***MEDIA RELEASE September 5th, 2009

Lungfish “Day in Court”

As the nation marks Threatened Species Day on Monday September 7, a four-week hearing commencing in the Federal Court in Brisbane could prove critical for one of Australia’s iconic species, the “living fossil” the Queensland Lungfish Neoceratodus forsteri.

The case initiated by Wide Bay Burnett Conservation Council (WBBCC) with the support of a number of environmental groups challenges Sunwater over ineffective fish passage for the Queensland lungfish at Paradise Dam.

One of the conditions placed on building the Paradise Dam was that “Burnett Water Pty Ltd must install a fish transfer device on the Burnett River Dam suitable for the lungfish. The fishway will commence when the dam becomes operational”.

A recent Griffith University poll in Brisbane had 73% of respondents opposing damming rivers if it threatened endangered species such as Queenland Lungfish.

Save the Mary River Group President Glenda Pickersgill said Environment Minister Peter Garrett recently pointed out that the way to save threatened species was not a species by species approach but rather ecosystem protection.

“It would seem all too plain that big dams not only seriously reduce viable lungfish spawning areas and suitable cover for juveniles but they cause many deaths in the event of overtopping, such as recently shown at North Pine Dam,” Ms Pickersgill said.

“It’s like a pincer movement, squeezing at both ends of the life cycle,” she said. “The question is not so much whether it will lead to extinction but rather how long it’ll take.”

“Paradise is on trial because of the failings of its unproven fishway system. The proposed Traveston Dam would boast a “world-first” (ie untested) turtle ramp as well.”

Ms Pickersgill said this court challenge is a real test of the federal Environment Protection, Biodiversity and Conservation (EPBC) Act.

“The legal costs will be considerable and (tax deductible) donations to WBBCC’s Paradise fund are urgently needed. The special Paradise dam donate button is at http://wbbcc.wordpress.com/donate/ or donate at the Save the Mary info centre at Kandanga.” END

Contacts for Media: Glenda Pickersgill 0411 443 589. Roger Currie (WBCCC) 0448 917 571 Darryl Stewart (Greater Mary Association) 0418 771 655.

Photographs of Paradise Dam are available from www.stoppress.com.au

Websites: www.envlaw.com.au/paradise/html and www.savethemaryriver.com

Queensland lungfish background

Science became aware of the lungfish in 1870 when a specimen from the Burnett River in Southeast Queensland was shown to Gerard Krefft, then curator of the National Museum, who had previously only seen evidence of the fish appearing in fossil deposits.

The ‘discovery’ was equivalent to finding living, breathing dinosaurs in some remote corner of the planet. News spread quickly and biologists, particularly English and German, came to both the Burnett and Mary rivers to find out more of the curious fish. When the HMS Challenger set out on its two-year voyage of discovery, it marked as important that it investigate the lungfish, which it did in the lower reaches of the Mary River near Tiaro.

Despite its having survived unchanged for millions of years, the lungfish is now classified as “Vulnerable” due to its limited distribution and the fact that researchers frequently report little or no evidence of juvenile lungfish..

Researchers failed to find any juvenile Lungfish in the Burnett River between 1998 and 2001 despite intensive sampling using methods that had previously proven effective.

As adults are thought to live to around 100years of age (the oldest fish in captivity is a Queensland Lungfish in shed Aquarium in Chicago which arrived there as an adult in 1933), the simple presence of mature lungfish doesn’t necessarily indicate a healthy viable population.

Fish ladder trial a test for Traveston


TONY MOORE
September 7, 2009

A test case begins in Brisbane’s Federal Court this morning arguing that a transfer device to move endangered lungfish in Queensland’s dams does not work.

It could set a precedent which could halt the design of part of Traveston Crossing Dam.

The case - by the Wide Bay Burnett Conservation Council (WBBCC) - will present evidence that a ‘fishlift’ or ‘ladder’ designed for lungfish and used at the Paradise Dam near Bundaberg does not work.

The Queensland lungfish is a federally-listed threatened species.

Operators of the fish ladder say that since recent rainfall allowed dam levels to rise, almost 13,000 fish have used the ladder, including some lungfish.

WBBCC began the legal action in October last year and say the action by the Paradise Dam’s operators contravene Federal legislation.

The conservationists argue their case has wider implications for the protection of the Queensland lungfish, saying a similar fish ladder is proposed for the Traveston Crossing Dam, south of Gympie.

WBBCC spokesman Emma-Kate Currie said the Traveston Dam was an important issue in the future.

“Today we begin this trial ultimately with the desired outcome of protecting the Queensland lungfish,” Ms Currie said.

“They are endemic only to the Burnett and Mary rivers and currently face an uncertain fate with the Burnett River containing multiple dams and weirs and the Mary River facing the proposed Traveston Crossing Dam,” she said.

She said Queensland Water Infrastructure (QWI) - who are building the Traveston Crossing Dam - modelled the Traveston Dam with the same fish transfer device used at the Paradise Dam.

“That is what is under question in this trial and if it is proven unsuitable, then it will be back to the drawing board for Traveston.”

The court case begins in Brisbane’s Federal Court this morning at 10am. It is understood Burnett Water, the operators of the Paradise Dam, will apply for an adjournment after writing to Federal Environment Minister Peter Garrett on Friday.

Today is National Threatened Species Day.

Federal Court judge to try out fish lift

Sep 07, 2009


A Federal Court judge will travel to a central Queensland dam tomorrow to see for himself how a controversial device designed to make life easier for a threatened species of fish will work.

Justice John Logan will take the site tour of the Paradise Dam near Bundaberg as part of a landmark test case over a fish ladder, used to lift the endangered lungfish across the dam.

The case, being brought by environment group the Wide Bay Burnett Conservation Council, challenges the effectiveness of the ladder in assisting fish movements and may have implications for the Traveston Crossing Dam near Gympie, where a similar device has been proposed.

At a Federal Court hearing today, Paradise Dam operators Burnett Water Pty Ltd, which is owned by the State Government, sought an adjournment ahead of a review of conditions surrounding the fish ladder by the Federal Environment Minister Peter Garrett.

But Justice Logan questioned whether the State Government was trying to use the Federal Court to “change the ground rules” for the threatened lungfish.

Burnett Water is accused of not being able to effectively run a fish ladder at the dam, breaching dam management conditions set by the Federal Government’s biodiversity legislation.

Meanwhile, Burnett Water claims that until recently, there had not been enough water in the dam to ensure it could operate properly.

The water authority this morning lodged an application to have the court hearing adjourned.

Solicitor General Walter Sofronoff QC, acting for Burnett Water, told the court Federal Environment Minister Peter Garrett would review the conditions governing the lungfish in two weeks time.

Mr Sofronoff said Burnett Water had been working with Federal Environment Department staff since October 20008 on amendments to the legislation.

This work included a variation to what is being referred to as “condition three”, which requires Burnett Water to install a fish ladder that is suitable for lungfish.

However, Keith Fleming QC, for the Wide Bay Burnett Conservation Council, said the environment group was not aware until last Wednesday there were talks about specific changes to the conditions on managing lungfish at the dam.

This prompted Justice Logan to question why this information had not been passed to the council.

“It is odd that if the Minister’s Department was thinking of this type of thing that they would tell each side of the argument,” Justice Logan said.

Mr Sofronoff told the court if the trial continued, the government would provide evidence there was no threat to the lungfish as a whole species.

He said the fish ladder now operated “at least 90 per cent” of the time.

Mr Fleming said the case put forward by Burnett Water was “largely speculative” on what Federal Environment Minister Peter Garrett may or may not do over the lungfish conditions.

“They are actually trying to turn that possibility into a probability,” Mr Fleming said.

The Federal Court travels to Bundaberg tomorrow to view the way the lungfish fish ladder operates at Paradise Dam.

Justice Logan said a decision on any adjournment would not be made until court in Brisbane on Wednesday.
 

Dam case exposes flaws in Traveston

September 9 2009

Bill Hoffman

The arrogance that has come to represent government in Queensland has been on full show as the Labor regime tries to avoid a court examination of the failings of its Paradise Dam.

In 2006 then premier, Peter Beattie, stood in state parliament to sing the praises of the proposed Traveston Crossing Dam. He claimed in part that Traveston would use a fishway, similar to one he claimed had worked successfully in the Paradise Dam, to allow lungfish to pass up and downstream.

A Freedom of Information request from Wide Bay Burnett Conservation Council coordinator Roger Currie for the evidence that informed that statement was refused on the grounds that no such document existed.

Currie’s organisation subsequently asked federal environment minister Peter Garrett to enforce the condition placed on Paradise Dam that it include a fishway that allowed the lungfish passage.

Garrett’s department is now considering a range of options that include both criminal prosecution and a variance of the original condition. The conservation group separately launched its own action in the federal courts to have the condition upheld.

Justice John Logan set World Endangered Species Day, last Monday, as the start of the matter, which was expected to run for two weeks.

SunWater – the government corporation of which Premier Anna Bligh and Treasurer Andrew Fraser are sole shareholders – engaged Queensland’s top barrister, the Solicitor General, Walter Sofronoff, to run its case but environmentalists were confident last week that they had the evidence to prove their point.

However, SunWater on the opening day of the matter successfully sought an adjournment until November, by which time Mr Garrett will have ruled on whether to relax the condition and provide a 10-year window to monitor lungfish in the Burnett River and prove that its fishway system works.

SunWater has effectively sought to vary, after the dam has been built, a condition of its construction.

The federal environment minister should take care in how he resolves the matter. There was never any suggestion in the granting of the original approval that the Queensland government corporation could install a device that might work.

It was the expectation of the approval that the fishway did work and the corporation in fact gave assurances before the approval that it would.

Lawyers for the conservation council agreed to the adjournment after demanding and being offered equal time with the federal minister, during which they say they will present evidence that the fishway has never and will never work.

The matter has serious implications for the future of the government’s controversial Traveston Crossing Dam, which is still to go before Mr Garrett for consideration under the Environmental Protection and Biodiversity Conservation Act.

Because surely even if SunWater is granted relief and given 10 years to prove its Paradise Dam fishway works, the obligations of Mr Garrett’s portfolio would see him in no position to approve a dam (Traveston) on the basis that a similar device might enable the vulnerable lungfish passage past the dam wall, in each direction, to continue breeding.

The Office of the Premier was asked in 2006 to provide evidence to support the statement made to Parliament by Mr Beattie that the fishway at Paradise Dam worked. An effective Opposition should have been long demanding that the evidence be tabled or the claim withdrawn.

That it has not in no way absolves present premier Anna Bligh for her government’s failure to correct the record.

The government should not be allowed to simply state what it wants to justify its actions, without the provision of evidence to support the claims.

If the fishway proposed for Traveston and installed at Paradise Dam actually worked, SunWater should be able to demonstrate that now, and certainly should have been able to give the federal court clear evidence of that this week. That it has sought instead to avoid or postpone that reckoning speaks volumes.

Fishway failings allegedly hidden deliberately

Bill Hoffman
19th September 2009

EVIDENCE to be presented in a federal court case over the Paradise Dam fishway alleges a state government corporation deliberately hid knowledge of its failings.

Court documents show that to avoid the federal environment department becoming aware that the upstream fishway had barely operated, around February, 2008, a SunWater employee or agent told the Department of Primary Industry and Fisheries to alter an interim report.

 It will be alleged that alterations included the deleting of a statement that said the downstream fishway “has operated for 5% of the total time” and a statement that the “downtime of the fishway operation is a major concern’’.

SunWater has been negotiating with the federal department of environment, water and the arts to create a new set of conditions which may allow it to avoid the civil suit brought by Wide Bay Burnett Conservation Council, as well as potential criminal prosecution.

However, it would still have to deliver a functioning fishway device that lungfish would use.
Its own experts have assessed ways to retro‑fit solutions to make the device work, solutions which would add up to $12 million to the $24 million already spent.

Only three tagged lungfish are known to have used the existing device in the past three years.
It is not a surprising number, given that the downstream fishway did not operate until this year, and the upstream operated only 5% of the time on average until April, 2008, according to SunWater’s own records as referred to in the report by Jim Tait tabled in court.

The downstream device requires the vulnerable species to find and enter a 450mm entrance in a dam wall 600 metres wide.

Twenty law student volunteers working under supervision uncovered a range of correspondence from 244 boxes of correspondence provided by SunWater as part of the federal court case.

Lawyers for the conservation council will allege that at the time the federal environment department was conducting an approval conditions compliance audit of the dam between June 25 and 28, 2007, agents for SunWater knew, but failed to inform it, that the upstream fishway had rarely operated in the previous 10 months.

It will also be alleged that SunWater failed to tell the federal department that the upstream fishway had been plagued with mechanical failures and knew, but failed to tell the auditors, that there had been an almost total lack of operation of the fishway to that point.

The conservation council will further allege that SunWater falsely represented that continuous operation of the fishway had been achieved at some time after the dam was built.

The government has continued to promote the device as “cutting edge technology” and suitable for inclusion in the proposed Traveston dam.

 In its environmental impact statement prior to winning heavily conditioned approval to build the dam, SunWater made it clear it understood the dam represented considerable risk to the vulnerable species.

 It acknowledged the importance of an effective fishway to allow lungfish migration through the river system to breed and to avoid lungfish attempting to go over the dam wall during flooding.

 It is understood SunWater will build its defence of the matter around the fact that the range of water levels at which the fishway can operate were known at the time it was approved.

 It will contend that the design of the device was achieved after broad consultation.

 SunWater also will argue that the design parameters were based on hydrological monitoring which showed the dam would be above the 62 metre level needed for it to operate 80% of the time.

 As a consequence it had determined that the fishway would operate 80% of the time and 93% of the peak migration time for the lungfish.

 However, the actual low levels of the dam meant that while the downstream fishway was available for use it did not transfer fish.

 It will further contend that the upstream fishway was operated during commissioning but that its ongoing operation had been affected by mechanical, hydraulic or electrical failure and work, maintenance and repairs to the dam and the device.

 Low water levels in the area where the hopper of the upstream fishway entered the water meant it could not be operated because of the risk of damage from submerged rocks, horizontal movement from strong winds and a rock face which created a risk of rocks falling into the hopper.

 It has admitted to the court that the downstream fishway did not transfer fish from the time the dam began operating in December, 2005, until January 25, 2009, because water levels were too low.

A draft Recovery Plan for the Australian Lungfish has found that dams and their spillways were the two greatest threats to the vulnerable species’ survival.

The conservation council is seeking an order from the federal court that a device be installed to ensure the movement of lungfish would not be hindered or reduced and lungfish would not be injured or killed at the dam spillway.

$8m lungfish: Damning stats prove fishway’s failure

TONY MOORE
September 16, 2009


Queensland taxpayers have spent $24 million on a “fish ladder” that has shifted only three lungfish in three years.

The Australian lungfish is one of the three endangered species that are threatened by the Traveston Crossing Dam, along with the Mary River cod and turtle.

The fish lift, also known as a fish ladder, is an electronic device which lungfish must find and swim into before being lifted over the dam wall in order to move upstream. A downstream component also forms part of the fishway.

The State Government-owned company building the Traveston Dam, Queensland Water Infrastructure, initially modelled their protection of lungfish in the Mary River on a fishway system being used at Paradise Dam near Bundaberg on the Burnett River.

The evidence in the Paradise Dam case - tabled at a Federal Court preliminary hearing on July 31 - shows three tagged lungfish have been shifted by the $24 million fishway at the dam from March 2006 until March 2009.

While the fishway does allow other fish to move throughout the dam, it has not worked for lungfish, the evidence suggests.

The Wide Bay Burnett Conservation Council is challenging Burnett Water, operators of the Paradise Dam, in the Federal Court over the efficiency of the fishladder.

Burnett Water has argued in the past that drought affected the operation of the fishway, which only operates when the level of water in the dam reaches a minimum of 62.5 metres.

Australia’s acknowledged expert on lungfish breeding, Professor Jean Joss from Macquarie University, confirmed the $24m cost of the Paradise Dam fishway yesterday.

Professor Joss said Queensland Water Infrastructure CEO Graham Newton and Premier Anna Bligh visited her lungfish breeding centre in Sydney last year where she advised them against a fishladder for Traveston.

Conservationists are concerned lungfish will not use fish ladders to go downstream, citing examples in June at North Pine Dam where 43 lungfish died after swimming over the dam spillway.

Jim Tait, an aquatic ecologist and fish biologist who examined the Department of Fisheries and Primary Industries data for Paradise Dam, concluded the fishway was ineffective for lungfish.

“From the Department of Primary Industries and Fisheries monitoring data that has been made available, ie compiled from the inception of monitoring activities following the commissioning of the fishway in March 2006 to March 2009, it would appear that a total of three lungfish have been recorded to have entered the upstream fishway hopper,” Mr Tait’s report says.

The evidence also shows: “That no adult lungfish have been reported by the Department of Primary Industries and Fisheries to have successfully used the upstream fishway.

“It would appear that most, if not all, the fish are juveniles.”

The Federal Court proceedings, adjourned last week, are scheduled to reconvene on November 9.

A spokesman for the Department of Primary Industries and Fisheries said they had only been contracted to count the lungfish and declined to comment on the statistics.

Burnett Water’s parent company SunWater said they were limited in their comment because the issue was before the Federal Court.

“However, what we can say is that SunWater is committed to building and operating its dams in an environmentally sustainable manner,” a spokesman said.

It is still unclear how the Queensland Government plans to care for lungfish at the controversial $1.5 billion Traveston Crossing Dam near Gympie.

Infrastructure Minister Stirling Hinchliffe has acknowledged the Burnett Water fishway is “old technology”.

No plan has yet been finalised for the lungfish at the broader and more shallow Traveston Crossing Dam. No plan is included in the information sent from Queensland Co-ordinator General Colin Jensen to Federal Environment Minister Peter Garrett on Friday.

A statement from Mr Hinchliffe yesterday does not explain fishway plans for Traveston Crossing Dam.

“The Coordinator-General’s conditions will be finalised when the report is finalised,” the statement said.

“These conditions are more likely to contain an outcome and performance criteria than a design.

“The design and specification for movement of native aquatic species (lungfish, cod and turtles) will need to be subsequently informed by trial, finalised by QWI and approved by the Coordinator-General before construction.”

A request to speak with someone from Queensland Water Infrastructure was declined.

A $35 million freshwater species conservation centre is proposed as part of a dam at Traveston Crossing.

This will have some research and breeding ponds.