Water Resource (Fitzroy Basin) Amendment Plan (No. 1) 2005 (Qld)

Queensland Water Resource (Fitzroy Basin) Amendment Plan (No. 1) 2005 Subordinate Legislation 2005 No. 166 made under the WaterAct2000 Contents Page 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2 Water resource plan amended . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3 Replacement of s 3 (Purpose of plan) . . . . . . . . . . . . . . . . . . . . . 3 3 Purposes of plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4 Replacement of s 8 (Water to which this plan applies). . . . . . . . . 3 8 Water to which this plan applies . . . . . . . . . . . . . . . . . 3 5 Insertion of new pt 5, divs 4 and 5 . . . . . . . . . . . . . . . . . . . . . . . . 3 Division 4 Regulation of overland flow water 28A Limitation on taking overland flow water—Act, s 20(6) 4 28B Taking overland flow water using small storages . . . . 5 28C Decisions about taking overland flow water . . . . . . . . 5 28D Taking water using existing works or reconfiguration of existing works authorised . . . . . . . . . . . . . . . . . . . . 6 28E Granting water licences for authorities under s 28D. . 6 28F Granting or amending water licences under the resource operations plan . . . . . . . . . . . . . . . . . . . . . . 7 28G Relationship with Integrated Planning Act 1997 . . . . . 8 Division 5 Miscellaneous provisions 28H Continued effect of moratorium notice—Act, s 46(3) . 9 28I Measuring devices . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2 Water Resource (Fitzroy Basin) Amendment Plan (No. 1) 2005 No. 166, 2005 6 Amendment of s 33 (Minor or stated amendments of plan—Act, s 57) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 7 Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 11

s1 3 s5 Water Resource (Fitzroy Basin) Amendment Plan No. 166, 2005 (No. 1) 2005 1 Short title This water resource plan may be cited as the Water Resource (Fitzroy Basin) Amendment Plan (No. 1) 2005 . 2 Water resource plan amended This water resource plan amends the Water Resource (FitzroyBasin) Plan 1999. 3 Replacement of s 3 (Purpose of plan) Section 3— omit, insert— ‘3 Purposes of plan ‘The following are the purposes of this plan— (a) to provide a framework for sustainably managing water and the taking of water; (b) to provide a framework for establishing water allocations; (c) to regulate the taking of overland flow water.’. 4 Replacement of s 8 (Water to which this plan applies) Section 8— omit, insert— ‘8 Water to which this plan applies ‘This plan applies to the following water in the plan area— (a) water in a watercourse, lake or spring; (b) overland flow water.’. 5 Insertion of new pt 5, divs 4 and 5 Part 5— insert—

s5 4 s5 Water Resource (Fitzroy Basin) Amendment Plan No. 166, 2005 (No. 1) 2005 ‘Division 4 Regulation of overland flow water ‘28A Limitation on taking overland flow water—Act, s 20(6) ‘(1) A person may not take overland flow water other than— (a) for stock or domestic purposes; 1 or (b) under an authority under section 28B; or (c) under an authority under section 28D; or (d) under an authorisation; or (e) overland flow water of not more than the amount necessary— (i) to satisfy the requirements of— (A) an environmental authority issued under the Environmental Protection Act 1994 ; or (B) a development permit for carrying out an environmentally relevant activity, other than a mining or petroleum activity, under the Environmental Protection Act 1994 ; or (ii) to divert the water around a mine-site; or (f) overland flow water that is contaminated agricultural runoff water. ‘(2) In this section— contaminated agricultural runoff water has the meaning given by the ‘Code for Assessable Development for Operational Works for Taking Overland Flow Water’. 2 ‘(3) Subsection (1) does not apply to the taking of overland flow water for activities authorised under a mining tenement, the PetroleumAct1923 or the PetroleumandGas(Productionand Safety) Act 2004 until— (a) an amendment of the resource operations plan, in relation to overland flow water, is approved; and 1 See the Act, section 20(4). 2 A copy of the code is available on the department’s website.

s5 5 s5 Water Resource (Fitzroy Basin) Amendment Plan No. 166, 2005 (No. 1) 2005 (b) unallocated overland flow water is granted under a process stated in the resource operations plan. ‘28B Taking overland flow water using small storages ‘(1) A person may use works with a capacity of not more than 5ML to take overland flow water for any purpose other than ponded pasture or water spreading. ‘(2) In this section— ponded pasture means constructing banks or otherwise modifying naturally wet areas to impound water to use it mainly for growing fodder for grazing. water spreading means using shallow earth walls to divert or delay the movement of water across its natural flow path to increase beneficial infiltration of the soil by the water. works does not include works that are connected, physically or by any device able to transfer water, to any other works used or able to be used for storing water. ‘28C Decisions about taking overland flow water ‘(1) In deciding an application under the Act or the IntegratedPlanning Act 1997 about taking overland flow water, the chief executive must consider whether granting the application is likely to adversely affect— (a) natural aquatic ecosystems, including, for example, natural wetlands; or (b) users of overland flow water downstream of the area to which the application relates. ‘(2) However, subsection (1) does not apply to an application— (a) for a water permit; or (b) to reinstate or replace an expired licence.

s5 6 s5 Water Resource (Fitzroy Basin) Amendment Plan No. 166, 2005 (No. 1) 2005 ‘28D Taking water using existing works or reconfiguration of existing works authorised ‘(1 ) Subsection (2) applies to the owner of land on which either of the following is situated— (a) existing works; 3 (b) works that— (i) are a reconfiguration of existing works; and (ii) do not increase the average annual volume of water taken above the average annual volume taken using the existing works. ‘(2) The owner may continue to take overland flow water, using the works— (a) either— (i) for existing works for mining purposes, until— (A) an amendment of the resource operations plan, in relation to overland flow water, is approved; and (B) unallocated overland flow water is granted under a process stated in the resource operations plan; or (ii) otherwise—for 1 year after the commencement of this section; and (b) if the owner gives the chief executive notice of the works, in the approved form, and any further information required by the chief executive about the works—after the notice and information are given. ‘28E Granting water licences for authorities under s 28D ‘(1) This section applies if— (a) an owner of land is authorised under section 28D to continue taking overland flow water using works; and 3 See schedule 6, definition existing works , paragraph 2.

s5 7 s5 Water Resource (Fitzroy Basin) Amendment Plan No. 166, 2005 (No. 1) 2005 (b) the chief executive is satisfied there has been, or may be, an increase, in the average annual volume of overland flow water taken using the works, above the average annual volume that could have been taken under the operating arrangements in place immediately before the commencement of this section. ‘(2) The chief executive may— (a) under section 212 4 of the Act, grant a water licence to replace the authority under section 28D; and (b) impose a condition on the licence to ensure the average annual volume of overland flow water that may be taken using the works is not more than the average annual volume that could have been taken under the operating arrangements in place immediately before the commencement of this section. ‘28F Granting or amending water licences under the resource operations plan ‘(1) For granting, under section 212 of the Act, a water licence to replace an authority under section 28D, or amending a water licence granted under section 28E, the resource operations plan— (a) must have regard to— (i) the environmental flow and water allocation security objectives mentioned in part 4; and (ii) the capacity to take water of the works to which the authority or licence relates; and (iii) the annual volumes of water estimated by the chief executive to have been taken by the works during the period, of not more than 10 years, immediately before the commencement of this section; and (b) may have regard to the extent to which the works allowed the taking of water under another authorisation immediately before the commencement. 4 Section 212 (Granting a water licence under a plan process) of the Act

s5 8 s5 Water Resource (Fitzroy Basin) Amendment Plan No. 166, 2005 (No. 1) 2005 ‘(2) Subsection (1) does not limit the matters to which the resource operations plan may have regard. ‘(3) The chief executive may require the authority or licence holder to give the chief executive a certificate, from a registered professional engineer, stating information about the works including the capacity of the works and the rate at which the works may take water. ‘(4) A water licence granted or amended under the resource operations plan may include, but is not limited to, the following— (a) the maximum volume of water, in megalitres, that may be taken under the licence; (b) the average annual volume of water, in megalitres, that may be taken under the licence; (c) the maximum rate at which water may be taken under the licence; (d) a condition stating that water taken under the licence must be measured in the way stated in the resource operations plan. ‘(5) Section 217 of the Actapplies to the amendment, for consistency with the resource operations plan, of a water licence granted under section 28E. ‘28G Relationship with Integrated Planning Act 1997 ‘(1) Works that allow taking overland flow water, other than works mentioned in subsection (3), are assessable development for the Integrated Planning Act 1997 , schedule 8, part 1, table 4, item 3(c)(i). ‘(2) Subsection (1) does not apply to repairs or maintenance to works mentioned in section 28D or works constructed under a development permit, that do not alter the design of the works. ‘(3) The following works are self-assessable development for the Integrated Planning Act 1997 , schedule 8, part 2, table 4, item 1(b)(i)—

s5 9 s5 Water Resource (Fitzroy Basin) Amendment Plan No. 166, 2005 (No. 1) 2005 (a) works for taking overland flow water for stock or domestic purposes; (b) works for taking overland flow water mentioned section 28A(1)(e); (c) works for taking overland flow water mentioned section 28B. ‘(4) This section does not apply to works that allow taking overland flow water for activities authorised under a mining tenement, the Petroleum Act 1923 or the Petroleum and Gas(Production and Safety) Act 2004 until— (a) an amendment of the resource operations plan, in relation to overland flow water, is approved; and (b) unallocated overland flow water is granted under a process stated in the resource operations plan. ‘Division 5 Miscellaneous provisions ‘28H Continued effect of moratorium notice—Act, s 46(3) ‘(1) This section amends and continues, in part, the effect of the moratorium notice, published on 13 September 2001 and amended on 29 October 2001, 10 December 2003 and 17 May 2004. ‘(2) Until an amendment of the resource operations plan, in relation to overland flow water, is approved— (a) new works must not be physically started; and (b) completed, or partly completed, works in existence must not be raised, enlarged or deepened. ‘(3) Subsection (2) applies only to works for taking or storing water from a watercourse, lake or spring that may increase the taking of overland flow water in the plan area. ‘(4) This section does not apply to— (a) works for taking water under an authorisation that states an area that may be irrigated; or

s 6 10 s 6 Water Resource (Fitzroy Basin) Amendment Plan No. 166, 2005 (No. 1) 2005 (b) works for taking only supplemented water; or (c) works being completed in accordance with a variation of the moratorium notice mentioned in subsection (1); or (d) works for taking water under a water permit; or (e) works for taking water under section 20(2), (3), (4) or (5) of the Act; or (f) works for activities authorised under a mining tenement, the PetroleumAct1923 or the PetroleumandGas(Production and Safety) Act 2004 ; or (g) works that have been physically started if— (i) under the moratorium notice, the works could be continued; and (ii) the works are being completed in accordance with the moratorium notice; and (iii) within 20 business days after the commencement of this section, the owner of the works gives the chief executive notice that the works are being completed. ‘(5) However, this section applies to works for storing water taken under an authorisation mentioned in subsection (4)(a). ‘28I Measuring devices ‘(1) A measuring device must be used to measure the volume of water taken under a water entitlement to take water in the plan area. ‘(2) Subsection (1) applies in the circumstances mentioned and on the day a regulation prescribes the matters mentioned in section 1014(2)(d) of the Act, in relation to meters.’. 6 Amendment of s 33 (Minor or stated amendments of plan—Act, s 57) (1) Section 33(a) to (g)— renumber as section 33(d) to (j).

s 7 11 s 7 Water Resource (Fitzroy Basin) Amendment Plan No. 166, 2005 (No. 1) 2005 (2) Section 33— insert— ‘(a) an amendment of section 28B to vary the capacity of the works or the parts of the plan area to which the capacity applies; (b) an amendment of section 28H if notice of the amendment is published as if it were a moratorium notice under section 26 of the Act; (c) an amendment of section 28I in relation to measuring devices; (k) an amendment of schedule 6, definition works that allow taking overland flow water .’. 7 Amendment of sch 6 (Dictionary) Schedule 6— insert— ‘ existing works — 1. Existing works means works that— (a) allow taking overland flow water; and (b) either— (i) were in existence on 13 September 2001; or (ii) were started, but not completed by 13 September 2001 and— (A) if a variation to a moratorium notice was granted for the works under section 27 of the Act—have been, or are being, completed in accordance with the moratorium notice, as varied; or (B) if subsubparagraph (A) does not apply—were completed by 12 November 2001; or

12 Water Resource (Fitzroy Basin) Amendment Plan (No. 1) 2005 No. 166, 2005 (iii) for works for mining purposes and to which the moratorium mentioned in section 28H did not apply, are completed before— (A) an amendment of the resource operations plan, in relation to overland flow water, is approved; and (B) unallocated overland flow water is granted under a process stated in the resource operations plan. 2. The term does not include works that allow taking overland flow water only for stock or domestic purposes. 5 mining tenement see the Mineral Resources Act 1989 , section 422. started , for existing works, means— (a) construction of the works had physically started or, if construction had not physically started, a contract had been entered into to start construction, and construction had started, by 12 November 2001; and (b) an independently verifiable construction program existed for progressive construction towards completion of the works; and (c) detailed design plans existed showing, among other things, the extent of the works; and (d) if a permit under the LocalGovernmentAct1993 , section 940 6 was required for the works—the permit had been issued; and (e) if a development permit was required for the works—the permit had been given. 5 See section 20 (Authorised taking of water without water entitlement) of the Act. 6 Local Government Act 1993 , section 940 (Issue of permit)

s 7 13 s 7 Water Resource (Fitzroy Basin) Amendment Plan No. 166, 2005 (No. 1) 2005 works that allow taking overland flow water include— (a) storages, sumps, drains, embankments, channels, pipes and pumps for taking, or that can be used for taking, overland flow water; and (b) storages that are connected to the works mentioned in paragraph (a); and (c) works that make, or that can be used to make, the original connection between the storages mentioned in paragraph (b) and the works mentioned in paragraph (a).’. ENDNOTES 1 Approved by the Governor in Council on 21 July 2005. 2 Notified in the gazette on 22 July 2005. 3 Laid before the Legislative Assembly on . . . 4 The administering agency is the Department of Natural Resources and Mines. © State of Queensland 2005