Water Access Licences – Changes to conditions, compliance and enforcement

The regulation of water access licences has been undergoing a number of significant changes. In the wake of the NSW government’s recent investigation into water law, it is important that owners and prospective owners of rural land understand the implications of the new conditions imposed on many water access licences. In this article, Elizabeth McDonald, Principal of our Property and Planning team, explains the key changes to water access licensing and the potential effects on rural landholders. Elizabeth has expertise in advising on water licences, irrigation schemes and water management obligations.

Changes to Licence Conditions

Many of our clients will have been contacted recently by the Department of Industry regarding the conditions attached to their water access licences or water supply work approvals.  It is important to carefully review this correspondence as new conditions may have been imposed or existing conditions may have changed to give effect to new or amended Water Sharing Plans or for administrative reasons.  We note that there may be scope to make a submission to the Department of Industry on changes made for administrative reasons to your conditions.

Changes to compliance and enforcement

When discussing the management of water resources, an important issue raised by our clients is the use and management of water by upstream properties and, in particular, whether those properties comply with water legislation.

This concern is not limited to our client base.  In July 2017, the ABC’s Four Corners program presented allegations of water theft and widespread non-compliance with NSW water law particularly in Northern NSW.  The program prompted significant public concern and led to the Minister for Regional Water announcing an independent investigation into water management and compliance in NSW.

The water investigation identified serious shortcomings in the system particularly in respect of arrangements for metering, monitoring and measurement of water extractions.

Natural Resources Access Regulator

Against this backdrop, the NSW Government has introduced the Natural Resources Access Regulator (NRAR).  NRAR is a Government agency which has been established to improve consistency, accountability and transparency of water compliance and enforcement in NSW.  NRAR will take over the role of WaterNSW in respect of compliance, leaving WaterNSW to focus on licensing, billing, meter reading and other customer service functions.  NRAR’s other functions will include enforcement and publishing details of convictions and prosecutions of offences.  There will also be flexibility to allow NRAR to oversee the compliance and enforcement of other natural resources in the future.

NRAR will be led by an independent board whose role is to determine whether the NSW Government prosecutes breaches of water legislation and to have oversight of all water compliance.

NRAR is scheduled to be operational by mid-2018 at which stage NRAR should be taking the lead on compliance matters and taking enforcement action. By late 2018, NRAR is scheduled to begin undertaking proactive targeted compliance orders.

Other recommended changes to the current water management regime

The interim and final reports from the investigation, which was led by Ken Matthews, made many recommendations in addition to the introduction of an independent regulator.  These recommendations included:

  • A universal requirement for metering – ‘no metering, no pumping’ – and the abolition of self-reporting, such as log books in lieu of fully operational water meters.
  • Stricter requirements for meter reading such as a mandatory requirement for meter readers to report defective, inoperable or apparently tampered-with meters in real time, random and more frequent meter reading schedules and random cross-checks of meter readings.
  • Voluntary agreements be entered into immediately with major northern irrigators.
  • The adoption and implementation of new monitoring and compliance technologies, such as remote sensing of crop growth and water holdings.
Next stages and risks

The Government has accepted the principle of ‘no metering – no pumping’ and has committed to the urgent installation of meters for all large volume water users.  The Government has indicated it will consult on the implementation of its revised metering policy, including on how it may affect different categories of water users.  While this momentum was acknowledged in the Matthews report, a concern was raised about the risk of political pressure from certain stakeholders ‘watering down’ key reforms, including reforms to water metering and improving transparency of information about water usage.  Matthews warns that, if too many adjustments are made, the unprecedented opportunity to achieve long-overdue remedies to NSW compliance problems may be lost.

Our recommendation

In light of the changing approach to compliance and enforcement of water access licences, we strongly recommend our clients take the opportunity to carefully review their licences, particularly any new conditions that have been introduced by Water Sharing Plans.  We recommend you ensure that all water usage is properly licensed and any management of waterways is being done in accordance with the licence conditions.  Where this is not practical, we can advise on your options under the water legislation.

Our expertise

SWS Lawyers are experienced in advising on water access licences, irrigation schemes and water management obligations.  We have acted in enforcement proceedings pursuant to water management legislation and other environmental laws.

This article is not legal advice.  It is intended to provide commentary and general information only.  Access to this article does not entitle you to rely on it as legal advice.  You should obtain formal legal advice specific to your own situation.  Please contact us if you require advice on matters covered by this article.