Four things are covered in this months RMA update – TANK, the WCO decision, changes to the RMA, and replacement water permit applications
Update on TANK proceedings
In addition to our (HortNZ’s) appeal, there were fifteen other appeals lodged on the TANK decision. The appeals generally came from the ‘usual’ parties – Forest and Bird, Federated Farmers, Winegrowers, as well as a number of tangata whenua organisations and primary producers (e.g. Heinz Watties and T&G Global).
Some of the appeals are quite specific and limited in the parts of the decision they appeal, while others, such as that of Forest and Bird, are very wide ranging. Copies of all the appeals can be found here on the Council website: TANK Decision & Appeals | Hawke’s Bay Regional Council (hbrc.govt.nz)
The next step in the process is the opportunity for any submitter (or appellant) to join any of the parties as a s274 party – the reasons that you might do this is either if you support what the appellant is seeking, or if you oppose it. Becoming a s274 party means that you are part of any discussions to resolve the appeal. We (HortNZ) are likely to join most of the appeals as a s274 party – some of them because we agree with what the appellants have asked for, and in other cases, where we strongly disagree with what they have asked for. Section 274 notices have to be lodged by Wednesday 16 November. Once this happens, then the Environment Court will understand how many parties are going to be involved, and they can start to make a plan about how things will proceed. Generally mediation is the first step, to see if some of the appeals can be resolved through discussions. It seems unlikely that anything will happen before the end of this year.
In terms of impacts on your day to day operations as growers, the Council needs to give weight to the TANK decisions when processing applications – I expect this will be particularly relevant in terms of them considering ‘actual and reasonable use’. If you have used all of your allocation in 10 years 2010-2020, and you have water meter data to show that, then you shouldn’t have much to worry about. If you haven’t used your allocation, then you will need to put a bit of effort in to explaining this in any replacement water take application – why didn’t you use it – were you in a stage of redevelopment, or growing different crops? If you need help with this, please give me a call to discuss.
WCO (Water Conservation Order) Decision
The Environment Court finally released its decision on the application before it for a Water Conservation Order for the Ngaruroro River. In August 2019 the Special Tribunal recommended a water conservation order for the Upper Ngaruroro River and its tributaries. This decision was appealed by Forest and Bird (and other parties), and was heard by the Environment Court. The Environment Court have recommended a Water Conservation Order for both the upper and lower Ngaruroro River.
We have consistently opposed an order for the lower river, amongst other things because of concerns about how this might impact growers abilities to take water below minimum flows for root stock survival, and also the ability to construct dams on any of the tributaries of the lower river – which potentially will make water storage difficult. We are working through the decision to clarify our understanding, and will also be talking to the regional council. The courts recommendation still has to go through a couple of steps before it comes into force so it doesn’t have legal effect yet. The decision could also be appealed, but only on points of law (not simply because we don’t agree with it) – this is something that we need to consider further also.
In summary this is not the decision we were wanting.
Changes to the RMA
As you may have seen in the news the government is set to release the two new acts which will replace the Resource Management Act today. They are called the National and Built Environments Act, and the Spatial Planning Act. What will be interesting is the transitional provisions of these acts which should set out how we go from working under the RMA, to working under the two new acts. This will obviously take time and something I will explain when we understand what it will involve. At this point, there will be no immediate impact on you – it will be business as usual for a while longer.
Replacement water permit applications
Get them in!! If your water permit expires at the end of May next year (31 May 2023), you should have received letters from the regional council reminding you that you need to lodge your replacement application/s. If you’re not sure check.
Replacement applications need to be in by 30 November this year, which is only a couple of weeks away, so if you haven’t done so, get onto it. If you can’t get to it before then, you can apply for an extension, which would give you until the end of February next year (28 February 2023) to get your application in, but you need to have this time extension approved by HBRC before the end of November. This is a quick process – simply an email to the Consents Manager at HBRC which I can help with, so if you think you need more time, please get in touch – don’t leave it to the last minute!
Any questions, please get in touch – Charlotte Drury, email@example.com 027 3225595. There is a lot going on at the moment so if you think I may be able to help, please do ask.