The New South Wales upper house has for a third time disallowed regulations to establish flood plain harvesting licences, arguing the state government’s plan would have led to an unsustainable amount of water being taken from the Murray-Darling river system.
Labor, the Greens and some crossbenchers united to disallow the licences on Thursday morning, despite the new water minister, Kevin Anderson, moving preemptively to issue licence determinations on Monday.
The Shooters, Fishers and Farmers party abstained from the vote.
The licensing of flood plain harvesting – the practice of capturing water as it moves across the extensive flat plains of the north-west using levees, channels and dams – is one of the last parts of the Murray-Darling Basin plan that needs to be implemented.
While all stakeholders agree that licensing of the practice is needed so the water being taken can be controlled, measured and policed, there has been a bitter dispute between irrigators and the environmental movement over volumes to be licensed and the fact that the government intends to give the licences free to irrigators.
Justin Field, the independent who moved the disallowance, said the NSW upper house had voted 18 to 15 to support his motion.
“This vote recognises that the government hasn’t got the policy right when it comes to floodplain harvesting,” he said.
“The government’s plan is a gift to a handful of large corporate irrigators, many of whom built dams far in excess of known caps. This is as much about equity for farming neighbours and other water licence holders as it is about downstream communities and the environment.
“There is broad agreement that floodplain harvesting should be regulated, licensed and measured but the current rules leave downstream communities, other water license holders and the environment carrying the risk. That is not acceptable.”
Cate Faehrmann, the Greens MP who chaired an upper house committee into the practice, said: “It should now be clear to the government that they do not have a social licence to gift $1 billion worth of water licences to their corporate irrigator mates.”
The committee said more scientific work was needed and that any plan had to ensure flows in the lower part of the river system were maintained.
“The government must bring floodplain harvesting to within the legal limits in the Murray-Darling basin plan,” she said.
Faehrmann said that meant licensing 64GL of water take, not the 346GL that the government said it intends to license.
“We will never support the expansion of floodplain harvesting beyond the legal limit of 64GL because it is ultimately unsustainable for the river system itself,” she said.
Successive NSW water ministers have attempted to implement the regulations, only to have them disallowed by the upper house.
On Monday, Anderson, who had produced regulations just before Christmas, went further than his predecessors, declaring flood plain harvesting a regulated water source and issuing volume determinations to irrigators.
This was despite the upper house signalling it may again disallow the regulations at the first opportunity, which was this week.
It is unclear what the legal impact of the minister’s actions will be. It could trigger compensation claims. Equally, by declaring flood plain harvesting a regulated water source under the Water Act, Anderson may also have made it illegal for irrigators to take the water without a licence.
Until now irrigators were operating in a legal limbo and many continue to transfer overland flows from recent downpours into massive on-farm dams.
The chief executive of the NSW Irrigators’ Council, Claire Miller, described the disallowance as “extremely frustrating’.
“All the politicians who spoke today agreed floodplain harvesting must be reduced, licensed and metered. Yet, they voted against the regulations to do just that. Politics again got in the way of a major environmental reform,” she said
“Our members want floodplain harvesting to be regulated, the same as water used from rivers and groundwater. This is in the public interest, and in our interest that water access is secure and sustainable.”
Chris Gambian, the chief executive of the Nature Conservation Council, said this was the best decision possible for river health, First Nations peoples and downstream communities.
“The new water minister, Kevin Anderson, now has an opportunity to sit down in good faith and understand the perspectives of the whole community on floodplain water harvesting.
“We have to strike the right balance to ensure a viable agricultural sector all along the river system while keeping the river flowing and connected end to end. There’s no agriculture on a dead river system,” he said.
The upper house called on the minister to engage in another round of consultations.
