Water Management (General) Further Amendment (Miscellaneous) Regulation 2009 (NSW)
2009 No 363
New South Wales
Water Management (General) Further
Amendment (Miscellaneous)
Regulation 2009
under the
Water Management Act 2000
Her Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Water Management Act 2000.
PHILLIP COSTA, MP
Minister for Water
Explanatory note
The objects of this Regulation are to amend the Water Management (General) Regulation
2004 so as:
| (a) | to make provision with respect to entitlements under the Water Act 1912 that authorise the taking of water from the Hunter, Lower North Coast, Coffs Harbour and Central Coast Unregulated and Alluvial Water Sources, being entitlements that are to become access licences to which Part 2 of Chapter 3 of the Water Management Act 2000 applies, and |
| (b) | to provide for the creation of new access licences that authorise the taking of tidal pool water from the Hunter and Lower North Coast Unregulated and Alluvial Water Sources (for which no entitlement has previously been required under the Water Act 1912), and |
| (c) | to make other amendments of a minor nature. |
This Regulation is made under the Water Management Act 2000, including section 400 (the general power to make regulations) and clause 1 of Schedule 9 (the power to make regulations of a savings or transitional nature).
| Published LW 31 July 2009 | Page 1 |
| 2009 No 363 | Water Management (General) Further Amendment (Miscellaneous) |
| Clause 1 | Regulation 2009 |
Water Management (General) Further Amendment
(Miscellaneous) Regulation 2009
under the
Water Management Act 2000
1 Name of Regulation
This Regulation is the Water Management (General) Further
Amendment (Miscellaneous) Regulation 2009.
2 Commencement
This Regulation commences on 1 August 2009 and is required to be published on the NSW legislation website.
| Water Management (General) Further Amendment (Miscellaneous) | 2009 No 363 |
| Regulation 2009 | |
| Amendment of Water Management (General) Regulation 2004 | Schedule 1 |
| Schedule 1 | Amendment of Water Management (General) Regulation 2004 |
[1] Clause 3 Definitions
Insert “and examples” after “Notes” in clause 3 (3).
[2] Part 3, Division 11
Insert after Division 10:
Division 11 Replacement access licences for
entitlements for the Hunter, Lower North
Coast, Coffs Harbour and Central Coast
Unregulated and Alluvial Water Sources
(1 August 2009)
Subdivision 1 Preliminary
| 29ZC | Application of Division |
This Division applies to and in respect of each entitlement with respect to:
(a)
the Hunter Unregulated and Alluvial Water Sources (identified in the Water Sharing Plan for the Hunter Unregulated and Alluvial Water Sources 2009), or
(b)
the Lower North Coast Unregulated and Alluvial Water Sources (identified in the Water Sharing Plan for the Lower North Coast Unregulated and Alluvial Water Sources 2009), or
(c)
the Coffs Harbour Area Unregulated and Alluvial Water Sources (identified in the Water Sharing Plan for the Coffs Harbour Area Unregulated and Alluvial Water Sources 2009), or
(d)
the Central Coast Unregulated Water Sources (identified in the Water Sharing Plan for the Central Coast Unregulated Water Sources 2009),
and to and in respect of each access licence arising from any such
entitlement.
| 2009 No 363 | Water Management (General) Further Amendment (Miscellaneous) Regulation 2009 |
| Schedule 1 | Amendment of Water Management (General) Regulation 2004 |
Subdivision 2 Access licences for tidal pool water
sources
| 29ZD | Definitions |
In this Subdivision:
eligible land means any land on which the landholder of the land
has used tidal pool water at any time between 1 February 1999
and 1 August 2009.
confirmed history of water usage, in relation to eligible land,
means information that indicates the volume of tidal pool water
that has been used on the land, and the purposes for which that
water has been used, at any time between 1 February 1999 and
1 August 2009, established to the satisfaction of the Minister.
replacement access licence means an access licence that is taken
to have arisen under this Subdivision.
tidal pool water means water taken from a tidal pool water
source.tidal pool water source means:
(a)
the Wallis Creek Tidal Pool Water Source, the Paterson River Tidal Pool Water Source or the Hunter River Tidal Pool Water Source (each within the meaning of the Water Sharing Plan for the Hunter Unregulated and Alluvial Water Sources 2009), or
(b)
the Manning River Tidal Pool Water Source (within the meaning of the Water Sharing Plan for the Lower North Coast Unregulated and Alluvial Water Sources 2009).
| 29ZE | Temporary exemption from requirements for certain access licences and approvals | |
|
(a)
sections 60A (1) and (2), 60C (1)–(4) and 60D of the Act in relation to the taking of tidal pool water, and
(b)
section 91A (1) of the Act in relation to the use of tidal pool water, and
(c) section 91B (1) of the Act in relation to:
(i)
the use of any water supply work by which tidal pool water is taken (being a water supply work constructed before 1 August 2009), and
(ii) the maintenance and repair of any such work, for the period between 1 August 2009 and 31 July 2010
(inclusive).
| Water Management (General) Further Amendment (Miscellaneous) | 2009 No 363 |
| Regulation 2009 | |
| Amendment of Water Management (General) Regulation 2004 | Schedule 1 |
(2)
Subclause (1) ceases to apply to a person in relation to land when the person is given notice under clause 29ZF of the terms and conditions of the person’s replacement access licence for the land.
(3)
The Minister may in a particular case by notice in writing to a landholder of eligible land extend the period of the exemption conferred by subclause (1) in its application to the landholder if the Minister is satisfied that the extension is necessary to enable the Minister to establish the landholder’s confirmed history of water usage.
29ZF Replacement access licences arising from confirmed history of
water usage
(1)
A landholder of eligible land in respect of which there is a confirmed history of water usage is taken to hold an access licence (a replacement access licence), and such an access licence is taken to have arisen, on the following terms and conditions:
(a) terms identifying:
(i)
the category or subcategory of the licence, as determined by clause 29ZG, and
(ii)
the share component of the licence, as determined by clause 29ZH or 29ZI, as the case requires, and
(b)
the mandatory conditions referable to an access licence of the category or subcategory referred to in paragraph (a) (i).
(2)
A replacement access licence does not operate (and has no force or effect) until the Minister notifies the licence holder in writing of the terms and conditions of the licence referred to in subclause (1).
(3)
For the purpose of establishing the confirmed history of water usage for any eligible land, the Minister may require the landholder to furnish information relevant to that purpose.
(4)
The Minister is not required to issue a notice under subclause (2) if he or she is not satisfied that a confirmed history of water usage for eligible land has been established, whether because the landholder has failed to comply with a requirement under subclause (3) or otherwise.
| 2009 No 363 | Water Management (General) Further Amendment (Miscellaneous) Regulation 2009 |
| Schedule 1 | Amendment of Water Management (General) Regulation 2004 |
(5) This Subdivision does not operate:
(a) to create a domestic and stock access licence (or an access licence of a subcategory of a domestic and stock access licence) in relation to land if: (i) the land has frontage to a tidal pool water source, or
(ii) the share component of the licence, as determined by clause 29ZH, would be zero or negative, or
(b) to create an unregulated river access licence (or an access licence of a subcategory of an unregulated river access licence) if the share component of the licence, as determined by clause 29ZI, would be zero or negative. Note. Because it is an access licence, a replacement access licence can be suspended, cancelled or compulsorily acquired under Division 6 of Part 2 of Chapter 3 of the Act, and discretionary conditions can be imposed under section 66. The licence holder will need to apply for any necessary water use approvals and water supply work approvals if he or she intends to take or use water under the authority of a replacement access licence.
| 29ZG | Categories of replacement access licence |
A replacement access licence is to be:
(a)
to the extent to which the confirmed history of water usage for the land indicates that tidal pool water has been used for domestic consumption or stock watering:
(i)
if the water has been used for both domestic consumption and stock watering, a domestic and stock access licence, or
(ii)
if the water has been used for domestic consumption only, a domestic and stock [domestic] access licence, or
(iii)
if the water has been used for stock watering only, a domestic and stock [stock] access licence, and
(b)
to the extent to which the confirmed history of water usage for the land indicates that tidal pool water has been used otherwise than for domestic consumption or stock watering:
(i) an unregulated river access licence, or (ii)
an access licence of any subcategory of an unregulated river access licence.
| Water Management (General) Further Amendment (Miscellaneous) | 2009 No 363 |
| Regulation 2009 | |
| Amendment of Water Management (General) Regulation 2004 | Schedule 1 |
| 29ZH | Share component for domestic and stock access licences |
The share component for a replacement access licence that is a domestic and stock access licence is to be as follows:
(a) except as provided by paragraphs (b) and (c), 4.5 megalitres, (b) in the case of a domestic and stock [domestic] access licence, 1 megalitre, (c) in the case of a domestic and stock [stock] access licence, 3.5 megalitres, subtracting from each such volume the volume of any entitlement under the former 1912 Act that authorised the taking of tidal pool water for domestic consumption or stock watering (or both).
29ZI Share component for unregulated river access licences
(1)
The share component for a replacement access licence that is an unregulated river access licence is to be the amount (in megalitres) equivalent to the maximum average volume of tidal pool water taken annually and used on the eligible land concerned, otherwise than for domestic consumption or stock watering, between 1999 and 2009 (inclusive).
(2) The reference in subclause (1) to the maximum average volume
of water is a reference to:
(a) if water was taken during only one of the years between 1999 and 2009, the volume of water taken during that year, or (b) if water was taken during only 2 of the years between 1999 and 2009, one half of the sum of the volumes of water taken annually during those years, or (c) if water was taken during 3 or more of the years between 1999 and 2009, one third of the sum of the 3 largest volumes of water taken annually during those years, subtracting from each such volume the volume of any entitlement under the former 1912 Act that authorised the taking of tidal pool water, other than an entitlement that authorised the taking of tidal pool water for domestic consumption or stock watering (or both).
(3)
To the extent to which the confirmed history of water usage for the land indicates that tidal pool water has been used for purposes other than:
(a) irrigation, or
| 2009 No 363 | Water Management (General) Further Amendment (Miscellaneous) Regulation 2009 |
| Schedule 1 | Amendment of Water Management (General) Regulation 2004 |
(b) domestic consumption, or (c) stock watering, the volume of water taken in any year is to be calculated (in
megalitres) on the basis of that history.
(4) To the extent to which the confirmed history of water usage for the land indicates that tidal pool water has been used for the purposes of irrigation, the volume of water taken in any year for those purposes is to be calculated (in megalitres):
(a) in the case of water taken from the Wallis Creek Tidal Pool Water Source, the Paterson River Tidal Pool Water Source or the Hunter River Tidal Pool Water Source: (i) if the confirmed history of water usage for the land indicates which crops specified in Table 1 were grown under irrigation on which parts of the land during that year, as the sum of the amounts obtained by multiplying the number of hectares of land on which each such crop was grown (as indicated by the confirmed history of water usage) by the factor specified in that Table in relation to that crop, or
(ii) in any other case, as the amount obtained by multiplying the number of hectares of the land on which crops specified in Table 1 were grown under irrigation during that year (as indicated by the confirmed history of water usage for the land) by the smallest factor specified in that Table in relation to those crops, and
(b)
in the case of water taken from the Manning River Tidal Pool Water Source:
(i)
if the confirmed history of water usage for the land indicates which crops specified in Table 2 were grown under irrigation on which parts of the land during that year, as the sum of the amounts obtained by multiplying the number of hectares of land on which each such crop was grown (as indicated by the confirmed history of water usage) by the factor specified in that Table in relation to that crop, or
(ii)
in any other case, as the amount obtained by multiplying the number of hectares of the land on which crops specified in Table 2 were grown under irrigation during that year (as indicated by the confirmed history of water usage for the land) by the smallest factor specified in that Table in relation to those crops.
| Water Management (General) Further Amendment (Miscellaneous) | 2009 No 363 |
| Regulation 2009 | |
| Amendment of Water Management (General) Regulation 2004 | Schedule 1 |
(5)
Where more than one crop has been grown on the same land in the same year, the land may not be counted more than once for the purposes of subclause (4), but the higher or highest of the factors relevant to those crops is to be used.
(6)
For the purposes of this clause, a reference to a crop specified in Table 1 or 2 includes a reference to any other crop that the Minister determines to be an equivalent to that crop.
Table 1 Wallis Creek, Paterson River and Hunter River Crop under irrigation Factor
Winter cereal 3 Summer cereal 4 Citrus 6 Vines 3 Summer oilseeds 4 Perennial pasture (dairy) 7 Perennial pasture (non-dairy) 5 Annual pasture 3.5 Lucerne 6 Vegetables 8 Orchards (not citrus) 8 Nuts 8 Pulses 5 Olives 5 Turf 11
| 2009 No 363 | Water Management (General) Further Amendment (Miscellaneous) Regulation 2009 |
| Schedule 1 | Amendment of Water Management (General) Regulation 2004 |
Table 2 Manning River
Crop under irrigation Factor Winter cereal 2.5 Summer cereal 3 Citrus 5 Summer oilseeds 3 Perennial pasture (dairy) 7 Perennial pasture (non-dairy) 5 Annual pasture 3 Lucerne 5 Vegetables 6.5 Orchards (not citrus) 6.5 Nuts 6.5 Pulses 4 Cut flowers 5 Nurseries 20 Turf 11 Example 1. Suppose, in respect of any year, 30 hectares of a landholding were under irrigation, of which 10 hectares were used for growing lucerne, 10 hectares were used for annual pasture and 10 hectares were used for vegetables (as indicated by the confirmed history of water usage for the land). The factors for these crops (using Table 1) are 6 (for lucerne), 3.5 (for annual pasture) and 8 (for vegetables). The volume of water calculated for that year for the land would therefore be 175 megalitres (that is, 10 times 6, plus 10 times 3.5, plus 10 times 8: see subclause (4) (a) (i)).
Example 2. Suppose, in respect of any year, 30 hectares of a landholding were under irrigation, of which some were used for growing lucerne, some were used for annual pasture and some were used for vegetables (the specific areas not indicated by the confirmed history of water usage for the land). The factors for these crops (using Table 1) are 6 (for lucerne), 3.5 (for annual pasture) and 8 (for vegetables). The volume of water calculated for that year for the land would therefore be 105 megalitres (that is, 30 times 3.5: see subclause (4) (a) (ii)).
Example 3. Suppose, in respect of any year, 30 hectares of a landholding were under irrigation, of which all 30 were used for growing summer cereals (in summer) and all 30 were used for growing winter cereals (in winter). The factors for these crops (using Table 1) are 4 (for summer cereals) and 3 (for winter cereals). The volume of water calculated for that year for the land would therefore be 120 megalitres (that is, 30 times 4: see subclauses (4) (a) (i) and (5)).
| Water Management (General) Further Amendment (Miscellaneous) | 2009 No 363 |
| Regulation 2009 | |
| Amendment of Water Management (General) Regulation 2004 | Schedule 1 |
29ZJ Conversion of share components of access licence Clause 7 of Schedule 10 to the Act applies to and in respect of a replacement access licence in the same way as it applies to and in respect of an access licence arising under that Schedule.
Note. This clause enables the share component of an access licence under this Subdivision to be converted from a specified quantity of water to any other manner (such as a unit share) in which a share component may be expressed under section 56 of the Act.
Subdivision 3 General
| 29ZK | Registration of security interests in replacement access licences | |
| (1) Pursuant to clause 1 of Schedule 9 to the Act, clause 19 of Schedule 10 to the Act is to be construed as if the reference in clause 19 (5) to the commencement of Part 2 of Schedule 10 to the Act were a reference to 1 August 2009. | ||
|
(10A)
Subclause (10B) applies only to an access licence arising from an entitlement with respect to land in respect of which an interest was, immediately before 1 August 2009, registered under the Real Property Act 1900 or under the Corporations Act 2001 of the Commonwealth.
(10B)
No dealing that requires the consent of the holder of a security interest may be registered in relation to an access licence until the expiry of the prescribed period unless, before the expiry of that period, the holder of the interest:
(a)
has lodged with the Director-General a notice of the kind referred to in subclause (5) (d), or
(b)
has notified the Director-General that the holder does not propose to seek registration of the interest in the Access Register.
| 2009 No 363 | Water Management (General) Further Amendment (Miscellaneous) Regulation 2009 |
| Schedule 1 | Amendment of Water Management (General) Regulation 2004 |
29ZL Entitlements held by 2 or more co-holders Pursuant to clause 1 of Schedule 9 to the Act, clause 23 of Schedule 10 to the Act is taken to have been replaced by the following clause:
23 Entitlements held by 2 or more co-holders
Two or more co-holders of a replacement access licence are taken to hold the access licence:
(a) if the Minister has a record of the shares in which the former entitlement was held immediately before the appointed day, in the same shares as the former entitlement was so held, or (b) if the Minister has no such record, but within 2 months after sending a written request to the co-holders seeking information as to their shareholding the Director-General receives:
(i) a notice, signed by or on behalf of each of them, by which they agree as to the shares in which they hold the access licence, or (ii) a notice, signed by any one of them, to the effect that legal proceedings have been commenced for the purpose of obtaining a declaration as to the shares in which they hold the access licence, in the agreed shares referred to in the notice under subparagraph (i), or in the shares determined pursuant to the legal proceedings referred to in the notice under subparagraph (ii), as the case may be, or
(c)
in any other case, as tenants in common with the entitlements conferred by the licence under section 56 apportioned equally between them.
| Water Management (General) Further Amendment (Miscellaneous) | 2009 No 363 |
| Regulation 2009 | |
| Amendment of Water Management (General) Regulation 2004 | Schedule 1 |
[3] Clause 32 Advertising of applications for approvals: section 92 (7)
Insert after clause 32 (2):
(2A) An application referred to in subclause (1) (a) (i) does not have to be advertised (unless so required by a management plan referred to in subclause (1) (c)) if the water supply work concerned is to be used solely for taking or using water pursuant to a replacement access licence arising under Division 11 of Part 3. (2B) An application referred to in subclause (1) (b) does not have to be advertised (unless so required by a management plan referred to in subclause 1 (c)) if the land to which the application relates is land in respect of which a replacement access licence has arisen under Division 11 of Part 3.
0
0
0