Fish habitats in NSW are protected via:

• legislation regulating what activities can occur and where, primarily the Fisheries Management Act 1994, although other legislation also plays a role
• protection of specific areas, such as Marine Protected Areas and Intertidal Protected Areas.

NSW DPI is also involved directly in a range of whole-of-government natural resource management programs which influence the health of fish habitat by enhancing catchment and river health, coastal management and water management, including:

• Land Use Planning - NSW DPI works closely with local government and other state agencies to ensure aquatic habitats are conserved and rehabilitated in future land use planning decisions. NSW DPI has developed a Council and Developer Tool Kit.
• The NSW Water Reforms process - NSW DPI plays an active role in water management planning processes and the implementation of the NSW Weirs Policy.
• Catchment Management - NSW DPI works closely with other state agencies, local councils, community groups and regional Catchment Management Authorities to ensure aquatic habitats are protected and rehabilitated. Each CMA region has its own natural resource management targets as part of its Catchment Action Plan. These can be found on each CMA’s website.
• • Find your region’s CMA (www.cma.nsw.gov.au)
• Coast, Estuary and Floodplain Management Planning - NSW DPI is an active participant in the development and implementation of these regional planning processes.

Fisheries Management Act 1994

The primary Act governing the management of fish and their habitat in NSW is the Fisheries Management Act 1994 ('FM Act').

The purpose of the Act

NSW DPI's jurisdiction

Development approvals

Development activities requiring a permit

The purpose (“objects”) of the FM Act

The FM Act aims 'to conserve, develop and share the fishery resources of the State for the benefit of present and future generations and, in particular to:

• conserve fish stocks and key fish habitats, and
• conserve threatened species, populations and ecological communities of fish and marine vegetation, and
• promote ecologically sustainable development, including the conservation of biological diversity, and, consistently with those objects:
• promote viable commercial fishing and aquaculture industries, and
• promote quality recreational fishing opportunities, and
• appropriately share fisheries resources between the users of those resources, and
• provide social and economic benefits for the wider community of New South Wales.'

To meet these objectives, Part 7 of the FM Act outlines legislative provisions to protect fish habitat and Part 7A outlines provisions to conserve threatened species of fish and marine vegetation and their habitat.

Definition of “fish”

Under the FM Act, fish means “marine, estuarine or freshwater fish or other aquatic animal life at any stage of their life history (whether alive or dead)” and includes.

• oysters and other aquatic molluscs, and
• crustaceans, and
• echinoderms, and
• beachworms and other aquatic polychaetes.

The definition also includes any part of a fish, but does not include whales, mammals, reptiles, birds, amphibians or other things excluded from the definition by the regulations.

NSW DPI's jurisdiction

NSW DPI has jurisdication over all fish and marine vegetation in State waters.  This includes permanent and intermittent freshwater areas and 'water land' below the highest astronomical tide in tidal areas, extending to three nautical miles offshore (or beyond where other legislative powers of the State apply). 'Water land' is defined under the FM Act as land submerged by water, whether permanently or intermittently or whether forming an artificial or natural body of water and includes wetlands and any other land prescribed by the regulations as water land.

Development approvals

Under the 'integrated development' proisions of the NSW Environmental Planning and Assessment Act 1979, DPI is an 'approval body' for local development that requires one or more of the following permits under the FM Act:

• Section 144 - aquaculture permit , ie cultivating fish or marine vegation for sale / commercial purposes
• Section 201 - permit to carry out works of dredging or reclamation, ie any escavation within or filling of water land
• Section 205 - permit to harm (cut, remove, damage, destroy, shade etc) marine vegetation (mangroves, seagrass and seaweeds)
• Section 219 - permit to obstruct the free passage of fish.

More information about these activities requiring a permit, NSW DPI's Council and Developer Toolkit and the Department's role in integrated development.

Development activities requiring a DPI permit

Some examples of integrated developments that may require one of the permits listed above include:

• fish hatcheries or grow-out facilities, including yabby farms, grow-out ponds, 'fish-out' facilities and oyster farms, but not including aquariums for display or pet shops
• jetties - where part of the structure includes a rock or concrete structure or revetment (ie reclamation) or where marine vegetation may be harmed during construction, for example, by establishing piles, dredging an access channel, the deck results in shading of marine vegetation
• boat ramps and boat sheds (ie reclamation)
• bridges, culverts, causeways (both piped and unpiped) or other road crossing of waterways (temporary or permanent) which require placing material on the bed of the waterway (ie reclamation) and/or which may obstruct the free passage of fish
• dams, weirs, floodgates or levee banks (ie obstruction of fish passage)
• marinas, ie dredging for access, reclamation for a wall, harming marine vegetation
• dredging navigation channels, whether for maintenance of an existing channel or construction of a new one, or to open an intermittently-opening waterway
• dredging for winning sand, gravel or other materials for private or commercial use
• channelisation, relocation or realignment of waterways
• installation of pipelines across a waterway involving dredging or reclamation
• installation of stormwater outlets involving reclamation of the bed or bank of a waterway
• stream bed or bank stabilisation works involving dredging or reclamation to halt erosion
• foreshore stabilisation (eg seawalls, retaining walls) where 'water land' may be filled or marine vegetation may be harmed
• boardwalks or walking tracks that cross intertidal areas, mangrove wetlands, seaweeds or seagrasses
• development that may affect marine vegetation by cutting, removing, destroying, transplanting, shading or damaging in any way, eg trimming mangroves.

Other legislation

Other Acts that apply to aquatic habitats and species include the Threatened Species Conservation Act 1995, the Environmental Planning and Assessment Act 1979 (NSW) and the Native Vegetation Act 2003. The Native Vegetation Act does not apply to mangroves, seagrasses and other marine vegetation as these are protected under the Fisheries Management Act.

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC) is a Commonwealth Act which provides for the protection of the environment and promotes ecologically sustainable development. This Act covers World heritage and National Heritage places, wetlands of international significance, listed threatened species and communities (which may not be the same as are listed under the NSW Threatened Species Conservation Act or the Fisheries Management Act), listed migratory species and the marine environment.

• NSW Fisheries Management Act (www.legislation.nsw.gov.au)
• Provisions of the EPBC Act (www.ea.gov.au)
• Information about the Threatened Species Conservation Act (www.nationalparks.nsw.gov.au)