Water compliance and enforcement – a new Natural Resources Access Regulator in NSW

Articles Written by Samantha Daly (Partner), Carrie Follas (Partner), Lara Douvartzidis (Associate)

Key takeaways

A new independent Natural Resources Access Regulator (Regulator) has been established in NSW to increase public confidence in water resource regulation by improving consistency, accountability and transparency of water compliance and enforcement. With the introduction of the new Regulator, we can expect an increased focus on compliance with water laws in NSW.

The Regulator is established under the Natural Resources Access Regulator Bill 2017 (NSW) (Bill) which was passed by the NSW Parliament on 22 November 2017.

The new Regulator comes off the back of the ‘Matthews’ report which was highly critical of aspects of water administration, and primarily compliance and enforcement. The report includes discussion of a recent ABC Four Corners program relating to water compliance in NSW which is believed to have ‘led to a sudden and sharp loss of public confidence in the way New South Wales (NSW) was handling compliance activities in the Barwon-Darling region and more broadly across the State.’ (Second Reading Speech for the Bill).

Function of the regulator

The Natural Resources Access Regulator will be a NSW Government agency and will primarily have functions relating to the enforcement of water legislation in NSW (being the Water Management Act 2000 (NSW) and Water Act 1912 (NSW)), and potentially other natural resources management legislation. The objectives of the Regulator are:

  • To ensure effective, efficient , transparent and accountable compliance and enforcement measures for the natural resources management legislation; and
  • To maintain public confidence in the enforcement of the natural resources management legislation.

Importantly, the Regulator will now be responsible for making determinations as to whether the Government should bring proceedings for offences under national resources management legislation. The Regulator must obtain legal advice before determining that proceedings should be instituted under the relevant legislation.

The Regulator will have an independent Board consisting of 3 members and may be the subject of directions by the Minister of a general nature only, and not in relation to a specific matter for consideration or determination by the Regulator. The day-to-day running of compliance operations will be the responsibility of a new chief regulatory officer who will be accountable to the Board. Compliance functions will be moved from WaterNSW to the Regulator.

The Bill is currently awaiting assent and it is unknown at this stage when the Bill will commence.

Who do the new laws affect?

Anyone involved in the administration of water, particularly in the areas of compliance and enforcement activity. Additionally, holders of water access licences and works approvals will be impacted as any breaches of natural resources management legislation (including water laws) will now be referred to the Regulator.

What should you expect?

With the introduction of the new Regulator, we can expect an increased focus on compliance with water laws in NSW. Users of water should expect to see far more monitoring and auditing activities from the Regulator and a potential increase in enforcement action, including prosecutions, being taken in respect of breaches of the water legislation. The introduction of the new Regulator follows a similar move by the Division of Resources and Energy in July 2016 when it introduced the Resources Regulator for the mining industry. The Resources Regulator has similar objectives to the new Regulator. Experiences with the Resources Regulator to date have shown a material increase in Government focus on compliance and enforcement in the resources sector across NSW.

One of the functions of the new Regulator is to prepare policies and procedures relating to enforcement powers under the natural resources management legislation. Water users should expect to see new compliance and enforcement policies published in the near future which they should ensure they are familiar with. These policies will be utilised by the Regulator in determining appropriate enforcement action to be taken in the event of any non-compliance with natural resources management legislation.

Clients should ensure that all water take is sufficiently licenced, and importantly should place significant focus on ensuring that the conditions of all water access licences and works approvals are complied with at all times. These conditions may relate to the volume of water that can be extracted, the location of water extraction and the specific use of the water.

Further details in relation to the scope and remit of the new Regulator will be contained in regulations, which are not yet available. The Government has also flagged that further amendments will be made to water laws and policies in areas such as water-sharing plans to provide for metering and to simplify water administration to make it easier for users to understand what is required to comply; and to improve the information available to the public through an accessible register to increase accountability.

We will keep you informed of progress with the role out of the new Regulator and any further amendments to NSW water legislation and policies as they unfold.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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