Disallowance of the Water Management (General) Amendment (Exemptions for Floodplain Harvesting) Regulation 2020

The regulation was disallowed by the Upper House on 22 September 2020.

We had the regulation to provide a clear and legally enforceable transitional arrangement for floodplain harvesting under the Water Management Act 2000. The regulation provided legal certainty that some (but not all) forms of floodplain harvesting could be carried out in reliance on the exemption, until the long-term solution of issuing licences is put into place.

No. Floodplain harvesting occurs in all designated floodplains across NSW without regulation. There are five designated floodplains in the north of the state and ten in the south. We have prioritised implementation of the NSW Floodplain Harvesting Policy in the Northern Basin because floodplain harvesting in this area has grown above legal limits and this growth is taking water away from other water users and the environment. Although floodplain harvesting also occurs in the south without regulation, it is unlikely to have grown in excess of legal limits at this stage.

The disallowance reinstates the confusion that existed prior to the regulation about the legality of floodplain harvesting until it is licensed under the Water Management Act 2000. The fact that the NSW Floodplain Harvesting Policy has not been fully implemented creates inconsistency between the offence provisions in the Act and the historically legitimate take of water through floodplain harvesting. It has not yet been possible for any landholder to obtain the licences and approvals required for floodplain harvesting. Although there is a process underway to grant these licences and approvals in the Northern Basin by 1 July 2021, there is no similar process underway for the Southern Basin. In effect, if we do nothing, historically legitimate floodplain harvesting in the Southern Basin will still be uncertain post 1 July 2021.

The NSW Government intends to make another exemption regulation that addresses the concerns expressed through the recent parliamentary inquiry.

The regulation provided a clear legal basis for certain types of floodplain harvesting, so when the regulation was in place, it meant that floodplain harvesting of that nature was clearly a legal activity. Now that the regulation has been disallowed, the lawfulness of floodplain harvesting is once again unclear.

Limits on the total amount of water that can be taken from a water source, including by floodplain harvesting, are set by both NSW Water Sharing Plans and the Basin Plan. Issuing floodplain harvesting licences will set specific limits for floodplain harvesting within those total limits. Since 2013, the NSW Government has had a clear plan to do this - by implementing the NSW Floodplain Harvesting Policy.

Any unmanaged growth in floodplain harvesting will have to be offset by reducing the volume of water that can be taken under supplementary licences in the same water source – as per current Water Sharing Plan rules. This ensures that downstream water users will not be adversely affected by unmanaged growth in floodplain harvesting.

If floodplain harvesting is never licensed or exempt, then the volume of water historically taken from floodplains could potentially be taken from rivers and creeks instead. This would come at a very significant cost to all water users in the Basin as it would significantly diminish river flows. It is in the best interest of all stakeholders that historically legitimate floodplain harvesting be licensed, measured and managed within legal limits.