Queensland Energy and Resources Insights

31 August 2005

Queensland Water Update - Amendments to the Fitzroy Basin Water Resource Plan

By Andrew Bruton.

Key Points:
New works for taking overland flow, for irrigation and other purposes, may require an authorisation to take overland flow and will need to adhere to an assessment code.

New rules have been introduced to manage the taking of overland flow water in the Fitzroy Basin catchments of Central Queensland. The new rules commenced on 22 July 2005 and have (inter alia) amended the existing moratorium on overland flow works in districts covered by the Fitzroy Basin Water Resource Plan ("FBWRP"). (Similar rules for managing overland flows already apply in the Border Rivers, Moonie and Warrego/Paroo/Bulloo/Nebine catchments and Condamine-Balonne).

Existing works capturing and storing overland flow will generally be unaffected, providing the works were legally constructed and, where necessary, are notified. However, other new works for taking overland flow, for irrigation and other purposes, may require an authorisation to take overland flow and will need to adhere to an assessment code, published by the Department of Natural Resources and Mines ("DNRM"). Landholders who have overland flow works for stock and domestic water supply purposes will not be affected by the new rules. However, landholders who use overland flow water for other purposes must notify DNRM for authorisation of these works by 22 July 2006. It is expected that any affected landholders in the Fitzroy Basin region will soon be notified by DNRM, however, affected water users should review the details of the amendments to the plan and assess the impact upon their operations in each individual case.

Readers may recall that a Moratorium Notice applying to the Fitzroy Basin region was originally given under section 42 of the Water Act 2000 on 13 September 2001 prohibiting the starting of any new works (eg., dams, weirs, ring tanks, excavations, diversion channels, levee banks and diversion facilities such as pumps and embankments) or the raising, enlargement or deepening of any existing works that would "increase the taking of, or interfering with" of overland flow water. ("Overland flow water" is water which flows over land, including floodwater, that is not contained within a watercourse or lake).

The Moratorium Notice was the subject of various further amendments on 29 October 2001, 10 December 2003 and 17 May 2004. (The nature of those subsequent amendments do not have significant implications for the energy and resources sector in the Fitzroy plan area). However, the prohibition contained in the original September 2001 Moratorium Notice was expressed not to apply to works designed to take or interfere with overland flow water for activities authorised by or associated with mining tenements granted pursuant to the Mineral Resources Act 1989 (or any other act related to mining) or under the Petroleum Act 1923.

Under the new rules contained in section 28A of the amended FBWRP, the effect of the Moratorium Notice is modified and there is a limitation placed on taking overland flow water. Section 28A states that a person may not take overland flow water other than:

  • for stock and domestic purposes; or
  • under an authority under section 28B of the FBWRP (for small storages generally equal to or less than 5 megalitres related to ponded pastrure or water spreading); or
  • under an authority under section 28D of the FBWRP (ie. in relation to certain "existing works"); or
  • under an "authorisation" (ie. a licence, permit or authority to take water under the Water Act); or
  • overland flow water necessary to satisfy the requirements of an environmental authority, or development permit (for carrying out an environmentally relevant activity other than a mining or petroleum activity) issued under Environmental Protection Act 1994, or to divert the water around a mine site; or
  • overland flow water that is contaminated agricultural run-off.

However, the prohibitions outlined in the new section 28A do not apply to the taking of overland flow water for activities authorised under a mining tenement (ie., under the Mineral Resources Act), the Petroleum Act or the Petroleum and Gas (Production and Safety) Act 2004 until:

  • an amendment of the resource operations plan, in relation to overland flow water, is approved; and
  • unallocated overland flow water is granted under a process stated in the resource operations plan.

Similarly, in respect of the use of certain "existing works" or the reconfiguration of existing works, pursuant to section 28D of the FBWRP, the owner of such works may continue to take overland flow water using the works for "mining purposes" (not defined in the FBWRP) until:

  • an amendment of the resource operations plan, in relation to overland flow water, is approved; and
  • unallocated overland flow water is granted under a process stated in the reource operations plan, or

otherwise - for one year after commencement of section 28D of the FBWRP.

Further, pursuant to section 28E of the FBWRP, if an owner of land is authorised under section 28D of the FBWRP to continue taking overland flow water using works and the Chief Executive is satisfied that there has been (or may be) an increase in the average annual volume of overland flow water taken using the works, then the Chief Executive may grant a water licence under section 212 of the Water Act (ie. granting of water licences under a plan process) to replace the authorsation under section 28D of the FBWRP and impose a condition on that new licence to ensure that 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 the new amendments to the FBWRP.

The effect of the Moratorium Notice is continued in part by section 28H of the FBWRP, which states that until the Fitzroy Basin Resource Operations Plan is amended in relation to overland flow water, new works may not be physically started and completed works (including partially completed works) may not be raised, enlarged or deepened. However, works authorised under a mining tenement or under the Petroleum Act or the Petroleum and Gas (Production and Safety) Act are again exempted.

Accordingly, (other than the potential for limitations to be imposed as contemplated by section 28E of the FBWRP mentioned above), mining and petroleum companies operating in the FBWRP area are unlikely to be "immediately" affected by the recent amendments to the FBWRP. However, we will continue to monitor amendments to the Fitzroy Basin Resource Operations Plan that may impact on activities of energy and resouces entities operating in the Fitzroy Basin region and advise of any changes in future editions of Insights.

Disclaimer
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states or territories.