At the start of this month, our EDO Freshwater team were pleased to see the NSW Government roll out the first stage of its non-urban water metering framework.
The new metering laws aim to create a robust metering framework to improve the standard and coverage of non-urban water meters across the state and help build community confidence in how the state’s water is managed.
The recently released ICAC report into water management in NSW identified systemic irrigator-bias and a failure to properly implement the state’s water laws. Against this backdrop, we remain positive but vigilant regarding the staged implementation of these new metering laws.
These reforms are a vital step for NSW, and it’s imperative this framework is implemented as scheduled and upheld every step of the way, for both water users and our environment.
The long road to reform
These new laws have been years in the making.
Investigations and inquiries commenced back in 2017, following a Four Corners investigation into allegations of water theft and maladministration in the Murray-Darling Basin, in part based on a forensic, year-long investigation by EDO on behalf of our client.
Following a subsequent report by Mr Ken Matthews AO, the NSW Parliament established the Natural Resources Access Regulator Act 2017 which introduced an independent Natural Resources Access Regulator (NRAR).
Further reforms to NSW water laws followed in 2018, including this new metering framework, which began phased implementation across different parts of the state from 1 December 2020.
The role of water metering in compliance and enforcement
These laws form an important piece of NRAR’s current focus of water regulation, “a key part of which is to prevent, detect and stop illegal water activities”.
Accurate data from properly functioning meters is the most important line of evidence for any water regulator. Without this evidence, it can be difficult to prove beyond reasonable doubt that a water-related offence has occurred (that is, to meet the criminal burden of proof in court).
This is why offence provisions and a regulator are not enough: evidence in the form of reliable water metering data is required to ensure a regulator can actually enforce the law.
“We can’t manage what we don’t measure,” Dr Emma Carmody, Managing Lawyer of EDO’s Freshwater team said.
“NSW cannot afford to ‘guess’ whether people are taking more than their fair share or not.
“We must accurately measure all water take to ensure that everyone is getting their fair share, and independently verify these measurements. NSW now has the legislation and means to do so – subject to the metering provisions being properly implemented between now and 2023.”
Accurate metering and clear rules are fundamental for compliance and community confidence and trust in the system. Properly metered water usage also offers water users – the majority of which are farmers – to demonstrate to society that they are indeed complying with the law. “This is a win-win outcome”, says EDO’s Dr Emma Carmody.
The importance of education
NSW faces the challenge of having the largest number of water licenses in Australia and the largest volume of water to manage, which makes effective and transparent legislation and implementation all the more important.
Novel research by EDO’s Dr Emma Carmody and an international team of experts has shown that when people understand water regulations and believe everyone else is obeying the rules, water theft is much lower. The EDO therefore encourages industry groups to work with their members to ensure that they understand and comply with the regulatory framework.
The importance of good water governance
We celebrate and welcome the transformative law reform and deliberate action from the NSW Government and the independent NRAR, but strongly encourage continual evaluation and improvement to water governance in NSW.
This includes implementing the current legislative changes as planned, ensuring the NRAR is properly funded, expanding these new laws to include a ‘no meter, no pump’ rule and extending telemetry to groundwater.
With these additions, the NRAR will have the data it needs to detect and stop illegal water activities, identify trends and increase community confidence in the system of water management in NSW.
Water is our single most important natural resource, and in the context of a highly water scarce continent with a long history of unsustainable water levels, protecting our freshwater is imperative. Our lawyers will be watching with optimism as NSW continues on its path to improving water governance to protect this shared, scarce resource.
