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Meet the regulator tackling water theft in NSW

Public confidence in water regulation in New South Wales (NSW) reached a low point in 2017 after an expose aired on the ABC alleging water theft was rife in the state. Now, a new independent regulator has been tasked with ensuring access to water is fair and equitable, and restoring community trust.

The Natural Resources Access Regulator (NRAR) was established in May 2018 by the NSW Government. It was a response to recommendations put forward by former National Water Commission chair Ken Matthews following his investigation into water management and compliance, prompted by the ABC Four Corners report.

“The program made quite serious allegations that certain irrigators had taken water from the Barwon-Darling river system in periods where they weren’t permitted to do so,” NRAR Chief Regulatory Officer Grant Barnes said ahead of his keynote address at the Australian Water Association’s NSW State Conference.

“It also suggested that water purchased by taxpayers for environmental purposes was being accessed by irrigators, that meter tampering was common across the region, and that compliance and enforcement efforts were ineffective.”

NRAR was established with a clear mandate: to ensure effective, efficient, transparent and accountable delivery of water regulation, and to maintain public trust and confidence.

Unlike most publicly funded organisations in NSW, it is accountable to an independent board rather than directly to the government, which Barnes said is a significant distinction.

“It’s important that the operations of NRAR, including its investigations, are not subject to the directions of politicians, bureaucrats, political parties or the government itself,” he said.

“This shows the public they can have confidence that NRAR is not biased in any way or subject to the dictates of the government of the day.”

NRAR investigators inspecting agricultural operations on the Hawkesbury River.

Although the majority of water users do the right thing, Barnes said the actions of a few have damaged the reputation of NSW’s agricultural sector.

He said NRAR has investigated nearly 900 cases of non-compliance so far, with information often coming directly from members of the public.

After receiving a tip, the case is classified according to its risk profile and assigned to an investigator. The investigator then looks into the case and makes recommendations about the action required.

About half the cases investigated are low-level instances of non-compliance, which result in NRAR issuing an advisory notice or warning.

This is based on a four-element test: that the harm or risk of harm is low; that the nature of the offending is not willful; that the public interest is low; and that the landholder or water user has been cooperative.

“This is a pretty light touch,” Barnes said.

“It’s saying, we’ve been on the farm, we’ve identified these areas of minor non-compliance, and this is what we advise to get into compliance.”

But in some instances, the test warrants NRAR taking more formal action. This could be in the form of a statutory direction such as a stop-work order, a penalty infringement notice or prosecution.

NRAR has issued penalty notices to people carrying out illegal earthworks near waterways.

NRAR has so far commenced nine prosecutions, three in the NSW Land and Environment Court and six in the Local Court, with more likely. Three of these cases related to the allegations aired on Four Corners, and five have led to defendants pleading guilty.

This includes a recent case where the owner of a vineyard on the NSW-Victorian border pleaded guilty to taking 1378 ML of water from the Murray River without an allocation.

“In our first year of operation, it was really important that we took enforcement action where we determined it was necessary,” Barnes said.

“It’s imperative that regulators are prepared to enforce the law – a watchdog like us that’s unwilling to bark is of little use.”

With 97% of the state in drought, Barnes said NRAR’s work is more important than ever.

“Every drop of water counts, and it’s vital that water gets to its intended use, whether that’s environmental or for communities or commercial use,” he said.

“Water users need to understand there is a regulator prepared to enforce the law where it is appropriate to do so.”

You can hear more from Grant Barnes at the AWA’s NSW State Conference, held in Orange from 8 to 9 August. To learn more and to register, click here.