Environmental Defender’s Office NSW, undated 2017:
EDO NSW, on behalf of
its client the Inland Rivers Network, has commenced civil enforcement
proceedings in the NSW Land and Environment Court in relation to allegations of
unlawful water pumping by a large-scale irrigator on the Barwon-Darling River.
The two water access
licences at the centre of these allegations allow the licence holder to pump
water from the Barwon-Darling River in accordance with specified licence
conditions, as well as rules set out in the relevant ‘water sharing plan’. The
conditions and rules specify – amongst other things – how much water can be
legally pumped in a water accounting year (which is the same as the financial
year) and at what times pumping is permissible (which depends on the volume of
water flowing in the river at any given time).
Our client alleges that
the holder of these licences pumped water in contravention of some of these
conditions and rules, thereby breaching relevant provisions of the Water
Management Act 2000 (NSW) (WM Act). The allegations are based on licence
data obtained by EDO NSW earlier in 2017 from Water NSW, a state-owned
corporation charged with the responsibility of regulating compliance with the
WM Act.
Analysis of this data,
along with the relevant rules and publicly available information on river
heights, indicates that the licence holder may have pumped significantly more
water than was permissible on one licence during the 2014-15 water year, and
taken a significant amount of water under another licence during a period of
low flow when pumping was not permitted in the 2015-16 water year. Despite
being made aware of these allegations by EDO NSW on two occasions, in April and
August 2017, and having had access to the data since at least July 2016, Water
NSW has not provided any indication that it intends to take compliance action
against the licence holder.
Both allegations concern
the potentially unlawful pumping of significant volumes of water, which may
have had serious impacts on environmental flows in the river and downstream
water users. However, our client is particularly concerned by the alleged
over-extraction in the 2014/15 water year, as this period was so dry that the
Menindee Lakes – which are filled by flows from the Barwon-Darling River – fell
to 4 percent of their total storage capacity. This in turn threatened Broken
Hill’s water security and led the NSW Government to impose an embargo on water
extractions during part of that year in order to improve flows down the
Barwon-Darling into the Lakes and Lower Darling River.
In these proceedings,
the Inland Rivers Network is seeking, amongst other things, an injunction
preventing the licence holder from continuing to breach the relevant licence
conditions. In addition, and in order to make good any depletion of
environmental flows caused by the alleged unlawful pumping, our client is also
asking the Court to require the licence holder to return to the river system an
equivalent volume of water to that alleged to have been unlawfully taken, or to
restrain the licence holder from pumping such a volume from the river system,
during the next period of low flows in the river system. Failure to comply with
a court order constitutes contempt of court, which is a criminal offence.
EDO NSW is grateful to
barristers Tom Howard SC and Natasha Hammond for their assistance in this
matter.
Brendan Dobbie, Senior
Solicitor at EDO NSW, has carriage of this matter for IRN.
The Australia Institute, Moving
targets: Barnaby Joyce, Warrego valley buybacks and amendments to the Murray
Darling Basin Plan, February 2018:
In 2008, then Senator
Joyce criticised the Labor government’s purchase of water in the Warrego
valley: that is going to have no effect whatsoever in solving the problems of
the lower Murray-Darling, and especially the southern states.
Despite the now Deputy
Prime Minister and Water Minister’s own fierce criticism of that purchase, he
approved the $16,977,600 purchase of another 10.611 gigalitres of water in the
Warrego valley in March 2017 at more than twice the price paid by the Labor
government. Questions should be raised about what changed the Deputy Prime
Minister’s mind and whether that purchase was value for money.
This purchase also has
serious implications for the recent amendments to the Basin Plan that was
disallowed by the Senate on 14 February 2018.
This purchase was not
required to meet the water recovery target in the Warrego under the
Murray-Darling Basin Plan. Instead, it was intended to count towards the water
recovery target in the Border Rivers. This swap required an amendment to s6.05
of the Basin Plan, which was tabled in parliament and disallowed by the Senate.
Yet, the Warrego purchase was not reflected in the Sustainable Diversion Limits
(SDLs) put to Parliament as part of the amendments.
Murray-Darling Basin
Authority (MDBA) is required to base its recommendations to change SDLs based
on best available science, but the proposed amendments allowed MDBA and States
to subsequently change the SDLs in a valley without any consideration of the
science.
While MDBA was seeking
public submissions on changes to valley SDLs, based on science; the Department
of Agriculture and Water Resources (DAWR) was in negotiations to change those
valley targets, not based on science.
Parliament was asked to
pass an amendment to the Basin Plan with SDLs that would have been changed
based on a deal agreed over a year earlier, if the amendment had passed.
Given that the new SDLs
were known and agreed by governments, it is not apparent why the MDBA did not
include the new SDLs in the amendment put to parliament.
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