The NSW Government has released draft regulations on floodplain harvesting that will amend the Water Management Regulation 2018 (NSW). This includes the framework that will apply to the licensing of floodplain harvesting (i.e. the creation of permanent property rights). It also includes a range of exemptions that will apply to works approvals and licensing until this new licensing framework is implemented (slated for mid- 2021).
The EDO supports the licensing and metering of floodplain harvesting. However, given the complexity and fraught nature of this issue, we believe that the proposed amendments require proper scrutiny.
We therefore wish to advise that though we will not be making a public submission by the deadline of 20 December 2020, we will publish a detailed legal analysis in late January/early February.
We also note that the EDO recently published an article analysing the legal, environmental and cultural issues associated with floodplain harvesting. The article set out a series of recommendations designed to address these issues. This included embedding downstream flow targets in water sharing plans to maintain flows throughout the system. We discuss the importance of flow targets – including in relation to low flows – in another article on ‘connectivity’.
Finally, we note that any floodplain harvesting that occurs in the coming months must be undertaken consistently with the overarching requirements of the WM Act. These requirements include, but are not limited to, the priority of use provisions in the Act. These provisions state that ecosystem, drinking water, stock and native title needs must be met before other, consumptive uses. It may be necessary to impose embargos to protect flows so that these needs can be met. There is no legal impediment to imposing embargos on floodplain harvesting before the draft regulations are tabled in Parliament (see ss. 323 and 324 of the WM Act).
