2012 NGWA Ground Water Summit: Innovate and Integrate

Compliance and Enforcement of Groundwater in Australia: A Contemporary Challenge for Water Law and Regulation

Tuesday, May 8, 2012: 1:30 p.m.
Royal Ballroom C (Hyatt Regency Orange County)
Darren Sinclair, Fenner School of Environment and Society, Australian National University;
Cameron Holley, Ph.D, , Law School, University of New South Wales;

Groundwater management in Australia is underpinned by a system of water rights and cap and trade markets. The regulation of these markets is central to achieving sustainable groundwater use and supply. Yet as with any regulatory system, Australia’s water markets are ultimately dependent on compliance and enforcement to ensure the integrity of the traded groundwater allocations  – without this, irrigators may choose to act as ‘free-riders’ and simply exceed their allocations instead of conducting trades.

Despite its centrality to the successful regulation of groundwater, to date, compliance and enforcement has remained largely overlooked in the water law literature. This is particularly the case regarding the regulation of groundwater, where accurate knowledge of water levels and user behavior is difficult to obtain and misuse is easily hidden.

In response, this study sheds light on compliance and enforcement in a groundwater context by examining its successes and weaknesses in practice, to identify lessons for both policy makers and the literature. Drawing on 25 in-depth interviews with water users and government regulators from the Australian State of New South Wales, the article reveals that governments often struggle to provide an effective and comprehensive compliance and enforcement regime for groundwater. The study identifies reasons for this, including serious underinvestment in compliance and enforcement; political and cultural constraints on agencies to ‘go softly’ on water users; ineffective divisions of responsibility between inspectors and prosecutors; inadequate evidence, monitoring and data collection; short limitation periods and minimal regulatory penalties; and underdeveloped compliance policies. The article argues that taken together, these ‘constraints’ expose a major legal and policy flaw in groundwater regulation that consistently undervalues compliance and enforcement. The article accordingly identifies a number of legal and policy design recommendations for improving compliance and enforcement, as well as considering the broader implications for groundwater law and policy theory.