DPIE advises landholders to seek legal counsel before floodplain harvesting

The Department of Planning, Industry and Environment has issued a statement advising landholders to seek legal counsel before floodplain harvesting, after reports heavy rain in the Gwydir Valley could lead to overland flows.

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"Due to the disallowance of the government's regulation amendment, which temporarily exempted certain floodplain works from licencing requirements, any landholder considering floodplain harvesting during this event may wish to seek their own legal counsel," the statement read.

Another statement made on Friday evening clarified that the department will not be issuing an embargo (also known as a temporary water restriction) for the Gwydir Valley, after they received multiple inquiries on this issue.

"An embargo is not currently required to meet critical human or environmental water needs within or downstream of the Gwydir Valley," it said.

"The rules of relevant water sharing plans and water users' licence conditions continue to apply.

"Due to the disallowance of the government's regulation amendment, which temporarily exempted certain floodplain works from licencing requirements, the lawfulness of floodplain harvesting once again became unclear."

A spokesperson from the The Natural Resources Access Regulator (NRAR), which enforces water laws in NSW, echoed the advice.

"We expect water users to understand their obligations and to comply with the law. Any landholder considering floodplain harvesting during this event may wish to seek their own legal counsel," the statement read.

"NRAR will continue to investigate alleged breaches of water law as we have always done.

"On a case-by-case basis in accordance with our regulatory principles, enforcement guidelines, and upon assessment of individual circumstances.

"In circumstances where non-compliance is encountered, we will exercise our discretion."

The Bureau of Meteorology issued a major flood warning for the Gwydir River at Yarraman Bridge on Thursday evening and a moderate flood warning at Gravesend.

The flow had passed Gravesend on Friday morning and is expected to get to Yarraman by Friday night.

It is the first potential floodplain harvesting event in the state since the disallowance of NSW Water Minister Melinda Pavey's floodplain harvesting exemption regulation in September.

The regulation would have allowed for floodplain harvesting until the government licenced the practice.

The disallowance pulled into question the legality of floodplain harvesting and Mrs Pavey said 12,000 farmers across the state could be potentially placed in handcuffs.

The Nature Conservation Council Chief Executive Chris Gambian said "water authorities have basically abdicated their responsibility saying they don't know what the rules are and advising landholders to get their own legal advice on whether to divert and capture floodwaters in private dams or not".

"The NSW Parliament recently disallowed floodplain harvesting regulations and the Crown Solicitor told the government the practice was probably illegal under the Water Management Act unless a landholder has development consent and a water access licence, which many don't," Mr Gambian said.

"The government may have been annoyed at the disallowance of their regulation, but that does not mean they can ignore the parliament's decision and let irrigators choose their own adventure."

On Friday morning Gwydir Valley Irrigators Association executive officer Zara Lowien described the flow event on the Gwydir River as short and sharp.

"There is about 25,000 megalitres in this flow. It will not have an extended duration, unless we receive further rainfall and inflows," she said.

"Gravesend has already peaked at just under 40,000ML/day (7.2m) at 6pm last night and is falling, measuring 10,000 ML/day now (4.3m) a quarter of the peak and within a manageable flow rate. This peak is below the 2016 peak."

"Yarraman is predicted to peak at 6.5m later tonight."

Ms Lowien said in that peak they were expecting to see isolated break-outs of the river.

"Overland flows are going to be very limited because it is short and sharp," she said.

Ms Lowien said when it came to whether landholders would be able to floodplain harvest if the opportunity arose, there was no legal difference to what occurred during the 2016 flow, which was similar in nature but went for a longer period.

"The only difference we see is some ambiguity with the failed attempt to fast track that program through an exemption (regulation), we just see ourselves operating under the same framework the same pathway we are still on as we did in 2016," she said.

"There will be some isolated overland flow but the rivers are flowing and I think the focus should be on that and the water sharing plan doing it's job.

"The bottom half of our river has ceased to flow so we would like to see some water get down there from the rules."

The DPIE's statement was seen by Ms Lowien as an attempt to cover their own position and promote the floodplain harvesting regulation which is currently under consultation, with Mrs Pavey planning to reintroduce it in January.