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Water Management (General) Amendment (Exemptions for Floodplain Harvesting) Regulation 2020

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Cate Faehrmann
NSW Greens MP
22 September 2020

On behalf of The Greens I support the motion to disallow the Water Management (General) Amendment (Exemptions for Floodplain Harvesting) Regulation 2020. In 2018 the South Australian royal commission described floodplain harvesting as "one of the most significant threats to water security in the Northern Murray‑Darling Basin to both licence holders and downstream states." Yet, with a stroke of the Minister's pen, floodplain harvesting works right across the New South Wales northern basin were legalised by this regulation, without any consideration for downstream communities, rivers and wetlands or for any obligations under water sharing plans or the Murray‑Darling Basin Agreement.

Floodplain harvesting is the capture and use of water across a flood plain. The inquiry, of which I was a member, made clear that the regulatory framework for floodplain harvesting in New South Wales is incredibly opaque. It is so opaque that it appears that nobody, including WaterNSW, has a clear understanding of whether the capturing of flood plain water is legal, how it is accounted for and how much water is captured during any flood event. The Environmental Defenders Office submitted to the inquiry that that is partly because the regulation of the practice spans the Water Act 1912 and the Water Management Act 2000 along with a number of water sharing plans, regulations, floodplain management plans and gazetted notices.

The regulation was made on 6 February 2020 and provided an exemption from the requirement under the Water Management Act 2000 to hold a water access licence to take water from a water source for the purpose of floodplain harvesting. To understand why the halls of this place are filled with powerful water lobbyists today, it is important that we understand how much is at stake as a result of the regulation. Over the past 25 years irrigators have been able to construct industrial‑scale levees, banks, channels and dams to capture floodwaters in the New South Wales northern basin and its complex network of rivers, streams, flood plains and wetlands. In 2008 the New South Wales Labor Government promised to license floodplain harvesting. However, no licences have been issued since then. Regardless, today 1,400 private dams and storages are registered and more than 600 individual and corporate properties are eligible for harvesting in the New South Wales northern basin.

As Kerry Brewster put it in an article published in July 2020 inThe Saturday Paper, "Floodwaters are embedded in the spreadsheets and business models of most of these irrigators. In the heavily developed Gwydir Valley, modelling shows that 40 per cent of irrigation water is harvested, rather than pumped from rivers and creeks." Some of the big irrigators in the northern basin take up to one‑third of their water via floodplain harvesting for which they do not have to pay a cent. That amounts to hundreds of millions of dollars' worth of water for free. That is why a handful of cotton irrigators in the northern basin wield such enormous power over this Government's water policy.

When the Natural Resources Access Regulator [NRAR] made it clear during stakeholder meetings across the northern basin in 2019 that unlicensed floodplain harvesting breached the New South Wales Water Management Act [WMA] and that NRAR would enforce the law, the New South Wales Government jumped into action and it made the Water Management (General) Amendment (Exemptions for Floodplain Harvesting) Regulation. The Government states that the regulation was made as an important transitional step under the Healthy Floodplains project, which will license floodplain harvesting and make it subject to volumetric limits under the WMA. The Minister stated:

The Regulation provides clarity that certain water users in NSW can undertake floodplain harvesting legally using eligible works until the implementation of the Policy is complete.

The NSW Irrigators' Council went further, stating that the regulation is "actually making it more legal." The Murray‑Darling Basin Authority said that the regulation "specifically enables" floodplain water to be taken. After issuing its warning to those northern basin irrigators last year, the Natural Resources Access Regulator stated:

The Regulation provided much needed clarity to water users on floodplain harvesting activities permissible under theWater Management Act 2000.

In other words, this regulation was made to legalise floodplain harvesting. It was enacted the day before the water Minister, Melinda Pavey, issued an order restricting floodplain harvesting in the northern basin. At the time, she said this was crucial to maximise the volume of floodplain water that could enter rivers and creeks to provide a "first flush" flow along the entire length of the Barwon and Darling rivers to meet critical human and environmental needs. Yet just three days later, on 10 February, The Nationals water Minister was furiously lobbied by the big irrigators in the Namoi and Gwydir valleys who were desperate to capture the water flooding over their properties—to hell with downstream communities—and the Minister lifted the embargo on floodplain harvesting in the northern basin, apparently due to concerns that infrastructure was going to be damaged by floodwaters.

Before lifting the embargo, the Minister criticised the Queensland Government for allowing irrigators in that State to pump water from its rivers, which were flowing for the first time in years. It is worth noting that New South Wales was monitoring this activity via satellite surveillance. At the time, the Minister said:

We have embargoed farmers from pumping water in the northern basin to supply critical human needs, as well as providing replenishment flows for remnant pools in riverbeds. I have made it clear that until the rivers have sufficient water to provide those downstream a drink, it would be inappropriate to start the pumps up and stop water flowing across the border.

All those downstream had not had a drink when the Minister lifted the embargo. So why was the regulation even needed? The NSW Irrigators' Council put to the inquiry that the Minister would not have been able to declare to those big irrigators in the northern part of the basin that they were not allowed to take any floodwater before the rest of the basin also got the benefit of the floodwaters without it. Yet the Environmental Defenders Office [EDO] representatives disputed this in their submission, stating:

We are intrigued by this assertion as based on our interpretation of s.324, the Minister already had broad discretion to impose an embargo, including in relation to the diversion of water from floodplains. Specifically, under s. 324(1), the Minister may declare that '...the taking of water from a specified water source is prohibited, or is subject to specified restrictions, as the case requires.'

On this basis, the EDO's submission states:

… we think it is logical to assume that the Regulation … was made to prevent affected landholders from committing an offence under s. 91B of the WM Act (Constructing or using water supply work without, or otherwise than as authorised by, a water supply work approval).

This regulation was a disgraceful move by the Minister and an attempt to legalise floodplain harvesting without any assessment of overall take or the impacts on downstream communities and the environment. It is clear that massive quantities of water are being held in private stores in the northern part of the basin. None of it is paid for; it is at the expense of the dying Darling-Baaka River and with the Minister's full consent. If the House does not disallow this regulation tonight, it will be disastrous and mean the death of many farms, rivers, wetlands and entire communities along a vast stretch of the Darling-Baaka River.

If it is disallowed, what next? The Government's own policy prohibits licences for any works built or approved after 3 July 2008. Yet hundreds of millions of dollars, including significant taxpayer grants, have been invested since 2008 for floodplain harvesting works. There needs to be full transparency as to how much water is being stored privately and how the water that is taken during flood events is measured. This includes the recent February event and the overall percentage that this volume represented of the total water available from that event. If the New South Wales Government was able to look at what Queensland irrigators were taking during February's flood event, they can do it for northern New South Wales. The Government has created this mess. It needs to get out of it by acting transparently and in the interests of all communities, as well as the environment.

Communities downstream are still suffering as a result of the water Minister's decision to lift the embargo. Many fervently believe this Government is prepared to sacrifice the Darling-Baaka River and those who rely upon it, including the Barkindji people, as well as hugely important environmental assets like the Menindee Lakes and the Macquarie Marshes for a handful of powerful cotton irrigators who are dictating water policy to the National Party. That is why this House must disallow the regulation.


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Cate Faehrmann
NSW Greens MP
22 September 2020


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