A spokesperson from Crown Lands says Port Macquarie-Hastings Council opened Lake Cathie in 2018 without approval from the department.
Port Macquarie-Hastings Council artificially opened Lake Cathie to the ocean on July 11, 2018 after the lake's water level rose beyond the 1.6 metre opening trigger point.
The legislative framework around the lake system is extremely complex, with a number of state and local government departments responsible for different parts of the estuarine system.
It remains unclear just what the ramifications are for council.
The spokesperson from Crown Lands said Port Macquarie-Hastings Council applied to the Department of Planning, Industry and Environment-Crown Lands for a short term licence to dredge the entrance of Lake Cathie.
"The council was advised that for the application to be considered by the department, it needs to complete an environmental impact assessment," he said.
"That environmental impact assessment is yet to be submitted by council."
At the December council meeting, it was revealed council's most current environmental data for the lake is more than two decades old.
It came after the November council meeting, where council voted in favour of obtaining a one-off licence from Crown Lands to open the lake.
However, before that licence is granted, council must conduct a review of environmental factors (REF). The last time this was done for the waterway at Lake Cathie was 1995.
Council director Melissa Watkins said the opening of Lake Cathie is undertaken in accordance with Clause 129, Division 25 of the State Environmental Planning Policy (Infrastructure) 2007 (ISEPP).
"(An opening) does not require development consent where the opening is for the purpose of flooding and other infrastructure protection purposes.
"In addition, approval is not required in an emergency, such as flooding, storms or erosion events, as council is authorised under Section 195 of the Local Government Act 1993, to enter and carry out works without the prior notification or consent of the land owner."
However, the Crown Lands spokesperson said the department advises councils with flood prone land to complete an environmental impact assessment and obtain a licence approval in advance, so they are prepared if urgent flood mitigation in an area is likely to be needed.
Ms Watkins said on each occasion, including 2018, all of the relevant government stakeholders have been involved in the lake opening process, prior to commencement through their membership on the PMHC Coast, Estuary and Floodplain Sub-Committee.
Ms Watkins said the 1995 REF has been sufficient to allow council to open the lake numerous times, as the majority of openings were for the purpose of alleviating flooding events.
"A Review of Environment Factors (REF) is required for activities being conducted that do not require development consent," she said.
According to Ms Watkins, the current drought conditions have caused additional ecological issues including significant acid sulphate concerns in the Lake Innes/Lake Cathie estuarine system.
"Due to this change in ecological condition and the legislative framework, council is now required to update the REF, prior to a short term licence being issued and any works commencing," she said.
The spokesperson from Crown Lands said an up to date environment study is required for all artificial openings.
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