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Floodplain harvesting isn’t unlawful, but the way it’s being licensed is

Saturday, 2nd October, 2021

By Maryanne Slattery

Floodplain harvesting has been a contentious topic in New South Wales over the last couple of years.
Last week, Bret Walker SC, one of Australia’s leading barristers and the former Commissioner to the South Australian Royal Commission into the Murray-Darling Basin Plan, advised a NSW Parliamentary Inquiry that floodplain harvesting was not illegal, but that licensing it as proposed will be unlawful. Confused? That’s because politicians and bureaucrats have designed it that way.  
Floodplain harvesting has never been licensed, measured, monitored, or regulated in New South Wales, despite commitments to do so since 1995.
The NSW Government is now trying to do exactly that. The Water Minister, Melinda Pavey, is frustrated that her efforts are being thwarted by “vested interests and lobbyists who are spreading misinformation”.
There are arguments and accusations from both sides of the debate. Greens MLC Cate Faehrmann established an Upper House inquiry to get the bottom of it. The Inquiry heard evidence from witnesses all last week.
The week kicked off with written advice from Brett Walker SC. He was responding to questions asked by the committee about whether floodplain harvesting was an offense against specific sections of the Water Management Act. His answer was “no” because there isn’t actually a law to offend against.
The ‘pro-floodplain harvesting camp’ was jubilant. However, whether or not it’s illegal is beside the point. After all, the Government is trying to license it now.
The real question is, rather; how much will be licensed? There are two legal valley limits that are important here: the Murray Darling Basin Cap, and; the Basin Plan sustainable division limit.
The Murray Darling Basin Cap is the amount of water that could be legally extracted in 1994. NSW proposes to issue licence volumes much greater than the Cap. When quizzed on this by Ms Faehrmann, the water department said that the Cap is old, and it’s going to be replaced by the Basin Plan sustainable diversion limit. This is true. But what they failed to say is that the Cap is still the law in New South Wales. Legally, the amount of water extracted from a valley, including floodplain harvesting, cannot exceed the Cap.
The official Cap has virtually no floodplain harvesting in it (because it was never measured or monitored). The NSW Government is saying they have now assessed what was taken under Cap and will limit floodplain harvesting to that level. But that claim doesn’t stack up.  
The Cap is an estimate of conditions on 1 July 1994, which are legally defined as the infrastructure, rules, and entitlements at that date.
Let’s look at the first condition, the level of infrastructure that existed in 1994.
In 1994, the capacity of on-farm storages was 600 gigalitres. Now it’s around 1,400 gigalitres. The proposed floodplain harvesting volumes and accounting rules will allow about 1,750 gigalitres of take in one year. With only 600 gigalitres of storage in 1994, it was simply not possible to capture the proposed level of licensing because there was nowhere to store it.
So, the first Cap condition, limiting extractions to the level of infrastructure in 1994, isn’t met.
The next condition of Cap is the rules and entitlements that existed in 1994. Given that the Government is trying to issue floodplain harvesting licences and agree on the rules now, they clearly didn’t exist in 1994.
So, the second Cap condition, limiting extractions to the level of rules and entitlements in 1994, isn’t met either.
It is not plausible to argue that the volumes proposed for floodplain harvesting are within the 1994 Cap.   
Floodplain harvesting must also comply with the Basin Plan sustainable diversion limit. This is an easy concept made complicated.
The short story is that floodplain harvesting wasn’t in the original sustainable diversion limits set in 2012, and the MDBA and the New South Wales Government are trying now to increase the sustainable diversion limits to accommodate floodplain harvesting.
Bret Walker told the Inquiry that this approach is in clear breach of Commonwealth law, and could be subject to legal action, or an injunction.
The total amount of floodplain harvesting in the current NSW sustainable diversion limits is 46 gigalitres. A far cry from the 350 gigalitres proposed by the NSW Government.
So, floodplain harvesting is not illegal, but it’s not legal either. Licensing will make it legal but only if the licensed volumes comply with existing legal limits in the Murray-Darling Basin Cap and the Basin Plan’s sustainable diversion limit.
Floodplain harvesting might not be unlawful, but the way the NSW Government plans to license it is.

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