In July of 2017 the Four Corners news program on the Australian Broadcasting Corporation network aired an investigative report that sent shockwaves to the very top of the Australian government. The report questioned the implementation of the ambitious Murray-Darling Basin Plan, and alleged that rogue irrigators had illegally pumped vast quantities of water dedicated under the Plan for in-stream environmental flows and used it instead to grow cotton. Scandal erupted in the aftermath, with calls from opposition leaders and advocacy groups for independent investigations and filing of criminal charges. In the months since, critics have continued to raise serious questions about the future of water resource management and environmental protection in Australia.
The Murray-Darling River Basin is a major watershed that covers roughly one-seventh of the landmass of Australia, running through the states of New South Wales (“NSW”), Victoria, the Australian Capital Territory, Queensland, and South Australia. Much of Australia’s agricultural industry is located along the Murray-Darling, along with significant populations that depend on the rivers for their water supply. The rivers and streams in the Basin support a large and complex ecosystem of wildlife. Aboriginal peoples in the region have depended on the waters for their traditional subsistence and cultural practices since prehistoric times, and some aboriginal communities still maintain their connections to the area.
In the aftermath of the 2002-2009 Millennium drought, Australian leaders in the public and private sector conceived of the Murray-Darling Basin Plan as a sustainable way to respond to the many environmental, economic, and resource management challenges facing the region. After many years of wrangling, its approval and implementation was meant to usher in a new era of sustainability. Australian taxpayers spent over thirteen billion dollars (AUD) to purchase water rights from license holders and reserve that water to restore healthy environmental flows.
Instead, public outrage has mounted in response to allegations that cotton farmers diverted vast amounts of water meant for instream flows into private storage reservoirs. Large-scale consolidation of irrigation operations and the influence lobbying has had on water policy have contributed to a public perception that the big players have rigged the system against the interests of small stock growers and rural communities.
Although the Murray-Darling Basin Plan is a national initiative, state governments retain much of the authority for implementing policy within their borders with local pumping regulations. On the Barwon river (a major tributary in the Murray-Darling Basin) two large irrigation firms hold over seventy percent of water use licenses. Those firms lobbied the NSW government successfully for changes to pumping regulations that actually enabled them to divert greater amounts of water than they had been allowed before the Plan. Critics allege that irrigators have also taken advantage of a lax compliance and enforcement regime to take even more water illegally.
What emerged from the Four Corners report was a picture of a crucial government initiative, undertaken in the public interest, but undermined by agency capture at the policy level, lack of adequate compliance measures, and weak enforcement.
Even before implementation, the Murray-Darling Basin Plan has faced strong pushback from the country’s agricultural industry. The central conflict at the heart of the Plan has been how much water to reserve for environmental flows. Scientists and environmentalists originally pushed for as much as 7600 gigaliters (a GL is roughly 810 acre-feet) to be devoted to the environment, while agribusiness interests strenuously objected to what they view as excessive withdrawals of water from irrigation uses, and warned of dire economic consequences for the region if their industry loses access to necessary water supplies. Ultimately, the Murray-Darling Basin Authority settled on a compromise of a minimum of 2700 GL reservation (and an additional 450 GL if it can be shown that using the additional water would not have adverse economic impacts).
Despite the compromise, the concerns of agribusiness have continued to find support in the highest offices of government. For example, the Four Corners program aired a recording of a secret conference call in which a senior water official inappropriately promised to provide irrigation lobbyists with confidential government documents. An Australian environmentalist told ABC that they struggled to obtain government documents during that same timeframe from the NSW government through freedom of information laws. This evidence that a top NSW water manager was offering special access and information to the industry his office is responsible for regulating underscored the perception of a rigged system. In the months since, NSW ministers referred the official to an independent state watchdog agency for investigation, and he has since resigned.
Later, in response to the revelations by Four Corners program, Deputy Prime Minister Barnaby Joyce described the investigation to a meeting of irrigators as a “calamity” that amounted to a conspiracy by environmentalists to take more water from agriculture. At that same community meeting he subsequently told irrigators “we’ve taken water, put it back into agriculture, so we can look after you and not have the greenies running the show.” Potential bias in the national government, along with the previously mentioned lobbying influence at the state level, and the limited power of the Murray-Darling Basin Authority combines into a particularly potent atmosphere for agency capture.
Compliance & Enforcement
Despite the fact that the government moved to implement the Murray-Darling Basin Plan, given the heavy influence of irrigators at the policy level, the modest plan to reserve even 2700 GL of water for environmental purposes remained an ambitious proposal. Unfortunately, as documented in the Four Corners report, irrigators diverted much of that water before it could achieve its ecological purpose. Exactly how much they diverted, and who exactly diverted it, has been very difficult to determine. The Murray-Darling covers a vast territory of extremely rugged Australian outback, and it is not surprising that imposing a compliance regime has been a difficult task over such a widespread rural area. Clearly, the current measures have not been adequate. Regulations require that irrigators maintain meters, or keep detailed logbooks, to measure their water usage. However, as the Four Corners report revealed actual compliance with those requirements was haphazard. Jaime Morgan, the former manager of the NSW Strategic Investigation Unit told ABC’s reporters about numerous metering violations—including everything from bad maintenance to outright sabotage—as well as shoddy and falsified recordkeeping. His assessment was that “the entire river system” within NSW lacked adequate compliance and enforcement with existing water legislation. No matter how good or bad a policy initiative the Murray-Darling Basin Plan was in its conception, without strong compliance measures in place, it is vulnerable to fraud.
On top of the diluted policy and compliance failures, lax enforcement also featured prominently in the Four Corners story. Again, the sheer scale of territory encompassed by the Murray-Darling has presented an enormous challenge to enforcement programs that must operate with limited resources to keep tabs on many remote and isolated operations. In addition to setting pumping regulations, each state government is also primarily responsible for the enforcement of its water policy in accordance with the Basin Plan. Unfortunately, this state-by-state approach has lent itself to cross border conflicts of interest, with state governments pointing fingers and shifting blame despite widespread problems and shared consequences. Even worse, Four Corners reported cases where investigations that did reveal potential fraud were undermined by agency leadership. The same former investigator who found numerous compliance and recordkeeping violations later had his investigation reports buried and his entire unit reassigned. Phil O’Conner, mayor of the riverside community of Brewarrina, NSW, described collecting video evidence of irrigators pumping during prohibited times, only to have those reports ignored by NSW enforcement agencies.
Analysis of the mistakes made implementing the Murray-Darling Basin Plan can offer important lessons to policymakers elsewhere. If Australia can respond to the current challenges successfully, their solutions may be a model that can help address similar problems here in the United States. Likewise, Australians may also look to the many varied approaches of their American cousins in different states as they continue to reform their system.
What sets the Murray-Darling Basin Plan apart from the local efforts of comparable American water programs is a matter of sheer scale: at 1558 miles long, the Murray River is longer than the mighty Colorado’s 1450 miles. Nevertheless, the two river systems share much in common in their social, agricultural, and economic significance. Before the Basin Plan, the Murray-Darling was plagued by a litany of problems that also confront the Colorado River: over allocation, persistent drought, loss of biodiversity, growing demand from expanding urban populations. Australia’s response was a project of massive nationwide ambition. As difficult as it has been to see that project through, one need only look to the famous “bathtub ring” encircling Lake Mead to see how the problem of managing such a vast river system during persistent drought has challenged American water resource planning. One can imagine the complexity of implementing a hypothetical Colorado River Basin Plan to restore environmental flows, and perhaps forgive some of the Murray-Darling Plan’s growing pains.
Still, it is clear that change is necessary for the Murray-Darling recovery to be a success. The question is what form that change should take? Like in the American west, Australians long ago rejected their English forefathers’ riparian common-law approach to water rights. Unlike states like Colorado, however, the Australians established a comprehensive administrative regime for granting water licenses, and did not recognize priority according to “first in time, first in right.” Instead, agencies granted water use licenses based on the principle that the public owned water resources collectively. Their system has continued to evolve in the years since NSW adopted its Water Act of 1912, a first of its kind law that became a model for other Australian states. Indeed, some observers have considered Australian water law to be quite progressive in balancing elements of certainty found in the prior appropriation system, and elements of communal equity characteristic of riparianism. Australian law enshrines the concept of water as a natural resource owned by the public, and that it should be managed according to the public interest. Indeed, the passage of the Basin Plan at all—much less with widespread public support—argues for the strength of the public interest ethic in Australia.
Unfortunately, the administrators responsible for protecting that public interest seem to have been unwilling or unable to do so, as shown by the damning Four Corners report. One potential solution to overreliance on compromised agencies would be to enable members of the public more power to litigate their interests against alleged water thieves. Rather than relying exclusively on a cumbersome and overburdened bureaucracy to bring enforcement actions, robust citizen suit provisions or private rights of action could be brought to bear against bad actors. Disputes over the kinds of violations shown by Four Corners often arise in Colorado, especially in times of scarcity. When harsh words, brandishing shovels, or a call to the water commissioner doesn’t resolve those conflicts a lawsuit before a water court is sometimes necessary. In the Four Corners report an interviewee described industrial water users who had installed new larger pipes or pumped water during prohibited times. These would be textbook cases for litigation challenging a change in diversion, or diverting out of priority to the injury of other water rights.
Thankfully, in the months since the Four Corners report there have been signs of progress. Federal and State governments have undertaken independent investigations, one of which published an explosive report on corruption in NSW. In Queensland, police raided a large irrigation operation accused of misappropriating government infrastructure funding. The Australian Parliament has convened hearings amid calls for urgent reform. However things turn out in the Murray-Darling—whether the result is an administrative shakeup or a more fundamental reform—the process of implementing the Basin Plan will move forward. Its success, or failure, will continue to inform observers around the world, offering important lessons—of what to do or, maybe, what not to do.
Image: A shoreline shot of the junction where the Murray and Darling Rivers meet in New South Wales, Australia. Flickr user Mike Russell, Creative Commons.
Four Corners: Pumped (Austl. Broad. Corp. television broadcast July 24, 2017), http://www.abc.net.au/4corners/pumped/8727826.
Media Release, Malcolm Turnbull, Prime Minister of Australia, Murray Darling Basin-Wide Compliance Review Announced (July 30, 2017), https://www.pm.gov.au/media/murray-darling-basin-wide-compliance-review-announced.
A Plan for the Murray Darling Basin, Murray-Darling Basin Authority, https://www.mdba.gov.au/basin-plan/plan-murray-darling-basin (last visited Nov. 11, 2017).
Sheradyn Holderhead, Review ordered into Murray-Darling Basin Plan water use after allegations of misuse, Advertiser (July 30, 2017 3:52 AM), http://www.adelaidenow.com.au/news/south-australia/review-ordered-into-murray-darling-basin-plan-water-use-after-allegations-of-misuse/news-story/1e21db8fe802fb6c2cb2d5e1f7d3517d.
Suzanne Milthorpe, The Murray-Darling basin scandal: a symptom of how we fail to protect our environment, Guardian (July 28, 2017 2:00 PM), https://www.theguardian.com/commentisfree/2017/jul/29/the-murray-darling-basin-scandal-a-symptom-of-how-we-fail-to-protect-our-environment.
Aboriginal heritage and culture, Murray-Darling Basin Auth., https://www.mdba.gov.au/discover-basin/people/aboriginal-heritage-culture. (last visited Nov. 11, 2017).
John Vidal, Australia suffers worst drought in 1,000 years, Guardian (Nov. 8, 2006 6:07 AM), https://www.theguardian.com/world/2006/nov/08/australia.drought.
Peter Hannam & James Robertson, Former NSW water minister, top bureaucrat to be referred to ICAC after ABC investigation, Sunday Morning Herald (July 5, 2017), http://www.smh.com.au/environment/nsw-ministers-call-for-urgent-overview-of-water-issues-lame-acf-says-20170724-gxhyb4.html.
Murray-Darling Basin: NSW’s most senior water bureaucrat resigns over corruption allegations, Austl. Broad. Corp. (Sep. 15, 2017 3:47 AM), http://www.abc.net.au/news/2017-09-15/murray-darling-basin-nsw-top-water-bureaucrat-resigns/8951258.
Tim Iggulden, Murray-Darling plan doomed to fail unless more water earmarked for conservation: scientists, Austl. Broad. Corp. (June 25, 2017 1:04 PM), http://www.abc.net.au/news/2017-06-26/murray-darling-basin-plan-failing-environment-scientists-say/8650270.
Peter Ker, Scientists push for strong plan on Murray-Darling, Age (Dec. 1, 2010), http://www.theage.com.au/national/scientists-push-for-strong-plan-on-murraydarling-20101130-18fbe.html.
Murray-Darling Basin Plan investigation a plot to ‘take more water off you’, Barnaby Joyce says, Austl. Broad. Corp. (July 27, 2017 1:03 AM), http://www.abc.net.au/news/2017-07-27/murray-darling-basin-plan-investigation-a-calamity,-joyce-says/8749620.
Marty McCarthy, SA water minister accuses NSW of water theft ‘cover up’ as Basin states trade blows, Austl. Broad. Corp. (Oct. 25, 2017 5:09 PM), http://www.abc.net.au/news/rural/2017-10-09/murray-darling-basin-states-bump-heads-as-sa-government-defends/9030434.
Abraham Lustgarten, How the West Overcounts Its Water Supplies, N.Y. Times (July 17, 2015), https://www.nytimes.com/2015/07/19/opinion/sunday/how-the-west-overcounts-its-water-supplies.html.
Anna Vidot, What is the Murray-Darling Basin Plan and why are we still talking about it?, Austl. Broad. Corp. (June 25, 2017 5:34 PM), http://www.abc.net.au/news/2016-11-21/what-is-the-murray-darling-basin-plan/8043180.
Allen Best, Peering into the bottom of the water barrel, Denv. Post (Apr. 19, 2016 4:34 PM), http://www.denverpost.com/2015/12/11/best-peering-into-bottom-of-the-water-barrel/.
Yee Huang, A Tale of Two Countries: Lessons from Australia for Water Law in the United States?, Ctr. Progressive Reform: CPRBlog (Mar. 22, 2010), http://www.progressivereform.org/CPRBlog.cfm?idBlog=860CB207-02D4-BB7A-B891B40E9ECFF220.
Nancy Lofholm, Tempers flaring in Colorado over diminished irrigation water, Denv. Post (Apr. 29, 2016 9:58 PM), http://www.denverpost.com/2013/07/20/tempers-flaring-in-colorado-over-diminished-irrigation-water/.
Sarah Gerathy, Murray-Darling Basin: ‘No change is not an option’ says damning report on alleged NSW water corruption, Austl. Broad. Corp. (Sep. 11, 2017 12:50 AM), http://www.abc.net.au/news/2017-09-11/damning-report-on-alleged-corruption-by-nsw-water-official/8892208.
Kerry Brewster, Murray-Darling Basin: Goondiwindi cotton farm raided over alleged misuse of Commonwealth funding, Austl. Broad. Corp. (Oct. 25, 2017 7:04 PM), http://www.abc.net.au/news/2017-10-24/murray-darling-basin-alleged-fraud-goondiwindi-cotton-farm/9080280.
Sophie Wainwright & Declan Gooch, Murray-Darling Basin: Senate hearing on water reform in far west NSW told ‘your heartland is dying’, Austl. Broad. Corp. (Nov. 2, 2017 3:35 AM), http://www.abc.net.au/news/2017-11-02/urgent-calls-for-water-reforms-senate-hearing-broken-hill-theft/9111510.