BEFORE THE ENVIRONMENT COURT
Decision No. [2011] NZEnvC 380
IN THE MATTER of appeals under Clause 14(1) of Schedule One of the Resource Management Act 1991 (the Act)
BETWEEN CARTER HOLT HARVEY LIMITED (ENV-2009-AKL-000132)
WAIHOU IRRIGATORS INCORPORATED & UPPER WAIKATO IRRIGATORS SOCIETY INCORPORATED (ENV-2009-AKL-000133)
HAMILTON CITY COUNCIL (ENV-2009-AKL-000134)
WAIPA DISTRICT COUNCIL (ENV-2009-AKL-000136)
WAIKATO DISTRICT COUNCIL (ENV-2009-AKL-000137)
WATERCARE SERVICES LIMITED (ENV-2009-AKL-000138)
HORTICULTURE NEW ZEALAND (ENV-2009-AKL-000139)
RAUKAWA CHARITABLE TRUST (ENV-2009-AKL-000149)
TE RUNANGA 0 NGATI TAHU (NGATI WHAOA) (ENV-2009-AKL-000 ISO)
WAIKATO-TAINUI TE KAUHANGANUI INCORPORATED (Successor to Waikato Raupatu Trustees Company Limited) (ENV-2009-AKL-000151)
TUWHARETOA MAORI TRUST BOARD (ENV-2009-AKL-000153)
DEPARTMENT OF CORRECTIONS (ENV-2009-AKL-000055)
NEWMONT WAlHI GOLD LIMITED (ENV-2009-AKL-000092)
MIGHTY RIVER POWER LIMITED (ENV-2009-AKL-000I07) (ENV-2009-AKL-000I08) (ENV-2009-AKL-000I09) (ENV-2009-AKL-00011O) (ENV-2009-AKL-000III) (ENV-2009-AKL-000112) (ENV-2009-AKL-000 113) (ENV-2009-AKL-000114) (ENV-2009-AKL-000115) (ENV-2009-AKL-000116) (ENV-2009-AKL-000117) (ENV-2009-AKL-000118)
SOLID ENERGY NEW ZEALAND LIMITED (ENV-2009-AKL-000119)
HAURAKI DISTRICT COUNCIL (ENV-2009-AKL-000120)
WAIRAKEI PASTORAL LIMITED (ENV-2009-AKL-000123)
WAIRARAPA MOANA INCORPORATION WAIRARAPA MOANA FARMS (ENV-2009-AKL-000124)
TRUSTPOWER LIMITED (ENV-2009-AKL-000125)
GENESIS ENERGY LIMITED (ENV-2009-AKL-000126)
2 CONTACT ENERGY LIMITED (ENV-2009-AKL-000127)
FONTERRA CO-OPERATIVE GROUP LIMITED (ENV-2009-AKL-000I28)
FEDERATED FARMERS (ENV-2009-AKL-000I29)
MERIDIAN ENERGY LIMITED (ENV-2009-AKL-000I30)
KING COUNTRY ENERGY LIMITED (ENV-2009-AKL-000I3I)
Appellants
AND WAIKATO REGIONAL COUNCIL
Respondent
Topic: Variation No.6 to the Proposed Walkato RegionalPlan
Date of Decision: 30 November 2011
Hearing: InHamilton, 28 February - 4 March; 8 - 11 March; 21 - 25 March; 28 March - I April; 18 - 22 April; 1 - 6 May; 9 - 13 May; 16 - 20 May; 25 - 29 July; and 1- 4 August 2011.
Court: Environment Judge R G Whiting Environment Commissioner K Prime Environment Commissioner M Oliver Deputy Environment Commissioner 0 Borlase
Appearances: Mr J Milne and Ms N Rye for Waikato Regional Council Mr T Robinson and Ms R Dixon for Contact Energy Limited (Contact Energy)
3 Ms J Appleyard and Mr B Williams for Meridian Energy Limited (Meridian Energy) Mr P Green and Mr A Vane for Department ofCorrections Ms K Bellingham and Ms S Bradley for Director General of Conservation Mr S Berry and Ms J Vella for Waikato Region Municipal Users Group (Hamilton City Council, Waipa District Council, Waikato District Council, Watercare Services Limited, Taupo District Council) (Municipal Users Group) Mr P Lang for Matamata-Piako District Council Mr A Green for Hauraki District Council, and Solid Energy NZ Limited Ms H Andrews for Waikato-Tainui Te Kauhanganui Incorporated Ms J Forret and Ms A Twaddle for Raukawa Charitable Trust, and Ngati Tahu Ngai Whaoa Rununga Trust Ms L Burkardt for TrustPower Limited (TrustPower) Mr I Cowper and Ms J Munro for Mighty River Power Limited (Mighty River Power) Mr P Majurey and Mr T Hovell for Genesis Energy Limited (Genesis) Ms A Maddox and Ms C Faesenkloet for Newmont Waihi Gold Limited Ms G Chappell for Carter Holt Harvey Limited (Carter Holt Harvey) Mr A Hazelton for Horticulture New Zealand (Horticulture NZ) Mr A Braggins for Wairarapa Moana Incorporation (Wairarapa Moana) Mr J Hassan and Ms G Hamilton for the Agricultural Working Group (Fonterra Co-Operative Group Limited, Federated Farmers Limited, Waihou Irrigators Incorporated, Upper Waikato Irrigators Society Incorporated) (Agricultural Working Gronp) Mr T Daya-Winterbottom for Wairakei Pastoral Limited (Wairakei Pastoral)
4 DECISION OF THE ENVIRONMENT COURT
The decision of the Waikato Regional Council is amended by substituting the Decision version of Variation 6 with the 8 August 2011 Version as set out in Appendix 2 save for the following:
A. The primary allocable flow at Karaplro Dam is to be set at 5% of the Qs flow;
B. Policy 8(c) is to be amended by adding the following words "that exceed the primary allocation in Table 3-5 and" after the opening words "Restricting takes" and before the words "which reduce" so that it shall now read:
c) Restricting takes that exceed the primary allocation in Table 3-5 and which reduce the amount of water that would otherwise be available for renewable electricity generation or be used for cooling of the Huntly Power Station, including in particular any takes from the Waikato River catchment upstream of the HPS mixing zone that when assessed in combination with all other authorised water takes would exceed 100% ofthe primary allocable flows in Tabie 3-5.
C. Rule 3.3.4.14 is to be amended by deleting the word "Existing" in the title to the rule and replacing it with "Replacing Authorised" so that it shall now read:
Replacing Authorised ExisliRII Taking of Surface Water for Domestic or Municipal Water Supply.
D. The Regional Council is to make any consequential amendments arising out of A, B or C within two calendar months from the date of issue of this decision. If there are any difficulties in implementing this direction, leave is granted to the Regional Council to apply to the Court for directions.
5 TABLE OF CONTENTS
VOLUME I
1 INTRODUCTION 9 Variation 6 10 Chapter 3.3 Water Takes 11 Chapter 3.4 Efficient use ofwater 17 2 THE COUNCIL DECISION 18 3 STATUTORY BASIS FOR DECISION 19 4 THE RELEVANT STATUTORY PLANNING INSTRUMENTS 24 5 THE VISION AND STRATEGY FOR THE WAIKATO RIVER 34 6 ISSUES 39 6.1 ISSUE 1 Can Section 14(3)(b) Takes Be Constrained? 42 6.2 ISSUE 2 Protection ofwater for electricity generation and allocation preference 45 Introduction .45 Issue 2(i) The Degree ofProtection to be afforded Electricity Generation .45 Appellants' Relief... .46 The Problem - Lost Generation 48 Replacement ofLost Electricity Generation 51 The Importance ofElectricity 52 Mighty River Power's Resource Consents 55 The Importance ofAgriculture 56 Irrigation 58 The Economic Evidence 59 Evaluation ofCostlBenefit Analysis 65 Evaluation ofTssue 2(i) - Allocable Flow above Karapiro 67 Fixing the Allocable Flow above Karapiro 71 Issue 2(ii) Genesis -Increased priority for the Huntly Power Station 72 6.3 ISSUE 3 Policies 79 Issue 3(i) Adverse Effects vs Significant Adverse Effects - Policy l(d) 79 Issue 3(ii) Should the provisions relating to protection ofelectricity be more generic? Policy lA(e) and consequential provisions 80 Issue 3(lii) Should there be a new standalone policy espousing the importance ofrenewable energy generation? Proposed Policy 3A 80 Issue 3(iv) Municipal Supply Takes - Agricultural and Industrial Takes over 15m'/d - Policy 4 82 Issue 3(v) Volumetric Caps for Agricultural and Industrial Municipal Takes - Policy 4 and Rule 3.3.4.20 85 Issue 3(vi) Secondary Allocable Flow and Waikato River tributaries above Karapiro - Table 3-5 and Policy 4 87
6 Issue 3(vii) Priority for Drought Intolerant Crops in Time ofShortage - Policy 14 and Standard 3.3.4.21 88 Issue 3(viii) Consent Application Assessment Criteria - Surface Water and Groundwater Policies 8 and 9 91 Issue 3(ix) Restricting takes otherwise available to electricity generation - Policies 8(c) and 9(s) 92 Issue 3(x) Management of Groundwater - Policy 9(sa) 95 Issue 3(xi) Should there be policies directing decision-makers to generally not grant non- complying activity consents for the taking ofsurface water unless certain circumstances apply? Policies 9A and 9B 99 Issue 3(xii) Should Dairy Farms be Exempt from General Rules that Water Take Consents be for 15 years? Policy II(a)(v) 101 6.4 ISSUE 4 Rules and Standards 103 Issue 4(i) Wairakei Pastoral Limited - Specific Allocation Rules 103 Issue 4(ii) Winter Takes Above Karapiro - Restricted Discretionary Rule 3.3.4.15A 105 Issue 4(iii) Should Water Transfers be Made Less Restrictive? - Rule 3.4.4.3(i) 105 Issue 4(iv) Nutrient Management Plans - Rule 3.4.5.6 and Rule 3.4.5.7 106 Issue 4(v) Should Flows be Naturalised in the Waikato River below Lake Taupo? Standard 3.3.4.21 and Method 3.3.4.6C 108 Issue 4(vi) Should Table 3-5 have a Cross-Reference to Standard 3.3.4.21(1)? 113 Issue 4(vii) Should Water Shortage Restrictions Apply to Genesis? Standard 3.3.4.21 114 Issue 4(viii) Threshold Date 115 Issue 4(ix) Definitions 116 Issue 4(x) Mighty River Power - Addendum to Closing Submissions 118 6.5 ISSUE 5 Iwi Issues 121 Does Variation 6 give effect to the Vision and Strategy? 121 Should there be preferential access to water for "iwi development"? 124 Should rules providing for the transfer ofwater permits be included in Variation 6? 129 7 DETERMINATION 134 comment 135
7 Page No. VOLUME II 136
APPENDICES
Appendix 1 List of Witnesses 137 - 140
Appendix 2 Proposed Variation No.6 - Water Allocation Version 141 - 220 dated 8 August 2011
Appendix 3 Line Wiring Diagrams ofProposed Variation 6 reflecting 221 - 227 the 8 August 2011 Version
8 1 INTRODUCTION
[1] Variation 6 of the Proposed Waikato Regional Plan was promulgated by the Regional Council to address the adverse effects ofthe taking and use offreshwater, other than geothermal water, from ground and/or surface water resources within the Waikato region.
[2] Water is an essential resource. The life-supporting capacity of water is expressly recognised in Section 5(2)(b) of the Act which requires it to be safe-guarded. Water is essential for the welfare of people. Water is ofparticular cultural significance to Maori. Water is essential for plants, livestock and farming activities. Water is essential for industry. Water is essential for the generation of hydro-electric power and is also necessary for geothermal and other thermal power generation.
[3] Because of the demand for water for different uses within many parts of the Waikato region, the point has been reached where demand for water has the potential to exceed the sustainable supply. In some catchments the consents to take water already exceed the allocation limits. This has given rise to growing competition amongst present and prospective users of the region's freshwater resources. Variation 6 is the Council's attempt to meet this worsening situation.
[4] The Variation was publicly notified on 20 October 2006. An experienced hearing committee heard submissions over 21 hearing days and after deliberation produced a detailed decision in four volumes. The committee's recommendations were adopted unchanged by the full Council on the 30 October 2008.
[5] A total of 37 appeals were filed by 26 parties. At least 470 Section 274 notices were lodged. According to Mr Speirs, a Council officer, the appeals covered every aspect of Variation 6. The Council and the parties have undergone extensive negotiations in an endeavour to reach agreement or narrow the issues.
[6] When this hearing commenced, some 19 parties had issues that were still extant.
[7] The hearing of the appeals took place in Hamilton over 49 sitting days (including reading of evidence). After hearing opening submissions by Mr Milne for the Council
9 and opening statements from other parties, we retired to read the evidence. We then resumed the hearing for cross-examination and full opening submissions from other parties. Because of the length and complexity of the hearing, we allowed all parties to make closing submissions.
[8] We heard and read the evidence from a total of 68 witnesses, many ofwhom were cross-examined. The list ofwitnesses and their area of expertise is attached as Appendix 1. Because ofthe number of witnesses, it is just not possible to refer to all that was said by them. Similarly, it is not possible to refer to all that was said by counsel in their submissions. We have taken all of the evidence and submissions into account in coming to our decision.
Variation 6
[9] The purpose of Variation 6 is to set out how the Regional Council will manage water allocation within the Waikato region. It is in response to increasing pressure on the resource and the demand for water for different and sometimes competing uses.
[iO] Prior to, and following notification, there has been extensive consultation and discussions with interested parties, culminating in the Hearing before the Council's Hearing Committee. Since the adoption by Council of the Hearing Committee's recommendations, there have been further discussions. Thus the document has been through many iterative changes.
[11] At the commencement ofthe hearing, the proposal being advanced by the Council was contained in a version dated 14 February 2011. That version was changed quite considerably from the decisions version. These changes came about as a consequence of the meetings and discussions between the parties, including their experts. Since the hearing started, that document has been through at least 12 iterative changes in response to matters raised during the hearing; further discussions between the parties and their experts; and the promulgation of the National Policy Statements on Renewable Electricity' and Freshwater? The latest version advanced by the Council was lodged
I The NationalPolicy Statement for Renewable Electricity Generation 201J - issued by Notice in Gazette on4 April20t I
to with the Court following the completion ofthe Hearing. That version is dated 8 August 2011. It is that version that we will refer to in this decision. It is attached as Appendix 2.
[12] At first sight, the Variation appears to be a complex document, but overall, its intent and structure is relatively straightforward. lts complexity arises because water is essential to so many vested interest groups and agencies as evidenced by the 19 parties who appeared at the hearing. It is the interconnections across those interest groups that creates the complexity. To assist in its understanding, Mr Spiers prepared and produced" line-wiring diagrams. An updated version of the line-wiring diagrams which reflect the latest proposed Variation advanced by the Council is attached as Appendix 3.
[13] As Variation 6 is a variation of the Proposed Waikato Regional Plan, it needs to be read and considered within the context of that document. It introduces two new chapters. Chapter 3.3 which deals with water takes and manages the allocation regime, and Chapter 3.4 which deals with the efficient use ofwater.
Chapter 3.3 Water Takes
[14] Chapter 3.3 has a basic format. It contains an Issue, 1 Objective, 21 Policies, 10Non-Regulatory Methods, 19 Rules, and 1 Standard.
[15] Issue 3.3.1 addresses matters of relevance to water allocation and use. It addresses the potential adverse effects ofthe allocation and taking of water including in relation to:
[a] The ability ofrivers and streams to assimilate contaminants;
[b] The restoration and protection ofthe health and well-being ofthe Waikato River which is required by the Vision and Strategy for the Waikato River;
[c] The inefficient allocation and use ofwater;
2 The National Policy Statement for Freshwater Management - issued by Notice in Gazette on 12 May 2011 J Spiers, Rebuttal at [21]- [23]
II [d] The social and economic effects on electricity generation by the allocation ofwater to other uses;
[e] The need to avoid cornpronusmg existing and future domestic and municipal supply takes;
[fJ Recognising that existing water takes contribute to social and economic well-being and support significant investment;
[g] The need for water to be available to provide for the social and economic needs ofpeople including rural-based activities;
[h] The consequence ofwater shortages if not properly managed;
[i] The need to phase out over time allocation in excess of the combined primary and secondary flows;
[j] The unmanaged transfer ofpermits; and
[k] The accumulative effects oftaking water.
[16] Chapter 3.3 contains Objective 3.3.2 which states:
3.3.2 Objective In addition to Objective 3.1.2, the management of water allocation and use in a way which ensures: aa) Giving effect to the overarching purpose of the Vision and Strategy to restore and protect the health and well-being of the Waikato River for present and future generations. a) The availability of water to meet the existing and the reasonably justified and foreseeable future domestic or municipal water supply requirements of individuals and communities and the reasonable needs for an individual's animal drinking water requirements. ab) The recognition of the significant community benefits that derive from domestic or municipal supply takes ac) The efficient allocation and the efficient use of water b) No further allocation of water that exceeds the primary allocation in Table 3-5 that reduces the generation of electricity from renewable energy sources.
12 ba) The recognition that existing water takes contribute to social and economic wellbeing and in some cases significant investment relies on the continuation of those takes, including rural-based activities such as agriculture, perishable food processing and industry. cal The continued availability of water for cooling of the Huntly Power Station. c) Sufficient water is retained instream to safeguard the life supporting capacity of freshwater, including its ecosystem processes and indigenous species and their associated ecosystems. d) That decisions regarding the allocation and use of water take account of the need to avoid the further degradation of water quality, having regard to the contaminant assimilative capacity of water bodies. e) Subject to Objectives aa) to c) above, the availability of water to meet other future sociai, economic and cultural needs of individuals and communities (including rural-based activities such as agricuiture, perishable food processing and industry).
[17] In order to achieve the Objective, there is a comprehensive policy framework which can be summarised as:
[a] A process for establishing and determining the level ofminimum, primary, secondary and water harvesting allocable flows and determining the combined level of surface water allocation within a catchment - Policies I, IA and IB;
[b] A process for establishing and determining the sustainable yields from groundwater - Policies 2 & 2A;
[c] The relationship between exceedance of the allocable flows and the definition of"over-allocation" in the National Policy Statement on Fresh Water Management - Policy 2AB;
[d] Classification for the activity status for consents based on the allocation level within a catchment or aquifer - Policies 3, 4 & 16 for surface water, and Policy 5 for groundwater;
13 [e] Assessment criteria for the taking of surface water and groundwater respectively - Policies 8, 9A & 9B for surface water and Policy 9 for groundwater;
[fI Conditions for consent;
• consent duration for the taking ofwater - Policy 11;
• water take recording and reporting - Policy 12;
• water shortage condition restrictions - Policy 13;
• levels ofpriority to apply during water shortages - Policy 14;
• promoting shared use and management ofwater - Policy 17;
[g] Methods to reduce over-allocation - Policy 15.
[18] In order to assist with the implementation ofthe policies, the Variation proposes a number of non-regulatory methods including education, the providing of information, working with other agencies, and guidance on achieving policies - Methods 3.3.4.1 3.3.4.8A.
[19] The policies are further implemented by a number of rules which reflect the policies' hierarchy of water-take categories of permitted activities, controlled activities, restricted discretionary activities, discretionary activities, and non-complying activities. As a general proposition:
[a] The taking of surface water, when assessed in combination with all other authorised takes, up to 70% of the allocable flows is a controlled activity Rule 3.3.4.13;
[b] The taking of surface water between 70% and 100% of the primary allocable flow is a restricted discretionary activity - Rule 3.3.4.15;
14 [c] The taking of surface water (excluding priority takes), when assessed in combination with all other authorised water takes (all calculated on a net take basis) exceeds the primary allocable flow but is less than the combined primary and secondary allocable flows in Table 3-5, is a discretionary activity - Rule 3.3.4.16; and
[d] The taking of surface water when assessed in combination with all other authorised water takes, exceeds the primary and secondary allocable flows in Table 3-5, is a non-complying activity - Rule 3.3.4.20.
[20] The key component for any water allocation regime is the minimum flow which is designed to protect certain physical, economic, social and environmental values." A minimum flow is defined in terms of a hydrological statistic. Regional councils in New Zealand employ a variety, including, for example, the mean annual 7-day low flow (MALF), the 1 in 5 year 7 day low flow (Qs), some fraction of MALF or Qs, the instantaneous mean annual low-flow or the exceedance flow.
[21] Variation 6 uses the Qs. The minimum flow is expressed as a percentage of the Qs. According to Policy lA, the minimum flow is to be determined having particular regard to Policy 1 following detailed habitat and river studies. Where such studies have not been undertaken, the minimum flow shall be set at 90% of the Q5 for streams with a mean flow greater than 5m3/s and 95% of the Qs for streams with a mean flow less than 5m3/s.
[22] In general, the primary allocable flow is to be set as the difference between the minimum flow and the Qs. If the minimum flow is 90% ofthe Q5, the primary allocable flow will be 10% of the Os. If the minimum flow is greater than the Qs, then the allocable flow is zero. With the exception ofthe Waikato River between the Taupo outlet and Karapiro Dam, the secondary allocable flow is deemed to be the portion of the flow between the primary allocable flow and 30% of Qs, except as otherwise specified in Table 3-5 ofthe Variation, which sets the allocable flows.
4 See McKerchar, Ere at [6] and following
15 [23] Of importance to this hearing, Table 3-5 sets the minimum flow for that section of the Waikato River upstream of the Karapiro Dam at 96.4% of Q5. Thus, the primary allocable flow is set at 3.6% of Q5. This figure is derived from an assessment of all existing takes of water, together with a small quantity to provide for presently planned dairy expansion, from the river upstream of the Karapiro Dam. There is no secondary allocable flow. The limit set combined with strong policy direction, ensures that all existing takes are within the allocable flow, but that no further grants of consent can reduce the amount of flow in the river above 3.6% of the Q5. Thus the full flow ofthe river, less the allocable flow (i.e. up to 3.6% of the Q5) is assured as being available for the Waikato Hydro Electricity Scheme. This protection granted to hydro-electricity generation was the source of considerable contention between the hydro-electrical generating company (Mighty River Power) and those seeking more water for consumptive uses such as irrigation.
[24] Priority to identified users, or groups of users, is managed by the activity status of the take and the levels of priority to apply during water shortages. For example, municipal supply authorities are afforded priority, by assigning to them more benign consent activity classifications for applications for the replacement of existing consents and applications for new takes;" and being afforded a more favourable level of priority during water shortages."
[25] Priority is also afforded other takers of water including:
[a] The Huntly Power Station for the taking of cooling water - Policy 3(c)(ia) and Rule 3.3.4.13A;
[b] The taking of water for existing milk cooling and dairy shed washdown Policy 2B, Policy 3 andRules 3.3.4.14A & B; andPolicy 5(ab);
[c] The taking of water for existing industrial purposes, such as the Kinleith Pulp and Paper Mill- Policy 1(ia), Policy 2B(e) andRule 3.3.4.16(4).
'See Objective 3.3.2(a), Policy 4; Policy 1(i), Policy 2B(g) and Rule 3.3.4./4 and 3.3.4.16(b) 6 See Standard 3.3.4.21
16 [26] The issue of priority was also a matter that gave rise to differences of opinion during the course of the hearing.
Chapter 3.4 Efficient use ofwater
[27] Chapter 3.4 addresses the efficient use of water. There is no separate objective for Chapter 3.4. The objective statement refers back to Objective 3.1.2 of the Waikato Regional Plan and Objective 3.3.2 of the Variation. Of particular relevance is the following from Objective 3.1.2 ofthe Regional Plan:
3.1.2 Objective The management ofwater bodies ina waywhich ensures: a) that people are able to take and use water for their social, economicand cultural wellbeing
g) inefficient use of the available ground surface water resources is minimised
0) concentrations of contaminants leaching from land use activities and non-point source discharges to shallow ground water and surface waters do not reach levels that present significant risks to human health or aquatic ecosystems p) that the positive effects of water resource use activities and associated existing iawfully established infrastructure are recognised, whilst avoiding, remedying or mitigating adverse effectson the environment.
[28] Policy I is intended to provide for the management of potential adverse effects arising from the use of water and any associated discharges to land. The "use" of water has been separated from the "take" of water to facilitate the transfer of water permits for different purposes.
[29] Policy 2 promotes a number of measures to achieve the efficient use of water, including facilitating the transfer of water permits. Policy 3 provides for the permanent, 01' temporary transfer of water permits, as long as the transfers do not result in adverse effects. Transfers are to be implemented by the use of environmental education (Method 3.4.4.1) and by providing for a permitted activity rule for the transfer of surface water permits (Method 3.4.4.2). Waikato Tainui and the River Iwi Trusts opposed the transfer ofpermits.
17 [30] Non-regulatory methods and rules address the efficient use of water. None of these are in contention.
2 THE COUNCIL DECISION
[31] Section 290A of the Act states that in determining an appeal, the Environment Court must have regard to the decision that is the subject ofthe appeal. The Waikato Regional Council Hearings Committee comprised a panel of five commissioners. The committee's decision is in four volumes:
[a] Volume I deals with process issues in Part A, and Part B IS the committee's substantive decision on the principal issues;
[b] Volume 2 contains Part C of the committee's recommendations on submissions covering all the matters of detail;
[c] Volume 3 is Part D comprising the Catchment Consumptive Takes Table, a strike-through version showing the committee's amendments to the publicly notified version, a clean print version of the amended Variation and the maps; and
[d] Volume 4 contains the Section 32 evaluation to support the amended document.
[32] The committee heard submissions over 21 hearing days and deliberated at length before producing its detailed decision. The committee's recommendations were adopted unchanged by the full Council.
[33] Since the Council's decision, the Variation has, as we have said, been through at least 12 iterative changes. This has resulted in some major amendments to the objectives, policies and rules. The Variation 6 that the Council now proposes is quite a different document to the decision version. There have been a number of major policy shifts, the most significant of which has been the deletion ofthe procedural priority provisions.
[34] The key provisions deleted were Policies 6 & II ofthe decisions version, which provided for a procedural priority to take effect on a common expiry date. All consents
18 in a defined catchment, except municipal supply consents, were to expire at the same time. At that time, applications to take water would be processed according to an established order ofpriority which would displace the first-in first-served principle which would otherwise apply.
[35] Policy 6 and that part of Policy II which fixed a common expiry date have now been abandoned by the Council in the face ofjurisdictional opposition by a number of parties - a position that is now accepted by all parties. Priority is now accorded by way of favourable activity status to certain types ofuses.
[36] Importantly, the Council has agreed to afford priority to a greater number of existing users such as:
[i] The taking of water for existing milk cooling and dairy shed washdown; and
[ii] The taking of water for existing industrial purposes, such as the Kinleith Pulp and Paper Mill.
[37] Notwithstanding the many changes, there are a number of issues still extant. Where any ofthose issues were argued before the Council's Hearing Committee, Section 290A of the Act is pertinent. We will discuss parts of the Council's decision as they apply to any outstanding issue at the time we address the particular issue.
3 STATUTORY BASIS FOR DECISION
[38] Variation 6 was publicly notified on 20 October 2006. All parties agreed that on matters of process the variation must be determined as if the amendments made by the 2009 Amendment Act had not been made. Thus on matters ofprocess, the version ofthe Act that applies is as amended by the 2005 Amendment Act.
[39] Counsel in their submissions referred to a variety of decisions of this Court and quoted passages which are effectively checklists reflecting the relevant statutory directions. The most comprehensive checklist is contained in the well-known passage
19 from Long Ba/, acknowledging that Long Bay relates to a District Plan. Apart from Long Bay, many of the passages quoted tended to emphasise those statutory directions which were relevant to the particular case before the Court.
[40] Section 63(1) of the Act provides that the purpose of the preparation, implementation and administration ofRegional Plans is to carry out any of the Regional Council's functions in order to achieve the purpose of the Act. A Regional Council's functions are set out in Section 30 ofthe Act. It relevantly says:
30 Functions of regional councils under this Act
(1) Every regional council shall have the following functions for the purpose of giving effect to this Act in its region: (a) The establishment, implementation, and review of objectives, policies, and methods to achieve integrated management of the natural and physical resources of the region:
(e) The control of the taking, use, damming, and diversion of water, and the control of the quantity, level, and flow of water in any water body, including- (i) The setting of any maximum or minimum levels or flows of water: (ll) The control of the range, or rate of change, of levels or flows of water: (iii) The control of the taking or use of geothermalenergy;
(fa) If appropriate, the establishment of rules in a regional plan to allocate any of the following: (i) the taking or use of water (other than open coastal water);
(4) A rule to allocate a natural resource established by a regional council in a plan under subsection (1)(fa) or (fb) may allocate the resource in any way, subject to the following: (a) the rule may not, during the term of an existing resource consent, allocate the amount of a resource that has already been allocated to the consent; and (b) nothing in paragraph (a) affects section 68(7); and (c) the rule may allocate the resource in anticipation of the expiry of existing consents; and
7 Long Boy - Okura Greot Porks Society Inc v North Shore City Council, [20I0] NZEnvC265 at [18]
20 (d) in allocating the resource in anticipation of the expiry of existing consents, the rule may - (i) allocate all of the resource used for an activity to the same type of activity; or (ii) allocate some of the resource used for an activity to the same type of activity and the rest of the resource to any other type of activity or no type of activity; and (e) the rule may allocate the resource among competing types of activities; and (I) the rule may allocate water, or heat or energy from water, as long as the allocation does not affect the activities authorised by section 14(3)(b)to (e).
[41] Section 65(3) of the Act contemplates a broad range of circumstances in which a Regional Council should consider preparing a Regional Plan, including:
(a) Any significant conflict between the use, development, or protection of natural and physical resources or the avoidance or mitigation of such conflict: (b) Any significant need or demand for the protection of natural and physicai resources or of any site, feature, place, or area of regional significance;
(d) Any foreseeabie demand for or on natural and physical resources; (e) Any significant concerns of tangata whenua for their cultural heritage in relation to natural and physical resources; (I) The restoration or enhancement of any naturai and physicai resources in a deteriorated state or the avoidance or mitigation of any such deterioration;
(i) Any other significant issue relating to any function of the regional council under this Act.
[42] The Variation must also meet the following relevant statutory requirements:
[a] Section 66(2) - to have regard to any proposed Regional Policy Statement - in this case the Proposed Waikato Regional Policy Statement (November 2010);
[b] Section 66(2) - to have regard to any management plans and strategies prepared under other Acts - in this case the Waikato-Tainui Raupatu
21 claims (Waikato River (Settlement Act) 2010), and in particular, Schedule 2 which is the Vision and Strategy for the Waikato River;"
[c] Section 67(3) ofthe Act - requires that the variation must give effect to:
• Any national policy statement - in this case there are three relevant national policy statements that have been issued under Section 52 ofthe Act. These are:
• The New Zealand Coastal Policy Statement 2010;
• The National Policy Statement for Renewable Electricity Generation; and
• The National Policy Statement for Freshwater Management
• Any Regional Policy Statement In this case, the Waikato Regional Policy Statement.
[43] Section 68 of the Act refers specifically to rules. Of particular relevance is Section 68(3) which provides that in making rules, the Regional Council shall have regard to the actual or potential effect on the environment of activities, including, in particular, any adverse effect.
[44] Section 68(5) ofthe Act provides that:
A rule may- (a) Apply throughout the regionor part of the region. (b) Make different provision for- (i) Different parts ofthe region; or (ii) Different classes of effects arising from an activity (c) Apply all the timeor forstated periodsor seasons: (d) Be specific or general in its application: (e) Require a resource consent to be obtained for an activity causing, or likely to cause, adverse effects not covered by the plan. [45] Overarching all ofthe statutory directions is Part 2 of the Act. The purpose ofthe Act as set out in Section 5 is to be achieved9 and any Regional Plan is to be in accordance with Part 2 ofthe Act. The specific provisions ofPart 2 that are particularly relevant are:
[i] To recognise and provide for the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga - (Section 6(e));
[ii] To have particular regard to:
• Kaitiakitanga and the ethic ofstewardship - Section 7(a) and (aa);
• The efficient use and development of natural and physical resources - Section 7(b);
• The intrinsic value ofecosystems - Section 7(d);
• Any finite characteristics of natural and physical resources Section 7(g);
• The effects ofclimate change - Section 7(i); and
• The benefits to be derived from the use and development of renewable energy - Section 70).
[iii] To take into account the principles of the Treaty of Waitangi (Te Tiriti 0 Waitangi) - Section 8;
[46] The Variation process is also subject to the constraints imposed by Section 32 of the Act which require an evaluation that must examine:
[a] The extent to which each objective is the most appropriate way to achieve the purpose ofthe Act (Section 32(3)(a);
9 Section 63(1) ofthe Act
23 [b] Whether, having regard to the their efficiency and effectiveness, the policies, rules, or other methods are the most appropriate for achieving the objectives - Section 32(3)(b).
[47] Such an evaluation must take into account:
[a] The benefits and costs of policies, rules, or other methods - Section 32(4)(a).
[48] Variations and plan changes are promulgated in accordance with the First Schedule procedures. This entails public notification, the lodging of submissions and further submissions by interested parties. This process gives all parties interested an opportunity to participate in and influence the development of the proposed objectives, policies and rules. It is clear from the evidence that the parties have been actively involved in the process over many months. To this extent, the process has given integrity to those matters that have been agreed on. We thus do not address them. The contested issues that remain have been synthesised from the extensive negotiations.
[49] We propose to discuss, where necessary, the relevant statutory provisions and the relevant statutory instruments as they apply to the contested issues.
4 THE RELEVANT STATUTORY PLANNING INSTRUMENTS
The New Zealand Coastal Policy Statement and relevant national policy statements
[50] Sections 67(3)(a) & (b) ofthe Act require that Variation 6 must give effect to any national policy statement and any New Zealand Coastal Policy Statement.
[51] We agree with the submission ofMr Milne that only national policy statements that have been approved and issued under Section 52 of the Act are relevant considerations. Proposed national policy statements should not be afforded any weight.
[52] There are three operative national policy statements that are now relevant, these being:
[a] The New Zealand Coastal Policy Statement 20I0;
24 [b] The National Policy Statement for Renewable Electricity Generation 2011; and
[c] The National Policy Statement for Freshwater Management 2011.
TIle New Zealand Coastal Policy Statement 2010 (NZCPS)
[53] It was the respondent's position that the NZCPS 2010 has little relevance to the current proceedings. We agree. No other party submitted otherwise.
[54] While it is acknowledged that the lower portion ofall rivers within the region will fall within the coastal environment, the NZCPS provides little, if any, guidance on water allocation issues, In so far as the statement seeks to preserve the natural character of the coastal environment, then the setting of minimum and allocable flows will undoubtedly assist with achieving that outcome.
The National Policy Statementfor Renewable Electricity Generation 2011
[55] The National Policy Statement for Renewable Electricity Generation came into force on 12 May 20II. This policy statement ensures a consistent approach to planning for renewable electricity generation in New Zealand by giving clear directions on the benefits of renewable electricity generation and requiring all councils to make provision for it in their plans.
[56] The statement emphasises as matters of national significance:
a) the need to develop, operate, maintain and upgrade renewable electricity generation activities throughout New Zealand; and
b) the benefits of renewable electricity generation."
[57] The preamble to the Statement contains the following:
10NationalPolicy Statement for Renewable ElectricityGeneration 2011 at page 4
25 Preamble
This national policy statement does not applyto the allocation and prioritisation of freshwater as these are matters for regional councils to address in a catchment or regional context and may be subject to the development of national guidance inthe future."
[58] It was submitted by some parties that the inclusion of this statement in the preamble precludes us from having regard to it when considering any of the contested issues to which it is relevant. However, we agree with Mr Cowper that the location ofthe above statement in the Preamble illustrates that it is not intended to act as a guide to decision-makers in respect to any freshwater allocation decisions they are making. Rather, the statement says that (amongst other things) the National Policy Statement should not be used to justify always giving hydro-electricity generation activities priority when making freshwater allocation decisions. It envisages that there may be circumstances when this will not be appropriate and should not occur.
[59] However, the statement in the Preamble should not be read as excluding the ability of regional councils to make freshwater allocation decisions which reflect the importance of renewable energy activities. Even if we are wrong in this regard, we consider it necessary, as a cautionary approach, to consider the policy statement's provisions which reflect and give strong guidance to the relevant statutory provisions contained in Part 2 ofthe Act.
[60] The objective for the National Policy Statement for Renewable Electricity Generation is:
To recognise the national significance of renewable electricity generation activities by providing for the deveiopment, operation, maintenance and upgrading of new and existing renewable electricity generation activities, such that the proportion of NewZealand's electricity generated from renewable energy sources increases to a level that meets or exceeds the New Zealand Government'snational target for renewableelectricity generation.'2
[61] The policies of the National Policy Statement for Renewable Electricity Generation recognise that:
II Ibid, page 3 12 At [4]
26 [a] Renewable electricity generation activities, and the benefits that are derived from them, are matters of national significance to be recognised and provided for;13
[b] The protection of the assets, operational capacity and continued availability of the existing renewable energy resource is required as well as acknowledgment of the fact that "even minor reductions in the generation of existing renewable electricity generation output activities can cumulatively have significant adverse effects on national, regional and local renewable electricity generation output,,;14
[c] There is a "need to locate the renewable electricity generation activity where the renewable energy resource is available" and where it can be connected to the national grid;15 and
[d] That there needs to be the incorporation of provisions for renewable electricity generation activities into regional policy statements, regional plans and district plans to include objectives, policies and methods to provide for new and existing hydro, wind and geothermal generation to the extent applicable to the region or district as well as for small and community-scale distributed renewable electricity generation activities.i''
[62] The provisions in the National Policy Statement for Renewable Electricity Generation provide a clear indication that the government sees renewable electricity generation as an essential need for the nation and which should be treated as of national significance.
[63] The provisions in the Policy Statement are particularly relevant to the main issue between the electricity generators and those parties seeking water for agricultural purposes. We will be conscious of the relevant provisions when we address that issue.
1J At [5] 14 Policy B(a) & (b) at [5] 15 Policy Ctl), clauses (a) & (c) at [5] 16 Policies E - F at [6] - [7]
27 National Policy Statement on Freshwater Management 2011 (NPS FM)
[64] The National Policy Statement on Freshwater Management was issued by notice in the Gazette on 12 May 2011 and took effect on 1 July 2011. It sets out objectives and policies that direct local government to manage water in an integrated and sustainable way, while providing for economic growth within set water quantity and quality limits. Such limits are to reflect local and national values underlain by the best available scientific and socioeconomic knowledge to ensure adequate environmental flows.
[65] Once limits are set water needs to be allocated to users, and if allocation exceeds the point where national and local values are not met, then such allocation is to be reduced over time.
[66] In its decision on Variation 6, the Waikato Regional Council set the environmental flows throughout the region with regard to the instream ecological requirements. It then increased the minimum flows to allow for tangata whenua uses and values, existing uses, and municipal supply needs, among others.
[67] The Council has identified appropriate minimum flows which protect the environment, defined in a wider sense by the Act. It was agreed that those minimum flows fit appropriately into the Policy framework set by Variation 6.
[68] At the time of issue of the National Policy Statement, Variation 6 was almost at the end of its participatory process. Many months of participation by many parties had been completed. By Minute dated 13 May the Court directed all parties to consider the implications of the Policy Statement and for their planning witnesses to attend a conference facilitated by Commissioner Oliver. A statement of outcome ofthe facilitated conference was issued on 15 July 2011. Paragraph [6] of the 15 July 2011 statement says:
6. Recognising the context of Variation 6
6.1 Therewas agreementthat:
a) V6 is a part of the Regional Council's management of freshwater and it is neither appropriate nor necessary that V6 address all aspects ofthe NPS. b) V6 is primarily about water takes and use and about water quantity. There is limited content relating to freshwater quality relative to other parts of the Regional Plan which are beyond the scope of V6. Therefore V6 cannot be used to address wider freshwater management issues beyond the scope of V6.
c) Opportunities to give effect to all aspects of the NPS will occur in the context of the current review of the Proposed Regional Policy Statement ("PRPS") followed by the programmed review of the Regional Plan (presumably including V6).
d) The structure and scope of V6 is a valid way to give effeel to the relevant parts of the NPS within this appeal process. While there are some changes needed there is no requirement for a complete re-write.
[69] It was agreed that the Policy Statement focussed on ecological limits, and to this extent was more narrowly focussed than the matters set out in the Objective ofVariation 6. Paragraph [10.2] ofthe Joint Statement says:
10.2 There was agreement that:
The concept and function of an allocation limit in the NPS appears to be different to the use of allocable flow limits in V6. The concept of allocable flow in V6 allows a broader consideration of what over allocation is. This recognises spatial differences and that one size doesn't fit all. The approach in WRC's 17 June Version Discussion Document, which assumed any exceedance of Table 3-5 limits had to be avoided in an absolute manner, is not the only way to deal with the issue of giving effect to Objective 82.
The Table 3-5 'allocable flows' could be exceeded in some specified situations If that was appropriate to achieve some of the components of Objective 3.3.2 and hence not be "over allocation" in terms of the NPS.
The Issue of what constitutes over allocation could be re-vlsited over time in light of various matters including the values or freshwater objectives that prevail and state of knowledge.
Any over allocation that occurs on the basis of the flows set out in Table 3-5 is proposed to be phased out by 2030 or, in the case of a new municipal take that caused over allocation, sooner than that. "Phasing out" could include a revision of the Table 3-5 flows.
[70] It was generally considered that with a number of suggested amendments the Variation would generally give effect to the Policy Statement. All these amendments have been accepted by the parties with the exception of two - Horticulture New Zealand and the Director-General ofConservation.
29 [71] Of particular concern to these two parties were the following proposed amendments (now adopted by the Council):
[a] The following amendment to the Explanation to the Issues:"
The NPS on Freshwater Management requires allocation limits to be set and defines 'over-allocation.' Chapters 3.3 and 3.4 were developed prior to the release of the Operative NPS and it was not intended that an exceedance of an allocable flow as set out in Table 3-5 would be considered to be 'over-allocation' as defined in the NPS. The fiows in Table 3-5 have been set to achieve Objective 3.3.2 and they also determine the activity status of water take consent applications. The activities identified in Policy 2AB are enabled to achieve aspects of Objective 3.3.2
[b] A new Policy 2AB:
Policy 2AB: Certain Exceedances of Table 3-5 Allocable Flows not to Represent Over-allocation for the Purposes of the Freshwater NPS (Implements Objective 3.1.2 and 3.3.2)
Takes that may exceed the combined primary and secondary allocable flows in Table 3-5 in order to achieve one of more limbs of Objective 3.3.2 for the following types of activities do not represent "over-allocation" as defined In the Interpretation section of the National Policy Statement for Freshwater Management2011:
a) In recognition of Objective 3.3.2(a) and 3.3.2(ab) and the statutory requirement to provide potable water for people and communities. takes to meet the existing and reasonablyjustified and foreseeable domestic or municipal supply requirements of individuals and communities where a water managementplan which meets the requirementsof Method 8.1.2.2 has been provided.
b) In recognition of Objection 3.3.2(ba), takes to meet existing and reasonably justified needs for milk cooling or dairy shed wash down where applicantsfor those takes are lodged prior to January2015.
c) In recognition of Objection 3.3.2(a) and 3.3.2(ba). takes relying on section 14(3)(b) of the Resource Management Act that were occurring prior to 15 October 2008.
[72] It was contended that these amendments are contrary to the intent of the Policy Statement and accordingly do not give effect to it as required by section 67(3)(1) ofthe
17 Page 11
30 Act. Further, Ms Bellingham, on behalf of the Director-General of Conservation, submitted that such provisions would amount to a dangerous precedent as it would signal that councils could evade the prescriptions of the Policy Statement by invoking similar provisions.
[73] We do not agree with either ofthese contentions. First, a reading ofthe objective in Variation 6 reveals that the matters contained in it are broader than the focus of the Policy Statement. Such matters as: the community need to meet the existing and future needs ofdomestic and municipal supply; the recognition ofthe contribution to social and economic wellbeing ofexisting takes; and the need to protect electricity generation are all matters outside the ambit of the Policy Statement, which focuses on allocation in the context ofprotecting water quality. The matters outside the focus ofthe Policy Statement are also relevant resource matters which need to be considered when determining the sustainable use of the resource. The proposed Policy 2AB is a practical way of recognising that the objectives and policies of the Variation extend beyond the scope of the National Policy Statement.
[74] Further, balance is achieved with respect to any current over-allocation, as it is proposed to be phased out by 2030. Further opportunities to give effect to all aspects of the Policy Statement will occur in the context of the current review of the Regional Policy Statement, which is to be followed by a programmed review ofthe Regional Plan.
[75] We accept, that with the suggested amendments, and recognising that the objectives and policies extend beyond the scope of the National Policy Statement, the Variation will generally give effect to it.
Waikato Regional Planning Instruments
Waikato Regional Policy Statement
[76] The Waikato Regional Policy Statement is the Regional Council's primary planning instrument and contains issues, objectives, policies and methods relating to flow regimes, the modification of flow regimes and the efficient use of water. It was the Council's case that Variation 6 complies with the provisions of the Regional Policy Statement that are relevant. No other party contested otherwise. We therefore do not propose to discuss this document further,
31 The Proposed Waikato Regional Policy Statement
[77] The Proposed Waikato Regional Policy Statement was publicly notified on 3 November 2010. The Proposed Policy Statement is set out in three substantive parts. This structure addresses requirements for integrated management. Part A contains six significant resource management issues, the Vision and Strategy for the Waikato River, and 26 objectives which address the issues. Under each objective, a table is included which lists the policies to achieve each objective.
[78] Part B contains the policies and methods which achieve the objectives in Part A. Part C identifies the procedures to be used for monitoring the effectiveness of the Proposed Policy Statement in achieving the stated objectives.
[79] The relevant objectives and policies are set out in full in the evidence of Mr Spiers. Again, it was the Council's position, that Variation 6 as now proposed, appropriately gives effect to the relevant provisions of the Proposed Regional Policy Statement. No party, other than the River Iwi Trusts contested otherwise. It was the Trusts' contention that the provisions of the Variation do not give effect to the Vision and Strategy as contained in the Proposed Regional Policy Statement. That Vision and Strategy being the same as the Vision and Strategy promulgated by the Settlement Act. We discuss this in more detail later in the decision.
The Waikato RegionalPlan
[80] As we have said, Variation 6 needs to be considered within the context of the relevant issues, objectives and policies of the Operative Regional Plan. Chapters 3.1 and 3.2 are relevant.
[81] Chapter 3.1 of the Operative Regional Plan contains an exhaustive list of issues which underlie the need to manage flow regimes and the taking and using of water. These include:
[a] The adverse effects, including cumulative effects, of non-point discharges on the water quality of the region's water bodies;
32 [b] Recognition that the ability ofpeople and communities to provide for their needs may be limited by inefficient use offinite water resources;
[c] Recognition that modification of flow regimes through water takes, damming and diversion, can adversely affect water bodies;
[d] The need to protect the spiritual and physical attributes of water quality and the mauri ofwater;
[e] The need to provide for the sustainable yield of deep groundwater resources; and
[f] The recognition that not enabling the use and development of water resources in the region may compromise the ability of people and communities to provide for their social, cultural and economic well-being, and for their health and safety.
[82] Part 3.1 of the Plan then contains objectives and policies which are designed to address these issues and the management of water bodies. It was the Council's position that the provisions of the Regional Plan have been appropriately considered and taken into account, and are reflected in the provisions ofVariation 6. Again, no party contested the Council's position.
The Waikato Regional Energy Strategy
[83] The Waikato Regional Energy Strategy is a non-statutory document. It has been developed to facilitate agreement within the regional community on how to achieve continued access to reliable energy supplies at affordable prices, and to help inform decision-makers at the regional and district level in the development of policy and planning documents.
[84] The overall purpose ofthe Regional Energy Strategy is to:18
18 Waikato Regional Energy Strategy, page 1
33 [a] Encourage and enable energy conservation and efficiency;
[b] Promote the Waikato region's role in maintaining security of energy supply;
[c] Facilitate the development and use of renewable energy sources and innovative energy technologies; and
[d] Acknowledge and promote the crucial role of energy in the regional and national economy.
[85] The Energy Strategy contains 27 recommendations for action. Of particular relevance to the debate about the measures ofprotection afforded to electricity generators is Recommendation 4 which states: 19
Recommendation 4: The Regional Energy Strategy recognises the importance and value of existing and potential hydro generation infrastructure, within the Waikato region and its essential contribution to regional and national energy needs and securityof supply. The Regional Energy Strategy advocates for policies and actions that promote maintenance and appropriate development and use of this valuable natural resource. When new proposals for water allocation are being considered in the consenting process, the Regional Energy Strategy recommends that hydro generation should be considered a desirable renewable low emission source of electricity essential to regional and national energy needs and for security of suppiy.
5 THE VISION AND STRATEGY FOR THE WAIKATO RIVER
[86] It is accepted that as at 1840 Waikato-Tainui possessed the Waikato River and their lands in accordance with their tikanga, along with other Waikato River iwi. However, from the time of the Raupatu in 1863, the Crown has assumed control of, and exercised jurisdiction over, the Waikato River.
[87] Following development along its length after the Raupatu, the river has been used for a significant range of activities. These include farming, coal mining, power
19 Ibid, page 80
34 generation schemes, the discharge of waste, and domestic and industrial abstraction. This list largely encapsulates the uses ofthe main parties involved in this hearing. While all of these uses have contributed to New Zealand's economic growth, and continue to do so, they have also caused the pollution and deterioration of the health of the Waikato River, to the extent it is currently acknowledged as being significantly degraded.
[88] Over the same period it is common ground that Waikato-Tainui had been excluded from decision-making. They have not been adequately consulted regarding their understanding ofthe river and its ecosystems. Their rights and interests in the river, and the authority and control they exercised to protect and ensure the well-being of the river and its resources, have been denied.
[89] Waikato-Tainui believe that their ability to meet their obligations to the Waikato River, as their tupuna awa, has been severely compromised. This sense of injustice is long-standing and continues today.
[90] Consequently, Waikato-Tainui initiated claims before the Waitangi Tribunal. Negotiations with the Crown regarding the river claim were commenced in 1999. These negotiations culminated in the signing of an agreement in principle for settlement in December 2007. This agreement provided for the formation of a Guardians Establishment Committee consisting of Crown and Waikato River iwi representatives. The committee's main function was to develop a "vision and strategy for the Waikato River".20
[91] Following the agreement in principle, the Crown and Waikato-Tainui signed a Deed ofSettlement in relation to the Waikato River on 22 August 2008. Importantly, this Deed ofSettlement included as Clause 2.1:
OVERARCHING PURPOSE 2.1 Theoverarching purpose oftheselllement is to restore and protect the health and wellbeing oftheWaikato River for future generations.
[92] The 2008 Deed also incorporated, as Part I of the Schedule to that Deed, the Vision and Strategy developed by the Guardians Establishment Committee, and
20 Clause51
35 subsequently approved by both the Crown and Waikato-Tainui. In 2009, aspects of the 2008 Deed and the co-management arrangements for the Waikato River were reviewed resulting in agreement and the signing of a 2009 Deed. Like the 2008 Deed, it's successor incorporated the same overarching purpose in Clause 3.1, and the Vision and Strategy developed by the Guardians Establislunent Committee as Part I of the Schedule to that Deed.
[93] The 2009 Deed was implemented through the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, which received royal assent on 7 May 2010 and came fully into force as at 25 November 2010. Consistent with the 2009 Deed, the Settlement Act records (inter alia):
[i] The various Crown acknowledgments made with respect to the Raupatu, and the impact of this on Waikato-Tainui's special relationship with the Waikato River, by denying their ability to protect the importance of Te Mana 0 te Awa and exercise mana whakahaere over the river;"
[ii] The overarching purpose ofthis settlement has been to restore and protect the health and well-being of the Waikato River for future generations.F and
[iii] The Vision and Strategy, which is attached as Schedule 2 ofthe Settlement Act 2010, is Te Ture Whaimana 0 Te Awa 0 Waikato, and intended by Parliament to be the primary direction setting document for the Waikato River and activities within its catchment affecting the Waikato River.
[94] The Settlement Act inserted the Vision and Strategy for the Waikato River into the Operative Regional Policy Statement by operation of law and without the use of the Schedule 1 process." Section 5 of the Settlement Act records that the Vision and Strategy is intended by Parliament to be the primary direction setting document for the Waikato River and activities within its catclunent affecting the Waikato River. Clearly
21 Preamble 22 Section3 23 Section 11(1)
36 therefore the Vision and Strategy must be accorded importance in the current process. Under Section 67(3) ofthe Act:
(3) A regional plan must give effect to-
(c) any regional policy statement.
[95] Variation 6 must therefore give effect to the Vision and Strategy. There was no argument in that regard.
[96] The Settlement Act requires that the Waikato Regional Policy Statement and the Waikato Regional Plan be reviewed in the very near future to ensure that those documents are consistent with, and give effect to, the Vision and Strategy respectively. The Settlement Act further makes it clear that Waikato-Tainui (through the Waikato Raupatu River Trust) is to be involved in all stages ofthat review.
[97] The Vision and Strategy lists the following 13 objectives for the Waikato River:
A. The restoration and protection of the health and well-being of the Waikato River.
B. The restoration and protection of the relationships of Waikato-Tainui with the Waikato River, including their economic, social, cultural and spiritual relationships.
c. The restoration and protection of the relationships of Waikato River iwi according to their tikanga and kawa with the Waikato River, including their economic, social, cultural and spiritual relationships.
D. The restoration and protection of the relationships of the Waikato Region's communities with the Waikato River, including their economic, sociai, cultural and spiritual relationships.
E. The integrated, holistic, and co-ordinated approach to management of the naturai, physical, cultural, and historic resources of the Waikato River.
F. The adoption of a precautionary approach towards decisions that may result in significant adverse effects on the Waikato River, and, in particular, those effects that threaten serious or irreversible damage to the Waikato River.
37 G. The recognition and avoidance of adverse cumulative effects, and potential cumulative effects, of activities undertaken both on the Waikato River and within the catchment on the health and well-being of the Waikato River.
H. The recognition that the Waikato River is degraded and should not be required to absorb further degradation as a result of human activities.
I. The protection and enhancement of significant sites, fisheries, flora, and fauna.
J. The recognition that the strategic importance of the Waikato River to New Zealand's social, cultural, environmental, and economic well-being requires the restoration and protection of the health and well-being of the Waikato River.
K. The restoration of water quality within the Waikato River so that it is safe for people to swim in and take food from over its entire length.
L. The promotion of improved access to the Waikato River to better enable sporting, recreational, and cultural opportunities.
M. The application to the above of both maatauranga Maaori and the latest available scientific methods.
[98] The Waikato River runs through the rohe of Tuwharetoa, Te Arawa, Raukawa and Waikato-Tainui.24 The Settlement Act is a settlement ofWaikato-Tainui's Treaty Claim in respect ofthe river. It has formed a model for the Ngati Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010. The latter Act does not settle the Treaty Claim of these three iwi in respect of the river, but it implements the identical co management framework for the river as in the Settlement Act.
[99] The weight and importance accorded to the Vision and Strategy is considerable. In terms of Section 12(1) of the Settlement Act it prevails over any inconsistent provisions in any National Policy Statement or New Zealand Coastal Policy Statement. The Waikato Regional Council is precluded from reviewing or amending the Vision and Strategy under Section 79 ofthe Resource Management Act. A review can be undertaken only by the Waikato River Authority pursuant to Sections 18 - 20 ofthe Settlement Act
38 and amended by the Governor-General by Order in Council only on the advice of the Minister under Section 21(3).
[100] The co-management regime established by the Settlement Act and the River Iwi Act is radically different to what hitherto existed under the Resource Management Act and what currently exists elsewhere in New Zealand. Parliament has accorded great weight and importance to the Vision and Strategy as the primary direction-setting document for the Waikato River catchment.
6 ISSUES
[101] It is in the context ofthe above background and relevant statutory provisions that we consider the contested issues. The contested issues changed in an iterative way during the course of the hearing as the Council made numerous amendments to the Variation in an endeavour to meet many of the valid concerns of the appellants. Mr Milne, in his closing submissions, comprehensively addressed what he considered to be the remaining contested issues. At the end of the hearing the COUlt issued a direction that any party who considered that the issues as identified by Mr Milne were either not accurate or incomplete, was to notify the Court. Several memoranda were received.
[102] The following contested issues were identified as a consequence ofthat process:
[a] Issue I Can Section 14(3)(b) takes be constrained?
[b] Issue 2 Protection of water for electricity generation and allocation preference
• Issue 2(i) The degree of protection to be afforded electricity generation
• Issue 2(ii) Genesis - increased priority for the Huntly Power Station
[c] Issue 3 Policies
• Issue 3(i) Adverse effects vs significant adverse effects - Policy I(d)
39 • Issue 3(ii) Should the provisions relating to protection of electricity be more generic? - Policy IA(e) and consequential provisions
• Issue 3(iii) Should there be a new standalone policy espousing the importance ofrenewable energy generation? - Proposed Policy 3A
• Issue 3(iv) Municipal supply takes - agricultural and industrial takes over 15m3/d - Policy 4
• Issue 3(v) Volumetric caps for agricultural and industrial municipal takes - Policy 4 and Rule 3.3.4.20
• Issue 3(vi) Secondary allocable flow and Waikato River tributaries above Karapiro - Table 3-5 and Policy 4
• Issue 3(vii) Priority for drought intolerant crops in time ofshortage - Policy 14 and Standard 3.3.4.21
• Issue 3(viii) Consent Application Assessment Criteria - Surface Water & Groundwater - Policies 8 and 9
• Issue 3(ix) Restricting takes otherwise available to electricity generation - Policies 8(c) and 9(s)
• Issue 3M Management ofGroundwater - Policy 9(sa) • Issue 3(xi) Should there be policies directing decision-makers to generally not grant non-complying activity consents for the taking of surface water unless certain circumstances apply? Policies 9A and 9B
• Issue 3(xii) Should dairy farms be exempt from general rules that water take consents be for 15 years - Policy I I(a)(v)
[d] Issue 4 Rules and Standards • Issue 4(i) Wairakei Pastoral- specific allocation rules • Issue 4(ii) Winter takes above Karapiro - Restricted Discretionary Rule 3.3.4.l5A • Issue 4(iii) Should water transfers be made less restrictive? - Rule 3.4.4.3(i)
40 • Issue 4(iv) Nutrient Management Plans - Rule 3.4.5.6 and Rule 3.4.5.7
• Issue 4(v) Should flows be naturalised in the Waikato River below Lake Taupo? - Standard 3.3.4.21 and Method 3.3.4.6C
• Issue 4(vi) Should Table 3-5 have a cross-reference to Standard 3.3.4.2 I(f)?
• Issue 4(vii) Should water shortage restrictions apply to Genesis? Standard 3.3.4.21
• Issue 4(viii) Threshold Date - numerous policies and rules
• Issue 4(ix) Definitions • Issue 4(x) Mighty River Power - addendum to closing submissions
[e] Issue 5 Iwi Issues
• Does Variation 6 give effect to the Vision and Strategy?
• Should there be preferential access to water for "iwi development"?
• Should rules providing for the transfer of water permits be included in Variation 6?
[103] We now propose to consider each of the above issues in the order set out. We do not address the non-contested aspects ofthe 8 August 2011 version of Variation 6. They are the result of an intensive and rigorous participatory process involving the parties and their experts. We are satisfied as to the integrity ofthat process which is reflected in the non-contested provisions of the Variation - provisions which exhibit a balancing of the statutory directions.
41 6.1 ISSUE 1 Can Section 14(3)(b) Takes Be Constrained?
[104] Section 14(3)(b) ofthe Act relevantly states:25
14 Restrictions relating to water
(3) A person is not prohibited by subsection (2) from taking, using, damming, or divertingany water, heat, or energy if- (a) the taking, using, damming, or diverting is expresslyallowed by a national environmental standard, a rule in a regional plan as well as a rule in a proposed regional plan for the same region (if there is one), or a resource consent; or (b) in the case of fresh water, the water, heat, or energy is required to be taken or used for- (i) an individual'sreasonabledomesticneeds; or (il) the reasonable needs of an individual's animals for drinkingwater,- and the taking or use does not, or is not likely to, have an adverseeffect on the environment;
[105] Section 14(3)(b) of the Act provides a statutory authorisation for the specified taking and using of water. The right to take is not absolute. The take or use must be required; the needs must be reasonable; and the taking or use does not, or is not likely to have an adverse effect on the environment.
[106] Under Variation 6, Section 14(3)(b) takes of surface water would be constrained by Policy 3(b) and Rule 3.3.4.16. Policy 3(b) states:
Except as providedfor in Policy4, the Waikato RegionalCouncil will manage the allocation of surface water in catchments that do not exceed the combined primaryand secondaryallocableflows in Table 3-5 on a net take basis by:
b) Classifying as a non-qualifying s14(3)(b) take and a discretionary activity any take which was not existing prior to 15 October 2008 and would otherwise be allowed by s14(3)(b) of the RMA, except that when assessed in combination with all other existing authorised water takes
25 We quote the current wording from the 2009 Amendment, as it was not contested that the transitional section (sI61) did not apply to non-process matters
42 within the same catchment. is for a rate greater than 100 percent of the primary allocable flow in Table 3-5.
[107] Rule 3.3.4.16 relevantly states:
3.3.4.16 Discretionary Activity Rule - Surface Water Takes The taking of surface water that: 1. Is a non-qualifying s14(3)(b) take described in Policy 3(b);
is a discretionary activity (requiring resource consent) subject to the following standards and terms:
[108] The combined effect of Policy 3(b) and Rule 3.3.4.16 would be to constrain the statutory right to take without the need for a resource consent for all takes which, when assessed in combination with all other authorised takes within the same catchment, exceed 100% ofthe primary allocable flow in Table 3-5.
[109] Policy 5(a)(i) and (b), and Rule 3.3.4.18(lA) have a similar combined effect with respect to groundwater. Section l4(3)(b) takes from groundwater, when assessed in combination with all the other authorised takes within the same aquifer, which exceed the sustainable yield ofthat aquifer require a resource consent as a discretionary activity.
[110] For Wairakei Pastoral, Mr Daya-Winterbottom submitted that the constraint imposed on Section 14(3)(b) takes is ultra vires. He submitted that the power to include rules in the Regional Plan in relation to the taking offreshwater is subject to the matters governed by Section 14(3)(b) of the Act. This interpretation, he said, is underpinned by Section 30(4)(f) ofthe Act which provides, in relation to the regional council's ability to establish rules to allocate water that:
(4) (I) the rule may allocate water ... as long as the allocation does not affect the activities authorised by section 14(3)(b) to (e)
(emphasis Mr Daya-Winterbottom)'"
43 [III] We reject that submission. We accept the submission of counsel for the respondent, Mr Milne, that the provisions are not ultra vires. The authorisation to take pursuant to Section 14(3)(b) is not unlimited. The taking or use must not have, or be likely to have, an adverse effect on the environment. There is no qualifier to "adverse effect" so, on the face of it, any effect which is greater than de minimis would be sufficient to terminate the statutory authorisation. The constraining provisions proposed in Variation 6 do not "affect the activities authorised by s14(3)(b)". Rather, what they seek to do is define the point at which a take, that would otherwise be authorised under Section 14(3)(b), has, or is likely to have, an adverse effect, and hence fails to gain the statutory authorisation.
[112] Such an interpretation underlays good commonsense policy reasons. Those who would likely be affected by the rule would be people undertaking new dairy conversions since 15 October 2008, or increasing their stock numbers in catchments at or above full allocation. The position of all existing Section 14(3)(b) takes as at 15 October 2008 is protected. Converting a forestry or dry-stock property to a dairy farm is a capital intensive exercise. It is preferable for would be converters to have a clear statement in the Plan ofthe respondent's position on when Section 14(3)(b) takes have, or will likely have, an adverse effect and hence lose their statutory authorisation, rather than leaving that to the vagaries ofpossible enforcement action.
[113] Counsel for Wairakei Pastoral also referred to the position at common law and to the right to take and use water for animal needs being preserved by Section 21 of the former Water and Soil Conservation Act 1967. Be that as it may, the common law has been overridden by the provisions of the RMA which have replaced the 1967 Act with the more restrictive Section 14(3)(b).
[114] Mr Hassan, counsel for the Agricultural Working Group, in his closing submissions, advised that the residual issue for his client is what triggers stock drinking water takes to become discretionary activities in terms ofPolicy 3 and Rule 3.3.4.16. As we have said, the combined effect ofPolicy 3 and Rule 3.3.4.16 is that such takes would be caught by the rule if they, in combination with all other existing authorised takes in the same catchment, exceed the primary allocable flow in Table 3-5.
[115] Mr Willis, who gave planning evidence for the Agricultural Working Group, proposed that such accounting should be done only by reference to the combined effect of
44 new and existing Section 14(3)(b) takes. In our view that would not be appropriate. Such an approach would extend the threshold considerably and we received no hydrological evidence that such a proposal would provide any realistic limit at all?? In any event, it would exclude from consideration the cumulative effect of Section 14(3)(b) takes with other existing authorised takes in the same catchment.
[116] We thus reject Mr Willis' proposal.
6.2 ISSUE 2 Protection of water for electricity generation and allocation preference
Introduction
[117] Variation 6 contains a number of provisions that give protection to existing electricity generation. Mighty River Power operates the control gates on Lake Taupo and a chain of eight hydro dams and nine power stations on the Waikato River down to Karapiro. Between the control gates and the first of these dams, Contact Energy discharges approximately Um3/s from Wairakei Power Station, which will reduce to 0.5m3/s by 2017. Downstream from Karapiro, Genesis operates the Huntly Power Station which relies on cooling water from the river.
[118] Because of the contribution which these power stations make to New Zealand's energy supply, as detailed in the evidence ofMight River Power and Genesis, the Council has accorded protection to them. The degree of protection afforded in the Variation has been disputed by the agricultural users as it effectively limits any future additional abstraction for agricultural uses.
Issue 2(i) Tile Degree ofProtection to be afforded Electricity Generation
[119] Variation 6 affords priority to electricity generation by:
[a] Fixing the primary allocable flow at Karapiro at 3.6% ofQs?8 This figure is derived from an assessment ofall takes ofwater from the Waikato River
27 Milne, closing submissions [54] & [55] 28 Policy lAfe)
4S above Karapiro, together with a small future allocation for the conversion ofland to dairying;
[b] Having no secondary allocable flow above Karapiror'"
[c] Strong policy direction that generally non-complying activity applications for takes shall not be granted unless the take achieves a higher level of electricity generation than would otherwise be achieved were the consent declined. 30
In reality, the Waikato Hydro Power Scheme uses all the water remaining in the river, that is after any water that is authorised to be taken from within the primary allocable flow has been abstracted - a primary allocable flow that is on the cusp of full allocation.
Appellants' Relief
[120] Wairakei Pastoral seeks that the proposed allocable flow above Karapiro should be increased from 3.6% of Q, to 4.5% of Q, to provide for pasture irrigation, either by amending the primary allocable flow or by providing for a secondary flow.
[121] Wairakei Pastoral also seeks that the proposed allocable flow above Karapiro should be increased by 0.08% of Q5 to provide animal usage water for 25,000 ha offorest to dairy conversion.
[122] Wairakei Pastoral thus seeks a total increase of the allocable flow to 4.58% ofQc,
[123] The Agricultural Working Group seeks to increase the primary allocable flow by 0.4% (i.e. from 3.6% to 4% of Q,). This is to enable new dairy investment above Karapiro through non-irrigated conversions.
[124] A second adjustment is sought to provide for a secondary allocable flow of3% of Q,. This secondary allocable flow would provide opportunity for other consumptive uses
29 Table 3-5 JO Polices 9A & 9B
46 to be considered on their merits by reference to Objective 3.3.2 and relevant policies, in accordance with the Variation rules.
[125] Wairarapa Moana also seek an increase in allocable flows to 7% of Qs at Karapiro,
[126] The total increase of allocable flows sought is to 7% of Q, at Karapiro. This figure is the hydrological limit available. This is so because any increase of the Q, at Karapiro beyond 7% could not be utilised, as to do so would result in a breach of the cumulative primary allocation at the river mouth of the Waikato River, which is set at lO%ofQs.
[127] The increase in allocable flows above Karapiro were sought, but not limited, to provide for potential consumptive takes for increased dairy production. Underlying the relief sought was the accepted premise of the importance of the dairy industry to the economic and social welfare ofthe region and New Zealand.
[128] We thus heard a substantial quantity ofevidence on the benefits ofdairying on the one hand, and electricity generation on the other. There was much argument and counter argument as to their respective importance and significance, both nationally and regionally.
[129] We propose to discuss this evidence in the following sections of this decision. The evidence highlighted to us that competing users of the resource can each have significant national and regional contributions that give rise to tensions as between many ofthe Part 2 matters.
[130] While the debate focussed on dairy vs electricity, we consider this to be too narrow. The real issue is whether the water in the Waikato River above Karapiro should be more liberally freed up to enable uses other than for electricity generation - rather than effectively locking up all of the available water above 3.6% of Qs exclusively for electricity generation.
47 The Problem - Lost Generation
[131] The debate arises because every litre of water taken above Lake Karapiro for a consumptive use is not available for electricity generation. This is the central core of the concern ofMight River Power.
[132] A number of the hydrological expert witnesses carried out various modelling scenarios to assess the generation loss of takes above 3.6% ofQ, above Karapiro. These modelling scenarios were carried out by Mr Williamson (called by Wairakei Pastoral), Mr Woods (called by the Council), Mr Henderson (called by Mighty River Power), and Mr Cussins (called by Agricultural Working Group). Their estimates of foregone generation arising from their modelling results varied. Following a caucus meeting ofall of the hydrologists, a joint statement was signed and issued dated 24 January 2010. Paragraphs [11.2] - [1104] of that statement are relevant. We set them out in full:
11.2 Modelling results
Williamson, Para 17.1-17.45 EIC, 4.14-4.26 & 4.68-4.84 Rebuttal
Woods, Para 52 EIC, 4-7 & 16-23 Rebuttal
Henderson, Para 4.1-4.24 EIC, 8.1-8.4 Rebuttal
Cussins, Para 47-52 Rebuttal
Different modelling approaches have resulted in broadlysimilar estimates of foregone generation where the base assumptions are similar (fraction of Q 5 to be allocated, area to be irrigated, locations of irrigated land, values of other water use allocations). Appendix 4, Figure 4 Henderson EIC (Excluding the "simple" Henderson scenario), Henderson rebuttal Para 8.1 and Williamson Table 3 (rebuttal page 29).
Disagreement remains about the precise magnitude of the foregone generation across all the scenarios. However, the witnesses agree that the upper bound of foregone generation for various allocation scenarios, assuming all abstraction occurs upstream of all power stations on the Waikato Hydropower System, and is allyear around, is as follows:
Table: Upper bounds of foregone flow and generation for the Walkato Riverabove Karapiro Dam.
48 % of 0 5 Upper bound of Upper bound of Consequential allocated % reduction in % reduction in conversion to mean annual mean annual GWhly flow (245.3 generation for m'/s) at MRP Karapiro
3.6 0 0
5.0 0.8 1 40 GWhfy
7.5 2.3 2.9 116 GWhfy
10 3.8 4.7 188 GWhfy
15 6.8 8.4 336 GWhfy
Note: The reason the percentage reduction In generation forgone is greater than the percentage reduction in flow is because the flow reduction is calculated on the mean annual flow at Karapiro, while the generation has been calculated from the mean flow at each station. Thus the reduction in flow is a bigger fraction of the mean flow at the dams further up the river, than if calculated at Karapiro,
[conversion column has been added]
11.3 Effects on minimum flow at Karapiro Dam.
Woods, Para 16-23 Rebuttal
Brown, Para 95, 97 EIC, 68 Rebuttal
Henderson, Para 5.1 & Table 2, 7.2, 7.5 EIC
Williamson, Para 4.20 & 4.81-4.131 Rebuttal
Witnesses agree increased abstraction would result in more occasions when Karapiro flows are at minimum. Flows below minimum at Karaplro will occur during prolonged dry conditions when Taupo is also below minimum level (355.85 masl) and the sum of catchment inflows (including Lake Taupo and inflows to all hydro reservoirs) are below 140 m'/s refer to condition 4.6 of MRP consent (105227) for full details. This is a very rare event (see Figure 7 of Hunter's EIC, which shows no occurrences of Lake Taupo receding below minimum control level since it was instituted in 1941 with the construction of the outlet Control Gates. MRP manages Lake Taupo to avoid the extremes of the range (Hunter EIC Paragraph 7.15).
There was disagreement about the frequency or likelihood of flows receding below minimum (140 m'/s) at Karapiro under the various allocation scenarios considered In evidence (I.e. up to 15% 0 5).
49 11.4 From a water balance perspective, what degree of ability do MRP have to move water from one season to another?
Woods, Para 22,67 EIC, 8-9 Rebuttal
Williamson, Para 10.3, Figure 3 EIC (page 19), 4.132-4.133 Rebuttai
The context of Woods Para 67 (EIC) is the inability of the generator to move a significant proportion of its generation from one season to another. This does not relate to the technical feasibility of MRP to augment summer outflows to meet summer consumptive uses. Both witnesses agree with this.
[133] It was confirmed through cross-examination that the "upper bounds" are in respect ofa "worst case" scenario, because it is unlikely that all abstractions would access upstream ofall the power stations or all year round."
[134] We do not propose to discuss the sometimes conflicting evidence relating to the different modelling approaches used by the expert witnesses. They are underlain by multiple uncertainties that cannot easily be distilled. Therefore, we propose to use the upper bounds as set out in the table in the caucusing statement. We bear in mind that they are upper bounds, and in reality the loss of electricity generation is likely to be significantly less. For example, Mr Henderson, a witness for Mighty River Power, gave evidence of the results of his modelling the effects of potential water abstraction on the consequent potential annual loss of electricity generation from the Waikato Hydro System. His model used actual daily mean flows at each dam and the daily mean generation values over the period 1 July 1992 - 30 June 2008. Under his SW_EQ32 scenario at 5% of Q5 the long term average MW loss of the Waikato River Hydro Scheme, with variable monthly take for irrigation on irrigable areas, would be 1.584 MW or 14GWh/yr.
[135] We acknowledge that the "upper bound" figures for the Waikato Hydro Scheme need to be considered together with paragraph [11.3] of the caucusing statement. Flows below the minimum set at Karapiro will occur more often during prolonged dry
31 Woods, Cross-examination transcript at [26], lines 8 - 13; Collins, Cross-examination transcript at F068], lines 39 - 45 2 Henderson, EIC, Appendix 4, Scenario SW-EQ (water is extracted preferentially from surface water and irrigation is equally shared between catchment by flow) also Energy Caucusing Statement at [12]
50 conditions. This will have a constraining effect on the operations of both the Waikato Hydro Scheme and the Huntly Power Station.
[136] As for the Waikato Hydro Scheme, Dr Brown gave examples of when demand is not easily met in Figure 18 of his evidence-in-chief and Figure 2 of his additional rebuttal.
[137] Dr Keller modelled the generation loss at Huntly that could have occurred each year from 2000 - 2010, as a result offurther allocation above the Karapiro Dam. 33 This evidence was not contested. We discuss in some detail the effects ofreduced flow on the Huntly Power Station later in the decision.34 We put this in the mix of evidence to be weighted and balanced on this important issue.
Replacement ofLost Electricity Generation
[138] Any electricity generation that is lost will have to be replaced. There was a suggestion by Mr Daya-Winterbottom that any lost generation could be sourced from spare capacity in various co-generation plants, particularly Southdown. This was put to Mr Torrens ofthe Energy Efficiency and Conservation Authority and he respondedr"
... In the short term, ifthey do have spare capacity they may be able to replace lost generation. I would - so in the case of Southdown there obviously is spare capacity there because they do fluctuate up and down to meet dry years. I'm not quite sure ifthat would be the case for other co-generation plants because there is not enough of those particular plants.
[139] And in response to a question from the Court regarding the long-term situation, Mr Torrens repliedr"
... In the long term - so I guess what I am saying there that if you wanted to retain your security of supply margins to deal with adverse events impacting the electricity supply market, you are eventually going to have to replace any generation that is lost or any demand that is - any new demand that is brought onto the system. So in the long term you would have to replace - you would have to put on new generation. Yes, Iguess that's what I mean.
lJ Keller, EIC at [3.3] - [3.12] 34 In the sectionheaded "Issue 2(ii) Genesis - Increased priority for the Huntly PowerStation" 35 Transcript at 193 - 194 36 Transcript at 194
51 [140] In his rebuttal evidence, Mr Torrens concluded that lost generation from the Waikato Hydro System would only be partially able to be replaced by geothermal or wind generation, neither of which offers the same flexibility to respond to rapid changes in electricity demand.31 Furthermore, new generation is likely to cost more than the lost generation.• 38
[141] We therefore conclude, that in the long-term at least, any lost generation will have to be made up with new generation, part ofwhich is likely to be thermal generation.
The Importance ofElectricity
[142] Electricity is an essential non-substitutional commodity. New Zealand's economic and social well-being are inextricably dependent on a secure and cost-effective electricity supply system.
[143] Most of the electricity generation that occurs in the Waikato region is centred around the Waikato River catchment. The Waikato River's headwaters drain the central volcanic plateau. The river starts as small streams on the east side ofMt Ruapehu, These streams join the Tongariro River which is the largest tributary ofLake Taupo.
[144] The Waikato River flows out of Lake Taupo, is joined by the Waipa River at Ngaruawahia, and discharges into the Tasman Sea at Port Waikato. It drains a natural catchment of approximately 14,443 knr', The catchment also includes the diversion associated with the Tongariro Power Scheme, which adds another 654 km2 to the overall catchment, increasing the Waikato River flow by approximately 19% at the Taupo control gates.39
[145] The water is utilized in-stream for hydro-electric power and out of stream for geothermal and thermal power. By far the largest utilisation of in-stream use is for the Waikato Hydro Scheme operated by Mighty River Power. The scheme consists of eight dams and nine power stations operated in a closely integrated manner to maximise the
17 At [9) J8 At [7] J9 See Woods, meat [10) and following
52 value, in terms of electricity generation, to be gained from the available fall between the Taupo control gates and Lake Karapiro.
[146] The nine power stations together produced an average output for the financial years 2000 - 2007 of40,000 GWh.40
[147] Mighty River Power also operates a number of geothermal power stations which are owned and/or operated in conjunction with Maori land trusts, including Rotokawa, Nga Awa Purua, Mokai and Kawerau. It also operates a gas powered fire station at Southdown, Auckland.
[148] Within the Waikato region, Genesis generates electricity at the Huntly Power Station and key elements ofthe station comprise:
[a] Four (nominal) 250 MW coal or gas units (Units 1 - 4);
[b] One (nominal) 400 MW combined cycle gas unit (Unit 5); and
[c] One (nominal) 48 MW open cycle gas unit (Unit 6).
[149] In their evidence, Messrs Weir and Truesdale (both called by Genesis) explained the significant role of the Huntly Power Station as a demand load operator producing approximately 15.5% ofNew Zealand's installed generation capacity." The station has a strategic location and plays a significant role in the electricity system by providing a firm and controllable generating capacity, making important contributions to peak and general energy supply requirements.f It plays a valuable role in managing New Zealand's vulnerability to dry weather.
[150] Trustpower owns and operates a small scheme on the Hinemaia River, a tributary ofLake Taupo. The output ofapproximately 29.3 KW/h is for local supply.
40 See Hunter, ElC at [6.9] and Table 1 41 Weir, ElC at [6.2] 42 Weir, me at [6.8]- [6.28] and Truesdale, ErC at [71]- [74]
53 [151] Within the Waikato region, Contact Energy operates a number of power stations. It's facilities are principally geothermally-based. It operates the Wairakei Power Station, the Wairakei Binary Plant, the Poihipi Power Station, and the Te Huka Power Station on the Wairakei/Tauhara geothermal system near Taupo. The plants have a continuous output ofapproximately 230 MW. Contact also operates the Ohaaki Power Station on the Ohaaki geothermal field. It has a continuous output of approximately 43 MW. It owns and operates the Te Rapa Co-Generation Plant in association with Fonterra at the Te Rapa dairy factory. That plant generates around 41 MW of electricity. Collectively, Contact's geothermal power stations produce around 2,250 MW/year. Contact also holds resource consents to construct geothermal power stations at Te Mihi and Tauhara.
[152] Contact holds resource consents to take volumes of water for cooling and other plant purposes, and to discharge geothermal condensate back into the Waikato River. Overall, Contact is a net contributor of water volume to the Waikato River catchment, although the extent to which this is the case will reduce over time.
[153] The above synopsis clearly shows the importance of electricity generation to the region. As we have said, electricity is a vital resource to New Zealand. That this is so, is recognised by the strong directions in the Act relating to electricity generation, and in particular, renewable energy. These strong directions are complemented by equally strong directions in the relevant regional statutory instruments and particularly in the recent National Policy Statement for Renewable Energy.
[154] Variation 6, as first promulgated, contained provisions which recognised the importance of the Waikato River and the Waikato Hydro and Huntly Power Stations. The Council in its decision on Variation 6 also recognised the importance and national significance of both. It is in recognition of the importance of electricity generation that Variation 6 as proposed has settled the allocation ofwater above Karapiro at 3.6% ofQj.
[155] The strong policies proposed to support the electricity protection regime would effectively mean that no more water could be drawn for consumptive use above Karapiro, and if Genesis succeeds with their relief, above Huntly including within the Waipa catchment.
54 Mighty River Power's Resource Consents
[156] The current resource consents to enable Mighty River Power to operate the Waikato Hydro Scheme were granted in 2006 and came into force on 12 April 2006. The consents expire 35 years from their commencement. The central consent for the hydro operation is Consent 105227, which authorises the company:
To dam the Waikato River and divert and take water (including any energy or material included therein), from the Waikato River, for water level control, generation of hydro-electricity, and operation of the Waikatohydrosystem.
[157] The purpose ofthe consents is expressed in the following terms:
1.1 These consents authorise damming, diversion and discharge of the full available flow of the Waikato River.
[158] In his opening submissions, Mr Cowper, relying on Aorakr43 had this to say:
Itis respectfully submitted:
a) that the Waikato Hydro Scheme is an existing consented operation, to which regard must be had in the setting of the objectives, policies and rules in this Plan;
b) that the consents granted to the Waikato Hydro Scheme reflect the national importance of the river system for the generation of electricity from a renewable resource;
c) that it is not appropriate to derogate from the resource consents that are already granted to Mighty RiverPower forthe WaikatoHydro Scheme;
d) that it is important to maximise the achievable benefits of the existing infrastructure that is located within the river.
[159] We disagree with those aspects of the above quote that refer to the derogation from the resource consent that would occur if the relief sought by Wairakei Pastoral and the Agricultural Working Group were granted in whole or in part. We agree with Mr Milne and Mr Hassan, that Aorakl is distinguishable in that Mighty River Power's consent does not allocate a specific amount ofwater, as was the case in Aoraki.
43 Aorakl Water Trost v Meridian Energy, [2005] NZRMA 251
55 [160] We also agree with Mr Milne that the words "the full available flow of" means something less than "the fullflow of". The word "available" adds the qualification to the word "full", Such an interpretation is clearly consistent with the plain ordinary meaning ofthe words.
[161] Water is a public resource which the Act applies clear allocation restrictions and principles to. We are of the view that any exclusive take and use right should be clearly conferred by a consent in clear and unambiguous language within the parameters of an application.
[162] We accordingly find, that Mighty River Power's consents do not confer a right to a physical allocation of water in the sense of granting rights to defined maximum rates and quantities of water. Hence, increasing the allocable flow is not precluded by non derogation principles, nor by Section 34 of the Act.
The Importance ofAgriculture
[163] Just as the importance of electricity to New Zealand was accepted by the parties, so the importance ofagriculture, and in particular dairying, to the New Zealand economy at a local, regional, and national level, was accepted. We heard undisputed evidence to this effect. Mr Newland told us that currently dairying accounts for approximately 25% of New Zealand's total export earnings." The Waikato contains approximately 34.6% (3,653) of Fonterra supply farms'" and 29% (1.2m) of the total number of cows. In addition, a number of farms supply Tatua Dairy and Open Country Dairy, two independent processing companies in the Waikato.
[164] The Waikato suppliers to Fonterra produced 373 million kgs ofmilk solids in the drought affected 2009/20 I0, or 29% of total domestic production. At the payout level announced by Fonterra on 23 September 201046 this would introduce to the Waikato regional economy a farm-gate value of$2.47 billion.
44 Newland (employed by Fonterra and called by the Agricultural Working Group), EIe at [13] and following 45 Basedon Fonterra's supply figures whichaccounts for91% of New Zealand's dairy production 46 NZ $6.70/kg milk solids
56 [165] Using similar figures and other statistical data, Dr Layton expanded on the economic implications for the national, regional, and local economles.V This evidence was uncontested and underlays the importance of agriculture in general, and particularly dairying in the Waikato, to New Zealand's economic performance. Dr Layton, and indeed other witnesses, emphasised the flow-on effects of agriculture. This includes the economic activity involved in processing the raw material produced on farms, not to mention the other support industries involved in supplying transportation, financing, marketing, wholesaling and retailing.
[166] Dr Layton said, that the importance of water for agricultural products and processing.IS . 0 bvi VIOUS:48
[i] It is needed for grass and crops to grow;
[ii] It is essential for drinking water;
[iii] It is needed for washing down milking sheds, milking equipment, and dairy cows;
[iv] It is important for cooling milk; and
[v] It is essential for maintaining food hygiene.
[167] Mr Newland, Mr Bennett and Mr Houghton in their evidence, confirmed that water is critical to agriculture, and more specifically dairy production. It is necessary for stock to drink and for the hygienic collection and primary processing of milk and dairy products." It is also required for the growth ofthe feed that dairy cows consume. 50
47 Layton, (called by the Agricultural Working Group), EIC at [31]- [50] 48 Layton, mc at [51] 49 Newland, mc at [40] 50 Newland, EIC at [41]
57 Irrigation
[168] That water for irrigation can also produce a very significant increase in the output and returns from agricultural production was not contested. This was clearly illustrated in the evidence ofDr Rout, called by the Regional Council. Dr Rout told us, that based on a 2003 study of irrigation systems in the Reporoa area and taking into consideration changes in the payout and inflation in the intervening years, the marginal benefit of irrigation for dairying in the upper Waikato is typically of the order of $470 - $600 per hectare, depending on the type of irrigation system. For other irrigated crops, such as market gardening and with the use of spray-gun irrigators, generally the returns per unit area for vegetable crops are 2 - 3 times higher per unit area than for dairying.51
[169] Mr Newland, called by the Agricultural Working Group, told us that if dairy production is to be maintained at current levels within the Waikato region, some potential for growth in dairying land area would be required. 52 He told us that growth in agricultural production in the Waikato catchment would occur where the land was most suitable for it to occur, either due to physical or economic characteristics. He expected that most of the irrigation growth in the Waikato catchment is likely to occur in the area above the Karapiro Dam because of the significant irrigation responses obtained on the volcanic soils with low levels ofreadily available moisture.f
[170] He contrasted this with the Waikato catchment below Karapiro, which is mature dairying country and unlikely to respond to irrigation to the same extent as the volcanic land in the upper Waikato.
[171] In terms ofthe land above Karapiro, Mr Newland explained that there is 120,000 ha of suitable land where dairying could occur without irrigation in the Waikato River catchment between the Taupo control gates and Lake Karapiro. He explained that ofthis, some 9,000 ha would benefit from Irrigatlon." In his Appendix 4 to his evidence-in chief, Mr Newland provided a breakdown of what is sought by the Agricultural Working Group by way ofan increase in allocable flow above Karapiro.
Sl Rout, EIC at [10] and [12] 52 Newland, mc at [26] 53 Rebuttal at [26] and [54] 54 Rebuttal at [27] and [158]
58 [172] Mr Newland opined that when comparing the increase in value between potential water use below and above Karapiro, it is not simply a question of comparing irrigated dairying below and above Karapiro Dam. Consideration ofthe ability to provide for new dairying to occur is also relevant.55 The economic returns that will result from the conversion of existing forestry and dry-stock land above Karapiro to dairy production would be significantly greater than those associated with the irrigation of existing dairy farms below Karapiro, if there was such a demand. The opportunity for such conversions to occur below Karapiro simply does not exist in any significant way, as there are no large areas ofsuitable forestry (or other) land for conversiona."
[173] In essence therefore, keeping allocable flow above Karapiro at 3.6% ofQ, would in effect deny investment opportunity for the dairy sector in the upper Waikato catchment.
[174] Mr Cowper and Mr Milne both emphasised that water is needed below Karapiro for horticulture. They said that taking water above Karapiro will reduce the amount of water available for a potential increase in downstream abstraction for horticulture.
[175] We received no direct expert evidence as to the potential extent or likely location of any use of water for horticulture below Karapiro. Mr Balle confirmed in cross examination by Mr Cowper that the requirement for water in the stretch between Karapiro and the mouth of the river for the irrigation of land and crops by horticultural growers exists now and will be more so in the future. 57 That evidence was not challenged. However, there was no evidence before us as to the potential extent or likely location of any such future use for horticulture below Karapiro, or whether such need could be, or is, best met by surface or ground water.
The Economic Evidence
[176] It was in the context of the above background that we heard a considerable amount of expert economic evidence from six economists. Five prepared written evidence-in-chief and also lodged rebuttal evidence. One, Professor Sharp, called by the
55 Supplementary evidence at [13] 56 Supplementary evidence at [14] & [15] 57 Balle (called by Horticulture NZ), transcript at 1207, line 44 - 1208, line 29
59 Council, filed rebuttal evidence only, which consisted of comments on the evidence of the other five economic witnesses. All were cross-examined.
[177] There has been considerable debate about the extent ofthe relevance ofeconomic evidence under the Act. Economic evidence can cover a wide spectrum. It can address macro and micro economic considerations. It can address international, national, regional and local economic considerations. It can provide an in-depth cost/benefit analysis as to the use of alternative sites or methods, or as to doing or not doing something. These examples are by no means exhaustive.
[178] Clearly, the Act is concerned with economic effects. The term "environment' is defined in Section 2 ofthe Act as including:
environment includes- (a) ecosystems and their constituent parts. including people and communities; and (b) allnatural and physical resources; and (c) amenity values; and (d) the social. economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affectedbythose matters
(highlighling in italics added]
[179] It follows from this definition that the social, economic, aesthetic, and cultural conditions which affect people and communities are relevant for the purposes of Section 5(2)(c) and Section I04(l)(a) ofthe Act. In addition, Section 5(2) ofthe Act refers to the management of;
(2) ... resources in a way... which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety ... while meeting the three constraints set out in (a), (b) and (C).58
rd 58 SeeEnvironmental and Resource Management Law, 3 edition, Derek Nolan,at[3.29]
60 [180] Economic considerations are also relevant to some of the statutory directions set out in the Act and, with respect to policy statements and plans, in the First Schedule. For example, the efficient use of natural and physical resources has an economic component. Economic efficiency may in appropriate cases be a factor in Sections 29, 32, and 108 of the Act.
[181] Thus, there can be no doubt that the Act includes economic considerations. But the manner in which such considerations are to be taken into account is sometimes complex and depends on the nature ofeach individual case. Economics is just one of the various threads discernable in the Act which contributes to the attainment of sustainable management.
[182] In the present case, we were confronted with a large amount of economic evidence. Its complexity was compounded by the fact that different methodologies were employed and there was no consensus as to the appropriate base data. While the witnesses caucused as directed, the caucus statement identified relatively few points on which the witnesses agreed, nor did it set out succinctly the areas ofdisagreement and the reasons why.
[183] A further problem was that the economic expert witnesses addressed their respective client's briefs. The briefs were not the same. For example, Dr Layton's instructions were: 59
... to provide evidence on the role of agriculture in the Waikato economy and its contribution to the wider NewZealand economy and the importance of water to agriculture. I have also been asked to provide evidence on whether elements of the Waikato Regional Council's (the Regional Council's) decision on Variation 6 to the proposed Waikato Regional Pian (Variation 6), which relates to water allocation, will promoteeconomic inefficiency.
[184] By contrast, Mr Murray's instructions includedr"
1.14 In Section Four of my evidence I assess the effects of an alternative allocation objective relative to the Regional Council's allocation objective using the criteria established by Part 2 of the RMA. I provide quantitative estimates andlor qualitative descriptions of these relative effects.
"Layton, EIC at [5] 60 Murray (called by Mighty River Power), EIC at [1.14]
61 [185] If economic evidence is to assist the Court, the issues to be addressed have to be clearly identified, either by agreement between the parties or the economic experts. The economists should then meet to endeavour to determine the appropriate economic methods or approaches which should be applied when addressing the identified issues. This reflects the Code ofPractice. 61
[186] As the key issue of contention addressed in the evidence is the use of available water for agricultural production as opposed to existing electricity generation, the economic experts tended to address one or both ofthese and the end uses. Both ofthese end uses have significant economic value.
62 [187] Dr Layton , called by the Agricultural Working Group, provided estimates that agriculture contributes approximately 17% to New Zealand's GOP. As a percentage of merchandisable exports, agriculture is shown to account for approximately 50%; the contribution of dairy products is in the order of 14% - 21%. The Waikato region is the most significant region for agriculture in New Zealand with nearly 32% of New Zealand's dairy output coming from the Waikato region. Dr Layton concluded that the high value of water and agricultural uses should be recognised and, accordingly, amendments should be made to the Policy Statement and Rules in Variation 6 to reflect this.
63 [188] Dr Wheeler , called by the Municipal Users Group, highlighted the significance ofwater allocation in respect of electricity generation, noting that Mighty River Power's facilities generate 22% of New Zealand's peak electricity demand. He also opined that the social and economic structure in the Waikato region is dominated by the presence and growth rates of the primary sector and urban population. The result of this is that it is important that the Variation sets ground rules which facilitate efficient use for a wide variety ofheterogeneous and rapidly changing uses ofwater.i"
61 Code of Practice 5.6.2 which requires expert witnesses during caucusing to identify the issues that are agreed between them and to identify the issues upon which they cannot agree and the reasons for their disagreement. 62 Layton, EIC at [35] 63 Wheeler, mc at [3.18] 64 Wheeler, mc at [2.13]
62 [189] He noted that the growth and performance of the primary sector is inextricably linked to urban and rural population clusters and their sound social and economic development, given that they are suppliers oflabour and numerous intermediate inputs to primary sector economic activity. Thus, the obligations of municipal authorities to provide services, including supply of water, are in this sense an obligation generated by the primary sector.65
[190] The key conclusion to be drawn from Dr Wheeler's analysis is that the GDP contribution of urban areas in the region is large (at 41%) and well ahead of agriculture (13%) and energy (12%). Thus, at the very least, rural and urban economies are co mingled and interdependent, and comparisons ofthe economic value ofunits ofwater for rural and urban uses must take these factors into account.
[191] Both Mr Murray, called by Mighty River Power, and Professor Evans, called by Wairakei Pastoral, undertook a more narrow economic approach. They undertook a cost/benefit analysis ofallocating some ofthe water in the Waikato River above Karapiro to hydro-electricity generation compared with allocating it to irrigation for dairying. Mr Murray in his evidence-in-chiefestimated that the annual quantifiable cost in a mean year of taking up to 10% ofQ5 during the irrigation season, to provide for a potential increase in irrigation in the Waikato catchment above Karapiro, is $900,000.66
[192] Professor Evans in his evidence-in-chief estimated that after taking into account the effects of environmental externalities, the net present benefit to New Zealand as a whole of applying one additional cumec of water from the upper Waikato River to irrigated dairying instead ofelectricity generation, is $44.5m.67
[193] According to Dr Sharp, the analysis presented by Mr Murray, and which is based on 10% of Q5 being taken for consumptive use above Karapiro, will be sufficient to irrigate 45,900 ha, provided water is taken just for the irrigation season." Dr Sharp scaled up Professor Evans' scenario (lm3/s irrigating an additional 4,320 ha) to 10% of Q5 and concluded that this would be sufficient to irrigate an additional 40,920 ha ofland.
65 Wheeler, EIC at [2.17] 66 Murray, EIC at [4.84] 67 Evans, EtC, at [5.16] saSharp, EIC, at [35]
63 Thus, for comparison purposes, the land/water relationship in Professor Evan's scenario is within approximately 10% ofthat assessed in Mr Murray's analysis. Notwithstanding, the conclusions ofMr Murray and Professor Evans are in considerable conflict with one another.
[194] Dr Sharp analysed in some detail and produced a table'" comparing the two cost/benefit analyses. We reproduce that table here:
Table 2: Comparison of Cost Benefit Analyses
Dr Evans MrMurray
Increase instocking rate 0.36 cows/ha 0040 cows/ha
Milk price $5.58/kgMS $5.58/kgMS $6.10/kgMS
Productiondisplaced below Karapiro Notincluded $14m/year
Carbon price NZ$25 NZ$19A6
Change in GHG emissions Included Included
External costs of dairy $35/ha Discussed
Electricity lost (per m'ls)25 6.95GWh 3.58GWh
Annual cost of replacing electricity lost $0.55m/year $0.36m/year
(per m'/s)26
Present value of net benefits $44.5m
Present value of net benefitslhectare $10,292
Present value of net benefits/m' $2.86
[195] This table highlights the similarities and differences between their economic assessments. The most striking difference is the inclusion of the value of production displaced below Karapiro and the calculated economic benefits that attach to this displaced production. The production displaced, valued at $14m arises as a result of a presumed lost opportunity to use the water downstream of Karapiro for irrigation for
69 Table 2 at 14
64 horticulture which Mr Murray, on the evidence ofDr Rout, attaches a weight of7% over dairying.
[196] Mr Murray, relying on the evidence of Mr Male, maintained that demand for irrigation downstream is likely to arise in the future." We have already commented on the lack of direct evidence in this regard. The timing of any such demand, if any, is hypothetical. Whether there is in fact a future demand for downstream irrigation for horticulture is dependent on a number of variables, including the potential irrigation area and the relative prices and costs associated with the irrigation area. If in fact there is a demand for consumptive use upstream earlier in time than there is demand for water downstream, there would be no opportunity cost in allocating that water for upstream consumptive use until water became scarce downstream. This was not factored by Mr Murray into his calculations."
[197] Mr Murray attempted to draw many ofthe matters contained in Part 2 of the Act into his cost/benefit analysis - matters that could not be quantified and require a qualitative judgment. Such an approach tends to simplify these matters. Matters on which we had extensive evidence and cross-examination.
Evaluatlon ofCost/Benefit Analysis
[198] The extensive evidence that addressed this issue contained much criticism and counter-criticism regarding the inclusion or failure to include various matters. We heard a lot of evidence and counter-evidence on the numerical estimates that each witness applied to derive their various costs and benefits. We also heard extensive evidence on the correct methodology that should be applied, such as whether figures should be fixed as endpoint values or discounted.
[199] It is just not possible for us to determine with any certainty that one cost/benefit analysis should be preferred over another. The assessment of such modelling includes a number offactors that need to be evaluated including:
10 Murray, Ere, at [4.70]- [4.76] 71 Evans, rebuttal at [3.70]
65 [a] The context and framing - this includes the methodologies applied and the range of factors to incorporate into the analysis, and specific prediction choices;
[b] The uncertainties - there are always uncertainties about inputs that drive a cost/benefit assessment. This includes uncertainties about such factors as the amount, if any, of downstream irrigation displaced by consumptive takes upstream at Karapiro;
[c] The structure - the model structure needs to reflect reality and where different structures or methodologies are used, this increases uncertainty.
[200] Because there are so many variables that underlay the economic analysis, there can be no absolute answer. To this extent the economic evidence has its limitations. To enwrap issues, that rely to a large extent on human rationality, within fixed mathematic formulae, is confounded by the many variables that human rationality gives rise to. Further, a slight change to anyone of the variables could give rise to dramatically different results.
[201] The cost/benefit analysis gives us an insight into the potential economic effects of displacing hydro generation with water for dairy irrigation above Karapiro. At the very worst, the net annual cost arrived at by Mr Murray is, in our view, not significant and it would take only a modest increase in the price ofdairy products to turn the cost into a net annual benefit.72
[202] More importantly, the cost/benefit analysis was too narrowly construed. The analysis addresses the taking of water for irrigation for dairying as against the use ofthat water for hydro-electricity generation. Whereas, the real issue is whether all ofthe water above 3.6% of Q, above Karapiro should be effectively locked up for use in electricity generation, thus not allowing parties proposing alternative uses to be considered. The question is whether this is consistent with promoting the management of natural and physical resources in a way that enables economic well-being in accordance with the single purpose of the Act - sustainable management. Economics is just one of the
72 See Layton, rebuttal at [29]
66 threads discernable in the Act which contribute to the attainment of sustainable management.
[203] Further, the cost/benefit analysis did not take account of the contribution that agriculture, and in particular, dairying, makes to the regional economy - a matter we have already addressed. The economists accepted that any increase or decrease of dairy production would have flow-on social and economic effects. These have not been quantified in any costlbenefit analysis.
Evaluation ofIssue 2(1) - Allocable Flow above Karapiro
[204] The part of the relief sought to provide for a secondary allocable flow above Karapiro is effectively a challenge to the objective from which the policies and rules which give statutory protection to electricity generation cascade. This is Objective 3.3.2(b) which states:
3.3.2 Objective
(b) No further allocation ofwaterthat exceeds the primary allocation in Table 3-5 that reduces the generation of electricity from renewable energy sources
[205] This strong objective is carried on in the policies under Section 3.3.3 Policy lei) which provides that the benefits derived from the use of water for, or directly associated with, the generation ofelectricity from renewable energy sources, are one matter that is to be given particular regard to in establishing and reviewing allocable and minimum flows. The primary allocable flow has been set at 3.6% of Q5 to protect the level of hydro electricity generation presently occurring.
[206] Policies 8(c) and 9(s) provide specific guidance to decision-makers on the potential adverse effects oftakes on renewable energy generation.
[207] The only relief sought to the strong policy direction was a suggested change to Objective (b) - by adding the words "and secondary" after the words "primary" and the deletion of the following sentence from Policy IAfe):
67 In reality, the Waikato Hydro Scheme uses all water remaining in the river (i.e. after any water that is authorised to be taken from within the primary allocable flow has been abstracted) to generate electricity in a renewable manner.
[208] Apart from a reference by Mr Willis in his supplementary evidencev' to the effect that the above sentence, being descriptive, was far removed from policy; we heard no evidence why we should make such a dramatic change to the strong policy provisions. Nor did we hear submissions directly on point.
[209] Section 32 of the Act requires that the objective be the most appropriate way to achieve the purposes of the Act and that the policies are the most appropriate way to achieve the objectives. The Council underpinned its strong protectionism policy on the strong statutory directions relating to climate change and renewable energy.
[210] No substantial reason was advanced why we should weaken the strength of the objective. Subject to one caveat, we endorse the Council's position. The caveat relates to the quantum ofthe primary allocation above Karapiro.
[211] The fundamental question for us is where within the range of 3.6% and 7% the most appropriate balance lies. The issue was put in Mr Milne's opening as "electricity vs dairying". This was because the proponents arguing this contentious matter were the electricity generators on the one hand, and those with interests in dairy production on the other.
[212] As a consequence, the focus was where the most appropriate balance lies between the competing Section 5 values pertaining to the socio-economic well-being of the regional and national communities, with respect to the relative value of water used for electricity and dairying. The evidence and submissions tended to focus on where the intersection points are between these competing Section 5 values, and this assumed that the outcome must be a choice of winner 01' loser. Such an approach eschews the well established approach we should adopt when applying Section 5 and the guiding matters of the remaining sections in Part 2. This involves an overall broad judgment of what would best promote the sustainable management of natural and physical resources. This
7J Willis, supplementary evidence at [48]
68 allows for the balancing of competing considerations in terms of their relative sigm. ifi icance, 7.
[213] Section 5 of the Act requires natural and physical resources to be managed "in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being". In so doing, we must be guided by a number of relevant matters set out in Section 7 ofthe Act which require us to have particular regard to:
7 Other matters
(b) the efficient use and developmentof naturaland physical resources: (c) the maintenance and enhancement ofamenity values:
(I) maintenance and enhancement ofthe quality ofthe environment: (g) any finite characteristicsof naturaland physical resources:
(i) the effects ofclimatechange: 0) the benefits to be derived from the use and development of renewable energy.
[214] In this case there are some inherent tensions as between these factors. Each of these factors need to be assessed in the context of Section 5 of the Act - managing the resource to enable communities to provide for their social and economic well-being, This underpins Proposed Objective (ac) of Variation 6 which ensures the efficient allocation and the efficient use ofwater. "Efficient allocation" is defined in the Variation as:
Efficient allocation ... includeseconomic, technical and dynamic efficiency,
[215] We acknowledge the importance ofelectricity to New Zealand. We acknowledge the strong statutory directions that emphasise the importance of renewable energy and effects of climate change. We also acknowledge the strong directions contained in the relevant statutory instruments, particularly the National Policy Statement on Renewable Energy. However, to effectively lockup the entire variable flow above 3.6% of Os in the
14 Trio Holdings v Marlborough Dlstrlct Council, WI 03A196 (PT)
69 Waikato River between the Taupo control gates and Lake Karapiro for electricity generation, would not give effect to Section 5 ofthe Act. The 3.6% is close to being fully allocated. Once it is allocated, no water would be effectively available for any consumptive use. We are satisfied, after a careful consideration of the evidence, and a balancing ofthe relevant statutory directions, that this would not be an efficient use ofthe resource.
[216] Agriculture, particularly dairying, is an important industry and providing for its future growth can only be of benefit to the social and economic well-being ofthe region and to New Zealand. This is clear from the evidence to which we have already averred and which is uncontested. There are some undesirable consequential effects of agriculture, particularly dairying, such as nutrient run-off to our waterways. We received little, ifany, direct evidence on this. This is a matter which needs to be addressed by the industry itself, and in other parts of the Plan - perhaps with more enthusiasm. Nevertheless, it is a matter we put into the mix for our consideration.
[217] We note that the growth and performance of the primary sector is inextricably linked to rural and population clusters and their sound social and economic development. It is important that the Variation sets ground rules which facilitate efficient use for a wide variety of heterogeneous and changing users ofwater.
[218] We are of the view that more water should be made available for future consumptive uses that could be of benefit to the social and economic wellbeing of the community. Such uses should not have to go through a contested non-complying activity process that would have to overcome a high bar created by the protectionist policies designed to protect electricity generation.
[219] Overall, on balance, we find that some more water should be made available for consumptive use in the upper Waikato catchment. We are conscious that this is contrary to the Council's decision. In the Council decision report" the Hearings Committee concluded that:
15 Proposed Waikato Regional Plan, Variation 6.- Water Allocation Hearings Committee Report Volume I, Part B Substantive Decision on Principle Issues, Section 11.10
70 (k) As important as the primary sector is to the New Zealand economy, taking RMA Part 2 considerations into account, the existing electricity generators on the Waikato River (both the hydro system and HPS) shouldretain the priority accorded to them in the Variation.
[220] After careful consideration of that decision, we feel compelled, by weighing the evidence we have heard and balancing the relevant statutory directions to come to a different conclusion. We now consider the appropriate extent ofthe increase.
Fixing the Allocable Flow above Karapiro
[221] Wairakei Pastoral seeks:
[a] An increased allocable flow from 3.6% of Q, to 4.5% ofQ, to provide for pasture irrigation; and
[b] A further 0.08% of Os (i.e. 4.58% of Qs) to provide for animal water usage.
[222] The Agricultural Working Group seeks:
[a] An increase in the primary allocable flow to 4% ofQ, to enable room for new dairy investment through non-irrigated conversion; and
[b] An adjustment to provide a secondary allocable flow of3% ofQs for other consumptive uses.
[223] We consider that fixing a secondary allocable flow would not be appropriate for achieving the objective - a matter we have earlier averred to. We consider that setting a primary allocable flow at 7% of Qs would be going too far. According to the "upper bound" figure, agreed to in the hydrologists' caucusing statement, this would result in approximately 2.7% of lost production in mean annual generation from the Waikato Hydro Scheme, or a loss of approximately 108 GWhlyear.
[224] We consider an appropriate balance would be met by increasing the primary allocable flow to 5% of Qs. This would enable a quantity of water for a variety of other uses, including dairy investment for non-irrigation, together with some for irrigation. S~f\L--"~OF~ ~~Y0sJ?i\ r-r q: 71 ~~l;~J/\~?
""<1 J COL\VI\ ~:.",,"{' ..... ,"-.....,~._",_,d"- Setting the allocable flow at 5% of Qs would result, according to the "upper bound", in a I% loss of generation of 40 GWhlyear from the Waikato Hydro Scheme. Overall this provides for a more efficient use of this important resource. It still provides strong protection to the electricity industry for all the available water above the 5% of Qs. However, it also provides a quantity of water for other users and it does not completely lock-up the resource.
[225] The Maori appellants all supported the 3.6% of Qs at Karapiro, as increasing the limit would do nothing to realise and protect the relationship of iwi with the river in accordance with Objectives (b) and (c) of the Vision and Strategy. Setting the primary allocable flow at 5% of Qs will not impact on the Vision and Strategy. Such a figure would leave more than an adequate volume of water in the river to ensure that the objectives ofthe Vision and Strategy are not compromised.
Issue 2(ii) Genesis - Increasedpriorityfor the Huntly Power Station
[226] Genesis sought a suite of amendments to ensure that no more water was allocated from the Waikato River downstream of Karapiro Dam to the Huntly Power Station mixing zone. These amendments were designed to avoid further constraints on the operations of the Power Station and effectively give it greater recognition, or priority, under the Variation.
Allocable Flow from Karapiro to Huntly Power Station
[227] Genesis sought that the allocable flows between Karapiro and the Huntly Power Station be set to a percentage of Qs at Huntly that equates to the current level of authorisation. Mr Majurey submitted that this was necessary to protect the long standing nationally important resource and to properly implement the National Policy Statement on Freshwater Management.
[228] This relief was modified to recognise the future water takes sought by the municipal authorities. Genesis and the Municipal Users Group had agreed, in a Joint Memorandum, to an allocation regime with defined parameters for demonstrated future urban growth, but involving specified volumetric caps for "industrial-type" takes.
72 [229] Under Variation 6 the primary allocable flow between Karapiro and Huntly is set at 10% of Qs or 17.68m3/s. The current level of allocation at this point is 9.5I5m3/s. This leaves a remainder of 8.175m 3/s before the primary allocation is fully utilised." At Karapiro, ifthe primary allocable flow is set at 5% ofQs or 7.400m3/s and the combined consumptive allocation at this point is 5.293m 3/s, this would leave 2.107m3/s to be allocated above Karapiro. However, when this 2.l07m3/s is fully allocated above Karapiro it will reduce the current availability of8.175m3/s at Huntly to 6.068m3/s77
[230] In response to questions from the Court, Dr Brown advised that if allocation is restricted to current levels ofallocation as proposed in the Joint Memorandum ofCounsel for Genesis and the Municipal Users Group dated 6 May 2011, this would have the effect ofreducing the allocable flow from 10% ofQ, or l7.69m3/s to current levels ofallocation i.e. 5.38% ofQ, or 9.515m3/s in this reach of river." Furthermore, in addition to limiting allocation from the Waikato River, it would mean that up to 3.343m 3/s would no longer be potentially available for allocation from the Waipa River, based on current allocation data as at 3 May 20II. In effect, this would mean that there could not be any further allocation from the Waipa River.79
[231] Mr Newland, expert witness for the Agricultural Working Group, considered there was very little demand for irrigation for dairying in this part of the Waikato catchment. He said current forecasts for dairying showed limited or nil growth with increasing land lise change from dairying to lifestyle blocks and horticultural activities. Mr Newland also advised that none ofthe three Fonterra processing plants in this part of the Waikato catchment is forecast to require more water than is currently provided by their consents.
[232] Despite this lack ofdemand from the dairying sector, Counsel for the Agricultural Working Group confirmed that they opposed Genesis' relief. This was on the basis that it was not necessary to protect the rights conferred on the Huntly Power Station through its existing consents; nor was it desirable to promote sustainable management; and it will prevent any further allocation from within the Waipa catchment.
76 Brown, Supplementary Evidence, 20 May 2011, at [6] and Table 1 77 The Q5 flows inthisparagraph have not beennaturalised. 78 Brown, Supplementary Evidence, 20 May 2011, at [11] and Figure 4 79 Brown, Supplementary EvIdence, 20 May 2011, at [11] - [12]
73 [233) Horticulture NZ's witnesses confirmed that there already exists a requirement below Karapiro for water for crop irrigation and that this will increase in the future. However the evidence did not specify whether this requirement was likely to be from above the Huntly Power Station.
[234) Mr Berry submitted for Municipal Users Group, that while the Joint Memorandum agreement between the Users Group and Genesis retained a restricted discretionary activity status for new municipal takes on the Waikato River, it had subsequently become clear that reducing the primary allocable flow as sought by Genesis would mean that any new municipal takes from the Waipa River would become discretionary activities immediately. Mr Berry confirmed that in light of the agreement reached, the Users Group did not support, but no longer opposed the Genesis relief. The reason the Users Group did not support the Genesis approach was because it was concerned that there would be "knock on" effects for other potential users in that part of the catchment.
[235) The Regional Council opposed the reduction in the primary allocable flow sought by Genesis and maintained the position expressed by the Hearings Committee. In summary, the decision stated that the Huntly Power Station was not afforded the same recognition under the Act as renewable energy generation (c.f. Section 70), and that the Station has options available to mitigate against the adverse effects of reduced cooling capacity from future allocation, if that were to occur. The Hearing Committee further noted that the Station operators could submit on resource consent applications for future takes as an affected party. Mr Milne, for the Council, submitted that the Variation 6 provisions are an appropriate means of recognising the important role played by the Huntly Power Station.
[236) As we have said, the Huntly Power Station is situated on the left (western) bank of the Waikato River, near the town of Huntly. It comprises four (nominal) 250MW coal-or-gas units (Units 1 - 4), one (nominal) 400MW gas fired combined cycle gas turbine (Unit 5) and a (nominal) 48 MW open cycle gas unit (Unit 6). The Power Station represents approximately 15.5% ofNew Zealand's installed generation capacity.
[237) The Station utilises water from the Waikato River for condenser cooling. A more recently constructed cooling tower allows for 150MW of generation without the use of river water. This is used in periods oflow river flows or high ambient temperatures when
74 -!) .? generation would otherwise be restricted under consent conditions. Units 5 and 6 have minor requirements for water from the Waikato River for cooling purposes. Units I - 4 are the most important in respect of Variation 6. These four units, if they are in service, have good short term flexibility and they also provide frequency keeping, voltage support and instantaneous reserve services.
[238] Since 2005 Units I - 4 have provided on average 10.9% of New Zealand's total electricity generation, and since being commissioned in 2007, Unit 5 has provided 6.5% of the total generation on average. Annual output from the Station is variable. The total generation in 2008 and 2009 was approximately 7,400GWh and 6,000GWh, respectively. Units I - 4 generated 4,375GWh in 2008 (a dry year), and 3,055 GWh in 2009 (a wet year).80 The generation from Units 1-4 has reduced since the commissioning ofUnit 5.
[239] The Station draws up to 40m3!s of cooling water from the river when generating at full capacity and the majority (98%) ofthat water is discharged back to the river at an elevated temperature, typically 8.60C above ambient river temperature. This warmer water forms a thermal plume downstream. The discharge of the cooling water is regulated by a number of resource consent conditions, the most important being that the maximum temperature against the left bank I km downstream of the outfall structure must not exceed 250C.8\
[240] Generation is essentially unconstrained by flow or temperature between May and November. In general, further abstractions from the river during these months would not impact on the Station's operations. During the December to April period generation is constrained as the river warms and cools during the day and this varies from year to year in response to both flow and temperature. The evidence of Dr Keller, for Genesis, was that during periods of constrained generation due to river temperature, even small changes in flow can have a significant impact on generation.f
[241] Dr Keller modelled the effect of upstream abstractions of water on the Station's generation capacity. His analysis was based on actual real-time river flow and temperature data and generation data at 10 minute intervals for each of eleven summers
80 Weir, EIC, at [6.4]- [6.6] and Figure 3 81 Environment Waikato Consents 9308830 (take) and 930881 (discharge) "KellerEIC, at [2.13]- [2.14]
15 from 1999-2000 to 2009-2010. He presented results showing the loss oftotal generation capacity with and without the cooling tower for upstream abstractions of I, 5 and 8m3/s. The analysis showed that the computed lost generation varies significantly from year to year in direct response to the ability of the river to assimilate heat from the cooling water discharge.
[242] For an assumed abstraction of 8m3/s, the predicted generation losses without the cooling tower averaged 74.387GWh over the eleven year period. Losses ranged from 23.195GWh in the summer of 2003-2004 to 221.128GWh in the summer of 2007-2008. Using less conservative parameters in the analysis, the annual generation loss could be as high as 308.93IGWh.83
[243] Comparative generation losses with the cooling tower operating continuously at optimal performance averaged 27.217GWh over the eleven year period. Losses ranged from 7.268GWh in the summer of 2000-2001 to 99.177GWh in the summer of 2007 2008. Using less conservative parameters in the analysis, the annual generation loss could be as high as 149.360GWh.84
[244] According to Dr Keller, significant losses can also occur on a day to day basis, especially when generation is constrained by high river temperatures and/or low river flows. For an upstream abstraction of 8m3/s, 0.641GWh would have been lost over a 24hr period on 9 February 2005 and 2.745GWh on 4 February 2008, regardless of whether or not the cooling tower was operating on those days. On both of these days generation was constrained to less than 0.750GWh throughout the day. Dr Keller said it is for this reason that the operation of the cooling tower does not influence the effect of an upstream abstraction of 8m3/s on generation loss.85
[245] According to Mr Truesdale, for Genesis, from an electricity supply perspective the important issue is that further restrictions on Huntly generation will need to be replaced with alternative generation that would otherwise not be required. He emphasised
83 Keller, Ere, at[5.2]. DrKellerexpressed his results in MWh, for consistency whencomparing losses we have converted MWh 10GWh by dividing by 1,000 ... Keller, ErC, at [5.3] as Keller, ErC, at [5.5]
76 the significance of the Huntly Station's contribution of flexible and controllable generation.
[246] Mr Weir advised that Genesis had altered its earlier plans to 'retire' two of Units I to 4, and instead providing the option to temporarily 'store' units and return them to the market as and when the need arises.
[247] Mr Cox, for the Agricultural Working Group, considered that allocating a further small proportion of water to agricultural use would result in a minor amount of lost generation that could be readily and economically replaced with alternative forms of renewable energy. Commenting on Mr Weir's evidence of the annual generation from the Station from 1991 to 2009, Mr Cox noted a sharp decline in the use of Units I to 4 from 2006 when the new, and more efficient, Units 5 and 6 came into service.
[248] The output of Units I to 4 declined from just under 6000GWh in 2005 and 2006, to just over 4000GWh in 2007 and 2008, and declined further to 3000GWh in 2009. Mr Cox considered that Units I to 4 had reached their design life and by current standards are very inefficient, expensive to operate and high producers of CO2 emissions. He considered it reasonable to expect that Units 5 and 6 would provide the majority of generation from the Station in future. He considered that the generation figure assumed by Dr Keller in his modelling did not accord with the future operational scenario for Units I to 4 outlined by Mr Weir, or with the generation trends since 2006 when Units 5 and 6 were commissioned.
[249] Mr Cox accepted that Units 5 and 6 playa significant role in supplying electricity, but as these Units are not affected by the Waikato River flows, levels and temperature, he did not understand how these Units would be constrained by increased abstraction. Mr Cox was of the view that the increased abstraction proposed by the Agricultural Working Group would have little or no impact on the Huntly Power Station's future role in the national electricity system.
[250] Variation 6 recognises the need for cooling water to be available to the Huntly Power Station through a suite ofprovisions, including Objective 3.3.2(ca):
The continued availability of water for cooling of the Huntly Power Station
77 The explanation to the objective states that:
Part (ca) acknowledges the importance of the Huntly Power Station to the national electricity supply system. and foreshadows making the renewal of the existing cooling watertake a controlled activity.
Policy 3(c)(ia) and Rule 3.3.4.l3A then provide for taking up to O.7m3/s for cooling water for the Station as a controlled activity.
[251] Genesis' request to limit the allocable flow to the current allocation level is aimed at ensuring that the Station's operations are not restricted to any extent beyond that currently occurring. However, it would mean that no more water could be allocated from that stretch of the Waikato River, except for the specific recognition for municipal supplies, and also no further allocation for any uses from the Waipa River.
[252] As with the evaluation of the disputed allocable flow regime above Karapiro, the Genesis request brings into focus the objectives of the Variation and the extent to which they are the most appropriate way to achieve the purpose of the Act. To give effect to Genesis' reliefwould require Objective 3.3.2 to be amended to give greater priority to the operations of the Huntly Power Station (part (ca)) and to "trump" or further reduce the weight to be given to future uses to meet other social, economic and cultural needs (Part (e)).
[253] We find that such an amendment would not be appropriate. We have found that the allocable flow above Karapiro should be increased in order to provide some water for future uses other than electricity from renewable energy sources. For the same reasons, we find that all remaining available water in the Waikato and Waipa catchments should not be locked up - thus disenabling any future consumptive uses. We find that the Council's version of the objectives is the most appropriate to achieve the purpose of the Act and that the policies and rules which set the allocable flow between Karapiro and the Huntly Power Station at 10% of Os are the most appropriate for achieving those objectives.
78 6.3 ISSUE 3 Policies
Issue 3(i) Adverse Effects vs SignificantAdverse Effects - Policy 1(d)
[254] Policy I sets out matters that particular regard must be had to for establishing and reviewing allocable and minimum flows for surface waler bodies. The decisions version ofthe Variation included the following wording for Policy led):
(d) In-stream ecological values and biodiversity are not adversely affected
[255] Addressing the wording of Policy led) Mr van Voorthuysen in his evidence-in chief slaled:86
141. With regard to Trust Power and King Country Energy, I agree that Policy 1(d) is worded in rather absolute terms. It would prevent any adverse effects on in-stream ecological values and blo-diversity, which in my opinion Is unworkable from a practical perspective. In my opinion it would be preferable to require adverse effects to be avoided where reasonably practicable, and otherwise remedied or mitigated.
[256] Mr van Voorthuysen recommended the Council amend Policy I (d), which the Council has agreed to as follows:
(d) The avoidance of significant adverse effects on in-stream ecological values and bio-diversity and the remediation or mitigation of adverse effects otherwise.
[257] The Director-General of Conservation seeks to retain the wording from the decisions version.
[258] Under cross-examination by counsel for the Director-General, Mr van Voorthuysen stated:87
... if the wording of the policy is such that any effects are to be avoided, in my view that precludes the decision-maker from considering the application on its merits. All effects must be avoided. There is no discussion of minor effects or significant effects or remediation, mitigation, simply the avoidance of those effects. That precludes the decision-maker exercising their discretion in my view.
86 Voorthuysen, EIC, at [141] 87 Voorthuysen, Transcript, 29 March 2011, page540
79 [259] We agree with Mr van Voorthuysen's view. To adopt the wording sought by the Director-General's representatives would be impracticable. It would preclude the exercise of the decision-maker's discretion. We note that the wording now proposed reflects the wording ofpolicy ll(b) ofthe New Zealand Coastal Policy Statement dealing with indigenous biodiversity generally, which states:
(b) Avoid significant adverse effects and avoid, remedy or mitigate other adverse effects ofactivities on:
Issue 3(ii) Should the provisions relating to protection of electricity be more generic? Policy IA(e) and consequentialprovisions
[260] Wairarapa Moana seeks that Policy lAfe) - which fixes the primary allocable flow at Karapiro for the protection of electricity - be amended to refer to protecting electricity generation from the Waikato River, rather than referring to the Waikato Hydro Scheme or the Huntly Power Station, and that this alteration should be made throughout the Variation. 88 No reasons were given for this request. Importantly, no planning evidence was called to support such a change.
[261] The Council was opposed to this request. As Mr Milne pointed out, the primary allocable flow at Karapiro was set specifically to protect the existing electricity generation from the Waikato Hydro Scheme and the Huntly Power Station.
[262] We can see no reason for changing the provisions, and the relief is denied.
Issue 3(iii) Should there be a new standalone policy espousing the importance of renewable energy generation? Proposed Policy 3A
[263] Mighty River Power seeks the insertion of a new Policy 3A titled "The Importance of Renewable Energy Generation." The proposed wording is set out in the evidence-in-chief ofMr Collins:89
Polley 3A- the importance of renewable energy generation
80 To restrict takes from the Waikato River catchment (beyond specified allocable flows) which limit the amount of water that would otherwise be available for electricity generation from renewable energy, except to the extent necessary to provide for reasonable domestic and municipal needs.
[264] The rationale for the wording is concisely set out in paragraphs [6.1] to [6.9] of Mr Cowper's submissions on behalf of Mighty River Power. Mr Cowper submitted rightly, that it is a foundation of best planning practice to ensure that provisions in a planning document "cascade" from issues to objectives then to policies, and lastly, rules. It was his submission that, while the importance ofelectricity is referenced in the issue," and the objective" and in policy 8 which sets out assessment criteria;" there is no specific policy which implements the objective. Policy 8, which sets out the assessment criteria, does not provide sufficient guidance for decision-makers when assessing discretionary or non-complying activities.
[265] The respondent opposes the insertion of Policy 3A. We agree for the following reasons:
[a] In the overall context of the 8 August 20II version, the protection of the existing generation capacity of the Waikato Hydro-Scheme is adequately provided for by:
• First, the setting of the primary allocable flow above Karapiro as a percentage of Q5 in Table 3-5 and Policy 9A, which states:
Policy 9A: Non-complying activities within the Waikato River Catchment above Huntly and Karapiro (Implements Objectives 3.1.2 and 3.3.2(b) and (call
Generally, non-complying activity applications for surface water takes within the Waikato River catchment upstream of the HPS mixing zone shall not be granted unless the take: (a) Is a zero net take; or (ab) Replaces a consented take for an activity listed in Policy 11(a)(v); or
90 3.3.l(ba) 91 3.3.2(b) 92 Policy 8(c)
81 (b) Achieves a higher level of renewable electricity generation within the Waikato River catchment than would otherwise be achieved were the consent declined; or (c) Is located between the Karapiro Dam and the HPS mixing zone but would not adversely affect electricity generation from the Huntly Power Station.
Our earlier determination to increase the allocable flow above Karapiro to enable further water for other users does not affect the strong policy protection for electricity generation as Policy 9A and the supporting policies will still apply to all the water above 5% of o,
• The suggested Policy 3A is unnecessary and its inclusion is contrary to the overall scheme of the variation. Other users of water given favourable consideration in Objective 3.3.2 (such as domestic or municipal supply takes, or the Huntly Power Station cooling water take) do not have stand-alone Policies that support their case as would Policy 3A for the Waikato Hydro-Scheme. If proposed Policy 3A was inserted into the variation, then it would be arguably necessary to insert similar policies for domestic or municipal supply takes, the Huntly Power Station cooling water take, existing dairy shed takes, existing s14(3)(b) takes and existing takes for industry or agriculture.
Issue 3(iv) Municipal Supply Takes - Agricultural and Industrial Takes over 15m3/d Policy 4
[266] Because of the unique nature and importance of territorial local authorities with respect to the provision of community water supply services, Variation 6 has afforded priority to them. This is recognised in Objective 3.3.2(ab):
The recognition of the significant community benefits that derive from domestic or municipal supply takes
[267] Providing priority to domestic or municipal supply was supported in principle by all parties. However, some parties challenged the scope of the take that should enjoy such a priority. Concern was raised by a number of appellants about the industrial or
82 agricultural component in excess of 15m3/d. Including such takes as part of the municipal take, would, they say, result in them being treated differently to similar activities outside ofa municipal supply system.
[268] This concern was based on the different activity status that would apply to such takes. The preferential status for new agricultural and industrial takes within a municipal supply arrangement means that such takes would be assessed as a discretionary activity. A stand-alone industrial and agricultural take would be assessed as a non complying activity. This, it was said, would be inequitable.
[269] Mighty River Power suggested adding to the current Policy 4 - How Surface Water Takes Will be Classified - Takes for Domestic and Municipal Supply, the following:
Classifying as a non-complying activity any new component of a surface water take for domestic or municipal supply, that is for the purposes of industry or agriculture and is in excess of 15m' per single industrial user or agricultural property per day and when assessed in combination with all other authorised water takes exceeds the combined primary and secondary allocable flow in Table 3-5.
They sought a consequential amendment to Standard 3.3.4.21(a).
[270] Mr Berry, for the Municipal Users Group, emphasised the management difficulties and costs associated with such an approach as set out in the rebuttal evidence for the Group. He pointed out that to address the equity concern, Policy 4 of the Variation now requires all applications for a municipal supply take to be accompanied with a Water Management Plan, otherwise it is to be classified as a non-complying activity.
[271] We are satisfied that the concerns of Mighty River Power are adequately addressed for the following reasons:
[i] The Water Management Plan provisions require municipal supply authorities to identify and justify each component of a municipal take,
83 including agricultural and industrial needs.93 The Management Plan also requires specific identification of industrial and agricultural users which use over l5m3/d.94 Thus, any large users which a municipal supply authority seeks to supply, will be clearly identifiable and the justification for that component ofthe take will be the subject of particular focus, both by the regional council and competing users;
[ii] Any application by a municipal supply authority to supply a 15m3/d plus user in an over-allocated catchment, which forms part of a municipal supply application as a whole, or as an individual application specific to that user, will be a discretionary activity." Thus, the application could be granted or declined, having regard to its effects and the relevant objectives and policies ofthe Plan;
[iii] The objectives and policies of the Plan require consideration of the benefits of municipal supply, but the municipal supply take must be "reasonablyjustijied',;96
[iv] The objectives and policies recognise the importance of existing takes'" and require consideration of the effects of a new municipal take on existing users." The objectives and policies of the Plan also recognise the importance of electricity generation, particularly renewable electricity generatlon."
[272] Also of concern was the different status of 15m3/d plus takes during times of water shortage. We agree with the Municipal Users Group's submission that appropriate reductions during water shortages can be achieved via the Drought Management Plan which must include:100
OJ Rule 8.1.2.2.2 as proposed to amend Chapter 8.1 ofthe Plan 94 Rule 8.1.2.2.15 as proposed to amend Chapter 8.1 ofthe Plan 95 Rule 3.3.16 96 Objective 3.3.2(a) and Policy 8(b) 97 Objective 3.3.2(ba) 98 Policy 8(cb) and (h) 99 Objective 3.3.2(b) and Policy 8(c) 100 Rule 8.1.2.2.9(a) as proposed to amend Chapter 8.1 ofthe Plan
84 Steps to be taken to reduce consumption during water shortage conditions. including those uses that will be restricted at the same time as priority SW-B users (in accordance with Policy 14 and Standard 3.3.4.21) and steps to be taken to implement those restrictions.
And:
Targets for the water savings expected to be achieved via the restriction of activities identified in (a) above. which shall align as closely as possible to the restrictions for SW-B users provided for in Standard 3.3.4.21.' 01
Issue 3(v) Volumetric CapsfOJ' Agricultural and Industrial Municipal Takes - Policy 4 andRule 3.3.4.20
[273] Genesis and the Municipal Users Group entered into an agreement which inter aI ia· provi id e d f lor: 102
(a) A per application cap of 3.000m3/d (not including "backpack water") for municipal takes for the purposes of industry and agriculture; and
(b) A cap of 15.000m3/d on municipal takes for the purposes of industry and agriculture which uses more than 15m3/d (not including "backpack water"). over a 10 year period. At the end of 10 years. the "meter" is "re set" to zero.
[274] It was agreed that those takes would be calculated on a net take basis, excluding from the take the volume ofwater that is to be:
[a] Discharged to either a municipal or industrial wastewater system; and
[b] Returned to either the source water body or an upstream tributary.
[275] The proposed volumetric caps were part of a number of provisions that had been agreed to between Genesis and the Municipal Users Group. The remaining provisions are reflected in the Variation as now proposed, with the exception of the agreed volumetric caps on the water for industrial and agricultural purposes.
101 Rule 8.1.2.2.9(aa) 102 Joint memorandum of counsel forWRMUG and GenesisEnergy, 6 May2011
85 [276] Mr van Voorthuysen agreed during the planners' "hot-tub" session that given the agreement between the Municipal Users Group and Genesis, it would be appropriate for the volumetric cap regime to be included in Variation 6. However, Mr Berry, for the Municipal Users Group, also discussed the agreement in his closing submissions. He said that the Municipal Users Group acceptance of the caps was conditional, and it would require the reinstatement of the distinction ofthe "15m3/d plus" takes in the reach of the lower Waikato River between Karapiro and Huntly.l'" That would require some complicated redrafting of the policies and rules which had not been undertaken either by the Municipal Users Group or Genesis.
[277] As Mr Milne pointed out, the volumetric caps would apply to domestic or municipal supply takes that exceeded the primary allocable flow (there is no secondary allocable flow in that reach of the river) and those takes are discretionary activltles.l'" Such applications would, in any event, be assessed on their individual merits against the provisions ofthe Variation, including the need to consider potential adverse effects on the Huntly Power Station.l'" Furthermore, reinstating the Karapiro to Huntly caps for domestic and municipal supply takes would create a complicated regime that applied to only a small part of the region. That regime would be one for which there is no readily discernible management need. The only rationale for the reinstatement would be the fact that a side agreement to that effect exists between the Municipal Users Group and Genesis.
[278] We consider that to grant the Genesis relief, would be solely to further protect the generational capacity ofthe Huntly Power Station. We have discussed what we consider to be the appropriate level of protection elsewhere in this decision. We consider the provisions as they stand do provide adequate protection. While the power companies sought an increase in the level of protection provided for in the provisions of the Variation (and which substantially improves their present position), allowing such an increase would be to the detriment of the enabling provisions of the Act. Increasing protection would further reduce the ability for consumptive uses. As Mr Milne pointed out, applications for consumptive uses would still have to satisfy the current strong provisions that are designed to protect electricity generation.
103 Berry, Closing Submissions, at [5.23] 104 Rule 3.3.4.16(6) 105 Policy 8(c)
86 Issue 3(vi) Secondary Allocable Flow and Waikato River tributaries above Karapiro Table 3-5 andPolicy 4
[279] Mighty River Power was concerned that Table 3-5 provides for secondary allocable flows in the tributaries of the Waikato River above Karapiro. Mr Cowper submitted that it is not possible to allocate water from these secondary allocable flows when the availability of water is also constrained by the primary allocable flow at Karapiro Dam. Mighty River Power considered that including secondary allocation on tributaries of the Waikato River above Karapiro Dam would create an unrealistic expectation that there is water physically available if the primary allocable flow is reached. There would be no physical water available to be allocated.
[280] Mr Cowper's concerns may not be quite so pertinent now that we have fixed the primary allocable flow at 5% ofQ,. However, when the primary allocable flow has been fully allocated, Mr Cowper's concerns would possibly be activated.
[281] For the council, Mr Milne told us that the Council does not agree with such a proposal. He pointed out that the proposed inclusion of Policy IB (determining the combined level of surface water allocation within a catchment) also ensures that any allocation within a tributary cannot occur without also determining the combined allocation at the point of take and at each affected downstream reach. As a result, no allocation can occur on a tributary above Karapiro Dam without also assessing the allocation level at Karapiro Dam.
[282] Mr Milne also pointed out that many existing users extract water from tributaries and the amounts authorised often exceed the primary allocable flow for that particular tributary. Allowing the allocation on these tributaries to include a secondary allocable flow, while remaining collectively within the primary allocable flow at Karapiro, ensures that existing consents are provided for within the Table 3-5 allocation limit. This would not prejudice Mighty River Power.
[283] The consequence of not providing the secondary allocation on the tributaries would be that any new abstractions which exceeded the primary allocable flow on the tributary would then be classified as a non-complying activity and most likely declined based on Policy 9A. This would occur even though their combined abstraction is less than the primary allocable flow at Karapiro Dam.
87 [284] For the reasons set out by Mr Milne, we endorse the Council's position.
Issue 3(vii) Priority for Drought Intolerant Crops in Time ofShortage - Policy 14 and Standard 3.3.4.21
[285] Horticulture NZ sought to have takes for horticultural crops restricted less often at times of low flows (namely when the Table 3-5 minimum flows are reached) and Policy 14 (levels of priority to apply during water shortages) and Standard 3.3.4.21 (how water shortage restrictions shall apply) apply. It sought to have horticultural crops classified with SW-B restrictions in Policy 14 and Standard 3.3.4.21. In Standard 3.3.4.21, SW-B takes are restricted last after all other authorised consumptive takes and the level of abstraction reduction required is very small, being only 15% ofthe authorised rate oftake rather than 75%.
[286] Horticulture NZ provided a suggested list of crops that would be included in a new definition of "drought intolerant crops" and takes servicing those crops would be classified as SW-B. [06 However, the Council considered the list of crops to be very broad. So broad in fact, that the majority of horticulturalists in the Waikato region grow vegetables on the list. This would mean that the definition of"drought intolerant crops" would have widespread application. Under cross-examination Mr Barber agreed that:!07
... the list that you have proposed in paragraph 4 covers the predominant horticultural crops for the Waikato Region.
[287] Mr Milne submitted that the purpose for water take restrictions during droughts is to reduce the taking of water when stream flows reach their Table 3-5 minimum flow. If more abstractors are classified with SW-B priority compared with SW-C or SW-D, then there is less ability to reduce abstractions. This in turn will result in the Table 3-5 minimum flows being reached more often and the streams will sit at those minimum flow levels for longer.
106 Barber, Supplementary Evidence, 15 April 2011 at [4] 101 Barber} Transcript, page 1224 lines 1 ~ 3
88 [288] Stream flows may also reduce below the minimum levels as flows naturally decrease in the drought, resulting in the more frequent occurrence ofextremely low flows that would otherwise only occur rarely.
[289] Mr Barber agreed with questions put to him in cross-examination, that in catchments where horticultural surface water takes account for a large portion of the overall volume ofwater abstracted, such as occurs at Pukekohe (Whakapipi and Tutaenui Streams), elevating horticultural takes to SW-B priority would effectively result in no low flow restrictions for these streams - as SW-B takes need only reduce abstraction by 15% of the total authorised. This in turn means that the water body would not be protected, circumventing the purpose ofsetting minimum flows during low flow restrictions.
[290] Mr Barber agreed with the following propositions: 108
Now, ifwe have the situation where all of the takes in a sub-catchment are for horticulture, and all of the crops grown are within your paragraph 4, then in fact there would be no effective water restriction, would there?
And the outcome then would be that the water body would not be protected because it would fall belowthe minimum flows.
[291] Unfortunately, Horticulture NZ has provided no analysis of the impact the
proposal would have on flows in any streams in the region. 110
[292] The agricultural expert caucusing statement recorded agreement that horticultural
crops are more sensitive to droughts than pasture, III but there was disagreement amongst the experts as to whether or not the horticultural crops needed a special priority during times oflow flow.
[293] Horticultural takes currently have SW-C priority under Policy 14, That means that abstractions are only partially restricted during low flows and do not have to cease in
lOS Barber, Cross-examination, Transcript atpage 1225 lines 16 - 19 109 Barber, Cross-examination, Transcript atpage 1225 lines23 - 24 110 Barber, Cross-examination, Transcript atpage 1224 line 11 III Agricultural Caucusing Stalement, page 6 at [11] 4f\~. /;0/'--OF;;,,''Tf' 89 b-P, •... :.. \~,.)" . S.! ((?;·i·':/~·.{i\ 1~~~ \ (." 1\,',"" ) .. J) \;~t~~;,;.c nu.,:,\,;j,;~,,~:/ their entirety. Under Standard 3.3.4.21, SW-C reduce by 50% ten days after the minimum flow is reached, and by 75% seventeen days after the minimum flow is reached. However, this is not the base assumption behind the Horticulture NZ analysis of Mr Barber. Mr Barber agreed that his Figures 4 & 5112 overstate the effect of the restrictions proposed in Standard 3.3.4.21 for horticultural irrigation consents with SW-C restrictions. Under cross-examination he agreed with the following propositions: 113
In your supplementary evidence dated 21 February 2011, the restriction scenarios in Figures4 and 5 are not based on the SW-C restrictions as provided for inVariation 6 are they?
And in terms of the Variation 6 restrictions, for horticuilural consents, allocated within the primary allocation, they wouldn't cease as demonstrated in your Figures4 and 5 would they?
[294] In the agricultural experts' caucusing statement there was general agreement that Variation 6 sets out other methods for achieving increased abstraction reliability for horticultural takes; including trading (relying on the transfer provisions), water user groups, water harvesting and seasonal allocations within the primary and secondary allocations. There was agreement that there is a need for reliability and flexibility of horticultural water takes and of the sensitivity of some crops to water stress. But there was disagreement this warranted a high level of priority during restrictions at times of shortage1l5
[295] Mr Keenan, a resource management consultant called by Horticulture NZ, agreed that the use of Policy 17 and Method 3.3.4.3 could provide for horticultural takes during times oflow flow restrictions. He stated he could: 116
Support the mechanism of horticulturai users working together voluntarily to ensure that of the water available to them, water is made available to the highest
112 Supplementary Evidence, 21 February 2011, Figure 4 at page 6 and Figure 5 at page 7 III Transcript, page 1227 lines 43 - 45 114 Transcript, page 1228 lines 5 . 7 lIS Agricultural Caucusing Statement - Preliminary Statement of Matters in Agreement and Disagreement Regarding Agriculture, at [4], [5], and [12] 116 Keenan, Transcript page 1238 iine 40 - 44
90 value or the most water sensitive crops, as they see fit, without breaching the minimum fiows inthe water bodiesfrom which wateris abstracted.
Just qualify my answer by cautioning that enough water is available among the users within the group and that the mix of rotational systems is appropriate to enable that to take place.
[296] We acknowledge the difficulty that horticulturalists have with regard to drought intolerant crops. However, to introduce a new definition that would result in horticultural takes being assigned SW-B priority under Policy 14 would fail to address over-allocation. To do so would have the potential to cause adverse stream effects, as streams would be held at or below their Table 3-5 minimum flows more frequently and for longer periods oftime.
[297] We agree with the Council, that mechanisms already exist within Variation 6 for horticulturalists to collectively provide for themselves a higher reliable water supply at times oflow flow.
Issue 3(viii) Consent Application Assessment Criteria - Surface Water and GroundwaterPolicies 8 and 9
[298] Policy 8 contains a list of assessment criteria that decision makers are to have particular regard to when considering resource consent applications. Mr Milne, in closing, submissions, stated that Wairakei Pastoral had consistently sought deletion of some or all Clauses (a) to (t) from Policy 8 and referred to Ms Hardy's evidence-in-chief (dated IS October 20 II) and rebuttal (dated 13 December 2011). The Council strongly opposed deleting the Policy 8 matters.!" However this relief was not included in the II May 2011 Statement of Issues, nor in Mr Daya-Winterbottom's closing submissions for Wairakei Pastoral. As a matter ofcaution we address the issue.
[299] Earlier submissions and evidence for Wairakei Pastoral indicated that they did challenge both Policies 8 and 9 (Consent Application Assessment Criteria - Surface
II? Keenan, Transcript page 1239 lines 1 - 3 118 Milne, Closing Submissions, at [308]
91 Water and Groundwater, respectively) on jurisdictional grounds and on the basis that they were inappropriately drafted as policies, preferring that the detailed contents be redrafted as rules or other methods. They proposed replacement policies ofa general wording.
[300] While we agree that Policies 8 and 9 list assessment criteria more usually found in rules and methods, this matter did not appear to remain alive as a concern at the end of the hearing. The variation document has been developed with numerous cross references to these policies, and all parties appear to have understood and accepted that structure. At this stage of what has been a lengthy process, we are reluctant to restructure the document. To do so would be impractical and would result in numerous consequential amendments. We find that in general terms Policies 8 and 9 should remain, although the content of the sub-clauses may be the subject ofseparate determinations in this decision.
[301] Generally, the policies as proposed by the Council are the most appropriate for achieving the objective ofthe Plan.
Issue 3(i:.:) Restricting takes otherwise available to electricity generation - Policies 8(c) and 9(s)
[302] Policies 8 and 9 contain lists of assessment criteria that decision makers are to have particular regard to when considering resource consent applications to take surface water and groundwater, respectively. Policies 8(c) and 9(s) relate to the effect of proposed takes on renewable electricity generation or the cooling of the Huntly Power Station. Policy 8(c) as proposed by the Council states:
Policy 8: Consent Application Assessment Criteria - Surface Water
(c) Restricting takes which reduce the amount of water that would otherwise be available for renewable electricity generation or be used for cooling of the Huntly Power Station, including in particular any takes from the Waikato River catchment upstream of the HPS mixing zone that when assessed in combination with all other authorised water takes would exceed 100% of the primary allocable flows in Table 3-5
92 [303] Mr Newfield, called by Carter Holt Harvey, raised a concern about the meaning of Policy 8(c). It could be interpreted to mean that takes within the primary allocable flow would be restricted.t'"
[304] Genesis also had a concern about the clarity of the wording and as part of their relief seeking to prevent the allocation of any further water sought to amend these policies by adding to Policy 8(c) the words in Clause (ii) to read: 120
Restricting takes which reduce the amount of water available for renewable electricity generation or be used for cooling of the Huntly Power Station. including in particular any takes from the Waikato River catchment upstream of the HPS mixing zone that when assessed in combination with all other authorised water takes:
(i) would exceed 100% of the primary allocable flows in Table 3-5; or
(ii) in any event, wouldincrease the total allocationof water from the reach of the Waikato River between the HPS mixing zone and Karapiro.
[305] As for the additional words in (ii), consistent with our earlier findings to refuse the request to limit the allocable flow to current levels, we also refuse to grant this aspect ofthe relief sought by Genesis.
[306] As for the concerns about the clarity ofmeaning, Mr Milne submitted that the first part of the provision had general application to situations both above and below the allocable flow. He submitted that the latter part, following the word "including", is a single example, albeit an important one in the context ofthe Variation.
[307] If the intent and purpose of the first part of Policy 8(c) is as Mr Milne suggests then it would be inconsistent with Objective 3.3.2(b) which states:
(b) Nofurther allocation of water that exceeds the primaryallocation in Table 3-5 that reduces the generation of electricity from renewable energy sources.
93 [308] Our understanding of the Variation, and as stated in the Principle Reasons for Adopting the Objective, is that:
The purpose of Part (b) is to ensure that any reduction In electricity generation from renewable energy sources is confined to that resulting from takes falling within the allocable flow.
[309] To be consistent with the Objective, the beginning of Policy 8(c) should be amended to say:
(c) Restricting takes that exceed the primary allocation in Table 3-5 and which reduce ...
[310] Raukawa and Te Arawa considered that Policies 8(c) and 9(s) be limited to recognising existing renewable energy or Huntly Power Station cooling needs. They were concerned that as written the policies could affect all applications as any takes could adversely affect future energy generation or cooling needs. Although noting that it was not clear what was meant by "existing", the Council did not support narrowing the provisions. Mr Milne submitted that the potential adverse effects of takes on any future renewable electricity generation scheme, that is consented during the life of the Plan, should be evaluated and weighed by decision-makers at the time and that in general any reduction in the renewable energy generation potential of consented schemes should be avoided.
[311] Having noted that any consented schemes would be part of the "existing environment" which must be used to evaluate the effects of future take application, Mr Milne did agree, by reference to established case law, that decision-makers should not be asked to speculate on the effects of future takes on as yet unconsented future renewable energy generation schemes. If the Court found it desirable Mr Milne submitted that the Council would support an amendment to read:
Restricting takes which reduce the amount of water that would otherwise be available for consented renewable electricity generation or be used forcooling ...
Mighty River Power opposed this amendment.
[312] We agree with Mr Milne that the provisions should not be limited to recognising effects only on renewable electricity projects that existed at the threshold date of 2008.
94 To do so would be inconsistent with the recognition given to renewable energy generation under the Act and in the objectives and policies of this Variation (including Objective 3.3.2(b) and Policy lei). Secondly, it is now well settled what amounts to the existing environment and the extent to which the future environment, and hence speculative or unconsented projects, can be taken into account when considering resource consent applications. 121
Issue 3(x) Management ofGroundwater - Policy 9(sa)
[313] Policy 9 is headed Consent Application Assessment Criteria - Groundwater. Policy 9(sa) provides for the nature of hydraulic connection (if any) between the groundwater resource from which water is proposed to be taken and surface water bodies, to generally be assessed on a case-by-case basis. It then provides for a number of situations where the nature of the hydraulic connection does not need to be assessed. Both Mighty River Power and Wairarapa Moana had issues with Policy 9(sa).
[314] Mighty River Power proposed two amendments, one of which was accepted by the Council. The other amendment was not supported by the Council. This was to add to Clause (iii) the words "provided that this clause shall not apply in the Waikato catchment upstream ofthe Karapiro Dam".122
[315] Clause (iii) states:
The nature of hydraulic connection does not need to be assessed and the groundwatertake need not be assessed against Policy 8 or Policy 9(s) where: (iii) The physical separation between the surface water body(s) and the underlying groundwater table is large enough to ensure that ifthere was a lowering of the groundwater table from pumping this would not impact the surface water body (as calculated for streams using the Advisory Noteat the end ofthis Policy); or ...
Except in the circumstances described under (v) to (ix) above, the nature of hydraulic connection shall always be assessed for groundwatertakes within the Waikato River catchment upstream of the Karapiro Dam unless a Table 3-6 Sustainable Yield has been set for the groundwater resource from which the groundwater take is to occur.
121 Milne, Closing Submissions, at [138] 122 Mighty River Power, Closing Submissions, at [13.8]
95 [316] In our view the addition proposed by Mighty River Power is unnecessary because Clause (iii) only applies above Karapiro if a sustainable yield has been set for the groundwater resource from which the groundwater take is to occur. This is because of the wording later in the provision. In this situation the sustainable yield would be set at a level to ensure there is no impact on the surface water body from groundwater takes. When a sustainable yield has been set, there is no need for an applicant to provide their own assessment ofthe hydraulic connection.
[3I7] This approach was supported by all the groundwater hydrologists in the caucusing statement where:
All the witnesses agree that where managementlevelsor sustainableyields have been set these should adequately provide the relevant information to enable an assessment of the interception loss. Inthis situation an applicant would not need to provide theirownseparate analysisin Policy 5(h).'23
[318] Wairarapa Moana had substantial issues with Policy 9(sa). Counsel submitted that the Variation results in groundwater takes above Karapiro having to "require additional assessment".
[319] Counsel for Wairarapa Moana asserted that a site-by-site assessment has the following drawbacks:
1. The testing cannot be undertaken until the expense ofdrilling the well has been incurred;
2. There is uncertainty around as to how extensive and conclusive the evidence needs to be; and
3. Ifany more than a minor relationship with surface water as identified, then consent is unlikely to be granted.
[320] As for I above, Council is seeking to sustainably manage a resource that is concealed beneath the ground. Drilling a hole is the only means by wh ich it can be assessed. The expense of drilling is unavoidable because unless it is undertaken, the
123 Second hydrology Caucusing Statement at [13]
96 decision-maker is not in a position to conclude that the requested take would not have a significant adverse effect on surface water users.
[321] As for 2 above, the required evidence involves the application of experienced professional judgment by a hydrologist to data obtained from one or more bores. Such is an everyday task for a hydrologist.
[322] As for 3 above, the conclusion that a minor relationship with surface water, if identified, would result in the consent being unlikely to be granted, does not follow. For example, if there is a partial effect only on surface water, then it may be feasible to mitigate that effect. Such an evaluation needs to be made on the facts ofa particular case.
[323] Counsel for Wairarapa Moana further submitted that the catchment investigation into sustainable yields, which under Table 3-4A is scheduled for 2017, should be brought forward to 2012. There was no evidence produced, nor was it suggested, that the criteria for reviewing sustainable yields under Method 3.3.4.7 have been triggered, or that there is demonstrated high demand for groundwater in a fully allocated catchment. More importantly, the timing of such an investigation is a financial decision for the respondent alone. That decision has to be taken in accordance with the relevant provisions of the Local Government Act 2002 as it requires an application ofpublic funds.
[324] In support of their concerns about the assessment of groundwater takes above Karapiro, Wairarapa Moana sought a number of detailed wording amendments. Their submissions were not supported by any technical or planning evidence. We briefly discuss the relief sought in their three amendments:
(1) Amend policy 2(eb) ... to read "the loss of benefits derived from the generation from electricity that can result from ground water takes above Karapiro if there is a significant linkage between ground water and surface water flows. This assessment shall recognise that ground water lakes may be a mechanism to access water in summer as part of the winter surface water allocation and/or may allow more water to be utilised than is lost from the surface water body".
[325] Policy 2 is designed to guide the setting of sustainable yields from groundwater. It would be inappropriate to qualify Policy 2(eb) by the introduction of a significant threshold when there is no evidential basis for the delineation of such a threshold in the
97 context ofsustainable yields. Further, other clauses of Policy 2 already provide for other factors to be considered when establishing sustainable yields
(2) Amend policy 9(sa) (second paragraph) as follows:
Where a the case by case assessment demonstrates that there is a hydraulic connection and the assessed maximum surfaced water body depletion and interception loss (in cubic metres per day) catculated for the term of the consent exceeds 20% of the groundwater take 16 subls met...s per da}' then the Waikato Regional Council 8haII will assess the nature and extent of the effect of the groundwater take on surface water bodies having particular regard to the relevant parts of Poticy 8. When considering apptications in the Waikato Catchment. policies retating to hydro-generation or thermal cooling will be balanced against: • The extent to which groundwater that otherwise would not be available will be utilised; • Promoting access to water that does not have a direct effect on summer water low flows. • Mitigating orminimising the extent to which there is an impact on summer water flows.
[326] This change involving the replacement of "15 cubic metres per day" with a percentage threshold in Policy 9(sa), namely "20% of the groundwater take", is not supported by the evidence. Dr Brown opposes the use of percentage thresholds, and he stated)24
[16] I consider these thresholds are not appropriate as they do not consider the allocation state of the surface water body. This conclusion is also reached by PDP in their reporl ...
[327] Counsel for Wairarapa Moana did not call on any evidence disputing Dr Brown's opinion.
[328] The three bullet points as suggested to be added to Policy 9(sa) seek to insert decision-making criteria into what is a technical policy that determines whether or not there is a need to have regard to the criteria in Policy 8 when considering groundwater takes. This is inappropriate. No planning evidence was called supporting such a change and nor was the suggested wording put to any of the other planning witnesses during
124 Brown, Supplementary Evidence, 16May 201 l, at [16]
98 cross-examination. We consider that Policies 8 & 9 already provide sufficient guidance to enable any appropriate balancing to be undertaken,
(3) Delete Policy 9(s)
[329] Again, counsel for Wairarapa Moana provided no evidential rationale for deleting Policy 9(s) which is one of the key provisions required to achieve Objective 3.3.2(b) & (ca). The relief is denied.
Issue 3(xi) Should there be policies directing decision-makers to generally not grant non-complying activity consents for tile taking of surface water unless certain circumstances apply? Policies 9A and 9B
[330] Policies 9A and 9B provide strong guidance to decision-makers, directing them to generally not grant non-complying activity resource consent applications for the taking of surface water unless certain circumstances apply. Non-complying activity applications are addressed by Rule 3.3 .4.20 of the Variation and generally these are surface water take applications that will breach the primary and secondary allocable flows set in Table 3-5.
[331] The rationale for policies 9A and 9B was set out in the evidence of Mr van Voorthuysen. He stated: 125
92. New policies 9A and 98 are intended to give effect to the amended objective 3.3.2(b). They are drafted in such a way that, in my opinion, decision-makers are left in no doubt that non-complying activity applications within the Huntly Power Station outfall (which includes, of course, the Waikato River upstream of the Karapiro Dam) are not to be granted unless they achieve the higher ievel of electricity generation than wouldotherwise be achieved ifthe application was declined. This type of approach is based on the non-derogation of existing electricity generation capacity, whilst allowing fleXibility for the more efficient or innovative use of water for electricity generation purposes.
[332] It has been argued by some of the parties that Policies 9A and 9B are effectively prohibited activities. For example, Ms Hardy for Wairakei Pastoral stated: 126
125 van Voorthuysen, EtC, at [92] 126 Hardy, Rebuttal, at [98]
99 98. In my view, Policies 9A and 98 effectively make all activities apart from existing and future electricity generation prohibited activities.
[333] Counsel for Wairakei Pastoral, Mr Daya-Winterbottom, submitted that Policies 9A and 9B contain standards and terms and the Act does not provide for that to occur for non-complying activities. We can see no justification for such a submission. The word
"Policy" is not defined in the Act. The dictionary definition relevantly says: 127
A course or principle of action adopted or proposed by a government, party, business, or individual etc.
[334] We have not been referred to any provision in the Act which limits the dictionary meaning ofthe word - a meaning which is not limited in any way in its application.
[335] The Court of Appeal in Auckland Regional Council v North Shore City COllncUl 2S found that a "policy" was "a course of action," and as such may be either flexible or inflexible, broad or narrow. It rejected the contention that a policy cannot include something highly specific (in that case a direction to territorial authorities).
[336] We find that the wording of Policies 9A and 9B does no more than make a direction to decision-makers, being one of the policies that a decision-maker must have regard to when considering an application for a non complying resource consent.
[337] Mr Daya-Winterbottom also submitted that the policies amounted to fixed rules, thus abdicating the council's discretionary power. For reasons given by Mr Milne we reject this proposition also. Firstly, both Policies 9A and 9B commence with the word "generally." "Generally" is relevantly defined in the Concise Oxford Dictionary as:
1. Usually; in most cases 2. In a general sense; without regard to particulars or exceptions... ; 3. Forthe most part extensively...; 4. Inmost respects....
127ConciseOxford Dictionary 128 [t995]3NZLR 18; [1995] NZRMA 424 (CA)
!OO [338] It is commonly understood that the word provides guidance to decision-makers that the policy should not be blindly applied in a blanket fashion to all consent applications. The strength ofPolicies 9A and 9B in such that the starting presumption is appropriately against the grant of non-complying activities, but each case must be assessed on its individual merits based on the evidence presented to the decision-maker at the time.
[339] Policies 9A and 9B both guide decision-makers considering non-complying consent applications. Under Section 104(1)(b)(vi) of the Act, decision-makers need only "have regard to" the provisions contained in regional plans, which include Policies 9A and 9B. They do not have to "recognise andprovidefor," "have particular regard to," or "give effect" to the policy. It is quite open for the decision-maker to afford less weight to some policies than others when evaluating an application.
[340] The strong guidance provided by Policies 9A and 9B creates an appropriate balance in the context of the Variation, having regard to our decision to increase the primary allocable flow above Karapiro.
Issue 3(.yii) Should Dairy Farms be Exempt from General Rules that Water Take Consents befor 15 years? Policy l1(a)(v)
[341] Policy I I(a)(v) as presently included in the Variation relevantly reads:
a) Subject to Policy 15 the Waikato Regional Council will generally ensure that all resource consents for the take of surface and groundwater shall have a term no longer than 15 years except those consents;
v) for large scale, capital intensive industrial facilities such as mines, dairy factories, pulp mills and water harvesting infrastructure.
[342] The May 2011 Planners Caucusing Statement records that all parties other than Wairakei Pastoral are in agreement with the present wording. Wairakei Pastoral considers that in relation to Policy Il(a)(v) ".... further amendments are required to provide for large scale dairying activities." Mr Daya-Winterbottom submitted that
101 amending the Policy in this way would allow resource consents to be granted for dairying for a term exceeding IS years in appropriate cases. 129
[343] The Council did not accept that Policy II(a)(v) should be amended to include "large scale dairying activities." Mr Milne submitted that there are significant differences between large scale dairy farms and the sort of large scale industry already referred to in Policy I I(a)(v). Dairy farms each use only a fraction of the water used by large scale industry on a daily basis, but cumulatively they account for a large volume of water within discrete catchments. Often the dairy farm takes occur from small tributaries for which no detailed environmental assessments have been done. This differs from takes for large scale industry where, in almost all cases, detailed investigations ofthe effects of those individual takes has occurred, thereby justifying longer term consent durations.
[344] Mr Milne also emphasised that many ofthe existing dairy shed takes are actually unauthorised (in that they exceed the permitted activity take limits) and many of them occur in currently over-allocated catchments. Council considers that a tight regulatory control is required on dairy shed takes as they are progressively authorised for the first time or as existing consents are renewed. This is particularly so in over-allocated catchments where it is necessary to ensure that appropriate mitigation is imposed to counter the effects of over-allocation (such as riparian retirement and planting), or to ensure that existing over-allocation is phased out by 2030 at the latest, as now required under the Freshwater National Policy Statement. Exempting dairy shed takes from the default consent duration of IS years would not assist in achieving those outcomes. 130
[345] Mr Milne further submitted: Firstly, it is noted that Policy I I(a)(v) expressly refers to "water harvesting infrastructure". This is precisely the type of "capture and storage" option of concern to counsel for Wairakei Pastoral. Council considered that no further amendments are required in that regard. Secondly, while the presumption under Policy 11 is that dairy shed takes will be granted for IS years, the use of the words "... will generally ensure that . .. n in the first line ofthe Policy means that a term longer than IS years could still be granted "... in appropriate cases" as sought by Wairakel Pastoral."! [346] We accept that significant investment is made in pastoral conversion to dairying and to investigate and install capture and storage infrastructure for water harvesting. This contributes significantly to the regional economy.[32 However, we are persuaded by Mr Milne's submissions that relief should not be granted. The policy already allows possible exemption for water harvesting infrastructure. We agree that regulatory control is required to ensure that proper mitigation is imposed, particularly in over-allocated catchments.
6.4 ISSUE 4 Rules and Standards
Issue 4(i) Walrakel Pastoral Limited- Specific Allocation Rules
[347] As part of its relief package, Wairakei Pastoral sought a suite of changes to the rules to:
[a] Provide for increased water use;
[b] Make specific reference to dairy farming uses;
[c] Make specific reference to itself as a named party, or to its land and the conversion project involving 20,000 ha.
[348] The rationale for the various amendments was that the Council's water use calculation model used by Dr Brown, and last run in 2006, contains a specific allocation of water for the Wairakei Pastoral land i.e, the conversion of up to 25,000 ha from forestry to dairying during the Plan period.
[349] Wairakei Pastoral's position was that such a volume of water should be made available or reserved for that specific land area/project and should not be allocated generally for any use to the next applicant in the queue.
[350] The Council's position was that:
132 Mr Daya-Winterbottom Closing Submissions, paragraphs 66 [0 68 pages 21 and 22.
103 [a] First, it did not agree with that interpretation of the model. The water calculation model was used to determine the amount of water being extracted from the upper Waikato catchment in 2006 and included a proxy for dairy conversion (up to 25,000 ha) that was not included in the Agribase data at that time; and
[b] Secondly, such changes to the rules were not necessary.
[351] The Council considered that the existing 10,000 ha of Wairakei Pastoral's converted land had already been catered for in terms of stock water, dairy shed wash down and milk cooling. The stock water needs for the proposed additional 10,000 ha conversion could be met under the Council's proposed allocable flow of 3.6% of Q, above Karapiro. Any additional water required for shed wash down, milk cooling or irrigation was available for abstraction now during the winter months (described as "winter takes") subject to Wairakei Pastoral, or anyone else, applying and gaining consent to abstract water under Rule 3.3.4.15 (restricted discretionary activity) and then storing the water until it is required.
[352] In relation to the water calculation model, we agree with the Council's position and consider that Wairakei Pastoral is incorrect to attempt to use the model for purposes for which it was not designed or intended.
[353] On the latter point, if that were the situation with the allocable flows set at 3.6% ofQs, then our earlier determination to increase the allocable flow above Karapiro means that there is even more water available for a range ofnew takes. In response to questions from the Court as to whether or not an increase in the allocable flow above Karapiro would address Wairakei Pastoral's concerns, Mr Daya-Winterbottom agreed that that would improve the situation in the short term. But he maintained that in the longer term it was prudent to have a known volume reserved for dairying.
[354] Water is an important resource which is fast approaching the limits of its allocation in parts ofthe Waikato region. We have already averred to the importance of the Variation setting ground rules which facilitate efficient use for a wide variety of heterogeneous and changing uses of water. Locking quantities of water up for a particular use or user would not provide for the social and economic well-being for the community.
104 [355] We therefore reject this part ofthe reliefpackage sought by Wairakei Pastoral.
Issue 4(ii) Winter Takes Above Karapiro - RestrictedDiscretionary Rule 3.3.4.15A
[356] Mr Braggins, on behalf of Wairarapa Moana, sought that "winter takes" be provided for as a restricted discretionary activity in Rule 3.3.4.15A. Winter takes need to be differentiated from "water harvesting" which is a specific activity provided for in the Variation. Water harvesting is defined as:
Taking water to be stored forfuture use inaccordance with Policy 16.
[357] Policy 16 is headed SUI/ace Water Harvesting and says:
Except as restricted by Policies 9A and 9B, in addition to the primary allocation and secondary allocation set out in Table 3-5, an allocation at higher flows from rivers may be provided as a restricted discretionary activity;
(a) if the take is not within the Waikato River catchment upstream of the Karapiro Dam; and
(b) in circumstances where water is only taken when the river flow is greater than the median flow, and the total amount of water taken by way of water harvesting does not exceed 10% of the flow in the riverat the time of abstraction.
[358] Winter takes are simply takes, in the context of the catchment above Karapiro, applied for within the primary allocable flow under Rule 3.3.4.15. As Rule 3.3.4.15A relates solely to "water harvesting", it would be confusing and inappropriate to grant the amendment sought by Mr Braggins. There is no need to amend Rule 3.3.4.15 to provide for "winter takes" and the new advisory note under Policy IE clearly identifies such takes as an option.
Issue 4(iii) Should Watel' Transfers be Made Less Restrictive? - Rule 3.4.4.3(i)
[359] Wairakei Pastoral sought less restrictive transfer provisions, in particular enabling unrestricted upstream transfer. No planning witness or hydrological witness was called to support the proposed amendments. The economist called by Wairakei Pastoral, Dr Evans, was the only witness who gave evidence in this matter.
105 [360] Dr Evans was cross-examined by counsel for the respondent on this topic. 133 He was examined at some length. He conceded a number ofmatters including:
[a] The difficulties of assessing the adverse effects of a take if transferred
upstream following its grant; 134 and
[b] The difficulty of assessing the adverse effects of a take which may be transferred upstream from one hydro reservoir to another and any consequential effect on electricity generation.!"
[361] We do not propose to discuss the lengthy cross-examination in detail. Suffice it to say we are satisfied that the changes proposed by Wairakei Pastoral would be impractical.
Issue 4(iv) Nutrient Management Plans - Rule 3.4.5.6 andRule 3.4.5. 7
[362] In Chapter 3.4 Efficient Use of Water, Rules 3.4.5.6 (permitted activity) and 3.4.5.7 (controlled activity) relate to the use of water for crop and pasture irrigation. The rules contain conditions and/or standards and terms which in previous versions of the Variation had required a nutrient management plan dealing with water irrigation. In response to appeals and the advice of Dr Rout, this was replaced with a requirement for information on seasonal and monthly irrigation water balances.
[363] The Director-General of Conservation was not confident that water irrigation balances were sufficient to protect receiving water bodies against increased nutrient losses which may occur, even when an irrigation water balance is followed. The concerns related particularly to the coincidence of the application of irrigation water, animal effluent and fertiliser, and to the need to ensure integration between the Variation and other sections ofthe Plan. The reliefsought was to add two further clauses to the list ofmatters to be specified with the irrigation water balances:
The rale, type and location of fertiliser application under Rule 3.9.4.11; and The rate, type and location of farm animal effluent under Rules 3.5.5.1, 3.5.5.2 and 3.5.5.3
133 Transcript al1747 • 1758 1J4 Transcript at 1749 - 1751 135 Transcript al1755 - 1756
t06 [364] Mr Milne submitted that the rules in the Variation only related to irrigation for crops and pasture, whereas the other rules listed in the proposed amendments related to other activities such as:
1. Permitted activity rules for fertiliser application;
2. Discharge offarm effluent onto land;
3. Discharge offeed pad and stand-off pad effluent onto land; and
4. A controlled activity rule for the discharge of effluent from existing pig farms onto land.
[365] For the Council, it was submitted that there was no evidential basis for the proposed amendment and nothing to suggest that there was a real problem that required to be addressed. The additional information would be of no practical benefit to the Council.
[366] Wairakei Pastoral also opposed references to nutrient management plans in the rules. Its opposition, in part, was motivated by the need for certainty over the content of such plans. Mr Daya-Winterbottom submitted, that nutrient management plans were complex.technical documents and more work needed to be done to identify the content of such documents. Research to date was described as a work in progress. Wairakei Pastoral were satisfied with the Council's final version which allowed for the Regional Policy Statement and the Regional Plan to address nutrient management plans at a future date.
[367] We are not satisfied that the amendments to the rules proposed by the Director General are appropriate at this time. Clearly the wider topic of nutrient management plans and their role as a regulatory method is complex, technical and evolving. There is insufficient information available to confirm that the additional information sought would be effective and relevant. In these circumstances we agree with Mr Daya-Winterbottom that leaving this matter to be addressed through the Regional Policy Statement review and any subsequent Plan changes would appear to be the pragmatic and practical approach at this time.
107 Issue 4(v) Should Flows be Naturalised in the Waikato River below Lake Taupo? Standard 3.3.4.21 ant! Method 3.3.4.6C
[368] The Waikato River catchment includes the diversion associated with the Tongariro Power Scheme. It adds another 654km2 to the overall catchment, increasing the Waikato River flow by approximately 19% at the Lake Taupo control gates. Mighty River Power manipulates the flow below the control gates in an integrated manner, by controlling not only the Taupo gates, but also the eight dams between the gates and Karapiro.
[369] The Council proposes to remove the influence of the eight Waikato River hydro generation dams, the Lake Taupo outlet gates and the Tongariro Power Scheme, on the hydrology of that catchment above the Karapiro Dam. This is provided for in Standard 3.3.4.21 which relates to how water shortage restrictions shall apply. Standard 3.3.4.21 relevantly states:
3.3.4.21 Standard - How Water Shortage Restrictions Shall Apply a) Restrictions on water takes directly from surface water bodies will occur in the following manner and order, unless existingwater take resource consents already contain conditions requiring the restriction or cessation of taking at times of river low flow or in other circumstances inwhich case the resource consent conditions shall prevail.
(I) In the Waikato River catchment upstream of Karapiro Dam, restrictions will be deemed to occur when calculated natural flows (calculated for the relevant natural inflows to Lake Taupo and the Waikato River above Karapiro Dam) fall below the minimum natural flows calculated using the relevant minimum flow percentages in Table 3-5.
Standard 3.3.4.21 is followed by an Advisory Note which states:
Advisory Note • Standard 3.3.4.21 part I), 'natural flows' are flows where the influence of the eight Waikato Riverhydro-generation dams, Lake Taupo outlet gates and the Tongariro Power Scheme on the hydrology of the catchment have been removed. These flows will be determined by the model referred to in Method 3.3.4.6C
108 [370] The Advisory Note refers to the model that is to determine the natural flow as set out in Method 3.3 4.6C which states:
3.3.4.6C Assessment of hydrological flow statistics for water allocation (Method to implement Section 3.3.3 Policy 1) The Waikato Regional Council will maintain a technical report detailing the calculation of flow statistics used for water allocation at key flow recorder sites in the Region, including methods to remove the influence of existing surface water takes. In the Waikato River catchment upstream of the Karapiro Dam this includes the Council developing a model to remove the influence of the eight Waikato River hydro-generation dams, the Lake Taupo outlet gates and the Tongariro Power Scheme on the hydrology of the catchment for implementing Standard 3.3.4.21(t). The model shall be independently peer reviewed. The flow statistics in the technical report will typically be reassessed five yearly, unless there are any signiflcant changes to the flow regime in which case the technical report will be reassessed as soon as practical thereafter. The technical report will be published on the Waikato Regional Council website. Advisory Note: • The Council will make available to stakeholders a peer reviewof the model described in this method and the results of periodicreviews of the data used in this model.
[371] There is general agreement with respect to the development of the model and its peer review. However, Wairakei Pastoral opposes naturalising the flows above Karapiro (removing the influence of Mighty River Power storage and Tongariro Power Scheme inflows) when implementing restrictions on consumptive uses.
[372] Mr Daya-Winterbottom contended that removing the influence of the Tongariro Power Scheme on the hydrology of the catchment, would result in less water being notionally available for abstraction, and the likelihood that water shortage restrictions would be applied more frequently. Mr Williamson, a hydrologist called by Wairakei
Pastoral, had this to say in his supplementary evidence: 136
6.2 My viewis that naturalised flow above Karapiro should be the sum of flow that arrives at Taupo (including flows resulting from the TPS consents) and flows that arrive in the main stem of the Waikato River downstream
136 Willamson, Supplementary evidence at [6.2] - [6.4]
109
6.3 The TPS inflows to Taupo are significant with a mean annual value nearing 30 m'ls and a 0 5 flow of 15 m'ls according to Hunter's Exhibit 1 (MRP's AEE for Resource Consent).
6.4 Excluding TPS inflows from the naturalised flow calculation would not make sense for a number of reasons:
(a) whatever flow that arrives at Karapiro (including TPS releases) will be accounted for in the low flow statistic;
(b) exclusion of TPS flows would restrict consumptive users earlier than is warranted by the actual water level in the river;
[373] The quote from Mr Williamson's evidence reflected the stance he took at the expert caucusing of the hydrologists. Whereas Dr Brown, called by the Council, and Mr Keller, called by Genesis, both considered that naturalising of flows above Karapiro is appropriate when implementing water shortage restrictions, Mr Williamson did not.
[374] Dr Brown in his rebuttal evidence had this to say:137
... As discussed by hydrology experts during witness caucusing (including Dr Mitchell) as part of the Wairakei Pastoral Limited consent appeal process the TPS does not augment the 0 5 flows as most of this water is being stored in Lake Taupo rather than directly increasing Waikato River flows below the Taupo gates.
[375] In his evidence-in-chief, Dr Brown made the following recommendation: 138
93. ... I recommend that the restrictions are based on the 'natural' flows of the catchment as shown in the "track changes" version of Variation 6 attached to the evidence of Mr van Voorthuysen. The natural flows in this context are the flows that would have occurred without the influence of the hydropower generation which involves; the diversion of water into Lake Taupo via the Tongariro Power Scheme, the manipulation of Lake Taupo water levels via the Taupo outlet gates and the manipulation of flows from the eight hydro dams between Karapiro Dam and Lake Taupo.
[376] Dr Brown's recommendation was made for practical hydrological reasons. Dr Brown was concerned with the effect on water take restrictions as a result ofthe influence
m Brown, Rebuttal evidence at[35] 138 Brown, me,at [93]
110 of power generation on natural flows, which involves the active management and manipulation of Lake Taupo water levels and outflows by Mighty River Power. He wanted the Council to be able to assess Waikato River flows without the influence of operational decisions by the hydro-power generators. Otherwise restrictions, when and if they do occur, will be after the time when the takes ought to have been restricted. 139
[377] Also, as he pointed out, it is important to note that water take restrictions in the Waikato catchment above Karapiro may occur in any tributary and these are not influenced by the Tongariro Power Scheme water. A large majority ofthe surface water takes in the catchment above Karapiro are on tributaries rather than the main stem, and water take restrictions would be implemented using Standard 3.3.4.21.
[378] Mr Williamson appears to agree with Dr Brown's practical approach. He said:141
13.1 From a hydrology perspective we agree that the water restrictions based on "natural flows' to Lake Taupo are sensible. From a practical implementation perspective, this is reliant on MRP making hydrology data publicly available and the process of calculatinq the "natural flows" needs to be audited and subject to public scrutiny.
Method 3.3.4.6C will implement such an audit and public review process.
[379] We are satisfied that the review process, put in place in accordance with Method 3.3.4.6C, should allay any reservations that may be held about the effect of a naturalised Q5 at Karapiro.
[380] We therefore agree with Dr Brown. We find that restrictions above Karapiro are to be based on the natural flows as is set out in the Council's latest proposed version of the Variation.
[381] Genesis sought to naturalise the flows on the Waikato for water shortage restrictions below Karapiro as far as the Huntly Power Station mixing zone. Dr Mitchell, environment consultant for Genesis, gave as his reason:142
119 Brown, EIC, at [91] and [92] 14\ Williamson, EIC, at [13.I][sic], page 34 \42 Mitchell, EIC, at [2.9] and [92]
111 2.9 ... This water is diverted into the catchment for the sole purpose of electricity generation, and I consider it inequitable and inefficient to have itpotentially allocated to otherparties "part way along the pipe".
No hydrological reason was given.
[382] This matter was not discussed at any great length in the hydrological evidence. However, it was discussed during the second caucusing session ofthe hydrologists. Their second statement had this to say:143
Brown considers there is little benefit in naturalising the flows downstream of Karapiro if the purpose is to ensure that consumptive allocation does not consume the water provided by the TPS prior to it flowing past Huntly Power Station. Brown considers that the minimum flows downstream of Karapiro are not significantly influenced by TPS diversions (which are often restricted during summer low flows) and the availability ofwateris determined by discharges from Karapiro Dam combined with natural flows in the catchment downstream of Karapiro.
Keller does not agree that the flows downstream of Karapiro should not be naturalised. The TPS flow has an annual mean value of nearly 30m'/sec, and has a profound influence on water availability below Karapiro, noting that the future availability for thiswatercannot be relied upon. As shown in Keller's EIC, small reductions in river flows, even when Karapiro is discharging at significantly higher thanthe mandated minimum, routinely affect generation capacity at Huntly during the summer. Thus, if consumptive takes are based on the Q 5 that inciudes the TPS flow, this will allow higher levels of abstraction and consequent reductions inthe generation capacity at Huntly at timesof high river temperature.
[383] Mr Majurey in his closing submissions for Genesis, referred to the evidence ofMr Weir144that the water diverted into the Waikato River from the Tongariro Power Scheme is not guaranteed to be fully available in the future, This, he said, underscores the need to maintain current flows available for the Waikato Hydro Scheme and the Huntly Power Scheme. This reflected the evidence-in-chiefof Dr Mitchell.145
[384] The concern of Mr Majurey and Dr Mitchell was adequately answered by Dr Brown in his statement of'rebuttal.t'"
143 Hydrologists' secondcaucusing statement, at [8J on page7 144 Weir, EtC, at [4.4]- [4.5] 145 Mitchell, EtC, at [2.9] & [4.57] 146 Brown, rebuttal evidence, at [13]
112 13. Dr Mitchell requests the reservation of TPS inflows so they are made available for the Huntly Power station. I disagree with that suggestion as I consider that once the TPS inflows have entered Lake Taupo they simply become parl of the upper Waikato River catchment water available for use by MRP in the Waikato Hydro Scheme. Flows below Karapiro are a result of MRP operational decisions and the maintenance of the minimum flow specified in MRP's consent conditions for the Karapiro dam.
[385] We accordingly find the Method and Standard as now proposed by the Council would be the most appropriate way of implementing restrictions on consumptive uses on the main stem ofthe Waikato River.
Issue 4(vi) Should Table 3-5 have a Cross-Reference to Standard3.3.4.2I(f)?
[386] Mr Cowper submitted on behalf of Mighty River Power that the inclusion of a cross-reference in Table 3-5 to Standard 3.3.4.21(f), which relates to restrictions being calculated with respect to the calculated natural flows below Lake Taupo, should be deleted, and be replaced by an advisory note.
[387] It was Mr Cowper's submission that the inclusion of the cross-reference, in the row dealing with the catchment allocation for the Waikato River, is inconsistent with how the rest ofthe Table has been formulated. He sought that it be removed from the Table and included as an advisory note at the end of the Table, which is what has been done with other matters associated with information relevant to the contents of the Table. No other allocable flow has reference made to the water restriction provision relating to it.
[388] We agree with Mr Milne that this cross-reference in Table 3-5 does provide clarity to users of the Plan as to how minimum flow restrictions are implemented for the unique situation of the Waikato River above Karapiro Dam. Hence its inclusion in the Table. Deletion of this cross-reference, and then introducing it as an advisory note, would introduce more uncertainty. Users of Table 3-5 would need to read both the relevant rows in the Table and then align this with the relevant advisory note.
[389] We agree that providing clarity within Table 3-5 is particularly important ifa user of the Plan is working their way from Standard 3.3.4.21(f) to Table 3-5. Standard 3.3.4.21(f) includes the words on the last line " ... fall below the relevant minimum flow percentages in Table 3-5". The inclusion of the cross-reference with Table 3-5 to
113 Standard 3.3.4.2I(f) clarifies which flow percentages are the relevant ones in relation to the Standard.
[390] The Council has agreed to include in the 8 August 20 II version ofVariation 6 an Advisory Note cross-referencing to the whole ofPolicy lA, and this was agreed to by Mr Cowper.
Issue 4(vii) Should Water Shortage Restrictions Apply to Genesis? Standard 3.3.4.21
[391] Policies 13 and 14 and Rule 3.3.4.21 provide a regime of restrictions to be implemented when water shortage conditions arise. Rule 3.3.4.2I(a) sets out the manner and order that restrictions on water takes will occur in times ofshortage.
[392] Genesis sought to have the Huntly Power Station exempt from the standard (Rule 3.3.4.2I(a)), as it is at such times that its generation is most needed.
[393] The Council had amended the standard to ensure that any resource consent conditions imposing low flow restrictions would prevail over the standard, noting that the provision only applies to restrictions in water take consents. In the case of the Huntly Power Station consents, there are no low flow restrictions in the take consent. The associated discharge consents restrict discharge of heated water in certain defined conditions, but do not require cessation.
[394] The Council's position was that it would be more appropriate for Genesis to seek to change its resource consent to take water (under Section 127 of the Act) to include more certain and site specific water restrictions and hence be exempt from the requirements of Standard 3.3.4.2I(a), rather than to include provisions in the Variation to deal with a single case.
[395] We agree with the Council's position. The amendment proposed by Dr Mitchell to insert the words "... except that any take for the Huntly Power Station will not be required to be reduced" is very general and may not be appropriate in the long term. We consider that it would be more appropriate to provide for the Power Station's unique position to be considered on its merits on a case specific basis, having regard to the suite ofconsents that must surely apply to such a complex.
[[4 Issue 4(viii) Threshold Date
[396] The Variation contains a number of provisions which include a "threshold date" before or after which the provisions apply. Initially in the Decisions version a date of20 October 2006 (the date on which the variation was notified) was used. Subsequently, in response to appeals, and particularly the evidence of Mr Willis (planning expert for AWG) the date was changed to 15 October 2008 (the date when the Council's decisions on the variation were released). There was agreement that a consistent date should be used, and all parties except Genesis accepted the 2008 date.
[397] Genesis sought to retain the 2006 date. Mr Majurey, describing the effect of using a later date as "planning creep", submitted that the upshot of using the 2008 date was that unlawful behaviour was effectively rewarded, and that the 2008 date lacked the necessary evidential foundation to displace the presumption that the 2006 notification date should apply. Mr Mitchell, planning expert for Genesis, supported the 2006 date in the context of ensuring that the net amount of water taken did not exceed that occurring prior to 20 October 2006. 147
[398] Mr Milne submitted that the rationale for using the 2008 date was simply that abstractors, in historically over-allocated catchments, were either acting innocently because they were unaware of the limits, or they were granted take consents by the Council. He acknowledged that it meant that historical takes were treated more benignly than increases oftake that occur after the 2008 date, particularly when consents come to be renewed.
[399] Mr Willis, planning consultant for the Agricultural Working Group, identified four categories ofexisting agricultural takes that would benefit from the later date, two of which related to takes that could be described as unlawful. Mr Willis considered that it was reasonable to use the more recent 2008 date given the length of time this variation process had taken and the changes that had been made to it. He was concerned that there were water users, particularly agricultural users, who did not understand or were unaware ofthe new regime set up by the variation. Ifsuch takes were now to be classified as non complying activities this would impose a cost on those users. In his opinion the more
147 Mitchell, rebuttal, at [3.16], [4.2] - [4.5]
115 recent date was an appropriate and pragmatic planning response to an existing, albeit undesirable, situation.
[400) Mr van Voorthuysen agreed with Mr Willis that it was not plausible to suggest that the taking of water for those existing users was an activity generally not to be condoned.
[401) Mr Milne submitted, that from questions of cross-examination posed by Mr Majurey, Genesis' concern was that the removal of water from the Waikato River catchment below Karapiro and above the Huntly Power Station mixing zone, would increase the amount of time that restrictions were placed on the operation of the power station, due to the temperature ofthe river rising to a level that precludes the discharge of the power station's heated cooling water into the Waikato River. The presumption being that by moving the date back to 2006 then less water would have been removed from the Waikato River above the power station.
[402) Genesis' position can more readily be understood in the context of other relief sought by them: to have the allocable flow above Huntly reduced from 17.6 mJ/s (being 10% ofQs) to some lesser figure ofaround 8 or 9m3Is (being the level oftakes authorised at 20 October 2006).
[403) We have earlier determined that the allocable flow above Huntly should remain at 10% of Qs. Amending the date from 2008 to 2006 would have no impact on the amount of water taken from above the power station.l'" In those circumstances we find that the 15 October 2008 date should be retained as it appropriately provides for the historical abstractors whilst avoiding adverse effects on in-stream environmental values.
Issue 4(ix) Definitions "Property" and "Site"
[404) During the hearing the Court raised a question about the term "property" having different meanings in various parts of the Variation which resulted in some uncertainty and was potentially confusing. The matter was discussed in the Planners Conferences in
148 Brown, Supplementary Evidence, 20 May 2011, Tabie 1
116 July and it was suggested that separate definitions be used. A new definition of "site", meaning a Certificate ofTitle, was proposed being used in the rules. The term "property" would continue to mean adjacent land in one ownership but its use would be limited to the provisions relating to riparian management plans.
[405] Mr van Voorthuysen reserved his position on the new definition of"site" until he had received advice from Dr Brown regarding any implications the change might have, particularly in relation to the modelling of current water use and the permitted activity rules. Subsequently, Dr Brown advised that the Council's water allocation calculator model does not rely on the delineation of properties or certificates of title to estimate permitted activity water use. Instead the model estimates stock water, dairy shed wash down and milk cooling water based on the number ofcows within a catchment and then increases the estimate by 20% to allow for permitted activity water use.
[406] Based on Dr Brown's advice, the suggestion from the Planners was accepted by Mr van Voorthuysen and the Council's position at the end of the hearing was that the terms be defined as:
Property: For the purposes of Chapters 3.3 and 3.4 means one or more allotments contained in a single certificate of title, and also includes all adjacent landthat is inthe same ownership but contained in separate certificates oftitle.
Site: One or moreallotments contained in a single certificate oftitle.
[407] In submissions, the Director-General ofConservation sought that the definition of "site" be further qualified by limiting it to certificates of title "that existed on (date of Environment Court decision or 15 October 2008)". The concern with the Council's definition was that subsequent subdivision of large areas of land could produce more certificates oftitle with consequential permitted activity rights. Of particular concern was the conversion of large areas of forestry blocks into dairy or other farming operations. The concern was that this could increase the number of takes and may have adverse effects on the ecology ofsmall streams. The Director-General's definition would prevent new titles created after the specified date from enjoying permitted activity status under certain rules in the Variation.
[408] The Court raised the question that denying permitted activity status may cause undue hardship to some people including where there was genuine subdivision for a
117 proper purpose. District Plans throughout the Region provide for subdivision for a range ofpurposes and sizes oflots.
[409] Mr Milne advised that the Council did not have any real concern about the potential effects of increases in the number of takes arising out of subdivision of land. While it is potentially possible that someone might subdivide in order to take advantage ofthe permitted activity volume ofwater (such as the 15m3 per day), this would involve a cost and such subdivision would not be widespread. There was a greater likelihood that the proposed restriction would unnecessarily restrict genuine subdivision. Counsel for the Council did not consider that a case to restrict the definition had been made out on the merits.
[410] We note that although the new definition of "site" changes the wording, the meaning is the same as in earlier versions of the Variation where a rather convoluted piece of drafting in the permitted activity Rules 3.3.4.9 and 3.3.4.10 used rule specific footnotes to explain that "a single property in one ownership is a property which has a single certificate of title". The term "site" is simpler and is now to be used in a way commonly found in most regional and district plans, and recognises that permitted activity rights usually attach to a single certificate of title. We find that the definition and use of the term "site" is appropriate as it provides certainty and clarity that was lacking in the previous wording, and is consistent with the meaning of earlier versions of the Variation and the commonly understood basis for permitted activity rights.
Issue 4(x) Mighty River Power -s Addendum to Closing Submissions
[411] In addition to the matters raised in the main text of his closing submissions, Mr Cowper attached two tables which identified key provisions of the Variation which Mighty River Power considered were critical to retain (Part A) and provisions where amendments to the 25 July version were sought to strengthen the protection of the Waikato Hydro Scheme (part B). For completeness we refer to the remaining matters in Part B,149
149 That is Part B matters whichwereaddressed by MeMilnein closing submissions and whichwe havenot already determined, and those matters which Counsel for Mighty River Power advised in a post-hearing Memorandum, dated 19 August 2011, were still issues fortheCourt to consider
118 Policy 3 Clause (a)(ii) and Rule 3.3.4.10 Permitted Activity Rule - Supplementary Surface Water Takes
[412] This policy and rule relate to permitted activities. Mighty River Power sought to limit these provisions to properties/sites existing as at 15 October 2008. Presumably any sites created after that date would require some form of resource consent to take even small volumes ofwater. For the same reasons as set out above in the part ofthis decision relating to the definition of "site" we do not consider it appropriate to remove permitted activity rights from sites created after 15 October 2008.
Rule 3.3.4.14 Controlled Activity Rule - Existing Taking of Surface Water for
Domestic 01' Municipal Supply
[413] Mighty River Power sought to add the word "existing" into the first paragraph of the rule to be consistent with the rule title, such that it would read:
Except as permitted by Rule 3.3.4.10 any taking of surface water for the purposes of existing domestic or municipal supply is a controlled activity (requiring resource consent) subject to the following standards and terms:
a) The take is described by Policy 4(a) b) The applicant shall prepare and provide a water management plan which meets the requirementsof Methods 8.1.2.2
d) All applications to take water under this rule shall be assessed on a net take basis.
[414] The Council opposed the amendment on the basis that it was unnecessary as the cross reference to Policy 4(a) detailed the three criteria that needed to be met for an application to be classified as a controlled activity under this rule.
[415] Policy 4(a) relates to replacing resource consents for domestic or municipal supply provided that they comply with the three criteria listed, being:
• Atthe time ofapplication the take was an authorisedwater take; and
• There is no increase in the nature, rate and voiume of the take from that previously authorised; and
119 • A water management plan which meets the requirements of Method 8.1.2.2 has been provided.
[416] The key to understanding Rule 3.3.4.14 is the cross reference to the contents of Policy 4(a) and that policy relates to replacing authorised resource consents to take water. This is different to how the word "existing" is used elsewhere in the Variation. We consider that the title of the rule would be a more accurate and helpful "label", or paraphrasing, if it were amended to read:
Replacing Authorised eKistiAg Taking of Surface WaleI' for Domestic or Municipal Water Supply.
[417] A further amendment to Rule 3.3.4.14 sought by Mighty River Power was the addition ofclause (h) of Policy [sic] 3.3.4.14A. We understand this should refer to Rule 3.3.4.14A "ControlledActivity Rule - Taking ofSurface Waterfor Existing Milk Cooling and Daily Shed Wash Down". Clause (h) is a standard and term:
h) Anywater take under this rule shall be deemed to include (as the first 15 cubic metres per day of such takes) allwater that is permitted for the site pursuant to Rules 3.3.4.9 and 3.3.4.10 (so that the total water allocated to the site is accounted for within the consented amount to ensure no double accounting).
[418] We assume the purpose of MRP's amendment is to ensure that there is an accurate accounting of all water being taken throughout the catchment, and particularly above Karapiro. The intention of the clause being that any consent under the controlled activity rule would be for a volume of water including that provided for as a permitted activity.
[419] We note that Rule 3.3.4.14 relates to "domestic or municipal supply". This is a defined term in the Variation and means "a reticulated supply publicly or privately owned ..." The rule is limited to such reticulated supplies. In which case the matters addressed in Clause (h) are not relevant given that generally "domestic or municipal" takes will be for large volumes of water compared to that permitted under Rules 3.3.4.9. and 3.3.4.1 0 and also because Clause (h) refers to water permitted for the "site", a term defined in the Variation to mean a Certificate ofTitle.
[420] We reject the reliefsought as being not necessary.
120 6.5 ISSUE 5 Iwi Issues
[421] In her closing submissions, Ms Forret for the River Iwi Trusts narrowly defined the outstanding iwi issues as:
[a] The nature and extent ofamendments to Variation 6 required to give effect to the Vision and Strategy;
[b] Potential access to water for iwi development; and
[c] The transfer provisions in light ofthe co-management deeds.
We deal with each in turn,
Does Variation 6 give ejJectto the Vision andStrategy?
[422] The evidence adduced by the Maori appellants sought amendments to Variation 6 to better give effect to the Vision and Strategy. 150 As a consequence the Council adopted Mr van Voorthuysen's recommendation ofreference to the Vision and Strategy by way of direct cross-reference in the introductory and key decision-making provisions. Some further amendments were made to the post-caucusing version,
[423] Ms Forret, for the River Iwi Trusts, in her opening statement advised that the Trusts now largely supported the then-current version. She stated that Ms O'Sullivan was preparing supplementary evidence that identified further minor amendments sought.
[424] In his closing submissions, Mr Milne, on behalf of the Council, had this to say:151
68. In their subsequent [opening] legal submissions, counsel forthe River Iwi Trusts stated that Ms O'Sullivan's supplementary evidence set out the further changes sought in respect of references to the Vision and Strategy, most of which have been accepted by the Council. The remaining point of dispute appears to be the Trusts' desire to include a newclause (ac) into Policies 8152 and 9' 53 as follows:
150 See in particular Manukau, EIC, and den Ouden, EIC lSI At [68] 152 Consent Application Assessment Criteria - Surface Water
121 "The need to restore and protect the economic, social, cullural and spiritual relationships of Waikato River Iwi with the Walkato River:
[425] In response to a direction from the Court seeking clarification of the accuracy of the issues identified in Mr Milne's closing submissions, Ms Forret had this to sayl54:
4. The changes to include new clause (ac) into Policies 8 and 9 are correctly referenced at paragraph 68 of the respondent's closing submission.
[426] According to Ms Forret, that without recommended clause (ac), there are no assessment criteria for applications concerning either surface water or ground water that require the decision-maker to have particular regard to the economic and social relationship of Waikato River Iwi with the Waikato River. This, she said, is needed to reflect Objective C of the Vision and Strategy which says:
C. The restoration and protection of the relationship of Waikato River Iwi according to their tikanga and kawa, with the Waikato River, including their economic, social, cullural and spiritual relationships
[427] For the Council, Mr Milne submitted that the proposed new paragraph would duplicate:
[a] Policy 8, Clause (aa) - repeated in Policy 9 - which states:
(aa) Whether the proposed take would adversely affect the restoration and protection of the heallh and wellbeing of the Waikato River.
[b] Policy 8, Clause (ab) - repeated in Policy 9 - which states:
(ab) The effect of the activity on the relationship of tangata whenua and their culture and traditions with their ancestral lands, water, sites, wahi tapu and other taonga
[c] Issue 3.3. I(aa) which states:
(aa) The allocation and use of water, if not managed appropriately, can adversely affect the restoration and protection of the health
153 Consent Application Assessment Criteria- Ground Water 1S4 At [4]
122 and wellbeing of the Waikato River as well as the spiritual, physical and economic wellbeing, identity and cultural practices of those iwi whose mana and mauri the river represents
[d] Objective 3.3.2(aa) which states:
(aa) Giving effect to the overarching purpose of the Vision and Strategy to restore and protect the health and wellbeing of the Waikalo River for present and future generations.
[428] Further, Mr Milne submitted:155
... If the proposed clause (ac) were to be inserted to give effect to Objective C, then as a matter of logic it would also be necessary to insert an additional clause to give effect to the parallel Objective 0 which requires the restoration and protection of the relationship of the Waikato Region's communities with the Waikato River including their economic, social, cultural and spiritual relationships. If one then provides for two specific objectives in that way, the question then arises why not also specifically provide for Objectives E to M as well.
[429] We agree with Mr Milne. We are mindful that the Vision and Strategy is already part of the Operative Regional Policy Statement from 25 November 2011 as a matter of law. Repeating large parts of the Vision and Strategy in various parts of Variation 6 is repetitive and unnecessary. Nor is it appropriate to pick out certain parts of the Vision and Strategy and repeat them in particular parts of the Variation. This runs the risk of detracting from the holistic nature ofthe Vision and Strategy and inappropriately implies that the quoted parts are more important than others.
[430] The extent of the references required to the Vision and Strategy are, as Mr Milne said, a matter of evaluative judgment rather than a matter of law. We find that the Council has struck an appropriate balance between the competing positions. Appropriate acknowledgment is given to the statutory direction that the Vision and Strategy is intended by Parliament to be the primary direction-setting document for the Waikato River.
ISS At[71]
123 Should there be preferential access to waterfor "iwl development"?
[431] The River Iwi Trusts propose a new Rule 3.3.4. 14AB:
Rule 3,3.4.14AB Control Activity Rule - Taking of surface water for iwi development (Implements section 3.3,3 and Policy 3ab"')
The taking of surface water by Waikato River Iwl for iwi development exceeding 70 percent and up to and including 100 percent of the primary allocable flow of water from catchments as identified in Table 3-5 is a controlled activity (requiring resource consent) subject to the following standards and terms:
a) The net rate of the take assessed in combination with all other authorised water takes (all calculated on a net take basis) shall not exceed 100 percent of the primary allocable flows for catchments specified in Table 3-5;
b) The water take location shall not be within a water body classified as Natural State Water on the Water Management Class Maps;
c) All applications to take water under this rule shall be assessed on a net take basis and the assessment of cumulative allocation under this rule shall not exceed 0.6 percent of the portion of the primary allocable flow between 70 percent and 100 percent for the catchment.
[432] "Iwi development' is proposed to be defined as:
Iwi development: development undertaken by Waikato River Iwi within their rohe in respect of: a) Maori land held under Te Ture Whenua Maori Act 1993 andlor b) Land owned or leased by an iwi authority representing any of the Waikato River Iwi, and undertaken by the relevant authority for the benefit of its members. Any application for the purpose of iwi development must be made by an entity entirely controlled by the relevant iwi authority or the Te Ture Whenua Maori Act recognised representative body affiliated to the River Iwi.
156 Policy 3ab is a cross reference to Ms O'Sullivan's proposed policy change that has never been incorporated into the Regional Council's version of Variation 6. The reference is to a new policy which would read: "Policy 3ab. Within catchments that were not over-allocated prior to 15 October 2008 classlfylng as a controlledactivity anytakefor iwi development. "
124 [433] "Waikato River Iwi" is proposed to be defined as:
Waikato River Iwi: refers to Ngati Tuwharetoa, Raukawa, Te Arawa River Iwi, Ngati Maniapoto and Waikato-Tainui.
Would such a rule be ultra vires?
[434] It was the respondent's position, that the preferential rule would be ultra vires relying in part on the judgment of the High Court in Hauraki Maori Trust Board v
Waikato Regional Council.157 Counsel for the River Iwi Trusts endeavoured to distinguish the Hauraki Maori Trust Board decision on the basis that Section 30 of the Resource Management Act has since been amended and the Vision and Strategy enacted by the Settlement Act has since come into force.
[435] Randerson J, in Hauraki Maori Trust Board, entered into a detailed analysis of the relevant provisions of the Resource Management Act, commencing with section 30, which sets out the Regional Council's functions and powers. He concluded.l'"
[57] ... The Act focuses on the authorisation of activities and may do so by reference to a particular class of activity or by reference to the effects of activities. That is consistent with the statutory purpose as defined in section 5(2). Section 68 does not contemplate the makingof rules which would give preference to a particular section or sections of the community inthe allocation of space inthe coastal and marinearea.
[436] Importantly, for present purposes, he identified the Act's focus on the authorisation of activities by reference to a particular class of activity or by reference to the effects ofactivities - not giving preference to a particular section ofthe community.
[437] Randerson, J's conclusion reflects the clear wording of the Council's functions and powers which relevantly say (bolded sections are the new provisions enacted by the 2005 Amendment):
(1) Every regional council shall have the following functions for the purpose of giving effect to this Actin its region:
157 HC, CIV-2003-485-999, Auckland Registry, Randerson, J 158 At [51]
125 (a) the establishment, implementation, and review of objectives, policies, and methods to achieve integrated management of the natural and physical resources of the region: (b) the preparation of objectives and policies in relation to any actual or potential effects of the use, development, or protection of land which are of regional significance: (c) (ca) (d) (e) the control of the taking, use, damming, and diversion of water, and the control of the quantity, level, and fiow of water in any water body, including - (i) the setting of any maximum or minimum levels or flows of water: (ii) the control of the range, or rate of change, of levels or flows of water: (iii) (I) the control of discharges of contaminants into or onto land, air, or water and discharges of water into water: (fa) if appropriate, the establishment of rules in a regional plan to allocate any of the following: (i) the taking or use of water (other than open coastal water): (ii) the taking or use of heat or energy from water (other than open coastal water): (iii) (lv) the capacity of air or water to assimilate a discharge of a contaminant: (fb) (g) (ga) (gb) the strategic integration of infrastructure with land use through objectives, policies, and methods: (h) any other functions specified in this Act. (2) (3)
126 (4) A rule to allocate a natural resource established by a regional council in a Plan under subsection (1)(fa) or (fb) may allocate the resource in any way, subject to the following: (a) the rule may not, during the term of an existing resource consent, allocate the amount of a resource that has already been allocated to the consent; and (b) nothing in paragraph (a) affects section 68(7); and (c) the rule may allocate the resource in anticipation of the expiry of existing consents; and (d) in allocating the resource in anticipation of the expiry of existing consents, the rule may- (i) allocate all of the resource used for an activity to the same type of activity; or (ii) allocate some of the resource used for an activity to the same type of activity and the rest of the resource to any other type of activity or no type of activity; and (e) the rule may allocate the resource among competing types of activities; and (f) the rule may allocate water, or heat or energy from water, as long as the allocation does not affect the activities authorised by section 14(3)(b) to (e).
[438] We note that Section I(a) focuses on the integrated management of the resources and Section I(b) on the potential effects. Again, Sections (e) and (f) focus on the control ofthe resource. The new Section (fa) focuses on the allocation ofthe taking or use ofthe resource. There is no direct reference in Section 30 to any group in the community. The allocation is to be controlled by the status of the activity not the status ofthe applicant.
[439] The rules in Variation 6 which provide for a more favourable allocation, do so by means of creating a favourable activity status for various activities. The controlled activity rules for dairy-shed wash-down and milk cooling purposes are an example. Shed wash-down and milk cooling are specific existing activities. The favourable status applies to any person who undertakes those activities (whether an individual, a partnership or a limited liability company) and is not in any way based on the ethnicity of that person. There is no other rule in Variation 6 which is based on the status of the applicant. Any person may apply for a consent to undertake any activity.
127 [440] The Settlement Act and the Vision and Strategy do not extend the functions and powers of the Regional Council under the Resource Management Act. Ms Forret mounted an argument based on the words restoration and protection in Objective C in the Vision and Strategy. Objective C does not extend the Council's functions and powers as set out in Section 30 of the Resource Management Act. The Settlement Act legislation would require clear and unambiguous words to override the principal Act which creates the functions and powers ofdecision-makers.
[441] Even if we are wrong in considering ourselves bound by Hauraki Maori Trust Board we consider that such a rule would not be the most appropriate for achieving the objectives and policies of the Variation and the purpose of the Act for a number of reasons, including:
[a] No evidence has been adduced that suggests Maori are not able to undertake any cultural or traditional practice because of the wording ofthe Variation;
[b] During the Schedule I process a Maori incorporation, Wairarapa Corporation (which is not part of Waikato River iwi) has obtained the largest and second-largest takes for irrigation in the region;
[c] When water is available within the allocable flow, then an application by an iwi authority which satisfies the provisions of the plan could be granted regardless of whether it enjoys a favourable allocation status. Where water is not available within the allocable flow, creating a favourable allocation activity status would not assist iwi unless such applications were explicitly enabled to breach the allocable flow. Accordingly, there is no practicable reason for granting the reliefsought;
[d] The definition of the Waikato River iwi limits the rule to the five named iwi. We were not referred to any Policy or other reason why it should be so confined. As a matter of fairness and equity, if such provision were to be introduced, they should apply throughout the region and to all iwi;
[e] The proposed definition of iwi development is wide and includes land owned or leased by an iwi authority and development undertaken by the
128 authority for the benefits ofits members. This would enable non-Maori to utilise a lease to an iwi authority as a means of obtaining preferential treatment.
Should rules providingfor the transfer ofwater permits be included ill Variation 6?
[442] Waikato/Tainui and the River Iwi Trusts oppose providing for the transfer of water permits in the Variation. Ms Andrews, counsel for Waikato Tainui, said this is primarily because Waikato-Tainui considers the transfer of water and rights between commercial operations is likely to have detrimental impacts on the Waikato River. Providing for transfers may also encourage some parties to view water as something to be used and maximised purely for economic gain, rather than a resource to be restored and protected as required by the Settlement Act. 159 Mr Manukau expressed a similar concern in his evidence.
[443] Mr Spears, in his rebuttal evidence, stated that in his experience people who had paid for a water right had an even stronger incentive to sustainably manage the resource. He was not cross-examined.
[444] In response to the evidence of Mr Manukau for Waikato-Tainui, Mr van Voorthuysen advised: l60
106. Ifound Mr Manukau's evidence to be helpful as itclarified in my mind that Waikato-Tainui does not oppose water take transfers on phiiosophical or cultural grounds. Instead, Waikato-Tainui wishes to see any potential adverse effects on the Waikato River that might result from such transfers being avoided, remediedor mitigated.
Mr van Voorthuysen then examined Rules 3.4.4.2 and 3.4.4.3 and concluded that: subject to them additionally referring to the Vision and Strategy, their provisions were appropriate to avoid, remedy or mitigate potential adverse effects. That evidence was not challenged.
159 Opening Submissions at [6.10] 160 Rebuttal at [106]
129 [445] Ms Forret, counsel for the River Iwi Trusts, submitted that the transfer provisions are in breach of the Co-Management Deeds between the Crown and Raukawa and Te Arawa River Iwi because they introduced transfer provisions without carrying out the consultation process required under the deeds.!" Those Deeds were entered into on 17 December 2009 and 9 March 2010 respectively. They each have an identical Clause 13.2 as follows:
13.2 Notwithstanding clause 13.1, the Crown will not:
13.2.1 establish a regimeof tradable rights or tradable permitsinwater;
13.2.2 establish or confer management or use rights of a nature andlor duration that in effect create rights of property in the waters of the Waikato River;
13.2.3 develop policy or introduce any legislation which in effect amounts to the privatisation of the waters of the Waikalo River,
without first engaging with [RaukawafTe Arawa River iwi] in good faith and in accordance with the principles of the [Raukawa-CrownfTe Arawa River Iwi-Crown] accord set out in part 8.
[446] Mr Milne pointed out that at the time those deeds were executed the Resource Management Act already contained the following provisions:
[a] Section 122 stating that consents are not real or personal property;
[b] Section 123 authorising a duration not exceeding 35 years from the date of granting; and
[c] Section 136 authorising a holder of a water permit granted other than for damming or diverting water, to transfer the whole or any part of the holder's interest in the permit to any owner or occupier of the site in respect of which the permit is granted; or to another person on another site; or to another site, if both sites are in the same catchment or aquifer; and the transfer is expressly allowed by a regional plan or has been
161Opening Submissions at [86]
130 approved by the consent authority that granted the permit on an application under subsection (4).
[447] Mr Milne submitted that the wording of Clause 13.2 of the deeds is in the future tense - "will not". It does not repeal any ofthe provisions of the Resource Management Act and it does not purport in any way to remove or restrict their application. Nor could it do so. We agree.
[448] Ms O'Sullivan, for the River Iwi Trusts, gave evidence that ownership of water was deliberately left out of the co-management settlement and that Raukawa have never ceded traditional ownership of their waterways under Article 2 of the Treaty of Waitangi. 162 To this end, she said, they continue to assert a right to manage allocation. 163 The inference from her evidence was that Maori should be consulted regarding the transfer ofany water right within the region.
[449] Mr Manukau, for Waikato-Tainui, also gave evidence to the effect that Waikato Tainui should be consulted regarding the transfer ofany water right within the region.
[450] Section 36A ofthe Act expressly provides that neither the applicant for a resource consent nor the local authority has a duty under the Act to consult any person about an application for a resource consent. The only provision under the Act requiring consultation with Maori is Clause 3 of Schedule 1 of the Act, which does not apply to transfer of water permits. Under the Act permitted activities do not require a resource consent. There is nothing in the Act that requires any form of consultation in respect of undertaking such an activity.
[451] All other parties supported the transfer provisions. The agricultural caucusing experts agreed that there was a need for the transfer ofwater takes to provide flexibility and efficiency of water use for irrigatlon.l'" Mr Layton, the economist who gave evidence for the Agricultural Working Group, opined that the ability to transfer water permits would improve economic efficiencies. His view was that it would stimulate innovation and investment to find more efficient ways of using water to allow surplus
162 O'Sullivan, EIC, at [72] 163 O'Sullivan, EIC, at [74] 164 Preliminary statement ofmatters in agreement and disagreement regarding agricultural, at [6]
131 entitlements to be on-sold. 165 He expressed a view that ifthere were fewer restrictions on trading assets like a water permit, there would be greater potential gains in efficiency.
[452] Section 136(2) of the Act provides that the holder of a water permit granted other than for damming or diverting water, may transfer the whole or any part of the holder's interest in the permit:
(2) A holder of a water permit granted other than for damming or diverting water may transfer the whole or any part of the holder's interest in the permit-
(a) to any owner or occupierof the site in respect of which the permit is granted; or
(b) to another person on another site, or to another site, if both sites are in the same catchment (either upstream or downstream), aquifer, or geothermal field, and the transfer-
(i) is expresslyallowed by a regional plan; or
(Ii) has been approved by the consent authority that granted the permit on an application under subsection (4).
[453] That provision applies to the transfer ofpermits to take and/or use water. In terms of Section 136(2A), such a transfer may be for a limited period. An application for approval under ss (2)(b)(ii) must be jointly lodged by the holder and the transferee and is to be considered in accordance with specified sections as if it were an application for resource consent, and in addition the consent authority shall have regard to the effects of the proposed transfer.
[454] It is common ground that there were previously no rules in the Regional Plan expressly allowing a transfer. Variation 6 addresses transfers in Chapter 3.4 and introduces a permitted activity Rule 3.4.4.2 subject to a number of conditions. The explanatory text explains that historically water resources in the region have not generally been used efficiently and that the Council considers the promotion ofwater use efficiency to be an important resource management issue. Dr Sharp, the economist called by the
Council, supports the transfer ofwater rights as leading to efficiency. 166
rs Layton, EtC, at [1l2]- [116] 166 Sharp, rebuttal evidence, at [44]- [46]
132 [455] Mr van Voorthuysen considers that the conditions in the proposed new permitted transfer rule are appropriate for a permitted activity. He also considered that the matters in the restricted discretionary activity transfer, Rule 3.4.4.3 provides decision-makers with ample scope to ensure that any potential adverse effects on the Waikato River are avoided, remedied or mitigated.
[456] We are satisfied that in the interests of efficiency, it is appropriate to have rules enabling the transfer of water permits. We are also satisfied that the Council has struck an appropriate balance by enabling transfers, either by way of permitted or restricted discretionary activity status, but at the same time ensuring that any potential adverse effects on the Waikato River are avoided, remedied or mitigated.
133 7 DETERMINATION
[457] In accordance with our findings, and the reasons given in the decision, we make the following determination:
The decision of the Waikato Regional Council is amended by substituting the Decision version of Variation 6 with the 8 Augnst 2011 Version as set out in Appendix 2 save for the following:
A. The primary allocable flow at Karapiro Dam is to be set at 5% of the Qs flow;
B. Policy 8(c) is to be amended by adding the following words "that exceed the primary allocation ill Table 3-5 and" after the opening words "Restricting takes" and before the words "which reduce" so that it shall now read:
c) Restricting takes that exceed the primary allocation in Table 3-5 and which reduce the amount of water that would otherwise be available for renewable electricity generation or be used for cooling of the Huntly Power Station, including in particular any takes from the Waikato River catchment upstream of the HPS mixing zone that when assessed in combination with all other authorised water takes would exceed 100% of the primary allocable flows in Table 3-5.
C. Rnle 3.3.4.14 is to be amended by deleting the word "Existing" in the title to the rule and replacing it with "Replacing Authorised" so that it shall now read:
Replacing Authorised Existiag Taking of Surface Water for Domestic or Municipal Water Supply.
D. The Regional Council is to make any consequential amendments arising out
of A, B 01' C within two calendar months from the date of issue of this decision. Ifthere are any difficulties in implementing this direction, leave is granted to the Regional Council to apply to the Court for directions.
134 Comment
[458) We have already referred to the intensive and rigorous participatory process of this Variation and the integrity ofthat process. A process that culminated in the 8 August 2011 version ofVariation 6. That version and the few amendments to it as a result ofthis decision, reflects the quality ofthe Council's experts and advisors. They exhibited a fair and objective approach to their task. This has been appreciated by the Court. On the other hand, some of the other experts did not display the same objectivity. Their evidence at times appeared to us to be influenced by the objectives of their client rather than their obligations to the Court.
DATED at AUCKLAND this 3{),)/ day ofNovember 2011
For the Court:
135 136
BEFORE THE ENVIRONMENT COURT
Decision No. [2011] NZEnvC 380
Topic: Variation No.6 to the Proposed Waikato Regional Plan
VOLUME II
APPENDICIES
APPENDIXl List ofWitnesses 137
APPENDIX 2 Proposed Variation No.6 - Water Allocation Version 8 August 2011 141
APPENDIX 3 Line Wiring Diagrams ofProposed Variation 6 reflecting the 8 August 2011 Version 221 Appendix One 137
List of Witnesses - Variation 6 Hearing
Waikato Regional Council
Mr David Spiers - Variation 6 Overview
Dr Ross Woods - Catchment Description
Mr Steve Torrens - Energy
Dr Paul Franklin - Ecology
Dr Bob Rout - Irrigation and Water Resource Management
I?r Alistair McKercher - Hydrology
Dr Edmund Brown - Hydrology
Mr Robert van Voorthuysen - Planning and RMA Analysis
Dr Basil Sharp - Economics
Agricultural Working Group - Fonterra Co-Operative, Federated Farmers, Waihou Irrigators Inc and Upper Waikato Irrigators Society Inc
Mr Sean Newland - Company Evidence - Fonterra
Mr Martin Bennett - Company Evidence - Waihou Irrigators
Mr James Houghton - Company Evidence - Federated Farmers
Ms Karen Leov - Company Evidence - Manufacturing - Fonterra
Mr Gerard Willis - Planning
Dr Brent Layton - Economy
Mr Brian Cox - Energy
Mr Terence Heiler - Hydrology
Mr Anthony Peter Cuss ins - Hydrogeology
Raukawa Trust Board and Te Rununga 0 Ngati Tahu (Ngati Whaoa)
Ms Hester Den Ouden - Planning
Ms Stephanie O'Sullivan - Witness ofFact - Raukawa
Ms Ruthana Begbie - Witness ofFact - Raukawa
Mr Roger Pikia - Witness ofFact - Te Arawa
.,.....".Waikato - Tainui Te Kauhanganui Incorporated
cW11 FIIJ;} Mr Timothy Manukau - Planning Mighty River Power Mr Fraser Whineray - Company Evidence - Mighty River Power Mr Rob Hunter - Electricity demand and role ofWaikato Hydro Scheme Mr Bryan Bates - Municipal and Stockwater Use Mr Paul White - Hydrogeology Mr Roderick Henderson - Hydrology Mr (Arthur) John Male - Hydrology Mr Kieran Murray - Economics Mr Andrew Collins - Planning Mr Anthony Rhodes - Agricultural Consultant Mr Jeremy Nield - Farm Consultant Mr Walter Lewthwaite - Irrigation TrustPower Limited Mr Robert Schofield - Planning Mr Kerry Watson - Company Evidence Ms Emily Grace - Planning Waikato River Municipal Users Group - Hamilton City Council, Waipa District Council, Waikato District Council, Watercare Services Limited and Taupo District Council Mr Tim Harty - WRMUG Dr Deborah Corneby - Water conservation and demand management Mr Garry Maskill- on behalfof Watercare Services Limited Mr Richard Bax - Officer of Waikato District Council Mr Robert Shaw - Officer of Waipa District Council Mr Ted Anderson - Officer ofTaupo District Council Dr Brent Wheeler - Economist Ms Paula Hunter - Planning Burton - Planning 139 Solid Energy New Zealand Limited Ms Jennifer Carvill- Planning Carter Holt Harvey Mr Jim Newfield - National Environmental Manager - Carter Holt Harvey Horticulture New Zealand Mr Kevin Balle - Grower - Witness ofFact Mr Peter Silcock - CR Horticulture New Zealand Mr Brent Wilcox - Grower - Witness ofFact Mr Peter Reynolds - Grower - Witness ofFact Mr Chris Keenan - Policy Mr Andrew Barber - Technical Mr Stewart Ford - Economics Department of Conservation Mr Alan Matheson - Planning Mr Michael Lake - Freshwater Ecology Genesis Energy Limited Mr Robert John Weir - Company Evidence Mr Robert John Keller - Hydrology Mr Jim Truesdale - Significance ofWaikato River to Electricity Generation Mr Phillip Mitchell- Planning Contact Energy Ms Emily Grace - Planning Newmont Waihi Gold Limited Mr Glen Grindlay - GM Newmont - Mining Wairakei Pastoral Limited Mr James Muir - Energy Mr Ian Varley - Water Resource Engineer Evans - Economics 140 Mr Jon Williamson - Hydrology Ms Kim Hardy - Planning Appendix Two 141 Proposed Waikato Regional Plan Proposed Variation No.6 Water Allocation CLEAN VERSION End of Environment Court Hearing Version - 8 AUGUST 2011 142 J Environment Waikato PO Box 4010 HAMILTON EAST August 2011 Doc # 2026779 143 Table of Contents 3.3 Water takes 7 3.3.1 Issue 9 3.3.2 Objective 12 3.3.3 Policies 13 Policy 1: Establish Allocable and Minimum Flows for Surface Water 13 Policy 1A: Determining the level of minimum flows. primary, secondary and water harvesting allocable fiows 14 Policy 1B:Determining the combined level of surface water allocation within a catchment. 15 j Policy 2: Establish Sustainable Yields from Groundwater 15 Policy 2A: Determining sustainable yields 16 Policy 2AB: Certain Exceedences of Table 3-5 Allocable Flows not to be Considered Over-allocation for the Purposes of the Freshwater NPS ...... 16 Policy 2B:How Surface Water Takes Will Be Classified in Catchments Where Existing Takes Exceed the Table 3-5 Allocable Flows 17 Policy 3: How Surface Water Takes Will Be Classified in Catchments that do not Exceed the Table 3-5 Allocable Flows 17 Policy 4: How Surface Water Takes for Domestic or Municipal Supply Will Be Classified 19 Policy 5: How Groundwater Takes will be Classified 19 Policy 8: Consent Application Assessment Criteria - Surface Water 21 Policy 9: Consent Application Assessment Criteria - Groundwater 22 Policy 9A:Non-Complying Activities within the Waikato River Catchment above Huntly and Karapiro 25 Policy 9B:Non-Complying Activities outside Waikato River Catchment and below Huntly within Waikato River Catchment 26 Policy 11: Consent Duration for the Taking of Water 26 Policy 12:Water Take Recording and Reporting 27 Policy 13:Water Shortage Conditions 28 Policy 14: Levels of Priority to Apply During Water Shortages 28 Policy 15: Phasing Out Exceedences of the Table 3-5 Allocable Flows 29 Policy 16: Surface Water Harvesting 29 Policy 17: Shared Use and Management of Water 29 Page 3 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 144 3.3.4 Implementation Methods - Water Takes 30 3.3.4.1 Environmental Education 30 3.3.4.2 Integration with Territorial Authorities 30 3.3.4.3 Water User GroupsNoluntary Agreements 30 3.3.4.4 Estimating Permitted Takes and s14(3)(b) Takes 31 3.3.4.5 Investigations 31 3.3.4.6A Development of Minimum and Allocable Flows for Surface Water Bodies and Sustainable Yields for Aquifers 31 3.3.4.6B Groundwater Depletion of Surface Water 31 3.3.4.6C Assessment of hydrological flow statistics for water allocation 32 3.3.4.7 Review Allocable Flows/Sustainable Yields 32 J 3.3.4.8 Phasing Out Exceedences of the Table 3-5 Allocable Flows 33 3.3.4.8A Conditions relating to Water Management Plans 34 3.3.4.9 Permitted Activity Rule - Supplementary Groundwater Takes 35 3.3.4.10 Permitted Activity Rule· Supplementary Surface Water Takes 36 3.3.4.11 Permitted Activity Rule - Temporary Takes 37 3.3.4.12 Permitted Activity Rule - Well or Aquiter Testing 37 3.3.4.13 Controlled Activity Rule - Taking of Surface Water 38 3.3.4.13A Controlled Activity Rule - Taking of Surface Water for Cooling Water for the Huntly Power Station 39 3.3.4.14 Controlled Activity Rule - Existing Taking of Surface Water for Domestic or Municipal Water Supply .40 3.3.4.14A Controlled Activity Rule - Taking of Surface Water for Existing Milk Cooling and Dairy Shed Wash Down 42 3.3.4.14B Controlled Activity Rule - Taking of Groundwater for Existing Milk Cooling and Dairy Shed Wash Down .43 3.3.4.15 Restricted Discretionary Activity Rule - The Taking of Surface Water. 45 3.3.4.15A Restricted Discretionary Activity Rule - Surface Water Harvesting .46 3.3.4.16 Discretionary Activity Rule - Surface Water Takes 47 3.3.4.18 Discretionary Activity Rule - Groundwater Takes 49 3.3.4.19 Non-Complying Activity Rule - Surface Water Takes From Wetlands, Natural State Water Bodies and Lakes .49 3.3.4.20 Non-Complying Activity Rule - Water Takes 50 3.3.4.21 Standard - How Water Shortage Restrictions Shall Apply 50 Page 4 Prepared for the Environment Court Hearing CLEANVERSION - 8 August 2011 145 Table 3-4: Surface Water Take and Use - Recording Type and Frequency 28 Table 3-4A Catchment Investigation Dates 33 Table 3-5: Allocable Flows for Surface Water 52 Table 3-6: Sustainable Yields from Aquifers 59 3.4 Efficient Use of Water 61 3.4.1 Issue 61 3.4.2 Objective 62 3.4.3 Policies 62 Policy 1: Manage the Use of Water 62 Policy 2: Efficient Use of Water 62 J Policy 3: Transfer of Water Permits 63 3.4.4 Implementation Methods - Transfer of Water Take Permits 64 3.4.4.1 Environmental Education 64 3.4.4.1A Consents for Transfer of Water 64 3.4.4.2 Permitted Activity Ruie - Transfer of Surface Water and Groundwater Take Permits 64 3.4.4.3 Restricted Discretionary Activity - Transfer of Surface and Groundwater Take Permits 65 3.4.4.3A Non-Complying Activity Rule -Transfer of Surface and Groundwater Take Permits 67 3.4.5 Implementation Methods - The Use of Water 67 3.4.5.1 Environmental Education 67 3.4.5.2 Good Practice 68 3.4.5.3 Crop and Pasture Monitoring Programme 68 3.4.5.4 Permitted Activity Rule - Use ofWater. 68 3.4.5.5 Restricted Discretionary Activity Rule - Use of Water 68 3.4.5.6 Permitted Activity Rule - Use of Water for Crop and Pasture Irrigation 69 3.4.5.7 Controlled Activity Rule - Use of Water for Crop and Pasture Irrigation 69 3.4.5.8 Discretionary Activity Rule - Use of Water for Crop and Pasture Irrigation 71 Glosary of New Terms 72 Consequential Amendm ents arisi ng out of proposed changes to Chapters 3.3 and 3.4 77 \, ( ': I \ Page 5 , i ~ Prepared for the Environment Court Hearing , i , i CLEAN VERSION - 8 August 2011 I ( (jlJ\1\\ ...... / 146 147 3.3 Water takes Background and Explanation Chapters 3.3 and 3.4 comprise of issues, objectives, policies and implementation methods which set out the Plan's approach to the protection, allocation and use of the Region's surface and groundwater resources (excluding geothermal water which is addressed elsewhere in the Plan). These chapters are based upon the following broad approach: The need for a carefully managed water allocation regime • The Waikato River Co-Management framework introduces a range of co-management (refer to definitions) principles that give effect to agreements between Waikato River Iwi and the Crown regarding all aspects of the management of the Waikato River and its catchment. This includes, but is not limited to, the development of the Vision and Strategy which is the primary direction selling document for the Waikato River and activities within its catchment affecting the Waikato River. This water allocation regime J must give effect to the Vision and Strategy which is now part of the Waikato Regional Policy Statement. • Recognition that the overarching purpose of the Vision and Strategy is to restore and protect the health and wellbeing of the Waikato River for present and future generations and that this is a key priority in the development of a water allocation model. Any allocation regime must give effect to that overarching purpose. • Having regard to the overarching purpose of the Vision and Strategy, recognition that in many parts of the region, demand for surface water and groundwater resources exceeds, or has the potential to exceed, the ability of the surface and groundwater resources to sustainably meet all such demand and so a carefully managed water allocation regime is necessary. The allocation regime should also ensure that the taking and subsequent use of water does not cause further degradation of the water quality of the Waikato River. Priorities recognised in setting and Implementing allocable flows and sustainable yields •Objectives which ensure that in establishing allocation regimes, effect is given to the overarching purpose of the Vision and Strategy to restore and protect the health and wellbeing of the Waikato River. The objectives should reflect the special relationship of iwi with particular water bodies and accordingly provide for iwi involvement in determining and reviewing the allocable and environmental flows for those water bodies. The objectives should also ensure that water is available to meet the reasonable needs of individual and communities; continued water is available for renewable energy generation and cooling of the Huntly Power Station, water for in stream requirements during water shortages and droughts is available and that decisions on water allocation take account of the contaminant assimilative capacity of water bodies. • Policies which, subject to achieving the overarching purpose of the Vision and Strategy, establish allocable and environmental flows from surface water and ,.- ...... sustainable yields from groundwater based on a range of factors including rnatauranqa -:,. \,\-J\\ !?.r Iii Maori. The policies should also provide for the input of iwi in determining any allocable %~ «' and environmental flows, and allocation priorities, with respect to the Waikato River (; '(',;) ":1) )~~ 0 \ f E ' C Page 7 ~._._.J,. ( •\• ./ Prepared or the nvlronrnent ourt Hearing -_ '1 \1 'l,i'I' :.c' CLEAN VERSION - 8 August 2011 \ v . I:'):t'_c' \")2,\ .. f,. . ,:- t..;"J '// . ' .' //' 'It -v., ' /.(.~ \ . ~fr C()lJ\il ", 148 Catchment, as well as state how ground and surface water will be allocated. Priority for consideration for allocation reflects the purpose of protecting and enhancing the health and wellbeing of the Waikato River and achieving a net improvement in water quality, and subject to this has been given to water for domestic or municipal supply and replacement of existing water takes. • Rules reflect the overarching purpose of the Vision and Strategy to restore and protect the health and wellbeing of the Waikato River and achieve a net improvement in water quality, and subject to this, the priority given to domestic or municipal supply and replacement of existing takes in the policies. The rules also ensure that there is not the ability of one abstractor to take the entire allocable flow of a river without adequate consultation with neighbours. • Chapter 3.3 includes policies which state which matters the Council will have particular regard to in assessing a resource consent application. In particular, these require J applications to take or use water from the Waikato River to demonstrate that the proposed activity will not detract from the overarching purpose of restoring and protecting the health and wellbeing of the Waikato River. Relevant information is made available to resource users • Water Allocation maps are included in the Plan to illustrate the catchments in which the allocable flows and sustainable yields in Tables 3-5 and 3-6 apply. The efficient allocation and use of water • Common review dates for various sub-catchments in the Region are included as is requirements for water metering. • Chapter 3.3 contains rules restricting permitted takes. The level of permitted takes is capped at the primary allocable flow. • Rules are included in Chapter 3.4 which permit the transfer of surface water permits and control the transfer of groundwater permits. •Policy and rules are included in Chapter 3.4 which manage the use of water. In particular rules are included which control the use of water for crop and pasture irrigation in the catchment of the Waikato River from the Karapiro Dam to the Taupo Control gates or in the catchments of Lakes Taharoa, Maratoto, Serpentine (North, South and East), Rotomanuka, Mangahia, Rotongaro, Okowhao, Whangape, Waikare, Kuratau, Mangakaware, Ohinewai, Waahi, and Rotokawau, and Whangamarino wetland, Kopuatai peat dome, wetlands listed in Section 3.7.7 of the Waikato Regional Plan, and the Opuatia wetland. Clear and equitable management of water shortage conditions •Policies are included that clearly state what a water shortage is, the priority to apply during water shortages and how restrictions shall be applied. .'\ ,;\:1\[ 0/'" --I,;"':~;-~---'7 ------= :-::-;;- ?0 Page 8 ~:I~q{ Prepared for the Environment Court Hearing .J ''1\ J) I)'~I CLEAN VERSION - 8 Augus t 2011 :.9S}:, 11,':'"'...... ( ~(:t .-: .\'" 'Coim\\~ 149 The policies and rules in this chapter do not relate to the allocation and management of Geothermal Water unless explicitly stated otherwise. The allocation and management of geothermal energy and geothermal water is addressed in Module 7 - Geothermal. The provisions in Chapter 3.3 do not apply to the taking of water for a dam or diversion where water passes through or over the dam or diversion in the river channel. Such takes are managed by the policies and rules in Chapter 3.6. 3.3.1 Issue In addition to the effects addressed in Issue 3.1.1, the taking and use of water can give rise to, or must respond to, the following: a) The taking of water can reduce the ability of water bodies to assimilate contaminants from point and non-point sources. In relation to the Waikato River catchment this is inconsistent with giving effect to the overarching purpose of restoring and protecting J the health and wellbeing of the Waikato River for present and future generations. aa) The allocation and use of water, if not managed appropriately, can adversely affect the restoration and protection of the health and well-being of the Waikato River as well as the spiritual, physical and economic wellbeing, identity and cultural practices of those iwi whose mana and mauri the river represents. b) The inefficient allocation and use of water within the Region can significantly reduce the benefits to be derived from the use of the resource. ba) The allocation of water currently used for the generation of electricity to other uses will reduce existing electricity generation, and this can have adverse effects on the social and economic wellbeing of people and communities. bb) The allocation of water to activities other than domestic or municipal supply may have the potential to compromise the renewal of existing domestic or municipal supply takes and the granting of future applications for reasonably justified and foreseeable domestic or municipal supply needs. bc) Existing water takes contribute to the social and economic wellbeing of people and communities and in some cases significant investment relies on the continuation of those takes. bd) The ability to provide for the growing social and economic needs of people and communities, is dependent on water being available, where possible, to accommodate growth both in individuals' and communities' domestic needs and production and community activity (including rural-based activities such as agriculture, perishable food processing and industry). c) The unmanaged taking of water during periods of shortage, or over allocation of water resources, can: ia) significantly impact on the quality of the Region's water bodies; i) compromise the ability of individuals and communities, to provide for their essential water use requirements, including domestic or municipal supply or for stock watering, and may result in adverse effects on the environment. ii) reduce the ability of water bodies and estuaries to transport sediment, with consequent increases in flooding and stream bank instability iii) increase the risk of salt water intrusion to aquifers on account of high seasonal r' '., /; ':;UI, 01 ;' demand I' ":0~ /., \' ' -,---,:-:~------.,=--;;- I'" (", -I) c' I Page 9 0"'" . .: Prepared for the Environment Court Hearing 'If' :i(.J II.. . '. 9)'; iv) increased threats to estuarine ecosystems on account of adverse changes to the quantity and quality of fresh water inflows. cal Some catchments are currently allocated in excess of the combined primary and secondary flows set in Table 3-5 and that exceedence should be phased out over time. d) The unmanaged transfer of permits for the taking of water limits the potential to fully utilise the allocable resource, may limit the range of reasonably foreseeable uses and may result in adverse effects on the environment. e) The individual and cumulative effects of the taking of water may; i) constrain the ability to protect and enhance the health and wellbeing of the Region's water bodies, and result in the degradation of water quality and aquatic habitat ii) impact on cultural relationships with the water bodies in the Region iii) limit the availability of water for other actual and potential uses J iv) compromise the generation of electricity from renewable energy sources and cooling of the Huntly Power Station. Explanation: This issue addresses matters which are either not included in Issue 3.1 .1 or which are included but are not clearly attributable to water allocation and use. Part a) acknowledges that the taking of water out of a water body reduces its ability to assimilate (dilute) contaminants and that this may compromise the legitimate use of the resource for this purpose. The transfer of permits is a mechanism by which greater efficiency of use may be achieved and which should not be overly constrained by pian rules. Part aa) reflects the Vision and Strategy for the Waikato River which has as the overarching purpose of restoring and protecting the health and wellbeing of the Waikato River for present and future generations. Part aa) also recognises and acknowledges the importance of the relationship of Waikato River Iwi with the region's waterways and in particular the Waikato River and how this may be impacted by the taking and use of water. Part b) recognises that the inefficient allocation and use of water can reduce the benefits of the use of the resource, to other users. Part ba) recognises that water allocated to electricity generation has significant social and economic benefits. Part bb) reflects that increasing demand and competition for water resources has the potential to lead to over allocation of those resources and compromise the ability to provide for the health and wellbeing of existing communities and for their future growth. Part bc) recognises that many existing uses of water are associated with significant and productive activities that contribute to economic and community well-being and depend on a secure supply of water. ",.'_... Part c) recognises that unmanaged taking of water during water shortages and over , ·sIN. Or / ~U.o c a t i o n of water resources can significantly compromise the quality of the Region's water '~ ~. ' . -,- re.. sources, as well as the ability of individuals and communities to provide for their essential No) C'1, I ,,',water use, When water shortages or over allocation of resources occur there may not be ~'-;i " ~"'j k Page 10 ~~ ~"1. I' "'. "",:! :2 Prepared for the Environment Court Hearing ';P. ',' "~'J", ',0 CLEANVERSION-8 Augusl2011 (;j;. ';!:,,), '.' -, ~ .~I q,1:~, . __ _ _ r""'~ enough water to supply everyone's needs, and to avoid adverse effects on the environment. Therefore takes need to be appropriately managed to ensure that adverse effects on the environment are avoided, and domestic or municipal supply can be maintained and future growth of communities can be provided for. Part cal recognises that in some catchments the existing abstractions exceed the Table 3-5 allocable flows. This has occurred for a number of reasons, including: a) users being unaware of, or disregarding rules regulating water takes; b) the cumulative effect of numerous small resource consents continuing to be granted in heavily allocated catchments; c) assessment of minimum and allocable flows in some catchments resulting in a reduction in the amount of water available for allocation; and d) assessment of minimum and allocable flows in some catchments being conservatively I set in the absence of a detailed ecological investigation. ~ The NPS on Freshwater Management requires allocation limits to be set and defines 'over allocation'. Chapters 3.3 and 3.4 were developed prior to the release of the Operative NPS and it was not intended that an exceedence of an allocable flow as set out in Table 3-5 would be considered to be 'over-allocation' as defined in the NPS. The flows in Table 3-5 have been set to achieve Objective 3.3.2 and they also determine the activity status of water take consent applications. The activities identified in Policy 2AB are enabled to achieve aspects of Objective 3.3.2. Part d) recognises that the unmanaged transfer of permits can result in situations where the reverse is the case and parties may hoard the resource or make inefficient use of existing permits in order to maximise economic returns from trading. Part e) recognises that the cumulative effects of takes of water, particularly large numbers of un-recorded permitted takes, can be significant and can, under some circumstances, impact on the consented taking and use of water. Without management, and if appropriate, capping of these small takes, this effect could significantly detract from the ability of other users to provide for their social, economic and cultural well being. Part e) Sub-clause (iii) further recognises that the benefits to be derived from the use and development of renewable energy are a matter to which particular regard shall be had under Section 70) of the Resource Management Act 1991 . The taking of water from the catchments upstream of the Karapiro Dam including the Waikato River and Lake Taupo, can cumulatively impact on the generation of electricity from renewable energy sources and the cooling of the Huntly Power Station. As well as being a valued natural resource in its own right, Lake Taupo also plays an integral role in the flexible operation of the Waikato Hydro Scheme through providing critical hydro storage capacity which can be relied on to provide a buffer during drier periods. As such, this issue has year-round relevance. The Tongariro Power Scheme (TPS) and the Waikato Hydro Scheme work as an integrated system. The TPS draws water from four catchments (Whanganui, Whangaehu, Moawhango and Waikato River) and diverts the water into Lake Taupo. The water diverted from outside the Waikato River catchment plays a significant role in both providing additional flow to the Waikato Hydro Scheme and the cooling system at HPS. Page 11 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 152 3.3.2 Objective In addition to Objective 3.1 .2, the management of water allocation and use in a way which ensures: (aa) Giving effect to the overarching purpose of the Vision and Strategy to restore and protect the health and wellbeing of the Waikato River for present and future generations. a) The availability of water to meet the existing and the reasonably justified and foreseeable future domestic or municipal supply requirements of individuals and communities and the reasonable needs for an individual's animal drinking water requirements. ab) The recognition of the significant community benefits that derive from domestic or municipal supply takes. ac) The efficient allocation and the efficient use of water. b) No further allocation of water that exceeds the primary allocation in Table 3-5 that J reduces the generation of electricity from renewable energy sources. ba) The recognition that existing water takes contribute to social and economic wellbeing and in some cases significant investment relies on the continuation of those takes, including rural-based activities such as agriculture, perishable food processing and industry. cal The continued availability of water for cooling of the Huntly Power Station. c) Sufficient water is retained instream to safeguard the life supporting capacity of freshwater, including its ecosystem processes and indigenous species and their associated ecosystems. d) That decisions regarding the allocation and use of water take account of the need to avoid the further degradation of water quality, having regard to the contaminant assimilative capacity of water bodies. e) SUbject to Objectives aa) to c) above, the availability of water to meet other future social, economic and cultural needs of individuals and communities (including rural based activities such as agriculture, perishable food processing and industry.). Principal Reasons for Adopting the Objective: This objective addresses matters which are either not included in Objective 3.1.2 or which are included but are not clearly attributable to water allocation and use. The purpose of Part aa) is to ensure that the Vision and Strategy for the Waikato River which has as the overarching purpose of restoring and protecting the health and wellbeing of the Waikato River for present and future generations is given effect. The purpose of Part a) is to protect the ability of communities to grow and still have certainty that they will be able to provide adequately for their reasonable and efficient domestic or municipal supply needs. This is a matter of priority for the Waikato Regional Council. The certainty could be provided by limiting the duration of other take consents in order to ensure that water remains available to meet the growth needs of communities, imposing conditions on other take consents which provide for review of the volume of water taken, or even declining to grant other consents, where appropriate. The purpose of Part ab) is to guide ~ ;',',M orde;9ision-makers to give priority to the taking of water for domestic or municipal supplies. ",:,. .- - However, future growth requirements will need to be reasonably justified in a Water Page 12 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 153 Management Plan. The purpose of Part ac) is to ensure that water is allocated in a manner that promotes economic, technical and dynamic efficiency and that it is used in a manner that is efficient. The purpose of Part ba) is to recognise the importance of existing takes. Section 70) of the RMA provides for electricity generation from renewable energy sources as a matter to which Council must have particular regard. This legislative requirement is acknowledged in part b) and in appropriate policies in this Chapter. The purpose of Part b) is to ensure that any reduction in electricity generation from renewable energy sources is confined to that resulting from takes falling within the primary allocation. Part cal acknowledges the importance of the Huntiy Power Station to the national electricity supply system, and foreshadows making the renewal of the existing cooling water take a controlled activity. During periods of water shortage or as a result of over allocation, in stream values are often compromised by the continued taking of water without appropriate guidance on methods for management of low flow situations. Part c) and subsequent policies and rules seek to avoid these effects and maintain environmental flows in stream values. Part d) and the parallei objectives in Chapters 3.5 and 3.6 ensure that when allocating water, considering discharges to water or the damming and diverting of water, both the effects on water quality and contaminant assimilative capacity and allocable flow are considered . The purpose of Part e) is to recognise the importance of water for future uses other than electricity generation and domestic or municipal supply. 3.3.3 Policies Policy 1: Establish Allocable and Minimum Flows for Surface Water (Implements Objective 3.1.2 a), b), c), d), e), g), i) j) k) I) 0) and p) and Objective 3.3 .2. Also refer to Section 3.2.3 Policy 2 a)iii)) Establish and review allocable and minimum flows for surface water bodies which are to be used when assessing authorised water takes and resource consent applications from surface water bodies while having particular regard to the following matters: aa) Giving effect to the overarching purpose of the Vision and Strategy to restore and protect the heaith and wellbeing of the Waikato River for present and future generations. ab) The recognition of the relationship between tangata whenua with water bodies and providing for tangata whenua input in determining their values and interests, and reviewing the allocabie and minimum flows for those surface water bodies. a) The maintenance and enhancement of water quality in accordance with the policies in Chapter 3.2 of this Plan. b) The avoidance of further degradation of water quality having regard to the contaminant assimilative capacity of water bodies. c) The benefits of flow regime variability, inciuding sediment transport and natural flushing and flood flows. The avoidance of significant adverse effects on in stream ecological values and biodiversity and the remediation or mitigation of adverse effects otherwise. Page 13 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 154 e) The protection of wetlands and areas of significant indigenous vegetation and significant habitats of indigenous fauna . I) The security of existing, efficient take and use of water and the associated lawfully established infrastruct ure. g) Maintenance and enhancement of tangata whenua uses and values of water, including the ability to exercise kaitiakitanga and measures to protect and enhance the mauri of water bodies. h) Maintenance of identified recreational and intrinsic values and the natural character of rivers. i) The benefits derived from the use of water for, or directly associated with, the genera tion of electricity from renewable energy sources and the cooling of the Huntly Power Station. ia) The benefits derived from the existing take and consumptive use of water for people's social, economic and cultural wellbeing . j) The benefits to be derived from the efficient take and use of water for reasonably foreseeable future consumptive uses, and in particular existing and reasonably justified and foreseea ble future needs for domestic or municipal supply and the reasonable needs for an individual's animal drinking water. k) The effects of climate change on surface water resources. Advisory Notes: •Refer to Method 3.3.4.6A Development of Allocable and Minimum Flows for Surface Water Bodies and Sustainable Yields for Aquifers on how Policy 1 will be implemented . •Information on the level of allocation from surface water bodies as listed in Table 3-5 can be found on Waikato Regional Council's website (waterallocationcalculator) Policy 1A: Determining the level of minimum flows, primary, secondary and water harvesting allocable flows (Implements Objective 3.1.2 a), b), c), d), e), g), I), n, k), I), 0) and p) and Objective 3.3.2. Also refer to Sectio n 3.2.3 Policy 2 a)iII)) When implementing Policy 1, the Waikato Regional Council shall: a) Except as provided for in clause (e) below, determine minimum flows having particular regard to Policy 1 above following detailed habitat and river studies. Where such studies have not been undertaken, the minimum flow shall be set at 90% of the one in five year 7-day low flow (Qs) for streams with a mean flow greater than 5 cumecs and 95% of the Q s for streams with a mean flow less than 5 cumecs . One function of the minimum flow is to determine when water take restrictions commence. b) Except as provided for in clause (e) below, determine primary allocable flows having particular regard to Policy 1 above, the need to safeguard the minimum flow and the desirabili ty of providing a high level of reliability for allocated water. To achieve that, primary allocable flows shall be set on the basis of the difference between the minimum flow and the Q s flow. If the minimum flow is greater than the Qs the allocable flow is zero. c) Except as provided for in clause (e) below, determi ne seconda ry allocable flows as that portion of the Q s flow that can be taken from a river with a lower level of reliability and "'-~'r;;L 0: which does not compromise the reliability of the primary all?cable flow. The level of the ,"..:~,:- ...> . I I;y>secondary allocable flow shall be deemed to be the portion of the flow between the ~ . primary allocable flow and 30% of Q s except as otherwise specified in Table 3-5. r,yr.; (: ',' /] W."' Page 14 ••J . \'1'" '1" ~ Prepared for the Environment Court Hearing /o r'. -' ,·l.: CLEAN VERSION - 8 August 2011 ../. ' "'. //,'./ '·1· .\ .. /01t;- COllII \ \'-\. -. . 155 d) In addition to the primary and secondary allocable flows, provide for surface water harvesting at an amount up to 10% of the river's flow at times when the flow is greater than the median flow immediately upstream of the point of the take. However, surface water harvesting shall not be allowed in catchments upstream of Karapiro Dam. e) Determine the primary allocable flow at Karapiro Dam to be set at 3.6% of the as flow in order to provide for existing authorised water takes in the catchment above Karapiro while protecting electricity generation from the Waikato Hydro Scheme. While in other catchments of the region, the primary allocable flow is the fraction of the as fiow remaining after the minimum flow has been specified (as in clause b above), in the catchment above Karapiro the primary allocable flow of 3.6% of as has been set first and the minimum flow is simply the remaining fraction of the as flow (96.4%). In reality, the Waikato Hydro Scheme uses all water remaining in the river (I.e. after any water that is authorised to be taken from within the primary allocable flow has been abstracted) to generate electricity in a renewable manner. The water used for electricity generation includes both the minimum flow component and all variable flows above the primary allocation. The entire variable flow is used to generate electricity and so no secondary allocable flow is specified in Table 3-5 and no surface water harvesting is able to be undertaken in the catchments above the Karapiro dam. Po li cy 1B: Determining the combined level of surface water allocation within a catchment. (Implements Objective 3.1.2 b), c), d), e) i) j) k) I) and 0) and Objective 3.3.2. Also refer to Section 3.2.3 Polley 2 a)lii)) In determining the combined level of surface water allocation in catchments and the activity classification of a particular surface water take, in accordance with Policies 3 and 4 and the associated rules the Waikato Regional Council shall: a) Assess all the takes on a net take basis at the point of take and at each affected downstream reach; b) Assess all the takes for the months of the year for which the particular take will be authorised to abstract water; c) Classify the particular surface water take on the basis of the relevant reach in the catchment (part a» and the time of year (part b) that gives the most onerous activity classification Advisory Note: • Where summer allocation fully utilises the primary and secondary allocable flows (given in Table 3·5), this does not preclude the further allocation of water during other parts of the year, with a more preferable activity classification than would apply to a summer allocation, if the allocation for the other parts of the year is less than the combined primary and secondary allocable flows. Policy 2: Estab lish Sustainable Yields from Groundwater (Implements Objective 3.1.2 f) and m) and Objective 3.3.2 all Establish, set and review sustainable yields from groundwater resources which are to be used when assessing authorised water takes and resource consent applications from aquifers while having particular regard to the following matters: .,.' "'''. aa) Giving effect to the overarching purpose of the Vision and Strategy to restore and /'x:"") I ~'F 0. protect the health and wellbeing of the Waikato River for present and future " ,.. --.... ,<' generations. 1\\ i. . -'-, -',----i\ ------;c-----;c;c ~~ ~( \1 ~ ;. 'il )§ Prepared fo r the Environment Court Hearing Page 15 ::[.', ~ . ) :;;! CLEAN VERSION - 8 August 2011 ~~~ /",' '/./\i ;y-,. ------.(. < \il'1' ;:;" JPI ;::: 156 ab) The recognilion of the relationship between tangata whenua with groundwater resources and providing for tangata whenua input in determining their values and interests, and reviewing the sustainable yields for those groundwater resources . a) The protection of groundwater resource from salt intrusion b) The need to ensure that any groundwater discharges into surface waters are not reduced such that there is a resultant significant adverse effect on in-stream uses and vaiues (including wetlands and karst systems) and on other ailocated use c) The need to ensure groundwater depletion or dewatering of aquifers does not result in significant adverse effects on resource availability d) The maintenance of groundwater quality in accordance with the policies in Chapter 3.2 of this Plan ea) The benefits derived from the take and consumptive use of groundwater for people's social, economic and cultural welibeing eb) The loss of benefits derived from the generation of electricity that can result from groundwater takes above Karapiro e) The benefits to be derived from the efficient take and use of groundwater for reasonably foreseeable future consumptive uses, and in particular for domestic or municipal supply and the reasonable needs for an individual's animals drinking water f) The maintenance of security of existing, efficient take and use of water and the associated lawfuliy established infrastructure g) Maintenance of tangata whenua uses and values h) The effects of climate change on groundwater resources i) The avoidance of a reduction in recharge groundwater flows to Geothermal Systems. Advisory Notes: • Refer to Method 3,3.4 .6A Development of Allocable and Minimum Flows for Surface Water Bodies and Sustainable Yields for Aquifers on how Policy 2 will be implemented, • Information on the level of allocation from the aquifers as listed in Table 3-6 Sustainable Yields from Aquifers can be found onWaikato Regional Council's website (water allocation calculator) . Policy 2A: Determining sustainable yields (Implements Objective 3.1,2 f) and m) and Objective 3,3.2 a)) Sustainable Yields shall be determined having particular regard to Policy 2 foilowing detailed investigation of aquifers. In the absence of a Sustainable Yield being determined, a management level will be set on a conservative basis having particular regard to Policy 2 using a water balance methodology that takes account of: a) Average annual recharge over the aquifer b) Area of land above the aquifer c) Distribution of groundwater users The management level represents a portion of an aquifer's likely recharge and will be used as a trigger point for the setting of a sustainable yield. Policy 2AB: Certain Exceedences of Table 3-5 Allocable Flows not to Represent Over-allocation for the Purposes of the Freshwater NPS "''';' ;i~~l Or: (Implements Objective 3.1.2 and 3.3.2) "_-~'~;iY<' ~ Page 16 r:,~,~; (~" }., 'l Prepared forthe Environment Court Hearing OJ ,~j!)-. "/r \ C:l ~ 'f '\1 ,:'(,1 ::; CLEAN VERSION - 8 August 2011 :.>1' ""/",-, 'i) "., ,'!, /;.:. • , '" \ -I /,;1:, -, \ .I , ~/)...... ,;\ .. ~wr6Jllli\W' .,' 157 Takes that may exceed the combined primary and secondary allocable flows in Table 3-5 in order to achieve one or more limbs of Objective 3.3.2 for the following types of activities do not represent "over-allocation" as defined in the Interpretation section of the National Policy Statement for Freshwater Management 2011 : a) In recognition of Objective 3.3.2(a) and 3.3.2(ab) and the statutory requirement to provide potable water for people and communities, takes to meet the existing and reasonably justified and foreseeable domestic or municipal supply requirements of individuals and communities where a water management plan which meets the requirements of Method 8.1.2.2 has been provided. b) In recognition of Objective 3.3.2(ba), takes to meet existinq and reasonably justified needs for milk cooling or dairy shed wash down where applications for those takes are lodged prior to 1 January 2015. c) In recognition of Objective 3.3.2(a) and 3.3.2(ba), takes relying on section 14(3)(b) of the Resource Management Act that were occurring prior to 15 October 2008. J Policy 2B: How Surface Water Takes Will Be Classified in Catchments Where I Ex isting Takes Exceed the Table 3-5 Allocable Flow s (Implements Objective 3.1.2 and 3.3 .2) In the catchments where the combination of all authorised water takes exceeds the combined primary and secondary allocable fiows in Table 3-5 the Waikato Regional Council will manage the further allocation of surface water by classifying the taking of surface water on a net take basis as: a) A Controlled Activity for existing domestic or municipal supply takes that comply with Policy 4(a); b) A Controlled Activity for existing milk cooling and dairy shed wash down takes where applications to authorise those takes are lodged prior to 1 January 2015; c) A Restricted Discretionary Activity for water harvesting takes undertaken in accordance with Policy 16; d) A Discretionary Activity for takes relying on section 14(3)(b) of the Resource Management Act that were not existing prior to 15 October 2008; e) A Discretionary Activity for all other existing and replacement takes; f) ADiscretionary Activity for any take that is a zero net take; g) A Discretionary Activity for new takes for domestic or municipal supplies that comply with Policy 4(d); and h) A Non-complying Activity for any other new take. Policy 3: How Surface Water Takes Will Be Classified in Ca tchments that do not Exceed the Table 3-5 Allocable Flows (Implements Objective 3.1.2a), f) and p) and Objective 3.3.2 a), b) and d)) Except as provided for in Policy 4 the Waikato Regional Council will manage the allocation of surface water in catchments that do not exceed the combined primary and secondary allocable flows in Table 3-5 on a net take basis by: , .., '" a) Classifying takes as being authorised without the need for resource consent if such ~ S'i"1II. 0; h. takes: -, <,' -+--'-;------;;-::-Page==17 Prepared for the Environment Court Hearing CLEAN VERS ION - 8 Aug ust 2011 158 i) Are allowed by s14(3)(b) RMA purposes, except as restricted in part b) of this policy and in any associated rules, or ii) Do not exceed 15 cubic metres per day, except for the main stems of the Waikato River downstream of Lake Taupo and the Waipa River downstream of Otorohanga in which case takes shall not exceed 30 cubic metres per day, and except as provided for in part ca) of this policy and in any associated rules, or iii) Are temporary takes up to 150 cubic metres per day except as provided for in part ca) of this policy and in any associated rules. ab) Classifying as a controlled activity any take existing at 15 October 2008 that was for the purposes of milk cooling or dairy shed wash down provided the effects of the take are avoided, remedied or mitigated b) Classifying as a non-qualifying s14(3)(b) take and a discretionary activity any take which was not existing prior to 15 October 2008 and would otherwise be allowed by s14(3)(b) of the RMA except that when assessed in combination with all other existing authorised water takes within the same catchment, is for a rate greater than 100 percent of the primary allocable flow in Table 3-5 ca) Except where part c) iv) of this Policy applies, classifying as a discretionary activity any supplementary take or temporary take which might otherwise be a permitted activity, when the net take, assessed in combination with all other existing authorised water takes within the same catchment, is for a rate greater than 100 percent of the primary allocable flow identified in Table 3-5. c) Classifying all other applications for takes in the following manner: i) As a controlled activity when the net take, assessed in combination with all other existing authorised water takes within the same catchment, is for a rate less than or equal to 70 percent of the primary allocable flow identified in Table 3-5 ia) As a controlled activity for cooling water at the Huntly Power Station when the net take does not exceed 0.7 cumecs ii) As a restricted discretionary activity when the net take, assessed in combination with all other existing authorised water takes within the same catchment, is for a rate exceeding 70 percent and up to and including 100 percent of the primary allocable flow identified in Table 3-5 iii) Except where part (c)(iv) of this policy applies, as a discretionary activity when the net take, assessed in combination with all other existing authorised water takes within the same catchment, is for a rate greater than 100 percent of the primary allocable flow but is less than the combined primary and secondary allocable flow identified in Table 3-5. iv) As a non-complying activity when the net take, assessed in combination with all other existing authorised water takes within the same catchment is for a rate that would be greater than the combined primary and secondary allocable flow identified in Table 3-5. d) Classifying as a non-complying activity all applications for takes of water from natural state water bodies, wetlands and lakes (excluding artificial lakes, hydro electricity reservoirs, Lake Rotoaira and Lake Taupo). e) Assigning all new and existing resource consent holders a priority level for the whole or part of the consent to apply when water shortage restrictions occur. Advisory Note /'<~~~ I 0<. . Under s14(3)(b) of the RMA, the taking and using of water for an individual's reasonable domestic <(.('.'- . '0(~ needs and the reasonable needs of an individual's animals drinking water requirements are I".V·} ,., Page 18 ~ D ().\\.;'/ ~" .:!! ,8. Prepared for the Environment Court Hearing :'2 ((\,1,;\ :;. {'. :,: CLEAN VERSION - 8 August 2011 ':.r~l r>\;/:~t)J!U -...' (~ "1"/"'" .<". t< '·oit(~CI)~\\\A~\ ' --,...,-- 159 allowed without a resource consent, provided they do not, and are not likely to, have an adverse effecton the environment. • Under Policies 3 b) and 3 cal only new takes that cause the primary allocation to be exceeded require resource consents. In otherwords, if a take was permitted or allowed immediately prior to a catchment reaching the point of fuli primary allocation, it remains a permitted or allowed take, as the case may be, after that point is reached provided the nature and scale of that take remains unchanged . Policy 4: How Surface Water Takes for Domestic or Municipal Supply Will Be Classified (Implements Objective 3.1.2 f) and Objective 3,3,2 a)) The Waikato Regional Council will manage water allocation in catchments to ensure the availability of water to meet the existing and reasonably justified and foreseeable domestic or municipal supply requirements of individuals and communities by: a) Classifying applications for takes for domestic or municipal supply to replace resource J consents as controlled activities provided that: i) At the time of application the take was an authorised water take; and iii) There is no increase in the nature, rate and volume of the take from that previously authorised; and iv) A water management plan which meets the requirements of Method 8.1 .2.2 has been provided . b) Classifying as a controlled activity applications for takes not previously authorised for domestic or municipal supply when the net take, assessed in combination with all other existing authorised water takes within the same catchment, is for a rate less than or equal to 70 percent of the primary allocable flow identified in Table 3-5. c) Classifying as a restricted discretionary activity applications for takes not previously authorised for domestic or municipal supply when the net take, assessed in combination with all other existing authorised water takes within the same catchment, is for a rate exceeding 70 percent and up to and including 100 percent of the primary allocable flow identified in Table 3-5. d) Classifying as a discretionary activity applications for takes not previously authorised for domestic or municipal supply which exceed 100 percent of the primary allocable flow identified in Table 3-5 or exceed 100% of the combined primary and secondary allocable flows identified in Table 3-5. e) Classifying all applications for takes for domestic or municipal supply as a non complying activity where a water management plan which meets the requirements of Method 8.1.2.2 has not been provided . Policy 5: How Groundwater Takes will be Classified (Implements Objective 3,1,2 m)) The Waikato Regional Council shall manage the taking of groundwater resources in a manner that meets the criteria for establishing Sustainable Yields from groundwater resources listed in Policy 2 by: a) Classifying takes as being authorised without the need for resource consent if such takes: Are allowed by s14(3)(b) RMA purposes , except as restricted in part b) of this policy and in any associated rules, or Page 19 Prepared forthe Environment Court Hearing CLEAN VER SION - 8 August 2011 160 ii) Do not exceed 15 cubic metres per day except as provided for in part c) of this policy and in any associated rules, or iii) Are temporary takes up to 150 cubic metres per day except as provided for in part c) of this policy and in any associated rules; or iv) Are takes for well and aquifer testing up to 2500 cubic metres per day and a pumping duration of less than three days ab) Classifying as a controlled activity any take existing at 15 October 2008 that was for the purposes of milk cooling or dairy shed wash down provided the effects of the take are avoided, remedied or mitigated. b) Classifying as a non-qualifying s14(3)(b) take and a discretionary activity any take which was not existing prior to 15 October 2008 and would otherwise be allowed under s14(3)(b) of the RMA except that when assessed in combination with all other existing authorised water takes within the same aquifer it exceeds the Sustainable Yield in Table 3-6 c) Classifying as a discretionary activity any supplementary take or temporary take which might otherwise be a permitted activity when the take, assessed in combination with all other existing authorised water takes within the same aquifer, is for a rate greater than 100 percent of the Sustainable Yield identified in Table 3-6. d) Using Management Levels to indicate when there is increasing demand from an aquifer. e) Classifying as a discretionary activity all applications for domestic or municipal supply takes for groundwater where a water management plan which meets the requirements of Method 8.1.2.2 has been provided. f) Classifying all other applications for takes of groundwater in the following manner: i) As a discretionary activity, or ii) As a non-complying activity if a relevant Sustainable Yield is provided in Table 3-6 and the rate of take in combination with all other existing authorised water takes within the same aquifer is greater than the relevant Sustainable Yield value. g) Classifying all new and existing resource consent holders a priority level(s) for the whole or part of the consent to apply when water shortage restrictions occur. h) Notwithstanding Policies a) to g), assessing the nature of hydraulic connection (if any) between groundwater takes and surface water bodies and, if there is such a connection as defined by Policy 9 sa), having regard to relevant parts of Policy 8 and Policy 9 when making decisions on groundwater takes. i) Including Sustainable Yields by way of a Plan Change when sufficient information is available and when needed to address significant adverse effects of groundwater takes . j) Classifying all applications for groundwater takes for domestic or municipal supply as a non-complying activity where a water management plan which meets the requirements of Method 8.1.2.2 has not been provided. Advisory Notes: • Management Levels are not used in Policy 5 to determine the activity status of groundwater takes. Method 3.3.4.7 provides the framework for utilising Management Levels in managing groundwaterand setting sustainable yieldsin Table 3-6. Under Policy 5 b) only new takes that cause the Sustainable Yield to be exceeded require resource consents. In other words, if a take was allowed immediately priorto an aquiferreaching the point of full Sustainable Yield , it remains an allowed take after that point is reached provided the nature and scale of that take remains unchanged. Page 20 Prepared for the Environment Court Hearing CLEAN VERSION - 8 Augusl2011 161 • Under Policy 5 f) ii») only new takes that cause the Sustainable Yield to be exceeded are non complying activities. In other words, if a take was permitted or consented as a controlled or discretionary activity immediately prior to an aquiferreaching the point of full Sustainable Yield, it remains a permitted or consented take as a controlled or discretionary activity, as the case may be, afterthat point is reached provided the nature and scaleof that take remains unchanged. Policy 8: Consent Application Ass essm ent Criteria - Surface Water (Implements Objectives 3.1.2 and 3.3.2) When assessing resource consent applications for surface water takes and/or any associated water use, the effects of these activities shall be assessed individually and cumulatively with all other existing or authorised (or currently applied for) water take and use activities. In doing so the Council shall have particular regard to the following matters: aa) Whether the proposed take would adversely affect the restoration and protection of the health and wellbeing of the Waikato River ab) The effect of the activity on the relationship of tangata whenua and their culture and J traditions with their ancestral lands, water, sites, wahi tapu and other taonga ac) Phasing out any existing allocation of surface water that exceeds the combined primary and secondary allocable flows in Table 3-5, or exceeds the water harvesting limits in Policy 16(b), by 31 December 2030 in accordance with Policy 15 a) Whether the applicant has demonstrated a need for the volume and rate of water sought, taking into account the applicant's seasonal and rotational requirements (if any), and has proposed appropriate water efficiency measures including an assessment of measures to be taken to reduce the take and use during water shortage conditions as defined in Policy 13 b) The need to ensure that surface water is available for existing and reasonably justified and foreseeable future domestic or municipal supply needs identified in a water management plan that meets the requirements of Method 8.1.2.2, stock drinking water requirements and fire fighting purposes ba) The significant social and economic benefits associated with the take and use of water for domestic or municipal supply bb) With the exception of water harvesting undertaken in accordance with Policy 16 and Rule 3.3.4.15A and takes associated with renewable electricity generation, any need to limit the duration of a water take consent, impose conditions to provide for the review of the volume of water taken pursuant to a consent , or to decline to grant a water take consent, all in order to enable domestic or municipal supply takes required for future growth. c) Restricting takes which reduce the amount of water that would otherwise be available for renewable electricity generation or be used for cooling of the Huntly Power Station , including in particular any takes from the Waikato River catchment upstream of the HPS mixing zone that when assessed in combination with all other authorised water takes would exceed 100% of the primary allocable flows in Table 3-5 cal The significance of the social and economic benefits that derive from existing takes and the significance of the investment that relies on the continuation of those takes cb) The potential adverse effects on existing users of granting a consent which may result in the allocation of a catchment exceeding the combined primary and secondary allocable flows in Table 3-5 , 'jl\l Or p c) Subject to the matters listed in aa), b) and c) of this Policy, the social and econom ic ,?-", . //<' benefits that may arise from the take and use of water (including rural-based activities ....0:·. < such as agriculture, perishable food processing and industry.) ~ l t'r:; ." \) 'V Page 21 -J )1:-:J Prepared for the EnvironmentCourtHearing "2/ I. ,i CLEAN VERSION - 8 August 2011 ""< V7 COl!(il1f;l.- 162 d) The net effect of the take on water quality in the water body from which the water will be taken l.e, whether the further degradation of water quality is avoided (having regard to the flow rates and contaminant concentrations in that water body) f) Whether the applicant has demonstrated adequate consideration of alternative wate r sources including water harvesting and water reuse and that the current application is industry good practice g) The effects on the water body of any associated discharge of contaminants , (eithe r point source or diffuse) arising from the take and use h) Whether existing lawful takes will be adverse ly affected, including those granted by neighbouring reg ional councils where water bodies cross regional boundaries hal Impacts on, and integration with , other existing authorised uses of the relevant water body (including customary uses) i) Whether Tangata Whenua uses and values , including the mauri of water, are maintained or enhanced J j) The effects on ecological values and biodiversity and the benefits of the natural flow regime variability, including sediment transport and natural flushing and flood flows k) The need to ensure that water bodies are not over-allocated (having regard to the current allocation limits of the water body as indicated by Table 3-5 and to the provisions of Policy 2AB, Poiicy 4 and Method 3.3.4.8.k) I) In the case of an application for the replacement of an existing resource conse nt, whether the appiicant has demonstrated a continued need for the volume and rate of water, taking account of seasonal and rotatio nal requirements, applied for based on water use records, the efficiency of the lise of the resource, any enforcement action taken by Council in respect to the previous consen t and use of industry good practice m) Any improvements in water take and use infrastructure, and whether adequa te metering , data collection and leak detection mechanisms are adopted n) the effects of the abstraction on wetlands, areas of significant indigenous vegetation, or significant habitats for indigenous fauna 0) The effects of the take and associated intake structure on fish passage and fish migration, and the potential for the entrainment of aquatic organisms p) Whether appropriate mitigation measures are to be implemented, including the maintenance of adequate environmental flows or flow regimes, the location of the abstraction, the maintenance of fish passage , the application of riparian planting, or other measures; q) Using site specific flow measurement methods where practicable to ensure compliance with water restrict ions r) Demonstration that physical access to the water does not adversely affect any other land and/or property owner s) In the case of temporary transfers; the extent to which the consent has already been given effect to on the site which the original consent relates t) The requirements of the National Environmental Standard for Human Drinking water. Policy 9: Consent Application Assessment Criteria - Groundwater (Implements Objectives 3.1.2 and 3.3.2) ._. .." -. When assess ing resource consent applications for groundwater takes and/or any associated "/,, c:,fli. OF ; w ater use, the effects of these activities shall be asses sed individually and cumulatively with ;' .,);,-- - '-.. ~,'\ :'7----'<------;o-____=_ 4' " ,',.: •-!~ \ Page 22 ~1 Y-f; . ,'.1' '1,.,,1 '.~ I Prepared for the Environment Court Hearing ~~ \:;-. :-:; CLEAN VERSION - 8 August 2011 () "'.- l~' ';2 (,,'.'.' .r ...~ '''i)11-C O UR\---:~\ . 163 all other existing (or currently applied for) water take and use activities. In doing so the Council shall have particular regard to the following mailers: aa) Whether the proposed take would adversely affect the restoration and protection of the health and wellbeing of the Waikato River ab) The effect of the activity on the relationship of tangata whenua and their culture and traditions with their ancestral lands, water, sites, wahi tapu and other taonga a) Whether the applicant has demonstrated a need for the volume and rate of water sought, taking into account the applicant's seasonal and rotational requirements (if any) and has proposed appropriate water efficiency measures including an assessment of measures to be taken to reduce take and use during water shortages as defined in Policy 13 b) The need to ensure that groundwater is available for existing and reasonably justified and foreseeable domestic or municipal supply needs identified in a water management plan that meets the requirements of Method 8.1 .2.2, stock drinking water requirements and fire fighting purposes c) Whether the applicant has demonstrated adequate consideration of alternative water sources including water harvesting and water reuse and that the current application is the industry good practice d) Whether, in the case of an application for the replacement of an existing resource consent, the applicant has demonstrated a continued need for the volume and rate of water applied for, taking account of the applicant's seasonal and rotational requirements (if any), based on water use records, the efficiency of the use of the resource, any enforcement action taken by Council in respect to the previous consent and use of industry good practice e) Whether existing lawful takes of both either ground and surface water will be adversely affected including those granted by neighbouring regional councils where water bodies cross regional boundaries ea) Impacts on, and integration with, other existing authorised uses of the relevant water body (including customary uses) f) Any improvements in water take and use infrastructure and whether adequate metering, data collection and leak detection mechanisms are adopted g) Whether tangata whenua uses and values, including the mauri of water, are maintained or enhanced h) The need to ensure that aquifers are not over-allocated (having regard to the Sustainable Yield of the aquifer as indicated by Table 3-6) or as indicated by estimates of groundwater catchment boundary; groundwater flow budget, including estimates of recharge and discharge within the catchment; and groundwater allocation within the groundwater catchment) hal Any demonstrated return flow to the aquifer resulting from the use of the abstracted groundwater, including irrigation return water i) Whether surface water instream uses, values and fiows are adversely affected, including the base flows of streams, springs and the water levels of wetlands and lakes j) Whether potential for saltwater intrusion is avoided k) Where Sustainable Yields have not been set in Table 3-6 potential for loss of recharge to other aquifers .... - . Where Sustainable Yields have not been set in Table 3-6 potential adverse effects from aquifer compaction and ground surface subsidence ... Page 23 r Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 164 m) Potential for contamination of ground or surface water e.g. nutrient contamination due to excessive leaching n) Potential for interference effects on neighbouring bores to the extent the neighbouring bore owner would be prevented from obtaining their lawfully established water allocation requirements. An applicant may mitigate the adverse effects by: i) locating the pump intake of affected neighbouring bore(s) at a greater depth with the bore; or ii) Deepening existing bores or drilling new bores for neighbouring landowners to a deeper level; or iii) Providing an alternative water source agreed to by all affected parties 0) Whether the proposed, or existing, bore is capable of extracting the quantity applied for p) Whether appropriate mitigation measures are to be implemented, including but not limited to, alternative rates and timing of abstractions, provision of alternative water supplies, water conservation options in times of reduced water availability J q) Possible monitoring methods that will be used for monitoring of a type and scale appropriate for the activity, including but not limited to measurement and recording of water use, measurement and recording of levels, sampling and assessment of water quality and fresh water biota r) Demonstration that physical access to the water does not adversely affect any other land and/or property owner sa) The nature of hydraulic connection (if any) between the groundwater resource from which water is proposed to be taken and surface water bodies will generally be assessed on a case by case basis by evaluating: i) groundwater depletion of surface water bodies (i.e. the replacement of abstracted groundwater by flows from surface water bodies); and ii) where no Table 3-6 Sustainable Yield has been identified for the groundwater resource, groundwater interception (i.e. the reduction of groundwater flows to surface water bodies) Where the case by case assessment demonstrates that there is a hydraulic connection and the assessed maximum surface water body depletion and interception loss (in cubic metres per day) calculated for the term of the consent exceeds 15 cubic metres per day then the Waikato Regional Council will assess the nature of the effect of the groundwater take on surface water bodies having particular regard to the relevant parts of Policy 8. The nature of hydraulic connection does not need to be assessed and the groundwater take need not be assessed against Policy 8 or Policy 9(s) where: iii) the physical separation between the surface water body(s) and the underlying groundwater table is large enough to ensure that if there was a lowering of the groundwater table from pumping this would not impact the surface water body (as calculated for streams using the Advisory Note at the end of this Policy); or v) the take is allowed by s14(3)(b) of the RMA, or is less than 15 cubic metres per day (the maximum allowed by Permitted Activity Rule 3.3.4.9); or vi) the take is temporary and is allowed by Permitted Activity Rule 3.3.4.11 ; or vii) the take is for well or aquifer testing and is allowed by Permitted Activity Rule 3.3.4.12; or I" :;"L<"~ ix) the take is a renewal of a groundwater take consent within the Waikato River ~:i;. ,,,t~ .._Or !;~;..., catchment upstream of the HPS mixing zone' and the take was authorised at '" ~'(" '\ 15 October 2008 t. ( "1 (.'j\j''" }'., i ')' \J\ Page 24 ~~ if ',I,:' I ~ •. Prepared for the Environment Court Hearing :~ '.' II,). :.I'.'/j .) CLEAN VERSION - 8 August 2011 C~ Y,,;'" ~/ /11 ~ ":17'" ' ,.- '~/ "" "';)11' C:OU:"i\ .,:,~ ..... -.- 165 Except in the circumstances described under (v) to (ix) above, the nature of hydraulic connect ion shall always be assessed for groundwater takes within the Waikato River catchment upstream of the Karapiro Dam unless a Table 3-6 Sustainable Yield has been set for the groundwater resource from which the groundwater take is to occur. s) Restricting groundwater takes in circumstances where there is a hydrau lic connection between the groundwater resource from which the applicant proposes to take groundwater and a surface water body and the take will reduce the amount of water that would otherwise be available for renewable electricity generation or be used for cooling of the Huntly Power Station, including in particular any groundwater takes from the Waikato River catchment upstream of the HPS mixing zone whose surface flow depletion effects, when assessed in combination with all other authorised water takes, would exceed 100% of the primary allocable flows in Table 3-5 t) In the case of temporary transfers the extent to which consent has already been given effect to on the site which the original consent relates u) The requirements of the National Environmental Standard for Human Drinking Wa ter j v) Whether the take is efficient having regard to, amongst other things, the depth of the proposed bore(s) within an aquifer. Advis ory Notes for Policy 9(sa) • The physical separationdescribed in Policy 9 sa) iii) for streams exists when: i, the depth to the water table (H) below a stream that occurs within the area affected by the groundwater abstraction is greater than five times the maximum depth of water in the stream (D), i.e.H ~ 5D, and ii. the depth to the water table below any potential affected stream surface (H) is greater than twicethe streamwidth !Y'J) i.e. H ~ 2W. •For the avoidance of doubt, the water table (H) is the level below the land surface at which the subsurface material is fully saturated with water. w H W ater table Policy 9A: Non-Complying Activities w ithin the Waikato River Catchment above Huntly a nd Karapiro (Implements Objectives 3.1.2 and 3.3.2 b) and cal) Generally, non-com plying activity applications for surface water takes within the Waikato nF ~ i ver catchment upstream of the HPS mixing zone shall not be granted unless the take : '/Y.A . Page 25 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 166 a) Is a zero net take; or ab) Replaces a consented take for an activity listed in Policy 11a)v); or b) Achieves a higher level of renewable electricity generation within the Waikato River catchment than would otherwise be achieved were the consent declined; or c) Is located between the Karapiro Dam and the HPS mixing zone but would not adversely affect electricity generation from the Huntly Power Station. Policy 9B: Non-Complying Activities outside Waikato River Catchment and below Huntly within Waikato River Catchment (Implements Objectives 3.1.2 and 3.3.2) Generally, non-complying activity applications for a takes located anywhere in the Region outside of the catchment area covered by Policy 9A shall not be granted unless the take: a) Is a zero net take, or J ab) Replaces a contented take for an activity listed in Policy 11a)v); or b) Achieves a higher level of electricity generation that would otherwise be achieved were the consent declined, or c) Is for the ecological enhancement of wetlands, or d) Avoids the further degradation of water quality as provided for in Chapter 3.2 of this Plan. Policy 11: Consent Duration for the Taking of Water (Implements Objectives 3.1.2 and 3.3.2) a) Subject to Policy 15, the Waikato Regional Council will generally ensure that all resource consents for the take of surface and groundwater shall have a term no longer than 15 years except those consents: i) for domestic or municipal supply. ii) for the primary purpose of, or directly associated with, electricity generation. iii) which are assessed as having a zero net take and do not restrict the further allocation of water. iv) for the purpose of managing the flow or level regimes of rivers or aquifers (e.g. other dewatering and/or water level control, ecological purposes, pit or lake filling for rehabilitation and flood control, mine water management) where the take does not or is not likely to during the consent term limit other users from being allocated water, or result in any adverse effects listed in Policy 1 and 2. v) for large scale, capital intensive industrial facilities such as mines, dairy factories, pulp mills and water harvesting infrastructure. b) Consents granted for the activities listed in a) i) to v) above shall be for a term that is appropriate in the circumstances and that term may exceed 15 years. c) Consents for takes other than those listed in a) i) to v) above may be granted for a duration shorter than 15 years where appropriate in order to ensure the availability of water to meet the existing and reasonably justified and foreseeable future domestic or municipal supply needs identified in a water management plan the meets the requirements of Method 8.1.2.2. ::;;.';!. II I (li· d;!._,., All consents for takes, except surface water zero net takes, shall include provision for a ",~ '&. review within one year of the completion of a relevant catchment investigation Prepared for the Environment Court Hearing ~ CLEAN VERSION - 8 August 2011 167 undertaken in accordance with Method 3.3.4 .7 and, if applicable, a consequent change to the Waikato Regional Plan being proposed. Policy 12: Water Take Recording and Reporting (Implements Objectives 3.1.2 and 3.3.2) Except as provided for in part g) of this policy, as a means of assess ing compliance with consents for the taking of water, the Waikato Regional Council will require resource consent holders , through conditions to: a) Install a tamper-proof water-measuring device to manufacturer's specifications with : i) a minimum accuracy under field conditions of +/- 5 percent for piped takes or +/- 8 percent for open channel takes, and ii) a pulse output if optimum recording is required by Table 3-4, b) Provide an "as built" plan of the installed water measuring device prior to giving effect J to any consent to take water c) Record and report water take data for all consented surface water takes at a frequency and in a manner described in Table 3-4 d) Record water take data for all consented groundwater takes at a frequency and in a manner to achieve: i) Minimum recording on a weekly basis and minimum reporting twice yearly in January and June for all consented groundwater takes less than 1500 cubic metres per day, or ii) Minimum recording and reporting on a daily basis with data logger for all consented groundwater takes greater than 1500 cubic metres per day, or iii) Reduced or enhanced recording and reporting requirements as determined by the Waikato Regional Council as appropriate in response to the adverse effects associated with the groundwater take . e) Complete a calibration(s) of the water measuring device and a water use audit(s) during the term of the consent at a frequency and to the standard specified in the consent conditions. f) In any situation where it is physically not practical to meet parts a) to e) in Policy 12 the following shall apply: i) The consent holder shall establish a methodology for estimating the amount of water taken, and shall obtain the approval of the Consent Authority that the method is appropriate for the type of take, and the time frame for collecting water use data. ii) The consent holder shall record the volume of water taken, using the methodology established in Policy 12 part f) i), at a minimum of daily intervals for surface water takes and at least weekly intervals for groundwater takes and keep records of each date and corresponding water use measurement. iii) The water use records shall be submitted to the consent authority, at intervals of at least one year. g) Parts a) to e) of this policy shall not generally apply to authorised takes of less than 50 cubic metres per day using pumps with a capacity of 2 litres per second or less. The 50 cubic metres per day shall be inclusive of any water taken under s14(3)(b) of the RMA. ':'E~l \x.".. 1)"""- ,,'< -. r: Page 27 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 168 Table 3-4: Surface Water Take and Use· Recording Ty pe and Frequency Instantaneous Rate of Take lIs Basic Recording and Reporting Optimum Recording and Reporting » Minimum recording frequency - weekly » Minimum recording frequency - daily (increased frequency may be required (increased frequency may be required at The Waikato Regional Council's at The Waikato Regional Council's discretion) discretion) » Minimum reporting frequency - paper » Recording by tamper proofdata logger records, twice yearly in January and Minimum reporting frequency - daily June (recording and reporting by » (reporting by telemetry may be required loggers and telemetry may be requ ired at The Waikato Regional Council's at The Waikato Regional Council's discretion) discretion) J » Where telemetry is unavailable a lower frequency may be provided for at the discretion of the Waikato Regional Council. Policy 13: Water Shortage Conditions (Implements Objective 3,3,2 aj, b) and c)) a) When a catchment or aquifer is in a water shortage condition restrictions on abstractions will include, but will not be limited to: rostering (day on, day off abstractions); rationing or cessation and will occur as provided for in Policy14 and in accordance with Standard 3.3.4.21 b) Restrictions will apply to all existing consents, unless those consents already contain conditions requiring the restriction or cessation of taking at times of low flow in which case the consent conditions shall prevail over part a) of this Policy. Every new and replacement consent for taking water will include either conditions that assign a priority level to apply to the whole or part of the consent in a water shortage condition as provided in Policy 14 or specific conditions appropriate to the particular take and water body in a water shortage condition havinq regard to Policy 1. c) When a catchment or aquifer is in a water shortage condition the Waikato Regional Council may issue water shortage direction as provided for under s329 of the Resource Management Act. Policy 14: Levels of Priority to Apply During Water Shortages (Implements Objective 3.3.2 a), b) and c)) a) The level of priority to apply during water shortage conditions in surface water (SW) bodies, in descending level of importance is as follows: ia) Priority SW-A activities: takes which have a zero net take, or for fire fighting i) Priority SW-B activities: stock watering supplies, takes for animal welfare and sanitation (including shed wash down and milk cooling), takes for perishable food processing, takes associated with electricity generation, all perm itted and s14(3)(b) I,:,: RMA takes , and takes for domestic or municipal supply. \ } . Page 28 Prepared for the EnvironmentCourtHearing CLEANVERSION - 8 August 201 1 169 ii) Priority SW-C activities all other takes allocated within the primary allocable flow as defined in Table 3-5. iii) Priority SW-D activities: all other takes allocated water above the primary allocable flow as defined in Table 3-5 and temporary takes of short duration. iv) Priority SW-E activities: takes for water harvesting. b) The level of priority to apply during water shortage conditions in groundwater (GW) aquifers, in descending level of importance, is as follows: i) Priority GW-A activities: will include groundwater takes allocated as discretionary activities. ii) Priority GW-8 activities: will include groundwater takes allocated as non complying activities. Policy 15: Phasing Out Exceedences of the Table 3-5 Allocable Flows J (Implements Objective 3.1.2 a), b), c) and d) and 3.3.2 a), b) and c» In catchments managed under Policy 28 the Waikato Regional Council will: a) Generally not decline applications lodged before 1 January 2015 relating to existing takes where there is no increase in the amount of the take; b) Seek to phase out exceedences of the combined primary and secondary allocable flows set in Table 3-5 by 31 December 2030 by implementing, in the following priority order, parts a), c), I), d), I), e), h), b), k) and i) of Method 3.3.4.8 and by reviewing the minimum and allocable flows in accordance with Method 3.3.4.7; c) Except for any take that is a zero net take, generally decline, or grant for a lesser volume or for a lesser duration, replacement applications lodged on or after 1 January 2015 if the continued implementation of Policy 15(b) is unlikely to result in the phasing out of any exceedence of the combined primary and secondary allocable flows set in Table 3-5 by 31 December 2030. Policy 16: Surface Water Harvesting (Implements Objective 3.1 .2 c), g) and p) Except as restricted by Policies 9A and 98, in addition to the primary allocation and secondary allocation set out in Table 3-5, an allocation at higher flows from rivers may be provided as a restricted discretionary activity: a) if the take is not within the Waikato River Catchment upstream of the Karapiro Dam; and b) in circumstances where water is only taken when the river flow is greater than the median flow, and the total amount of water taken by way of water harvesting does not exceed 10% of the flow in the river at the time of abstraction. Policy 17: Shared Use and Management of Water (Implements Objective 3.1 .2 a) and g» The Waikato Regional Council will promote shared use and management of water that, subject to ongoing compliance with individual resource consent conditions: a) allows water users the flexibility to work together to make the best use of available £;~~ L OF water Ij~;~--·~ ~(I, ? ~~" .' ·;',' ----+-:-~:i)'"~-':--··..,v~-----~Page 29 Prepared for the Environment Court Hearing ( .\"~ CLEANVERSION - 8 August 201 1 " I I '> 1.\',; • , I /l ~,~'.I 'l:qU II '7 170 b) allows water users to share water abstraction and reticulation infrastructure provided that it is fil for its purpose. 3.3.4 Implementation Methods - Water Ta kes 3.3 .4.1 Environmental Education (Method to implement Section 3.3.3 Policies 3 and 4) The Waikato Regional Council will through ongoing environmental education programmes: a) encourage the use of alternative water resources where there is over allocation b) encourage consent holders to review their current water takes to ensure water use is still required and their use of water is efficient (see Chapter 3.4 of this Plan) c) inform landowners and water users about the in-stream and groundwater values that need to be considered when assessing water take applications d) inform the community about water management and allocation as contained in the Variation. The implications for all water users will be identified. 3.3.4.2 Integration with Territorial Authorities (Method to Implement Section 3.3.3 Policy 4) The Waikato Regional Council wili work with Territorial Authorities to: a) develop appropriate land use provisions in district plans to avoid, remedy, or mitigate adverse effects of land use on groundwater aquifer yields, aquifer water quality, spring protection, river flows and wetland water levels; b) encourage and assist territorial authorities to adopt, through respective LTCCP processes, water demand management tools to plan and manage future projected water use; c) encourage the preparation of water management plans in accordance with Section 8.1.2.2 and applications to vary existing resource consent conditions to require existing domestic or municipal supply water takes to be undertaken in accordance with the water management plan. 3.3.4.3 Wa ter User GroupsNoluntary Agreements (Method to implement Section 3.3.3 Policies 13, 14 and 15) The Waikato Regional Council will, in order to assist and support the community to understand water management and allocation as an essential element of restoring and protecting water bodies: a) promote water user groups, or voluntary agreements between waler users, to schedule takes and manage allocations. b) initiate and support water user groups to assist with allocations during times of restrictions or when the catchment is fUlly or over allocated. c) provide, where available, accurate technical information on which user groups can make decisions. The Waikato Regional Council will further investigate how water user groups can be used to: a) assist with management of water allocated to abstractors; ---S{~L- ( ~ ) provide opportunities for shared investment in, and optimal use of water transport and " &. -- 0-<" storage infrastructure; 1M' d ) '~f Page 30 (:p /{(f {j':~ : t\ (~ Prepared for the Environment Court Hearing S\'., ':.,". (I.' ; 0 CLEAN VERSION - 8 August 2011 '_<1 .t- J:tll,':' . I ~A ", , .... "-;::/ -;" ; /r" J ';-2 ..~, \1,- "<~r (,'011\(\ \(.c~ •. 171 c) make best use of available water. 3.3.4.4 Estim ating Permitted Takes and s14(3)(b) Takes (Method to Implement Section 3.3.3 Policies 3, 4 and 7) In order to accurately assess the level of permitted takes and water takes for reasonable stock and domestic needs (s14(3)(b) of the RMA), the Waikato Regional Council will maintain a model to estimate the level of permitted takes. In consultation with stakeholders the Walkato Regional Council will also undertake audits of actual use In selected areas to coincide with relevant catchment investigation dates. 3.3.4.5 Investigations (Method to Implement Section 3.3.3 Policy 2) The Waikato Regional Council will continue to monitor aquifers and surface waters to ensure J water use is sustainable and in areas of high use will develop sustainable yield limits and allocable flows. The council will develop means of making water allocation information readily available to the public. 3.3.4.6A Development of Minimum and Allocable Flow s for Surface Water Bodies and Sustainable Yields for Aquifers (Method to Implement Section 3.3.3 Policy 1 and Policy 2) In determining allocable flows, minimum flows and sustainable yields, the Walkato Regional Council will: a) Work with its iwi co-managemen t partners and make use of a variety of recognised assessment methods as appropriate to the particular conditions, inclUding maatauranga Maaori. In determining which combination of technical methods is most appropriate, guidance will be taken from any Integrated River Management Plan, any relevant planning document recognised by an iwi authority and lodged with the Council to the extent that its content has a bearing on water allocation, and the Ministry for the Environment - Environmental Flow Guidelines for Instream Values May 1998, or any subsequent update b) Consult with key affected parties including tangata whenua representatives, existing consent holders, domestic or municipal suppliers, Fish and Game New Zealand, Department of Conservation, industry organisations and local area water user groups. All new entries into Tables 3-5 and 3-6 will be included by way of a Plan Change under the First Schedule of the RMA. 3.3.4.6B Groundwater Depletion of Su rface Water (Method to Implement Section 3.3.3 Policy 5(h)) Waikato Regional Council will manage the surface water depletion effects identified by Policy 5 h) and Policy 9 sa) using either one or both of the following methods. a) A groundwater take will have surface water restrictions imposed where there is a hydraulic connection between the two systems, and a restriction of the groundwater take will result in an increase in surface water flows during times of restrictions. Where a groundwater take is assessed under Policy 5 h) as impacting on surface water resources and this cannot be solely managed with restrictions on the groundwater take, the reduction in surface water flow occasioned by the groundwater take will be Page 31 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August201 1 172 quantified and included in the surface water allocation regime used for assessing the cumulative allocation for the surface water takes in Chapter 3.3. The remainder of the groundwater take (the actual rate of take less the amount quantified as being a reduction in surface water flow) will be allocated against the sustainable yield in Table 3-6. 3.3.4.6C Assessment of hydrological flow statistics for water allocation (Method to implement Section 3.3.3 Policy 1) The Waikato Regional Council will maintain a technical report detailing the calculation of flow statistics used for water allocation at key flow recorder sites in the Region, including methods to remove the influence of existing surface water takes.In the Waikato River catchment upstream of the Karapiro Dam this includes the Council developing a model to remove the influence of the eight Waikato River hydro-generation dams, the Lake Taupo outlet gates and the Tongariro Power Scheme on the hydrology of the catchment for implementing Standard 3.3.4.21 f). The model shall be independently peer reviewed. I I The flow statistics in the technical report will typically be reassessed five yearly, unless there are any significant changes to the flow regime in which case the technical report will be reassessed as soon as practical thereafter. The technicai report will be published on the Waikato Regional Council website. Advisory Note: • The Council will make available to stakeholders a peer review of the model described in this method and the results of periodic reviews of the data used in this model. 3.3 .4.7 Review Allocable Flows/Sustainable Yields (Method to implement Section 3.3.3 Policy 1) Waikato Regional Council will review minimum flows and primary and secondary allocable flows of surface water or the Sustainable Yields in aquifers when: aa) Targets and measures are incorporated into either the Vision and Strategy for the Waikato River promulgated under the Waikato River Co-management framework or the regional plan; or ab) Investigations indicate that the matters listed in Section 3.3.3 Policies 1 and 2 cannot be provided for at current minimum or allocable flows; or a) Investigations indicate that the matters listed in either Policy 1 or 2 can be provided for at a different level of allocation than allowed for in either Table 3-5 or 3-6 respectively and that no adverse effects that are more than minor will occur; or b) The allocation reaches or exceeds 70 percent of the primary allocable flow for catchments listed as "all other catchments" in Table 3-5; or c) The allocation reaches or exceeds 70 percent of Management Level listed in Table 3-6; or d) Actual or potential adverse effects are occurring within a catchment due to high demand for surface or groundwater or when tangata whenua values as noted in Section 3.3.3 Policies 1 and 2 are shown to be adversely affected; or e) Investigations indicate that climate change is affecting surface water flows and .•,_ .. . sustainable yields in groundwater; or ~SL~~!ir !,%<,Investigations demonstrate that there are significant improvements in water quality r R- ,.. which could enable more water to be allocated for out of stream uses; or Page 32 ~ ~\I~:t;~(~;) ~) Prepared forthe Environment Court Hearing oi"' ~; ~;ti II·A ,r! CLEAN VERSION - 8 August 2011 <:~ 'I'~~""'l' \',1 /.,;/l •~~--:_~ .:.': •:x' :I . I COmii ,\,. I ----~,,/ 173 g) Investigations indicate that the matters listed in Section 3.3.3 Policies 1 and 2 cannot be provided for at current minimum flows and primary and secondary allocable flows; or h) Catchment investigation date listed in Table 3-4A occurs; or i) Any significant changes to the inflow regime that occur in relatio n to the Waikato River catchment upstream of Karapiro Dam. Table 3-4A Catchment Investigation Dates Note: Refer to water allocation maps 'Common Expiry Catchments (Sub-Regions) and Dates'. Catchment or Sub-Region Catchment Investi~atlon Date - and on each 15' anniversary thereafter J Coromandel Peninsula (from the Waihou Catchment north) 1 July 2010 Waihou River including the sections of the streams which 1 July 201 2 have their headwaters in the Waikato Region and their mouth in Bay of Plenty Region Plako River and all catchments flowing to the Firth of Thames 1 July 2014 aiong the Hunua and Hapuakohe Ranges West Coast (From Taranaki regional boundary to Auckland 1 July 2015 regional boundary excludingthe Waikato Catchment) Walkato River (1) - Lake Taupo catchmentabove Huka Falls 1 July 2016 Walkato River (2) - Huka Falls to Karapiro Dam 1 July 2017 Walkato River (3) - Karapiro Dam to Ngaruawahia at 1 July 201 9 confluence of Waipa (including the Waipa River) Walkato River (4) - Ngaruawahia at confluence of Waipa 1 July 2021 (excluding the Waipa River) to Mercer Bridge Waikato River (5) - Mercer Bridge to Waikato River Mouth 1 July 2023 3.3.4.8 Phasing Out Exceedences of the Table 3-5 Allocable Flows (Method to implement Section 3.3.3 Polley 15) Exceedences of the Table 3-5 allocable flows will be phase d out by some or all of the following methods: a) Ceasing any new allocation of water (not including the replacement of previou sly consented taking of water subje ct to the requirements of s1248 of the RMA after 9 August 2008) b) Encouraging voluntary reductions or promoting water augmentation/harvesting c) Reviewing conditions of existing consents to determine if any effici ency gains can be made, including through altering the volume, rate or timing of the take provided this does not invalidate the exercise of the consent for its original purpos e d) Shared reduction across the catchment either by consent review for existing takes or as resource consents for take s expire. Shared reductions may also be achieved by anticipating the expiry of existing consents in a catchment Rostering users , so they are not all taking at once or alternatively reducing the rate of permissible takes Page 33 Prepared for th e Environment Cou rt Hearing CLEAN VERSION - 8 Augusl20 11 174 f) Directing new applications or replacement of existing resource consents consider alternatives to the water take or to other potential sources of water (e.g. groundwater, water harvesting) g) Temporarily restricting the taking of water by the issuing of a water shortage direction under section 329 of the RMA h) Encouraging the establishment of catchment groups or voiuntary agreements between water users to achieve necessary reductions in catchment water use i) Reduce permitted takes, excluding those provided for by s14 (3)(b) of the RMA, through a pro rata reduction in the rate of take and where necessary through a reduction in the daily permitted volume via a plan change j) Undertake an assessment of sustainable yield or allocable flow in accordance with Method 3.3.4.7 k) Where there is an increase in aliocation of water for domestic or municipal supply in a catchment where allocation exceeds 100% of the primary allocation in Table 3-5, there may be shared reduction across the catchment (taking into account the relative efficient J use of the water taken) of all industrial, commercial or agricultural users of water (not being water used for human drinking purposes or human sanitation purposes), either by consent review or as consents expire. For the purpose of this provision industrial takes do not include takes associated with the generation of electricity from renewable energy sources. I) Where the allocation of water for milk cooling and dairy shed wash down allowed by Rules 3.3.4.9,3.3.4.10, 3.3.4,14A and 3.3.4.148 results in allocation exceeding 100% of the primary allocable flows in Table 3-5, the Council may as a priority reduce that over allocation by reducing the amount of water allocated by existing consents to other dairy sector production land use activities (including pasture irrigation) before applying shared reductions across all other sectors. Except that, in the case of surface water, this provision shall only apply to the extent that the reduction achieved by the dairy sector equals the amount of water consented for milk cooling and dairy shed wash down under Rules 3.3.4.14A and 3.3.4,148 , less the water allowed to be taken by those consent holders under Rule 3.3.4.10. 3.3.4.8A Conditions relating to Water Management Plans (Method to implement Section 3.3.3 Policy 4 and Section 3.4.3 Policy 2) The Waikato Regional Council will require a water management plan that meets the requirements of Method 8.1.2.2 to be submitted with any application for a resource consent for domestic or municipal supply, and will impose conditions on any consent granted requiring: a) Regular reviews of the water management plan; b) Reporting on the effectiveness of the plan in achieving water conservation and water demand management; c) Reporting on: i) Updated forecasted water demand; ii) The basis on which those forecasts have been prepared (including breakdown on forecast requirements for domestic or municipal supply use); iii) The maximum daily take required during the next reporting period and the rationale for this; . l:y' iv) Any uncertainties associated with growth data used in the calculation of future .. ~' demand; ~~'-~I)f.~J~;< I;U' C} \ Page 34 ,\\,'1',,',' I~~l :1- r Prepared for the Environment Court Hearing • ',,":' II', ~.ll CLEAN VERSION - 8 August 2011 I r::. , ~"'., /\j~1 ~./ '\ .. ' , ' 175 v) In light of (i) to (iv) , whether any reduction in the maximum daily water takes for the next reporting period is considered appropriate; d) Regular reviews of consent conditions to give effect to the matters identified in (b) and (c) above . 3.3.4.9 Permitted Activity Rule - Supplementary Groundwater Takes (Implements Section 3.3.3 Policy 5 alii) 'In addition to the taking of groundwater as allowed by s14(3)(b) of the RMA 1 '1. The taking of up to 1.5 cubic metres per day on sites equal to or less than one hectare; or I 2. The taking of up to 1.5 cubic metres per day on sites where the well is within 600 metres of the coastal marine area; or 3. The taking of up to 15 cubic metres of groundwater per day on all other sites I by means of a well is a permitted activity subject to the following conditions: I The take(s) shall be within a single site. The site of the activity shall not be within 100 metres of a Significant Geothermal Feature except for those features that are Recent Sinter or Hydrothermal Eruptlon' Craters containing no geothermal pools or discharging geothermal features in WhiCh', case the take shall not be located within 20 metres of the feature. c) The activity shall not result in salt water intrusion or any other contamination of the I aquifer. I d) The total of all takes from the aquifer does not exceed the Sustainable Yield if listed in f Table 3-6. ~E XC e P ti O n I This rule does not apply to : • The taking of geothermal energy and water. • The taking of water for a dam or diversion. Such takes are managed by the policies and rules in Chapter 3.6. Advisory Notes: • The drilling and construction of a well for a water take is provided for under Rules 3.8.4.6, 3.8.4.7 and 3.8.4.8. Rule 3.3.4.8 provides control over the location of new wells. • Under s14(3)(b) of the RMA, the taking and using of water for an individual's reasonable domestic needs and stock drinking water requirements are allowed without a resource consent, provided they do not, and are not likely to, have an adverse effect on the environment. Water taken under Parts 1 and 2 of this rule is in addition to that which may be taken for an individual's domestic and stock watering needs. • Where a site with an existing permitted supplementary groundwatertake is acquired by the owner of an adjacent site that also has an existing permitted supplementary groundwater take, both takes continue to be permittedactivities. • Rules governing the lake of geothermal energy and water are found in Module 7: Geothermal of this Plan. Page 35 Prepared forthe Environment Court Hearing CLEAN VER SION - 8 August 2011 176 3.3.4.10 Permitted Activity Rule - Supplementary Surface Water Takes (Implements Section 3.3.3 Policy 3 alii) 'In addition to the taking of surface water as allowed by s14(3)(b) of the RMA I ~I 1 . The taking of up to 1.5 cubic metres per day of water (calculated on a net take baSiS)1 from sites equal to or less than one hectare; or 1a. The taking of up to 30 cubic metres per day of water (calculated on a net take basis), from the main stem of the Waipa River downstream of Otorohanga (SH 31 bridge at Otorohanga) or from the main stem of the Waikato River downstream of Lake Taupo! from sites that adjoin either of those rivers; or I 2. The taking of up to 15 cubic metres per day of water (calculated on a net take basis) , from all other sites from surface water is a permitted activity subject to the following conditions: Ia) The take(s) shall be within a single site. J Ib) The net rate of the take, assessed in combination with all other authorised water takes, ! (all calculated on a net take basis) shall not exceed 100 percent of the primaryl allocable flows for catchments specified in Table 3-5. ba) Any water take under this rule shall not be used for the same purpose for which a waterl take consent is held for the same site (so that the total water allocated to the site is' accounted for within the consented amount to ensure no double accounting). I c) The intake structure shall comply with the screen and velocity standards as set out in f the Water Management Class for that water body (refer Chapter 3.2 of this Plan). d) The intake structure shall comply with the provisions in Rule 4.2 .10.1 of this Plan. le) The water take shall not be from a water body classified as Natural State Water in the , Water Management Class Maps. Exception I This rule does not apply to: • The taking of geothermal energy and water; or to • Takes from wetlands or lakes (excluding artificial lakes and Lake Taupo). • The taking of water for a dam or diversion. Such takes are managed by the policies and rules in Chapter 3.6. I Advisory Note: o Unders14(3)(b) of the RMA, the taking and using of water for an individual's reasonable domestic needs and stock drinking water requirements are allowed without a resource consent, provided they do not, and are not likely to, have an adverse effect on the environment. Water taken under Parts 1 and 2 of this rule is in addition to that which may be taken for an individual's domestic and stock watering needs. o Where a site with an existing permitted supplementary surface water take is acquired by the owner of an adjacent site that also has an existing permitted supplementary surface water take, both takes continue to be permitted activities. o Rules governing the take of geothermal energy and water are found in Module 7: Geothermal of this Plan. o The assessment of cumulative allocation in this ruie does not include that allocated by 3.3.4.15A Restricted Discretionary Activity Rule - SurfaceWater Harvesting. Page 36 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 177 3.3.4.11 Permitted Activity Rule - Temporary Takes (Implements Section 3.3.3 Policies 3 a)iii), 5 a)iii» The taking of up to 150 cubic metres of water per day (calculated on a net take basis for surface water takes) for no more than five days per annum from any river or aquifer is a permitted activity subject to the following standards and term s: a)The net rate of the take, assessed in combination with all other authorised wate r takes, shall not exceed 100 percent of the primary allocable flows for catchments specified in Table 3-5. b) For groundwater takes the well is not within 600 metres of the coastal marine area and the total rate of the take in combination with all other takes from the aquifer does not exceed the Sustainable Yield if listed in Table 3-6. c) The intake structure shall comply with the screen and velocity standards as set out in the Water Manag ement Class for that water body (see Chapter 3.2 of this Plan) and with the provisions in Rule 4.2.10 .1 of this Plan. J d) This rule shall not apply when water restrictions are in place in accordance with t Standard 3.3.4.21. I e) Written notice of the location , time and duration of take shall be provided to the I Waikato Regional Coun cil 10 work ing days before works commence. IExceptions This rule does not apply to: • the taking of geothermal energy and water; or to • takes from wetlands or lakes (excluding artificial lakes and Lake Taupo) . • The taking of water for a dam or diversion. Such takes are managed by the policie s and rules in Chapter 3.6. Advisory Note: • The assessment of cumulative allocation in this rule does not include that allocated by 3.3.4.15A Restricted Discretionary Activity Rule - Surface Water Harvesting. 3.3.4.12 Permitted Activity Rule· Well or Aquifer Testing (Implements Section 3.3.3 Policy 5 a) iv)) The taking of groundwater for well or aquiter testing purposes (including wate r with a Itemperature in excess of 30 degrees Celsius) is a permitted activity subject to the following conditions: No test or tests for a well shall exceed a pumping period in exce ss of three days in duration. rb) The rate of take shall not exceed 2,500 cubic metres or 2,500 tonnes per day. c) The site of the activity shall not be within 100 metres of a Significant Geothermal Feature except for those features that are Recent Sinter or Hydrothermal Eruption Craters containing no geothermal pools or discharging geoth ermal features in which case the take shall not be located within 20 metres of the feature. I d) The Waikato Regional Council shall be notified in writing at least one week in advance of tests with a pumping period in excess of 24 hours. I .---.e) Records of the pump testts) shall be kept by the owne r, detailing flow rates, drawl ~ . '.',I·N QF lit downs, and any information analysis. Copies shall be forwarded to the Waikato " r «' Regional Council within one month of completion. I ~»-~} Page 37 il'r ' I' ''''\ )(\. , Prepared forthe Environment Cou rt Hearing cP ~j\ .', '.1' . , I CLEAN VERSION - 8 August 2011 ci 'f, /" ~<'/lt - .. r COUll \ 178 f) Where the temperature of the water taken exceeds 30 degrees Celsius the following additional information shall be provided in writing to the Waikato Regional Council within one month of completing testing: i) location of take and discharge ii) geological log iii) well/aquifer test results liV) map of any deviated drilling IV) temperature/pressure profiles. Advisory Notes: • The drilling and construction of a well for a water take will requ ire resource consent under Rule 3.8.4.8. • Refer also to Rules 3.5.8.1 and 3.5.8.2 regarding the discharg e of well and aquifer lesting water. 3.3.4.13 Controlled Activity Rule· Taking of Surface Water (Implements Section 3.3.3Policy 3 d)i) and Policy 4 b» [Except as permitted by Rules 3.3.4.10 and 3.3.4.11 of this Plan, the taking of surface water tUP to and including 70 percent of the allocable flow identified in Table 3-5 is a controlled activity (requirinq resource consent) subject to the following standards and terms: I la) The net rate of the take, assessed in combination with all other authorised water takes l (all calculated on a net take basis), shall not exceed 70 percent of the primary allocable' I flows for catchments specified in Table 3-5 I b) The water take location shall not be within a water body classified as Natural State I Water on the Water Management Class Maps. C) Where the take is for a domestic or municipal supply a water management plan which meets the requirements of Method 8.1.2.2 shall be provided. Id) All applications to take water under this rule shall be assessed on a net take basis 1 Exception This rule does not apply to: • The taking of geothermal energy and water. • The taking of water for a dam or diversion. Such takes are managed by the policies and rules in Chapter 3.6. tWaikato Regional Council reserves control over the following matters: 'i) Measures to restore and protect the health and wellbeing of the water body for present' I and future generations ii) The timing of abstraction, the (net) volume of water allocated and the rate at which water is abstracted, including daily and seasonal requirements and duration and timing of peak daily take rate, having regard to the efficiency and use of the water allocated and having regard to the matters contained in Policy 8. iii) The carrying out of measurements, samples, analyses, inspections, recording and reporting having regard to the matters contained in Policy 12. iv) Measures to avoid, remedy, or mitigate any adverse effects associated with the intake structure. Page 38 Prepared for the EnvironmentCourt Hearing CLEANVERSION - 8August 2011 179 v) Measures to satisfy the intake velocity and screening requirements for the protection of aqu atic fauna having regard to standards identified in the Water Management Class standards in Section 3.2.4. vi) The level(s) of priority to apply du ring water shortage conditions having regard to the matters contained in Policy 14 and Standard 3.3.4.21 . vii) Abstraction restrictions during wa ter shortage conditions (in cluding suspension of. ab straction and rostering) having regard to the matters co ntained in Policies 13, 14 and Standard 3.3.4.21. I viii) Th e duratio n of the resource consent havin g rega rd to th e ma tters con tained in Po licYI 11 and Policy 15 and to fu ture demands for wa ter for domestic or municipal supply from the surface water body to which the application applies. ix) Review date with respect to the catchment investigation date as detailed in Method 3.3.4 .7 and 3-4A. L The effect of the activity on the relationship of tangata whe nua and their culture and I trad itions with th eir ancestral lands, water, sites, wahi tapu and other taonga. J Ixa) Measures to maintain and enhance tangata whenua uses and values of water, the ability to exercise kaitiakitanga, and measures to protect and enhance the mauri of water bodies. xiii) The need for and conte nt of a water management pla n as appropriate to the nature and)' I scale of th e proposed activity in accordance with Method 8.1.2.2. xiv) Measures to ensure that the net take is achieved whenever any consent granted Underj I this rule is being exercised. Advisory Notes: • The level of cumulative authorised abstraction occurring within a catchment is reported on the Waikato Regional Council website •Information requirements to enable the assessment of any application under this rule are as set out in Section 8.1.2.10f this Plan. • Rules governing the take of geothermal energy and water are found in Module 7: Geothermal of this Plan. • Rule 3.3.4.13 applies to all abstractors, including people/organisations taking water for domestic or municipal supply. • Any resource consent granted under this rule shall include a condition specifying the amount of water taken as a net take. • The assessment of cumulative allocation in this rule does not include that allocated by 3.3.4.15A Restricted Discretionary Activity Rule - Surface Water Harvesting. 3.3 .4.13A Cont rolled Activity R u le -T ak ing o f Surface Water f o r Cooling Water for the H u ntly P o w er S t at io n (Implements Sectio n 3.3.3 Policy 3 d)la)) IThe taking of surface water from the Waikato Rive r for cooling water at the Huntly Power Station is a controlled activity (requiring resource consent) subject to th e following standards and terms; a) The net take by Hun tly Power Station shall not exceed 0.7 cub ic metres per second. b)A ll applications to take water under this rule shall be assessed' on a net take basis. ,- - f<- s'i~~ 1'1;<- A...:: ~ 2 This means an applicant musl provide infonnation in anAEE to demonstrate this stand ard Is met ,<,'~/;f' Page 39 ~ /}('I4['t( ;'., '::\I ) {, Preparedfor theEnvironment CourtHearing z. \' I IiI CLEAN VERSION - 8 August2011 :'il~'\ II i ( • "'C.J \ f'll /1 I V) , ~, . "~iI . '-'\" ... ;." 180 ,Waikato Regional Council reserves control over the following matters: I ia) Measures to restore and protect the health and wellbeing of the water body for present ~ and future generations. I i) The timing of abstraction, the quantum of the net take, the timing thereof and volume ofl water allocated and the rate at which water is abstracted, including daily and seasonal requirements and duration and timing of peak daily take rate, having regard to the' efficient use of the water by the existing infrastructure and having regard to the matters' contained in Policy 8. ii) The carrying out of measurements, samples, analyses, inspections, recording and reporting having regard to the matters contained in Policy 12. I iii) Measures to avoid, remedy or mitigate any adverse effects associated with the taking, of water including the intake structure. j lv) Abstraction restrictions during water shortage conditions (including suspension of, abstraction, rostering) having regard to the matters contained in Policies 13, 14 and I Standard 3.3.4.21. I Measures to satisfy the intake velocity and screening requirements for the protection of , aquatic fauna. Il The duration of the resource consent having regard to the matters contained in PolicYI 11 and to future demands for water for domestic or municipal supply from the surface water body to which the application applies. I Vii) Review date with respect to the catchment investigation date as detailed in Method 3.3.4.7 and Table 3-4A. I IViii) The effect of the activity on the relationship of tangata whenua and their culture, and I traditions with their ancestral lands, water, sites, wahi tapu and other taonga. ix) Measures to maintain and enhance tangata whenua uses and values of water, the, ability to exercise kaitiakitanga, and measures to protect and enhance the mauri of water bodies. x) Measures to ensure that any discharge taken into account when calculating the net take is being exercised whenever any consent granted under this rule is being! I exercised. I Advisory Note: • Any resource consent granted shall include a condition specifying the quantum of the net take. • The assessment of cumulative allocation in this rule does not include that allocated by 3.3.4.15A Restricted DiscretionaryActivity Rule - Surface WaterHarvesting. 3.3.4.14 Controlled Activity Rule - Existing Taking of Surface Water for Domestic or Municipal Water Supply (Implements Section 3.3.3 Policy 4 a)) ;Except as permitted by Rule 3.3.4.10 any taking of surface water for the purposes of l domestic or municipal supply is a controlled acti vity (requiring resource consent) subject to the following standards and terms: raj The take is described by Policy 4(a). I b) The applicant shall prepare and provide a water management plan which meets the ! requirements of Methods 8.1.2.2. _ - _ d) All applications to take water under this rule shall be assessed on a net take basis. "X:-~ S~~L OF -::Q;ie Waikato Regional Council reserves control over the fOllowing matters: Page 40 \ . ,.,l:~ '~r) Prepared forthe Environment Court Hearing . 1,,\I..'.'"~II1"!.) n \i CLEANVERSION - 8 August2011 S'2,~- 1",\.,,\I':'·ill'.>. ""(:".." :<.\ II --" .. \>f)' / !,'.- .~.,! ?1 ...... I· i 'I ~i".1 ~tJ~~\\'l {,:.';. "~)}r COLII':\ ~~~ 181 i) Measures to restore and protect the health and wellbeing of the water body for present' and future generations. The timing of abstraction, the (net) volume of water allocated and the rate at which water is abstracted, including daily and seasonal requirements and duration and timing of peak daily take rate, having regard to the efficiency of the use of the water allocated and having regard to the matters contained in Policy 8. iii) The carrying out of measurements, samples, analyses, inspections, recording and reporting having regard to the matters contained in Policy 12. iia) The extent and location of riparian fencing and planting having regard to the applicant's Riparian Vegetation Management Plan, the nature of the existing land use in the riparian margins, the length of riparian margin within the property adjacent to the intakel structure, the scale of the take and the benefits of fencing and planting in the vicinity of the point of take relative to other locations. iv) Measures to satisfy the intake screening requirements for the protection of aquatic fauna. J Measures to avoid, remedy, or mitigate any adverse effects associated with the intake, structure. The level(s) of priority to apply during water shortage conditions having regard to the matters contained in Policy 14 and Standard 3.3.4.21. I Abstraction restrictions during water shortage conditions (including suspension of abstraction, rostering) having regard to the matters contained in Policies 13, 14 and Standard 3.3.4.21. viii) The duration of the resource consent and future demands for domestic or municipall supply for water from the surface water body to which the application applies having regard to the matters contained in Policy 11 and Policy 15. ix) Review date with respect to the catchment investigation date as detailed in Method 3.3.4.7 and Table 3-4A. x) The content and implementation of a water management plan submitted in compliance I with standard and term d) of this rule. xa) The effect of the activity on the relationship of tangata whenua and their culture and traditions with their ancestral lands, water, sites, wahi tapu and other taonga. xb) Measures to maintain and enhance tangata whenua uses and values of water, the ability to exercise kaitiakitanga, and measures to protect and enhance the mauri of water bodies. xiv) Measures to ensure that the net take is achieved whenever any consent granted under this rule is being exercised. Exception This rule does not apply to: • The taking of geothermal energy and water. • The taking of water for a dam or diversion. Such takes are managed by the policies and rules in Chapter 3.6. Advisory Note: • Page 41 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 182 • The assessment of cumulative allocation in this rule does not include that allocated by 3.3.4.15A Restricted Discretionary Activity Rule - SurfaceWaterHarvesting. 3.3.4.14A Controlled Activity Rule - Taking of Surface Water for Existing Milk Cooling and Dairy Shed Wash Down (Implements Section 3.3.3 Policy 28 and Policy 3) Except as provided for by Rule 3.3.4.10 any taking of surface water described in 1 or 2 below for the purposes of milk cooling or dairy shed wash down is a controlled activity: 1. For applications lodged prior to 1 January 2015 for takes that were existing prior to 15 October 2008 in catchments where the net rate of the take when assessed in combination with all other authorised water takes (all calculated on a net take basis)' exceeds 100 percent of the combined primary and secondary flows set in Table 3-5; or Q. For takes in catchments where the net rate of the take when assessed in combination, with all other authorised water takes (all calculated on a net take basis) does not J exceed 100 percent of the combined primary and secondary flows set in Table 3-5 subject to the following standards and terms: ',a) The water take shall not be from a water body classified as Natural State Water in the Water Management Class Maps. ,b) The take shall be for a single site 'IC) The net amount of water taken is proven to be the same or less than that occurring prior to 15 October 2008. I d) All stock on the property for which the water is taken and used shall be excluded froml the river from which the take occurs by way of fencing, provided that the propertY owner also owns the land adjacent to that water body. e) A Riparian Vegetation Management Plan which meets the requirements of MethodI 3.3.4.22 shall be provided for the property for which the water is taken and used on and that plan shall specify the location and length of any streams whose riparian margins are to be planted and the proposed timing of that planting. f) The reticulation network for the water taken shall include leak detection mechanisms. g) All applications to take water under this rule shall be assessed on a net take basis. h) Any water take under this rule shall be deemed to include (as the first 15 cubic metres per day of such takes) all water that is permitted for the site pursuant to Rules 3.3.4.9 and 3.3.4.10 (so that the total water allocated to the site is accounted for within the consented amount to ensure no double accounting). Waikato Regional Council reserves control over the following matters: ia) Measures to restore and protect the health and wellbeing of the water body for present and future generations. iia) The extent and location of riparian fencing and planting having regard to the applicant's Riparian Vegetation Management Plan, the nature of the existing land use in the riparian margins, the length of riparian margin within the property adjacent to the intake structure, the scale of the take and the benefits of fencing and planting in the vicinity of the point of take relative to other locations. i) Adequacy and nature of mechanisms used to identify and remedy leaks. ~'L'i )j) The timing of abstraction, the (net) volume of water allocated and the rate at which ,..Sr i \X-'<- . -. l,<{<. '\later is abstracted, including daily and seasonal requirements and duration and timing ~ , of peak daily take rate, having regard to the efficiency and use of the water aliocated,l 0.1. I:' );;:;. )\ Page 42 !li! V-r~'r -" ~~~, (.) Prepared for the Environment Court Hearing ~ ~.\\ ~!/I~i :')/i CLEANVERSION- 8August 2011 a . '>. ," ~,," ' ,\" I ~-1<); ". / ,\ I ~fVI CiJUfI\.- '<-':1 183 the number of cows milked (as at October 2008) and having regard to the matters contained in Policy 8 and Policy 15. iii) The carrying out of measurements, samples, analyses , inspections, recording and reporting having regard to the matters contained in Policy 12. I iv) Measures to avoid, remedy, or mitigate any adverse effects associated with the intake structure . Measures to satisfy the intake velocity and screening requirements for the protection of r) aquatic fauna having regard to standards identified in the Water Management Class standards in Section 3.2.4. The level(s) of priority to apply during water shortage conditions conditions having r) regard to the matters contained in Policy 14 and Standard 3.3.4.21. Abstraction restrictions during water shortage conditions (including suspension of r) abstraction and rostering) having regard to the matters contained in Policies 13, 14 and Standard 3.3.4.21. J viii) The duration of the resource consent having regard to Policy 11 and to future demands for water for domestic or municipal supply from the surface water body to which the' application applies. ix) Review date with respect to the catchment investigation date as detailed in Method 3.3.4.7 and Table 3-4A. I The effect of the activity on the relationship of tangata whenua and their culture, and traditions with their ancestral lands, water, sites, wahi tapu and other taonga . Measures to maintain and enhance tangata whenua uses and values of water, the ability to exercise kaitiakitanga, and measures to protect and enhance the mauri of water bodies . xii) Measures to ensure that any discharge taken into account when calculating the net , take is being exercised whenever any consent granted under this rule is being exercised Advisory Note: o Any resource consent granted shall include a condition specifying the quantum of the net take. o For the purpose of determining the maximum volume of take as at 15 October 2008 the Waikato Regional Council shall have regard to water use monitoring records held by the applicant. or where no such records exist, shall generally calculate the volume based on the number of cows proven by the applicant to have been milked on the subject site at that time multiplied by 70 Iitres per cow. o Information requirements to enable the assessment of any application under this rule are as set out in Section 8.1.2.1 of this Plan. o Under Rule 4.2.18.1 of this Plan a consent is requ ired for planting and fencing within 10 metres (except in the Hauraki District Council and Aka Aka Otaua Drainage areas where a 15 metre distance applies) of the water bodies listed in Table 4-1. The consent requirements of Rule 4.2.18.1 will be dealt wilh contemporaneously by WRC when assessing consent applications under Rule 3.3.4. 14A. 3.3.4.148 Controlled Activity Rule - Taking of Groundwater for Existing Milk Cooling and Dairy Shed Wash Down (Implements Section 3.3.3 Policy 5 ab)) ..... ,Except as permitted by Rule 3.3.4.9 any taking of groundwater for the purposes of milk' &. SH\L OF ;,cooling and dairy shed wash down is a controlled activity subject to the following standards' " - . ~ h Cl terms: \i'J~ <.. \.)/ ~~"i-"";-)-~""~. ),:------;p;-:a-::g e:-C4"'3 ' ( ~ ,'\), - Prepared for the EnvironmentCourtHearing v \\ :':1 .; ". .~~ CLEAN VERS ION- 8 Aug ust 201 1 . ( . '\// / \ ..' ~ - . - 184 a) The take shall be for a single site . b) The take is from a well: i) Greater than 600 metres from the coastal marine area or 100 metres from a lake or stream; or ii) Greater than 100 metres from a Significant Geothermal Feature except for those features that are Recent Sinter or Hydrothermal Eruption Craters containing no' geothermal pools or discharging geothermal features in which case the take shall not be located within 20 metres of the feature; or 1 iii) Greater than 100 metres from any other wells, except if the other well is also owned by the applicant. 1 iv) With the upper extent of the screen being at a depth greater than 40 metres below ground level. The take shall not result in salt water intrusion or any other contamination of the ~u~~ . I The net amount of groundwater taken is proven to be the same or less as was occurring prior to 15 October 2008 .,I The reticulation network for the water taken shall include leak detection mechanisms The well(s) used for the taking of water are registered with Waikato Regional Council. Any water take under this rule shall be deemed to include (as the first 15 cubic metres. per day of such takes) all water that is permitted for the site pursuant to Rules 3.3.4.9 and 3.3.4.10 (so that the total water allocated to the site is accounted for within the' consented amount to ensure no double accounting) lw aikato Regional Council reserves control over the following matters: i) Adequacy and nature of mechanisms used to identify and remedy leaks. iii) The timing of abstraction, the (net) volume of groundwater allocated and the rate at which groundwater is abstracted, including daily and seasonal requirements and duration and timing of peak daily take rate, having regard to the efficiency and use of the groundwater allocated having regard to the number of cows milked (as at October 2008), to the matters contained in Policy 9, and to the matters contained in Policy 8 where appropriate. iii) The carrying out of measurements, samples, analyses, inspections, recording and reporting having regard to the matters contained in Policy 12. iv) Measures to avoid, remedy, or mitigate any adverse effects associated with the abstraction, including drawdown interference effects on neighbouring groundwaterl takes. v) Abstraction restrictions during water shortage conditions (including suspension of abstraction and rostering) having regard to the matters contained in Policies 13, 14 and Standard 3.3.4.21. vi) The duration of the resource consent having regard to the matters contained in Policy 11 and to future demands for water for domestic or municipal supply from the groundwater body to which the application applies. vii) Review date with respect to the catchment investigation date as detailed in Method 3.3.4.7 and Table 3-4A. viii) The effect of the activity on the relationship of tangata whenua and their culture, and traditions with their ancestral lands, water, sites, wahi tapu and other taonga. I ,ix) Measures to maintain and enhance tangata whenua uses and values of water, the ability to exercise kaitiakitanga, and measures to protect and enhance the mauri of· o L 0 water bodies. l <0' F > ~.•j - Ilff' Page 44 ~'~:1,~?~.~ ~~ Prepared for the Environment Court Hearing OJ '1\1 I,,', . ( CLEAN VERSION - 8 August 2011 '. ~ .\' '. r: :.;! ~ \' .: " J Advis ory Note: • Information requirements to enable the assessment of any application under this rule are as set out in Section 8.1.2.1 of this Plan. In addition, assessment shall also take into account the mallers identified in Policies 1-98 of Section 3.3.3. • For the purposeof determining the maximum volume of take as at 15 October2008 the Waikato Regional Council shall have regard to water use monitoring records held by the applicant, or where no such records exist, shall generallycalculate the volume based on the number of cows proven by the applicant to have been milked on the subject site at that time multiplied by 70 litres per cow. 3.3 .4.15 Restricted Discretionary A ct ivity Rule - The Taking of S u rface Water (Implements Section 3.3.3 Policy 3 d)ii) and Policy 4 cj) . 1'1. Any taking of surface water unable to comply with Rules 3.3.4 .13, 3.3.4.13A or 3.3.4.14; or I 2. The taking of surface water exceeding 70 percent and up to and including 100 percent J of the primary allocable flow of wate r from catchments as identified in Table 3-5 is a restricted discretionary activit y (requiring resource consent) subject to the, following standards and terms: a) The net rate of the take , asse ssed in combi nation with all other authorised water takes (all calculated on a net take basis), shall not exceed 100 percent of the primarYj allocable flows for catchmen ts speci fied in Table 3-5; b) Where the take is for a domestic or municipal supply a water management plan which meets the requirements of Method 8.1.2.2 shall be provided; c) All applications to take water under this rule shall be assessed on a net take basis.3 Exception This rule does not apply to: • The taking of geothermal energy and water. • The taking of water for a dam or diversion. Such takes are managed by the policies and rules in Chapter 3.6. ,The Wa ikato Regional Counc il restricts its discretion over the following mallers: ii). Measures to restore and protect the health and wellbeing of the water body for present I and future generations . I Ia) The matters contained in Policy 8. iii). The timing of abstraction, the (net) volume of water allocated and the rate at which water is abstracted, including daily and seasonal requirements and duration and timing I of peak daily take rate , having regard to the efficiency and use of the water allocated. r Where the application is for a domestic or municipal supply the content and implementation of a water management plan. v). The carrying out of measurements, samples, analyses, inspections, recording and reporting having regard to the matters conta ined in Policy 12. vi). Measures to avoid, remedy, or mitigate any adverse effects associated with the intake structure. Measures to satisfy the intake screening requirements for the protection of aquatic fauna. I S~t< L 01'--;'7:._------'" X. -.;,/;", ;'" I'~ r~lth i s means anapplicant must provide Information In anAEE to demonstratethis standard is met. I: '-) 11,",,'":-'-,:-, -::---:' ,------n== Page45 ~ .\~ ~)~ .).1 '("\\. 1 tVI Prepared for the Environment Court Hearing \ G} .x >: '.V'i CLEAN VERSION - 8 August 2011 ~ "'~ltlr . /' ...... t. ) 1. ~ 186 'viii). The level(s) of priority to apply during water shortages having regard to the matters' contained in Policy 14 and Standard 3.3.4.21. I ix). Abstraction restrictions during water shortage conditions (including suspension of, abstraction and rostering) having regard to the matters contained in Policies 13, 14 and Standard 3.3.4 .21. J 'x). The duration of the resource consent and future demands for domestic or municipal supply for water from the surface water body on which the application applies having ' regard to the matters contained in Policy 11 and Policy 15. J r,xi). Review date with respect to the catchment investigation date as detailed in Method I 3.3.4.7 and Table 3-4A. I ,xii). The effect of the activity on the relationship of tangata whenua and their culture, and I traditions with their ancestral lands , water, sites, waahi tapu and other taonga. I 'xiii) Measures to maintain and enhance tangata whenua uses and values of water, the. . ability to exercise kaitiakitanga, and measures to protect and enhance the mauri of I' r water bodies. 'xiv). Measures to ensure that the net take is achieved whenever any consent granted underl' I this rule is being exercised. J Advisory Notes: o The level of cumulative authorised abstraction occurring within a catchment is reported on the .r Waikato Regionai Councilwebsite o Rules governing the take of geothermal energy and water are found in Module 7: Geothermal, of this Plan. o Information requirements to enable the assessment of any application under this rule are as set out in Section 8.1.2.1 of this Plan. o Any resource consent granted under this rule shall include a condition specifying the amount of water taken as a net take. o The assessment of cumulative allocation in this rule does not include that allocated by 3.3.4.15A Restricted Discretionary Activity Rule- SurfaceWater Harvesting. 3.3.4.15A Restricted Discretionary Activity Rule - Surface Water Harvesting (Implements Section 3.3.3 Policy 16) IThe taking of surface water (calculated on a net take basis) for the purposes of water, ,harvesting is a restricted discretionary activity (requiring resource consent) subject to the 'following standards and terms: la) The take shall not occur in the Waikato River catchment upstream of the Karapiro Dam I b) In circumstances where water is only taken when the river flow is greater than the l median flow, and the total amount of water taken by way of water harvesting shall not! exceed 10% of the flow in the river at the time of abstraction, c) All applications to take water under this rule shall be assessed on a net take basis". Id) The take shall cease if the average flow for the previous seven days falls below the I median flow. IWaikato Regional Council restricts its discretion over the following matters: ia) Measures to restore and protect the health and wellbeing of the water body for present, ~ and future generations; I ib) The matters contained in Policy 8. ..p •...,. CtN -,'*,"~'~ _ ,,'(-.'<..~ - ' ~0 ,<- {~~ \~j~~ ,T~ ~,S means an applicant must provide information in an AEE to demonstrate this standard is met Page 46 l{!'<\I, :'~r;fJtU 1-1: Prepared forthe Environment Court Hearing ~: \:; ,:' Ii ':~'S CLEAN VERSION - 8 August 2011 "j, ';. , .• '.,' ':-~. -::/'<;:t, ...... - .',/,\\',--/,/ , I'('()ll'" \ ';.;;' / -".,' 1\ \~ / 187 i) The timing of abstraction, the (net) volume of water allocated and the rate at whichl water is abstracted, including daily and seasonal requirements and duration and timing j of peak daily take rate , having regard to the efficiency and use of the water allocated. I ii) The carrying out of measurements, samples, analyses, inspections, recording and reporting having regard to the matters contained in Policy 12. I ,iii) Measures to avoid, remedy, or mitigate any adverse effects associated with the intake I structure. I iv) Measures to satisfy the intake velocity and screening requirements for the protection of aquatic fauna having regard to standards identified in the Water Management Classl standards in Section 3.2.4. I v) The level(s) of priority to app ly during water shortage conditions having regard to the. matters contained in Policy 14 and Standard 3.3.4.21 . I Iv i) Abstraction restrictions during water shortage conditions (including suspension ofl abstraction and rostering) having regard to the matters contained in Policies 13, 14 and] J Standard 3.3.4.21. 1 'Vii) The duration of the resource consent having regard to the matters contained in I Policy 11 and Policy 15. 1 Viii) Review date with respect to the catchment investigation date as detailed in Method 3.3.4 .7 and Table 3-4A. iX) The effect of the activity on the relationship of tangata whenua and the ir culture, andl traditions with their ancestral lands, water, sites, wahi tapu and other taonga. ' lx) Measures to mainta in and enhance tangata whenua uses and values of water, thel, ability to exercise kaitiakitanga, and measures to protect and enhance the mauri ofI water bodies. ,xi) The need for and content of a water management plan as appropriate to the nature and I scale of the proposed activity in accordance with Method 8.1.2.2. 'xii) Effects on the generation of electricity. !Xiii) Measures to ensure that the net take is achieved whenever any consent granted underl I this rule is being exercised. 'xiv) Measures monitor and manage the take to ensure water is only taken when the river flow, is greater than the median flow, and the total amount of water taken by way of water I harvesting shall not exceed 10% of the flow in the river at the time of abstraction. I Advisory Note: o Any resource consent granted shall include a condition specifying the quantum of the net take. o Information requirements to enable the assessment of any application under this rule are as set out in Section 8.1.2.1 of this Plan. o With regard to monitoring and managing the water harvesting take, the Waikato Regional Council's preference is for electronic measuring devices that provide real time monitoring information to the applicant and the Council with respect to the times when the water harvesting is occurring and with respect to the gauged median flow of surface water in the river. 3 .3 .4.16 Discretionary Activity Rule - Surface Water Takes (Implements Section 3.3.3 Policy 3 d)lii)) IT he taking of surface water that: ." '~~L a . Is a non-qualifying s14(3)(b) take described by Policy 3(b) ; or """,_F I! . . ] "-:; > .- ,. ~;t!' Is a supplementary take or a temporary take deSCribed by Policy 3(ca), or A~') Jl r ~" Page 47 in /.\C.".).:: .')(.:../; Si!) Prepared for the Environment Court Hearing ~:;:! ·.'tl.; ~:;:!; ~:'{', 1;J\,. I CLEAN VERSION - 8 August 2011 L/; I., -.'.' ,', 'V' ··~~A-._ _ /'(..~~ / (nl " •.'", ., .... :.1 COll,\\_:~ "~~- 188 '3. Except as provided for by Rules 3.3.3.13A, 3.3.4.14 and 3.3.4.14A, is a take that when' assessed in combination with all other authorised water takes (all calculated on a net take basis), exceeds the primary allocable flow but is less than the combined primary and secondary allocable flows in Table 3-5, or 4. Is an existing take described by Policy 28(e); or 5. Is a zero net take described by Policy 28(f); or 6. Is a new take for domestic or municipal supply described by Policy 28(g) and Policy 4(d); or is a discretionary activity (requiring resource consent) subject to the following standards and terms: a) The water take shall not be from a Natural State water body, wetland or lake (excluding artificial lakes, hydro electricity reservoirs, Lake Rotoaira and Lake Taupo . b) Fxcept in relation to applications for domestic and municipal supply, for existing surface takes in catchments exceeding the combined primary and secondary flows in Table 3-5 J a Riparian Vegetation Management Plan which meets the requirements of Method 3.3.4.22 shall be provided for the property for which the water is taken and used on and that plan shall specify the location and length of any streams whose riparian margins are to be planted and the proposed timing of that planting. I c) For domestic or municipal supply takes the applicant must have prepared a waterl management plan which meets the requirements of Section 8.1.2.2 of this Plan and that water management plan must be made available to the Waikato Regional Council and the Waikato River Iwi within whose rohe the take is located. All applications to take water under this rule shall be assessed on a net take basis . Any water take under this rule shall include all water that is permitted for the site pursuant to Rules 3,3.4,9 and 3.3.4.10 (so that the total water allocated to the site is accounted for within the consented amount to ensure no double accounting). ,Excepti on This rule does not apply to: o The taking of geothermal energy and water. o The taking of water for a dam or diversion. Such takes are managed by the policies and rules in Chapter 3,6. Advisory Notes: o The level of cumulative authorised abstraction occurring within a catchment is reported on the Waikato Regional Council website. o Information requirements to enable the assessment of any application under this rule are as set out in Section 8,1,2,1 of this Plan. o In general, takes assessed in combination with all other existing authorised water lakes which exceed 100 percent of the combined primary and secondary allocableflow identified in Table 3-5 are a non-complying activityin accordance with Rule 3,3,4,20, o Any resource consent granted under this rule shall include a condition specifying the amount of water taken as a net take. o Under Rule 4.2.18.1 of this Plan a consent is required for planting and fencing within 10 metres (except in the Hauraki District Council and Aka Aka Otaua Drainage areas where a 15 metre distance applies) of the water bodies listed in Table 4-1. The consent requirements of Rule 4,2,18.1 will be dealt with contemporaneously by WRC when assessing consent applications underRule 3,3,4, 14A. Page 48 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 189 3.3.4.18 Discretionary Activity Rule - Groundwater Takes (Implements Section 3.3.3 Policy 5 e), f)i)) [The taking of groundwater that, when assessed in combination with all other authorised' .takes from the same aquifer: I 1. Is a supplementary take, temporary take or well and aquifer testing take that does not comply with Rules 3.3.4.9, 3.3.4.11 or 3.3.4.12 ; or 1A. Is a non-qualifying s14(3)(b) take described by Policy 5(b); or i2. Does not exceed the Sustainable Yield if listed in Table 3-6; or 13. Is from an aquifer that is not listed in Table 3-6; or 4. Is for domestic or municipal supply takes where a water management plan is provided that meets the requirements of Method 8.1.2.2 of this Plan . is a discretionary activity (requiring resource consent) I Exception J I' IThis rule does not apply to the taking of geothermal energy and water. , Advisory Notes: • Information requirements to enable the assessment of any application under this rule are as set out in Section 8.1.2,1 of this Plan. • Rules governing the take of geothermal energy and water are found in Module 7: Geothermal of this Plan. 3.3.4.19 Non-Complylnq Activity Rule - Surface Water Takes From Wetlands, Natural State Water Bodies and Lakes (Implements Section 3.3.3 Policy 3 e)) INotwithstanding any other rule in this Plan, the taking of water (calculated on a net take basts) from Natural State water bodies, wetlands (that are referred to in Section 3.7.7 of the this Plan or meet the criteria of Appendix 3 of the RPS) and lakes (excluding artificial lakes, ,hydro electricity reservoirs, Lake Rotoaira and Lake Taupo) is a non-complying activity' (requiring resource consent) subject to the following standard and term: fa) All applications to take water under this rule shall be assessed on a net take basis". j Advisory Notes: • For the avoidance of doubt, the lake impounded by the Rangipo Dam on the Tongariro River is a hydro electricity reservoir and Lake Elliot (Grid Reference NZMS 260 U17 753836) is an artificial lake. • Information requirements to enable the assessment of any application under this rule are as set out in Section 8.1.2,1 of this Plan, • Any resource consent granted under this rule shall include a condition specifying the amount of water taken as a net take. • The assessment of cumulative allocation in this rule does not include that allocated by 3.3.4,15A Restricted Discretionary Activity Rule - Surface Water Harvesting. Sl IlL OF /;' <,,0 ,-- , ~ ~ This means an applicant must provide information in an AEE to demonstrate this standard is met {£ Page 49 \(,'.\ i,~. "J (1" ) <..~\. \"_: ~/;;;I. (..:'I Prepared for the Environment Court Hearing ':B '~r\\' :.;J '(1\ :;;~ CLEAN VERSION - 8 August 2011 ~".'"'\ \' "".,""I ':!:,'J.I~':' ~.J ...... ,)~ '·,"'1"",,' J,,-tl ,':-;, '. '",-1.,' V \-:~~:-...- ,/.-,,~\ '<;V/ {;lJInl \:\V/ "'.<: .'.../ 190 3.3.4.20 Non-Complying Activity Rule - Water Takes (Implements Section 3.3.3 Policy 3 d) iv), Polley 4 e) and Policy 5 f)ii)) Except as provided in Rules 3.3.4.13A, 3.3.4.14 , 3.3.4.14A, 3.3.4.148, 3.3.4.16 , 3.3.4.18' and 3.3.4.19 and the takes described by Policy 2AB the taking of groundwater or surface! water (surface water calculated on a net take basis) that: I 1. Is for a surface water take which when assessed in combination with all otherj authorised water takes exceeds the combined primary and secondary allocable flows in Table 3-5; or I 12. Is for a surface water harvesting take which when assessed in combination with all other authorised surface water harvesting water takes exceeds the limits set in POIiCyi 16(b); or 1 3. Is for a groundwater take which exceeds the Sustainable Yields (if listed) in I Table 3-6, or 4. Is for domestic or municipal supply and a wate r management plan developed in I " accordance with Method 8.1.2.2 has not been provided to the Waikato Regional 1 Council and to the Waikato River Iwi within whose rohe the take is located. is a non-complying activity (requiring resource consent) IExcept ion This rule does not apply to: o The taking of geothermal energy and water. o The taking of water for a darn or diversion . Such takes are managed by the policies and rules in Chapter 3.6. Advisory Notes: o Information requirements to enable the assessment of any application under this rule are as set out in Section 8.1 .2.1 of this Plan o Rules govern ing the take of geothermal energy and water are found in Module 7: Geothermal of this Plan. o Any resou rce consent granted under this rule in relation to a surface water take shall include a condition specifying the amount of water taken as a net take. o The assessment of cumulative allocation in this rule does not include that allocated by 3.3.4.15A Restricted DiscretionaryActivity Rule - SurfaceWater Harvesting. 3.3 .4.21 Standard · How Water Shortage Restrictions Shall Apply (Implements Section 3.3.3 Polley 3 f) and Policy 5 g)) a) Restrictions on water takes directly from surface water bodies will occu r in the following manner and order, unless existing water take resource consents already contain conditions requi ring the restriction or cessation of taking at times of river low flow or in other circumstances in which case the resource consent conditions shall prevail : ia) Priority SW-E users will be required to cease taking if the average flow for the previous seven days falls below the median flow. i) Priority SW-D users will be required to cease their taking if the average flow for the previous seven days is less than the minimum flows specified in Table 3-5. ii) Priority SW-C users will be required to reduce their net daily take rate by 50 percent of the authorised amount (when averaged over any two consecutive days, --- unless undertaken in accordance with Part c) of this Standard) when river flows fall ;'S'i ~ \. OF h '~ .-_____... 'T<" below the minimum flows specified in Table 3-5, three or more days after part a) i) of this Standard has been implemented. () , ...s, .. ~ ':"- --':; :------'------=== Page 50 '~I l': I ~ ) ) ';.'~'I v, • (\ ~,; Prepared for the Environment Court Hearing •\\ \ .. I CLEAN VERSI ON- 8 August 2011 \ "' 'r Or ,,~i ;/ ' .. - 191 iii) If the river flow falls below the minimum flows specified in Table 3-5, seven or more days after part a) ii) of this Standard has been implemented: • Priority SW-C users will be required to reduce their net daiiy take rate by 75 percent of the authorised amount (which reduction must be effected on any one day, not averaged over four days unless undertaken in accordance with Part c) of this Policy), and • Priority SW-B users will be required to reduce their net daily take rate (averaged over any two consecutive days unless undertaken in accordance with Part c) of this Standard) by 15 percent of the authorised amount. • Priority SW-A users wili not be required to reduce their net daily net take rate b) Where there are no SW-D users the restrictions specified in a) ii) will be implemented if the average flow for the previous seven days is less than the minimum flow in Table 3-5. c) The Waikato Regional Council may issue Water Shortage Directions under s329 RMA if surface water flows continue to fall below the minimum flow after implementing parts I a) i), ii), or iii) of this Standard. d) Restrictions under parts a) i), ii), or iii) of this Standard may be implemented by water user groups, voluntary agreements between water users, or transfer of water permits as approved by the Waikato Regional Council. . e) Priority GW-A and GW-B users taking directly from groundwater will not be restricted except as provided for under s329 RMA (Water Shortage Direction) by Policy 15 and Methods 3.3.4.7, 3.3.4.6B and 3.3.4.8. f) In the Waikato River catchment upstream of Karapiro Dam, restrictions will be deemed to occur when calculated natural flows (caiculated for the relevant natural infiows to Lake Taupo and the Waikato River above Karapiro Dam) fall below the minimum natural flows calculated using the relevant minimum flow percentages in Table 3-5. Advisory Note • Standard 3.3.4.21 part I), 'natural flows' are flows where the influence of the eight Waikato River hydro-generation dams, Lake Taupo outlet gates and the Tongariro Power Scheme on the hydrology of the catchment have been removed . These flows will be determined by the model referred to in Method 3.3.4.6C. 3.3.4.22 Standard - How riparian planting and stock exclusion fencing shall apply (Implements Section 3.3.3 Policy 28, 8(g) and 8(p)) The contents of a Riparian Vegetation Management Plan prepared as part of a consent application to take water shall meet the following requirements: a) Extent of riparian fencing and planting: i) Notwithstanding Rules 4.3.5.4 and 4.3.5.5, where stock are or are likely to be present, riparian fencing and planting should generally be undertaken within the property along the full extent of the water body from which the take occurs, or the equivalent length of tributary water bodies on the property or another property in the catchment; ii) All fencing undertaken should generally be permanent and effectively exclude all livestock present; iii) Where stock exclusion fencing is not required (i.e. there are no livestock on the ;1:'<'"",,,;:" a»: affected property) or is already in place, riparian planting should generally be ~~: f ; \~j ,~,,+~~/0-----=-~.------_------=p a g=-=e 51 ~_~ ~~~\f\~:_.··, /j;:;! q Prepared for the Environment Court Hearing f\• > ,( \.! ".... )'(:' .. CLEAN VERSION - 8 August2011 ,:.,) \ .. \1 ;:i.ll. '')::'i ,.(t\ '. r , ',' '.l..J ~~~ '\ '< :,<. >.:';-., ,'.,'<..\vt '\. <'/1'/' -. ~- ., \x<~ .1 . ('["IIIl", \ ,-;' .•1' ...... -'. II.,... ' 192 undertaken within the property along the full extent of the water body, or the equivalent length of tributary water bodies. b) Timeframes for implementation of fencing andlor planting: i) Fencing must be completed within 3 years of a water take consent being granted; ii) Riparian planting must be progressively completed over the term of the water take consent; iii) Where stock exclusion fencing is not required (i.e. there are no livestock on the affected property) or is already in place, riparian planting must be progressively completed over the term of the water take consent. c) Minimum riparian width: i) Fences must be set back a minimum of 3 metres from the top of the bank6, ii) Riparian planting must be undertaken within the full extent of the riparian setback . Where fencing is not required the riparian margin which is planted must be at least J 3 metres wide from the top of the bank. d) Planting requirements: i) Where no suitable planting already exists , a minimum of 80% of riparian plantings shall be made up of native plant species appropriate to the characteristics of the site and catchment (e.g. climate, size of stream, flood risk, erosion, local native fiora, potential, and slope); Ii) Plantings must be undertaken at a density of no less than 2500 stems per hectare and shall be maintained (including replacement of losses and control of pest species) accordingly during the term of the consent. Advisory Note: • Fencing and riparian planting may be undertaken on a property otherthan the property containing the water bodyfrom which the water is taken provided that property is in the same catchment. As a guide Waikato Regional Council will generally require riparian fencing and planting over a length equivalent to the full extent of the water body within the property from which the take occurs. However, depending on the site-specific circumstances, the Waikato Regional Council may modify this requirement by altering the extentof fencing andlor planting . Table 3-5: Allocable Flows for Surface Water • Refer to water allocation maps 'Surface Water Allocation Catchments,' as directed by the relevant map and catchment numbers in this table to identify the catchment areas to which the allocable and minimum flows relate: • For catchments where the allocable or minimum flow is the same for the upland and lowland sub-catchments (e.g. Hapuakohe Range (Piako catchment)) information is only listed in the section of the table relating to the lowland sub-catchments. • Table 3-5 specifies the percentage of the Q s flow which is able to be allocated and the portion required for the minimum flow as established in Policy 1 and Policy 1A. The Q s flow will need to be calculated at the point of take and at each affected downstream reach . The Waikato Regional Council in many cases will be able to provide known values of Q s for many iocations in the region. However, where these are unknown applicants will need to provide a calculation of the Q s flow. Page 52 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 ~ ...<,,-<-~~~ ;;\-:~~,8," :~/~-sF' \~. !~,~i~~''- '. J1,~;7 ' 'l.,1/c- ".",_ ,.~~ Upland Catchments Lowland Catchments Catchment Flows: % of Qs Flows: % of Q5 Map# Map# (catchment#) (catchment #) Primary Secondary Primary II Secondary II Minimum Minimum Allocable ' Allocable AllocableII Allocable II Hakarimata range 5 25 95 4 (68) 20 10 80 4 (51) Hapuakohe Range (Plake catchment) N/A N/A N/A N/A 5 25 95 3 (238) Kairoa N/A N/A N/A N/A 30 0 70 1 (118) Kaniwhaniwha (Pirongia) N/A N/A N/A N/A 0 30 100 4/7 (86) KarapiroStream 10 20 90 6(48) 30 0 70 6 (7) Kirikiriroa N/A N/A N/A N/A 30 0 70 4 (8) Kiwitahi (Piako R) N/A N/A N/A N/A 5 25 95 5/6 (242) Komakorau N/A N/A N/A N/A 30 0 70 4/5 (9) -c I w Mangaio(Pirongia) N/A N/A N/A N/A 20 10 80 7 (87) Mangakara(Pirongia) N/A N/A I N/A N/A 20 10 80 7 (88) Ma ngakaware N/A N/A N/A N/A 30 0 70 7 (12) Mangakotukutuku N/A N/A N/A N/A 0 30 100 4 (80) Mangamauku - Domestic or municipal supply only. N/A N/A N/A N/A (Pironqia) 30 0 70 7 (89) Mangamutu (Te Kura) 5 25 95 9 (66) 20 10 80 9 (38) Mangaokewa 5 25 95 9/10 (49) 20 10 80 9/10 (10) Mangaone N/A NA N/A N/A 20 10 80 6 (1 10) Ma ngaonua 10 20 90 6 (107) 30 0 70 6 (141) Mangaorongo (inc. some minorstreams onWaipa 0 30 100 20 7/9/10 (11/72) R) 10 (56) 10 80 - Mangaotama N/A NA N/A N/A 30 0 70 7 (13) I I I I Mangapapa (Piako R) N/A NA N/A N/A 5 25 95 6(241) I I I I Pag e 53 Prepared for the E nviron ment Court He arin g C LEAN V ERSION - 8 A ug ust 2011 ------:---.. " :::~~~~.-., ..,<;.:'r.\" -;' .-, ;~ ./ s;2 / ...... ...',,- -c , Upland Catchments Lowland Catchm ents '"" Catchm ent Flows: % of Os Flows: % of Os Map # Map # (catchment #) Primary Secondary (catchment #) Primary Secondary II Minimum Minimum Allocable II Allocab le Allocable II Allocable II Mangapiko (inc. some minor streams on Waipa R) 10 20 90 8 (82) 20 10 80 7/8 (17/81) Mangapu 10 20 90 9 (50) 30 0 70 9 (18) Mangarapa (Mangapu) N/A NA N/A N/A 5 25 95 9/10 (19) Auckland Regional Plan continues to apply Mangatangi and Ruaotehuia I pursuant to section 81(1) of the Resource 1 (114) 20 I 10 I 80 I 1 (178) Management Act 1991 Auckland Regional Plan continues to apply Mangatawhiri I pursuant to section 81(1) of the Resource 1 (400) 30 0 70 1 (101) Management Act 1991 Mangatutu (Puniu R.) 0 30 100 8110 (57) 5 25 95 8110 (20) I ..,.'" Mangauika - Domestic or municipal supply only. (Pirongia) N/A NA N/A N/A 30 0 70 7 (90) Mangawara (inc. minor streams on Waikato R) 10 20 90 3/4/5 (58/59) 20 10 T 80 T 4/5 (21) Mangawawa - Domestic or municipal supply only. N/A NA N/A N/A (Pirongia) 30 0 I 70 I 7 (91) Mangawhero N/A NA N/A N/A 30 0 70 6/8 (23) Mangawhero (Te Kawa) N/A NA N/A N/A 30 0 70 7/8 (22) Manga'Nhero South (Sth Otorohanga) 5 25 I 95 10 (60) 20 10 80 9 (25) Moakurarua 0 30 100 7/9 (61) 10 20 90 7 (26) MysteryCreek N/A NA NlA N/A 30 0 70 8 (27) Ngakoaohia(Pirongia) NlA NA N/A NlA 0 30 100 7 (92) Ngaruawahia sub catchments (exc. Waikato R. 0 30 100 4 (73) 30 0 70 4 (74) main stem) Ngutunui (Moakurarua) N/A NA N/A N/A 0 30 100 7 (94) Page 54 Prepared for the EnvironmentCourt Hearing C LEAN VERSION- 8 A ug ust 2011 _.\~" ~,"'"..;-•.... .- .~'j .' :/:.:.------..<, .. --...... ~~ .., <, ..;--. .- v~-, \ -::::-~~-:. .~::::. . ~ _,,-., .:p, i I c:'"I ,,:.: -~ t ::0 ~- 1-' \ V~\ Upland Catchments Lowland Catchments 't'~ Catc hment Flows: % of Qs Flows: % of Q 5 Map# Map # (catchment #) Primary Secondary (catchment #) Primary II Secondary II Min imum Minimum Allocable Allocable Allocable II Allocable II Nukuhau (inc. minor streams on Waikato R) N/A NA N/A N/A 0 30 100 4 (77) Ohote N/A NA N/A N/A 30 0 70 4 (33) Ongaruhe One. neighbouring tributaries of the 10 20 90 7/9 (63) 30 70 7 (62) W aipa R) 0 Opitonui (Cc romandel) 0 30 100 14 (277) 10 20 90 14 (354) Orahiri (inc. some minor streams on Waipa R) 0 30 100 9 (64) 30 0 70 9 (34) Parker Lane N/A NA N/A N/A 30 0 70 1 (119) Plake 10 20 90 3/5/6 (251) 30 0 70 3 (237) ;:0 Pokaiwhenua 30 0 70 11 (99) 10 20 90 11 (299) I v. Punlu 0 30 100 8110 (65) 10 20 90 7/8 (35) Rangitukia (Pirongia) N/A NA N/A N/A 0 30 100 7 (95) Refer to"All other Coromandel Peninsula Stony (Coromandel) 15 (369) 10 20 90 15 (360) catchments" upland Tapu (Coromandel) N/A NA N/A N/A 10 20 90 14 (150) Te Kowhai (inc. some minor streams on Waipa R) N/A NA N/A N/A 30 0 70 4 (36/37) Te Pahu (Pirongia) N/A NA N/A N/A 0 30 100 7 (96) Topehahae (Piako R) N/A NA N/A N/A 5 25 95 5/6 (243) Torepatutahi 10 20 90 12 (233) 15 15 85 12 (263) Tutaenui 30 0 70 1/2 (367) 15 15 85 1/2 (115) Refer to MAlI other Coromandel Peninsula Waikanae - East Coast (Coromandel) 13 (365) 10 20 90 13 (366) catchments" upland Waikato R Nth Cambridge minor tributaries (exc. N/A NA N/A N/A 30 0 70 4/6/8 (108) Waikato R. main stem) I I I Page 55 Prepared forthe Environment CourtHearing CLEAN VERS IO N - 8 August 2011 -z~\ (, (;..... '; r."'.( , 2: / S2/ Upland Catchments Lowland Catchments Catchment Flows: % of 0 5 Flows: % of 0 5 Map# Map# (catchment #) (catchment Primary Secondary #) Primary II Secondary II Minimum Minimum Allocable Allocable Allocable II Allocable II Waikato River mainstem only downstream of HPS 10 90 mixing zone to the mouth. Different levels of allocation occur upstream of HPS mixing zone, as provided for 0 as provided for N/A NA N/A NlA New Map Karapiro Dam and on tributaries as specificalty by •All other by "All other I listed or accounted for in "All other catchments" in catchments" in catchments" in this Table this Table this Tabl e Waikato River mainstem only downstream of 10 90 Karapiro Dam to the HPS mixing zone Different levels of allocation occur for the reach above as provided for as provided for N/A NA N/A N/A New Map Karapiro Dam and on tributaries as specifically by "All other 0 by KAII other I listed or accounted for in KAIl other catchments" in catchments" in catchments" in this Table this Table this Table I Map 1 Waikato '"'"' 96.4 River Waikato River, Cumulative allocation at the point Catchments 1 of Karapiro Dam. Different levels of allocation This minimum and 2, Index may occur within this catchment as specifically N/A NA N/A Not mapped 3.6 0 flowis relevant Map. Maps listed or accounted for in KAII other catchments" in for the purposes 6.8.10.11.12 this Table of applying Rule 3.3.4.21 f) (227. 99. 299. 233. 263) 98.16 Waikato River.Cumulative allocation at the point of Huka Falls. This minimum flow is relevant Different levels of allocation may occur within this N/A NA N/A Not mapped 1.84 0 I 17 (396) for the purposes catchment as specifically listed or accounted for in of applying Rule "All other catchments" in this Table 3.3.4.21 f) Refer to KAII other Coromandel Peninsula Waikawau - East Coast (Coromandel) 13 (363) 20 10 80 13 (364) I catchments" upland Waikeria (Puniu R.) NlA NA N/A N/A 20 10 80 8/10 (39) Waikoha (Pirongia) N/A NA N/A N/A 20 10 80 4 (97) Page 56 Prepared for the Environm ent Court Hearing CLEAN VERSIO N - 8 August 20 11 ·.-'.,: ,'.:=,~~ ~/)\.,' '0 . --..,:":'~ ?(-. l .-' ..,:.., \'\ Catchment Flows: % of Qs Flows : % of Qs Map# Map# (catchment #) (catchm ent #) Primary Secondary Primary II Secondary II Minimum Minimum Allocable Allocable AllocableII Allocable II Waipa (Sth Otorohanga) 5 25 95 10 (67) 10 20 90 9/10 (40) Waipa R minor tributaries (exc. Waipa R. main N/A NA N/A N/A 70 4/7 (52/53169) stem) 30 0 Waitakaruru 5 25 95 3 (246) 10 20 90 3 (236) Waitoa (Piako R) N/A NA N/A N/A 5 25 95 6 (240) Waitomo(inc. some minor streams on Waipa R) 0 30 100 9 (155) 30 0 70 9 (41) Waiomu(Coromandel) N/A NA N/A N/A 5 25 95 14 (355) Refer to ~A Il other Coromandel Peninsula Wentworth (Coromandel) 15 (359) 15 15 85 15 (358) catchments"upland '"..... Whakapipi 30 0 70 1/2 (368) 15 15 85 112 (117) Refer to "All other Coromandel Peninsula 14 (279) 5 25 95 14 (353) Whangamaroro (Coromandel) catchments" upland Wharekawa (Coromandel) 10 20 90 15 (283) 20 10 80 15 (357) Refer to ~A1 1 other Coromandel Peninsula Whareroa (Coromandel) 13 (361) 10 20 90 13 (362) catchments" upland I I I I I Whenuakite N/A NA I N/A I N/A I 0 I 30 I 193 I 16 (280) 1 Aug to 30 Nov Whenuakite 1 Dec to 31 July I N/A I NA I N/A I N/A I 0 I 30 I 120 I 16 (260) (lOam to Midnight) Whenuakite 1 Dec to 31 July I N/A I NA I N/A I N/A I 0 I 30 I 193 I 16 (280) (Midnight to 10am) , , Pag e 57 Prepared for the Environment Cou rt Hearing CL EA N VERSIO N - 8 A ug ust 2 0 11 ...• ,,~ :-,-'. ,,:_, ' '-' -_: .' - --' ~~\ , .. ~:;- \~\ /2 .- ' - ;:\ ,:3 ~ Upland Catchments Lowland Catchments Catchment Flows: % of Qs Flows: % of Qs Map # Map # (catchment #) . Primary Secondary (catchment #) Primary II Secondary II Minimum Minimum Allocable Allocable Allocable II Allocable II All otherCoromandel Peninsula catchments (refer I 25 NIA 10 NIA to advisory notes) 5 I I 95 I I I 20 I 90 I All other catchments (excluding Coromandel Peninsula) I 5 I 25 I 95 I Not mapped I 10 I 20 I 90 I Not mapped (Refer to advisory notes) Advis ory Notes: •For the default catchments listed in Table 3-5 as "all other catchments (excluding Coromandel Peninsula)" the division between upland and lowland catchments is defined by the mean flow of the stream regardless of catchment location. An upland stream is defined as having a mean flow of less than 5 cubic metres per 3 3,s) '0 second (m ,s). Conversely a lowland stream is defined as having a mean flow of more than 5 cubic metres per second (m . 00 • Coromandel Peninsula covers all catchments north of the Waihou and Ohinemuri catchments. The 20 m amsl elevation contour def ines the division between lowland and upland reaches for the main stem channel. • The default minimum flows presented for the lowland Coromandel catchme nts do not protect the ecosystem against issues relating to dissolved oxygen. Investigations indicated that streams with more than 2 km of stream length from the 20 m amsl elevation contour to the coastal marine have an intermediate to high likelihood of oxygen being a critical issue for detemnining environmental flow requirements. • The default minimum flows presented for the Coromandel catchments may not protect the transitional zone of intemnediate gradient between upland and lowland areas. These zones can have high values for fish and invertebrates as they provide less harsh hydrological conditions, and stony streams dominated by run-riffle habitats that are favoured by many fish and invertebrate species. •As indicated by Policy 1B, any utilisation of the secondary allocable flow in all tributary streams of the Waikato River above Karapiro (including those flowing into Lake Taupo) is contingent upon the take also not exceeding the primary allocable flow at Karapiro, which is 3.6% of the 0 5 flow. • Infomnation on the level of allocation from surface water bodies as listed in Table 3-5 can be found on Waikato Regional Council's website (water allocation calculator). Page 58 Prepared for the Environment CourtHearing CLEAN VERSION - 8 August 2011 199 Table 3-6: Sustainable Yields from Aquifers •Refer to water allocation maps 'Management Level- Assessed Aquifers', as directed by the relevant map and catchment numbers in Table 3-6. • In Table 3-6 where N/A appears in the column relating to Sustainable Yield, the necessary evaluation of sustainable yield has yet to be undertaken. When a Sustainable Yield is set it supersedes the Management Level. • The determination of Sustainable Yields may result in the inclusion of more refined information. This may include deiineation of aquifers laterally and with depth, and improved mapping of aquifer extents. Management Level Sustainable Yield Aquifer Aquifer Map # m' (x1000)per year m' (.1000) per day Cooks Beach 450 N/A 2 Hahei 75 N/A 2 Kuaotunu Wes t 80 N/A 1 Matarangi 1400 N/A 1 Opouter e 650 N/A 3 Pauanui 900 N/A 3 Whangamala • Moana Point 400 N/A 4 Whangamata 1200 N/A 4 Whangapoua 180 N/A 1 Whiritoa 350 N/A 4 Hamilton basin - North 105200 N/A 8 Hamilton basin - South 42000 N/A 9 Hamilton basin- West 37500 N/A 9 Northern Hauraki 165000 N/A 6 Southern Hauraki 335000 N/A 10 Pukekawa 20000 N/A 5 Pukekohe 12000 N/A 5 Waiuku • Discharge zone 9000 N/A 5 Waiuku - Recharge zone 5500 N/A 5 Reporoa Basin -East of 39000 N/A 13 Waikato River .~ ~o ro a Basin · Torepatutahi 5000 N/A 13 Or- /,<;" recharge zone '<, Page 59 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 200 Management Level Sustainable Yield Aquifer AquiferMap # m' (.1000) peryear m3 (x1000) per day Reporoa Basin - Torepatutahi 9000 NIA 13 discharge zone Reporoa Basin - West of 16500 NIA 13 Waikato river Putaruru 9000 NIA 12 TokoroalKinleith 25000 NIA 12 Taupo Township 1100 NIA 14 Waihi Basin shallow aquifer 4800 NIA 7 J (refer to advisory note) Waihi Basin deep aquifer 1200 NIA 7 (refer to advisory note) Waipa 320000 NIA 11 Advisory Notes: • Information on the level of allocation from the aquifers as listed in Table 3-6 Sustainable Yields from Aquifers can be found on Wai kato Regional Council's website (water allocation calculator). • For the Waihi Basin, the contact between the upper and lower aquifers is commonly marked by the transition from gravel boulder beds or dacite to several metres of iron-stained, clay rich weathered andesite rock. This thickness varies from 0.5 to 30 metres. The lower aquifer rocks can be distinguished from upper aquifer by the presence of fine-grained pyrite throughout the rock mass. , , ' Page 60 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August2011 201 3.4 Efficient Use of Water Background and Ex planation Historically, water resources in the Waikato Region have not generally been used efficiently. This can largely be attributed to water being perceived as a free public resource, plentiful in supply and generally available to anyone wishing to use it. Waikato Regional Council considers the promotion of water use efficiency to be an important resource management issue. This means ensuring when water is in high demand its use is maximised (i.e. wastage is minimised) and the adverse effects of that use are minimised. Decisions by regional councils regarding water takes are becoming increasingly focused on promoting the efficient use of water, that is, ensuring that when water is allocated it is for a justifiable purpose and the quantity taken represents a reasonable allocation for the proposed use. Section 14 of the RMA regulates the take, use, damm ing and diversion of water. These activities are not permitted unless expressly allowed by a rule in a regional plan (or in any I relevant proposed regional plan) or a resource consent. The only uses of water that are allowed by the RMA are: a) an individual's reasonable domestic needs (s1 4.3(b)(i» b) the reasonable needs of an individual's animals for drinking water (s14.3(b)(ii)) and c) fire fighting purposes. The uses stated in parts a) and b) are allowed, provided the use does not, or is not likely to, have an adverse effect on the environment. Regional councils can also make provisions to facilitate the transfer of water take permits (or interest in water take permits) from site to site (s136 of the RMA). If no such provision is made in the Plan, then permit transfers are to be considered by Council on a case-by-case basis through the process set out in s136 of the RMA.In water-short catchments, or where the water resources are almost fUlly allocated, permit transfers could be an important mechanism for achieving efficient water use. The policies and rules in this chapter do not relate to the allocation and management of Geothermal Water unless explicitly stated otherwise. The allocation and management of geothermal energy and geothermal water is addressed in Module 7 - Geothermal. The provisions in Chapter 3.4 do not apply to the use of water associated with a dam or diversion where the water passes through or over the dam or diversion in the river channel. Such takes are exclusively covered by the policies and rules in Chapter 3.6. 3.4.1 Issue Refer to Issues 3.1.1 & 3.3.1 -\.1\1. ()r!,~ .€! use of water for poorly p la~n e d or ~oo r l y managed crop and pasture irrigation can result fi..)-' - In Increased discharges of nutrients to either surface water or groundwater. ''( " -I' \ "I (\;(';! ".I·· ,,",;.;'r-~~" ':-l------;P=ag::-::-e=61 " \ I' :1.' ,II Prepared for the Environment Court Hearing , ,/. vi,; I CLEANVERSION - 8 August 2011 './( I~ '1' .\ \\\~'rl ',IJllt\ .'~ 202 explanation Irrigating farm land in a poorly planned or poorly managed manner can result in nutrients from the land leaching into the groundwater or surface water, thus causing a further degradation of water quality. 3.4.2 Objective Refer to Objectives 3.1.2 & 3.3.2 3.4.3 Policies Poli cy 1:Manage the Use of Wa ter (ImplementsObjective 3.1.2 a), b), 0) and p) and Objective 3.2.2 aJ) Manage, through permitted activities and resource consents, the use of water, any J associated discharge of water onto or into land in a manner that ensures that: aa) The overarching purpose of the Vision and Strategy to restore and protect the health and wellbeing of the Waikato River for present and future generations is given effect to a) The further degradation of water quality is avoided b) Any adverse changes to natural flow regimes are avoided as far as practicable and otherwise mitigated c) Adverse effects on the relationship tangata whenua as Kaitiaki have with water are avoided, remedied or mitigated e) Adverse effects on in-stream ecological values are avoided, remedied or mitigated f) Adverse effects on wetlands that are habitats for significant indigenous vegetation and significant habitats for indigenous fauna are avoided, remedied, or mitigated g) Adverse effects on groundwater quality are avoided as far as practicable and otherwise mitigated h) Does not result in an adverse effect relating to the objectives in Chapter 5.2 of this plan i) The benefits to be derived from the efficient take and use of water for reasonably foreseeable future uses, and in particular for domestic or municipal supply, are maintained and/ or enhanced. Policy 2: Efficient Use of Water (Implements Objective 3.4.7 of the RPS, Objective 3.1.2a), f) and gJ) Ensure the efficient use of water by: a) Requiring the amount of water taken and used to be reasonable and justifiable with regard to the intended use and where appropriate: i) For domestic or municipal supplies is justified by way of a water management plan. ii) For industry, implementation of industry good practice, in respect of the efficient use of water for that particular activity/industry. iii) For irrigation, the following measures in relation to the maximum daily rate of abstraction, the irrigation return period and the seasonal or annual volume of the proposed take: • A maximum seasonal allocation reliability of up to 9 out of 10 years • A minimum application efficiency of 80 percent (even if the actual system being used has a lower application efficiency), or on the basis of a higher Page 62 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 203 efficiency where an application is for an irrigation system with a higher efficiency b) Requiring consideration of water conservation and minimisation methods, such as leak detection and loss monitoring as integral parts of water take and use consent applications to ensure no significant wastage of water resources c) Raising awareness amongst the regional community about water efficiency issues and techniques d) Facilitating the transfer of water take permits, provided the transfer does not result in effects that are inconsistent with the purpose of the relevant Water Management Class, as identified by the policies in section 3.2.3 and the water classes in section 3.2.4 e) Promoting investigat ion of alternatives to the water take, alternative water sources, water harvesting (excluding the Waikato River catchment above Karapiro Dam) and seasonal storage, as an integral part of water take and use consent applications. f) Promoting shared use and management of water throug h water user groups or other arrangements where there is increased efficiency in the use and allocation of water. Advisory Note: • When considering the efficiency of any proposed take and/or use of water Waikato Regional Council will refer to the most up to date guidelines and/or industry codes of practice relevant to that use. • The Waikato Reg ional Council recogn ises that the Territorial Local Authorities will need to balance efficiency gains with financial impacts and will work with Territorial Local Authorities to ensure this is considered through the LTCCP processe s. Policy 3: Transfer of Water Permits (Implements Objective 3.1.2a), g) and p) and Objective 3.3.2) Provide for the temporary or permanent transfer of the whole or part of a surface water or groundwater take permit through rules, provided the transfer: aa) Results in the Vision and Strategy promulgated under the Waikato River Co-management framework being given effect to a) Does not result in effects that are inconsistent with the purpose of the relevant Water Management Class, as identified by the policies in section 3.2.3 and the water classes in section 3.2.4 b) Does not result in adverse effects on tangata whenu a uses and values c) Does not increase the net take and surface water allocation over the prescribed level in the original permit d) Does not result in a groundwater allocation over the prescribed Sustainable Yield in Table 3-6 e) Is consistent with the objectives and policies of this Plan f) Does not cause adverse effects on springs or other surface water bodies g) In the case of temporary or partial transfers, is between parties who have metering and reporting at the appropriate recording and reporting level as defined in Table 3-4 h) In the case of groundwater, the location, nature and scale of the take are unchanged i) Does not result in adverse effects on existing users . j) Does not involve the transfer of takes for domestic or municipal supply from the main ~ .: <:,'C.I\i. oi--''l:,-stem of the Waikato River downstream of the Huntly Power Station to upstream of the ~ p,~, ~ '''' : ,)""r Sill"'o ..'" r-; Prepared for the Environment Court Hearing I 3.4.4 Implementation Methods - Transfer of Water Take Permits 3.4.4.1 Environmental Education (Method to Implement Section 3.4.3 Polley 3) Waikato Regional Council will, through environmental education programmes, raise the awareness of the community about transferring water permits by undertaking the following: 1. Providing information about the process for the transfer of permits between resource users 2. Providing educational material promoting the efficient use and conservation of water to minimise waste discharges 3. Providing information on the positive benefits to be derived from the efficient use of water. I 3.4.4.1 A Consents for Transfer of Water (Method to implement Section 3.4.3 Policy 3) To improve efficient use and efficient allocation of water applicants for the take and use of water may consider applying for: 1. A single take consent that may cover multiple locations. This may be used either by an individual or a group of individuals; such as provided for by Section 3.3.3 Policy 17 Water User Groups. 2. A transfer consent so that water can be taken at multiple locations. 3. A single use consent where more than one site is being utilised by the consent holder, where a use consent is required. 4. For the avoidance of doubt, when separate applications are made for a either a take consent, use consent, or transfer consent, the separate applications retain their relevant rule provisions for each consent, rather than a bundling of the applications. 3.4.4.2 Permitted Activity Rule· Transfer of Surface Water and Groundwater Take Permits (Implements Section 3.4.3 Polley 3) lIn accordance with s136(2)(b)(i) of the RMA, the temporary or permanent transfer of the jwhole or part of a permit holder's interest in a water permit for the taking of surface and groundwater to: (1. Any person or occupier of the site in respect of which the permit is granted, or r To another person on another site (for surface water take permits only) is a permitted activity subject to the following conditions: la) The permit does not pertain to the transfer of geothermal water, and I b) The transfer is within the same catchment to any point downstream (excluding downstream tributaries) of the location to which the permit applies or is within the same hydro electricity reservoir on the Waikato River; and c) The Water Management Class (refer Section 3.2.4) as identified in the Waterl Management Class Maps, is the same at the new site as that to which the water permit pertains, or the class at the new site specifies the same or less restrictive intake screening and intake velocity requirements than the site to which the permit applies;' ..... - . and ,.. e,I{ 1\1. I. > /};' • '/1,.<- Page 64 Prepared for the Environment Cou rt Hearing ('r/l r CLEAN VERSION - 8 August 2011 .\ \ .\ ' 205 'd) written notice signed by the transferor and transferee is given to the Waikato Regional Council five working days prior to the transfer. specifying: i) full names and addresses of transferor and transferee ii) if the whole permit is not being transferred, the portion of the water permit being transferred iii) proposed daily volume (cubic metres per day) and rate (Iitres per second of take at both sites I iv) the number of the permit to be transferred and the number of the use permit held ~~~~~ I tV) the location of new take and use site (shown on a map or identified by NZMS 260 I map reference) vi) the date of transfer vii) description of purpose for which water is to be used viii) whether the transfer is permanent or temporary and, if temporary. the date on which the transfer ceases. e) The permit shall retain the same conditions (excluding location) and priority for water shortage restrictions, and, excluding screening and intake requirements as specified in J part c) above. f) In the case of partial or temporary transfers of more than five days per annum, all parties to the transfer shall have metering and reporting at the appropriate recording and reporting level as defined in Table 3-4. g) The water taken under the permit (or the net take for surface takes) shall not exceed I the volume allocated by the original permit. I h) The permit shall be transferred only to parties who hold a current consent for the use of I water or to parties whose intended use of the water is permitted by a rule in the plan. Il i) In the case of partial or temporary transfers of more than five days per annum the l transferor must have given full effect to the purpose of the permit prior to any transfer taking place. n This rule shall not apply to the transfer of a groundwater take permit to another location within the same aquifer or to another aquifer. k) This rule does not apply to the transfer of domestic or municipal supply take permits , except where the transfer is to another person or organisation that will be using the I water for domestic or municipal supply. Advisory Notes • Pursuant to s136(3) of the RMA. the transfer has no effect until written notice of the transfer is received by Waikato Regional Council. • Section 136(5) of the RMA provides that when notification of the transfer has occurred, the permit or that part of the permit transferred shall be deemed to be cancelled, and the permit or part transferred shall be deemed to be a new permit subject to the same conditions as the original permit. 3.4.4.3 Restricted Discretionary Activity - Transfer of Surface and Groundwater Take Permits (Implements Section 3.4.3 Policy 3) 1. Any transfer of a water permit that is unable to comply with Rule 3.4.4.2: or ,2. The temporary or permanent transfer of the whole or part of a permit holder's interest in a water permit for the taking of groundwater -~ OJ;il})ia, rest ricted discretionary activity (requiring resource consent) subject to the following - standards and terms: i Page 65 Prepared for the Environment Court Hearing CLEANVERSION - 8 August 2011 206 'a) The Water Management Class (refer Section 3.2.4) as identified in the Water Management Class Maps, is the same at the new site as that to which the water permit pertains, or the class at the new site specifies the same or less restrictive intake screening and intake velocity requirements than the site to which the permit applies. b) The permit shall retain the same conditions (excluding location) and priority for water shortage restrictions, and, excluding screening and intake requirements as specified in part a) above. ba) The transfer is within the same catchment. In the case of temporary or partial transfers, all parties to the transfer shall have metering and reporting at the appropriate recording and reporting level as defined in Table 3-4. The permit does not pertain to the taking of geothermal water. The transfer is to another site within the same aquifer. The transfer is to a location at which the aquifer has the same or greater transmission -' and storage characteristics. The transfer shall not adversely affect any lawfully established efficient groundwaterl abstraction, which existed prior to transfer of the take. The water taken under the permit (or the net take for surface takes) shall not exceed' the volume allocated by the original permit. Any transfer on the main stem of the Waikato River upstream of Karapiro Dam is within the same hydro electricity reservoir or is downstream. This rule does not apply to the transfer of domestic or municipal supply take permits, except where the transfer is to another person or organisation that will be using the l water for domestic or municipal supply. Notwithstanding that, this rule does not applYj to the transfer of takes for domestic or municipal supply from the main stem of the l Waikato River downstream of the Huntly Power Station to upstream of the Huntly Power Station. Iw aikato Regional Council restricts its discretion over the following matters: i) The timing of abstraction, the (net) volume of water allocated and the rate at which water is abstracted, including daily and seasonal requirements and duration and timing of peak daily take rate, having regard to the efficiency of the water allocated and having regard to Chapter 3.3 Policy 8 and Chapter 3.4 Policy 1. ii) The proposed use of the water. I ,iii) Volume of water allocated for crop irrigation, having regard to crop water requirements and efficiency of use and Chapter 3.4 Policy 2. lv) The level(s) of priority to apply during water shortages having regard to Chapter 3.3 Policy 14 and Standard 3.3.4.21 . v) Abstraction restrictions during water shortage condition (including suspension of. abstraction and rostering) having regard to Policies 13, 14 and Standard 3.3.4.21 of Chapter 3.3. Vi) The duration of the resource consent having regard to Policy 11 of Chapter 3.3 and to future demands for water for domestic or municipal supply from the surface water body to which the application applies. I vii) Measures to avoid, remedy, or mitigate the adverse effects of water takes on the purpose of the Water Management Classes identified in Section 3.2.4. I '~\sr-M , 'Tii ) ~ J he carrying out of measurements, samples, analyses, inspections, and reporting ( ~ ~ ",(.c.; I. I eving regard to Chapter 3.3 Policy 12. I ( 'f I' Ic· Page 66 , 1 I .' IJ. -. Prepared for the Environment Court Hearing , ' ,I. .. CLEAN VERSION - 8 August 2011 , ,~ I,', ,, 'I,V) ;~-_/,\ l I'CUIi,; i \.; 207 h ) Measures to satisfy the intake screening requirements for the protection of aquatic fauna. x) Measures to avoid, remedy, or mitigate any adverse effects associated with the intake structure. xi) Effects on any waahi tapu or other taonga from the activity. Xi i) Effects on the relationship of tangata whenua and their culture and traditions with the site and any waahi tapu or other taonga affected by the activity. Xiii) Effects on the ability of tangata whenua to exercise their kaitiaki role in respect of any, waahi tapu or other taonga affected by the activity. xiv) Effects on existing users, including generation from renewable energy sources. Advisory Notes: • Information requirements to enable the assessment of any application underthis rule are as set out in Section 8.1.2.3 of this Plan. J 3.4.4.3A Non-Complying Activity Rule -Trans fer of Surface and Groundwater Take Permits (Implements Section 3.4.3 Policy 3) 'Any transfer of a water take permit that is not able to comply with Rule 3.4.4.3 is a' 'non-cornplylnq activity (requiring resource consent). I Advisory Notes: • Information requirements to enable the assessment of any application under this rule are as set out in Section 8.1.2.3 of this Plan . In addition, assessment shall aiso take into account the matters identified in Policies 1-96 of Section 3.2.3. 3.4.5 Implementation Methods - The Use of Water 3.4.5.1 En vi ro nm enta l Educatio n (Method to implement Section 3.4.3 Policy 1 and 2) Waikato Regional Council will, through environmenta l educat ion programmes , raise the awareness of the community about efficient water use practices by undertaking the following: 1. Providing information regarding the adverse environmental and pasture production effects associated with inefficient irrigation of pastures 2. Providing information regarding the efficient use and conservation of water by householders and resource users 3. Providing information about the use of transferable permits between resource users 4. Providing educational material promoting the efficient use and conservation of water by industries to minimise waste discharges 5. Providing information on the positive benefits to be derived from the efficient use of water 6. Providing climate information measured by the Waikato Regional Council in order to improve the information base for positive irrigation management 7. Providing information on best irrigation practices to improve the efficient use of water. Page 67 Prepared for the Environment Cou rt Hearing CLEAN VERSI ON - 8 August 2011 208 3.4.5.2 Good Practice (Method to implement Section 3.4.3 Policy 2) Waikato Regional Council will, in conjunction with organisations , industries and individuals, provide guidance to develop, implement and undertake efficient water use practices, including: 1. Developing guidelines for water use efficiency 2. Promoting the reuse of water where appropriate 3. Promoting water efficient technology 4. Promoting 'water efficient' crops. 3.4.5.3 Crop and Pasture Monitoring Programme (Method to implement Section 3.4.3 Policy 2) J Waikato Regional Council will undertake a crop and pasture irrigation monitoring programme in conjunction with commercial vegetable growers, farmers and associated industries to develop and test a set of guidelines to ensure sound scientific justification for consideration in relation to consent applications. 3.4.5.4 Permitted Activity Rule - Use of Water (Implements Section 3.4.3Polley 1) ,Except as restricted by Rules 3.4.5.6, 3.4.5.7 and 3.4.5.8 the use (as restricted by s14 of the' .RMA) of water is a permitted activity subject to the following conditions : 'a) The use of water shall comply with the water management class standards in section 3.2.4 of this Plan. ,Excepti on I This rule does not apply to: • The use of geothermal energy and water. Such uses are managed by the policies and rules in Module 7 - Geothermal The use of water for a dam or diversion . Such uses are managed by the policies and rules in Chapter 3.6. J Advisory Note: • Any subsequent discharge of water or contaminants arising from the use of water authorised by this rule may require separate resource consent under the rules in Chapters 3.5 and 5.2 of this Plan. 3.4.5.5 Restricted Discretionary Activity Rule - Use of Water (Implements Section 3.4.3 Policy 1) The use of water (as restricted by s14 of the RMA), that cannot comply with' Rule 3.4.5.4 is a restricted discretionary activity (requiring resource consent). IWaikato Regional Council restricts its discretion over the following matters: i) Measures to avoid, remedy, or mitigate the adverse effects on water quality allocated _ -. having regard to Chapter 3.3 Policies 8 and 9 and Chapter 3.4 Policies 1 and 2. I '0X}t ~ L 1.,11)/-$.... Measures to avoid, remedy of mitigate any adverse effects on neighbouring properties a located having regard to Chapter 3.3 Policy 8 and Chapter 3.4 Policies 1 and 2. l rt J ," Page 68 ~:"( \. 'I \ )(I Prepared for the Environment Court Hearing CLEAN VERSI ON- 8 August 2011 209 iii) The method , rate, volume and timing of application of the water allocated having regard to Chapter 3.3 Policy 8 and Chapter 3.4 Policies 1 and 2. 1 Effects on any waahi tapu or other taonga from the activity. Effects on the relationship of tangata whenua and their culture and traditions with the site and any waahi tapu or other taonga affected by the activity. Effects on the ability of tangata whenua to exercise their kaitiaki role in respect of any waahi tapu or other taonga affected by the activity. vii) Measures to avoid the contamination of land as a result of the use of water having regard to Chapter 3.4 Policies 1 and 2. 3.4.5.6 Permitted Activity Rule - Use of Water for Crop and Pasture Irrigation (Implements Section 3.4.3 Polley 1) 'Except as restricted by Rules 3.4.5.7 and 3.4.5.8 the use (as restricted by s14 of the RMA)i J ;of water and any associated discharge of water onto or into land for irrigated crop and ,irrigated pasture purposes is a permitted activity subject to the following conditions: raj The water shall not be applied in a way or at a rate that causes the water holding capa city of the soil within the plant root zone (rhizosphere) to be exceeded. b) The rate of irrigation shall not exceed the infiltration rate of soil and any run-off or, ponding of irrigated water shall be minimised. c) Seasonal and monthly irrigation water balances shall be used to demonstrate that thel amount of irrigation water applied does not exceed the irrigation demand by more than' 20%. The irrigation water balances must be used to manag e water irrigation and must' be made available to the Waikato Regional Council on request. The irrigation water balances shall specify: ,i) Area of land irrigated ,ii) Area of land irrigated iii) Crop(s) type and crop rotation dates iv) Volume of water irrigated :V) Start and end date of irrigation season ,vi) Seasona l irrigation demand. 'd) The activity shall not result in any direct application of contaminants to any water body. Ie) Any discharge of contaminants into air arising from the activity shall comply with the permitted activity condition in Section 6.1.8 except where the matters addressed in Section 6.1.8 are already addressed by conditions on resource consents for the site. If) The activity shall not result in the contamination of land. Advisory Note • Rule 3.4.5.6 condition d) is intended to apply to the application of contaminants that are discharged into water body without contact with the surrounding land. The condition does not apply to any non-point source discharge into a water body as a result of the activity. 3.4.5.7 Controlled Activity Rule· Use o f Water for Crop and Pasture Irrigation (Implements Section 3.4.3 Policy 1) 1. Any use of water that cannot comply with Rule 3.4.5.6; and 2 . The use of water, and any assoc iated discharge of water onto or into land for irrigated crop and irrigated pasture purposes in the catchme nt of the Waika to River from the' Karapiro Dam to the Lake Taupo Control gates or in the catchments of Lakes Taharoaj Maratoto, Serpentine (North South and East), Rotomanuka, Mangahia, Rotongaro,1 Okowhao, Whangape, Waikare, Kuratau, Mangakaware, Ohinewa i, Waahi, and Page 69 Prepared for the Environment Court Hearing CLEANVERSION - 8August2011 210 Rotokawau, and Whangamarino wetland, Kopuata i peat dome, wetlands listed in Section 3.7.7 of the Waikato Regional Plan , and the Opuatia wetland is a controlled activity (requiring resource consent) subject to the follow ing standards and terms: j ·a) Seasonal and monthly irrigation water balances shall be used to demonstrate that the amount of irrigation water applied does not exceed the irrigation demand by more thanl 20%. The irrigation water balances must be used to manage water irrigation and must be made available to the Waikato Regional Council on request. The irrigation water balances shall specify: i) Area of land irrigated Iii) Crop(s) type and crop rotation dates iii) Volume of water irrigated liV) Start and end date of irrigation season v) Seasonal irrigation deman d. J I Waikato Regional Council reserves control over: i) The quality and contents of a seasonal and monthly irrigation water balances prepared under condition a) of this rule having regard to Chapter 3.4 Policies 1 and 2. ii) Measures to avoid , remedy, or mitigate the adverse effects on water quality having regard to Chapter 3.3 Policies 8 and 9 and Chapter 3.4 Policies 1 and 2. I Measures to avoid, remedy or mitigate any adverse effects on other properties having liii) regard to Chapter 3.3 Policies 8 and 9 and Chapter 3.4 Policies 1 and 2. Iv) The method, rate, volume and timing of application of the water having regard to Chapter 3.3 Policies 8 and 9 and Chapter 3.4 Policies 1 and 2. v) Effects on any waahi tapu or other taonga from the activity. Vi)Effects on the relationship of tangata whenua and their culture and traditions with the site and any waahi tapu or other taonga affecte d by the activity. J ItVii) Effects on the ability of tangata whenua to exercise their kaitiaki role in respect of any I waahi tapu or other taonga affected by the activity. IViii) Measures to avoid the contamination of land as a result of the use of water having ~ regard to ChaRter 3.4 Policies 1 and 2. I Advisory Notes: •Users of fertilisers and agrichemicals are referred to Rule 3.9.4.9 and Chapter 6.2 of this Plan. In respect of agrichemicals and fertiliser use, it is recommended that in order to minimise leaching of nutrients and pesticides, all practicable steps should be taken to comply with the New Zealand Fertiliser Manufacturers' Research Association Code of Practice for Fertiliser Use (1998) (in the case of fertilisers) and NZS 8409:2004 Management of Agrichemicals (in the case of agrichemicals). • The use of soil moisture monitoring equipment can maximise efficient water use by reducing pumping times and water take volumes. •Information requirements to enable the assessment of any application under this rule are as set out in Section 8.1 .2.4 of this Plan. SV.L UF if ~~" .:-'j" ~!:-lJ ~),), ' ",,:'\\----:-\ -'-' -'-) ~------____;; =~ ~ Page 70 1.- \ 1\ I\ ) ,i Prepared forthe Environment Court Hearing / v CLEAN VERSI ON - 8 August 2011 \ 211 3.4.5.8 Discretionary Activity Rule - Use of Water for Crop and Pasture Irrigation (Implements Section 3.4.3Polley 1) The use of water, and any associated discharge of water onto or into land for irrigated crop .and irrigated pasture purposes in the catchment of the Waikato River from the Karapiro Daml ,to the Lake Taupo Control gates or in the catchments of Lakes Taharoa , Maratoto, ,Serpentine (North South and East), Rotoman uka, Mangahia, Rotongaro , Okowhao, jWhangape, Waikare, Kuratau, Mangakaware, Ohinewai, Waah i, and Rotokawau, and jWhangamarino wetland , Kopuatai peat dome, wetlands listed in Section 3.7.7 of the Waikato' IRegional Plan, and the Opuatia wetland that cannot comply with Rule 3.4.6.7 is a ,discretionary activity (requiring resource consent). I Adviso ry Notes: •Information requirements to enable the assessment of any application under this rule are as set out in Section 8.1.2.4 of this Plan. J Page 71 Prepared for the EnvironmentCourt Hearing CLEAN VERSION- 8 August 2011 212 Glossary of New Terms Agriculture: For the purposes of Chapters 3.3 and 3.4 means the raising of crops and livestock and includes pastoral farming, arable farming, and horticulture, Primary Alloc able fl ow: Is the high reliability flow allocation calculated as the difference in flow between the minimum flow and the Q 5 as specified In Table 3-5. Secon dary allocable flow: Is a iower level reliability allocation that is calculated as the difference between 30 percent of the one in five year 7-day low flow Q 5 and the primary allocable flow, except as otherwise specified in Table 3-5. Authorised water take: Includes all takes of water provided for by either a resource consent or meet the requirements of s124 of the RMA or a permitted activity rule in this plan or as permitted by s14(3)(b) of the RMA. Climate change : Means a change of climate that is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and that is in addition to natural climate variability observed over comparable time periods. Co-Management: Requires a commitment to working in partnership, and in a spirit of collaboration. The successful implementation of co-management, and of the arrangements proposed under the co-management framework, require a new approach to management of the Waikato River. Accordingly, co-management includes; 1. A collaborative approach that reflects partnership between the Waikato Regional Council and Waikato River Iwi; 2. The highest level of good faith engagement; 3. Consensus decision-making as a general rule; while having regard to the statutory frameworks and the mana whakahaere of all Waikato River Iwi, including Raukawa, Waikato Tainui, Ngati Maniapoto, Ngati Tuwharetoa and Te Arawa River Iwi. Domestic or municipal suppl y: A reticulated supply publicly or privately owned where the net take is; 1. For the primary purpose of human drinking, or sanitation or household needs wherever they arise; or 2. For the purpose of enabling local authorities to meet their general responsibilities (wherever they arise) under the Local Government Act 2002, the Health Act 1956 and relevant legislation, including supply for the purposes of industrial and agricultural use. Efficient All ocati on: Includes economic, technical and dynamic efficiency. . " "_', Efficient Use: Where the volume of water taken is within the actual requirements for its " ;,. ,,1'1\1 Or intended use. /.. ,\ - I<~<" 1(' ..~ "~I' ~ Page 72 "I 'I.' I() Prepared for the Environment Court Hearing . \ ", " ,, ./ /;<;' CLEAN VERSION - 8 August 2011 'I,', _ /. -), ,I "//1 COllil'\ ~ - .. .-' 213 HPS mixing zone: A point five kilometres downstream of the cooling water outfall of the Huntly Power Station. Maatauranga Maori : Maori customary knowledge, traditional knowledge or intergenerational knowledge. Minimum flow: Is the minimum flow(s) set in accordance with Policy 1A of Chapter 3.3 of this plan to provide for a given set of water body values which are established by having regard to Policy 1 of Chapter 3.3. One function of a minimum flow is to determine when consent holders have to reduce, and ultimately stop, abstracting. Groundwater: The subsurface water within the zone of saturation where the pore spaces are filled with water and the pressure of water is equal to or greater than atmospheric pressure. For the purposes of this plan groundwater excludes water flowing in karst systems I .r which are considered to be surface water. Industry: For the purposes of Chapters 3.3 and 3.4, means the extraction and processing of raw materials; the manufacture of goods in factories and processing plants; bulk storage; warehousing; service and repair activities. Median flow: Is the flow which is equalled or exceeded 50% of the time derived from a suitable long term flow record taking into account changes in climate or water management. Net Take: The amount of surface water that is no longer available for others to take as a result of an activity for which the water is taken. Where an associated discharge is intended to be included in the computation of a net take then: a) The consent to take water must be conditional upon the subsequent return of the minimum amount of water that is relied on to establish the net take; or ab) For existing consents where there is no requirement for the subsequent return, the quantity of the net take will be assessed by the Waikato Regional Council; b) The associated discharge must: • Be of a quality sufficient to either meet the permitted activity provisions of this plan for discharges, or be authorised by way of resource consent; and • Be returned to the same water body in the same sub-catchment as near as practicable to the point of abstraction or upstream of the point where the take is being assessed; and • Occur at the same time as or within a timeframe as near as practicable to when the take is operating. c) Depending on the location of the discharge in relation to the location of the take, a surface water take may be assessed as having more than one net take value. Where there is no increase in the nature and scale of a take from that authorised at 15 October 2008 any replacement consent for that take will be assessed, for the purpose of determining the net take, using the same net rate of take that was determined by the Waikato ._. - "', Regional Council when the consent was granted and as recorded in the Waikato Regional SI'!,.L l;yl ouncil consent database. 4 v 9r Ii Page 73 , ~ 1-;, t' • Prepared for the EnvironmentCourt Hearing ~':! ,"i . I CLEAN VERSION - 8 August 2011 , ( i 214 Non-qualifying s14(3)(b) take: A take which might otherwise be allowed under s14(3)(b) for an individual's reasonable domestic needs or the reasonable needs of an individual's animals for drinking water, but has, or is likely to have, an adverse effect on the environment. One In Five Year 7-day Low Flow (a.): The stream flow at any point that has a 20 percent chance of occurring in any one year (or a likelihood of occurrence of once in every five years, also termed a '5-year return period'). The Q. is calculated from the lowest seven consecutive days of flow in each year. Perishable food processing: For the purposes of Chapters 3.3 and 3.4 means the processing of any food (including dairy products, meat, fruit and vegetables) that will decay or spoil rapidly if not washed, refrigerated or preserved in some manner. Property: For the purposes of Chapter 3.3 and 3.4 means one or more allotments contained in single certificate of title, and also includes all adjacent land that is in the same ownership but contained in separate certificates of title. Renewable energy: Means energy produced from solar, wind, hydro, geothermal, biomass, tidal, wave, and ocean current sources. River Iwi Co-management Leg islation: Ngati Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010 and Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 and any subsequent co-management legislation incorporating the Vision and Strategy for the Waikato River Site: One or more allotments contained in a single certificate of title. Supplementary Take: A take that is authorised by Rules 3.3.4.9 and 3.3.4.10. Sustainable Yield: The amount of fresh water take from an aquifer that can be maintained indefinitely without causing adverse effects on the values in that aquifer to be protected under this plan. This amount may change in the future based on investigations into the yield of the aquifer. Technical Effi ci ency: The extent to which the infrastructure involved in the taking, transport and delivery of water, and its operation, influences the amount of water required to achieve the desired outcome. Vis ion and Strategy: Is contained in the River Iwi Co-management Legislation Waikato River Co-management Framework: Comprises the governance structures and _- .. processes established by the River Iwi Co-management Legislation c. S~1\L OF ;': ~\o .. /1.(- (j ~ I II '--.2'-'. "0r'; <, r., i Prepared for the Environment Court Hearing eo" " l - ,•\ • CLEAN VERSION - 8 Augu.t 2011 \ ..c:::>. J "'/' ",/'; ~ -.. / '1'1 l h',I""'\ ,-', .. ' ~ •. j- 215 Water Harvesting: Taking water to be stored for future use in accordance with Policy 16. Water Management Plan: is the short title for a Water Conservation, Demand Management and Drought Management Plan required pursuant to Section 3.3.3 Policy 4 and Method 8.1.2.2. Water Shortage Conditions: For the purposes of this plan a catchment or aquifer is in a water shortage condition when; a) River flows (based on a seven day rolling average of river flow data) fall below the median flow (for water harvesting takes) or the minimum flow; or b) In the Waikato River upstream of the Karapiro Hydro Dam, when calculated natural flows fall below the relevant minimum flows in Table 3-5 calculated for the relevant natural inflows to Lake Taupo and the Waikato River above Karapiro Dam; or c) Investigations indicate that the matters listed in Policy 2 cannot be provided for with the continued taking of groundwater. , I t. u \ Page 75 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 216 .' 217 Consequential Amendments arising out of proposed changes to Chapters 3.3 and 3.4 Chapter 3.5 Discharges Amend Objective 3.5.2 as follows: Discharges of contaminants to water undertaken in a manner that: a) does not have adverse effects that are inconsistent with the water management objectives in Section 3.1.2 b) does not have adverse effects that are inconsistent with the discharges onto or into .,I land objectives in Section 5.2.2 c) Ensures that decisions regarding the discharge of contaminants to water do not reduce the contaminant assimilative capacity of the water body to the extent that allocable flows as provided for in Chapter 3.3 are unable to be utilised for out of stream uses. Add the following new paragraph to the Principal Reasons for Adopting the Objective as follows: Part c) and the parallel objectives in Chapters 3.3 and 3.6 ensures that when allocating water or considering discharges to water or the damming and diverting of water, both the effects on contaminant assimilative capacity and allocable flow are accounted for. Chapter 3.6 Damming and Diverting Add the following to Objective 3.6.2: g) ensures that decisions regarding the damming and diverting of water take account of the consequent loss of water quality and any associated reduction in contaminant assimilative capacity, minimum flows and allocable flows for out of stream uses as provided by Section 3.3.3 Policy 1 and Table 3·5 of Chapter 3.3. Add the following paragraph to the principal reasons for adopting the objective: Part g) and the parallel objectives in Chapters 3.3 and 3.5 ensures that when allocating water or considering discharges to water or the damming and diverting of water, both the effects on contaminant assimilative capacity and allocable flow are accounted for. Page 77 Prepared for the Environment Court Hearing CLEAN VERSION - 8 August 2011 218 Section 7.1 Clarification of the Relation ship between the Water and Geothermal Modules Amend section 7.1 b) i) by deleting referen ce to Rule 3.3.4.9 and replacing it with Rule 3.3.4.14. Proposed Amendments to Chapter 8.1 Assessment Criteria and Information Requirements • Amend 8.1 .2.1 by ad ding the italicised text as follows: 8.1.2.1 Water Takes .,I a) The location(s) of the take . b) The purpose for which water is to be taken including the proposed crop/p asture type, reflecting rotational crop requireme nts. c) Define the maximum volume of water to be taken as a minimum per day and per year. d) The rate at which water is to be taken. e) The source of water. f) Any associated discharges used to offset the cumu lative allocation effects of the tak ing of water. g) Identification of alternative water sources including, groundwater, water harvesting and water reuse and provide an asse ssment of how these may minimise adverse effects, including those on existing and foreseeable future users. h) Intake screening. i) The identity and location of other neighbouring abstractors. j) What effects this activity will have on the environment. k) The proposed method of recording water use and reporting to Wa ikato Regiona l Counc il. I) In the case of an application for the replacement of an existing resource consent: • a demonstrated continued need for the volume and rate of water appiied for based on water use records, recognising seasonal and crop rotational factors, • any enforcement action taken by Council, and • use of best industry practice. rn) In the case of an applic ation for domestic or municipal supply a water manageme nt plan prepared as detailed in method 8.1.2.2 shall be provided with all resource consent applicat ions made in accordance with Policy 4 and Rules 3.3.4.14, 3.3.4.15, 3.3.4.16, 3.3.4.18 and 3.3.4.20 . n) Details, including distribution extent, of any other properties to which water is to be supplied from this take. 0) In the case of an application for domes tic or municipal supply details shall be provided of any existing or proposed riparian fencing and planting necessary to mitigate adverse effects of the take on the water body. Details on proposed riparian fencing and planting shall be provided in the form of a Riparian Vegeta tion Management Plan having regard to Standard 3.3.4.22 8.1.2.2 Wate r Management Plans ... ,,:~ i',L'O The Water Manageme nt Plan shall establish a long term strategy for the water requirements of /. &. ~ . ! domestic or municipal suppli ers and their commu nities. It shall demonstrate that the volume of water /r'" required, including any increase over that previously authorised, has been justified and that the water (\~ J \; \ . Page 78 ) Prepared for the Environment Court Hearing ! CLEAN VERSION- 8 August2011 I. 2 19 take will be used efficienlly and effectively. To this end the water management plan shall, to an extent which is appropriate for the scale of the activity, provide the following information: 1. A description of the water supply system including system operation, distribution extent, levels of service, water use measurement, maintenance and asset management procedures. 2. A comprehensive assessment of existing demand and future demand for water with regard to an assessment of reasonable population growth within the planning horizon to meet the following: a) reasonable domestic needs; b) public heaith needs in accordance with requirements under any Act of Parliament or regulation; c) reasonable community needs (e.g. for public amenities); d) reasonable commercial, rural supply and industrial needs; e) an assessment as to how each of the assessments required by clauses a) to d) above is predicted to vary over time; .,I f) a justification for each of the assessments required by clauses a) to e) above including reference to any relevant planning instruments promulgated under the Resource Management act 1991 that provide for future growth or relevant documents promulgated under the Local Government Act 2002 such as Long Term Plans, growth strategies or spatial plans. 3. Any existing or proposed water pricing procedures and any linkages with wastewater pricing or management. 4. How water reticulation networks are planned and managed to minimise their water losses as far as practicable. 5. A description of patterns of water use practices and/or behaviour in all sectors of use (and distribution) with the objective of maximising water use efficiency and reducing water use, as far as practicable. 6. Water saving targets for the full range of demand conditions including demand saving targets for council owned facilities, domestic demand targets and demand saving targets for commercial and industrial customers. 7. Key performance indicators for each of the water saving targets. 8. Any external auditing and benchmarking procedures that have been adopted. 9. A drought management plan that includes: a) steps to be taken to reduce consumption during water shortage conditions, including those uses that will be restricted at the same time as priority SW-B users (in accordance with Policy 14 and Standard 3.3.4.21) and steps to be taken to implement those restrictions. aa) Targets for the water savings expected to be achieved via the restriction of activities identified in a) above, which shall align as closely as possible to the restrictions for SW-B users provided for in Standard 3.3.4.21. b) public and commercial user education programmes. c) steps taken to reduce consumption when demand is approaching the maximum take volume specified under the relevant resource consent. d) Enforcement procedures 10. Actions, performance measures and a timeline for implementing actions. The actions and performance measures identified will depend on the circumstances of each applicant. 11. Any consultation undertaken with key stakeholders and outcomes of such consultation. /~ .'. 12. Details of an appropriate water conservation and demand management plan review process. X. Sr.J\1. Il,...... , '\.\'< 13 J~)d en t ification of any anticipated increases in water demand over the term of the consent and ':~ .\· a b i ~ t y to stage water take volumes to more closely reflect demand requirements over time. ' ~ ~ t 1 \ C\' : j, J\ - -'--+;-'..-c -'-, ------..Pa"'g"'eC"7""9 .s}. Preparedfor the Environment Court Hearing "~'<:0 CLEAN VERSION- 8 August 2011 ...... 1'/COLl,,' 220 14. Ability to reduce the amount of water used by existing industrial and agricultural users, as a result of improvements in the efficiency of the use of water, in order to meet any increase in water demand over the term of the consent. 15. Identification of any single industrial, commercial or agricultural use of water that uses more than 15 cubic metres of water per day (not being water used for human drinking purposes or human sanitation purposes). 16. Identification of future domestic or municipal supply take needs over and above authorised domestic or municipal supply takes required to meet growth and development that is provided for in planning instruments promulgated under the Resource Management Act 1991 or relevant documents promulgated under the Local Government Act 2002, such as Long Term Plans, growth strategies or spatial plans (or similar). The projected future needs shall be identified in terms of: a) Location of take; and b) Volume of take (including any seasonal variations); and c) The date at which the water is likely to be required. J • Add in the fo llowing two new me thods to Sectio n 8.1.2 as foll ows: 8.1.2.3 Transfer of Surface and Groundwater Permits a) Full names and addresses of transferor and transferee. b) If the whole permit is not being transferred, the portion of the water permit being transferred. c) Proposed daily and seasonal (cubic metres per day) and rate (litres per second) of take at new site. d) Permi t number. e) Location of new take site (showon map or give NZMS260 map reference). f) Proposed date/s of transfer. g) Description of purpose for which water is to be used. h) Whether the transfer is permanent or temporary and, if temporary, the date on which the transfer ceases. 8.1.2.4 Water Use· Crop and Pasture Irrigation a) The location and area of the activity. b) The proposed crop/pasture type(s), reflecting rotational crop requirements. c) The proposed daily and seasonal (cubic metres per day) to be used. d) The rate (Iitres per second) at which water is to be used. e) The method of application of water. f) Any associated resource consentsor resource consent applications to take water. g) A nutrientmanagement plan. h) The identityand location of other neighbouring water users. i) What effects this activity will have on the environment. • Consequential ren umb er ing of curren t metho ds 8.1.2.2, 8.1.2.3, 8.1.2.4, 8.1 .2.5 and , 'c'l~L()f> · 8 . 1 . 2 . 6 . /"'''• "..' .!''~0"-\ I~:" ~,c., ~ D.\ '";:. ,1\ _ 1--;--.:.:) .. -'-. 1 --;;-:= Page 80 (;};.. I / ~'l;"1 :j!,.. .' .,,/ Prepared for theEnvironment Cou rt Hearing '("AI .<: ,' . 'I I COUll \ '';':/ CLEAN VERSION - 8 August 201 1 Appendix Three 221 Proposed Variation No.6 - Water Allocation Wiring Diagrams for Implementation Methods (Environment Court Hearing - 8 August 2011) 3.3.4 Implementation Methods - How Surface Water Takes Will be classified s thetak No Yes lncomblnatlon No withothertakes< combined primaryand secondary ows? Doc # 2042377 Page 1 Distributed 25 August 2011 222 Proposed Variation No.6 - WaterAllocation WiringDiagrams for Implementation Methods (Environment CourtHearing - 8 August2011) 3.3.4 Implementation Methods - Water Takes - Surface Water in r:;;u;~~§Jrf;~cawtft;cnhments that are not over-allocated (excluding Domestic and I P Municipal Supplies) Is the Rule3.3.4.13A lake forHunlly Ves Conlrolled Activity- Takingof PowerSlaUon andmeals ----:po . $UrfC1~wal~r fQr>C:9oJ1nQ condillons of Rule WaterforIheHuntlypower 3.3.4.13A? SlaUon Polic.y3 d) la) No Policy3 e) No Policy3 a) I) Istha lake In combination wllh olherlakeswithinIhe rimal}'allocable now? No No Is it for Rule3.3.4.14A milkcoolingandsh Ves Controlled Activity- Takingof Is IIfora lake Ves washdown,andexisted -.. sUrfliceYiater fort)xfstlng .Il1Uk thatexisted prior1015 riorto 15Oelobe cooling enddall}'shedwash Oelober2oo8? 2008? down Policy3 ab) No No Rule3.3.4.16 Is the OlscreUonal}' Activlly lake forWater Rule3.3.4.15A Surface WaterTakes Ves ReslrlcledOiscreUonal}' tiary~sUng~fld mEtels --I> condllions of Rule Aellvlly- SUrface Water Policy3 b) 3.3.4.15A? HawesUng Policy16 No Rule3.3.4.10 Permitted Activity Supplemenlaty SUiface WalerTakes Policy3 a) li) S. Policy 3 secondAdvisoryNote Is Ilfor Ves Rule3.3.4.11 alemporatylake <150 ._----. PennlliedActivity m'/d for 5 daysper TemporatyTakes 1innum? Policy 3 a) Hi) No Ihela Coati Is thelake IncomblnaUon xlslingaulhorised take In combination wllh No No No No Rule3.3.4.20 olherlakes <70%of the .._-.-. wllh otherlakes" alreadyexceed the Non-c:f~~~~~v1ty- combined primal}'and comblned primatyand ---+ rimatyaUocable flow? sE!condary secc)l1dary ows nows? Policy3 d) iv) Policy3 d) 1) Policy3 d) ii) Policy 3 d) IiQ Distributed 25 August 2011 223 Proposed Variation No.6 - Water Allocation Wiring Diagrams for Implementation Methods (Environment Court Hearing - 8 August 2011) 3.3.4 Implementation Methods - Water Takes - Surface Water Takes for Domestic or Municipal Supplies Rule3.3.4.19 Non-complying Actlvlty ---. SurfaceWaterTakesfrom Wetlands, NaturalStateWater bodiesand Lakes Policy 3 d) No Isa Water Management Plan No Rule3.3.4.20 provided In accordance -----t> Non-complying AClivity 6.1.2.2? WaterTakes Policy 4 e) Yes Is thisa Is thelake Is the take in combination with replacement andno No In combination with No No Rule3.3.4.16 Increase In nalure,rate ~ othertakes< 70%of the ""~ othertakesbetween 70 ---=. Discretionary Activity- Surface or volume? primaryellocable 100%of Plimary WalerTakes flow? ellocable flow? Policy 28 g) & Yes Yes Yes Policy 4 d) Rule3.3.4.14 Rule3.3.4.15 Rule3.3.4.13 Controlled Activity- Existing Restricted Discretionary Controlled Actlvity Taking of surface waterfor Activity- Taking of Takingof Surface Water Domestic & Municipal Supply Surface Water Policy 4 a) Policy 4 b) Policy 4 c) Doc # 2042377 Page 3 Distributed 25 August 2011 224 Proposed Variation No.6 - WaterAllocation Wiring Diagrams for Implementation Methods (Environment CourtHearing - 8 August2011) 3.3.4 Implementation Methods - Water Takes - Surface Water In catchments where existing takes exceed Table 3-5 Allocable Flows Policy2B:Howsurrace Waler Takeswill beClassllled In Catchments where Extsllng TekesExceedIheTable3-5 Allocable Flows ves Rule3.3.4.19 Yes Non-complylng ActMly- aurrace ---""--.... .WalerTakestronlWetlaI1ds, NaturalSlateWalerBodlesand Lakes Policy 3 d) Policy 28 d) No Islte Rule3.3.4.16 aOrI1estl{)ormunl~pa Is e waterrnanagern~ntplan DIscretionary Activity that reptacesanexisting rovided inaccordan Rule· surrece Weter consent 6.1.2.21 Takes No No No Rule3.3.4.14 Is II for Conlrolled ActMty- Extsllng reasonable demesne needs Taking of aurrece Water (or or animaldrlnklngneeds? Domestic & Munlclpal 8) Polir,y4 e) a) No Rule3.3.4.14A Islhe take Conlrolled Actlvity for mUkC()t)llng andshed Yes T"klnQ Qf~urface washdownextstll1\l prior1015 VJaterfore~Ung October2006andeppllcallon milkCooling end lodgedpriorto1January dairyshedwash 2015? down Policy 28 b) No NOTE:Takes that meet the requirements of Rule3.3.4.10 (Pennilled AcllvitySulface Rule3.3.415A WaterTakes)andexistedprtorto 100%of Restricte~ Ves ls thetakeforwaler DiscretIonary harve~lIng primaryallocable flowbeingreached remains ActMly- Waler .Inaccordance wllh Policy16? a permitted takeIf thenatureandscaleofthe harvesting takeremains unchanged - referto 2'ld AdvIsory noleto Policy3. Policy 28 c) No Yes s ita replacement of an existing take? Policy 28 e, f s g) No Yes Policy 28 h) Doc # 2042377 Page 4 Distributed 25 August 2011 225 Proposed Variation NO.6 - Water Allocation Wiring Diagrams for Implementation Methods (Environment Court Hearing - 8 August 2011) 3.3.4 Implementation Methods· Water Takes - Groundwater Policy5 e) i) Is tt for In reasonable dornesftc Yes comblnetionwith needs Or animaldrinking ~~ other takes, Is It within needs? Sustelneble Yield, if listed? No No Is it for teke Rule3.3.4.12 Yes a Permitted Activity- Well thet existedprior to 15 or Aqulter Testing October2008? Policy5 a) lv) No Rule3.3.4.18 No Dlscretlonary Acltvlty GroundwaterTakes Rue 3.3..1 B Is It for Controlled Activity- Teking of milkcoolingend she y,g.L._. groundweterforexistingmilk washdown,end existed Policy5 b) coolingenddeiryshedwesh rior to 15 October down 2008? Policy5 ab} No Is e Weter Yes Menegement Plan Yes .__.~ provided in accordance 8.1.2.1& 8.1.2.2? No In combination with othertakes,Is it within SustalnableYleld if listed? Policy5 f) Ii) &j) Yes Rute3.3.4.9 PermltledActivity sit for < 15 m'/d en Supplementery meetsthe conditionsof Groundwater Takes Rule3.3.4.9? Policy 5 a} Il) No Is it for Rule3.3.4.11 Yes No Rule 3.3.4.18 Permitted Activity a temporaryteke <150 Discretionery Activity Temporery Takes m'/d for 5 days per GroundwaterTakes annum? Policy5 a) iii) Policy5 e) & f) i) Doc # 2042377 Page 5 Distributed 25 August 2011 226 Proposed Variation No.6 - Water Allocation Wiring Diagrams for Implementation Methods (Environment Court Hearing - 8 August 2011) 3.4.4 Implementation Methods - The Use of Water Yes Rule3.4.5.6 Rule3.4.5.4 Yes DoesIt complywith DoesItcomplywith '1'~-1> PermittedActivity- Use of PermittedActivity- Useof ""-- conditionsof Rule conditionsof Rule Water for Crop& Pasture Water 3.4.5.4? 3.4.5.6? Irrigation No No Rule3.4.5.7 Rule3.4.5.5 Doesit complywith Yes ControlledActivity- Use Restricted Discretionary conditionsof Rule -~ of Waterfor Crop & Activity- Useof Water 3.4.5.?? PastureIrrigation No Rule3.4.5.8 Discretionary Activity- Useof Waterfor Crop & Pasture Irrigation Doc# 2042377 Page 6 Distributed 25 August 2011 227 Proposed Variation No.6 - Water Allocation Wiring Diagrams for Implementation Methods (Environment Court Hearing - 8 August 2011) 3.4.4 Implementation Methods - Transfer of Water Take Permits Rule3.4.4.2 ~ Permitted Activity- Transferof surfaceand groundwatertakepermits No Rule3.4.4.3 DoesIt complywith Ves. Restricted discretionary Activity conditions of Rule - - Transferof surfaceand 3.4.4.37 groundwatertakepermits No Rule3.4.4.3A Non-complying Activlty Transferof surfaceandground takewaterpermits Doc# 2042377 Page 7 Distributed 25 August 2011