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Water Bill Exposure Draft: what changes will flow?

Following a comprehensive review of Victorian water law, a Water Bill Exposure Draft was released to the public in December 2013.

The Exposure Draft proposes to bring the two current Acts that govern water use and management in Victoria – the Water Act 1989 and the Water Industry Act 1994 – into a single streamlined Water Act. In addition to ironing out issues created by confusing, duplicated and obsolete provisions in the current legislation, the Exposure Draft also seeks to modernise water management practices and implement Government policies including the Living Victoria policy and the forthcoming Melbourne’s Water Future strategy.

Although many features of the current legislative regime will remain the same, the Exposure Draft proposes a new, more logical structure that should make it easier to find relevant information. It seeks to streamline and consolidate provisions which are spread across the current Acts, both of which have been subject to many water reform amendments since their commencement. A table that sets out where the equivalent provisions in the current Acts can be located in the new Exposure Draft is available here. Some current provisions – such as those governing the power to impose water restrictions – will be dealt with by Regulation.

The Exposure Draft also proposes a number of substantive changes aimed at promoting ‘whole of water cycle’ management and to bring Victorian water law into line with contemporary water and legislative practice.  Four of the most substantive changes are outlined below.

New ‘core considerations’ for decision makers


Under the current legislation, the obligations on decision makers regarding matters that must be taken into account are difficult to navigate, inconsistent and repetitive. The Exposure Draft sets out a new single set of ‘core considerations’ at the front of the Bill which the Minister – or water corporations and catchment authorities acting on the Minister’s behalf – will be required to take into account before making certain decisions, including considering applications for new licences and water shares.

The proposed core considerations include the impact a decision will have on other water users, on environmental water (and water that may not meet the definition of ‘environmental water’ but which has multiple uses including preserving environmental values and the health of water ecosystems); and on the protection of the environment generally. The concept of ‘environmental water reserve’ has been replaced by the broader concept ‘environmental water’. This is intended to better capture the concept of water in life cycle terms including: water held under an entitlement or right for the environment, and water committed under other entitlements for environmental purposes.

Replacing the current piecemeal approach with a standardised set of core considerations that will govern the making of many decisions relating to water use and management should enable greater consistency and efficiency in decision making as well as ensuring environmental protection is a priority.

 

Water Resource Management Order


A new concept called the Water Resource Management Order (WRMO) is proposed to describe all water management arrangements for a particular area. This will act as an umbrella under which all entitlements in the particular area will sit. That means that bulk entitlements, water shares, take and use licenses as well as statutory rights (eg, for domestic and stock use) will be located in one place and easier to understand. The current mix of regulatory instruments have been described as complex and inconsistent. The WRMO proposes to simplify water system management rules. The WRMO will include cap and trade rules that determine the maximum volume of water that can be allocated within a particular area or water system.

 

Statutory rights for local councils to water in stormwater drains


At common law, the position in relation to property rights that attach to the water collected in stormwater pipes and drains is complex and difficult to understand. The Exposure Draft proposes to extinguish these common law rights and confer new express rights for local councils to manage water in their stormwater works.

Under the Exposure Draft, all rights to water in local council and water corporation stormwater pipes and drains will be vested in the Crown, with the rights to take and use that water expressly conferred on local councils and water corporations. Having clear rights to use and control this water is aimed at encouraging investment in local projects to harvest and make use of stormwater that is currently going to waste.

 

Changes to the enforcement regime for water-related offences


The Exposure Draft also proposes a significant overhaul of the compliance and enforcement regime currently in place under the Water Act 1989 for water-related offences, including providing clearer explanations of what conduct will constitute an offence, and increasing penalties to improve deterrence.

The changes comprise multiple enforcement options that are more targeted to the nature of the particular offence, and provide alternatives to costly and time consuming court proceedings such as the use of penalty infringement notices.

The provision relating to liability for flows of water (currently s 16, new clause 671) has been clarified in a number of ways. The flows of water for which an owner of land may be held liable includes water from a tank, sewer, drain, pipe, fitting or appliance of any kind on the land.

The Exposure Draft also sets out new requirements for the valid appointment of appropriately trained Authorised Water Officers who will be responsible for administering the compliance and enforcement regime.

The Exposure Draft is open for public comment until 14 February 2014. Once finalised, it is intended that the new Water Bill will be introduced to Parliament during 2014 with a view to a new Water Act commencing on 1 January 2016.

First published on the VGSO Blog.

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Water law changes in the pipeline

The Water Act 1989 (Vic), one of the longest Acts in the statute book, is under review.  Changes are not expected to significantly impact water users, however, it will change the way the Government manages water so it is important for government officers who work in areas affected by water law or the emergency services (as the review affects flood mitigation infrastructure) to keep abreast of the changes.

The Act provides the framework for allocating surface water and groundwater across Victoria.  It details the Crown’s entitlements to water and private entitlements to water from all rivers, streams and groundwater systems in Victoria, providing Water Authorities with bulk entitlements to water for urban supply or irrigation.  Authorities allocate a volumetric water entitlement to licenced individuals or companies for commercial or irrigation purposes.  It also gives individuals the right to take and use water for domestic and stock purposes.

The Act was developed over 20 years ago when the pressures on the State’s water resources were very different.  Its predecessor was enacted in the 1800s to allow the development of irrigation in northern Victoria.  Environmental considerations are a much more recent addition.  In particular, in 2005, the Act pioneered the use of the environmental water reserve, which was designed ‘to set aside a share of water in rivers and aquifers across the State for the environment’. This was the first time that rivers and aquifers gained a legal right to a share of their own water.

The purpose of the review of the Act is to streamline the legislative framework for water management and use.  This includes considering whether changes are needed to implement the Commonwealth’s Murray-Darling Basin Plan, released in November 2012.  The review will also implement new water policies adopted by the Government, including the Living Melbourne Living Victoria urban water plan and the land use change policy developed through the Western and Gippsland regional sustainable water strategies.

Currently, we are waiting with baited breath for the release of a discussion paper outlining proposed reforms to the Act and an exposure draft.  An expert panel established by the Minister is preparing this.  A six-week consultation process will occur following the release of the paper.

The discussion paper will consider the following issues:

  • Whether the way water resources are managed and allocated can be simplified, without having an adverse impact on entitlements.
  • Whether public dams that could present a hazard if they fail should be licensed in the same way as private dams.
  • Whether any further refinements to the water corporation governance reforms of 2012 are required.
  • Whether the current water service delivery functions and powers of water authorities can provide sustainable and integrated water services.  This includes ensuring the rights to alternative water sources are clear enough to enable greater use of recycled water and stormwater.
  • Whether the functions and powers that aim to protect and improve river health, floodplain management and regional drainage are sufficient.  This includes making legislative changes needed to implement the government’s response to the Environment and Natural Resources Committee inquiry into floodplain mitigation infrastructure in Victoria, some of which are discussed in the recently released Government’s Response to this inquiry.

 

First published on the VGSO Blog.