A COURT will likely decide the fate of water captured in major rain events by northern NSW floodplain harvesters.
Last month's disallowance of a specific floodplain harvesting regulation was a blow to hopes of a civil outcome managed by lawmakers.
The defeated regulation would have allowed unlimited floodplain harvesting until the government licenced floodplain harvesters, locked them into deadlines for metering and set a cap on their take.
Since the regulation's disallowance on September 22 Horne Legal, acting for Southern Riverina Irrigators, has asked NRAR to rule whether floodplain harvesting is legal or not.
The NRAR board called an extraordinary general meeting on October 1 to consider its position in light of the disallowance motion. On October 2 it advised Horne Legal director Tim Horne NRAR would not immediately be making public its position on floodplain harvesting.
NRAR chief regulatory officer Grant Barnes wrote to Mr Horne: "The board determined to not make a public statement at this time. I'm advised one may be forthcoming subsequent to further deliberations."
Mr Horne wrote to NRAR on September 29 suggesting the government's bid to licence floodplain harvesters by July 2021 was doomed.
"It remains unclear what volume of water will be licenced and what will be the conditions of the licences," he wrote.
He said any resolution would be "highly contentious and will likely delay the licencing process beyond July 2021".
That the state regulator has no firm position on the legality of floodplain harvesting helps no-one says independent MLC Justin Field, who proposed the disallowance motion.
He reckons NRAR's lack of a definitive position is letting down both sides of the floodplain harvesting argument and as regulator NRAR must be seen to regulate, to uphold the law.
NSW Irrigators Council acting chief excecutive Claire Miller said the disallowance motion had created confusion and uncertainty, but by no stretch proved floodplain harvesting illegal.
She said dams on irrigation properties stored water from different sources and in big rain events rainfall runoff and overland flows were indistinguishable. Environment Protection Authority laws demand rainfall runoff on irrigation farms be retained on property, to avoid nutrient-rich water affecting river health, she said.
Ms Miller said irrigators were in an impossible situation and eagerly awaited advice from NRAR, the EPA and the Department of Planning, Industry and Environment about what irrigators should do.
Without a clear position from NRAR Northern irrigators are left in a precarious legal position should it rain.
Do they catch the water and risk retrospective prosecution once NRAR determines its position, or do they let it go? Do structures on their farms allow them to reject flood water? If they don't and the water is trapped, are they allowed to grow crops with that water or must it be left to evaporate?
Only NRAR can answer those questions.
Mr Horne suggested to NRAR: "the most appropriate course of action is for NRAR to demand that landowners decommission all illegal works, or alternatively all structures built since 1994 that do not have an appropriate approval."
"Once new FPH licensees have a fixed volume of water they can legally extract, they will be at liberty to apply for and build structures for floodplain harvesting," Mr Horne wrote to NRAR.
He said this meant floodplain harvesters would then know their licence volumes and conditions and the chance of over extraction would be diminished.
NRAR is being watched. Water meter and structure removal in the Southern Basin could be where the 'argument' goes next.
There are militant farmers along the Murray quite prepared to break the law in protest at Northern irrigators accessing free water.
Eureka Stockade flags are flying in the Riverina emblazoned with the words: "When injustice becomes law, resistance becomes duty."
The bottom of the flags are cluttered with skulls, representing farmers forced out of farming by water policy, says SRI chairman Chris Brooks.
