The Water Sustainability Act (WSA) — which came into force on 29 January 2016 — updated and replaced the historic Water Act.  The WSA is a lengthy and comprehensive document, and the following overview therefore focuses on the seven key ‘areas of improvement’ that were introduced in the Policy Proposal (December 2010), expanded upon in the Legislative Proposal (October 2013), and used to guide the development of the new legislation.  Much of the detail about how government will implement these seven new policy directions will be provided in regulations and operational policies.

1. Protect stream health and aquatic environments

Section 15 Environmental Flow Needs brings in the requirement to consider environmental flow needs (EFN) in new water allocation decisions.

Section 86 Declaration of a significant water shortage provides for restrictions to all water users to protect the critical environmental flow threshold.

Section 46 Prohibition on introducing foreign matter into stream and Section 59 Prohibition on introducing foreign matter into well provide additional protection to the current Environmental Management Act and Waste Discharge Regulation for streams and aquifers by prohibiting dumping of debris and creating associated penalties.

2. Consider water in land use decisions

Section 43 Water Objectives provides authority to establish objectives in a regulation to provide a more consistent approach to considering water in natural resource decisions and local government planning. The objectives would support decision making to help reduce impacts to and to help sustain water quantity, water quality and aquatic ecosystems.

Division 4 (Sections 64-85) Water Sustainability Plans brings in many of the existing provisions of the Water Act and expands the framework for planning to be much more comprehensive.

3. Regulate groundwater use

Sections 5-6 Vesting water in government and Use of water brings groundwater into the provisions to manage surface and ground water as a single resource.

The new Water Sustainability Regulation under the WSA describes provisions for licensing groundwater use and assigning water rights. The approach is similar to that for stream water.

The new Groundwater Protection Regulation under the WSA strengthens requirements related to the construction and maintenance of wells, and recognizes the types of professionals certified to perform these tasks.

4. Regulate during scarcity

Section 22 Precedence of rights sets out the priority of rights system called “first in time, first in right” (FITFIR). Section 22 maintains the fundamental concept of FITFIR, but allows a basic amount of water use for essential household needs, and provides for the protection of critical environmental flows.

Under section 22 priority of right is based on the date of precedence of an authorization, with the most senior water licensee having the superior right.

Existing and new groundwater users will be brought into the FITFIR system. The process for transitioning existing users, including how the priority date of groundwater use is determined, are specified in the new Water Sustainability Regulation under the WSA.

Sections 86-88 Temporary Protection Orders allows for the declaration of a significant water shortage, which is the first step in taking actions outlined in subsequent sections 87 and 88 to restrict water rights in order to protect aquatic ecosystems.

Section 87 directs the comptroller to determine the critical environmental flow threshold for streams within an area for which a significant water shortage has been declared (under Section 86).  Once determined, the critical environmental flow threshold is given precedence under section 22 (9) and authorizes the decision maker to issue critical environmental flow protection orders.

Section 88 will replace and expand on the current provisions in section 9 of the Fish Protection Act. If the flow of water in a stream becomes so low that the survival of a population of fish is threatened, the Minister may issue a fish population protection order restricting all uses of water from a stream, its tributaries and hydraulically connected aquifers, regardless of precedence under section 22.

5. Improve security, water use efficiency, conservation

Section 30 Beneficial Use requires that all persons who divert water must use it beneficially. The concepts of making efficient use of water and not to waste water have been added into the Act with a definition of beneficial use for certainty.

Section 23 Licence Reviews provides a discretionary authority for the review of the terms and conditions of a licence after 30 years.  This includes the authority to require that information be provided for the review, including by a qualified person.

Section 82 Dedicated Agricultural Water provides for the dedication of water for agricultural purposes on certain agricultural lands (e.g., land in the agricultural land reserve or zoned for an agricultural use).

6. Measure and report

Section 131 respecting measuring, testing and reporting expands on the current provisions in the Water Act and provides regulation-making authority for measuring, calculating and reporting on the quantity and quality of water diverted and used.

7. Enable a range of governance approaches

Section 126 Regulations respecting administration and governance provides regulation-making authorities necessary for implementing the administration and governance framework contemplated in the Water Sustainability Act.

The regulations can provide for the conferring of limited powers and duties and can set out the procedures to be followed. The regulations can also provide for dual enforcement authorities. The regulations can also provide that the decisions of the delegated person or entity must be reported.