Skip to main content.

7 Section 207 of the Act

  1. We have previously reviewed the context of Section 207. It states that in terms of matters we must consider we must have particular regard to the purpose of a water conservation order and the (other) matters set out under s199, and that we also must have regard to:

(a) The application and all submissions; and

(b) The needs of primary and secondary industry, and of the community; and

(c) The relevant provisions of every national policy statement, New Zealand coastal policy statement, regional policy statement, regional plan, district plan and any proposed plan.

7.1 The Application and Submissions

  1. We have already discussed the application, both in its original form and as amended. We have summarised the evidence presented to us by submitters at the two hearings, and in Section 3.4 above we have discussed the other submissions.

7.2 The Needs of Primary and Secondary Industry and the Community

  1. We considered a number of needs in this part of our evaluation. These included community water supplies, gravel extraction, river protection and erosion control, existing and future use of the Oreti River water resource for irrigation and possible power development. We have discussed the latter above when reviewing the provisions of Part 2 of the Act.
  2. As we have already said in this regard, we agreed with Ms Baker that what we must weigh are “needs, and not merely hopes or aspirations for the future, or principled opposition to a statutory instrument that will not in reality affect the reasonable needs of primary or secondary industry or of the community.”
  3. In its lower reaches, the Oreti River provides water for community supply in Invercargill; communities such as Lumsden and Winton rely on groundwater, which has some hydraulic linkage to the river, for their domestic supplies. None of these community water supplies will be affected in any way by the order we have drafted.
  4. Significant amounts of gravel are taken from the river, consistent with river management purposes. We heard favourable comment about a recent agreement between the operations arm of Environment Southland and gravel extractors. The operations of those extractors will not be affected by the draft order as the conditions that they work under now mean the effects of taking gravel upon water resources are minimised.
  5. Downstream of about Lumsden stopbanks on both sides of the river protect communities and highly productive farmland from flooding. More minor works are undertaken upstream to prevent the river eroding, and to protect community assets such as bridges. The future maintenance or enhancement of any of these works upstream of Rocky Point has the potential to be affected by the order we have drafted, so we have made specific provision for such works as necessary upstream of Rocky Point.
  6. In relation to primary industry, we heard from several landowners alongside the river, from Federated Farmers, and from a group of water users who have resource consents to take groundwater. Only one of that latter users group takes groundwater that is hydraulically linked to the river, and that take is downstream of Mossburn. Concerns were raised by this group about any provision to provide for fish passage through the river. We think, however, that this is an essential part of the order and will be protected in any case by the Mean Annual Low Flow (MALF) “default” flow regime in the Water Plan. We certainly do not think this provision will affect the possibility of the one user who takes hydraulically connected groundwater from the river, of having their consent “renewed”.
  7. No party convincingly foreshadowed to us any significant development opportunities for the water resources of the Oreti River. Demand for irrigation water is not high in Southland, and nor does it appear likely to increase significantly in the Oreti catchment in at least the foreseeable future. Put simply, no such “need” was demonstrated to us by any party.
  8. Regardless, the minimum flow provisions provided for in the Mataura Water Conservation Order have caused administrative difficulties for the regional council which have had to be resolved in the Environment Court. The wording of that order has also caused associated practical difficulties for landowners seeking consents for irrigation to support development in the middle and upper reaches of that catchment. As already noted, however, we have not recommended that any minimum flow regime be set for the river, and so these practical difficulties will not occur, at least in the context of the water conservation order, on the Oreti River. Rather, the applicant is satisfied by relying on the minimum flow provisions in the Water Plan, which we discuss in more detail in the next section.
  9. Similarly no significant concerns were raised about protecting existing water quality. There are no point-source discharges in the catchment above Rocky Point at this time, nor were any foreshadowed to us. Regardless, the order we have recommended allows point source discharges to the river provided they do not have adverse effects after reasonable mixing.
  10. The main concerns we heard revolved around providing for existing opportunities, and allowing activities such as soil conservation, occasional river control works and the maintenance of bridges to be able to continue. These are all provided for in the draft order, as are the needs of stock and domestic supplies.
  11. We have concluded that there are no needs of primary or secondary industry or the community that weigh against the making of a water conservation order on the Oreti River.

7.3 Statutory Planning Matters

  1. There are no National Policy Statements that cover the management of the Oreti River, and the provisions of the New Zealand Coastal Policy Statement are not applicable.
  2. Ms Taylor, one of the witnesses for the applicant, outlined what she considered to be the relevant provisions of the Regional Policy Statement for Southland, which became operative in December 1997. None of the objectives or policies she listed weighs against the making of a water conservation order on the Oreti River. Rather it could be argued that some support, at least in general terms, the protection of the waters of the Oreti. An example is Policy 4.8, which is “to support water conservation orders where these will assist in achieving the objectives and policies of this regional policy statement.”
  3. The provisions of the Proposed Regional Fresh Water Plan, as amended by decisions on submissions, are open to several appeals including one from Fish and Game. We discuss this below.
  4. The parts of the Water Plan particularly relevant to this discussion are those in Variation 2 (groundwater), Variation 3 (water quantity) and Variation 4 (water quality).
  5. Takes of groundwater with a direct or high hydraulic connection with surface water resources are managed as part of a river’s flow. While the original application made by Fish and Game sought to restrict takes of hydraulically connected groundwater, the amended application presented to us in April did not do so. We understand that this is because the applicant was satisfied that those provisions in the amended plan adequately protected surface water resources from takes of hydraulically connected groundwater.
  6. The flow provisions provided in Variation 3 of the Water Plan set a default minimum flow of MALF. If takes in a catchment total more than 10% of MALF, the flow provisions require more detailed habitat analysis to support further applications to take water. As we think those provisions appropriately protect the flow regime of the Oreti River, we have decided that there is no need for a minimum flow in the order (noting that there are also strong process reasons not to make a minimum flow in the draft order).
  7. We also discuss the water quality provisions in the Plan below. Suffice to say here that we are satisfied that in the upper Oreti, to protect outstanding characteristics, no discharge should be allowed that reduces water quality beyond the zone of reasonable mixing.
  8. The Water Plan makes any damming of the main stem of the Oreti River a non-complying activity. However, the “policy hurdles” one would have to pass in order to be granted an application to dam the river are so high as to be, for all practical purposes, impassable. The draft order effectively prohibits such damming as we think this is necessary to protect the outstanding brown trout habitat and outstanding angling amenity provided by the river.
  9. In summary, there is nothing in the Proposed Regional Fresh Water Plan that weighs against the making of a water conservation order on the Oreti River.
  10. A strong concern expressed to us by submitters was that given the provisions of the Water Plan, and the protection that plan offers the Oreti River, making an order was unnecessary. We had considerable sympathy with this view.
  11. Environment Southland and many other submitters contrasted the strong and robust consultation process engaged in by the regional council in preparing the Water Plan and its variations with the very limited consultation undertaken by Fish and Game about the water conservation order application.
  12. A number of submitters who opposed the application, such as Federated Farmers and the Oreti River Liaison Group, expressed frustration or dismay that having worked so long on the Water Plan, they now find agreements reached during that process potentially subsumed by a possible water conservation order. This was particularly so in the present circumstances where the Water Plan process, and associated community engagement undertaken by Environment Southland was praised and there was strong support voiced for the outcomes reached.
  13. We certainly understand that frustration. However, the application made by Fish and Game for a water conservation order is entirely consistent with all the legal requirements set out in Part 9 of the Act. The applicant is not required to undertake extensive consultation.15
  14. Strong concerns were also expressed about the inflexibility of water conservation order procedures versus regional plans. This was highlighted by Judge Jackson of the Environment Court in the Rangitata case where he called water conservation orders “a crude and very expensive tool in an otherwise relatively sophisticated toolbox”. Again we have sympathy for the concerns expressed by submitters about the inflexibility of water conservation orders.
  15. We have thought carefully about these matters, and have come to two main conclusions:
    • Although the Water Plan does offer a significant level of protection for the water resources of the Oreti River, we must have particular regard to the purpose of water conservation orders and only regard to the provisions of the regional plan. In other words, a water conservation order is a superior legal instrument, and no matter how much a regional plan protects a water resource, if there is a case for an order to be made it takes precedence.
    • As water conservation orders are quite inflexible and difficult to change compared with a regional plan (which itself is very time-consuming to change) the order should be drafted in terms that allows some flexibility beyond what is essential to protect the outstanding values of the Oreti River. We consider the order we have recommended, which is very much along the lines “agreed” by Fish and Game and Environment Southland, retains that flexibility where appropriate.
  16. Accordingly the draft order only goes further than the regional plan in three ways. First, the draft order prohibits damming of the upper river. Second, it allows no exemptions to the provision that any discharge should not affect water quality after reasonable mixing. Third, the draft order requires fish passage be provided for throughout the river.
  17. We do not think that these provisions will make any effective difference to the current day-to-day management of the river, and probably little difference to its long-term management. But they will, when considered alongside the flow related provisions of the plan, sustain the outstanding characteristics of the river. And that is what the purpose of water conservation orders is.

15 We think that this is a failing in Part 9 that should be remedied. Applicants for water conservation orders should, in our view, have to undertake more extensive consultation and assess alternatives. Arguably an inquiry such as ours fills that gap, but it does so in a more adversarial “winners and losers” context. In this regard also, the regional planning and water conservation order processes are out of step.

[ |