Duties and Restrictions are discussed more generally in the RMA section of this website.

Water takes

Section 14(2) of the RMA makes it illegal to take, use, dam or divert freshwater (including its heat or energy) unless the activity is:

  • expressly authorised by a national environmental standard, rule in a regional plan or a resource consent
  • for an individual’s reasonable domestic or animal drinking water needs, so long as it does not or is not likely to have an adverse effect on the environment
  • in relation to geothermal water, in accordance with tikanga Maori for the communal benefit of the tangata whenua in the area, so long as it does not have an adverse effect on the environment
  • for fire-fighting purposes

Discharges to water

Section 15 of the RMA prohibits any discharge of a contaminant into water or onto or into land in circumstances which may result in the contaminant entering water unless the discharge is expressly authorised by a national environmental standard, rule in a regional plan or a resource consent.

Section 70 controls the outer scope of discharge rules in regional plans.  It relates to discharges of contaminants or water into water and discharges of contaminants onto land where it may enter water.  Under s 70(1) regional councils may only make such discharges permitted activities where the Council is satisfied that none of the following effects are likely to arise in the receiving waters, after reasonable mixing, as a result of the discharge of the contaminant (either by itself or in combination with the same, similar, or other contaminants):

  • the production of conspicuous oil or grease films, scums or foams, or floatable or suspended materials:
  • any conspicuous change in the colour or visual clarity:
  • any emission of objectionable odour:
  • the rendering of fresh water unsuitable for consumption by farm animals:
  • any significant adverse effects on aquatic life.

The inclusion of the term ‘after reasonable mixing’ means that a discharge of a contaminant can be permitted if it causes any of the effects listed above when it enters the water, provided that the effects disappear once the contaminant has mixed with the water. What is ‘reasonable mixing’ is a question of fact to be assessed on a case-by-case basis.

Under s 70(2), before a regional council includes a regional rule requiring the adoption of the best practicable option to prevent or minimise any actual or likely adverse effect on the environment of any discharge of a contaminant, the regional council shall be satisfied that the inclusion of that rule in the plan is the most efficient and effective means of preventing or minimising those adverse effects on the environment.

This provision only sets out the minimum standards – the Council is still required to make a judgment that the proposed discharge rule is consistent with the purposes and principles of the RMA and gives effect to the NPSFM.

Allocation of water

Regional councils can create rules in a regional plan to allocate the taking or use of water. This can override the default position that water will be allocated only on a ‘first come, first served’ basis. The RMA does not prescribe how or to whom water will be allocated. This means that regional councils have a broad discretion to devise allocation rules.

Provisions specific to freshwater consents

When considering applications for a discharge permit, including for discharges to freshwater, there are additional matters the consent authority must have regard to:

  • The nature of the discharge and the sensitivity of the receiving environment to adverse effects
  • The application’s reasons for the proposed choice
  • Any possible alternative methods of discharge, including discharge into any other receiving environment

The RMA also contains restrictions on a council’s ability to grant discharge permits. A consent authority may not grant a discharge permit if, after reasonable mixing, the discharge may result in:

  • The production of any conspicuous oil or grease films, scums or foams, or floatable or suspended materials
  • Any conspicuous change in the colour or visual clarity
  • Any emission of objectionable odour
  • The rendering of fresh water unsuitable for consumption by farm animals
  • Any significant adverse effects on aquatic life

unless the consent authority is satisfied that exceptional circumstances justify the granting of the permit, the discharge is of a temporary nature, or the discharge is associated with necessary maintenance work and it is consistent with the purpose of the RMA to grant the permit.

There are likely to be few circumstances where these provisions are a central consideration, given that the NPSFM, and regional plans that give effect to it, can be expected to set higher standards than required by these provisions.

In addition to the general circumstances in which consents may be reviewed, there are additional circumstances where water or discharge permits may be reviewed by a consent authority. Where a regional plan has set rules which specify standards, levels, flows, or rates the regional council may review permits where it considers a review is appropriate to enable the standards, levels, flows or rates to be met. A water or discharge permit may also be reviewed when relevant national environmental standards have been made. Depending on the conditions of consent, this may enable a regional council to address over-allocation of a water body.

As a result, in a situation of over-allocation, a regional council could create a rule in the regional plan relating to minimum levels and flows of water. This rule would have immediate legal effect. The council could then review all the permits authorising extraction of water from the over-allocated resource and, if necessary, reduce the amount of water which is able to be taken under each water permit.

Regional councils also have the ability to issue directions and restrict the use of water when there are serious water shortages. In the event that this occurs, the council can suspend, restrict or apportion taking of water with immediate effect for 14 days. This can be renewed, and there is no provision for appeal. In some cases regional councils use this mechanism to manage the allocation of water during seasonal low flows.

Regional councils must not grant a water permit if it would be contrary to any provision of a water conservation order. However, they can impose conditions on a water permit to ensure that the provisions of the water conservation order are maintained.

Last updated at 8:50AM on April 3, 2018