Protecting habitats

Fish habitats in NSW are protected via:

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

The department's jurisdiction including regulating activities that can impact on fish habitats:

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.

The department's jurisdiction

The department has jurisdiction 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.

Code of Practice

Roads and Maritime in cooperation with the NSW Fisheries have prepared a Code of Practice for Minor Works in NSW Waterways. The Code simplifies the statutory consultation process required under the Fisheries Management Act for certain dredging and reclamation actions that have been considered by both agencies to be of low risk to native fish and key fish habitats.

The Code:

Defines and identifies those dredging and reclamation works which can be undertaken without consultation with NSW Fisheries and those works that are not covered by the Code and will continue to require ongoing consultation with NSW Fisheries in accordance with the Fisheries Management Act.

The Code specifies the safeguards that must be used for all minor dredging and reclamation works including adherence to the Roads and Maritime Environmental Procedure for Routine and Minor works and states the time frames for which the Code is intended to apply.

Livestock management and works on riverbanks in coastal and inland areas

Livestock grazing on the foreshore or a river or other waterway can contribute to bank erosion and loss of valuable paddock soils to the river. Livestock manure can also impact on downstream water quality and the health of others using the waterway for recreational (swimming) and commercial use (e.g. oyster production).

Recent amendments to the Fisheries Management (General) Regulation 2010 now make it illegal for livestock of any type to graze and trample marine vegetation (including saltmarsh and mangroves) on public water land (e.g. Crown land or Council land). A maximum penalty of $110,000 for an individual or $220,000 for a Corporation applies.

Works on or near riverbanks can have unforeseen consequences such as destabilising the bank, blocking the movement of fish, or damaging aquatic habitats. As waterways are fragile environments, both State and local governments have an interest in ensuring that any works undertaken in or around waterways are done appropriately.

Examples of such works include:

  • bank stabilisation works
  • constructing jetties, pontoons, boat ramps and other waterfront infrastructure
  • constructing, repairing or modifying waterway crossings (e.g. fords, causeways, culverts, bridges)
  • modifying or repairing existing, or building new weirs, floodgates or levee banks
  • removing or relocating large woody debris (snags), gravel beds, rocks or aquatic vegetation
  • harming or shading marine vegetation (including saltmarsh, mangroves, seagrass or seaweeds)
  • dredging activities for navigation or for extraction of sand, gravel or other materials for private or commercial use
  • undertaking reclamation works by placing any sort of fill material on the bed or banks of a waterway or areas which are inundated by the highest tides.

By obtaining the required approvals, these sorts of works can be adequately assessed before they are undertaken to ensure that the river’s values are protected and the works are undertaken in an environmentally sensitive manner.

The need to obtain approvals generally applies regardless of the ownership of the land. Privately owned land is not exempt.

How can I do the right thing?

It is your responsibility to determine what approvals are required and obtain permission from the relevant authorities for any proposed works before any riverbank work commences. The best way to do this is to talk to your local Council first before you undertake any works or contact your regional Aquatic Habitat Protection Unit. These works are often assessed as ‘integrated development’ by your local Council and require approval from other State agencies, including our department, before Council can approve the works.

Penalties of up to $110,000 for individuals or $220,000 for corporations can apply if works are undertaken without the necessary approvals. We can also issue remediation orders to individuals or corporations to remediate a site where damage has occurred at their cost.

See also Living and working on a riverbank

Development approvals

Under the 'integrated development' proisions of the NSW Environmental Planning and Assessment Act 1979, the department 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, the department's Council and Developer Toolkit and the department's role in integrated development.

Development activities requiring a 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 Biodiversity Conservation Act 2016, the Environmental Planning and Assessment Act 1979 (NSW) and the Local Land Services Act 2013. The Local Land Services 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.

Mapping of Key Fish Habitats

One of the objectives of the Fisheries Management Act 1994 is to 'conserve key fish habitats'.

Not all aquatic habitats are important for the conservation of fish populations and the sustainability of fishing activities. Examples include irrigation channels and drains, urban ponds, sewage and salt evaporation ponds etc. Similarly, many of the 'streams' and 'lakes' depicted on topographic maps only hold water for short periods of time following rainfall.

In 2007, the department embarked on a statewide project to define and identify 'Key Fish Habitats' – those aquatic habitats that are important to the sustainability of the recreational and commercial fishing industries, the maintenance of fish populations generally and the survival and recovery of threatened aquatic species.

A policy definition of the term 'Key Fish Habitat' (KFH) was developed to guide the compilation of maps. Essentially KFH was defined to include all marine and estuarine habitats up to highest astronomical tide level (that reached by 'king' tides) and most permanent and semi-permanent freshwater habitats including rivers, creeks, lakes, lagoons, billabongs, weir pools and impoundments up to the top of the bank. Small headwater creeks and gullies (known as first and second order streams), that only flow for a short period after rain are generally excluded, as are farm dams constructed on such systems. Wholly artificial waterbodies such as irrigation channels, urban drains and ponds, salt and evaporation ponds are also excluded except where they are known to support populations of threatened fish or invertebrates.

Maps were compiled on the basis of local government areas. Draft maps were field checked by the department’s regionally based Fisheries Conservation Managers and amended as necessary.

Maps have also been developed showing estuarine habitats.

Policy definition of Key Fish Habitats

One of the objectives of the Fisheries Management Act is to '... conserve key fish habitats ...'. However the term 'key fish habitat' is not defined.

The following is an attempt to define what is meant by the term, to assist departmental staff and members of the public achieve the objectives of the Act and help ensure that the legislation can be applied consistently across the state.

In understanding this definition it is important to remember that the term 'fish' includes all aquatic invertebrates such as yabbies, shrimps, oysters, mussels, insect larvae, beach worms, sea stars, jellyfish etc.

The approach taken has been to try to approach the definition from opposite directions and define what is, and what is not, included and hopefully leave nothing or very little in between. However there is a proviso that habitats that might otherwise be excluded, but are known or likely to be habitat for listed threatened species, populations or communities are always included.

What is included?

1. Oceanic, bay, inlet and estuarine habitats up to the level defined by High High Water Solstice Spring tides (so called 'King tides' or Highest Astronomical Tide).

2. Intermittently Closing and Opening Lakes and Lagoons (ICOLLs) up to the level at which they would naturally break out to the sea (which may be 2 or 3 metres above mean sea level).

3. Permanently flowing rivers and creeks including those where the flow is modified by upstream dam(s), up to the top of the natural bank regardless of whether the channel has been physically modified.

4. Intermittently flowing rivers and creeks that retain water in a series of disconnected pools after flow ceases including those where the flow is modified by upstream dam(s), up to the top of the natural bank regardless of whether the channel has been physically modified.

5. Billabongs, lakes, lagoons, wetlands associated with other permanent fish habitats (eg permanent rivers and creeks, estuaries etc).

6. Weir pools and dams (eg Hume, Blowering, Copeton, Menindee etc), up to full supply level, where the weir/dam is across a natural stream channel or waterway.

7. Flood channels or flood runners that may normally be dry but would be used by fish to move/migrate across or along floodplains between habitats during high flow events.

8. Mound springs

9. Any waterbody, regardless of whether or not it may be listed under the heading 'What is not included?' below, if it is known to support or could be confidently expected (based on predictive modelling) to support threatened species, threatened populations or threatened communities listed under the provisions of Part 7A of the Fisheries Management Act 1994.

What is not included?

1. Unmapped gullies and first and second order streams (based on the Strahler method of stream ordering) as determined from the largest scale topographic map produced for the area concerned (i.e. use 1:25,000 rather than 1:50:000 and use 1:50:000 rather than 1:100,000 and include all depicted streams). Note that this methodology only applies to 'gaining systems' – those where streams are coming together and becoming progressively larger.

2. Farm dams constructed on unmapped gullies and first and second order streams.

3. Purpose built irrigation and other water supply channels and off-stream storages.

4. Irrigation, agricultural or urban drains.

5. Urban ponds including water pollution control ponds and detention basins.

6. Sections of streams that have been concrete lined or piped (but not including where an otherwise natural stream passes through culverts).

7. Purpose-built salt evaporation ponds or basins.

8. Purpose-built aquaculture ponds.

9. Intermittent lagoons or wetlands filled from localised runoff and not otherwise hydrologically connected to other permanent habitats such as rivers, creeks, estuaries and ocean.

10. Canal estates.