The Supreme Court of NSW has directed Bathurst Regional Council to stick to a key clause in their Winburndale Dam water licence for environmental releases moving forward after the Winburndale Rivulet ran dry during the last drought, prompting the Natural Resources Access Regulator [NRAR] to issue council with an official caution.
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On Tuesday, the Supreme Court "declared that the primary obligation of the Council...is to release from the dam a volume of water equal to the daily inflow, but not exceeding the daily capacity of the 300mm discharge pipe, given the water level of the dam."
The Court referred to condition DK3944 of council's Winburndale water licence- the 300mm valve must be operated to maintain a flow in the watercourse downstream of the dam. The flow must be equal to the flow entering the storage of the dam or the capacity of the 300mm pipe, whichever is the lesser discharge- as the basis for their judgement.
In response, general manager David Sherley said council is extremely concerned with the outcome of today's court case.
"Winburndale Dam is a key part of our town water supply and we are currently investing more than $16 million in dam wall strengthening works," Mr Sherley said.
"Under our water licence condition, the secure yield from Winburndale Dam is 1033 megalitres; under the judgement that is reduced to 28 megalitres."
Mr Sherley said "Winburndale Dam has played a key role in our water supply network for almost 100 years, and currently supplies water for our parks and gardens and as well as commercial customers."
"In the most recent drought, these changes would mean that one-fifth of the water used by our community would no longer be available.
"Council will continue to make representations to the NSW Government regarding these outcomes which risk this community losing a principal town water supply asset."
A spokesperson from NRAR said the regulator welcomes the Supreme Court's decision.
"This matter arose after NRAR received reports from the public alleging that council were operating Winburndale Dam in breach of the conditions on their water supply work and water use approval which regulate flow rates from the dam into Winburndale Rivulet," the spokesperson said.
"Regular flows from Winburndale Dam support riverine ecosystems in Winburndale Rivulet and access to both licenced and stock and domestic water by downstream users.
"Council disagreed with NRAR's decision to issue an official caution and commenced legal proceedings.
"This week, the Court endorsed NRAR's interpretation of the approval conditions and so council continue to be required to adhere to the relevant flow conditions on the approval. NRAR will monitor accordingly to ensure compliance."
The Winburndale Waters Conservation Group [WWCG], who first brought the issue to light over two years ago, also welcomed the Supreme Court's decision to ensure the "Winburndale Rivulet will receive the water that it has always been legally entitled to but denied by a greedy council."
However, they found the official response from Mr Sherley "mystifying".
"He states that 'under our water licence, the secure water yield from the Winburndale dam is 1033 megalitres' and that 'under the judgment it will be reduced to 28 megalitres'," a WWCG spokesperson said.
"For one this figure is a worst-case scenario. Secondly, the 1033 megalitre 'secure yield' value was produced based on council's interpretation of the licence, which has now been overruled by both NRAR and the Supreme Court. You can't take something away that was never there.
"Council did, and still has a licence to use 1000 megalitres of water for town use - this has not changed."
The spokesperson said "it is very disappointing that it has got to the stage of BRC spending $500,000 of ratepayers' money to be in exactly the same position as they were nearly two years ago."
"Interestingly, Mr Sherley makes comment about the water supply playing a large part in our community. The landholders that reside on the rivulet are members of this wonderful community too. It can't be us versus them.
"Have the landholders ever stated that we are against the use of water for town use? No, in fact, there is probably potential for more water for the town, whilst ensuring the rivulet continues to flow.
"We as a community group have continually sought to work through this sensibly with all parties.
"Whilst the previous council and current staff members have repeatedly turned this offer down, we call on all current councillors to hold the staff accountable, and to stop the wastage of ratepayers' money and support real community partnerships to help Bathurst as a whole."
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