Freshwater Protected Area Resourcbook

Appendix 4.
Freshwater biodiversity conservation: State programs

Edited (updated) extract from Nevill 2001.
This section takes a brief overview of progress made in Australian States to protect freshwater biodiversity, both through the creation of inventories and reserves, and though “best practice” management of modified freshwater ecosystems. An issue of particular importance relates to State programs aimed at protecting biodiversity in the face of the cumulative impacts of water infrastructure development (such as dams, diversions, abstractions, drains and levee banks).
A comprehensive description of State programs would require a separate paper and considerable additional research. The discussion below focuses on the key issues relating to the management of freshwater biodiversity in the context of the effects of water infrastructure development. The section is, to some extent, incomplete and lacking in consistency.

A4.1 Overview

A4.1.1 Water legislation – historical overview

In general, environmental legislation operates by imposing blanket prohibitions on certain classes of activities, then establishing provisions (such as the issue of licences or permits by a government agency) which allow those activities under defined conditions. In the water area, this can be achieved by prohibiting the use, degradation or obstruction of water flows, then making specific provision for licences covering water allocation and use, and the construction of dams, bores, agricultural drains, and levee banks. Water pollution may also be controlled³¹⁰.
Water legislation operating in Australian States prior to the mid-1980s followed this general pattern. Typically, legislation often included provision for the establishment of agencies to carry out certain functions - often at a local or regional level. These agencies were usually called Boards, or Trusts, and dealt with the supply of water (for urban, agricultural or industrial use) as well as the drainage of land for agriculture, or the development of irrigation or hydro-electric schemes. All Australian water legislation current in the 1980s contained provisions for the establishment, governance and funding of such Boards.
Pre-modern water legislation typically treated surface waters and groundwaters as distinct resources, and failed to acknowledge the obvious interconnections between surface aquifers and rivers. For example, until the recent Water Management Act was passed by the Tasmanian government in 1999, groundwater and surface water flows were managed by different State government departments, under different pieces of legislation and policy, for different objectives and within different government programs.
During the 1980s, the degradation of many important Australian rivers prompted concerns regarding the need for more holistic or integrated water management, and New South Wales was the first of three States to introduce legislation to foster integrated catchment management (referred to as Total Catchment Management in the NSW Catchment Management Act 1989).
During the 1990s, the reform of water legislation has seen a number of important new elements appear in legislation:

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  the use of objects³¹¹ and principles³¹², and general duties linked to these;
  
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  the use of tiered planning and management frameworks³¹³;
  
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  integration of the management of both surface and linked groundwaters³¹⁴;
  
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  recognition of the need for adaptive management (the quality assurance principle)³¹⁵;
  
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  recognition of the need to control the harvesting of surface flows outside watercourses³¹⁶;
  
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  the water legislation in all jurisdictions now recognises the need to evaluate and provide for environmental flows.
  

Other more progressive developments have occurred in a few jurisdictions:

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  Victoria, through the Heritage Rivers Act 1992, recognised the need to protect rivers of special or representative significance;
  
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  Tasmania, through the State's Resource Management and Planning System, has adopted a whole-of-government approach to natural resource management;
  
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  the need to manage cumulative effects has been explicitly recognised in the NSW Water Management Act 2000, and in Queensland's Environmental Protection (Water Quality) Policy 1995;
  

A4.1.2 State water frameworks – overview of current legislation and policy

All Australian States have statutes focusing on water management, and three have statutes to support integrated catchment management programs³¹⁷:

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  NSW: the Catchment Management Act 1989
  

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  Victoria: the Catchment and Land Protection Act 1994; and
  

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  SA: the Water Resources Act 1997 (which subsumed the Catchment Management Act 1995).
  

Queensland, WA and the ACT are developing (non-statutory) policy and funding frameworks for catchment management programs, which will be, at least to some extent, effective in promoting catchment-based natural resource management. The poorly planned ICM programs of Tasmania and the NT may have little beneficial effect.
Although no Australian State has established a CAR freshwater reserve system, it is important to acknowledge the value of existing terrestrial reserves. These reserves have been established to protect places of special importance (recreational, scientific and cultural), or to protect CAR terrestrial ecosystems (through the RFA and NRS programs). Where such terrestrial reserves incorporate freshwater ecosystems, and where they are sufficiently large to protect the catchments of these ecosystems, they provide good protection. The best example is provided by Tasmania’s extensive World Heritage Area in the south-west of the State, which is sufficiently large to virtually engulf (and thus protect) the western-most two of the State’s nine IBRA regions.
Several States have also developed legislation seeking to protect threatened species. The NSW legislation, for example, has the capacity, through the designation of “critical habitat” to provide limited protection over areas of private land. Public land, of course, tends to be more readily protected by State programs.
All States have begun developing environmental flow programs, under the CoAG water reform agenda (see above). NSW, for example, has implemented environmental flow provision in all regulated³¹⁸ rivers, which has reduced historical usage by around 5 to 6% in most of these rivers³¹⁹. However, in heavily-used river basins, water allocations have already eaten well into environmental flows, and winding allocations back in a substantial way has obvious social, economic and political difficulties.
How do State programs rate when compared with Principle 8 of the national biodiversity strategy? Principle 8 contains the two cornerstones of biodiversity protection: reserves, plus “sympathetic” management of modified ecosystems.
As already mentioned, only one State (Victoria) has made an attempt to establish a system of representative freshwater ecosystem reserves, and for this reason the Victorian situation is discussed in more detail below. The slow progress in implementing national commitments to such reserves (dating back to 1982) can partly be explained by apparent oversights in the national biodiversity strategy (and the earlier National Strategy for Ecologically Sustainable Development) already discussed. Currently, no Australian State has a comprehensive inventory of freshwater ecosystems, including both flowing and still waterbodies, and incorporating useful classifications of ecosystem ‘type’, as well as value and condition indices.
By way of overview, it should be said that, in some areas, considerable progress has been made. In partial fulfillment of international Ramsar commitments, all States have developed wetlands inventories (although all, to a lesser or greater degree, remain unfinished) and a wetlands directory exists at the national level which identifies particularly important wetlands (discussed above). Most States have (or are developing) wetland strategies. Most of these strategies rely heavily on voluntary conservation and education programs, although some (in NSW, for example) seek to protect wetlands through prescriptive land-use planning procedures. Such procedures rely, of course, on inventories or maps of those wetlands which must be taken into account by planning authorities.
Most States have, or are developing, biodiversity strategies (Queensland being the notable exception) and recent Commonwealth legislation seeks to strengthen planning actions related to developments which may affect threatened species (discussed above).
In terms of the assessment of the environmental effects of infrastructure developments, all States have environmental assessment procedures, active through land-use planning mechanisms, which seek to identify and ameliorate the environmental effects of proposed infrastructure developments (such as dams, for example)³²⁰. All of these procedures contain specific exemptions covering small developments deemed to have minimal impact, and while this makes sense in terms of the efficiency of the overall planning system, it introduces major difficulties in terms of managing the cumulative effects of small-scale incremental development (such as levee banks or farm dams, for example). In turn, various strategies have been developed by different States to overcome this problem. However, due partly to the absence of comprehensive inventories of freshwater ecosystems in each State (and the strategic programs such inventories could allow³²¹), and partly due to difficulties inherent in planning systems (such as the tyranny of small decisions, for example³²²) these strategies remain substantially ineffective at this point in time.
Two further classes of legislation should be mentioned. Some States have developed environmental impact assessment procedures relating specifically to large projects (of 'State significance') - very large dams, for example. Additionally, all States have developed environmental impact procedures relating specifically to proposals affecting the water cycle (such as dams of a variety of sizes, or major irrigation proposals). However, again partly due to the lack of State-wide inventories of freshwater ecosystems and associated strategic conservation plans, such legislation has not been particularly effective in protecting freshwater biodiversity. These procedures do, however, provide a basis on which a more effective framework (based on integrated catchment management principles) could be built.
Differences and similarities

Freshwater biodiversity programs in different States have many common features. As outlined above, strategic planning instruments tend to fall into four groups: wetland, river, and biodiversity strategies, and water management frameworks. A few States (eg: NSW) have groundwater policies encompassed within broader water framework strategies (see below).

In spite of the inheritance many of these programs owe to the national biodiversity strategy, there is a general absence of any acknowledgment that the natural world possesses intrinsic values (ie: values other than those related to humans). Again, in spite of their inheritance, few strategies explicitly list the precautionary principle amongst their key operating principles, even though most post-date the National Strategy for Ecologically Sustainable Development 1992.
Whilst most do deal with the need for representative reserves (acknowledging Principle 8 of the national biodiversity strategy), and most do deal with the need for comprehensive ecosystem inventories, the reality is that these programs are either under-funded or not funded at all in most States.
Few State strategies discuss the difficulties in dealing with the cumulative effects of incremental water infrastructure development, even though the example posed by the Murray-Darling Basin provides such a stark reminder of the results of this incremental process. Those State water management frameworks which have developed catchment management programs outside statutory frameworks (like Tasmania and the Northern Territory, for example) will - in my view - find cumulative effects exceptionally difficult, if not impossible, to manage. The lack of ‘standing’ of these voluntary processes saps them of authority and credibility.
Another disappointing feature of most recent State water legislation³²³ is the perpetuation of the anachronistic concept of drainage agencies: publicly funded organisations which, in the past, have been responsible for massive wetland destruction in the name of agricultural development. I acknowledge that drainage functions are a necessary part of irrigation schemes, but here they should stay. There is no place today for bodies simply dedicated to draining land.