RIDING THE WAVE OF WATER LAW REFORMS

Transcription

1 .\1\11 l 1.. ~\'0:.. HERBERT ~ ::::: SMITH...-:; =-- :q;' I \~ FREEHILLS /1 1/ 1\'\' RIDING THE WAVE OF WATER LAW REFORMS NELA (WA) STATE CONFERENCE 11 OCTOBER 2013 Daniela Tonon. Special Counsel , daniela.tonon@hsf.com

2 OVERVIEW Background: Water reform in WA Position Paper - reforming water resource management (Department of Water, 26 September 2013) Key features of the proposed water resources framework Opportunities and challenges Questions? HERBERTSMITHFREEHILl.S.COM 2

3 WATER REFORM IN WA Jan 2001: Oct 2005: Apr 2006: Dec 2006: Key amendments to Rights in Water & Irrigation Act 1914 (WA) (RIWI Act) Department of Water created (DoW) WA became a signatory to the Intergovernmental Agreement on a National Water Initiative Agreement (NWI) A blue print for water reform in WA HERBERTSMITHFREEHIL1.S.COM 3

4 WATER REFORM IN WA 2007: Nov 2009: Sep 2013: WA Government response to blue print, State Water Plan 2007 and WA's Implementation Plan for the NWI Discussion Paper - Water Resources Management Options Position paper - reforming water resource management (Position Paper) HERBERTSMITHFREEHILLS.COM 4

5 POSITION PAPER " This paper sets out a proposed legislative and policy framework to help deliver new water management solutions in Western Australia... In essence, it provides 'more tools in the toolbox' to enable better water management for the 21 st century. " DoW, 26 September 2013, p.1 HERBERTSMrTHFREEHILl.S.COM 5

6 KEY FEATURES Key features of the proposed water resource management framework include:./ Improved licensing./water access entitlement (WAE) framework,/ Improved planning framework,/ Other policy considerations, ego environmental water,/ No introduction of cost recovery for water licences HERBERTSMfTHFREEHILUj.COM 6

7 IMPROVED LICENSING Simplified licensing and permitting assessment process./ Level of assessment to be varied according to circumstances and the risks posed by an application to the water resource, other water users and the environment./ New criteria to determine a level of assessment commensurate to the risk HERBERTSMITHFREEHIL1.S.COM 7

8 IMPROVED LICENSING Improvements to trading and transfers of licensed entitlements v" Include a simplify risk-based assessment process for trades and transfers v" Include generic, state-wide trading rules which will offer consistency and certainty to water traders v" Provide for traded volumes and prices for permanent and temporary trades to be made publically available HERBERTSMITHFREEHILLS.COM 8

9 IMPROVED LICENSING Licence tenure./ Leave tenure 'undefined' but include in regulations an extension of the term of a licence for up to 40 years v"term of tenure assigned to a particular licence to reflect specific or individual circumstances (eg. longer term for life of mining project) Variation of existing water entitlements./ Introduction of mechanisms that will allow volumes of water taken under licence to be varied according to seasonal conditions (eg. variable take, periodic allocation announcements) HERBERTSMmtFREEHIUS.COM 9

10 WAE FRAMEWORK Introduction of 'WAEs' and 'consumptive pools'./ WAEs to be introduced through a statutory water allocation plan (SWAP)./ WAE = perpetual entitlement or right to exclusive access to a share of water from a consumptive pool (which is tradeable, can be mortgaged and bequeathed)./ Consumptive pool = the amount of a water resource that can be made available for consumptive use in a particular water resource plan area subject to the rules governing that area HERBERTSMI'Tl4FREEHILLS.COM 10

11 WAE FRAMEWORK Water allocations./ Allocation announcements to be made periodically that may change the specific volume of water available in the consumptive pool./ No change to the number of shares for each water user, but change to the volume of water able to be taken under each share Abstraction arrangements to access water./ These arrangements may constitute a 'water resource works approval' and 'site use approval'../ Legal access to the relevant land will be required HERBERTSMITHFREEHtLLS.COM 11

12 IMPROVED PLANNING Introduction of statutory allocation limits (SALs),/ SAL = the maximum volume of water that can sustainably be taken from a water resource for consumptive use,/ SALs to be set where risk to the water resource has been identified,/ To be developed through a consultative process and prescribed through regulations,/ Minister to have certain powers,/ SALs will be included in the SWAP once developed HERBERTSMITHFREEHIUS.COM 12

13 IMPROVED PLANNING Introduction of SWAPs..r Principal tool for water resource management at localised level..r Contains a consultative mechanism to include the views of a local advisory group and the community in the decision-making process..r Comprises the SAL, boundaries and specific water sharing arrangements..r To be developed over a period oftime..r Existing administrative plans may be transitioned to SWAPs..r Review period: no more than 10 years HERBERTSMITHFREEHILLS.COM 13

14 IMPROVED PLANNING Measurement including metering./ Introduction of metering for all groundwater systems and for multiuser surface water systems (eg. rivers, multi-user dams), except where there is no benefit to water management in doing so./ Requirement and installation of meters to be staged over a period of time./ No requirement for farm dams that are currently not licensed./ Metering will be required for all WAEs HERBERTSMITHFREEHIL1.S.COM 14

15 PLANNING Local advisory groups./ To provide general advice to the Minister on any water-related Issue./ Membership to include a majority of representatives from water users and interest groups Allocation mechanism for the release of unallocated water./ Various mechanisms, including including first-in-first served, competitive submission, market mechanisms or other suitable means HEABERTSMITHFAEEHILLS.COM 15

16 PLANNING Recovering over-allocated resources./ Specific methodology will be developed through a consultative process in the development of SWAPs and SALs for each resource./ Recovery mechanism: where a water resource is already over-allocated or becomes over-allocated, Minister may consult on a pathway to lower volumes to match the SAL./ Use-it or lose-it policy to be maintained for licence regime Risk assessment framework and compensation HERBEATSMIll4FAEEHIL1.S.COM 16

17 RECENT MEDIA COVERAGE... A LLOCATION FEAR Businesses 'waste water on purpose' The West Australian, Monday 7 October 2013, page 10 HERBERTSMfTHFREEHILLS.COM 17

18 OPPORTUNITIES AND CHALLENGES 'have a say' - stakeholder consultation process Modern framework for the management of water resources in WA 'more tools in the toolbox' will allow water to be traded to its highest value use Greater transparency in decision-making Timing of proposed new framework? Transition from current regime to new framework? HERBERTSMITHFREEHILl.S.COM 18

19 NWC'S 2011 ASSESSMENT OF NWI " Water management is complex, affects many people and takes time to do well... Community engagement is a cornerstone of NWI implementation. " NWC, 14 October 2011, p.8 HERBERTSMITHFREEHILLS.COM 1 9

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