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EDO NSW, on behalf of its client the Inland Rivers Network, has commenced civil enforcement proceedings in the NSW Land and Environment Court in relation to allegations of unlawful water pumping by a large-scale irrigator on the Barwon-Darling River.
This hearing will be held over ten days, commencing on 9 March 2020.
The two water access licences at the centre of these allegations allow the licence holder to pump water from the Barwon-Darling River in accordance with specified licence conditions, as well as rules set out in the relevant ‘water sharing plan’. The conditions and rules specify – amongst other things – how much water can be legally pumped in a water accounting year (which is the same as the financial year) and at what times pumping is permissible (which depends on the volume of water flowing in the river at any given time).
Our client alleges that the holder of these licences pumped water in contravention of some of these conditions and rules, thereby breaching relevant provisions of the Water Management Act 2000 (NSW) (WM Act). The allegations are based on licence data obtained by EDO NSW earlier in 2017 from Water NSW, a state-owned corporation charged with the responsibility of regulating compliance with the WM Act.
Analysis of this data, along with the relevant rules and publicly available information on river heights, indicates that the licence holder may have pumped significantly more water than was permissible on one licence during the 2014-15 water year, and taken a significant amount of water under another licence during a period of low flow when pumping was not permitted in the 2015-16 water year. Despite being made aware of these allegations by EDO NSW on two occasions, in April and August 2017, and having had access to the data since at least July 2016, Water NSW has not provided any indication that it intends to take compliance action against the licence holder.
Both allegations concern the potentially unlawful pumping of significant volumes of water, which may have had serious impacts on environmental flows in the river and downstream water users. However, our client is particularly concerned by the alleged over-extraction in the 2014/15 water year, as this period was so dry that the Menindee Lakes – which are filled by flows from the Barwon-Darling River – fell to 4 percent of their total storage capacity. This in turn threatened Broken Hill’s water security and led the NSW Government to impose an embargo on water extractions during part of that year in order to improve flows down the Barwon-Darling into the Lakes and Lower Darling River.
In these proceedings, the Inland Rivers Network is seeking, amongst other things, an injunction preventing the licence holder from continuing to breach the relevant licence conditions. In addition, and in order to make good any depletion of environmental flows caused by the alleged unlawful pumping, our client is also asking the Court to require the licence holder to return to the river system an equivalent volume of water to that alleged to have been unlawfully taken, or to restrain the licence holder from pumping such a volume from the river system, during the next period of low flows in the river system. Failure to comply with a court order constitutes contempt of court, which is a criminal offence.
EDO NSW is grateful to barristers Tom Howard SC and Natasha Hammond for their assistance in this matter.
Brendan Dobbie, Acting Principal Solicitor at EDO NSW, has carriage of this matter for IRN.
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- Legal update: Less water, less transparency (July 2018)
- Legal update: Using the law to protect the Murray-Darling Basin (November 2017)
- Four Corners investigation highlights our work to protect the Murray-Darling Basin (July 2017)
- Is carp herpes really a substitute for water in the Murray-Darling? (February 2017)
- EDO NSW case: Australian Conservation Foundation vs WaterNSW
- Fact sheet: Water Management
- EDOs of Australia submission to the Inquiry into the Integrity of the Water Market in the Murray-Darling Basin
- EDOs of Australia submission to the Inquiry into National water Reform
- Link to this case summary.
Help defend the environment
With your support, we can continue to help community groups like Inland Rivers Network defend the environment. Please make a donation today.
Register now for a seminar on our International Program, including the recent Wagina case in Solomon Islands, where residents oppose a bauxite mine that threatens their small island home.
Our new CEO David Morris came to the role having spent four years with EDONT in Darwin. So, how has his time in the NT influenced his approach to public environmental law? We asked about the highlights of his time heading up EDONT, why he became an environmental lawyer and how he stays optimistic.Read more
After 12 years at EDO NSW, the last two as CEO, Sue Higginson is bowing out. We asked about the highlights – and low points – of her time at the EDO and how she stays hopeful.
The NSW Parliament this week passed a law to overrule the Court of Appeal’s decision that the Springvale coal mine was unlawfully approved. But it went one step further and also weakened laws that protect Sydney’s drinking water catchment. This retroactive law denies the public the opportunity to hear extensive expert evidence on the future of the mine and allows industries like mining to continue polluting Sydney’s drinking water into the future.Read more
The Wollar Progress Association represented by public interest environmental lawyers, Environmental Defender’s Office NSW, is bringing court action challenging a decision by the NSW Planning Assessment Commission (PAC) to allow the extension of the Wilpinjong open cut coal mine near Wollar, Mudgee.
16 August 2017Read more
Humane Society International Australia (HSI), represented by EDO NSW, sought independent review of the Great Barrier Reef Marine Park Authority’s (GBRMPA) decision to approve a lethal shark control program in the Great Barrier Reef Marine Park.
HSI lodged an appeal in the Administrative Appeals Tribunal (AAT) which required a full reconsideration of the approval of the shark control program. The 10-year lethal control program targets 19 shark species in the Marine Park, including threatened and protected species. [The program originally targeted 26 species but seven were removed in July 2018.] The appeal was based on the public interest in protecting the biodiversity of the Great Barrier Reef Marine Park. The case was heard in the Administrative Appeals Tribunal from 30 January to 1 February 2019.
2 April 2019: The legal challenge was wholly successful, with the AAT finding that the Shark Control Program within the Marine Park must avoid the lethal take of sharks. More here >>
12 April 2019: The Queensland Department of Agriculture and Fisheries appealed the AAT decision. The Federal Court granted a temporary stay of the AAT orders which will remain in place until that appeal is heard later in the year - on Thursday 15 August.
Background: The Great Barrier Reef is a World Heritage Area globally recognised as an outstanding example of biological evolution, containing unique, rare and superlative natural features and areas of exceptional natural beauty. The World Heritage listing notes that the Great Barrier Reef is one of the richest and most complex natural ecosystems on earth and one of the most significant for biodiversity conservation. Australia has a legal responsibility to ensure its protection.
As apex predators, sharks play a vital role in maintaining the health of the Great Barrier Reef. HSI is concerned about the ongoing impacts caused by the use of lethal drumlines which are known to impact not only on shark species but also dolphins, turtles and rays. HSI is calling for non-lethal alternatives for bather protection.
In these proceedings, the AAT was presented with expert evidence based on the best available science relating to shark control programs.
Belinda Rayment, Solicitor at EDO NSW, has carriage of this matter for HSI Australia.
We are grateful to barristers Philip Clay SC, Saul Holt SC, Natasha Hammond and Dr Chris McGrath for their assistance in this matter.
- 2 April 2019: No more lethal shark control for Great Barrier Reef Marine Park
- January 2019: Court challenge to lethal drumlines within Great Barrier Reef Marine Park
- Video: A case for sharks
- Seven shark species removed as targets after legal action
- Link to this case summary.
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Help defend the environment
With your support, we can continue to help community groups defend the environment. Please make a donation today.
Last night, ABC’s Four Corners aired an exposé of alleged illegal water harvesting in the Murray-Darling Basin. The episode highlights major flaws in the way that our scarce and precious water resources are regulated. This is a problem that EDO NSW has been working to fix for a long time, alongside successive governments, scientists and the community.
The episode focuses on allegations that irrigators in the Barwon-Darling catchment have been pumping more water from the river system than their licences, and the law, allows. It also highlights the failure of the responsible government agency to take action to protect this important resource and the communities and environments that depend on it.
25 July 2017Read more