water resources. It advocates apreventative approach through a range of practices that countries couldadopt eg rehabilitation programmes;

• the draft International Covenant on Environment and Development,199514 which contains obligations dealing with specific natural resources,including water (Article 19). States must take all appropriate measures tomaintain and restore the quality of all sources of water to meet basic

11 World Charter For Nature 1982, Article 4.12 World Charter for Nature 1982, Article 10.13 Fisher, p 30.14 Developed by the Commission on Environmental Law of the International Union for the

Conservation of Nature.


human needs and as an essential component of aquatic systems. There isalso a natural systems obligation in Article 20 requiring management ofsuch systems as single ecological units.

3.2. NATIONAL AGREEMENTS AND POLICIES

During the past decade, there have been a number of intergovernmentalagreements, strategies and policies relating to resource management. One of theearliest was the Intergovernmental Agreement on the Environment 199215

which sought to establish the various environmental responsibilities of all levels ofgovernment. The underlying objective for the management of natural resources isthat of ecologically sustainable development (ESD)16 which incorporates thefollowing principles:17

• the precautionary principle (not allowing lack of scientific certainty todelay measures for preventing environmental degradation where there arethreats of serious or irreversible environmental damage);

• intergenerational equity (maintaining and enhancing the health, diversityand productivity of the environment for the benefit of future generations);

• conservation of biological diversity and ecological integrity;• improved valuation, pricing and incentive mechanisms.

One of the most important agreements impacting on water resource management isthe National Strategy for Ecologically Sustainable Development.18 It seeks toensure integrated management and development of surface and groundwaterresources and to develop mechanisms aimed at maintaining ecological systemswhile meeting economic, social and community needs. The Strategy advocates anumber of actions that appear to underlie a number of the water resourcemanagement policies effected by the new Queensland Water Bill. Those actionsinclude:

• an integrated catchment management approach;• the introduction of legislative and policy frameworks for the protection of

aquatic ecosystems;• the management of water allocations to ensure the maintenance of in-

stream and floodplain environmental values;

15 Which forms the Schedule to the National Environment Protection Council Act 1994 (Cth).16 Intergovernmental Agreement on the Environment 1992, clause 3.2.17 Fisher, p 46.18 Australia. National Strategy for Ecologically Sustainable Development, Canberra, 1992; Fisher,

p 49.


• a consideration of the whole hydrological cycle;• reflection of environmental externalities in water pricing;• the adoption of ‘user-pays’ tariff policies;• institutional reform; and• the introduction of transferable water entitlements.

Important financial backing to environmental management initiatives, includingwater resource management, is provided by the Natural Heritage Trust of AustraliaReserve established under the Natural Heritage Trust of Australia Act 1997 (Cth).The Reserve provides for specific initiatives including the Murray-Darling 2001Project (to rehabilitate the Murray-Darling Basin with the aim of achieving asustainable future for the Basin and its natural systems and communities),19 and theNational Land and Water Resources Audit (which includes the measurement of theeffects of land and water degradation by a panel of experts). The activities fundedby the Reserve are administered by a Ministerial Board comprising the Minister forthe Environment and Heritage, Senator Robert Hill, and the Minister forAgriculture, Fisheries and Forestry, Mr Warren Truss.

3.3. THE 1994 COAG WATER REFORM FRAMEWORK AND NATIONALCOMPETITION POLICY

In 1993, CoAG set up a working party of officials to prepare a report, and makerecommendations, on a framework for water industry reform. It was to considerwhat action was needed to address the environmental and ecological problemsfacing Australia’s vital river systems and to provide for their future sustainable use.An integral component of the framework was the linking of economic andenvironmental objectives.

The Report20 found that governments were not charging enough in rural areas topromote sustainability of irrigation areas and that there were only limitedopportunities for trading in water. In addition, there were few instances where anyreal allocations to the environment had been made. It was also noted thatinstitutional arrangements in some jurisdictions opened up the possibility ofconflicts of interest in the performance of regulation functions and serviceprovision functions.

In February 1994, CoAG adopted the Report and determined that a strategicframework for reform was needed. A five to seven year implementation period for

19 Natural Heritage Trust of Australia Act 1997 (Cth), s 11.20 Australia. Report of the Working Group on Water Resource Policy to the Council of Australian

Governments, Canberra, February 1994.


the reforms was chosen, to allow for consultation with relevant stakeholders.Queensland, South Australia and Tasmania agreed to the broad principles butexpressed reservations on some of the detail of the Report’s recommendations.

In April 1995, CoAG agreed that beginning in 1999-2000, future rounds ofpayments to the states and territories under the National Competition Policy (NCP)would depend upon implementation of the 1994 Agreement on reform of the waterindustry and future processes. By 2000-02, payments under the third tranche wouldbe linked to the states and territories giving full effect to the agreements on water.As part of the review and monitoring process, the Agriculture and ResourceManagement Council of Australia and New Zealand (ARMCANZ), the Australiaand New Zealand Environment and Conservation Council (ANZECC) and, whererequired, the Murray-Darling Basin Ministerial Council21 were to report each yearbetween 1996 and 2000 on the progress made in implementing the framework.

The reforms agreed to by CoAG will now be outlined together with commentsmade by the High Level Steering Group on Water (HLSGW),22 in its 1999 Reportto CoAG,23 and from other sources, concerning progress on implementation,particularly insofar as Queensland is concerned.

This Bulletin concentrates on the CoAG reforms concerning water allocations andwater trading as they apply in Queensland. However, it is necessary to look at thecontext in which those reforms appear in order to appreciate the overall picture.

3.4. WATER RESOURCE POLICY REFORMS

CoAG agreed that action was needed to arrest widespread natural resourcedegradation occasioned by water use and that a strategic framework to achieve anefficient and sustainable water industry should comprise the elements set out in thefollowing headings.

21 The Council oversees the Murray-Darling Basin Scheme established under the Murray-Darling

Basin Act 1993 (Cth), the object of which is to enable the Commonwealth, New South Wales,Victoria and South Australia (and, since 1997, Queensland) to cooperatively plan and managethe environmental resources of the Basin. See also Brian Stevenson, Cooperative CatchmentManagement: The Murray-Darling Basin Agreement 1996, Legislation Bulletin No 1/96,Queensland Parliamentary Library, 1996.

22 The HLSGW comprises the Chief Executive Officers of the Standing Committee on Agricultureand Resource Management. It is responsible for providing strategic direction for water reformthrough and beyond the implementation phase and to ensure that at a national level, every effortis made to overcome impediments to progress and promote best practice collaboration amongthe states and territories.

23 Council of Australian Governments, High Level Steering Group, Progress in implementation ofthe CoAG water reform framework, Occasional Paper No 1, 2000, at Internet Sitehttp://www.affa.gov.au/water-reform/publications.html.


3.4.1. Water Pricing

The background to this reform was the recognition that in Australia, particularly inrural areas, the price of water has been well below the real cost of supplying it.

Among the features of this reform was the agreement by CoAG (in relation to ruralwater supply):

• to adopt a ‘user pays’ pricing regime based on full cost recovery; by 2001,the removal of cross-subsidies, where possible, and transparency of cross-subsidies where they continue to exist; and implementation of two-parttariffs for surface and groundwater where cost effective. Queensland,South Australia and Tasmania had some concerns with the details of thispricing principle;

• that future investment in new or existing rural water schemes be madeonly after appraisal indicates that it is economically viable andecologically sustainable.

Progress on this aspect of reform includes:• full cost recovery pricing being implemented, or being progressed in most

jurisdictions. In Queensland, the Water Reform Unit (WRU) of theDepartment of Natural Resources (DNR) has recently released its five-yearprice path proposals for public consultation. The WRU considers that theproposals will address deficiencies in revenue from subsidised irrigationschemes that will soon, if no action is taken, be unable to maintain theircurrent level of service or allow for infrastructure replacement.24

However, rural industry bodies, such as the Queensland FarmersFederation, are concerned that there will be significant price rises that willbe difficult for primary producers to meet, particularly in industries such assugar which is already experiencing a downturn in its markets.25 It isproposed that the pricing regime will be implemented in three stages withthree categories of schemes: Category 1 are those which have alreadyachieved, or will by 2001 achieve, full cost recovery (eg the Burdekin);Category 2 schemes will have five years to achieve full cost recovery bymeans of staged annual increases; and Category 3 schemes are those older,smaller, higher-cost irrigation schemes, or in areas where water shortages

24 Queensland. Department of Natural Resources, Water Reform Implications For Local

Government in Queensland, Summary Document, December 1999, pp 31-32 (the “RainbowBook’).

25 Graham Fuller, ‘Can Queensland afford water price hikes?’, Queensland Country Life, 15 June2000, p 11.


are a problem, which may require further Government assistance tocontinue to operate.26

• in a number of rural centres, water prices have increased, or are expectedto increase with the adoption of full price costing practices and reductionin subsidies. Consequent effects are being felt by local governments whohave become concerned about large increases in their water rates andconsumer backlash as those increases are passed on.

• on the other hand, it appears that urban water users are benefiting fromreduced subsidies and from pricing structures based on real water userather than on property values. For example, the managing director of oneof the three State-owned water corporations in Melbourne claims that 70%of water charges are now based on usage rather than a fixed charge,resulting in total charges being reduced for approximately 85% ofcustomers;27

• a number of the largest local governments in Queensland, whose moresignificant activities are subject to competition reforms under the LocalGovernment Act 1993 (Qld), have introduced two-part water tariffscomprising two components - a fixed cost of access and a volumetric cost,thus causing a drop in demand for water by about 20%;28

• on a national level, the HLSGW considered that there was a clear need forimproved progress in identification and inclusion of environmentaldegradation in water pricing;29

• on a national level, the HLSGW considered that there was a clear need forimproved progress in identification and inclusion of environmentaldegradation in water pricing.30

26 Queensland. Legislative Assembly, Estimates Committee G, Hon R J Welford, Minister for

Environment and Heritage and Minister for Natural Resources, p 610.27 Chris Tolhurst, ‘Water: reforms keep bubbling up’, Australian Financial Review, 24 February

2000, p 45.28 Willett, Executive Director of the National Competition Council, The Introduction and

Implementation of Competition Reform to the Australian Water Sector, Paper presented toSeventh Annual New Zealand Water Summit, 8 March 1999. See also the following: WayneJarred, Competition Policy and Local Government in Queensland, Research Bulletin No 7/97,Queensland Parliamentary Library, 1997; Nicolee Dixon, Queensland Competition AuthorityAmendment Bill 2000, Legislation Bulletin 6/00, Queensland Parliamentary Library, 2000.

29 CoAG, High Level Steering Group, Occasional Paper No 1, paras 35, 37.30 CoAG, High Level Steering Group, Occasional Paper No 1, paras 35, 37.


3.4.2. Water Allocations And Entitlements

This reform and the following one, dealing with water trading, are the focus of thisBulletin and will therefore not be explored at length here.

The elements of the CoAG Agreement concerning water allocations were based onthe premise that there would be a greater incentive for holders of water entitlementsto use water more efficiently if their entitlement was clearly defined, secure andtransferable. Recognition of the environment as a legitimate water user requiringappropriate allocations to be made to it was seen as crucial as was the need to focuson river systems that are currently stressed or over-allocated in order to achieve abetter balance in the use of that resource.31

Aspects of the CoAG agreement on this reform were:• to implement water entitlements backed by separation of water property

rights from land title and clear specification in terms of ownership,volume, reliability, transferability,32 and, if appropriate, quality;

• that allocations must be made to the environment as a legitimate wateruser;33

• that environmental requirements should be based on the best scientificinformation available;

• that, if major irrigation or infrastructure development is proposed, there beappropriate environmental assessments undertaken to determine theimpact on river systems.

To date it has been noted that inter alia:• jurisdictions have begun to develop comprehensive systems of water

allocations and entitlements, as required under the framework, butlegislation to give effect and legislative basis to the reforms is still pendingin some jurisdictions (eg Water Bill 2000 (Qld), Water Management Bill2000 (NSW));

• some jurisdictions have made provision for the environment through theirplanning process, assisted by joint ARMCANZ/ANZECC NationalPrinciples for the Provision of Water for Ecosystems, finalised in 1996.34

31 CoAG, High Level Steering Group, Occasional Paper No 1, para 39.32 The concept of transferability will be considered in Section 7.5 of the Bulletin.33 See also the ARMCANZ/ANZECC National Principles for the Provision of Water for

Ecosystems, 1996.34 CoAG, High Level Steering Group, Occasional Paper No 1, paras 40, 42.


3.4.3. Water Trading

The philosophy underlying water trading is that if water could be used moreefficiently, taking account of social, physical and ecological constraints, water userscould sell any excess water on the market. A means of achieving that could be touse water in higher value activities such as growing stonefruit or grapes for wine.

CoAG agreed:• that water be used to maximise its contribution to national income and

welfare; and• that trading arrangements in water entitlements be instituted no later than

1998, including the facilitation of consistent cross-border tradingarrangements where that is socially, physically and ecologicallysustainable.

The position so far is that:• overall, all jurisdictions have implemented processes to separate water

entitlements from land to allow trade to occur. However, the amount ofactivity varies and more could be done to improve the efficiency of watermarkets and to incorporate principles for ecological sustainability in watertrading. There is also a difficulty in being able to fully implement tradingarrangements before environmental flow requirements have been formallyallocated so the CoAG timetable for the implementation of water tradinghas been extended. Environmental allocations for over-allocated orstressed rivers are now required by 2001. Substantial completion ofagreed implementation programs is required by 2005;35

• all governments have asked consultants to prepare a framework ofconsistent principles to govern trading of water allocations in eachjurisdiction;

• a Pilot Interstate Water Trading Scheme is being undertaken by theMurray-Darling Basin Commission, in the Mallee Region of SouthAustralia, Victoria and New South Wales. A fundamental principle of thePilot Project is that the interstate transfer of water entitlements beaccountable and not result in increased levels of salinity, reductions inenvironmental flows or degradation of the natural environment. Further,

35 Australia. National Competition Council, Second Tranche Assessment of State and territory

Progress with Implementing National Competition Policy and Related Reforms Volume 2downloaded from the National Competition Council Internet Site at http://www.ncc.gov.au/ ;CoAG, High Level Steering Group, Occasional Paper No 1, paras 48-49, 75.


no transfer should result in an acceleration of environmental degradationresulting from the use or management of the transferred water;36

• there is potential for larger gains as water markets expand and efficiencyimproves, particularly if aided by best practice measures and improvedinformation transfer;

• in states where water trading has been implemented, it appears that muchof the water available for trading has come about from more efficient uses(eg growing stonefruit or grapevines) so that any water that is excess ofany individual entitlement may be sold.

3.4.4. Institutional Reform

CoAG considered that part of the overall problem was that quite distinct functionsof service provision, resource management and regulation were carried out withinthe one government agency. This often created the potential for conflict of interest.A separation of those functions to introduce competition in service provision wasbelieved necessary.37

In this area of reform, CoAG agreed:• to adopt an integrated catchment management approach to water resource

management and consult with local governments and the widercommunity;

• to separate the roles of water resource management, standard setting andregulatory enforcement and service provision by 1998;

• that water services be delivered as efficiently as possible, with serviceproviders seeking to achieve international best practice;

• that management of irrigation areas be devolved to local bodies, subject toappropriate regulatory frameworks being established.

As for progress in this area, the HLSGW found:• all jurisdictions have moved, or are moving, to implement this reform,

particularly in devolving responsibility for local management of water use,especially in irrigation districts, and have adopted the principles ofintegrated catchment management to varying degrees. Many states havealso begun to commercialise their irrigation schemes which has alreadyresulted in improvements in water use efficiency and reduction in salinedischarges;

36 See the Murray-Darling Basin Commission Internet Site at http://www.mdbc.gov.au/index.htm

and follow the links.37 CoAG, High Level Steering Group, Occasional Paper No 1, para 54.


• in Queensland, the new Water Bill (in Chapter 3) attempts to ensure thatthe commercialisation of service provision operations does notcompromise customer service standards and long term assets management.DNR will provide the function of regulator of the various requirements.The Local Government Association of Queensland considers that the roleshould be undertaken independently of DNR which has led to the Ministerfor Environment and Heritage and Minister for Natural Resources decidingto review the effectiveness of DNR in carrying out its role as regulatorafter two years;38

• Chapter 4 of the new Water Bill aims to achieve a governance andaccountability framework for public sector water boards (to be known as‘water authorities’) and requires them to operate according to commercialprinciples;

• State Water Projects (SWP) was set up in 1997 as a business unit withinDNR to deliver water services and operates separately from DNR’sregulatory, licensing and management functions. The Minister hasannounced that SWP would soon be operating as a government ownedcorporation (GOC) under the name of Sun Water to begin operations whenthe Water Bill commences and will be regulated by DNR.39 TheOpposition has argued that the financial arrangements for the new GOCare such that Sun Water will need to raise prices to meet its repaymentobligations to the Government.40

• It appears that a number of states have moved towards corporatisation forState-owned water companies which have achieved new efficiencies inwater delivery through increased competition. There are threecorporatised water companies in Melbourne who compete against eachother in terms of service delivery and maintenance of their infrastructure,thus setting the scene (albeit in the future) for allowing householders tochoose their preferred water supplier.41

38 Hon R J Welford MLA, Minister for Environment and Heritage and Minister for Natural

Resources, Water Bill 2000 (Qld), Second Reading Speech, Queensland ParliamentaryDebates, 22 June 2000, pp 1891-1896, p 1895. See also, Queensland. Department of NaturalResources, Water Reform Unit, Institutional Reform of State Water Projects at the Departmentof Natural Resources’ Resource Net Internet Site http://www.dnr.qld.gov.au/resourcenet

39 Hon R J Welford MLA, Minister for Environment and Heritage and Minister for NaturalResources, ‘Sun Water – a new GOC for Queensland’, Ministerial Media Statement, 30 June2000.

40 Hon D Watson MLA, Leader of the Liberal Party, ‘Corporatisation of State Water Services’,Private Members’ Statement, Queensland Parliamentary Debates, 16 July 2000, p 2086.

41 Chris Tolhurst, ‘Water: reforms keep bubbling up’, Australian Financial Review, 24 February2000, p 45.


3.4.5. Environment and Water Quality

This reform recognises the range of complementary measures, apart from marketreform, that are necessary to achieve the CoAG objectives in relation to improvedenvironmental outcomes. Accordingly, CoAG agreed inter alia:

• to support the development of the National Water Quality ManagementStrategy through the adoption of a package of measures including marketbased and regulatory measures, monitoring, catchment management andcommunity consultation and awareness; and

• to support landcare practices that protect rivers of high environmentalsensitivity.

The HLSGW reported that:• support for community based landcare practices has been an important part

of the natural resource management policies of all jurisdictions. There hasalso been injection of funds through the Commonwealth Natural HeritageTrust Reserve; and

• there are a number of government funded Commonwealth and Statenatural resource and environment programmes. An example is theNational Water Quality Management Strategy,42 the principles of whichhave been incorporated into the Environmental Protection (Water) Policy1997 (Qld), which is subordinate legislation under the EnvironmentalProtection Act 1994 (Qld);

3.4.6. Water Capping

In June 1995, the Murray-Darling Basin Ministerial Council decided that a balanceneeded to be struck between consumptive and in-stream uses of water in the riversof the Murray-Darling Basin in order to protect existing flow regimes, enhance theriverine environment, and to achieve sustainable consumptive use. Accordingly itwas agreed that:

• diversions must be capped at 1993-94 levels; and• an interim moratorium would be introduced immediately on further

increases in diversions while precise details were worked out.43

From the outset, Queensland adopted the stance that there were equity issues to beconsidered and that Queensland should not be penalised for the over-allocation ofwater in other states. Accordingly, it was agreed that Queensland would develop 42 CoAG, High Level Steering Group, Occasional Paper No 1, paras 61, 63.43 D Blackmore, ‘The Water Audit’ in Proceedings of the Water Use and Environment Flows

Workshop, Murray-Darling Basin Commission, Canberra, 22-23 August 1995.


proposals for addressing the cap through the development of the Water AllocationManagement Plan process to cover Queensland’s part of the Murray-Darling Basin.The Council would assess the process to determine a final arrangement forQueensland meeting the cap.44 Some moratoriums on new licences45 have occurredin some areas while those developments continue.

Federal and South Australian Governments regard Queensland’s failure to set acap, and New South Wales exceeding the cap, as contributing to environmentaldegradation and salinity problems lower down in the Murray-Darling Basin.46 At aMurray-Darling Basin Ministerial Council meeting in March 2000, a deadline ofAugust 2000 was set for salinity reports and an order was made for a water cap andwater flow audit. The Murray-Darling Basin Ministerial Council hascommissioned a comprehensive review of the operation of the Cap on waterdiversions from the Basin's rivers. This review will focus on how the Cap can berefined to better meet the needs of the Basin.47

4. BACKGROUND TO THE NEW WATER BILL 2000

The Water Bill is heralded as a much needed overhaul of Queensland’s water laws.It attempts to develop a modern regime for improving the security of supply forfuture water users and ensuring that forthcoming water resource developments aresustainable while, at the same time, protecting the health of rivers and catchments.48

It is envisaged that the Bill will be consistent with the CoAG water reformframework and meet Queensland’s obligations concerning water capping. TheWater Bill was developed in consultation with the National Competition Council inorder to achieve conformity with NCP policies.49

44 Australia. Murray-Darling Basin Ministerial Council, Review of Cap Implementation 1998/99,

Report of the Independent Audit Group, Including Responses by the Four State Governments,November 1999. See the Murray-Darling Basin Ministerial Council Internet Site athttp://www.mdbc.gov.au/ and follow the links.

45 The nature of moratoriums is discussed later in the context of the Water Bill 2000.46 Matthew Spencer, ‘State singled out for irrigation risk’, Australian, 5 April 2000, p 5.47 See Murray-Darling Basin Ministerial Council, Review of the Implementation of the Cap 2000,

Draft Overview Report of the Cap Project Board, March 2000.48 Hon R J Welford MLA, Minister for Environment and Heritage and Minister for Natural

Resources, Water Bill 2000 (Qld), Second Reading Speech, Queensland ParliamentaryDebates, 22 June 2000, p 1892.

49 Hon R J Welford MLA, Minister for Environment and Heritage and Minister for NaturalResources, Water Bill 2000 (Qld), Second Reading Speech, Queensland ParliamentaryDebates, 22 June 2000, pp 1895-1896.


4.1. EXISTING FRAMEWORK

It is worthwhile to briefly examine the deficiencies of the existing framework forthe allocation of water entitlements in order to show why it was considered thatchanges (as provided in Chapter 2 of the Bill) were necessary to keep pace with theimplementation of the CoAG water reform framework.

The Water Resources Act 1989 (Qld) (the WRA) is the main piece of legislationregulating Queensland’s water industry. It is now over a decade old and reflects thephilosophies of a time when sustainable management and development of waterresources were less vital and water was more plentiful. The WRA is focused uponschemes, generally involving the construction, maintenance or operation of worksfor developing water resources.50 Without significant changes, that legislativeregime would be unable to cope with the new focus upon, and scientific advancesin, analysing environmental aspects of water use, the health of river systems, andthe growing awareness of the need for ecologically sustainable development of allnatural resources.

The problems with the WRA and the current licensing framework examined belowfocus only upon the rural water allocation and entitlements aspects:51

• water allocations are established though a system of licences issued towater users on an incremental ‘first come–first served’ basis without anybasin-wide planning. Water allocations can continue to be made to thepoint where there is not enough water to satisfy existing needs, thuseroding the security of existing entitlements as demand for waterincreases. In areas where water is becoming scarce, the only means ofobtaining extra water may be to purchase additional land which has awater entitlement attached to it. That also has an impact on theenvironment of the river system and related ecosystems;

• existing legislation makes no express provision for allocating water for theenvironment. There is some evidence that many parts of river systemscannot provide for future allocations and/or the health of the river hasdeclined;

• the incremental licensing system is not secure for entitlement holders as alicence is issued for about seven years and its value can be eroded as wateravailability becomes less reliable. Licences are susceptible to change orcancellation by government or the infrastructure operator, with whom thewater user has a supply contract, without compensation;

50 Fisher, p 203.51 The following is based on information contained in: Queensland. Department of Natural

Resources, Water Allocation Management Planning, Information Booklet, 3rd Edition,Brisbane, 1998, pp 4-5, and Water Bill 2000 (Qld), Explanatory Notes, p 2.


• water is not transferable separate from the land interest to which it is tied.Consequently, expansion in use may require the need for buying furtherland, otherwise limited opportunity exists for water to be put to morebeneficial or efficient uses;

• some users without licences who rely on beneficial flooding (eg channelcountry) for their various needs (eg graziers to maintain pastures for theirstock) have no legislative protection of those rights;

• there is no ability to regulate overland flow water (the taking of which hasan effect upon the amount of water available to the environment and forusers downstream);

• water allocations can be made under a number of pieces of legislation,involving many different decision making processes;52

• water allocations are usually authorised through a licence for works suchas pumps or bores. Thus, decisions concerning water allocation tend toride on the coat-tails of decisions concerning works proposals when theconsiderations applying to water allocations are essentially separate; and

• there are limited community consultation and participation rights.

4.2. PROCESS OF DEVELOPING THE WATER BILL

The Water Bill 2000 (Qld) is the culmination of a process that began in 1998 withthe preparation of Draft Policy Papers, followed by Exposure Draft Bills and 18months of extensive consultation with a number of stakeholders and the generalcommunity. A number of information and feedback sessions were held and manyinformation brochures, fact sheets and summary documents (most available onDNR’s website) were made available.

The main framework for consultation with stakeholders was through the WaterIndustry Peak Consultation Committee, which met on a monthly basis from theoutset of the reform process. The Committee consists of representatives frombodies including the Queensland Farmers Federation, the Local GovernmentAssociation of Queensland, the Queensland Irrigators Council, the EnvironmentalDefenders’ Office (Qld) Inc., the Australian Conservation Foundation,CANEGROWERS, and AgForce. In addition, the Water Reform Unit (WRU) ofDNR undertook more informal consultations with groups such as the QueenslandMining Council and major water service providers (eg the Urban Water Boards andthe SouthEast Queensland Water Corporation).

52 For example, as well as under the Water Resources Act 1989, under the Petroleum Act 1923

(Qld) ,


4.3. FRAMEWORK OF THE WATER BILL 2000

An overview of the framework of the entire Water Bill is now set out to provide thecontext for the water allocation and sustainable management aspects dealt with inChapter 2 of the Bill (considered in this Bulletin).

The Water Bill draws together three Exposure Draft Bills that were released forpublic consultation over the past six months:

• Exposure Draft Water (Allocation and Management) Bill (December1999), now Chapter 2 of the Water Bill - provides the legal basis forWater Allocation Management Plans and transferable water allocations(considered in detail in this Bulletin);

• Exposure Draft Water and Sewage (Infrastructure and Services) Bill(March 2000), now Chapter 3 of the Water Bill - establishes a system ofregistration of water service providers and requires them to maintain theirassets and establish customer service standards. It also requirescompliance with dam safety requirements for hazardous dams, providesfor flood mitigation activities, and deals with the supply of water andsewerage services in urban areas by amending relevant provisions of theSewerage and Water Supply Act 1949 (Qld);

• Exposure Draft Water (Statutory Authorities) Bill (March 2000), nowChapter 4 of the Water Bill – applies to rural water and drainage boards(to become water authorities) constituted under the Water Resources Act1989 (Qld) and also deals with arrangements concerning institutionalreform of the Gladstone Area Water Board.53 It covers the establishmentand operation of public sector water authorities, a process for categorisingthem so they meet specific accountability requirements depending uponsize, and brings all water authorities under a single governance structure.It requires all service providers to be efficient in undertaking theirfunctions, including the supply of water, drainage services or sewageservices, by applying commercial principles.

The Bill also contains provisions for enforcement, investigation and legalproceedings for offences under the legislation; procedures for review, appeals andarbitration; compensation measures; and transitional provisions.

53 Formerly constituted under the Gladstone Area Water Board Act 1984 (Qld).


5. CHAPTER 2: ALLOCATION AND SUSTAINABLEMANAGEMENT

While Chapters 3 and 4 of the Water Bill are also important, this Bulletin dealswith the reforms concerning water resource planning, allocation and managementin Chapter 2 of the Bill.

5.1. INTRODUCTION

Chapter 2 of the Water Bill provides for a statutory water resource plans (WRPs)on a catchment by catchment basis to define the availability of water, provide aframework for sustainable management of water and for establishing waterallocations and for reversing, where practicable, degradation that has occurred innatural ecosystems.54

Chapter 2 will provide legislative basis for the water allocation and managementprocess that has been occurring at a policy level for the last few years. The newWRPs were formerly known as either Water Allocation Management Plans(WAMPs), which are policy documents lacking legislative basis, or WaterManagement Plans (WMPs) 55 made under the Water Resources Act 1989. In orderto be consistent with the Bill, this Bulletin will refer to both WAMPs and WMPs asWRPs, unless specific reference is made to a particular WAMP or WMP.

WRPs generally provide for the making of Resource Operations Plans whichimplement, on a day-to-day operational level, the rules of the WRP for particularparts of the catchment. A WRP may allow existing water licences to be convertedto water allocations that can be traded separately from land in accordance with therules established by the Resource Operations Plan made by the Chief Executive.

Chapter 2 also regulates water use with the aim of promoting sustainable use ofwater having regard to the effects of water use on land and water resources. It doesthis through providing for Water Use Plans, that set out requirements for water usein a particular district; and Land and Water Management Plans, which will betargeted at areas with a high risk of degradation.

5.2. PURPOSE

Clause 10 of the Water Bill provides that the purpose of Chapter 2 is to:

54 Water Bill 2000 (Qld), cl 38.55 Water Management Plans are discussed briefly in Section 6.5 of this Bulletin.


Advance sustainable management and efficient use of water and other resources(quarry materials and riverine vegetation) by establishing a system for the planning,allocation and use of water.

Functions and powers exercised under the Bill must be exercised in such a way thatadvances the abovementioned purpose: clause 12.

There are two limbs to the purpose clause – ‘sustainable management’ and‘efficient use’, which are both defined in sub-clauses 10(2) and (3), respectively.

‘Sustainable management’ is management that:(a) allows for sustainable allocation and use of water for the physical, economic

and social well-being of the people of Queensland and Australia;(b) protects the biological diversity and health of natural ecosystems;(c) contributes to–

(i) planning confidence of water users now and in the future regarding theavailability and security of water entitlements;

(ii) the economic development of Queensland in accordance with theprinciples of ecologically sustainable development (defined in clause1156);

(iii) maintaining or improving the quality of naturally occurring water andother resources that benefit the natural resources of the State;

(iv) protecting water, watercourses, lakes, springs, aquifers, naturalecosystems and other resources from degradation and, if practicable,reversing the degradation that has occurred;

(v) recognising the interests of Aboriginal people and Torres StraitIslanders and their connection with the landscape in water planning;

(vi) providing for the fair, orderly and efficient allocation, includingtransferability, of water to meet community needs;

(vii) increasing community understanding of the need to use and managewater in a sustainable and cost efficient way;

(viii) encouraging the community to take an active part in planning theallocation and management of water; and

(ix) integrating, as far as practicable, the administration of this [Bill] andother legislation dealing with natural resources: clause 10(2).

56 The definition of ecologically sustainable development includes the precautionary principle,

conservation of biological diversity and ecological integrity as fundamental to decision-makingand intergenerational equity (see the Intergovernmental Agreement on the Environment 1992,discussed in Section 3.2). It also reflects the principles set out in s 3A(a)-(d) of theEnvironment Protection and Biodiversity Conservation Act 2000 (Cth); the need for a strong,growing and diversified economy to enhance the capacity for environmental protection; and forthe involvement of the community in decision-making.


The definition of ‘sustainable management’ is quite broad and, there is possibletension between a number of the elements – particularly those concerningprotecting biological diversity and ecosystems and those considerations of aneconomic nature.57 In the Exposure Draft Water Allocation Management Bill, thepurpose clause was framed so that sustainable management of water resources isachieved only to the extent that it sustains the life supporting capacity of water andecosystems. In the new Water Bill, this statement is no longer present and there isno indication of which considerations should have precedence.58

‘Efficient use’ of water is defined in clause 10(3) and includes concepts such asdemand management measures, water conservation and water quality objectives,recycling and considerations of volume and quality of water.

5.3. WATER RIGHTS

The law has traditionally regarded flowing water, as opposed to underground water,to be common property and not capable of private ownership. Rather, one refers torights of access to water. Outside of a statutory framework, the law generallyrecognised access to water resources as incident to ownership of land (surfaceownership or riparian ownership). Riparian ownership is based on the idea thateach owner of land should have the right to use a stream flowing over the surface ofhis or her land in a manner that is not inconsistent with a similar right oflandowners upstream or downstream.59 Thus, a landowner can take water forordinary purposes or for purposes connected to use of the property provided that itis reasonable use that does not materially affect the availability of water to othersbelow or above on the stream.

5.3.1. Rights of the State Under Existing Law

From a very early point in Australia’s history, the Crown was given the exclusiveand absolute right to the use, flow and control of the water in all rivers and lakes.60

57 P-L Tan, Water Bill 2000: Environmental Implications, Queensland Environmental Law

Association Seminar on ‘Water Bill 2000’, 25 July 2000, p 1. Compare this provision withclause 10 of the Water Management Bill 2000 (NSW), which appears to give priority to theenvironment.

58 Tan, Water Bill 2000: Environmental Implications, p1.59 Acton v Blundell (1843) 12 M & W 324 at 348 and 349; Fisher p 68.60 See, eg Water Rights Act 1896 (NSW). See also, Fisher p 3. Since the decision in Mabo v

Queensland (No 2) (1992) 175 CLR 1, the Crown now has a lesser right of ‘radical title’ (alesser right than absolute title, which can be burdened by native title) rather than ‘exclusive andabsolute rights of ownership’.


In this way, public management of water resources was created. Under the WaterResources Act 1989 (Qld), the Crown has the right to the use and flow and controlof water in certain defined circumstances (eg water in a watercourse that flowsthrough or past land in multiple ownership or occupation).61 The rights of riparianowners and occupiers of land are restricted to use of water for domestic purposesand for watering stock.62

5.3.2. Rights of the State Under the Water Bill

Part 2 of Chapter 2 of the Water Bill deals with rights of access to ‘water’ (definedto include water in a watercourse, lake or spring or underground water or overlandflow or water collected in a dam from any of those sources) in Queensland.

Under the Water Bill, the State is vested with the management of the way in whichwater is taken or interfered with, as is currently the position under the WaterResources Act 1989. However, it is proposed that all rights to the use, flow andcontrol of all water in Queensland will be vested in the State: clause 19. A majordeparture from previous water legislation is the vesting of use, flow and control ofoverland flow water in the State (see below).

The ability of an individual to take or interfere with water is dependent uponobtaining a water entitlement from the State, subject to statutory rights andemergency situations set out in clause 20.

However, riparian rights will continue as statutory rights for landowners abuttinga watercourse, lake or spring. Water may be taken for domestic purposes or fornormal stock watering. There is also a right for any person to take water forcamping purposes or for watering travelling stock.

5.3.3. Overland Flow Water, Subartesian Water and Water Resource Plans

An important feature of the planning process is that the taking of overland flowwater and subartesian water can be regulated by a WRP in certain circumstances.

Overland flow water is water that flows over land, including floodwater, after ithas rained and before it enters a watercourse or rises to the surface naturally fromunderground. However, water that soaks into the soil under normal farmingoperations, tailwater recycling and rainwater collected on roofs for tanks is not partof the concept of ‘overland flow’.

61 Water Resources Act 1989 (Qld) s 3.62 Water Resources Act 1989 (Qld) ss 34(1), 36(1).


Until the Water Bill is passed, the State Government has no jurisdiction over thetaking of overland flow water. There is growing anxiety in some rural areas (eg inparts of the Condamine-Balonne Basin) about people harvesting excessive amountsof overland flow water into storage facilities before it reaches watercourses, therebydepriving other water users further downstream and the environmental needs ofriver systems. In addition, there is the possibility that there will not be sufficientwater to sustain fishing and other industries that rely on overland flow.

Under the Water Bill, the use, flow and control of all water in Queensland vests inthe State and the Government can now regulate, through WRPs, the taking ofoverland flow water in areas where there are identified problems. However, it willbe possible to continue to use overland flow water in the same way as before theBill unless there is a WRP or a moratorium notice limiting or altering that use.63

Overland flow will be subject to a WRP if the Minister is satisfied that the taking orinterfering with the overland flow water:

• may significantly impact on the outcomes of an existing WRP; or• may significantly affect:

• the availability of water to existing water users; or• the water requirements of natural ecosystems; or• beneficial flooding (where flooding provides a benefit to owners of

land through replenishing the moisture content of soil); or• changes in land use activities in the area are, or are likely to, have a

significant affect on overland flow water.

Thus, overland flow water will not be regulated in all cases. Regulation will be ona ‘needs’ basis approach and it is anticipated input from local stakeholders will bean important feature.

There are various ways of regulating the use of overland flow water. One is to haveno controls and this will, in fact, be the case unless there is a need for them.Controls could take the form of voluntary codes of practice (self-regulation) orregulatory controls though a WRP. Thus, in any one catchment, depending on thecircumstances, controls may vary from none, to voluntary codes of practice,through to regulatory controls.

An example of how a WRP, operating through a Resource Operations Plan, mightregulate the taking or interfering with overland flow water may be to limit to aparticular volume the amount of water that can be diverted and stored in a dam foreach hectare of property, or state the minimum share of overland flow that eachowner of land in the proposed plan area may divert. In some circumstances, the

63 Water Bill 2000 (Qld), clause 20(6).


minimum share of water may be no more than that necessary to meet the waterrequirements of the landowner for watering of stock or domestic purposes.64

In addition, as will be explained later, a moratorium notice may affect the mannerin which overland flow water can be taken or interfered with while a WRP is beingprepared, even if the overland flow water is not itself subject to a WRP.Moratoriums do not, however, affect the right of owners of land on which there isoverland flow water to take water for domestic purposes or for watering stock(riparian rights).

Subartesian water will be regulated by a WRP if the Minister is satisfied ofcertain matters (similar to those which are considered when determining whether toregulate overland flow water).

An example of such regulation might be a requirement that a water licence beobtained to take or interfere with subartesian water for purposes other thandomestic use and watering stock.

6. WATER PLANNING

A chart showing the new framework under which water planning andimplementation will operate is provided in Appendix C.

6.1. OVERALL PLANNING

Under Part 3, the Minister and the Chief Executive is required to plan for theallocation and sustainable management of water to meet Queensland’s future waterneeds. Records of the volume and quality of water (which must be collected andkept by the Chief Executive, including information from other agencies concernedwith water management) must be publicly available. Thus all relevant stakeholdersand any interested persons can access information concerning the use andsustainability of a particular water resource.

6.2. WATER RESOURCE PLANS

A WRP (either a WAMP or a Water Management Plan) provides an important firststep in the management and ecologically sustainable use of rural water resources byproviding an overall planning regime for the use of water in a catchment (includingoverland flow water and subartesian water).

64 Water Bill 2000 (Qld), Explanatory Notes, p 38.


WAMPs (even if being developed or finalised) become statutory WRPs underWater Bill. Until the Bill is passed, WAMPs have policy status only.

6.2.1. Aims of the Planning Process

It appears that WRPs have the following aims and objectives:65

• identifying the availability of water for any purpose, founded on basin-wide scientifically based models;

• providing a framework for sustainable management of the resource (eglimiting the issue of licences);

• improving planning confidence of water users through rules governing thecreation of water allocations, based on scientific analysis being,established at the outset;

• separating water allocations from land title to allow trading, subject totrading rules in the Resource Operations Plan. Water users can expandand diversify operations without needing to buy more land;

• providing for appropriate allocations to the environment. For the firsttime, the environment is recognised by statute as a legitimate user of waterwith protected entitlements;

• encouraging community input through the involvement of communityreference panels comprising representatives from various stakeholderbodies (clause 41) and through a public submission process;

• providing a framework for reversing, where practicable, degradation innatural ecosystems;

• identifying priorities and mechanisms for dealing with future waterrequirements (eg through issuing further water allocations).

6.3. CONTENTS OF A WATER RESOURCE PLAN

WRPs are essentially framework documents that establish a number of objectives,criteria, benchmarks and strategies, determined through hydrologic modelling, to beapplied and achieved over a ten year period. They incorporate scientific evidence,community views and government policy and attempt to provide a basis uponwhich healthy river systems and ecosystems can be sustained by ensuring thatdecisions affecting water resources in the plan area conform to the managementstrategies set out in the WRP.

65 The discussion under this heading combines information from the following sources:

Queensland. Department of Natural Resources, Water Allocation Management Planning,Information Booklet, 3rd Edition, Brisbane, 1998, pp 7-9; Water Bill 2000 (Qld), clause 38(3).


Assessment criteria must also be included, which is used in decision-makinginvolving use of the water resources in the basin, to ensure that the plan’sobjectives are achieved. Monitoring and reporting mechanisms are established as abasis for measuring and enforcing compliance with the requirements of the WRP.

Examination of the finalised Fitzroy Basin WAMP and the draft Condamine-Balonne WAMP reveals that WRPs aim to be consistent with CoAG’s waterreform framework; the principles of ecologically sustainable development; NationalCompetition Policy Agreements, the Intergovernmental Agreement on theEnvironment and the National Principles on the Provision of Water forEcosystems.66

There are a number of matters (set out in clause 46(1)) that the WRP must contain:• A statement of the purpose of the plan -

(eg The purpose of this plan is to provide a framework for the sustainableallocation and management of water in the plan area);67

• the periodic reporting requirements -(eg The chief executive will publish an annual report detailing … [matters suchas effectiveness of the plan’s management strategies in meeting the objectives,compliance or non-compliance with the plan etc]);68

• arrangements for its implementation (eg status of existing licences to takewater, basis of conversion of existing licences to water allocations);

• a map of the plan area and indication of the water to which it is intended toapply -(eg This plan applies to water in watercourses, lakes or springs and/oroverland flow water in the plan area);

• a statement of outcomes, including ecological outcomes, for sustainablemanagement and proposed strategies to achieve them, based on the bestscientific information available -(eg Water in the plan area must be managed in an integrated and sustainableway to provide security for water users and for environmental waterrequirements for aquatic ecosystems in the plan area.

The outcomes specified are to be achieved by making provision under this planfor the progressive development of [Resource Operations Plans] for specifiedparts of the plan area…);69

66 See, for example, Queensland. Department of Natural Resources (DNR), Water Allocation and

Management Plan (Fitzroy Basin) 1999,http://www.dnr.qld.gov.au/resourcenet/water/WAMP/fitz.html, last updated 2 February 2000,downloaded 8 March 2000 (containing a Plan Overview and the actual WAMP) p 13.

67 DNR, Water Allocation and Management Plan (Fitzroy Basin) 1999, s 4.68 DNR, Water Allocation Management Plan (Fitzroy Basin), s 29.


• a statement of the water monitoring requirements and natural ecosystemmonitoring requirements to assist in assessing the effectiveness of thoseproposed management strategies -

(eg Water monitoring requirements for water operators

Water operators must undertake an ongoing water quantity monitoringprogramme which must measure –

(i) inflows to dams, weirs and barrages …

(ii) deliveries and diversions of regulated water supplies from each section ofwatercourse, lake or spring ….

eg Water and aquatic ecosystem monitoring requirements

Water and aquatic ecosystems must be monitored in respect to: stream flows,frequency and duration and seasonality of stream flow events, aquatic macro-vertebrate species diversity, abundance and composition ….etc.).70

However, if the plan provides for the establishment of transferable waterallocations it must set out the following:

• environmental flow objectives;• water allocation security objectives;• performance indicators and criteria for both of the above; and• priority areas for establishing water allocations.

‘Environmental flow objectives’ state how much water flow is needed to maintainand, where possible, improve water-dependent ecosystems. The objectives aredefined in terms of performance indicators. For example, the WRP may providethat the Resource Operations Plan, any developments, or water allocation transfersunder the plan must satisfy certain objectives, such as the first post-winter flowevent objective (which is then set out in statistical terms as a performanceindicator). Thus, decisions made under the WRP are assessed, using a hydrologicmodel (explained below), by testing whether the performance indicators wouldachieve the WRP’s environment flow objectives.

‘Water allocation security objectives’ seek to protect, during the life of the WRP,the ability to obtain the water that is provided for in a water allocation. Theseobjectives define the long-term performance of a particular priority group of waterallocations within a defined area of the basin (eg waterharvesters in a particularriver, each with a common pumping threshold). Again, they are stated in terms ofperformance indicators (eg for waterharvesters, the number of days in which waterdiversions could be expected to occur over particular periods). Thus, the plan

69 DNR, Water Allocation and Management Plan (Fitzroy Basin), s 9.70 DNR, Water Allocation and Management Plan (Fitzroy Basin), s 15.


might state that preparation of a Resource Operations Plan or developmentproposals under the plan must satisfy the water allocation security objectives byensuring that the performance indicators are at least equal to or greater than certainvalues listed in the plan.

WRPs may also contain other things such as maps or diagrams; information aboutwater available for future consumptive use; information about overland flow water;processes for dealing with unallocated water (see clause 42(2) for other matterswhich may be included).

A central feature of a WRP is basin-wide hydrologic modelling. It is a computerprogramme71 of existing streamflows, which simulates the behaviour of a riversystem for a set of conditions (eg storage capacities, irrigation) over a historicalperiod of time (eg 1900-1995), incorporating events such as significant drought andfloods. It will act on existing water entitlements, environmental flow provisionsand any other known future commitments.

Hydrologic modelling provides an understanding of the way in which the basinfunctions and how the health of the river systems will be improved. It will bepossible to predict whether or not a basin has reached, or almost reached, its limitof supply and predict the possible effects of various decisions eg increasing waterallocations. This scientific approach allows for informed decisions about futuresustainability of water resources in the basin and should mean that the security ofwater allocations will be enhanced. 72

A technical advisory panel (TAP), comprising of environmental scientists withspecialist knowledge of the river systems in the relevant WRP area undertakesextensive studies and provides advice concerning the environmental flowrequirements of river systems in the basin (including possible environmental flowmanagement scenarios that could be adopted in the plan), and the possibleecological implications associated with various future development scenarios. Acommunity reference panel (discussed below) also has input during this process,providing a sample of stakeholder and community views on relevant issues.

The blueprint provided in the WRP is given operational effect through a ResourceOperations Plan (see Section 7.1) being developed for particular areas within thecatchment.

The map at Appendix D shows the locality and stage of development of WRPs(either WAMPs or WMPs) in Queensland.

71 DNR’s Integrated Quantity and Quality Model was used for the Fitzroy Basin WAMP.72 Queensland. Department of Natural Resources, Water Allocation Management Plans,

Information Booklet, 3rd Edition, September 1998, p 13, 14.


6.4. MAKING THE WATER RESOURCE PLAN

The following is a guide to the WRP preparation process under the Water Bill 2000(Qld).

6.4.1. Information Report

First, the Minister must prepare a publicly available information report on waterallocation and sustainable management issues in the WRP area; arrangementsconcerning the establishment of community reference panels, and arrangements fortechnical assessments: clause 39. The report seeks to provide a summary of therationale for the WRP for the information of people who might be affected by it andthe public in general.

6.4.2. Notice of Intention

Secondly, the Minister must publish notice of intention to prepare a draft WRP:clause 40. It has to set out the plan’s rationale (eg to allow for water allocations tobe established), the proposed plan area and the water to which it is intended toapply.

The notice must invite written submissions (setting a deadline of not earlier than 30business days after publication of the notice) about the proposed draft WRP and theestablishment of the community reference panel.

Local governments in the relevant area must be given a copy and those localgovernments must make it available for public inspection. Other appropriateentities (generally farming, conservation and industry groups, catchmentmanagement groups, indigenous representatives, other agencies such as theEnvironmental Planning Agency (EPA), other relevant statutory bodies or groups)will generally be notified also.

Community Reference Panels

Under clause 41, the Minister must immediately establish a community referencepanel (CRP) consisting of representatives from cultural, economic andenvironmental interests in the relevant area. Thus, the CRP will comprise membersfrom a number of stakeholder groups eg industry, conservation groups, indigenousgroups. Its role is to provide advice on community views on issues relevant to thedevelopment of the WRP. Given that the CRP represents a range of differentstakeholder viewpoints, an advisory, rather than a decision-making role isconsidered more appropriate.


The CRP will provide advice during the various stages of the planning processthrough liasing with DNR officers and technical persons on the TAP. It can alsomake submissions on behalf of stakeholders and provide feedback.

Moratorium Notice

On or after the day the notice of intention is published, the Minister may (thusgiving the Minister a discretion) issue a moratorium notice in relation to theproposed plan area. The purpose of the moratorium is to stop only those activitiesthat may impact significantly upon the status quo during the planning process.Thus, the notice may prevent applications for an increase in the taking of, orinterference with, water except in certain specified circumstances,73 from beingaccepted or further processed (even if lodged before the notice takes effect):clause 42.

The moratorium will generally be announced on the same day as the publication ofthe notice of intention in order to prevent a rush of development once the intentionto prepare the WRP is announced.74 Given that the Minister has a discretion aboutwhether or not to issue a moratorium notice, it is possible that a decision not toannounce a moratorium for the duration of the WRP process may prompt themaking of development applications.75

In relation to overland flow water and subartesian water not regulated by a WRP,the notice may stop new works from commencing or from continuing beyond theextent stipulated in the notice. However, this will occur only to the extent that theworks would increase the taking of, or interfering with, the water: clause 42(4), (5).

The notice stays in force until finalisation of the WRP, or until the Ministerpublishes a notice of intention not to proceed with the draft plan.76 If it looks likeremaining in force for over a year, the Minister has to review the notice, within thatyear, to determine if it is still necessary or whether any amendments should bemade. Rural industry groups have expressed concern that moratoriums areunnecessarily protracted and it is intended that periodic reviews will alleviate thatsituation.

73 These being the issue of water permits, stock and domestic entitlements, water for emergencies,

water for camping or for travelling stock or other uses specified in the notice: Water Bill 2000(Qld) , cl 45.

74 Water Bill 2000 (Qld), Explanatory Notes, p 22.75 Environmental Defenders’ Office (Qld) Inc, Draft Submission on Draft Water (Allocation

Management) Bill, March 2000, p 21. However, clause 42 of the Water Bill differs from theearlier provision in the Exposure Draft Water Allocation Management Bill.

76 Water Bill 2000 (Qld), cl 42(7).


A breach of the moratorium notice will result in a fine of up to $124, 875.

6.4.3. Preparing the draft WRP

In preparing the draft WRP, the Minister must have regard to a number of matterslisted in clause 47. Those considerations include (but see clause 47 for others) theState’s water rights and volume and quality of water; water flows and undergroundwater levels and recharge processes necessary to support natural ecosystems;existing water entitlements; and environmental values established by theEnvironmental Protection (Water Policy) 1997.

Advice received from the CRP, relevant technical assessments, properly madepublic submissions and the public interest are also relevant considerations. There isno indication provided as to what the term ‘public interest’ encompasses.

The Minister must then make available to the public an overview report about theproposed draft plan. The purpose of the report is to summarise any assessments orfindings about matters that the Minister has had to consider in preparing the draft:clause 48.

The next step is publication of a notice stating where the draft WRP can beaccessed (although, as with the notice of intention, copies of the draft WRP must besent to all local governments in the relevant area) and public submissions invited:clause 49. The public submission process is the same as that in relation to thenotice of intention (see above). The final plan must take into account those publicsubmissions.

6.4.4. Final Plan

Approval of the final plan is given by the Governor in Council: clause 50. TheMinister then has 30 days in which to prepare a public report on the consultationprocess. Once approved, the WRP is subordinate legislation. It lasts for a period often years, unless a review prompts the creation of a new WRP.77

While it is anticipated that most WRPs will exist for ten years, the Minister has theability to amend a WRP or make a new WRP if a periodic review of the plan (thefrequency of which is specified in the plan), satisfies the Minister that the plan’senvironmental flow objectives or water allocation security objectives are not beingmet, are no longer appropriate, or are no longer promoting the purpose of thelegislation. Thus, a periodic review may prompt an earlier revision of the WRP:clause 55. It should be noted that the CoAG framework provides for five-yearlyreviews of such plans as does the New South Wales’ Water Management Bill 2000. 77 Any amendments to the WRP must follow the same processes as for the actual plan: Water Bill

2000 (Qld), cl 56.


In any event, before expiration of the ten year period, a review of the WRP must beundertaken so that the new plan is ready to replace the existing one.

The Government has recently streamlined the planning process so that a WRPshould take no more than 18 months to formulate. It is anticipated that key matters(such as a scientific and environmental assessment of the health and quality of thecatchment and potential for future water uses) are completed as early as possible,thereby providing more certainty for communities. This can be particularlyimportant if the Minister has placed a moratorium on the use of water resourcesduring the WRP process.

6.5. EXAMPLES OF WATER RESOURCE PLANS

It may be worthwhile, at this point, considering some current WRPs that have beenfinalised or are in the pipeline. A map depicting the current situation is located inAppendix D.

6.5.1. The Fitzroy Basin WAMP

In December 1999 the Water Allocation and Management Plan (Fitzroy Basin)1999 was released. The Fitzroy Basin is the first catchment to be covered by afinalised WAMP. It provides a blueprint for the future use of water anddevelopment in the Basin.

Preparation began in 1995 and the draft WAMP was released for publicconsultation in September 1998. The final version took into account outcomes ofconsultations with relevant stakeholders (through the CRP process) and publicsubmissions. One of the key objectives of the plan is to improve certainty in termsof allocations of water for consumptive use and in terms of providing water forenvironmental requirements.78

It is claimed that the Fitzroy Basin Technical Advisory Panel considered that theenvironmental flow limits (levels of impact beyond which there is considered to bean increased risk of unacceptable environmental degradation) in the draft WAMPdid not reflect sustainable use of water and also that DNR did not obtain the bestavailable scientific data.79 It is unclear whether the final version of theenvironmental flow objectives has overcome that observation.

78 DNR, Plan Overview, Water Allocation and Management Plan (Fitzroy Basin) 1999, p 9.79 Environmental Defenders’ Office (Qld) Inc, Draft Submission on Draft Water (Allocation

Management) Bill, March 2000, pp 20-21.


So far, the Fitzroy WAMP has received cautious approval from the QueenslandFarmers Federation as a means for enabling new development and industry growthin the region.

The provisions of the Fitzroy WAMP also covered the impacts of the proposed880,000 megalitre Nathan Dam project on the Dawson River (reportedly twice thesize of Sydney Harbour)80 to be built by private developers, SUDAWDevelopments, at a cost of around $150 million. The assessment made was that itwould be possible to manage the infrastructure in the Dawson system to conform tothe need to allow a proportion of the first naturally occurring post-Winter flows tobe available for the environment.81

The Queensland Government has approved the project in conjunction with therelease of the Fitzroy WAMP, claiming that the dam would open up approximately30,000 hectares of new irrigation land in the Dawson Valley and may result inemployment growth.82 It is also possible that water use may be encouraged awayfrom low value uses eg cotton, to high value uses, such as grapes.83 On the otherhand, conservation groups have condemned the decision to build the dam, arguingthat important wetlands will flood and this will affect the overall health of the river.SUDAW is currently assessing the commercial viability of the dam project.

Additional water allocations in some parts of the Basin have been provided for inthe WAMP. In some areas there is a moratorium on the processing of applicationsfor licences until the completion of planning studies to determine future waterallocations.

A Resource Operations Plan now needs to be prepared for the lower Dawson River,in consultation with licence holders, to address any economic impacts associatedwith a decline in the performance of existing waterharvesting licences downstreamof the Nathan Dam.84 Changes to existing rights may result, such as amendments tothe conditions of existing waterharvesting licences, to ensure preservation ofexisting benefits, or the conversion of existing licences to water allocationssupplied from Nathan Dam. In addition, the WAMP provides for the formalisationof water allocations for the existing Fitzroy Barrage irrigators to medium prioritywater allocations so that those irrigators will have secure allocations for the

80 Siobhan Ryan, ‘Water debt’, Courier Mail, 1 January 2000, p 28.81 DNR, Plan Overview, Water Allocation and Management Plan (Fitzroy Basin) 1999, p 13.82 Hon J Elder MLA, Deputy Premier and Minister for State Development and Trade, ‘Fitzroy

water management and Nathan Dam report released’, Ministerial Media Statement, 23December 1999; Asa Wahlquist, ‘Dam it! On the front line of the water wars’, Australian, 1January 2000, p 39.

83 Asa Wahlquist, 1 January 2000, p 39.84 DNR, Water Allocation and Management Plan (Fitzroy Basin) 1999, s 22.


duration of the WAMP rather than temporary access to water through currentarrangements with the Rockhampton City Council.

Otherwise, all existing authorisations for the taking of water continue underexisting terms and conditions until converted or otherwise amended in line with theWAMP or Resource Operations Plan.85

Under the transitional provisions in Chapter 9 of the Bill, the Fitzroy Basin WAMPbecomes a WRP under Chapter 2, providing a framework for establishing waterallocations. Thus, it is deemed to have complied with the relevant proceduralprovisions for preparing a WRP.86 This is despite the fact that the WAMP wasfinalised before the detailed provisions in the Bill concerning public notification,relevant considerations to be taken into account in making the plan, and thecontents requirements in clause 46 come into force.

6.5.2. Draft Condamine-Balonne WAMP

The draft Condamine-Balonne WAMP was released in June 2000 for publiccomment and has met with considerable controversy. The catchment is one of themost developed in Queensland, supporting a large primary production industry.Despite a general moratorium on the issue of new waterworks licences over the pastfive years in all parts of the Basin, water diversions from the system have increasedsignificantly over the past decade. Those increases have been primarily due to arecent increase in the total off-stream storage capacity and diversions associatedwith irrigation, waterharvesting, and overland flow diversions, coupled with theactivation of “sleeper” licences.87

Scientific assessments undertaken during the development of the draft WAMPraised serious concerns about the long-term capacity of the river system to supportthis production without major environmental impacts.88 The scientists involved inthe assessments underpinning the draft WAMP also indicated that it is not possibleto yet determine the full long-term extent of the ecological impacts associated withcurrent diversion rates.

Some of the assessments upon which the draft WAMP is based are supported by abasin-wide salinity audit that was commissioned and completed by the Murray- 85 DNR, Water Allocation and Management Plan (Fitzroy Basin) 1999, ss 17-18.86 Water Bill 2000 (Qld), clause 1041.87 Queensland. Department of Natural Resources, Plan Overview, Draft Water Allocation

Management Plan (Condamine-Balonne Basin), June 2000, p 8. ‘Sleeper’ licences are thosenot currently being utilised by the licensee.

88 DNR, Plan Overview, Draft Water Allocation Management Plan (Condamine-Balonne Basin),June 2000, p 3.


Darling Basin Ministerial Council,89 which found a significant increase in salinitylevels in the Condamine-Balonne area.

In response to findings of some stress and poor ecological health in parts of theLower Balonne area, the draft WAMP proposes to tighten up the specifications ofexisting licences (such as setting maximum annual diversion volumes, dailydiversion rates and a range of other access constraints) rather than continuing thepresent situation where some licences are open-ended in how much water can betaken or diverted. It is proposed that there be no further water allocations grantedand that further water needs be met through temporary or permanent trading ofwater allocations. The regulation of the taking of overland flow water (apart fromwatering stock and domestic use) in some areas eg Lower Balonne, UpperCondamine, has also been considered.

The draft WAMP presents for consideration three possible management options.The Government will investigate the environmental, social and economicimplications of those alternative scenarios prior to finalising and implementing theWAMP.

In releasing the draft WAMP, the Minister for Environment and Heritage andMinister for Natural Resources stated that a key objective of the WAMP was toimprove natural environmental flows for the internationally important Narran Lakeswetland system in New South Wales, which forms part of the catchment area. Partof the Narran Lakes area has been placed on the list of Wetlands of InternationalImportance under the Ramsar Convention (see above) and is currently a cause forconcern among environmental groups. Those groups and NSW Governmentresearch claim that water flows into Narran Lakes have decreased from 100% to25%, adversely impacting on breeding sites of species of birds (some of which arethe subject of International agreements) dependent upon the habitat provided by theLakes.90

The draft WAMP provides a framework for the development of environmental flowmanagement strategies to be achieved through progressive implementation of aResource Operations Plan throughout the basin.

The draft has met with some opposition from farmers in the catchment area who arefearing a loss of existing rights to take water under the WAMP. Some have deniedthat the river system has become stressed and suggest that the proposals in the drafthave the potential to impact adversely upon the cotton industry, particularly on

89 Australia. Murray-Darling Basin Ministerial Council, The Salinity Audit of the Murray-Darling

Basin, 1999. See the Murray-Darling Basin Ministerial Council Internet Site athttp://www.mdbc.gov.au/naturalresources and follow the links.

90 James Woodford, ‘Water plan will kill river: NPWS’, Sydney Morning Herald, 24 June 2000,p 1.


those growers who have invested heavily in water infrastructure.91 For example,one irrigator has told Deputy Prime Minister, the Hon John Anderson MP, that likemany irrigators, he had invested heavily in the lower Balonne’s developing cottonindustry, capitalising on his 216 megalitre waterharvesting licences to borrowmoney to buy infrastructure for 365 hectares of irrigated cotton, including waterstorage. Under the draft WAMP, it is possible that his water allocation may behalved, thus spreading his debt over a smaller productive area.92

Dirranbandi residents have argued that the insecurity caused by the draft WAMPhas impacted negatively upon small business in that town which is dependent onspending by cotton farmers and their workers. It is feared that the town will beruined if the draft becomes law.93

In early August, the Deputy Prime Minister, Mr Anderson, attended a meeting oflandholders in Dirranbandi and, among other things, endorsed the irrigators’demands for compensation from the State Government, indicating that the CoAGwater reforms supported the right to fair compensation where property rights areaffected.94 The Hon R J Welford, Minister for Environment and Heritage andMinister for Natural Resources, has responded that the actions of the Deputy PrimeMinister have agitated the Dirranbandi community and sent it mixed messages. MrWelford considers that there is a perceived conflict between Mr Anderson’s supportfor the irrigators and the stand taken by Senator the Hon Robert Hill,Commonwealth Minister for the Environment and Heritage, over water cappingand sustainable management.95

Some rural groups have reservations about the integrity of the scientific data in thedraft technical reports, questioning the way environmental data was established andsuggesting a lack of basic ecological data on which conclusions are based. Theyhave demanded, but did not receive, a lift of the moratorium on development ofexisting water harvesting licences in the area while the problems were beingconsidered.96 On the other hand, from an environmental perspective, it is claimed

91 Graham Fuller, ‘Welford’s WAMP blow’, Queensland Country Life, 15 June 2000, p 1.92 Rebecca Winter, ‘Cotton’s bottom line’, Queensland Country Life, 10 August 2000.93 Rebecca Winter, ‘Climate of uncertainty’, Queensland Country Life, 10 August 2000, p 4.93 ‘Condamine planning data seen as deficient’, Acres Australia, 7(11), December, 1999.94 Rebecca Winter, ‘Anderson vows to back growers on WAMP’, Queensland Country Life,

10 August 2000, p 5.95 Hon R J Welford, Minister for the Environment and Minister for Natural Resources, ‘Coalition

conflict impacting on Queensland farmers’, Ministerial Media Statement, 4 August 2000.96 ‘Condamine planning data seen as deficient’, Acres Australia, 7(11), December 1999/January

2000, p 24.


that even under the WAMP option most favourable to the environment, no morethan 54% of water flows would remain in the Condamine-Balonne.97

In response, the DNR Minister has stated that the Government was attempting toensure that any individual impacts from possible outcomes of the draft WAMPwere minimised while also seeking to recover the health of the catchment. Onemeasure was the establishment of special working groups to consider the level ofsocial and economic adjustment needed in the lower Balonne to respond to changesso as to enable the Government to resolve concerns about potential socio-economicimpacts in the area.98 In addition, it appears that meetings are being held in the areato enable irrigators to voice their concerns regarding their perceptions about theintegrity of the drat WAMP. There is also the opportunity to make submissions onthe draft WAMP which, once the Water Bill is passed, must be taken into accountby the Minister in finalising the WAMP.

Under the transitional provisions of the Bill, it is stated that draft WAMPs that havebeen released for public comment are exempt from the procedural requirements inclauses 39-49 (dealing with issues such as public notification, moratorium notices,matters that must be considered by the Minister in preparing the draft plan),provided that the content requirements set out in clause 46 are complied with.Clause 46 is very comprehensive and encompasses matters such as environmentaland ecological factors, environment flow objectives, and water allocation securityobjectives. This would seem to render the issue of deemed compliance with theprocedural provisions less problematic, provided that the objects statement inclause 10 (that the purpose of Chapter 2 is to advance sustainable management andefficient use of water) is carried into the transitional provisions ensuring that thefinal WRP is made in pursuit of that objective.99 This is a very technical legalissue.

6.6. EXAMPLES OF WATER MANAGEMENT PLANS

Water Management Plans (WMPs) are currently provided for under the WaterResources Act 1989 for dealing with sensitive areas in smaller catchments. WMPsare not as rigorous or detailed as WAMPs as they are not designed to establish

97 Siobhan Ryan, ‘Farmers oppose water right cuts’, Courier Mail, 22 June 2000, p 10.98 Hon R J Welford, Minister for the Environment and Minister for Natural Resources, Ministerial

Media Statements: ‘Coalition conflict impacting on Queensland farmers’, 4 August 2000; and‘Special working groups to advise government on Condamine-Balonne WAMP’, 25 July 2000.Two additional working groups were announced on 14 August 2000, see Hon RJ Welford,‘Government acts over Condamine-Balonne’, Ministerial Media Statement, 14 August 2000.

99 Tan, ‘Water Bill 2000: Environmental Implications’, p 3.


transferable water allocations nor allow for trading. WMPs will be brought underthe new legislation as WRPs.

The Water Management (Cooper Creek) Plan 2000 was released in its final form inFebruary 2000. It is made under the Water Resources Act 1989.100 The WMP takesa cautious approach, based upon precautionary principles, to the development andmanagement of water resources in a sustainable and integrated way, having regardto the need for the protection of ecologically sensitive areas. The Cooper is one ofthe last systems in the world with a near natural flow and is a substantiallyuntouched ecosystem.101

Under the WMP, no licences or permits will be granted for taking or divertingwater from the Basin for new irrigation purposes. The only real additional waterallocations will be for limited stock use and domestic water supplies. The idea isthat the taking of water will have minimal impact on variable and seasonal waterflow patterns.

Other draft WMPs which have recently been released for public consultation are –• the draft Boyne River WMP in May 2000 (the main features of which

include a provision for the Awoonga Dam to be raised to a full supplylevel for industrial and town supply purposes incorporating a number ofrequirements for improved water releases (representing approximatelytwice the current allocations), and provision for additional water useupstream and downstream of the dam mainly for agricultural uses102);

• the draft Moonie WMP in May 2000 (which provides for an increase inthe amount of water that can be used for waterharvesting for grazing ormixed farming and provides for 70% of natural flows to reach the end ofthe system at the NSW border103); and

• the draft Warrego/Paroo/Bulloo/Nebine WMP in June 2000 (whichprovides for all existing water licences and permits, makes allowances foradditional industrial water use in each of the four catchments and for

100 Subordinate Legislation 2000 No 27.101 Hon R J Welford MLA, Minister for Environment and Heritage and Minister for Natural

Resources, ‘Government Commits to Protect Cooper’, Ministerial Media Statement,8 September 1999.

102 Hon RJ Welford MLA, Minister for Environment and Heritage and Minister for NaturalResources, ‘Draft Boyne River Water Management Plan released’, Ministerial MediaStatement, 23 May 2000.

103 Hon RJ Welford, Minister for Environment and Heritage and Minister for Natural Resources,‘Draft Moonie Water Management Plan released’, Ministerial Media Statement, 9 May 2000.


modest additional water supplies for water harvesting in the Bulloo Rivercatchment104).

The transitional provisions in Chapter 9 provide that the Cooper Creek WMP istaken to be a WRP under Chapter 2 of the Bill.105 Thus, it is deemed to havecomplied with the requirements therein. Those draft WMPs (eg Boyne River) thathave been publicly released are deemed to have complied with the proceduralprovisions in clauses 39-49, provided the contents provisions of clause 46 arefollowed. Those WMPs currently being developed are exempt from therequirements to provide information reports and to establish CRPs.106

7. IMPLEMENTING THE WATER RESOURCE PLAN

The WRP is only the first step in the water management process. The strategiesand benchmarks established by the WRP cannot be actually complied with withoutbeing given operational effect. In order to be given day-to-day effect in particularareas of the catchment, Resource Operations Plans (ROPs) must be made andResource Operations Licences granted: see Part 4, Division 2. However, only oneROP can be made for any WRP at any one time.

Part 5 provides for the granting of interim Resource Operations Licences to waterinfrastructure operators in areas covered by a WRP where a ROP has not beenapproved. Interim water allocations are also made at the same time to water usersreliant upon the water infrastructure.

7.1. RESOURCE OPERATIONS PLANS

Part 4, Division 3 deals with ROPs which set out the rules for implementing theWRP on a day-to-day management basis. It is used to allocate and share water andto assess compliance by water infrastructure owners.107 It is the Chief Executiverather than the Minister who prepares the ROP. A ROP must include:

• what Water Resource Plan the ROP is made under;• a map of the area;• the water to which it applies;

104 Hon RJ Welford, Minister for Environment and Heritage and Minister for Natural Resources,

‘Government Safeguards South-Western Streams’, Ministerial Media Statement, 22 June 2000.105 Water Bill 2000 (Qld), clause 1038.106 Water Bill 2000 (Qld), clauses 1039-1040.107 P Boettcher, Director, Water Management, State Water Projects, The Corporate Perspective,

Queensland Environmental Law Association Seminar on ‘Water Bill 2000’, 25 July 2000.


• identification of water infrastructure to which the ROP will apply and howit will be operated (using information provided by the operator);

• how the Chief Executive will sustainably manage water in the area;• how the ROP will address WRP outcomes and• water and natural ecosystem monitoring practices and responsibilities:

clause 98

The ROP may also include other matters (many of which also form parts of thecontent of WRPs). Some additional matters that ROPs may include areenvironmental management rules; water sharing rules; and a schedule forprogressive implementation of the ROP over five years.

If water allocations are provided for under the draft ROP, it must state relevantconversion rules, transfer rules, environmental management rules, seasonalwater assignment rules, and water sharing rules. The transfer rules may containlimits on the volume of water that may be transferred between different locations orfor different purposes and/or volume adjustment rates, if the transfer is betweentwo identified zones (eg 100 megalitres at one location might be equivalent to 90megalitres at another location). This is to ensure that transfers that could causesignificant cultural or economic impacts on an area do not occur without priorassessment of whether the proposal is in the public interest.108

If overland flow water is to be regulated under the ROP, the draft must set aminimum share of overland flow water that each owner of land may take (eg a limiton the volume of water that can be taken and stored in a dam).

The process for making the ROP is similar to the two-stage process concerning thepreparation of the WRP, although there is less scope for making changes in itsoverall direction because it has to be consistent with, and satisfy the targets set by,the WRP. At the same time, notice must be given to water infrastructure operators(eg dam operators) requesting the holder to provide details of proposed operatingarrangements and how the operations will be made to comply with the WRP.

Public submissions are invited at both the notice of intention and preparation ofthe draft ROP stages. Those submissions must be taken into account by the ChiefExecutive in preparing the draft and the final ROP. The Chief Executive must statea number of matters in the notice of intention to prepare a draft ROP, includingdetails of how it is intended that community and technical consultations for thepreparation of the draft ROP will take place: see clause 96. The other matterswhich the Chief Executive must consider in preparing the draft ROP are set out inclause 99.

108 Water Bill 2000 (Qld), Explanatory Notes, p 35.


Clause 102 provides that if a submission on the draft ROP requests a change to aproposed water allocation, or an environmental management rule, a water sharingrule, or an implementation schedule, the Chief Executive must collate all relevantinformation about the submissions and establish a referral panel (which, pursuantto clause 1004 must consist of at least three individuals. No indication is given asto the qualifications which those persons must hold). The referral panel mustconsider the information, review the draft ROP and make recommendations to theChief Executive within 30 business days. Those recommendations must be takeninto account in the preparation of the final ROP.

An additional obligation imposed on the Chief Executive in the ROP process is thatsoon after the notice of intention is published and again, soon after the notice of thedraft ROP is published, the Chief Executive must send letters, or hold publicmeetings, explaining the implications of the ROP to as many affected waterentitlement holders as possible.

7.2. INTERIM MEASURES

In areas where an ROP is yet to be approved, the Chief Executive may grantinterim ROLs in relation to water infrastructure operations (eg dam operators).109

This enables infrastructure operators to set in train the necessary supplyarrangements with water user customers that are to operate under the new system.The water users with an existing right to take water will generally be issued withinterim water allocations.

A regulation will state which water infrastructure operators must, within60 business days, apply for an interim ROL to continue to operate theinfrastructure. The application has to include a number of matters such as details ofexisting supply contracts, proposed operating arrangements for the infrastructure,the number and apportionment of interim water allocations, and proposed supplyarrangements. Bodies with supply contracts with the infrastructure operators areprovided with those details. The Chief Executive can then convene a conference tohelp determine the application for the interim ROL and submissions may be madeto which regard must be had in making a ‘proposed decision’ and a final decision.

The interim ROL must contain a number of matters set out in clause 177(eg operating arrangements for infrastructure, details of water sharing rules,monitoring requirements). Conditions can also be inserted that may includepreventing any changes to the status quo that might impact on water availability forexisting users and the environment.

109 Water Bill 2000 (Qld), Part 5.


There is a detailed process concerning applications by the licence holder to amendan interim ROL, including public submissions. The Chief Executive can alsoamend an interim ROL but not so as to alter the status quo in any significant way.

Interim water allocations are made where an interim ROL has been granted andexisting arrangements for the taking of water continue until the interim ROL holderand interim water allocation holders enter into a new supply contract. For instance,if a licensee is supplied water from a dam owned by State Water Projects, thelicensee will be given an interim water allocation. It replaces any existingauthorisation issued under the Water Resources Act 1989. It will, however, besimilar to existing licences in that they attach to land (except in certain specifiedcircumstances).

7.3. RESOURCE OPERATIONS LICENCES

ROLs set out the conditions with which infrastructure operators must comply:Part 4, Division 3. The rules are the same as those in the ROP but it assignsresponsibility to the infrastructure operators to supply water to holders of waterallocations dependent upon water supplied by the water infrastructure.

When the ROP takes effect, all interim ROLs cease and are replaced with ROLs inaccordance with the ROP for the area. If the ROP sets out a process for granting aROL to meet future water needs, the Chief Executive must follow that process.

It is a mandatory condition of the ROL that the licensee complies with the operatingarrangements and supply requirements of the ROP in operating the relevant waterinfrastructure. Other conditions can be made to require the licence holder to do anyor all of a number of things eg monitoring, providing information, or paying aprescribed fee. It can also prohibit the licensee from doing something that is likelyto adversely impact on environmental flow objectives or water allocation securityobjectives: clause 110.

The Chief Executive can amend a ROL if it is inconsistent with an alteration to aROP after consulting the licensee and giving the licensee an ‘information notice’.Being given an ‘information notice’ triggers review and appeal rights underChapter 6 of the Bill.

A ROL can be amended or cancelled if a serious breach of the legislation or acondition of the licence occurs.110

110 There is a right of review given to the ROL holder under Chapter 6 of the Bill in relation to a

cancellation of the ROL. Provisions for amending and cancelling interim ROLs also exist underthe Bill: see cls 184, 185.


ROLs (the beneficial ownership only, not the infrastructure) can be transferred withapproval of the Chief Executive.

7.4. WATER ALLOCATIONS

Once the ROP has been finalised:• all interim water allocations (which have been issued to water users

dependent upon water managed by infrastructure operators with interimROLs) are converted to water allocations, as provided for in the ROP; and

• existing water licences and water permits that the ROP states are to beconverted to water entitlements, are converted to water entitlements111:clause 121(1).

A water allocation is subject to the ROP and in the event of conflict, the ROPprevails. If an amendment is made to an ROP the water allocation must beamended accordingly. Thus, the ROP is the document specifying most of the termsand conditions of the water allocations. Because they are the outcome of aplanning process and rules have been established concerning them, waterallocations are more secure than existing water licences that can be altered by theinfrastructure operator or the government with little recourse (other than objectionsand litigation) by the licence holder.

Each water allocation is registered on a public Water Entitlements Register,maintained by DNR. However, if the conversion is made from an interim waterallocation, the Registrar must first receive, from the ROL holder, a notice of asupply contract between the water user and the water infrastructure operator. 112

Clause 122 concerns the granting and registration of new water allocations, such aswhere there is surplus water capacity in a particular area as identified in the ROPand WRP. The Chief Executive has to follow the process set out in the ROP for thegranting of a water allocation to meet future water requirements.

The Register entry for a water allocation must state details of the water allocationholder, the volume of water for the allocation (which will be a share of the totalwater available in a particular water year), the location, the purpose for taking thewater (so that changes in the movement between purposes can be tracked

111 A water entitlement is a water allocation or a water licence: Water Bill 2000 (Qld), Sch 4

(Dictionary).112 The Register operates similarly to the Land Titles Register. It records all interests,

encumbrances and dealings in water allocations but does not guarantee title and the State cannotbe held liable or responsible for any consequential or indirect loss or damage arising from anydealings or any interest recorded. See Water Bill 2000 (Qld), Part 4, Division 6 for detailsconcerning the Register.


eg agricultural to urban), the relevant ROP, and other prescribed matters:clause 126(1).113

If the water allocation is managed under a ROL, the register will specify only amaximum rate for taking water. The other terms are determined by the supplycontract but any conditions on existing entitlements are preserved upon transition toa contract with the infrastructure operator.

If the water allocation is not managed under a ROL, (eg waterharvesting) thewater allocation will have two components:

• the maximum amount of water that can be taken annually; and• the flow conditions specifying the rate at which water can be taken.

Once entered on the Register, and if the WRP and ROP so provide, water can thenbe traded separately from any land or interest in land, subject to the rules of theROP. Water allocations thus become transferable water allocations (TWAs).

Rural groups expressed concern that the Exposure Draft Bill lacked appeal rights inrelation to conversions of existing water licences.114 The Water Bill hasincorporated some measures that seek to deal with that issue, as explained in theExplanatory Notes. Those include:

• the ability for affected licencees to comment at two points in thepreparation of the draft ROP on water allocation issues;

• provision for a referral panel to consider submissions on, and makerecommendations regarding, water allocations. Recommendations madeby the panel have to be considered by the Chief Executive in finalising theROP; and

• Chapter 6 provides for appeals to the Land Court (within the constraints ofthe WRP). Within 30 days of conversions being made, the waterallocation holder must be given an ‘information notice’ (see clause121(8)) which triggers review and appeal rights. If an amendment is madeto the water allocation, the water allocation holder must also be providedwith an ‘information notice’.

7.5. WATER TRANSFERS

All or part of a transferable water allocation (TWA) can be transferred to otherwater users in accordance with the conditions of the applicable ROP (or the ROL in

113 If the water allocation is managed under an ROL, those details need to be entered: Water Bill

2000 (Qld), cl 126(2).114 Miles Noller, ‘Irrigators fear loss of rights’, Rural Weekly, 18 February 2000, p 1.


cases of a regulated supply). As well as transferring a water allocation, or partthereof, to a water user in another location, a water user can apply to ‘change’ oneor more elements of his or her entitlement.

A ‘change’ to a water allocation can occur through reconfiguration of any one ormore of the following: the volume of water for the allocation; the location fortaking water; the purpose of taking water; the priority group to which it belongs;the maximum rate of taking, or the flow conditions under which, water may betaken.115 Thus, a water user might decide to change the purpose for which they takewater from agricultural to urban or may wish to transfer the allocation tothemselves in another location. There is a caveat that the change must not increasethe holder’s entitlement under the allocation.

Because water allocations are not tied to interests in land, extra water can bepurchased or leased without needing to buy any additional interest in land. Forinstance, cotton farmers who are supplied water from the new Nathan Dam on theDawson River (subject to the Fitzroy Basin WAMP) could purchase a TWA fromthe Dam operator which can then be sold or added to if his or her circumstanceschange.

The ability to trade water allocations should encourage more efficient use of waterby diversion into more productive farming measures eg stonefruit and vineharvesting for wine production.116 In other states where water trading occurs, therehas been a noted shift to uses in areas where there is less salinity and better soil. Itis likely that the setting of a cap on water diversions has contributed to the keennessto trade in water as it is the only means of obtaining more water. A recent reportcommissioned by the NSW Government has found that the gross margin permegalitre ranged from $10 for pasture in the Lachlan Valley to $2 600 for vines inthe Hunter and that water trading added almost $100 million to the State’s grossState product in 1997-98 as a result of shifting water to a higher value uses.117

If the transfer rules in the ROP cover the transfer or change, approval (by the ChiefExecutive, or by the ROL holder where the water allocation is managed under aROL) is fairly automatic upon payment of the prescribed fee and there is no publicnotice process: clause 128.

However, where the application for transfer or change is not covered by the transferrules of the ROP, the application is subject to greater scrutiny. The ChiefExecutive must give public notice of the application and invite public submissions.Those submissions must be considered in deciding whether or not to approve the 115 Water Bill 2000 (Qld), clause 127(1).116 Asa Wahlquist, ‘Trade in liquid assets to be rejected’, Australian, 22 March 2000, p 7 citing

from a report by consultants Marsden Jacob Associates.117 Asa Wahlquist, ‘Trade in liquid assets to be rejected’ Australian, 22 March 2000, p 7.


transfer. If considerable investigation of the application is necessary, the applicanthas to bear the cost.

Approval, or conditional approval, is given if the Chief Executive is satisfied thatthe transfer is compatible with environment flow objectives and water allocationsecurity objectives, is in the public interest, and will not significantly affect waterentitlement holders, ROL holders or natural ecosystems in an adverse way:clauses 129-134. Otherwise, the application will be refused. There are rights ofreview and appeal (under Chapter 6) given to both applicants and submitters.

The EDO has argued that there should be a link between the assessment of transfersand the Environmental Protection Act 1994 (Qld) and also, that the Water Bill itselfshould provide a framework for regulating water trading to ensure consistencybetween catchments rather than leaving them to be set out in the ROP.118 Theremay be moves afoot for federal and state governments to adopt a consistent set oftransfer principles but it is unclear yet what those will entail and what their legalstatus will be.119

Leasing of water allocations can also occur, applications for which must follow thesame procedures as for transfer: see clauses 135-136.120

A seasonal assignment of a water allocation or part of the benefits of the allocationcan be made to another person for a water year if:

• the WRP or ROP allows a seasonal water assignment for the area; and• if the water is not managed under a ROL: Part 4, Division 5.

If the assignment application is approved, the approval process being similar to thatfor changes, transfers or leases, the assignee holds a water permit for the wateryear.121 The permit is subject to the same conditions as the water allocation as wellas any that are prescribed by a regulation or imposed by the Chief Executive.

7.6. EXISTING WATER LICENCES AND PERMITS

As noted above, where a WRP provides for the implementation of TWAs, waterlicences will be converted to water allocations once a ROP has been finalised.

118 Environmental Defenders’ Office (Qld) Inc., Draft Submission on Draft Water (Allocation

Management) Bill, March 2000, p 27.119 Tan, Water Bill 2000: Environmental Implications, p 5.120 See also provisions regarding forfeiture of water allocations, dealings occurring through fraud

and powers of sale in clauses 137- 138.121 A water year is the accounting period stated in the ROP or licence for taking water under the

ROP or licence: Water Bill 2000 (Qld), Schedule 4.


Part 6 provides for situations where existing licences and permits granted under theWater Resources Act 1989 will continue. That is where:

• there is no WRP in place for the catchment area; or• there is a WRP but no ROP is proposed for the relevant area, or• pending the completion of a ROP; or• the WRP and ROP do not provide for the establishment of water

allocations.

Existing licences to take water or interfere with the flow of water (eg by a weir)will continue according to their terms. However, if there is a WRP for the area inwhich the licence operates, amendments may have to be made to its terms so as tocomply with the objectives of the WRP.

Under clause 206, an owner of land, or owners of two or more contiguous parcelsof land, may apply for a water licence for the parcel(s) of land and any other land ofthe owner or owners contiguous to the parcel(s). The intention of the provision isto allow operators of a common enterprise to jointly hold a water licence to relate toseparately owned land. Unless the applicant is a local government, registeredservice provider or water authority, the water to which the licence applicationrelates must be on, under or adjoining, any of the land.

If the application does not accord with the WRP or ROP,122 it must be publiclyadvertised (by the applicant) and public submissions invited. Under the WaterResources Act 1989, the right to make submissions was limited to landownerswhose land was located near the land subject to the application. The ChiefExecutive must take into account any properly made submissions, along with thevarious considerations set out in clause 210 (including environmentalconsiderations) in deciding whether to grant or refuse the application.

The licence relates to stated land, must be held by the landowner, and cannot betransferred away from the land: clauses 213, 215. It operates for a fixed period,unless renewed, but can be amended or cancelled by the Chief Executive. Thelicence can be made subject to conditions such as monitoring and reportingrequirements. A seasonal assignment is allowed only if the WRP and ROPpermits it.123

Rights of review and appeal are provided in relation to approvals of applications fora licence or licence renewal, amendments, cancellation, amalgamations andseasonal assignments.

122 See Water Bill 2000 (Qld), cl 209(3)(4). See also cl 212 for the situation where the WRP or

ROP provides a process for the future allocation of water in the relevant area, in which case, noapplication need be made.

123 See Water Bill 2000 (Qld), Part 6, Division 3.


A water permit can also be issued in relation to taking and using water for aparticular activity with a reasonably foreseeable conclusion date, for example, theconstruction of a road or a petroleum exploration.124

7.7. WORKS APPROVALS

A significant change under the new regime is that water licences will no longer befor both a water allocation and development approval for works such as pumps,bores, weirs or other operations. Under the Water Bill, the TWA will now onlydeal with the allocation of water. Approval for works must be sought under theIntegrated Planning Act 1997 (Qld), in accordance with the IntegratedDevelopment Approval System established for developments by that Act.

This statutory system will supersede the works approval system within the WaterResources Act. If the works interfere with water resources, then one needs to seekdevelopment approval for the works as well as a water allocation.

8. MANAGING WATER USE

Chapter 2 of the Water Bill is mainly concerned with planning and establishment ofTWAs. However, Part 3, Division 3 provides for the regulation of water usewhere there is a risk of land and water degradation. This was considered necessarybecause inappropriate water use practices can negatively impact on land resourcesand ecosystems while inappropriate land development can adversely affect waterresources.125 The two means of regulation are through Water Use Plans and Landand Water Management Plans.

8.1. WATER USE PLANS

Water Use Plans can be prepared for any part of Queensland where there are risksthat water use may cause negative effects on land and water resources such as:rising underground water levels, increasing salinity, deteriorating water quality,water logging of soils, destabilising beds and banks of watercourses, damage toriverine environment and increasing soil erosion: clause 60.

The procedure for making Water Use Plans is similar to the public process involvedin making WRPs, with the DNR Minister required to take public submissions intoaccount in preparing the plan. The Minister must also consider what changes to

124 Water Bill 2000 (Qld), Part 6, Division 4.125 Water Bill 2000 (Qld), Explanatory Notes, p 26.


water use practices could be made to reduce the risk to land and water resources,and any existing industry codes of practice for water use: clause 63.

The content of a Water Use Plan (see clause 62) has some similarities to that of aWRP but there is a focus upon standards for water use practices, objectives forwater use efficiency, reuse and quality. It may also describe land for which a Landand Water Management Plan (considered below) must be made for using water forirrigation purposes.

Once the Governor in Council has approved the Water Use Plan, it becomessubordinate legislation. As soon as possible following approval, the ChiefExecutive has to publicise, including convening public meetings, what theobligations of water users will be under the plan. The plan has a life of ten years.If, however, the Minister considers that the Water Use Plan is not addressing therisks to which it is directed, the plan can be amended or replaced by a new planbefore the expiration of that time.

8.2. LAND AND WATER MANAGEMENT PLANS

Land and Water Management Plans (LWMPs) relate to land upon which water isused for irrigation. Their purpose is to improve riparian and stream health.Currently, contractual obligations between State Water Projects and licence holdersmay require LWMPs to be prepared for individual properties where there will be agreater use, or new use, of water for irrigation.

Under the Water Bill, there will be a greater focus on Water Use Plans formanaging water use in areas that are at risk of degradation and LWMPs will beused only in parts of the State that are at high risk. They can be made to apply tonew or existing irrigation projects.

A person proposing to use for irrigation water taken under a water allocation orinterim water allocation must have an approved LWMP before they can use thewater unless–

• it was obtained by conversion of an existing licence; or• an existing enterprise was purchased from another person who was not

required to have a LWMP; or• there is a Water Use Plan relevant to the area which does not require a

LWMP for the land.

In addition, a person using water for irrigation on land identified in a Water UsePlan as land on which irrigation must only be carried out under an approvedLWMP, must also have an LWMP.


If a person uses water for irrigation otherwise than under an approved LWMP orhas been granted a deferral, that person is liable to a fine of up to $124,875.

The EDO believes that LWMPs should be mandatory for all agricultural waterusers, particularly if water transfer is proposed. 126

LWMPs outline management practices for use of the land through the use of mapsand accompanying text. Matters covered include things such as applicationpractices for fertilisers and pesticides and management of tailwater. Assistance isprovided by DNR to prepare the LWMPs and to consider the various optionsavailable.127 Under the Bill, the Chief Executive may issue guidelines for preparingLWMPs. Those guidelines are themselves subject to a public submission process(clause 72).

When a person has applied to the Chief Executive for approval of a LWMP, theapplication must be determined by reference to criteria set out in clause 76 (egconsistency with the issued guidelines, the risk to land and water arising from theuse of water on the land). An application can be approved, with or withoutamendment, or refused. A LWMP is in force for ten years, unless the holderapplies to amend it.

A person may be granted a deferral of the requirement to prepare a LWMP for oneyear, on the grounds of potential hardship. The Chief Executive must also considerthe susceptibility of the land to degradation; the application and supportinginformation; and the public interest in determining whether or not to grant thedeferral.128

9. COMPENSATION

This has been the most talked about and controversial issue in the development ofthe water management process. This is covered by Chapter 8, Part 3 of the WaterBill.

It has been resolved that compensation will be payable to an owner of a waterallocation only:

• if the value of the water allocation is reduced in value by a change made tothe WRP within ten years or within ten years after the approval of the lastamendment; and

126 Environmental Defenders’ Office (Qld) Inc, Draft Submission on Draft Water (Allocation

Management) Bill, March 2000, p 22.127 ‘It’s a Wrap – Queensland’, Rip Rap, Edition 13, 1999.128 Water Bill 2000 (Qld), Division 3, and Subdivision 6.


• where the change does not have the same effect as another statutoryinstrument in respect of which compensation is not payable; and

• where compensation has not already been paid to a previous owner:clauses 986-987.

Thus, compensation will not be payable at the instigation of the WRP. The amountof compensation payable because of a change is the difference between theappropriately adjusted market value of the water allocation immediately before thechange and the value immediately after the change came into effect, taking intoaccount matters set out in clause 991 of the Bill.

Chapter 6 provides for reviews of, and appeals against, compensation decisions.

The Government’s approach to compensation is premised on the fact that existingwater licences can be revoked at any time and are erodable, whereas waterallocations granted under the new regime will have security for the life of the WRPand compensation is guaranteed if changes to entitlements occur within that time.In addition, it is considered that the careful analysis and scientific evaluation thathas gone into a WRP during its development should mean that changes as a resultof a review would be minimal and could be managed by equitably distributing anyimpacts across all water users.

When the compensation principles were first canvassed by the Government theymet with adverse reaction from a number of rural industry groups who argued thattheir views expressed during the consultation process had been largely ignored.Indeed some farmers have expressed the view that given that the Bill’senvironmental reforms will benefit the whole community, farmers should not haveto assume the greatest burden through sacrificing any water entitlements.129 TheChair of the Queensland Irrigators’ Council has argued that the policy oncompensation affects the confidence of irrigators who will be disadvantaged by theWRP process, particularly those who have invested heavily in infrastructure. Somerural groups believe that ten years are insufficient when the value of theirinvestment in infrastructure based on long-term returns is considered.

The Government is attempting to ameliorate some of the effects of reform byconsultation with stakeholders and through programmes such as the Rural WaterUse Efficiency Initiative which is a partnership between government and industryto financially assist producers in taking measures to improve efficiency of water useand management.130

129 Richard Armstrong, ‘WAMP alarm is real’, Queensland Country Life, 4 March 1999, p16.130 See the Department of Natural Resources’ Internet Site http://www.dnr.qld.gov.au/ and follow

the ‘water’ link.


10. REMAINING MATTERS

Chapter 2 also picks up and continues certain elements covered by the WaterResources Act 1989. They will be the subject of review at a later stage to ensureconsistency with the philosophies underpinning the new Bill but have beenincorporated without any real changes for now, so that all uses concerning waterresources are under one piece of legislation. Those matters are Catchment Areas(Part 7), Riverine Protection (Part 8), Quarry Materials (Part 9), Water BoreDrillers (Part 10), and Operations Licence (Part 11).


11. CONCLUSION

The water allocation and sustainable management process in Chapter 2 of theWater Bill, provides for ecologically sustainable development, sustainablemanagement and efficient use of all water resources, takes into accountenvironmental flows, attempts to establish security of water allocations for waterusers, and ensures that the environment is recognised as a legitimate user of water.

The framework provided by Chapter 2 of the Bill gives a legislative basis forpolicies and management processes that have been occurring for some years inQueensland and in other states. The planning and management aspects attempt toconform to the water reforms advocated by CoAG against the background of anumber of national and international policies and agreements concerning ecologicalsustainability of natural resources.

At present, there are tensions between stakeholders, particularly environmentalgroups and rural industries, regarding the impact that WRPs and the conversion ofexisting water entitlements will have upon water users and upon the environment.However, a common ground among all concerned is that action is needed now toaddress the symptoms of water overuse and to ensure that sufficient water isavailable to all users on a sustainable basis. The challenge ahead is to see how theprocedures for the sustainable management of our most precious natural resourcewill operate and if the outcome will be improvement to water entitlement securityand to the health of water dependent ecosystems.



BIBLIOGRAPHY

MONOGRAPHS

• ARMCANZ/ANZECC National Principles for the Provision of Water forEcosystems, 1996.

• Australia. National Competition Council, Second Tranche Assessment of Stateand Territory Progress with Implementing National Competition Policy andRelated Reforms Volume 2 downloaded from the National Competition CouncilInternet Site at http://www.ncc.gov.au/

• Australia. Murray-Darling Basin Commission, Proceedings of the Water Useand Environment Flows Workshop, Canberra, 22-23 August 1995.The Murray-Darling Basin Commission Internet Site is athttp://www.mdbc.gov.au/

• Australia. Murray-Darling Basin Ministerial Council, Review of CapImplementation 1998/99, Report of the Independent Audit Group, IncludingResponses by the Four State Governments, November 1999. The Murray-Darling Basin Ministerial Council Internet Site at http://www.mdbc.gov.au/

• Australia. Murray-Darling Basin Ministerial Council, Review of theImplementation of the Cap 2000, Draft Overview Report of the Cap ProjectBoard, March 2000. See the Murray-Darling Basin Ministerial Council InternetSite at http://www.mdbc.gov.au/

• Australia. Murray-Darling Basin Ministerial Council, The Salinity Audit of theMurray-Darling Basin, 1999. See the Murray-Darling Basin MinisterialCouncil Internet Site at http://www.mdbc.gov.au/naturalresources

• Australia. National Strategy for Ecologically Sustainable Development,Canberra, 1992.

• Australia. Report of the Working Group on Water Resource Policy to theCouncil of Australian Governments, Canberra, February 1994.

• Australia. State of the Environment Advisory Council, Australia: State of theEnvironment, 1996.

• Boettcher P, Director, Water Management, State Water Projects, The CorporatePerspective, Queensland Environmental Law Association Seminar on ‘WaterBill 2000’, 25 July 2000.

• Council of Australian Governments, High Level Steering Group, Progress inimplementation of the CoAG water reform framework, Occasional Paper No 1,2000, at Internet Site http://www.affa.gov.au/water-reform/publications.html

• Environmental Defenders’ Office (Qld) Inc, Draft Submission on Draft Water(Allocation Management) Bill, March 2000.

• Fisher DE, Water Law, LBC Information Services, Sydney, 2000.

http://www.ncc.gov.au/

http://www.mdbc.gov.au/index.htm

http://www.mdbc.gov.au/

http://www.mdbc.gov.au/

http://www.mdbc.gov.au/naturalresources

http://www.affa.gov.au/water-reform/publications.html


• Queensland. Department of Natural Resources, Improved Planning in theSupply of Water in Queensland, Draft Policy Paper, October 1999.

• Queensland. Department of Natural Resources, Plan Overview, Draft WaterAllocation Management Plan (Condamine-Balonne Basin), June 2000.

• Queensland. Department of Natural Resources, Water Allocation andManagement Plan (Fitzroy Basin) 1999, The internet site is athttp://www.dnr.qld.gov.au/resourcenet/water/WAMP/fitz.html, (containing aPlan Overview and the actual WAMP).

• Queensland. Department of Natural Resources, Water Allocation ManagementPlanning, Information Booklet, 3rd Edition, Brisbane, September 1998.

• Queensland. Department of Natural Resources, Water Reform Implications ForLocal Government in Queensland, Summary Document, December 1999, (the“Rainbow Book’).

• Queensland. Department of Natural Resources, Water Reform Unit,Institutional Reform of State Water Projects at the Department of NaturalResources’ Resource Net Internet Site http://www.dnr.qld.gov.au/resourcenet

• Queensland. Parliamentary Library, Competition Policy and Local Governmentin Queensland, Research Bulletin No 7/97 by W Jarred, 1997.

• Queensland. Parliamentary Library, Cooperative Catchment Management: TheMurray-Darling Basin Agreement 1996, Legislation Bulletin No 1/96 byB Stevenson, Queensland Parliamentary Library, 1996.

• Queensland. Parliamentary Library, Queensland Competition AuthorityAmendment Bill 2000, Legislation Bulletin 6/00 by N Dixon, 2000.

• Tan P-L, Water Bill 2000: Environmental Implications, QueenslandEnvironmental Law Association Seminar on ‘Water Bill 2000’, 25 July 2000.

• Vale Hon M, Commonwealth Minister for Agriculture, Fisheries and Forestry,‘The quest to manage water quality nationally’, Australian Landcare, March1999.

• Willett E, Executive Director of the National Competition Council, TheIntroduction and Implementation of Competition Reform to the AustralianWater Sector, Paper presented to Seventh Annual New Zealand Water Summit,8 March 1999.

JOURNAL ARTICLES

• ‘Condamine planning data seen as deficient’, Acres Australia, 7(11),December, 1999.

• ‘It’s a Wrap – Queensland’, Rip Rap, Edition 13, 1999.

• ‘Putting water into perspective’, Australian Landcare, March 1999.

• Armstrong R, ‘WAMP alarm is real’, Queensland Country Life, 4 March 1999.

http://www.dnr.qld.gov.au/resourcenet/water/wamp/fitz.html

http://www.dnr.qld.gov.au/resourcenet


• Fuller G, ‘Can Queensland afford water price hikes?’, Queensland CountryLife, 15 June 2000, p 11.

• Fuller G, ‘Welford’s WAMP blow’, Queensland Country Life, 15 June 2000,p 1.

• Tolhurst C, ‘Water: reforms keep bubbling up’, Australian Financial Review,24 February 2000, p 45.

• Winter R, ‘Anderson vows to back growers on WAMP’, Queensland CountryLife, 10 August 2000, p 5.

• Winter R, ‘Climate of uncertainty’, Queensland Country Life, 10 August 2000,p 4.

• Winter R, ‘Cotton’s bottom line’, Queensland Country Life, 10 August 2000,p 5.

NEWSPAPER ARTICLES

• Hill R, ‘Let’s avoid crying over spilled water’, Australian, 28 February 2000,p 17.

• Noller M, ‘Irrigators fear loss of rights’, Rural Weekly, 18 February 2000, p 1.

• Ryan S, ‘Farmers oppose water right cuts’, Courier Mail, 22 June 2000, p 10.

• Ryan S, ‘Water debt’, Courier Mail, 1 January 2000, p 28.

• Spencer M, ‘State singled out for irrigation risk’, Australian, 5 April 2000, p 5.

• Wahlquist A, ‘Dam it! On the front line of the water wars’, Australian, 1January 2000, p 39.

• Wahlquist A, ‘Land forecast rubs salt in the wounds of farmers’, Australian, 17May 2000, p 13.

• Wahlquist A, ‘Sold down the river’, Australian, 18 March 2000, p 25.

• Wahlquist A, ‘Trade in liquid assets to be rejected’ Australian, 22 March 2000,p 7.

• Woodford J, ‘Water plan will kill river: NPWS’, Sydney Morning Herald, 24June 2000, p 1.

LEGISLATION

• Environment Protection and Biodiversity Conservation Act 2000 (Cth)

• Gladstone Area Water Board Act 1984 (Qld).

• Murray-Darling Basin Act 1993 (Cth)

• National Environment Protection Council Act 1994 (Cth).

• Natural Heritage Trust of Australia Act 1997 (Cth).

• Petroleum Act 1923 (Qld)


• Water Bill 2000 (Qld).

• Water Management

• Water Resources Act 1989

• Water Resources Act 1989 (Qld) s 3.

• Water Resources Act 1989 (Qld) ss 34(1), 36(1).

• Water Resources Act 1997 (SA), s 6(1).

• Water Rights Act 1896 (NSW).

CASE LAW

• Acton v Blundell (1843) 12 M & W 324.

• Mabo v Queensland (No 2) (1992) 175 CLR 1


APPENDIX A - GLOSSARY

ANZECC Australia and New Zealand Environment and ConservationCouncil.

ARMCANZ Agriculture and Resource Management Council ofAustralia and New Zealand.

Chief Executive Chief Executive of the Department of Natural Resources.CoAG Council of Australian Governments this body consists of

the Prime Minister, the State Premiers, the Territory ChiefMinisters and the President of the Australian LocalGovernment Association and its function is to makepolicies concerning issues of future relevance for Australia.

CRP Community Reference Panel provides advice about mattersrelevant to the Water Resource Planning process.It comprises representatives of cultural, economic andenvironmental interests in the relevant area (see clause 41).

DNR Department of Natural Resources.HLSGW High Level Steering Group on Water.

LWMP Land and Water Management Plan.

NCP National Competition Policy.

ROL Resource Operations Licence.

ROP Resource Operations Plan – made under the WaterResource Plan.

SWP State Water Projects – a commercialised business unit ofDNR.

TAP Technical Advisory Panel.

TWA Transferable Water Allocation.

WAMP Water Allocation Management Plan – to become a WaterResource Plan under the Bill.

WMP Water Management Plan under the Water Resources Act1989 (Qld) to become a Water Resource Plan under theBill.

WRA Water Resources Act 1989 (Qld).

WRP Water Resource Plan

WRU Water Reform Unit of the Department of NaturalResources.


APPENDIX B - DICTIONARY“artesian water” means water that occurs naturally in, or is introduced artificially into, an

aquifer, which if tapped by a bore, would flow naturally to the surface.“dam” means works that include—

(a) a barrier, whether permanent or temporary, that does or could orwould impound, divert or control water or hazardous waste; and

(b) the storage area created by the works;but does not include a rainwater tank.

“ecological outcome” means a consequence for an ecosystem in its component parts specified foraquifers, drainage basins, catchments, sub-catchments and watercourses.

“ecosystem” means a dynamic combination of plant, animal and microorganism speciesand communities and their non-living environment and the ecologicalprocesses between them interacting as a functional unit.

“environmental flow objective” for a water resource plan, means a flow objective for theprotection of the health of the natural ecosystems for the achievement ofecological outcomes.

“environmental management rules”, for a Resource Operations Plan, means the environmentalmanagement rules included in the plan.

“floodwater” means water overflowing, or that has overflowed, from a watercourse orlake onto or over riparian land that is not submerged when the watercourseor lake flows between or is contained within its bed and banks.

“flow conditions” for a water allocation, means the rate of flow of water in a watercourse, lakeor spring or the level of water in a watercourse, lake, spring, aquifer, damor weir.

“interim water allocation” means—(a) an authority to take water managed under an interim resource operationslicence that represents a volumetric share of water; and(b) any conditions attaching to the authority.

“overland flow water”1. “Overland flow water” means water, including floodwater, flowing over

land, otherwise than in a watercourse or lake—(a) after having fallen as rain or in any other way; or(b) after rising to the surface naturally from underground.

2. “Overland flow water” does not include –(a) rainfall or runoff that naturally infiltrates the soil in normal farming

operations, including infiltration occurring in farming activity such asclearing, replanting and broadacre ploughing; or

(b) tailwater from irrigation if the tailwater recycling meets best practicerequirements; or

(c) water collected from roofs for rainwater tanks.“performance indicator” means a measure that can be calculated and is stated in a water resource

plan to assess the impact of an allocation and management decision orproposal on water entitlements and natural ecosystems.

“plan area” for any plan under the Water Bill 2000 (Qld), means the part of Queenslandto which the plan applies.

“priority group”, for water allocations supplied by a resource operations licence holder,means the allocations that have the same water entitlement securityobjective.

“resource operations licence” means a licence issued under chapter 2, part 4, division 3.


“Resource Operations Plan” means a plan approved under section 103(2)“spring” means water naturally rising to, and flowing over, the surface of land.“taking” for water, includes diverting water.“transfer” of a resource operations licence, an interim resource operations licence,

or a water allocation, means the passing of the legal or beneficialinterest in the licence or allocation.

“underground water” means artesian water and subartesian water.“water” means –

(a) water in a watercourse, lake or spring, or(b) underground water, or(c) overland flow water, or(d) water that has been collected in a dam.

“water allocation” means an authority to take water given under section 121 or 122.“water allocation security objective” means an objective that may be expressed as a performance

indicator and is stated in a water resource plan for the protection of theprobability of being able to obtain water in accordance with a waterallocation.

"water allocation transfer rules” –1. “Water allocation transfer rules”, for a Resource Operations Plan,

means the water allocation transfer rules included in the plan.2. “Water allocation transfer rules”, for a Resource Operations Plan,

includes rules in the plan for changes to water allocations.“watercourse”

1. “Watercourse” means a river, creek or stream in which water flowspermanently or intermittently—

(a) in a natural channel, whether artificially improved or not; or(b) in an artificial channel that has changed the course of the

watercourse; but, in any case, only—(c) if paragraph (d) does not apply—at every place upstream of the

point to which the spring tide normally flows and reflows, whetherdue to a natural cause or an artificial barrier; or

(d) if a regulation has declared an upstream or downstream limit, orboth, for the watercourse, the part of the river, creek or streamwithin the limit.

“water entitlement” means a water licence, interim water allocation or water allocation.“water infrastructure” means works operated by the state or the holder of an interim resource

operations licence, resource operations licence or other authorisationthat is relevant to the management of water entitlements.

“water sharing rules” for a Resource Operations Plan, means the water sharing rules includedin the plan.

“weir” means a barrier constructed across a watercourse that hinders orobstructs the flow of water in the watercourse.

“works” means—(a) operations of any kind and all things constructed, erected or installed

for, or in connection with, the purposes of the Water Bill 2000(Qld); and

(b) any land used for, or in connection with, the operations.


APPENDIX C - ALLOCATION AND MANAGEMENT OF WATER

WATER RESOURCE PLAN (WRP)[formerly WAMPs or WMPs]

- Framework for water planning and management of abasin.

- Establishes Strategies, Priorities, Benchmarks.- May allow for establishment of Water Allocations and

Water Trading.↓

←

ExistingLicences

→where no

conversionprovided by

ROP or whereno WRP or ROP

Interim Arrangements- Interim Resource

Operating Licences- Interim Water

Allocations

RESOURCE OPERATIONS PLAN (ROP)- Implements WRP in particular parts of basin- Sets out operational rules of management eg

environmental protection, water sharing,rules for creating water allocations andtransfers

Where waterinfrastructureexists eg dam

Where noinfrastructure

regulatingwater

Multiple x ROLResource Operations Licences

- to owners of water infrastructure- operational rules for infrastructure

determined by WRP and ROP ←

ROL

ROL

ROL

↓

↓ ↓ Supplycontracts

↓ ↓

WA WA WA

WA WA WA

WA = Water Allocation

Chart by Nicolee Dixon, August 2000.


APPENDIX D – DEPARTMENT OF NATURAL RESOURCES -MAP OF WATER RESOURCE PLANNING -

LOCALITY PLAN

This Publication:LB 9/00 Water Allocation and Sustainable Management: Chapter 2 of the

Water Bill 2000 (QPL Aug 2000)

Related Publications:LB 1/96 Cooperative Catchment Management: The Murray-Darling Basin

Agreement 1996 (QPL Jun 1996)

Documents

Water Allocation and Sustainable Management: Chapter 2 of