PURSUANT to section 71L (a) and (b) of the Water Management Act 2000, I, JOHN AQUILINA, MP, Minister for Land and Water Conservation, make the following Order under the Water Management Act 2000.
Dated at Sydney, this 19th day of December 2002.
JOHN AQUILINA, MPMinister for Land and Water Conservation
Part 1 Introduction
1 Name of Order
This Order is the Access Licence Dealing Principles Order 2002.
2 Commencement
This Order commences on 20 December 2002.
3 Establishment of access licence dealing principles
The access licence dealing principles set out in this order are established.
4 Interpretation
(1) References in this order to licences of category ‘runoff harvesting’ or ‘regulated river (conveyance)’ are subject to those categories being prescribed by regulation made under section 57 (k) of the Act.(2) Notes in this order do not form part of the order.
5 Effect
(1) Consistent with section 71K (1) of the Act, all applications for access licence dealings under Division 4 of Part 2 of Chapter 3 of the Act are to be dealt with in accordance with:(a) the water management principles, and(b) the principles in this order, and(c) access licence dealing rules established by any relevant management plan.(2) Consistent with section 71L of the Act, any access licence dealing rules established by management plans must be consistent with the principles in this order.
6 Definitions
In this order the following definitions apply:dealing means a dealing under Chapter 3, Part 2 Division 4 of the Water Management Act 2000.farm dam is a privately owned dam typically of earthen construction designed to collect and/or store water for use on one or a few properties. It does not include publicly owned dams or weirs.groundwater source means a water source specified in a groundwater management plan.hydrologically connected water sources are water sources where water from one flows into the other, or, in the case of river systems, where flow from both goes into a common river downstream.management plan means a plan made under section 41 or 50 of the Water Management Act 2000.regulated river water source means a water source specified in a regulated river management plan.runoff harvesting dam is a farm dam on a hillside or minor stream which collects and stores rainfall runoff. Minor streams are as defined in an order made under section 53 of the Water Management Act 2000.unregulated river water source means a water source specified in an unregulated river management plan.
Part 2 General principles
7 Impacts on water sources
(1) Dealings should not adversely affect environmental water and water dependent ecosystems as identified in any relevant management plan.(2) Dealings should be consistent with any strategies to maintain or enhance water quality identified in any relevant management plan.(3) In unregulated river water sources, dealings should not increase commitments to take water from water sources or parts of water sources identified in any relevant management plan as being of high conservation value.(4) In unregulated river water sources or a groundwater sources, dealings should not increase commitments to take water from water sources or parts of water sources above sustainable levels identified in any relevant management plan.(5) In regulated river water sources, dealings should not increase daily demand for water delivery at those locations and times where it is identified in any relevant management plan that demand exceeds delivery capacity.(6) In regulated river water sources, dealings should not increase commitments to take water in lower river or effluent systems where this will result in flow at greater than 80% of channel capacity for more than 10% of days used for water delivery.(7) In this clause, commitments to take water refers, in relation to all access licences with nominated works in that water source or part of a water source, to:(a) the total volume of share components, or(b) the total volume of water allocations in water allocation accounts, or(c) where relevant, the sum of limits on rates of extraction in extraction components.
8 Impacts on indigenous, cultural, heritage or spiritual matters
(1) Dealings should not adversely affect geographical and other features of indigenous significance.(2) Dealings should not adversely affect geographical and other features of major cultural, heritage or spiritual significance.
9 Impacts on water users
(1) Dealings should not adversely affect the ability of a person to exercise their basic landholder rights.(2) Dealings should have no more than minimal effect on the ability of a person to take water using an existing approved water supply work and any associated access licences. This should be addressed by constraints on dealings established in access licence dealing rules in relevant management plans.
10 Maximising social and economic benefits
(1) The objective of access licence dealings is to help to facilitate maximising social and economic benefits to the community of access licences as required under the objects of the Act. Dealings do this by:(a) allowing water to move from lower to higher value uses, and(b) allowing the establishment of water markets that value the access licences, thereby encouraging investment in water efficient infrastructure, and(c) allowing greater flexibility to access licence holders.(2) Subject to other principles in this order, access licence dealing rules should allow maximum flexibility in dealings to promote the objectives set out in subclause (1).
Part 3 Principles for specific types of access licence dealings
11 Transfer of access licences
(1) This clause applies to dealings under section 71A of the Act.(2) Dealings under section 71A are prohibited:(a) if there is an outstanding debt under the Act in respect of the licence, or(b) if the licence is suspended under section 78 of the Act.(3) Access licence dealing rules established by a management plan shall not regulate or prohibit dealings under section 71A of the Act.Note—as indicated in section 71A (3), consent to the transfer of a local water utility access licence may only be granted if the transferee is a local water utility, and consent to the transfer of a major water utility access licence may only be granted if the transferee is a major water utility.
12 Conversion of access licence to new category
(1) This clause applies to access licence dealings under section 71B of the Act.(2) Dealings under section 71B are prohibited:(a) if the licence is proposed to be converted to category regulated river (conveyance) or category estuarine or category coastal, or(b) if there is an outstanding debt under the Act in respect of the licence, or(c) if the licence is suspended under section 78 of the Act, or(d) if the licence is of a kind which is not subject to embargo in accordance with an order made under sections 80 or 81 of the Act, or(e) if the licence share component is not numerically quantified.(3) Dealings under section 71B are prohibited unless provisions of the relevant management plan:(a) protect environmental water from being affected by such dealings, and(b) protect basic landholder rights from being affected by such dealings, and(c) protect the available water under other access licences from being affected by such dealings.(4) The share and extraction components of a new licence issued under a dealing under section 71B must comply with any requirements that are specified in the relevant management plan for a licence granted under section 63 of the Act for the new category.(5) Except for where it is otherwise specified in access licence dealing rules in the relevant management plan or where this dealing is accompanied by a dealing under section 71E, water allocations remaining in the water allocation account of the cancelled licence are to be credited to the new licence, up to a maximum of the share component volume of the new licence.(6) The share component on a new access licence issued under a dealing under section 71B is to be of a volume equal to the volume on the cancelled licence multiplied by a conversion factor determined by the Minister in accordance with any rules set out in relevant management plans.(7) Conversion factor rules in management plans:(a) must be based on protecting environmental water and basic landholder rights as specified in the management plans, and maintaining available water to other access licences, and(b) are not to be set for the purpose of achieving a reduction in overall water extraction from water sources.(8) Subject to the granting of an application under section 71J, any nominated water supply works on the cancelled licence may be carried forward to the new licence.(9) For conversion of category from regulated river (high security), unregulated river or aquifer to major utility and vice versa:(a) a major utility licence may only be converted to another category if it has components relating to only one water source, and(b) subject to imposing such mandatory conditions as are required by the relevant management plan for the new category, the extraction component on the cancelled licence is to be carried over to the new licence.(10) For conversion of category from regulated river (general security) to regulated river (high security) and vice versa, and for conversion of category from domestic and stock to regulated river (high security) and vice versa, the extraction component on the cancelled licence is to be carried over to the new licence, subject to imposing such mandatory conditions as are required by the relevant management plan for the new category.(11) For conversion of category from regulated river (conveyance) to regulated river (high security) or regulated river (general security), the extraction component on the cancelled licence is to be carried over to the new licence, subject to imposing such mandatory conditions as are required by the relevant management plan for the new category.(12) For conversion of category from regulated river (general security) to unregulated river:(a) no parts of the extraction component on the cancelled licence are to be carried over to the new licence, and(b) the extraction component of the new licence is to specify a location or area which is on an unregulated river (apart from a minor stream as defined in an order made under section 53 of the Act), and(c) the application for conversion of category from regulated river (general security) to unregulated river must be accompanied by an application under section 71E to change the share component to an unregulated river water source, and is conditional on granting of that application, and(d) water allocations remaining in the water allocation account on the cancelled licence may not be credited to the new licence.(13) For conversion of category from unregulated river to runoff harvesting:(a) no parts of the extraction component on the cancelled licence are to be carried over to the new licence, and(b) the extraction component of the new licence is to specify a location or area which is not on a river (apart from a minor stream as defined in an order made under section 53 of the Act), and(c) the application for conversion of category from unregulated river to runoff harvesting access licence must be accompanied by an application under section 71J to nominate the water supply work to a runoff harvesting dam, and is conditional on granting of that application.(14) For conversion of category from runoff harvesting to unregulated river:(a) no parts of the extraction component on the cancelled licence are to be carried over to the new licence, and(b) the extraction component of the new licence is to specify a location or area which is on an unregulated river (apart from a minor stream as defined in an order made under section 53 of the Act).(15) Subject to the other parts of this clause, access licence dealing rules may prohibit or regulate these dealings provided this is done consistent with the principles in Part 2 of this order.Note—Under section 71B applications to convert local water utility access licences and supplementary access licences are prohibited, and licences granted are subject to the mandatory conditions applicable to the category or subcategory of licence to which it belongs. Also licences may only be granted in relation to the same water source or water management area as the cancelled licence.
13 Subdivision of access licence
(1) This clause applies to subdivision dealings under section 71C of the Act.(2) Dealings under section 71C are prohibited:(a) if there is an outstanding debt under the Act in respect of the licence, or(b) if the licence is suspended under section 78 of the Act.(3) Subject to the granting of an application under section 71J, any nominated water supply works on the cancelled licence may be carried forward to the new licences.(4) The category of the new licences is to be the same as the category of the cancelled licence.(5) The areas or locations specified in the cancelled licence are to be carried over to all the new licences.(6) Any indivisible parts of the times, rates or circumstances specified in the extraction component of the cancelled licence are to be carried forward to all the new licences.(7) Water allocations remaining in the water allocation account of the cancelled licence are to be credited to the new licences so that the combined water allocations in the accounts of the new licences are no greater than the water allocations which remained in the account of the cancelled licence.(8) Access licence dealing rules established by a management plan shall not regulate or prohibit subdivision dealings under section 71C of the Act.Note—As indicated in section 71C (3), the combined share components and combined extraction components of the new licences are to be no greater than the share and extraction components of the cancelled licence, and conditions on the cancelled licence are to be carried over to the new licences.
14 Consolidation of access licences
(1) This clause applies to consolidation dealings under section 71C of the Act.(2) Consolidation dealings under section 71C are prohibited:(a) if there is an outstanding debt under the Act in respect of any of the licences, or(b) if any of the licences are suspended under section 78 of the Act, or(c) if the licences to be consolidated do not have share components in the same water source, or(d) if the location or area specified in the extraction component of the licences is not the same.(3) Subject to the granting of an application under section 71J, any nominated water supply works on the cancelled licences may be carried forward to the new licence.(4) Water allocations remaining in the water allocation accounts on the cancelled licences are to be credited to the new licence so that the water allocations in the account of the new licence is no greater than the sum of the water allocations remaining in the accounts of the cancelled licences.(5) Access licence dealing rules established by a management plan shall not regulate or prohibit consolidation dealings under section 71C of the Act.Note—as indicated in section 71C, the licences to be consolidated must be of the same category or subcategory, the combined share components and combined extraction components of the new licences are to be no greater than the share and extraction components of the cancelled licence, and conditions on the cancelled licences are to be carried over to the new licences.
15 Assignment of rights under access licences
(1) This clause applies to assignment of rights dealings under section 71D of the Act.(2) Dealings under section 71D are prohibited:(a) if there is an outstanding debt under the Act in respect of any of the licences, or(b) if any of the licences are suspended under section 78 of the Act, or(c) if any of the licences are of a kind which is not subject to embargo in accordance with an order made under sections 80 or 81 of the Act.(3) Only share or extraction components, or parts thereof, that are numerically quantified may be assigned from one licence to another.(4) Subject to the other parts of this clause, access licence dealing rules may prohibit or regulate these dealings provided this is done consistent with the principles in Part 2 of this order.Note—As indicated in section 71D, the licences which are involved in a dealing under section 71D must be of the same category and have share components in the same water source or water management area. This dealing does not apply to local water utility access licences.
16 Change of water source
(1) This clause applies to amendment of share component dealings under section 71E of the Act.(2) Dealings under section 71E are prohibited:(a) if there is an outstanding debt under the Act in respect of the licence, or(b) if the licence is suspended under section 78 of the Act, or(c) if the licence does not have the share component expressed as a volume, or(d) if the licence is of a kind which is not subject to embargo in accordance with an order made under sections 80 or 81 of the Act, or(e) from an unregulated river water source to a regulated river water source, or(f) from a groundwater source to a regulated river or unregulated river water source, or vice versa, or(g) if the licence is of category major water utility or supplementary.(3) A dealing under section 71E is prohibited unless there is a hydrologic connection between the water sources of the cancelled and issued licences.(4) A dealing under section 71E is prohibited unless provisions of the relevant management plans:(a) protect environmental water from being affected by such dealings, and(b) protect basic landholder rights from being affected by such dealings, and(c) protect the available water under other access licences from being affected by such dealings.(5) The share and extraction components of a new licence issued under this dealing must comply with any requirements that are specified in the relevant management plan for a licence granted under section 63 of the Act.(6) The share component on the new access licence is to be of a volume equal to the volume on the cancelled licence multiplied by a conversion factor determined by the Minister in accordance with any rules set out in relevant management plans.(7) Conversion factors rules in management plans:(a) must be based on protecting environmental water and basic landholder rights as specified in the management plans, and maintaining the available water to other access licences, and(b) are not to be set for the purpose of achieving a reduction in overall water extraction from water sources.(8) Nominated water supply works on the cancelled licence are not to be carried over to the new licence.(9) No water allocations remaining in the water allocation account of the cancelled licence may be credited to the new licence.(10) Subject to the other parts of this clause, access licence dealing rules may prohibit or regulate these dealings provided this is done consistent with the principles in Part 2 of this order.Note—As indicated in section 71E, the new licence arising from a dealing under section 71E is subject to the mandatory conditions relevant to its category or subcategory and water source. This dealing does not apply to local water utility access licences.
17 Amendment of extraction component of access licence
(1) This clause applies to amendment of extraction component dealings under section 71F of the Act.(2) Dealings under section 71F are prohibited:(a) if there is an outstanding debt under the Act in respect of the licence,(b) if the licence is suspended under section 78 of the Act, or(c) if the licence is of a kind which is not subject to embargo in accordance with an order made under sections 80 or 81 of the Act, apart from local water utility access licences.(3) Amendment of the times, rates and circumstances part of the extraction component may only occur where:(a) access licence dealing rules in the relevant plan make provision for it consistent with the principles in Part 2 of this order, and(b) those rules specifically indicate the nature of those amendments which are allowed.(4) Subject to the other parts of this clause, access licence dealing rules may prohibit or regulate these dealings provided this is done consistent with the principles in Part 2 of this order.Note—As indicated in section 71F, the area or location arising from a variation of an access licence under this dealing must relate to the same water management area or water source as that to which the original area or location related.
18 Assignment of water allocations between access licences
(1) This clause applies to assignment of water allocation dealings under section 71G of the Act.(2) Dealings under section 71G are prohibited:(a) if either of the access licences is suspended under section 78 of the Act, or(b) if either of the access licences are of a kind which is not subject to embargo in accordance with an order made under sections 80 or 81 of the Act, apart from local water utility access licences, or(c) if a method of measurement of water extraction which is satisfactory to the Minister is not established for all nominated water supply works on both access licences, or(d) if any of the access licences is of category runoff harvesting, or(e) if any of the access licences is of category major utility, unless specific provision is made in access licence dealing rules to allow this, or(f) from a supplementary water access licence to a licence of any other category.(3) Assignment of water allocations between access licences relating to different water sources is prohibited if:(a) either licence is of category supplementary, or(b) there is no hydrologic connection between the water sources, or(c) one water source is a regulated river and the other is an unregulated river, or(d) one water source is a groundwater source and the other is a regulated river or unregulated river water source.(4) Assignment of water allocations between access licences relating to different water sources is prohibited unless provisions of the relevant management plans:(a) protect environmental water from being affected by such dealings, and(b) protect basic landholder rights from being affected by such dealings, and(c) protect the available water under other access licences from being affected by such dealings.(5) Assignment of water allocations from a local water utility access licence is prohibited unless:(a) the Minister has approved a demand management plan for all NSW towns supplied under the local water utility access licence, and(b) the Minister has approved a drought management plan for all NSW towns supplied under the local water utility access licence, and(c) the Minister is satisfied the assignment will not put the water supply for NSW towns supplied by the local water utility at risk.(6) Subject to the other parts of this clause, access licence dealing rules may prohibit or regulate these dealings provided this is done consistent with the principles in Part 2 of this order.
19 Interstate transfer dealings
(1) This clause applies to dealings under section 71H of the Act.(2) Any dealings under section 71H must be consistent with the relevant inter-state agreement.(3) Dealings under section 71H are prohibited unless the waters for which the interstate access licence equivalent has or will have rights to are hydrologically connected to the water source in which to which the access licence to be issued or revoked relates.(4) Dealings under section 71H which revoke an access licence are prohibited:(a) if there is an outstanding debt under the Act in respect of the licence, or(b) if the licence is suspended under section 78 of the Act, or(c) if the licence is of a kind which is not subject to embargo in accordance with an order made under sections 80 or 81 of the Act, or(d) if the licence is of category local water utility or major water utility.(5) The share and extraction components of a new licence issued under this dealing must comply with any requirements that are specified in the relevant management plan for a licence granted under section 63 of the Act.(6) Dealings under section 71H are prohibited unless arrangements are in place which:(a) protect environmental water from being affected by such dealings, and(b) protect basic landholder rights from being affected by such dealings, and(c) protect the available water under other access licences from being affected by such dealings.(7) Subject to the other parts of this clause, access licence dealing rules may prohibit or regulate these dealings provided this is done consistent with the principles in Part 2 of this order.
20 Interstate assignment of water allocations
(1) This clause applies to interstate assignment of water allocation dealings under section 71I of the Act.(2) Any dealings under section 71I must be consistent with the relevant inter-state agreement.(3) Dealings under section 71I are prohibited:(a) if the access licence is suspended under section 78 of the Act, or(b) if the licence is of a kind which is not subject to embargo in accordance with an order made under sections 80 or 81 of the Act, apart from local water utility access licences, or(c) if a method of measurement of water extraction which is satisfactory to the Minister is not established for all nominated water supply works on the access licence, or(d) if the access licence is of category runoff harvesting or supplementary water, or(e) if the access licence is of category major utility, unless specific provision is made in access licence dealing rules in the relevant management plan to allow this.(4) This dealing is prohibited unless arrangements are in place which:(a) protect environmental water from being affected by the dealing, and(b) protect basic landholder rights from being affected by the dealing, and(c) protect the available water under other access licences from being affected by the dealing.(5) Interstate assignment of water allocations from a local water utility access licence is prohibited unless:(a) the Minister has approved a demand management plan for all NSW towns supplied under the local water utility access licence, and(b) the Minister has approved a drought management plan for all NSW towns supplied under the local water utility access licence, and(c) the Minister is satisfied the assignment will not put the water supply for NSW towns supplied by the local water utility at risk.(6) Subject to the other parts of this clause, access licence dealing rules may prohibit or regulate these dealings provided this is done consistent with the principles in Part 2 of this order.
21 Nomination of water supply works
(1) This clause applies to nomination of water supply works dealings under section 71J of the Act.(2) Dealings under section 71J are prohibited if the access licence is suspended under section 78 of the Act.(3) Dealings under section 71J are prohibited if the access licence is of a kind which is not subject to embargo in accordance with an order made under sections 80 or 81 of the Act, apart from local water utility access licences, with the following exceptions:(a) if new or additional works are to be nominated, where those works supply the same property as the current nominated works, or a contiguous property to the property supplied by the current nominated works which is occupied by the same landholder, or(b) if a nominated work is withdrawn, that there remains at least one nominated work.(4) Dealings under section 71J are prohibited if the access licence is of category local water utility, with the following exceptions:(a) if new or additional works are to be nominated, that those works supply the same town water supply scheme as the current nominated works, or(b) if a nominated work is withdrawn, that there remains at least one nominated work.(5) Nomination of a water supply work is prohibited if the access licence does not have an extraction component allowing taking of water at the location of the nominated work.(6) With regard to runoff harvesting access licences:(a) the nominated work must be a runoff harvesting dam of capacity consistent with the share component of the access licence, and(b) withdrawal of nominated work may only be granted where arrangements are in place to ensure that the nominated work does not conserve any more water than is permitted pursuant to the exercise of basic landholder rights.(7) Withdrawal of nomination may not be prohibited by access licence dealing rules, except for as otherwise specified in this clause.(8) Subject to the other parts of this clause, access licence dealing rules may prohibit or regulate these dealings provided this is done consistent with the principles in Part 2 of this order.