Is the RMA not capable of controlling water exports? Selva Selvarajah examines the issue.
Most significant debates on environmental issues in New Zealand often lead to calls for changes to the Resource Management Act (RMA). The debate on water export is the most recent example.
The question is, are the current provisions of the Act inadequate to deal with issues such as water export?Section 14 of the RMA allows the regulation of water by the regional and unitary councils.
Under the Act, the regional councils have the jurisdiction over the take, use, damming and diversion of water. Water taken and used for firefighting, an individual's farm animals' drinking water or reasonable domestic needs are exceptions. In the regional plans, regional councils can regulate the take, use, damming and diversion by consenting or by permitted activities.
Legally, every water take or abstraction requires a consent for take and use of water unless permitted. This is one of the reasons why regional councils grant both take and use consents concurrently or as one consent. Depending on the council policies and rules, councils can assess water use efficiency and any adverse effects of the take and use of water before granting consents.
An interesting example is the North Otago Irrigation Scheme. The Scheme abstraction was from the Waitaki River, which was within the Canterbury Region, requiring a take consent from Environment Canterbury.
However, since much of the water use was in the Otago Region, the North Otago Irrigation Company also required a water use consent from the Otago Regional Council. This example illustrates the strength of the water use provision in the Act. Despite this, much of the debate had been on water takes.
Once a water right has been granted, it can be transferred to another person, provided the location of the take and use are similar. Such a consent transfer is a simple process under the RMA, almost similar to a property transfer.
However, if the location of the take is elsewhere or the water use has changed, depending on the regional rules, councils have to process such consents as if they are new. For example, if the original consent was granted for irrigation or community drinking water use and the new use is to bottle and export, a new consent is needed before the water right is transferred to the new consent holder.
Depending on the water demand, regional councils can choose to be prescriptive over the take and use of water by controlling allocations. Councils can allocate a catchment or aquifer water for a range of water uses. In the absence of a sound allocation policy, water right can be granted to anyone for any use under the ‘first-come-first-served' basis.
The National Policy Statement for Freshwater Management 2014 requires efficient allocation of freshwater to activities. Councils can promote local use of the allocated water or confine the use within a catchment or aquifer.
Councils also have the ability to prioritise allocation on the basis of a water use. This process may be considered as picking winners, but may be essential under certain circumstances, particularly allocating water for the community's future needs. Water allocation does not always need to be based on economic merits.
On the above basis, in fully or over-allocated catchments or aquifers, councils have the ability to restrict water use such as water bottling for export to preserve water for the local community's water supply or irrigation.
Alternatively, councils can allow temporary allocation on the basis of efficient resource use as a short-term water right in lieu of reverting to local water use in future. Obviously, most water bottling companies may not proceed with short-term consents on the basis of risking a high capital investment.
There is also debate on charging for consented water. The Act allows charging only for the administration and monitoring of consents under s36. It is debatable whether imposing water use charges will reduce water use.
A user-pays charge in lieu of a water rate may be effective in restricting water wastage from urban water supply. However, irrigators already pay high charges to access and use water.
Additional charges on water could confine access to such a valuable resource to only few financially privileged individuals or corporates. If regions such as the West Coast have excess water, they can choose to export water.
Since water export has a lucrative global market, it makes sense to introduce some form of royalty. This requires careful consideration and government legislation. However, the ultimate decisions on water allocation and use are left to the local community under the RMA.
●Dr Selva Selvarajah is a director, consultant and researcher of Enviroknowledge Ltd, Dunedin and a former Otago Regional Council resource management director.
