Bret Walker, SC, has told a NSW parliamentary committee it is not an offence to carry out floodplain harvesting if a person does not have a water access licence.
Some irrigator bodies are contending they have advice it is illegal, and are campaigning to bring the practice under control because of the water being removed from the Darling River basin.
Mr Walker answered questions from the committee in a six-page response to eight questions, which is available on the NSW Legislative Council select committee’s website.
Representing Southern Riverina Irrigators, lawyer Tim Horne told the parliamentary committee they had a legal opinion that floodplain harvesting was not a lawful activity without a right or a licence.
“There is a major difference between the practice of it being legal and the current volumes that NSW claim to have been legal and permitted in 1994 and again in 2009,” he said.
Mr Horne agreed with questions that floodplain harvesting was not specifically permitted under legislation.
SRI chair Chris Brooks told the inquiry: “We want everyone to comply with the rules.”
He said the distortions that were being allowed in the Murray-Darling Basin Plan were taking water out of the environment and “giving it to the north”.
He was questioned by National Party committee member Sam Farraway over whether floodplain harvesting caused the Barwon-Darling river to run dry.
“How would you explain that it has been flowing strongly since February and we are seeing Menindee Lakes full?” Mr Farraway asked.
“It just goes to show what a wet year it was to fill those storages to the brim,’’ Mr Brooks replied.
“It’s been an extremely wet season.”
Mr Brooks said they had commissioned a report on the size of the private dams harvesting floodplains and they had tripled in size since 1994.
“In a normal rainfall season, if the dams are filled first there will not be enough water to flow down the river to give connectivity to the Murray.”
He denied there was any floodplain harvesting of any significant size occurring in the southern basin.
He was also questioned over the size of the estimated floodplain harvesting take.
“If you allow floodplain harvesting as proposed by the NSW DPI at the moment it will remove 720,000 Ml of long-term, average annual flows out of the Darling into the Murray which were destined for the South Australian border,” Mr Brooks said.
“When it doesn’t come down the Darling that volume is taken from our storages here in the Murray, the Hume Weir, and that is equal to close to 100 per cent of our allocation.
“So that’s why southern people are concerned about restricting the floodplain harvesting take to the regulated, legislated Murray-Darling Basin cap volumes.”
The inquiry is continuing.
