Back to basics - The Water Act 2000 (Qld)

By James Minchinton.

Key Points:
The scheme for water in Queensland established by the Act provides for the management of existing water in Queensland by allowing users to acquire and transfer rights to take and use water.

While water has always been a critical resource, it has, until recently, been subject to minimal State regulation. But recent times are not times of plenty. The Government has recognised a need for increased regulation of water in order to manage and preserve the water resources of the State for the twin beneficiaries of the public and the environment.

The Water Act 2000 (Qld) is intended to be a comprehensive legislative instrument for sustainably managing water and other resources, establishing a regulatory framework for providing water and related services and establishing water authorities.

In this article we'll provide a broad outline of the framework of the Act and introduce some of its key elements.

Water

The starting point of the Act in terms of regulation is that all rights to the use, flow and control of all water in Queensland are vested in the State.

The starting point from a physical and factual perspective is the concept of water.

Water is defined as:

• water in a watercourse, lake or spring
• underground water
• overland flow water
• water that has been collected in a dam; and
• in some instances, recycled and desalinated water.

The concept of water is therefore very broad and its scope is virtually all natural sources of water. In basic terms, it could be described as any water upstream of a pipeline or other artificial transportation device. Therefore, virtually all producers of water and users of water will fall within the ambit of the Act when it comes to utilising water.

Water planning

The main tools for the management of water within the State are water resource plans developed (or to be developed) by the Minister. In order to implement a water resources plan, the Act provides for the creation of resource operations plans and the granting of water allocations, water licences and water permits.

Water resource plans are intended to:

• define the availability of water for any purpose
• provide a framework for sustainably managing water and the taking of water
• identify priorities and mechanisms for dealing with future water requirements
• provide a framework for establishing water allocations; and
• provide a framework for reversing, where practicable, degradation that has occurred in natural ecosystems.

As at March 2007, Queensland has developed water resource plans for 17 of the 22 catchment areas, the most recent being for the Moreton catchment area in March 2007.

Water resource plans are supported by water use plans and resource operations plans.

Water use plans are created for particular areas where the Minister is satisfied that there are risks that water use in a particular area of Queensland may cause negative effects on land and water resources including rising underground water levels, increasing salinisation, deteriorating water quality, damage to riverine environment and increasing soil erosion. Water use plans must, amongst other things, state standards for water use practices and state objectives for water use efficiency, water reuse and water quality.

Resource operations plans are the key operational document for water management. They must state, inter alia:

• the water to which the plan applies
• the water infrastructure to which the plan applies and how it will be operated
• the water and natural ecosystem monitoring practices will apply in the plan area; and
• how the plan addresses water resource plan outcomes.

They may also state:

• environmental management rules, seasonal water assignment rules and water sharing rules
• a process for granting, reserving or otherwise dealing with unallocated water to which the plan applies
• a process for meeting future water requirements in the area of the plan; and
• details of changes to be made to water entitlements.

Of the 22 catchment areas in Queensland, eight have resource operations plans. Resource operations plans for the majority of the remaining areas are under development.

The planning documents are therefore largely in place or will soon be in place in Queensland.

Water rights

The framework established by the Act, water resource plans and resource operations plans ultimately sets out the rights of users and potential users of water to take and use water for their own purposes, and it is these rights which are of most interest to businesses and other users of water. The key categories of rights pursuant to which users acquire rights to take and use waters are:

• general water rights
• water allocations
• water licences; and
• water permits.

A person who does not presently hold any of these rights but who requires water needs to take steps in accordance with the Act in order to obtain the water that they need. The Act sets out the mechanisms for obtaining such rights, including obtaining new rights from the State or purchasing or otherwise acquiring rights to water from an existing holder (assuming that that existing holder has the power to transfer all or some of its rights).

The general rights to water are effectively a restatement of the common law riparian rights to water. These rights are:

• an owner of land adjoining a watercourse, lake or spring may take water from that watercourse, lake or spring for stock purposes or domestic purposes
• an owner of land on which there is overland flow water may take the water for stock purposes or domestic purposes
• any person may take water from a watercourse, lake or spring for camping purposes or for watering travelling stock; and
• any person may take overland flow water or sub-artesian water for any purpose unless there is some sort of government restriction on doing so.

The second set of rights to water are those conferred by water allocations. Water allocations are effectively a right conferred upon users of water to take and use water. The key elements of a water allocation are that is specifies the nominal quantity of water that may be taken (with such nominal quantities adjustable in accordance with a resource operations plan), the location from which water may be taken and the purposes for which water may be used. They are therefore regionally based and water rights subject to a water allocation are not universally transferable.

Water licences may be granted to an owner of land allowing water to be taken and used in relation to the particular land of the owner. For the purposes of applications for water licences, owners of land are not merely owners of an interests in the real property in the land. Owners in this context includes holders of other interests such as holders of (or applicants for) mineral development licences or mining leases, and, in some circumstances, includes holders of (or applicants for) petroleum leases. Water licences are also prescriptive in relation to their duration, the water to which it relates, the location from which the water may be taken and the land on which the water may be used.

Water permits may be applied for by any person for the taking of water for any activity provided that the activity has a reasonably foreseeable conclusion date. A water permit grants very limited rights in relation to water. It relates to a particular location, is for a stated period, is for a stated purpose and cannot be amended, transferred, renewed or suspended.

Conclusion

The scheme for water in Queensland established by the Act provides for the management of existing water in Queensland. The primary means of doing this is to allow users to acquire and transfer rights to take and use water. This management of water under the Act will impact on both small scale operations such as watering of gardens and on large scale operations such as irrigation and mining. The Act enshrines the power of the State to respond to current and future water crises by reserving to the State the power to control and change the use and allocation of water.

But the Act is not a panacea for solving the entire water crisis facing the State. For example, it doesn’t empower the State to construct new water infrastructure such as mega-dams and pipelines. Other powers and processes will need to be relied upon to create such infrastructure.

Finally, the Act has anticipated the market forces that will drive a water trading scheme and establishes a framework for such a scheme. The mechanics of how water trading will operate within the scheme of the Act, water resource plans and resource operations plans will ultimately be one of the most critical features of the scheme for end-users of water in Queensland.

For further information, please contact James Minchinton.