Climate Change and Water Resources Law: a looming adaptation crisis

Associate Professor Alex Gardner with Research Assistant Professor Michael Bennett

Centre for Mining, Energy and Natural Resources Law, UWANational Centre for Groundwater Research and Training Cooperative Research Centre for Water Sensitive Cities Adjunct Professor, College of Law, Australian National University

Introduction

• Foundations of Australian water resources law – Federal distribution of leg’ve powers & sovereignty – Commonwealth can spend money & set goals / limits– Water rights based on common law & State statute

(riparian, groundwater and licensing traditions)

• Presentation theme: sharing climate change loss?– water management goal: ecologically sustainable

development– Water law reform to use better measurement &

management (economic efficiency) to achieve goal– It can involve reducing water access entitlements

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Outline of presentation1. Understanding of climate change & water needs

a) scientific observations b) demands / needs for water

2. Climate change & Perth’s water resources a) water resource options: surface & ground water &?b) overallocation, overuse and climate changec) water resource augmentation responses

3. The need to adapt water rights: legal reforms a) current law & policy in Western Australia b) national water policy: 2004 National Water Initiativec) How to share reductions of entitlements

- with water users and the environment?

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1. Understanding of climate change and water needs

• [National] Climate Commission - climate change impacts for Western AustraliaDeclining rainfall and higher temperatures have serious implications for agriculture and urban water supplies in the southwest

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Long term average annual rainfall

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Climate Change patterns

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Recent climate - La Nina

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14 of 15 GCMs project it will get drier by 2030 {from CSIRO}

Mid warming

Low warmingHigh warming

• Median future climate-7%

• Wet extreme future -1%climate (90 percentile)

• Dry extreme future -14%climate (10 percentile)

Change in annual rainfall

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Indian Ocean Climate Initiative, WA:- Human-induced climate change

“Rainfall reductions in SWWA can be explained by major changes in global atmospheric circulation and

temperature...

“The observed patterns of large-scale atmospheric change associated with SWWA rainfall reductions are

consistent with what would be expected in an atmosphere influenced by increasing greenhouse gas

concentrations.”

Indian Ocean Climate Initiative (2012), 9-10.10

South-West Western Australia• Population: 2 million & growing

• Broad-acre cropping & grazing; -lower S-W: timber & irrigated horticulture, dairy & wine

• Traditional reliance on surface water, now heavily reliant on groundwater

• Australia’s only ‘biodiversity hotspot’

• Internationally-significant wetlands

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Perth water consumption

Source: Water Corporation (2013)

Water scarcity for S-W public water supply

13Source: Water Corporation

2. CC & Perth’s water resources

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Run-off into Perth Hills Dams, 1911-2012

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tal A

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w to

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* (G

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Annual Total

1911-1974 av (338 GL)

1975 - 2000 av (177 GL)

2001-05 av (92.4 GL)

2006-10 av (57.7 GL)

Notes: * year is taken as May to April and labelled year is start (winter) of year** Inflow is simulated based on Perth dams in 2001 i.e. excluding Stirling, Samson & Wokalup

2010

27th October 201015

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Surface water supply: Perth Dams

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So, what about groundwater? How much is there?

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Gnangara Mound Superficial Aquifer level

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Confined aquifer well

Gnangara Groundwater System

River

Guildford Clay

Confining Bed

IndianOcean

Leederville aquifer

Superficialaquifer

Coastal Limestone

Wetland

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rlin

g F

au

lt

Yarragadee aquifer

Confining Bed

Confining Bed

Rainfall

Superficial aquifer well

Bassendean Sand

Caves

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Impact of confined pumping on Superficial aquifer bore PM 6

51.0

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12/1968 12/1978 12/1988 12/1998 12/2008

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CDFM (1907-2004)

Superficial abstraction cumulative(P90+P100)ML/10

Confined abstraction cumulative (P97)ML/10

Confined abstraction cumulative (P105)ML/10

-1.8m

Abstraction impact = -1.8m

Climate impact = -2.70m

PM6 is ~2km east of the Superficial and Confined abstraction bores2 months lag

C Yesertener

CDFM rainfall

Cumulative superficial pumping

Cumulative confined (Leederville) pumping

measured superficial groundwater level

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Yarragadee water levels

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Ecological limits not respected

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Non-compliance with environmental Ministerial Conditions

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• Red line is the minimum legal drawdown

• http://kumina.water.wa.gov.au/waterinformation/ewp/ewp.cfm

Gnangara Groundwater Use

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Water Corporation augmentation

• 145 GL/a of desalination capacity since 2006

• Groundwater replenishment trial, with August 2013 approval for managed aquifer recharge scheme using highly treated waste water

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Public water supply strategy

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1940 1945 1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000 2005 2010 2015 2020

GIG

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SUPPLY AND DEMAND FOR THE INTEGRATED SCHEME (IWSS)

Groundwater Security Strategy

Southern Seawater Desalination Plant

Perth Seawater Desalination Plant

Groundwater Supply

Surface Water (including trade)

Source: Water Corporation (2013)

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3. The need for adaptation of water rights: law reforms

'What we have ... found is that this drying trend can indeed be gradually reversed if CO2 stabilisation is achieved'.

'While this is desirable, it has to be remembered that our models predict that it will take a period of some five

hundred years to recover'.

Dr Wenju Cai CSIRO, How the West Has Dried (2006)

Legal character of current water licence rights in Western Australia • Landholder eligibility requirement • Fixed term; generally ten years; right to renew • Granted for free to first in time applicant • Regulates taking and use on specified land up to

annual maximum, subject to scarcity directions• Since 2001, limited trade of saved water; P or T • Cumulative licensing to non-statutory resource

limits to protect environment• Limited metering and poor enforcement

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National Water Policy, key principles• Transition to tradable water access entitlements

– Adjustment to environmentally sustainable take on transition – Confers perpetual entitlements as shares of available water,

determined as annual allocations to water account – Separate from land title and use approval – Entitlements and allocations separately tradable – All extractions to be metered and reported – National oversight of State water market rules

• Comprehensive systems of water planning– Formal allocations of water reserved to environment – Determination of consumptive pool: term of plan & seasonal– Accounting & monitoring of plan performance – Regular review to re-set the regime, including entitlements – Licensees to bear risk of climate change reductions

WA critique of reform policy has caused years of delay

• Government: – Developed for surface water system of the Murray-

Darling Basin; inapplicable to complex groundwater – Expensive system not warranted in under-developed

resources where no overallocation– Recent qualified acceptance of national policy

• Licensees – Rural licensees fear of easy trade to any person;

like perpetual entitlements attached to land – Mining industry wary of share entitlements – Expectation of compensation for sustainability cuts

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Property right & compensation ICM Australia v Commonwealth [2009] HCA 51

Facts: New South Wales groundwater licensees suffered reduced entitlements on transition to new licences in accordance with statutory plan

» Commonwealth funded structural adjustment payments so Cth constitutional guarantee applied

Held: Majority held old licences were property (??) But there was no acquisition of access rights;

» Statutory rights were flexible / defeasible » no person (including State) gained any benefit» reduction formula: history of use & proportion

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ICM: Not an “acquisition” [153] • The amount of water that the State could permit to be

extracted was bounded only by the physical state and capacity of the aquifer, and such policy constraints as the State chose to apply. Neither the existence, nor the replacement or cancellation, of particular licences altered what was under the control of the State or could be made the subject of a licence to extract. If, as was hoped or expected, the amount of water in the aquifer would thereafter increase (or be reduced more slowly) the State would continue to control that resource. Butany increase in the water in the ground would give the State no new, larger, or enhanced "interest in property, however slight or insubstantial", whether as a result of the cancellation of the plaintiffs' bore licences or otherwise.

Conclusion: adjusting water rights to address overallocationand climate change • Australia moving to planned water property rights

– Water rights are tradable share entitlements in a consumptive pool of available water

• annual share allocations– In theory, share adjustments are to be made:

• On transition to the new regime; • On renewal of plan – 10 to 15 year terms

– Formula for share adjustments: respect for history of use and proportional sharing of scarcity

• What formula for climate change reductions? • Comparison with Western US doctrine

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