Historic rights muddy the waters

Water quality and ecosystem health were found to be high in Lakes Wanaka (pictured), Wakatipu and Hawea. Photo / Stephen Jaquiery

The Otago Regional Council has received a mixed report card for freshwater management in recent Ministry for the Environment reports. Pam Jones takes a closer look at the findings and delves into some history, as well.

They helped extract the gold that paved the way to riches for the region, but the gold-mining water rights of the 1880s have become a "complicating factor" in water use today, a government report says.

The national Ministry for the Environment (MFE) review and joint MFE and Ministry of Primary Industries (MPI) regional analysis contained some findings that were not news to anyone that uses fresh water in Otago, including that water quantity remains the most pressing and contentious water issue for the region.

But  still many  do not realise the background to some of that, specifically the historic water rights from gold rush days that are in the process of being converted to modern-day resource consents.

The review of the implementation of the Government's National Policy Statement for Freshwater Management (freshwater policy) said most catchments in Otago were severely over-allocated and some rivers in North and Central Otago ran dry in the summer.

In Central Otago, this was often due to water rights attached to historic mining permits, many of which were "inherited" by farmers who now owned the land which still held the historic permits. They were now used for irrigation and created a "challenging environment" for allocating and managing water quantity.

"A major complicating factor is that water rights issued during the 1880s for gold mining gave holders the absolute right to take water. The quantity of water available was not taken into consideration. Under the Resource Management Act 1991 (RMA), these mining rights became 'deemed permits' with a common expiry date of 2021.

"Those who wish to continue taking water beyond this date will need to apply for new RMA resource consents. This mining privilege situation is unique to Otago, and ORC has prepared a guide to help the affected consent holders."

The water quantity issues in Otago would be addressed by 2021, the deadline for permit-holders to have their new resource consents, the report said. (The ORC estimates about a quarter of the estimated 400 permits in Otago have so far been converted, and is working with permit-holders as they go through the detailed process of water measurement and consent applications.)

Water quality is dealt with through the ORC's Plan Change 6A, which is an effects-based approach that controls discharges from activities, not the activities themselves. It has a rural focus, and landowners are responsible for choosing their own methods for managing contaminant discharge to meet the new limits in the plan.

But views on how well that was working differed among the ORC and stakeholders, the MFE and MPI report said.

"ORC believes that the requirements brought in by Plan Change 6A meet the requirements for limits under the freshwater policy [National Policy Statement for Freshwater Management, introduced in 2011 and amended in 2014]. However, ORC noted that no plan is perfect. It sees the plan process as iterative and does not expect that Plan Change 6A will solve all issues."

Stakeholders had slightly different views.

"There was concern expressed by the stakeholders we interviewed that ORC feels it has implemented the freshwater policy, when, in reality, it is only partway through the process. They consider that ORC should better outline how the freshwater policy is being implemented on the ground. They said that it was unclear how ORC will support land owners to be effective in managing contaminant discharges or how compliance will be enforced."

For its research, the MFE and MPI team had panel discussions with ORC executives, councillors and staff; a stakeholder panel of territorial authorities, environmental organisations and agricultural sectors; and representatives from national sector organisations. Iwi and hapu representatives were invited to a review hui but did not attend, and this was recognised as a "significant limitation" of the review, the report said.But stakeholders who were spoken to said not all community values were being taken into account by the ORC, particularly concerning the availability of fresh water due to over-allocation.

They also said ORC was not addressing ecosystem health and human health for recreation - two compulsory values in the freshwater policy; that residual flow setting was not working as well as expected, technical information to inform decisions was lacking, cumulative effects had been forgotten and a "wider, holistic view" was not being taken; and that there were "mixed messages" from the ORC about the requirements for water users, discharge limits and what types of breaches would be enforced by ORC.

"They [stakeholders] are unsure if ORC fully understands how it will implement multilayered policy involving community values and science."

The report said water quality and ecosystem health were high in many parts of Otago, such as the Upper Clutha and Taieri River catchments, and Lakes Wakatipu, Wanaka and Hawea.

However, stormwater contamination in urban areas and intensive farming were putting pressure on water quality and aquatic ecosystems, particularly in the lower river reaches.

"The region's dairy herd grew more than seven-fold between 1990 and 2015, from around 50,000 to 385,000. Water quality in these areas has deteriorated over the same period. Lower reaches of rivers towards the coast tend to have higher Escherichia coli levels, with many sites exceeding the national bottom line for E. coli in the freshwater policy.

Nitrogen and phosphorus levels are also often elevated. Groundwater quality is generally good, but several monitored sites have very high nitrate levels, particularly in the volcanic aquifers south of Oamaru. High E. coli levels are found in many lowland areas."

The national MFE report found the ORC was one of the councils with the most capacity and capability to address the challenges of the freshwater policy (the others were Waikato, Canterbury, Wellington, Bay of Plenty, Southland and Auckland).

It was also one of the councils that had made the most progress towards implementing the freshwater policy.

The report also said the ORC needed to review its existing plans to ensure they gave effect to the freshwater policy; and that as part of its implementation programme, the ORC should assess whether its region-wide limits were sufficient to achieve freshwater objectives in individual catchments and waterways.

It also noted that collaborative planning was relatively new to most councils and communities, meaning there was "a lot of experimentation and learning going on through processes".

On the spectrum of participation developed by the International Association for Public Participation, the ORC was using a "consult" process, the report said.

This made use of stakeholder advisory groups to solicit community input, "but council staff develop plan provisions and make recommendations to councillors.

"This approach is generally the most cost effective but is the least empowering for communities".

pam.jones@odt.co.nz