CLARENCE ENVIRONMENT CENTRE INC 31 Skinner Street South Grafton 2460 Phone/ Fax: 02 6643 1863 Web site: www.cec.org.au E-mail: [email protected]

Date: 10th April 2018 SUBMISSION to Department of Industry on the Water Reform Action Plan

Introduction The Clarence Environment Centre (CEC) has maintained a shop-front in Grafton for over 28 years, and has a proud history of environmental advocacy. The conservation of 's natural environment, both terrestrial and and marine, has always been a priority for our members, and we believe the maintenance of healthy ecosystems and biodiversity is of paramount importance.

As a major contributor to the protection of the largest system in coastal NSW, the Clarence, the CEC is determined to ensure that the River's relatively pristine ecosystems are not vandalised, and to improve outcomes for all in Australia.

This submission will focus on local issues and concerns, using case studies from the Clarence Valley. However, we strongly suspect that the concerns raised will be relevant across all of NSW and possibly Australia.

Discussion This submission focusses on two aspects of water use: 1. Harvestable rights water for irrigation, and 2. Water extraction from rivers for irrigation under licence. Currently on the north coast, neither of the above require the pumps to be metered, although 'noises' are being made in relation to metering some river extraction licences. Harvestable rights grant landowners the right to construct dams on 1st and 2nd order streams, large enough to hold their total entitlement. They can even destroy native vegetation in the process, as dam building is considered a routine agricultural management action (RAMA), and therefore exempt from native veg laws, all without the need to seek approval.

The recent 'explosion' in the establishment of blueberry farms in the Shire is now rapidly spreading northwards into the Clarence Valley, and this complete lack of regulation is about to come back to bite the authorities that are turning a blind eye to what is happening. In fact those authorities are actively obstructing concerned community groups like the CEC from pointing out the obvious pitfalls that are looming.

To illustrate those pitfalls we will present a case study on the largest blueberry operation yet to start up in the region, a multinational enterprise being developed at Bawdens Bridge on the . According to the proponents media releases in both the Grafton Daily Examiner and The Land newspaper, the development will see 800 hectares of their “Linden Park” property planted to blueberries. As of April 2018 no blueberries have been planted, but preparation of the land, mounding the rows, laying irrigation pipes, and covering with black plastic sheeting, is well under way, with more than half the planned area already completed and work still progressing.

According to the DPI blueberry growing fact sheet, there is a need for water storage of between 2 and 3 Megalitres per year per hectare, and the question has been asked by the CEC, where is the water going to come from in this instance?

The Linden Park property has a harvestable right of 90Ml per annum, and a large dam to hold that amount of water has already been constructed. The proponent has also purchased one 66Ml pumping licence, and possibly more, to pump from the Lower Orara River system, which comes under the Clarence River Water Sharing Plan that was gazetted in mid 2017.

To successfully irrigate the planned 800 hectares of blueberries in a dry year, the proponent will require a minimum of 2,000Ml a year. Unfortunately, the total available water under licence from the Lower Orara River is 670Ml annually – do you begin to see the problem? Even if the proponents buy every available licence, they will only have 760Ml, sufficient to irrigate 300 hectares at most. Again we ask, where is the additional 1,240Ml of water going to come from?

The Orara River System is already under stress. The following images were taken along the Lower Orara at the peak of what is normally our wet season, in 2016 and 2017.

1. Bawdens Bridge pumping site, at the end of the wet 2. The Lower Orara River at Poley Bridge, 19th season 8th April 2016. Maximun depth, less than 10cm February, 2017. Maximun depth again less than 10cm Flawed base-line flows figures The current Lower Orara allocation of 670Ml annually, has been calculated using average flows measured over many decades. However, since 1924, until only 3 years ago, those flows have been boosted by water drawn from the to drive the Nymboida hydro-electric power station, latterly by as much as 800Ml daily. That power station no longer operates and has been decommissioned. However, no adjustment has been made to the available water for irrigation as a result of the shut-down, meaning that, in our opinion, the river's water is now over-allocated.

Failure to consider cumulative impacts Linden Park is not the only large blueberry development, there is another 1,000 hectare property just 3km to the north which is also being readied for blueberries. How many hectares we do not know, but the large 1000ML harvestable rights storages that has been built on the Deep Creek catchment, will divert yet more water from the Orara. But that's not all; multiple blueberry farms are being established at , Kremnos, Halfway Creek, Kungala, Lanitza East, Lanitza West, Waterview Heights and Qwyarigo, and every month sees more and more land acquired by the industry. All of them are located within the Lower Orara River catchment area, and nobody in authority knows how many properties or hectares are involved, how much water will be needed, or where it will come from.

Technical and tactical errors Another issue of concern, is the cease to pump trigger, 20Ml/day flow, is read from the Glenreagh gauge. That gauge is at the up-stream limit of the Lower Orara, and there are 30 licence holders downstream, all of whom are entitled to pump, some up to 12Ml/day, as long as daily flows at Glenreagh remain above 20Ml. The problem as we see it is that no matter how much water is extracted from downstream of the reference gauge, the flow reading there remains static, allowing pumping to continue unabated, until there is nothing left to pump. This is nonsensical, and raises the question, why has WaterNSW done that if not to allow unfettered pumping to occur?

Then there are the practical issues relating to pumping from a river with a 150mm pump. For most of the year water depth at the proposed extraction point on the lower Lower Orara River is less than 45cm (see image #1 above, and real time graph below), making it impossible to use a 150mm pump as proposed without the construction of a weir or other structure across the river. Damming the river will not only stop vital sedimentary flows, but will ensure that no water flows downstream when droughts occur, and we believe that, faced with job losses and industry collapse during a drought, authorities will inevitably be forced to waive all restrictions on pumping to rescue the industry. With endangered Eastern Freshwater Cod, numerous other threatened species, and the fast disappearing Platypus known to depend on the river, the natural environment will be the loser once again.

Flawed assumptions relating to harvestable rights We touched briefly above on the diversion of possibly 1,000Ml of harvestable rights water from the Deep Creek catchment, a tributary of the Lower Orara. Well, every one of the dozens of other blueberry operations are doing the same, tens of thousands of megalitres every year are being captured by dams, water that will never find its way into the main river.

Now, a closer look at harvestable rights (HR). There is no requirement for an irrigator to meter their pumps, and they can have storages (dams) big enough to store their entire annual entitlement. The problem is, the water can be pumped out and the dams refilled over and over just as long as the water flows into them. With no metres or compliance monitoring, no one has any idea how much water is being used.

Compliance monitoring and enforcement Current compliance monitoring and enforcement effort can be summed up in one word – Zero. This fact has been exposed by the ABC on its 4 Corners program, which reported that one over-zealous compliance enforcement team was disbanded after reporting multiple cases of water theft from Tablelands' rivers.

The situation locally is best summed up by the CEC's own experience through monitoring of DPI Water's real time website which shows flows in many of the state's rivers, including the Orara. In particular, we noticed that from November 2016, through to January 2017, during one of the driest and hottest summers on record, the real time flow graphs from the Bawden's Bridge gauge showed that some 8 to 10 megalitres of water was being pumped out of the Orara every day, or night (see screenshot image below). Note at left the 'saw-toothed' image as water is pumped out daily on this real-time data screenshot.

Note also the blue line registering water depth which never exceeded 360mm at any stage during that month.

That screenshot ends on 8th December, no significant rain fell until March 2017. We have the other screenshots showing pumping continued throughout.

We estimated that close to the entire 670Ml available for extraction under licence, was taken during that period. As a result, we contacted WaterNSW asking if the withdrawal was legal, i.e. by a license holder. To our surprise, we were told that WaterNSW was unaware that this was occurring, but if anyone was to report illegal pumping, they would certainly investigate.

Clearly this is unacceptable, and a clear indication that control mechanisms, if any, simply aren't working. And how could they possibly be unaware of what is evident on their own web site? Erosion and River Pollution When talking water management, soil conservation cannot be ignored. The current regulations are abysmal, and if there are any regulations, the intensive horticulture industry is ignoring them. As pointed out by the Fisheries Department in the Inter-agency Blueberry Advisory Committee's February 2017 minutes, they noticed that, “veg clearing around creeks and run-off from new farms down formed rows is causing serious erosion”, noting that: “Sediment erosion control appears to be non-existent.”

Collusion, corruption or obstruction of justice When the proponents of the large blueberry operation on Linden Park first applied for a pumping licence, the CEC was approached independently by three neighbouring landowners for advice and assistance. As a result of our belief that, a) there was insufficient water, b) the water sharing plan had failed to acknowledge the drop in river flows due to the power station closure, and a number of environmental issues had not been addressed, the CEC lodged an objection. That ultimately led to a Civil and Administrative Tribunal hearing in Grafton about a year later, with the case listed as CEC v the proponents.

At the hearing, to our total surprise, after 12 months of discussion, exchange of cases etc, Water NSW, through their solicitor, challenged our right to present our evidence, claiming our organisation had no pecuniary interest and therefore had no right to present evidence. Their solicitor almost harangued the poor magistrate into agreeing that our evidence be excluded. Other neighbouring property owners were also denied the right to speak because they weren't downstream water users. Why would they do that, if they hadn't been instructed by someone higher up to silence dissent?

We have strong suspicions that there has been political interference, or reluctance to act to regulate intensive horticulture. In fact a letter we received from the Minister, through our local member, suggested regulation should be avoided because it, “may encourage non-compliant behaviours”. As we pointed out to Mr Gulaptis, it is that very non-compliance that is currently occurring within the blueberry industry, which clearly requires some sort of approvals process to prevent the widespread law breaking that is occurring.

The Inter-agency Blueberry Advisory Committee's February 2017 minutes are nothing short of a horror story: In them, the OEH reported “22 new incidents of native vegetation clearing in the Coffs and Clarence areas, an increase from the previous meeting. Some of the clearing has occurred in areas where conservation funding has been given to previous owners. In these 22 incidents there are repeat offenders. - Majority are smaller landowners, some part of Ozgroup.” Of particular concern is the confirmation of something many have suspected, which is: “Growers are prepared to pay fines as a business cost”. Then there is the observation that, “The new vegetation act will commence in July 2017, it will be more lenient and allow greater clearing than previous act. Staff will complete training for new authorisation by July 2017.” This is confirmation by the regulatory authority that the new veg act will facilitate an even greater level of land-clearing.

The Agriculture land use planning section of DPI reported it has:“Received complaints about water use, land clearing and netting”. The Fisheries section of DPI reported: “Receiving complaints about new farm developments – particularly around Coffs and Clarence areas. - Mainly higher order streams and veg clearing around creeks and run-off from new farms down formed rows. - Sediment erosion control appears to be non-existent.” - pointing out that “Sediment can cause problems for Eastern Freshwater Cod, an endangered species”. Safe Work NSW reported that: “A number of complaints have been received, mainly about accommodation facilities and workers' safety on site”.

For Coffs Harbour City Council - their: “Highlighted issues included – illegal clearing, chemical use/spray drift. Accommodation (approx 6 complaints per week about number of people living in rooms), backpackers living on beach and on footpaths, and noise.”

Our own was a little more off-hand reporting: “Standard complaints; clearing. Spray drift, workers accommodation”. Apparently nothing more than should be expected!

The letter we received from the DPI Minister's office attempted to show that DPI. Agriculture is addressing public concerns, claiming that: “DPI Agriculture is actively working with Clarence Valley Council and relevant state agencies to promote best practice within the industry and to support strategic planning that avoids/reduces land use conflict risk”.

This of course is a reference to the Inter-agency Committee's work. However, as we pointed out in our response to that letter, the Committee has no powers because, as was clearly explained, all the committee does, is “promote” best practice, not “ensure” that best practice is followed, and when it comes to supporting strategic planning that avoids or reduces the risk of land use conflict, it's patently obvious that there has been no planning whatsoever. We strongly believe that this lack of planning goes directly to the core of the problem.

------Summary: The current situation is untenable, and action must be taken immediately to control the expansion of intensive horticulture. We suggest the following: 1. Intensive horticulture, or any other agricultural process that involves land use change, should be required to present an Environmental Impact Statement for approval, in the same way any other business development.. 2. Any agricultural process that involves irrigation or use of water beyond the basic owner rights to water for domestic use and livestock, should also be required to present a water management plan for approval. This way the authorities can take a proactive stance and refuse to approve operations where clearly the water is not available. 3. All pumps, off harvestable rights storages and river extraction, must be metered, preferably tamper proof, and monitored regularly by the regulatory authority. The cost of monitoring compliance could be factored into the water licence, a cost that should not be prohibitive if say 2 random site visits were conducted annually. 4. On ground compliance officers must have the full support of their superiors, and be free of political pressure. We cannot contemplate another Glen Turner type incident. 5. Penalties must reflect the seriousness of the breach. Deliberate tampering, by-passing, or disconnection of meters should result in the revocation of the licence, and imprisonment should be in the penalty mix for pumping without a licence. 6. We believe that “cease to pump” levels are too low, and should be doubled at least, The use of off-stream storages should allow landowners to store sufficient water, to allow pumping only at high flow periods. That cease to pump level for the Lower Orara River is 20Ml/day, this equates to very low flow. The problem is, with the high demand for water for intensive horticulture, the very low flow will become the norm, with flows greater than 20Ml only occurring during periods of high rainfall. 7. “Cease to flow” levels must be measured from down stream metres, not upstream as is the case with the Lower Orara.

We thank the Department of Industry for the opportunity to comment, and sincerely hope our suggestions receive serious

Yours sincerely

John Edwards Honorary Secretary