New South Wales and Queensland have been slapped with a scathing assessment of compliance with the Murray-Darling Basin (MDB) Plan, after a review found poor levels of enforcement and a lack of transparency surrounding the states' water management.
The MDB Authority and the Independent Review Panel were ordered by the Prime Minister earlier this year to undertake a review of basin states' compliance.
It followed a Four Corners report that alleged NSW irrigators were taking water illegally without prosecution and rules in the Barwon-Darling were allowing environmental water to be harvested.
The review found water compliance in NSW and Queensland was "bedevilled by patchy metering, the challenges of measuring unmetered take and the lack of real-time, accurate water accounts".
It said both states had low levels of compliance resourcing, with NSW having just one compliance officer for 355 gigalitres of water diversions, and Queensland one officer for 235 gigalitres.
South Australia, by comparison, had one officer for every 56 gigalitres.
"There is a striking variation of enforcement activity," the report said.
"In 2016-17, NSW issued 44 warning letters and notices, Queensland 14, South Australia 355, Victoria 562 and the ACT one.
"Although there are undoubtedly local explanations of variations in practice and the nature of offences, it seems likely the data reveals significant differences in compliance vigilance."
A lack of transparency reflects a 'closed culture'
The review found the two states, as well as Victoria, suffered a notable lack of transparency in its compliance system, which reflected "not only a closed culture, but is also the result of many aspects of compliance not being codified and therefore not able to be published".
MDB Compliance Review recommendations :
- Deliver a 'no meter, no pump' policy and a mandate for standardised metering
- NSW and Qld accurately measure 95 per cent of floodplain harvesting and update their assessment of take
- Each state reviews its hydrologic models
- Each state publishes an improvement program for hydrologic models
- Each state reviews its compliance and governance arrangements by June 30, 2018
- Each state publishes its compliance strategies by June 30, 2018
- Each state reviews their legislation and proposes necessary amendments by June 30, 2018
It conceded that water offences could be difficult to prove, particularly when it came to floodplain harvesting, from where both NSW and Queensland irrigators drew large volumes of water.
The report said it was hard to measure unregulated and unsupplemented water, and getting accurate data — "the most fundamental of the requirement for a compliance system" — was very difficult.
But it added that tackling the task in NSW, which has the greatest number of water licences (21,000) and the largest volume of take (5,700 gigalitres), had been a "low priority" for the 20 water agencies responsible for compliance over the past 20 years.
The report also concluded that NSW water-sharing plan in the Barwon-Darling — put into place a month before the Basin Plan came into effect — failed to provide adequate protection for environmental water, particularly during low flows.
It said the Northern Basin Review was finalised late last year by the MDBA and proposed measures to better protect environmental water from unregulated rivers in the state's north, including the Barwon-Darling as well as the Lower Balonne.
"Similarly, the SDL (Sustainable Diversion Limit) adjustment mechanism operating in the Southern Basin provides an opportunity to improve river operating rules to achieve better protection of environmental flows," the report said.
Australian Conservation Foundation campaigns director Paul Sinclair said the report was a "wake-up call" and proved that NSW and QLD river compliance was "basically non-existent".
"These are the same states that are now pushing to cut the amount of water that is returned to the river under the Basin Plan," he said.
"What is not answered is why our elected representatives have ignored their compliance responsibilities and whether vested interests have captured the system for their own gain."
Professor Richard Kingsford from the University of New South Wales said the public needed confidence that governments were doing the right thing.
"How are we going to make the states do this? I guess there's no punitive measures by which the Federal Government can enforce this on the states, and that's critical," he said.
The report made seven recommendations, including a 'no meter, no pump' policy, and a requirement for both NSW and Queensland to improve measurement and regulation of floodplain harvesting.
Prime Minister Malcolm Turnbull said Basin governments needed to better enforce their water laws and step up to commit to implementing the report's recommendations.
The NSW Government in August commissioned its own independent investigation into compliance and an interim report by Ken Matthews found it to be ineffectual and requiring "significant and urgent improvement".
NSW launched a new Natural Resource Asset Division, an independent regulator, and planned to install water meters on all "large" water entitlement holders within 12 months.
"Like NSW, Queensland's limited compliance resources face the challenges of distance and an industry with some very large entitlement holders," the latest report said.
"The Queensland Government is conducting a significant review of metering at present."
Mr Matthews was also tasked with investigating accusations of misconduct and maladministration in relation to water management but suspended work in that area after ICAC announced it would investigate those matters.
NSW's most senior water bureaucrat Gavin Hanlon resigned as deputy of director-general of water in September.
Water 'theft' by upstream states documented: SA Premier
SA Premier Jay Weatherill said South Australians had a right to be angry over the findings of the review.
"What it documents is theft by the upstream states, theft by New South Wales and Queensland of water that should be put back in the river to restore the river to health," he said.
"It also documents compliance issues up and down the length of the basin except South Australia."
But report was less critical of Victoria, where a culture of compliance had been forged after regional officers started overlooking the task from 1994, aided by modern and remote-sensed meters.
"The specific issue to be addressed in Victoria is the lack of a full suite of penalties and sanctions, which means compliance action can only occur administratively with limited penalties and sanction, or by criminal prosecution requiring a very high standard of proof suited to serious breaches," the report stated.
South Australia also had a long commitment to compliance and boasted the "most extensively codified" framework and clear accountabilities.
"Perhaps the state's biggest challenge is an aging meter fleet, ironically due to the early adoption of a metering requirement," the report said.
The Australian Capital Territory was considered the most manageable of compliance tasks in the MDB, due to its small system of just 192 licences and 33-gigalitre water allocation.
"With a small area to cover, staff are able to audit meters regularly and monitor compliance effectively," the report said.