Australian River Management and

Restoration
Criteria for the legislative framework for the
twenty-first century
Based on an analysis of Australian and international experience

Occasional paper 02/00

Mary Maher & Associates

Susanne Cooper & Associates
Peter Nichols

March 2000
Published by: Land and Water Resources Research and Development Corporation
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Telephone: (02) 6257 3379
Facsimile: (02) 6257 3420
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© LWRRDC

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

Publication data: ‘Australian River Management and Restoration. Criteria for the Legislative Framework for the
Twenty-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: mmaher@squirell.com.au

ISSN 1320-0992

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

Editing and design:Themeda

March 2000
CONTENTS

ABBREVIATIONS .............................................................................................................................................. 8

EXECUTIVE SUMMARY .................................................................................................................................... 9

ACKNOWLEDGMENTS ..................................................................................................................................... 11

Water ... an excerpt from Ulysses ................................................................................................................... 12

1. PROJECT TASK ......................................................................................................................................... 13

2. CONTEXT OF THE LEGISLATIVE FRAMEWORK FOR RIVER MANAGEMENT AND RESTORATION .... 14
River conditions in Australia .......................................................................................................... 14
Recent Australian initiatives ........................................................................................................... 14
Rivers as natural capital .................................................................................................. ................ 15
Context of the legislative framework ............................................................................................. 17
Legislation for river management and restoration ...................................................................... 18
Limits to legislation ......................................................................................................................... 19
Complex issues ................................................................................................................................ 20

3. PROJECT ASSUMPTIONS AND APPROACH ............................................................................................. 21

Assumptions ................................................................................................................ .................... 21
Approach .......................................................................................................................................... 22

4. ENVIRONMENTAL FLOWS ........................................................................................................................ 23

Scope ...................................................................................................................... .......................... 23
Introduction .............................................................................................................................. 23
Desired ecological outcomes ................................................................................................... 23
Ecological issues and challenges ............................................................................................ 24
Dimensions for river management and restoration .................................................................. 24
Management challenges for legislation ......................................................................................... 25
Key drivers for legislative change .................................................................................................. 25
Existing legislation arrangements and gap analysis .................................................................... 26
Current legislative context ....................................................................................................... 26
Incorporating principles and objectives ................................................................................... 26
Operational products and elements ........................................................................................ 29
Floodplains and farm dams ..................................................................................................... 30
Groundwater ............................................................................................................................ 30
Overview of arrangements ....................................................................................................... 31
Assessment of operational elements ............................................................................................. 31
Environmental flows ................................................................................................................ 31
State-wide river assessment .................................................................................................... 32
Compliance, auditing and enforcement ................................................................................... 32
Planning hierarchy ................................................................................................................... 32
Summary .................................................................................................................................. 33

3
 Practical case studies ..................................................................................................................... 33
Emerging trends ............................................................................................................ .................. 34

5. WATER QUALITY ....................................................................................................................................... 36

Introduction ............................................................................................................... ....................... 36
Desired ecological outcomes for water quality management ..................................................... 36
National guidelines .......................................................................................................................... 37
Drivers for change ................................................................................................................... 38
Trends in legislation ....................................................................................................................... 40
Clean water legislation ............................................................................................................. 40
Environmental protection legislation ........................................................................................ 40
Change of focus ....................................................................................................................... 40
Point source licensing .............................................................................................................. 40
Evolution of legislative framework for water quality ................................................................. 40
Legislative framework requirements ............................................................................................. 42
Objects clauses ....................................................................................................................... 42
Integration of plans .................................................................................................................. 42
Smart growth ............................................................................................................................ 43
Integrated management ........................................................................................................... 43
Devolution ............................................................................................................................... 44
Criteria for legislative best practice .............................................................................................. 44
Critical success factors for water quality legislation .................................................................... 45

6. RIPARIAN MANAGEMENT ......................................................................................................................... 46

Introduction ...................................................................................................................................... 46
Desired ecological outcomes for riparian management ........................................................... 46
Existing legislative arrangements ............................................................................................ 47
Management challenges for legislation ......................................................................................... 49
‘Riparian area’ definition .......................................................................................................... 49
Tenure ..................................................................................................................................... 49
Heritage or wild rivers .............................................................................................................. 50
Water flows .............................................................................................................................. 51
Land development ................................................................................................................... 51
Degraded areas ....................................................................................................................... 52
Trends in legislation ................................................................................................................. 53
Critical success factors for riparian area legislation ................................................................... 55

7. INSTITUTIONAL ARRANGEMENTS FOR CATCHMENT MANAGEMENT ............................................... 57

 Introduction ...................................................................................................................................... 57
Desired outcomes: institutional arrangements for catchment management ............................. 57
Existing legislation for institutional arrangements ...................................................................... 58
The national level .................................................................................................................... 58
Cross-border rivers .................................................................................................................. 58
State arrangements ................................................................................................................. 59
Structures for catchment management .................................................................................... 59
Funding .................................................................................................................................... 60
Catchment plan status ............................................................................................................. 61
Challenges for legislation ............................................................................................................... 61
Five approaches to institutional arrangements ............................................................................ 63
Critical success factors for integrated catchment management (ICM)
institutional arrangements legislation ........................................................................................... 65

8. THE CRITERIA FOR THE BEST PRACTICE LEGISLATIVE FRAMEWORK ............................................ 67

Summary of findings ....................................................................................................................... 67
The working parts of legislation ..................................................................................................... 69
Responsibilities ........................................................................................................................ 69
Structures ................................................................................................................................ 69
Approach and outcomes .......................................................................................................... 70
Permitting and enforcement ..................................................................................................... 70
Checks and balances .............................................................................................................. 70
Criteria for the best practice legislative framework for river management and restoration
in the twenty-first century ............................................................................................................... 70

9. THE WAY FORWARD ................................................................................................................................. 74

Implementing best practice legislative framework ....................................................................... 74
Actions in the short term ................................................................................................................ 74
Actions in the longer term .............................................................................................................. 74
National framework to set binding standards for river management and restoration ............... 74
Mix of mechanisms including market, fiscal, public financing, co-regulation and
community empowerment ........................................................................................................ 75
Future LWRRDC investigations ...................................................................................................... 76

REFERENCES ................................................................................................................................................... 77

GLOSSARY ........................................................................................................................................................ 80
APPENDIX 1 KEY ATTRIBUTES OF DIFFERENT CLASSES OF MANAGEMENT MODELS ................... 82

APPENDIX 2 LEGISLATIVE DATABASES .................................................................................................. 83

APPENDIX 3 PEER REVIEW ........................................................................................................................ 90

FIGURES
1. Possible performance measures for river management and restoration ................................... 16
2. Insights into aspects of a cross section of river-related legislation ............................................ 22
3. Incorporation of ecological needs of riverine ecosystem components into
environmental flow assessments ............................................................................................... 24
4. Tradeability of water allocation rights in Oregon and Alberta, Canada ....................................... 27
5. NSW and Western Australian approaches to river management and restoration ..................... 33
6. Summary of elements of case studies in managing environmental flows .................................. 33
7. Development in legislation: water flows ..................................................................................... 34
8. Trends in specific elements of environmental flows .................................................................. 35
9. Performance indicators for protection and management of water quality .................................. 36
10. Water quality management in the USA ...................................................................................... 39
11. Development of water quality legislation over time .................................................................... 41
12. Trends in water-related decision making ................................................................................... 42
13. Water quality and water quantity planning stressed rivers assessments, NSW ........................ 42
14. Protecting Chesapeake Bay, USA ............................................................................................. 43
15. Victoria’s integrated catchment management reform ................................................................ 44
16. Development in legislation: water quality ................................................................................... 45
17. Riparian area: development of legislation .................................................................................. 55
18. Possible performance measures: institutional arrangements for catchment
management .............................................................................................................................. 58
19. Institutional arrangements for catchment management ............................................................. 65
20. Legislation’s role in ecologically sustainable water management .............................................. 67
21. Trends and futures: legislative framework for river management and restoration .................... 69

TABLES
1. Assessing ecological outcomes in the Oldman River Dam, Canada ......................................... 17
2. Ecological services .................................................................................................................... 18
3. Specific mechanisms for river management and restoration .................................................... 19
4. Excerpts from relevant legislation .............................................................................................. 28
5. Elements of state statutes and policy ........................................................................................ 29
6. Example of terminology between the States .............................................................................. 30
7. Choices for water quality policy ................................................................................................. 37
8. National guidelines for water quality .......................................................................................... 38
9. Case study of water quality-related administration, Western Australia ...................................... 41
10. Management of riparian lands ................................................................................................... 47
11. Riparian management: summary of existing legislative mechanisms ....................................... 48
12. State protection of streambeds .................................................................................................. 49
13. State legislation for management and protection of ‘wild’ rivers ................................................ 50
14. International examples: managing wild and scenic rivers .......................................................... 51
15. Regulatory controls for riparian areas ........................................................................................ 52
16. Legislative frameworks for riparian areas .................................................................................. 53
17. Trends shaping legislation for protecting and managing riparian areas .................................... 54
18. Critical legislative package for riparian area protection and rehabilitation ................................. 56
19. State catchment management legislation .................................................................................. 59
20. Summary of catchment management structures by State ......................................................... 59
21. Funding arrangements by State ................................................................................................. 60
22. Status of catchment plans/strategies by State ........................................................................... 60
23. Trends in catchment management plans ................................................................................... 61
24. Five approaches to institutional arrangements .......................................................................... 64
ABBREVIATIONS

ACF Australian Conservation Foundation ESWM ecologically sustainable water management

AACM AACM International ICM integrated catchment management
ACT Australian Capital Territory IGAE Intergovernmental Agreement on the
AFFA Agriculture, Fisheries and Forestry – Environment (Commonwealth/State/Local
Australia government agreement)

ANZECC Australian and New Zealand Environment INBO International Network of Basin
and Conservation Council Organisations

ARMCANZ ISO International Standards Organisation

Agriculture and Resource Management LG local government
Council of Australia and New Zealand
LWRRDC Land and Water Resources Research and
AWWA Australian Wastewater Association Development Corporation
CALPB Catchment and Land Protection Board MDBMC Murray–Darling Basin Ministerial
CMA catchment management authority Committee

CMC catchment management committee MOU memorandum of understanding

CRC cooperative research centre NCC Nature Conservation Council

COAG Council of Australian Governments NHT National Heritage Trust

CSIRO Commonwealth Scientific and Industrial NSESD National Strategy for Ecologically
Research Organisation Sustainable Development

CWMP catchment water management plan NSW New South Wales

DEHAA South Australia Department of NWQMS National Water Quality Management

Environment, Heritage and Aboriginal Strategy
Affairs QCC Queensland Conservation Council
DLPE Northern Territory Department of Land QLD Queensland
Planning and Environment
R&D research and development
DLWC New South Wales Department of Land and
Water Conservation RCS regional catchment strategies

DNR Queensland Department of Natural RVMP regional vegetation management plan

Resources SA South Australia
DNRE Victorian Department of Natural Resources SEPP State Environmental Protection Policy
and Environment
SMP streamflow management plan
DPIWE Tasmania Department of Primary
Industries, Water and Environment SoE State of Environment

EBMP environmental best management practices SWRCB State Water Resources Control Board

EDO Environmental Defenders’ Office TAS Tasmania

EFR environmental flow requirements USA United States of America

EPA Queensland Environmental Protection USEPA United States Environmental Protection

Agency Authority

EPP Environmental Protection Policy VIC Victoria

ESD environmentally sustainable development WA Western Australia

ESForestM WAMP water allocation and management plan

Ecologically Sustainable Forest WARC Water and Rivers Commission
Management
WRC Western Australian Water and Rivers
Commission

8
EXECUTIVE SUMMARY

In the LWRRDC 1999 project, River Management and are not yet complete, much less critically evaluated.
Restoration Legislative Frameworks: an Analysis of Most apparent examples of legislative initiatives are
Australia and International Experience, the task was to still just good ideas: they are not yet critically
define criteria for a world best practice legislative evaluated; locally, nationally or internationally. In
framework for all Australian jurisdictions for the Australia, no jurisdiction has specific legislation or a
twenty-first century. The aim was to provide the legislative framework which manages rivers or their
opportunity for healthier rivers in Australia by using ecological processes in a systematic, integrated
an agreed, nationally-consistent legislative framework manner.
model.
From in-depth review of legislation for four themes the
The approach involved a focus on four themes following conclusions were drawn.
considered central to river management; reviewing a 1. Rivers are receiving greater attention than
range of Australian legislation at all three levels of before. No national, binding standards have been
government, as well as legal provisions in selected set for their protection or management.
relevant countries; analysing and documenting critical Surrogate standards are proposed through
success factors for a best practice legislative Ministerial or council agreements, or
framework. Commonwealth financial incentives. Overseas
The four themes—water flows, water quality, riparian river achievements in federal systems indicate
areas and administrative arrangements for integrated the need for a stronger Commonwealth lead, in
catchment management (ICM)—were chosen on the partnership with States and Territories. There is
basis that: limited application of Commonwealth powers to
protect rivers.
1. they represent a cross section of the major
missing river management issues (protection of 2. There is confusing terminology across
ecosystem values, governance and community jurisdictions for most aspects of river/resource
empowerment); management.
2. they deal with discrete yet overlapping aspects of 3. Water resource issues are the main focus of
river management including resource allocation, attention, with some degree of recognition of
pollution, land development and institutional environmental flow needs and a narrow focus on
arrangements; and river water rather than the total water cycle.
There is opposition in some quarters to security
3. all four are presently experiencing legislative
of environmental flows in water allocation.
reviews.
4. The Commonwealth commitment to NSESD has
The definition of a best practice legislative framework not been borne out in reality (Productivity
is one which: Commission 1999 study).
1. defends rivers as a vital part of our natural 5. Commitment has been given by all States to
capital and defines ecological ‘bottom-lines’ or integrated natural resource management/
thresholds for their use—this requires pre-stated integrated catchment management. In most
measurable performance indicators, arrived at States, problems arise because major resource
through community involvement;
agencies are distant from the integrated planning
2. manages conflicts between users, and between process; outside the cooperative arrangements
users and non-users; for planning and service delivery.
3. facilitates change and requires continuous 6. Although evolution is towards catchment-based
improvement in performance; planning, these plans remain non-statutory or
4. enables adaptive management, through policy, advisory in most jurisdictions. Catchment
institutions; and management, in response to legislation is added to the plethora of other
changes in perceptions, knowledge, technologies legislation relating to resource management or
and management regimes; and ecosystem protection.

5. protects the public interest. 7. There is a trend towards devolution of functions

and responsibilities to catchment or local level,
The 1994 Council of Australian Governments (COAG) but there is limited integration of statutory
Agreement for water industry reforms is arguably the powers at this level.
most significant catalyst for legislative change to river
8. Although there is strengthened representation of
management in Australia this century and its impacts
stakeholders, an absence of national/State policy

9
 framework fails to ensure a level playing field (i.e. management and rehabilitation.
ecosystem protection with resource 5. Catchment-wide spatial characteristic for river
management). management agencies.
9. There is increased knowledge about ecosystem 6. Statutorily-based powers commensurate with
processes and resource use impacts. Resource their responsibilities (i.e. for planning, funding,
security has to be matched with emerging educating, regulating and achieving all
requirements to provide for ecosystem needs, components of river management) for river
adjusted over time. management agencies.
The big directions of the future appear to be: 7. Inclusion of all stakeholders in an open, equitable
1. ecologically sustainable water management and adequately-resourced manner into river
(ESWM, similar to ESForestM), where equity and management agencies.
ecological interests are represented alongside 8. Close links between river management agencies
economic and sectoral interests in water and local governments (given the previous three
management decisions; principles, and the extent to which local
2. development of new administrative arrangements government is already involved in some
at the regional/catchment level; environmental and other aspects of river
management).
3. nationally-agreed binding framework for rivers
(i.e. where to after COAG?); and 9. Statutory, comprehensive river management
plans by river management decision making.
4. development of companion mechanisms in the
package (tax reform, industry adjustment, 10. Statutorily-required regular, publicly-available
environmental accounting) in a compatible and audit of river management and rehabilitation,
comprehensive way; potentially decreasing the independent from the restoring/rehabilitating
role for legislation if these mechanisms perform agency.
for river management. 11. Requirement for specified periodic reviews in the
The nature of the legislative framework appears to be legislative framework for administrative
at a crossroads. The regulatory model that includes components of river management.
moving forward with structures, statutory plans and 12. Primacy over all other legislation—including that
administrative processes, seems to be favoured by applying to utilities and emergencies—of all
those stakeholders generally outside decision-making legislation with a direct or indirect effect on river
circles and disillusioned with river managers’ management needs.
performance. The other model moves forward with
inclusive, co-management, multiple-mechanisms
approaches and a lower but critical profile for
legislation.
A set of criteria reflecting best practice river
management and restoration frameworks was
developed, primarily from the topics; and from
literature and professional experience including
practitioners, mainly in the public sector.
The criteria are:
1. Setting binding, measurable river management
standards as a national function, requiring a
strong leading role by the Commonwealth.
2. Legislating for a general duty-of-care for all
landholders and all others to manage all aspects
of surface water and groundwater resources
sustainably, and to achieve ESD as the primary
object (not just as one of several) of their
activities.
3. Developing a statutory definition of ‘river’,
founded in the total water cycle and including
floodplains, all related wetlands, surface and
groundwater.
4. A single, multi-functional agency for river

10
ACKNOWLEDGMENTS

Mary Maher, Susanne Cooper and Peter Nichols would

like to acknowledge the following people:

Australian Conservation Foundation CSIRO

Tim Fisher John Williams

Department of Natural Resources SEQ Water Quality Management Strategy

Chris Robson, Paul Mills, John Amprimo, Helena Milawken, Trevor Lloyd
Claudia Baldwin, Jan Gill, Jenny Awberry, Paul
Mills, Tony Houton Queensland Conservation Council
Louise Mattieson
Environmental Protection Agency
Paul Coughlan, John Bennett Healthy Rivers Commission, NSW
Maria Comino
Department of Land and Water Cconservation
Gary Hamer, Paul Taylor, Mike Geary Nature Conservation Council
Pip Stenke
Department of Environment, Heritage and Aboriginal
Affairs Land and Water Resources Research and Development
Elizabeth Young, Neil Power, Paul Harvey Corporation
Nick Scholfield, Phil Price, John Taylor, Siwan
Department of Land Planning and Environment Lovett
Don Pidsley
Shoalhaven Council
Department of Primary Industries, Water and Energy J. Downey
Max Giblin
Inland Rivers Network, NSW
Water and Rivers Commission Stuart Blanch
Luke Pen
Others
Environment ACT John Williams
Jinnie Lovett, Wendy Jacob Jason Alexandra
Canadian Environmental Conservation Service Warrick Watkins
Larry Booth Carla Mooney
Christine Forster
Agriculture, Fisheries and Forestry – Australia
David Shorthouse
Andrea Mayes, Tania Cvijanovic
David Mussared
Brian Hodgson

11
Water ... an excerpt from Ulysses

(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 the
ocean of Mercator’s projection: its unplumbed profundity in the Sundam trench of the Pacific exceeding 8,000
fathoms: the restlessness of its waves and surface particles visiting in turn all points of its seaboard: the
independence of its units: the variability of states of sea: its hydrostatic quiescence in calm: its hydrokinetic
turgidity 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 land
of the globe: its indisputable hegemony extending in square leagues over all the region below the
subequatorial tropic of Capricorn: the multisecular stability of its primeval basin, its luteofulvous bed: its
capacity to dissolve and hold in solution all soluble substances including millions of tons of the most precious
metals: its slow erosions of peninsulas and downwardtending promontories: its alluvial deposits: its weight
and volume and density: its imperturbability in lagoons and highland tarns: its gradation of colours in the
torrid and temperate and frigid zones: its vehicular ramifications in continental lake contained streams and
confluent oceanflowing rivers with their tributaries and transoceanic currents: gulfstream, north and south
equatorial 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, and
latent humidity, revealed by rhabdomantic or hygrometric instruments and exemplified by the hole in the
wall at Ashtown gate, saturation of air, distillation of dew: the simplicity of its composition, two constituents
parts of hydrogen with one constituent part of oxygen: its healing virtues: its buoyancy in the waters of the
Dead Sea: its persevering penetrativeness in runnels, gullies, inadequate dams, leaks on shipboard: its
properties for cleansing, quenching thirst and fire, nourishing vegetation: its infallibility as paradigm and
paragon; its metamorphoses as vapour, mist, cloud, rain, sleet, snow, hail: its strength in rigid hydrants: its
variety of forms in loughs and bays and gulfs and bights and guts and lagoons and atolls and archipelagos
and 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: its
potentiality derivable from harnessed tides or water courses falling from level to level: its submarine fauna
and flora (anacoustic, photophobe) numerically, it not literally, the inhabitants of the globe: its ubiquity as
constituting 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)

12
1. PROJECT TASK

In September 1998, the Land and Water Resources This report is targeted to legal practitioners, policy
Research and Development Corporation (LWRRDC) advisers and people across a broad range of agencies
called for four related consultancy projects into river (resource planning and management, integrated
management and restoration , as part of the need for resource management, environmental protection and
R&D to support community-based efforts to local government planning); and catchment managers,
rehabilitate Australia’s rivers. These four projects community stakeholders, water industry user groups
were: and catchment residents.
1. production of a CD ROM on River management and
The study proposes further work on model legislative
restoration ($200,000);
frameworks including review of legislation in
2. review of methods to identify and protect high operation in all States, comparative studies of specific
value rivers and river reaches ($30,000); Acts, as well as a review of legislation in practice
3. development of a framework for river rehabilitation through examination of selected legislation and its
($80,000); and effectiveness in leading jurisdictions.

4. analysis of legislative frameworks for river

management ($50,000).
The analysis of legislative frameworks for river
management (Project 4) is tasked to suggest criteria
for a world best practice legislative framework for all
Australian jurisdictions for the twenty-first century,
thus providing the opportunity for healthier rivers in
Australia by using an agreed nationally consistent
legislative framework model.
Deliverables consist of a broad assessment of existing
legislation and critical success factors or criteria for a
‘best practice’ legislative framework for river
management.
The challenge of this project was to undertake
assessment, analysis and framework development in
relation to river management and restoration
legislation across ten Australian jurisdictions, utilising
international examples and focusing on community
empowerment.
With the aim of making this task manageable within
the timeframe and budget, the following approach was
approved and the study has proceeded through three
key steps:
• a strategic overview of existing legislation based on
researching legislation in Australian jurisdictions
and overseas
• review and analysis to identify trends and
challenges through examination of legislative
frameworks for four topics (environmental flows,
water quality, riparian areas and institutional
arrangements for catchment management);
• scoping of critical success factors for a best
practice legislative framework for river
management and restoration drawn from this
research.

13
2. CONTEXT OF THE LEGISLATIVE FRAMEWORK FOR
RIVER MANAGEMENT AND RESTORATION

River conditions in Australia dominated by exotic fish species. The decline of such
a widely-accepted Australian river icon strongly
It is widely recognised that that Australia’s rivers are impacted on the community, which holds great store
in crisis. Australia is the driest of the world’s in fishing and river traditions. Similar degradation of
populated continents, and has the world’s most fish stocks and species diversity was found in other
variable rainfall and stream flow. Of the twelve major regulated rivers in NSW (CRC for Freshwater Ecology
drainage systems in Australia, only half produce 1997) and Queensland.
significant levels of useable runoff and many face
major intractable water quality problems, due to In NSW, assessment of stressed rivers (Department of
overdevelopment of the water resource. Land and Water Conservation [DLWC] 1998) showed
that, of 527 rivers so classified, 190 (28%) have a high
Australian river flows have high and unpredictable level of stress. About 27% of all Victorian streams are
variability, over a variety of time scales: decade to in ‘poor to very poor’ condition, with 65% (17,000 km)
decade, year to year and season to season. Further, of streams in cleared areas being in this category
the water volume in many river systems is over- (Mitchell 1990).
allocated. Increasing demands on water resources are
leading to serious conflict and growing competition in It has taken some 200 years to bring Australian rivers
allocation to economic uses, and have largely ignored to their present unsatisfactory state; it may take a not
sustainable maintenance of ecosystems. dissimilar period for river management and
restoration.
Australia’s first State of Environment Report (Alexander
1996) has some startling statistics. A recent survey of
the Murray and its side-channels found that at least
Recent Australian initiatives
30% of the study area was cleared and that introduced
weeds constituted 18–63% of plant species (Banens et In the last decade, key national initiatives have
al. 1996). An estimated 1.8 million tonnes of material recognised the need for an endorsement of improved
fell into the lower Murray over a 153 km section in water management—primarily its resource aspects—
1988–89 (Banens et al. 1996). Along the Goulburn and but also in terms of water’s many environmental
upper Murray rivers, some 870 and 400 stream- service functions.
management works respectively have been recorded. 1990 National Water Quality Management Strategy, a
In the Murray–Darling, more than 30 species of plants joint initiative between Australian Water
and animals have become extinct and another 70% are Resources Council and the Australian and New
critically endangered. Over wide areas, less than 9% of Zealand Environment and Conservation
native vegetation remains. (Industry Commission Council (ANZECC). This technical work
1997, p 15). defining environmental values for water quality
Australia has the highest per capita rate of water objectives for individual river systems has
storage of all countries. The growth in farm dams has stimulated State and local government
meant a 50% reduction in annual stream flow in some legislation and water quality management
Victorian catchments in drought years, and a flow initiatives.
decrease of up to 62% in some NSW rivers. 1991 World’s largest blue–green algae outbreak, over
Victoria is estimated to have some 300,000 small farm 1000 km in length, in the Darling River.
dams. Their effect on stream flows is most 1992 Agreements working for a more coordinated
pronounced in dry periods. In the Murray, drought and consistent approach to resource and
periods previously occurring in 5% of years, now environmental management nationally—the
occur in 60%. The water audit of the Murray–Darling Intergovernmental Agreement on the
Basin estimated that, given current growth in water Environment, and the National Strategy for
requirements, 90% of the flow from this system will be Ecologically Sustainable Development.
diverted for irrigation and other uses by 2010 (State of
1993 Australian Water Resources Council
Environment [SoE] 1995, Murray–Darling Basin
amalgamated with Australian Soil Conservation
Ministerial Council 1995).
Council to form the Agriculture and Resource
A two-year survey of the Murray River catchment did Management Council of Australian and New
not reveal any Murray Cod; the system being Zealand (ARMCANZ).

14
1994 Council of Australian Governments (COAG) and administration in return for accreditation
recommended key reforms to aspects of water and reduced use of Commonwealth powers
services in line with National Competition over State operations where applicable. The
Policy and based on user pays, removal of scope of the Bill does not explicitly deal with
cross-subsidies and pricing for full cost water or river management issues.
recovery (transparent arrangements by 2001,
This summary understates the exponential growth in
review of property rights to water and
water- and river-related scientific work, data base
facilitation of water trading by 1998,
development, government projects and partnerships,
infrastructure and extensive institutional
community involvement, institutional reforms and
reforms by 1998 [COAG 1994]).
innovative mechanisms which have taken place in the
1995 Interim Cap on increased water allocations last decade.
from Murray River. Ministerial Council agreed
that protection of the river system required a A central driver for reform of water planning and
management has undoubtedly been the Council of
balance be struck between consumptive and
instream uses of water in the Basin and Australian Government Water Resources Policy
introduced an interim Cap on further increases announced in 1994 (COAG 1994). Australia has no
in diversions. single national water agency; the Commonwealth
Government has therefore funded water resources
1996 Australia’s State of Environment Report and water management programs to drive reform of
provided a snapshot of the critical problems the water industry in all States and Territories.
facing inland rivers, estuaries and coasts. This
project was a multi-sectoral, multi-agency By late 1996, all jurisdictions reported good progress
exercise of three years duration. The next with these reforms, though the pace and extent of
phase will focus on intensive measurement change has not been consistent across Australia.
based on CSIRO’s indicators for national State There were doubts expressed that States and
of Environment Reporting. Territories would meet the 1998 reform milestones
(Industry Commission 1997).
1997 Natural Heritage Trust (NHT) funded from the
sale of the first 33% of Telstra, aimed at Several leading stakeholder groups including the
providing $1.25 billion over six years to Australian Conservation Foundation (ACF), the
provide: strategic capital investment to Cooperative Research Centre (CRC) for Freshwater
stimulate additional investment in the natural Ecology and the Inland Rivers Network have queried
environment; achieve complementary whether the reforms go far enough, fast enough and if
environment protection, natural resource the water pricing structures include full
management and sustainable agricultural environmental costs. If the perspective is one of
outcomes consistent with national strategies; championing the liberation of rivers, legal and policy
and provide for cooperative partnerships mechanisms will seem to offer too little change, too
between communities and all levels of slowly. With a perspective of reform of present
government. systems to move towards greater sustainability, the
emphasis will be more on using the proper channels
Community resourcing has occurred in five
and the appropriate pace for ‘realistic and practical’
main areas across Australia: vegetation; rivers;
reforms of policy and legislation.
biodiversity; land; and coastal and marine
areas, administered through a number of
national programs. Delivery through States and
Territories occurs through partnership
Rivers as natural capital
agreements, some of which have involved Harvesting or using rivers on a sustainable basis is a
review of State/Territory arrangements (e.g. for major challenge for Australia. In terms of ecologically
vegetation clearing controls). sustainable development (ESD), material wellbeing
Approximately 2,200 groups have been formed must be balanced against irreversible losses of
in voluntary rehabilitation projects in environmental assets. There are strong reasons to
catchments and local areas; numbers of think of sustainable development as involving a
landowners committing to formal conservation further constraint, namely that the stock of
arrangements on their properties are steadily environmental assets as a whole should not decrease
growing. (Industry Commission 1997, p. 11).

1998 The introduction of the Commonwealth Ecological integrity is the core of the National Strategy
Government Environment and Biodiversity for Ecologically Sustainable Development (NSESD)
Conservation Bill presented the option to States applied to river management and restoration. River
and Territories of meeting specific milestones managers are just starting to come to grips with this
or standards in their environmental policies issue and its incorporation into future river

15
management. Maintenance of ecological integrity is • Protecting the hydrological system as a whole. This
commonly understood to occur when the means ensuring there is awareness about the
productivity, stability and resilience of a system are interdependence of natural systems and a
sustained; that is, the system is ecologically healthy commitment to an integrated approach to
and can perform all essential ecological processes. It development and protection. Environment
also means maintenance of evolutionary potential. protection must be accepted as a major public
policy goal. The watershed or catchment is the
The relevant objectives are still difficult to define. The
most appropriate unit for water management, for
ANZECC (1992) guidelines for fresh and marine waters
ecological processes and economic activities.
note that it is not yet possible to state with any degree
of certainty just what constitutes a healthy or • Managing for water quality protection,
acceptable aquatic ecosystem. This point could conservation of water and the links between them.
equally apply to river systems and their catchments Management of sustainable water use in economic
overall. However in 1998 the Brisbane Region activities means an integrated approach to how
Environment Council assessed water quality these activities use and dispose of water.
management work in the Brisbane River and Moreton • Maintaining the capacity for the ecological systems
Bay, and provided some examples of criteria for to deal with desirable change. Modifications to
protection and restoration of catchment quality water flows, water quality, stream channels,
(Figure 1.). These criteria provide some scope for the riparian, floodplain, catchment or groundwater
mechanics of river management and restoration. conditions have to be viewed in terms of the nature
and scale of the impacts, as well as cumulative
effects.
Figure 1. Possible performance measures for river
management and restoration. • Protecting and managing for sustainability under
conditions of natural and human-induced change is
Possible performance measures for river management and not straightforward.
restoration Mandated standards delivered through a strengthened
• Soil water: content not to fall below 30% of maximum whole-of-government approach are the most practical
way of achieving the above.
• Groundwater: consumption:production not to exceed
One example of the difficulty of assessing a river
70% (preferable level 50%)
system’s capacity to handle change is the Oldman
• Percentage of whole catchment under natural land use River Dam, Canada (Table 1).
(native vegetation): minimum 30% This example serves to illustrate that, in terms of
• Percentage of riparian corridors under natural land use: natural capital, short-term gains have to be assessed
in the context of longer term effects on natural
minimum 30%
systems. Value judgements have to be made and
• Percentage of major floodplains under urban land use: justified in a transparent context. The precautionary
maximum 10% principle puts the onus on the proponent of the
changes and impacts but the tools for evaluating
• Water quality objectives for nutrients, sediments, other impacts are still rudimentary. Ecological ‘bottom
contaminants to be specified for protection and lines’ are critical but mostly they are not readily
restoration of aquatic and terrestrial ecosystems
identifiable. Additionally, there is a lack of
accountability and sanctions: there is minimal
• Value of ecological services provided by catchments, likelihood of removing a dam once built, if its adverse
waterways and bays: not to decline by 5% or more in environmental impacts are more than predicted. The
any year best outcome is that the lessons, perhaps taking two
decades or more to be perceived, are included in
(Brisbane Region Environment Centre, 1998 ) evaluation of future dams—a generational time loss.
The ecological condition and the contribution to
Australians’ livelihoods and lifestyles by rivers, are an
An alternative approach may be to specify essential part of the nation’s natural capital. In terms
achievement of a set percentage (e.g. 10%, 20%, 5%) of the need for legislation, natural capital has to be
improvement or stabilisation in overall river condition understood through its key characteristics:
every five years, assuming baseline data is accessible.
• Natural capital has multiple functions and it is
Critical components for the restoration of rivers valued for this characteristic. Protection of this full
towards ecological sustainability means working in an range of functions is critical.
integrated water management framework based upon: • Natural capital is difficult to value under present
excessively narrow econometric measures.

16
Table 1. Assessing ecological outcomes in the Oldman River Dam, Canada.

Ecological losses: dam impacts Ecological gains: environmental mitigation plan

• Destroyed 43 km of wild river • Habitat replacement for deer, marmot, falcon with
purchase of 1012 ha of land
• Flooded 130 ha of critical fish habitat
• Shelter belts planted
• Modified downstream habitat with resulting increase in
brown trout • Nesting sites for waterfowl

• Inundated 2,400 ha of land, mostly native prairie • Replacement of lost raptor sites
grassland; overall loss of biodiversity in Southern Alberta
• ‘No net loss of recreational fishing opportunity’ meant
• Changes to natural flow conditions with July, August flows replacement of high quality habitat by improving existing
to be higher, and other months lower than natural low quality fish habitat (aim is 130 ha of stream habitat)
conditions
• Provision for periodic flooding (unsure of results for
• Downstream impacts on cottonwood forests which downstream forests)
depend on flooding
• Community Monitoring Committee established to evaluate
mitigation plan and dam impacts.

(de Loe 1997, p. 138)

Financial measures fall short and physical adequately, to ensure social value such as the
accounting measures quantify some aspects: but redistribution of wealth, to manage employment, to
matters such as cultural heritage or deal with externalities arising out of resource use and
‘substitutability’ make matters of measurement and to account for cumulative effects of degradation or
valuation difficult. Difficulties in valuing natural resource use. Legislation then has the pivotal role to
capital means that market mechanisms cannot yet play in the tripartite arrangement between the
work with a true costing; and development of more economy, society and the environment; to give
inclusive accounting techniques (‘green legislative weight and direction to mechanisms
accounting’) is needed. Market constraints are then needed to deal with market failures.
distorted. For so-called renewable natural
resources, at this point in human history, rates of
consumption and degradation exceed rates of Context of the legislative framework
renewal (e. g. clean air in urban areas, atmospheric
ozone depletion, fertile soil, old growth forests). Legislation is only one part of the total package used
for restoring, rehabilitating and managing rivers and
• Scientific uncertainty of natural capital means that their catchments. For greatest effect, the package
irreversible losses can occur as a result of systemic must incorporate:
change. Causes and effects are not easily defined.
Seemingly small or harmless actions can have • appropriate legislation;
irreversible consequences and substitution or • ongoing consistent political will;
replacement of these losses is not likely to be an • ongoing consistent agency commitment;
option in the near future.
• compatible and comprehensive market-based
• As long as natural capital is not exploited beyond a incentives and disincentives;
critical point, it can be harvested or used on a
sustainable basis for all time and does not • community access and involvement;
compromise the welfare of future generations. • information access and communication/
However there are no practical substitutes for technological developments; and
extinct species or depletion of the ozone layer.
• human factors such as leadership, attitudes,
In natural capital terms, rivers offer ecological commitment and effective responses to crises.
benefits and services (Table 2).
Within this package, the purpose of legislation is to
While the scope and scale of these ecological services provide for the definition and delivery of policy
by rivers will vary, these characteristics provide a through moderation and constraint of self-interest by
good argument for their protection as critical natural groups or individuals, particularly when other parts of
capital, notwithstanding their extensive social, the package are unable, unwilling or unsuitable to
cultural and economic capital. deliver. Its primary characteristics are to:
Market mechanisms to date are limited in their • set out the policy intention and principles;
inclusions. They have failed to supply public goods

17
Table 2. Ecological services. • outline primary operating mechanisms and
Rivers Natural functions
processes for achieving that intention;

Water flows • water distribution (infiltration and drainage) • state boundaries and bottom lines;
• materials and energy flows through the • state where one legal matter has precedence over
ecosystem another;
• supplies of materials and energy to riverine
• define enforcement provisions and penalties;
and floodplain settings as well as marine,
estuarine or lake systems • be multi-layered (hierarchical or nested)—with
• temperature adjustments and modification umbrella legislation setting up broad intentions and
• volume fluctuations by seasons and events heads of power, and subordinate legislation
• water collection providing more specific details (e.g. for its
• habitat provision application spatially or to specific issues); and
• define lines of authority.
Water quality • the uptake, storage, transformation and
transfer of a range of chemical and While legislation is only one mechanism, it has an
enabling function for other tools for improving
physical properties from atmospheric and
resource management. Alternatively, it can present
terrestrial exposure, and sunlight; obstacles to their functioning.
distribution of these properties through
water flows
Legislation for river management and
Stream dynamics restoration
• channel functions both lateral and linear;
The legislative framework encompasses all
geomorphological processes in the bed instruments having a statutory basis, falling into two
and banks; instream habitats and biota; broad areas (see Table 3 for examples):
instream processes and ecological • those affecting land and water users impacting on
processes within the receiving waters rivers and their restoration, and
• those affecting governmental structures and
Riparian areas • stabilised water courses and banks
intergovernmental and inter-agency relations and
• filtering and processing of water operations.
• chemical and physical properties of water
The Commonwealth Constitution Act 1900 (Cwlth) does
flows and soils not define fundamental rights (e.g. environmental
• wetlands habitats and biota rights or rights to environmental quality). Nor does it
• pest and erosion control define property rights to water. For natural resources
law, the emphasis is on constituting organisations,
• climate protection
setting broad parameters for their operations,
• flood mitigation specifying objects and decision-making considerations
• water table stability and empowering them to make discretionary
• wildlife corridors decisions. Some may even include formal procedures
for planning which meets the legislation’s broad
Floodplain dynamics parameters (Farrier 1999).
• surface runoff Natural resource legislation in relation to water is not
• wetlands only about access and use of land and water, and
• infiltration and aquifer recharge management regimes for production and consumption
activities. It is also about management of other values
Receiving waters of water (e.g. values having economic importance
• marine ecosystem processes and biota
such as navigation, public recreation, commercial
fishing, property, drainage and flood mitigation, and
• limnological processes and biota
pollution control). Other important values include
socio-cultural significance, landscape and amenity
values of water and streams, and a range of ecological
benefits and services as well as more eco-centric
values. The Crown, by virtue of these matters and of

18
its public interest value, has then a sizeable Governance needs to ensure coordinated, somewhat
controlling interest in water and as such in rivers. centralised assessment of priorities, planning and
monitoring. Central government also needs to ensure
This array of values in relation to water means the
coordinated provision of the institutional capacity for
legal system has to service multiple objectives. This in
regional and catchment-based action.
turn means a framework, explicit or not, based on
multiple policies for water management. The NSW The legislative model preferred is still only as good as
EDO (EDO 1994) scoped good environmental laws as the political will driving it and the resources made
displaying: available. In Bates’ words ...the law does not tell the
• clarity of purpose; land user or resource managers or any other bureaucrat
how to go about their jobs; nor does the existence of
• political accountability; power to do something actually demand that the power
• open decision making; be exercised. (Bates 1995, p. 13).
• access to information; The existence of legislative powers does not
• environmental data; guarantee exercise of these powers. Even the world’s
best practice legislative framework will not guarantee
• independent review; and maximal outcomes. Bradsen (1991) considered the
• civic enforcement. record of Australia’s departments of agriculture over
the last 50 years to be ‘poor’. An analysis of the
Native title has additional, sometimes fundamental,
Brisbane River situation showed that, while the
impacts on the restoration and management of those
legislative framework was not best practice, it had the
rivers where it applies. This varies with history,
capacity to achieve considerably better river
tenure and jurisdiction, and in many instances can
management results than were occurring. Lack of
only be ascertained by specific research.
political will and cumbersome institutional
arrangements were the major contributors to the
shortfall (Mary Maher & Associates 1998a). Also,
Limits to legislation resource limitations commonly cause river
Devolution trends in government are seen by some as management and restoration shortfalls below that
the opposite of what is needed. Market forces and which is empowered by the legislative framework.
local community action cannot deliver the solution to Persuasion and education are accompanying methods
the scale of degradation which rivers present. for implementing river management, restoration and
Regionalisation should not mean withdrawal of State rehabilitation. However, where management practices
or national governments from their respective on private land impact on rivers and their waters.
responsibilities (Martin & Woodhill 1995). Martin and Bates (1995, p. 131) comments:
Woodhill argue that the achievements of market
mechanisms and community participation must be Legislation has been slow to address these issues
assessed according to environmental outcomes, and where they arise on private land, probably
not production efficiency, community development or because the remedies require direct ‘interference’
cost-sharing. with traditional property rights and land

Table 3. Specific mechanisms for river management and restoration .

Legislative focus Legislative framework

Land and water users, activities, impacts Acts, regulations, state plans and planning policies, state environmental plans and
policies, regional plans and planning policies, regional environmental plans and
policies, codes of practice/guidelines constituting subordinate legislation, local or by-
laws, town plans, local planning schemes and policies, and subordinate instruments
such as local environmental (management) plans and policies, guidelines,
environment best management practices (EBMPs) called up in statutory
instruments, voluntary land and river arrangements and covenants provided for by
legislation.

Government structures, relations, operations

Government and intergovernment/inter-agency administration: legislative framework
covers constitution statutes, administrative arrangements instruments, financial
powers, contracts and/or memoranda of understanding having legal effect,
intergovernment and/or inter-agency agreements, service an/or commercial provider
contracts on a bipartite or multi-agency basis.

19
 management practices, which is difficult In essence, river management and restoration fits
politically, thus leading governments of all well into the definition of a ‘super problem’. These
persuasions to attempt action by education rather complex public policy issues were previously referred
than by regulation. Given the nature of the to as ‘wicked problems’ (Rittel & Webber 1973). As
evidence that land clearance is the natural Mason and Mitroff (1981) explain:
precursor to all other forms of degradation,
Wicked problems are not necessarily wicked in
Bradsen has described 200 years of degradation
the perverse sense of being evil. Rather, they are
(and a context of) national government neglect
wicked like the head of a hydra. They are an
prior to National Land Management Program,
ensnarled web of tentacles. The more you
1990 Decade of Landcare. Lack of transparency
attempt to tame them, the more complicated they
exists in Australia about the extent of
become.
environmental problems.
Wicked problems exhibit six characteristics:
Legislation has unique capabilities. There is no room
interconnectedness, complicatedness, uncertainty,
however for complacency about the need to
ambiguity, conflict and societal constraints.
constantly question:
• whether legislation is the best mechanism for Similarly, super problems are those not amenable to
dealing with a matter; ideal solutions: the goals of the particular aspects of
the broader problem are often contradictory, and the
• whether the functions ascribed to a regulation are definition of the component factors and values are
the ones it is best equipped to perform; and/or usually arbitrary in terms of use, user, location and
• whether any piece of legislation has the capacity to time. With a super problem, cause and effect are
be responsive over time to new approaches or inextricably linked and largely unexplored social
methods, legislative or not. values and attitudes are usually involved (de Laet
1997, p. 308).

Complex issues
As Dovers (1999) puts it, land and water management
displays a number of attributes more commonly in
combination than many other policy fields. They set
the scene for all aspects of the management
framework and they include:
• broadened, deepened and highly variable spatial
and temporal scales;
• the possibility of absolute ecological limits to
human activity;
• irreversible impacts and related policy urgency;
• complexity within and connectivity between
problems;
• pervasive risk, uncertainty and ignorance;
• typically cumulative rather than discrete impacts;
• new moral dimensions (e.g. other species, future
generations);
• systemic problem causes, embedded thoroughly in
patterns of production, consumption, settlement
and governance;
• lack of available uncontested research methods,
policy instruments and management approaches;
• lack of defined policy, management and property
rights, roles and responsibilities;
• intense demands for increased community
participation in both policy formulation and actual
management; and
• sheer novelty as a suite of policy problems.
(Dovers 1999, p. 81)

20
3. PROJECT ASSUMPTIONS AND APPROACH

Assumptions Fundamentally, in my deliberations I sought to

answer the question: how can the ecological and
This project accepts that the policy basis for river social functions of a group of modified rivers be
management and restoration is a decision for improved to the fullest extent, taking into account
Australia as a whole, and for each jurisdiction. The the interests of other users and beneficiaries?
policy emphasis may be on a combination of several
options, including: (Snowy Water Inquiry 1998, p. 6)
• protecting the present ecological integrity of all It might be argued that any proposal creating electoral
rivers; risk and/or requiring additional funding is not
• protecting the ecological integrity of all highly ‘practical’. Alternatively, having regard to the primacy
of the May 1992 Inter-Governmental Agreement on the
natural rivers;
Environment (IGAE) including its agreement to
• restoring only those rivers which will respond most implement the NSESD; and taking into consideration
readily to a small amount of investment (80/20 the provisions of the Commonwealth’s Environmental
rule); or Protection and Biodiversity Conservation Bill (1998),
• restoring the most stressed rivers, or those highly ‘practical’ is taken in this project to mean ‘those
stressed river with high conservation significance. measures which will most speedily and
comprehensively achieve restoration, and ESD, of
River ‘restoration’ and ‘management’ are defined here Australia’s rivers’.
in their broadest sense. The two terms include
protection of rivers in their most wild or natural state, In Australia at the moment, most jurisdictions are
as well as the full range of actions associated with exploring and implementing major reform packages in
rehabilitation of Australian rivers. Protection of any resource management and environmental protection,
remaining values is an essential and initial component especially regarding rivers. The pace of change is
of river management and restoration . In this project, considerable, and the consequences often distant;
‘river management’ refers to the ongoing process researchers indicate it is too early to report on
which achieves a stated objective or condition for a achievements. Many river systems lack the data to be
river. ‘River management and restoration’ refers to an specific about river condition. River management and
improved condition of the river. restoration often fails to state its outcomes in
quantifiable and accountable terms. As the rapid
While the task is to focus on the legal framework, this recent change in river management frameworks is
project understands that legislation is only one part of often through a multiplicity of measures with little or
the mix of tools needed for implementation of river no legislation backing, it may not be straightforward
management and restoration . In this era there is a in the future to ascertain which consequences flow
definite move to use a mix of mechanisms—ranging from the legislative part of the changes, and which
across public financing to performance measures, from the other parts.
market-based mechanisms and precautionary
strategies. These implementation mechanisms, The project is not intended as an explanation of the
including legislation, can be viewed as the basic ‘tool laws or policies in any depth. Rather, it provides a
kit’ for management. This project supports and broad overview of the legal frameworks available for
assumes mixed-mechanism implementation of river river protection and restoration. It is a social science
management and restoration, and supports and account of legislation’s strengths and weaknesses,
assumes a use of legislation only where necessary providing the basis for scoping a strategic level
within this mix. framework and criteria for a best practice legal
framework. This project then is ‘desk top’ only, and in
While the project’s focus is on all ten jurisdictions— its analysis limits itself to statements about the
the Commonwealth, eight States and Territories, and potential powers and achievements of the emerging
local governments—the responsibilities related to legislative frameworks. It is based on the position as
rivers are largely the domain of the States and at 31 March 1999. As Farrier (1999) asserts, such a
Territories. The focus for this project is primarily on desk top exercise can say little about how the existing
State/Territory legislation. arrangements operate in practice. This no doubt is to
Outputs of this project are to be ‘practical’. River be the subject of further studies.
management and restoration is an emerging concept It should also be noted that the suggested inclusion of
for protection of natural capital. In recent forums a legislative component in the best practice
where river ecosystem needs are weighed up against framework does not imply that the provision in
social and economic needs, the response has been a
pragmatic one:

21
question should be mandatory on all jurisdictions. Figure 2. Insights into aspects of a cross section
Such a component will be included where analysis of of river-related legislation.
best practice indicates that it is likely to be useful in
the next century; it will still be discretionary to each Topics Related legislation
jurisdiction as to whether such a component is 1. Water flows Resource use and access
enacted, let alone then used.
2. Water quality Environmental protection
Several of the suggested legislative provisions may
carry compensation impacts under the Australian 3. Riparian areas Ecosystem protection
Constitution or other existing legislation. The 4. Administrative arrangements for catchment
recommendations do not intend to alter the status management
quo in this matter. Similarly, many recommendations Land planning, development and
for the best practice legislative framework contain management
resource implications, including the option of Catchment management
financial incentives and/or disincentives under Public administration.
taxation or other fiscal provisions. These are a matter
for subsequent management and budgeting decisions
within each jurisdiction.
The project breaks new ground. It covers all
Australian jurisdictions and focuses on all legislation
Approach relevant to river protection, restoration and
management. As such, there were considerable
This project has taken the approach that its output of constraints in terms of research materials. Few
criteria for world best practice river management and comparative studies have been published which
restoration legislative framework should be about address legislative frameworks for aspects of
legislation’s role in enabling all actions to achieve environmental management, let alone their outcomes
restoration for rivers and their catchments, while and effectiveness.
sustaining and enhancing community effort and
support. Greatest reliance was placed on a selection of projects
with similar charters to this one. Several which
Building on these matters, the project defines best produced useful research materials are asterisked (*)
practice legislative framework as one which: in the reference list.
• defends rivers as a vital part of our natural capital Given the paucity of research materials, the project
and defines ecological ‘bottom lines’ or thresholds scope and methods were tailored to provide a
for their use; strategic overview and to identify the priorities for
• manages conflicts between users, and between further investigation in this dynamic area of research.
users and non-users;
• facilitates change and requires continuous
improvement in performance;
• enables adaptive management, through policy,
institutions, and management, in response to
changes in perceptions, knowledge, technologies
and management regimes; and
• protects the public interest.
Challenges for river management and restoration, and
the critical success factors for a best practice
legislative framework are addressed here through
examination of four topics (water flows, water quality,
riparian areas and administrative arrangements for
catchment management), as this selection provides
insights into aspects of a cross section of river-related
legislation (Figure 2).

22
4. ENVIRONMENTAL FLOWS

Scope purposes which may have only a tenuous linkage to

ecosystem health.
Introduction
The integration of these elements provides an
The assessment, identification and delivery of essential basis for the sustainability of river systems.
environmental flows to our river systems have The ecological emphasis needs to be focused on an
received extensive recent attention across Australia. ecosystem approach, rather than a single species; a
The catalyst stems from the federally-initiated principle which is reinforced in the National Principles
objective to administer our water resources better, for the Provision of Water for Ecosystems (ARMCANZ/
and to incorporate environmental flows as an integral ANZECC 1996).
part of these reforms. Increasing demands for a
limited and often scarce resource, and conflict Desired ecological outcomes
between extractive and other water uses, have Past practices which allocated water from rivers
resulted in the development of accepted principles essentially overlooked environmental requirements,
and parameters for environment flow objectives. In thus leading to widespread degradation of waterways
addition, there has been rapid development of State and loss of aquatic ecosystem values. Indicators of
legislation and policies to provide the statutory this trend include:
framework for their implementation.
• changes in the timing, duration and frequency of
The regard for the provision of environmental flows flows which make many current river flow regimes
has been described as resource management rather almost the opposite of natural flows;
than science, with their assessment based upon
• obstructions to the migration of fish and other
decisions which are ‘arbitrary, hasty and politically
aquatic organisms, and a decrease in their breeding
driven’ (Pusey 1998). Although methodologies and
and spawning grounds due to extraction of water
approaches have progressed since 1994 (when the
and changes to flow patterns;
COAG agreement on water reforms were put in place),
a number of the dilemmas and challenges present at • changes in water temperature arising mainly from
that time still remain, and are discussed further below. cold water releases from dams;
Environmental flows consist of ecological, temporal • impacts on bank stability and channel structure
and hydrologic elements. They clearly extend beyond from more slower flowing water flowing in different
a mere volumetric allocation. seasons; and

The concept of an environmental flow has been • reduction in diversity of instream habitat, with
outlined by Cullen (1994) as including but not limited pools and riffles replaced by a more homogeneous
to: and flatter channel habitat.

• volume of water over some time base; The allocation of an environmental water entitlement
or environmental flow is not an end in itself.
• velocity of water in channel;
Environmental flows provide a defined and specific
• duration of flow event; water allocation for the protection, maintenance and
• water temperature; restoration of ecological values—a key part of river
management and restoration. They consist of two
• water level; parameters: a volumetric and quality allocation; and a
• natural and human induced variation flows on an seasonal pattern which mimics, as far as possible, the
annual and longer time scale; natural flow regime.
• need for pulses of high flows (e.g. to stimulate fish The methodologies for assessing the volume
breeding); and necessary for environmental flows vary between
• the rate of change of flow. States and Territories. They have evolved from a
single species focus, with emphasis on commercial
It is important that these elements of environmental species such as fish, to a more holistic, integrated
flows are strongly linked to the objective of ecological approach which includes diverse elements of the
and ecosystem management. The nature of riverine ecosystem. Although approaches such as the
environmental flows and their focus on ecological ‘building block’, the ‘expert scientific panel’ and the
processes and ecosystems should be recognised and ‘expert panel assessment’ methods differ in
specifically stated in relevant legislation and policy methodology, a recurring factor is the absence of
documents, to curtail using water flows for other objective data and scientifically collected information

23
upon which to base predictions and modelling ‘maximise environmental values’, provides little
refinements (Arthington 1998). guidance in the translation to quantitative measures
and specific flow requirements.
Many other factors also influence river condition, with
environmental flows an essential but single element. The question ‘how healthy/natural/sustainable do we
Virtually all environmental flow methodologies focus want our rivers to be?’ is not specifically answered by
upon flows, with other disturbances in the banks or legislation, but requires further scientific work and
wider catchment excluded from current assessments. community acceptance before an unconstrained
The implication is that, although flows may be response can be provided.
required to largely mimic natural conditions, this in
The role of legislation within such uncertainty is to
itself may not be sufficient to restore river health in
provide:
many highly disturbed riverine systems.
• a transparent and rigorous process for addressing
Ecological issues and challenges the ecological and societal/political conflicts which
The flow requirements of many elements of the will inevitably emerge;
riverine ecosystem (e.g. invertebrates) are largely • clear principles where the scope, intent and
unknown. The limited information to hand suggests objectives of the legislation are clear;
that for many taxonomic groups, there exists a wide
• requirements for appropriate scientific monitoring
diversity of breeding and ecological requirements,
of environmental flow regimes; and
with consequent diversity in environmental flow
requirements (Growns 1998). • flexibility and adaptation, given the uncertainties
outlined above.
Incorporating such diverse needs of riverine
ecosystem components into environmental flow Dimensions for river management and restoration
assessments has been an important challenge
This section is focused around water flows within
(Figure 3).
Australian rivers. Water allocations and flows are
The lack of rigorous data underpinning most generally bound up with water law across Australia,
environmental flow assessments suggests which is a far broader body of statutes than river law.
comprehensive monitoring is essential to It is pertinent that there are few laws in Australia
progressively refine our understanding and which relate specifically to the management of
confidence in scientific assessments. It would be a rivers—most legislation has traditionally stemmed
useful step to adopt a uniform methodology to enable from a utilities function, so that numerous statutes
comparability with techniques and outcomes across cover water for irrigation, drainage, sewerage and
Australia. The current variety of approaches promotes water rights.
complexity in agency responses to the water reform
This broader treatment is outside this project’s scope;
agenda (Arthington 1998, p. 22).
its emphasis is deliberately upon river management,
A key benchmark to assist the identification of river underpinned by the ecology and environmental health
flow needs is to identify the objective of these flows. of rivers.
The maintenance of current ecosystems and
The current impetus for water reform generated by
conditions will have different flow requirements to an
COAG (1994) involves the mechanisms of water
objective to restore ecosystems to some desired
pricing, trading of water entitlements and
future state. Loosely defined objectives, such as

Figure 3. Incorporation of ecological needs of riverine ecosystem components into environmental flow
assessments.
Environmental flow requirements State of knowledge

Provision of water for wetlands Very limited: flow calculations have concentrated on quantity of water allocated, rather than
timing, duration, frequency and seasonally (McCosker 1998, p.57).

Riparian vegetation Very limited: flood tolerant species are making opportunistic colonisation of reaches of the
Brisbane River, whilst flood dependent species are in decline due to reduced flows following
regulation of the river (McCosker 1998).

River red gums Study recommended that flows be increased in winter, to allow for winter flooding and
recession of waters in spring, which would give maximum opportunity for seedling growth.
This regime is not compatible with the needs of extractive users (McCosker 1998, p. 57).

24
administrative systems for implementing these The challenge goes beyond gaining community
reforms. These economic and administrative support for these principles: it is to translate these
mechanisms are again outside the scope of into statutory requirements and workable policies so
sustainable river management, unless they impact they become operationalised in practical, on-the-
upon the sustainability of river systems and the ground working arrangements.
construct of environmental flows. They are therefore
not examined in the following discussion.
Although the focus is on rivers themselves, previous
Key drivers for legislative change
discussion has identified trends toward a more The legislative and policy context for water flow
holistic management of the water cycle, with all water legislation is clearly different from that which existed
storages, sinks and sources managed under an as recently as the early 1990s.
integrated framework (Cullen 1997). There has also
been a link between placing limits on water extraction The fundamental catalyst for change on this front is
from one component of the water cycle and the clearly COAG (1994), arguably the most powerful
exploitation and consequent deterioration in the driver for changes to Australian river management
quality of another. It is for these reasons that some this century. Although environmental outcomes were
discussion, albeit cursory, of groundwater and a subsidiary objective, the staged economic
incentives linked to reforms required under the
floodplains is included.
National Competition Policy have been the catalyst
for the rapid generation of state legislation and policy
on environmental flows across all States and
Management challenges for legislation
Territories (although Victoria had initiated this
The broadest challenge is to set water flows for rivers process prior to COAG). The agreement also
within an ESD framework. Although uncertainty and recognised, for the first time, water entitlements to
flexibility is inherent in the definition of ESD, four protect environmental values as a legitimate use for
important principles can be identified which should water allocations.
form the basis for a legislative framework for
It is of interest that the initiator for widespread
sustainable river systems:
environmental reform across all States and Territories
1. protection of resources for the needs of future was a non-legislative, primarily financial mechanism.
generations;
The audit of water use in the Murray–Darling Basin
2. application of the precautionary principle; (Murray–Darling Basin Ministerial Council 1995) was a
3. the protection of biological diversity and ecological rigorous scientific and objective study which
integrity; and demonstrated to the general public the over-
committed nature of this system, and the
4. improved valuation and incentive mechanisms.
unsustainable consequence of current practices. The
Specific objectives stem from this challenge and they ramifications of poor management of our rivers
can be grouped into three categories: clearly had a much wider application than to this
system alone. The implications for Australia rivers
Ecological
overall were unacceptable to many decision makers.
• To establish desired ecological objectives for both
existing benchmarks and future targets through a In response to these two developments, the
robust, scientifically based process establishment of agreed and accepted principles for
protection of aquatic ecosystems and water reforms
Social have since formed the basis of State water reform
• Broad community acceptance of the need and legislation.
urgency to establish appropriate water flows In particular, the National Principles for the Provision of
through rivers to maintain and improve river Water for Ecosystems (ARNCANZ/ANZECC 1996) and A
health National Framework for the Implementation of Property
Economic Rights in Water (ARMCANZ 1995) have been the key
principles around which State legislation has been
• Accepting the need for review, refinement and
developed.
possible increases in water allocations for
environmental flows as additional information The principles, accepted by all States and Territories,
increases our knowledge and understanding of herald substantial change to previous practice. They
ecological requirements provide further guidelines for the development of
legislation which reflects the principle that the
• Achieving a balance between security for resource
planning and economic viability of productive
enterprises and adaptation to emerging information
on environmental requirements.

25
environment is a legitimate user of water, as well as In summary:
the requirement that environmental water provisions • the policy climate for water flow reform has
would be both legally recognised and met as far as changed considerably since the early–mid 1990s;
possible.
• environmental values have legal recognition as a
The general debate therefore has accepted these legitimate water use;
principles as the basis for good policy. Discussions
have moved beyond this stage into the operational • the caps on further allocation represent caps on
detail and the more specific legislative or policy development, not the meeting of ecological ‘bottom
requirements. However, some of the principles are lines’;
more difficult to accommodate than others. The • there is broad acceptance at the Commonwealth
principles (ARMCANZ/ANZECC 1996) of ‘revising and and State/Territory level of the principles for water
increasing environmental water allocations in over- allocations and water reforms which sustain
committed rivers where environmental values are not ecological values; and
being sustained’ and ‘no new water allocations in • the work and debate is now focused on translating
rivers where environmental flow requirements cannot the accepted principles into practical policy
be met’ have yet to be demonstrated in policy requirements and operational tools.
development and resulting planning decisions in most
States and Territories.
States and Territories that have over-allocated rivers Existing legislation arrangements and gap
(particularly Victoria and New South Wales) find it analysis
more difficult to adopt a proactive approach to
establish requirements for reviewing existing Current legislative context
allocations and environmental flows, as this questions Most Australian States and Territories have recently
the security of current user entitlements. introduced, or are in the process of introducing,
In Victoria, although the Water Act 1989 (Vic) and the legislation and policy that deal with wide-ranging
bulk entitlement program are meant to provide long water reforms; and as a consequence, with
term protection for existing aquatic values, the rules environmental flows and water allocations. Water
to implement this process are designed to convert all resource management is the greatest single area of
existing allocations, regardless of whether desirable legislative change taking place in relation to river
environmental flows can be met (Department of management in Australia at present.
Conservation and Natural Resources 1995, p. 7). There There are two consequences relevant to this project:
seems to be little readiness in the present climate for
improving environmental flows in heavily allocated • the recent nature of many changes means little to
rivers. no evaluation has been, or can yet be, undertaken
on their effectiveness; and
In NSW, setting an upper limit for regulated rivers on
• a number of States and Territories are
the impact of changes in environmental flow rules and
implementing policy simultaneously, with few
subsequent allocations to 10% of average long term
opportunities to assess developments in other
diversions allowable under the Murray–Darling Cap
jurisdictions prior to reviewing their own progress.
over the initial five year period until 2002, also
constrains the degree of change to improving It is a period of legislative innovation and change for
environmental flows. river management, with no substantial precedents to
inform likely consequences and outcomes.
These two examples illustrate how existing social and
political constraints make complete compliance with However, a number of conclusions can be drawn from
these principles, and thus river management and international examples, particularly from the USA .
restoration, difficult over the short term. They are Examples from Oregon and Alberta (Figure 4)
more realistically seen as principles to which steady illustrate the tradeability of water allocation rights
and committed progression will be made by the States (Bartlett et al. 1997).
and Territories over following decades, until full
The implications from these two examples are that the
implementation is achieved. This timetable may well
economic and market-driven tool of transferability of
be perceived by many as too slow.
water entitlements can work to promote greater
In contrast, Western Australia generally has an under- efficiency of water use and the opportunity to
allocated river system, which suggests it can take a incorporate benefits for environmental flows.
more proactive stance in its legislative and policy
development, with less of a focus on ‘clawing back’
than on ‘setting ecologically preferred benchmarks’.

26
Incorporating principles and objectives a watercourse. This has enabled the emergence of
policies aimed at managing surface water flows
Legislation affecting river flows should consist of
captured by farm dams and floodplain harvesting.
three important elements:
• key environmental principles and objectives, a The Queensland Water Resources Act 1989 also had
head of power and an objects clause which no reference to environmental objectives in the water
describe the essential intent of the legislation as allocation process, giving no head of power for
well as its scope and breadth of application; ecological issues to be incorporated into water flow
assessments and planning. New legislation will amend
• the products (plans, river strategies, river plans this limitation, but it illustrates the constraints of
and operational frameworks) which provide the most Acts which were developed prior to the 1990s.
rationale and tools for water allocation decisions;
and Empowering principles
• the processes from which the products are derived, Legislation usually incorporates principles which
including community input, reporting and provide the framework for more operational detail.
compliance arrangements, role and responsibilities Principles can be expressed in very generic,
of agencies. ‘motherhood’ statements, or be a more specific
outline of important objectives.
Head of power A desirable, if not essential element in all legislation
dealing with water flows, is a clear statement in the
The head of power provides the legal basis for
objects of the Act of the environmental principles and
addressing environmental objectives and
objectives, links to ecologically sustainable
requirements in the legislation, and also defines the
development and the precautionary principle, the
scope for their application. Two examples illustrate
primacy of these objects and a ‘general environmental
how differences in the head of power can affect the
duty of care’ to be required of all citizens.
scope and effectiveness of legislation.
These principles are a means to an end. They enable
The Water Resources Act 1989 (Qld) states that water
the legislation to move beyond a utility-based,
does not fall under the jurisdiction of the Crown until
traditional water-use framework, and reflect
it enters a watercourse. This restricts powers of the
environmental, non consumptive values (Cummings et
State to regulate and control water flow issues outside
al. 1996).
a watercourse, including surface flow across
floodplains. The Review of Cap Implementation These principles are empowering, and enable the
(Murray–Darling Basin Ministerial Council [MDBMC] legislation to extend further than mere administrative
1998, p. 2) recommended that new legislation in arrangements. They also clearly establish the
Queensland includes management of floodplain philosophical and ecological parameters of the
harvesting. This would involve an alteration to the legislation, and the underlying paradigms against
definitions and scope of the Act. which more detailed interpretation and
implementation should be gauged. It therefore enables
In contrast, water legislation in NSW has a broader
a broader and more holistic view of the environment,
scope, with all surface water coming under the
assists in a more ecologically-based interpretation of
jurisdiction of the Crown not just water flowing within
the legislation, and provides the basis for avoiding a
mere codification of administrative arrangements.

Figure 4. Tradeability of water allocation rights in Most recent legislation impacting on the environment
Oregon and Alberta, Canada. has these principles enshrined. The following are
selected excerpts from legislation which illustrates
Oregon these points.
The 1987 legislation encourages the conservation of water and
its conversion to instream uses. Any water conserved by
extractive users through improved technology or more efficient
distribution is allocated to instream flows (25%) and the user
who can sell, lease or gift it.

Alberta
In overallocated rivers, the use of a ‘water conservation
holdback’ provision applies. Up to 10% of any water allocation
which is being transferred under licence can be withheld in the
public interest to protect aquatic ecosystems. The water ‘held
back’ cannot be used for any consumptive purpose. Under this
arrangement, the river system, the transferee and the
transferor all benefit.

27
Table 4. Excerpts from relevant legislation.

South Australia Water Resources Act 1997

(Useful example of both ESD principles and specific and detailed environmental objectives)
6(1) the object of this Act are to establish a system for the management of water resources of the State –
(a) that ensures that the use and development of those resources sustain the physical, economic and social well being
of the people of State and facilitate the economic development of the State while –
(i) ensuring that those resources are able to meet the reasonably foreseeable needs of future generations; and
(ii) protecting the ecosystems (including their biological diversity) that depend on those resources; and
(b) that, by requiring the use of caution and other safeguards, reduces to a minimum the detrimental effects of that use
and management.
6(2) The Minister, the Water Resources Council, catchment water management boards, municipal and district councils, the Court
and other bodies and persons involved in the administration of this Act –
(b) must have regard for the need:
( i) to maintain and improve the quality of naturally occurring water with resulting benefits to other natural resources
of the State including the land and its soil, native vegetation and native animals, and
(ii) to protect watercourse, lakes, surface and ground water from degradation and, where practicable, to reverse the
degradation that has already occurred;
(iii) to protect and enhance the ecosystems that depend on naturally occurring water;
( iv)to keep the state and condition of the water resources of the State under review;
(v) to integrate, as far as practicable, the administration of this Act and other legislation dealing with natural
resources.

Water Act 1989 Victoria

(useful contrast to SA (above), with a more limited coverage of ESD and environmental objectives)
This Act has the following purposes:
(a) restate, with amendments the law relating to water in Victoria;
(b) provide for the integrated management of all elements of the terrestrial phase of the water cycle;
(c) promote the orderly, equitable and efficient use of water resources;
(d) make sure that water resources are conserved and properly managed for sustainable use for the benefit of present
and future Victorians;
(e) maximise community involvement ...
(g) minimise inconsistencies in the treatment of surface and groundwater resources and waterways.

Queensland Environmental Protection Act 1994

(Useful example of a duty of care for all citizens to prevent or minimise environmental harm.)
36. (1) A person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all
reasonable and practical measures to prevent or minimise the harm.
(2) In deciding the measures required to be taken under subsection (1), regard must be had to, for example,
(a) the nature of the harm or potential harm; and
(b) the sensitivity of the receiving environment; and
(c) the current state of technical knowledge for the activity; and
(d) the likelihood of successful application of the different measures that might be taken; and
(e) the financial implications of the different measures as they would related to that type of activity.

Western Australia legislation (being drafted)

(useful example of objectives and the extent of Crown rights)
A possible long title for WA’s new water legislation is An Act relating to rights, management, use and protection of water resources
and for irrigation schemes and other purposes. The specific purpose of this is to recognise water resources consist of bed and banks
of streams and wetlands, floodplains and associated ecological systems as well as underground aquifers. (Water and Rivers
Commission 1998, p. 8).
More specifically, proposed law in this State will vest control of surface and underground water with the Crown. Suggested wording
could be : ‘the right to the use and flow at any time in any watercourse, wetland or underground source of supply shall…vest in the
Crown. (Water and Rivers Commission 1998, p. 18).
There is also the specific intent to include a statutory objective of sustainable use and management of the water resources as well
as a general ‘duty of care’ for all persons involved in carrying out the Act (Rivers and Water Commission 1998, p. 9).

28
The very clear and full elaboration of environmental • explicit reference to exercise all powers in a
objectives in the South Australian Water Resources manner consistent with the objects of the Act, in
Act provides a model for emerging legislation. particular ESD and environmental principles
(Mascher et al. 1997, p 20).
Incorporating an objects clause in legislation is a
recent development, with legal consequences that are Operational products and elements
the subject of ongoing debate. The essence is the
extent to which an objects clause either fetters the Table 5 provides a snapshot of elements of state
exercise of power (which has been held as invalid by statutes and policy. As indicated, many are currently
the NSW Supreme Court) or rather provides strategic being developed, and have not yet been finalised.
statements to guide decision makers and assist in A number of relevant points emerge from this table:
interpretation of the legislation. This second usage
• elements of water flow such as floodplains and
has been supported in Court decisions. The use of
groundwater are largely perceived as peripheral to
wording such as ‘ensure, promote, encourage,
the water allocation process, and are dealt with
achieve’ is important, with ‘promote’ and ‘encourage’
inconsistently, with the former generally not
suggesting less of a statutory duty and constraint
included in policy development;
than ‘ensure’ (Mascher et al. 1997, p. 16).
• capture and diversion of surface water in farm
The implications are fourfold:
dams is not addressed in any State except NSW;
• all water and river legislation should include
• fine tuning and tailoring of the mechanics and
clauses which make clear and explicit reference to,
operational tools (for examples, the review period
and a requirement to achieve, ESD and its guiding
and auditing framework) do not emerge from this
principles;
overview, although most States and Territories
• an objects clause should be included in legislation have at least some procedures in place;
which explicitly states and gives legislative primacy
• the community has been involved in nearly all
to environmentally based principles, objectives and
water allocation processes (although the extent
purpose;
and mechanisms again vary considerably);
• a general ‘environmental duty of care’ to be created
• terminology for plans, operational tools and
for all citizens exercising powers or rights received
processes differ markedly between States and
under the Act; and
Territories. This lack of commonality and
consistency creates pointless barriers to easy

Table 5. Elements of state statutes and policy.

ISSUE NSW Qld Vic WA

Legislation/policy in place for water yes * yes *

allocation/environmental flows?

Review period for water allocation/ 5 yrs 10 yrs nil not yet finalised
environmental flows?

Strong monitoring/auditing framework? no unclear at present yes yes: for regulated

no: for unregulated

Includes controls on initial work done still under consideration no local rules developed
floodplain harvesting? on draft policy in certain areas

Includes controls on farm dams? yes no no local rules developed

in some areas

Legislation includes groundwater? no still under consideration no yes

Strong community involvement in yes yes no yes (especially

setting flows, objectives? for local rules)

State wide river condition assessment yes no yes yes

to inform priorities?

*legislation imminent, with Bills in Queensland and Western Australia currently being drafted. Acts for both States are timetabled for
late 1999.

29
 understanding and effective comparisons between harvestable right, and which will not be licensed.
States and Territories. A more standardised system Maps are being prepared for each of the various
would be more efficient and in the interests of a climatic and bio-geographic regions which provide
more unified approach. Examples of the mixture of estimates of the 10% runoff volume which will be used
terminology is illustrated in Table 6. as the basis of assessment. Volumes captured above
the 10% limit require a licence.
Floodplains and farm dams
Floodplain harvesting has been identified as a major
The issue of diverting surface water into farm dams issue in NSW. At present, it is not subject to
and off floodplains affects river flows. The following comprehensive licensing, even though large quantities
examples provide an illustration of the effects of of water could be managed under a more regulated
surface water diversion. system. There are various options being examined to
• in some Victorian catchments the growth of farm establish a regulated framework for harvesting of
dams has meant a reduction of 50% of annual floodplain flows.
stream flow in drought years, and a decrease of
It would not be possible to implement such measures
between 4–62% in some NSW streams.
in Queensland under current legislation, as no head of
• Victoria is estimated to have some 300,000 farm power exists to give the Crown jurisdiction over water
dams. Their effect on stream flow is most outside defined water courses.
pronounced in dry periods. (SoE 1985, p. 7.11)
Groundwater
• the construction of onfarm storages in Queensland
grew from 360 GL in 1993–4 to 684 GL in 1996–7. Many of the groundwater aquifers are stressed.
The latter figure was recorded after the cap was A recent assessment in NSW indicated that, of 93
implemented in the Murray–Darling Basin. This is aquifers across the State, 36 were classified as high
nearly a 100% increase over only three years risk—mainly from overallocation (DLWC 1998). For
(MDBMC 1998, p. 20). States and Territories such as Queensland, Western
Australia, Northern Territory and South Australia,
Clearly the increasing capture and diversion of groundwater is a critical resource. Most of Perth’s
surface water has negative impacts on river flows, potable water supply originates from underground
particularly in dry periods. The need to manage all aquifers.
storages and flows within the water cycle is becoming
increasingly obvious, particularly as constraints on A national policy framework has been developed
water allocations from river flows are providing the through the Allocation and Use of Groundwater – A
trigger for users seeking water from other, as yet, National Framework for Improved Groundwater
unconstrained sources. Management in Australia (1996). NSW and Western
Australia have developed policy and requirements for
The growth in farm dams has caused NSW to setting sustainable yield, employing embargoes on
introduce policies to deal with these issues. The Farm over allocated systems and for developing
Dams Policy allows the collection of 10% of the runoff management plans for groundwater systems.
from a landholding each year which makes up the

Table 6. Example of terminology between the States.

Item NSW Qld WA Vic

Floodplain water diversions floodplain harvesting offstream harvesting floodwater management -

Key plans river management water allocation regional allocation bulk entitlement program
plan management plan plan

Subsidiary plans land & water best practice water local area streamflow
management plan management plan management plan management plan

Water rights water allocation water entitlement water rights bulk entitlement

Community committees river management local water project group (for

committee management a specific river basin)
committee

30
Overview of arrangements Assessment of operational elements
As the following diagram for current arrangements
Environmental flows
illustrates, principles and agreements are set at the
Federal level, whilst specific legislation has been All States and Territories have developed different
developed at the State/Territory level. approaches and frameworks for establishing water
allocation and environmental flows on regulated as
It is around these elements of water allocation and compared with unregulated rivers. Within this
water flow legislation that legislative arrangements are variation, there are a number of critical issues and
still being developed. questions which need to be addressed. They are:

A summary of these elements, the various approaches • will environmental flows consist of seasonality,
adopted by different States and Territories and the temperature and other quality components, as well
implications are set out below. as a volumetric allocation?
• by what ecological criteria is the desired flow set?
Commonwealth level
• how can some variability of flow be introduced,
NATIONAL PRINCIPLES; AGREEMENTS when other users seek certainty?
. COAG agreement
• how, in the absence of rigorous data, can we best
. ARMCANC/ANZECC National Principles for Water
for Ecosystems review and refine environmental flows, when other
users seek security and stability of use?
. ARMCANZ Water Allocations and Entitlements – a
National Framework From these questions and issues, a ‘best practice’ set
. Murray–Darling Basin Agreement and Cap of environmental flow elements can be elucidated.
Environmental flows should:
State/Territory level • have a volumetric, seasonality and other water
quality components;
STATE/TERRITORY LEGISLATION AND POLICIES
. incorpoorates principles • include the capacity for introducing some annual
. administration and planning frameworks variability;
. hierachy of frameworks: regional/local • have clearly stated objectives to meet
environmental flows before other uses are
allocated;
Operational elements
• be based upon ecosystem values, not requirements
Adaptive management, review periods and processes of other uses (e.g. short flushes to wash out blue–
green algal blooms);
Role of community in setting environmental flow and
water quality objectives • be based upon ecosystem values which establish
an acceptable ecological benchmark;
Enforcement, compliance, auditing process
• be calculated on a rigorous, transparent and
Farm dams, groundwater, floodplains scientifically based methodology; and
• be flexible, to cater for refinement through
Setting priorities and broad goals using State-wide
river assessment increased information and understanding.
A key question still largely unresolved is where to set
Process of setting environmental flows: volume,
seasonality the requirements for environmental flows? How
‘healthy’ do we want our rivers to be? Is sustaining
Monitoring programs to further refine environmental current conditions sufficient, or should there be a
flow requirements restoration of ecosystems and species which were
present in previous decades?
The following summary sets out how some States are
dealing with issues raised above.
Victoria
The potential for any improvement to environmental
flows for over-committed rivers is limited, with the
emphasis in the bulk entitlement process being on
establishing a quantified, firm basis for water
entitlements.

31
However, any new developments will be constrained Compliance, auditing and enforcement
unless environmental flow requirements (EFR) are
Victoria
met. Existing developments have current entitlements
secured. • For bulk entitlements: annual report to the Minister
on catchment basis.
The EFR can be granted through a bulk entitlement
(for regulated streams) or a streamflow management • For streamflow management plans: most diverters
plan (SMP). No additional environmental flows have are not metered at present, though all pumps will
been allocated through the former process as yet, be eventually fitted with meters. Annual report to
whilst two streamflow management plans (for the Minister.
unregulated streams) have been completed. • There is a concern that any review on regulated
Approximately twenty SMPs are intended to be streams will provide opportunities for renegotiated
developed over the next three years. allocations, and by implication, a decrease in
environmental flows.
Management rules allow flexibility for variability in
volumes between different years New South Wales
New South Wales • Not known at present. Traditionally, the industry
has been self-regulating. A compliance plan is being
Water for environmental values to have priority of
developed for the new water reforms.
over water for extractive uses is stated as an
objective. Queensland
Concerns that continuous accounting (credits ‘saved’ • Not known at present.
during wetter years can be used in other times) may
Planning hierarchy
lead to over-allocation in dry periods, without some
rule to govern maximum limits and impacts on Emerging legislation has, in most cases, a
environmental flows. characteristic hierarchy of planning frameworks.
Clearly, the river basin or catchment is the basic
The maximum impact of environmental flows set at
planning unit, although it is employed at a range of
10% of Murray–Darling Cap diversions reduces their
scales for plan development. It is most developed in
scope in many over allocated rivers.
WA, where a nested hierarchy of regional, sub regional
Management rules allow flexibility for variation in and local river plans are to be developed. In other
volumes between different years. States and Territories, the river catchment is the basis
for planning, without a regional and sub-regional
State-wide river assessment structure sitting above this.
Victoria Two different approaches have emerged, both with
• Assessment completed (Stressed Rivers Program). apparent merit for river management and restoration.
Criteria of river condition developed by a scientific Western Australia has delegated many decisions
panel used to set priorities and actions. (regarding, for example, floodplain allocations, levee
construction on floodplains and farm dams) to ‘local
• Restoration plans underway for the top eight
rules’ which are regulations decided by locally
priority rivers by 2000. These will need to address
constituted water management committees according
inadequate environmental flows if ecological
to the landscape and water demands operating at the
improvements are to result. It is presently unclear
this scale. In this way, blanket policies which apply to
how this will occur on over-allocated rivers.
the whole State are substituted for an approach which
New South Wales tailors ‘rules’ to reflect the river resource and
• Stressed Rivers assessment completed, indicating demands upon it at a more fine tuned level.
of 527 rivers classified, 190 (or 28%) of rivers have In contrast, NSW has preferred a blanket policy
a high level of stress. approach at the State level for planning pertaining to
• This used to set priorities, with river management farm dams and proposed floodplain harvesting
plans completed for all stressed rivers by 2001. policies. This approach, whilst not accommodating
local variations, has the virtues of being simpler,
Queensland consistent and less vulnerable to intense bargaining
• No State-wide assessment. Priority catchments by specific interest groups at the local level.
identified on the basis of highly allocated rivers,
and those where major development and
infrastructure (dams, irrigation) are likely to occur
in the near future.

32
Figure 5. NSW and Western Australian Summary
approaches to river management and
The key issues which have emerged from the review
restoration.
of these components are:
NSW approach • the seasonality component of environmental flows
is not robust, particularly for heavily or over-
. Policy, guidelines, criteria developed at the State level
committed rivers. Seasonality requirements may
. Applied consistently across the State directly conflict with demands of extractive uses.
• temperature and other quality components of
WA approach
environmental flows
. State legislation • the potential for addressing environmental flows in
. Locally developed rules & guidelines by local water fully- or over-allocated rivers appears very
management committee constrained at present.
• meeting environmental flows should be explicitly
. Local committees
stated as the priority objective in legislation and
policy.
These approaches can be summarised in Figure 5. • the balance between security for users (certainty)
Western Australia’s approach is not yet implemented. and adaptive management (flexibility) requires
The outcomes will be watched with interest, as these careful balance, with the needs of river
two approaches have relevance to a wider scope of management and restoration given dominance. A
river management than to just the flow elements shorter review period could be most appropriate in
discussed here. the initial phases of introducing the water reforms.

The operation and effectiveness of the local

committees which usually develop local rules or
Practical case studies
guidelines, are all under scrutiny, particularly with
regard to their independence, representativeness, Although many initiatives regarding environmental
ability to make and implement ‘difficult’ decisions and flows are recent, an evaluation of case studies across
level of expertise. NSW, Victoria and Western Australia various Australian States and Territories illustrates
have all employed extensive use of river-based the operational issues and challenges which occur
committees. Although the frameworks they operate behind the legislative framework (Figure 6).
within may vary, the issues for evaluating their
A summary of the more generic issues, and
effectiveness remain remarkably similar.
conclusions which can be drawn from the diverse
examples, provide a useful assessment of the
operational and on-the-ground implementation of
State and Territory legislation and policies. The
following discussion is based upon findings in Allan
and Lovett (1997).

Figure 6. Summary of elements of case studies in managing environmental flows.

Issue Case Study
Lachlan Macquarie Gwydir Barmah– Kerang Goulburn/ Lake
Valley Marshes Wetlands Millewa Lakes Delatite R. Merreti
NSW NSW NSW Forests Vic Vic SA
NSW
Monitoring adequate no yes partially no no no yes

integrated ecosystem or eco eco moving from species until issue largely species eco
species/ issues specific species to eco recently
approach

appropriate environmental flows

seasonaliy yes yes yes yes partial no yes
volume yes yes yes partial partial partial yes
variability yes yes yes partial partial no yes

Community controversy yes no yes yes yes yes no

(land leases bought
by conservation groups)

33
Some conclusions which emerged from the Allan and • Achieving environmental flow requirements needs
Lovett (1997) study include: to be specified as the priority objective when
• Most flows were what was feasible given existing allocating water flows.
allocations and infrastructure, and can be seen as a • Progression toward an ecological, ecosystem
compromise between optimal and acceptable framework for water resource legislation which
environmental flows. embraces a holistic appreciation of all elements of
• The scientific basis was often uncertain, given lack the water cycle.
of data and little monitoring to build upon the poor • Progress toward providing environmental flows
information base. which restore riverine ecosystems to some desired
• The approach was often species-specific, with full and defined future state, rather than just maintain
integration of ecosystems difficult to achieve. Even or slightly improve existing conditions in highly
planning for one wetland in isolation from other modified or degraded river systems
linked wetlands was seen as inappropriate. • Critical elements of the water cycle (e.g. farm
• Species with an economic and recreational use dams, groundwater) which impact on river flows
such as fish and ducks received disproportionate should be incorporated in water flow legislation.
attention when assessing flow requirements. • Environmental flows should include a volumetric
• Some environmental allocations had economic and and seasonality/variability component, as well as a
other benefits, including salinity and river cod process for establishing appropriate environmental
management. allocations in over-committed rivers. This can be
achieved by the inclusion of ‘operational rules’
• The process is complex, with detailed scientific which reflect the essential variability in
information, a number of agencies and competing hydrological parameters in addition to a volumetric
community and environmental interests. Adequate allocation.
resourcing of community committees is essential to
promote better understanding and more informed • Legislation includes an object which clearly
decisions. requires achievement of, and therefore gives
primacy to, ESD and ecological objectives and
principles concerning water flows and
Emerging trends
It is clear there has been a recent transition in
legislation regarding water allocation. Four distinct
phases can be identified, with the third phase still Figure 7. Development in legislation: water flows.
partially unfulfilled. It is important for sustainable
river management that legislation progress beyond Pre 1990s: utility-based water flows
Phase two, be steeped at least in Phase 3 and move Functional use for sewage, water, irrigation
toward Phase 4. These phases and their features are
presented in Figure 7. 1990s: structural water reforms

Figure 8 illustrates trends in specific elements of Environmental values and ecosystem objectives
environmental flows, illustrating that progress has
market mechanisms + river or water
been made on a number of fronts over the past
management plans
decade. The ‘S‘ indicates the current state along the
spectrum of a number of identified elements. As the >2000: water flow objectives & holistic ecosystem
diagram illustrates, progress has been more management
substantial in some areas (e.g. ecosystem approach
State environmental flow policy
instead of single species focus) than in others.
Critical success factors for water flow legislation Explicit Includes all Water/river/stream Links to:
ecosystem sinks, storages management . tradeable
• Develop structures to accommodate ecologically-
and river and flows (i.e. plans with strong extraction
based environmental flow allocations to river
health surface water, links to catchment limits
systems which cross State boundaries, and
objectives floodplains, management
therefore deal with interstate agencies and . tied public
underground plans and landuse,
legislation. financing
water, dams) and to water
• Legislation and policies need flexibility in quality . incentives
structures coordinating community and agency . subsidies
interests, to be able to reflect the wide variability in Other
river systems, as well as the physical and social statutory
context of their catchments. plans

34
 environmental allocations. There need to be • Adequate resourcing for scientific and community
accompanying mandated criteria for decision working groups, given the complexity of the
making, to guide decision makers and those scientific, ecological and hydrological issues and
(including the Courts) implementing the Act. inter-agency powers which are inherent in many
• Clear, explicit statements of objectives, standards, environmental flow decisions.
principles and duty of care as part of all water • Monitoring requirements incorporated into
resources legislation, which provide a clear head of legislation, so that scientific information can be
power for legislating over elements of the water collated and used to further refine environmental
cycle. The less explicitly that central principles and flow assessments and provide greater certainty
elements of legislation are described, the greater with ecological and scientific information.
the opportunity for political interpretation and
influence by special interest groups.

Figure 8. Trends in specific elements of environmental flows.

Original or unacceptable objectives Preferred

Single species Ecosystem

Volumetric Seasonal, variable and management rules

River based Includes other storages and flows

River based Other disturbances, activities in the catchment

Emphasis on recreation and economic uses Ecosystem values

Narrow objectives and cursorily defined Key principles, objectives clearly and fully stated

Environment as one of many competing outcomes Environment as priority environmental flow objective

35
5. WATER QUALITY

Introduction • temperature changes in water storages and from

Water quality has been traditionally of secondary thermal pollution.
importance to water quantity issues. This status is Healthy waterways are a vital component of both the
reflected in the legislation, which has been largely natural and human environment. Effective
concerned with water allocation issues. The focus on management of activities associated with the
water quality has generally been narrow, limited to continual decline of water quality will not only protect
potable water issues and control of pollutants and the significant values associated with our water
contaminants from point sources. Yet despite nearly resources, but will also contribute to a range of
30 years of clean water legislation, water has desired ecological outcomes, including:
continued to become less fit for use.
• healthy human populations—a healthy and
In Australia, the States and Territories have the prime sustainable supply of clean drinking water and
responsibility for water quality management and water for other domestic purposes (e.g. washing
protection, delivered through various agencies and bathing);
empowered under State / Territory legislation. Prime
• economic viability—long term viability of water
responsibility for water pollution by point sources
supplies for agricultural and industrial activities;
such as industries and utilities has rested with
environmental agencies. Powers over diffuse sources • biological and physical environmental integrity—
have been shared between a number of agencies and healthy land-based and aquatic ecosystems where
various legislative instruments and administrative biodiversity and ecosystem integrity are
arrangements. maintained;

This situation reflects the complexity of water quality • fishability and swimability—a level of water quality
management, and the range of activities which can that allows people to engage in both primary and
have a potential impact upon water quality secondary contact recreational activities;
management. • aesthetically pleasing water resources, both inland
and coastal.
Discussion here proceeds from an analysis of existing
legislative approaches, an outline of trends in
legislation, identification of challenges and gaps in
current legislation, and a scoping of criteria for Figure 9. Performance indicators for protection
legislative best practice in the future. Examples of and management of water quality.
water quality protection and management in Australia
Compliance
and overseas highlight key elements of the discussion.
. AWQ Guidelines (drinking water)
. AWQ Guidelines (fresh water)
Desired ecological outcomes for water Incidents
quality management . eutrophic events
The quality of Australian waters continues to . fish kills
deteriorate. The main threats to water quality include: . marine blooms

• contamination due to activities associated with Inputs

intensive agriculture, industry, urbanisation, . nutrient generation rate
aquaculture, mining, water storage, and waste . % of catchment with erosion problems
disposal; . % of vegetation cover
• environmental problems (e.g. salinity, . % of riparian areas cover
sedimentation, nutrient enrichment, and flooding) . % of catchment elevated salinity
caused by clearing and/or modification of native . acid sulfate soils
vegetation, particularly in sensitive catchment
Water quality
areas and within the riparian zone;
. Dissolved oxygen, nutrients, temperature, acidity and
• inappropriate use/management of land and water alkalinity, pathogens, salinity, turbidity andclarity,
resources, for example, overgrazing of pastoral temperature, bacteria, toxicants
leases, excessive recreational use, inappropriate . indicator species
urban design and urban form (Welker 1996, State of
the Environment Advisory Council 1996, Johnson
1999); and

36
Governing water quality through a legislative Table 7. Choices for water quality policy.
framework means achieving control over discharges
Water quality Policy options/elements
from both point sources and non-point sources.
parameters
‘Control’ in this case means:
Pollutants:
• pollution prevention, management, repair and
• persistent toxins Prevent use and eliminate
restoration;
• toxins Eliminate over time
• protection, conservation and regeneration of • sediments Targeted reduction
habitats; and • nutrients Targeted reduction of diffuse sources;
• management of land and water use processes and targeted elimination of point source
protection of ecosystem processes. • microbes Targeted reduction

Water quality issues relate as much to the needs of Pollutant limits Concentration levels
the receiving waters as they do to instream uses and Load limits
values. Coastal rivers flow to oceans, to reefs, to bays Spatial variations Deciding the focus for management
or estuaries, with or without dams or water actions:
diversions. Similarly, inland rivers flow to lakes, dams, • receiving waters
major rivers, bays or the ocean. The body of • problem catchments
knowledge for determining the effects of pollutant • sub-catchments
loadings on receiving waters has expanded rapidly. • specific sites e.g. acid sulphate
Water quality managers are relying increasingly on the areas, highly erodible soils
load limits resulting from models of receiving waters.
‘Standards’ and limits are now more ‘tailored’ to meet Temporal variations Tailoring requirements to pulsed flows
the water quality objectives for specific water bodies, • droughts
a tailoring made possible by this new body of • floods
knowledge. • normal and long lead times for some
impacts e.g. practices producing
Accompanying this evolution in knowledge—of salinity
pollutants, their effects and risks throughout the
water cycle—has been the need for greater capacity in Load variations Allocating load limits between sources:
water quality policy to handle the complexity and • between point sources and non-
increase effectiveness of management. Table 7 point sources
summarises just some of the parameters of water • amongst non-point sources
quality where increased complexity has impacted on Audience variations Policy instruments for the full spectrum
policy options. of people:
• innovators
• early adopters
National guidelines • mainstream adopters
An important national initiative aimed at consistency • laggards
in water quality management is the National Water • apathetic or active resistors
Quality Management Strategy (NWQMS). The Definition of water quality problem
development of this strategy encourages consistency Emphasis on:
across water quality management authorities. The • need to protect water for
strategy provides a framework for choosing and downstream uses
setting interim water quality objectives, and a policy • need to protect ecosystem health
context within which to implement a system of water • need to deal with inappropriate
quality management. human behaviours and beliefs
It offers a holistic approach to natural resource Water quality improvement goals
management within catchments, marine waters and Balancing the needs for:
aquifers with water quality considered in relation to • restoring balance between water
land use and other natural resources; coordination of flow and water quality objectives
all agencies and levels of government; and community • stabilisation of water quality in all
consultation and participation. water bodies
In addition to the NWQMS, national guidelines have • % improvement in water quality of
been developed for freshwater and marine waters and some water bodies
for potable water used for drinking water. The • restoration of water quality to a pre-
contents of these guidelines are summarised in defined level in some water bodies
Table 7 below.

37
Research and development of these guidelines reflects Drivers for change
the expanding knowledge base for water management.
Water quality problems are receiving recognition at
They are an achievement—they provide the
local, regional and national scales. Key drivers moving
opportunity at least for national coherence about the
the water quality agenda forward in recent times have
scientific basis for water quality. These guidelines
been:
however cannot ensure consistency of their
application. Their effectiveness is solely reliant upon • The two major national developments: the
the States and Territories adopting and giving ANZECC, NWQMS and COAG 1994
expression to these in their legislation. • Acknowledgment of a water quality crisis at a
This degree of weakness in the national delivery of number of scales through:
water quality management in Australia is in strong • State of Environment assessment of Australia’s
contrast to the arrangements in the United States. inland rivers and marine waters;
Water quality policy in the USA is delivered through a
• fish surveys in the Murray–Darling, our major
strong centralised framework based on Federal
national river system; and
legislation and on conformity by individual States
reliant on Federal funds and assistance programs. • outbreaks of blue-–green algae and microbial
scares in vital water supply catchments.
Federal powers in the United States enable direction
and priority-setting by the national government in • Recognition of the sizeable contribution of diffuse
relation to individual States and their water quality sources to the problem and the need for multiple
management (Figure 10.). Relations with individual solutions—legislative requirements linked to
States are highly charged and based on hard market mechanisms (tradeable discharge rights,
bargaining arrangements where States seek variations cross subsidies from point sources to management
in aspects such as standards, load limits or of diffuse sources) and to public financing of
timeframes required and prescribed by the United incentives.
States Environmental Protection Agency (USEPA). • Increasing community awareness and extensive
community involvement in land and water care
This Federally interventionist and funded approach is,
projects.
in theory at least, a strong basis for a national
framework for river management particularly in Legislation which dealt with water pollution through
relation to water quality. The same administrative an approach based on a single solution, universally
model applies for wetlands, estuaries and coastal applied, may have had some success when the focus
management. An approach more reflective of for water quality was mainly on point sources. As the
partnership would be in closer harmony to recent focus shifts now to diffuse sources, legislation’s focus
advances in river management and restoration in and its modus operandi is changing accordingly.
Australia.

Table 8. National guidelines for water quality.

National guidelines Characteristics

ANZECC (Water Quality Guidelines for Fresh and Marine Waters) • Identifies five types of environmental values—ecosystem
protection, recreation and aesthetics, raw water for drinking
water supply, agricultural water, and industrial water
(commonly referred to as ‘beneficial uses’).
• Each value has ambient physical, chemical and biological
guidelines which are not to be exceeded if the environmental
value is to be maintained (Mascher 1997).

ARMCANZ (Drinking Water Guidelines) • Uses concentrations of indicators ‘below which no harm or
offence should occur to individuals’ (Alexander 1996, p.
7.36).
• Indicators are grouped into benchmarks—Health Criteria,
Aesthetic Criteria and Amenity Criteria.
• Health Criteria—prescriptive: consumed water should be free
of harmful levels of toxic substances and pathogens.
• Aesthetic Criteria—more subjective; consumed water should
be free of objectionable odour, taste and colour.
• Amenity Criteria—water used for other domestic purposes
should be free of gross microbial contaminants and
excessive, staining, corrosive or scaling agents.

38
Figure 10. Water quality management in the USA.
Water quality management in the USA

As a result of its constitution, there is in the USA a greater degree of formal intervention by the Federal Government in State
matters. In the case of river management activities particularly water quality, this intervention is engineered through a mix of Federal
laws encompassing environmental protection and administrative matters (and related funding) through:
• Several major water (environmental) Acts with highly specific requirements of Federal agencies and States for plans and
processes complying with Federal requirements:
• National Wild and Scenic Rivers Act 1968,
• Federal Water Pollution Control Act 1972 (Clean Water Act),
• Compensation & Liability Acts 1980, 1986;
• Coastal Zone Management Act 1972,
• Water Pollution Control Act 1956; amended 1965;
• Estuary Protection Act 1968.
• The prime piece of legislation is the Clean Water Act (CWA), a powerful legislative tool for water quality. It aims to control point
and diffuse sources through:
• Requirements on States to establish State Water Resources Control Board (SWRCB) for implementation of the
CWA under supervision of EPA. Regional Water Quality Control Boards are established to prepare Basin Plans
based on beneficial uses and total maximum daily loads for the waterway (load based planning rather than
environmental standards) for SWRCB approval.
• Ranking of waters that do not meet applicable water standards with technology-based controls alone (the three
highest priority waters per region then are required to have action plans, and implementation and monitoring
strategies) a river basin management plan
• This river basin management plan is based on total daily maximum loads (TDML) allowable for a river to retain its
desired environmental values.
• Funding provisions to States and to individual farmers are based on approval of these plans.
• Requirement for each State to prepare Non-Point Source Management Program – with Federal funding for
assistance. These have relied on non-regulatory approaches – grants, loans technical assistance, public
education. Results have been limited so states are now looking at more regulatory approaches.
• USEPA publishes ‘guidelines’ for diffuse pollution and management of the ten land uses with the highest risk of
pollution; States are required to manage these land uses through requirements for best management practices
• Delegations from Federal Government to States to issue Discharge Elimination Permits, the equivalent of
pollution licences; five yearly review of this delegation power
• Funds for specific initiatives across the country are raised from specific relevant sources e.g. coastal wetlands
planning protection and restoration funds come from taxes on small engine fuel (outboard motors) and from
requirements on States to match Federal funds by 50%, or 25% if the State has its own trust fund for acquisition
of coastal wetlands
• Series of Acts targeted at inserting environmental requirements into other major legislation e.g. Food Security Act
(1985). The latter Act sets out conservation provisions for soils (sodbusters) and wetlands (swampbusters).
Federal funds are attached to plans and demonstrated achievements under these programs.
• Strong links potentially between Coastal Zone legislation and Clean Water Act—tightening of requirements
(approved plans before funding, observance of USEPA guidelines) about nonpoint pollution control and about
State/local agency plans, policies and permits. Advances in California towards stronger regulations for non-point
source runoff and for administrative coordination for planning and decision making. (California Coastal
Commission (n.d.), The Habitat Restoration Information Center (n.d.))

39
Trends in legislation for the traditional ‘end of pipe’ management method.
Licences control discharges and emissions through
Clean water legislation the setting and enforcing of licence conditions. The
Legislation for water quality has achieved a degree of effect of licensing was mainly enabling environmental
uniformity across the States as evidenced by a nation- agencies to know the pollutants produced by an
wide releases of Clean Water Acts by the States in the industry and to enforce conditions generally if
1970s. The next era saw the incorporation of water breaches were detected. Pollution prevention and
quality into broader ‘environmental protection’ elimination objectives were addressed through
legislation, with more comprehensive schedules of licensing until environmental protection legislation
polluting activities, more stringent licence conditions became serious about penalties, strategic about
and stiffer penalties. pollution as ineffective waste management, and
incorporated incentives for industry compliance.
Environmental protection legislation
In recent years, licensing has undergone changes.
Presently, all States have environmental protection Licensing systems are moving to encourage voluntary
acts supported by environmental protection policies proactive improvement of environmental performance
(State Environmental Protection Policies [Vic], consistent with the concept of best practice
Environmental Protection Policies [WA, Qld, SA], environmental management. This shift in approach is
Protection of Environment Policies [NSW], and part of a change in environmental management
Sustainable Development Policies under the State generally.
Policies and Projects Act 1993 [Tas]). Environmental
The main elements of this new approach incorporate
protection relates to all contaminants and the
best practice licences, codes of practice, self-
protection policies are subsidiary legislation
monitored licences, incentive licences, and load-based
specifying requirements and processes in relation to
licence fees. Industry self-regulation through codes of
noise, air, water quality or selected geographic areas
practices and certified Environmental Management
or in key activities (e.g. mining).
System (ISO 14,001) and regulation negotiation
Change of focus (termed Reg-Neg in the USA) are also part of these
trends. While it is early days as yet to judge the
Two primary trends have impacted on the legislative results of this form of de-regulation, environmental
framework for water quality: groups have expressed the need for legislation to hold
• the move away from reliance on standards to set the bottom line in terms of performance requirements
limits on discharges to a focus on ambient water and not to rely excessively on industry self-regulation.
quality; and
Environmental protection legislation will continue to
• the move away from the focus on point sources to utilise licences and works approvals for control and
a combination of point and non-point sources of management of point source discharges from
water pollution. prescribed premises. The shift however is towards
more holistic, target-based approaches where overall
The degree of uniformity evident in the environmental
water quality management is planned for, and licences
protection legislation can be attributed largely to the
are issued in the context of desired water quality
ANZECC NWQMS, a strategy based on the evolving
objectives. Licence conditions are specifying
science of water quality with a view to reforming
measures for minimising and even eliminating
water quality management. The guidelines developed
pollution through requirement to recycle waste and
under the NWQMS enabled the focus to shift from
through fees scaled to account for discharge levels.
end-of-pipe estimates for protection of water quality
Tradeable emission schemes, such as operate in the
to a focus on ambient water quality and its tolerance
Hunter Valley (NSW), could be useful here.
levels for various pollutants. The use of ‘standards’
for discharges and for ambient water quality was the Evolution of legislative framework for water quality
initial approach. Now, in the late 1990s, the emphasis
is on risk assessment of activities and the ‘tailoring’ of The move away from licensing of ongoing pollution
water quality requirements to environmental values and reliance on licensing of point sources for water
and specific conditions of a selected water body. quality protection is a fundamental shift. The
emphasis on multiple mechanisms for managing point
This evolution of water quality requirements and non-point source means a number of other
generated fundamental changes to environmental legislative mechanisms become critical to water
protection legislation as well as to legislation quality. For comprehensive protection, water quality
indirectly affecting water quality. then has to be addressed through:
Point source licensing • Legislation relating to activities and land uses
which impact on surface and groundwater for
For three decades, licensing has been the primary
example agriculture, forestry, mining, industrial
mechanism for pollution control. This was the vehicle

40
 activities, urban development, utilities and river Administration of the legal framework for protecting
engineering. water quality is critical to its achievement. The
• Legislation managing specific environments e.g. Western Australia case study (Table 9) demonstrates
catchment management, coastal protection the problems of fragmentation of pollution control
responsibilities across agencies.
• Legislation protecting use of and access to
resources e.g. land, soils, forestry, fisheries, water; A multiplicity of decision makers exercising powers
including occupational licensing for those engaged under different pieces of legislation does not
in resource-based activities (Figure 11). necessarily lead to the conclusion that water quality

Table 9. Case study of water quality-related administration, Western Australia.

Water quality responsibilities: Western Australia

Water and Rivers Commission (WARC) formed through split source discharges from prescribed premises and power to
of former Water Authority into Water and Rivers Commission enforce prescribed offences; power to prepare EPPs which
and Water Corporation. WARC administers all legislation for when approved have the force of law.
water resources and planning for use of water plus water EPP (Gnangara Mound Crown Land) control effects on
allocation and assessment, conservation, protection and groundwater/wetlands, private land controls;
management of State water resources and their environments. EPP (Swan Coastal Plain Lakes 1992) control activities on or
WARC is vested with powers to make by-laws to control around lakes;
polluting activities, regulate land use and allow for steps to be EPP (Peel–Harvey Estuary 1992) control of pollutants
taken to prevent or clean up pollution; to proclaim areas and especially phosphorus;
make by-laws for protecting underground water and to prevent EPP (Swan & Canning Estuary 1997).
pollution of water and associated lands in declared Environment Protection Act 1986 requires environmental
management areas; to proclaim controlled lands within impact assessment. The Minister for Environment, in
which tree clearing without a license is an offence; to license consultation with the relevant decision making authority, is the
consumptive uses (though usually without reference to final decision maker on the environmental acceptability of the
effects on water quality); to develop policy such as catchment proposal. Planning Legislation Amendments give Minister
policies to maintain: further powers to intervene; also there is the application of
environmental impact assessment to planning schemes.
• Priority 1 areas which are most important for public water—
no degradation, strict limitations on land uses, no Western Australian Planning Commission is responsible for
development. regional plans with which local planning schemes must be
• Priority 2 areas where there is some development consistent and statements of Planning Policy. Most policies
already—restrictions on further change, guidelines. and regional plans have looked at protection of underground
• Priority 3 areas where existing or planned development water supplies and public water supplies. The Metropolitan
requires high water treatment. Department of region plan has far-reaching objectives e. g. avoiding
Environmental Protection is charged with pollution development which unacceptably diminishes water quality and
control powers for land water and air under the quantity; ensuring subdivision designs which minimise
Environmental Protection Act 1986. Powers include destruction of wetland and avoid pollution, making provision for
authority to issue licences and works approvals for point water conservation. Requirement to consult with EPA, Water
and Rivers Commission, other agencies (Mascher 1997).

Figure 11. Development of water quality legislation over time.

Point source and diffuse sources

Water quality management through:

Point sources
• Water Resources Act

Environment Protection • Environment Protection Act

Act (Water Protection • Planning schemes
Policies) • Catchment management plants
Catchment Management/ • Mining, agriculture, industry
Clean Water Act Water Acts codes

<1990s 1990s >2000

41
is adequately protected. This type of system lends • all State legislation that affects water quality
itself to fragmentation and the resulting danger that management and the management of other natural
powers and functions overlap and that decision resources (Mascher 1997).
making is not integrated or directed towards
In Queensland, the Environmental Protection Act 1994
achieving the same, or even compatible, goals
imposes a general statutory environmental duty. This
(Figure 12).
duty may be enforced through mechanisms in the Act.
An environmental duty requires all persons to take all
Figure 12. Trends in water-related decision reasonable and practicable measures to prevent or
making. minimise the occurrence of environmental harm.
Present Future In South Australia, the Water Resources Act 1997
strengthened links between water quality and water
Water quality focus Total water cycle focus
quantity through its clear statements of the Objects of
Discharge limits Load limits tied to water quality the Act. It also strengthened the link between
objectives catchment management planning and land
development. Any inconsistencies between catchment
Licence for pollution Licence for pollution elimination
management plans and local planning schemes are to
Generic single solution approaches be rectified, though this has not yet been tested in any
Target-based, tailored approach substantial way.
Complex science Credible science and simple tools Integration of plans
for its application
Water quality objectives form the basis of water
Fees and penalties Integration of fees, penalties, quality management plans, and for subsidiary plans
market and public finance such as those for nutrients, sediments, stormwater
mechanisms and sewage treatment. These in turn need to be
Management by central agency incorporated into other plans making up the
Multiple agencies, operational information base for an area’s protection and resource
agreements, regional / local development. Examples of these other plans include
planning and service delivery at coastal, vegetation management, agriculture, water
catchment / regional and local allocation, agricultural or residential development,
scales salinity management.
Water quality objectives must also inform statutory
plans, for example local planning schemes, and any
Legislative framework requirements statutory catchment and coastal plans. Modelling
Management of point sources has been addressed tools are increasingly available to inform strategic
primarily through a reliance on environment plans about different land use scenarios and resulting
protection legislation. Legislation for management of water quality regimes.
diffuse sources however will require a more diverse,
innovative and comprehensive legislative framework
Figure 13. Water quality and water quantity
involving land use control, pollution prevention,
planning stressed rivers assessments,
environmental impact assessment, resource
NSW.
management and catchment protection.
Water quality and water quantity planning stressed rivers
Objects clauses assessments, NSW
Water quality objectives, and ecological sustainability In 1998, NSW in line with its State Rivers Policy released its
in general, need to be incorporated into legislation. report assessing stress levels in NSW rivers. The report is
One method for this is the use of objects clauses, duty intended to form the basis of government management
of care statements and principles. These should be priorities in terms of embargoes on issue of new water licences
incorporated in the full range of legislation governing and licence transfer arrangements.
water quality directly or indirectly, including:
The overall stress classification was based on estimates of
• State planning policies—this would apply to all stream flow, water usage and hydrological stress together with
decision makers when water quality could be stream health indicators, conservation status and risks to
affected. environmental values.
• new water quality legislation or an umbrella Act The result was that 228 subcatchments (33.5%) rate as high
governing all decision making related to water priority for the preparation of river management plans, 112
resources. subcatchments (16.4%) are medium priority and 108 (15.9%)
are low priority. 232 remain unclassified (DLWC 1998).

42
NSW is planning for its rivers through integrated Figure 14. Protecting Chesapeake Bay, USA.
riverine strategies (Figure 13). Priority rivers under
Protecting Chesapeake Bay
the State Rivers Policy, have been identified and
planning effort is targeted at these. The plans Maryland, a state on the eastern seaboard of the United States
themselves are based on water flow objectives and has a strategy to reduce 1985 nutrient pollutant loads from
water quality objectives. The resulting riverine plans each of Maryland’s major tributaries flowing into Chesapeake
are not statutory. They need integrating with estuary Bay by 40%, i.e. a nutrient capping at 60% 1985 levels.
plans, coastal plans, floodplain management plans, Through its Smart Growth Areas Act, Maryland’s government
Local Environmental Plans as well as informing provides regulations and guidelines for planning and growth
decisions for licences for water and for discharges. management designed to concentrate growth, protect rural
land resources and encourage stewardship of the Bay. Smart
Smart growth Growth is to be achieved by providing incentives to better focus
When priority is given to water quality protection, the growth in planned areas and by financial assistance to
right to unfettered development in every catchment preserve rural land.
comes under scrutiny. The alternative is to set a In its Tributary Strategies documents, the method for achieving
threshold or cap in pollutants which can be exported nutrient capping is not merely a matter of focusing on point
to a water body, necessitating a limit on development sources and non-point source control through applying urban
in certain catchments. and agricultural best management practices. As well,
Maryland’s watersheds are to see the implementation of Smart
Based on pollution load limits of receiving waters,
Growth guidelines which will direct growth in appropriate ways.
thresholds can be set for the scale and types of
development permitted in a catchment. The Directed Growth is intended to achieve a range of outcomes to:
Chesapeake Bay example (Figure14), based on the • accommodate projected growth on substantially fewer
Smart Growth Areas Act (date) planning legislation, is a acres of land
case study of catchment planning for nutrient • conserve more resource and environmentally-sensitive
capping. land such as forest, farmland and riparian buffers along
streams
Integrated management
• put more new households on sewer service and fewer on
The effectiveness of water quality protection and
septic systems
management will depend on the success of integration
of water resource management, land use allocation, • reduce nutrient pollution from new development and
catchment land management and environmental septic systems
protection functions at the strategic, regional and • limit impacts of growth to relatively few local watersheds
local levels (Welker 1996). in areas designated for growth.

In Queensland, for example, the Brisbane River is In a model for the Patuxtent River watershed, it has been
principally managed through the Water Resources Act estimated that by 2010 30% less nitrogen will result if the
1989 but at least 41 other Acts have significant impact following Directed Growth options are implemented (assuming
and are administered by at least 22 different State the same amount of growth in households, population and
agencies. Additionally, another 32 Acts, plus a range of employment):
site-specific Acts, impact on the Brisbane River’s • increase in development potential of nominated growth
restoration. There are also the town planning areas
schemes, policies and local laws of 16 local • transfer of development rights to growth areas
governments. The situation is generally similar for
• extension of sewer service to all designated growth areas
other Queensland rivers; at least 70 Acts actioned by
at least 38 State and local agencies plus local • protective zoning of agriculture areas
governments apply to all Queensland rivers (Mary • purchase of development rights
Maher & Associates et al. 1998). • rural clustering
Victoria’s method of ensuring protection and • forest conservation programs
management through extensive institutional reform • stream buffer protection programs
and founded on catchment administration is outlined
The findings in Maryland are that such directed growth
in Figure 15 (see p. 42).
measures, implemented through the local planning, zoning and
subdivision processes, have major roles to play in limiting
future pollution loads. Directed growth mean greatly improved
stream quality for one quarter of the watersheds (130,000
acres), stable quality in 118,000 acres and additional
degradation in only two sub-watersheds totalling 7,900 acres.
(Patuxent River Commission 1999)

43
Devolution health. Downsizing of agencies at all levels means all
this activity could take place in the context of a severe
Any desired increase in public policy intervention to
shortage of public funds and resources.
deal with current pressures on water quality can only
be delivered with creative use of stakeholder Most States/Territories are moving towards using a
motivations and partnerships. This era of hierarchy of plans accompanied by clear definition of
communication, public participation and roles and responsibilities at all levels. Deciding which
partnerships, and devolution of powers is a strong matters are best addressed at which level is critical.
trend. Regional and local planning, service delivery Decisions are often made too remote from where the
and enforcement will depend on appropriate results of them are felt. Conversely, at the local level,
delegation of powers as well as appropriate difficulties may arise about making the tough political,
resourcing, central leadership and advocacy about economic and ecological decisions given the pressure
what is necessary to protect ecosystem and human of multiple and often conflicting missions. A balance
has to be found between State/Territory decision
making to establish the principles and set the
framework, and local decision making to adapt the
framework to local circumstances.
Figure 15. Victoria’s integrated catchment
management reform.
Criteria for legislative best practice
In Victoria the Catchment and Land Protection Act 1994 allows
creation of regional catchment strategies. These are the central No single agency, no single program, no individual
regulatory tools and guide actions of public authorities. Under initiative can deliver protection and management of
the Act, the Victorian Catchment and Land Protection Council water quality in Australian rivers. Nor is a plethora of
advises on catchment management and land protection, and programs, agencies or policies any assurance that it
operation and administration of the Act. will be delivered. An appropriate water quality
management system is a complex mixture of
From 1 July 1997, Catchment Management Authorities (CMAs) processes, mechanisms, principles and policies
were created to implement RCSs in all rural regions (except administered by a number of Government agencies
Yarra), bringing together community service delivery and and applied at the State, regional or local level (Welker
advisory groups in a whole-of-catchment approach with 1996).
responsibility for coordination of floodplain management, rural
drainage, water quality, Crown frontages and heritage rivers At the industry or farm level, agencies and programs
outside national parks. They combine the roles of the former must be integrated, without competition for
CALPBs, river management authorities, salinity implementation recognition, power or control between the agencies.
groups, water quality groups and sustainable regional Plans may be developed but if there is no cooperation
development committees. between stakeholders and competition between
agendas then the causes and management of water
Plans prepared for special areas can include specified land use quality problems, particularly diffuse nutrient
conditions and are binding on the landowner. It is an offence to pollution, will not be addressed. Without strong
disobey. leadership social, economic and environmental
The Act also prescribes a number of general duties on policies will conflict.
landowners. Landowners are required to take all reasonable A desired future requires leading, rather than being
steps to protect water resources. The body corporate under the led by, change. Such leadership requires
Conservation Forests and Lands Act 1987 can issue a land communication of information, active public
management notice to non-complying owners. The notice can participation and changes in governance (Mitchell
prohibit or regulate land use or land management practices, 1999).
require specific action and anything else considered
necessary. It is an offence not to comply. However the Crown, Legislation needs to facilitate these elements of water
a Minister or Secretary is not liable for an offence. quality management. Legislation on its own will not
suffice however, and must be seen as one part,
A minister or public authority must have regard to the regional important as it may be in setting the scene for most
catchment strategies and any special area plan. The Act other measures, of an overall package of measures.
defines land to include water. It sits over the top of the Water The question of how much reliance should be placed
Act 1989, the Environmental Protection Act 1970 and the on legislation pervades this exercise.
Planning and Environment Act 1970.
Figure 16 summarises changes to water quality
Ministers can incorporate regional catchment strategies into legislation and the main mechanisms for its operation
State Environmental Protection Policies, and make them (pre 1990, 1990s and beyond 2000).
binding. Catchment and Land Protection Boards functions are
linked to river management authorities’ functions.

44
Critical success factors for water quality • setting up participation arrangements for planning,
legislation implementing and reviewing progress at the correct
level;
Critical success factors for water quality legislation
• ensuring public accountability for impact
are identified as:
assessment, licensing and planning processes
• statements in the objects and principles of particularly where agencies have discretionary
legislation which ensure resource use and access is powers; approval processing arrangements which
accompanied by river management and restoration are streamlined but not restrictive of appropriate
/ecosystem protection expressed as the over-riding levels of agency or community review;
objective;
• greater use of land use planning powers including
• rationalisation of conflicting legislation and caps on further development in stressed
incorporation of water quality into all relevant catchments (smart growth) and incentives for
legislation and simplification; preferred development;
• catchment-specific definition of water quality • ensuring funding for implementation through
objectives and management mechanisms; revenue raising powers and cross-subsidies (point
• clear definition of the hierarchy of responsibilities source to diffuse source management);
for policy-setting, planning, management and • removing obstacles to economic measures such as
implementation in relation to all key legislation for tradeable discharges or cost-sharing programs;
water quality; building regulatory incentives for best practices by
• enforcement and administrative measures aimed at industries and agricultural land uses (linked to
consistency of agency approaches, culture change public financing innovations); and
about pollution elimination, as well as achieving • accountable administrative measures for ensuring
successful prosecutions; an effective and credible system of industry self-
regulation or any co-management arrangements,
and third-party appeal and injunctive rights.

Figure 16. Development in legislation: water quality.

Pre 1990s Command and control of major point sources

Discharge limits: end of pipe

1990s Minimising pollution from point and non-point sources

Environmental values and water quality objectives

Discharge (load) limits + Water quality management plans

>2000 Water quality objectives & integrated catchment management

State water quality policy State catchment management policy

Water quantity Water quality Management plans

management plan • nutrients
+ limits through • sediments
Water quality targets, caps and Links to:
• salinity
objectives discharges
• re-use • tradeable
• demand discharge limits
Load levies ($) elimination licences
• tied public
• management •
financing
• mandatory BMPs
• incentives
High risks focus • subsidies
Other statutory
• 10 high risk land uses or
plans
point sources
• risk management

‘Smart area’ ICM

• no growth catchments
• growth catchments

45
6. RIPARIAN MANAGEMENT

Introduction reality is that the forces of change acting on rivers, in

the past and presently, seriously limit what is
Riparian areas are a significant ecological element of practically achievable in modified systems, and what
the Australian landscape. However, they are afforded level of ‘return to a past condition’ is politically,
little or no active protection or management under socially and ecologically possible.
existing legislation. In the Australian landscape, their
utility value is high: for grazing, agriculture, Discussion of relevant legislation here proceeds from
extraction, housing and recreation. Riparian an analysis of existing legislative approaches to
vegetation controls the export pathway of sediments riparian areas, an outline of legislative trends,
and nutrients to rivers. As Cullen (1999) noted at the identification of critical gaps and limitations of
recent International Conference on Diffuse Pollution, current legislation, and a scoping of criteria for
the key aspect of land management in the drought legislative best practice in the future.
context is keeping some vegetative cover on the land
Desired ecological outcomes for riparian management
around the river.
Riparian land is land that adjoins or directly
Little distinction has been made between management
influences a body of water. It includes:
of the land and management of the adjoining
watercourse. The linear nature of riparian corridors • the land immediately alongside small creeks and
has not had recognition in the thinking of adjoining rivers, including the riverbank;
land managers except where the water resource itself • gullies and dips which sometimes run with surface
has been threatened. water;
Given the significance of riparian areas and their • areas surrounding lakes; and
critical condition across the country, this has become
• wetlands on river floodplains which interact with
a serious oversight.
the river in times of flooding (LWRRDC 1996).
Riparian area protection and management is part of
The difficulty of drawing demarcation lines between
the larger policy framework for streams as a whole,
the terrestrial and aquatic aspects of riparian land is
their protection and rehabilitation. Several policy
one challenge for resource managers. Distinguishing
goals may be pursued for riparian areas as part of an
between the two becomes most difficult in areas
overall river system. These goals range across:
where rivers have extensive floodplains or large
• protection of high conservation value riparian seasonal variations in water flows. The riparian area
areas; of streams in drier parts of Australia is also difficult to
• slowing the processes of degradation, or gaining a determine due to poorly defined channels caused by
level of control over degradation; low gradients in the land and high variability of flows.

• stabilisation and maintenance of existing riparian These demarcation problems underline the significant
conditions under circumstances of ongoing role which this land plays in the interplay of
degradation pressures; and ecological processes between land and water in any
landscape. This significance derives from the habitat
• rehabilitation or improving upon existing
and biophysical conditions it supports by virtue of
conditions, restoring to some identified original
the connection it maintains between these two
condition.
environments. While there is a good deal of literature
Protection and management efforts will differ documenting the degraded state of these areas, work
depending on the policy goals sought. The legislation still remains to be done on stream behaviour,
then will vary in both content and its operational particularly in specific environments, as well as case
mechanisms depending on the preferred goal(s). studies of stream management practices and
techniques.
This policy intent will also vary spatially and
temporally and river management legislation needs to In most landscapes, riparian land is often the most
provide for these variations in intent. productive in biodiversity terms because it has
deeper soils, greater soil moisture and, as a result,
Working with these policy goals is not a
denser and more diverse vegetation for wildlife
straightforward matter. In essence, river systems and
habitat. Effective management of riparian lands
their riparian areas have been subject to major
involves protecting riparian values and rehabilitating
modifications. Where river managers may gain some
the riparian area (Table 10.).
comfort from the prospect of targeting management
efforts at a degree of protection or rehabilitation, the

46
Desirable ecological outcomes will then be expressed Ecologically, the formula will be determined
in terms of: depending on the specific river conditions and on the
• width of riparian vegetation cover, depending on policy goals for the river’s protection, rehabilitation
stream order (the higher the stream order, as taken or stabilisation, adopted for the stream as a whole or
from the stream’s source, the wider the riparian for reaches within it.
vegetation buffer needed for the stream); Existing legislative arrangements
• percentage of vegetation which is in good condition
Cripps (1998) found no clear recognition in legislation
(structure, composition, weed cover) and habitat
of riparian management. It is treated as a sub-
conditions for flora and fauna species;
component of land use and land management, though
• percentage of vegetation which is intact or legislation relating to water management is also
unfragmented throughout stream length relevant. For riparian areas, values to be protected
(connectivity of vegetation, composition and along with pressures to be managed through the
condition); legislative framework relate to the following:
• inundation by water from stream or overland flow, Management of direct pressures on riparian areas
resembling natural levels and frequencies, and
• Encroachment or degradation from land-based
comprising sediment, nutrient and other chemical
activities such as those resulting from pastoralism
contents similar to the composition in natural
and agriculture, settlement and infrastructure
flows; and
development.
• percentage bank stability or instability and
• Changes to flow dynamics from river works
percentage differences in rates of change to banks.
activities including bank stabilisation, alignment
These outcomes need to be tailored to specific parts training, levee banks and stream clearing.
of the waterway. Buffer widths, bank stability needs
• Flow velocity and volume impacts from stream
and corridor widths will vary with stream length.
channelling by straightening, enlargement and
Development of measurable aspects of riparian areas realignment for navigation, drainage, agriculture
are the subject of extensive investigations by research and urban development.
groups such as the CRC for Catchment Hydrology, • Flow regime impacts from flow regulation, water
Monash University; and the Centre for Instream storage and diversion including dams, weirs, flow
Research, Griffith University. No single formula for diversions for water supply, irrigation,
biophysical protection or rehabilitation is possible. hydroelectric power and flood control.
Targets, thresholds or ‘caps’ on riparian area • Changes to habitats and bed and bank conditions
conditions are not only the domain of scientific through aggregate extraction and mining.
investigation. Resource managers must examine
• Bank and channel impacts from recreation.
social, economic as well as ecological objectives to
determine the formula for riparian area protection or
management.

Table 10. Management of riparian lands.

Protecting riparian values Rehabilitating the riparian area

• Conservation, scientific, cultural and education values • healthy aquatic environments characterised by improved water
quality, increased fish stocks, decreased algal growth, and
lowered water tables
• Recreation, amenity and scenic values • healthy land-based and river ecosystems, including re-
instatement of corridors for wildlife
• Aquatic environment values • retention of nutrients
• Water production and food supply values • decreased erosion of streambeds and banks
• Water conveyancing and drainage, catchment ecology values
• stabilised river courses, with river flows maintained within the
channel
• identification of acceptable uses, activities
• opportunities for diversification of land-uses
(LWRRDC 1996)

47
Management of indirect pressures Table 11. Riparian management: summary of
• Modified water and sediment flow regimes through existing legislative mechanisms
catchment land use activities such as agriculture, Category Range of mechanisms
forestry, urbanisation.
Land, water plans
• Pollution from diffuse and point source discharges Policies: State, regional, local
brought by runoff from catchment activities.
Water allocation or entitlement plans
Protection, conservation and restoration Management plans: for catchment
• Natural water flow conditions and water quality management, vegetation management, coastal
conditions in relation to the riparian lands. management, protected area management
Conservation plans
• Vegetation cover, and the structural complexity of
Property plans
vegetation communities, and fauna species/
communities. Control districts
Declared area
• Rare and threatened species.
Local government codes
• Connectivity (along the stream and with the Plans of allowed/prohibited development (e.g.
floodplain) and the associated exchange of water, development control plans)
nutrients, sediments.
Local government planning schemes
• Stability of the stream channel and banks.
Permits, licences and procedures
• Wild or heritage rivers, or reaches within them. Codes of practice
Much legislation to date has been directed towards Regulations Interim conservation orders
protection and management of the water resource Leases, lease conditions on public land
itself or of the productive lands alongside the stream. Licences, licence conditions
Very little of it has been directed towards protection Development consent conditions
and maintenance of ecosystem values.
Permits, permit conditions
Ultimate control over riparian areas rests with the Impact assessment and approvals
States and Territories. Riparian protection and
Penalties, repairs, and rehabilitation
management is exercised through a number of
legislative mechanisms. Declared area (e.g. degraded areas targeted
for protection and restricted usage)
Table 11 summarises the mechanisms available for Notices (e.g. improvement notice, soil
riparian area management through legislation up to conservation notice)
1998. They are grouped into four categories of
Orders to remedy or restrain an offence (e.g.
mechanisms that may specify protection and
soil conservation order)
management requirements in terms of:
Plans (e.g. for environmental improvement,
• riparian area protection through planning such as rehabilitation, recovery of species)
land and/or water plans; Penalties (fines, rehabilitation or re-
• permits, licences and procedures for obtaining instatement)
approvals or demonstrating compliance with Agreements/covenants with landowners
conditions; (voluntary—may be accompanied by
• penalties and requirements for repair, rehabilitation incentives)
or dealing with illegal activities; and Administrative processes and structures
• structures and processes for administration of Committees (e.g. catchment management
plans or permits. committees)
Authorities Boards Councils (e.g. water
resources councils)
Trusts (e.g. catchment management trusts,
river improvement trusts)
Commissions

48
Management challenges for legislation objectives including continued public access to
watercourses, restrictions on landowner monopoly
‘Riparian area’ definition over their water, and development of water-related
Across the States and Territories, legislation presents public utilities (Terrill 1998).
conflicting concepts of the riparian zone. In NSW it The reality however is somewhat less than envisaged.
refers to areas within 20 m of the bed or banks (Native Where frontages are publicly owned, the width of the
Vegetation Conservation Act 1997, s. 7 NSW); but in reserve varies: from 20–60 metres. Terrill claims that
Queensland, it refers to all land within the high banks much of this publicly owned land has been licensed to
of a stream or lake (Water Resources Act 1989). This the adjacent landowner, to be managed as part of the
confusion about the term ‘riparian’ makes adjoining farmland. Licence conditions, for example
comparisons between legislative provisions difficult. those covering controls over clearing, vary across the
Each State can be said to have legislation that allows State and these licences have a maximum life of 35
or enables riparian protection and management years.
through both planning and enforcement provisions. The result is that the public frontage to rivers and its
This potential to address riparian needs is mainly associated management regime in Victoria, is either
contained within the general legislative provisions of non-existent at the least; and non-continuous at the
resource management and land use planning, for both most (Terrill 1998).
public and private lands. However, no specific
reference is made to riparian protection. … Land tenure has the potential to restrict
(agency) management activities where existing
In addition, there is legislation that relies on the land management is incompatible … particularly
nomination of specific locations or types of riparian where pastoral leases exist over ecosystems or
areas (particularly soil erosion problem areas, key where Native Title claims have been lodged.
locations for water resource or catchment protection, Management activities may be restricted
or ‘critical habitat’ for threatened species). This according to the wishes of the lessee or claimant.
nominated area legislation may restrict specific uses
(Allan & Lovett 1997)
or activities such as destruction of vegetation, or it
may require impact assessment of specific uses.
Under this legislative framework, most of the Table 12. State protection of streambeds.
planning, enforcement provisions and incentives for
State Action
riparian management have to be triggered by a
concern or an issue rather than on a strategic basis. Qld** All land below tidal high water mark is Crown Land
Crown maintains ownership of the bed up to the
Protection and management of riparian areas is not
top of the low bank
systematically undertaken through existing legislative
frameworks across the States and Territories, though NSW All land below tidal high water mark is Crown Land
legislation generally does not prohibit such a Above tidal high water mark, stream bed and
proactive approach. banks are usually freehold land (ownership is
centre thread of stream where stream forms the
Tenure boundary)
Any actions aimed at protection or management of WA Crown ownership of tidal watercourses Bed and
riparian areas must recognise the predominantly banks ownership travels with ownership of the land
freehold nature of the tenure of streams and their surrounding the stream except in proclaimed areas
riparian areas which exists throughout Australia. (Rights in Water & Irrigation Act) where the bed of
Queensland and Victoria acted in the last century to a stream is owned by Crown
protect the stream bed and banks by declaring these Vic** Bed and banks usually property of Crown (some
Crown land (Table 12). private: Western district) On larger streams, 20–
Crown land is subject to its own legislation and 60m from top of each bank is Crown Land frontage
associated legislation where land is leased; privately = 25,000 km of frontage ‘reserves’ and 38,000
owned land is covered by land use legislation (Cripps kilometres of river frontage privately owned.
1998). SA Ownership of bed and banks travels with
In Victoria, the problems of ownership are well ownership of surrounding land; in urban areas river
illustrated despite the scope for achieving better frontages have ‘reserve status’ and are managed
results. Last century, Victoria acted to preserve some by local government
areas of river frontage for public purposes by Tas Most non-tidal frontages are in private ownership;
declaring the bed and a specified distance from each tidal frontages are owned by Crown
bank as permanently reserved in the form of crown
land. The rationale for this involved a mix of (adapted from Amprimo, QDNR 1998, pers. comm.)

49
Private property in itself may be a positive rather than Victoria however has enacted legislation for
an inhibiting feature. Motivation, a much needed management and protection of heritage rivers and
ingredient in improved techniques and continuous natural catchment areas; NSW and Western Australia
improvement of rivers, can be very high for private have incorporated protection into policies (Table 13).
property owners. Public lands are not necessarily
better cared for. Certain policy goals sought for
Table 13. State legislation for management and
riparian areas (e.g. rehabilitation) may be more
protection of ‘wild’ rivers.
readily realised under private ownership depending
on incentives or support arrangements. Qld, Tas, SA,
Various Acts for mineral, forestry, water resource, national
Protection however may be more difficult where a
parks, pollution control
property owner faces high opportunity costs from a
decision taken to protect and conserve riparian NSW*
values along the stream banks or in riparian buffers. Draft SEPP for Wild and Scenic Rivers State Rivers Policy
As Fisher (1987) points out, powers of intervention (water quality objectives, water flow objectives, management
have considerable potential to impact on the common plans)
law status of landowners and occupiers. Executive WA*
powers to intervene in the resource use activities of Endorsement of need for legislation (potential amendments to
private owners/occupiers have grown substantially. Water & Rivers Commission Act)
With the maturation of natural resources legislation, Vic**
one extension has been the provision of more detail
Heritage Rivers Act (1992) (prohibits new dams or
about how all these approaches allow for the exercise
impoundments, barriers or new water diversions; declares
of legislative powers. Policies cannot simply be
Natural Catchment Areas and prohibits in these the clearing of
articulated overnight; not just because of traditional
native vegetation, timber harvesting, plantation, mining,
common law restrictions, but also because the
motorised craft, grazing, upgrading roads) 18 Heritage Rivers,
statutes increasingly incorporate statements of
26 Natural Catchment Areas (1,000–10,000 ha) Management
purpose and limitations about the use of the powers
plans in preparation Some recommendations for management
in the implementation of policies.
of all public lands in rivers.
Ownership then is a mixed blessing for riparian areas.
Private ownership brings challenges of conflicting
goals for ecology and productive usage. Public
From the specific summary above, it is apparent that
ownership does not ensure achievement of the
not many States and Territories have sought to
balance between ecological and economic objectives.
develop legislation which proclaims the values to be
Tenure-related legislation alone cannot deliver
protected or the activities prohibited in their high
protection without the accompanying set of policy
value river systems. Without this recognition factor,
directions for that protection and management. The
the risk is that high value rivers are subject to
statutory framework then for riparian management
decisions about the river or its catchment made by
must define these ecological objectives and make full
numerous agencies.
use of the powers in the legislative provisions which
direct usage of land in private or public ownership. In most States and Territories, different agencies are
responsible for various resource decisions for
Heritage or wild rivers example, forestry, minerals, water, impact assessment
Riparian areas of high conservation value may occur decisions are taken by separate agencies.
in several settings ranging from degraded to high Notwithstanding the argument that these decisions
conservation value rivers. In terms of high may be taken as whole-of-government decisions, the
conservation value or ‘wild’ rivers, the lack of action lack of recognition of high conservation value rivers
specifically aimed at addressing protection needs is in themselves makes it difficult to assume the
notable, despite numerous investigations by most necessary protection regime is assured.
States and Territories in the last decade (Kunert & Protection and management of high conservation
McGregor 1996). value rivers, and their accompanying riparian areas,
Most States and Territories have a variety of Acts with has not received recognition as a discrete river
the potential to protect aspects of wild rivers management policy goal in most jurisdictions in
(e.g. forestry, parks and wildlife, environmental Australia. No information is available as to the
protection, environmental assessment, planning, soil
conservation, land, coastal and estuarine protection,
water supply and Crown land management. Only

50
effectiveness of existing legislation for their To date, the legislative basis for managing this aspect
management. In most States and Territories, heavy of riparian areas has been addressed only insofar as
reliance seems to be placed on protection through general legislative provisions have affected riparian
legislation for national parks and native vegetation. and floodplain water movements. Since COAG 1994,
This is an indirect and inadequate approach. water flows to riparian areas will be treated as part of
the process of defining environmental flows. Social
Legislation is needed which ensures:
and economic as well as ecological assessments are
... conservation of wild river values – by progressing as part of this process. Ensuring flows to
protecting them from hydrological, geo- sustain riparian areas and their communities is a
morphological and biological disturbance and by litmus test for the formula set as the basis for
allowing the associated natural systems and environmental flows.
ecological processes to continue indefinitely.
Land development
(Kunert & McGregor 1996, p. 31)
Certain developments of private and leasehold land
Table 14 shows international examples of management
require agency approval, either by local governments
of wild and scenic rivers.
or lands agencies in terms of leasehold land.
Water flows Approvals may be treated as individual project
Water flows to and from riparian and riverine land is a applications assessed against criteria (e.g. primary
fundamental feature of this ecozone between uses or secondary uses of leasehold land). In these
terrestrial and aquatic ecosystems. Under natural instances, there may or may not be a requirement for
conditions, these flows provide hydrological, chemical environmental protection.
and biological sustenance to the land. Overland and In the case of planning schemes administered by local
underground flows also provide vital chemical governments, protection and/or riparian area
supplies to the aquatic ecosystems. restoration may be built into the zoning or
Under regulated or otherwise modified river or land performance requirements for an area. Without
drainage conditions, the riparian area may be preparation of the environmental strategies
deprived of seasonal variations in volumes and (e.g. catchment plans or waterways plans to inform
sediments or it may experience unnatural fluctuations them) planning schemes will not generally make
in seasonal or daily regime. In many parts of Australia, provisions specifically tailored to the full range of
riparian areas also experience crippling acid-sulfate or riparian area needs. These needs must also be built
salinity problems as a result of flows from land which into the triggers for and extent of planning
has been drained or cleared. The problems are assessment needed in relation to various land use
transferred to the stream. activities.

Table 14. International examples: managing wild and scenic rivers.

Country Acts/policies Features/limitations

United States Federal Wild and Scenic Rivers Act 1968; 3 categories: wild, scenic, recreation
similar legislation in States Narrow corridor emphasis, upstream-downstream uses dependent
on no impact on protected reaches, management vague, permitted
use levels not identified, only affects water resource use projects,
uneven geographic representation of rivers

Canada National Policy: Canadian Heritage Rivers 1 category: national level significance on natural heritage, human
heritage, recreation (Canadian Heritage River)
Broad scope: catchment processes as well
Cooperative designation process between levels of government;
River management overseen by Canadian Heritage River Board,
management plan
Reliance on cooperation, slow process, permitted uses vague

New Zealand Resource Management Act 1991 1 category: Conservation order

Water rights remain intact until reapplication after 10 years;
recreation focus, ‘instream’ values only
No central organisation, low numbers to date

(adapted from Kunert & McGregor 1996)

51
However, these schemes are subject to exemptions in planning approval of activities including agriculture,
legislation, which often include most land activities proposed for high value areas.
impacting on rivers and their related riparian areas.
For example, it is a matter for concern that local Degraded areas
governments have shown reluctance in requiring Many of the degrading actions affecting riparian land
development applications for agricultural or pastoral management are not easy to regulate: they are small,
land development. Very few planning sentences deal site-specific and cumulatively degrading in the main.
with agricultural activities as development. Legislation to date has mostly dealt with the
Hinchinbrook Shire Council degradation once it has occurred, in the interests of
protecting the resource base of the stream or the
Recently, urged by the re-discovery of the endangered paddock. Legislation based on declared sites of
Mahogany Glider in the Shire, Hinchinbrook Shire concern —declared areas, critical areas, critical
Council has gazetted in its planning scheme that cane habitats—has had limited impact on overall riparian
expansion requires a development consent. condition in Australia.
Noosa Shire Council Most legislative mechanisms have been reliant on
The Council is in the process of gazetting a planning declaration of specific types of problems and / or
scheme amendment requiring impact assessment/ specific geographic areas. They have proven
insufficient in the face of riparian problems. They

Table 15. Regulatory controls for riparian areas.

State Approval (A), permit (P), permits or licences Comment

with public notification (L)

Qld (P) Minor instream works, native vegetation within banks, Removal of native vegetation allowed outside
native vegetation on leasehold (40 m buffer) banks on freehold
(L) water extraction, dams No statutory authority for catchment
management plans (except when incorporated into LG
schemes)

NSW (A) native vegetation removal within 20 m high bank, Various Acts, DLWC has approvals responsibilities
removal of exotic vegetation, abstraction of water or No statutory authority for catchment management plans
construction of instream structures, bed and banks except when incorporated into LG schemes)
interference, channel realignment

WA (A) instream works, clearing on leasehold land in Community based management authorities for the six
declared areas, modifying bed and banks by extraction. declared management areas (Swan River, Peel Inlet,
Leschenault Inlet, Avon River, Wilson Inlet, Albany
waterways); statutory catchment management plans for
these six. Weaker control in undeclared areas Numerous
management agencies (6) Few restrictions on
impoundments outside proclaimed water supply areas or
declared catchments

Vic Works around the 18 Heritage rivers must be in Routine stream management by catchment
accordance with management plans management authorities (CMA): they have capacity to
Removal of exotic vegetation, stream works. make by-laws (e.g. for activities on waterways, statutory
No clearing within 30 m of waterway; no destruction of catchment management plans)
vegetation >.4 ha Onus of proof for ecological protection under Flora and
(A) for works or construction Fauna Guarantee Act 1988 (Vic)

SA (P) native riparian vegetation both aquatic and terrestrial; Four main authorities involved in stream management;
exotic vegetation strong role for local government
(A) for abstraction in prescribed watercourses; for Series of catchment management plans defining
sediment from works stream works (prescribed watercourses)
Duty of care on all landholders to prevent damage and
maintain their watercourses in good condition;
Codes or practice apply

Tas (A) clearing of willows, fencing, revegetation

52
have been hampered by the fact that use of the • Focus for concern varies. The area of concern is
‘declared areas’ for mechanism aimed at rehabilitation either between the banks or with the addition of
is an ad hoc, non-systematic approach to riparian buffer areas outside banks.
management, as well as being reactive, and • Priorities exist in some States and Territories with
administratively impractical. It is an approach with controls more stringent in declared, proclaimed,
limited impact on a degradation problem with prescribed or gazetted catchments. Elsewhere it is
contributing factors which are multiple and understood that fewer (or few) controls are in
entrenched. place. Priorities have been defined either in terms
Legislation based on control of specific issues of water supply protection or in some cases in
(e.g. tree clearing within 20 m of banks) has terms of the degraded condition of the rivers
performed marginally better, particularly where themselves.
community vigilance has had a strong role to play in Administrative and statutory processes also lack a
alerting enforcement agencies. consistent approach. Not all developments of private
The following observations can be made from and leasehold land require development approvals
Table 16: and not all approvals processes assess impacts on
riparian areas as part of their approvals or conditions-
• Much of the legislation for riparian areas relates to
setting processes.
prohibiting and permitting activities, individually
or by areas. There is no strategic approach or Trends in legislation
definition of objectives.
The main legislative challenges for riparian area
• The jurisdictions display varying controls over management are associated with the following needs:
vegetation protection and clearing:
• greater integration of plans, policies,
• Victoria has a 30 m limit, NSW has a 20 m limit, methodologies, hierarchies of plans (state, regional
Queensland has a 40 m limit for leasehold land; and local scales) to ensure appropriate
• some States/Territories restrict clearing of management planning of catchments and their
exotic vegetation or planting of native riparian areas;
vegetation depending primarily on flood • moving economic measures into the protection and
effects; and repair activities of landholders by removing
• few require positive action such as fencing or legislative obstacles to catchment bonds, levies per
revegetation. landowner for catchment management, levies per
polluter or beneficiary, public financing of
incentives, subsidies, industry adjustment, leases

Table 16. Legislative frameworks for riparian areas.

<1990s 1990s 2000>

Legislative basis Resource Acts: soils, water supply Additional Acts: native vegetation Active definition of ecological
Hazards Acts: floodplain, drainage clearing control threatened species needs of riparian area protection
protection for rivers, coasts, and management, driven by
wetlands legislation explicitly for: native
vegetation, environmental flows,
catchment ecology requirements

Legal mechanisms
and their focus Hierarchy within the legislative Primarily for reducing damage, or Additional emphasis on
repairing degraded areas through: management plans statutory framework
declared areas, works required, plans, performance criteria Mandate for ecosystem values
penalties approval and impact assessment defined nationally, state, regionally
procedures, compliance conditions, Priority-based management plans
penalties, rehabilitation (river, region or catchment specific
targets)
Conformance by resource plans,
statutory plans, approvals
conditions to demonstrate
compliance
Enforcement provisions for
protection, repair, rehabilitation

53
 which allow payment of landholders for protection • capacity-building for environmental management
of riparian values and best management practices by landowners, industries and regions across
and voluntary codes of practice; Australia.
• combining controls and incentives to promote Below is the summary of the main trends shaping
protection and repair on private and leasehold legislation for protecting and managing riparian areas
lands; (Table 17.). It highlights the two aspects of riparian
• regional delivery of planning, permitting, and area management: protection of high value, intact
support programs utilising integrated structures areas and stabilisation and rehabilitation of degraded/
for catchment management and local government; degrading areas.
and Where systematic planning and management of
• ensuring compliance with plans through routine catchments is specifically required by legislation, as in
reviews, community participation in planning and South Australia and Victoria, a recent development
performance evaluation, and independent has been the legislative requirement for plans, and for
evaluation. compliance with enforcement provisions.

Legislative frameworks for riparian area protection, Legislation aimed primarily at protection of riparian
management and restoration have migrated in a areas is mainly found in native vegetation legislation,
number of ways (Table 16). with NSW, Victoria and South Australia having such
legislation.
This migration of legislation beyond 2000 is
accompanied by parallel developments in: Under the NSW Native Vegetation Conservation Act
1997, the Minister can declare certain land to be State
• community participation and formal engagement
protected land. Where land is declared State
mechanisms;
protected land, it cannot be cleared except in
• ecological data and information system access; accordance with development consent that is already
• funding and fund-raising programs to match the in force (s. 22) (Cripps 1998, p. 10). Clearing of land
level of investment required; covered by the Regional Vegetation Management Plan
(RVMP) is by permit, and the RVMP has to be
• market-based mechanisms: payment for resources
incorporated into local government planning
used, ecological services accessed, degradation
schemes. Financial assistance subject to voluntary
produced;
agreements for conservation is also made available
• building better partnerships between catchment through the Act. However, this Act has been
managers, resource managers, landholders and the considered a good example of how not to devise
general community; and catchment management legislation, partly because it
is subject to so many exemptions and exclusions.

Table 17. Trends shaping legislation for protecting and managing riparian areas.
General riparian
Soil and water focus, stream stability focus focus on full spectrum of ecological functions and biophysical needs of riparian
areas
Management aimed at repair management aimed at protection, stabilisation, rehabilitation
Passive, indirect management active (direct and indirect) management

Protection & stabilisation

Limited protection of high value areas active management through catchment management plan, statutory planning
scheme
Property rights property plans attached to water licences, landowner’s duty of care
Standard buffer (0 m, 10 m 30 m) based on riparian area size (formula based on stream order)
‘acceptability’ or land tenure

Repair/rehabilitation
Controls through declaration of areas of whole of catchment plans, targets, controls
concern
Lack of funds fund-raising capacity
Landholder focus regional /catchment / local operations
Specific area or issue legislation package of measures: legislation and market mechanisms plus public financing

54
In Victoria, under the Catchment and Land Protection • roles and responsibilities, delegations; and
Act 1994, the objectives are to establish a framework • fund-raising powers, financial assistance, voluntary
for the integrated and coordinated management of components.
catchments. The aim is to maintain and enhance long-
term land productivity while also conserving the
environment, and to ensure that the quality of the
Critical success factors for riparian area
State’s land and water resources and their associated
plant and animal life are maintained and enhanced.
legislation
This Act has several mechanisms. It places a general The essential components for incorporation of active
duty on landowners to avoid land degradation. It also management of riparian land into statutory powers
declares areas ‘catchment and land protection can be defined as including:
regions’ and the boards for their management. Each • A State/Territory framework for protection and
region is to have a regional catchment strategy rehabilitation of riparian land and its water flows;
prepared the scope of which includes protection of State- and Territory-based reporting on stressed
catchments through land use planning and riparian land/rivers, and on progress.
management. Planning schemes may be amended • Plans of management for riparian land of high
subject to these strategies. significance (e.g. through integrated catchment
The strategy may declare special areas within a management plans addressing riparian lands, water
catchment for which more detailed management plans resource management plans setting environmental
are to be prepared (Special Areas Plans). These Plans flows needed to supply riparian land and plans for
may amend planning schemes and they are binding on protection of wild and scenic rivers or for
landowners. stabilisation of targeted riparian areas).

Management plans are an important part of the new • Requirements for plans of management for highly
era of legislation (Figure 17). Legislative developments stressed riparian areas primarily as part of overall
in relation to management planning set down legal stream condition planning or water quality
requirements such as: planning.

• specification of plans to be prepared; • Requirements for compliance with these plans of

management (through the setting of targets,
• specification of activities to be assessed in depth
timeframes, specification of organisational
because they involve changes to riparian areas;
structures, requirements for progress reporting,
• permit requirements and conditions; and arrangements for funding of implementation
• compliance requirements (for the plans prepared, projects).
as well as for enforcement of permits);

Figure 16. Riparian area: development of legislation.

<1990s resource use

Repair and works

1990s resource use + vegetation protection

Repair and works + Clearing controls + Catchment plans

2000> integrated catchment management

State policy (riparian area)

• protection
• rehabilitation
• resource us and access • tied public finances

Statutory plans Property plans Links to

• regional/catchment
• local government
• market mechanisms for environment
• licence conditions
• codes of practice
Fund raising powers • BMPs

55
• Statement of a landowner’s duty of care to avoid • Greater means of incorporating integrated
land degradation. catchment management plan requirements into
• Arrangements for fundraising for example through other plans particularly statutory planning
levies or subsidies from other catchment resource schemes, water allocation plans.
users. The challenge then is about ensuring riparian land is
• Development controls and operational controls legislatively recognised as an area for ‘active
(permits, licences, conditions) over activities and management’ by agencies and by individual
practices with potential to degrade riparian land or landowners and agency managers. Active
functions it relies upon; stewardship and best management needs to be aimed at producing results
practice requirements of primary producers. on multiple objectives and, more specifically, on those
objectives addressing protection of non-resource
• Enforcement provisions (interim orders, fines, based values, namely ecosystem or cultural values.
penalties, replacement conditions; and third party
appeal and injunction rights) where intervention is Active management also means shifting the focus for
necessary to prevent potentially degrading actions. regulation. Though there is a continued need for
powers to repair and rehabilitate degrading or
• Administrative arrangements which provide a
degraded riparian areas, there is much to be gained
framework for addressing the interconnectedness
from directing regulation at proactive protection of
of land and water ecosystems without the arbitrary
intact areas or areas which will respond readily to
splits between traditional and present natural
forward planning and restrictions in degrading
resource management agencies; to provide
activities.
workable structures for allocation of
responsibilities, with appropriate delegations and
outcomes-based performance measures.

Table 18. Critical legislative package for riparian area protection and rehabilitation.
Riparian areas framework Components

Heads of power State Policy (SEPP, EPP, SPP) on either healthy rivers/catchments in general, including
riparian areas, or riparian areas specifically.
Policy to clarify commitment to protection and/or rehabilitation of streams working methodology
for the approach to riparian areas (e.g. no net loss, corridor and buffer widths by stream order)
Rank ordering list of riparian areas or streams for active management
Main instruments for policy implementation (planning schemes, leasehold land conditions,
impact assessment, licences, industry codes of practice etc)
Monitoring and reporting arrangements

Protection: on all tenures A State framework for:

• full protection of high conservation values rivers (wild and scenic rivers, heritage rivers)
• statutory catchment or riverine management plans including the approach for defining
outcomes and criteria for riparian protection
• best management practices (mandatory) for activities of concern
• landholders’ duty of care to avoid land degradation, observance of industry codes, water
licences based on approved property plans
• full range of enforcement provisions
• stakeholder participation, third party provisions, public register of licences and approval
conditions

Rehabilitation State framework for:

• fundraising for example catchment levies
• rebates for rehabilitation (rates, water entitlements)
Integration, coordination, review State framework for:
• stakeholder involvement/representation in plan preparation
• integration of statutory plans at regional level
• separation of auditing/reporting functions from river management functions
• regular performance reporting, community review, and independent review

56
7. INSTITUTIONAL ARRANGEMENTS FOR CATCHMENT
MANAGEMENT

Introduction • how to move from individual plans and policies to

taking coordinated and integrated river
This theme considers criteria for a best practice legal management and restoration actions;
framework to achieve the necessary institutional
arrangements for effective delivery of catchment • how to overcome the vertically structured nature
protection and management. of government instrumentalities (sometimes
described as ‘silos’ or ‘rods of iron’) to ensure that
The catchment management focus is deliberate. The mechanisms for horizontal communication and
protection and restoration of rivers is essentially a coordination can be established and maintained,
catchment product. Catchments are the biophysical within and across agencies and governments;
units in which natural resource use and ecological
protection take place. They represent the level at • how to achieve the integration of environmental,
which the new paradigm for sustainable development economic, social and cultural considerations in all
decision making;
is to be operationalised for resources, a paradigm
which recognises the interdependencies of natural • how to secure ongoing community involvement in
systems, political systems, social systems and the process and ownership of the outcomes; and
technology. • how to achieve commitment, compliance and
Institutional arrangements for performance of accountability.
catchment planning and management vary in Young (1997), draws on foresighting work by the
fundamental ways across Australian jurisdictions. Centre for International Economics (1997), to outline
Models for institutional arrangements are explored best practice catchment management in Australia for
through an examination of existing legislative the year 2020. A number of requirements are
arrangements and inherent challenges, a summary of addressed in the previous three themes. For those
legislative trends for catchment management and an issues falling within the administrative category,
outline of criteria for best practice legislation for the Young covered:
future. • institutional arrangements which see the ‘hard’
standard-setting decisions made and national or
State levels, so as to leave the river level to focus
Desired outcomes: institutional on community motivation;
arrangements for catchment management • the need for landholders to accept their duty-of-
Mitchell (1989) defines institutional arrangements as: care to manage resources sustainably;
• legislation and regulations; • regulatory arrangements which increase the
number of people in a catchment who are
• policies and guidelines;
intrinsically motivated to manage water resources
• administrative structures; sustainably;
• economic and financial arrangements; • institutional reforms which empower catchment
• political structures and processes; committees;

• historical and traditional customs and values; and • problem-solving which is integrated, rather than
controlled by different levels and sections of
• key participants or actors. governments each pursuing their own agenda;
The legal framework is one specified component of • catchment plans to become substantive legal
these institutional arrangements, and may impact on documents; and
others, especially administrative structures.
• institutional arrangements to encourage
Exploration of criteria for the administrative integration, and even amalgamation, of local
component of the legislative framework involves government and catchment management
examining: processes.
• how to ensure protection and restoration Doolan and Roberts (1997) defined the primary goal of
objectives take precedence over local and sectoral Victorian river management as being ‘to ensure the
objectives; sustainable development of natural resource-based
industries, the protection of land and water resources

57
and the conservation of natural and cultural heritage’. Existing legislation for institutional
They state that the primary outcomes of catchment arrangements
management are:
• community involvement in and commitment to The national level
natural resource management; Key reforms under COAG (1994) agenda have set the
• sustainable development of natural resource-based scene for a number of initiatives within State/Territory
industries; jurisdictions relating to institutional arrangements for
catchment management. These potential changes
• maintenance and improvement in water quality and include:
river condition;
• removal of organisational impediments to
• prevention and reversal of land degradation; catchment management through promotion of
• conservation and protection of the diversity and integrated resource management as opposed to
extent of natural ecosystems; resource development;
• minimisation of damage to public and private • clearer identification of the full range of values of
assets from flooding and erosion; and natural resources and of the need to rationalise
• conservation and protection of the cultural competing demands; and
heritage. • incorporation of market signals in pricing and
allocation regimes.
The Victorian approach is based on the view that
catchments must empower local initiatives and ensure Through its five program areas, the Natural Heritage
collection and direction of government resources at Trust has generated greater attention to catchment
the regional level. Management of catchments is planning in an attempt to direct spending to local
envisaged as a business; an enterprise or management programs. No evaluation of its funding impacts is
system through which government and community available as yet, although it is widely recognised that
investment is directed. funding availability did not match the necessary levels
of access to information nor the availability of
Figure 18. Possible performance measures: integrated resource management plans.
institutional arrangements for
catchment management The Murray–Darling Basin Commission, ARMCANZ
and ANZECC are three Ministerial Councils bringing an
Processes interstate and national focus to water issues. The
• program evaluation agendas of these Councils have undergone
progressive development from water management to
• teams involved in plans and services
integrated catchment management.
• levels of achievement
The lack of a national legislative framework for
Ownership integrated management of natural resources,
• participation levels, response rates catchments and their rivers is characteristic of our
Commonwealth system.
• representation of agencies, sectors, areas
• awareness levels, uptake of new practices Cross-border rivers

Funding In addition to the Murray–Darling Basin and its

management through a Commonwealth–State
• % locally derived
Ministerial Council, other examples of cross-border
• % from service agencies catchment management needs include:
• $ differences between works, incentives and budgets • Lake Eyre Basin (NT and SA);
Catchment management • Coopers Creek (QLD and SA);
• area of State with catchment management arrangements • Ord River (NT and WA); and
• % of committees with completed plans • groundwater (cross-border areas are not addressed
• % of plans reviewed every five years by the Great Artesian Basin Consultative Council).
Under present arrangements, any coordination of
management is the responsibility of the respective
States and Territories, who may or may not decide to
initiate such coordination.

58
State arrangements Table 20. Summary of catchment management
structures by State.
Specific catchment management legislation exists in
Victoria, NSW and South Australia (Table 19). Other State Structures
States and Territories have policy commitments to
Vic Catchment Management Authority (CMA) established
integrated catchment management and have made
for each of the 9 non-metropolitan catchment and
organisational changes to implement catchment
land protection regions.
management. Several have proposed the introduction
of specific catchment management legislation in Key responsibilities include:
recent years. • development, ongoing review and coordination
Regional Catchment Strategies implementation
• provision of advice to government on
Table 19. State catchment management
Commonwealth and State resourcing priorities at
legislation.
a regional level
State Catchment-specific legislation • provision of all water and floodplain-related
Vic Catchment and Land Protection Act 1994 service delivery
• negotiation with Department of Natural Resources
NSW Catchment Management Act 1989 and Energy of an annual works program for
SA Water Resources Act 1997 (subsumed regional service delivery
the Catchment Management Act 1995) CMAs integrate the roles of community based
advisory groups (all stakeholders) and community
based service delivery groups (agencies).
In these three States, legislation has devolved powers
NSW State Catchment Management Coordinating
for planning and management directly to the
Committee: State and local government, multiple
catchment/regional level.
agencies, peak bodies.
Structures for catchment management NSW has 35 Catchment Management Committees
Cullen (1997) argues that it is the lack of integration— (CMC).
between governments, between agencies, between • CMCs promote, coordinate, develop strategy,
disciplines and between knowledge providers and manage conflict and perform other functions
knowledge users—which forms the basis of water/ relating to total catchment management. NSW has
catchment management problems. Those State four Catchment Management Trusts.
governments with institutional arrangements for • They have a broader set of functions relating to
catchment management have recognised this and works, contracts, revenue generation, and
established structures and processes to facilitate and assistance to mitigate the effects of emergencies
require integration (Table 20). such as flood or fire.

Structurally, the challenge is to ensure representation Qld/WA/Tas

of all key interests, with clear definition of roles and Policy for integrated catchment management policy
responsibilities matched with the capabilities and at State level.
resources available. The practical realities of Catchment committees process is characterised by
achieving such an outcome have been voluntary participation for both community and
comprehensively addressed in Mitchell (1987). One of government. A network of landcare and government
the key points separates: extension officers provide process support to
catchment committees.
• the conceptual level, where it is appropriate and
desirable to think comprehensively and to scan the SA High level forum (Environment & Natural Resources
broadest possible range of variables which may be Council) with emphasis on integrated resource
significant for coordinated management of land and management. Catchment management is based
water resources; and around water resources and land/soils. There is no
• the operational level, where the quest for direct statutory power and only weak links to regional
comprehensiveness can be counterproductive by programs
virtue of implementation processes that are time • Separation of water pollution control staff from
consuming, lacking in focus and of little real benefit water resource quality management
to practitioners.
• Separation of water supply authority and water
Mitchell also emphasises the need to think of resource management agency
management arrangements in terms of more than
organisational characteristics. In developing • No formal process for integration of management
appropriate management, it is necessary to consider a Catchment management through Catchment
Water Management Boards

59
complex mix of ‘contextual’ issues dealing with Table 21. Funding arrangements by State.
political, legal, administrative, financial and historical
dimensions that provide opportunities for and State Funding arrangements
constraints to change as mentioned. Many of these
Vic Combination of agency and catchment funds.
aspects are outside the scope of this report. Locally derived funding for the work of the
There is no one formula for getting this mix right. authorities, drawn through a levy from catchment
Human factors play a strong role in the effectiveness residents (see below).
of management structures. There are however various NSW Funding sources include NSW Government funded
combination of structural elements which are seen to programs, the NHT, and community investment
produce the results sought from catchment
Qld/WA/ Government funds and operating grants A
management. These are discussed in the models
Tas number of catchment-related projects have
below.
attracted Commonwealth funding (NHT)
Funding SA Agency and locally derived funding for the work of
The ability for catchment managers to generate the the catchment management boards, drawn from
necessary funding for operations and services is vital. catchment residents, through a levy collected by
One aspect of funding is independence; the other is the Councils of the catchment. Reliance on local
ensuring the funding is adequate for the priorities funding means little catchment activity where
population is small.
decided at the catchment level using criteria from
local, regional and State policies (Table 21).
In Victoria, Commonwealth and Victorian
properties and a property value-based charge for
governments invest $140 m annually (since 1998) to
higher value properties.
improve the health of rivers and catchments. Also, the
State Government provides $8 m to CMAs. Local Ongoing access to a level of public and agency
contributions have been made in eastern Victoria and financing has to be assured if high risk or high
in Melbourne for many years. CMAs now raise stressed catchments have not the populations to
consistent rates through tariffs to fund priority flood, generate the revenue base required.
river management and drainage projects. The two-
Some would argue that since the advent of large
part tariff has a uniform regional charge for most
funding programs such as the National Landcare

Table 22. Status of catchment plans/strategies by State.

State Status of catchment plans/strategies

Vic Regional Catchment Strategies (RCSs) are given statutory force under the Catchment and Land Protection Act
1994:
• Act specifies the contents of the strategy
• Act specifies the status of the strategy (e.g. CMAs can recommend amendments to a planning scheme to give
effect to the strategy); the strategy may also be incorporated in a SEPP
Role: To provide an over-arching strategy for the development, management and conservation of land and water
resources in each region.

NSW No statutory plan status, and thus no regulation or enforcement. Reliance on a high profile for Total Catchment
Management plans in terms of agency programs and services

Qld/WA/Tas No formal status, advisory to planning schemes, statutory coastal plans. Statutory basis for aspects of river
management through regulations attached to Environment Protection Policies or through State Planning Policies.

SA In those catchments with a Catchment Water Management Board, the Boards are required to develop a
Catchment Water Management Plan (CWMP) under the Water Resources Act 1997

The Act requires that in preparing the plan, the Board must undertake an exhaustive process of consultation with
the residents of the catchment and with responsible agencies.

The plan must, as far as is practicable, be consistent with plans under the Coastal Protection Act (1972), the
Development Act (1993), the Environment Protection Act (1993), the National Parks and Wildlife Act (1972), and
the Soil Conservation and Land Care Act (1989), and with guidelines relating to the management of native
vegetation adopted by the Native Vegetation Council under the Native Vegetation Act (1991).

Local Government planning schemes are required to be consistent with the CWMP.

60
Program and the NHT, regions are experiencing an another agency is trying to augment water supply
over-emphasis on work relating to these funds (e.g. via increased runoff with the effects of increasing
applications, evaluations). peak flows. Embarrassment is spared by two
facts. First, nobody is scrutinising objectives on
Catchment plan status an inter-agency/watershed-wide basis. Second,
Should catchment management plans have legal neither practice has produced results large
status? Plans developed under the recent legislation enough to measure outside of experimental
in Victoria and South Australia have legal status. They watersheds.
provide the policy directions and form the basis of We have constructed artifices that keep us from
works programs and budgets. They are the drivers for efficiently managing water and watersheds. In
the various Memoranda of Understanding (MOU) California, we draw a legal line between surface
between government agencies, and for partnership water and ground water, a distinction that nature,
agreements between sectors (Table 22). in the main, does not recognise. California long
From the analysis of existing legislative arrangements ago had the foresight to place regulatory control
it is evident that Victoria, NSW and South Australia of water quantity (except for ground water) and
have moved decisively towards a catchment water quality under one board. Yet we still do a
management model, with key institutional and lot of things in watershed management that
operating arrangements stipulated in legislation. indicate we don’t fully appreciate how
Other States and Territories, most with critical interrelated water quality and water quantity are
problems of protection and degradation, have in nature. Even worse, we’ve almost totally
informal arrangements for catchment management, ignored the fact that altering flow regimes triggers
generally delivered through informal working changes (in) stream and riparian habitats.
arrangements between water, land and environment Finally, getting government agencies to integrate
protection agencies (Table 23). their watershed management activities is a very
Young (1997) argues that catchment management difficult problem. There are just too many
plans in the future must constitute target-based, agencies. I advocate combining and/or
legally binding documents for water rights and other eliminating agencies as a means of integrating
resource access arrangements. watershed management. There is a crying need
to integrate the activities of government
agencies, both within agencies and between
Challenges for legislation agencies.

Brandow (1992) provided some interesting insights Indeed, our most difficult challenge may be
into watershed management in the USA when he reforming the reforms of the past century, so that
wrote: watershed management is as integrated as
watershed function
Most watersheds have some management. Some
(Brandow 1992, p.28)
have a lot. It’s clear that the watershed
management that is taking place in most The global nature of this challenge is reflected in the
watersheds is fragmented, and in some cases operation of the International Network of Basin
management measures are working at cross- Organisations (INBO), a Paris-based organisation
purposes. In some watersheds, while one agency exchanging information and addressing issues
is trying to reduce cumulative watershed effects associated with institutional arrangements for river
by altering logging patterns to reduce peak flows, management. The priorities of INBO include:

Table 23. Trends in catchment management plans.

Limited data Growth of knowledge, accessibility

Limited involvement of local government Emphasis on local government powers

Single government agency plans Integrated planning

Limited public participation Formal participation in management, partnerships building

Centralised service delivery Catchment-level service delivery

Agency staffing levels Downsizing

Community motivation Community cynicism (participation = cost sharing)

61
• laws and regulations for water resource Ingram et al. (1984) found institutional arrangements
management in each country; to be a major stumbling block to the successful
• agreements, conventions and international reports operation of water resource management programs.
on integrated river basin management; and The main barriers to understanding were that many
institutions deal with resource allocation, and that
• statutes and missions of basin organisations. sectors in society perceive that scarce resources
Through the resources of the network, it is possible to should be divided differently. Resource allocation is
follow the different approaches that are being taken to the basis of economies and therefore, these
address institutional issues of river basin management institutions are very political and sensitive subjects.
throughout the world. Some recent initiatives include: Another barrier is the perception by institutions that
they cannot, or do not have the right, to change other
• establishment of a High Commission for Water and
institutions. More often than not, institutions are not
the establishment of River Basin Authorities for key
changed unless by an Act of parliament. Each
rivers of the Ivory Coast in Africa;
institution protects and reinforces its own sovereignty
• reform of the Brazilian Water Law to establish by avoiding conflict with other institutions of equal
hydrographic basins as planning units, the power (Ingram 1984).
preparation of masterplans and the creation of
Shrubsole (1996) found from the Ontario system that
water agencies and basin committees;
key success factors were:
• establishment of the Rio Tuy Basin Agency in
• the watershed as a management unit;
Venezuela;
• local initiative;
• establishment of hydrographic basin agencies in
Algeria to assist existing administrations and • municipal–provincial (local–State in Australian
organisations to carry out their missions of water terms) partnerships;
allocation, pollution control, resource utilisation • a healthy environment for a healthy economy;
and enhanced public awareness;
• a comprehensive approach; and
• preparation of a hydrological plan and the
establishment of a Basin Water Committee for the • cooperation and coordination.
Erbo River basin in Spain; The review of the Hawkesbury–Nepean (Healthy
• adoption of river contracts by the French Rivers Commission 1997) focused on generic
government and the Rhone–Mediterranean–Corsica impediments to effective management and progress
Basin Committee as a way of gathering together all towards healthier rivers. Management of the
water actors to define a consistent action program; Hawkesbury–Nepean uses a Catchment Management
and Trust, an Environmental Planning Strategy, a statutory
Regional Environmental Plan and Action Plan, a
• establishment of four river basin authorities in number of locally-based subcatchment management
Slovakia with wide responsibilities for water works, committees and a community awareness program.
pollution control, surface water supply, water Report findings on institutional issues include:
transport, irrigation and hydroelectric power
generation. • no provision for institutional arrangements for an
unambiguous role of ‘river custodian/manager’,
The issue of the appropriate institutional with a perception that because everyone is
arrangements for successful catchment management (apparently) responsible, no-one can be held
is presently a subject for considerable debate in responsible;
Australia. The report on enhancing the effectiveness
of catchment management planning in Australia • widespread fragmentation and duplication of
(AACM International 1995) identified key issues responsibilities with no adequately directive
potentially relating to the legislative framework as: framework within which one agency or council
feels confident or is encouraged by others to take
• conflict between service provision and resource the lead in driving through the necessary
regulatory roles of government agencies; decisions; and
• poor communication between and within • a need to establish a ‘river manager’ with ultimate
institutions and weak integration of skills; accountability for the health of the river, and with
• reliance on a small number of community members the powers and resources consistent with that
with strong and capable leadership skills; accountability. The river manager, a government
entity, would be the river’s ‘custodian. The river
• territorial disputes and poor cooperation between
manager must have sufficient independent status,
agencies; and
decision-making powers, and access to resources
• widely differing perceptions on the need for so that it can be regarded as equal with agencies
regulatory instruments to achieve integrated river with major sectoral responsibilities.
and catchment management.

62
The Fraser Basin Management Board and Program Five approaches to institutional
(Dorcey 1997) is a program underpinned by an arrangements
Agreement signed by Ministers of Federal and
provincial governments and representatives of local Mary Maher & Associates et al. (1998) investigated
governments. Findings include: multiple-objective, multiple-agency models for
integrated resource management from Australia and
• a need for the Board to be given an independent
overseas, including river/catchment management and
institutional base;
also coastal, protected area, open space and
• that the Board should not be given regulatory recreation, and fisheries management. Case study
powers but should be seen to be more selection criteria included:
accountable; and
• an authoritative source of information (generally
• the budget of the Board should be doubled either published reports or Internet sites);
(particularly if the Board is to fulfil its auditing
• a range of different approaches to management
role).
arrangements, particularly along continuums
In summary from all these reviews, it is evident that ranging from decentralised to highly centralised,
the key challenges for legislation are those of: and from non-regulatory to highly regulatory; and
• setting the ground rules for protection, • seeking outcomes related to sustainability, the
management and resource development; protection of water quality and the integration of
environmental, economic, social and cultural
• ensuring integration of the plans for economic
considerations.
production and ecological protection;
• empowering and enabling managers deliver Twenty-seven studies were reviewed and showed five
services or to call on service providers; broad classes of management model, the key
attributes of which were then analysed (Mary Maher
• ascribing status to the partnerships and & Associates et al. 1998, Table 5.2). While not all
cooperative arrangements to undertake this work; related to the legislative framework, the key attributes
• ensuring accountability for investments, decisions were:
and outcomes; and • ability to provide strong leadership;
• allowing for change over time. • ability to integrate environmental, economic, social
In turn, in delivery on these challenges legislation and cultural considerations;
must avoid: • ability to link catchment, waterway, estuarine and
• unreasonable rigidity of requirements or over- marine systems and functions;
emphasis on standardisation of requirements; • potential to learn and adapt;
• delegation to catchment or regional levels without • potential for generating strong commitment from
adequate policy direction or resourcing; elected representatives;
• irresponsible transfer or distribution of the pains • likelihood of achieving high levels of community
or gains from catchment management; ownership and involvement;
• barriers to leadership and innovation; and • extent to which responsibilities for achievement of
• onerous levels of consultation or stakeholder outcomes are clearly identified;
involvement. • extent that cross-agency and cross-disciplinary
It is a process of building the right framework in linkages are encouraged and supported;
which the actors in catchments can set up their • extent that management plan actions are
preferred approach; a process for which there is no enforceable;
single, right approach (i.e. no solution can simply be
• potential for negotiated resolution of conflicts
imported from another jurisdiction).
where river outcomes prevail;
• ability to attract funding over and above line
agency budgets;
• ability to channel funding to areas of highest need;
• ability to audit river outcomes against and across
all agencies/programs; and
• ability to integrate scientific information into
decision making.

63
Mary Maher & Associates et al. (1998) found that the effective cooperative models. The sequence
legislative framework should: commonly followed can be summarised as:
• enable the number and diversity of stakeholders to 1. voluntary interagency and intersectoral
be involved; cooperation, with nominated lead agency and little
• enable equal accommodation of both rural and monitoring (e.g. Victoria pre-1989, Queensland at
urban perspectives and issues; and present);

• ensure downstream recipients have an equitable 2. as 1, but with legislation requiring cooperation and
say in upstream actions impacting on them. setting out structure (e.g. Victoria post-1994);
3. as 2, but with greater integration in statute of
Their analysis showed five model classes, summarised
functional areas including Landcare;
in Table 24.
4. a single planning and service delivery agency for
state functions affecting catchments, for
Table 24. Five approaches to institutional coordinating with other levels of government,
arrangements. particularly local governments and their land use
Classes Description of models planning activities, for enforcement and auditing
(e.g. Victoria post July 1997);
1. Implementation via a stand-alone policy/
management plan 5. establishment of a statutory river custodian,
preferably apart from line agencies (e.g. Swan River
2. Implementation via a policy/management plan Trust, New Zealand’s Parliamentary Commissioner
plus some form of implementation agreement/ for the Environment, as recommended in 1984 and
memorandum of understanding (MOU) 1997 for the Hawkesbury–Nepean); and
3. Implementation via a policy plan plus some 6. all planning, all levels of government services,
form of implementation agreement/MOU and enforcement and auditing are delivered by one
an independent coordinating entity statutorily constituted agency. A refinement of this
4. Implementation via a policy plan plus some model is for a separate independent audit of river
form of agreement/MOU and a new statutory management and restoration achievements.
agency to coordinate and take over some of Mary Maher & Associates et al. (1998) further found
the key management functions (possibly by the model classes generally progressed from being
delegation) high on initial agency acceptability and low on
5. Implementation via a policy plan plus a new delivering river goals (Model 1), to the converse in
statutory river basin authority to take over a Model 5 where agency acceptability may be low (at
broad range of river management functions least initially) but the arrangements are effective.
There is no evidence of a model that can simply be
(adapted from Mary Maher & Associates et al. 1998) ‘transplanted’; successful models are products of
their context, and are tailored to meet local
circumstances.
Analysis by model classes showed that classes 3–5 are
much more likely to achieve high degrees of Having said that, Mary Maher & Associates et al.
ownership, accountability and integration, and (1998) found some common experiences relating to
sustainable river outcomes. The offset for these legislative framework amongst models that appear to
desirable attributes is higher extents of organisational be working in the complex area of river management
and behavioural change, new bureaucratic structures and restoration. These include:
(although not necessarily large) and a higher degree • abandonment of models that rely on high levels of
of centralised management. When all costs are taken discretion (especially high levels of ‘negative’
into account, they found no necessary major cost discretion not to do things, or not to achieve the
differences between the classes. object(s) of the legislation), and on low levels of
accountability;
Analysis of case studies shows communities moving
sequentially through models. The community which • a growing realisation that reasonably high levels of
at first is reluctant to embrace considerable change regulatory control and/or incentives are required if
finally accepts that less effective or voluntary desired outcomes are to be achieved across a
cooperation models are not keeping pace with the broad range of agencies and sectors; and
inevitable increasing pressures of growth and human • the trend towards small and purposeful statutory
activities on rivers and their restoration. More entities that provide a sense of leadership, ensure
command-oriented models are taken on as the health higher levels of accountability, take on important
of the river is seen as not safeguarded by the less coordinating and auditing functions and possibly
assume management responsibilities that cannot
be delivered by other agencies.

64
Performance measurement of the effectiveness of Critical success factors for integrated
institutional arrangements requires a process of catchment management (ICM) institutional
systematic and strategic evaluation. Such a process is
arrangements legislation
rarely undertaken in the river management and
restoration context (even from an overall perspective) Many of the critical success factors for legislation
for a variety of reasons. Evaluation is compounded in outlined for the three other topic areas have strong
this project because many of the systems and cases links to effective integrated catchment management
studied are recent; they have not had the opportunity (Figure 19). Critical success factors specifically
to produce measurable outcomes, or have not been relating to institutional arrangements for effective ICM
measured. are identified as follows.
• Legislation which leads the way on integrated
natural resources and catchment management by
providing a sound basis for incorporating
ecological and social dimensions into plans and
decisions for economic productivity. This is likely
to include management of the full range of
activities on catchment lands, without the present
exceptions.

Figure 19. Institutional arrangements for catchment management.

<1900s Single issue, single agency, single programs
No legislation for catchment management Resource legislation
• soil
• water

Environmental protection legislation

1990s Delegation and integration

• resources
• environmental protection
• biodiversity

Catchment management legislation

Structures Operational aspects

• committees • revenue raising
• trusts • reporting
• boards • works
• authorities

Catchment management plans

• land and water
• waterways
• water quality

>2000 Policies, plans and services in catchments

• land management (soils,
vegetation)
Integrated resource management
• water management
Integrated catchment management (groundwater, waterways)
• plan • agriculture, fisheries, mines
• programs
Community initiatives Local government powers
Integrated catchment management
• service delivery
• works

Performance reviews
65
• Legislation which clearly rationalises omissions,
duplication and inconsistencies in related
legislation.
• Legislation with powers to unify (or at least ensure
the coordination often missing to date) all key
functions affecting river management and
restoration, generally presently lying with diverse
agencies.
• Legislation requiring consultation with
stakeholders for planning and services on the
ground, and intervention where direct action is
needed. This includes third party rights of appeal
and of injunctive action, and that these are actually
proclaimed [not merely assented to and left
unproclaimed and inactive, as at present in the
Environmental Protection Act 1994 (Qld)].
• Legislation which clarifies the hierarchy of plans
involved in catchment management and provides
the statutory basis for catchment and waterway
protection
• Legislation which regularly requires reports and
audits about achievement of catchment protection
goals and sector commitments.
• Legislation which plays a leading role and
integrates with innovations in public financing,
market-based mechanisms for environmental
protection and equity, and industry strategies and
practices.
• Legislation which reflects a strengthened whole-of-
government approach to river management and
restoration, and a strong Commonwealth lead.

66
8. THE CRITERIA FOR THE BEST PRACTICE LEGISLATIVE
FRAMEWORK

Summary of findings • Evolution towards catchment-based planning.

However these plans remain non-statutory or
From the four topics—environmental flows, water advisory only in most jurisdictions. Catchment
quality, riparian areas and institutional arrangements legislation added to the plethora of other
for catchment management—the following conclusions legislation relating to resource management or
can be drawn. ecosystem protection.
• River management is now a topic of considerable • Trend towards devolution of functions and
debate between government and communities. No responsibilities to catchment/local level. Limited
national, binding standards have been set for river integration of statutory powers at this level.
protection or management. Surrogate standards are Planning emphasis mainly.
proposed through Ministerial or council
agreements, or Commonwealth ‘bribery’. Stronger • Strengthened representation of stakeholders.
Commonwealth lead, in partnership with States and Absence of national/State policy framework to
Territories. Limited application of Commonwealth ensure a level playing field. Ecosystem protection
powers to protect rivers. Confusing terminology with resource management.
across jurisdictions for most aspects of river/ • Increased knowledge about ecosystem processes
resource management. and resource use impacts. Resource security has to
• Water resource issues are the main focus of be matched with emerging requirements to provide
attention. Some degree of recognition of for ecosystem needs/adjusted over time.
environmental flow needs. Narrow focus on river The drivers of recent changes in river management
water, not the total water cycle. Strong sectoral were found to differ between river components,
interest opposition to security of environmental indicating uncertainty of outcomes for rivers:
flows in water allocation.
• catchment management driven by NHT project
• Commitment has been given by all States to monies, catchment strategies;
Integrated Natural Resource Management/ICM. In
• water quality driven by breakthroughs in the
most States, problems arise because major resource
scientific basis for water quality management;
agencies are distant from the integrated planning
process. Outside the cooperative arrangements for • water quantity reforms leading the way for major
planning and service delivery. economic interests, driven by resource users needs
and ensuing debates; and

Figure 20. Legislation’s role in ecologically sustainable water management.

1990s Beyond 2000 Ecologically

sustainable water
• resource access/utilities • resource capping management
• single licence regulatory approach • ecosystem needs
• ad hoc, river repair focus • true costing
• single issue, single agency planning • receiving water limit
• centralised bureaucratic structures • protection first, rehabilitation second
• integrated catchment protection
• statutory plans
• coordinated decision
• increased power at local and regional scales
• industry partnerships

• tied public financing

• marked/fiscal mechanics

67
• riparian management driven by recognition of the making circles and who are disillusioned with river
degraded state of Australian rivers, and of the managers’ performance and accountability to date.
riparian area’s contribution to water quality The other model is to move forward with inclusive,
problems. co-management, multiple mechanisms approaches,
with a lower but critical profile for legislation.
The main directions of the future are:
• ecologically sustainable water management (ESWM, Questions posed for river managers and the
similar to ESForestM), where equity and ecological legislative framework to consider include:
interests are represented alongside economic and • will it have strong central direction or will it be
sectoral interests in water management decisions; regionalised?
• development of new administrative arrangements • will regional structures be effective if downsizing or
at regional/catchment level; self-funding is required?
• nationally-agreed binding framework for rivers (i.e. • will all key players regionalise? Not just the
where to after COAG?); and environmental protection or resource agencies, but
• development of companion mechanisms in the such areas as the land development industry,
package (tax reform, industry adjustment, public land administration;
environmental accounting) in a compatible and • how will the community hold the whole lot to
comprehensive way; potentially decreasing role for accountability; against executive discretion, non-
legislation if these mechanisms perform for river compliance with plans, non-provision of resources,
management and restoration. etc?
Figure 20 summarises these big directions. On a • will there be multiple interacting regulatory
cautionary note, there are also counterforces which systems applying to any one activity, in a
must be factored into future considerations. continuation of typical superimposition of resource
management, environment protection, and other
Significant remaining river management and legislation over earlier legislation? Or will there be
restoration challenges include: use of sweeping and comprehensive new
• will water reform move from caps on development legislation, as on the New Zealand model?
to providing primacy and adequacy for ecological
Figure 21 provides a summary of the four topics and
thresholds?
recent or emerging aspects for the legal framework
• will water quality and water quantity planning presented on a continuum.
result in rivers achieving centre stage in catchment
management? However, there was substantial commonality among
researchers as to the legislative criteria. In the
• will production-based agencies work in with extensive Western Australian review of water and
sustainability planning, service delivery? natural resource management (Wallis 1996), the future
• will functional issue agencies endure, thus framework for integrated management identified the
maintaining the probability of ongoing following as the major components:
incoordination for river management and • whole of catchment approach to integrating water
restoration? and land management activities;
• will this transition phase see a progression from • a simple bureaucratic system with clear roles and
ecological objectives in their separate legislation, functions at every level (Ministerial, State agency,
to its incorporation in legislation and plans of peak councils and regional/catchment level);
producers and economic interests?
• clear responsibilities and accountabilities at all
• will there be transparent use of market levels;
mechanisms, industry self-regulation, co-
management, public financing for integrated • regional/catchment community groups given
resource management? Or will these mechanisms recognition and support as the prime means of
be used to stave off the reckoning between implementation of integrated catchment/resource
producers, resource users and other values? management;

• will management plans be complied with? What will • strong community ownership and partnering of
compliance with regulatory plans look like? activities between the State and incorporated ICM
groups;
The nature of the legislative framework appears to be
• an across-government portfolio coordinating
at a crossroads. The regulatory model is to move
mechanism;
forward with structures, statutory plans,
administrative processes, etc; and seems to be • an across-government portfolio budget agreement
favoured by stakeholders generally outside decision and partnering mechanism; and

68
• clear leadership and support by government for The working parts of legislation
integrated natural resource management matched
by real allocation and reallocation of resources. The criteria need to be operationalised through the
components or ‘working parts’ of the legislative
Some or most of these findings were generally framework. Five main components can be identified
common to others, including: as:
• the effectiveness of catchment management
Responsibilities
planning in Australia (AACM International 1995);
Legislation which addresses responsibilities in river
• the Ontario system (Shrubsole 1996, pp. 322–323);
management and restoration, particularly amongst
• Victoria river and catchment management (Doolan and between agencies and the three spheres of
& Roberts 1997); government. The group includes inter- and intra-
• best practice catchment management in Australia governmental matters, including in the Australian
in 2020 (Young 1997, Centre for International context:
Economics 1997); • the relative river management and restoration
• the review of the Hawkesbury–Nepean (Healthy responsibilities and roles of the Commonwealth
Rivers Commission 1997); and the States and Territories under the
Constitution;
• the review of the Fraser Basin Management Board
and its program (Dorcey 1997); • the administrative arrangements legislation and
related subordinate legislation of each jurisdiction,
• investigation of 27 multiple-objective, multiple-
which establish government agencies, define lead
agency studies and models for integrated resource
agencies, define spatial, functional and statutory
management from Australia and overseas,
responsibilities, define the relationships between
including river/catchment management (Mary
lead and related agencies in river management and
Maher & Associates et al. 1998); and
restoration; define inter-agency jurisdictional
• a study of the Grand River Conservation Authority, boundaries, and establish coordination
Canada; and the Bay of Plenty Regional Council, mechanisms; and
New Zealand (Nichols 1998).
• cooperative arrangements such as the Murray–
Darling legislation are in this group.

Structures
Legislation which establishes the structures through
which river management and restoration is actioned,
including policy, operation and service delivery
aspects. It includes components such as regional

Figure 21. Trends and futures: legislative framework for river management and restoration .

Environmental flows

water rights only cap on additional water use environmental flow security

Water quality
point source limits point and diffuse source limits receiving water limits
River Ecologically
Riparian area management sustainable
and restoration water
declared areas for protection of high value areas protection and rehabilitation management
repair and ad hoc rehabilitation of priority areas

Institutional arrangements for catchment management

ad hoc ICM statutory basis to plans systematic ICM and
committees and committees administration

Time line

1990 2005 2010

69
structures for the lead or other agencies; and rehabilitation; not by the extent to which they may or
frameworks and processes for stakeholder and may not cause discomfort to the present temporary
community involvement. The latter may be inter-and incumbents of public office, or to sectoral interests.
intra-governmental; on an interstate, state, regional
Taking these matters together, a degree of tension
and/or local basis; and includes structures addressing
(almost contradiction) is apparent. In the Snowy River
the inter-relationships between related functional
Inquiry Commissioner’ s words,
areas and programs (e.g. ICM and Landcare).
It could be argued that the Terms of Reference
Approach and outcomes were almost contradictory in the way they
Legislation which sets out approaches for determining required the Inquiry to identify the environmental
desired ecological and resource use outcomes such as issues arising from the operation of the Scheme
water entitlements, risk assessment, community and then provide a range of fully-costed options
consultation, setting of water quality objectives, and to deal with these issues while balancing the
catchment-specific outcomes. The resulting plans, needs of competing users of water. I therefore
schedules or systems, tailored to a specific issue or a took the view that the only way we could succeed
geographical area, may be legislated in the form in providing Governments with tangible options
schedules or other subsidiary legislation. was to deal transparently with each of the areas
of consideration without any bias towards any
Permitting and enforcement particular partisan position or stakeholder
Legislation which addresses compliance requirements viewpoint.
for statutory plans as well as licences, permits and (Snowy Water Inquiry 1998, p. 5)
approvals. It covers statutes setting standards
applying to river management and restoration, such A set of criteria reflecting best practice river
as minimum water quantity and quality specifications, management and restoration frameworks has been
processes and/or timetables for them to be developed, primarily from the four topics; and also
established, and reviewed. It includes legislation from the literature, and from professional experience
which codifies the standing and entitlements of river including that of practitioners, mainly in the public
water ‘beneficiaries’ (in the widest sense, including sector. The criteria are:
state and local governments, the environment, the 1. Setting binding, measurable river management and
community qua community as well as sectors and restoration standards should be a national
classes in the community) to water meeting relevant function, requiring a strong leading role by the
specifications. It includes regulatory enforcement for Commonwealth. A general duty-of-care should be
example, anti-pollution and pollution licensing legislated for all landholders and all others to
statutes, whether by public agencies or private manage all aspects of surface water and
recourse. groundwater resources sustainably, and to achieve
ESD as the primary object (not just as one of
Checks and balances several) of their activities.
This legislation is of two main groups: • This is particularly the case given the trans-
• monitoring and reporting legislation, including boundary nature of many Australian rivers.
agency periodic reporting, external/independent • It will enable river-level agencies can focus on
performance auditing, River Ombudsman, State of community education and motivation (Young
River reporting including those in State of 1997).
Environment reports; and
• River health in Australia is a critical issue to all
• legislation which relates to community Australians.
empowerment, including generic and specific
• National leadership in this nationally important
statutory review and appeal provisions, whether of
area has continued and can be enhanced for
public agencies or otherwise.
better overall river management and
restoration achievement.
Criteria for the best practice legislative • It will help to achieve and demonstrate a
framework for river management and whole-of-government commitment to river
management and restoration.
restoration in the twenty-first century
• ‘CSIRO already undertakes environment related
Recommended criteria for the best practice legislative
research and development ...on...land and
framework for river management, restoration and
water’ (Productivity Commission 1999, p. 55).
rehabilitation are to be ‘practical’. This term is seen as
Also, the Commonwealth’s Department of the
being measured against the capacity and necessity of
Environment and Heritage has commissioned
recommendations to achieve the community’s agreed the development of indicators for each of the
extent of river management, restoration and

70
 seven major themes for State of the 4. River management and restoration agencies need a
Environment Reporting, one being inland catchment-wide spatial characteristic.
waters. • There is a need to address all areas impacting
• River management and restoration legislation on river management and restoration.
needs to bind the Crown in the part of the • Responsibility and accountability for river
States/Territories, and in the part of the management and restoration require spatially
Commonwealth as far as it is able to do so. compatible coverage.
Commensurately, the Crown in the part of the
Commonwealth, as far as it is not legally • This will require and ensure a comprehensive
bound, should commit to achieving at least the approach to river management and restoration,
same provisions. and is generally accepted in Australia (Hooper
1997, p. 237).
2. A statutory definition of ‘river’ is needed in river
management, restoration and rehabilitation, on an 5. River management and restoration agencies need a
extensive basis to include floodplains, all related statutorily-based set of powers commensurate
wetlands, etc. with their responsibilities (i.e. for planning,
funding, educating, regulating and achieving all
• This will ensure all hydrological components of components of river management and
the river are comprehensively managed restoration).
towards restoration and rehabilitation.
• Commensurate powers are required for
• River restorers cannot have responsibility and responsibility and accountability for river
accountability for river management and management and restoration.
restoration without spatially commensurate
powers. • There is a need to address all matters
impacting on river management and
• It will have regard to the whole water cycle, restoration, and set out binding objects and
including groundwater. river management and restoration objectives.
3. There needs to be a single, multi-functional agency • The objects clause should state that in the
for a river’s restoration and rehabilitation. interpretation of river management and
• Lack of inter-agency cooperation and restoration legislation, constructions that
integration, turf wars and other similar promote the achievement of the underlying
activities are a constant negative finding in purpose or objective shall be preferred to
analyses of river management performance in constructions which do not.
Australia. • As river management and restoration covers
• A single agency has been demonstrated to be environmental, economic, social and cultural
better structured to provide a unified approach considerations, its powers need to cover its
and consistent actions towards river range of functions.
management and restoration, and to resolve 6. River management and restoration agencies need
conflicts, than are multiple agencies. While to include in their decision-making processes all
there has been improvement, and while some stakeholders in an open, equitable and adequately
inter-agency cooperative models are resourced manner.
demonstrating more achievement, this is
generally assessed against the past (how poor • Composition should reflect all stakeholders
performance has been before?), rather than the (including urban, environmental and non-
future (what performance is needed to achieve commercial) to ensure there is cross-
the objectives?). community involvement in and commitment to
river management and restoration.
• It will bring benefits of efficiencies of scale.
• There is a need for a strong local base (to
• A single agency may have a problem, real or ensure continuity as a local initiative), fiscal
perceived, about conflict between service equity (no taxation without representation)
provision and resource regulatory roles that and social equity.
should be resolved in formulating and
reviewing the river plan. • Upstream activities impact on downstream
users.
• There is a need for an unambiguous role of
‘river custodian / manager’. • Best practice principles of incorporating
stakeholder input (see for example
• The ability to ensure agreed river management Productivity Commission 1999, p. 10) should
and restoration objectives needs to take be required.
precedence over sectoral/local objectives.

71
7. Given the previous three principles, and the extent should be comprehensive and should cover
to which local government is already involved in and integrate all the multi-factorial aspects of
some environmental and other aspects of river river management and restoration, including
management and restoration, there need to be water allocation, sustainable resource-based
close links between river management and industries, ecosystem restoration, instream
restoration agencies and local governments. activities, impacting land management
• Such synergy will maximise coordinated river activities whether changing or ongoing,
management. minimisation of damage by flooding and
erosion to appropriately located assets,
• some communities may find benefits salinity, land degradation and erosion, local
(economies, no ‘turf wars’, simpler community laws, land use regulation, rural drainage and
education and better understanding, enhanced urban stormwater plans.
achievement, etc.) by increased commonality
between these two sets of agencies, such as the • River management and restoration plans
river agency and the local government having should be required to include all aspects of
the same chair; or amalgamating. These river management (e.g. land use planning
matters could be statutorily based; if they are impacts on rivers, urban stormwater and rural
not, systems requiring ongoing close and drainage plans, water allocation plans from all
coordinated linkages will be needed. water sources).

• Greater combined autonomy through full • River management and restoration plans
agreement and commitment on river should be rolling plans (with a five year
management and restoration plan, will lead to a turnover) for long time periods (over at least
lack of interference from other levels of thirty years).
government. 9. There needs to be a statutorily required regular,
• The logical conclusion of such a progression publicly available audit of river management,
may be the installation of a two-sphere system restoration and rehabilitation, independent from
of national and regional governments based on the restoring/rehabilitating agency.
river catchments, in lieu of the present • Performance, and accountability for it, are only
tripartite system of Commonwealth, State and achieved through audit.
local governments with multiple overlays and • Meaningful audit must be independent from
combinations. river (and any) manager.
8. River management and restoration agencies need a • Good management practice to audit
statutory, comprehensive river management and performance on a regular and independent
restoration plan. basis.
• The plan should be prepared following • Models include State of River reporting, the
statutorily required inclusive processes Parliamentary Commissioner for the
including principles of good policy making (see Environment (or Rivers), the River custodian
for example Productivity Commission 1999, p. role.
86), with statutorily required periodic reviews.
Government, ministerial or agency discretions • Data collection should be standardised,
about the occurrence, timing and depth of plan spatially and over time, for comparability and
reviews should be eliminated. efficiency. The work of CSIRO, the National
Land and Water Resource Audit and the
• Periodic reviews of the effectiveness of plans Department of the Environment and Heritage
will ensure good management practice. relating to State of the Environment Report
• ESD should be promoted as a primary goal in indicators has been mentioned. Several
river management and restoration plans, recommendations of the Productivity
because it incorporates social economic and Commission relating to standardised data
environmental issues in a whole-of-government collection by ABS for ESD implementation are
approach. It is the mainstream philosophy of also relevant (Productivity Commission 1999,
Australian resource management (Hooper 1997, draft recommendations 6.1 and 7.3 to 7.5).
p. 237). • This full accountability includes third party
• River management and restoration plans need rights of appeal and injunction.
to be based on scientific data and assessment 10. The legislative framework for administrative
(e.g. the Brisbane River and Moreton Bay Water components of river management and restoration
Quality Management Strategy). should contain a requirement for specified
• River management and restoration plans periodic reviews.

72
 • Given our early comprehension of the water
cycle, it is not to be expected that the first
framework designed will get it right. The
framework needs to respond to flaws found
through experience, as well as to incorporate
developing best practice and innovations from
our growing understanding.
• Reviews should follow statutorily required
inclusive processes.
• Reviews avoid government, ministerial or
agency discretions about the occurrence,
timing and depth of framework reviews.
• Periodical measurement and review the
effectiveness of arrangements it is good
management practice.
11. All legislation with a direct or indirect effect on
river management and restoration needs to have
and maintain primacy over all other legislation,
including that applying to for utilities and
emergencies. In other words, for the avoidance of
doubt, legislation which implements the suggested
criteria should be given ongoing legislative priority
despite the provisions of any other law, including
subsequent law. Achieving the suggested criteria
should be given greater statutory weight than any
other objective. Consequentially, any legislation
which ignores the criteria above needs to be
reviewed or eliminated to bring it into consistency,
and kept so reviewed. Integration and consistency
are key issues in river management and
restoration.

73
9. THE WAY FORWARD

Implementing best practice legislative Powers and capabilities for service delivery at local
framework level:
• greater use of local government status, powers; and
The suggested criteria do not necessarily require new
administrative structures and processes. For example, • fund raising, across-government budgets.
it is quite possible to meet the relevant criteria by
Maintenance of effective controls (the legislative
organising local governments onto a river catchment
‘sticks’) for:
basis, rather than create a separate system of new
catchment agencies. During a 1994–95 National • pollution from point sources;
Landcare Program project, Queensland and Tasmania • control of high risk activities; and
were considering watersheds as an appropriate
• powers of Boards and similar entities.
boundary in considering amalgamations of local
authorities.
Similarly, much of the catchment activity regulation Actions in the longer term
could be through the land use planning process,
rather than through either a new process, or by an National framework to set binding standards for river
extension of existing concurrence systems. The management and restoration
concurrence system is seen as having limited The project found significant evidence for a strong
effectiveness in achieving river management and role for the Commonwealth in the best practice
restoration, as it is based on a continuation of agency legislative framework. Factors in favour of a
plurality: itself clearly a causative factor in present significant and increased role for the Commonwealth
river degradation. in the future of river management, restoration and
Use of either existing land use or new regulatory rehabilitation include:
systems is likely to mean the cessation of traditional • ‘the Commonwealth is responsible for national
exemptions for agricultural, forestry and other policy issues’ (Productivity Commission 1999, p.
catchment land activities; and, similarly, the end of 23) and there is arguably no more national or
exemption of agriculture, forestry and other related important issue than river management and
practitioners from occupational licensing. restoration facing Australia;
• clear and firm leadership is appropriate, especially
in view of the trans-boundary characteristics of
Actions in the short term some Australian rivers;
Moving the focus from water management to • the most successful models of integrated natural
integrated resource management/river management resource management come from structures which
through: are not the orthodox ‘business-as-usual’ examples
• environmental protection, ecosystem processes of the Australian tripartite government
legislation; arrangement. Rather they are special arrangements
between these three and all other stakeholders
• resource use and access legislation; and
(e.g. Great Barrier Reef Marine Park Authority, Wet
• land planning, development and impact assessment Tropics Management Authority, Trinity Inlet
legislation. Management Plan [Mary Maher & Associates et al.
Achieving ICM through: 1998]);

• structures for integrated planning; and • Commonwealth initiatives on NSESD since 1989
have accelerated the move towards sustainable
• structures for coordinated decisions. water management (Hooper 1997, p. 238);
River protection/restoration legislation including: • the success of the 1994 COAG Water Reforms has
• wild rivers; been significantly due to the Commonwealth
playing a lead role, including a financial one;
• environmental flows; and
• Commonwealth law prevails where there is a
• water quality/environmental flow management
conflict over coexisting powers (Productivity
plans.
Commission 1999, p. 19);
• the Commonwealth has already commenced a
National Land and Water Resource Audit, designed

74
 to develop nationally comparable data which • market failure and negative externalities are
provides a measure over time of land and water reduced; and
resource quality; • markets promote technologies and products based
• the most successful federal models of river on the full set of sustainability criteria.
management, restoration and rehabilitation found
(Lockwood 1999).
were the USA and Canada, both with a key success
factor being a firm role by the federal government; Public financing
• such a framework is within the capacity, and Public funds may be used in a number of innovative
perhaps the intention, of the Commonwealth ways. Subsidies, incentives, industry assistance and
Environmental Protection and Biodiversity others are usually contingent upon landowner
Conservation Bill 1998; and participation being demonstrated through either a
• the Commonwealth can ensure equity across States management agreement such as conservation
and Territories. Where the scale of the problems agreements under the Nature Conservation Act (1992)
varies greatly and resourcing issues arise; it can in Queensland for example, or through a property
ensure benchmarks are maintained but flexibility is plan which may be required for assignment or say a
maintained to deal with pressures of inequities. water licence in a regulated river system.

The option of moving local governments to catchment Integral to these requirements is the specification of
boundaries has been suggested as one possible what is required for environmental protection and
method of achieving the relevant suggested criteria. If demonstrated adherence to these requirements.
this occurred, the Australian community might then Sustainability is increasingly specified through best
choose to migrate to a national, rather than a federal, management practices (BMPs) and industry codes of
government model. The suggested criteria for a legal practice.
framework is capable of implementation under either Examples of this incentive-based approach include:
constitutional arrangement.
• local government-initiated rate rebates for
Mix of mechanisms including market, fiscal, public voluntary conservation agreements;
financing, co-regulation and community empowerment • rate rebates through funds from State or Federal
The importance of a comprehensive set of provisions governments; and
embodied in a unified framework together with • reduced fees for licences or permits (initial fees
mandated standards for ecosystem protection cannot and annual fees).
be overstated (Industry Commission 1997).
Direct government assistance usually relates to some
The nature and extent of the role of legislation in form of ties for landholder performance. This tied
ecologically sustainable water management (ESWM) arrangement can be applied to:
however will depend to a large extent on the degree to
• allocation of leases or issue of licences;
which other non-statutory mechanisms are utilised.
• landholder compliance with best management
The desired transition to ESWM must involve a mix of
practices (government code of practice) or licence
mechanisms, the effectiveness of the mix determining
requirements when licensing of agriculture is
the level of reliance on the legislation. These other
introduced under a State’s environment protection
mechanisms include:
legislation; and
Market mechanisms • landholder agreements for example conservation
Improving the markets for natural resources is a agreements.
strategy which policy makers are presently examining A critical appraisal and analysis of initiatives on tax
(Productivity Commission 1999). However some see incentives for environmental protection is urgently
the market as fundamentally flawed in its ability to needed as part of the current investigations of tax
deliver the scale of protection needed for the public reforms. This applies to taxes by Commonwealth and
interest or they see the reforms coming too late and State governments. Investigations should include:
too minimally. There is no question that major
reforms are needed to direct the operation of market • accelerated depreciation on capital expenditure
mechanisms to ensure that: incurred by a taxpayer undertaking measures for
protection of the environment or to address
• markets facilitate efficient use of resources (true degradation;
costs, rights mechanisms);
• rates reductions or exemption;
• markets recognise non-use values (environmental
accounting); • exemption from capital gains tax;
• deductibility of non-income producing expenditure;
• deductibility for donations; and

75
• recognition of vegetation management in primary
production category to allow exemption from land
tax.
While there is considerable debate about the potential
which market mechanisms have to deliver ecological
objectives the next five years will no doubt see their
greater application to water resource management
and sustainable use (Young 1997).
Dissemination of environmental knowledge and
know-how
Dissemination of environmental knowledge and know-
how is an important mechanism in promoting river
management and restoration at all levels. The need
for know-how exists in agencies as well as in the
community. Although education cannot function as an
alternative to regulation, legislation can be seen to
initiate the culture change which creates ‘readiness’
to receive information.

Future LWRRDC investigations

Future work should address specific questions arising
from this report about legislative frameworks,
legislative mechanisms as well as the effectiveness of
the legislation in practice including legislation’s role in
the mix of mechanisms.
Several suggestions for future investigations directly
resulting from this project are made here.
1. Conduct of a five-yearly update of all or selected
river-related legislation in each State and Territory,
on the lines of the NSW EDO review of inland rivers
legislation in 1994 (EDO 1994). This work could be
desk 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 leading
jurisdictions in Australia and internationally. This
study would assess the comprehensiveness of the
statutes in terms of river management and
restoration objectives; the priority and weighting
(primacy) given to these objectives, and the
mechanisms used to achieve integrated planning,
coordinated decisions, agency accountability and
industry/landholder duty of care. This comparative
work needs to address legal interpretation and
legal processes (legal research) as well as
examining legislation in its broader policy context
(social research).
3. Selected evaluation studies of the legislation in
practice, and outcomes it contributes to. Farrier
(1999) values investigation of key river-related
legislation in selected catchments in leading
jurisdictions as a way of understanding how the
legislation works in terms of overlaps, enforcement
mechanisms and integration.

76
REFERENCES

AACM International with Centre for Water Policy California Coastal Commission 1999, Procedural
Research 1995, Enhancing the effectiveness of Guidance Manual: II. Regulatory Setting, Centre
catchment management planning: final report, for International Economics 1997,
Department of Primary Industries and Energy: www.ceres.ca.gov.coastalcomm/nonpoint/pgm-
Canberra. ch2.html accessed 22 February 99.
Allan, J. & Lovett, S. 1997, Impediments to Managing Centre for International Economics 1997, Using fore-
Environmental Water Provision, Bureau of sighting to identify R & D priorities for LWRRDC,
Resource Science, Canberra. Centre for International Economics, Canberra.
Alexander, N. (managing ed.) 1996, Australia: State of Cooperative Research Centre for Freshwater Ecology
the Environment 1996. CSIRO Publishing, 1997, Watershed: September 1997, CRC for
Canberra. Freshwater Ecology, Canberra.
ANZECC 1992, National Water Quality Management Council of Australian Governments, 1994, Council of
Strategy, Australian Water Resources Council, Australian Governments Water Reform
Canberra. Agreement, Australian Government Publishing
Service, Canberra.
ARMCANZ 1995, Water Allocations and Entitlements – A
National Framework for the Implementation of Cripps, E. 1998, Review of Legislation Relating to
Property Rights in Water, Task Force of COAG Riparian Management, Report for LWRRDC,
Water Reform Occasional Paper No 1 October Canberra (unpublished).
1995, Commonwealth of Australia, Canberra.
Cullen, P.W. 1997, ‘The Australian Scene: Visions for
ARMCANZ / ANZECC 1996, National Principles for the Integrating Catchment Management’, in
Provision of Water for Ecosystems, Occasional Proceedings of the Second National Workshop on
Paper SWR No 3 July 1996, Commonwealth of Integrated Catchment Management, Australian
Australia, Canberra. National University, Canberra, 29 September –
1 October.
Arthington, H. 1998, ‘Introduction’, in Comparative
Evaluation of Environmental Flow Assessment Cullen, P.W. 1994, ‘A Rationale for Environmental
Techniques: Review of Holistic Methods, Flows’, in Water and the Environment,
Occasional Paper 26/98, LWRRDC, Canberra. Newsletter No. 318 (Sep – Oct).
Banens, B., Davies, P., Maher, W., Robinson, S., Tait, D., Cummings, B., Taylor, P. & Cleary, D., 1996, ‘A National
Volker, R., Wasson, B. & Watson-Brown, S. 1996, Perspective on Water Resources, Law and
‘Inland Waters’, in State of Environment Management’, in Water Resources Law and
Australia, N. Alexander (managing ed.), CSIRO Management in Western Australia, The Centre
Publishing. Canberra. for Commercial and Resources Law and The
University of Western Australia: Nedlands,
* Bartlett, R., Gardner, A. & Mascher. S. (ed.) 1997,
Western Australia.
Water Law in Western Australia – Comparative
Studies and Options for Reform, The Centre for Department of Conservation and Natural Resources
Commercial and Resources Law and The (Victoria) Water Bureau 1995, The Bulk
University of Western Australia: Nedlands, Entitlement Conversion Process, Bulk Water
Western Australia. Entitlements Report Series Report No.2,
Department of Conservation and Natural
* Bates, G. M. 1995, Environmental Law in Australia,
Resources Victorian Water Bureau, Melbourne.
Fourth edition, Butterworths, Sydney.
Department of Land and Water Conservation 1998,
Bradsen, J 1991, Perspectives on Land Conservation,
Stressed Rivers Assessment Report, NSW State
EPLJ 126.
Summary, NSW Department of Land and Water
Brandow, C. 1992, Integration: watersheds do it, why Conservation, Sydney.
don’t we? California Department of Forestry
Doolan, J.M. & Roberts, C.J. 1997, ‘Catchment
and Fire Protection, http://
management in Victoria’, Proceedings of the
glinda.cnrs.humboldt.edu/WMChome/news/
Second National Workshop on Integrated
fall_92/integration.html
Catchment Management,: Melbourne.
Brisbane Region Environment Centre, 1998, http://
users.pasdex.net.au.webinc/news/current/
waterway.html, 10 Mar 1999

77
Dorcey A.H.J. 1997, ‘Collaborating towards Johnson, P. 1999, ‘Urban stormwater – partnerships to
sustainability together: the Fraser Basin improve environmental performance’, in
Management Board and Program’, in Practising Proceedings International Conference on Diffuse
Sustainable Water Management – Canadian and Pollution “Solutions – Innovations” 16–20 May
International Experiences, initials of editors eds 1999, IAWQ and AWWA, pp. 258–269: *.
D. Shrubsole & B. Mitchell, chapter 10, pp. 167–
Joyce, J. 1992 Ulysses, Penguin, London, pp. 782–784.
199, Canadian Water Resources Association,
Canada. Kunert, C. & McGregor. A. 1996, Wild Rivers
Conservation Management Guidelines – A
Dovers, S 1999, ‘Public Policy and institutional R&D
Discussion Paper, Australian Heritage
for Natural Resource Management’ in Mobbs C.
Commission, Canberra.
& Dovers S Social, Economic, Legal, Policy and
Institutional R&D for Natural Resource Lockwood, M. 1999, ‘Environmental Economic R&D for
Management – Issues and Directions for Sustainable Natural Resource Management in
LWRRDC, LWRRDC, Canberra. Rural Australia: a Potential Role for LWRRDC’,
in Social, Economic, Legal, Policy and
* Environmental Defender’s Office 1994, Inland Rivers
Institutional R&D for Natural Resource
– Regulatory Strategies for Ecologically
Management: Issues and Directions for LWRRDC,
Sustainable Management. EDO, Sydney.
Occasional Paper No 01/99, LWRRDC, Canberra.
Farrier, D. 1999, Legal Research for Natural Resource
de Loe, R. 1997, Practising the Principles:
Management, in Socio, Economic, Legal, Policy
Sustainability and the Oldman River Dam, in
and Institutional R&D for Natural Resource
Practising Sustainable Water Management –
Management: Issues and Directions for LWRRDC,
Canadian and International Experiences, eds
Occasional Paper No 01/99, LWRRDC, Canberra.
D. Shrubsole & B. Mitchell, chapter 13, pp. 236–
Fisher, D.E. 1987, Natural Resources Law in Australia. 259, Canadian Water Resources Association,
The Law Book Company Limited, Sydney. Canada.
Growns, I. 1998, Comparative Evaluation of LWRRDC 1996, Managing Riparian Land – Riparian
Environmental Flow Assessment Techniques: Management 1 (brochure), LWRRDC, Canberra.
Review of Methods. Occasional Paper 27/98,
Martin, P. & Woodhill, J. 1995, ‘Landcare in the
LWRRDC, Canberra.
Balance: Government Roles and Policy Issues
The Habitat Restoration Information Center (nd) in Sustaining Rural Environments’, Australian
Federal Laws, Regulations and Polices Pertaining Journal of Environmental Management, vol. 2 no.
to the Protection and Enhancement of: Estuaries; 3, pp. 157–173.
Wetlands; Watercourses; Water Quality; Riparian
Mary Maher & Associates & Nichols, P. 1998, Interim
Corridors; Floodplains; and Watersheds, The
report: Brisbane River Management Plan –
Habitat Restoration Information Center,
regulatory review, Unpublished report to the
California, www.habitat-restoration.com/
Brisbane River Management Group, Brisbane
p1fed.htm accessed 22 February 99.
(January).
Healthy Rivers Commission of NSW 1997, Independent
Mary Maher & Associates, Environmental Sciences
inquiry into the Hawkesbury Nepean River
and Services & McDonald, G.T. 1998, Brisbane
system: draft report. Healthy Rivers
River Management Plan; options paper on
Commission, Sydney.
regulatory and management arrangements.
Hooper, B. 1997, ‘The Australian experience in Unpublished report to the Brisbane River
sustainable water resource management’, in Management Group: Brisbane (March).
Practising Sustainable Water Management –
Mascher, S. 1997, ‘Reforming Water Quality
Canadian and International Experiences, eds
Management in Western Australia’, in Water
D. Shrubsole & B. Mitchell, chapter 13, pp. 236–
Law in Western Australia – Comparative Studies
259, Canadian Water Resources Association,
and Options for Reform, eds R. Bartlett, A.
Canada.
Gardner & S. Mascher, The Centre for
Industry Commission 1997, A Full Repairing Lease, Commercial and Resources Law and the
Industry Commission, Canberra. University of Western Australia, Nedlands,
Western Australia.
Ingram, H.M., Mann, D.E., Weatherford, G.D. & Cortner,
H.J. 1984, ‘Guidelines for improved institutional Mason, R.O. & Mitroff, I.I. 1981, Challenging strategic
analysis in water resources planning’, Water planning assumptions: theory, cases and
Resources Research; vol. 20 no. 3, pp. 323–334. techniques. Wiley: New York.

78
McCosker, R.O. 1998, Comparative Evaluation of Snowy Water Inquiry 1998, Snowy Mountains Inquiry –
Environmental Flow Assessment Techniques: Final Report, Snowy Water Inquiry, New South
Review of Methods, in Occasional Paper 27/98, Wales.
LWRRDC, Canberra.
Terrill, D. 1998, Riparian Zone Management – Review of
Mitchell, B. 1999, ‘Partnership Arrangements to Literature, Centre of Environmental Applied
Address Diffuse Pollution Issues’, in Hydrology, University of Melbourne,
Proceedings International Conference on Diffuse Melbourne.
Pollution, C. Barber, B. Humphries, & J. Dixon
Wallis, R. 1996, ‘Integrated Natural Resource
(eds), Perth Sheraton, Western Australia, 16–20
Management’, in Water Resources Law and
May, CSIRO, Western Australia.
Management in Western Australia, The Centre
Mitchell, B. (ed.) 1990, Integrated water management: of Commercial and Resources Law and The
international experiences and perspectives. University of Western Australia, Western
Belhaven, London. Australia.
Mitchell, B. 1989, Geography and resource analysis. Welker, C.H. 1996, ‘Pollution Control and Water Quality
Second edition, Longman Scientific and Management in Western Australia’, in Water
Technical, Harlow. Resources Law and Management in Western
Australia, eds R. Bartlett, A. Gardner & S.
Mitchell, B. 1987, A comprehensive integrated approach
Mascher, The Centre for Commercial and
for water and land management, Occasional
Resources Law and The University of Western
paper no. 3, Centre for Water Policy Research,
Australia, Nedlands, Western Australia.
University of New England, Armidale.
Young, M. 1997, ‘ICM in 2020: conditions that will make
Murray–Darling Basin Ministerial Council 1995, An
Australian ICM exemplary’, in Proceedings of
Audit of Water Use in the Murray– Darling Basin,
the Second National Workshop on Integrated
Murray–Darling Basin Ministerial Council,
Catchment Management, Melbourne.
Canberra.
Nichols, J. 1998, Future directions of integrated
catchment management in Queensland, based on
successful models in Canada and New Zealand,
Unpublished thesis, Department of
Geographical Sciences, University of
Queensland, Brisbane.
Patuxent River Commission 1999, Chesapeake Bay –
Know Your Watershed, Patuxent River
Commission: USA, www.dnr. state.md.us/bay/
tribstrat/index.html accessed 5 May 99.
Productivity Commission 1999, Implementation of
Ecologically Sustainable Development by
Commonwealth departments and agencies,
Productivity Commission draft report,
(February) Canberra.
Pusey, B.J. 1998, Methods addressing the flow
requirements of fish, in Comparative Evaluation
of Environmental Flow Assessment Techniques:
Review of Methods, Occasional Paper No 27/98,
LWRRDC, Canberra.
Rittel, H.W.J. & Webber, M.M, 1973, ‘Dilemmas in a
general theory of planning’, Policy Sciences,
vol. 4, pp. 155–169.
Shrubsole, D. 1996, ‘Ontario Conservation Authorities:
Principles, Practice and Challenges 50 years
later’, Applied Geography; vol. 16, pp. 319–335.

79
GLOSSARY

Access licence Entitlement

A licence issued for the future right to take water The right to make use of water resources.

Allocation Environmental indicator

Giving a person an entitlement to use water or Physical, chemical, biological or socio-economic
setting aside a water resource for a designated use measures that can be used to assess natural
resources and environmental quality
Basin
The area that drains water into a river system, Estuary
including all its tributaries Area of an inlet or river mouth that is influenced
by the tides and also by fresh water from the land;
Biodiversity area where fresh and salt water mix
The variety of all life-forms; the different plants,
animals and micro-organisms, the genes they Floodplain
contain and the ecosystems they form; often The floodplain, which includes the riparian zone,
considered at three levels; genetic diversity, is that part of the land adjacent to the river that is
species diversity and ecosystem diversity subject to flooding (to the 100 year level) and
consists of a mosaic of aquatic and terrestrial
Catchment environments that are intricately linked with the
The area determined by topographic features river
within which rainfall will contribute to run-off at a
particular point under consideration Impoundment
A pond, lake, tank, basin, or other space, either
Codes of practice natural or created in whole or part by the building
Sets of guidelines adopted by management of engineering structures, which is use for storage,
agencies concerned with minimising impacts of regulation and control of water
operations on the environment (for example soil
erosion) and safety Indicator species
A species used to assess the health of an
Consumptive use ecosystem
Any activity that depletes the total flow or volume
of water in a water body Irrigation
Supplying land or crops with water by means of
Diversion stream, channels or pipes
The movement of water from a river system by
means of pumping or gravity channels Murray–Darling Basin Agreement
The agreement between the Governments of the
Diversion licence four Basin States and the Commonwealth.
Specified licences issued for a specific annual
volume and diversion rate National Competition Policy
Provides for the application of third party access,
Ecologically sustainable development (ESD) competitive neutrality and prices oversight
Development of the State’s water resources in a principles to Government business activities, and
way and at a rate which provides for and protects incorporates the COAG water reform agenda.
the well-being of people and their communities.
National estate
Ecosystem Those places, being components of the natural
A dynamic complex of plant, animal and micro- environment of Australia, or the cultural
organism communities and their non-living environment of Australia, that have aesthetic,
environment interacting as a functional unit historic, scientific or social significance or other
special value for future generations as well as for
the present community

80
Permanent transfer perennial, intermittent or episodic) in which they
The transfer of water entitlements on a permanent following operate:
basis. The right to permanent transfers allows • the biological, hydrological and
irrigators to make long term adjustments to their geomorpholigical processes associated with
enterprise and enables new operators to enter the river flow; and
industry. • the biological, hydrological and
gemorphological processes in those part of the
Point source pollution catchment with which the river is intimately
Pollution from an easily discernible, single source linked (adapted from Kunert et al. 1997 viii). A
such as a factory river has been defined in California’s Wild and
Scenic Rivers Act 1972 as: ...the water, bed, and
shoreline of rivers, streams, channels, lakes,
Pollution
bays, estuaries, marshes, wetlands and lagoons
The direct or indirect alteration of the physical,
up to the first line of permanently established
thermal, biological or radioactive properties of any
riparian vegetation. www.habitat-
part of the environment in such a way as to create
restoration.comp1ca.htm p4, accessded 22
a hazard or potential hazard to the health, safety
February 99
or welfare of any living species

River regulation
Precautionary principle
The formulation and execution of a specific
Where there are threats of serious or irreversible
operating plan for flow modification of water in a
environmental damage, lack of full scientific
river system; may involve the creation of
certainty should not be used as a reason for
impoundments and diversion and the control and
postponing measures to prevent environmental
flow to and from such storages
degradation

Restoration
Regulated flow
Returning existing habitats to a known past state
Flow that is controlled through the use of dams
or to an approximation of the natural condition by
and weirs to supply water for consumptive uses.
repairing degradation, by removing introduced
Regulation usually has consequent impacts on the
species or by reinstatement (Australian Natural
natural hydrograph.
Heritage Charter, 1997 p8)

Rehabilitation
Unregulated flow
Process of improving the physical and biological
Tributary inflow events downstream of storages or
condition.
flows over storage spillways

Riparian zone
Water allocation and management plan (WAMP)
The riparian zone is the channel margin, under the
A basin-wide process involving the identification of
immediate influence of median flows.
environmental flow objectives, water entitlement
security objectives and development
Riparian land opportunities. Under proposed water resource
Any land which adjoins or directly influences a management legislation an approved WAMP will be
body of water. It includes: subordinate legislation.
• land immediately alongside small creeks and
rivers, including the river bank itself
Watercourse
• gullies and dips which sometimes run with
A watercourse can be a river, creek or stream in
surface water
which water floes permanently or intermittently
• areas surrounding lakes
including natural channels and natural channels
• wetlands on river floodplains which interact
artificially improved or which have changed the
with the river in times of flood (LWRRDC 1996)
course of the watercourse, upstream of the tidal
limit. It includes bed and banks and any other
River element of a river, creek or stream that confines or
The river is a channel, channel network, or a contains water.
connected network of waterbodies of natural
origin and exhibiting overland flow (which can be

81
APPENDIX 1. KEY ATTRIBUTES OF DIFFERENT CLASSES OF
MANAGEMENT MODELS
CLASS 1 CLASS 2 CLASS 3 CLASS 4 CLASS 5
Stand alone policy Policy plan plus Policy plan plus Policy plan plus Policy plan plus
plan agreement/ agreement/MOU agreement/MOU new authority with
MOU plus independent plus new agency broad range of powers
co-ordinating entity with limited
management powers

Ability to provide a strong sense of leadership

Very limited Limited Achievable Achievable Achievable

Ability to integrate environmental, economic, social and cultural considerations

Generally unachievable Difficult to achieve Achievable Achievable Achievable

Ability to link catchment, waterway, estuarine and marine systems and functions
Generally unachievable Difficult to achieve Achievable Achievable Achievable

Potential to learn and adapt

Generally low Low–moderate Can be high Can be high Can be high

Potential for generating strong commitment from elected representatives

Generally low Generally low Can be high Can be high Can be high

Likelihood of achieving high levels of community ownership and involvement

Low Low–moderate Moderate–high Moderate–high Moderate–high

Extent to which responsibilities for achievement of outcomes are clearly identified

Generally low levels Generally low levels Higher levels of Higher and more Higher and more
of accountability and of accountability accountability but focused accountability focused accountability
highly dispersed and highly dispersed still dispersed

Extent that cross agency and cross-disciplinary linkages are encouraged and supported
Not at all Generally low Can be high Can be high Can be high

Extent that management plan actions are enforced

Generally low and Low–moderate but Moderate–high Generally high Generally high
sporadic often sporadic

Potential for negotiated resolution of conflicts where whole of river and bay outcomes prevail
Low Low–moderate Can be high Can be high Can be high

Ability to attract funding over and above line agency budgets

Often limited Some potential Moderate–high potential Moderate–high potential Moderate–high potential

Ability to channel funding to areas of highest need

Very limited Limited Some potential Good potential Good potential

Ability to audit against whole of river and bay outcomes and across all agencies/programs
Very difficult to achieve Difficult to achieve Achievable Achievable Achievable

Ability to integrate scientific information into decision making

Very limited Limited Good potential Good potential Good potential

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APPENDIX 2. LEGISLATIVE DATABASES

State River management aspect Statutes

Victoria Pollution/water quality Catchment and Land Protection Act 1994

Local Government Act 1989
Environment Protection Act 1970

Resource & access Water Act 1989

Water (Amendment) Act 1995
Water Industry Act 1994

Ecosystem values Water Act 1989

Water (Amendment) Act 1995
Catchment and Land Protection Act 1994
Crown Lands (Reserves) Act 1987
Flora and Fauna Guarantee Act 1988
Heritage Rivers Act 1992
Forests Act 1958

Catchment, land/water management Catchment and Land Protection Act 1994

Planning and Environment Act 1987
Conservation, Forests and Lands Act 1987
Land Act 1958
Land Conservation Act 1970
Land Government Act 1989
National Parks Act 1975
Reference Areas Act 1978
Urban Land Authority Act 1979
Victorian Conservation Trust Act 1972
Coastal Management Act 1995
Conservation, Forests and Lands Act 1987
Environment Effects Act 1978
Alpine Resorts Act 1983
Alpine Resorts (Management) Act 1997

Institutional arrangements for catchment management

Local Government Act 1989
Catchment and Land Protection Act 1994
Groundwater (Border Agreement) Act 1985
Melbourne Water Corporation Act 1992
Murray–Darling Basin Act 1993
Snowy Mountain Engineering Corporation Act 1992
Water (Rural Corporation) Act 1992

Queensland Pollution/water quality Environment Protection Act 1994

Soil Conservation Act 1986
Soil Survey Act 1929
Contaminated Lands Act 1992
Agricultural Chemical Distribution Control Act 1966
Chemical Usage (Agricultural and Veterinary) Control Act 1988
Agricultural and Veterinary Chemicals (Queensland) Act 1994
South-East Queensland Waters Act 1979

Resource & access Water Resources Act 1989

River Improvement Trust Act 1940
Sawmills Licensing Act 1936
Mineral Resources Act 1989
Mining (Fossicking) Act 1985

83
 Ecosystem values Water Resources Act 1989
Nature Conservation Act 1992
Rural Lands Protection Act 1985
Land Act 1994
Soil Conservation Act 1986

Catchment, land/water management Local Government Act 1993

Integrated Planning Act 1997
Water Resources Act 1989
Land Act 1994
Rural Lands Protection Act 1985
Recreational Areas Management Act 1988
Coastal Protection and Management Act 1995
Forestry Act 1959
Fisheries Act 1994
Wet Tropics World Heritage Protection and Management Act 1985
State and Regional Planing and Development Act 1971
Integrated Resort Development Act 1987
Transport Infrastructure Act 1994

Institutional arrangements for catchment management

Native Title Act 1993
Integrated Planning Act 1997

New South Wales Pollution/water quality Protection of the Environment Administration Act 1992
Pollution Control Act 1970
Contaminated Land Management Act 1997
Environmental Offences & Penalties Act 1989
Protection of the Environment Operations Act 1998
Clean Waters Act 1970
Water Act 1912

Resource access & use Environmental Protection & Assessment Act 1979
Irrigation legislation (range of Acts)
Soil Conservation Act 1938
Snowy Mtns Hydroelectric Agreements Act 1958
Forestry Act Water Act 1912
Fisheries Management Act 1994
Crown Land Act Irrigation Act 1912
Rivers and Foreshores Improvement Act 1948
Water Supply Authorities Act 1987
Mining Act 1992

Ecosystem values/Riparian/Fish habitat

Coastal Protection Act 1979
National Parks & Wildlife Act 1974
Threatened Species Conservation Act 1995
Native Vegetation Conservation Act 1997
Crown Lands Act 1989
Fisheries Management Act 1994
Environmental Planning and Assessment Act 1979
Local Government Act 1993
Rivers and Foreshores Improvement Act 1948
Soil Conservation Act 1938
New South Wales – Queensland Border Rivers Act 1947

Catchment, land/water management Catchment Management Act 1989

Rivers and Foreshores Improvement Act 1948
Coastal Protection Act 1979
Coastal Protection Amendment Act 1998

84
 Commons Management Act 1989
Drainage Act 1939
Forestry Act 1916
Commons Management Act 1989
Conveyancing Act 1919
Western Lands Act 1901
Irrigation Act 1912
Crown Lands (Crowns Lands Consolidation) Act 1989
Environmental Planning and Assessment Act 1979
Local Government Amendment (Ecological Sustainable Development)
Act 1997
Rivers and Foreshore Improvement Act
1948 Roads Act 1993
Rural Fires Act 1997
Rural Lands Protection Act 1989
Wilderness Act 1987

Institutional arrangements for catchment management

Local Government Act 1993
Murray–Darling Basin Act 1992
Water Administration Act 1986

South Australia Pollution/water quality Environment Protection Act 1993

Waterworks Act 1932
Public and Environmental Health Act 1987
Water Administration Act 1986
Catchment Water Management Act 1995

Resource & access Water Resources Act 1997

Water Conservation Act 1936
Southern Eastern Water Conservation and Drainage Act 1992
Metropolitan Drainage Act 1935
Irrigation Act 1994
Irrigation (Land Tenure) Act 1930

Ecosystem values Water Resources Act 1997

Development Act 1993
Native Vegetation Act 1991
Wilderness Protection Act 1992
National Parks and Wildlife Act 1972

Catchment, land/water management Water Resources Act 1997

Soil Conservation and Land Care Act 1989
Water Conservation Act 1936
Pastoral Land Management and Conservation Act 1989
Forestry Act 1983
Development Act 1993
Crown Lands Act 1929
Country Fires Act 1989
Coastal Protection Act 1972
Heritage Act 1993
Land Acquisition Act 1969
Local Government (Forestry Reserves) Act 1944

Institutional arrangements for catchment management

Water Resources Act 1997
Murray–Darling Basin Act 1993
Local Government Act 1934
Ground Water (Border Agreement) Act 1985

85
Northern Territory Pollution/water quality Water Act 1992

Resource & access Pastoral Land Act 1992

Stock Routes and Travelling Stock Act 1954
Water Supply and Sewerage Act 1983

Ecosystem values Territory Parks and Wildlife Conservation Act 1977

Bushfires Act 1980
Conservation Commission Act 1980
Soil Conservation and Land Utilisation Act 1970

Catchment, land/water management Water Act 1992

Soil Conservation and Land Utilisation Act 1970
Crown Lands Act 1992
Environmental Assessment Act 1982
Parks and Wildlife Commission Act 1980
Planning Act 1993
Heritage Conservation Act 1991

Institutional arrangements for catchment management

Water Act 1992
Power and Water Authority Act 1987

Tasmania Pollution/water quality Water Act 1957

State Policy: Water Quality Environmental Management and Pollution
Control Act 1994
Sewer and Drains Act 1954
Rossarden Water Act 1954

Resource & access Water Act 1957

Water Resources Investigation Act 1937
West Tamar Water Act 1960
North West Regional Water Act 1987
North Esk Regional Water Act 1960
Mineral Resources Development Act 1995
Land Use Planning and Approvals Act 1993
Groundwater Act 1985
Farm Water Development Act 1985
Hydro-Electric Commission Act 1944

Ecosystem values State Policy: Water Quality Crown Land Act 1976
Inland Fisheries Act 1995
National Parks and Wildlife Act 1970
Threatened Species Protection Act 1995

Catchment, land/water management Resource Management & Planning System 1994

Local Government Act 1993
Land Use Planning and Approvals Act 1993
Roads and Jetties Act 1935
Public Land (Administration of Forests) Act 1991
Forestry Act 1920
Private Forests Act 1991
Local Government (Highways) Act 1982
Land Use Planning and Approvals Act 1993
Forest Practices Act 1985
Conveyancing and Law of Property Act 1884

Institutional arrangements for catchment management

Local Government Act 1993
State Policies and Projects Acts 1993
Northern Regional Water (Arrangements) Act 1997
Hobart Regional Water (Arrangements) Act 1996

86
Western Australia Pollution/water quality Environmental Protection Act 1986

Resource & access Rights in Water & Irrigation Act 1914

Country Areas Water Supply Act 1947
Rights in Water and Irrigation Act 1914
Fish Resource Management Act 1994

Ecosystem values Environmental Protection Act 1986

Waterways Conservation Act 1976
Conservation and Land Management Act 1984
Wildlife Conservation Act 1950
Parks and Reserves Act 1895

Catchment, land/water management Local Government Act

Western Australia Planning Act 1996
Soil and Land Conservation Act 1945
Aboriginal Affairs Planning Authority Act 1972
Agriculture Act 1988
Land Acquisition and Public Works Act 1902
Land Administration Act 1997
Main Roads Act 1930
Town Planning and Development Act 1928
Transfer of Land Act 1893
Bushfires Act 1954

Institutional arrangements for catchment management

Waterways Conservation Act 1976
Waterways and Rivers Commission Act 1997
Water Boards Act 1904
Water Corporation Act 1995
Water Agencies (Powers) Act 1984
Water Services Coordination Act 1995
Metropolitan Region Town Planning Scheme Act 1959
Swan River Trust Act 1988
Agriculture Protection Board Act 1950
Western Australia Planning Commission Act 1985

Australian Capital Territory

Pollution/water quality Water Pollution Act 1984
Environment Protection Act 1997
Cotter River Act 1914

Resource & access ACT Water Resources Act 1998

ACT Water Quality Guidelines 1997 (before water resources Act)
Lakes Act 1976
Canberra Water Supply (Googong Dam) Act 1993

Ecosystem values Federal Environment Impact (Impact of Proposals) Act 1974

State Nature Conservation Act 1980
Environmental Protection Act 1997
Commissioner for the Environment Act 1993
Energy and Water Act 1988
Protection of Lands Act 1937
Public Parks Act 1928
Lakes Act 1976
Water Resources Act 1998
Environment Protection Act 1997
Land (Planning and Environment) Act 1991
Cotter River Act 1914
National Land Ordinance 1989

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 Catchment, land/water management Federal ACT (Planning and Land Management) Act 1988 with National
Capital Plan National Land Ordinance 1989
State Land (Planning and Environment) Act 1991 with The Territory
Plan 1993

Institutional arrangements for catchment management

Federal ACT (Planning and Land Management) Act 1988
State Land (Planning and Environment) Act 1991
ACT (Self Government) Act 1988

Murray–Darling Basin
Institutional arrangements for catchment management
Murray Darling Basin Act 1993 & mirror legislation in all States
Murray–Darling Basin Agreement (1997)
Murray–Darling Basin Ministerial Council (the decision-making forum)
Murray Darling Commission (the executive arm)

Country River management aspect Statutes

New Zealand Pollution/water quality Resource Management Act 1991

Soil Conservation and Rivers Control Act 1941
Environment Act 1986
Conservation Act 1987
Health Act 1956
Litter Act 1979

Resource & access Resource Management Act 1991

Fisheries Act 1996

Ecosystem values Resource Management Act 1991

Environment Act 1986

Catchment, land/water management Resource Management Act 1991

Land Drainage Act 1908
Reserves Act 1977

Institutional arrangements for catchment management

Resource Management Act 1991
Rivers Board Act 1908
Environment Act 1986
Local Government Act 1974

Canada Pollution/water quality Constitution Act

Resource & access various provincial legislation, except as above

Ecosystem values various provincial legislation

Catchment, land/water management Canada Water Act 1970

Canadian Environmental Assessment Act 1992

Institutional arrangements for Catchment Management

Constitution Act 1982
Canada Water Act 1970

USA Federal Pollution/water quality Federal Water Pollution Control Act 19561972
Water Pollution Control Act 1972
Compensation and Liability Act 1972
River and Harbors Act 1899

Resource & access Watershed Protection & Flood Prevention Act 1985
Water Resources Development Act 1986

88
 Ecosystem values North American Wetlands Conservation Act 1989
Emergency Wetlands Resources Act 1986

Catchment, land/water management National Wild and Scenic Rivers Act 1968
Coastal Zone Management Act 1972
Estuary Protection Act 1968
National Flood Insurance Act 1968
Coastal Wetlands Planning and Protection & Restoration Act 1990
Ramsar Convention 1972
National Environmental Policy Act 1969
Comprehensive Environmental Response, Compensation & Liability Act
1980, 1986
Food & Security Act 1985

USA California Institutional arrangements for catchment management

California Environmental Quality Act 1970
California Water Code Porter-Cologne Water Quality Control Act 1970
California Wild and Scenic Rivers Act 1972
California Coastal Act 1976
State Forest Practices Act 1974
Subdivision Map Act 1975
Surface Mining and Reclamation Act 1975
Senate Concurrent Resolution 1979
Urban Creek Restoration and Flood Control Act 1984
Wetlands Resource Policy California Riparian Habitat Conservation Act
1992
General Industrial Stormwater Control Act 1992
Streamed or Lake Alteration Agreement

89
APPENDIX 3. PEER REVIEW

River management and restoration : and institutional arrangements. Many of the

legislative frameworks influences that impact on riverine environments are
expressly permitted by government authorities that
Gerry Bates LLB (Hons), PhD (Birm) have no mandate to act in the best interests of the
environment; or if they do, in fact operate within a
I have been asked to peer review this draft report. In
narrow band of legal authority rather than ecological
particular I am asked to comment, firstly, on whether
reality, dictated by the legislative framework under
the report provides an integrated review and a valid
which they derive their powers. The first crucial
set of criteria for best practice legislative frameworks;
question therefore in redesigning legislative
and secondly on whether the individual topic reviews
approaches must be to determine how we deal with
provide the insights and understandings to form the
this in the legislative scheme.
basis of the overall framework criteria. The terms of
reference for the report, and method of approach for As a preferred approach to drafting legislation, I think
this review have been agreed with the client, LWRRDC, the fundamental objective must be to give decision
and are summarised in Part 1. makers a wide range of discretionary tools to enable
them to adopt preferred management approaches;
In general I would answer both questions in the
that is, the flexibility stressed in the report. We can be
affirmative. The consultants were initially selected on
prescriptive about what decision making should seek
the basis of their insights into the problems being
to achieve, and the criteria that must be taken into
addressed in the report and these insights and
account; but we should not be too prescriptive about
understandings have been demonstrated and well
directing what needs to be done and how it should be
developed in the report. The evidence accumulated
done. Legislation must enable the best management
during research justifies the selection of criteria for
decisions to be determined, implemented and
best practice legislative frameworks and the
enforced; although within a structure that directs a
observations and recommendations made in the
preferred approach.
report. More specific comments are made below. It
may be assumed that if I have not commented upon a Commonwealth role
finding, opinion, suggestion or conclusion that I am in
agreement with the relevance and thrust of that The report suggests firstly a national binding
finding or approach. framework for rivers and that the Commonwealth
should play a key and enhanced role. It is not entirely
clear whether these objectives are to be realised by
Whole-of-government approach legislation or policy development. The latter would be
in accord with the current concept of cooperative
The report correctly identifies the necessity for a federalism presently supported by Commonwealth
whole-of-government approach to resource and State governments; that the role of the
management as the key to achieving better riverine Commonwealth should be one of initiation,
management. The evidence clearly suggests and coordination of effort, and support. This approach
justifies an integrated catchment based approach. I has seen the development of a number of national
also agree with the fundamental assertion that the strategies for addressing environmental issues during
purpose of the legislative scheme should not just be the 1990s, including water reform. Under such an
to hold the bottom line (an approach that has clearly approach, the Commonwealth clearly relies on
failed to date) but should encompass steady implementation by the States of a negotiated agreed
restoration. Equally clearly, current legislative and national approach. As a preferred approach for
institutional arrangements generally do not recognise riverine management this has the advantage of not
nor support such an approach. How legislative and only reflecting current practice and political reality;
policy initiatives can deliver such an approach is but arguably, if standards of management are agreed
obviously the fundamental issue to be addressed. by all parties, they are more likely to be implemented
than if national standards were simply imposed by the
Some specific criteria for legislative initiatives will be
Commonwealth using its undoubtedly superior
discussed shortly. It seems to me however that before
constitutional powers. Any suggestion for national
the specifics of legislation can be addressed, we need
legislation is not likely to be supported; except
to consider whether, and if so how, current
perhaps to the extent that a body similar to the
institutional arrangements could deliver the preferred
National Environment Protection Council (NEPC)
approach. The report correctly identifies inter-agency
could be established to draw up proposed standards,
rivalry, lack of jurisdictional power, and narrow vision
guidelines, goals and protocols for riverine
as adverse influences arising from current legislative

90
management; for example the river management and Water Catchment Management Act 1998 the Sydney
restoration standards referred to in the report. These Catchment Authority will now regulate activities in
recommendations would then be incorporated into the catchment.
State legislation or policies.
If catchment management authorities are to be
Either way, implementation of river management created then their functions will need to be defined by
policies will depend upon State initiatives. legislation, and they will need to be invested with
powers by legislation. Even if this option of creating
The other significant role for the Commonwealth
separate agencies is rejected, the evidence suggests
recognised in the report is, of course, project funding,
that existing legislation and institutional arrangements
particularly through the Natural Heritage Trust. In this
simply are not adequate to achieve acceptable
regard note that the Commonwealth Auditor General
riverine protection and in any case legislative
has declared that it is impossible to evaluate the
amendment of some sort will be required.
effectiveness of Commonwealth funding of natural
resource conservation initiatives because of Given that adverse effects on catchments are caused
inadequate auditing of performance (Commonwealth by a wide range of activities, carried on or sanctioned
Natural Resource Management and Environment by a wide variety of government agencies, what are
Programs, Audit Report No. 36 1996–97 the essential legislative amendments that need to be
introduced? Are other government authorities
It follows from these comments that I do not consider
undertaking or authorising activities that might
that a Commonwealth interventionist approach, (if
adversely impact on catchments going to be required,
that means exercising legislative muscle, see p. 52 of
through legislative amendment, to undertake
the report) would be an appropriate model for
environmental investigations and have regard to
Australia. Rather that national standards should be
environmental considerations before making
introduced by way of a national strategy developed
decisions? The report indicates at page 62 (and see
and agreed to by all governments.
also page 85) that a critical factor is rationalisation of
State approaches legislation, and I agree with this assessment. Existing
legislation could be amended; but perhaps an easier
The suggested approach at state level seems to be for way to achieve desired objectives is to introduce
a single agency to take control of riverine concurrence requirements for any activity that might
management on the basis that the current division of significantly affect a catchment. All such proposals
legislative and management responsibilities leads to a would then need concurrence from the catchment
fragmented, inefficient and inconsistent approach to management authorities. The advantage of this
river management. This opinion is clearly supported approach is that it builds upon recognised procedures
by the research and by evidence of current practice. for concurrence in most jurisdictions; while the
The report seems to suggest that such a riverine concept of a ‘significant effect’ is also one that has
agency should be established for each catchment already been introduced and indeed judicially
rather than accord power to one single agency of examined, in most jurisdictions, for example in
central government; although inevitably such relation to environmental assessment of development.
catchment based authorities are likely to operate This can be accompanied by attempts to change
under the umbrella of a central government authority. culture within existing development oriented
Certainly there is no reason why catchment institutions of government; but reliance on this alone
management authorities could not be given blanket will not achieve the desired objectives in the short to
powers to control riverine management in each medium term. I think it is unavoidable that catchment
catchment, and I am in general agreement that the authorities will need regulatory powers of
powers of such authorities, or indeed the powers of concurrence for all activities that might significantly
any central government authority if that is the impact upon the achievement of their objectives.
preferred alternative approach, need to be radically
improved if the objects are to be achieved. In this
regard note that the NSW approach is not one that
Criteria for legislative reform
gives enforceable powers to the catchment
management authorities to manage catchments; they The Report correctly identifies the main criteria for
are very much advisory only. However the germ of directing a whole of government approach to riverine
such a legally empowered catchment management management. Some further suggestions in relation to
authority has now been introduced in NSW following specific issues are made below.
the public disquiet evidenced during the Sydney
Water crisis that inadequate catchment management The Crown
was the prime source of the problems affecting Legislation needs to specifically bind the Crown. The
Sydney’s drinking water quality. Under the Sydney general presumption at law is that the Crown is not
bound by legislation unless specifically, or by

91
necessary implication, so bound. All modern clean-up orders, as well as institute both civil and
environment protection legislation, for avoidance of criminal enforcement proceedings. Members of the
doubt, binds the Crown public may be empowered also to commence civil
and sometimes criminal proceedings to enforce
General purpose of legislation breaches or threatened breaches of the law.
These comments are intended to flesh out some of the • to a limited extent, to enable the merits, rather
criteria identified in the report. than the legality, of decisions of government
Modern environmental legislation can be seen to have regulators to be challenged by members of the
the following priorities: public. This right is generally restricted to the more
significant proposals for development, though
• to set up government regulatory structures for sometimes may extend to other activities of
environmental management that apply both to the environmental significance, such as potential harm
private and the public sector. These include the to endangered species
creation of regulatory authorities, such as
environment protection authorities; and the In a nutshell therefore environmental law is all about
creation of specialist courts or tribunals to hear prohibiting activities that might adversely affect the
both merits appeals and enforce the law. environment, but then allowing those activities to be
undertaken as long as permission is granted by a
• to invest government regulators with powers to
regulatory authority, and the conditions on which that
determine how to manage the environment and
permission is granted, are adhered to. In devising any
provide them with management tools to control
structure for riverine management it will probably be
environmentally significant activities and
easier to develop and adapt this recognised approach
encourage best practice environmental
rather than attempt anything new. The fact is that the
management.. This toolkit commonly includes the
objectives of riverine management can be achieved
ability to develop policies and plans, determine
within such a structure, even though significant
standards, issue licences, and implement and
amendment of and addition to the detail will be
enforce the law; supplemented, importantly, by the
required.
ability to offer economic incentives to encourage
better performance ‘beyond compliance’ and to Importantly, too, as the report emphasises, the last
achieve the objectives of legislation and policy decade of the twentieth century has been marked by a
instruments. The implementation and extent of move away from strict regulatory approaches as the
such powers may be to some extent guided by both only response to environmental management to an
the stated or implied objects of the legislation and approach that recognises also the importance of
by specific criteria for decision making contained encouraging voluntary action, supported by economic
within it. incentives and education. Economic incentives may,
for example, encourage polluters to go ‘beyond
• To require persons proposing to carry on
compliance’, that is perform better than their licence
environmentally significant activities to seek
allows; or encourage rural landholders, through
permission from government regulators. Depending
property or conservation agreements, to conserve
on the activity for which permission is sought, the
biodiversity by providing funds, for example for
permitting authority may be either central
fencing. Such incentive based approaches are usually
government (for example permits to harm
enshrined in and supported by legislation,; however
endangered species) or local government (for
they may not be. Government policy on control of
example development control). Often, a number of
greenhouse gases, for example, is in fact centred
permits for an activity are required from different
wholly on economic incentives for industry without
regulatory authorities for different aspects of a
supporting regulation. Tackling Australia’s arguably
proposal
biggest environmental and economic problem,
• To require activities of potential environmental dryland salinity, is also likely to follow such an
significance to be assessed before permission can approach. As the report also correctly emphasises,
be granted. This usually involves initial assessment regulatory action is but one aspect of a whole of
to determine the environmental significance of a government approach to riverine management.
proposal; together with more detailed assessment
of proposals declared or found to be of major What happens when different pieces of legislation apply
environmental significance. to the same activity?
• To provide that non-compliance with the law will As the report has correctly identified, the potential
attract liability for a range of administrative, exists for an exercise of statutory powers under
criminal and civil sanctions; and to enable legislation that requires no or minimal consideration
regulators and, to a more limited extent, members of environmental factors to come into conflict with
of the public, to enforce the law. Regulators may the desire to exercise protective powers under other
issue compliance and remediation notices, such as legislation that does enable protection. Although in

92
law there is no inherent conflict in having numerous Australia both the Electricity Act 1996 and the Gas Act
pieces of legislation apply to the same area of land or 1997 are expressed as not derogating from the
activity, duplication of legislative powers may provisions of the Environment Protection Act 1993.
significantly impede measures for desirable Similarly the Country Fires Act 1989 states that the
environmental management. provisions of that Act do not derogate from the
provisions of the Native Vegetation Act 1991.
Where different authorities are given jurisdiction in
respect of the same piece of land or activity, then the the legislation may state that its provisions prevail to
legislature is generally taken to have conferred the extent of any inconsistencies in other legislation.
parallel management responsibilities on those Sometimes environmental legislation is quite explicit
different authorities for their different spheres of that it will take priority; for example in relation to
activity, with the result that neither can exercise a pollution control and ‘environmental harm’. Where
power of veto on the other. For example the powers of two or more pieces of legislation make similar
energy or fire authorities to ‘do all things necessary or statements then the later in time will prevail in the
convenient to be done for or in connection with or event of conflict. Alternatively the legislation may
incidental to the performance of’’ statutory functions state for example that an instrument drawn up under
or in the exercise of statutory powers, such as acting that legislation will be of no effect if it conflicts with
to secure health and safety by removing vegetation, some other authorised statutory instrument; or there
could effectively override statutory powers to restrict may be a statutory instruction that ‘so far as
damage to native vegetation. This can obviously lead practicable’ a statutory instrument should be
to problems where a provision for conservation or consistent with other instruments.
protection comes up against a provision allowing
the legislation may state that nothing in the legislation
damage or destruction. But such an approach also
should be read as conferring immunity from the
means that where a number of statutory authorities
application of other laws.
are given powers to control and licence activities, that
any one of them may effectively veto a project or the legislation may state that its provisions are to
activity. apply despite any other law to the contrary, or
despite the provisions of any other Act or law. Powers
In the absence of clear statutory guidance as to
connected with public safety and removal of hazards
priority, the courts favour an interpretation which
may be accorded such superiority; for example the
treats each piece of legislation as laying down simply
power under the Roads Act 1993 (NSW) to fell trees or
another layer of control. There is a strong
other vegetation applies ‘despite any other Act or law
presumption that the legislature does not intend to
to the contrary’ if necessary to carry out road works
contradict itself; so the courts will favour an
or remove a traffic hazard. Similarly powers to order
interpretation which does not lead to conflict but
the destruction of native or feral animals under the
allows legislation to operate in parallel. Only in the
Livestock Act 1997 (SA) apply despite protection
event of irreconcilable conflict will the courts
under any other law.
determine that a later statutory provision must be
intended to override an earlier one; or that an explicit The legislation may nevertheless accept that disputes
statutory power must be intended to have priority may occur, particularly between public authorities
over a general provision. Many proposals for having different interests in land or resources, and
development for example require licensing not only provide a dispute resolution procedure; for example
from the appropriate local government authority, but disputes about clearance of vegetation around public
also require licences to harm endangered species or power lines, or with respect to works to be conducted
to emit pollution. If one authority refuses a licence for on public lands.
its particular sphere of activity this will effectively put
For avoidance of doubt, it would be better if the
an end to the project despite the fact that all other
legislative initiatives being suggested in this report
necessary licences may have been obtained. The
were accorded a clear expression of legislative
concurrence powers that I have recommended be
priority despite any provision of any other law.
given to catchment management authorities build
upon this approach. Objects of legislation (pages 29–32)
Where Parliament wishes to give some indication as to The report correctly identifies the objects clause as
how a piece of legislation will interact with other an important and integral part of the legislation. It has
legislation, various techniques may be employed to become increasingly common for modern
deal with potential duplication of powers. For environment protection and natural resource
example: legislation to specify the objects of the legislation.
the legislation may state that its provisions are in An objects clause is important because Interpretation
addition to and are not intended to derogate from Acts commonly state that in the interpretation of a
provisions in other legislation. For example in South provision of legislation, a construction that would

93
promote the purpose or object underlying the In New South Wales perhaps the strongest provision in
legislation shall be preferred to a construction that relation to the objects of legislation is contained in S
would not promote that purpose or object. Defining 12 of the Crown Lands Act 1989 (NSW) which states
the objects of legislation is therefore more than that the Minister is responsible for achieving the
simply an exercise in expressing the intent of the objects of this Act.
policy embodied in the legislation; it may guide the
The difficulties in enforcing such statutory
parameters of the exercise of legal powers under the
instructions as legally binding duties should not be
legislation. This is so in fact whether or not the
underestimated; but it is at least arguable that
objects are expressed in an objects clause or simply
instructions which require decision makers to ‘seek to
divined from the content of the Act in general.
further’, ‘pursue’ or ‘achieve’ objectives may be
Objects of legislation may be, and often are, expressed regarded as imposing stricter or more focused duties
simply in terms which declare the objects of the of compliance or achievement than a mere instruction
legislation or statutory authorities created by the to ‘have regard to’ those objectives. In formulating the
legislation; but they may go further and bind those objectives of any riverine management legislation
authorities or individual decision makers in some way then very careful consideration should be given to
to carrying out the principles expressed in such designing the objects clause
clauses. To what extent it is desirable to bind decision
makers to the expressed objects is a matter of policy Have regard to
for government to determine. Where objects are specified in legislation, then the
For example in South Australia, the requirement under most common instruction to statutory authorities is
the Environment Protection Act 1993 is that that they should ‘have regard’ to them or take them
into account or consideration in making decisions or
(t) he Minister, the Authority and all other bodies exercising their functions. The report gives some
and persons involved in the administration of examples of this (p. 30).
this Act must have regard to, and seek to further,
the objects of this Act Naturally the matters to which regard must be had
would be expected to influence decision making.
In Queensland the statutory requirement under s5 of However such a statutory instruction falls short of
the Environmental Protection Act 1993 appears actually requiring the statutory functions to be
slightly stronger: a person on whom functions or implemented or command decision making.
powers are conferred must perform those functions
or exercise those powers ‘in the way that best The Macquarie Dictionary definition of ‘regard’ is to
achieves the object of this Act’. ‘take into account or consider’. Gibbs CJ in the High
Court of Australia has said that a statutory instruction
Tasmania’s Resource Management and Planning to ‘have regard to’ means ‘to take those matters into
System contains perhaps an even stronger direction: account and to give weight to them as a fundamental
It is the obligation of any person on whom a element’ in making a decision; (R v Toohey ex parte
function is imposed or a power is conferred Meneling Station Pty Ltd (1982) 158 CLR 327, 333); but
under this Act to perform the function or exercise not to make it by reference to them exclusively;
the power in such a manner as to further the Minister for Immigration and Ethnic Affairs v Baker
objectives set out in Schedule 1. (1997) 24 AAR 457, 463-4. Gummow J remarked in
Turner v Minister for Immigration and Ethnic Affairs
Land Use Planning and Approvals Act 1993 (1981) 35 ALR 388, 392, ‘(m)ere assertion that regard
(Tas) s 8. has been had ... will not suffice, if it is demonstrated
The objectives set out in Schedule 1 include the that regard has not been paid in any real sense’. This
promotion of sustainable development, as defined. ‘real sense’ is more fully developed in Parramatta CC v
Hale (1982) 47 LGRA 319 which considered the (now
S 6(2)(a) of the South Australian Water Resources Act amended) obligation in s 90 of the Environmental
1997 contains a clause requiring all administrators Planning and Assessment Act 179 (NSW) to ‘take into
under the legislation to ‘act consistently with’ the consideration’ relevant matters. Moffitt P held that
object of the legislation. simply adverting to a matter and then rejecting it was
Under the Fisheries Management Act 1994 (Cth) s 3 not taking it into consideration. To do that a decision
‘(T)he following objectives must be pursued by the maker had to acquaint itself with such relevant
Minister in the administration of this Act and by material as would enable it to consider whether such
AFMA in the performance of its functions’. The matters were indeed material to the decision. In other
emphasis of the objectives is on efficient and cost words regard must be adequate not cursorily given.
effective fisheries management and preserving the Failure to have regard to or consider any statutorily
sustainability of fisheries resources. mandated factors may result in any consequent
decision being declared invalid.

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The question for any proposed legislation for riverine management approach, as suggested in the report,
management, as suggested in the previous section, is then very careful consideration needs to be given to
therefore: what obligations do you want to impose on determining the role of ESD in the decision-making
decision makers by way of an objects clause or process. I can provide a much more detailed analysis
mandated criteria for decision making? Depending of this topic if required.
upon how the obligations are expressed, various
levels of required commitment or performance may
be imposed.

Due weight
Where a number of factors are mandated for
consideration without any statutory indication as to
the priority or weight to be accorded to the various
factors, then the relevance of each of those factors is
a question of fact for the decision maker to determine.
For example although application of the principles of
ESD may be relevant to, even required of, decision
making it is but one factor to be taken into account
and does not outweigh all other considerations.
It is clear however that all statutorily mandated
criteria must be given due weight, rather than no
weight at all. Due weight may mean whatever weight is
due 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 making
in fact do not signify the relative importance of the
various factors. This in itself suggests that the objects
are to be regarded as carrying equal weight. In
designing riverine protection legislation therefore
careful consideration must be given to directing not
only the objects of legislation, and criteria on which
decisions must be made, but whether there are any
fundamental priorities that need to be signified.

Ecologically sustainable development (ESD)

The Intergovernmental Agreement on the
Environment recognises that implementation of ESD
requires an ‘effective integration of economic and
environmental considerations in decision-making
processes’ and that to promote this approach four
particular principles ‘should inform policy making and
program implementation’. These are the
precautionary principle; intergenerational equity;
conservation of biological diversity and ecological
integrity, and improved valuation, pricing and
incentive mechanisms. This approach has been
adopted as the focus of much state based legislation.
In my opinion there are serious deficiencies in the
translation of ESD into a legal criteria for decision
making. This is because ESD is usually mandated as
something to which regard must be had (see above) in
decision making and not as an objective that must be
pursued or fulfilled. In my opinion ESD is, or should
be, the fundamental objective and outcome of
decision making, not a factor to be balanced against
others in reaching a decision. In designing legislation
that seeks to incorporate ESD as a fundamental

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