Water (Tagged Water Allocations) Interim Regulations 2020 (Vic)

Version No. 001

Water (Tagged Water Allocations) Interim Regulations 2020

S.R. No. 130/2020

Version as at

30 November 2020

TABLE OF PROVISIONS

Regulation  Page

1Objective

2Authorising provisions

3Commencement

4Revocation

5Definitions

6Ministerial determination

7Determination only to apply to Basin water resources

8Form, content and process for determinations

9Effect of determination

10Grounds to suspend or cancel works licence

11Transitional provisions

12Expiry of Regulations

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Endnotes

1      General information

2      Table of Amendments

3      Amendments Not in Operation

4      Explanatory details

Version No. 001

Water (Tagged Water Allocations) Interim Regulations 2020

S.R. No. 130/2020

Version as at

30 November 2020

1Objective

The objective of these Regulations is to provide protection for the environment and for the reliability of water rights and entitlements by providing for the Minister to make determinations as to the taking or use of water under water allocations in certain cases.

2Authorising provisions

These Regulations are made under sections 33F(3), 74AB(1)(b) and 324(1)(af) and (v), (2) and (3) of the Water Act 1989.

3Commencement

These Regulations come into operation on 30 November 2020.

4Revocation

The Water (Taking and Using Water Under Tagged Allocations) Interim Regulations 2019[1] are revoked.

5Definitions

(1)In these Regulations—

alternate water system, in relation to a tagged water allocation, means—

(a)for the taking of water, the different declared water system referred to in paragraph (a)(ii) of the definition of tagged water allocation; or

(b)for the use of water, the different declared water system referred to in paragraph (b)(ii) of the definition of tagged water allocation;

alternate zone, in relation to a tagged water allocation, means, for the use of water, the different zone referred to in paragraph (c)(ii) of the definition of tagged water allocation;

Basin Plan has the same meaning as in the Water Act 2007 of the Commonwealth;

Basin water resources has the same meaning as in the Water Act 2007 of the Commonwealth;

interstate water right means a right to take water in another State or a Territory of the Commonwealth that is equivalent to a water share;

source water system means—

(a)in relation to an interstate water right, the water system in the State or Territory from which water is authorised to be taken under water allocations under that right; or

(b)in relation to a water allocation under a water share, the declared water system determined to be the associated water system for the water share under whichever of the following applies—

(i)a determination under section 33G of the Act;

(ii)a variation of a determination under section 33Q of the Act; or

(c)in relation to a water allocation under a bulk entitlement, the declared water system from which water is authorised to be taken or used under the bulk entitlement; or

(d)in relation to a water allocation under an environmental entitlement, the declared water system from which water is authorised to be taken or used under the environmental entitlement;

source zone means—

(a)in relation to a water allocation under a water share, the zone determined to be the zone under whichever of the following applies—

(i)a determination under section 33G of the Act;

(ii)a variation of a determination under section 33Q of the Act; or

(b)in relation to a water allocation under a bulk entitlement, the zone in the declared water system from which water is authorised to be taken or used under the entitlement; or

(c)in relation to a water allocation under an environmental entitlement, the zone in the declared water system from which water is authorised to be taken or used under the entitlement;

tagged water allocation means a water allocation under an interstate water right, or under a water share, a bulk entitlement or an environmental entitlement—

(a)for which—

(i)there is approval under the Act for water under the water allocation to be taken from a declared water system that is different from the source water system for the water allocation; and

(ii)the different declared water system for that taking is recorded in the water register; or

(b)where—

(i)there is approval under the Act for water under the water allocation to be used on land that is in a different declared water system from the source water system for the water allocation; and

(ii)the different declared water system for that use is recorded in the water register; or

(c)where—

(i)there is approval under section 64K of the Act for water under the water allocation to be used on land that is in a different zone from the source zone for the water allocation; and

(ii)the different zone for that use is recorded in the water register;

the Act means the Water Act 1989;

Trading Rules is the Order made under sections 33AZ, 47E, 48P and 64AZ of the Act published in the Government Gazette on 28 June 2007 and titled Trading Rules for Declared Water Systems, as amended from time to time;

zone means a zone in a declared water system for which a water share may be issued under section 33G of the Act (including any zone that has been varied under section 33Q of the Act), as described in Schedule 1 to the Trading Rules.

(2)In these Regulations, a reference to "water allocation" includes a reference to part of a water allocation.

6Ministerial determination

(1)The Minister may make a written determination that a person cannot take water or use water under a tagged water allocation from the alternate water system for the tagged water allocation if the Trading Rules provide that, in relation to the source water system for the tagged water allocation and the alternate water system for the tagged water allocation, any one of the following approvals cannot be given—

(a)for water shares—

(i)approval under section 33X(1)(b) of the Act for a limited term transfer of rights to future water allocations from the source water system to the alternate water system; or

(ii)approval under section 33X(1)(ba) of the Act for a standing direction to transfer water allocations from the source water system to the alternate water system; or

(iii)approval under section 33X(1)(c) of the Act to assign water allocations from the source water system to the alternate water system; or

(iv)approval under section 64K(1)(b) of the Act to use water taken from the source water system on land situated in the alternate water system; or

(v)approval under section 33AI of the Act to take water under water allocations under water shares in the source water system from the alternate water system;

(b)for interstate water rights, approval under section 33AF of the Act to take water under water allocations under interstate water rights from the alternate water system;

(c)for bulk entitlements, approval under section 46 or 46A of the Act to assign water allocations from the source water system to the alternate water system;

(d)for environmental entitlements, approval under section 48L or 48M of the Act to assign water allocations from the source water system to the alternate water system.

(2)The Minister may make a written determination that a person cannot, under a tagged water allocation, use water on land situated in the alternate zone for the tagged water allocation if the Trading Rules provide that, in relation to the source zone for the tagged water allocation and the alternate zone for the tagged water allocation, approval under section 64K of the Act cannot be given to use water from the source zone on land situated in the alternate zone.

(3)The Minister may make a determination under this regulation if the Minister considers it is necessary to restrict the taking or use of water under tagged water allocations because the Minister is satisfied that any of the reasons in section 12.18 of the Basin Plan justify the restriction.

(4)In a determination under this regulation the Minister may specify that the determination does not apply to the taking or use of water under tagged water allocations—

(a)from certain declared water systems, parts of declared water systems or zones specified in the determination; or

(b)under certain types of water shares or water use licences specified in the determination; or

(c)in other circumstances specified in the determination.

7Determination only to apply to Basin water resources

The Minister may make a determination under regulation 6 only in relation to Basin water resources.

8Form, content and process for determinations

(1)In a determination under regulation 6 the Minister must specify the reasons for restricting the taking or use of water under tagged water allocations.

(2)A determination under regulation 6 commences on the day the determination is published in the Government Gazette or any later date specified in the determination.

(3)A determination under regulation 6 must be published—

(a)in the Government Gazette; and

(b)on the Internet site of the Department.

9Effect of determination

For the purposes of the Act a person is not authorised to take or use water if the taking or use of water is prohibited by a determination under regulation 6.

10Grounds to suspend or cancel works licence

For the purpose of section 74AB(1)(b) of the Act, prescribed circumstances are where works under a licence issued under section 67 of the Act have been used by the holder of the licence to take or use water in contravention of a determination of the Minister under these Regulations.

11Transitional provisions

(1)In this regulation—

relevant tagged water allocation means a tagged water allocation which is a tagged water access entitlement (within the meaning of the Basin Plan) to which section 12.23(1) of the Basin Plan does not apply because of the operation of section 12.23(2) of the Basin Plan.

(2)A determination of the Minister under these Regulations does not apply to a relevant tagged water allocation, other than—

(a)in the circumstances set out in subregulation (3); or

(b)by reason of subregulation (4).

(3)For the purposes of subregulation (2) the circumstances are—

(a)on and from the recording in the water register of a transfer of ownership of the water share for the relevant tagged water allocation under sections 33S and 33X(1)(a) or (ab) of the Act; or

(b)on and from the recording in the water register of a transfer, or if the transfer occurs on a later date specified in the transfer, that date, of the whole of the right to future relevant tagged water allocations under a water share for a fixed period under sections 33T and 33X(1)(b) of the Act; or

(c)on and from the approval by the Minister under section 33X(1)(ba) of the Act of a direction given to an Authority under which the whole of the right to future relevant tagged water allocations under a water share is transferred to the person nominated in the direction; or

(d)on and from the date specified in an assignment on which the relevant tagged water allocation is assigned under sections 33U and 33X(1)(c) of the Act.

(4)A determination of the Minister under these Regulations applies to a relevant tagged water allocation to which a determination of the Minister under the Water (Taking and Using Water Under Tagged Allocations) Interim Regulations 2019 applied because of regulation 10 of those Regulations.

(5)For the purpose of determining whether or not section 12.23 of the Basin Plan applies, taking or using water under a tagged water allocation is taken to be taking water with an order.

12Expiry of Regulations

These Regulations expire on 30 November 2021.

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Endnotes

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

The Water (Tagged Water Allocations) Interim Regulations 2020, S.R. No. 130/2020 were made on 24 November 2020 by the Governor in Council under sections 33F(3), 74AB(1)(b) and 324(1)(af) and (v), (2) and (3) of the Water Act 1989, No. 80/1989 and came into operation on 30 November 2020: regulation 3.

The Water (Tagged Water Allocations) Interim Regulations 2020 will expire on 30 November 2021: see regulation 12.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule.  Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms. 
See section 36(1A)(2A)(2B).

•     Examples, diagrams or notes

All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule.  Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule.  See section 36(3A).

•     Punctuation

All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule.  Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).

•     Provision numbers

All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001.  Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs.  See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule.  See section 36(3)(3D)(3E).

2   Table of Amendments

There are no amendments made to the Water (Tagged Water Allocations) Interim Regulations 2020 by statutory rules, subordinate instruments and Acts.

3   Amendments Not in Operation

This version does not contain amendments that are not yet in operation.

4   Explanatory details

[1] Reg. 4: S.R. No. 140/2019.