Government given best recommendations on Floodplain Harvesting

Otis Filley

A NSW Upper house committee report calling for further investigation into the impacts floodplain harvesting has warned that over licensing has contributed to environmental, cultural, economic and social impacts to the Darling-Baaka River, Menindee lakes and the Lower Darling towns. The Upper house Inquiry was established to inquire into the government’s management of floodplain harvesting, with the intention to provide better monitoring and metering of Floodplain harvesting in accordance with the Water Management Act 2000 and the Murray Darling Basin Plan. The NSW Government has recently made several attempts to regulate and license floodplain harvesting, with an announcement expected in the next few days. The upper house inquiry published Report of the committee’s inquiry on Wednesday in which representatives from

The Australian Labor Party, the Liberal Party, The Nationals, Shooters Fishers and Farmers Party and The Greens came to 14 findings and 25 recommendations. The document states that floodplain harvesting has grown in significant volume of extraction levels despite policy and legislative intent. Committee Chair Cate Faehrmann MLC wrote that “While the report acknowledges the investment and work completed by the NSW Government in this area to date, it finds the deficiencies remain, particularly in relation to the volume measurement, illegal structures, water accounting rules and community engagement and transparency.”

Ms Faehrmann wrote that “As Chair of this Inquiry, I was at times angered and horrified to learn exactly how much damage the free and unfettered historical practice of taking water from the floodplains has wrought – on communities and industries and most especially on the environment.”

“Out of this Inquiry, I am hopeful that we can find a way forward which will benefit all water users, restore landscapes which have suffered under the practice and ensure we never repeat the mass fish kills of three years ago.”

Ms Faehrmann particularly emphasized that “genuine and earnest consultation” with First Nations People as well as ensuring “science and environmental voices” are heavily considered in future Government decisions will greatly improve the overall health of the Murray-Darling Basin.


The legal status of Floodplain Harvesting was cast into doubt earlier this year when two disallowance motions were cast by The ALP, the Shooters Fishers and Farmers Party and The Greens. This latest inquiry and report which involved 54 witnesses and 289 submissions from stakeholders has been the result of those disallowances. The NSW Government will now have 6 months to formally respond to the report but it is expected that Hon. Melinda Pavey, MP, Minister for Water, Property and Housing will begin issuing licenses in the coming days who previously described the disallowances as potentially placing farmers in “handcuffs” and “jeopardising at least half a billion dollars of the NSW productive sector.”

According to NSW Government, this will allow irrigators take water under clearer pretences. The lack of clarity has been frustrating for many irrigators. In a statement in May, following the second disallowance, the state water regulator, Natural Resources Access Regulator (NRAR) advised “[a]ny landholder considering floodplain harvesting may wish to seek their own legal advice.” Bret Walker AO SC who was tasked with clarifying this to the committee wrote in his opinion that “The circumstances that have obtained for generations are, it turns out, circumstances under which the take of water through floodplain harvesting should be considered (not merely “could be considered”) a legal activity. That is, of course, not the same as suggesting that this is a desirable state of affairs – but that is a question of policy for legislators.” Mr Walker’s statements were praised by the Water Minister on her website, stating that the “impetus” had been put “squarely back on the shoulders of the NSW Legislative Council to allow the Government to regulate floodplain harvesting.”

In a dissenting Statement, National party member Hon Ben Franklin MLC expressed frustration that some of the recommendations in the report would delay the NSW Government’s ability to license floodplain harvesting. In regards to a recommendation that Government ensure rainfall run off be metered and reported as part of extraction limits, he said that “it is disappointing the Inquiry has fundamentally rejected the need for urgency” and has demanded changes which would delay the licencing of floodplain harvesting at least five years…This would require the Government to develop an even more complex model… further delaying the much-needed regulation.”

The report states that whilst it finds that “floodplain harvesting is not an offence under section 60A”, “issues of lawfulness arise in the practice of floodplain harvesting when a work is used, and this must be examined on a case by case basis… The only way to further improve assessments of the cumulative impacts, and to properly understand any and all impacts is through accurate metering of take during floodplain harvesting events”

Many stakeholders who gave evidence to the committee advocated that there was an absence of any regulatory framework to ensure legal limits of storage and water takes were consistent with regulations. For these stakeholders the independence of Natural Resources Access Regulator (NRAR) was a particular point of concern. Southern Riverina Irrigators, The Murray Regional Strategy Group’s, and Mrs Helen Dalton MP, Member for Murray, emphasized that NRAR is under direction from Department of Planning Industry and Environment and that the supposedly independent body is largely beholden to the office of Hon Minister Melinda Pavey.

Shooters Fishers and Farmers Party member The Hon Mark Banasiak, took exception to a number of findings and recommendations including that “That the NSW Government has failed to meet its obligations under the Murray-Darling Basin Agreement by allowing the unchecked growth of unregulated floodplain harvesting extraction to volumes well in excess of the 1994 Murray-Darling Basin Cap.” Mr Banasiak stated that “[This] ignores the fact that successive governments of differing political persuasions have failed in this task.” Many of Mr Banasiak’s exceptions seemed to push towards the inclusion of statements that prioritised the need for increased monitoring over the economic, social, cultural and environmental impacts. Many of these comments seemed more in line with Government’s push to issue floodplain harvesting licenses than previously implied by Mr Banasiak who in September implored Government, “to step up and act like a government not an inebriated tinkerer. SFF will not support this tawdry effort; floodplain harvesting must be brought into a properly designed water sharing plan.”

Local SFF member for Barwon Roy Butler MP said finding the balance in water sharing throughout the basin has been the challenge and he believes regulating it to legal limits will produce better outcomes across the Murray Darling Basin. Communities of the MDB “should have never been in this situation with floodplain harvesting.” “Whilst floodplain harvesting has been unregulated there has been growth in use, to get it pulled back to get a haircut to the legal limits, that has been the challenge.” The inquiry and its findings will help towards “a fair outcome for everyone that looks after downstream communities, and that makes sure that agriculture has some sort of certainty.” Mr Butler emphasised that the lack of regulation around floodplain harvesting was not only from the current government. “For 19 years successive governments, have failed to properly regulate floodplain harvesting, for 19 years floodplain harvesting has sat outside of any regulatory framework if you read the water sharing plan, the back end of it says yeah we know about floodplain harvesting, we will get to it.”

The NSW Government will now have 6 months to formally respond to the report, but it is expected that Hon. Melinda Pavey, MP, Minister for Water, Property and Housing will begin issuing licenses in the coming days.

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