Warragamba Dam EIS fails to clear legal test

The environmental impact statement underpinning the proposal to is flawed, legally fraught and requires major rectification work before the project’s approval can even be considered, according to new legal advice.

Western Sydney Minister Stuart Ayres is facing criticism after he knocked back an invitation to attend a NSW parliamentary inquiry into the proposal to raise Warragamba Dam. Picture: NCA NewsWire / Flavio Brancaleone

The environmental impact statement underpinning the proposal to raise Warragamba Dam is flawed, legally fraught and requires major rectification before the project’s approval can even be considered, according to new legal advice.

Despite the problems plaguing the project, Western Sydney Minister Stuart Ayres refused an invitation to attend a NSW parliamentary inquiry into the proposal on Monday.

Prepared in response to a question about the validity of the project by environmental group Colong Foundation for Wilderness, legal firm Chalk Behrendt concluded NSW Planning Minister Anthony Roberts couldn’t lawfully approve the proposal based on the EIS.

The advice asserts the EIS contains insufficient information and assessment of the operation of the dam for flood mitigation; contains “vague, inconsistent and inconclusive” descriptions of the project’s operation, and does not meet the secretary’s environmental assessment requirements.

“Therefore, any decision by the Planning Minister to approve the Warragamba Dam raising risks being afflicted by any or all of the following legal errors,” said Chalk Behrendt director Andrew Chalk.

“Without the resubmission and re-exhibition of a substantially reworked EIS … any decision by the Planning Minister to approve the operation of the raised dam would be invalid.”

Without major changes, Mr Chalk said, a “fundamental statutory prerequisite” to the exercise of Mr Roberts’ power would not have been met, with the decision to be “uncertain or lack finality” because vital aspects of the proposal had not been clearly outlined.

“The information contained in the current EIS is not sufficient or transparent enough for the public, or the Planning Minister, to determine whether the author’s determinations of likely environmental impacts are reasonable or whether the touted benefits will likely be realised,” he said.

In correspondence between NSW Water Sector chief executive Jim Bentley and Colong Foundation chairman Bob Debus on February 4, Mr Bentley says if a decision were made to raise the dam wall then a raft of “consequential amendments may be required”.

With aspects of the EIS facing heavy criticism, Mr Ayre’s decision to knock back the invitation to attend the upper house inquiry was met with incredulity by members of parliament and environmental groups. A spokeswoman for Mr Ayre said: “Attendance is voluntary and it’s a committee which has met several times already. The Minister has attended a past hearing.”

While Monday’s inquiry revealed a business case had been put before cabinet, Legislative Council independent Justin Field said there remained a failure by the Department of Infrastructure to disclose how the dam would operate.

“The project is in disarray and the Minister is hiding from scrutiny,” he told The Australian.

A spokesman for WaterNSW said: “All aspects of the EIS process are strictly governed by multiple legislative and procedural parameters, and subject to state and Commonwealth government review, to ensure the work is compliant.”