Old flood plain harvesting rules long superseded: SRI

The NSW Upper House last week rejected a law, temporarily legalising floodplain harvesting, which is used by landholders to capture over riverbank flows.

The government introduced the legislation, in February, allowing floodplain harvesting for northern Murray-Darling Basin irrigators.

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Back to the drawing board on floodplain harvesting

But Southern Riverina Irrigators chairman Chris Brooks said claims, by the NSW Irrigators Council, that the disallowance of the legislation meant flood plain harvesting was still covered by legislation passed in 1912 was wrong.

"The Water Act 1912 is no longer applicable as floodplain harvesting is now exclusively governed by the Water Management Act 2000," Mr Brooks said.

He said SRI was seeking clarification from the governing body, the Natural Resources Access Regulator (NRAR).

"SRI, along with their legal team, have spent many months of due diligence," Mr Brooks said.

"And they stand firm behind their statements any take/and or use of water beyond basic landholder rights, done without a license and a meter, is now illegal."

NSW Irrigators Council chief executive Claire Miller said the Floodplain Harvesting Exemption Regulation was a transitional step towards implementing the NSW Healthy Floodplains Policy to license and meter approved floodplain harvesting by July 2021.

"It is not as simple as making it legal or illegal. The debate is about two options: leaving floodplain harvesting allowed under an Act written in 1912, or taking the next step to regulating all water take under modern laws," Ms Miller said.

"Irrigated agriculture wants a modern legislative framework.

"We don't understand politicians who want water management turned back to 1912 legislation. It's almost like they don't want the problem solved."

But Mr Brooks said no works orders, which allow permitted flood plain harvesting, had been issued since 2008.

"When you get the copies of the federal Act out, and you overlay it on the state Act, it clarifies what is water take, what is compliance and what are licences," Mr Brooks said.

"These blokes are out of time, they are out of support and they don't have a licence."

He said SRI had written to the NRA and Water Minister Melinda Pavey, asking them clarify the status of flood plain harvesting.

"Once that's clarified, we have asked NRAR to enforce it," he said.

"That means when these people - who haven't got a licence or a works order - go to take water, they are in breach of the Act."

Senior water researcher Maryanne Slattery said the government created the NRAR after the last flood plain harvesting event.

"They had advised the department and also irrigators that taking water without a licence is illegal, in NSW and they would be prosecuted if that happened," Ms Slattery said.

"Parliament rushed through a regulation to exempt the need to to have a licence to take water off the floodplain."

She said the government knew taking water without a licence was illegal, in NSW, and the NRAR would prosecute offenders, so rushed through the regulation to allow flood plain harvesting.

"The disallowance motion means you can't take water, without a licence."

Ms Slattery said she now expected the government to issue licences, to flood plain harvesters, "as fast as it can.

But she said she was also concerned the government might go another way to allow continued flood plain harvesting.

"They are going to increase the SDL's by the amount taken by flood plain harvesting - that makes a mockery of the SDL's."

SDL's are how much water, on average, can be used in the Basin by towns, communities, industry and farmers.

Ms Slattery said she was also puzzled at the northern irrigators' argument about the old legislation, which purportedly allowed flood plain harvesting.

"It's all very confusing to me how the northern irrigators could argue that floodplain harvesting, without a licence isn't illegal, because they have the 1912 Act."

If the Act covered flood plain harvesting, Ms Slattery said she questioned why the irrigators were so desperate for the disallowance motion not to go ahead.

"It was all very confusing, to me, how the northern irrigators could argue the world was ending and we are going back 100 years."

Ms Pavey has been contacted for comment.

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