NSW Govt checks farm water use

Rain falling on farmland is no longer yours to harvest at will in NSW, and size matters when it comes to a dam.

The NSW Government is sending water inspectors to properties around the State, checking usage and threatening fines for alleged breaches of the
Water Management Act 2000.

The Natural Resources Access Regulator is pursuing reports of unauthorised water usage and unapproved or non-compliant dams, pumps and water works, and moving to impose penalties ranging from fines to imprisonment.

The Regulator, formed in 2018, has issued over 100 compliance notices, with more expected, in an operation that is rolling out now through NSW.
Complaints from neighbours, applications for works approval and Water Access Licences, as well as what appears to be a wide-ranging review of dams and water storages across the State, are all sources of information for the new Regulator.

The right to harvest water, dam capacity and maintenance, bores, metering, water licensing, pumps – including centrifugal pumps, water shares, and activity around the use of water are all open to scrutiny.

Farmers are receiving warning letters to stop using water or conducting dam works until compliant, while others are facing direct prosecution in the Land and Environment Court.

Unfortunately, in some cases, the “stop-use” order or infringement notice is not taking into account the need to water animals or crops and the negative impact on livelihoods and commercial businesses is not being taken into account.

The Regulator can walk on to your property without invitation; collect information and records; demand answers to questions put to you through interview or letter; and issue penalty infringement notices.

You may be required to stop work or cease using water for commercial purposes.

The first time you may have heard about your potential non-compliance is when a NRAR officer tells you. Importantly, this does not mean you are guilty, the NRAR is obligated to act in a professional manner when dealing with you.

What to do if an inspection has been notified

  • The cost of doing nothing is expensive in the end. Manage the process and make note of all people involved, their title and level of authority.
  • Make sure you completely understand the investigative process
    • Go to the Natural Resources Access Regulator website and review its terms.
    • There are regional Regulator offices around the State and each is involved.
  • Make sure your rights are protected during the process.
    • You should be present at the inspection of your land.
    • If you are asked questions that you find confusing or think may be biased, ask what they are trying to find out. Get an understanding early of what is wanted.
    • Make a note, or have someone take notes, of the interview as it occurs.
    • You may be asked to agree to have your interview recorded. Think carefully before you agree!
      A recorded interview does not allow you to set out your side of the story in the best way to protect your rights, especially in the early stages when it is not clear what the exact issues are that are being investigated. You can agree to answer questions during inspection without electronic recording and you can ask to have the opportunity to answer written questions later, in writing.
    • Make a note of any telephone discussions – date, time, who and what was said.

What to do if you receive a letter indicating regulation breaches

  • Work through each claim of a breach and check the inspector has understood the situation. Make notes to clarify. Get legal advice on discrepancies. Do not send an email directly back to the Regulator at this stage.
  • The new arrangements in NSW are still in the early stages of implementation. The risk of administrative inconsistency is high between regions and between the Office of Water, WaterNSW and the Regulator.
  • Notification that you must commence metering or install new meters should be examined carefully as metering is expensive. Once your overall water ‘take’ from the water source has been metered at the point of original abstraction, the law does not require additional meters to be installed to measure different uses on different parts of your property or business.

Why have the rules changed?

The NSW Government is keen to win back confidence after damning evidence emerged about water harvesting by large agribusinesses, at the expense of river flows and other users downstream.

It established the Natural Resource Access Regulator as a result of an independent investigation into NSW water management and compliance by Mr Ken Matthews, a well-respected public servant who has extensive experience and expertise in water in Australia.

A key recommendation made by Mr Matthews was for the creation of an independent and more effective regulator with total carriage of the compliance and enforcement of water regulation in NSW. The NRAR is that body.

About the Natural Resources Access Regulator
The main jobs of the Natural Resources Access Regulator are to:
  • ensure effective, efficient, transparent and accountable compliance and enforcement measuresfor the natural resources management legislation; and
  • to maintain public confidence in the enforcement of the natural resources management legislation.

The NRAR is unapologetic in pursuing instances where they consider that breaches of the Water Management Act 2000 (NSW) and Water Act (NSW) have occurred. We consider this is just as much about restoring public trust in government enforcement as it is about ensuring compliance with the law. As a result, the NRAR is taking a very proactive approach to inspections, investigations and enforcement actions whereas previously this would have been less likely to occur.

What are the penalties?

There are three tiers of penalty for non-compliance, Tier 1 being the most serious and Tier 3 being the least serious. The sizes of the penalties are worth knowing.

The maximum Tier 1 penalty is:
  • $5,005,000 for a business with a further penalty of $264,000 for each day the offence continues; or
  • for an individual, imprisonment for 2 years or $1,100,000, or both, with a further penalty of $132,000 for each day the offence continues.
The maximum Tier 2 penalty is:
  • $2,002,000 for a business with a further penalty of $132,000 for each day the offence continues; or
  • for an individual, $500,500 with a further penalty of $66,000 for each day the offence continues.
The maximum Tier 3 penalty is $11,000.

Considering the critical importance of water and the changing climate, ensuring compliance with the law is vital but unfortunately, water licensing can be quite confusing and non-compliance can catch individuals or businesses off-guard. However, ignorance of the law is no excuse if the NRAR investigates and makes an adverse finding. Lack of compliance can therefore be very costly to a person’s business.

Kingfisher Law are experienced and skilled practitioners in all aspects of water law. We think it is vital for the long-term sustainability of NSW’s water resources that non-compliance is addressed by the NRAR. However, this does mean that well-intentioned individuals and businesses may inadvertently breach the various water law and licensing requirements. Kingfisher Law can help by reviewing your water licensing, water use and water supply works approvals to ensure that you are compliant.

Greater enforcement of our water laws is good news for compliant individuals and businesses but non-compliance is a real risk with real impacts on water users in irrigated agriculture and horticulture.

 

Call Kingfisher Law Today


Kingfisher Law are Australia's agribusiness legal specialists and will discuss any legal issue you may be experiencing, in a confidential and professional manner. Call 1300 529 424 to book a consultation.



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