The New South Wales government is facing calls to immediately halt the controversial practice of floodplain harvesting after revelations in parliament that the industry watchdog cannot effectively prosecute breaches.
Floodplain harvesting allows landholders to capture and store water flowing across floodplains during rainfall and flood events.
The NSW Natural Resources Access Regulator (NRAR) chief regulatory officer, Grant Barnes, told a parliamentary hearing in August that the agency was facing "some uncertainty as to the application of the law in regard to floodplain harvesting".
During the hearing, it was revealed that between 2020 and 2025, several NRAR prosecutions for alleged water offences in northern NSW were withdrawn or dismissed due to problems with the evidence, with record-keeping and findings that offences had not been proven beyond reasonable doubt.
NSW Greens MP and water spokesperson Cate Faehrmann said the regulatory framework was "so fundamentally flawed that compliance cannot be reliably enforced".
She said floodplain harvesting significantly reduced downstream flows, degraded river health and undermined the ecological, cultural and economic foundations of communities across the basin.
She called on NSW Water Minister Rose Jackson to impose an immediate embargo on floodplain harvesting across NSW.
"If the government cannot regulate floodplain harvesting, it must not permit it."
An 'extraordinary revelation'
Floodplain harvesting accounts for about five per cent of water taken across the Murray-Darling Basin, or about 571 gigalitres a year.
An embargo would prevent the capture of water during future overland flows and reduce water available to irrigators while allowing more water to remain in the river system.
South Australia's River Murray commissioner Emma Carmody described Grant Barnes's statements about enforcement uncertainty as an "extraordinary revelation".
She said it was "extremely troubling" that nearly a decade after the ABC Four Corners investigation Pumped exposed problems with floodplain harvesting and triggered major reforms to water compliance, the regulator still lacked the powers it needed to manage the sector.
The program triggered the Ken Matthews inquiry, which led to the establishment of NRAR, and a new federal water compliance watchdog followed in 2021.
Failures in court
In 2020, NRAR prosecuted irrigator Peter Harris and farm manager Justin Timmins over the alleged failure to operate water metering equipment properly at two properties near Walgett.
Justice Rachel Pain found that NRAR failed to prove its case beyond reasonable doubt, resulting in all six charges being dismissed.
Mr Barnes told the inquiry the ruling highlighted a problem with the phrasing of the existing water rules, which made it incredibly difficult for NRAR to successfully prosecute operators for faulty or non-compliant water meters.
He also pointed the committee to a second ruling, Emu Rider Pty Ltd v Minister, administering the Water Management Act, handed down in 2025, in which irrigators from the Border Rivers region successfully challenged the floodplain harvesting access licences the minister had issued them.
The Land and Environment Court found the licences held by the trustee for the Griffiths Investment Trust and others were invalid because the minister had never sent landholders the notice required before their water volumes were set.
According to Dr Carmody, the ruling threatened to unravel the NSW government's entire multi-year rollout of the floodplain harvesting framework because an identical process was used to calculate and issue licences across all the northern valleys in NSW.
Water minister's response
In response to calls for an embargo, Ms Jackson said the government intended to make changes to the floodplain harvesting framework following what she described as "recent, disappointing legal decisions."
"I have been briefed on the implications of these legal matters for some time and directed the department to take steps to quickly resolve issues identified by the courts," she said.
"We will continue to make whatever changes are necessary to achieve our shared goal of a clear regulatory framework."
Meanwhile, the measurement, monitoring and determination of water take by floodplain harvesting in NSW will be the subject of a federal audit.
"The audit will examine whether commitments made by NSW during water resource plan accreditation are being implemented as committed," said the inspector-general of water compliance in the Murray-Darling Basin, Troy Grant.
The audit will focus on the Border Rivers, Barwon-Darling and Macquarie-Castlereagh water resource plan areas.
"In many systems, floodplain harvesting is estimated using water models rather than directly measured, leading to reduced confidence in water take data," Mr Grant said.
Irrigators back lawful floodplain harvesting
NSW Irrigators Council chief executive Madeleine Hartley rejected claims that court decisions have rendered floodplain harvesting difficult to regulate.
She declined to comment on the statement from Greens MP Cate Faehrmann that the court losses may have weakened compliance and enforcement powers, but defended irrigators' adherence to the rules.
"The rules are strict, and our members have spent tens of thousands of dollars to comply with them," she said.
