Flood plain harvesting: northern licences still valid, Minister says

Gwydir and Border Rivers flood plain harvesting licences are valid, despite scrapping of regulations, NSW Water Minister says.

Greens MP Cate Faehrmann, who chaired a parliamentary inquiry into flood plain harvesting, said the NSW Government’s scrapped regulations were “secretive and opaque”. Picture: Steven Saphore

The NSW Water Minister has labelled a vote to block the government from issuing flood plain harvesting licenses is a “stunt” that won’t stop licences in northern NSW taking effect in July.

On Thursday, an alliance of Greens, Independents, Labor and the Animal Justice Party quashed the state government’s third attempt to introduce flood plain harvesting regulations the NSW Upper House.

The move came after the NSW Government introduced licensing for flood plain harvesting in two northern NSW catchments – the Border Rivers and the Gwydir – the previous week.

“Despite a political stunt in the Legislative Council … the NSW Floodplain Harvesting Policy is proceeding and the licenses already determined for the NSW Border Rivers and Gwydir Valleys remain valid,” Lands and Water Minister Kevin Anderson said.

Flood plain harvesting licences – which will allow irrigators to capture water travelling across the landscape in dams or private storages – will come into effect on 1 July 2022 for the NSW Border Rivers and Gwydir Valleys, after the water sharing plans for those areas have been amended, Mr Anderson said.

on Thursday, just days after flood plain harvesting licences were reportedly approved for some irrigators in the northern Murray Darling Basin.

Independent MP Justin Field, who moved successfully to scrap the regulations on Friday, said the government introducing licencing in the northern basin before NSW parliament had had a chance to debate the regulations was an act of “political bastardry” that could leave taxpayers open to compensation claims.

According to the Water Management Act 2007, the total legal volume for flood plain harvesting in the state was 46.2GL.

Mr Field said he was concerned that if licences above this limit were issued, NSW taxpayers could be forced to buy licences back.

“I’m extremely concerned that this decision could leave the taxpayer on the hook for compensation if future Governments have to wind back those licences to ensure downstream communities and the environment get their fair share (of water),” he said.

NSW Minister for Lands and Water Kevin Anderson, who replaced former Water Minister Melinda Pavey, says flood plain harvesting licences issued to irrigators in the Gwydir and Border Rivers catchments will come into effect in July. Picture: Mick Tsikas

Lawfirm Horne Legal director Tim Horne said irrigators in NSW were now in a state of legal limbo in relation to floodplain harvesting.

Mr Horne said in order to issue licences to northern irrigators, the NSW Government had ammended the Water Management Act to make it a criminal offence to harvest water from a flood plain without a licence.

But the disallowance of flood plain harvesting regulations in the Upper House on Thursday meant the minister would now not be able to issue licences, he said.

“There’s a limbo because it’s now a criminal offence to take water without a licence by floodplain harvesting, but the Minister is now unable to actually issue licences,” Mr Horne said.

The vote to scrap flood plain harvesting regulations passed with 18 to 15. Shooters Fishers and Farmers party MPs abstained from voting.

Labor, the Greens and Independent MP Justin Field agreed with the government that regulations were needed, but said the regulations put forward by the government in December failed to ensure communities in the lower Murray would not run out of water.

“Our support for licencing flood plain harvesting is contingent on the licencing regime delivering sustainable water diversions within legal limits,” Labor MP Rose Jackson said.

Ms Jackson said the regulations, as they were currently drafted, would allow for an unsustainable level of take in the Northern Basin.

“If we don’t get this right, not only will we potentially be reducing on-farm economic value, we will not be getting better outcomes for anyone,” she said.

Labor accused the government of not taking into account the 15 findings and 25 recommendations from a six month inquiry into flood plain harvesting when it drafted its latest regulations.

“The reality is the regulation we are considering today is almost identical to the regulation disallowed by the Legislative Council with the support of Labor in May 2021,” Ms Jackson said.

Former Water Minister Melinda Pavey gazetted the regulations on December 17 last year, two days after the final report of a parliamentary inquiry into the practice was released.

Ms Jackson said the new NSW Water Minister, Kevin Anderson, who replaced Ms Pavey in December, had met with the NSW Labor Party to discuss a path forward on flood plain harvesting regulations.

Flood plain harvesting regulations introduced in a final move by MP Melinda Pavey before she was dropped from the water portfolio in December have been disallowed. Picture: Bianca De March

How did we get here?

Flood plain harvesting – the practice of capturing water in private dams and other infrastructure before it reaches natural waterways – has long been a contentious issue in the Murray Darling Basin.

Research and policy consultancy Slattery and Johnson tracked the growth of private dams and storages in 2021 and found they had grown 2.4 times since 1994, leading to less water flowing through to Southern Basin communities.

1/ Our full report into the growth of private storages, and by extension floodplain harvesting is available here:https://t.co/Sfys9gMShS

The bottom line is private dam storage has grown 2.4 times in the Northern NSW MDB since 1994 #Auspol#MurrayDarling#NSWPol#NSWFPHpic.twitter.com/tL8PCrup0c

— Slattery & Johnson (@SlatteryJohnso) March 1, 2021

A parliamentary inquiry into flood plain harvesting in 2021 heard evidence should be regulated without delay.

Former Water Minister Melinda Pavey tried three times to introduce regulations to licence flood plain harvesting.

Her final attempt at regulating the practice came in December 2021, the day before she was dropped from cabinet as part of a reshuffle.

Each attempt was rejected in the NSW Upper House, with Labor, the Greens and Independents arguing the regulations would lock in an unsustainable level of take in the Northern Basin.

The NSW Irrigators’ Council supported the regulations, arguing licensing flood plain harvesting would be good news for the environment.

“This will be the largest transfer of water out of irrigation and to the environment in the northern Basin since the early 2000s, with about two Sydney Harbours going back to the environment”, NSW Irrigators Council chief executive Claire Miller said.

She said irrigators had accepted the need for regulations, despite the fact they could lead to a 14 per cent loss to their bottom lines.