Variation 6 to the Waikato Regional Plan, as decided by the Environment Court, became operative on 10 April 2012.
The purpose of Variation 6 is to set out how the Regional Council will manage water allocation within the Waikato region. It is in response to increased demand, which has led to direct competition between those wanting water for domestic and municipal water supply, electricity generation, agricultural development and other uses. The Environment Court confirmed the Council decision, apart from some amendments.
Of interest is the issue of protection of water for electricity generation and allocation preference. The degree of protection afforded in the Variation was disputed by the agricultural users at it effectively limits any future additional abstraction for agricultural uses. While the debate seemed to focus on dairy versus electricity, the Court commented that the real issue is whether the water in the Waikato River above Karapiro should be more liberally freed up to enable uses other than for electricity generation – rather than effectively locking up all of the available water above 3.6% of the 1 in 5 year day low flow Q5 (Low Flow) exclusively for electricity generation.
The importance of electricity to New Zealand was acknowledged in the Decision, as was the strong statutory directions that emphasise the importance of renewable energy and the effects of climate change. The Court acknowledged the strong directions contained in the relevant statutory instruments, particularly the National Policy Statement on Renewable Energy. However, the Court considered that to effectively lockup the entire variable flow above 3.6% of Low Flowin the Waikato River between the Taupo control gates and Lake Karapiro for electricity generation would not give effect to Section 5 of the RMA. The 3.6% is close to being fully allocated. Once it is allocated, no water would be effectively available for any consumptive use. The Court did not consider this to be an efficient use of the resource.
The Court noted that agriculture, particularly dairying, is an important industry and providing for its future growth can only be of benefit to the social and economic well-being of the region and to New Zealand. Such uses should not have to go through a contested non-complying activity process that would have to overcome a high bar created by protectionist policies designed to protect electricity generation. The Court found that overall some more water should be made available for consumptive use in the upper Waikato catchment. The Court amended the primary allocable flow at Karapiro Dam from 3.6% to be set at 5% of the Low Flow.
The Environment Court’s decision may be of interest to other regions also struggling with competing users for water resources.