Water NSW Regulation 2020

This Regulation is the Water NSW Regulation 2020.

This Regulation commences on 1 September 2020 and is required to be published on the NSW legislation website.

Note.

This Regulation replaces the Water NSW Regulation 2013, which is repealed on 1 September 2020 by section 10(2) of the Subordinate Legislation Act 1989.

In this Regulation—

animal means any non-human mammal or any bird, fish, reptile, amphibian, crustacean, arthropod or mollusc.

Crown land means—

Crown land within the meaning of the Crown Land Management Act 2016, or

land reserved under the National Parks and Wildlife Act 1974.

environment protection licence has the same meaning as in the Protection of the Environment Operations Act 1997.

environment protection notice has the same meaning as in the Protection of the Environment Operations Act 1997.

environmentally hazardous chemical has the same meaning as in the Protection of the Environment Operations Act 1997.

EPA means the Environment Protection Authority constituted by the Protection of the Environment Administration Act 1991.

non-scheduled activity has the same meaning as in the Protection of the Environment Operations Act 1997.

plant means any aquatic or terrestrial plant and includes a shrub or tree.

plant rehabilitation measure includes seedlings, matting or survey pegs and tapes marking out rehabilitation areas.

private land means land other than—

Water NSW land, or

Crown land.

the Act means the Water NSW Act 2014.

vehicle includes motor vehicle and vessel.

vessel includes a water craft of any description that is used or capable of being used as a means of transportation on water but does not include an aircraft that is capable of landing on water.

Water NSW land means land owned by or vested in Water NSW.

Note.

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

Notes included in this Regulation do not form part of this Regulation.

The Regulatory Authority has the same functions as the EPA or any other regulatory authority (including the functions of the appropriate regulatory authority) under the following provisions of the Protection of the Environment Operations Act 1997 in relation to a relevant non-scheduled activity and in relation to an offence set out in Part 3 of this Regulation—

Chapter 4,

Chapter 7 other than section 186,

Division 2 of Part 8.2.

The Regulatory Authority has the same functions as the EPA under Part 8.2 of the Protection of the Environment Operations Act 1997 with respect to an offence against section 145, 145A, 146, 146A, 146B or 146C of that Act that is committed or alleged to have been committed in a declared catchment area.

The Regulatory Authority has the same functions as the EPA under section 316 of the Protection of the Environment Operations Act 1997 with respect to a dispute between the Regulatory Authority and a public authority and that section applies to the Regulatory Authority in the same way as it applies to the EPA.

The Regulatory Authority has the same functions as a regulatory authority under sections 319 and 320 of the Protection of the Environment Operations Act 1997 and those sections apply to the Regulatory Authority in the same way as they apply to a regulatory authority.

If the Regulatory Authority exercises a function of the EPA or another regulatory authority (including the appropriate regulatory authority) under the Protection of the Environment Operations Act 1997—

that Act applies in respect of the exercise of that function (including any provisions relating to the exercise of those functions, any offences under that Act, any provisions relating to proceedings for offences and any appeal provisions), and

references in that Act to the EPA or another regulatory authority (including the appropriate regulatory authority) are taken to include the Regulatory Authority, and

references in that Act to an authorised officer are taken to include an authorised officer within the meaning of the Water NSW Act 2014.

In this clause—

relevant non-scheduled activity means a non-scheduled activity that is carried out or proposed to be carried out—

within a declared catchment area, or

outside a declared catchment area and of a nature as to affect or possibly affect a declared catchment area, or

within a controlled area, or

outside a controlled area and of a nature as to affect or possibly affect a controlled area.

The Regulatory Authority may exercise the functions conferred on it by this Part only for the following purposes—

protecting declared catchment areas,

protecting and enhancing the quality of water in declared catchment areas,

protecting controlled areas,

protecting and enhancing the quality of water in controlled areas.

The Regulatory Authority may not exercise the functions of a regulatory authority in relation to the following—

premises defined in an environment protection licence as the premises to which the licence applies, and all activities carried on at those premises,

a non-scheduled activity that is authorised or controlled by an environment protection licence.

Note.

The appropriate regulatory authority in respect of the activities listed in this subclause will generally be the EPA.

The Regulatory Authority may not exercise the functions of a regulatory authority in relation to the activities of Water NSW if the Regulatory Authority for those functions is Water NSW.

If, when exercising the functions conferred on it by this Part, the Regulatory Authority and another regulatory authority both give an environment protection notice in respect of the same pollution incident, premises or activity and it is not possible to comply with the requirements of both notices—

if the other regulatory authority is the EPA—the notice given by the EPA prevails and the notice given by the Regulatory Authority does not have to be complied with, to the extent that it is not possible to comply with that notice and the notice given by the EPA, and

otherwise—the notice given by the Regulatory Authority prevails and the notice given by the other regulatory authority does not have to be complied with, to the extent that it is not possible to comply with that notice and the notice given by the Regulatory Authority.

Note.

The powers conferred on the Regulatory Authority by this Regulation overlap with the powers of local authorities (such as local councils) under section 6(3) of the Protection of the Environment Operations Act 1997.

In this clause, activity, pollution incident and premises have the same meanings as in the Protection of the Environment Operations Act 1997.

The Regulatory Authority is to keep a register of the following—

details of each environment protection notice given by the Regulatory Authority,

details of convictions in prosecutions instituted by the Regulatory Authority under the Protection of the Environment Operations Act 1997,

the results of civil proceedings before the Land and Environment Court instituted by or against the Regulatory Authority under the Protection of the Environment Operations Act 1997,

other matters the Regulatory Authority considers appropriate, having regard to the purposes of the Protection of the Environment Operations Act 1997.

The register is also to continue to include any details, results or other matters that were included in the register by the Sydney Catchment Authority before its abolition.

A copy of the register is to be available for inspection at the principal office of the Regulatory Authority during ordinary office hours and on the website maintained by the Regulatory Authority.

A copy of any part of the register may be obtained by members of the public from the Regulatory Authority on payment of a fee to be determined by the Regulatory Authority.

In this clause—

details of a matter means—

particulars of the matter, or

a copy of the matter, or

any electronic or other reproduction of the matter.

A person does not commit an offence under this Part (other than an offence under this clause or under clause 15, 18, 19 or 20) by reason of anything done with the consent of Water NSW.

A person who does anything in a special area or controlled area with the consent of Water NSW must comply with the conditions, if any, to which the consent is subject.

Maximum penalty—400 penalty units in the case of a corporation or 200 penalty units in the case of an individual.

Water NSW may grant consent—

by a sign or notice displayed on the land or part of the land to which the sign or notice relates, or

by written notice given to a person, in the form of an approval, lease or other instrument in writing.

Consent granted by a sign or notice displayed on the land or part of the land to which the sign or notice relates may be granted—

either generally or in a particular case, and

to a particular person or to a class of persons, and

either unconditionally or subject to the conditions specified in the sign or notice, and

either for a specified period of time or until the consent is revoked.

Consent granted by written notice given to a person may be granted—

either unconditionally or subject to the conditions specified in the written notice, and

either for a specified period of time or until the consent is revoked.

Consent granted by written notice given to a person may be revoked or varied at any time by further written notification to the person.

A Division in this Part does not limit the operation of any other provision of this Regulation in the provision’s application to any land referred to in that Division.

A person must not dam, divert or take any water that—

is water from which Water NSW draws its supply or that is available for supply by Water NSW, and

is located on land in a special area or controlled area.

Maximum penalty—400 penalty units in the case of a corporation or 200 penalty units in the case of an individual.

A person does not commit an offence under subclause (1) by reason of anything done with lawful authority, including a licence or approval under the Water Management Act 2000 or the Water Act 1912.