South Australian Repealed Acts

This legislation has been repealed.

NATURAL RESOURCES MANAGEMENT ACT 2004 - SECT 164N

164N—Allocation on declaration of prescribed water resource

        (1)         On declaration of a watercourse, lake or well as a prescribed watercourse, lake or well or declaration of a part of the State as a surface water prescribed area, an existing user of water from the water resource concerned—

            (a)         may, subject to a restriction or prohibition under section 132 , continue to use water without a water management authorisation until the end of the prescribed period or, if he or she applies for any necessary water management authorisation (depending on the circumstances of the particular case) within 6 months after the publication in the Gazette of the regulation declaring the resource to be a prescribed resource, until all relevant applications have been granted or refused;

            (b)         is, subject to subsection (3) , entitled to be granted, without the payment of any purchase price, the necessary water management authorisations, subject to any determination by the Minister under subsection (2) after consultation with the existing user.

        (2)         The water access entitlement that applies under subsection (1)(b) will be the share of a consumptive pool that will, in the opinion of the Minister, meet the future requirements of the existing user—

            (a)         based on his or her reasonable requirements during the establishment period; or

            (b)         for water for a development, project or other undertaking to which he or she was legally committed or in respect of which he or she had committed significant financial or other resources during the establishment period; or

            (c)         under both paragraphs (a) and (b) .

        (3)         If at the expiration of the prescribed period, the aggregate of water access entitlements assigned to existing users under subsections (1) and (2) exceeds, in the opinion of the Minister, the capacity of the resource, the Minister may—

            (a)         reduce each water access entitlement proportionately; or

            (b)         reduce each water access entitlement pursuant to a scheme set out in the regulations.

        (4)         Before determining the capacity of the resource, the Minister must prepare a report assessing the need for water of ecosystems that depend on the resource for water.

        (5)         The Minister must make the report publicly available.

        (6)         An existing user may appeal to the ERD Court against a determination or decision of the Minister under subsection (1) or (2) .

        (7)         Subject to a restriction or prohibition under section 132 , a person who is not an existing user may take water from the water resource without a water management authorisation until the end of the prescribed period.

        (8)         If the quantity of water available for allocation exceeds the entitlements of existing users, the Minister may allocate the excess in accordance with this Act and the relevant water allocation plan.

        (9)         An entitlement under subsection (1)(b) may be transferred to another person with the approval of the Minister but subject to any requirement or limitation prescribed by the regulations.

        (10)         In this section—

"establishment period" in relation to the declaration of a water resource means the period prescribed for the purposes of this definition by the regulation declaring the resource to be a prescribed resource being a period that ends at the commencement of the prescribed period;

"existing user" means, subject to subsection (11) , a person—

            (a)         who took water from the resource at any time during the establishment period; or

            (b)         who did not take any water during that period but who needs water for a development, project or undertaking to which he or she was legally committed or in respect of which he or she had, in the opinion of the Minister, committed significant financial or other resources during the establishment period;

"prescribed period" in relation to a water resource commences on the date of publication in the Gazette, a newspaper circulating generally throughout the State or a local newspaper (whichever occurs first) of the notice inviting submissions in relation to the proposed regulation declaring the resource to be a prescribed resource and ends on the date specified for that purpose in the regulation.

        (11)         A person ceases to be an existing user if the person does not make the necessary applications under subsection (1) within 6 months after publication in the Gazette of the regulation declaring the resource to be a prescribed resource.

        (12)         If a person who is an existing user under a preceding subsection divests himself or herself of land (or an interest in land) in relation to which the rights of an existing user arises under those subsections—

            (a)         the person who acquires the land (or the interest in land), or any successor to that person, will be regarded as the existing user in substitution for the earlier existing user (and to obtain the benefit of any action or commitment taken or made by an earlier existing user); and

            (b)         those subsections will apply subject to any modifications necessary to take into account the operation of this subsection, and such other modifications as may be prescribed by the regulations.