Flood of issues in raising Warragamba Dam wall

The NSW government would be liable for billions of dollars for potential damage if it raised the Warragamba Dam wall, leaked documents reveal.

Western Sydney Minister Stuart Ayres will require the support of the Legislative Council to introduce further enabling legislation to indemnify WaterNSW. Picture: Jeremy Piper

The NSW government would be legislatively exposed, liable for billions of dollars for potential damage and reliant on a hostile Legislative Council if it raised the Warragamba Dam wall, leaked documents reveal.

Obtained by The Australian, the documents show the current statutory protections would be inadequate if the Berejiklian government proceeded with the decision to raise the dam wall by up to 17m, which would help mitigate flooding in the Hawkesbury-Nepean Valley.

Titled Managing a Flood Mitigation Zone at Warragamba Dam, the sensitive NSW government report highlights the raft of risks facing WaterNSW, the government body overseeing the operation of the dam, if the legislation is not amended, including breach of statutory duty and ­vicarious liability.

“The current statutory protections have been adequate given the dam’s operating environment. However, this level of protection is inadequate in an operating environment which includes a flood mitigation function for Warragamba Dam,” the report from June 2015 says.

The report says WaterNSW would require an amendment to its enabling legislation to provide a “complete statutory limitation of liability to the operator, its ­directors, officers and employees” for actions performed in the undertaking of its statutory functions.

Consequently, Western Sydney Minister Stuart Ayres will require the support of the Legislative Council to introduce further enabling legislation to indemnify WaterNSW.

The coalition holds only 17 of the 42 seats in the upper house, meaning it would need support from Labor, or a combination of One Nation, the Greens, the Animal Justice Party, or the Shooters Fishers & Farmers.

Legislative Council independent Justin Field said he suspected there would be “serious challenges” for the ­Berejiklian government in trying to get an immunity provision through the parliament in its current form.

“The government should have been upfront with the community and the parliament about plans for new legislation well before the EIS came out,” Mr Field said.

“Minister Ayres continually paints this project as the solution to reducing flood risks to residents in the Hawkesbury ­Nepean, but now we find that the government wants the community to carry the risk from any failures in the dam’s operations.”

While not ruling out support for future legislation, Labor Legislative Council leader Penny Sharpe said she would consider whether the 4000-page environmental impact statement released for public exhibition on Wednesday addressed the environmental and cultural issues.

“As Sydney grows and climate change impacts water security and flood management, the operation of the dam will be examined but should not be linked exclusively to the dam wall raising,” she said.

In a statement, a NSW government spokesman conceded that if Warragamba Dam was to take on a flood mitigation role there would need to be a change in legislation.

“Should the dam take on a flood mitigation role as a result of the proposed Warragamba Dam wall-raising project, there would need to be a change to the statutory and regulatory rules governing the dam’s operations,” the spokesman said.