Amendments to water regulations for floodplain harvesting

Background

In 2008, the NSW Government declared that water users taking water directly from floodplains need to hold a licence and a water supply work approval. Two policies have been developed by the department to provide a framework for licensing and measuring floodplain harvesting take. These are the NSW Floodplain Harvesting Policy and the NSW Floodplain Harvesting Measurement Policy.  To be legally enforceable, these policies must be incorporated in legislation. Read more on how legislation, water sharing plans, licences, approvals and conditions, form the licensing framework for floodplain harvesting.

The Select Committee on Floodplain Harvesting was established on 23 June 2021 to inquire and report on the Government’s management of floodplain harvesting and handed down its findings and recommendations on 15 December 2021. The NSW government supports in full or part, 20 of the select committee's 25 recommendations to be delivered through implementation of the NSW Harvesting Policy and other complementary reform programs. View the NSW Government response.

Amendments that commenced 1 July 2022

The NSW Government has introduced two separate amending regulations to enable the restriction, control and measurement of floodplain harvesting. The amending regulation that enables measurement is required to monitor and enforce licence volumes for the NSW Border Rivers and Gwydir Valleys that are due to take effect in August-September 2022. Put simply, without this regulation there will be floodplain harvesting licences in the Border Rivers and Gwydir Valleys without mandatory measurement conditions.

Separately, the amending regulation that enables licensing will allow the determination of floodplain harvesting licences in the Macquarie, Barwon-Darling and Namoi Valleys. Without this we will be unable to achieve core elements of the Select Committee’s recommendations, in particular,

  • enforcement of limits on take, to comply with the legal limits in water sharing plans and under Murray Darling Basin Plan,
  • the installation of accurate measurement equipment for every user, and
  • the collection and reporting of data on water take through floodplain harvesting.

Action on licencing and measuring floodplain harvesting is essential to enforce legal limits and improve security and certainty for all water users and the environment.

These amendments formalise the processes and requirements of the NSW Floodplain Harvesting Policy, NSW Floodplain Harvesting Measurement Policy and Guideline for the implementation of the NSW Floodplain Harvesting Policy

Key differences with these amendments

The key differences between the amending regulations that commenced on 1 July 2022 and the amending regulations disallowed on 24 February 2022 are outlined below.

Regulation disallowed 24 February 2022 Change in Regulation commenced 1 July 2022 Effect of this change
Exemption for rainfall run-off collected in a tailwater drain No change. None
Floodplain harvesting access licences determination process A minor change was made to clarify the meaning of ‘related or connected’ works under clause 23B. This clause refers to approvals for eligible works.
A minor change to allow for floodplain harvesting access licences, once determined under the amending regulation, to nominate a water supply work approval under section 71W of the Water Management Act 2000, once the approval is granted.
This change clarifies the meaning of ‘related or connected’ works. It does not change the intent of the clause.
This change allows for water supply work approvals to be nominated by the floodplain harvesting licences determined prior to the disallowance on 24 February 2022, when the water supply work approval is granted.
Measurement requirement The roll out date for floodplain harvesters to install primary metering equipment, has been set at a uniform rule of 12 months from when floodplain harvesting access licences were issued (clause 238V). Previously the rollout dates were 6 months for large storages and 12-months for small storages. 12 months has now been adopted universally, as market analysis indicates that the 6-month compliance date is not achievable.
No irrigation is permitted during a measurement period from a storage that is nominated on a floodplain harvesting work approval if the storage measurement method is adopted (clause 238F). The storage measurement method relies on metering changes in storage level. No water is permitted to be taken out of storage during a measurement period because this would result in inaccurate measurement, and the rules have been amended to reflect this. Clear rules support compliance.
In line with the Floodplain harvesting measurement policy 2020, reporting requirements have been streamlined and reduced to only those that are permitted to be deducted (metered) from storage volume changes, in calculating floodplain harvesting volumes (clauses 238F and 238G). Reporting rules have been reduced to remove duplication and ensure that only metered take under another licence category, can be deducted from the storage volumes in calculating the volume taken through floodplain harvesting.
Minor amendments were also made to definitions to provide greater clarity for implementation. For example, including a definition that the measurement period does not end until supply channels, being infrastructure to direct or convey water to a work for storage, cease to convey water to the works (clause 238F). Clearer regulation drafting to improve compliance with the rules.

Licenses already determined

Replacement floodplain harvesting water access licences for the NSW Border Rivers and Gwydir valleys were determined under the Regulations in force in February 2022. This Compliance with regulations for issuing licences (PDF, 256.52 KB) fact sheet, details how requirements for determining replacement floodplain harvesting licences under that regulation were complied with and how requirements will be complied with in determining licences in other valleys under the amending regulation 1 July 2022.

Consultation on the amendments

As part of the legislative process, the department consulted the public and stakeholders on four packages of proposed amendments to the Water Management (General) Regulation 2018 between 23 November and 20 December 2020.Three packages - Licence determination, Measurement and the Tailwater drain exemption, were retained.  As these have not changed materially since, no further consultation has been undertaken.

One package, amendments proposed on transitional exemptions in 2020, did not proceed due to submissions received at that time and the limited period it would apply.