Legal challenge to flow targets ‘likely’

Officials warned the NSW Water Minister flood plain harvesting rules failed to protect the environment and a legal challenge was “likely”, documents reveal.

Documents have revealed NSW Government officials warned Water Minister Kevin Anderson flood plain harvesting rules would not protect the environment and would face a “likely” legal challenge.

Correspondence and briefings uncovered through a parliamentary order for papers this week show NSW Environment and Heritage Group officials warned Minister Anderson flow targets set by the NSW Government “do not adequately protect environmental assets” and “do not support the water management principles of the WM (Water Management) Act”.

Officials warned NSW Water Minister Kevin Anderson flood plain harvesting rules failed to protect the environment. Picture: Toby Zerna

The NSW Government recently announced flow targets, including a 195 gigalitre drought reserve in the Menindee Lakes system, for critical human needs and to maintain Lower Darling flows.

Speaking to The Weekly Times this week, Lower Darling river water users labelled the targets “bullshit”.

Australian Floodplain Association chairman Justin McClure said water users in the region needed at least 18 months supply of water – equivalent to 390-400GL of active storage in Menindee Lakes.

The Wentworth Group of Concerned Scientists said the targets “fail to ensure that water for river health and community needs are prioritised above irrigation, a requirement of the NSW Water Management Act 2000”.

“The proposed volume is almost 2.5 times less than the 480GL of water available in the Menindee Lakes just 12 months before the mass fish kills occurred in the summer of 2018-19,” the group said in a statement.

“It is only by improving lake management and protecting at least two summers supply (i.e., 18 months) that a repeat of the massive fish kills could be avoided during the next dry period.”

Officials warned against flow targets

In emails uncovered through the parliamentary order this week, water officials warned deputy secretary for water Jim Bently a legal challenge to the flow targets was “considered likely” if steps were not taken to comply with the Water Management Act.

The official warned the Minister should consider “downstream flow targets to prevent flood plain harvesting access when there are downstream critical human and environmental needs”.

The documents were accessed through a parliamentary call for papers by independent NSW MP Justin Field and were released to NSW parliament Wednesday. Minister Field made the request after the NSW upper house disallowed controversial flood plain harvesting regulations in February.

Minister Anderson said in a statement he was advised the targets were sufficient.

“The department provided legal advice that the plans can lawfully be made, and the targets comply with the principles of the Water Management Act,” Minister Anderson said.

“By licensing floodplain harvesting the NSW Government is ensuring that the water take is accurately measured, giving greater protections to the environment and water users downstream.” he said.