Blog of law articles

(BY HUGO)

As widely reported in the media, proposed water withdrawal reductions to protect the environment in the new draft plan for the Murray-Darling River Basin in Australia have angered Australian farmers (article here from Circle of Blue).

In this context, a new report from the Auditor-General of the State of Victoria titled «Restricting Environmental Flows during Water Shortages» evidences inadequate environmental flow protection (a portion of the Murray-Darling Basin lies within Victoria).

Under the Water Act 1989 (Victoria), when there is less water available, the Minister for Water can declare a water shortage and temporarily ‘qualify’ rights to water, including the environment’s rights. This means the minister can alter access to water by either restricting—reducing or suspending—or increasing them to meet a critical need. The Water Act 1989 also allows the minister to alter water rights under a ministerial direction. This restricts or increases rights in a similar way to a temporary qualification. Essentially, the law allows for the allocation of reserved environmental flows to human needs during dry periods.

The objective of the audit was to assess how effectively the Department of Sustainability and Environment (DSE), water corporations and catchment management authorities (CMA) managed temporary restrictions on surface water rights to meet critical needs, including steps to minimise river health damage. The report concludes that:

«DSE and two of the three water corporations examined did not effectively manage restrictions to environmental water rights. DSE’s justification requirements for water corporations wanting to temporarily restrict water rights are sound. However, the water corporations did not consistently follow these guidelines.

Slow action to address environmental risks by South Gippsland Water and a lack of action and limited accountability by Grampians Wimmera Mallee Water (GWMW) around environmental risks meant that it was not possible to demonstrate that the environment had not been unnecessarily put at risk for the Tarwin and Wimmera rivers.

Limited DSE oversight of how the environment’s water rights were restricted meant it could not judge whether the restrictions were effective. This meant it could not effectively identify improvements. DSE did not enforce its own requirements, effectively de-valuing the need to justify environmental water right restrictions.»