Fisheries Management Act - Objectives
The objectives of the FMA are to conserve, develop and share the fishery resources of NSW for the benefit of present and future generations, and in particular:
a) to conserve fish stocks and key fish habitats,
b) to conserve threatened species, populations and ecological communities of fish and marine vegetation,
c) to promote ecologically sustainable development, including the conservation of biological diversity,
and, consistently with these objectives:
d) to promote viable commercial fishing and aquaculture industries,
e) to promote quality recreational fishing opportunities,
f) to appropriately share fisheries resources between the users of those resources,
g) to provide social and economic benefits for the wider community of NSW, and
h) to recognise the spiritual, social and customary significance to Aboriginal persons of fisheries resources and to protect, and promote the continuation of, Aboriginal cultural fishing.
To meet the primary objectives, Part 7 of the FMA deals with the protection of aquatic habitats and Part 7A deals with threatened species conservation. Part 7 commonly applies to “integrated development” proposals as defined by the Environmental Planning and Assessment Act 1979 (EP&A Act). However, there are other activities that may not require development consent under the EP&A Act but may still require a permit under Part 7 of the FMA from DPIRD Fisheries.
Fish passage legislation
Within the FMA, the "Installation and operation of instream structures" is listed as a Key Threatening Process to NSW native fish.
The FMA includes provisions to ensure the maintenance and restoration of fish passage as part of the construction of new, or the modification of existing, in-stream structures (s218 and s219).
Under s218 a person (other than a public authority) must give the Minister notice in writing at least 28 days before constructing, altering or modifying any dam, weir, floodgate or similar structure. Under s218 the Minister may require a person, private organisation or public authority to provide fish passage where any dam, weir, floodgate or similar structure is constructed, altered or modified. The Minister also has the power to order that fish passages, such as a fishway, be repaired if they are not adequately allowing fish movement in accordance with the original design criteria. The Minister’s functions in s218 of the FMA have been delegated to various senior positions within DPIRD Fisheries.
Under s219 works within a waterway that may result in the temporary or permanent blockage of fish passage will require a permit from DPIRD Fisheries. Blockages to fish passage may include the construction of physical barriers (e.g. dams, weirs, regulators, road crossings, floodgates, coffer dams, silt curtains or nets), the presence of hydrological barriers (e.g. alteration of the gradient of the stream bed or increases in water velocities), or the creation of behavioural barriers (e.g. where water quality or temperature is altered deterring fish passage for some or all native fish species).
In-stream works that involve dredging or reclamation to remove, decommission or repair an existing structure may require a permit or consultation with the Minister under s199-201 of the FMA. Under s199 of the FMA, the Minister is required to be consulted over any dredging or reclamation works carried out, or proposed to be authorised, by a public authority (other than a local government authority).
Under ss200 and 201 a permit is required for dredging or reclamation work carried out by a local government authority or person respectively, unless these works are authorised by a relevant public authority (other than a local government authority) or under the Crown Lands Act 1989.
If works are carried out in contravention of these sections, the Minister may, under s203, order remedial works to be carried out to rectify any damage caused to fisheries or fish habitat.
Policy and guidelines for 
fish habitat conservation and management (update 2013)
This document outlines policies and guidelines aimed at maintaining and enhancing fish habitat for the benefit of native fish species, including threatened species, in marine, estuarine and freshwater environments.
The Policy and Guidelines (2013) aims to help developers, their consultants, government and non-government organisations to ensure compliance with legislation, policies and guidelines as they relate to fish and fish habitat conservation and management, including fish passage.
Section 4 of the Policy and Guidelines (2013) further describes the legislation, policy and guidelines around instream structures and fish passage including Table 3 which provides the minimum preferred crossing designs for waterway crossings as related to waterway classification (i.e if the waterway is major or unlikely key fish habitat).
Development assessments
As part of administrating the Fisheries Management Act 1994 and its associated Regulations, DPIRD Fisheries acts as a Referral Authority on matters that relate to obstruction of fish passage; dredging or reclamation works; threatened species, communities or populations; marine vegetation (seagrass, mangroves and saltmarsh); aquaculture operations; and marine parks or aquatic reserves. As a Referral Authority DPIRD Fisheries may be involved in the integrated development approvals process, concurrence and referrals.
To help navigate the above processes, the Department of Planning, Housing and Infrastructure has put together a Development referrals guide.
Integrated development approvals
Integrated development seeks to link development consent for matters under Part 4 of the Environmental Planning and Assessment Act 1979 (EP&A Act) with any associated approval(s) required under other legislation. It is intended to avoid the situation where a proposal is approved by one approval authority (such as a local council) but is subsequently refused permission from another approval authority (such as a State Government agency).
The assessment of Development Applications (DAs) is primarily the responsibility of local councils. Proposals received through the DA process that include actions which may impact fish or fish habitat are passed onto DPIRD Fisheries for guidance.
Concurrence
Concurrence is when agreement from a Referral Authority must be obtained before the council can determine a DA. Concurrence requirements are typically identified in environmental planning instruments, but also exist in some Acts. Concurrence may therefore be sought from Councils through the DA process or from other government agencies through their legislation.
Councils must refer integrated DAs to the relevant Referral Authority to obtain what are known as their ‘general terms of approval’ (GTAs) before determining the DA. GTAs are an "in-principle" approval from a Referral Authority and list the terms and conditions that, if met, will allow the applicant to obtain an approval under the Act.
A council may still refuse to grant development consent, even if GTAs are issued. If the referral authority refuses to issue GTAs, the council must refuse the DA.
If GTAs are granted, the approval issued by council must be consistent with them.
If development consent is granted under the EP&A Act, an applicant must then apply for an approval from the relevant Referral Authority, which may be granted subject to conditions consistent with the development consent.
Following referral or concurrence, permits under the FMA are still required for proposals including dredging and reclamation, the placement of any structure or material within a waterway that will obstruct or block the free passage of fish (such as a weir, dam or road crossing), or involve the alteration of existing structures.
Referrals
In addition to the above, consultation or advice may be sought from the Referral Authority where a DA may have potentially impact off-site. This may occur at sites located adjacent Key Fish Habitat such as Coastal Wetlands or where threatened species are present. Similarly, guidance may be sought from other government agencies on activities that are managed under the FMA such as dredging and reclamation (s199 FMA) and obstruction to fish passage (s218 and s219 FMA).
Controlled Activity Approvals (CAAs)
Controlled activities are works carried out within waterfront land. Approvals are provided under the Water Management Act 2000 which is managed by NSW Department of Climate Change, Energy, the Environment and Water (DCCEEW) – Water.
Waterfront land includes the bed of any river, lake or estuary, and the land within 40 metres of the riverbanks, lake shore or estuary mean high water mark. Some activities on waterfront land can cause negative impacts to fish and fish habitats such as altering water flow or water quality and affecting environmental connectivity and diversity.
The purpose of a controlled activity approval is to ensure that works on waterfront land are carried out in a way that avoids or minimises negative impacts to waterways and other water users. Where a DA is required from council, proposed activity will be referred to DCCEEW – Water for assessment and the issue of GTAs during the integrated development assessment process.
If development consent is granted by council, an application must be made directly to DCCEEW – Water to obtain a CAA.
DCCEEW's Water Assist Tool will provide further information and help with submission of a Controlled Activity Approval. Exemptions can be determined using their CAA exemption tool.