This Is Christchurch: Irrigation Water Rights Issues Heating Up In Otago

First published on This Is Christchurch

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Some recent posts on this blog have highlighted aspects of the Government’s 3 Waters policies. In a different yet parallel vein, issues over water rights for irrigation by farmers have become highly contentious in Otago over the past few years. Otago is an interesting case for irrigation management as water rights there have been based for decades on allocations made under historical mining permits for gold sluicing and related activities. These permits were allowed to continue in force until last year when under a grandfathering provision brought in with the Resource Management Act of the 1990s, they were forced to expire. This means that many permit holders now have to apply for resource consents to take water for irrigation under current expectations and conditions, and this is bringing with it the high degree of likelihood that due to over-allocation, many of the allocations will be much reduced or declined.

The normal situation around New Zealand for granting irrigation takes is that the river flow is analysed and then consents are granted to take at most 25% of that flow. This process as mentioned above has not been historically followed in Otago, where few of the historical mining permit allocations had any restrictions on how much water could be taken. The problem has been exacerbated in more recent times due to implicit encouragement from central Government to increase production at all costs, particularly under the two most recent National Party-led administrations. In addition, during the late 1980s, most of the historical mining consents in Otago that had been under Government control were privatised as part of the government policy of that time, removing public oversight of their operation and use. The resulting outcome of this has been large scale farming intensification in Otago with little regard for environmental impacts. Some rivers have more than 75% of their flow being taken which is causing them to dry up completely in summertime. The real problem is that this has become completely unsustainable for the long term.

The resulting tensions have come out in a big way in this term of office for the Otago Regional Council and have created a lot of heat around the council table in meetings and in relations between the elected members and council staff. It has also resulted in several changes in leadership of the elected members, most notably in the resignation of Marion Hobbs as the chairperson and her subsequent departure from the council altogether in 2021. There has been a suggestion by some councilors and notably by Hobbs that the Council should be sacked and replaced by commissioners. This has become especially apparent in the last couple of months when a contentious meeting of the Council in March failed to set a minimum flow level for the Manuherikia River. In effect, councilors by majority voted rejected a 6 year $4 million report that recommended the gradual introduction of a minimum flow of 2.5 cubic metres per second (cumecs) over a 10 year period. It is strongly suggested that the primary reason for the rejection is political, and that the Councillors are intent on pushing back against the newly established environmental constraints they are now expected to work under. At the same time, there have been a number of skirmishes and conflicts between councilors and the management executive and staff of the Council. There has been a clear inference in this that some councilors are making politically motivated attempts to push back strongly against the council staff in relation to a number of processes, including this water management issue and various others. This is put into perspective when it is realised that the Manuherikia River, which should have no more than 3.2 cumecs of take allocated under present day criteria, currently has historical takes totalling more than 26 cumecs.

Apart from the issues with the elected members, the processes by which the new regulatory regime is being introduced have been the subject of a great deal of legal action. The first shots were fired back in 2016 when a Plan Change 5A was introduced to set a minimum flow level on the Lindis River. The matter was taken to the Environment Court by irrigators, who were able to convince the judge that their economic interests were more significant than the health of the river, the flow in which according to this plan is set at a minimum of just 0.55 cumecs. More recently, Plan Change 7 has been through the same court, whereby the rulings have become more favourable to the environment due to the different regulatory criteria established by Labour since 2018. The deferral of the Manuherikia minimum flow decision in that light makes the councilors look weak and incompetent. But that weakness and incompetence is deeply rooted. It has been known for thirty years that this day would arrive, yet it has all been left until the last minute to carry out the process of issuing the new consents. In other words, successive elected councils and by implication the government have deliberately sidelined the required process in favour of economic gain for the rural communities. This isn’t just a matter of the council neglecting its responsibilities to prepare for the change of legal regime; it is actually the case that the council has been telling Otago farmers for many years that they would continue to get as much water allocated under the new consents as they had under the historical permits. In other words, it was widely assumed there was no actual real need to address the historical inequity of overallocation of water resources in Otago under the mining permits; that somehow this would be overlooked, and the National Government must have been complicit in this, because it has only been the case since Labour was elected that the message has finally got through that water management in Otago must be subjected to the same regime as the rest of New Zealand. The Plan Change 7 was written on the basis of this new regime and hence there was bitter opposition expressed to it within the EC hearings. However there is a massive credibility gap in the submissions which were made expressing support for a minimum flow level in the Manuherikia River of just 1.1 cumecs. This mere trickle would be unable to support many of the purported activities that irrigators have acknowledged should be provided for in the river under the expectations of Plan Change 7. In other words the public is supposed to believe that a massive overallocation of water can continue indefinitely with no negative environmental effects on rivers like the Manuherikia. A cubic metre of water is essentially a box that is 1 metre long, 1 metre wide and one meter high. So 1.1 cubic metres flow a second is really not a large volume of water in a riverbed. Now imagine that it is really possible to swim in such a small volume of water as claimed by irrigators and their supporters by setting such a small minimum flow level. What is also relevant is that much of the current level of water take by irrigators has only been incurred in recent times, and has not always been a feature of the water management landscape in Otago.

Nor is it just in Otago that there is such a wide gap between all of the fine words that have been put out by the National Government and the reality of what has occurred. In Canterbury, the elected Regional Council was sacked on the basis, it was widely believed, that the reverse situation was occurring; that its councilors were not willing to bend far enough to the demands of irrigators. A Canterbury Water Management Strategy was devised and implemented by elected commissioners, but has been shown to be mostly illusory, with the main outcomes achieved under it being a greatly increased level of irrigation development, the obvious priority being the intensification of farming throughout Canterbury. This delivered major economic benefits to farm owners who saw their land values greatly increase as a result of the accelerated availability of water through new schemes. Yet the many other benefits touted by the CWMS, especially to the overall environment, have not come about. It could easily be assumed that the main reason for sacking the elected Canterbury Regional Council was to enable the water rights grab with consequent political objectives and outcomes taking priority. Ecan is now required to implement a new water plan on the basis of the same national requirements that are being brought to bear around the country, and whilst the issues are not quite in the same league as in Otago, there has been plenty of valid concern raised over regional council management of water, there being recent suggestions for example of unconsented takes having occurred in the Coleridge hydro lake catchment. There will be a lot more heat coming in Canterbury and elsewhere in years to come as the long overdue environmental rebalancing that the present Government has mandated comes into fuller force, and as the impacts of climate change become more pronounced, as well as, especially in Canterbury, the increasing demands of domestic water supply becoming apparent due to population growth.

So as at this present time the Otago Regional Council despite support from irrigators who have supported the specious claim that the science needs to be looked at again when setting the minimum flow level on the Manuherikia River, is very much under pressure due to the unwarranted deferral of that decision and this has had further ramifications in the past few weeks. Just this week the Minister has commissioned a report to get an independent appraisal of the situation at the regional council, and the council CEO has joined a list of departing staff amid growing concerns that the council is becoming a more difficult place in which to work giving the increasingly adversarial relationships between councilors and senior management. So there is a growing possibility that the government may choose to sack the elected membership and bring in commissioners to make the hard decisions. It is, as it stands, fairly likely that there will be further legal challenges and court hearings all along the way as it is hardly likely the farming lobby will simply roll over on restrictions being put onto water allocations they have been utilising for a number of years and consequent economic impacts on their businesses.