DIVERTING FLOWS; THE NEW DIRECTION FOR MANAGING WATER1
Themes: Sustainable Infrastructure:
The changing approaches to water allocation in New Zealand;
Friction between the new approach and the RMA‟s approach to granting resource consents;
Implications and constraints on urban growth management.
Introduction
Papers on water allocation tend to commence with a trite statement of how important and precious water
is, warning of the difficulties we will encounter as water becomes „fully allocated‟.
With respect, water is not intrinsically more precious than other natural resources such as air, energy or
land. Rather, it is the first of those resources which we have demonstrably begun to fully consume.
It is the tendency for catchments to become fully allocated, or over allocated, that drives attention to how
important allocation methodology is and makes allocation decisions hard. Interestingly, allocation
decisions are not generally considered „hard‟ until a catchment is fully allocated and it is at this point
which local authorities, industry and the public realise that a better way of allocating water is needed. It
is also at this point that changing the way in which water is allocated becomes almost impossible.
The reason why change becomes almost impossible at this point is not the difficulty in deciding whether
certain uses can/should be preferred (and which ones), rather it is equity. At the point of full allocation
every drop of water is associated with a user (e.g. environmental, municipal or agricultural) and in order
to achieve change, water has to be taken from one user and either given to another user. The need for
decision makers to have particular regard to the efficient use and development of natural and physical
resources (s6 RMA) serves to exacerbate the difficulties for decision makers to enable change.
As can be seen from the figure in the PowerPoint slide, in almost 18 months, much of New Zealand‟s
water resources will be close to or fully allocated. The situation would look even more extreme if an
overlay of non-productive land (e.g. due to topography) was added.
As a result either environmental values have to be compromised, or the economic values of the assets
built around water usage are compromised. The losers are able to very accurately quantify their potential
losses and (quite legitimately) demonstrate a very personal impact from the potential change. It is easy
to talk about having to make trade-offs in the abstract, but much harder to do in practice.
Meanwhile our inability to provide or incentivise an organised and fair transition path from one allocation
regime to another prevents real change. In my view any central and local government initiatives need to
be assessed against these challenges.
We will now look at the governmental initiatives to improve water management, current and proposed
regional approaches and the difficulties faced in changing from the RMA status quo to a potentially new
regime.
1
Andrew Braggins Senior Associate, Buddle Findlay, Auckland, NEW ZEALAND
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National Government Initiatives – National Infrastructure advisory board, new start
New Start for Fresh Water
In June 2009 Cabinet adopted the New Start for Fresh Water, commencing a new “collaborative”
approach to improve water management. This initiative supplements previous initiatives such as the
Sustainable Water Programme of Action, the Sustainable Land Use Forum and the Turnbull Group.
The New Start arose because of the Government‟s concern that the Sustainable Water Program of Action
launched under the Labour Government had not met many of its milestones and was perceived as
ineffective in tackling the big issues.
The new priority is to establish a fairer and more efficient water management system. Improved
freshwater management is also one of the elements of Phase Two of the government‟s resource
management reforms. It plans to achieve this by:
1.
Developing a stakeholder consensus for potential options to achieve outcomes and goals for New
Zealand‟s water management, the Land and Water Forum;
2.
Continuing joint work between Ministers and iwi leaders on the position and interests of Māori with
regard to fresh water; and
3.
Scoping policy options in the following main elements of the new direction:
stronger central government leadership and better national-level direction;
identifying the contribution of water infrastructure to improved water use;
the gaps which are holding back the necessary management changes;
water resource limits to shape actions on quantity and quality;
an allocation regime that provides for ecological and public values, and maximises the return
from the remaining water available for consumptive use;
supplementary measures to address the impacts of intensified land use, and manage urban
and rural demand.
The stakeholder consensus is to be achieved through the Land and Water Forum. Its mandate is to:
conduct a stakeholder-led collaborative governance process to recommend reform of New
Zealand‟s fresh water management;
using a consensus process, identify shared outcomes and goals for fresh water;
in relation to the outcomes and goals, identify options to achieve them;
produce a written report which recommends shared outcomes, goals and long-term
strategies for freshwater in New Zealand.
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The Land and Water Forum
The LWF is a body of over 50 organisations that are recognised stakeholders in issues relating to land
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and water and the way they interact. As the LWF Chair stated:
“It is an example of “collective governance” – addressing complex and intractable issues by
bringing together the principal stakeholders, including from the private sector and civil society, to
seek agreement/consensus on a way forward…
The Forum consists of a Plenary – everybody – and a so called Small Group which does the heavy
lifting. The Small Group‟s membership is a distillation, if you like, of the Plenary‟s, and it‟s a who‟s
who of main players in water in New Zealand.”
Report of the Board of Inquiry
The Board of Inquiry into the Proposed National Policy Statement for Freshwater Management released
its report in January this year. In terms of water allocation, the Report makes some interesting comments
in relation to competing applications and the priority to be afforded to domestic and municipal supplies. It
states:
[166] … even though some may doubt whether the „first-in, first-served‟ approach serves the
promotion of the sustainable management purpose of the Act, that approach has authoritatively
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been declared to be the law.
[167] Where a resource has been fully allocated, applying the principle of non-derogation of grants
can also limit further grants that may be justifiable for promoting sustainable management, but that
principle has also been authoritatively declared to be the law.
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[168] The Board‟s duties are to make recommendations about the content of the NPS stating
objectives and policies, and methods for including them in planning instruments. Its duties do not
extend to making recommendations about changes to the law; and a national policy statement itself
could not be effective to alter the law. Therefore, the Board does not accept submissions that,
directly or indirectly, seek alteration of the „first-in, first-served‟ approach to allocation of fresh
water, nor of the application to water allocation of the principle of non-derogation of grants.
…
[172] The Board considers that the NPS should contain a policy of regional councils setting
priorities for allocations of fresh water to intrinsic values and to types of activity for achieving
sustainable management and the objectives of the NPS, according to the particular conditions in
their regions and catchments. The Board considers it inappropriate for the NPS to direct specific
priorities or amounts for allocation to types of activity, beyond the policy of giving primacy to the
needs of intrinsic values over the needs of types of activity. The policy should also include the
regional councils‟ duties to have regard to the potential for climate change.
2
Alastair Bisley, Chair Land and Water Forum, Bluegreens Conference, October 2009
Fleetwing Farms v Marlborough District Council [1997] 3 NZLR 257, 264 (CA) and Central Plains Water Trust v Synlait [2009]
NZCA 609 (CA).
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Aoraki Water Trust v Meridian Energy [2005] 2 NZLR 268; [2005] NZRMA 251; 11 ELRNZ 207 (FC).
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[173] The Board sees no national justification for giving priority to domestic and municipal supply,
bearing in mind the regional differences in water availability, and the complexity of existing
consents for the allocation of water to domestic and municipal supplies in cities and towns.
[180] … Rather, the Board considers that all consent holders should bear their share of restrictions
on a pro rata basis.
Friction between the new approach and the RMA’s approach to granting resource consents
Current / proposed approaches to water allocation in areas of significant conflict
Canterbury
Water in the region is governed by the Natural Resources Regional Plan (“NRRP”). Under the NRRP
water in Canterbury is intended to be controlled through catchment specific allocation regimes, which are
in turn split into A, B and “other” blocks. Each block will have an annual volume limit. A Blocks are
intended to have a reasonable reliability of supply and will have priority over B Blocks supply (so B Blocks
have less certainty of supply).
However, there is no priority within a block and authorisations will be awarded on a first in first served
basis with the exceptions being that priority will be given to essential community, domestic and stock
water supplies, which largely echoes the existing statutory rights to take water which are contained in s14
of the RMA.
Marlborough
Marlborough‟s current system for water allocation is based on a first in first served basis under a three
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tiered permit system with maximum allocations for each class of permit. Sustainable Flow Regimes set
the limit on the maximum allocation of water available in a catchment and thus determines when a
catchment is fully allocated. There is also a minimum flow measure for some surface water resources
where the demand for water is near or equal to the available supply.
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The water permit classes are Class A, Class B and Class C. Class A provides a high degree of certainty
for the take as it will only be rationed when the flow drops to below the one in five year weekly low
measure (which is on average only for only one week every five years).
Class B takes are provided with
a moderate degree of certainty, allowing for “partial takes at flows above a one in five year weekly flow
and full takes above the 80 percentile flow and above.” Class C water permits are much less certain and
are only available at above the base flow that is exceeded 80% of the time but there is no upper limit or
maximum on Class C permits, also colloquially known as winter flow. Class C takes can only be drawn to
supply a storage reservoir, or recharge groundwater or to generate electricity.
Waikato
In response to criticisms of the proposed plan‟s water provisions, Variation 6 was notified in late 2006. It
has now progressed to the Environment Court appeal stage.
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6
Section 6.3.1 Policy 1.2 and Section 6.4.1 Policy 1.1 of the WARMP.
Rule 27.1.1.2 of the WARMP.
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Variation 6 seeks to create a policy based prioritisation system to replace the classical first in first served
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approach to water allocation. The policy framework creates a hierarchy of uses starting with domestic
and municipal water supply (including industrial and commercial uses) and also animal‟s drinking water
needs. Next in line is existing authorised uses (except for takes that are now classified as non-complying
activities) then existing authorised uses that are now non-complying, and finally, any new applications for
abstractions on a first in first served basis.
In order to manage this hierarchy, the policy framework introduces a common expiry date for all the
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authorised water takes to enable a contemporaneous assessment across the board of all the
applications for water takes at the same level in the hierarchy, within the same catchment. Authorisation
holders must lodge a re-application 12 months prior to the common expiry date in order to be assessed in
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the common forum.
When assessing the applications for a class of authorisations, several criteria will be considered,
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including:
The need for the rate and volume as applied for is demonstrated;
That surface water is still available fro municipal and domestic water supply, animals drinking
water and fire fighting purposes;
Any potential for a loss of the benefits of electricity generation; and
Various other considerations relating to contaminants, biodiversity, Tangata Whenua issues and
values, seasonal and rotational requirements, habitats, flow levels, mitigation, infrastructure and so
on.
Current / proposed approaches to water allocation in areas of significant conflict
EW‟s Variation 6 to some extent foreshadows the suggested allocation principles in the Board of Inquiry‟s
Report, through the prioritised hierarchical list of activities set out in its proposed Variation 6 policies.
These proposed policies are to be assessed on a class basis after the communal expiry period.
The proposed EW system has not been tested and as mentioned above it is still processing through the
appeal stage, however, it seems likely than an argument may arise in terms of how it fits against the
Court of Appeal‟s finding in the Central Plains case.
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In that case the importance of having procedural
efficiency rather than “permitting it to be swamped by aspiring to substantive perfection” when processing
resource consents was emphasised.
The first view, in line with the Fleetwing principle, is that the policies cannot be changed in the manner
proposed by EW, or at least they ought not to, because it will interfere with the efficient processing of
resource consents creating a processing burden for the local authority. Significantly, this seems to have
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been the view of the Board of Inquiry .
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8
9
10
11
12
Policy 6 of the WRP.
Policy 11 of the WRP.
Policy 6 of the WRP.
Policy 8 of the WRP.
Central Plains Water Trust v Synlait Limited [2009] NZCA 609
Paragraphs 166-168 of the Board of Inquiry’s Report on the Proposed National Policy Statement for Freshwater Management
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In contrast there are those who argue that it is much better, and in fact prudent, to make informed, good
decisions of where / what the water is going to and the implications of that decision. There will be much
debate as to whether this second idealist view can be practically achieved through the proposed EW
policies, and if not through such policies, then is there a way it be achieved at all.
The Land and Water Forum are due to report back in the middle of this year. It will be interesting to see
whether they endorse either of these approaches and whether they see a need for further legislative
change.
Implications and constraints on urban growth
Water takes for domestic purposes have been provided with a statutory right (s14 RMA). However the
same rights do not apply to other municipal uses; gardens, businesses and manufacturing. Absent a
prioritisation arrangement, such as EW has attempted, applications for increased municipal takes will
come under significant pressure.
Even then, EW has required municipal takes to have an approved water management plan, requiring a
more sophisticated approach to water management than many local authorities presently utilise. For
example the water management plans have to address aspects such as:
A description of the water supply system including water use measurement
An assessment of existing demand and future commercial, rural supply and industrial needs.
Water pricing procedures and any linkages with wastewater pricing or management.
Planning and management of the water reticulation networks to minimise their water losses
A description of patterns of water use practices with the objective of maximising water use
efficiency and reducing water use, as far as practicable.
Water saving targets
Key performance indicators for each of the water saving targets.
A drought management plan
As a result, local authorities in this situation will encounter greater pressure to improve the efficiency of
their water networks, metering and charging for water, incorporating water saving devices into greenfield
growth areas and improving their responsiveness to water shortages.
We have already seen Australia launching into publicly acknowledged wastewater recycling schemes,
which raise a multitude of social and cultural concerns. In reality the existence of two or more townships
on the same river means that this is already occurring, albeit on a less publicly acknowledged scale.
Additionally, local authorities will need to carefully think about their plans to develop their commercial and
industrial areas. While these activities form the employment base for cities, towns and townships, they do
not presently have the statutory emphasis accorded to domestic dinking water. In catchments which are
fully allocated, how will local authorities provide for the growth of their towns and townships? Purchasing
water permits from other users, compromising environmental values?
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