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Contents (2018 - 480)
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Water Management (General) Regulation 2018
Current version for 7 February 2020 to date (accessed 5 April 2020 at 17:51)
Part 3 Division 2
Division 2 Exemptions
Subdivision 1 Preliminary
33   Definition
In this Division—
public authority does not include Landcom or the Superannuation Administration Corporation or any of their subsidiaries.
Subdivision 2 Exemption from requirement for water use approval
34   Exemption where the taking of the water is also exempt
(1)  A person who is exempt under clause 21 in relation to the taking of water for any of the purposes, and in the circumstances, specified in a provision of Part 1 of Schedule 4 is exempt from section 91A(1) of the Act in relation to the use of the water for that purpose or those purposes, and in those circumstances.
(2)  An exemption conferred by this clause that relates to an exemption under clause 21 that requires a watering program to be approved by the Minister is subject to the condition that any person claiming the exemption must, if required to do so by an authorised officer, produce the approved watering program immediately or within the period, and at the place, specified by the officer.
(3)  An exemption conferred by this clause in respect of an exemption under clause 21 with respect to approved watering for basic human water needs (within the meaning of clause 14 of Schedule 4) ceases to apply at the same time as the exemption ceases to apply under clause 21(4).
(4)  An exemption conferred by this clause in respect of an exemption under clause 21 with respect to the taking of water for the purposes and in the circumstances specified in clause 17 of Schedule 4 (Emergency safety measures) is subject to the condition that the person claiming the exemption must comply with all applicable requirements (if any) of the Minister—
(a)  that are published in the Gazette, or notified in writing to the person, for the purposes of this subclause, and
(b)  that are for the purposes of implementing the water management principles in relation to the use of water the subject of the exemption.
35   Water used for particular purposes
A person is exempt from section 91A(1) of the Act in relation to the use of water if the water is used for any of the following purposes—
(a)  the use of water for a purpose for which a development consent is in force under the Environmental Planning and Assessment Act 1979, other than the use of water for power generation by a major utility,
(b)  the use of water for domestic consumption or stock watering,
(c)  the use of water by, or on behalf of, the holder of a specific purpose access licence for Aboriginal cultural purposes for any purpose for which water may be taken under the licence,
(d)  the use of water for an environmental purpose in accordance with a plan approved by the Minister under section 8E(7) of the Act.
36   Aquifer interference in connection with mining
A person who is engaged in an aquifer interference activity in connection with the mining or extraction of any material is exempt from section 91A(1) of the Act in relation to the using of water from an aquifer if the water is used in accordance with an aquifer interference approval with respect to that activity.
Subdivision 3 Exemption from requirement for water supply work approval
37   Exemptions relating only to construction of water supply works
(1)  A person is exempt from section 91B(1) of the Act in relation to the construction of any of the following water supply works—
(a)  a water supply work constructed for the purpose of prospecting or fossicking for minerals or petroleum under the Mining Act 1992 or the Petroleum (Onshore) Act 1991 and for no other purpose,
(b)  the construction of a water pipe for use solely for conveying water from one place to another,
(c)  the construction of a water reticulation work on land the subject of a water use approval.
(2)  Subclause (1) does not apply to a water supply work constructed on any of the following land—
(a)  land within an area declared to be an area of outstanding biodiversity value under the Biodiversity Conservation Act 2016,
(b)  land within an area declared to be critical habitat under Division 3 of Part 7A of the Fisheries Management Act 1994,
(c)  land that is a heritage conservation area within the meaning of an environmental planning instrument that applies to the land under the Environmental Planning and Assessment Act 1979,
(d)  land that is an Aboriginal place within the meaning of the National Parks and Wildlife Act 1974,
(e)  land that is reserved for any purpose under the National Parks and Wildlife Act 1974,
(f)  land the subject of a conservation agreement in force under section 69B of the National Parks and Wildlife Act 1974,
(g)  land the subject of a property vegetation plan under Part 4 of the Native Vegetation Act 2003 (as continued in force under the Biodiversity Conservation Act 2016),
(h)  land within a State forest within the meaning of the Forestry Act 2012 (other than land in any part of a State forest that is a plantation within the meaning of that Act),
(i)  land within a coastal wetlands and littoral rainforests area (within the meaning of the Coastal Management Act 2016),
(j)  waterfront land (other than waterfront land relating to a minor stream).
38   Exemptions relating only to use of water supply works
A person is exempt from section 91B(1) of the Act in relation to the use of any of the following water supply works if the work is used for any of the purposes, and in the circumstances, specified in relation to the work—
(a)  a water supply work used for the purpose of prospecting or fossicking for minerals or petroleum under the Mining Act 1992 or the Petroleum (Onshore) Act 1991,
(b)  a water storage work, water reticulation work or water impounding work that was in use before 1 July 2004 to convey or impound water taken pursuant to—
(i)  an entitlement, or
(ii)  (the previously repealed) section 7(7) of the former 1912 Act,
that is used pursuant to that entitlement for a purpose permitted by that entitlement, or for a purpose permitted by section 7(7) of the former 1912 Act,
(c)  a water reticulation work used for the purpose of conveying water to land—
(i)  the subject of a water use approval, or
(ii)  the use of water on which does not require a water use approval,
(d)  a hydro-electric power station that is operated in connection with a water supply work owned by Water NSW or the Ministerial Corporation, and is authorised by Water NSW or the Ministerial Corporation to be so operated, but only if—
(i)  the water taken by the work is used for the purpose of generating hydro-electric power, and
(ii)  the water taken by the work is returned to the same water source from which it was taken, and
(iii)  the returned water is of the same quality as it was when it was taken (in terms of chemical composition, temperature, sediment content and salinity),
(e)  a water tanker (being a motor vehicle including a tank for the purpose of conveying water) and any water pump comprising part of the water tanker, but only if—
(i)  the water tanker or pump is used to take or convey water for the purpose of dust suppression activities by a public authority, and
(ii)  the public authority is satisfied that taking the water will not have a significant adverse impact on basic landholder rights or land referred to in clause 37(2)(a)–(j).
39   Exemptions relating to both construction and use of water supply works
(1)  The following persons are exempt from section 91B(1) of the Act in relation to the construction or use of a water supply work if the work is constructed or used for any of the purposes, and in the circumstances, specified in relation to the work—
(a)  any person who is a landholder, in relation to the construction of an excluded work referred to in item 1, 2, 3, 4, 6, 7 or 9 in Schedule 1 that is situated on the land, or the use of the work for any of the purposes, and in the circumstances, specified in Schedule 1 in respect of the work,
(b)  any person who is a landholder, in relation to the construction or use of an excluded work referred to in item 5 or 8 in Schedule 1 that is situated on the land,
(c)  any person, in relation to the construction of an exempt monitoring bore, or the use of that bore, for measuring water levels, water pressure or water quality,
(d)  any person who is engaged in an aquifer interference activity in connection with the mining or extraction of any material, in relation to the construction or use of a water management work for the purpose of taking and using water from an aquifer in accordance with an aquifer interference approval with respect to that activity,
(e)  the Ministerial Corporation, in relation to the construction or use of a water supply work used for approved watering for basic human water needs (within the meaning of clause 14 of Schedule 4),
(f)  any person, in relation to the construction or use of a water supply work for the purposes only of complying with a direction given under the State Emergency Service Act 1989 or the State Emergency and Rescue Management Act 1989 in an emergency (within the meaning of the latter Act), but only if—
(i)  the person’s compliance with the direction is in accordance with the Act under which it is given, and
(ii)  the water supply work is removed within 3 months (or such longer period as is approved of in writing by the Minister) after it is constructed,
(g)  any person, in relation to the construction or use of a water supply work for the control or prevention of soil erosion that is included in a project approved under section 10 of the Soil Conservation Act 1938, for the purpose of giving effect to the project.
(2)  An exemption conferred by subclause (1)(c) is subject to a condition that any person claiming the exemption must furnish Water NSW with the following—
(a)  a report on the completion of the construction of the exempt monitoring bore not more than 60 days after the completion,
(b)  any report that the Minimum Construction Requirements for Water Bores in Australia states is to be prepared, not more than 60 days after the event or activity in respect of which the report is to be prepared.
(3)  An exemption conferred by subclause (1)(e) is subject to a condition that any person claiming the exemption must, if required to do so by an authorised officer, produce the approved watering program required by the exemption, immediately or within the period, and at the place, specified by the officer.
(4)  An exemption conferred by subclause (1)(e) ceases to apply at the same time as the exemption under clause 21(4) ceases to apply in respect of the taking of the water for approved watering for basic human water needs.
(5)  An exemption conferred by subclause (1)(f) is subject to the condition that the person claiming the exemption must comply with all applicable requirements (if any) of the Minister—
(a)  that are published in the Gazette, or notified in writing to the person, for the purposes of this subclause, and
(b)  that are for the purposes of implementing the water management principles in relation to the construction or use of the water supply work the subject of the exemption.
39AA   Exemption relating to use of water supply work for floodplain harvesting
(1)  A person is exempt from section 91B(1) of the Act in relation to the use of an eligible work for the purpose of floodplain harvesting.
(2)  In this clause—
eligible work means a water supply work (other than a work in respect of which an application for a water supply work approval has been refused)—
(a)  located on a floodplain, and
(b)  constructed—
(i)  on or before 3 July 2008, or
(ii)  after 3 July 2008 in accordance with an approval under this Act, or a licence or approval under Part 2 or Part 8, respectively, of the former 1912 Act, for which an application had been made before 3 July 2008 but which, on that date, was yet to be determined.
39A   Exemption relating to certain public authorities granted by Minister during drought
(1)  The Minister may, on application for an exemption under this clause, exempt a relevant public authority from section 91B(1) of the Act in relation to the construction or use (or both) of a water supply work.
(2)  An exemption under this clause is to be granted by notice in writing to the relevant public authority (an exemption notice).
(3)  The Minister may grant an exemption only if satisfied that—
(a)  conditions of drought exist, and
(b)  the grant of the exemption is in the public interest given those conditions.
(4)  An exemption is subject to the condition that the public authority must notify the Minister in writing of the following matters within the relevant period—
(a)  the plans of the public authority in relation to the water supply work, in particular, whether or not it proposes to continue to use the work after the exemption expires,
(b)  if the public authority intends to cease using the water supply work on or before the expiry of the exemption—the date on which it will cease to use the work and its plans for the work once that occurs (for example, whether the work is to be capped, decommissioned or removed),
(c)  if the public authority intends to continue using the water supply work after the exemption expires—whether it intends to—
(i)  apply for an extension of the period of the exemption, or
(ii)  rely on another exemption pursuant to the Act or the regulations from the requirement for an approval in relation to the work, or
(iii)  apply for a water supply work approval in relation to the work.
Note.
 A further notification is required under this condition if an exemption is extended—see subclause (10).
(5)  The Minister may grant an exemption subject to any further conditions that the Minister considers appropriate.
(6)  Without limiting subclause (5), the Minister may grant an exemption subject to conditions that relate to one or more of the following—
(a)  the location of the water supply work,
(b)  the water source from which water is proposed to be taken by the water supply work,
(c)  the construction standards with which the water supply work must comply,
(d)  the maximum size of the water supply work,
(e)  reporting requirements on completion of the construction of the water supply work.
(7)  The Minister may revoke an exemption, by notice in writing to the public authority, for any reason that the Minister considers appropriate.
(8)  An exemption remains in force (unless revoked earlier)—
(a)  for the period specified in the exemption notice (or, if extended, specified in the extension notice) for the purposes of this subclause, or
(b)  if no period is so specified—for 12 months following the date of the grant of the exemption.
(9)  The Minister may, on application for an extension of an exemption under this clause, extend the time for which an exemption remains in force by giving further notice in writing to the public authority (an extension notice).
(10)  Subclauses (3)–(7) apply to the grant of an extension of an exemption and an extended exemption in the same way as they apply to the grant of an exemption and an exemption.
(11)  In this clause—
relevant period means—
(a)  in relation to an exemption (as initially granted)—
(i)  the period specified in the exemption notice for the purposes of subclause (4), or
(ii)  if no period is so specified—the period of 3 months before the date on which the exemption is due to expire, and
(b)  in relation to an extended exemption—
(i)  the period specified in the extension notice for the purposes of subclause (4), or
(ii)  if no period is so specified—3 months before the date on which the exemption as extended is due to expire.
relevant public authority means a public authority who supplies water to the public.
Subdivision 4 Exemption from requirement for controlled activity approval
40   Condition applying to all exemptions under this Subdivision
An exemption conferred under this Subdivision is subject to the condition that the person by whom the relevant controlled activity is carried out must comply with applicable requirements (if any) of the Minister that are published in the Gazette, or notified in writing to the person, for the purposes of this clause and that are for the protection of—
(a)  the waterfront land on which the activity is carried out, or
(b)  any river, lake or estuary to which that land has frontage.
41   Controlled activities—public authorities
A public authority is exempt from section 91E(1) of the Act in relation to all controlled activities that it carries out in, on or under waterfront land.
42   Controlled activities—persons other than public authorities
A person (other than a public authority) is exempt from section 91E(1) of the Act in relation to controlled activities specified in Part 2 of Schedule 4 that are carried out in, on or under waterfront land.
43   Network operators and pipeline licensees
(1)  A network operator or pipeline licensee is exempt from section 91E(1) of the Act in relation to a relevant activity of the operator or licensee if—
(a)  the activity is carried out in, on or under waterfront land relating to a river, estuary or lake (other than in or on the bed or banks of a river, the bed or shore of a lake, or the bed of land lying between the bed and mean high water mark of an estuary), and
(b)  the activity does not cause any change in the course of the river, and
(c)  the operator or licensee, after considering the environmental impact of the activity in accordance with section 5.5 of the Environmental Planning and Assessment Act 1979 (as if the operator or licensee were the determining authority under that section), is satisfied that activity is not likely to significantly affect the environment.
(2)  In this clause—
network operator means a network operator that is licensed or authorised under the Water Industry Competition Act 2006, Gas Supply Act 1996 or Electricity Supply Act 1995.
pipeline licensee means a licensee under the Pipelines Act 1967.
relevant activity of a network operator or pipeline licensee means the construction, modification, repair or maintenance of, or emergency work on—
(a)  in the case of a network operator, the operator’s water, gas or electricity infrastructure, and
(b)  in the case of a pipeline licensee, the pipeline the subject of the licence and its associated infrastructure.
Subdivision 5 Exemption from operation of section 106
44   Exemption from operation of section 106
Section 106 of the Act does not apply to—
(a)  a water management work approval for a work used by a person referred to in clause 2, 4, 5 or 6 of Schedule 4 solely for taking water for a purpose for which the person is exempted by clause 21 from the requirement for an access licence, or
(b)  a water use approval for the use of water for such a purpose.
Subdivision 6 Exemption from requirement for flood work approval
45   Definition
In this Division—
designated high risk flood area means—
(a)  a recognised floodway that is designated by a converted floodplain management plan, or
(b)  an area of a floodplain that is within Management Zone A or D under a management plan that applies to the floodplain.
46   Exemption relating to compliance with State emergency direction
(1)  A person is exempt from section 91D(1) of the Act if the person constructs, uses or modifies a flood work in compliance with a direction given under the State Emergency and Rescue Management Act 1989 or State Emergency Service Act 1989.
(2)  An exemption conferred by subclause (1) ceases to apply 3 months after the date on which the direction was given or such later date as the Minister may approve of in writing.
47   Exemption relating to work carried out by determining authorities or under development authorisations
(1)  A determining authority is exempt from section 91D(1) of the Act in relation to the construction or use of a flood work if—
(a)  the construction or use of the work is permitted to be carried out by the determining authority under the Environmental Planning and Assessment Act 1979 (whether or not under a development authorisation), and
(b)  the work is situated in or on—
(i)  a place that is located within a managed designated high risk flood area, or
(ii)  any other place (unless it is located within an unmanaged designated high risk flood area).
(2)  A person (other than a determining authority) is exempt from section 91D(1) of the Act in relation to the construction or use of a flood work on a landholding that is owned or occupied by the person if—
(a)  the construction or use of the work is carried out under a development authorisation, and
(b)  the work is situated in or on—
(i)  a place that is located within a managed designated high risk flood area, or
(ii)  any other place (unless it is located within an unmanaged designated high risk flood area), and
(c)  the total area of the landholding does not exceed 0.2 hectare.
Note.
 Section 5.7 if the Environmental Planning and Assessment Act 1979 makes provision with respect to environmental impact assessments before carrying out, or approving the carrying out of, certain activities.
(3)  In this clause—
determining authority has the same meaning as in Division 5.1 of Part 5 of the Environmental Planning and Assessment Act 1979.
development authorisation means—
(a)  development consent within the meaning of the Environmental Planning and Assessment Act 1979, or
(b)  approval within the meaning of Division 5.1 of Part 5 of the Environmental Planning and Assessment Act 1979.
managed designated high risk flood area means a designated high risk flood area to which a floodplain risk management plan or floodplain risk management study applies (being a plan or study that has been developed and implemented by a local council in accordance with the Floodplain Development Manual 2005, or a replacement manual, notified under section 733 of the Local Government Act 1993).
unmanaged designated high risk flood area means a designated high risk flood area other than a managed designated high risk flood area.
48   Exemptions relating to ring embankments around dwelling houses or certain farm infrastructure
A person is exempt from section 91D(1) of the Act if—
(a)  the person constructs or uses on the person’s land a flood work consisting of—
(i)  one or more ring embankments that enclose a dwelling house, shed or storage silo, or
(ii)  one or more partial ring embankments that, together with the slope of land, enclose a dwelling house, shed or storage silo, and
(b)  the area (or total area) enclosed does not exceed 2 hectares or 10% of the area of the person’s land, whichever is the lesser, and
(c)  the work is not situated in or on a place that is located within a designated high risk flood area.
49   Exemptions relating to certain public authorities
(1)  NSW Trains, Sydney Trains and the Residual Transport Corporation are exempt from section 91D(1) of the Act for the construction or use of a flood work for the purposes of a railway.
(2)  A roads authority for a public road (within the meaning of the Roads Act 1993) is exempt from section 91D(1) of the Act if it constructs or uses a flood work for the purposes of the public road.
50   Exemption relating to certain earthworks
A person is exempt from section 91D(1) of the Act if—
(a)  the person constructs or uses a flood work that consists of earthworks (including farm tracks and check banks) that are less than 150 millimetres above (but not below) the natural surface of the ground in or on which it is constructed or situated, and
(b)  the work is not situated in or on a place that is located within a designated high risk flood area.