Setting environmental flows in working rivers is generally characterised as a policy trade-off between ecological water requirements and consumptive water supply. This trade-off has been the subject of ongoing policy and legal developments in Australia in recent decades, with the majority of effort centring on the water resources of the Murray-Darling Basin, which are typically viewed as over-allocated, with declining environmental values. The most recent and far-reaching of these reforms has been the introduction of the Water Act 2007 (Cth) ('the Water Act') by the federal government, which began a statutory planning process to re-allocate the shared water resources of the Basin so as to establish a sustainable diversion limit (SDL) on water that can be taken from both surface and groundwater resources. The SDL is the mechanism through which the trade-off between environmental and other values will be realised, and the Act sets a range of substantive and procedural parameters to govern this trade-off. Of particular significance is the strong environmental standard for the SDL: it must reflect an environmentally sustainable level of take. More than five years since the Act was introduced, the Basin Plan 2012 (Basin Plan) was adopted by the Federal Water Minister on 22 November 2012. This paper scrutinises the SDL provisions of the plan against the environmental standard and other statutory parameters established by the Water Act. This analysis suggests that the limits in the plan reflect a balancing of environmental with social and economic considerations, which is at odds with the clear direction in the Water Act to set SDLs to reflect an environmentally sustainable level of take. Yet this may be a difficult legal argument to make, particularly given the discretion accorded the Murray-Darling Basin Authority in the preparation of the plan. It is also difficult to divorce an analysis of the plan from its highly contentious political context. For this reason, the paper concludes with a pragmatic acknowledgement that the Basin Plan, despite its significant flaws, represents a significant improvement on the path towards achieving a more environmentally sustainable level of trade-off in the MDB.
|Number of pages||20|
|Journal||Australasian Journal of Natural Resources Law and Policy|
|Publication status||Published - 7 Oct 2013|
- water law