Water Management Act 1999

Water Management Act 1999

This Act may be cited as the Water Management Act 1999.

The provisions of this Act commence on a day or days to be proclaimed.

In this Act, unless the contrary intention appears – Advisory Committee means the Advisory Committee established under section 114;Agency has the same meaning as in the State Service Act 2000;ANCOLD consequence category means a consequence category referred to in the Guidelines on the Consequence Categories for Dams, published in October 2012 by the Australian National Committee on Large Dams Incorporated, as amended or substituted from time to time; Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal; approved form means a form approved under section 300; authorisation means – a licence, permit or transfer; or an approval for a water entity to administer a water management plan under Division 4 of Part 4 or a water district under Part 9; or any other authority granted under this Act permitting a person to undertake an activity; authorised officer means an authorised officer appointed under section 237; best practice environmental management has the same meaning as in the EMPC Act; channel includes – a drain, gutter or pipe; and a part of a drain, gutter or pipe; commencement day means – in section 303 and Schedule 4, the day on which section 307 commences; or in Schedule 5, the day on which section 308 commences; Commission means the Tasmanian Planning Commission; contravene includes fail to comply with; dam means a permanent or temporary barrier or structure that stores, holds back or impedes the flow of water and includes – any spillway or similar works for passing water around or over the barrier or structure; and a pipe or other works for passing water through or over the barrier or structure; and water stored or held back by the barrier or structure and the area covered by that water; and an artificial depression or hole excavated in a watercourse that holds water or impedes the flow of water; and an artificial levee or bank that holds back or diverts water in a watercourse – but does not include – associated works and canals used in, or in relation to, the generation of electricity; or a tank or reservoir unless – the storage of water involves flooding natural ground; or the tank or reservoir is on a watercourse; or roads, buildings and other ancillary works that are not part of the dam; dam works means any works for the construction, erection, enlargement, modification, repair or removal of a dam, or for the conversion of land to a dam or any work on any dam which may significantly increase the dam's safety risk; Director means the Director, Environment Protection Authority;Director of Inland Fisheries means the Director of Inland Fisheries appointed under section 11 of the Inland Fisheries Act 1995; dispersed surface water means – water flowing over land otherwise than in a watercourse – after having fallen as rain or hail or having precipitated in any other manner; or after rising to the surface naturally from underground; or water as mentioned in paragraph (a) that has been collected in a dam or reservoir;Division 3 permit has the same meaning as in Part 8;Division 4 permit has the same meaning as in Part 8; domestic purpose means personal use for drinking, cooking and washing but does not include taking water to be used in carrying on a business unless it is for the personal use of persons employed in the business; drilling, in the case of a well, means drilling the well or excavating the well in any other manner and includes deepening or widening an existing well; electricity entity means a body corporate which uses, or intends to use, water for the generation of electricity as mentioned in section 115;EMPC Act means the Environmental Management and Pollution Control Act 1994; environmental agreement has the same meaning as in the EMPC Act; environmental harm has the same meaning as in the EMPC Act; environmental improvement programme has the same meaning as in the EMPC Act; environmental nuisance has the same meaning as in the EMPC Act; environmental objectives means the objectives of a water management plan proposed to further the provisions of section 6(1)(c); equipment means a pump or meter or valves, pipes or any other device used to take water and includes a part of any such equipment; functions includes powers, authorities and duties; groundwater means – water occurring naturally below ground level; or water pumped, diverted or released into a well for storage underground; groundwater area means an area of land that is appointed as a groundwater area by an order made by the Minister under section 124A; highway means – a State highway or subsidiary road within the meaning of the Roads and Jetties Act 1935; or a local highway within the meaning of the Local Government (Highways) Act 1982; hydro-electric district means a hydro-electric district created under Part 9; incident, in the case of a dam, means any incident or event relating to the structural integrity or safety of the dam which causes, or has the potential to cause – death or injury to a person; or damage to, or loss of, property or services; or material environmental harm or serious environmental harm; infrastructure means – artificial lakes; or dams, weirs or reservoirs; or embankments, walls, channels or other works; or buildings or structures; or pipes, machinery or other equipment; infringement notice means an infringement notice served under Division 1 of Part 13; intensive farming means a method of keeping animals in the course of carrying on the business of primary production in which the animals are confined to a small space or area and are usually fed by hand or by mechanical means; interested person has a meaning given by section 270 or 274; lake means a natural lake, pond, lagoon, wetland or spring (whether modified or not) and includes – part of a lake; and a body of water declared by the regulations to be a lake; land includes – buildings and other structures permanently fixed to land; and land covered with water; and water covering land; and any estate, interest, easement, privilege or right in or over land; licence means a licence granted and in force under Part 6, except in Part 10A; local newspaper means a newspaper circulating in the area in which a relevant water resource, dam or well is situated or in which a proposed or existing dam is to be situated; material environmental harm has the same meaning as in section 5(2) of the EMPC Act; meter means an instrument that measures and records a flow or level of water and includes any ancillary device attached to or incorporated in the instrument; natural values means the variety of all life-forms native to land including plants, animals and micro-organisms, the genes that they contain, the ecosystems of which they are a part (including landforms, soils, water) and the processes that sustain them; nest means – a structure or place where a bird lays eggs and shelters its young; and an animal's breeding place, den or burrow; occupier of land means a person who has, or is entitled to, possession or control of the land and includes – a person who occupies the land or part of the land jointly or in common with any other person; and a person who occupies part of the land; owner has the meaning given by section 3A; person includes an Agency, a statutory authority and any emanation of the Crown in right of the Commonwealth; pipeline licensee means the holder of a licence under the Gas Industry Act 2019 in relation to a gas infrastructure planning corridor; pipeline planning corridor means a gas infrastructure planning corridor declared under the Gas Industry Act 2019; planning scheme means a planning scheme in force under section 29 of the Land Use Planning and Approvals Act 1993; prior right means a right to take water under this Act which was in force immediately before the publication of a notice under section 18; record means – a documentary record; or a record made by an electronic, electromagnetic, photographic or optical process; or any other kind of record; register of dams means the register of dams kept under section 12(1A); register of licences, water allocations and permits means the register of licences, water allocations and permits kept under section 12(1); regulations means regulations made and in force under this Act; relevant water management plan means a water management plan for a water resource which may be affected by the exercise of any powers under this Act; repealed Act means the Water Act 1957; responsible water entity means a water entity responsible for the administration of a water management plan under section 38(1) or the administration of a water district under Part 9; riparian tenement means land that adjoins a watercourse or through which a watercourse runs, or that adjoins a lake or on which a lake is situated;Secretary means the Secretary of the Department; serious environmental harm has the same meaning as in section 5(2) of the EMPC Act; small claim means a small claim within the meaning of the Magistrates Court (Small Claims Division) Act 1989; special Act– see section 189(b) and section 190(b); special licence means a licence granted and in force under Division 6 of Part 6;State policy means a Tasmanian Sustainable Development Policy made under section 11 of the State Policies and Projects Act 1993; statutory authority means a person, body or authority, whether incorporated or unincorporated, constituted by or under an Act, or appointed by the Governor under the authority of an Act, to administer or control a department, office, business or undertaking on behalf of the State; statutory rule means a statutory rule for the purposes of the Rules Publication Act 1953; stock watering means the provision of water for drinking by livestock and for normal husbandry practices associated with the keeping of livestock, but does not include the provision of water for livestock or animals subject to intensive farming; surety means the actual or relative probability with which a water allocation is expected to be available in any year having regard to the natural variability of the supply of water; take, in relation to threatened species, has the same meaning as in the Threatened Species Protection Act 1995; taking, in the case of water from a water resource, includes – taking water by pumping or syphoning the water; and stopping, impeding or diverting the flow of water over land (whether in a watercourse or not) for the purpose of collecting or storing the water; and diverting the flow of water in a watercourse from the watercourse; and releasing water from a lake; and permitting water to flow under natural pressure from a well, unless the water is flowing from a natural opening in the ground that gives access to groundwater; and permitting stock to drink from a watercourse, a natural or artificial lake, a dam or reservoir; threatened species has the same meaning as in the Threatened Species Protection Act 1995; tidal area means any part of a watercourse that is below the mean high-water mark; tributary means any watercourse that contributes its flow to a larger watercourse; trust means a board of trustees holding office under Division 1 of Part 10; trustee means one of the persons constituting a trust under Division 1 of Part 10; waste means residue, by-product, surplus or reject material which is to be, or is required to be, disposed of in a manner of which utilisation to commercial or other advantage is not a primary purpose; water allocation means a quantity of water that a licensee is entitled to take and use under a licence; water district means a water supply district, irrigation district, riverworks district, hydro-electric district or drainage district created under Part 9; water entity means – a Government Business Enterprise; or a council; or an authority under Division 4 of Part 3 of the Local Government Act 1993 or any other statutory authority; or a body corporate under the Corporations Act; or a body or corporation registered as a co-operative under the Co-operatives National Law (Tasmania); or a trust established under Part 10; or an electricity entity; or a body registered under the Cooperatives Act 1999; or the Corporation within the meaning of the Water and Sewerage Corporation Act 2012 – and, if the Minister is administering a water management plan under a notice referred to in section 47(3), includes the Minister; water management plan means a water management plan in force under Part 4 and includes an interim water management plan under section 31; water regime means – in respect of a watercourse, the pattern of flow in the watercourse, which is to be described in terms of the major features of its volumetric and temporal variation and which, in the case of a lake, is to include the fluctuation in the water level of the lake; or in respect of groundwater, the pattern of flow or fluctuation in the level of groundwater or pressure which is to be described in terms of the major features of its temporal variation; water resource means – a watercourse, lake or any dispersed surface water or groundwater; or a tidal area that a declaration under section 5A relates to; watercourse means a river, creek or other natural stream of water (whether modified or not) flowing in a defined channel, or between banks, notwithstanding that the flow may be intermittent or seasonal or the banks not clearly or sharply defined, and includes – a dam that collects water flowing in any such stream; and a lake through which water flows; and a channel into which the water of any such stream has been diverted; and part of any such stream; and the floodplain of any such stream – but does not include – a channel declared by the regulations to be excluded from this definition; or a drain or drainage depression in the contours on the land which only serves to relieve upper land of excess water in times of major precipitation; well means – an opening in the ground below the surface of the earth excavated or used for the taking of groundwater; or a natural opening in the ground that gives access to groundwater; or any other excavation as may be provided by the regulations; well works means an excavation undertaken to give access to groundwater, any other works undertaken to repair or modify the structure of a well or any works undertaken to plug, backfill, seal or decommission a well; working day means a day that is not – a Saturday or Sunday; or a statutory holiday within the meaning of the Statutory Holidays Act 2000; works means a drain, outfall, bridge, culvert, channel, dam (including associated infrastructure), defence or other work of a water entity responsible for administering a water district or a water management plan and includes all machinery and appliances used, or intended to be used, for the purposes of any such district or plan but does not include a bridge over a natural watercourse if the bridge is on, or forms part of, a highway.

In this Act – a reference to a watercourse is taken as a reference to either – the bed and banks of the watercourse; or the water for the time being within the bed and banks of the watercourse – or both, depending on the context; and a reference to a lake is taken as a reference to either – the bed, banks and shores of the lake; or the water for the time being held by the bed, banks and shores of the lake – or both, depending on the context; and a reference to varying a licence is taken to include a reference to varying a water allocation of the licence or the conditions attached to the licence; and a reference to a water allocation is taken to include a reference to a part of the water allocation; and a reference to a condition of a licence is taken to include a reference to a water allocation of the licence.

In this Act, owner, in relation to land, means each of the following persons:in the case of a fee simple estate in land – the person in whom that estate is vested; in the case of land not registered under the Land Titles Act 1980 and subject to a mortgage – the equity of redemption in that mortgage; in the case of land held under a tenancy for life – the person who is the life tenant; in the case of land held under a lease – for a term of not less than 99 years – the lessee; or if another period is prescribed by the regulations, for a term of not less than that period – the lessee; in the case of land in respect of which a person has a prescribed interest – that person; in the case of land that is unalienated from the Crown – the Crown.

In this Act, owner, in relation to – a dam that has been constructed, means each of the following persons:the person who owns the dam; any person who owns land that may be covered by water when the dam is at maximum operating level (other than because of flood discharge) or, if there is a controlled spillway in relation to the dam, when water is at the spillway crest level; or a dam under construction, means each of the following persons:the holder of a Division 3 permit or a Division 4 permit under which the dam is being constructed; any person who is the owner of the land on which dam works in relation to the dam are being, or are to be, undertaken.

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

No criminal liability attaches to the Crown itself (as distinct from its agents, instrumentalities, officers and employees) under this Act.

This Act prevails over any other Act which confers a right to take water unless the other Act is expressed to apply notwithstanding this Act.

Except as provided by section 5A, nothing in this Act affects the taking of water from a tidal area.

Nothing in this Act is taken to imply that any water taken or used under an authorisation or as permitted by this Act is fit or sufficient for the purposes for which it is taken or used.

The Minister may, by order, declare that the taking of water in any tidal area is subject to this Act.

The order is a statutory rule.

The objectives of this Act are to further the objectives of the resource management and planning system of Tasmania as specified in Schedule 1 and in particular to provide for the use and management of the freshwater resources of Tasmania having regard to the need to – promote sustainable use and facilitate economic development of water resources; and recognise and foster the significant social and economic benefits resulting from the sustainable use and development of water resources for the generation of hydro-electricity and for the supply of water for human consumption and commercial activities dependent on water; and maintain ecological processes and genetic diversity for aquatic and riparian ecosystems; and provide for the fair, orderly and efficient allocation of water resources to meet the community's needs; and increase the community's understanding of aquatic ecosystems and the need to use and manage water in a sustainable and cost-efficient manner; and encourage community involvement in water resource management.

It is the obligation of the Minister, the Secretary, a water entity and any other person on whom a function is imposed or a power is conferred under this Act to perform the function or exercise the power in such a manner as to further the objectives specified in subsection (1) and in Schedule 1.

All rights existing at common law immediately before the commencement of this section to the flow of, or for the taking of, naturally occurring water are abolished.

Except as provided by this Act, all rights to the taking of water from the water resources of Tasmania are vested in the Crown to be administered in accordance with this Act.

This section does not derogate from any rights conferred under Part 5.

The functions and duties of the Minister under this Act are – to manage the water resources of Tasmania in accordance with the objectives of this Act; and to develop and coordinate policies relating to the sustainable use and development of those water resources; and to allocate the water available from watercourses, lakes and wells and dispersed surface water in a manner consistent with the objectives of this Act; and to compile, maintain and update information in respect of the water resources of Tasmania; and to promote public awareness of the importance of Tasmania's water resources and to encourage the conservation of those resources; and to encourage community involvement in water resource management; and any other functions and duties imposed on the Minister by this Act, including, but not limited to, functions and duties imposed under Part 8 in relation to dam works.

When making a decision under this Act that is based wholly or partly on an assessment of the quantity of water available or the period or periods during which water is available from a water resource, the Minister must take into account – the needs of the major ecosystems that depend on that water resource for water; and any effect that the decision may have on the commercial operations of major users of water from that water resource.

The Minister may establish committees to provide information and advice to the Minister on matters related to the administration of this Act.

The Minister may appoint any person who has expertise, knowledge or skills relevant to the functions of a committee as a member of that committee on any terms and conditions that the Minister determines.