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Murray-Darling Basin irrigators look set to win rule changes after FOI documents reveal lobbying efforts

ABC News logo ABC News 25/06/2020 By national science, technology and environment reporter Michael Slezak and the Specialist Reporting Team's Penny Timms
a man looking at the camera: Menindee farmer Graeme McCrabb described over-extraction as 'the biggest problem in the Darling'. (ABC Rural: Saskia Mabin) © Provided by ABC News Menindee farmer Graeme McCrabb described over-extraction as 'the biggest problem in the Darling'. (ABC Rural: Saskia Mabin)

Irrigators in the Murray-Darling Basin look set to win rule changes that will, in some cases, give them a 400 per cent greater share of water — a move scientists and lawyers say may be unlawful.

Documents obtained under freedom of information laws by legal advocacy group the Environmental Defenders Office show irrigators have lobbied for some of the changes for years.

Some of the most contentious changes appear to be championed by former senior NSW Government water official Gavin Hanlon, who resigned amid corruption allegations in 2017.

Emma Carmody, special counsel at the Environmental Defenders Office, described the changes as "very concerning".

"In a changing climate, the New South Wales Government [is] proposing to reduce the level of protection available to our rivers and wetlands," Dr Carmody said.

However, NSW Irrigators' Council policy manager Christine Freak said the changes would not lower protections for environmental water.

"If any element of any plan is found to cause a net reduction in the protection of planned environmental water it simply would not be accredited and would not come into effect," Ms Freak said.

Pumping floodwaters

The Murray-Darling Basin Plan (MDBP) was enacted in 2012 to protect the environment after years of over-extraction, especially for irrigated farming, which left the rivers without enough water.

The result was algal blooms, dead trees and fish kills.

In NSW, the MDBP is built around 58 individual Water Sharing Plans (WSP).

The final group of plans are due to be finalised by the NSW State Government next week, after extensive negotiations.

If accepted by the Federal Government and enacted, those plans will dictate how water will be shared between people and the environment for the next decade.

In one of the areas, the Namoi Valley in north-west NSW, irrigators have lobbied for years for changes that would let them take more floodwater from the rivers under so-called "supplementary water licences".

When the MDBP was instituted in 2012, spring floods in the area were protected to support fish breeding.

Between July and October — the Spring flood time — only 10 per cent of the floodwaters were allowed to be pumped into storage dams using those licences. The remaining 90 per cent was protected for the environment.

Irrigators' lobbying efforts revealed

The documents obtained by the Environmental Defenders Office show that since at least 2016, irrigators in the Namoi Valley have lobbied to weaken the limit and allow them to take up to half those floodwaters.

In November 2016, a proposal from irrigators in the Namoi Valley to increase the allowable take was sent to the federal Murray-Darling Basin Authority (MDBA) by the former NSW water official Gavin Hanlon.

In correspondence marked "confidential", an MDBA executive said the Namoi Valley was the "most contentious area". It said that what is known as the 50-50 rule change was one of their key demands.

The documents say the head of the MDBA, Philip Glyde, had "been doing double time with Minister's office, NSW senior officials and now some key irrigators" in the area.

The documents show the key question with the proposed change was that it would be unlawful for any rule change to result in a net reduction in protections of environmental water.

"It is unlawful under the basin plan to reduce the level of protection for planned environmental water," Dr Carmody said.

To test whether the rule change would lower those protections, the NSW Government in 2015 trialled giving irrigators access to a 50 per cent share of the floodwaters.

It noted in August 2019 that the trial showed the rule change did not work and did not provide adequate protection of the environmental component of the supplementary flow compared with the existing 90:10 rule.

The Commonwealth Environmental Water Holder, the Federal Government agency in charge of environmental water, wrote a submission to the NSW Government that it was concerned making this rule change permanent could be unlawful.

Dr Carmody agreed.

"In our legal opinion, we are concerned that changing that ratio will breach federal water laws," she said.

Rule change 'protects environment': Industry group

Namoi Water, the industry group for water licence holders in the area, declined a request for an interview and declined to answer specific questions about the matter.

But its chief executive, Jon-Maree Baker, said in an email that the involvement of Gavin Hanlon was not relevant.

"Over the last 16 years the community have interacted with every level of government to ensure outcomes are balanced," Ms Baker said.

She said she could supply information proving that the rule change had been "designed specifically to protect the environment" but declined to do so.

Fran Sheldon, a river ecologist from the Wentworth Group of Concerned Scientists — an independent group of scientists, economists, and businesspeople with an interest in conservation — said the spring flows were important for fish recruitment, fish breeding and for "a whole range of other organisms".

Professor Sheldon said the rule change could have "very significant environmental outcomes".

While Menindee-based grape-grower and water activist Graeme McCrabb witnessed fish kills last year at his property and has bemoaned the state of river ecosystems.

"Over-extraction is the biggest problem in the Darling — it's the biggest problem in the whole basin," Mr McCrabb said.

"And here we are still having these debates [and] water sharing plans really don't seem to be helping the situation for downstream users."

Even though he was about 1,000 kilometres from the Namoi region, the changes could impact his business and the environment in the area, he said.

"To have a rule that takes away springtime water, which is crucial for fish habitats and downstream users, it's just staggering really," he said.

'Overwhelming support' for changes: Minister

NSW Water Minister Melinda Pavey said in a statement the results from the study of the rule change could not be relied on.

She said that "while that did show some impact on environmental water from July to October, it was completed during a very dry period and there weren't enough supplementary events to provide robust results".

Ms Pavey said extensive consultation with the community showed "overwhelming support" for the change.

The Murray-Darling Basin Authority said it would not comment on any specific rules in the draft plans.

But a spokeswoman told the ABC water resource plans must ensure there was no "net reduction in the protection of planned environmental water compared with before the Basin Plan".

"The MDBA has been clear with NSW that any changes to rules within a water resource plan will need to meet this requirement."

Definition of 'environmental water' changed

In six of the final draft plans, the NSW Government has changed the definition of environmental water in a way that Professor Sheldon and Dr Carmody said could protect much less water.

Those plans have a clause saying all water not committed for other uses is automatically counted as planned environmental water, and therefore protected by law.

Those six plans remove that clause, leaving only water expressly earmarked as environmental water protected.

Dr Carmody said the change could also be unlawful.

"In our legal opinion, removing that third part of the definition is problematic because it reduces the level of protection for planned environmental water, which is in contravention of a specific provision in the Basin Plan and also in the Water Act," Dr Carmody said.

However, Ms Pavey insisted the removal of that part of the definition would not reduce the amount of water protected for the environment.

"The [Planned Environmental Water] rule in the draft plan refers to a long-term average annual commitment of water as planned environmental water, resulting from compliance with the long-term average annual extraction limit and the long-term average sustainable diversion limit," she said in a statement.

"This rule achieves exactly the same outcome as the third definition. The third definition is therefore redundant in regulated river water sharing plans."

Analysis by the Wentworth Group of Concerned scientists argued this was not true — that the broader definition could capture extra water up to the sustainable diversion limit.

The NSW Irrigators' Council said the new definition created consistency with other definitions used, and wouldn't be approved if it reduced protections for environmental water.

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