library.dbca.wa.gov.au Mary Maher and Associates ... EDO Environmental Defenders’ Office ......

��

��

��

��

��

��

��

��

Published by: Land and Water Resources Research and Development Corporation

GPO Box 2182

Canberra ACT 2601

Telephone: (02) 6257 3379

Facsimile: (02) 6257 3420

Email: [email protected]

WebSite: www.lwrrdc.gov.au

© LWRRDC

Disclaimer: The information contained in this publication has been published by LWRRDC to assist publicknowledge and discussion and to help improve the sustainable management of land, water andvegetation. Where technical information has been prepared by or contributed by authorsexternal to the Corporation, readers should contact the author(s), and conduct their ownenquiries, before making use of that information.

Publication data: ‘Australian River Management and Restoration. Criteria for the Legislative Framework for theTwenty-first Century.

Occasional Paper 02/00

Authors: Mary Maher and Associates

17 Katrine Street

West End QLD 4101

Telephone: (07) 3844 9183

Facsimile: (07) 3844 3357

Email: [email protected]

ISSN 1320-0992

ISBN 0 642 76020 9 (this electronic version 0 642 76021 7)

Editing and design:Themeda

March 2000

�

��

��

��

��

�� !��"�#$��%&''�'�� (

�� )��*�� +

(� ��,��-��,��,�� .

�/0�� #�1/�/#�'�/��2'��%/�� .

�� 2'��%/��/�/�/��/0�'�� .

�/0��'��'��2��%� �!/��%�� 3

�#��#"��4��%�5/'%��/0��"��$�6#�7�� 8

��5/'%��/#��"#��/0��$��5�$��1��'�#��/#��

�/$/�'��#�%�5/'%��/#��

�#$!%��/''2�'�� (9

+��)��*��)��))��-�� (�

�''2$!�/#�'�� (�

�!!�#� 4�� ((

.� ��,�� (+

#!�� (+

��

��

��

��

��5�$�� 4�%%��5�'�"#��%�5/'%��/#�� (3

��&�1�/0��'�"#��%�5/'%��/0�� 4��5�� (3

��/'�/�5�%�5/'%��/#��5�$��'��1�5�!��%&'/'�� (:

��

��

�� !

"�� #

$��%�� #

��%�� &

�''�''$��#"�#!��/#��%��%�$��'�� +�

��%�� &

'��(%��

��)��

*��+��

'��+��

)�� / �%� �'��'�21/�'�� ++

�$��5/�5��1'�� +.

3� ��;�� +:

��#12 �/#�� +:

��'/��1�� #%#5/ �%�#2� #$�'�"#��6��<2�%/�&�$��5�$�� +:

��/#��%�52/1�%/��'�� +8

�� ,

��1'�/��%�5/'%��/#�� .9

��%�� #

�� #

�� #

*�� #

��%��-��%��.��+�� #

��5/'%��/0��"��$�6#�7��<2/��$��'�� .(

��

��

'��%��

��

��

��/��/��"#��%�5/'%��/0��=�'��!�� / �� ..

��/�/ �%�'2 �''�"� �#�'�"#��6��<2�%/�&�%�5/'%��/#�� .3

:� ��)�� .:

��#12 �/#�� .:

��

�� /

��5�$�� 4�%%��5�'�"#��%�5/'%��/#�� .�

01��2�� !

3�� !

4��%�� 5#

6��%�� 5&

7�� 5&

�� 5�

3�� 5

��/�/ �%�'2 �''�"� �#�'�"#��/!��/��%�5/'%��/#�� 33

8� ��,��-�� 38

��#12 �/#�� 38

��'/��1�#2� #$�'>�/�'�/�2�/#��%��5�$��'�"#�� 4$��$��5�$�� 38

��/'�/�5�%�5/'%��/#��"#��/�'�/�2�/#��%��5�$��'�� 3

3�� 5,

��(�� 5,

'�� 5!

'�� 5!

"�� #

�� &

�4�%%��5�'�"#��%�5/'%��/#�� :�

,/0��!!�#� 4�'��#�/�'�/�2�/#��%��5�$��'�� :+

��/�/ �%�'2 �''�"� �#�'�"#��/��5��1� �� 4$��$��5�$��?��@/�'�/�2�/#��%��5�$��'�%�5/'%��/#�� :3

� �-��,��-��)��,�� :8

2$$��&�#"�"/�1/�5'�� :8

�4��6#�7/�5�!��'�#"�%�5/'%��/#�� :�

1�� !

'�� !

8�� /#

*�� /#

��-�� /#

��/��/��"#��4��=�'��!�� / ��%�5/'%��/0��"��$�6#�7�"#��/0��$��5�$��1��'�#��/#�/��4� �6��&A"/�'�� 2�&�� 89

�� -��,�� 8.

�$!%�$��/�5�=�'��!�� / ��%�5/'%��/0��"��$�6#�7�� 8.

� �/#�'�/��4��'4#��$�� 8.

� �/#�'�/��4��%#�5��$�� 8.

9��%��-�� /�

:��-��)��)��)��(��+��%�� /5

,2�2��/�0�'�/5��/#�'�� 8:

��,�� 88

�� 9

�))�� ,��,,��,�� (

�))��( �� +

�))��+ )�� 9

,��

�� *�� &�

(� ��(��

+� ��+��%��

.� 3��+��%�� 8��)�� /

3� 9'6��6��8��

:� '��+��%��

8� ��;%��%��

� 3��%�� 5

�� *��%��.��+��

&#� 6��.��+��<'8�� !

&&� ��%��.��+�� &

�(� 3��%��(��-��

�+� 6��.��+��%��.��+��)9'6��

�.� *��-�=�+)<'8��

�3� >��2��

�:� ��;%��.��+�� 5

�8� 1��;�� 55

� � *��;�� 5,

�� 5

(9� 7��2��+��%�� /

(�� 3��;��%��-�� !

��

�� 8�� 1��)�� &/

(� �� &,

+� '�� &!

.� �� ,

3� ��+�� !

:� ��+��%��'�� #

8� ��%��.��+��+�� /

� 9��%��.��+�� ,

�� +��%��.��+(��)6��8�� &

�9� :�� /

�� 1��;��+�� ,

�(� '�� !

�+� '��0%��2�� 5#

�.� ��;��%�� 5&

�3� 1��+�� 5�

�:� 7��%��-�� 5

�8� 3�� 5�

� � ��-�� 5�

�� '�� 5!

(9� '��+��+'�� 5!

(�� "��+'�� #

((� '��?��+'�� #

(+� 3�� &

(.� "��

�

��

ACF Australian Conservation Foundation

AACM AACM International

ACT Australian Capital Territory

AFFA Agriculture, Fisheries and Forestry –Australia

ANZECC Australian and New Zealand Environmentand Conservation Council

ARMCANZAgriculture and Resource ManagementCouncil of Australia and New Zealand

AWWA Australian Wastewater Association

CALPB Catchment and Land Protection Board

CMA catchment management authority

CMC catchment management committee

CRC cooperative research centre

COAG Council of Australian Governments

CSIRO Commonwealth Scientific and IndustrialResearch Organisation

CWMP catchment water management plan

DEHAA South Australia Department ofEnvironment, Heritage and AboriginalAffairs

DLPE Northern Territory Department of LandPlanning and Environment

DLWC New South Wales Department of Land andWater Conservation

DNR Queensland Department of NaturalResources

DNRE Victorian Department of Natural Resourcesand Environment

DPIWE Tasmania Department of PrimaryIndustries, Water and Environment

EBMP environmental best management practices

EDO Environmental Defenders’ Office

EFR environmental flow requirements

EPA Queensland Environmental ProtectionAgency

EPP Environmental Protection Policy

ESD environmentally sustainable development

ESForestMEcologically Sustainable ForestManagement

ESWM ecologically sustainable water management

ICM integrated catchment management

IGAE Intergovernmental Agreement on theEnvironment (Commonwealth/State/Localgovernment agreement)

INBO International Network of BasinOrganisations

ISO International Standards Organisation

LG local government

LWRRDC Land and Water Resources Research andDevelopment Corporation

MDBMC Murray–Darling Basin MinisterialCommittee

MOU memorandum of understanding

NCC Nature Conservation Council

NHT National Heritage Trust

NSESD National Strategy for EcologicallySustainable Development

NSW New South Wales

NWQMS National Water Quality ManagementStrategy

QCC Queensland Conservation Council

QLD Queensland

R&D research and development

RCS regional catchment strategies

RVMP regional vegetation management plan

SA South Australia

SEPP State Environmental Protection Policy

SMP streamflow management plan

SoE State of Environment

SWRCB State Water Resources Control Board

TAS Tasmania

USA United States of America

USEPA United States Environmental ProtectionAuthority

VIC Victoria

WA Western Australia

WAMP water allocation and management plan

WARC Water and Rivers Commission

WRC Western Australian Water and RiversCommission

�

��

are not yet complete, much less critically evaluated.Most apparent examples of legislative initiatives arestill just good ideas: they are not yet criticallyevaluated; locally, nationally or internationally. InAustralia, no jurisdiction has specific legislation or alegislative framework which manages rivers or theirecological processes in a systematic, integratedmanner.

From in-depth review of legislation for four themes thefollowing conclusions were drawn.

1. Rivers are receiving greater attention thanbefore. No national, binding standards have beenset for their protection or management.Surrogate standards are proposed throughMinisterial or council agreements, orCommonwealth financial incentives. Overseasriver achievements in federal systems indicatethe need for a stronger Commonwealth lead, inpartnership with States and Territories. There islimited application of Commonwealth powers toprotect rivers.

2. There is confusing terminology acrossjurisdictions for most aspects of river/resourcemanagement.

3. Water resource issues are the main focus ofattention, with some degree of recognition ofenvironmental flow needs and a narrow focus onriver water rather than the total water cycle.There is opposition in some quarters to securityof environmental flows in water allocation.

4. The Commonwealth commitment to NSESD hasnot been borne out in reality (ProductivityCommission 1999 study).

5. Commitment has been given by all States tointegrated natural resource management/integrated catchment management. In mostStates, problems arise because major resourceagencies are distant from the integrated planningprocess; outside the cooperative arrangementsfor planning and service delivery.

6. Although evolution is towards catchment-basedplanning, these plans remain non-statutory oradvisory in most jurisdictions. Catchmentlegislation is added to the plethora of otherlegislation relating to resource management orecosystem protection.

7. There is a trend towards devolution of functionsand responsibilities to catchment or local level,but there is limited integration of statutorypowers at this level.

8. Although there is strengthened representation ofstakeholders, an absence of national/State policy

In the LWRRDC 1999 project, River Management andRestoration Legislative Frameworks: an Analysis ofAustralia and International Experience, the task was todefine criteria for a world best practice legislativeframework for all Australian jurisdictions for thetwenty-first century. The aim was to provide theopportunity for healthier rivers in Australia by usingan agreed, nationally-consistent legislative frameworkmodel.

The approach involved a focus on four themesconsidered central to river management; reviewing arange of Australian legislation at all three levels ofgovernment, as well as legal provisions in selectedrelevant countries; analysing and documenting criticalsuccess factors for a best practice legislativeframework.

The four themes—water flows, water quality, riparianareas and administrative arrangements for integratedcatchment management (ICM)—were chosen on thebasis that:

1. they represent a cross section of the majormissing river management issues (protection ofecosystem values, governance and communityempowerment);

2. they deal with discrete yet overlapping aspects ofriver management including resource allocation,pollution, land development and institutionalarrangements; and

3. all four are presently experiencing legislativereviews.

The definition of a best practice legislative frameworkis one which:

1. defends rivers as a vital part of our naturalcapital and defines ecological ‘bottom-lines’ orthresholds for their use—this requires pre-statedmeasurable performance indicators, arrived atthrough community involvement;

2. manages conflicts between users, and betweenusers and non-users;

3. facilitates change and requires continuousimprovement in performance;

4. enables adaptive management, through policy,institutions; and management, in response tochanges in perceptions, knowledge, technologiesand management regimes; and

5. protects the public interest.

The 1994 Council of Australian Governments (COAG)Agreement for water industry reforms is arguably themost significant catalyst for legislative change to rivermanagement in Australia this century and its impacts

��

framework fails to ensure a level playing field (i.e.ecosystem protection with resourcemanagement).

9. There is increased knowledge about ecosystemprocesses and resource use impacts. Resourcesecurity has to be matched with emergingrequirements to provide for ecosystem needs,adjusted over time.

The big directions of the future appear to be:

1. ecologically sustainable water management(ESWM, similar to ESForestM), where equity andecological interests are represented alongsideeconomic and sectoral interests in watermanagement decisions;

2. development of new administrative arrangementsat the regional/catchment level;

3. nationally-agreed binding framework for rivers(i.e. where to after COAG?); and

4. development of companion mechanisms in thepackage (tax reform, industry adjustment,environmental accounting) in a compatible andcomprehensive way; potentially decreasing therole for legislation if these mechanisms performfor river management.

The nature of the legislative framework appears to beat a crossroads. The regulatory model that includesmoving forward with structures, statutory plans andadministrative processes, seems to be favoured bythose stakeholders generally outside decision-makingcircles and disillusioned with river managers’performance. The other model moves forward withinclusive, co-management, multiple-mechanismsapproaches and a lower but critical profile forlegislation.

A set of criteria reflecting best practice rivermanagement and restoration frameworks wasdeveloped, primarily from the topics; and fromliterature and professional experience includingpractitioners, mainly in the public sector.

The criteria are:

1. Setting binding, measurable river managementstandards as a national function, requiring astrong leading role by the Commonwealth.

2. Legislating for a general duty-of-care for alllandholders and all others to manage all aspectsof surface water and groundwater resourcessustainably, and to achieve ESD as the primaryobject (not just as one of several) of theiractivities.

3. Developing a statutory definition of ‘river’,founded in the total water cycle and includingfloodplains, all related wetlands, surface andgroundwater.

4. A single, multi-functional agency for river

management and rehabilitation.

5. Catchment-wide spatial characteristic for rivermanagement agencies.

6. Statutorily-based powers commensurate withtheir responsibilities (i.e. for planning, funding,educating, regulating and achieving allcomponents of river management) for rivermanagement agencies.

7. Inclusion of all stakeholders in an open, equitableand adequately-resourced manner into rivermanagement agencies.

8. Close links between river management agenciesand local governments (given the previous threeprinciples, and the extent to which localgovernment is already involved in someenvironmental and other aspects of rivermanagement).

9. Statutory, comprehensive river managementplans by river management decision making.

10. Statutorily-required regular, publicly-availableaudit of river management and rehabilitation,independent from the restoring/rehabilitatingagency.

11. Requirement for specified periodic reviews in thelegislative framework for administrativecomponents of river management.

12. Primacy over all other legislation—including thatapplying to utilities and emergencies—of alllegislation with a direct or indirect effect on rivermanagement needs.

��

��

Mary Maher, Susanne Cooper and Peter Nichols wouldlike to acknowledge the following people:

Australian Conservation Foundation

Tim Fisher

Department of Natural Resources

Chris Robson, Paul Mills, John Amprimo,Claudia Baldwin, Jan Gill, Jenny Awberry, PaulMills, Tony Houton

Environmental Protection Agency

Paul Coughlan, John Bennett

Department of Land and Water Cconservation

Gary Hamer, Paul Taylor, Mike Geary

Department of Environment, Heritage and AboriginalAffairs

Elizabeth Young, Neil Power, Paul Harvey

Department of Land Planning and Environment

Don Pidsley

Department of Primary Industries, Water and Energy

Max Giblin

Water and Rivers Commission

Luke Pen

Environment ACT

Jinnie Lovett, Wendy Jacob

Canadian Environmental Conservation Service

Larry Booth

Agriculture, Fisheries and Forestry – Australia

Andrea Mayes, Tania Cvijanovic

CSIRO

John Williams

SEQ Water Quality Management Strategy

Helena Milawken, Trevor Lloyd

Queensland Conservation Council

Louise Mattieson

Healthy Rivers Commission, NSW

Maria Comino

Nature Conservation Council

Pip Stenke

Land and Water Resources Research and DevelopmentCorporation

Nick Scholfield, Phil Price, John Taylor, SiwanLovett

Shoalhaven Council

J. Downey

Inland Rivers Network, NSW

Stuart Blanch

Others

John Williams

Jason Alexandra

Warrick Watkins

Carla Mooney

Christine Forster

David Shorthouse

David Mussared

Brian Hodgson

��

��

(as Bloom’s day draws to a close, he fills the kettle to make tea for Stephen Dedalus…)

What in water did Bloom, waterlover, drawer of water, watercarrier returning to the range, admire?

Its universality: its democratic equality and constancy to its nature in seeking its own level; its vastness in theocean of Mercator’s projection: its unplumbed profundity in the Sundam trench of the Pacific exceeding 8,000fathoms: the restlessness of its waves and surface particles visiting in turn all points of its seaboard: theindependence of its units: the variability of states of sea: its hydrostatic quiescence in calm: its hydrokineticturgidity in neap and spring tides: its subsidence after devastation: its sterility in the circumpolar icecaps,arctic and antarctic : its climatic and commercial significance: its preponderance of 3 to 1 over the dry landof the globe: its indisputable hegemony extending in square leagues over all the region below thesubequatorial tropic of Capricorn: the multisecular stability of its primeval basin, its luteofulvous bed: itscapacity to dissolve and hold in solution all soluble substances including millions of tons of the most preciousmetals: its slow erosions of peninsulas and downwardtending promontories: its alluvial deposits: its weightand volume and density: its imperturbability in lagoons and highland tarns: its gradation of colours in thetorrid and temperate and frigid zones: its vehicular ramifications in continental lake contained streams andconfluent oceanflowing rivers with their tributaries and transoceanic currents: gulfstream, north and southequatorial courses: its violence in seaquakes, waterspouts, artesian wells, eruptions, torrents, eddies,freshets, spates, groundswells, watersheds, waterpartings, geysers, cataracts, whirlpools, maelstroms,inundations, deluges, cloudbursts: its vast circumterrestrial ahorizontal curve: its secrecy in springs, andlatent humidity, revealed by rhabdomantic or hygrometric instruments and exemplified by the hole in thewall at Ashtown gate, saturation of air, distillation of dew: the simplicity of its composition, two constituentsparts of hydrogen with one constituent part of oxygen: its healing virtues: its buoyancy in the waters of theDead Sea: its persevering penetrativeness in runnels, gullies, inadequate dams, leaks on shipboard: itsproperties for cleansing, quenching thirst and fire, nourishing vegetation: its infallibility as paradigm andparagon; its metamorphoses as vapour, mist, cloud, rain, sleet, snow, hail: its strength in rigid hydrants: itsvariety of forms in loughs and bays and gulfs and bights and guts and lagoons and atolls and archipelagosand sounds and fjords and minches and tidal estuaries and arms of sea: its solidity in glaciers, icebergs,icefloes: its docility in working hydraulic millwheels, turbines, dynamos, electric power stations,bleachworks, tanneries, scutchmills: its utility in canals, rivers, if navigable, floating and graving docks: itspotentiality derivable from harnessed tides or water courses falling from level to level: its submarine faunaand flora (anacoustic, photophobe) numerically, it not literally, the inhabitants of the globe: its ubiquity asconstituting 90% of the human body: the noxiousness of its effluvia in lacustrine marshes, pestilential fens,faded flowerwater, stagnant pools in the waning moon.

(James Joyce 1992, pp. 782–784)

��

��

In September 1998, the Land and Water ResourcesResearch and Development Corporation (LWRRDC)called for four related consultancy projects into rivermanagement and restoration , as part of the need forR&D to support community-based efforts torehabilitate Australia’s rivers. These four projectswere:

1. production of a CD ROM on River management andrestoration ($200,000);

2. review of methods to identify and protect highvalue rivers and river reaches ($30,000);

3. development of a framework for river rehabilitation($80,000); and

4. analysis of legislative frameworks for rivermanagement ($50,000).

The analysis of legislative frameworks for rivermanagement (Project 4) is tasked to suggest criteriafor a world best practice legislative framework for allAustralian jurisdictions for the twenty-first century,thus providing the opportunity for healthier rivers inAustralia by using an agreed nationally consistentlegislative framework model.

Deliverables consist of a broad assessment of existinglegislation and critical success factors or criteria for a‘best practice’ legislative framework for rivermanagement.

The challenge of this project was to undertakeassessment, analysis and framework development inrelation to river management and restorationlegislation across ten Australian jurisdictions, utilisinginternational examples and focusing on communityempowerment.

With the aim of making this task manageable withinthe timeframe and budget, the following approach wasapproved and the study has proceeded through threekey steps:

• a strategic overview of existing legislation based onresearching legislation in Australian jurisdictionsand overseas

• review and analysis to identify trends andchallenges through examination of legislativeframeworks for four topics (environmental flows,water quality, riparian areas and institutionalarrangements for catchment management);

• scoping of critical success factors for a bestpractice legislative framework for rivermanagement and restoration drawn from thisresearch.

This report is targeted to legal practitioners, policyadvisers and people across a broad range of agencies(resource planning and management, integratedresource management, environmental protection andlocal government planning); and catchment managers,community stakeholders, water industry user groupsand catchment residents.

The study proposes further work on model legislativeframeworks including review of legislation inoperation in all States, comparative studies of specificActs, as well as a review of legislation in practicethrough examination of selected legislation and itseffectiveness in leading jurisdictions.

��

��

It is widely recognised that that Australia’s rivers arein crisis. Australia is the driest of the world’spopulated continents, and has the world’s mostvariable rainfall and stream flow. Of the twelve majordrainage systems in Australia, only half producesignificant levels of useable runoff and many facemajor intractable water quality problems, due tooverdevelopment of the water resource.

Australian river flows have high and unpredictablevariability, over a variety of time scales: decade todecade, year to year and season to season. Further,the water volume in many river systems is over-allocated. Increasing demands on water resources areleading to serious conflict and growing competition inallocation to economic uses, and have largely ignoredsustainable maintenance of ecosystems.

Australia’s first State of Environment Report (Alexander1996) has some startling statistics. A recent survey ofthe Murray and its side-channels found that at least30% of the study area was cleared and that introducedweeds constituted 18–63% of plant species (Banens etal. 1996). An estimated 1.8 million tonnes of materialfell into the lower Murray over a 153 km section in1988–89 (Banens et al. 1996). Along the Goulburn andupper Murray rivers, some 870 and 400 stream-management works respectively have been recorded.In the Murray–Darling, more than 30 species of plantsand animals have become extinct and another 70% arecritically endangered. Over wide areas, less than 9% ofnative vegetation remains. (Industry Commission1997, p 15).

Australia has the highest per capita rate of waterstorage of all countries. The growth in farm dams hasmeant a 50% reduction in annual stream flow in someVictorian catchments in drought years, and a flowdecrease of up to 62% in some NSW rivers.

Victoria is estimated to have some 300,000 small farmdams. Their effect on stream flows is mostpronounced in dry periods. In the Murray, droughtperiods previously occurring in 5% of years, nowoccur in 60%. The water audit of the Murray–DarlingBasin estimated that, given current growth in waterrequirements, 90% of the flow from this system will bediverted for irrigation and other uses by 2010 (State ofEnvironment [SoE] 1995, Murray–Darling BasinMinisterial Council 1995).

A two-year survey of the Murray River catchment didnot reveal any Murray Cod; the system being

dominated by exotic fish species. The decline of sucha widely-accepted Australian river icon stronglyimpacted on the community, which holds great storein fishing and river traditions. Similar degradation offish stocks and species diversity was found in otherregulated rivers in NSW (CRC for Freshwater Ecology1997) and Queensland.

In NSW, assessment of stressed rivers (Department ofLand and Water Conservation [DLWC] 1998) showedthat, of 527 rivers so classified, 190 (28%) have a highlevel of stress. About 27% of all Victorian streams arein ‘poor to very poor’ condition, with 65% (17,000 km)of streams in cleared areas being in this category(Mitchell 1990).

It has taken some 200 years to bring Australian riversto their present unsatisfactory state; it may take a notdissimilar period for river management andrestoration.

��

In the last decade, key national initiatives haverecognised the need for an endorsement of improvedwater management—primarily its resource aspects—but also in terms of water’s many environmentalservice functions.

1990 National Water Quality Management Strategy, ajoint initiative between Australian WaterResources Council and the Australian and NewZealand Environment and ConservationCouncil (ANZECC). This technical workdefining environmental values for water qualityobjectives for individual river systems hasstimulated State and local governmentlegislation and water quality managementinitiatives.

1991 World’s largest blue–green algae outbreak, over1000 km in length, in the Darling River.

1992 Agreements working for a more coordinatedand consistent approach to resource andenvironmental management nationally—theIntergovernmental Agreement on theEnvironment, and the National Strategy forEcologically Sustainable Development.

1993 Australian Water Resources Councilamalgamated with Australian Soil ConservationCouncil to form the Agriculture and ResourceManagement Council of Australian and NewZealand (ARMCANZ).

��

��

1994 Council of Australian Governments (COAG)recommended key reforms to aspects of waterservices in line with National CompetitionPolicy and based on user pays, removal ofcross-subsidies and pricing for full costrecovery (transparent arrangements by 2001,review of property rights to water andfacilitation of water trading by 1998,infrastructure and extensive institutionalreforms by 1998 [COAG 1994]).

1995 Interim Cap on increased water allocationsfrom Murray River. Ministerial Council agreedthat protection of the river system required abalance be struck between consumptive andinstream uses of water in the Basin andintroduced an interim Cap on further increasesin diversions.

1996 Australia’s State of Environment Reportprovided a snapshot of the critical problemsfacing inland rivers, estuaries and coasts. Thisproject was a multi-sectoral, multi-agencyexercise of three years duration. The nextphase will focus on intensive measurementbased on CSIRO’s indicators for national Stateof Environment Reporting.

1997 Natural Heritage Trust (NHT) funded from thesale of the first 33% of Telstra, aimed atproviding $1.25 billion over six years toprovide: strategic capital investment tostimulate additional investment in the naturalenvironment; achieve complementaryenvironment protection, natural resourcemanagement and sustainable agriculturaloutcomes consistent with national strategies;and provide for cooperative partnershipsbetween communities and all levels ofgovernment.

Community resourcing has occurred in fivemain areas across Australia: vegetation; rivers;biodiversity; land; and coastal and marineareas, administered through a number ofnational programs. Delivery through States andTerritories occurs through partnershipagreements, some of which have involvedreview of State/Territory arrangements (e.g. forvegetation clearing controls).

Approximately 2,200 groups have been formedin voluntary rehabilitation projects incatchments and local areas; numbers oflandowners committing to formal conservationarrangements on their properties are steadilygrowing.

1998 The introduction of the CommonwealthGovernment Environment and BiodiversityConservation Bill presented the option to Statesand Territories of meeting specific milestonesor standards in their environmental policies

and administration in return for accreditationand reduced use of Commonwealth powersover State operations where applicable. Thescope of the Bill does not explicitly deal withwater or river management issues.

This summary understates the exponential growth inwater- and river-related scientific work, data basedevelopment, government projects and partnerships,community involvement, institutional reforms andinnovative mechanisms which have taken place in thelast decade.

A central driver for reform of water planning andmanagement has undoubtedly been the Council ofAustralian Government Water Resources Policyannounced in 1994 (COAG 1994). Australia has nosingle national water agency; the CommonwealthGovernment has therefore funded water resourcesand water management programs to drive reform ofthe water industry in all States and Territories.

By late 1996, all jurisdictions reported good progresswith these reforms, though the pace and extent ofchange has not been consistent across Australia.There were doubts expressed that States andTerritories would meet the 1998 reform milestones(Industry Commission 1997).

Several leading stakeholder groups including theAustralian Conservation Foundation (ACF), theCooperative Research Centre (CRC) for FreshwaterEcology and the Inland Rivers Network have queriedwhether the reforms go far enough, fast enough and ifthe water pricing structures include fullenvironmental costs. If the perspective is one ofchampioning the liberation of rivers, legal and policymechanisms will seem to offer too little change, tooslowly. With a perspective of reform of presentsystems to move towards greater sustainability, theemphasis will be more on using the proper channelsand the appropriate pace for ‘realistic and practical’reforms of policy and legislation.

��

Harvesting or using rivers on a sustainable basis is amajor challenge for Australia. In terms of ecologicallysustainable development (ESD), material wellbeingmust be balanced against irreversible losses ofenvironmental assets. There are strong reasons tothink of sustainable development as involving afurther constraint, namely that the stock ofenvironmental assets as a whole should not decrease(Industry Commission 1997, p. 11).

Ecological integrity is the core of the National Strategyfor Ecologically Sustainable Development (NSESD)applied to river management and restoration. Rivermanagers are just starting to come to grips with thisissue and its incorporation into future river

��

management. Maintenance of ecological integrity iscommonly understood to occur when theproductivity, stability and resilience of a system aresustained; that is, the system is ecologically healthyand can perform all essential ecological processes. Italso means maintenance of evolutionary potential.

The relevant objectives are still difficult to define. TheANZECC (1992) guidelines for fresh and marine watersnote that it is not yet possible to state with any degreeof certainty just what constitutes a healthy oracceptable aquatic ecosystem. This point couldequally apply to river systems and their catchmentsoverall. However in 1998 the Brisbane RegionEnvironment Council assessed water qualitymanagement work in the Brisbane River and MoretonBay, and provided some examples of criteria forprotection and restoration of catchment quality(Figure 1.). These criteria provide some scope for themechanics of river management and restoration.

��

� � ��

��

��

• ��

• ��

��

• �� !��!� ��

� ��

• ��

��

• �� "��

��#��

• $��%��&��"�� '�� '��!

��

�� %�� &��

• (�� &��!� ��'

��&�� &�� &��

� &�&�

�)�� * �� + �� , �'�#--.��

An alternative approach may be to specifyachievement of a set percentage (e.g. 10%, 20%, 5%)improvement or stabilisation in overall river conditionevery five years, assuming baseline data is accessible.

Critical components for the restoration of riverstowards ecological sustainability means working in anintegrated water management framework based upon:

• Protecting the hydrological system as a whole. Thismeans ensuring there is awareness about theinterdependence of natural systems and acommitment to an integrated approach todevelopment and protection. Environmentprotection must be accepted as a major publicpolicy goal. The watershed or catchment is themost appropriate unit for water management, forecological processes and economic activities.

• Managing for water quality protection,conservation of water and the links between them.Management of sustainable water use in economicactivities means an integrated approach to howthese activities use and dispose of water.

• Maintaining the capacity for the ecological systemsto deal with desirable change. Modifications towater flows, water quality, stream channels,riparian, floodplain, catchment or groundwaterconditions have to be viewed in terms of the natureand scale of the impacts, as well as cumulativeeffects.

• Protecting and managing for sustainability underconditions of natural and human-induced change isnot straightforward.

Mandated standards delivered through a strengthenedwhole-of-government approach are the most practicalway of achieving the above.

One example of the difficulty of assessing a riversystem’s capacity to handle change is the OldmanRiver Dam, Canada (Table 1).

This example serves to illustrate that, in terms ofnatural capital, short-term gains have to be assessedin the context of longer term effects on naturalsystems. Value judgements have to be made andjustified in a transparent context. The precautionaryprinciple puts the onus on the proponent of thechanges and impacts but the tools for evaluatingimpacts are still rudimentary. Ecological ‘bottomlines’ are critical but mostly they are not readilyidentifiable. Additionally, there is a lack ofaccountability and sanctions: there is minimallikelihood of removing a dam once built, if its adverseenvironmental impacts are more than predicted. Thebest outcome is that the lessons, perhaps taking twodecades or more to be perceived, are included inevaluation of future dams—a generational time loss.

The ecological condition and the contribution toAustralians’ livelihoods and lifestyles by rivers, are anessential part of the nation’s natural capital. In termsof the need for legislation, natural capital has to beunderstood through its key characteristics:

• Natural capital has multiple functions and it isvalued for this characteristic. Protection of this fullrange of functions is critical.

• Natural capital is difficult to value under presentexcessively narrow econometric measures.

��

��

��

• /��&��0��1��

• 2��#��!��!�!��

• 3�� !��!��

• 4 � ��5'0��!�� '��&� �� 6��&�� ! �7��

• ,!� �� !�8��&'�7� ��!� !'�� !�� !��!� � ��

• /�� !��!��

��

• 9�� '��'�� !��!��#�#5�!��

• �!��

• :��

• *��

• ;:�� !� �� &<�� !� !�%��&�!��&�� %��&��!�!��#��!��!��

• ��

• ,�� &�3� �� ,��!�� =

��>��#--�'��=�#�.�

Financial measures fall short and physicalaccounting measures quantify some aspects: butmatters such as cultural heritage or‘substitutability’ make matters of measurement andvaluation difficult. Difficulties in valuing naturalcapital means that market mechanisms cannot yetwork with a true costing; and development of moreinclusive accounting techniques (‘greenaccounting’) is needed. Market constraints are thendistorted. For so-called renewable naturalresources, at this point in human history, rates ofconsumption and degradation exceed rates ofrenewal (e. g. clean air in urban areas, atmosphericozone depletion, fertile soil, old growth forests).

• Scientific uncertainty of natural capital means thatirreversible losses can occur as a result of systemicchange. Causes and effects are not easily defined.Seemingly small or harmless actions can haveirreversible consequences and substitution orreplacement of these losses is not likely to be anoption in the near future.

• As long as natural capital is not exploited beyond acritical point, it can be harvested or used on asustainable basis for all time and does notcompromise the welfare of future generations.However there are no practical substitutes forextinct species or depletion of the ozone layer.

In natural capital terms, rivers offer ecologicalbenefits and services (Table 2).

While the scope and scale of these ecological servicesby rivers will vary, these characteristics provide agood argument for their protection as critical naturalcapital, notwithstanding their extensive social,cultural and economic capital.

Market mechanisms to date are limited in theirinclusions. They have failed to supply public goods

adequately, to ensure social value such as theredistribution of wealth, to manage employment, todeal with externalities arising out of resource use andto account for cumulative effects of degradation orresource use. Legislation then has the pivotal role toplay in the tripartite arrangement between theeconomy, society and the environment; to givelegislative weight and direction to mechanismsneeded to deal with market failures.

��!��"��#�$��%

Legislation is only one part of the total package usedfor restoring, rehabilitating and managing rivers andtheir catchments. For greatest effect, the packagemust incorporate:

• appropriate legislation;

• ongoing consistent political will;

• ongoing consistent agency commitment;

• compatible and comprehensive market-basedincentives and disincentives;

• community access and involvement;

• information access and communication/technological developments; and

• human factors such as leadership, attitudes,commitment and effective responses to crises.

Within this package, the purpose of legislation is toprovide for the definition and delivery of policythrough moderation and constraint of self-interest bygroups or individuals, particularly when other parts ofthe package are unable, unwilling or unsuitable todeliver. Its primary characteristics are to:

• set out the policy intention and principles;

��

• outline primary operating mechanisms andprocesses for achieving that intention;

• state boundaries and bottom lines;

• state where one legal matter has precedence overanother;

• define enforcement provisions and penalties;

• be multi-layered (hierarchical or nested)—withumbrella legislation setting up broad intentions andheads of power, and subordinate legislationproviding more specific details (e.g. for itsapplication spatially or to specific issues); and

• define lines of authority.

While legislation is only one mechanism, it has anenabling function for other tools for improvingresource management. Alternatively, it can presentobstacles to their functioning.

&�"��#��"�#��

The legislative framework encompasses allinstruments having a statutory basis, falling into twobroad areas (see Table 3 for examples):

• those affecting land and water users impacting onrivers and their restoration, and

• those affecting governmental structures andintergovernmental and inter-agency relations andoperations.

The Commonwealth Constitution Act 1900 (Cwlth) doesnot define fundamental rights (e.g. environmentalrights or rights to environmental quality). Nor does itdefine property rights to water. For natural resourceslaw, the emphasis is on constituting organisations,setting broad parameters for their operations,specifying objects and decision-making considerationsand empowering them to make discretionarydecisions. Some may even include formal proceduresfor planning which meets the legislation’s broadparameters (Farrier 1999).

Natural resource legislation in relation to water is notonly about access and use of land and water, andmanagement regimes for production and consumptionactivities. It is also about management of other valuesof water (e.g. values having economic importancesuch as navigation, public recreation, commercialfishing, property, drainage and flood mitigation, andpollution control). Other important values includesocio-cultural significance, landscape and amenityvalues of water and streams, and a range of ecologicalbenefits and services as well as more eco-centricvalues. The Crown, by virtue of these matters and of

��

��

� �� • ��

• �� &��!�� !��!

��&��

• �� &��

� �� '

�� 1��&��

• ��"��

• �� &��

• ��

• !��

� �� • �!��1'�� '��

�� !��

�!&��!��

��'�� !�6

�� !��!�� !

��

��

• �!� �� !�� 6

��!�� !��

� �� 1�6�� !�� 6

� ��

��!� ��!��

�� • �� 1�

• ��

• �!�� !&��

��

• �� !��

• ��

• ��

• ��

• ��&

• ��

��

• ��

• ��

• � �� %��!�

��

• �� &��

• ��

��

its public interest value, has then a sizeablecontrolling interest in water and as such in rivers.

This array of values in relation to water means thelegal system has to service multiple objectives. This inturn means a framework, explicit or not, based onmultiple policies for water management. The NSWEDO (EDO 1994) scoped good environmental laws asdisplaying:

• clarity of purpose;

• political accountability;

• open decision making;

• access to information;

• environmental data;

• independent review; and

• civic enforcement.

Native title has additional, sometimes fundamental,impacts on the restoration and management of thoserivers where it applies. This varies with history,tenure and jurisdiction, and in many instances canonly be ascertained by specific research.

&�#��"��

Devolution trends in government are seen by some asthe opposite of what is needed. Market forces andlocal community action cannot deliver the solution tothe scale of degradation which rivers present.Regionalisation should not mean withdrawal of Stateor national governments from their respectiveresponsibilities (Martin & Woodhill 1995). Martin andWoodhill argue that the achievements of marketmechanisms and community participation must beassessed according to environmental outcomes, andnot production efficiency, community development orcost-sharing.

Governance needs to ensure coordinated, somewhatcentralised assessment of priorities, planning andmonitoring. Central government also needs to ensurecoordinated provision of the institutional capacity forregional and catchment-based action.

The legislative model preferred is still only as good asthe political will driving it and the resources madeavailable. In Bates’ words ...the law does not tell theland user or resource managers or any other bureaucrathow to go about their jobs; nor does the existence ofpower to do something actually demand that the powerbe exercised. (Bates 1995, p. 13).

The existence of legislative powers does notguarantee exercise of these powers. Even the world’sbest practice legislative framework will not guaranteemaximal outcomes. Bradsen (1991) considered therecord of Australia’s departments of agriculture overthe last 50 years to be ‘poor’. An analysis of theBrisbane River situation showed that, while thelegislative framework was not best practice, it had thecapacity to achieve considerably better rivermanagement results than were occurring. Lack ofpolitical will and cumbersome institutionalarrangements were the major contributors to theshortfall (Mary Maher & Associates 1998a). Also,resource limitations commonly cause rivermanagement and restoration shortfalls below thatwhich is empowered by the legislative framework.

Persuasion and education are accompanying methodsfor implementing river management, restoration andrehabilitation. However, where management practiceson private land impact on rivers and their waters.Bates (1995, p. 131) comments:

Legislation has been slow to address these issueswhere they arise on private land, probablybecause the remedies require direct ‘interference’with traditional property rights and land

��

��

� �� !� ��!�� 7��'� �� '�� '��

��'� �� '� ��

��'��? �� '��&@

��'�� '�� !�� '��

��!�� '� �� '

�� +)3�� &

� �� '�� &�� &

� �� =

"��!�� !��

�� ?� �@� �&�� 1

�� '�� '��

��'�� ?�� !�� '

� � �� ?�� @� �&�� '�� ?��

�� @� �&��=

��

management practices, which is difficultpolitically, thus leading governments of allpersuasions to attempt action by education ratherthan by regulation. Given the nature of theevidence that land clearance is the naturalprecursor to all other forms of degradation,Bradsen has described 200 years of degradation(and a context of) national government neglectprior to National Land Management Program,1990 Decade of Landcare. Lack of transparencyexists in Australia about the extent ofenvironmental problems.

Legislation has unique capabilities. There is no roomhowever for complacency about the need toconstantly question:

• whether legislation is the best mechanism fordealing with a matter;

• whether the functions ascribed to a regulation arethe ones it is best equipped to perform; and/or

• whether any piece of legislation has the capacity tobe responsive over time to new approaches ormethods, legislative or not.

�#��

As Dovers (1999) puts it, land and water managementdisplays a number of attributes more commonly incombination than many other policy fields. They setthe scene for all aspects of the managementframework and they include:

• broadened, deepened and highly variable spatialand temporal scales;

• the possibility of absolute ecological limits tohuman activity;

• irreversible impacts and related policy urgency;

• complexity within and connectivity betweenproblems;

• pervasive risk, uncertainty and ignorance;

• typically cumulative rather than discrete impacts;

• new moral dimensions (e.g. other species, futuregenerations);

• systemic problem causes, embedded thoroughly inpatterns of production, consumption, settlementand governance;

• lack of available uncontested research methods,policy instruments and management approaches;

• lack of defined policy, management and propertyrights, roles and responsibilities;

• intense demands for increased communityparticipation in both policy formulation and actualmanagement; and

• sheer novelty as a suite of policy problems.

(Dovers 1999, p. 81)

In essence, river management and restoration fitswell into the definition of a ‘super problem’. Thesecomplex public policy issues were previously referredto as ‘wicked problems’ (Rittel & Webber 1973). AsMason and Mitroff (1981) explain:

Wicked problems are not necessarily wicked inthe perverse sense of being evil. Rather, they arewicked like the head of a hydra. They are anensnarled web of tentacles. The more youattempt to tame them, the more complicated theybecome.

Wicked problems exhibit six characteristics:interconnectedness, complicatedness, uncertainty,ambiguity, conflict and societal constraints.

Similarly, super problems are those not amenable toideal solutions: the goals of the particular aspects ofthe broader problem are often contradictory, and thedefinition of the component factors and values areusually arbitrary in terms of use, user, location andtime. With a super problem, cause and effect areinextricably linked and largely unexplored socialvalues and attitudes are usually involved (de Laet1997, p. 308).

��

��#��

This project accepts that the policy basis for rivermanagement and restoration is a decision forAustralia as a whole, and for each jurisdiction. Thepolicy emphasis may be on a combination of severaloptions, including:

• protecting the present ecological integrity of allrivers;

• protecting the ecological integrity of all highlynatural rivers;

• restoring only those rivers which will respond mostreadily to a small amount of investment (80/20rule); or

• restoring the most stressed rivers, or those highlystressed river with high conservation significance.

River ‘restoration’ and ‘management’ are defined herein their broadest sense. The two terms includeprotection of rivers in their most wild or natural state,as well as the full range of actions associated withrehabilitation of Australian rivers. Protection of anyremaining values is an essential and initial componentof river management and restoration . In this project,‘river management’ refers to the ongoing processwhich achieves a stated objective or condition for ariver. ‘River management and restoration’ refers to animproved condition of the river.

While the task is to focus on the legal framework, thisproject understands that legislation is only one part ofthe mix of tools needed for implementation of rivermanagement and restoration . In this era there is adefinite move to use a mix of mechanisms—rangingacross public financing to performance measures,market-based mechanisms and precautionarystrategies. These implementation mechanisms,including legislation, can be viewed as the basic ‘toolkit’ for management. This project supports andassumes mixed-mechanism implementation of rivermanagement and restoration, and supports andassumes a use of legislation only where necessarywithin this mix.

While the project’s focus is on all ten jurisdictions—the Commonwealth, eight States and Territories, andlocal governments—the responsibilities related torivers are largely the domain of the States andTerritories. The focus for this project is primarily onState/Territory legislation.

Outputs of this project are to be ‘practical’. Rivermanagement and restoration is an emerging conceptfor protection of natural capital. In recent forumswhere river ecosystem needs are weighed up againstsocial and economic needs, the response has been apragmatic one:

Fundamentally, in my deliberations I sought toanswer the question: how can the ecological andsocial functions of a group of modified rivers beimproved to the fullest extent, taking into accountthe interests of other users and beneficiaries?

(Snowy Water Inquiry 1998, p. 6)

It might be argued that any proposal creating electoralrisk and/or requiring additional funding is not‘practical’. Alternatively, having regard to the primacyof the May 1992 Inter-Governmental Agreement on theEnvironment (IGAE) including its agreement toimplement the NSESD; and taking into considerationthe provisions of the Commonwealth’s EnvironmentalProtection and Biodiversity Conservation Bill (1998),‘practical’ is taken in this project to mean ‘thosemeasures which will most speedily andcomprehensively achieve restoration, and ESD, ofAustralia’s rivers’.

In Australia at the moment, most jurisdictions areexploring and implementing major reform packages inresource management and environmental protection,especially regarding rivers. The pace of change isconsiderable, and the consequences often distant;researchers indicate it is too early to report onachievements. Many river systems lack the data to bespecific about river condition. River management andrestoration often fails to state its outcomes inquantifiable and accountable terms. As the rapidrecent change in river management frameworks isoften through a multiplicity of measures with little orno legislation backing, it may not be straightforwardin the future to ascertain which consequences flowfrom the legislative part of the changes, and whichfrom the other parts.

The project is not intended as an explanation of thelaws or policies in any depth. Rather, it provides abroad overview of the legal frameworks available forriver protection and restoration. It is a social scienceaccount of legislation’s strengths and weaknesses,providing the basis for scoping a strategic levelframework and criteria for a best practice legalframework. This project then is ‘desk top’ only, and inits analysis limits itself to statements about thepotential powers and achievements of the emerginglegislative frameworks. It is based on the position asat 31 March 1999. As Farrier (1999) asserts, such adesk top exercise can say little about how the existingarrangements operate in practice. This no doubt is tobe the subject of further studies.

It should also be noted that the suggested inclusion ofa legislative component in the best practiceframework does not imply that the provision in

��

��

question should be mandatory on all jurisdictions.Such a component will be included where analysis ofbest practice indicates that it is likely to be useful inthe next century; it will still be discretionary to eachjurisdiction as to whether such a component isenacted, let alone then used.

Several of the suggested legislative provisions maycarry compensation impacts under the AustralianConstitution or other existing legislation. Therecommendations do not intend to alter the statusquo in this matter. Similarly, many recommendationsfor the best practice legislative framework containresource implications, including the option offinancial incentives and/or disincentives undertaxation or other fiscal provisions. These are a matterfor subsequent management and budgeting decisionswithin each jurisdiction.

��!

This project has taken the approach that its output ofcriteria for world best practice river management andrestoration legislative framework should be aboutlegislation’s role in enabling all actions to achieverestoration for rivers and their catchments, whilesustaining and enhancing community effort andsupport.

Building on these matters, the project defines bestpractice legislative framework as one which:

• defends rivers as a vital part of our natural capitaland defines ecological ‘bottom lines’ or thresholdsfor their use;

• manages conflicts between users, and betweenusers and non-users;

• facilitates change and requires continuousimprovement in performance;

• enables adaptive management, through policy,institutions, and management, in response tochanges in perceptions, knowledge, technologiesand management regimes; and

• protects the public interest.

Challenges for river management and restoration, andthe critical success factors for a best practicelegislative framework are addressed here throughexamination of four topics (water flows, water quality,riparian areas and administrative arrangements forcatchment management), as this selection providesinsights into aspects of a cross section of river-relatedlegislation (Figure 2).

The project breaks new ground. It covers allAustralian jurisdictions and focuses on all legislationrelevant to river protection, restoration andmanagement. As such, there were considerableconstraints in terms of research materials. Fewcomparative studies have been published whichaddress legislative frameworks for aspects ofenvironmental management, let alone their outcomesand effectiveness.

Greatest reliance was placed on a selection of projectswith similar charters to this one. Several whichproduced useful research materials are asterisked (*)in the reference list.

Given the paucity of research materials, the projectscope and methods were tailored to provide astrategic overview and to identify the priorities forfurther investigation in this dynamic area of research.

��

#��

$%�� *��

&%�� + ��

'%�� &��

(%�)�� *��

� � ��

>� �� '��

��

,��!� ��

�� =

��

'��

��

The assessment, identification and delivery ofenvironmental flows to our river systems havereceived extensive recent attention across Australia.The catalyst stems from the federally-initiatedobjective to administer our water resources better,and to incorporate environmental flows as an integralpart of these reforms. Increasing demands for alimited and often scarce resource, and conflictbetween extractive and other water uses, haveresulted in the development of accepted principlesand parameters for environment flow objectives. Inaddition, there has been rapid development of Statelegislation and policies to provide the statutoryframework for their implementation.

The regard for the provision of environmental flowshas been described as resource management ratherthan science, with their assessment based upondecisions which are ‘arbitrary, hasty and politicallydriven’ (Pusey 1998). Although methodologies andapproaches have progressed since 1994 (when theCOAG agreement on water reforms were put in place),a number of the dilemmas and challenges present atthat time still remain, and are discussed further below.

Environmental flows consist of ecological, temporaland hydrologic elements. They clearly extend beyonda mere volumetric allocation.

The concept of an environmental flow has beenoutlined by Cullen (1994) as including but not limitedto:

• volume of water over some time base;

• velocity of water in channel;

• duration of flow event;

• water temperature;

• water level;

• natural and human induced variation flows on anannual and longer time scale;

• need for pulses of high flows (e.g. to stimulate fishbreeding); and

• the rate of change of flow.

It is important that these elements of environmentalflows are strongly linked to the objective of ecologicaland ecosystem management. The nature ofenvironmental flows and their focus on ecologicalprocesses and ecosystems should be recognised andspecifically stated in relevant legislation and policydocuments, to curtail using water flows for other

purposes which may have only a tenuous linkage toecosystem health.

The integration of these elements provides anessential basis for the sustainability of river systems.The ecological emphasis needs to be focused on anecosystem approach, rather than a single species; aprinciple which is reinforced in the National Principlesfor the Provision of Water for Ecosystems (ARMCANZ/ANZECC 1996).

��

Past practices which allocated water from riversessentially overlooked environmental requirements,thus leading to widespread degradation of waterwaysand loss of aquatic ecosystem values. Indicators ofthis trend include:

• changes in the timing, duration and frequency offlows which make many current river flow regimesalmost the opposite of natural flows;

• obstructions to the migration of fish and otheraquatic organisms, and a decrease in their breedingand spawning grounds due to extraction of waterand changes to flow patterns;

• changes in water temperature arising mainly fromcold water releases from dams;

• impacts on bank stability and channel structurefrom more slower flowing water flowing in differentseasons; and

• reduction in diversity of instream habitat, withpools and riffles replaced by a more homogeneousand flatter channel habitat.

The allocation of an environmental water entitlementor environmental flow is not an end in itself.Environmental flows provide a defined and specificwater allocation for the protection, maintenance andrestoration of ecological values—a key part of rivermanagement and restoration. They consist of twoparameters: a volumetric and quality allocation; and aseasonal pattern which mimics, as far as possible, thenatural flow regime.

The methodologies for assessing the volumenecessary for environmental flows vary betweenStates and Territories. They have evolved from asingle species focus, with emphasis on commercialspecies such as fish, to a more holistic, integratedapproach which includes diverse elements of theriverine ecosystem. Although approaches such as the‘building block’, the ‘expert scientific panel’ and the‘expert panel assessment’ methods differ inmethodology, a recurring factor is the absence ofobjective data and scientifically collected information

��

��

upon which to base predictions and modellingrefinements (Arthington 1998).

Many other factors also influence river condition, withenvironmental flows an essential but single element.Virtually all environmental flow methodologies focusupon flows, with other disturbances in the banks orwider catchment excluded from current assessments.The implication is that, although flows may berequired to largely mimic natural conditions, this initself may not be sufficient to restore river health inmany highly disturbed riverine systems.

��

The flow requirements of many elements of theriverine ecosystem (e.g. invertebrates) are largelyunknown. The limited information to hand suggeststhat for many taxonomic groups, there exists a widediversity of breeding and ecological requirements,with consequent diversity in environmental flowrequirements (Growns 1998).

Incorporating such diverse needs of riverineecosystem components into environmental flowassessments has been an important challenge(Figure 3).

The lack of rigorous data underpinning mostenvironmental flow assessments suggestscomprehensive monitoring is essential toprogressively refine our understanding andconfidence in scientific assessments. It would be auseful step to adopt a uniform methodology to enablecomparability with techniques and outcomes acrossAustralia. The current variety of approaches promotescomplexity in agency responses to the water reformagenda (Arthington 1998, p. 22).

A key benchmark to assist the identification of riverflow needs is to identify the objective of these flows.The maintenance of current ecosystems andconditions will have different flow requirements to anobjective to restore ecosystems to some desiredfuture state. Loosely defined objectives, such as

‘maximise environmental values’, provides littleguidance in the translation to quantitative measuresand specific flow requirements.

The question ‘how healthy/natural/sustainable do wewant our rivers to be?’ is not specifically answered bylegislation, but requires further scientific work andcommunity acceptance before an unconstrainedresponse can be provided.

The role of legislation within such uncertainty is toprovide:

• a transparent and rigorous process for addressingthe ecological and societal/political conflicts whichwill inevitably emerge;

• clear principles where the scope, intent andobjectives of the legislation are clear;

• requirements for appropriate scientific monitoringof environmental flow regimes; and

• flexibility and adaptation, given the uncertaintiesoutlined above.

��

This section is focused around water flows withinAustralian rivers. Water allocations and flows aregenerally bound up with water law across Australia,which is a far broader body of statutes than river law.It is pertinent that there are few laws in Australiawhich relate specifically to the management ofrivers—most legislation has traditionally stemmedfrom a utilities function, so that numerous statutescover water for irrigation, drainage, sewerage andwater rights.

This broader treatment is outside this project’s scope;its emphasis is deliberately upon river management,underpinned by the ecology and environmental healthof rivers.

The current impetus for water reform generated byCOAG (1994) involves the mechanisms of waterpricing, trading of water entitlements and

�� !�� " ��

��

�� (&�� !�� %�� &��'��!��!�

�� '�� '��%� �&�� &��3�,��1�#--.'��=��=

�� (&�� 1� �� !��!

)�� *��'��!��

�� !��3�,��1�#--.�=

�� &�� !�� '��

�� '��!��!�� &�� !=

A!�� !��!� ��3�,��1�#--.'��=��=

��

administrative systems for implementing thesereforms. These economic and administrativemechanisms are again outside the scope ofsustainable river management, unless they impactupon the sustainability of river systems and theconstruct of environmental flows. They are thereforenot examined in the following discussion.

Although the focus is on rivers themselves, previousdiscussion has identified trends toward a moreholistic management of the water cycle, with all waterstorages, sinks and sources managed under anintegrated framework (Cullen 1997). There has alsobeen a link between placing limits on water extractionfrom one component of the water cycle and theexploitation and consequent deterioration in thequality of another. It is for these reasons that somediscussion, albeit cursory, of groundwater andfloodplains is included.

(��"�#��!��"��"��

The broadest challenge is to set water flows for riverswithin an ESD framework. Although uncertainty andflexibility is inherent in the definition of ESD, fourimportant principles can be identified which shouldform the basis for a legislative framework forsustainable river systems:

1. protection of resources for the needs of futuregenerations;

2. application of the precautionary principle;

3. the protection of biological diversity and ecologicalintegrity; and

4. improved valuation and incentive mechanisms.

Specific objectives stem from this challenge and theycan be grouped into three categories:

Ecological

• To establish desired ecological objectives for bothexisting benchmarks and future targets through arobust, scientifically based process

Social

• Broad community acceptance of the need andurgency to establish appropriate water flowsthrough rivers to maintain and improve riverhealth

Economic

• Accepting the need for review, refinement andpossible increases in water allocations forenvironmental flows as additional informationincreases our knowledge and understanding ofecological requirements

• Achieving a balance between security for resourceplanning and economic viability of productiveenterprises and adaptation to emerging informationon environmental requirements.

The challenge goes beyond gaining communitysupport for these principles: it is to translate theseinto statutory requirements and workable policies sothey become operationalised in practical, on-the-ground working arrangements.

)��"��!��"�

The legislative and policy context for water flowlegislation is clearly different from that which existedas recently as the early 1990s.

The fundamental catalyst for change on this front isclearly COAG (1994), arguably the most powerfuldriver for changes to Australian river managementthis century. Although environmental outcomes werea subsidiary objective, the staged economicincentives linked to reforms required under theNational Competition Policy have been the catalystfor the rapid generation of state legislation and policyon environmental flows across all States andTerritories (although Victoria had initiated thisprocess prior to COAG). The agreement alsorecognised, for the first time, water entitlements toprotect environmental values as a legitimate use forwater allocations.

It is of interest that the initiator for widespreadenvironmental reform across all States and Territorieswas a non-legislative, primarily financial mechanism.

The audit of water use in the Murray–Darling Basin(Murray–Darling Basin Ministerial Council 1995) was arigorous scientific and objective study whichdemonstrated to the general public the over-committed nature of this system, and theunsustainable consequence of current practices. Theramifications of poor management of our riversclearly had a much wider application than to thissystem alone. The implications for Australia riversoverall were unacceptable to many decision makers.

In response to these two developments, theestablishment of agreed and accepted principles forprotection of aquatic ecosystems and water reformshave since formed the basis of State water reformlegislation.

In particular, the National Principles for the Provision ofWater for Ecosystems (ARNCANZ/ANZECC 1996) and ANational Framework for the Implementation of PropertyRights in Water (ARMCANZ 1995) have been the keyprinciples around which State legislation has beendeveloped.

The principles, accepted by all States and Territories,herald substantial change to previous practice. Theyprovide further guidelines for the development oflegislation which reflects the principle that the

��

environment is a legitimate user of water, as well asthe requirement that environmental water provisionswould be both legally recognised and met as far aspossible.

The general debate therefore has accepted theseprinciples as the basis for good policy. Discussionshave moved beyond this stage into the operationaldetail and the more specific legislative or policyrequirements. However, some of the principles aremore difficult to accommodate than others. Theprinciples (ARMCANZ/ANZECC 1996) of ‘revising andincreasing environmental water allocations in over-committed rivers where environmental values are notbeing sustained’ and ‘no new water allocations inrivers where environmental flow requirements cannotbe met’ have yet to be demonstrated in policydevelopment and resulting planning decisions in mostStates and Territories.

States and Territories that have over-allocated rivers(particularly Victoria and New South Wales) find itmore difficult to adopt a proactive approach toestablish requirements for reviewing existingallocations and environmental flows, as this questionsthe security of current user entitlements.

In Victoria, although the Water Act 1989 (Vic) and thebulk entitlement program are meant to provide longterm protection for existing aquatic values, the rulesto implement this process are designed to convert allexisting allocations, regardless of whether desirableenvironmental flows can be met (Department ofConservation and Natural Resources 1995, p. 7). Thereseems to be little readiness in the present climate forimproving environmental flows in heavily allocatedrivers.

In NSW, setting an upper limit for regulated rivers onthe impact of changes in environmental flow rules andsubsequent allocations to 10% of average long termdiversions allowable under the Murray–Darling Capover the initial five year period until 2002, alsoconstrains the degree of change to improvingenvironmental flows.

These two examples illustrate how existing social andpolitical constraints make complete compliance withthese principles, and thus river management andrestoration, difficult over the short term. They aremore realistically seen as principles to which steadyand committed progression will be made by the Statesand Territories over following decades, until fullimplementation is achieved. This timetable may wellbe perceived by many as too slow.

In contrast, Western Australia generally has an under-allocated river system, which suggests it can take amore proactive stance in its legislative and policydevelopment, with less of a focus on ‘clawing back’than on ‘setting ecologically preferred benchmarks’.

In summary:

• the policy climate for water flow reform haschanged considerably since the early–mid 1990s;

• environmental values have legal recognition as alegitimate water use;

• the caps on further allocation represent caps ondevelopment, not the meeting of ecological ‘bottomlines’;

• there is broad acceptance at the Commonwealthand State/Territory level of the principles for waterallocations and water reforms which sustainecological values; and

• the work and debate is now focused on translatingthe accepted principles into practical policyrequirements and operational tools.

*��"��"��"�#��"��

��

Most Australian States and Territories have recentlyintroduced, or are in the process of introducing,legislation and policy that deal with wide-rangingwater reforms; and as a consequence, withenvironmental flows and water allocations. Waterresource management is the greatest single area oflegislative change taking place in relation to rivermanagement in Australia at present.

There are two consequences relevant to this project:

• the recent nature of many changes means little tono evaluation has been, or can yet be, undertakenon their effectiveness; and

• a number of States and Territories areimplementing policy simultaneously, with fewopportunities to assess developments in otherjurisdictions prior to reviewing their own progress.

It is a period of legislative innovation and change forriver management, with no substantial precedents toinform likely consequences and outcomes.

However, a number of conclusions can be drawn frominternational examples, particularly from the USA .Examples from Oregon and Alberta (Figure 4)illustrate the tradeability of water allocation rights(Bartlett et al. 1997).

The implications from these two examples are that theeconomic and market-driven tool of transferability ofwater entitlements can work to promote greaterefficiency of water use and the opportunity toincorporate benefits for environmental flows.

��

��

Legislation affecting river flows should consist ofthree important elements:

• key environmental principles and objectives, ahead of power and an objects clause whichdescribe the essential intent of the legislation aswell as its scope and breadth of application;

• the products (plans, river strategies, river plansand operational frameworks) which provide therationale and tools for water allocation decisions;and

• the processes from which the products are derived,including community input, reporting andcompliance arrangements, role and responsibilitiesof agencies.

Head of power

The head of power provides the legal basis foraddressing environmental objectives andrequirements in the legislation, and also defines thescope for their application. Two examples illustratehow differences in the head of power can affect thescope and effectiveness of legislation.

The Water Resources Act 1989 (Qld) states that waterdoes not fall under the jurisdiction of the Crown untilit enters a watercourse. This restricts powers of theState to regulate and control water flow issues outsidea watercourse, including surface flow acrossfloodplains. The Review of Cap Implementation(Murray–Darling Basin Ministerial Council [MDBMC]1998, p. 2) recommended that new legislation inQueensland includes management of floodplainharvesting. This would involve an alteration to thedefinitions and scope of the Act.

In contrast, water legislation in NSW has a broaderscope, with all surface water coming under thejurisdiction of the Crown not just water flowing within

a watercourse. This has enabled the emergence ofpolicies aimed at managing surface water flowscaptured by farm dams and floodplain harvesting.

The Queensland Water Resources Act 1989 also hadno reference to environmental objectives in the waterallocation process, giving no head of power forecological issues to be incorporated into water flowassessments and planning. New legislation will amendthis limitation, but it illustrates the constraints ofmost Acts which were developed prior to the 1990s.

Empowering principles

Legislation usually incorporates principles whichprovide the framework for more operational detail.Principles can be expressed in very generic,‘motherhood’ statements, or be a more specificoutline of important objectives.

A desirable, if not essential element in all legislationdealing with water flows, is a clear statement in theobjects of the Act of the environmental principles andobjectives, links to ecologically sustainabledevelopment and the precautionary principle, theprimacy of these objects and a ‘general environmentalduty of care’ to be required of all citizens.

These principles are a means to an end. They enablethe legislation to move beyond a utility-based,traditional water-use framework, and reflectenvironmental, non consumptive values (Cummings etal. 1996).

These principles are empowering, and enable thelegislation to extend further than mere administrativearrangements. They also clearly establish thephilosophical and ecological parameters of thelegislation, and the underlying paradigms againstwhich more detailed interpretation andimplementation should be gauged. It therefore enablesa broader and more holistic view of the environment,assists in a more ecologically-based interpretation ofthe legislation, and provides the basis for avoiding amere codification of administrative arrangements.

Most recent legislation impacting on the environmenthas these principles enshrined. The following areselected excerpts from legislation which illustratesthese points.

�� # �� !��" ��

+��

A!�#-.�� !��

�� =�7 &�� &

��!�� !��! �� &��

�� 5�� !��

�!�� '�� =

)��

4 ��'��!��;��

!��1<�� =�B��#�� &��

�!��!�� !!�� !

�� %��&��=�A!��;!��

��1<�� &�� =�B ��!��

�� '��!��&��'��!�� !

�� =

��

�� $��

��

��B��!�+�/�� "��

C�#��!��"��!��7��!��&��!�� !��D

�� !�� !��!�� !�� !��!&��'��

��!�� !�� !��!��D

�� !��!��!�� &�� 6��

�� !��&�� !�� &��!�� !��6��

�� !��'��&�%�� !�� !�� '�� !�� !��

� �� =

C�5��A!�3� ��'��!�$��*��,�� '��!� �� '�� '��!�,��

� ��!�� !�� !��7��D

��!�� !� ��

�� !�%��&�� &�� !�� !� ��

��!�� !�� '� �� '��

�� '��1�'�� '��!��'��!

� �� !��!��&��6

�� !� ��!��&��!�� &�� 6

��1��!�� !��!�� 6

�� '��'��!�� !��7�� !�� !� ��

��=

� ��)��$,-,�.��

�� 7��'��!�� +�/�� "��

A!��7��!��!��

�� '��!�� !�� (��6

�� !�� !��!��!��&��6

�� !��&'�%�� 6

�� 1��!�� &�� !��

� ��(�� 6

�� &�� ===

� � �� !�� &�=

��

�B��&��E �� !��=�

�C= �#��7�� &�� &��&��!��'��1�&��'� �� !�� !�� 1��

�� !�!��=

�5��4 �� !��%��1 �� #�'� ��!��'��'

�� !� ��!�!�� !��6��

�� !�� &��!�� 6��

�� !�� ! ��1 �� !��&6��

�� !��1��!�� !�� !�� !��1 6��

�� !�� !�� !&��!��&��&=

��)�� /�� 0

/��"�� !�� ,�� !��

7�� $7<��

�� A!��!�� 1�

�� '�� &�� %��=��$�� *��

,�� #--.'��=�.�=

3��&'�� !�� !��!�,�� =��

��;� ��

��$�� *��,�� #--.'��=�#.�=

A!��!�� &��"�� !��

�� ;��&��<�� &� ��!�7��*�� $��,�� #--.'��=�-�=

��

The very clear and full elaboration of environmentalobjectives in the South Australian Water ResourcesAct provides a model for emerging legislation.

Incorporating an objects clause in legislation is arecent development, with legal consequences that arethe subject of ongoing debate. The essence is theextent to which an objects clause either fetters theexercise of power (which has been held as invalid bythe NSW Supreme Court) or rather provides strategicstatements to guide decision makers and assist ininterpretation of the legislation. This second usagehas been supported in Court decisions. The use ofwording such as ‘ensure, promote, encourage,achieve’ is important, with ‘promote’ and ‘encourage’suggesting less of a statutory duty and constraintthan ‘ensure’ (Mascher et al. 1997, p. 16).

The implications are fourfold:

• all water and river legislation should includeclauses which make clear and explicit reference to,and a requirement to achieve, ESD and its guidingprinciples;

• an objects clause should be included in legislationwhich explicitly states and gives legislative primacyto environmentally based principles, objectives andpurpose;

• a general ‘environmental duty of care’ to be createdfor all citizens exercising powers or rights receivedunder the Act; and

• explicit reference to exercise all powers in amanner consistent with the objects of the Act, inparticular ESD and environmental principles(Mascher et al. 1997, p 20).

��

Table 5 provides a snapshot of elements of statestatutes and policy. As indicated, many are currentlybeing developed, and have not yet been finalised.

A number of relevant points emerge from this table:

• elements of water flow such as floodplains andgroundwater are largely perceived as peripheral tothe water allocation process, and are dealt withinconsistently, with the former generally notincluded in policy development;

• capture and diversion of surface water in farmdams is not addressed in any State except NSW;

• fine tuning and tailoring of the mechanics andoperational tools (for examples, the review periodand auditing framework) do not emerge from thisoverview, although most States and Territorieshave at least some procedures in place;

• the community has been involved in nearly allwater allocation processes (although the extentand mechanisms again vary considerably);

• terminology for plans, operational tools andprocesses differ markedly between States andTerritories. This lack of commonality andconsistency creates pointless barriers to easy

�� !�

1��2� �� 3�� .�� )

> �� ?��&�� &� F &� F

�� ? �� G

*�� ? ��&� #��&� �� &��

�� G

�� ?�� 1G � � �� &� &��

��

4 �� 1��

�� !�� G � ��& � ��

4 �� G &� � � ��

� ��

> �� G � �� &�

�� &�� &� &� � &��&

�� '��"��G ��

�� &� � &� &�

�� G

F� �� '��!�)�� H� �� $�� 7�� &�� =�7��!��

��#---=

��

understanding and effective comparisons betweenStates and Territories. A more standardised systemwould be more efficient and in the interests of amore unified approach. Examples of the mixture ofterminology is illustrated in Table 6.

"��

The issue of diverting surface water into farm damsand off floodplains affects river flows. The followingexamples provide an illustration of the effects ofsurface water diversion.

• in some Victorian catchments the growth of farmdams has meant a reduction of 50% of annualstream flow in drought years, and a decrease ofbetween 4–62% in some NSW streams.

• Victoria is estimated to have some 300,000 farmdams. Their effect on stream flow is mostpronounced in dry periods. (SoE 1985, p. 7.11)

• the construction of onfarm storages in Queenslandgrew from 360 GL in 1993–4 to 684 GL in 1996–7.The latter figure was recorded after the cap wasimplemented in the Murray–Darling Basin. This isnearly a 100% increase over only three years(MDBMC 1998, p. 20).

Clearly the increasing capture and diversion ofsurface water has negative impacts on river flows,particularly in dry periods. The need to manage allstorages and flows within the water cycle is becomingincreasingly obvious, particularly as constraints onwater allocations from river flows are providing thetrigger for users seeking water from other, as yet,unconstrained sources.

The growth in farm dams has caused NSW tointroduce policies to deal with these issues. The FarmDams Policy allows the collection of 10% of the runofffrom a landholding each year which makes up the

harvestable right, and which will not be licensed.Maps are being prepared for each of the variousclimatic and bio-geographic regions which provideestimates of the 10% runoff volume which will be usedas the basis of assessment. Volumes captured abovethe 10% limit require a licence.

Floodplain harvesting has been identified as a majorissue in NSW. At present, it is not subject tocomprehensive licensing, even though large quantitiesof water could be managed under a more regulatedsystem. There are various options being examined toestablish a regulated framework for harvesting offloodplain flows.

It would not be possible to implement such measuresin Queensland under current legislation, as no head ofpower exists to give the Crown jurisdiction over wateroutside defined water courses.

$��%��

Many of the groundwater aquifers are stressed.A recent assessment in NSW indicated that, of 93aquifers across the State, 36 were classified as highrisk—mainly from overallocation (DLWC 1998). ForStates and Territories such as Queensland, WesternAustralia, Northern Territory and South Australia,groundwater is a critical resource. Most of Perth’spotable water supply originates from undergroundaquifers.

A national policy framework has been developedthrough the Allocation and Use of Groundwater – ANational Framework for Improved GroundwaterManagement in Australia (1996). NSW and WesternAustralia have developed policy and requirements forsetting sustainable yield, employing embargoes onover allocated systems and for developingmanagement plans for groundwater systems.

�� $ ��!��"��

4�� :�$ H�� $7 (��

�� !�� !�� @

4�� 1� ��

��

�� I��

��

� ��*�� !�� 1� ��

5�� "��

��

��

��

��%��

As the following diagram for current arrangementsillustrates, principles and agreements are set at theFederal level, whilst specific legislation has beendeveloped at the State/Territory level.

It is around these elements of water allocation andwater flow legislation that legislative arrangements arestill being developed.

A summary of these elements, the various approachesadopted by different States and Territories and theimplications are set out below.

5�� *��

:7A4J:7>��*4:,4�>+�6�7�*++3+:A�

= ,J7��

= 7*3,7:,?7:K+,,�:�� $��+��&��

= 7*3,7:K�$��7�� + �� D��:�� 2��1

= 3��&D/�� )�� 7 � �� ,��

�� 6#��

�A7A+?A+**4AJ*L�>+�4�>7A4J:�7:/��J>4,4+�

= � ��

= �� 1�

= !��!&��1�� ?��

+� ��

7�� '��

*�� &�� %��&��"��

+ �� '�� '��

2��'� �� '��

�� @��

�� '�� &

3� �� !�� %��

��#��#��

��%�

All States and Territories have developed differentapproaches and frameworks for establishing waterallocation and environmental flows on regulated ascompared with unregulated rivers. Within thisvariation, there are a number of critical issues andquestions which need to be addressed. They are:

• will environmental flows consist of seasonality,temperature and other quality components, as wellas a volumetric allocation?

• by what ecological criteria is the desired flow set?

• how can some variability of flow be introduced,when other users seek certainty?

• how, in the absence of rigorous data, can we bestreview and refine environmental flows, when otherusers seek security and stability of use?

From these questions and issues, a ‘best practice’ setof environmental flow elements can be elucidated.Environmental flows should:

• have a volumetric, seasonality and other waterquality components;

• include the capacity for introducing some annualvariability;

• have clearly stated objectives to meetenvironmental flows before other uses areallocated;

• be based upon ecosystem values, not requirementsof other uses (e.g. short flushes to wash out blue–green algal blooms);

• be based upon ecosystem values which establishan acceptable ecological benchmark;

• be calculated on a rigorous, transparent andscientifically based methodology; and

• be flexible, to cater for refinement throughincreased information and understanding.

A key question still largely unresolved is where to setthe requirements for environmental flows? How‘healthy’ do we want our rivers to be? Is sustainingcurrent conditions sufficient, or should there be arestoration of ecosystems and species which werepresent in previous decades?

The following summary sets out how some States aredealing with issues raised above.

Victoria

The potential for any improvement to environmentalflows for over-committed rivers is limited, with theemphasis in the bulk entitlement process being onestablishing a quantified, firm basis for waterentitlements.

��

However, any new developments will be constrainedunless environmental flow requirements (EFR) aremet. Existing developments have current entitlementssecured.

The EFR can be granted through a bulk entitlement(for regulated streams) or a streamflow managementplan (SMP). No additional environmental flows havebeen allocated through the former process as yet,whilst two streamflow management plans (forunregulated streams) have been completed.Approximately twenty SMPs are intended to bedeveloped over the next three years.

Management rules allow flexibility for variability involumes between different years

New South Wales

Water for environmental values to have priority ofover water for extractive uses is stated as anobjective.

Concerns that continuous accounting (credits ‘saved’during wetter years can be used in other times) maylead to over-allocation in dry periods, without somerule to govern maximum limits and impacts onenvironmental flows.

The maximum impact of environmental flows set at10% of Murray–Darling Cap diversions reduces theirscope in many over allocated rivers.

Management rules allow flexibility for variation involumes between different years.

'��(%��

Victoria

• Assessment completed (Stressed Rivers Program).Criteria of river condition developed by a scientificpanel used to set priorities and actions.

• Restoration plans underway for the top eightpriority rivers by 2000. These will need to addressinadequate environmental flows if ecologicalimprovements are to result. It is presently unclearhow this will occur on over-allocated rivers.

New South Wales

• Stressed Rivers assessment completed, indicatingof 527 rivers classified, 190 (or 28%) of rivers havea high level of stress.

• This used to set priorities, with river managementplans completed for all stressed rivers by 2001.

Queensland

• No State-wide assessment. Priority catchmentsidentified on the basis of highly allocated rivers,and those where major development andinfrastructure (dams, irrigation) are likely to occurin the near future.

��)��

Victoria

• For bulk entitlements: annual report to the Ministeron catchment basis.

• For streamflow management plans: most divertersare not metered at present, though all pumps willbe eventually fitted with meters. Annual report tothe Minister.

• There is a concern that any review on regulatedstreams will provide opportunities for renegotiatedallocations, and by implication, a decrease inenvironmental flows.

New South Wales

• Not known at present. Traditionally, the industryhas been self-regulating. A compliance plan is beingdeveloped for the new water reforms.

Queensland

• Not known at present.

*��+

Emerging legislation has, in most cases, acharacteristic hierarchy of planning frameworks.Clearly, the river basin or catchment is the basicplanning unit, although it is employed at a range ofscales for plan development. It is most developed inWA, where a nested hierarchy of regional, sub regionaland local river plans are to be developed. In otherStates and Territories, the river catchment is the basisfor planning, without a regional and sub-regionalstructure sitting above this.

Two different approaches have emerged, both withapparent merit for river management and restoration.Western Australia has delegated many decisions(regarding, for example, floodplain allocations, leveeconstruction on floodplains and farm dams) to ‘localrules’ which are regulations decided by locallyconstituted water management committees accordingto the landscape and water demands operating at thethis scale. In this way, blanket policies which apply tothe whole State are substituted for an approach whichtailors ‘rules’ to reflect the river resource anddemands upon it at a more fine tuned level.

In contrast, NSW has preferred a blanket policyapproach at the State level for planning pertaining tofarm dams and proposed floodplain harvestingpolicies. This approach, whilst not accommodatinglocal variations, has the virtues of being simpler,consistent and less vulnerable to intense bargainingby specific interest groups at the local level.

��

These approaches can be summarised in Figure 5.

Western Australia’s approach is not yet implemented.The outcomes will be watched with interest, as thesetwo approaches have relevance to a wider scope ofriver management than to just the flow elementsdiscussed here.

The operation and effectiveness of the localcommittees which usually develop local rules orguidelines, are all under scrutiny, particularly withregard to their independence, representativeness,ability to make and implement ‘difficult’ decisions andlevel of expertise. NSW, Victoria and Western Australiahave all employed extensive use of river-basedcommittees. Although the frameworks they operatewithin may vary, the issues for evaluating theireffectiveness remain remarkably similar.

'��+

The key issues which have emerged from the reviewof these components are:

• the seasonality component of environmental flowsis not robust, particularly for heavily or over-committed rivers. Seasonality requirements maydirectly conflict with demands of extractive uses.

• temperature and other quality components ofenvironmental flows

• the potential for addressing environmental flows infully- or over-allocated rivers appears veryconstrained at present.

• meeting environmental flows should be explicitlystated as the priority objective in legislation andpolicy.

• the balance between security for users (certainty)and adaptive management (flexibility) requirescareful balance, with the needs of rivermanagement and restoration given dominance. Ashorter review period could be most appropriate inthe initial phases of introducing the water reforms.

+��

Although many initiatives regarding environmentalflows are recent, an evaluation of case studies acrossvarious Australian States and Territories illustratesthe operational issues and challenges which occurbehind the legislative framework (Figure 6).

A summary of the more generic issues, andconclusions which can be drawn from the diverseexamples, provide a useful assessment of theoperational and on-the-ground implementation ofState and Territory legislation and policies. Thefollowing discussion is based upon findings in Allanand Lovett (1997).

�� !�� "��

1�� 5 ��

>��!�� 3��%�� &�� )��!D M� �� ? >�1(��& 3��!� $�� 3�� >�1� /��*= 3��:�$ :�$ :�$ 2�� (�� (�� 7

:�$

3� �� %�� &� ��& � � � &�

� � ��&�� &��

��?�� &

��!

��

�� & &� &� &� �&� �� &�

�� &� &� �&� �� &�

��& &� &� �&� �� &�

,�� &�� & &� � &� &� &� &� �

�� !�

�&��

�� %�&� ��&��

�� *

= ��&'� �� '��!��

= 7�� &��!��

�)� � �*

= ��

= >��&��I� �� &��

��

= >��

��

Some conclusions which emerged from the Allan andLovett (1997) study include:

• Most flows were what was feasible given existingallocations and infrastructure, and can be seen as acompromise between optimal and acceptableenvironmental flows.

• The scientific basis was often uncertain, given lackof data and little monitoring to build upon the poorinformation base.

• The approach was often species-specific, with fullintegration of ecosystems difficult to achieve. Evenplanning for one wetland in isolation from otherlinked wetlands was seen as inappropriate.

• Species with an economic and recreational usesuch as fish and ducks received disproportionateattention when assessing flow requirements.

• Some environmental allocations had economic andother benefits, including salinity and river codmanagement.

• The process is complex, with detailed scientificinformation, a number of agencies and competingcommunity and environmental interests. Adequateresourcing of community committees is essential topromote better understanding and more informeddecisions.

*#��"��"��

It is clear there has been a recent transition inlegislation regarding water allocation. Four distinctphases can be identified, with the third phase stillpartially unfulfilled. It is important for sustainableriver management that legislation progress beyondPhase two, be steeped at least in Phase 3 and movetoward Phase 4. These phases and their features arepresented in Figure 7.

Figure 8 illustrates trends in specific elements ofenvironmental flows, illustrating that progress hasbeen made on a number of fronts over the pastdecade. The ‘S‘ indicates the current state along thespectrum of a number of identified elements. As thediagram illustrates, progress has been moresubstantial in some areas (e.g. ecosystem approachinstead of single species focus) than in others.

Critical success factors for water flow legislation

• Develop structures to accommodate ecologically-based environmental flow allocations to riversystems which cross State boundaries, andtherefore deal with interstate agencies andlegislation.

• Legislation and policies need flexibility instructures coordinating community and agencyinterests, to be able to reflect the wide variability inriver systems, as well as the physical and socialcontext of their catchments.

• Achieving environmental flow requirements needsto be specified as the priority objective whenallocating water flows.

• Progression toward an ecological, ecosystemframework for water resource legislation whichembraces a holistic appreciation of all elements ofthe water cycle.

• Progress toward providing environmental flowswhich restore riverine ecosystems to some desiredand defined future state, rather than just maintainor slightly improve existing conditions in highlymodified or degraded river systems

• Critical elements of the water cycle (e.g. farmdams, groundwater) which impact on river flowsshould be incorporated in water flow legislation.

• Environmental flows should include a volumetricand seasonality/variability component, as well as aprocess for establishing appropriate environmentalallocations in over-committed rivers. This can beachieved by the inclusion of ‘operational rules’which reflect the essential variability inhydrological parameters in addition to a volumetricallocation.

• Legislation includes an object which clearlyrequires achievement of, and therefore givesprimacy to, ESD and ecological objectives andprinciples concerning water flows and

�� '�" ��"��

��$,,7��8� ��

2� �� '��'��

$,,7��

+ �� &��"��

��1��!� �� N ��

��

9&777�� :��;�*��

� � ��

�� &

+��

��&��

� ��

!��!

��"��

4 ��

�� 1�'��

� ��==

��'

�� '

� � ��

��'��

$��?��?��

��

�� !��

�� 1��!� �

��

�� '

� ��

%��&

>� 1��

= ��

��

��

= ��

��

= � � ��

= ��J�!

��&

��

��

�� #�� "��

+�� :��

�� +��&��

(�� '��

*�� 4 ��!��

*�� J�!�� '�� !��!� �

+��!�� +��&��

:��"�� &�� M&�� '��"��&�� &��

+ �� &�� + �� &� �� "��

environmental allocations. There need to beaccompanying mandated criteria for decisionmaking, to guide decision makers and those(including the Courts) implementing the Act.

• Clear, explicit statements of objectives, standards,principles and duty of care as part of all waterresources legislation, which provide a clear head ofpower for legislating over elements of the watercycle. The less explicitly that central principles andelements of legislation are described, the greaterthe opportunity for political interpretation andinfluence by special interest groups.

• Adequate resourcing for scientific and communityworking groups, given the complexity of thescientific, ecological and hydrological issues andinter-agency powers which are inherent in manyenvironmental flow decisions.

• Monitoring requirements incorporated intolegislation, so that scientific information can becollated and used to further refine environmentalflow assessments and provide greater certaintywith ecological and scientific information.

��

��

,��

Water quality has been traditionally of secondaryimportance to water quantity issues. This status isreflected in the legislation, which has been largelyconcerned with water allocation issues. The focus onwater quality has generally been narrow, limited topotable water issues and control of pollutants andcontaminants from point sources. Yet despite nearly30 years of clean water legislation, water hascontinued to become less fit for use.

In Australia, the States and Territories have the primeresponsibility for water quality management andprotection, delivered through various agenciesempowered under State / Territory legislation. Primeresponsibility for water pollution by point sourcessuch as industries and utilities has rested withenvironmental agencies. Powers over diffuse sourceshave been shared between a number of agencies andvarious legislative instruments and administrativearrangements.

This situation reflects the complexity of water qualitymanagement, and the range of activities which canhave a potential impact upon water qualitymanagement.

Discussion here proceeds from an analysis of existinglegislative approaches, an outline of trends inlegislation, identification of challenges and gaps incurrent legislation, and a scoping of criteria forlegislative best practice in the future. Examples ofwater quality protection and management in Australiaand overseas highlight key elements of the discussion.

-��"��#��$��.��#��"�#��

The quality of Australian waters continues todeteriorate. The main threats to water quality include:

• contamination due to activities associated withintensive agriculture, industry, urbanisation,aquaculture, mining, water storage, and wastedisposal;

• environmental problems (e.g. salinity,sedimentation, nutrient enrichment, and flooding)caused by clearing and/or modification of nativevegetation, particularly in sensitive catchmentareas and within the riparian zone;

• inappropriate use/management of land and waterresources, for example, overgrazing of pastoralleases, excessive recreational use, inappropriateurban design and urban form (Welker 1996, State ofthe Environment Advisory Council 1996, Johnson1999); and

• temperature changes in water storages and fromthermal pollution.

Healthy waterways are a vital component of both thenatural and human environment. Effectivemanagement of activities associated with thecontinual decline of water quality will not only protectthe significant values associated with our waterresources, but will also contribute to a range ofdesired ecological outcomes, including:

• healthy human populations—a healthy andsustainable supply of clean drinking water andwater for other domestic purposes (e.g. washingand bathing);

• economic viability—long term viability of watersupplies for agricultural and industrial activities;

• biological and physical environmental integrity—healthy land-based and aquatic ecosystems wherebiodiversity and ecosystem integrity aremaintained;

• fishability and swimability—a level of water qualitythat allows people to engage in both primary andsecondary contact recreational activities;

• aesthetically pleasing water resources, both inlandand coastal.

�� " ��(� ��!�

5��

= 7$H�� 1� ��

= 7$H�� !��

1��

= ��!��

= ��!�1��

= ��

1��

= ��

= ��!� ��!��

= ��

= ��

= ��!� �� &

= ��

� ��

= /��& '� �� '��'��&�� 1�� &'��!� �'�� &'��&�� &'��'��'��

= � ��

��

Governing water quality through a legislativeframework means achieving control over dischargesfrom both point sources and non-point sources.‘Control’ in this case means:

• pollution prevention, management, repair andrestoration;

• protection, conservation and regeneration ofhabitats; and

• management of land and water use processes andprotection of ecosystem processes.

Water quality issues relate as much to the needs ofthe receiving waters as they do to instream uses andvalues. Coastal rivers flow to oceans, to reefs, to baysor estuaries, with or without dams or waterdiversions. Similarly, inland rivers flow to lakes, dams,major rivers, bays or the ocean. The body ofknowledge for determining the effects of pollutantloadings on receiving waters has expanded rapidly.Water quality managers are relying increasingly on theload limits resulting from models of receiving waters.‘Standards’ and limits are now more ‘tailored’ to meetthe water quality objectives for specific water bodies,a tailoring made possible by this new body ofknowledge.

Accompanying this evolution in knowledge—ofpollutants, their effects and risks throughout thewater cycle—has been the need for greater capacity inwater quality policy to handle the complexity andincrease effectiveness of management. Table 7summarises just some of the parameters of waterquality where increased complexity has impacted onpolicy options.

/��"��

An important national initiative aimed at consistencyin water quality management is the National WaterQuality Management Strategy (NWQMS). Thedevelopment of this strategy encourages consistencyacross water quality management authorities. Thestrategy provides a framework for choosing andsetting interim water quality objectives, and a policycontext within which to implement a system of waterquality management.

It offers a holistic approach to natural resourcemanagement within catchments, marine waters andaquifers with water quality considered in relation toland use and other natural resources; coordination ofall agencies and levels of government; and communityconsultation and participation.

In addition to the NWQMS, national guidelines havebeen developed for freshwater and marine waters andfor potable water used for drinking water. Thecontents of these guidelines are summarised inTable 7 below.

�� " ��(� ��!��!�

� �� 6��

��

��

• ��

• �� +��

• �� A� ��

• �� A� �� 6

��

• �� A� ��

�� ,� � ��

>��

� �� /�� !��

��

• ��

• ��!� ��

• ��@��!� ��

• ��= =��!��

��'�!� !�&��

#�� A�� %��

• �� !��

• ��

• ��

��= =��

�� &

�� 7��

• �� @

��

• �� @��

)�� &�� !��

��

• � ��

• ��&��

• ��

• ��

• ��!��

<��

+��!��

• ��

��

• ��&��!��!

• ��!��

!�� !��

� ��

)�� !� ��

• ��

�� %��&��"��

• �� %��&��

��

• �� %��&��

��

• �� %��&��@

��

��

Research and development of these guidelines reflectsthe expanding knowledge base for water management.They are an achievement—they provide theopportunity at least for national coherence about thescientific basis for water quality. These guidelineshowever cannot ensure consistency of theirapplication. Their effectiveness is solely reliant uponthe States and Territories adopting and givingexpression to these in their legislation.

This degree of weakness in the national delivery ofwater quality management in Australia is in strongcontrast to the arrangements in the United States.Water quality policy in the USA is delivered through astrong centralised framework based on Federallegislation and on conformity by individual Statesreliant on Federal funds and assistance programs.

Federal powers in the United States enable directionand priority-setting by the national government inrelation to individual States and their water qualitymanagement (Figure 10.). Relations with individualStates are highly charged and based on hardbargaining arrangements where States seek variationsin aspects such as standards, load limits ortimeframes required and prescribed by the UnitedStates Environmental Protection Agency (USEPA).

This Federally interventionist and funded approach is,in theory at least, a strong basis for a nationalframework for river management particularly inrelation to water quality. The same administrativemodel applies for wetlands, estuaries and coastalmanagement. An approach more reflective ofpartnership would be in closer harmony to recentadvances in river management and restoration inAustralia.

��

Water quality problems are receiving recognition atlocal, regional and national scales. Key drivers movingthe water quality agenda forward in recent times havebeen:

• The two major national developments: theANZECC, NWQMS and COAG 1994

• Acknowledgment of a water quality crisis at anumber of scales through:

• State of Environment assessment of Australia’sinland rivers and marine waters;

• fish surveys in the Murray–Darling, our majornational river system; and

• outbreaks of blue-–green algae and microbialscares in vital water supply catchments.

• Recognition of the sizeable contribution of diffusesources to the problem and the need for multiplesolutions—legislative requirements linked tomarket mechanisms (tradeable discharge rights,cross subsidies from point sources to managementof diffuse sources) and to public financing ofincentives.

• Increasing community awareness and extensivecommunity involvement in land and water careprojects.

Legislation which dealt with water pollution throughan approach based on a single solution, universallyapplied, may have had some success when the focusfor water quality was mainly on point sources. As thefocus shifts now to diffuse sources, legislation’s focusand its modus operandi is changing accordingly.

�� % �� " ��(� ��!�

� �� 5* ��

7:K+,,�� • 4� ��&�� O��&��

�� '�� !��'�� 1�

��&'�� '��

�� &��;� ��<�=

• +��!��!�� !&��'��!��

�� !��!�� !� ��

�� 3��!�#--��=

7*3,7:K�� !�� • B�� ;��!��!� ��!��

�� !�� <��7�� #--C'��=

�=�C�=

• 4 �� !��1�O9��!�,��'

7��!��,�� 7� ��&�,��=

• 9��!�,��O�� !��

��!�� !� �=

• 7��!��,��O��"��6�� !��

��"�� '�� =

• 7� ��&�,��O��!��

�!��

��'�� '�� =

��

�� & ��(� ��!�� )��

� �� *��2�)

7�� '��!�� !�B�7�� &��!�2��

��=�4 ��!�� &��%��&'��!�� !�� !��2��

�� !�� !�

• ��"�� 7��!�!� !�&��%�� 2��

��&� ��!�2��%��

• "��#��$��%&'(�

• 2��)��%&*+��,�� $��7��'

• ��,�-.��%&(/��%&('6

• ��0��%&*+'

• ��)��%&1'2��%&'12

• 3��)��%&'(=

• A!�� !�,�� $��7��,$7�'�� %��&=�4��

� ��!�� !�

• *%�� !��$��*��,� ��)��$*,)�� !

,$7�� +�7=�* �� $��H��&�,� ��)��!��)��

�� &��!��&�� !��!�

�� $*,)��=

• *� 1� ��!�� !��! �� &@�� !��!

!� !��&�� ! ��%��!�� '��

��

• A!�� &��A/3>��

�� =

• 2� �� !�� =

• *%�� !��:� @�� 3� � � �� D��!�2��

�� =�A!��!�� @ ��&��!��D� � ��'�� ! �� '��

�� =�*��!�� 1� �� &��!�=

• B�+�7��!��; �� <�� !�� !��!�!� !��1��

�� 6��%�� !�� !�� !�%��

• /� �� 2�� /��!� �+�� '��!�%��

�� 6��&��&��!��

• 2� �� !�� &�� = =��

��

%�� !�2�� &��'��5��!��!�� %��

��

• ��7�� %�� !��"�� = =��#��

4%&(15=�A!��7�� =

2�� !�� !�� !�� =

• �� 1�� &�� ,��K� �� ,�� $��7��O�� !� � ��%��

�� '�� B�+�7� ��

��?�� &�� '�� =�7�� ,�� @��

�� 1� =��,�� ,��

,�� =�=�'�A!�9��*�� 4 �� , �� =�=��

��

0��"��

��%��

Legislation for water quality has achieved a degree ofuniformity across the States as evidenced by a nation-wide releases of Clean Water Acts by the States in the1970s. The next era saw the incorporation of waterquality into broader ‘environmental protection’legislation, with more comprehensive schedules ofpolluting activities, more stringent licence conditionsand stiffer penalties.

��

Presently, all States have environmental protectionacts supported by environmental protection policies(State Environmental Protection Policies [Vic],Environmental Protection Policies [WA, Qld, SA],Protection of Environment Policies [NSW], andSustainable Development Policies under the StatePolicies and Projects Act 1993 [Tas]). Environmentalprotection relates to all contaminants and theprotection policies are subsidiary legislationspecifying requirements and processes in relation tonoise, air, water quality or selected geographic areasor in key activities (e.g. mining).

��

Two primary trends have impacted on the legislativeframework for water quality:

• the move away from reliance on standards to setlimits on discharges to a focus on ambient waterquality; and

• the move away from the focus on point sources toa combination of point and non-point sources ofwater pollution.

The degree of uniformity evident in the environmentalprotection legislation can be attributed largely to theANZECC NWQMS, a strategy based on the evolvingscience of water quality with a view to reformingwater quality management. The guidelines developedunder the NWQMS enabled the focus to shift fromend-of-pipe estimates for protection of water qualityto a focus on ambient water quality and its tolerancelevels for various pollutants. The use of ‘standards’for discharges and for ambient water quality was theinitial approach. Now, in the late 1990s, the emphasisis on risk assessment of activities and the ‘tailoring’ ofwater quality requirements to environmental valuesand specific conditions of a selected water body.

This evolution of water quality requirementsgenerated fundamental changes to environmentalprotection legislation as well as to legislationindirectly affecting water quality.

*��

For three decades, licensing has been the primarymechanism for pollution control. This was the vehicle

for the traditional ‘end of pipe’ management method.Licences control discharges and emissions throughthe setting and enforcing of licence conditions. Theeffect of licensing was mainly enabling environmentalagencies to know the pollutants produced by anindustry and to enforce conditions generally ifbreaches were detected. Pollution prevention andelimination objectives were addressed throughlicensing until environmental protection legislationbecame serious about penalties, strategic aboutpollution as ineffective waste management, andincorporated incentives for industry compliance.

In recent years, licensing has undergone changes.Licensing systems are moving to encourage voluntaryproactive improvement of environmental performanceconsistent with the concept of best practiceenvironmental management. This shift in approach ispart of a change in environmental managementgenerally.

The main elements of this new approach incorporatebest practice licences, codes of practice, self-monitored licences, incentive licences, and load-basedlicence fees. Industry self-regulation through codes ofpractices and certified Environmental ManagementSystem (ISO 14,001) and regulation negotiation(termed Reg-Neg in the USA) are also part of thesetrends. While it is early days as yet to judge theresults of this form of de-regulation, environmentalgroups have expressed the need for legislation to holdthe bottom line in terms of performance requirementsand not to rely excessively on industry self-regulation.

Environmental protection legislation will continue toutilise licences and works approvals for control andmanagement of point source discharges fromprescribed premises. The shift however is towardsmore holistic, target-based approaches where overallwater quality management is planned for, and licencesare issued in the context of desired water qualityobjectives. Licence conditions are specifyingmeasures for minimising and even eliminatingpollution through requirement to recycle waste andthrough fees scaled to account for discharge levels.Tradeable emission schemes, such as operate in theHunter Valley (NSW), could be useful here.

��%��-��%��.��+

The move away from licensing of ongoing pollutionand reliance on licensing of point sources for waterquality protection is a fundamental shift. Theemphasis on multiple mechanisms for managing pointand non-point source means a number of otherlegislative mechanisms become critical to waterquality. For comprehensive protection, water qualitythen has to be addressed through:

• Legislation relating to activities and land useswhich impact on surface and groundwater forexample agriculture, forestry, mining, industrial

��

�� " ��(� ��!��

� �� )��

$�� 5��$7*,��!�� !��

��$��7��!��&�� $�� *��,��

� ��$��,�� =�$7*,��

��

�� '�� '��

�� !�� =

$7*,��!�� 8� ��

�� '� ��

��1 �� 6��

� ��8� ��

��

�� 6�� !�

�!��!�� !�� =��

��!�� !��&��!��

�� %��&�6��!��!� �

��

• ��&�#��!��!�� O

�� '�� '� �

�� =

• ��&�5��!��!��

��&O�� !��!� '� �� =

• ��&��!��

%��!� !�� =�<� ��

�� !� ��!��

�� !

3��)��%&('=��

��!��&�� 1��

��

��

,�� $��7��

+ ��

7��$��

��

,��!� ��3� � � �?

$��7��

$��%��&�� !�� !�

* $��*��7��

* + �� 7��

* �� !��

* ,��!� ��

* 3� � '�� '�� &

��

P#--�� #--�� Q5��

��!� ��

�� 6��+��!��!

�! ��!��!��=

+�� 3�� ,�� >� ��

�� ?�� '�� 6

+�� ,�� >�1��#--5��

�� 1�6

+��D9��&�+��&�#--5��

��&��!��!��6

+�� I�,� � �+��&�#--��=

+ �� 7��#-.C�%��

�� =�A!�3� ��+ �� '��

�� !��!�� 1� ��!��&'��*�

�� !� �� &��!

��=�� > �� 7� �� 3� ��

��!�� 6��!��!��

�� *��%

��)�� 5��

�� !��!��!�� !��

�� &=�3��

� �� !��1��

�� =�A!�3��

�� !��@��!� ��"��=� =��

�� !��!�� &�� !��%��&��

%�� &6� �� !��!��

�� '��1� ��

�� =�*%�� !�+�7'�$��

� ��*��,�� '��!�� 3��!�#--��=

�� !��" ��(� ��! �� &��

activities, urban development, utilities and riverengineering.

• Legislation managing specific environments e.g.catchment management, coastal protection

• Legislation protecting use of and access toresources e.g. land, soils, forestry, fisheries, water;including occupational licensing for those engagedin resource-based activities (Figure 11).

Administration of the legal framework for protectingwater quality is critical to its achievement. TheWestern Australia case study (Table 9) demonstratesthe problems of fragmentation of pollution controlresponsibilities across agencies.

A multiplicity of decision makers exercising powersunder different pieces of legislation does notnecessarily lead to the conclusion that water quality

��

is adequately protected. This type of system lendsitself to fragmentation and the resulting danger thatpowers and functions overlap and that decisionmaking is not integrated or directed towardsachieving the same, or even compatible, goals(Figure 12).

�� #��" �� +��

��

$��%��&�� A��&��

/��!� �� >��%��&

��"��

>�� >��

� �� !�

A� �@��'��!

,�� ,��

��

2�� 4 � �� '�� '

��1��

��!� ��

3� � � ��&�� &

3�� '��

� � ��'� �� ?��

�� &��

��!� ��?� ��

��

&�"��#�$��%��.��#��

Management of point sources has been addressedprimarily through a reliance on environmentprotection legislation. Legislation for management ofdiffuse sources however will require a more diverse,innovative and comprehensive legislative frameworkinvolving land use control, pollution prevention,environmental impact assessment, resourcemanagement and catchment protection.

��

Water quality objectives, and ecological sustainabilityin general, need to be incorporated into legislation.One method for this is the use of objects clauses, dutyof care statements and principles. These should beincorporated in the full range of legislation governingwater quality directly or indirectly, including:

• State planning policies—this would apply to alldecision makers when water quality could beaffected.

• new water quality legislation or an umbrella Actgoverning all decision making related to waterresources.

• all State legislation that affects water qualitymanagement and the management of other naturalresources (Mascher 1997).

In Queensland, the Environmental Protection Act 1994imposes a general statutory environmental duty. Thisduty may be enforced through mechanisms in the Act.An environmental duty requires all persons to take allreasonable and practicable measures to prevent orminimise the occurrence of environmental harm.

In South Australia, the Water Resources Act 1997strengthened links between water quality and waterquantity through its clear statements of the Objects ofthe Act. It also strengthened the link betweencatchment management planning and landdevelopment. Any inconsistencies between catchmentmanagement plans and local planning schemes are tobe rectified, though this has not yet been tested in anysubstantial way.

��

Water quality objectives form the basis of waterquality management plans, and for subsidiary planssuch as those for nutrients, sediments, stormwaterand sewage treatment. These in turn need to beincorporated into other plans making up theinformation base for an area’s protection and resourcedevelopment. Examples of these other plans includecoastal, vegetation management, agriculture, waterallocation, agricultural or residential development,salinity management.

Water quality objectives must also inform statutoryplans, for example local planning schemes, and anystatutory catchment and coastal plans. Modellingtools are increasingly available to inform strategicplans about different land use scenarios and resultingwater quality regimes.

�� & ��(� ��!� ��" ��(� ��!� �� %�&�

$��%��&�� %�� &��

�� '�:�$

4 �#--.'�:�$�� !��*��&��

�� :�$��=�A!��

� � ��!��

��

� �� =

A!��

��'�� !&�� !��!

��!��!�� '�� 1��

�� =

A!��!��55.��!� ��=��!� !

��&��!�� '�##5

��!� ��#C=0��&�� #�.��#�=-��

��&=�5�5�� />$,�#--.�=

��

�� +��, !��)��

��5*�� > �

3�&�� '�� !�� !�B ��

!�� &��#-.��

��!��3�&�� <��"�� ,!��1

)�&��&�0��'��==�� C��#-.��=

A!�� !��!�7��7��'�3�&�� <��

�� !

�� !'��

�� !��!�)�&=��

��!��!��&��

��!�� &��

�� =

4 ��6�.��#�� '��!��!��!��

�� &��

�� @�� !�� !��&� ��

� �� =�7��'

3�&�� <��!��!��

��!� �� !��!�� !�� &�=

�� !��

• ��"�� !�� &��

��

• �� &@� ��

�� !��'��

��

• �� !��!��

��&��

• ��

��&��

• �� !��&��!��

� �� !=

4 ��!�� *��!�'��!��

��!��&�5�#�� !

�� /��!��

�!�� !�� !��!��'��

��&� ��

• � �� !

��

• �� !�� !��

• �� !��

• ��E� � ��

• ��!�� !��

• ��

• ��

• ��

A!�� 3�&�� !��!�� !

��'�� !�� !��!�� '�E� � ��

�� '�!��"��&��

�� =�/�� !�� &��

��%��&�� %��!��!��#��'��

��'��%��&�� ##.'��

� �� &��@��!�� '-��=

�� *��,�� #---�

NSW is planning for its rivers through integratedriverine strategies (Figure 13). Priority rivers underthe State Rivers Policy, have been identified andplanning effort is targeted at these. The plansthemselves are based on water flow objectives andwater quality objectives. The resulting riverine plansare not statutory. They need integrating with estuaryplans, coastal plans, floodplain management plans,Local Environmental Plans as well as informingdecisions for licences for water and for discharges.

'��%��

When priority is given to water quality protection, theright to unfettered development in every catchmentcomes under scrutiny. The alternative is to set athreshold or cap in pollutants which can be exportedto a water body, necessitating a limit on developmentin certain catchments.

Based on pollution load limits of receiving waters,thresholds can be set for the scale and types ofdevelopment permitted in a catchment. TheChesapeake Bay example (Figure14), based on theSmart Growth Areas Act (date) planning legislation, is acase study of catchment planning for nutrientcapping.

��

The effectiveness of water quality protection andmanagement will depend on the success of integrationof water resource management, land use allocation,catchment land management and environmentalprotection functions at the strategic, regional andlocal levels (Welker 1996).

In Queensland, for example, the Brisbane River isprincipally managed through the Water Resources Act1989 but at least 41 other Acts have significant impactand are administered by at least 22 different Stateagencies. Additionally, another 32 Acts, plus a range ofsite-specific Acts, impact on the Brisbane River’srestoration. There are also the town planningschemes, policies and local laws of 16 localgovernments. The situation is generally similar forother Queensland rivers; at least 70 Acts actioned byat least 38 State and local agencies plus localgovernments apply to all Queensland rivers (MaryMaher & Associates et al. 1998).

Victoria’s method of ensuring protection andmanagement through extensive institutional reformand founded on catchment administration is outlinedin Figure 15 (see p. 42).

��

��

Any desired increase in public policy intervention todeal with current pressures on water quality can onlybe delivered with creative use of stakeholdermotivations and partnerships. This era ofcommunication, public participation andpartnerships, and devolution of powers is a strongtrend. Regional and local planning, service deliveryand enforcement will depend on appropriatedelegation of powers as well as appropriateresourcing, central leadership and advocacy aboutwhat is necessary to protect ecosystem and human

health. Downsizing of agencies at all levels means allthis activity could take place in the context of a severeshortage of public funds and resources.

Most States/Territories are moving towards using ahierarchy of plans accompanied by clear definition ofroles and responsibilities at all levels. Deciding whichmatters are best addressed at which level is critical.Decisions are often made too remote from where theresults of them are felt. Conversely, at the local level,difficulties may arise about making the tough political,economic and ecological decisions given the pressureof multiple and often conflicting missions. A balancehas to be found between State/Territory decisionmaking to establish the principles and set theframework, and local decision making to adapt theframework to local circumstances.

��"��1��

No single agency, no single program, no individualinitiative can deliver protection and management ofwater quality in Australian rivers. Nor is a plethora ofprograms, agencies or policies any assurance that itwill be delivered. An appropriate water qualitymanagement system is a complex mixture ofprocesses, mechanisms, principles and policiesadministered by a number of Government agenciesand applied at the State, regional or local level (Welker1996).

At the industry or farm level, agencies and programsmust be integrated, without competition forrecognition, power or control between the agencies.Plans may be developed but if there is no cooperationbetween stakeholders and competition betweenagendas then the causes and management of waterquality problems, particularly diffuse nutrientpollution, will not be addressed. Without strongleadership social, economic and environmentalpolicies will conflict.

A desired future requires leading, rather than beingled by, change. Such leadership requirescommunication of information, active publicparticipation and changes in governance (Mitchell1999).

Legislation needs to facilitate these elements of waterquality management. Legislation on its own will notsuffice however, and must be seen as one part,important as it may be in setting the scene for mostother measures, of an overall package of measures.The question of how much reliance should be placedon legislation pervades this exercise.

Figure 16 summarises changes to water qualitylegislation and the main mechanisms for its operation(pre 1990, 1990s and beyond 2000).

�� -�� .��

4 �(��!�� -��)��%&&7��

�� !� �� =�A!��!��

��&�� !��=�B �

�!�7��'��!�(�� ,��!� �� >� �� ,��

�� !� �� '��

�� !�7��=

2��#�8��&�#--�'�,��!� ��3� � � ��7��!��,37��

�� *,��

L��'�� !�� &��&��

��&� �� !��@��@��!� ��!��!

�� &�� '��

�� '��%��&'�,�� !��

�� 1�=�A!&�� !��!��

,7>�)�'�� !��'�� &��

��'��%��&� ��

�� =

��

�� !�� =�4��

��&=

A!�7��

�� =�>� �� %��1��

��=�A!��&�� !

��-��%&(*��

�� @��&� �� =�A!� ��

��!�� '

%�� &�!� ��

��&=�4�� &=�9��!�,�� '

��3� ��&�� =

7�� !��&��!�� !� ��

��!� �� &�� =�A!�7��

�� =�4��!��!�$��

7��#-.-'��!�3��)��%&*/�� !

)��3��%&*/=

3� �� !� ��

��+ �� '�� 1��!�

�� =�,��!� �� >� �� )��

�� 1�� !��<�� =

��

��$��.��"��

Critical success factors for water quality legislationare identified as:

• statements in the objects and principles oflegislation which ensure resource use and access isaccompanied by river management and restoration/ecosystem protection expressed as the over-ridingobjective;

• rationalisation of conflicting legislation andincorporation of water quality into all relevantlegislation and simplification;

• catchment-specific definition of water qualityobjectives and management mechanisms;

• clear definition of the hierarchy of responsibilitiesfor policy-setting, planning, management andimplementation in relation to all key legislation forwater quality;

• enforcement and administrative measures aimed atconsistency of agency approaches, culture changeabout pollution elimination, as well as achievingsuccessful prosecutions;

• setting up participation arrangements for planning,implementing and reviewing progress at the correctlevel;

• ensuring public accountability for impactassessment, licensing and planning processesparticularly where agencies have discretionarypowers; approval processing arrangements whichare streamlined but not restrictive of appropriatelevels of agency or community review;

• greater use of land use planning powers includingcaps on further development in stressedcatchments (smart growth) and incentives forpreferred development;

• ensuring funding for implementation throughrevenue raising powers and cross-subsidies (pointsource to diffuse source management);

• removing obstacles to economic measures such astradeable discharges or cost-sharing programs;building regulatory incentives for best practices byindustries and agricultural land uses (linked topublic financing innovations); and

• accountable administrative measures for ensuringan effective and credible system of industry self-regulation or any co-management arrangements,and third-party appeal and injunctive rights.

�� '�" ��(� ��!�

��$,,7� 5�� :��

/��!� ��

$,,7� ?�� 8��

+ �� %��&��"��

/��!� �� N $��%��&��

9&777 � �� :��;�� *��

��%��&��& ��!� �� &

$��%�� &

N

$��%��&��"��

$��%��&�� !�� !�� '�� !� �

>��R�

3� � � �� • ��

• ��

• �� &

• @��

• ��

• ��

9� !��1��• #��!� !��1��

�� • ��1��

;��<�4,3• �� !��!� ��

• ��!��!� ��

• ��

• �� &�)3��

>� 1��• ��

��!� ��• ��

�� • � � ��

• ��J�!��&��

��

,��

Riparian areas are a significant ecological element ofthe Australian landscape. However, they are affordedlittle or no active protection or management underexisting legislation. In the Australian landscape, theirutility value is high: for grazing, agriculture,extraction, housing and recreation. Riparianvegetation controls the export pathway of sedimentsand nutrients to rivers. As Cullen (1999) noted at therecent International Conference on Diffuse Pollution,the key aspect of land management in the droughtcontext is keeping some vegetative cover on the landaround the river.

Little distinction has been made between managementof the land and management of the adjoiningwatercourse. The linear nature of riparian corridorshas not had recognition in the thinking of adjoiningland managers except where the water resource itselfhas been threatened.

Given the significance of riparian areas and theircritical condition across the country, this has becomea serious oversight.

Riparian area protection and management is part ofthe larger policy framework for streams as a whole,their protection and rehabilitation. Several policygoals may be pursued for riparian areas as part of anoverall river system. These goals range across:

• protection of high conservation value riparianareas;

• slowing the processes of degradation, or gaining alevel of control over degradation;

• stabilisation and maintenance of existing riparianconditions under circumstances of ongoingdegradation pressures; and

• rehabilitation or improving upon existingconditions, restoring to some identified originalcondition.

Protection and management efforts will differdepending on the policy goals sought. The legislationthen will vary in both content and its operationalmechanisms depending on the preferred goal(s).

This policy intent will also vary spatially andtemporally and river management legislation needs toprovide for these variations in intent.

Working with these policy goals is not astraightforward matter. In essence, river systems andtheir riparian areas have been subject to majormodifications. Where river managers may gain somecomfort from the prospect of targeting managementefforts at a degree of protection or rehabilitation, the

reality is that the forces of change acting on rivers, inthe past and presently, seriously limit what ispractically achievable in modified systems, and whatlevel of ‘return to a past condition’ is politically,socially and ecologically possible.

Discussion of relevant legislation here proceeds froman analysis of existing legislative approaches toriparian areas, an outline of legislative trends,identification of critical gaps and limitations ofcurrent legislation, and a scoping of criteria forlegislative best practice in the future.

��

Riparian land is land that adjoins or directlyinfluences a body of water. It includes:

• the land immediately alongside small creeks andrivers, including the riverbank;

• gullies and dips which sometimes run with surfacewater;

• areas surrounding lakes; and

• wetlands on river floodplains which interact withthe river in times of flooding (LWRRDC 1996).

The difficulty of drawing demarcation lines betweenthe terrestrial and aquatic aspects of riparian land isone challenge for resource managers. Distinguishingbetween the two becomes most difficult in areaswhere rivers have extensive floodplains or largeseasonal variations in water flows. The riparian areaof streams in drier parts of Australia is also difficult todetermine due to poorly defined channels caused bylow gradients in the land and high variability of flows.

These demarcation problems underline the significantrole which this land plays in the interplay ofecological processes between land and water in anylandscape. This significance derives from the habitatand biophysical conditions it supports by virtue ofthe connection it maintains between these twoenvironments. While there is a good deal of literaturedocumenting the degraded state of these areas, workstill remains to be done on stream behaviour,particularly in specific environments, as well as casestudies of stream management practices andtechniques.

In most landscapes, riparian land is often the mostproductive in biodiversity terms because it hasdeeper soils, greater soil moisture and, as a result,denser and more diverse vegetation for wildlifehabitat. Effective management of riparian landsinvolves protecting riparian values and rehabilitatingthe riparian area (Table 10.).

!� ��

��

Desirable ecological outcomes will then be expressedin terms of:

• width of riparian vegetation cover, depending onstream order (the higher the stream order, as takenfrom the stream’s source, the wider the riparianvegetation buffer needed for the stream);

• percentage of vegetation which is in good condition(structure, composition, weed cover) and habitatconditions for flora and fauna species;

• percentage of vegetation which is intact orunfragmented throughout stream length(connectivity of vegetation, composition andcondition);

• inundation by water from stream or overland flow,resembling natural levels and frequencies, andcomprising sediment, nutrient and other chemicalcontents similar to the composition in naturalflows; and

• percentage bank stability or instability andpercentage differences in rates of change to banks.

These outcomes need to be tailored to specific partsof the waterway. Buffer widths, bank stability needsand corridor widths will vary with stream length.

Development of measurable aspects of riparian areasare the subject of extensive investigations by researchgroups such as the CRC for Catchment Hydrology,Monash University; and the Centre for InstreamResearch, Griffith University. No single formula forbiophysical protection or rehabilitation is possible.

Targets, thresholds or ‘caps’ on riparian areaconditions are not only the domain of scientificinvestigation. Resource managers must examinesocial, economic as well as ecological objectives todetermine the formula for riparian area protection ormanagement.

Ecologically, the formula will be determineddepending on the specific river conditions and on thepolicy goals for the river’s protection, rehabilitationor stabilisation, adopted for the stream as a whole orfor reaches within it.

��

Cripps (1998) found no clear recognition in legislationof riparian management. It is treated as a sub-component of land use and land management, thoughlegislation relating to water management is alsorelevant. For riparian areas, values to be protectedalong with pressures to be managed through thelegislative framework relate to the following:

Management of direct pressures on riparian areas

• Encroachment or degradation from land-basedactivities such as those resulting from pastoralismand agriculture, settlement and infrastructuredevelopment.

• Changes to flow dynamics from river worksactivities including bank stabilisation, alignmenttraining, levee banks and stream clearing.

• Flow velocity and volume impacts from streamchannelling by straightening, enlargement andrealignment for navigation, drainage, agricultureand urban development.

• Flow regime impacts from flow regulation, waterstorage and diversion including dams, weirs, flowdiversions for water supply, irrigation,hydroelectric power and flood control.

• Changes to habitats and bed and bank conditionsthrough aggregate extraction and mining.

• Bank and channel impacts from recreation.

�� / � ��

�� * �� *��

• ,� �� '�� '�� • !��!&��%�� !��&��

%��&'�� !��1�'�� !'��

��

• *�� '�� &�� • !��!&�� @�� &��'�� @

� ��

• 7%�� • � ��

• $�� &�� • �� 1�

• $�� &� �� '��!� �� &��

• ��'��!�� !� ��!

�!� �

• �� '��

• �� @��

�>$**/,�#--C�

��

Management of indirect pressures

• Modified water and sediment flow regimes throughcatchment land use activities such as agriculture,forestry, urbanisation.

• Pollution from diffuse and point source dischargesbrought by runoff from catchment activities.

Protection, conservation and restoration

• Natural water flow conditions and water qualityconditions in relation to the riparian lands.

• Vegetation cover, and the structural complexity ofvegetation communities, and fauna species/communities.

• Rare and threatened species.

• Connectivity (along the stream and with thefloodplain) and the associated exchange of water,nutrients, sediments.

• Stability of the stream channel and banks.

• Wild or heritage rivers, or reaches within them.

Much legislation to date has been directed towardsprotection and management of the water resourceitself or of the productive lands alongside the stream.Very little of it has been directed towards protectionand maintenance of ecosystem values.

Ultimate control over riparian areas rests with theStates and Territories. Riparian protection andmanagement is exercised through a number oflegislative mechanisms.

Table 11 summarises the mechanisms available forriparian area management through legislation up to1998. They are grouped into four categories ofmechanisms that may specify protection andmanagement requirements in terms of:

• riparian area protection through planning such asland and/or water plans;

• permits, licences and procedures for obtainingapprovals or demonstrating compliance withconditions;

• penalties and requirements for repair, rehabilitationor dealing with illegal activities; and

• structures and processes for administration ofplans or permits.

�� '�� !��$��

5 �� * ��

� ��!��

��'� �� '��

$��

3� � � �� !� �

�� '�� '��

�� '��

,� ��

��&��

,� ��

/��

>��

�� ?��!�� = =

��

>�� !��

��!��

,��

* �� 4 ��

>��'��

>�� '��

/��

��'��

4��

�� !�� !� ��* ��

/��= =��

��

:��= =�� '��

��

J��&�� = =

��

�� = =�� '

!�� '��&��

� �� '�!�� @

� ��

7 � ��?�� !��

�� &O��&�� &

� � ��

)��

,��= =��!� ��

��

7��!��)��,�� = =��

��

A��= =��!� �� '

��

,��

��

(��"�#��!��"��"��

01��2��

Across the States and Territories, legislation presentsconflicting concepts of the riparian zone. In NSW itrefers to areas within 20 m of the bed or banks (NativeVegetation Conservation Act 1997, s. 7 NSW); but inQueensland, it refers to all land within the high banksof a stream or lake (Water Resources Act 1989). Thisconfusion about the term ‘riparian’ makescomparisons between legislative provisions difficult.

Each State can be said to have legislation that allowsor enables riparian protection and managementthrough both planning and enforcement provisions.This potential to address riparian needs is mainlycontained within the general legislative provisions ofresource management and land use planning, for bothpublic and private lands. However, no specificreference is made to riparian protection.

In addition, there is legislation that relies on thenomination of specific locations or types of riparianareas (particularly soil erosion problem areas, keylocations for water resource or catchment protection,or ‘critical habitat’ for threatened species). Thisnominated area legislation may restrict specific usesor activities such as destruction of vegetation, or itmay require impact assessment of specific uses.Under this legislative framework, most of theplanning, enforcement provisions and incentives forriparian management have to be triggered by aconcern or an issue rather than on a strategic basis.

Protection and management of riparian areas is notsystematically undertaken through existing legislativeframeworks across the States and Territories, thoughlegislation generally does not prohibit such aproactive approach.

3��

Any actions aimed at protection or management ofriparian areas must recognise the predominantlyfreehold nature of the tenure of streams and theirriparian areas which exists throughout Australia.

Queensland and Victoria acted in the last century toprotect the stream bed and banks by declaring theseCrown land (Table 12).

Crown land is subject to its own legislation andassociated legislation where land is leased; privatelyowned land is covered by land use legislation (Cripps1998).

In Victoria, the problems of ownership are wellillustrated despite the scope for achieving betterresults. Last century, Victoria acted to preserve someareas of river frontage for public purposes bydeclaring the bed and a specified distance from eachbank as permanently reserved in the form of crownland. The rationale for this involved a mix of

objectives including continued public access towatercourses, restrictions on landowner monopolyover their water, and development of water-relatedpublic utilities (Terrill 1998).

The reality however is somewhat less than envisaged.Where frontages are publicly owned, the width of thereserve varies: from 20–60 metres. Terrill claims thatmuch of this publicly owned land has been licensed tothe adjacent landowner, to be managed as part of theadjoining farmland. Licence conditions, for examplethose covering controls over clearing, vary across theState and these licences have a maximum life of 35years.

The result is that the public frontage to rivers and itsassociated management regime in Victoria, is eithernon-existent at the least; and non-continuous at themost (Terrill 1998).

… Land tenure has the potential to restrict(agency) management activities where existingland management is incompatible … particularlywhere pastoral leases exist over ecosystems orwhere Native Title claims have been lodged.Management activities may be restrictedaccording to the wishes of the lessee or claimant.

(Allan & Lovett 1997)

��

�� )��

3��FF 7�� !� !��1��,�� >� �

,�� !��!��!

��!�� 1

�� 7�� !� !��1��,�� >� �

7��!� !��1'��

�� 1��&��!�� !��

� ��!��!��!

�� &�

�) ,�� !��)��

�� 1�� !��!�� !��!��

�� !��

�*� !�� $��I�4� �� 7��!��!��

�� &�,��

.��FF )�� 1��&��&��,��

��$�� J �� '�5�D

C��!�� 1��,�� >� ��

S�5�'��1�� ;��<�� .'��

1�� &�� =

�) J� �!�� 1��!

�� !�� 6��

�� !��;��<��

�&��

# � 3�� @�� !��6

�� &�,��

��7��'�H/:*�#--.'��=��=�

��

Private property in itself may be a positive rather thanan inhibiting feature. Motivation, a much neededingredient in improved techniques and continuousimprovement of rivers, can be very high for privateproperty owners. Public lands are not necessarilybetter cared for. Certain policy goals sought forriparian areas (e.g. rehabilitation) may be morereadily realised under private ownership dependingon incentives or support arrangements.

Protection however may be more difficult where aproperty owner faces high opportunity costs from adecision taken to protect and conserve riparianvalues along the stream banks or in riparian buffers.

As Fisher (1987) points out, powers of interventionhave considerable potential to impact on the commonlaw status of landowners and occupiers. Executivepowers to intervene in the resource use activities ofprivate owners/occupiers have grown substantially.

With the maturation of natural resources legislation,one extension has been the provision of more detailabout how all these approaches allow for the exerciseof legislative powers. Policies cannot simply bearticulated overnight; not just because of traditionalcommon law restrictions, but also because thestatutes increasingly incorporate statements ofpurpose and limitations about the use of the powersin the implementation of policies.

Ownership then is a mixed blessing for riparian areas.Private ownership brings challenges of conflictinggoals for ecology and productive usage. Publicownership does not ensure achievement of thebalance between ecological and economic objectives.Tenure-related legislation alone cannot deliverprotection without the accompanying set of policydirections for that protection and management. Thestatutory framework then for riparian managementmust define these ecological objectives and make fulluse of the powers in the legislative provisions whichdirect usage of land in private or public ownership.

4��%��

Riparian areas of high conservation value may occurin several settings ranging from degraded to highconservation value rivers. In terms of highconservation value or ‘wild’ rivers, the lack of actionspecifically aimed at addressing protection needs isnotable, despite numerous investigations by mostStates and Territories in the last decade (Kunert &McGregor 1996).

Most States and Territories have a variety of Acts withthe potential to protect aspects of wild rivers(e.g. forestry, parks and wildlife, environmentalprotection, environmental assessment, planning, soilconservation, land, coastal and estuarine protection,water supply and Crown land management. Only

Victoria however has enacted legislation formanagement and protection of heritage rivers andnatural catchment areas; NSW and Western Australiahave incorporated protection into policies (Table 13).

�� 0"��.��

3��!�# �!��)!

�(��7�� '��&'��'� ��

��1�'��

��@

/��+��$�� *��*��&

��%��&��"��'��"��'��

��

�)@

+ ��

$��I�*��,�� 7��

.��@@

8��$��#--5��!��

�� '�� 6��

:��,��!� ��7�� !�� !��!��

�� '��!�� '�� '�� '

��'� �E� '�� #.�9�� *��'

5C�:��,��!� ��7��#'��D#�'��T!��3� � � �

��

�� =

From the specific summary above, it is apparent thatnot many States and Territories have sought todevelop legislation which proclaims the values to beprotected or the activities prohibited in their highvalue river systems. Without this recognition factor,the risk is that high value rivers are subject todecisions about the river or its catchment made bynumerous agencies.

In most States and Territories, different agencies areresponsible for various resource decisions forexample, forestry, minerals, water, impact assessmentdecisions are taken by separate agencies.Notwithstanding the argument that these decisionsmay be taken as whole-of-government decisions, thelack of recognition of high conservation value riversin themselves makes it difficult to assume thenecessary protection regime is assured.

Protection and management of high conservationvalue rivers, and their accompanying riparian areas,has not received recognition as a discrete rivermanagement policy goal in most jurisdictions inAustralia. No information is available as to the

��

effectiveness of existing legislation for theirmanagement. In most States and Territories, heavyreliance seems to be placed on protection throughlegislation for national parks and native vegetation.This is an indirect and inadequate approach.

Legislation is needed which ensures:

... conservation of wild river values – byprotecting them from hydrological, geo-morphological and biological disturbance and byallowing the associated natural systems andecological processes to continue indefinitely.

(Kunert & McGregor 1996, p. 31)

Table 14 shows international examples of managementof wild and scenic rivers.

6��%�

Water flows to and from riparian and riverine land is afundamental feature of this ecozone betweenterrestrial and aquatic ecosystems. Under naturalconditions, these flows provide hydrological, chemicaland biological sustenance to the land. Overland andunderground flows also provide vital chemicalsupplies to the aquatic ecosystems.

Under regulated or otherwise modified river or landdrainage conditions, the riparian area may bedeprived of seasonal variations in volumes andsediments or it may experience unnatural fluctuationsin seasonal or daily regime. In many parts of Australia,riparian areas also experience crippling acid-sulfate orsalinity problems as a result of flows from land whichhas been drained or cleared. The problems aretransferred to the stream.

To date, the legislative basis for managing this aspectof riparian areas has been addressed only insofar asgeneral legislative provisions have affected riparianand floodplain water movements. Since COAG 1994,water flows to riparian areas will be treated as part ofthe process of defining environmental flows. Socialand economic as well as ecological assessments areprogressing as part of this process. Ensuring flows tosustain riparian areas and their communities is alitmus test for the formula set as the basis forenvironmental flows.

7��

Certain developments of private and leasehold landrequire agency approval, either by local governmentsor lands agencies in terms of leasehold land.

Approvals may be treated as individual projectapplications assessed against criteria (e.g. primaryuses or secondary uses of leasehold land). In theseinstances, there may or may not be a requirement forenvironmental protection.

In the case of planning schemes administered by localgovernments, protection and/or riparian arearestoration may be built into the zoning orperformance requirements for an area. Withoutpreparation of the environmental strategies(e.g. catchment plans or waterways plans to informthem) planning schemes will not generally makeprovisions specifically tailored to the full range ofriparian area needs. These needs must also be builtinto the triggers for and extent of planningassessment needed in relation to various land useactivities.

�� $ ��'�� "��

5�� )��6�� 6��

B �� #��$��%&'(2 �� '�� '��

�� "�� 9��

��

��:��

��

,� �� :�� &��,� �� 9�� *�� #�� &�� !�� '�!��

!�� '�� ,� �� 9�� *��

)��!� ��

,�� 6

*�� &�,� �� 9�� *��)��'

��

$��

:��K�� $��%&&% #�� &��,� ��

�� %/��2

��;��<��

"��.��

��M� ��I�3�� #--C�

��

However, these schemes are subject to exemptions inlegislation, which often include most land activitiesimpacting on rivers and their related riparian areas.For example, it is a matter for concern that localgovernments have shown reluctance in requiringdevelopment applications for agricultural or pastoralland development. Very few planning sentences dealwith agricultural activities as development.

Hinchinbrook Shire Council

Recently, urged by the re-discovery of the endangeredMahogany Glider in the Shire, Hinchinbrook ShireCouncil has gazetted in its planning scheme that caneexpansion requires a development consent.

Noosa Shire Council

The Council is in the process of gazetting a planningscheme amendment requiring impact assessment/

planning approval of activities including agriculture,proposed for high value areas.

��

Many of the degrading actions affecting riparian landmanagement are not easy to regulate: they are small,site-specific and cumulatively degrading in the main.Legislation to date has mostly dealt with thedegradation once it has occurred, in the interests ofprotecting the resource base of the stream or thepaddock. Legislation based on declared sites ofconcern —declared areas, critical areas, criticalhabitats—has had limited impact on overall ripariancondition in Australia.

Most legislative mechanisms have been reliant ondeclaration of specific types of problems and / orspecific geographic areas. They have proveninsufficient in the face of riparian problems. They

�� !��

�� )�� /)0!��/�0!�� 5��

��*�� /�0

3�� 3� �� 1�'� �� !� �� 1�' *��

�� !��0�T�� 1�� !��

�>�� '�� :��&��!��&��!� �

�� ! �� >�

��!��

�� 7�� !� �5��!� !�� 1' (��7��'�/>$,�!��

�� '�� :��&��!��&��!� ��

�� '�� 1� ��! �� >��!��

� �� '��!� ��

�) �7�� 1�'�� !�� ,�� &�� !��!��

��'��&� �� 1��&�� = �� *��'��4 ��'

>��! ��4 ��'�7�� *��'�$�� 4 ��'�7�� &

��&��6��&��!� ��

�!��=�$�1�� :��

�� C��2��

�� &��

��!� ��

.�� $�1�� !�#.�9�� *�� &��!� �

�� !�� !��,37��!&�!��&��

*�� '��1�= ��1��&@��= =�� &�'��&

:�� !� ��&6� �� !� ��

� �� Q=0�!� �J ��

�7��1�� %&((��(��

�) �� !��%�� 6 2�� !�� 6

��

�7�� 6�� !� ��

�� 1� ��1��

/��&�� !��

�� !�� 6

,��&

# � �7�� '�� '��

��

have been hampered by the fact that use of the‘declared areas’ for mechanism aimed at rehabilitationis an ad hoc, non-systematic approach to riparianmanagement, as well as being reactive, andadministratively impractical. It is an approach withlimited impact on a degradation problem withcontributing factors which are multiple andentrenched.

Legislation based on control of specific issues(e.g. tree clearing within 20 m of banks) hasperformed marginally better, particularly wherecommunity vigilance has had a strong role to play inalerting enforcement agencies.

The following observations can be made fromTable 16:

• Much of the legislation for riparian areas relates toprohibiting and permitting activities, individuallyor by areas. There is no strategic approach ordefinition of objectives.

• The jurisdictions display varying controls overvegetation protection and clearing:

• Victoria has a 30 m limit, NSW has a 20 m limit,Queensland has a 40 m limit for leasehold land;

• some States/Territories restrict clearing ofexotic vegetation or planting of nativevegetation depending primarily on floodeffects; and

• few require positive action such as fencing orrevegetation.

• Focus for concern varies. The area of concern iseither between the banks or with the addition ofbuffer areas outside banks.

• Priorities exist in some States and Territories withcontrols more stringent in declared, proclaimed,prescribed or gazetted catchments. Elsewhere it isunderstood that fewer (or few) controls are inplace. Priorities have been defined either in termsof water supply protection or in some cases interms of the degraded condition of the riversthemselves.

Administrative and statutory processes also lack aconsistent approach. Not all developments of privateand leasehold land require development approvalsand not all approvals processes assess impacts onriparian areas as part of their approvals or conditions-setting processes.

3��

The main legislative challenges for riparian areamanagement are associated with the following needs:

• greater integration of plans, policies,methodologies, hierarchies of plans (state, regionaland local scales) to ensure appropriatemanagement planning of catchments and theirriparian areas;

• moving economic measures into the protection andrepair activities of landholders by removinglegislative obstacles to catchment bonds, levies perlandowner for catchment management, levies perpolluter or beneficiary, public financing ofincentives, subsidies, industry adjustment, leases

�� 1�� "�+��

A$,,7� $,,7� &7779

�� *��7��'��& 7�� 7�� 7��

9�E��7�� '�� !��

�� '��' � �� '�� &

�� &��

� �� '� �� '

��!� �� &�%��

�� * ��

��*�� 9��!&��!� ��!�� &�� '�� 7�� !��

�� !�� !� �� & ��1

��'��1��%��' �� '�� 3� ��&��

� �� &'��'� �� &

��'�� ' ��&@��

� ��'�!�� '� �� !� ��

��

,� �� &�� '

��&�� '��

��

��

+ ��

�� '��'�!��

��

which allow payment of landholders for protectionof riparian values and best management practicesand voluntary codes of practice;

• combining controls and incentives to promoteprotection and repair on private and leaseholdlands;

• regional delivery of planning, permitting, andsupport programs utilising integrated structuresfor catchment management and local government;and

• ensuring compliance with plans through routinereviews, community participation in planning andperformance evaluation, and independentevaluation.

Legislative frameworks for riparian area protection,management and restoration have migrated in anumber of ways (Table 16).

This migration of legislation beyond 2000 isaccompanied by parallel developments in:

• community participation and formal engagementmechanisms;

• ecological data and information system access;

• funding and fund-raising programs to match thelevel of investment required;

• market-based mechanisms: payment for resourcesused, ecological services accessed, degradationproduced;

• building better partnerships between catchmentmanagers, resource managers, landholders and thegeneral community; and

• capacity-building for environmental managementby landowners, industries and regions acrossAustralia.

Below is the summary of the main trends shapinglegislation for protecting and managing riparian areas(Table 17.). It highlights the two aspects of riparianarea management: protection of high value, intactareas and stabilisation and rehabilitation of degraded/degrading areas.

Where systematic planning and management ofcatchments is specifically required by legislation, as inSouth Australia and Victoria, a recent developmenthas been the legislative requirement for plans, and forcompliance with enforcement provisions.

Legislation aimed primarily at protection of riparianareas is mainly found in native vegetation legislation,with NSW, Victoria and South Australia having suchlegislation.

Under the NSW Native Vegetation Conservation Act1997, the Minister can declare certain land to be Stateprotected land. Where land is declared Stateprotected land, it cannot be cleared except inaccordance with development consent that is alreadyin force (s. 22) (Cripps 1998, p. 10). Clearing of landcovered by the Regional Vegetation Management Plan(RVMP) is by permit, and the RVMP has to beincorporated into local government planningschemes. Financial assistance subject to voluntaryagreements for conservation is also made availablethrough the Act. However, this Act has beenconsidered a good example of how not to devisecatchment management legislation, partly because itis subject to so many exemptions and exclusions.

�� #��

"��

�� '��&�� !&��

��

3� � � �� '�� '�!��

��'��

��;��

>�� !� !�� !�� !��!� �� '��&��

��!�

��&�� !�� &�� !�� '�� <��&��

�� '�#�� E��

;��&<��

�� 6�* ��

,� ��!�� !�� !��!� �� '�� '��

��

>��1�� @�� &

>� �!�� ?��!� ��?��

�� 1� �� 1��!� ��

��

In Victoria, under the Catchment and Land ProtectionAct 1994, the objectives are to establish a frameworkfor the integrated and coordinated management ofcatchments. The aim is to maintain and enhance long-term land productivity while also conserving theenvironment, and to ensure that the quality of theState’s land and water resources and their associatedplant and animal life are maintained and enhanced.

This Act has several mechanisms. It places a generalduty on landowners to avoid land degradation. It alsodeclares areas ‘catchment and land protectionregions’ and the boards for their management. Eachregion is to have a regional catchment strategyprepared the scope of which includes protection ofcatchments through land use planning andmanagement. Planning schemes may be amendedsubject to these strategies.

The strategy may declare special areas within acatchment for which more detailed management plansare to be prepared (Special Areas Plans). These Plansmay amend planning schemes and they are binding onlandowners.

Management plans are an important part of the newera of legislation (Figure 17). Legislative developmentsin relation to management planning set down legalrequirements such as:

• specification of plans to be prepared;

• specification of activities to be assessed in depthbecause they involve changes to riparian areas;

• permit requirements and conditions;

• compliance requirements (for the plans prepared,as well as for enforcement of permits);

• roles and responsibilities, delegations; and

• fund-raising powers, financial assistance, voluntarycomponents.

��"��

The essential components for incorporation of activemanagement of riparian land into statutory powerscan be defined as including:

• A State/Territory framework for protection andrehabilitation of riparian land and its water flows;State- and Territory-based reporting on stressedriparian land/rivers, and on progress.

• Plans of management for riparian land of highsignificance (e.g. through integrated catchmentmanagement plans addressing riparian lands, waterresource management plans setting environmentalflows needed to supply riparian land and plans forprotection of wild and scenic rivers or forstabilisation of targeted riparian areas).

• Requirements for plans of management for highlystressed riparian areas primarily as part of overallstream condition planning or water qualityplanning.

• Requirements for compliance with these plans ofmanagement (through the setting of targets,timeframes, specification of organisationalstructures, requirements for progress reporting,and arrangements for funding of implementationprojects).

�� '��

A$,,7� ��

*�� 1�

$,,7� ��B��

*�� 1� N ,�� N ,��!� ��

&7779 �� *��

��&�� • ��

• !��

• ��

��&�� • �� ?��!� �

• ��

2� ��

��&��

• ��

• ��

• )3��

>� 1��

• ��

• ��1��!� ��

��

• Statement of a landowner’s duty of care to avoidland degradation.

• Arrangements for fundraising for example throughlevies or subsidies from other catchment resourceusers.

• Development controls and operational controls(permits, licences, conditions) over activities andpractices with potential to degrade riparian land orfunctions it relies upon; stewardship and bestpractice requirements of primary producers.

• Enforcement provisions (interim orders, fines,penalties, replacement conditions; and third partyappeal and injunction rights) where intervention isnecessary to prevent potentially degrading actions.

• Administrative arrangements which provide aframework for addressing the interconnectednessof land and water ecosystems without the arbitrarysplits between traditional and present naturalresource management agencies; to provideworkable structures for allocation ofresponsibilities, with appropriate delegations andoutcomes-based performance measures.

�� + ��

�� 5��

C� �� &��+��'�+��'�� !�!��!&��?��!� �� '��

�� '�� &=

��&��&�� ?��!�� 1� ��!�� &

��!��!�� = =� �� '�� !��&��

*� 1��

3�� &�� !��'��!�� '

�� '�� '�� &��

3� ��

�� 7��1��

• �� !� !�� '�!��

• ��&��!� �� !��!��

��

• �� &��

• �� !��<��&�� '�� &��'��

�� &��

• ��

• ��1!�� '��!��&�� '��

��

��* �� 1��

• �� !� ��

• ��!�� '��

1�� !�� !�� 1��

• ��1!�� ?��

• � � �� &��

• �� ?��

• �� '�� &��'��

• Greater means of incorporating integratedcatchment management plan requirements intoother plans particularly statutory planningschemes, water allocation plans.

The challenge then is about ensuring riparian land islegislatively recognised as an area for ‘activemanagement’ by agencies and by individuallandowners and agency managers. Activemanagement needs to be aimed at producing resultson multiple objectives and, more specifically, on thoseobjectives addressing protection of non-resourcebased values, namely ecosystem or cultural values.

Active management also means shifting the focus forregulation. Though there is a continued need forpowers to repair and rehabilitate degrading ordegraded riparian areas, there is much to be gainedfrom directing regulation at proactive protection ofintact areas or areas which will respond readily toforward planning and restrictions in degradingactivities.

��

,��

This theme considers criteria for a best practice legalframework to achieve the necessary institutionalarrangements for effective delivery of catchmentprotection and management.

The catchment management focus is deliberate. Theprotection and restoration of rivers is essentially acatchment product. Catchments are the biophysicalunits in which natural resource use and ecologicalprotection take place. They represent the level atwhich the new paradigm for sustainable developmentis to be operationalised for resources, a paradigmwhich recognises the interdependencies of naturalsystems, political systems, social systems andtechnology.

Institutional arrangements for performance ofcatchment planning and management vary infundamental ways across Australian jurisdictions.

Models for institutional arrangements are exploredthrough an examination of existing legislativearrangements and inherent challenges, a summary oflegislative trends for catchment management and anoutline of criteria for best practice legislation for thefuture.

-��#��2��"�#��!#��#��"�#��

Mitchell (1989) defines institutional arrangements as:

• legislation and regulations;

• policies and guidelines;

• administrative structures;

• economic and financial arrangements;

• political structures and processes;

• historical and traditional customs and values; and

• key participants or actors.

The legal framework is one specified component ofthese institutional arrangements, and may impact onothers, especially administrative structures.

Exploration of criteria for the administrativecomponent of the legislative framework involvesexamining:

• how to ensure protection and restorationobjectives take precedence over local and sectoralobjectives;

• how to move from individual plans and policies totaking coordinated and integrated rivermanagement and restoration actions;

• how to overcome the vertically structured natureof government instrumentalities (sometimesdescribed as ‘silos’ or ‘rods of iron’) to ensure thatmechanisms for horizontal communication andcoordination can be established and maintained,within and across agencies and governments;

• how to achieve the integration of environmental,economic, social and cultural considerations in alldecision making;

• how to secure ongoing community involvement inthe process and ownership of the outcomes; and

• how to achieve commitment, compliance andaccountability.

Young (1997), draws on foresighting work by theCentre for International Economics (1997), to outlinebest practice catchment management in Australia forthe year 2020. A number of requirements areaddressed in the previous three themes. For thoseissues falling within the administrative category,Young covered:

• institutional arrangements which see the ‘hard’standard-setting decisions made and national orState levels, so as to leave the river level to focuson community motivation;

• the need for landholders to accept their duty-of-care to manage resources sustainably;

• regulatory arrangements which increase thenumber of people in a catchment who areintrinsically motivated to manage water resourcessustainably;

• institutional reforms which empower catchmentcommittees;

• problem-solving which is integrated, rather thancontrolled by different levels and sections ofgovernments each pursuing their own agenda;

• catchment plans to become substantive legaldocuments; and

• institutional arrangements to encourageintegration, and even amalgamation, of localgovernment and catchment managementprocesses.

Doolan and Roberts (1997) defined the primary goal ofVictorian river management as being ‘to ensure thesustainable development of natural resource-basedindustries, the protection of land and water resources

"� ��

��

and the conservation of natural and cultural heritage’.They state that the primary outcomes of catchmentmanagement are:

• community involvement in and commitment tonatural resource management;

• sustainable development of natural resource-basedindustries;

• maintenance and improvement in water quality andriver condition;

• prevention and reversal of land degradation;

• conservation and protection of the diversity andextent of natural ecosystems;

• minimisation of damage to public and privateassets from flooding and erosion; and

• conservation and protection of the culturalheritage.

The Victorian approach is based on the view thatcatchments must empower local initiatives and ensurecollection and direction of government resources atthe regional level. Management of catchments isenvisaged as a business; an enterprise or managementsystem through which government and communityinvestment is directed.

*��"��"��"�#��

3��

Key reforms under COAG (1994) agenda have set thescene for a number of initiatives within State/Territoryjurisdictions relating to institutional arrangements forcatchment management. These potential changesinclude:

• removal of organisational impediments tocatchment management through promotion ofintegrated resource management as opposed toresource development;

• clearer identification of the full range of values ofnatural resources and of the need to rationalisecompeting demands; and

• incorporation of market signals in pricing andallocation regimes.

Through its five program areas, the Natural HeritageTrust has generated greater attention to catchmentplanning in an attempt to direct spending to localprograms. No evaluation of its funding impacts isavailable as yet, although it is widely recognised thatfunding availability did not match the necessary levelsof access to information nor the availability ofintegrated resource management plans.

The Murray–Darling Basin Commission, ARMCANZand ANZECC are three Ministerial Councils bringing aninterstate and national focus to water issues. Theagendas of these Councils have undergoneprogressive development from water management tointegrated catchment management.

The lack of a national legislative framework forintegrated management of natural resources,catchments and their rivers is characteristic of ourCommonwealth system.

��(��

In addition to the Murray–Darling Basin and itsmanagement through a Commonwealth–StateMinisterial Council, other examples of cross-bordercatchment management needs include:

• Lake Eyre Basin (NT and SA);

• Coopers Creek (QLD and SA);

• Ord River (NT and WA); and

• groundwater (cross-border areas are not addressedby the Great Artesian Basin Consultative Council).

Under present arrangements, any coordination ofmanagement is the responsibility of the respectiveStates and Territories, who may or may not decide toinitiate such coordination.

�� '��

��

• ��

• ��

• ��!��

+��*�

• �� '��

• �� '��'��

• �� '��1��

��

• ��&��

• ��

• R�� 1�'��

5 ��*��

• ��!��!� ��

• ��!��

• �� &��&��

��

'��

Specific catchment management legislation exists inVictoria, NSW and South Australia (Table 19). OtherStates and Territories have policy commitments tointegrated catchment management and have madeorganisational changes to implement catchmentmanagement. Several have proposed the introductionof specific catchment management legislation inrecent years.

��

�� 5 ��*��8��

.�� ,��!� �� >� �� 7��#--0

�� %&(&

�) ��$��%&&*��

�!�� %&&1�

In these three States, legislation has devolved powersfor planning and management directly to thecatchment/regional level.

'��

Cullen (1997) argues that it is the lack of integration—between governments, between agencies, betweendisciplines and between knowledge providers andknowledge users—which forms the basis of water/catchment management problems. Those Stategovernments with institutional arrangements forcatchment management have recognised this andestablished structures and processes to facilitate andrequire integration (Table 20).

Structurally, the challenge is to ensure representationof all key interests, with clear definition of roles andresponsibilities matched with the capabilities andresources available. The practical realities ofachieving such an outcome have beencomprehensively addressed in Mitchell (1987). One ofthe key points separates:

• the conceptual level, where it is appropriate anddesirable to think comprehensively and to scan thebroadest possible range of variables which may besignificant for coordinated management of land andwater resources; and

• the operational level, where the quest forcomprehensiveness can be counterproductive byvirtue of implementation processes that are timeconsuming, lacking in focus and of little real benefitto practitioners.

Mitchell also emphasises the need to think ofmanagement arrangements in terms of more thanorganisational characteristics. In developingappropriate management, it is necessary to consider a

�� !�� !��

��

.�� ,��!� ��3� � � ��7��!��&��,37��!�

��!��!�-� � @�� !� ��

�� =

M&��

• �� '��

* �� ,��!� ��

• ��

,�� !��

��

• �� @��

��&

• �� !�/�� :��*��

� ��+ &�� 1��

�� &

,37�� !�� &��

��&� ��1!�� &

��&� �� =

�� ,��!� ��3� � � ��,��

,�� '��

� ��'��1��=

:�$�!��,��!� ��3� � � ��,��

�,3,�=

• ,3,��'�� '�� &'

�� !��

�� !� �� =�:�$�!��

��,��!� ��3� � � ��A��=

• A!&�!��

��1�'�� '�� '��

�� !��

��!��=

3��6�)6# �

��&�� !� �� &

��=

,��!� ��!��&

�� &�� !�� &��

�� =�7� ��1��

��

��!� ��=

�) 9� !��+ �� I�:��*��

,�� !��!��

�� =�,��!� ��

�� ?��=�A!��

��&�� &��1�� 1��

��

• ��

��%��&��

• �� &��!��&��

�� &

• :��

,��!� �� !�� !�,��!� �

$��3� � � ��)��

��

complex mix of ‘contextual’ issues dealing withpolitical, legal, administrative, financial and historicaldimensions that provide opportunities for andconstraints to change as mentioned. Many of theseaspects are outside the scope of this report.

There is no one formula for getting this mix right.Human factors play a strong role in the effectivenessof management structures. There are however variouscombination of structural elements which are seen toproduce the results sought from catchmentmanagement. These are discussed in the modelsbelow.

"��

The ability for catchment managers to generate thenecessary funding for operations and services is vital.One aspect of funding is independence; the other isensuring the funding is adequate for the prioritiesdecided at the catchment level using criteria fromlocal, regional and State policies (Table 21).

In Victoria, Commonwealth and Victoriangovernments invest $140 m annually (since 1998) toimprove the health of rivers and catchments. Also, theState Government provides $8 m to CMAs. Localcontributions have been made in eastern Victoria andin Melbourne for many years. CMAs now raiseconsistent rates through tariffs to fund priority flood,river management and drainage projects. The two-part tariff has a uniform regional charge for most

properties and a property value-based charge forhigher value properties.

Ongoing access to a level of public and agencyfinancing has to be assured if high risk or highstressed catchments have not the populations togenerate the revenue base required.

Some would argue that since the advent of largefunding programs such as the National Landcare

�� 2�� !��

��

.�� ,�� &�� !� �� =>��&�� !��1��!��!��'�� !�� !��&��!� �� =

:�$ 2� �� :�$�� '��!�:9A'�� &��

3��6�)6 �� 7A�� !� �@��"��!��

��,�� !�� :9A�

�) 7 �&�� &�� !��1��!��!� �� '�� !� �� '��!�� !��&��&�!�,�� !��!� �=�*�� !� ��&��!�� =

�� 3�� !��

�� *�� 6��

.�� * �� ,��!� �� *,�� &�� !�,��!� �� >� �� 7��

#--0�

• 7��!�� !�� &

• 7��!��!�� &��= =�,37�� !��

��!�� &�6��!�� &��&�� +��

*��A�� @��!� �� &��!�� '��

�� !� �� =

�� :��&�� '�� !�� =�*�� !� !��A��,��!� �

3� � � �� &��

3��6�)6# � :��'��&�� !��'��&�� =��&��

�� !�� !� �� !��+ �� !�� !�� =

�) 4 ��!��!� ��!��,��!� ��$��3� � � ��)��'��!�)��%��

,��!� ��$��3� � � �� ,$3�� !�$��*��7��#--�

A!�7��%��!�� !�� '��!�)�� 1�� !�� !

�!�� !��!� �� !�� =

A!�� '��'�� !�� !��)��4%&*+5'��!

��4%&&=5'��!�3��)��4%&&=5'��!�"��)�!��4%&*+5'��

�!�#��-��4%&(&5'�� !� �� !��

� �� &��!�:��( �� ,�� !�"��>��4%&&%5=

>�� !��%�� !��!�,$3�=

��

Program and the NHT, regions are experiencing anover-emphasis on work relating to these funds (e.g.applications, evaluations).

��

Should catchment management plans have legalstatus? Plans developed under the recent legislationin Victoria and South Australia have legal status. Theyprovide the policy directions and form the basis ofworks programs and budgets. They are the drivers forthe various Memoranda of Understanding (MOU)between government agencies, and for partnershipagreements between sectors (Table 22).

From the analysis of existing legislative arrangementsit is evident that Victoria, NSW and South Australiahave moved decisively towards a catchmentmanagement model, with key institutional andoperating arrangements stipulated in legislation.Other States and Territories, most with criticalproblems of protection and degradation, haveinformal arrangements for catchment management,generally delivered through informal workingarrangements between water, land and environmentprotection agencies (Table 23).

Young (1997) argues that catchment managementplans in the future must constitute target-based,legally binding documents for water rights and otherresource access arrangements.

!��"��"��

Brandow (1992) provided some interesting insightsinto watershed management in the USA when hewrote:

Most watersheds have some management. Somehave a lot. It’s clear that the watershedmanagement that is taking place in mostwatersheds is fragmented, and in some casesmanagement measures are working at cross-purposes. In some watersheds, while one agencyis trying to reduce cumulative watershed effectsby altering logging patterns to reduce peak flows,

another agency is trying to augment water supplyvia increased runoff with the effects of increasingpeak flows. Embarrassment is spared by twofacts. First, nobody is scrutinising objectives onan inter-agency/watershed-wide basis. Second,neither practice has produced results largeenough to measure outside of experimentalwatersheds.

We have constructed artifices that keep us fromefficiently managing water and watersheds. InCalifornia, we draw a legal line between surfacewater and ground water, a distinction that nature,in the main, does not recognise. California longago had the foresight to place regulatory controlof water quantity (except for ground water) andwater quality under one board. Yet we still do alot of things in watershed management thatindicate we don’t fully appreciate howinterrelated water quality and water quantity arein nature. Even worse, we’ve almost totallyignored the fact that altering flow regimes triggerschanges (in) stream and riparian habitats.

Finally, getting government agencies to integratetheir watershed management activities is a verydifficult problem. There are just too manyagencies. I advocate combining and/oreliminating agencies as a means of integratingwatershed management. There is a crying needto integrate the activities of governmentagencies, both within agencies and betweenagencies.

Indeed, our most difficult challenge may bereforming the reforms of the past century, so thatwatershed management is as integrated aswatershed function

(Brandow 1992, p.28)

The global nature of this challenge is reflected in theoperation of the International Network of BasinOrganisations (INBO), a Paris-based organisationexchanging information and addressing issuesassociated with institutional arrangements for rivermanagement. The priorities of INBO include:

�� #��

�� "��*�� !� ��

>�� +��!��

�� &�� 4 � ��

>�� 2�� '�� !��

, ��& ,��!� �@��&

7 �&�� /�� E�

,�� &�� ,�� &��& �� S��!��

��

• laws and regulations for water resourcemanagement in each country;

• agreements, conventions and international reportson integrated river basin management; and

• statutes and missions of basin organisations.

Through the resources of the network, it is possible tofollow the different approaches that are being taken toaddress institutional issues of river basin managementthroughout the world. Some recent initiatives include:

• establishment of a High Commission for Water andthe establishment of River Basin Authorities for keyrivers of the Ivory Coast in Africa;

• reform of the Brazilian Water Law to establishhydrographic basins as planning units, thepreparation of masterplans and the creation ofwater agencies and basin committees;

• establishment of the Rio Tuy Basin Agency inVenezuela;

• establishment of hydrographic basin agencies inAlgeria to assist existing administrations andorganisations to carry out their missions of waterallocation, pollution control, resource utilisationand enhanced public awareness;

• preparation of a hydrological plan and theestablishment of a Basin Water Committee for theErbo River basin in Spain;

• adoption of river contracts by the Frenchgovernment and the Rhone–Mediterranean–CorsicaBasin Committee as a way of gathering together allwater actors to define a consistent action program;and

• establishment of four river basin authorities inSlovakia with wide responsibilities for water works,pollution control, surface water supply, watertransport, irrigation and hydroelectric powergeneration.

The issue of the appropriate institutionalarrangements for successful catchment managementis presently a subject for considerable debate inAustralia. The report on enhancing the effectivenessof catchment management planning in Australia(AACM International 1995) identified key issuespotentially relating to the legislative framework as:

• conflict between service provision and resourceregulatory roles of government agencies;

• poor communication between and withininstitutions and weak integration of skills;

• reliance on a small number of community memberswith strong and capable leadership skills;

• territorial disputes and poor cooperation betweenagencies; and

• widely differing perceptions on the need forregulatory instruments to achieve integrated riverand catchment management.

Ingram et al. (1984) found institutional arrangementsto be a major stumbling block to the successfuloperation of water resource management programs.The main barriers to understanding were that manyinstitutions deal with resource allocation, and thatsectors in society perceive that scarce resourcesshould be divided differently. Resource allocation isthe basis of economies and therefore, theseinstitutions are very political and sensitive subjects.Another barrier is the perception by institutions thatthey cannot, or do not have the right, to change otherinstitutions. More often than not, institutions are notchanged unless by an Act of parliament. Eachinstitution protects and reinforces its own sovereigntyby avoiding conflict with other institutions of equalpower (Ingram 1984).

Shrubsole (1996) found from the Ontario system thatkey success factors were:

• the watershed as a management unit;

• local initiative;

• municipal–provincial (local–State in Australianterms) partnerships;

• a healthy environment for a healthy economy;

• a comprehensive approach; and

• cooperation and coordination.

The review of the Hawkesbury–Nepean (HealthyRivers Commission 1997) focused on genericimpediments to effective management and progresstowards healthier rivers. Management of theHawkesbury–Nepean uses a Catchment ManagementTrust, an Environmental Planning Strategy, a statutoryRegional Environmental Plan and Action Plan, anumber of locally-based subcatchment managementcommittees and a community awareness program.Report findings on institutional issues include:

• no provision for institutional arrangements for anunambiguous role of ‘river custodian/manager’,with a perception that because everyone is(apparently) responsible, no-one can be heldresponsible;

• widespread fragmentation and duplication ofresponsibilities with no adequately directiveframework within which one agency or councilfeels confident or is encouraged by others to takethe lead in driving through the necessarydecisions; and

• a need to establish a ‘river manager’ with ultimateaccountability for the health of the river, and withthe powers and resources consistent with thataccountability. The river manager, a governmententity, would be the river’s ‘custodian. The rivermanager must have sufficient independent status,decision-making powers, and access to resourcesso that it can be regarded as equal with agencieswith major sectoral responsibilities.

��

The Fraser Basin Management Board and Program(Dorcey 1997) is a program underpinned by anAgreement signed by Ministers of Federal andprovincial governments and representatives of localgovernments. Findings include:

• a need for the Board to be given an independentinstitutional base;

• that the Board should not be given regulatorypowers but should be seen to be moreaccountable; and

• the budget of the Board should be doubled(particularly if the Board is to fulfil its auditingrole).

In summary from all these reviews, it is evident thatthe key challenges for legislation are those of:

• setting the ground rules for protection,management and resource development;

• ensuring integration of the plans for economicproduction and ecological protection;

• empowering and enabling managers deliverservices or to call on service providers;

• ascribing status to the partnerships andcooperative arrangements to undertake this work;

• ensuring accountability for investments, decisionsand outcomes; and

• allowing for change over time.

In turn, in delivery on these challenges legislationmust avoid:

• unreasonable rigidity of requirements or over-emphasis on standardisation of requirements;

• delegation to catchment or regional levels withoutadequate policy direction or resourcing;

• irresponsible transfer or distribution of the painsor gains from catchment management;

• barriers to leadership and innovation; and

• onerous levels of consultation or stakeholderinvolvement.

It is a process of building the right framework inwhich the actors in catchments can set up theirpreferred approach; a process for which there is nosingle, right approach (i.e. no solution can simply beimported from another jurisdiction).

3��!��"�#��

Mary Maher & Associates et al. (1998) investigatedmultiple-objective, multiple-agency models forintegrated resource management from Australia andoverseas, including river/catchment management andalso coastal, protected area, open space andrecreation, and fisheries management. Case studyselection criteria included:

• an authoritative source of information (generallyeither published reports or Internet sites);

• a range of different approaches to managementarrangements, particularly along continuumsranging from decentralised to highly centralised,and from non-regulatory to highly regulatory; and

• seeking outcomes related to sustainability, theprotection of water quality and the integration ofenvironmental, economic, social and culturalconsiderations.

Twenty-seven studies were reviewed and showed fivebroad classes of management model, the keyattributes of which were then analysed (Mary Maher& Associates et al. 1998, Table 5.2). While not allrelated to the legislative framework, the key attributeswere:

• ability to provide strong leadership;

• ability to integrate environmental, economic, socialand cultural considerations;

• ability to link catchment, waterway, estuarine andmarine systems and functions;

• potential to learn and adapt;

• potential for generating strong commitment fromelected representatives;

• likelihood of achieving high levels of communityownership and involvement;

• extent to which responsibilities for achievement ofoutcomes are clearly identified;

• extent that cross-agency and cross-disciplinarylinkages are encouraged and supported;

• extent that management plan actions areenforceable;

• potential for negotiated resolution of conflictswhere river outcomes prevail;

• ability to attract funding over and above lineagency budgets;

• ability to channel funding to areas of highest need;

• ability to audit river outcomes against and acrossall agencies/programs; and

• ability to integrate scientific information intodecision making.

��

Mary Maher & Associates et al. (1998) found that thelegislative framework should:

• enable the number and diversity of stakeholders tobe involved;

• enable equal accommodation of both rural andurban perspectives and issues; and

• ensure downstream recipients have an equitablesay in upstream actions impacting on them.

Their analysis showed five model classes, summarisedin Table 24.

�� 2��

5� �� <��

$% 4�� @�� &?

��

&% 4�� &?��

�� ?

�� 3JB�

'% 4�� &��

�� ?3JB��

� �� &

(% 4�� &��

�� ?3JB�� &

� �&�� 1��

�!�1&�� &��&

��

D% 4�� &��

��&�� !��&��1��

��

��3�&�3�!�I�7��=�#--.�

Analysis by model classes showed that classes 3–5 aremuch more likely to achieve high degrees ofownership, accountability and integration, andsustainable river outcomes. The offset for thesedesirable attributes is higher extents of organisationaland behavioural change, new bureaucratic structures(although not necessarily large) and a higher degreeof centralised management. When all costs are takeninto account, they found no necessary major costdifferences between the classes.

Analysis of case studies shows communities movingsequentially through models. The community whichat first is reluctant to embrace considerable changefinally accepts that less effective or voluntarycooperation models are not keeping pace with theinevitable increasing pressures of growth and humanactivities on rivers and their restoration. Morecommand-oriented models are taken on as the healthof the river is seen as not safeguarded by the less

effective cooperative models. The sequencecommonly followed can be summarised as:

1. voluntary interagency and intersectoralcooperation, with nominated lead agency and littlemonitoring (e.g. Victoria pre-1989, Queensland atpresent);

2. as 1, but with legislation requiring cooperation andsetting out structure (e.g. Victoria post-1994);

3. as 2, but with greater integration in statute offunctional areas including Landcare;

4. a single planning and service delivery agency forstate functions affecting catchments, forcoordinating with other levels of government,particularly local governments and their land useplanning activities, for enforcement and auditing(e.g. Victoria post July 1997);

5. establishment of a statutory river custodian,preferably apart from line agencies (e.g. Swan RiverTrust, New Zealand’s Parliamentary Commissionerfor the Environment, as recommended in 1984 and1997 for the Hawkesbury–Nepean); and

6. all planning, all levels of government services,enforcement and auditing are delivered by onestatutorily constituted agency. A refinement of thismodel is for a separate independent audit of rivermanagement and restoration achievements.

Mary Maher & Associates et al. (1998) further foundthe model classes generally progressed from beinghigh on initial agency acceptability and low ondelivering river goals (Model 1), to the converse inModel 5 where agency acceptability may be low (atleast initially) but the arrangements are effective.There is no evidence of a model that can simply be‘transplanted’; successful models are products oftheir context, and are tailored to meet localcircumstances.

Having said that, Mary Maher & Associates et al.(1998) found some common experiences relating tolegislative framework amongst models that appear tobe working in the complex area of river managementand restoration. These include:

• abandonment of models that rely on high levels ofdiscretion (especially high levels of ‘negative’discretion not to do things, or not to achieve theobject(s) of the legislation), and on low levels ofaccountability;

• a growing realisation that reasonably high levels ofregulatory control and/or incentives are required ifdesired outcomes are to be achieved across abroad range of agencies and sectors; and

• the trend towards small and purposeful statutoryentities that provide a sense of leadership, ensurehigher levels of accountability, take on importantcoordinating and auditing functions and possiblyassume management responsibilities that cannotbe delivered by other agencies.

��

Performance measurement of the effectiveness ofinstitutional arrangements requires a process ofsystematic and strategic evaluation. Such a process israrely undertaken in the river management andrestoration context (even from an overall perspective)for a variety of reasons. Evaluation is compounded inthis project because many of the systems and casesstudied are recent; they have not had the opportunityto produce measurable outcomes, or have not beenmeasured.

��"��!#��#��"�#��4, (5��"�#��"��

Many of the critical success factors for legislationoutlined for the three other topic areas have stronglinks to effective integrated catchment management(Figure 19). Critical success factors specificallyrelating to institutional arrangements for effective ICMare identified as follows.

• Legislation which leads the way on integratednatural resources and catchment management byproviding a sound basis for incorporatingecological and social dimensions into plans anddecisions for economic productivity. This is likelyto include management of the full range ofactivities on catchment lands, without the presentexceptions.

��

A$,77� ��!�� !��

:�� !� �� *�� • ��

• ��

+ ��

$,,7� <��

,��!� ��

• ��

• ��

• ��&

��• ��

• ��

• ��

• ��!��

,��!� �� • ��

• ��&�

• ��%��&

J�� • � ��

• ��

• ��1�

9&777 ��!�� *��

4 � ��

4 � ��!� �� • ��

• ��

4 � ��!� �� • ��&

• ��1�

��

,�� &��

• �� '� ��

• �� '��&��

• � ��'��!��'��

>��

��

• Legislation which clearly rationalises omissions,duplication and inconsistencies in relatedlegislation.

• Legislation with powers to unify (or at least ensurethe coordination often missing to date) all keyfunctions affecting river management andrestoration, generally presently lying with diverseagencies.

• Legislation requiring consultation withstakeholders for planning and services on theground, and intervention where direct action isneeded. This includes third party rights of appealand of injunctive action, and that these are actuallyproclaimed [not merely assented to and leftunproclaimed and inactive, as at present in theEnvironmental Protection Act 1994 (Qld)].

• Legislation which clarifies the hierarchy of plansinvolved in catchment management and providesthe statutory basis for catchment and waterwayprotection

• Legislation which regularly requires reports andaudits about achievement of catchment protectiongoals and sector commitments.

• Legislation which plays a leading role andintegrates with innovations in public financing,market-based mechanisms for environmentalprotection and equity, and industry strategies andpractices.

• Legislation which reflects a strengthened whole-of-government approach to river management andrestoration, and a strong Commonwealth lead.

��

'�##��"�

From the four topics—environmental flows, waterquality, riparian areas and institutional arrangementsfor catchment management—the following conclusionscan be drawn.

• River management is now a topic of considerabledebate between government and communities. Nonational, binding standards have been set for riverprotection or management. Surrogate standards areproposed through Ministerial or councilagreements, or Commonwealth ‘bribery’. StrongerCommonwealth lead, in partnership with States andTerritories. Limited application of Commonwealthpowers to protect rivers. Confusing terminologyacross jurisdictions for most aspects of river/resource management.

• Water resource issues are the main focus ofattention. Some degree of recognition ofenvironmental flow needs. Narrow focus on riverwater, not the total water cycle. Strong sectoralinterest opposition to security of environmentalflows in water allocation.

• Commitment has been given by all States toIntegrated Natural Resource Management/ICM. Inmost States, problems arise because major resourceagencies are distant from the integrated planningprocess. Outside the cooperative arrangements forplanning and service delivery.

• Evolution towards catchment-based planning.However these plans remain non-statutory oradvisory only in most jurisdictions. Catchmentlegislation added to the plethora of otherlegislation relating to resource management orecosystem protection.

• Trend towards devolution of functions andresponsibilities to catchment/local level. Limitedintegration of statutory powers at this level.Planning emphasis mainly.

• Strengthened representation of stakeholders.Absence of national/State policy framework toensure a level playing field. Ecosystem protectionwith resource management.

• Increased knowledge about ecosystem processesand resource use impacts. Resource security has tobe matched with emerging requirements to providefor ecosystem needs/adjusted over time.

The drivers of recent changes in river managementwere found to differ between river components,indicating uncertainty of outcomes for rivers:

• catchment management driven by NHT projectmonies, catchment strategies;

• water quality driven by breakthroughs in thescientific basis for water quality management;

• water quantity reforms leading the way for majoreconomic interests, driven by resource users needsand ensuing debates; and

#� ��

�� 1�� .�� !�� " ��

$,,7�

* ��?��

* �� &��!

* ��!��'��

* �� '�� &��

* � ��

>��&777

* ��

* ��&��

* ��

* ��

* �� '�!��

* � � ��!� ��

* ��&��

* ��

* � ��

* � ��&�� !��

* ��

* ��1�?��!� ��

��

��

• riparian management driven by recognition of thedegraded state of Australian rivers, and of theriparian area’s contribution to water qualityproblems.

The main directions of the future are:

• ecologically sustainable water management (ESWM,similar to ESForestM), where equity and ecologicalinterests are represented alongside economic andsectoral interests in water management decisions;

• development of new administrative arrangementsat regional/catchment level;

• nationally-agreed binding framework for rivers (i.e.where to after COAG?); and

• development of companion mechanisms in thepackage (tax reform, industry adjustment,environmental accounting) in a compatible andcomprehensive way; potentially decreasing role forlegislation if these mechanisms perform for rivermanagement and restoration.

Figure 20 summarises these big directions. On acautionary note, there are also counterforces whichmust be factored into future considerations.

Significant remaining river management andrestoration challenges include:

• will water reform move from caps on developmentto providing primacy and adequacy for ecologicalthresholds?

• will water quality and water quantity planningresult in rivers achieving centre stage in catchmentmanagement?

• will production-based agencies work in withsustainability planning, service delivery?

• will functional issue agencies endure, thusmaintaining the probability of ongoingincoordination for river management andrestoration?

• will this transition phase see a progression fromecological objectives in their separate legislation,to its incorporation in legislation and plans ofproducers and economic interests?

• will there be transparent use of marketmechanisms, industry self-regulation, co-management, public financing for integratedresource management? Or will these mechanismsbe used to stave off the reckoning betweenproducers, resource users and other values?

• will management plans be complied with? What willcompliance with regulatory plans look like?

The nature of the legislative framework appears to beat a crossroads. The regulatory model is to moveforward with structures, statutory plans,administrative processes, etc; and seems to befavoured by stakeholders generally outside decision

making circles and who are disillusioned with rivermanagers’ performance and accountability to date.The other model is to move forward with inclusive,co-management, multiple mechanisms approaches,with a lower but critical profile for legislation.

Questions posed for river managers and thelegislative framework to consider include:

• will it have strong central direction or will it beregionalised?

• will regional structures be effective if downsizing orself-funding is required?

• will all key players regionalise? Not just theenvironmental protection or resource agencies, butsuch areas as the land development industry,public land administration;

• how will the community hold the whole lot toaccountability; against executive discretion, non-compliance with plans, non-provision of resources,etc?

• will there be multiple interacting regulatorysystems applying to any one activity, in acontinuation of typical superimposition of resourcemanagement, environment protection, and otherlegislation over earlier legislation? Or will there beuse of sweeping and comprehensive newlegislation, as on the New Zealand model?

Figure 21 provides a summary of the four topics andrecent or emerging aspects for the legal frameworkpresented on a continuum.

However, there was substantial commonality amongresearchers as to the legislative criteria. In theextensive Western Australian review of water andnatural resource management (Wallis 1996), the futureframework for integrated management identified thefollowing as the major components:

• whole of catchment approach to integrating waterand land management activities;

• a simple bureaucratic system with clear roles andfunctions at every level (Ministerial, State agency,peak councils and regional/catchment level);

• clear responsibilities and accountabilities at alllevels;

• regional/catchment community groups givenrecognition and support as the prime means ofimplementation of integrated catchment/resourcemanagement;

• strong community ownership and partnering ofactivities between the State and incorporated ICMgroups;

• an across-government portfolio coordinatingmechanism;

• an across-government portfolio budget agreementand partnering mechanism; and

��

• clear leadership and support by government forintegrated natural resource management matchedby real allocation and reallocation of resources.

Some or most of these findings were generallycommon to others, including:

• the effectiveness of catchment managementplanning in Australia (AACM International 1995);

• the Ontario system (Shrubsole 1996, pp. 322–323);

• Victoria river and catchment management (Doolan& Roberts 1997);

• best practice catchment management in Australiain 2020 (Young 1997, Centre for InternationalEconomics 1997);

• the review of the Hawkesbury–Nepean (HealthyRivers Commission 1997);

• the review of the Fraser Basin Management Boardand its program (Dorcey 1997);

• investigation of 27 multiple-objective, multiple-agency studies and models for integrated resourcemanagement from Australia and overseas,including river/catchment management (MaryMaher & Associates et al. 1998); and

• a study of the Grand River Conservation Authority,Canada; and the Bay of Plenty Regional Council,New Zealand (Nichols 1998).

0!��$��%��"��"��

The criteria need to be operationalised through thecomponents or ‘working parts’ of the legislativeframework. Five main components can be identifiedas:

1��

Legislation which addresses responsibilities in rivermanagement and restoration, particularly amongstand between agencies and the three spheres ofgovernment. The group includes inter- and intra-governmental matters, including in the Australiancontext:

• the relative river management and restorationresponsibilities and roles of the Commonwealthand the States and Territories under theConstitution;

• the administrative arrangements legislation andrelated subordinate legislation of each jurisdiction,which establish government agencies, define leadagencies, define spatial, functional and statutoryresponsibilities, define the relationships betweenlead and related agencies in river management andrestoration; define inter-agency jurisdictionalboundaries, and establish coordinationmechanisms; and

• cooperative arrangements such as the Murray–Darling legislation are in this group.

'��

Legislation which establishes the structures throughwhich river management and restoration is actioned,including policy, operation and service deliveryaspects. It includes components such as regional

�� #�� '�� "�+��

��

�� !�� & �� &

� ��

��

��

�� !� !�� !�� !��!�� &��

1�� *��

��!��4,3 ��&�� &��4,3��

#��

#--� 5�� 5�#�

*��

+�� &��

��

structures for the lead or other agencies; andframeworks and processes for stakeholder andcommunity involvement. The latter may be inter-andintra-governmental; on an interstate, state, regionaland/or local basis; and includes structures addressingthe inter-relationships between related functionalareas and programs (e.g. ICM and Landcare).

8��

Legislation which sets out approaches for determiningdesired ecological and resource use outcomes such aswater entitlements, risk assessment, communityconsultation, setting of water quality objectives, andcatchment-specific outcomes. The resulting plans,schedules or systems, tailored to a specific issue or ageographical area, may be legislated in the formschedules or other subsidiary legislation.

*��

Legislation which addresses compliance requirementsfor statutory plans as well as licences, permits andapprovals. It covers statutes setting standardsapplying to river management and restoration, suchas minimum water quantity and quality specifications,processes and/or timetables for them to beestablished, and reviewed. It includes legislationwhich codifies the standing and entitlements of riverwater ‘beneficiaries’ (in the widest sense, includingstate and local governments, the environment, thecommunity qua community as well as sectors andclasses in the community) to water meeting relevantspecifications. It includes regulatory enforcement forexample, anti-pollution and pollution licensingstatutes, whether by public agencies or privaterecourse.

��-��

This legislation is of two main groups:

• monitoring and reporting legislation, includingagency periodic reporting, external/independentperformance auditing, River Ombudsman, State ofRiver reporting including those in State ofEnvironment reports; and

• legislation which relates to communityempowerment, including generic and specificstatutory review and appeal provisions, whether ofpublic agencies or otherwise.

��!��1��"��#�$��%��#��"�#��!��$��6��

Recommended criteria for the best practice legislativeframework for river management, restoration andrehabilitation are to be ‘practical’. This term is seen asbeing measured against the capacity and necessity ofrecommendations to achieve the community’s agreedextent of river management, restoration and

rehabilitation; not by the extent to which they may ormay not cause discomfort to the present temporaryincumbents of public office, or to sectoral interests.

Taking these matters together, a degree of tension(almost contradiction) is apparent. In the Snowy RiverInquiry Commissioner’ s words,

It could be argued that the Terms of Referencewere almost contradictory in the way theyrequired the Inquiry to identify the environmentalissues arising from the operation of the Schemeand then provide a range of fully-costed optionsto deal with these issues while balancing theneeds of competing users of water. I thereforetook the view that the only way we could succeedin providing Governments with tangible optionswas to deal transparently with each of the areasof consideration without any bias towards anyparticular partisan position or stakeholderviewpoint.

(Snowy Water Inquiry 1998, p. 5)

A set of criteria reflecting best practice rivermanagement and restoration frameworks has beendeveloped, primarily from the four topics; and alsofrom the literature, and from professional experienceincluding that of practitioners, mainly in the publicsector. The criteria are:

1. Setting binding, measurable river management andrestoration standards should be a nationalfunction, requiring a strong leading role by theCommonwealth. A general duty-of-care should belegislated for all landholders and all others tomanage all aspects of surface water andgroundwater resources sustainably, and to achieveESD as the primary object (not just as one ofseveral) of their activities.

• This is particularly the case given the trans-boundary nature of many Australian rivers.

• It will enable river-level agencies can focus oncommunity education and motivation (Young1997).

• River health in Australia is a critical issue to allAustralians.

• National leadership in this nationally importantarea has continued and can be enhanced forbetter overall river management andrestoration achievement.

• It will help to achieve and demonstrate awhole-of-government commitment to rivermanagement and restoration.

• ‘CSIRO already undertakes environment relatedresearch and development ...on...land andwater’ (Productivity Commission 1999, p. 55).Also, the Commonwealth’s Department of theEnvironment and Heritage has commissionedthe development of indicators for each of the

��

seven major themes for State of theEnvironment Reporting, one being inlandwaters.

• River management and restoration legislationneeds to bind the Crown in the part of theStates/Territories, and in the part of theCommonwealth as far as it is able to do so.Commensurately, the Crown in the part of theCommonwealth, as far as it is not legallybound, should commit to achieving at least thesame provisions.

2. A statutory definition of ‘river’ is needed in rivermanagement, restoration and rehabilitation, on anextensive basis to include floodplains, all relatedwetlands, etc.

• This will ensure all hydrological components ofthe river are comprehensively managedtowards restoration and rehabilitation.

• River restorers cannot have responsibility andaccountability for river management andrestoration without spatially commensuratepowers.

• It will have regard to the whole water cycle,including groundwater.

3. There needs to be a single, multi-functional agencyfor a river’s restoration and rehabilitation.

• Lack of inter-agency cooperation andintegration, turf wars and other similaractivities are a constant negative finding inanalyses of river management performance inAustralia.

• A single agency has been demonstrated to bebetter structured to provide a unified approachand consistent actions towards rivermanagement and restoration, and to resolveconflicts, than are multiple agencies. Whilethere has been improvement, and while someinter-agency cooperative models aredemonstrating more achievement, this isgenerally assessed against the past (how poorperformance has been before?), rather than thefuture (what performance is needed to achievethe objectives?).

• It will bring benefits of efficiencies of scale.

• A single agency may have a problem, real orperceived, about conflict between serviceprovision and resource regulatory roles thatshould be resolved in formulating andreviewing the river plan.

• There is a need for an unambiguous role of‘river custodian / manager’.

• The ability to ensure agreed river managementand restoration objectives needs to takeprecedence over sectoral/local objectives.

4. River management and restoration agencies need acatchment-wide spatial characteristic.

• There is a need to address all areas impactingon river management and restoration.

• Responsibility and accountability for rivermanagement and restoration require spatiallycompatible coverage.

• This will require and ensure a comprehensiveapproach to river management and restoration,and is generally accepted in Australia (Hooper1997, p. 237).

5. River management and restoration agencies need astatutorily-based set of powers commensuratewith their responsibilities (i.e. for planning,funding, educating, regulating and achieving allcomponents of river management andrestoration).

• Commensurate powers are required forresponsibility and accountability for rivermanagement and restoration.

• There is a need to address all mattersimpacting on river management andrestoration, and set out binding objects andriver management and restoration objectives.

• The objects clause should state that in theinterpretation of river management andrestoration legislation, constructions thatpromote the achievement of the underlyingpurpose or objective shall be preferred toconstructions which do not.

• As river management and restoration coversenvironmental, economic, social and culturalconsiderations, its powers need to cover itsrange of functions.

6. River management and restoration agencies needto include in their decision-making processes allstakeholders in an open, equitable and adequatelyresourced manner.

• Composition should reflect all stakeholders(including urban, environmental and non-commercial) to ensure there is cross-community involvement in and commitment toriver management and restoration.

• There is a need for a strong local base (toensure continuity as a local initiative), fiscalequity (no taxation without representation)and social equity.

• Upstream activities impact on downstreamusers.

• Best practice principles of incorporatingstakeholder input (see for exampleProductivity Commission 1999, p. 10) shouldbe required.

��

7. Given the previous three principles, and the extentto which local government is already involved insome environmental and other aspects of rivermanagement and restoration, there need to beclose links between river management andrestoration agencies and local governments.

• Such synergy will maximise coordinated rivermanagement.

• some communities may find benefits(economies, no ‘turf wars’, simpler communityeducation and better understanding, enhancedachievement, etc.) by increased commonalitybetween these two sets of agencies, such as theriver agency and the local government havingthe same chair; or amalgamating. Thesematters could be statutorily based; if they arenot, systems requiring ongoing close andcoordinated linkages will be needed.

• Greater combined autonomy through fullagreement and commitment on rivermanagement and restoration plan, will lead to alack of interference from other levels ofgovernment.

• The logical conclusion of such a progressionmay be the installation of a two-sphere systemof national and regional governments based onriver catchments, in lieu of the presenttripartite system of Commonwealth, State andlocal governments with multiple overlays andcombinations.

8. River management and restoration agencies need astatutory, comprehensive river management andrestoration plan.

• The plan should be prepared followingstatutorily required inclusive processesincluding principles of good policy making (seefor example Productivity Commission 1999, p.86), with statutorily required periodic reviews.Government, ministerial or agency discretionsabout the occurrence, timing and depth of planreviews should be eliminated.

• Periodic reviews of the effectiveness of planswill ensure good management practice.

• ESD should be promoted as a primary goal inriver management and restoration plans,because it incorporates social economic andenvironmental issues in a whole-of-governmentapproach. It is the mainstream philosophy ofAustralian resource management (Hooper 1997,p. 237).

• River management and restoration plans needto be based on scientific data and assessment(e.g. the Brisbane River and Moreton Bay WaterQuality Management Strategy).

• River management and restoration plans

should be comprehensive and should coverand integrate all the multi-factorial aspects ofriver management and restoration, includingwater allocation, sustainable resource-basedindustries, ecosystem restoration, instreamactivities, impacting land managementactivities whether changing or ongoing,minimisation of damage by flooding anderosion to appropriately located assets,salinity, land degradation and erosion, locallaws, land use regulation, rural drainage andurban stormwater plans.

• River management and restoration plansshould be required to include all aspects ofriver management (e.g. land use planningimpacts on rivers, urban stormwater and ruraldrainage plans, water allocation plans from allwater sources).

• River management and restoration plansshould be rolling plans (with a five yearturnover) for long time periods (over at leastthirty years).

9. There needs to be a statutorily required regular,publicly available audit of river management,restoration and rehabilitation, independent fromthe restoring/rehabilitating agency.

• Performance, and accountability for it, are onlyachieved through audit.

• Meaningful audit must be independent fromriver (and any) manager.

• Good management practice to auditperformance on a regular and independentbasis.

• Models include State of River reporting, theParliamentary Commissioner for theEnvironment (or Rivers), the River custodianrole.

• Data collection should be standardised,spatially and over time, for comparability andefficiency. The work of CSIRO, the NationalLand and Water Resource Audit and theDepartment of the Environment and Heritagerelating to State of the Environment Reportindicators has been mentioned. Severalrecommendations of the ProductivityCommission relating to standardised datacollection by ABS for ESD implementation arealso relevant (Productivity Commission 1999,draft recommendations 6.1 and 7.3 to 7.5).

• This full accountability includes third partyrights of appeal and injunction.

10. The legislative framework for administrativecomponents of river management and restorationshould contain a requirement for specifiedperiodic reviews.

��

• Given our early comprehension of the watercycle, it is not to be expected that the firstframework designed will get it right. Theframework needs to respond to flaws foundthrough experience, as well as to incorporatedeveloping best practice and innovations fromour growing understanding.

• Reviews should follow statutorily requiredinclusive processes.

• Reviews avoid government, ministerial oragency discretions about the occurrence,timing and depth of framework reviews.

• Periodical measurement and review theeffectiveness of arrangements it is goodmanagement practice.

11. All legislation with a direct or indirect effect onriver management and restoration needs to haveand maintain primacy over all other legislation,including that applying to for utilities andemergencies. In other words, for the avoidance ofdoubt, legislation which implements the suggestedcriteria should be given ongoing legislative prioritydespite the provisions of any other law, includingsubsequent law. Achieving the suggested criteriashould be given greater statutory weight than anyother objective. Consequentially, any legislationwhich ignores the criteria above needs to bereviewed or eliminated to bring it into consistency,and kept so reviewed. Integration and consistencyare key issues in river management andrestoration.

��

,#��#��"�1��"��#�$��%

The suggested criteria do not necessarily require newadministrative structures and processes. For example,it is quite possible to meet the relevant criteria byorganising local governments onto a river catchmentbasis, rather than create a separate system of newcatchment agencies. During a 1994–95 NationalLandcare Program project, Queensland and Tasmaniawere considering watersheds as an appropriateboundary in considering amalgamations of localauthorities.

Similarly, much of the catchment activity regulationcould be through the land use planning process,rather than through either a new process, or by anextension of existing concurrence systems. Theconcurrence system is seen as having limitedeffectiveness in achieving river management andrestoration, as it is based on a continuation of agencyplurality: itself clearly a causative factor in presentriver degradation.

Use of either existing land use or new regulatorysystems is likely to mean the cessation of traditionalexemptions for agricultural, forestry and othercatchment land activities; and, similarly, the end ofexemption of agriculture, forestry and other relatedpractitioners from occupational licensing.

��!��!��#

Moving the focus from water management tointegrated resource management/river managementthrough:

• environmental protection, ecosystem processeslegislation;

• resource use and access legislation; and

• land planning, development and impact assessmentlegislation.

Achieving ICM through:

• structures for integrated planning; and

• structures for coordinated decisions.

River protection/restoration legislation including:

• wild rivers;

• environmental flows; and

• water quality/environmental flow managementplans.

Powers and capabilities for service delivery at locallevel:

• greater use of local government status, powers; and

• fund raising, across-government budgets.

Maintenance of effective controls (the legislative‘sticks’) for:

• pollution from point sources;

• control of high risk activities; and

• powers of Boards and similar entities.

��!��"��#

9��%��-��

The project found significant evidence for a strongrole for the Commonwealth in the best practicelegislative framework. Factors in favour of asignificant and increased role for the Commonwealthin the future of river management, restoration andrehabilitation include:

• ‘the Commonwealth is responsible for nationalpolicy issues’ (Productivity Commission 1999, p.23) and there is arguably no more national orimportant issue than river management andrestoration facing Australia;

• clear and firm leadership is appropriate, especiallyin view of the trans-boundary characteristics ofsome Australian rivers;

• the most successful models of integrated naturalresource management come from structures whichare not the orthodox ‘business-as-usual’ examplesof the Australian tripartite governmentarrangement. Rather they are special arrangementsbetween these three and all other stakeholders(e.g. Great Barrier Reef Marine Park Authority, WetTropics Management Authority, Trinity InletManagement Plan [Mary Maher & Associates et al.1998]);

• Commonwealth initiatives on NSESD since 1989have accelerated the move towards sustainablewater management (Hooper 1997, p. 238);

• the success of the 1994 COAG Water Reforms hasbeen significantly due to the Commonwealthplaying a lead role, including a financial one;

• Commonwealth law prevails where there is aconflict over coexisting powers (ProductivityCommission 1999, p. 19);

• the Commonwealth has already commenced aNational Land and Water Resource Audit, designed

$� ��

��

to develop nationally comparable data whichprovides a measure over time of land and waterresource quality;

• the most successful federal models of rivermanagement, restoration and rehabilitation foundwere the USA and Canada, both with a key successfactor being a firm role by the federal government;

• such a framework is within the capacity, andperhaps the intention, of the CommonwealthEnvironmental Protection and BiodiversityConservation Bill 1998; and

• the Commonwealth can ensure equity across Statesand Territories. Where the scale of the problemsvaries greatly and resourcing issues arise; it canensure benchmarks are maintained but flexibility ismaintained to deal with pressures of inequities.

The option of moving local governments to catchmentboundaries has been suggested as one possiblemethod of achieving the relevant suggested criteria. Ifthis occurred, the Australian community might thenchoose to migrate to a national, rather than a federal,government model. The suggested criteria for a legalframework is capable of implementation under eitherconstitutional arrangement.

:��-��)��)��)��(��+��%��

The importance of a comprehensive set of provisionsembodied in a unified framework together withmandated standards for ecosystem protection cannotbe overstated (Industry Commission 1997).

The nature and extent of the role of legislation inecologically sustainable water management (ESWM)however will depend to a large extent on the degree towhich other non-statutory mechanisms are utilised.

The desired transition to ESWM must involve a mix ofmechanisms, the effectiveness of the mix determiningthe level of reliance on the legislation. These othermechanisms include:

Market mechanisms

Improving the markets for natural resources is astrategy which policy makers are presently examining(Productivity Commission 1999). However some seethe market as fundamentally flawed in its ability todeliver the scale of protection needed for the publicinterest or they see the reforms coming too late andtoo minimally. There is no question that majorreforms are needed to direct the operation of marketmechanisms to ensure that:

• markets facilitate efficient use of resources (truecosts, rights mechanisms);

• markets recognise non-use values (environmentalaccounting);

• market failure and negative externalities arereduced; and

• markets promote technologies and products basedon the full set of sustainability criteria.

(Lockwood 1999).

Public financing

Public funds may be used in a number of innovativeways. Subsidies, incentives, industry assistance andothers are usually contingent upon landownerparticipation being demonstrated through either amanagement agreement such as conservationagreements under the Nature Conservation Act (1992)in Queensland for example, or through a propertyplan which may be required for assignment or say awater licence in a regulated river system.

Integral to these requirements is the specification ofwhat is required for environmental protection anddemonstrated adherence to these requirements.Sustainability is increasingly specified through bestmanagement practices (BMPs) and industry codes ofpractice.

Examples of this incentive-based approach include:

• local government-initiated rate rebates forvoluntary conservation agreements;

• rate rebates through funds from State or Federalgovernments; and

• reduced fees for licences or permits (initial feesand annual fees).

Direct government assistance usually relates to someform of ties for landholder performance. This tiedarrangement can be applied to:

• allocation of leases or issue of licences;

• landholder compliance with best managementpractices (government code of practice) or licencerequirements when licensing of agriculture isintroduced under a State’s environment protectionlegislation; and

• landholder agreements for example conservationagreements.

A critical appraisal and analysis of initiatives on taxincentives for environmental protection is urgentlyneeded as part of the current investigations of taxreforms. This applies to taxes by Commonwealth andState governments. Investigations should include:

• accelerated depreciation on capital expenditureincurred by a taxpayer undertaking measures forprotection of the environment or to addressdegradation;

• rates reductions or exemption;

• exemption from capital gains tax;

• deductibility of non-income producing expenditure;

• deductibility for donations; and

��

• recognition of vegetation management in primaryproduction category to allow exemption from landtax.

While there is considerable debate about the potentialwhich market mechanisms have to deliver ecologicalobjectives the next five years will no doubt see theirgreater application to water resource managementand sustainable use (Young 1997).

Dissemination of environmental knowledge andknow-how

Dissemination of environmental knowledge and know-how is an important mechanism in promoting rivermanagement and restoration at all levels. The needfor know-how exists in agencies as well as in thecommunity. Although education cannot function as analternative to regulation, legislation can be seen toinitiate the culture change which creates ‘readiness’to receive information.

3��&7��- ��"��

Future work should address specific questions arisingfrom this report about legislative frameworks,legislative mechanisms as well as the effectiveness ofthe legislation in practice including legislation’s role inthe mix of mechanisms.

Several suggestions for future investigations directlyresulting from this project are made here.

1. Conduct of a five-yearly update of all or selectedriver-related legislation in each State and Territory,on the lines of the NSW EDO review of inland riverslegislation in 1994 (EDO 1994). This work could bedesk top based or with considerably more funding,could evaluate the legislation in practice.

2. Comparative study of key water resources(specifically Water Acts) legislation in leadingjurisdictions in Australia and internationally. Thisstudy would assess the comprehensiveness of thestatutes in terms of river management andrestoration objectives; the priority and weighting(primacy) given to these objectives, and themechanisms used to achieve integrated planning,coordinated decisions, agency accountability andindustry/landholder duty of care. This comparativework needs to address legal interpretation andlegal processes (legal research) as well asexamining legislation in its broader policy context(social research).

3. Selected evaluation studies of the legislation inpractice, and outcomes it contributes to. Farrier(1999) values investigation of key river-relatedlegislation in selected catchments in leadingjurisdictions as a way of understanding how thelegislation works in terms of overlaps, enforcementmechanisms and integration.

��

��

AACM International with Centre for Water PolicyResearch 1995, Enhancing the effectiveness ofcatchment management planning: final report,Department of Primary Industries and Energy:Canberra.

Allan, J. & Lovett, S. 1997, Impediments to ManagingEnvironmental Water Provision, Bureau ofResource Science, Canberra.

Alexander, N. (managing ed.) 1996, Australia: State ofthe Environment 1996. CSIRO Publishing,Canberra.

ANZECC 1992, National Water Quality ManagementStrategy, Australian Water Resources Council,Canberra.

ARMCANZ 1995, Water Allocations and Entitlements – ANational Framework for the Implementation ofProperty Rights in Water, Task Force of COAGWater Reform Occasional Paper No 1 October1995, Commonwealth of Australia, Canberra.

ARMCANZ / ANZECC 1996, National Principles for theProvision of Water for Ecosystems, OccasionalPaper SWR No 3 July 1996, Commonwealth ofAustralia, Canberra.

Arthington, H. 1998, ‘Introduction’, in ComparativeEvaluation of Environmental Flow AssessmentTechniques: Review of Holistic Methods,Occasional Paper 26/98, LWRRDC, Canberra.

Banens, B., Davies, P., Maher, W., Robinson, S., Tait, D.,Volker, R., Wasson, B. & Watson-Brown, S. 1996,‘Inland Waters’, in State of EnvironmentAustralia, N. Alexander (managing ed.), CSIROPublishing. Canberra.

* Bartlett, R., Gardner, A. & Mascher. S. (ed.) 1997,Water Law in Western Australia – ComparativeStudies and Options for Reform, The Centre forCommercial and Resources Law and TheUniversity of Western Australia: Nedlands,Western Australia.

* Bates, G. M. 1995, Environmental Law in Australia,Fourth edition, Butterworths, Sydney.

Bradsen, J 1991, Perspectives on Land Conservation,EPLJ 126.

Brandow, C. 1992, Integration: watersheds do it, whydon’t we? California Department of Forestryand Fire Protection, http://glinda.cnrs.humboldt.edu/WMChome/news/fall_92/integration.html

Brisbane Region Environment Centre, 1998, http://users.pasdex.net.au.webinc/news/current/waterway.html, 10 Mar 1999

California Coastal Commission 1999, ProceduralGuidance Manual: II. Regulatory Setting, Centrefor International Economics 1997,www.ceres.ca.gov.coastalcomm/nonpoint/pgm-ch2.html accessed 22 February 99.

Centre for International Economics 1997, Using fore-sighting to identify R & D priorities for LWRRDC,Centre for International Economics, Canberra.

Cooperative Research Centre for Freshwater Ecology1997, Watershed: September 1997, CRC forFreshwater Ecology, Canberra.

Council of Australian Governments, 1994, Council ofAustralian Governments Water ReformAgreement, Australian Government PublishingService, Canberra.

Cripps, E. 1998, Review of Legislation Relating toRiparian Management, Report for LWRRDC,Canberra (unpublished).

Cullen, P.W. 1997, ‘The Australian Scene: Visions forIntegrating Catchment Management’, inProceedings of the Second National Workshop onIntegrated Catchment Management, AustralianNational University, Canberra, 29 September –1 October.

Cullen, P.W. 1994, ‘A Rationale for EnvironmentalFlows’, in Water and the Environment,Newsletter No. 318 (Sep – Oct).

Cummings, B., Taylor, P. & Cleary, D., 1996, ‘A NationalPerspective on Water Resources, Law andManagement’, in Water Resources Law andManagement in Western Australia, The Centrefor Commercial and Resources Law and TheUniversity of Western Australia: Nedlands,Western Australia.

Department of Conservation and Natural Resources(Victoria) Water Bureau 1995, The BulkEntitlement Conversion Process, Bulk WaterEntitlements Report Series Report No.2,Department of Conservation and NaturalResources Victorian Water Bureau, Melbourne.

Department of Land and Water Conservation 1998,Stressed Rivers Assessment Report, NSW StateSummary, NSW Department of Land and WaterConservation, Sydney.

Doolan, J.M. & Roberts, C.J. 1997, ‘Catchmentmanagement in Victoria’, Proceedings of theSecond National Workshop on IntegratedCatchment Management,: Melbourne.

��

Dorcey A.H.J. 1997, ‘Collaborating towardssustainability together: the Fraser BasinManagement Board and Program’, in PractisingSustainable Water Management – Canadian andInternational Experiences, initials of editors edsD. Shrubsole & B. Mitchell, chapter 10, pp. 167–199, Canadian Water Resources Association,Canada.

Dovers, S 1999, ‘Public Policy and institutional R&Dfor Natural Resource Management’ in Mobbs C.& Dovers S Social, Economic, Legal, Policy andInstitutional R&D for Natural ResourceManagement – Issues and Directions forLWRRDC, LWRRDC, Canberra.

* Environmental Defender’s Office 1994, Inland Rivers– Regulatory Strategies for EcologicallySustainable Management. EDO, Sydney.

Farrier, D. 1999, Legal Research for Natural ResourceManagement, in Socio, Economic, Legal, Policyand Institutional R&D for Natural ResourceManagement: Issues and Directions for LWRRDC,Occasional Paper No 01/99, LWRRDC, Canberra.

Fisher, D.E. 1987, Natural Resources Law in Australia.The Law Book Company Limited, Sydney.

Growns, I. 1998, Comparative Evaluation ofEnvironmental Flow Assessment Techniques:Review of Methods. Occasional Paper 27/98,LWRRDC, Canberra.

The Habitat Restoration Information Center (nd)Federal Laws, Regulations and Polices Pertainingto the Protection and Enhancement of: Estuaries;Wetlands; Watercourses; Water Quality; RiparianCorridors; Floodplains; and Watersheds, TheHabitat Restoration Information Center,California, www.habitat-restoration.com/p1fed.htm accessed 22 February 99.

Healthy Rivers Commission of NSW 1997, Independentinquiry into the Hawkesbury Nepean Riversystem: draft report. Healthy RiversCommission, Sydney.

Hooper, B. 1997, ‘The Australian experience insustainable water resource management’, inPractising Sustainable Water Management –Canadian and International Experiences, edsD. Shrubsole & B. Mitchell, chapter 13, pp. 236–259, Canadian Water Resources Association,Canada.

Industry Commission 1997, A Full Repairing Lease,Industry Commission, Canberra.

Ingram, H.M., Mann, D.E., Weatherford, G.D. & Cortner,H.J. 1984, ‘Guidelines for improved institutionalanalysis in water resources planning’, WaterResources Research; vol. 20 no. 3, pp. 323–334.

Johnson, P. 1999, ‘Urban stormwater – partnerships toimprove environmental performance’, inProceedings International Conference on DiffusePollution “Solutions – Innovations” 16–20 May1999, IAWQ and AWWA, pp. 258–269: *.

Joyce, J. 1992 Ulysses, Penguin, London, pp. 782–784.

Kunert, C. & McGregor. A. 1996, Wild RiversConservation Management Guidelines – ADiscussion Paper, Australian HeritageCommission, Canberra.

Lockwood, M. 1999, ‘Environmental Economic R&D forSustainable Natural Resource Management inRural Australia: a Potential Role for LWRRDC’,in Social, Economic, Legal, Policy andInstitutional R&D for Natural ResourceManagement: Issues and Directions for LWRRDC,Occasional Paper No 01/99, LWRRDC, Canberra.

de Loe, R. 1997, Practising the Principles:Sustainability and the Oldman River Dam, inPractising Sustainable Water Management –Canadian and International Experiences, edsD. Shrubsole & B. Mitchell, chapter 13, pp. 236–259, Canadian Water Resources Association,Canada.

LWRRDC 1996, Managing Riparian Land – RiparianManagement 1 (brochure), LWRRDC, Canberra.

Martin, P. & Woodhill, J. 1995, ‘Landcare in theBalance: Government Roles and Policy Issuesin Sustaining Rural Environments’, AustralianJournal of Environmental Management, vol. 2 no.3, pp. 157–173.

Mary Maher & Associates & Nichols, P. 1998, Interimreport: Brisbane River Management Plan –regulatory review, Unpublished report to theBrisbane River Management Group, Brisbane(January).

Mary Maher & Associates, Environmental Sciencesand Services & McDonald, G.T. 1998, BrisbaneRiver Management Plan; options paper onregulatory and management arrangements.Unpublished report to the Brisbane RiverManagement Group: Brisbane (March).

Mascher, S. 1997, ‘Reforming Water QualityManagement in Western Australia’, in WaterLaw in Western Australia – Comparative Studiesand Options for Reform, eds R. Bartlett, A.Gardner & S. Mascher, The Centre forCommercial and Resources Law and theUniversity of Western Australia, Nedlands,Western Australia.

Mason, R.O. & Mitroff, I.I. 1981, Challenging strategicplanning assumptions: theory, cases andtechniques. Wiley: New York.

��

McCosker, R.O. 1998, Comparative Evaluation ofEnvironmental Flow Assessment Techniques:Review of Methods, in Occasional Paper 27/98,LWRRDC, Canberra.

Mitchell, B. 1999, ‘Partnership Arrangements toAddress Diffuse Pollution Issues’, inProceedings International Conference on DiffusePollution, C. Barber, B. Humphries, & J. Dixon(eds), Perth Sheraton, Western Australia, 16–20May, CSIRO, Western Australia.

Mitchell, B. (ed.) 1990, Integrated water management:international experiences and perspectives.Belhaven, London.

Mitchell, B. 1989, Geography and resource analysis.Second edition, Longman Scientific andTechnical, Harlow.

Mitchell, B. 1987, A comprehensive integrated approachfor water and land management, Occasionalpaper no. 3, Centre for Water Policy Research,University of New England, Armidale.

Murray–Darling Basin Ministerial Council 1995, AnAudit of Water Use in the Murray– Darling Basin,Murray–Darling Basin Ministerial Council,Canberra.

Nichols, J. 1998, Future directions of integratedcatchment management in Queensland, based onsuccessful models in Canada and New Zealand,Unpublished thesis, Department ofGeographical Sciences, University ofQueensland, Brisbane.

Patuxent River Commission 1999, Chesapeake Bay –Know Your Watershed, Patuxent RiverCommission: USA, www.dnr. state.md.us/bay/tribstrat/index.html accessed 5 May 99.

Productivity Commission 1999, Implementation ofEcologically Sustainable Development byCommonwealth departments and agencies,Productivity Commission draft report,(February) Canberra.

Pusey, B.J. 1998, Methods addressing the flowrequirements of fish, in Comparative Evaluationof Environmental Flow Assessment Techniques:Review of Methods, Occasional Paper No 27/98,LWRRDC, Canberra.

Rittel, H.W.J. & Webber, M.M, 1973, ‘Dilemmas in ageneral theory of planning’, Policy Sciences,vol. 4, pp. 155–169.

Shrubsole, D. 1996, ‘Ontario Conservation Authorities:Principles, Practice and Challenges 50 yearslater’, Applied Geography; vol. 16, pp. 319–335.

Snowy Water Inquiry 1998, Snowy Mountains Inquiry –Final Report, Snowy Water Inquiry, New SouthWales.

Terrill, D. 1998, Riparian Zone Management – Review ofLiterature, Centre of Environmental AppliedHydrology, University of Melbourne,Melbourne.

Wallis, R. 1996, ‘Integrated Natural ResourceManagement’, in Water Resources Law andManagement in Western Australia, The Centreof Commercial and Resources Law and TheUniversity of Western Australia, WesternAustralia.

Welker, C.H. 1996, ‘Pollution Control and Water QualityManagement in Western Australia’, in WaterResources Law and Management in WesternAustralia, eds R. Bartlett, A. Gardner & S.Mascher, The Centre for Commercial andResources Law and The University of WesternAustralia, Nedlands, Western Australia.

Young, M. 1997, ‘ICM in 2020: conditions that will makeAustralian ICM exemplary’, in Proceedings ofthe Second National Workshop on IntegratedCatchment Management, Melbourne.

��

��

Access licenceA licence issued for the future right to take water

AllocationGiving a person an entitlement to use water orsetting aside a water resource for a designated use

BasinThe area that drains water into a river system,including all its tributaries

BiodiversityThe variety of all life-forms; the different plants,animals and micro-organisms, the genes theycontain and the ecosystems they form; oftenconsidered at three levels; genetic diversity,species diversity and ecosystem diversity

CatchmentThe area determined by topographic featureswithin which rainfall will contribute to run-off at aparticular point under consideration

Codes of practiceSets of guidelines adopted by managementagencies concerned with minimising impacts ofoperations on the environment (for example soilerosion) and safety

Consumptive useAny activity that depletes the total flow or volumeof water in a water body

DiversionThe movement of water from a river system bymeans of pumping or gravity channels

Diversion licenceSpecified licences issued for a specific annualvolume and diversion rate

Ecologically sustainable development (ESD)Development of the State’s water resources in away and at a rate which provides for and protectsthe well-being of people and their communities.

EcosystemA dynamic complex of plant, animal and micro-organism communities and their non-livingenvironment interacting as a functional unit

EntitlementThe right to make use of water resources.

Environmental indicatorPhysical, chemical, biological or socio-economicmeasures that can be used to assess naturalresources and environmental quality

EstuaryArea of an inlet or river mouth that is influencedby the tides and also by fresh water from the land;area where fresh and salt water mix

FloodplainThe floodplain, which includes the riparian zone,is that part of the land adjacent to the river that issubject to flooding (to the 100 year level) andconsists of a mosaic of aquatic and terrestrialenvironments that are intricately linked with theriver

ImpoundmentA pond, lake, tank, basin, or other space, eithernatural or created in whole or part by the buildingof engineering structures, which is use for storage,regulation and control of water

Indicator speciesA species used to assess the health of anecosystem

IrrigationSupplying land or crops with water by means ofstream, channels or pipes

Murray–Darling Basin AgreementThe agreement between the Governments of thefour Basin States and the Commonwealth.

National Competition PolicyProvides for the application of third party access,competitive neutrality and prices oversightprinciples to Government business activities, andincorporates the COAG water reform agenda.

National estateThose places, being components of the naturalenvironment of Australia, or the culturalenvironment of Australia, that have aesthetic,historic, scientific or social significance or otherspecial value for future generations as well as forthe present community

��

Permanent transferThe transfer of water entitlements on a permanentbasis. The right to permanent transfers allowsirrigators to make long term adjustments to theirenterprise and enables new operators to enter theindustry.

Point source pollutionPollution from an easily discernible, single sourcesuch as a factory

PollutionThe direct or indirect alteration of the physical,thermal, biological or radioactive properties of anypart of the environment in such a way as to createa hazard or potential hazard to the health, safetyor welfare of any living species

Precautionary principleWhere there are threats of serious or irreversibleenvironmental damage, lack of full scientificcertainty should not be used as a reason forpostponing measures to prevent environmentaldegradation

Regulated flowFlow that is controlled through the use of damsand weirs to supply water for consumptive uses.Regulation usually has consequent impacts on thenatural hydrograph.

RehabilitationProcess of improving the physical and biologicalcondition.

Riparian zoneThe riparian zone is the channel margin, under theimmediate influence of median flows.

Riparian landAny land which adjoins or directly influences abody of water. It includes:• land immediately alongside small creeks and

rivers, including the river bank itself• gullies and dips which sometimes run with

surface water• areas surrounding lakes• wetlands on river floodplains which interact

with the river in times of flood (LWRRDC 1996)

RiverThe river is a channel, channel network, or aconnected network of waterbodies of naturalorigin and exhibiting overland flow (which can be

perennial, intermittent or episodic) in which theyfollowing operate:• the biological, hydrological and

geomorpholigical processes associated withriver flow; and

• the biological, hydrological andgemorphological processes in those part of thecatchment with which the river is intimatelylinked (adapted from Kunert et al. 1997 viii). Ariver has been defined in California’s Wild andScenic Rivers Act 1972 as: ...the water, bed, andshoreline of rivers, streams, channels, lakes,bays, estuaries, marshes, wetlands and lagoonsup to the first line of permanently establishedriparian vegetation. www.habitat-restoration.comp1ca.htm p4, accessded 22February 99

River regulationThe formulation and execution of a specificoperating plan for flow modification of water in ariver system; may involve the creation ofimpoundments and diversion and the control andflow to and from such storages

RestorationReturning existing habitats to a known past stateor to an approximation of the natural condition byrepairing degradation, by removing introducedspecies or by reinstatement (Australian NaturalHeritage Charter, 1997 p8)

Unregulated flowTributary inflow events downstream of storages orflows over storage spillways

Water allocation and management plan (WAMP)A basin-wide process involving the identification ofenvironmental flow objectives, water entitlementsecurity objectives and developmentopportunities. Under proposed water resourcemanagement legislation an approved WAMP will besubordinate legislation.

WatercourseA watercourse can be a river, creek or stream inwhich water floes permanently or intermittentlyincluding natural channels and natural channelsartificially improved or which have changed thecourse of the watercourse, upstream of the tidallimit. It includes bed and banks and any otherelement of a river, creek or stream that confines orcontains water.

��

��

5�)��$ 5�)��& 5�)��' 5�)��( 5�)��D

�� & ��&�� &�� &�� &��

�� ? � � �?3JB � � �?3JB ��!��&��!

3JB �� & ��

��@�� & ��!��

��

)�� *�

(&�� >�� 7�!�� 7�!�� 7�!��

)�� !��!��

� ��&�� !�� /��!�� 7�!�� 7�!�� 7�!��

)�� *��!�� !��

� ��&�� !�� /��!�� 7�!�� 7�!�� 7�!��

��

� ��&�� >��D�� ,� ��!� ! ,� ��!� ! ,� ��!� !

��

� ��&�� &�� ,� ��!� ! ,� ��!� ! ,� ��!� !

�� *�� *��*��*��*��

>�� >��D�� 3��D!� ! 3��D!� ! 3��D!� !

�E��*��*�� *��

� ��&�� &�� 9� !�� 9� !�� 9� !��

�� &�� & �� &�� & �� &

!� !�&�� !� !�&��

�E��* �� 8��

:�� &�� ,� ��!� ! ,� ��!� ! ,� ��!� !

�E��* ��

� ��&�� >��D�� 3��D!� ! � ��&�!� ! � ��&�!� !

��

�� *��*��

>�� >��D�� ,� ��!� ! ,� ��!� ! ,� ��!� !

)��

J�� 3��D!� !�� 3��D!� !�� 3��D!� !��

)��* �� *��*��

(&�� >��

)�� *�� 6��

(&��!�� /��!�� 7�!�� 7�!�� 7�!��

)��

(&�� >��

��

��

.�� ?��%��& ,��!� �� >� �� 7��#--0

>�� 7��#-.-

+ �� 7��#-��

*��I�� $��7��#-.-

$��7� �� 7��#--�

$��4 ��&�7��#--0

+��&�� $��7��#-.-

$��7� �� 7��#--�

,��!� �� >� �� 7��#--0

,�� >� ��*��7��#-.�

2�� 2�� 7��#-..

9�� *��7��#--5

2��7��#-�.

,��!� �'�� ?�� ,��!� �� >� �� 7��#--0

�� + �� 7��#-.�

,� �� '�2�� >� ��7��#-.�

>� ��7��#-�.

>� ��,� �� 7��#-��

>� �� 7��#-.-

:�� 1��7��#-��

*� ��7��7��#-�.

B�� >� ��7��!��&�7��#-�-

(�� ,� �� A��7��#-�5

,��3� � � ��7��#--�

,� �� '�2�� >� ��7��#-.�

+ �� +��7��#-�.

7�� *��7��#-.�

7�� *��3� � � ��7��#--�

4 �� !� ��

>�� 7��#-.-

,��!� �� >� �� 7��#--0

�� )��7 � ��7��#-.�

3�� $��,�� 7��#--5

3��&D/�� )�� 7��#--�

� ��&�3�� + � � �,�� 7��#--5

$��*��,�� 7��#--5

3�� ?��%��& + �� 7��#--0

��,� �� 7��#-.C

��&�7��#-5-

,� �� >� ��7��#--5

7 ��,!��/�� ,� ��7��#-CC

,!��B�� 7 �� (�� &��,� ��7��#-..

7 �� (�� &�,!��H� �� 7��#--0

��!@+��H� �� $��7��#-�-

*��I�� $��*��7��#-.-

*��4�� A��7��#-0�

��>�� 7��#-�C

3� ��*��7��#-.-

3� � ��2��1� ��7��#-.�

��

��

+��&�� $��*��7��#-.-

:��,� �� 7��#--5

*��>� �� 7��#-.�

>� ��7��#--0

��,� �� 7��#-.C

,��!� �'�� ?�� >�� 7��#--�

4 � �� 7��#--�

$��*��7��#-.-

>� ��7��#--0

*��>� �� 7��#-.�

*�� 7��3� � � ��7��#-..

,�� 3� � � ��7��#--�

2��&�7��#-�-

2��!��7��#--0

$��A��$��9�� 3� � � ��7��#-.�

�� * �� /�� 7��#-�#

4 � ��*��/�� 7��#-.�

A� ��4 ��7��#--0

4 �� !� ��

:��A��7��#--�

4 � �� 7��#--�

��*�� ?��%��& �� !�+ �� 7�� 7��#--5

�� ,� ��7��#-��

,� �� >� ��3� � � ��7��#--�

+ �� J�� I�� 7��#-.-

�� !�+ �� J�� 7��#--.

,�� $��7��#-��

$��7��#-#5

*��I�� + �� I�7�� 7��#-�-

4� �� 7��

��,� �� 7��#-�.

� ��&�3� ��9&��7 � ��7��#-�.

2��&�7��$��7��#-#5

2��!��3� � � ��7��#--0

,�� >� ��7��4� �� 7��#-#5

*�� 2��!��4�� 7��#-0.

$��&�7��!��7��#-.�

3� � �7��#--5

+��&��?*�� ?2��!�!��

,�� 7��#-�-

:�� 1��I�$��7��#-�0

A!�� ,� �� 7��#--�

:��( �� ,� �� 7��#--�

,�� >� ��7��#-.-

2��!��3� � � ��7��#--0

+ �� 7�� 7��#-�-

>�� 7��#--�

*�� 2��!��4�� 7��#-0.

��,� �� 7��#-�.

:��!�$��D�H� �� )��*��7��#-0�

,��!� �'�� ?�� ,��!� ��3� � � ��7��#-.-

*�� 2��!��4�� 7��#-0.

,�� 7��#-�-

,�� 7� �� 7��#--.

��

,�� 3� � � ��7��#-.-

/�� 7��#-�-

2��&�7��#-#C

,�� 3� � � ��7��#-.-

,� �&� �� 7��#-#-

$�� >� ��7��#-�#

4� �� 7��#-#5

,�� >� ��,�� >� ��,� �� 7��#-.-

+ �� 7�� 7��#-�-

>�� 7� �� +�� /��

7��#--�

*�� 2��!��4�� 7��

#-0.�*��7��#--�

*��2��7��#--�

*��>� �� 7��#-.-

$�� 7��#-.�

4 �� !� ��

>�� 7��#--�

3��&D/�� )�� 7��#--5

$��7�� 7��#-.C

��*�)�� ?��%��& + �� 7��#--�

$��1��7��#-�5

�� + �� 9��!�7��#-.�

$��7�� 7��#-.C

,��!� ��$��3� � � ��7��#--�

*��I�� $��*��7��#--�

$��,� �� 7��#-�C

��! �+�� $��,� �� /�� 7��#--5

3�� /�� 7��#-��

4� �� 7��#--0

4� �� >� ��A ��7��#-��

+��&�� $��*��7��#--�

/�� 7��#--�

:��( �� 7��#--#

$�� 7��#--5

:�� 1�� $��7��#-�5

,��!� �'�� ?�� $��*��7��#--�

��,� �� >� ��,��7��#-.-

$��,� �� 7��#-�C

��>� ��3� � � �� ,� �� 7��#-.-

2��&�7��#-.�

/�� 7��#--�

,�� >� ��7��#-5-

,�� &�2��7��#-.-

,�� 7��#-�5

9�� 7��#--�

>� ��7�%�� 7��#-C-

>�� 2��&�*��7��#-00

4 �� !� ��

$��*��7��#--�

3��&D/�� )�� 7��#--�

>�� 7��#-�0

�� $��)��7 � ��7��#-.�

��

��*��#�� ?��%��& $��7��#--5

*��I�� >� ��7��#--5

��1�*�� A�� 1�7��#-�0

$��&�� 7��#-.�

+��&�� A��&��1�� $��,� �� 7��#-��

)��!��7��#-.�

,� �� ,�� 7��#-.�

��,� �� >� ��B�� 7��#-��

,��!� �'�� ?�� $��7��#--5

��,� �� >� ��B�� 7��#-��

,�� >� ��7��#--5

+ �� 7�� 7��#-.5

��1�� $��,�� 7��#-.�

�� 7��#--�

9�� ,� �� 7��#--#

4 �� !� ��

$��7��#--5

�� $��7��!��&�7��#-.�

# �� ?��%��& $��7��#-��

��&��$��H��&�+ �� 3� � � ��

,� ��7��#--0

�� /�� 7��#-�0

*�� $��7��#-�0

*��I�� $��7��#-��

$��*��4 �� 7��#-��

$��A��$��7��#-C�

:��!�$��* �� $��7��#-.�

:��!�+�1�* �� $��7��#-C�

3� ��*��/�� 7��#--�

>� ��B�� 7��7��#--�

�� 7��#-.�

2��$��/�� 7��#-.�

9&��@+��,�� 7��#-00

+��&�� &��$��H��&�,�� >� ��7��#-�C

4 �� 2��!��7��#--�

:�� 1�� $��7��#-��

A!�� 7��#--�

,��!� �'�� ?�� *��3� � � ��I�� &��#--0

>�� 7��#--�

>� ��B�� 7��7��#--�

*�� 8��7��#-��

��>� ��7�� 2��7��#--#

2��&�7��#-5�

��2��7��#--#

>�� 9� !��&��7��#-.5

>� ��B�� 7��7��#--�

2��7��#-.�

,� �&� �� >��&�7��#..0

4 �� !� ��

>�� 7��#--�

�� "��7��#--�

:��! �* �� $��7� � ��7��#--�

9��* �� $��7� � ��7��#--C

��

��)�� ?��%��& + �� 7��#-.C

*��I�� *� !�� $��I�4� �� 7��#-#0

,�� &�7��$��&�7��#-0�

*� !�� $�� 4� �� 7��#-#0

2��!�*��3� � � ��7��#--0

+��&�� + �� 7��#-.C

$��&��,� �� 7��#-�C

,� �� >� ��3� � � ��7��#-.0

$��,� �� 7��#-��

��1�� *��7��#.-�

,��!� �'�� ?�� >�� 7��

$�� 7�� 7��#--C

�� >� ��,� �� 7��#-0�

7�� 7�� 7��!��&�7��#-�5

7 ��7��#-..

>� ��7�%�� $�1��7��#-�5

>� ��7�� 7��#--�

3�� *��7��#-��

A�� /�� 7��#-5.

A� ��>� ��7��#.-�

)��!��7��#-�0

4 �� !� ��

$��&��,� �� 7��#-�C

$��&�� *��,�� 7��#--�

$��)��7��#-�0

$��,�� 7��#--�

$��7 ��7��#-.0

$��,�� 7��#--�

3�� * �� A�� !��7��#-�-

�� *��A��7��#-..

7 �� )��7��#-��

$�� 7�� ,�� 7��#-.�

)�� 5 �� #��

�� ?��%��& $�� 7��#-.0

+ �� 7��#--�

,��*��7��#-#0

*��I�� 7,A�$��*��7��#--.

7,A�$��H��&�� #--��7��

>�1��7��#-�C

,� ��$��&�� /��7��#--�

+��&�� 2��+ �� 4��4��7��#-�0

��:��,� �� 7��#-.�

+ �� 7��#--�

,�� !�+ �� 7��#--�

+ &�� $��7��#-..

�� >� ��7��#-��

��1��7��#-5.

>�1��7��#-�C

$��*��7��#--.

+ �� 7��#--�

>� �� + �� 7��#--#

,��*��7��#-#0

:�� >� ��J�� #-.-

��

,��!� �'�� ?�� 2��7,A�� >� ��3� � � ��7��#-..��!�:��

,�� :�� >� ��J�� #-.-

��>� �� + �� 7��#--#��!�A!�A��&

�� #--�

4 �� !� ��

2��7,A�� >� ��3� � � ��7��#-..

��>� �� + �� 7��#--#

7,A�� 7��#-..

?� �F< ��> ��

4 �� !� ��

3��&�/�� )�� 7��#--��I��

3��&D/�� )�� 7 � ��#--��

3��&D/�� )�� 3� ��,�� !�� @��1� ��

3��&�/�� ,�� !��

5��

��G� � �� ?��%��& *��3� � � ��7��#--#

��,� �� *��,� ��7��#-0#

+ �� 7��#-.C

,� �� 7��#-.�

9��!�7��#-�C

>��7��#-�-

*��I�� *��3� � � ��7��#--#

2��!��7��#--C

+��&�� *��3� � � ��7��#--#

+ �� 7��#-.C

,��!� �'�� ?�� *��3� � � ��7��#--#

>� ��/�� 7��#-�.

*��7��#-��

4 �� !� ��

*��3� � � ��7��#--#

*��)��7��#-�.

+ �� 7��#-.C

>�� 7��#-�0

5 � � �� ?��%��& ,� �� 7��

*��I�� '��

+��&��

,��!� �'�� ?�� ,� ��$��7��#-��

,� �� + �� 7�� 7��#--5

4 �� ,��!� ��3� � � �

,� �� 7��#-.5

,� ��$��7��#-��

2�)�� ?��%��& 2��$�� ,� ��7��#-�C#-�5

$�� ,� ��7��#-�5

,�� >��&�7��#-�5

*�� 9��7��#.--

*��I�� $��!�� I�2�� 7��#-.�

$��*��/�� 7��#-.C

��

+��&�� :��!�7�� $�� ,� �� 7��#-.-

+� �&�$�� *��7��#-.C

,��!� �'�� ?�� :�� $�� *��7��#-C.

,��K� �3� � � ��7��#-�5

+��&�� 7��#-C.

:�� 2��4 �� 7��#-C.

,��$�� I�*�� 7��#--�

*��,� � �� #-�5

:�� + �� &�7��#-C-

,��! ��+ �� *�� '�,�� I�>��&�7��

#-.�'�#-.C

2��I��&�7��#-.�

2�)�5 �� 4 �� !� ��

,�� + �� H��&�7��#-��

,�� $��,��@,�� $��H��&�,� ��7��#-��

,�� $�� *��7��#-�5

,�� ,��7��#-�C

��2��7��#-�0

�� 3��7��#-��

��3� � �� *�� 7��#-��

� ��,� �� *�� #-�-

B�� ,1�*�� 2��,� ��7��#-.0

$�� *��&�,�� *�� 9��,� �� 7��

#--5

� ��4 ��,� ��7��#--5

��>�1�7�� 7 � �

��

��#��"�#��2�"��#�$��%�

$��+=��77=@4��A)*��@=��A

I have been asked to peer review this draft report. Inparticular I am asked to comment, firstly, on whetherthe report provides an integrated review and a validset of criteria for best practice legislative frameworks;and secondly on whether the individual topic reviewsprovide the insights and understandings to form thebasis of the overall framework criteria. The terms ofreference for the report, and method of approach forthis review have been agreed with the client, LWRRDC,and are summarised in Part 1.

In general I would answer both questions in theaffirmative. The consultants were initially selected onthe basis of their insights into the problems beingaddressed in the report and these insights andunderstandings have been demonstrated and welldeveloped in the report. The evidence accumulatedduring research justifies the selection of criteria forbest practice legislative frameworks and theobservations and recommendations made in thereport. More specific comments are made below. Itmay be assumed that if I have not commented upon afinding, opinion, suggestion or conclusion that I am inagreement with the relevance and thrust of thatfinding or approach.

7!��6��6"��#��!

The report correctly identifies the necessity for awhole-of-government approach to resourcemanagement as the key to achieving better riverinemanagement. The evidence clearly suggests andjustifies an integrated catchment based approach. Ialso agree with the fundamental assertion that thepurpose of the legislative scheme should not just beto hold the bottom line (an approach that has clearlyfailed to date) but should encompass steadyrestoration. Equally clearly, current legislative andinstitutional arrangements generally do not recognisenor support such an approach. How legislative andpolicy initiatives can deliver such an approach isobviously the fundamental issue to be addressed.

Some specific criteria for legislative initiatives will bediscussed shortly. It seems to me however that beforethe specifics of legislation can be addressed, we needto consider whether, and if so how, currentinstitutional arrangements could deliver the preferredapproach. The report correctly identifies inter-agencyrivalry, lack of jurisdictional power, and narrow visionas adverse influences arising from current legislative

��

and institutional arrangements. Many of theinfluences that impact on riverine environments areexpressly permitted by government authorities thathave no mandate to act in the best interests of theenvironment; or if they do, in fact operate within anarrow band of legal authority rather than ecologicalreality, dictated by the legislative framework underwhich they derive their powers. The first crucialquestion therefore in redesigning legislativeapproaches must be to determine how we deal withthis in the legislative scheme.

As a preferred approach to drafting legislation, I thinkthe fundamental objective must be to give decisionmakers a wide range of discretionary tools to enablethem to adopt preferred management approaches;that is, the flexibility stressed in the report. We can beprescriptive about what decision making should seekto achieve, and the criteria that must be taken intoaccount; but we should not be too prescriptive aboutdirecting what needs to be done and how it should bedone. Legislation must enable the best managementdecisions to be determined, implemented andenforced; although within a structure that directs apreferred approach.

��%��

The report suggests firstly a national bindingframework for rivers and that the Commonwealthshould play a key and enhanced role. It is not entirelyclear whether these objectives are to be realised bylegislation or policy development. The latter would bein accord with the current concept of cooperativefederalism presently supported by Commonwealthand State governments; that the role of theCommonwealth should be one of initiation,coordination of effort, and support. This approachhas seen the development of a number of nationalstrategies for addressing environmental issues duringthe 1990s, including water reform. Under such anapproach, the Commonwealth clearly relies onimplementation by the States of a negotiated agreednational approach. As a preferred approach forriverine management this has the advantage of notonly reflecting current practice and political reality;but arguably, if standards of management are agreedby all parties, they are more likely to be implementedthan if national standards were simply imposed by theCommonwealth using its undoubtedly superiorconstitutional powers. Any suggestion for nationallegislation is not likely to be supported; exceptperhaps to the extent that a body similar to theNational Environment Protection Council (NEPC)could be established to draw up proposed standards,guidelines, goals and protocols for riverine

��

management; for example the river management andrestoration standards referred to in the report. Theserecommendations would then be incorporated intoState legislation or policies.

Either way, implementation of river managementpolicies will depend upon State initiatives.

The other significant role for the Commonwealthrecognised in the report is, of course, project funding,particularly through the Natural Heritage Trust. In thisregard note that the Commonwealth Auditor Generalhas declared that it is impossible to evaluate theeffectiveness of Commonwealth funding of naturalresource conservation initiatives because ofinadequate auditing of performance (CommonwealthNatural Resource Management and EnvironmentPrograms, Audit Report No. 36 1996–97

It follows from these comments that I do not considerthat a Commonwealth interventionist approach, (ifthat means exercising legislative muscle, see p. 52 ofthe report) would be an appropriate model forAustralia. Rather that national standards should beintroduced by way of a national strategy developedand agreed to by all governments.

'��

The suggested approach at state level seems to be fora single agency to take control of riverinemanagement on the basis that the current division oflegislative and management responsibilities leads to afragmented, inefficient and inconsistent approach toriver management. This opinion is clearly supportedby the research and by evidence of current practice.The report seems to suggest that such a riverineagency should be established for each catchmentrather than accord power to one single agency ofcentral government; although inevitably suchcatchment based authorities are likely to operateunder the umbrella of a central government authority.Certainly there is no reason why catchmentmanagement authorities could not be given blanketpowers to control riverine management in eachcatchment, and I am in general agreement that thepowers of such authorities, or indeed the powers ofany central government authority if that is thepreferred alternative approach, need to be radicallyimproved if the objects are to be achieved. In thisregard note that the NSW approach is not one thatgives enforceable powers to the catchmentmanagement authorities to manage catchments; theyare very much advisory only. However the germ ofsuch a legally empowered catchment managementauthority has now been introduced in NSW followingthe public disquiet evidenced during the SydneyWater crisis that inadequate catchment managementwas the prime source of the problems affectingSydney’s drinking water quality. Under the Sydney

Water Catchment Management Act 1998 the SydneyCatchment Authority will now regulate activities inthe catchment.

If catchment management authorities are to becreated then their functions will need to be defined bylegislation, and they will need to be invested withpowers by legislation. Even if this option of creatingseparate agencies is rejected, the evidence suggeststhat existing legislation and institutional arrangementssimply are not adequate to achieve acceptableriverine protection and in any case legislativeamendment of some sort will be required.

Given that adverse effects on catchments are causedby a wide range of activities, carried on or sanctionedby a wide variety of government agencies, what arethe essential legislative amendments that need to beintroduced? Are other government authoritiesundertaking or authorising activities that mightadversely impact on catchments going to be required,through legislative amendment, to undertakeenvironmental investigations and have regard toenvironmental considerations before makingdecisions? The report indicates at page 62 (and seealso page 85) that a critical factor is rationalisation oflegislation, and I agree with this assessment. Existinglegislation could be amended; but perhaps an easierway to achieve desired objectives is to introduceconcurrence requirements for any activity that mightsignificantly affect a catchment. All such proposalswould then need concurrence from the catchmentmanagement authorities. The advantage of thisapproach is that it builds upon recognised proceduresfor concurrence in most jurisdictions; while theconcept of a ‘significant effect’ is also one that hasalready been introduced and indeed judiciallyexamined, in most jurisdictions, for example inrelation to environmental assessment of development.This can be accompanied by attempts to changeculture within existing development orientedinstitutions of government; but reliance on this alonewill not achieve the desired objectives in the short tomedium term. I think it is unavoidable that catchmentauthorities will need regulatory powers ofconcurrence for all activities that might significantlyimpact upon the achievement of their objectives.

��"��#

The Report correctly identifies the main criteria fordirecting a whole of government approach to riverinemanagement. Some further suggestions in relation tospecific issues are made below.

3��%�

Legislation needs to specifically bind the Crown. Thegeneral presumption at law is that the Crown is notbound by legislation unless specifically, or by

��

necessary implication, so bound. All modernenvironment protection legislation, for avoidance ofdoubt, binds the Crown

��%�!2�!#'��#"�%�5/'%��/#�

These comments are intended to flesh out some of thecriteria identified in the report.

Modern environmental legislation can be seen to havethe following priorities:

• to set up government regulatory structures forenvironmental management that apply both to theprivate and the public sector. These include thecreation of regulatory authorities, such asenvironment protection authorities; and thecreation of specialist courts or tribunals to hearboth merits appeals and enforce the law.

• to invest government regulators with powers todetermine how to manage the environment andprovide them with management tools to controlenvironmentally significant activities andencourage best practice environmentalmanagement.. This toolkit commonly includes theability to develop policies and plans, determinestandards, issue licences, and implement andenforce the law; supplemented, importantly, by theability to offer economic incentives to encouragebetter performance ‘beyond compliance’ and toachieve the objectives of legislation and policyinstruments. The implementation and extent ofsuch powers may be to some extent guided by boththe stated or implied objects of the legislation andby specific criteria for decision making containedwithin it.

• To require persons proposing to carry onenvironmentally significant activities to seekpermission from government regulators. Dependingon the activity for which permission is sought, thepermitting authority may be either centralgovernment (for example permits to harmendangered species) or local government (forexample development control). Often, a number ofpermits for an activity are required from differentregulatory authorities for different aspects of aproposal

• To require activities of potential environmentalsignificance to be assessed before permission canbe granted. This usually involves initial assessmentto determine the environmental significance of aproposal; together with more detailed assessmentof proposals declared or found to be of majorenvironmental significance.

• To provide that non-compliance with the law willattract liability for a range of administrative,criminal and civil sanctions; and to enableregulators and, to a more limited extent, membersof the public, to enforce the law. Regulators mayissue compliance and remediation notices, such as

clean-up orders, as well as institute both civil andcriminal enforcement proceedings. Members of thepublic may be empowered also to commence civiland sometimes criminal proceedings to enforcebreaches or threatened breaches of the law.

• to a limited extent, to enable the merits, ratherthan the legality, of decisions of governmentregulators to be challenged by members of thepublic. This right is generally restricted to the moresignificant proposals for development, thoughsometimes may extend to other activities ofenvironmental significance, such as potential harmto endangered species

In a nutshell therefore environmental law is all aboutprohibiting activities that might adversely affect theenvironment, but then allowing those activities to beundertaken as long as permission is granted by aregulatory authority, and the conditions on which thatpermission is granted, are adhered to. In devising anystructure for riverine management it will probably beeasier to develop and adapt this recognised approachrather than attempt anything new. The fact is that theobjectives of riverine management can be achievedwithin such a structure, even though significantamendment of and addition to the detail will berequired.

Importantly, too, as the report emphasises, the lastdecade of the twentieth century has been marked by amove away from strict regulatory approaches as theonly response to environmental management to anapproach that recognises also the importance ofencouraging voluntary action, supported by economicincentives and education. Economic incentives may,for example, encourage polluters to go ‘beyondcompliance’, that is perform better than their licenceallows; or encourage rural landholders, throughproperty or conservation agreements, to conservebiodiversity by providing funds, for example forfencing. Such incentive based approaches are usuallyenshrined in and supported by legislation,; howeverthey may not be. Government policy on control ofgreenhouse gases, for example, is in fact centredwholly on economic incentives for industry withoutsupporting regulation. Tackling Australia’s arguablybiggest environmental and economic problem,dryland salinity, is also likely to follow such anapproach. As the report also correctly emphasises,regulatory action is but one aspect of a whole ofgovernment approach to riverine management.

6��%��+��+B

As the report has correctly identified, the potentialexists for an exercise of statutory powers underlegislation that requires no or minimal considerationof environmental factors to come into conflict withthe desire to exercise protective powers under otherlegislation that does enable protection. Although in

��

law there is no inherent conflict in having numerouspieces of legislation apply to the same area of land oractivity, duplication of legislative powers maysignificantly impede measures for desirableenvironmental management.

Where different authorities are given jurisdiction inrespect of the same piece of land or activity, then thelegislature is generally taken to have conferredparallel management responsibilities on thosedifferent authorities for their different spheres ofactivity, with the result that neither can exercise apower of veto on the other. For example the powers ofenergy or fire authorities to ‘do all things necessary orconvenient to be done for or in connection with orincidental to the performance of’’ statutory functionsor in the exercise of statutory powers, such as actingto secure health and safety by removing vegetation,could effectively override statutory powers to restrictdamage to native vegetation. This can obviously leadto problems where a provision for conservation orprotection comes up against a provision allowingdamage or destruction. But such an approach alsomeans that where a number of statutory authoritiesare given powers to control and licence activities, thatany one of them may effectively veto a project oractivity.

In the absence of clear statutory guidance as topriority, the courts favour an interpretation whichtreats each piece of legislation as laying down simplyanother layer of control. There is a strongpresumption that the legislature does not intend tocontradict itself; so the courts will favour aninterpretation which does not lead to conflict butallows legislation to operate in parallel. Only in theevent of irreconcilable conflict will the courtsdetermine that a later statutory provision must beintended to override an earlier one; or that an explicitstatutory power must be intended to have priorityover a general provision. Many proposals fordevelopment for example require licensing not onlyfrom the appropriate local government authority, butalso require licences to harm endangered species orto emit pollution. If one authority refuses a licence forits particular sphere of activity this will effectively putan end to the project despite the fact that all othernecessary licences may have been obtained. Theconcurrence powers that I have recommended begiven to catchment management authorities buildupon this approach.

Where Parliament wishes to give some indication as tohow a piece of legislation will interact with otherlegislation, various techniques may be employed todeal with potential duplication of powers. Forexample:

the legislation may state that its provisions are inaddition to and are not intended to derogate fromprovisions in other legislation. For example in South

Australia both the Electricity Act 1996 and the Gas Act1997 are expressed as not derogating from theprovisions of the Environment Protection Act 1993.Similarly the Country Fires Act 1989 states that theprovisions of that Act do not derogate from theprovisions of the Native Vegetation Act 1991.

the legislation may state that its provisions prevail tothe extent of any inconsistencies in other legislation.Sometimes environmental legislation is quite explicitthat it will take priority; for example in relation topollution control and ‘environmental harm’. Wheretwo or more pieces of legislation make similarstatements then the later in time will prevail in theevent of conflict. Alternatively the legislation maystate for example that an instrument drawn up underthat legislation will be of no effect if it conflicts withsome other authorised statutory instrument; or theremay be a statutory instruction that ‘so far aspracticable’ a statutory instrument should beconsistent with other instruments.

the legislation may state that nothing in the legislationshould be read as conferring immunity from theapplication of other laws.

the legislation may state that its provisions are toapply despite any other law to the contrary, ordespite the provisions of any other Act or law. Powersconnected with public safety and removal of hazardsmay be accorded such superiority; for example thepower under the Roads Act 1993 (NSW) to fell trees orother vegetation applies ‘despite any other Act or lawto the contrary’ if necessary to carry out road worksor remove a traffic hazard. Similarly powers to orderthe destruction of native or feral animals under theLivestock Act 1997 (SA) apply despite protectionunder any other law.

The legislation may nevertheless accept that disputesmay occur, particularly between public authoritieshaving different interests in land or resources, andprovide a dispute resolution procedure; for exampledisputes about clearance of vegetation around publicpower lines, or with respect to works to be conductedon public lands.

For avoidance of doubt, it would be better if thelegislative initiatives being suggested in this reportwere accorded a clear expression of legislativepriority despite any provision of any other law.

��@��!C �A

The report correctly identifies the objects clause asan important and integral part of the legislation. It hasbecome increasingly common for modernenvironment protection and natural resourcelegislation to specify the objects of the legislation.

An objects clause is important because InterpretationActs commonly state that in the interpretation of aprovision of legislation, a construction that would

��

promote the purpose or object underlying thelegislation shall be preferred to a construction thatwould not promote that purpose or object. Definingthe objects of legislation is therefore more thansimply an exercise in expressing the intent of thepolicy embodied in the legislation; it may guide theparameters of the exercise of legal powers under thelegislation. This is so in fact whether or not theobjects are expressed in an objects clause or simplydivined from the content of the Act in general.

Objects of legislation may be, and often are, expressedsimply in terms which declare the objects of thelegislation or statutory authorities created by thelegislation; but they may go further and bind thoseauthorities or individual decision makers in some wayto carrying out the principles expressed in suchclauses. To what extent it is desirable to bind decisionmakers to the expressed objects is a matter of policyfor government to determine.

For example in South Australia, the requirement underthe Environment Protection Act 1993 is that

(t) he Minister, the Authority and all other bodiesand persons involved in the administration ofthis Act must have regard to, and seek to further,the objects of this Act

In Queensland the statutory requirement under s5 ofthe Environmental Protection Act 1993 appearsslightly stronger: a person on whom functions orpowers are conferred must perform those functionsor exercise those powers ‘in the way that bestachieves the object of this Act’.

Tasmania’s Resource Management and PlanningSystem contains perhaps an even stronger direction:

It is the obligation of any person on whom afunction is imposed or a power is conferredunder this Act to perform the function or exercisethe power in such a manner as to further theobjectives set out in Schedule 1.

Land Use Planning and Approvals Act 1993(Tas) s 8.

The objectives set out in Schedule 1 include thepromotion of sustainable development, as defined.

S 6(2)(a) of the South Australian Water Resources Act1997 contains a clause requiring all administratorsunder the legislation to ‘act consistently with’ theobject of the legislation.

Under the Fisheries Management Act 1994 (Cth) s 3‘(T)he following objectives must be pursued by theMinister in the administration of this Act and byAFMA in the performance of its functions’. Theemphasis of the objectives is on efficient and costeffective fisheries management and preserving thesustainability of fisheries resources.

In New South Wales perhaps the strongest provision inrelation to the objects of legislation is contained in S12 of the Crown Lands Act 1989 (NSW) which statesthat the Minister is responsible for achieving theobjects of this Act.

The difficulties in enforcing such statutoryinstructions as legally binding duties should not beunderestimated; but it is at least arguable thatinstructions which require decision makers to ‘seek tofurther’, ‘pursue’ or ‘achieve’ objectives may beregarded as imposing stricter or more focused dutiesof compliance or achievement than a mere instructionto ‘have regard to’ those objectives. In formulating theobjectives of any riverine management legislationthen very careful consideration should be given todesigning the objects clause

4��

Where objects are specified in legislation, then themost common instruction to statutory authorities isthat they should ‘have regard’ to them or take theminto account or consideration in making decisions orexercising their functions. The report gives someexamples of this (p. 30).

Naturally the matters to which regard must be hadwould be expected to influence decision making.However such a statutory instruction falls short ofactually requiring the statutory functions to beimplemented or command decision making.

The Macquarie Dictionary definition of ‘regard’ is to‘take into account or consider’. Gibbs CJ in the HighCourt of Australia has said that a statutory instructionto ‘have regard to’ means ‘to take those matters intoaccount and to give weight to them as a fundamentalelement’ in making a decision; (R v Toohey ex parteMeneling Station Pty Ltd (1982) 158 CLR 327, 333); butnot to make it by reference to them exclusively;Minister for Immigration and Ethnic Affairs v Baker(1997) 24 AAR 457, 463-4. Gummow J remarked inTurner v Minister for Immigration and Ethnic Affairs(1981) 35 ALR 388, 392, ‘(m)ere assertion that regardhas been had ... will not suffice, if it is demonstratedthat regard has not been paid in any real sense’. This‘real sense’ is more fully developed in Parramatta CC vHale (1982) 47 LGRA 319 which considered the (nowamended) obligation in s 90 of the EnvironmentalPlanning and Assessment Act 179 (NSW) to ‘take intoconsideration’ relevant matters. Moffitt P held thatsimply adverting to a matter and then rejecting it wasnot taking it into consideration. To do that a decisionmaker had to acquaint itself with such relevantmaterial as would enable it to consider whether suchmatters were indeed material to the decision. In otherwords regard must be adequate not cursorily given.Failure to have regard to or consider any statutorilymandated factors may result in any consequentdecision being declared invalid.

��

The question for any proposed legislation for riverinemanagement, as suggested in the previous section, istherefore: what obligations do you want to impose ondecision makers by way of an objects clause ormandated criteria for decision making? Dependingupon how the obligations are expressed, variouslevels of required commitment or performance maybe imposed.

��%��

Where a number of factors are mandated forconsideration without any statutory indication as tothe priority or weight to be accorded to the variousfactors, then the relevance of each of those factors isa question of fact for the decision maker to determine.For example although application of the principles ofESD may be relevant to, even required of, decisionmaking it is but one factor to be taken into accountand does not outweigh all other considerations.

It is clear however that all statutorily mandatedcriteria must be given due weight, rather than noweight at all. Due weight may mean whatever weight isdue as the focal point of the scheme of the legislation.In the context of any particular determination that‘due weight’ could in fact be nil.

Most objects clauses and criteria for decision makingin fact do not signify the relative importance of thevarious factors. This in itself suggests that the objectsare to be regarded as carrying equal weight. Indesigning riverine protection legislation thereforecareful consideration must be given to directing notonly the objects of legislation, and criteria on whichdecisions must be made, but whether there are anyfundamental priorities that need to be signified.

��+��@�'�A

The Intergovernmental Agreement on theEnvironment recognises that implementation of ESDrequires an ‘effective integration of economic andenvironmental considerations in decision-makingprocesses’ and that to promote this approach fourparticular principles ‘should inform policy making andprogram implementation’. These are theprecautionary principle; intergenerational equity;conservation of biological diversity and ecologicalintegrity, and improved valuation, pricing andincentive mechanisms. This approach has beenadopted as the focus of much state based legislation.In my opinion there are serious deficiencies in thetranslation of ESD into a legal criteria for decisionmaking. This is because ESD is usually mandated assomething to which regard must be had (see above) indecision making and not as an objective that must bepursued or fulfilled. In my opinion ESD is, or shouldbe, the fundamental objective and outcome ofdecision making, not a factor to be balanced againstothers in reaching a decision. In designing legislationthat seeks to incorporate ESD as a fundamental

management approach, as suggested in the report,then very careful consideration needs to be given todetermining the role of ESD in the decision-makingprocess. I can provide a much more detailed analysisof this topic if required.

Date post:	09-Jun-2018
Category:	Documents
Upload:	ngodan
View:	215 times
Download:	0 times

library.dbca.wa.gov.au Mary Maher and Associates ... EDO Environmental Defenders’ Office ......

Documents