Dr Emma Carmody, Managing Lawyer, Freshwater Team
Huw Calford, Solicitor, Freshwater Team
After more than two years of delays, a crucial element of the Murray-Darling Basin Plan (Basin Plan) – NSW’s Water Resource Plans (WRPs) – remains incomplete. On 20 April 2021, the Senate Committee investigating management of the Basin Plan heard that up to 19 of the state’s 20 draft WRPs may soon be withdrawn for resubmission. As EDO’s Freshwater Team explains, this latest development has raised serious questions about the law – and lack of transparency – surrounding this process.
What are WRPs?
WRPs are complex legal instruments that are provided for under the Water Act 2007 (Water Act) and Basin Plan. They set out how water is to be managed and shared at the catchment scale, set aside water for the environment and notably include overall limits on how much water can be extracted for ‘consumptive’ purposes such as irrigation and mining. They are accordingly one of the most important parts of the Basin Plan implementation process.
WRPs must comply with a series of requirements that are set out in the Basin Plan[1] and Water Act. For example, they must maintain or improve the level of protection that was provided for ‘planned environmental water’ before the Basin Plan became law in late 2012.[2] This is logical insofar as the point of the Basin Plan was to return more water to the environment – not erode what was already there.
When were WRPs supposed to be submitted?
The Water Regulations 2008 (Cth) (Water Regulations) state that basin states must prepare WRPs for Commonwealth approval by no later than 28 February 2019.[3] The Water Regulations allowed this deadline to be extended until 31 December 2019,[4] with an agreement to this effect having been entered into between NSW and the Commonwealth.[5] After NSW failed to meet this extended deadline, a further agreement between NSW and the Commonwealth put interim measures in place until the WRPs are approved.[6]
What’s the current status of NSW’s WRPs?
By 30 June 2020, NSW had submitted all 20 of its WRPs for Commonwealth assessment and accreditation. However, 3 of the WRPs have since formally been withdrawn.[7] Further, on 20 April 2021, the Senate Committee investigating management of the Basin Plan heard that up to 19 of NSWs 20 WRPs may be withdrawn for resubmission.[8] In a communiqué dated 22 April 2021, the MDBA indicated that it had completed its assessment of six of these WRPs and undertaken a preliminary assessment of the remaining 14.
What is the legal framework for the accreditation of WRPs?
Before discussing the notion of ‘withdrawing’ a WRP, it is important to understand the legal framework surrounding their accreditation at the Commonwealth level, which is set out in the Water Act.[9] In short, basin states may provide proposed WRPs to the MDBA and then ask the MDBA to give the proposed water resource plans to the Minister for accreditation.[10] The MDBA must then:
- consider the proposed WRP; and
- prepare recommendations for the Minister on whether the proposed WRP should be accredited; and
- give the Minister the proposed WRP and the recommendations.[11]
The Minister is required to accredit WRPs which the Minister is satisfied are consistent with the Basin Plan.[12]
Can the MDBA ‘reject’ a WRP?
Contrary to popular belief, there is no actual legislative mechanism for the MDBA to ‘return’ to a basin state any WRP that it considers to be non-compliant for amendment and resubmission. Nor is there any legislated timeframe by which the MDBA is required to carry out its obligations to provide WRPs to the Minister.[13]
Can a basin state withdraw a WRP?
The MDBA has emphasised that the withdrawal of proposed WRPs is not an unusual step in resolving inconsistencies with the Basin Plan before resubmission for Commonwealth assessment.[14] Victoria and the ACT also previously withdrew WRPs before resubmission and accreditation.[15]
We have been unable to identify any specific legislative mechanism for a basin state to withdraw a WRP. In practice, it appears that where the MDBA considers elements of a WRP to be non-compliant with the requirements of the Basin Plan and/or Water Act, the relevant basin state may choose to withdraw the proposed WRP in order to make further amendments before resubmission. However – and as discussed below – in the absence of any transparency around this process, the community has no way of knowing the precise reasons for withdrawing a given WRP.
Lack of public transparency
While a WRP is required to contain details of consultation undertaken in relation to the plan,[16] the is no requirement that the MDBA or NSW make public the reasons for the withdrawal of WRPs. This is problematic considering that the NSW Department of Planning, Industry and the Environment (DPIE) emphasises the proposed WRPs were the result of three years of public consultation and discussion with stakeholders and the community.[17]
There is also no guarantee that the public will be consulted regarding any changes to the withdrawn WRPs before they are resubmitted.
Conclusion
With the statutory timeframes for the submissions of WRPs now well elapsed, no legislative timeframe for the resubmission of withdrawn WRPs and no legislative timeframe by which the MDBA must review WRPs, there is no certainty as to when NSW’s WRPs may ultimately be ready for accreditation.
Consequently, a central element of the Basin Plan is yet to commence in NSW despite the Plan being signed into law over 8 years ago.
It is crucial that the MDBA and the NSW Government increase transparency regarding the remaining WRPs. In particular, the reasons that submitted WRPs have been (or will be) withdrawn should be made public, and further public consultation should occur in respect of further amendments to the proposed WRPs.
References
[1] In particular Chapter 10.
[2] Water Act, s. 21(5); Basin Plan cl 10.28.
[3] Water Regulations, reg 2.11(2).
[4] Water Regulations, regs 2.11(5)-(7).
[5] Agreement between Murray-Darling Basin Authority and State of New South Wales, 28 February 2019.
[6] Agreement between Murray-Darling Basin Authority and State of New South Wales, 1 June 2020.
[7] The Lachlan SW WRP was withdrawn in November 2020 according to the MDBA March 2021 Water resource plans – quarterly report. The MDBA website indicates, here, that the Namoi Alluvium and Namoi SW WRPs were withdrawn in March 2021. In a communiqué dated 22 April 2021, the MDBA indicated that these WRP had been withdrawn in order to rectify inconsistencies with the Basin Plan.
[8] Jamieson Murphy, Farm Online National, NSW Water Plan withdrawals highlight transparency woes, 21 April 2021
[9] This process is set out in Part 2, Division 2, Subdivision D of the Water Act.
[10] Water Act, s 63(1).
[11] Water Act, s 63(3).
[12] Water Act, s 63(6).
[13] Water Act, s 63(3).
[14] Jamieson Murphy, Farm Online National, NSW Water Plan withdrawals highlight transparency woes, 21 April 2021; MDBA Communique, 24 March 2021.
[15] This is detailed in the MDBA December 2019 Water resource plans – quarterly report
[16] Basin Plan, cl 10.07.
[17] See DPIE website, here.
