Restrictions

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 needs or the reasonable needs of a person’s animals for drinking water, 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 and water quality

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 69 relates to the introduction of rules into regional plans to provide for certain waters to be managed for any of the purposes set out in Schedule 3 to the RMA.  These include, for example, aquatic ecosystem purposes, fishery purposes, fish spawning purposes, contract recreation purposes. Where a regional plan states that a water body is to be managed for one of those purposes the plan’s rules must require the observance of the related water-quality standards also contained in Schedule 3 or of more stringent standards if they are necessary.  Section 69 was amended in 2017 so that from the commencement of subsection (4) Schedule 3 it no longer applies to freshwater. The management purposes are now largely covered by “values” in the National Policy Statement for Freshwater Management 2020.

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 water that are allowed by regional rules and aligns with the s 107 requirements for discharges allowed by resource consents. 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 have a function under s 30 to establish 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.

Provisions specific to resource consents relating to freshwater

When considering applications for a discharge permit, including for discharges to freshwater, there are additional matters the consent authority must have regard to under s 105 the RMA:

• 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 in s 107. 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.

These matters are in addition to the  national bottom lines contained in the NPSFM that decision-makers must give effect to.  

Regional councils must not grant a resource consent if it would be contrary to: ⁵¹⁹¹

• the outcomes in s 107 RMA. 
• 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.
• Any regulations, including the national environmental standard for freshwater, the national environmental standards for source of human drinking water, and the stock exclusion regulations.

Review of consents

In addition to the general circumstances in which consents may be reviewed, there are additional circumstances regarding resource consents where there have been changes to the freshwater management framework in a regional plan or because of a national environmental standard.

A water or discharge permit or land use consent granted by a regional council can be reviewed if:

• A regional plan contains a rule that relates to maximum or minimum levels or flows or rates of use of water, or minimum standards of water quality or air quality, or ranges of temperature or pressure of geothermal water; and
• the rule has been made operative; and
• the regional council considers that it is appropriate to review the conditions of the permit or consent in order to enable the levels, flows, rates, or standards set by the rule to be met.

In this situation if more than 1 resource consent is affected by the new regional rule, then the conditions of those resource consents may be reviewed together.

A water or discharge permit or land use consent granted by a regional council can also be reviewed when a relevant national environmental or national planning standard have been made. 

A land use consent issued by any authority can be reviewed in relation to a relevant regional rule. 

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.

Last updated at 4:11PM on August 23, 2021