Bourke cotton farmers to challenge water laws they are accused of breaching

Guardian Web |

A landmark trial of prominent Bourke cotton farmers accused of illegal pumping from the Barwon-Darling when the river was low is set to become a test of the robustness of New South Wales’s water laws.

Michael Elliott SC foreshadowed in the NSW Land and Environment Court today that the defendants, Peter and Jane Harris, would challenge every aspect of the state’s water laws they are accused of breaching, including the accuracy of the government’s water gauges and administrative procedures followed.

The Harrises are charged with breaching an approval associated with their water licence for Beemery farm, a large property on the banks of the Barwon River.

The water licence they held entitled them to pump water from the Barwon River for irrigation using up to four pumps. But an associated approval said they could pump only when the flows in the Barwon-Darling system, as measured at the Bourke weir, exceeded 4,894 megalitres a day.

If the river flow fell below that flow rate they were to cease pumping. In 2017 the ABC’s Four Corners program alleged that some cotton farmers along the Barwon-Darling were illegally pumping water during low flow events and pumping during embargoes which are designed to protect environmental flows as they pass down the river.

The Harrises were named in the program as having taken water during low flow events, in breach of the state’s water laws.

Each offence comes with a $247,500 maximum penalty.

Outlining his case, counsel for the prosecution, Scott Aspinall, said the Harrises had three 664mm pumps operating. Each was capable of pumping between 100 and 140 megalitres a day from the Barwon – the equivalent of 50 to 60 Olympic swimming pools of water each.

Between 22 June and – when the offences are said to have occurred – Aspinall said there were records showing that the Harrises were pumping water despite the flows at the Bourke gauge having fallen to as low as 2,500 megalitres.

Over the eight-day period covered by the charges, the river flow was, at best, 3,800 megalitres a day, which was more than 1,000 megalitres below the minimum flow to allow pumping, he said.

“The charge is that approximately 1.8 gigalitres was taken in contravention of the condition of the approval,” Aspinall said.

The Four Corners report has led to intense scrutiny of the NSW government’s poor record of enforcement of its water laws, particularly against big irrigators. After a scathing independent inquiry by Ken Matthews, who recommended some matters be referred to the corruption watchdog, the government created a new independent regulatory body, the Natural Resources Regulator, to enforce the laws.

In WaterNSW finally launched two prosecutions for breaches that occurred during 2016.

Anthony Barlow, from Mungindi, pleaded guilty just before Christmas and is awaiting sentencing.

The Harrises, however, chose to fight their charges.

In the first day of the hearing, Elliott, for the Harrises, foreshadowed calling an expert witness, Dr Daniel Martins, to challenge the accuracy of the flows at the Bourke gauge. This measurement is central to the charges. There are also likely to be questions about why the gauge was moved and whether its location 6km upstream from the weir affects its readings.

There is also likely to be a challenge over the way the government converted the old water licences granted under the 1912 Water Act into the new modern licences which were created in 2012, under the Barwon-Darling Water sharing plan.

In evidence on the first day, WaterNSW’s expert hydrologist, Glen McDermott, said that under the official standards used to measure water flow, gauges had to be within +/-10% accuracy and that the Bourke gauge was rated as +/-5%.

He said it did not particularly matter where the gauge was located in the weir pool, provided it was calibrated correctly because the flow rate in the entire weir pool would be the same.

The hearing continues on Tuesday.

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