The Andrews government cannot identify any legislation it needed to override, but experts say that is the point.When Daniel Andrews signed a declaration for a state of disaster in Victoria at 1.43pm on Sunday, it was a part of a final salvo in a battle to control a resurgent and invisible enemy.
Floodplain harvesting in NSW
Powerful cotton irrigators in northern New South Wales are facing significant legal and parliamentary challenges to the method by which they get up to a third of their water, unmeasured, unlicensed and free.
The entrenched practice of floodplain harvesting “is an ongoing heist”, according to the Horne brothers of Aqua Law, lawyers representing thousands of irrigators from the southern Riverina. They claim the practice has already robbed the Murray–Darling Basin – Australia’s biggest river system – of hundreds of millions of dollars’ worth of water.
The Hornes’ focus is a NSW government regulation, issued in February, which protects floodplain harvesting from criminal prosecution. It is currently being investigated by the state’s regulation committee. If the committee recommends a disallowance, the legal and financial underpinnings of irrigated cotton will be thrown into doubt.
“Water is money,” says Tim Horne. “Water is like gold. But unlike gold, or other commodities, water flows – across floodplains, borders and legal jurisdictions.” He lays out a scenario: “One irrigator takes 10,000 [megalitres] at $100 per megalitre. That’s a million dollars. Hundreds of irrigators – bigger, smaller – all doing the same. It happens on a massive scale and has been mostly illegal.”
For millennia, the vast northern basin, which covers southern Queensland and northern NSW, has been replenished by floodwaters that make their way down an extraordinary network of braided rivers, streams and plains. In just 25 years though, irrigators have been able to construct their own network of industrial-scale levees, banks, channels and dams, physically transforming the landscape of north-western NSW. Irrigators say they’ve been waiting for the NSW government to deliver on its promise to license floodplain harvesting, a process that began about 2008 but is yet to issue any licences.
Today there are nearly 1400 private dams and storages registered in the NSW northern basin and more than 600 individual and corporate properties eligible for harvesting. Floodworks are embedded in the spreadsheets and business models of most of them. In the heavily developed Gwydir Valley, modelling shows that 40 per cent of irrigation water is “harvested”, rather than pumped from rivers and creeks.
“Floodwaters that once filled waterholes and wetlands and flowed back into the river system rarely get past the levees,” says Tim Horne. “It’s an ecological and human tragedy.”
Ben Horne says February’s regulation aided northern irrigators at the expense of everyone else who relies on the Murray–Darling for their livelihood. “Not only did it serve to decriminalise floodplain harvesting,” he says, “but it also gifted and subsidised the use of it for a lucky few.”
Chris Brooks, who chairs Southern Riverina Irrigators, the Hornes’ client, says economic damage to southern basin communities is more than $25 billion. “We argue it’s a result of the unfettered, illegal water take in the north,” he says.
In 2012, the Darling River’s annual average contribution to South Australia’s water entitlement was 39 per cent, according to the Murray–Darling Basin Authority. But for at least five of the past eight years, the Darling hasn’t even reached the Murray River, let alone South Australia.
February’s northern rain event dumped more than 20,000 gigalitres of water over Queensland and northern NSW. Despite this, little more than a dirty trickle finally made it through to the Murray by mid-April.
“A lot of water just disappeared in the north,” says water expert Bill Johnson, who spent 20 years in the northern basin as an environmental water manager for the NSW government.
No one knows exactly how much water was “harvested”. Johnson believes northern NSW irrigators took several hundred gigalitres, at least.
Government figures support Johnson’s estimate. A spokesperson said there is “difficulty in determining volumes”, but approximately 350 gigalitres was in storage by the end of March, including water such as “stock and domestic”.
“Stock and domestic is tiny,” explains Johnson. “Essentially, we’re in agreement.”
And, he says, this has serious implications: “This makes the basin plan irrelevant. Harvested volumes are greater than what’s bought back. Taxpayers are spending $13 billion to cap and reduce irrigator extractions, but it’s been hijacked.”
Ahead of February’s rain, irrigators were under pressure from a new “cop on the block”, the Natural Resources Access Regulator (NRAR), which was threatening to prosecute floodplain harvesters. NRAR was established in 2017 by former NSW Water minister Niall Blair, after the explosive revelations in the ABC Four Corners investigation “Pumped”.
During stakeholder meetings across the northern basin in 2019, NRAR made clear that without licences, floodplain harvesting breached the NSW Water Management Act 2000. The regulator told irrigators it would be enforcing the law, but many argued their harvesting rights still existed under much older legislation.
“The rules had changed. There was anxiety and uncertainty over what we could and couldn’t do,” says Zara Lowien of the Gwydir Valley Irrigators Association. “Floodplain harvesting is an important source of water. It’s frustrating the government has taken so long with licensing it.”
With the flood event under way, NSW’s new Water minister, Melinda Pavey, and her department faced intense lobbying from irrigators desperate to harvest, revealed by emails obtained by the NSW Shooters, Fishers and Farmers Party.
For many operators, it was impossible not to harvest – as one cotton grower told The Saturday Paper, his farm is so well engineered to catch water, he would have to go to the ludicrous effort of building anti-floodplain-harvesting levees to direct water away.
Instead of the long-promised floodplain harvesting licences, Pavey’s department quietly issued a regulation on February 7 that exempted irrigators from holding them. It was done without press release or fanfare, but the move caught the attention of independent upper house MP Justin Field.
“The government should not be able to use this regulation to avoid the difficult challenge of licensing floodplain harvesting,” says Field, who immediately moved a disallowance motion. “The minister just exempts all irrigators from the law? For how long? For good?”
The NSW legislative council’s regulation committee is now investigating the regulation and may recommend a disallowance. In their submission, the Horne brothers claim any take above the 1993-94 level of development – the cap agreed by the member states of the Murray–Darling Basin Council in 1995 – has been against the law.
Despite that agreement, a rapid expansion of irrigation proceeded unchecked. In 2018, the report of the South Australian Murray–Darling Basin Royal Commission described the scale of unmeasured floodplain harvesting as “one of the most significant threats to water security in the Northern Murray–Darling Basin to both licence holders and downstream states”.
The NSW government’s discretion around February’s regulation contrasted with its trumpeted announcement of a floodplain harvesting embargo to allow flows to reach the desperately dry Darling River.
By the next day though, the embargo was partially lifted in the Namoi and Gwydir valleys. Further relaxations were announced for other valleys, giving free rein to harvest the floodwaters for several days.
Crucially, the government created a new category of “passive” floodplain harvesting, exempted from the February embargo.
“It was a sick joke,” says Tim Horne. “Embargoes have no effect when the land has been transformed to passively catch overland flows. Only a very small volume was ever going to make it back into the system.”
Bill Johnson agrees that most floodplain harvesting is “passive”. “You’ve got masses of water up against levees,” he says. “Farmers don’t have enough pumps, but they don’t need to pump most of it, and gravity is cheaper than diesel.”
Minister Pavey publicly acknowledged as much during a recent Farm Writers’ Association webinar, as have irrigators, who told The Saturday Paper that gravity gets most water into storage – whether it’s “runoff harvest”, “rainfall harvest” or “floodplain harvest”.
In Johnson’s view, it’s the language of the con. “These terms are interchangeable and an invitation for substitution,” he says.
The impact of floodplain harvesting reaches far beyond the Darling – to thousands of farmers who live along the Murray River in the south of the country. To families such as the Hornes.
Growing up in Berrigan, a NSW town near the Victorian border, the brothers recall a lively community. “Our allocations were high – certainly enough to grow rice, which everyone did across the district,” says Ben Horne.
During the last drought though, much of the water from the Murray River’s Hume Dam flowed past thousands of farmers in NSW, earmarked for massive almond plantations that had bought up water on the open market, as environmental flows or to meet South Australia’s needs. All NSW irrigators with general security licences got nothing.
Rice production collapsed. Hundreds of jobs went at the Deniliquin mill. Gates closed on some 65 of the region’s 90 dairies. The number of suicides shot up, according to locals. “Everyone knows someone who’s gone,” says Ben Horne.
“The district is dejected, running on debt,” says Ben and Tim’s father, Chris.
Horne snr says things won’t improve if the Darling doesn’t flow again. “It’s all on the Murray River now. It’s doing the heavy lifting.”
If the NSW parliament disallows the government’s regulation, floodplain harvesting will be back in legal limbo.
But the NSW opposition Water spokesman, Clayton Barr, says the situation can’t continue as it has.
“We have a mountain of clear, expert opinion,” he says. “Overextraction in the north is killing the river system.”
The problem for the NSW government is that without the regulation in place, it will be forced to deliver on its promise to issue licences. But its own policy prohibits licences for any works built or approved after July 3, 2008 – meaning many irrigators will not be eligible. If it tries to change that though, other states will object to the massive amounts of water being granted.
“It’s a mess,” says Barr. “There’s been enormous development of the floodplains since 2008, hundreds of millions of dollars invested, including significant taxpayer grants.”
For Tim Horne, there are no easy answers. “If the infrastructure stays, the basin plan fails. We are left with dying or disconnected rivers serving the economic interests of a few,” he says. “But how do we get back to that lawful ’93-’94 level of development? It’s a tough one.”
The Hornes say they will shift their fight to the NSW Supreme Court if the regulation is not disallowed. “People along the Murray have grit,” says Ben Horne. “They won’t give up.”
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This article was first published in the print edition of The Saturday Paper on Jul 18, 2020 as "Going with the flow".
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