I write in regards to the proposed amendments to the Water Management (General) Regulation 2018 regarding the highly contentious floodplain harvesting licencing process.
Please consider this letter as my submission to the current public consultation.
Firstly, I welcome the opportunity to provide feedback to the proposed amendments. This area of policy has been characterised to date by insufficient consultation and a lack of transparency. The recently released Independent Commission Against Corruption report into water management in NSW found that in the very recent history water management in NSW was “overly favourable to irrigators” and that the policy-making process was “vulnerable to improper favouritism, as environmental perspectives were sidelined from policy discussions.”
Many stakeholders continue to hold concerns about water management in NSW on similar grounds and in my view the proposed amendments suggest that environmental considerations have again been sidelined and the interests of large irrigators have again been prioritised.
I am concerned that the debate and vote in the Legislative Council to disallow the Water Management (General) Amendment (Exemptions for Floodplain Harvesting) Regulation 2020 has not been given due consideration in the drafting of these new amendments. We know from recently released papers that the Department of Planning, Industry and Environment (DPIE-Water) were actively considering how to effectively by-pass the decision of the Upper House immediately following the vote. That has been seen by many to be seeking to overturn the democratic will of the Parliament and an act of bad faith in what is one of the most contested areas of natural resource management policy.
It was clearly the will of the majority of members of the Legislative Council that broad exemptions not be granted in regards to floodplain harvesting and that further clarity was needed in regards to the volume of take that would be licenced and the ambiguity around certain floodplain harvesting practices.
These proposed amendments would introduce new broad exemptions for certain types of rainfall runoff collection with no advice having been provided on the volumes of water likely to be exempted and it would again provide a broad exemption to the use of legally questionable works to be used in harvesting floodplain waters. This is unacceptable.
The exemption for tail-water return systems has no justification. Complexity or difficulty is not a sufficient reason to not measure and account for this type of take. Without clarity of the volumes and limits, this exemption risks opening up loopholes to future illegal take or will ‘muddy the waters’ making enforcement difficult or impossible. Any take via rainfall runoff in excess of the existing harvestable rights rules should be measured and licenced.
Whilst ever there is water take that is not measured, like rainfall run-off being transferred to storages, it will create opportunities for bad faith actors to game the system, reinforcing the perception of favourable treatment and continuing the mistrust around water management.
The broad transitional exemption, while now proposed to sunset on 1 July 2020, would still allow floodplain harvesting above the extraction cap that has always underpinned this policy. If those caps cannot be enforced between now and final licencing, no exemption should be provided in the interim.
For these reasons I do not support the Management (General) Amendment (Exemption for Rainfall Run-off Collection) Regulation 2020 or the Water Management (General) Amendment (Floodplain Harvesting Exemption) Regulation 2020.
I also do not support the Water Management (General) Amendment (Floodplain Harvesting) Regulation 2020. While I am supportive of finalising a licencing regime for floodplain harvesting, without clarity around the downstream impacts of future floodplain harvesting, establishing the method for the distribution of licences, as this regulation will allow, creates unacceptable risks and will only further exacerbate distrust and division about the process.
There remains significant distrust in the modelling being used to determine valley-wide volumes that are proposed to be shared across individual property licences. There needs to be transparency about this modelling to enable independent assessment of the assumptions and modelled outcomes and adequate time should be given to allow this assessment before the licencing regulation is gazetted.
I also do not support the gazetting of this regulation until such time as the following issues are clearly addressed, whether through draft management rules, licence conditions or other binding policy statements:
- Agreement on downstream targets that will deliver environmental, social, cultural and economic benefits in future flood events, especially first flush events.
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Sufficient tools to guarantee these targets can be met including:
- commence-to-pump and cease-to-pump rules, and
- Individual Daily Extraction Limits (IDELs) and Total Daily Extraction Limits (TDELs) to protect held environmental water and planned environmental water during overbank flow periods.
- Adequate transparency of licensing decisions including publishing sufficient information about the granting of individual water access licences for floodplain harvesting.
Should these draft regulations be gazetted in their current form, it would be my intention to move to disallow them when the Legislative Council returns in March.
Thank you for your consideration.