200GL unmetered floodplain harvest: NSW regulator threatens criminal action

A NSW regulator has threatened to take criminal action on unmetered floodplain harvesting, despite contradictory legal advice.

Floodplain harvesting is crucial to Australia’s cotton production, but only two of five Northern Murray Darling Basin Valleys are licensed to capture this liquid gold.

NSW Natural Resources Regulator chief Grant Barnes has declared floodplain harvesting illegal, launching an investigation into 200 gigalitres of what he called “potentially unmetered water take” across five northern Murray Darling Basin Valleys from February to April last year.

Yet floodplain harvesting across the basin’s Border Rivers, Gwydir, Barwon Darling, Namoi and Macquarie river valleys was unlicensed and unregulated at the time NRAR measured the unmetered take, raising questions as to what laws Mr Barnes would use to prosecute irrigators.

Mr Barnes failed to answer questions on what legislation he would use, but did tell a NSW Parliamentary committee “all options are on the table, both criminal and civil” in regards to the 200GL take from February to April 2021.

“We identified 26 incidents where a group of work approvals and water access licences that are owned by the same people (or) company had potentially taken more water than entitled to,” Mr Barnes said.

“Our current investigations are focused on the seven largest incidents in terms of volume of take in excess of proposed or actual entitlements under the floodplain harvesting licensing framework.”

Yet last September Sydney silk and one of Australia’s top legal minds Bret Walker told a NSW Upper House Select Committee on Floodplain Harvesting that the practice was legal, although he wished the state’s parliament would hurry up and regulate it.

“The circumstances that have obtained for generations are, it turns out, circumstances under which the take of water through floodplain harvesting should be considered (nor merely could be considered) a legal activity,” Mr Walker said.

It’s a point NSW Irrigators Council chief executive Claire Miller said showed “take from floods was still unregulated and unrestricted across the NSW northern Basin in 2021”.

Border Rivers Food and Fibre NSW vice-chairman Brendan Griffiths said NRAR had created enormous uncertainty and seemed to be ignoring previous legal advice by wanting to “test this case in law”.

The Greens and Labor MPs in NSW Parliament’s Upper House have repeatedly blocked attempts by the Coalition Government over the past two years to introduce regulations to license, monitor and manage floodplain harvesting.

It was not until early this year that the Coalition managed to reintroduce its floodplain harvesting regulations, between parliament sittings, which finally led to Border Rivers and Gwydir River valley irrigators being handed licenses last month.