Legal action looms over water sharing plans

Sydney Morning Herald By Harriet Alexander May 29, 2020

Floodplain graziers and environmental groups are considering legal action against the NSW government if it signs off on controversial water sharing plans, arguing the plans do not adequately take into account the needs of downstream users and the environment.

The Australian Floodplain Association, Macquarie Marshes Environmental Landholders Association and Inland Rivers Network have not ruled out litigation in the Land and Environment Court or the Federal Court if the plans are not amended to more evenly share the pain of a drier climate.

Grazier Stuart Le Lievre, who lives on the Darling River between Louth and Tilpa in northwest NSW, said the connectivity of the system meant that unsustainable extraction under one plan had consequences for every catchment.

“The whole essence, which everyone knows, is the bucket of water is nowhere what it used to be,” said Mr Le Lievre, vice president of the Australian Floodplain Association.

“[The northern basin irrigators] haven’t given up anything. They’ve still got all their entitlements. When it gets to the Barwon Darling, what have we got to share?”

Emma Carmody, special counsel for the Environmental Defenders Office, said that if the upper catchments were governed by plans that did not adequately consider the downstream impact of extraction, there may be not be enough water in the system to supply the lower part of the river.

This ran counter to the water sharing principles set out in legislation – that water sources and their dependent ecosystems needed to be protected first and foremost, followed by basic landholder rights. Town water and stock and domestic use also took precedence over irrigation.

Dr Carmody argued in a piece published in the EDO bulletin on Friday that this left the plans open to a challenge in the Land and Environment Court or Federal Court.

“The environment … needs specific volumes of water at specific times to stay alive,” said Dr Carmody, who represents some of the groups considering litigation.

“That’s why mandatory rules in water sharing plans that protect first flows after drought, low flows and all environmental flows from extraction are absolutely vital. There are also legal obligations under both state and commonwealth laws that can only be properly satisfied if these rules are in place.”

Water sharing plans set out how water is divided between irrigators, towns and the environment in each catchment and set limits on what can be extracted from the rivers and groundwater for the next decade.

Water Minister Melinda Pavey wants them signed off by June 30, when the water resource plans that they underpin are due to be submitted to the federal government under the Murray Darling Basin Plan. But the old water sharing plans have not expired and there are calls for the drafts to be amended before they are signed.

Chairman of the Macquarie Marshes Environmental Landholders Association Garry Hall was on the stakeholder advisory panel for the Macquarie water sharing plan. He said it was hamstrung by a ministerial requirement that no third party could be adversely affected.

“We couldn’t restrict take, so to me it was just shuffling the deck chairs on the Titanic,” Mr Hall said.

“The solution was deemed to be out of scope. It was very much influenced by a large representation from the irrigation community.”

NSW Irrigation Council chief executive Luke Simpkins said all the water sharing plans considered downstream users and any legal action was unlikely to be successful.

“People down there say that northern irrigators have got their hands around the neck of the National party MPs and it’s just not true, because otherwise where’s the 100 per cent general security allocations?” Mr Simpkins said.

“It’s just not happening and these conspiracy theories are just a distraction from the main event.”

https://www.smh.com.au/national/nsw/legal-action-looms-over-water-sharing-plans-20200526-p54wkn.html

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