Amendments to water regulations for floodplain harvesting

Amendments were made to the Water Management (General) Regulation 2018 on 17 December 2021 to set out the process for issuing floodplain harvesting licences and the measurement requirements on those licences. The amendments commenced on 14 February 2022 but were subsequently disallowed on 24 February 2022.

The disallowance and NSW Legislative Council inquiry into the NSW Government’s management of floodplain harvesting mean that implementation dates for the NSW Floodplain Harvesting Policy remain uncertain. The timelines for expected dates that licensing would come into effect for the Macquarie, Barwon-Darling and Namoi valleys are no longer current. The dates specified in our reports and guidelines may therefore be superseded.

The department remains committed to the task of regulating floodplain harvesting to legal limits set out in NSW water sharing plans and the Basin Plan so that we can meet our legislative obligations, improve environmental and connectivity outcomes and provide clarity for all water users and the regulator.

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.

The department has developed the NSW Floodplain Harvesting Policy and the NSW Floodplain Harvesting Measurement Policy. Together, these policies provide a framework for licensing and measuring floodplain harvesting take. To have legal force, these policies must be incorporated into the legislative framework.

Amendments made on 17 December 2021

On 15 December 2021, amendments were made to the Water Management (General) Regulation 2018 to set out the process for issuing floodplain harvesting licences and the measurement requirements on those licences. The amendments had commenced on 14 February 2022.

The amendments, had they not been disallowed on 24 February 2022, would have formalised 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.

The amendments were mostly unchanged from the following three amending regulations that were adopted on 28 April 2021 and subsequently disallowed by the NSW Legislative Council on 6 May 2021:

  • Water Management (General) Amendment (Floodplain Harvesting Access Licences) Regulation 2021 (Access Licences Regulation)
  • Water Management (General) Amendment (Exemption for Rainfall Run-off Collection) Regulation 2021 (Rainfall Run-off Collection Regulation)
  • Water Management (General) Amendment (Floodplain Harvesting Measurement) Regulation 2021 (Measurement Regulation)

The department has determined replacement floodplain harvesting water access licences for floodplain harvesting in the NSW Border Rivers and Gwydir valleys. The department has developed a Compliance with regulations for issuing licences PDF, 256.52 KB fact sheet, which details how it has complied with requirements for determining replacement floodplain harvesting licences under the Water Management (General) Regulation 2018 in force on 21 February 2022.

The key differences between the amending regulations adopted in April 2021 and those commencing on 14 February 2022 are outlined below.

Regulation adopted April 2021 Regulation adopted December 2021
Rainfall run-off collection regulation No changes were made.
Measurement regulation A drafting error was corrected in clause 238B and 238F.

The transitional arrangements were updated in clause 238V and 238W due to delays resulting from the disallowance in May 2021.

The offence provisions were removed to reduce stakeholder confusion as they related to both floodplain harvesting measurement and non-urban metering. These provisions will be included in early 2022.
Access licences regulation The eligibility criteria under clause 23B were updated to remove subjectivity in relation to works that did not have an approval on 3 July 2008. Specifically, removal of the reference:
  • to an approval being required under the Water Management Act 2000, as a proclamation was yet to commence in the relevant water sources at this date
  • to an approval being required under Part 2 of the Water Act 1912, as this was not the practice of the department.

Consultation on proposed 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.

Four packages

The four packages included:

  1. Licence determination - the process for how actual or proposed floodplain water usage by landholders will be converted into replacement floodplain harvesting licences.
  2. Measurement - the requirements for measuring and reporting floodplain harvesting take as specified in the NSW Floodplain Harvesting Measurement Policy.
  3. Tailwater drain exemption - an exemption to hold a licence and works approval for rainfall runoff collected in a tailwater drain.
  4. Transitional exemption* - a temporary exemption from the need to hold a licence and works approval ahead of commencement of the licensing framework commencing through implementation of the NSW Floodplain Harvesting Measurement Policy.

There are three reports on the outcomes of consultation:

Amendments that were disallowed on 6 May 2021

Following consultation and the legislative process, changes to the Regulation include:

1. Licence determination

Sets out the staged process for determination of floodplain harvesting licences. If a landholder meets the requirements of each stage, a floodplain harvesting access licence will be issued, with share components determined in accordance with the Regulation.

This Regulation provides clarity for landholders and the broader public, outlining what steps the department must legally follow to determine a floodplain harvesting access licence. It makes sure the process is consistent in each valley where floodplain harvesting licences are issued, both now and in the future.

A booklet for landholders with licences on unregulated rivers in NSW - Volumetric Conversion – the next stage

2. Measurement

Sets out the measurement requirements that apply to floodplain harvesting, in line with NSW Floodplain Harvesting Measurement Policy.

Storages used to collect water under a floodplain harvesting access licence must be fitted with compliant metering, data logging and telemetry equipment, and tamper-evident seals. Equipment must be installed and signed off by a ‘duly qualified person’.

The changes also set out requirements for reporting water take during a flood event and processes to follow if metering equipment fails.

3. Tailwater drain exemption

This exemption is in recognition that measuring rainfall run-off collected in a tailwater drain is complex. Much of the run-off may be used irrigation water that has already been measured under an existing water access licence. This change provides an exemption from the need for: a) a water supply work approval for the use of tailwater drain; and b) a water access licence for the collection of rainfall run-off.

This exemption applies when no other overland flow is being taken by works on the land, other than a tailwater drain. When this exemption does not apply, the volume of water collected in a tailwater drain must be measured and accounted for under a licence.


* Based on submissions received and the limited period that it would apply, the NSW Government has decided not to proceed with the proposed transitional exemptions.

Amendments that were disallowed on 22 September 2020

The amendments, made on 6 February 2020, provided an exemption from the requirement to hold a water access licence for the purpose of floodplain harvesting. This exemption was subject to the taking of water through an eligible work. The regulation was disallowed by the Upper House of the NSW Legislative Council on 22 September 2020. For more information see our online FAQs.