Two water-first decisions, 1000km apart, suggest the country is turning a conservation corner. David Williams reports
Analysis: In 2020, when the updated national policy statement on freshwater stated decision-makers had to put the health of water above all else – above the needs of people, above the aspirations of businesses – many probably feared it would be a tick-box exercise.
However, a decision by consent hearing commissioners in the Hawkes Bay last month has put this national direction, Te Mana o Te Wai, at the centre of its decision to decline eight applications, considered together, to take 15 million cubic metres of groundwater per year from the Ruataniwha aquifer.
“Te Mana o Te Wai is at the forefront of every water-related process that I am aware of,” says Sally Gepp, an environmental lawyer. “It definitely has had an effect.”
Gepp represented conservation lobby group Forest & Bird and statutory body Fish & Game Council’s Southland branch at the Environment Court in another water-first decision.
It was an appeal of Southland’s proposed water and land plan, which sets direction and guidance for activities that have a significant effect on water quality.
The court’s fifth interim decision, which dropped just before Christmas, made several important findings, despite pushback from farming groups.
“The case recognises the prioritisation of freshwater health, and affirms that as the number one priority,” Environmental Law Initiative researcher Anna Sintenie says.
“In a broader context, it shows that where freshwater’s polluted, to the extent that environmental bottom lines are being breached, the activities contributing to that are going to be constrained.”
Tom Kay, a freshwater advocate for conservation lobby group Forest & Bird, who gave evidence at the Hawkes Bay hearing, says: “It has taken us decades but we finally seem to be at a point where our policy has caught up to the idea that the environment has limits – we can’t continue to take from it indefinitely.”
The Southland decision has been appealed to the High Court by the regional council, Federated Farmers Southland, Fonterra and DairyNZ.
The regional council’s general manager of policy and government reform, Lucy Hicks, says the decision could have significant implications for consenting in Southland and across the country.
There is also the possibility of the Hawkes Bay hearing panel decision going another round.
While it hasn’t been appealed yet, Hawke’s Bay Regional Council’s Jenny Keown says: “The applicant group has applied to the Environment Court and got the period for lodging an appeal extended from 15 working days to 45 working days from the decision date.”
Primary driver of decision
The Hawkes Bay water battle arose from plan change 6 to the region’s resource management plan, operative since 2006.
The plan change separated groundwater in the Ruataniwha aquifer into two tranches, the first of which reflected existing allocation, was limited takes to 28.5 million cubic metres a year.
The unallocated second tranche had to be taken from wells at a depth of at least 50 metres, and only if river or streams were augmented, somehow, when flows were too low.
Eight applications for so-called ‘Tranche 2’ water had been made, separately, since 2014, and were rolled together.
The Hawkes Bay decision, issued by a panel chaired by Dr Brent Cowie, said the national policy statement directed the panel to prioritise the “health and wellbeing” of freshwater. So that’s what it did.
The plain meaning of the words in the statement (NPSFM) “indicate the intention was to protect freshwater environmental values ahead of the use and development of water resources”.
“Those words are the primary driver for our decision to decline the applications,” the 45-page document said.
“If our decision is indicative of the outcomes the Government seeks from the current NPSFM, so be it. If they are not, it needs to amended with some urgency.”