New floodplain harvesting regulations disallowed in Upper House

The government's floodplain harvesting regulations were disallowed in the Upper House on Thursday, the new laws blocked by a vote of 21 to 15.

The disallowance, which was motioned by independent MLC Justin Field and supported by the Shooters, Fishers and Farmers, Labor, Greens and the Animal Justice Party, calls into question the July 1 deadline for licencing floodplain harvesting.

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Following the disallowance, Greens MP, Cate Faehrmann, has given notice of a select committee into the NSW Government's management of floodplain harvesting, inviting NSW Water Minister Melinda Pavey to work constructively with the Legislative Council to address its concerns.

"These regulations would have legitimised and made permanent a form of water take that has never been licensed or measured, never been accounted for under the cap and that has been depriving communities, farmers and aboriginal nations along the Darling-Baaka and the Menindee Lakes," said Ms Faehrmann.

"Many stakeholders have expressed their alarm that, once again, these floodplain harvesting regulations appear to have been made in the interests of the big irrigators in the northern basin and no one else.

"This inquiry will give a voice to communities, farmers and First Nations people along the Darling-Baaka River who have been silenced throughout this process."

The regulations which were blocked in parliament, included:

- The process of determining floodplain harvesting licences

- Specifying how floodplain harvesting will be measured

- Providing an exemption for rainfall runoff into an irrigation tailwater drain in certain locations, during specified times.

Mrs Pavey said the regulations were consulted on extensively in 2020 by the Department of Planning, Industry and Environment.

"I've said all along, if you can't measure it, you can't manage it," Mrs Pavey said when announcing the regulations on April 30.

"The amendments made are a significant step in bringing floodplain harvesting into a clear and enforceable regulatory framework, ensuring that floodplain harvesting remains within legal limits."

Mr Field, who also successfully moved a motion to disallow the floodplain harvesting exemption last year, acknowledged the argument that the regulations were simply setting up the basic framework for licencing of the practice.

However, he said he wanted to see communities and the environment protected by downstream targets before he signed off on any floodplain harvesting regulations.

"I'm not going to give the government a blank cheque to come up with rules that don't meet the needs for downstream users and the environment," Mr Field said.

"We owe it to everyone to have a clear set of rules on the table before we give this a green light."

The latest challenge to floodplain harvesting regulations led to division in the Shooters, Fishers and Farmers party, with Murray MP Helen Dalton standing firmly against the regulations, which her colleague, Barwon MP Roy Butler, had reportedly helped the government design.

Mrs Dalton argued the NSW government was "doing things backwards."

"The first thing they need to do is guarantee water flows down the Darling River," Mrs Dalton said.

"The main problem with the NSW Government's rules is that they failed to ensure water take in the Northern Basin will be within the legal limits for extraction."

Mr Butler said he also supports downstream targets and has spoken to the Water Minister on that issue.

However, he said if the floodplain harvesting regulations were disallowed they will be left with no enforcement of the CAP.

"CAP compliance will mean a reduction in use - there has been documented growth above CAP in some areas," Mr Butler said.

NSW Irrigators Council (NSWIC) have argued that the regulations would actually improve water security for downstream communities and the environment.

"Importantly, these regulations do not involve new or more water to irrigators - quite the opposite - licensing will cutback the amount of floodwater that can be accessed when it does flood," NSWIC policy manager Christine Freak said.

"Without licensing, there's no cutback, no accountability, and no safeguards."

A statement released by the peak body acknowledged calls for downstream targets but said evidence indicated that the best way to improve connectivity is to manage water in the river channel, not that has already spilled into vast floodplains that may never again reach a river.

"Drought management is an incredibly important conversation to ensure critical human and environmental needs are prioritised, but it's a separate conversation to flood management," Ms Freak said.

"Irrigators support a rules-based approach but to do that properly and scientifically takes time. In the meantime, our industry has a responsibility to ensure floodplain harvesting is cutback to be compliant with the state's water use limits and properly metered, which these regulations require of irrigators."

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