Environmental flows in the Murray-Darling necessary to keep wetlands and fish healthy have come to an abrupt halt due to a legal stoush between the commonwealth and the New South Wales government.
The commonwealth environmental water holder, Simon Banks, announced on Monday that he would no longer be releasing water into the river system because “as a model licence holder” he was no longer confident he was complying with NSW law.
Australian National University’s Prof Jamie Pittock warned a suspension posed potential risks to some wetland areas and native species of fish and birds.
Although the Murray-Darling basin has good levels of water, scientists said the CEWH had been planning to release pulses of environmental water that would set up areas like the Ramsar-protected Macquarie Marshes for dry years ahead.
Pittock, who is also a member of the Wentworth Group of Concerned Scientists, said environmental watering occurred on a multi-year cycle and wetter years, such as the current one, were used to water harder-to-reach wetlands.
“In the wetter years the idea is to push the water further out into some of the wetlands that are harder to reach like black box and coolibah forested wetlands,” he said.
“They occur in bands depending on the elevation of the flood plain and they might only get water one year in 10.
“If you miss this wet period to push that water into those harder-to-reach wetlands, they’ll be less resilient when the dry years return.”
Releasing environmental water is also a key strategy to encourage fish breeding in the lower parts of the river system because the river system is so altered by dams, weirs and irrigation.
“If this pause on watering lasts into spring the danger is we miss this year’s trigger for the native fish to get active and breed,” Pittock said.
The latest standoff between the commonwealth and the NSW government appears to be due to a legal advice relating to how environmental water releases should be interpreted under NSW non-urban water metering policy.
At the heart of the dispute is whether environmental water should be treated as “take” in the same way as water extracted by irrigators and comply with metering rules.
Irrigators are required to meter their “take” from the system, usually via pumps or channels at a single point in the river.
Environmental water licences, in contrast, often use the water by leaving it in the system where it is gradually used as it moves down the river and into wetlands.
Banks said the pause “temporarily” had become necessary as a result of changes to how NSW was interpreting the law in its water sharing policies, adding that he had not received a copy of the legal advice the NSW had sought.
He said the change had “introduced significant complexity and uncertainty, impacting our ability to deliver commonwealth environmental water in NSW”.
“Compliance is a core priority for the CEWH,” Banks said. “As one of the most heavily regulated water users in the Murray-Darling Basin, we are committed to acting as a model licence holder. The CEWH team is working diligently to find a resolution.
“We will only proceed with our watering actions once we are confident all our obligations are met under the current interpretation of NSW rules.”
Mel Gray, a water campaigner at the Nature Conservation Council of NSW, said the situation was “unprecedented”.
“This delay of critical water for the rivers is a result of a system that has been designed to prioritise irrigators over environmental water,” she said.
The NSW Greens water spokesperson, Cate Faehrmann, said it was “deeply concerning” environmental flows had been suspended while “jurisdictions debate basic terminology”.
“The Minns government must treat this as a top priority, including addressing any confusion that has led to this freeze on environmental watering to ensure that it can resume in the earliest possible timeframe,” she said.
A spokesperson for the NSW environment and water department said the government was “taking important steps to ensure all water is effectively and transparently accounted for”.
“Environmental water holders, in an abundance of caution, have suspended delivery of some environmental water in order to ensure they remain within the law,” they said.
“We have discovered a technical issue in the way the NSW Water Management Act is drafted, which we are working to resolve.”
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