All water taken and used from surface water and groundwater resources in South Australia is regulated under the Landscape South Australia Act 2019. Under the Act, rights in relation to the ability of a person to take and use water include:
water licences and water access entitlements
stock and domestic rights (where these uses are not prescribed)
Notice of Authorisation under s105 of the Act.
Water licences and water access entitlements
When a water resource is prescribed, the Minister for Environment and Water issues water licences which provide the holder with an ongoing right to take water. Licences may currently be issued as bundled or unbundled rights.
Once a person has a water licence with a specified volume or an entitlement share, they have a right to be allocated a volume of water. In some areas, a holder of a water access entitlement may also be entitled to carryover their water allocation to a future water use year.
Further information on unbundling water rights can be located here.
Stock and domestic rights
Landowners or occupiers who have access to water adjoining or on the land may be permitted to take water for stock and domestic purposes. For example this may include using water to water a domestic garden, for personal household use or for drinking water for stock not subject to intensive farming.
This right is defined under section 100(5) of the Landscape South Australia Act 2019 and a person does not require a licence or other authorisation to take and use water. This means that when a water resource is prescribed, water can continue to be taken for stock and domestic purposes without a water licence in the majority of cases.
In some cases, these stock and domestic rights are excluded when a water resource is prescribed and a water licence will be required to take water for stock and domestic purposes. For example, a water licence may be required to take water for stock and domestic purposes in the River Murray Prescribed Watercourse, the Northern Adelaide Plains and to take water from dams greater than 5ML in capacity in the Western Mount Lofty Ranges Prescribed Water Resources Area.
The Minister for Environment and Water may specifically authorise the taking and use of water from a prescribed water resource for a particular purpose via a notice of authorisation issued under section 105 of the Act (formerly s128 of the Natural Resources Management Act 2004). For example, general statewide authorisations apply for firefighting, road making and cultural water purposes while others apply specifically in respect of taking roof runoff or operating managed aquifer recharge schemes.
These rights are subject to the conditions of the notice of authorisation and may be ongoing or expire at a specified date.
Property status of water rights
Importantly, nobody owns water in South Australia. Rather, the Landscape South Australia Act 2019 provides rights in relation to the ability of a person to access, take and use water.
This means that riparian or common law rights to take water (e.g. water rights based on land ownership or possession) that may once have existed have been changed by the legislation.
Under the Act, water licences (including volumetric licences and water access entitlements) and water allocations are personal property that can be transferred independently of land.
These water rights may have a monetary value on the water market and may be able to be bought and sold, or traded. As personal property rights, it may be possible for these water rights to be leased, bequeathed and used as collateral.
Land and water rights
In South Australia, all water licences have been separated from land. While a person may choose to transfer a water licence as a part of an agreement to transfer land, there are separate transfer processes and approvals required to effect the transfer of the water licence.
Where water rights have been unbundled, other approvals to use water are attached to land and will transfer on a change in ownership of land to the new registered owner(s).
When conditions to use water are attached to a bundled water licence, these may be transferred on change in ownership of land as a part of a licence transfer application.
Importantly, in order to use water at a particular location in a particular manner a person may also need to have appropriate approvals (either in the form of a water resource works approval and/or site use approval, or conditions on a bundled water licence). Approvals may also be required to undertake certain activities that impact on water resources called water affecting activities.