Advocacy

TANK (Plan Change 9) Update
Meeting, 8 April 

The meeting was led by Emma Taylor and Peter Hurlstone, HBWG water user leads and Brent Linn, HBWG CE.  Also in attendance were Edwin Massey (NZW), Xan Harding, Paul Barret and Carl Nicholson, Hawke’s Bay Regional Council (view their presentation here) and Nicholas Jessen, Cooper Rapley Legal (view his presentation here).

Project Raumatatiki / FWFP

Edwin Massey updated the attendees on the FWFP – view his presentation here.

Renewal Process

Consent holders are reminded that 31 May 2025 is a firm deadline to signal whether they accept the Council’s advised Actual Reasonable Use (ARU) allocation or not. If a consent holder does not accept the ARU, they must provide supporting evidence to justify a variation.

There are two pathways available:

• Rule 8, which allows for adjustments to the advised ARU based on legitimate concessions (refer to the HBRC presentation for detail).  This may include an allowance for water that was not used in a dry year due to areas being out of production but that were planted within the ten-year period ending in May 2020. Alternative allocation tools to irricalc (SPASMO) have been suggested as an option for increasing allocation limits, especially on the Gimblett Gravels.

• Rule 10 – requires public notification and is subject to a hearing with independent commissioners. The cost of this will fall on the applicant. Determination will be against the operative plan which identifies existing over allocation.

The potential option of an interim five-year consent allowing holders to retain their existing paper allocation while agreeing to operate under the advised ARU was considered. However, no clarity was provided on what entitlements might apply if conditions change and there is an increase in allocatable water.

It was confirmed that consents will include an annual volume, 28-day (or weekly) maximum and litres per second.

It was also clarified that frost protection water takes are excluded from ARU calculations.

Legal

Nicholas Jessen, Cooper Rapley Legal, presented to members and provided an outline of the appeal process and timelines. A hearing will not occur before March 2026 and a decision may not be available until 2027. He stressed the need for plan rules to be clear and sufficiently certain so that irrigators can plan with certainty— which is not the current situation. 

The estimated cost to continue the appeal through to the Environment Court is $150,000. The majority of this cost will need to be funded by members and HBWG is seeking an indicative contribution of $50/ha per vineyard to continue the appeal process.

There was discussion about some wording that consent holders could use if they accept advised ARU “without prejudice” to their position that the numbers are wrong/unfair, or to the outcome of the planned Appeals process. We acknowledge this as a possible approach which may be the best path for some but note that simply accepting allocations “under protest” or with similar reservations does not provide an automatic entitlement to additional allocation if rules change as a result of an Appeal outcome. Accepting an allocation now may make it harder to seek additional allocation later, though this cannot be stated definitively.

All parties need to go through the established process. If growers believe the calculations are incorrect for their situation, the best approach would likely be to continue to challenge the actual and reasonable numbers calculated by Council and exercise rights of objection/appeal.

Individuals need to make their own decision/seek independent legal advice about their particular circumstances, as general advice cannot be provided to the entire group on how they should approach their consenting process.

Heretaunga Water Users Group

Initial investigations are underway for a 27mcm3 Dam on a tributary to the Ngaruroro River at Whanawhana.  This is being carried out by an independent group although HBRC have been involved (though not as a constructor or operator).

The Ngaruroro River will be the reticulation system with 7Mcm3 of storage allocated to ecological flow preservation.

Initial estimations of cost were approximately $275m with 75% of the cost being met by irrigators.  $3m had been committed to take initial investigations through to Geotech.  There is a risk of cost escalation as evidenced by other schemes, eg. Waimea Dam.

An operating model is being developed.  At this stage the likely model is a shareholder capital committment against allocation sought with the ongoing operating cost shared amongst shareholders on water drawn.

A Heretaunga water plains strategy is also being developed and imagines a globalised consent model as per Twyford irrigators.  

An announcement regarding a lobby group to push back against water reforms is signalled to be made within the next two weeks.

Conclusion

All consent holders are urged to signify their intentions by 31 May.  Some areas for members to assess before making their decision include;

• Check if the allocation given is sufficient
• If not, are there gaps in the data that can help your case with reference to the permitted variances to advised ARU?
• If it is not sufficient, there is the option to talk to HBRC around other models such as SPASMO particularly if you are on the Gimblett Gravels, though you need to be aware that there are no written rules in the Plan permitting this to occur currently, and any allocation based on a different model has more uncertainty around it. 
• If you choose not to accept your allocation, you could proceed under Rule 10, a notified allocation, however, this could be costly and check if any of the permitted variances to advised ARU apply in your case.
• It would seem prudent to prepare an application but defer filing until closer to 31 May.

HBWG will continue with the appeal process if members wish, however, this will depend on members signalling their commitment to support the appeal financially. 

Additional supply of water from storage was envisioned in the original TANK plan as a means of managing over-allocation, but allocation limits have occurred before consent holders can make an informed decision about the certainty of access to required water from storage.  The Plan, as it is written, will result in significant water reductions across the board which may be unsustainable for members. The Winegrowers case is specific to grape growing and while there are other issues being discussed currently, none of this is certain and representation at the hearing is the only way we are able to remain in that discussion and to protect winegrowing interests.

Action

Once you have considered all the information outlined above, please confirm your support for HBWG to continue with its appeal to the Environment Court. Any appeal will require the continuing financial support of our members. Therefore, we seek an indication of your willingness to contribute to the legal costs at a rate of $50 per hectare of vineyard, with a minimum contribution of $200 (plus GST).

Please email your response advising area in vineyard to [email protected] by 31 May 2025.

We will provide further information once we have assessed the support of members for HBWG to continue with the litigation.

We have previously advised that HBWG has been engaging in multi-party mediation on the TANK PC 9 appeals, including our own.

We now wish to provide members with an update on developments, to the extent that we are able to while respecting the rules that govern mediation including confidentiality.

We have not been able to reach substantive agreement between all parties on our appeal points, and in particular the water allocation method based on actual and reasonable use allocations as determined by HBRC.

Our understanding is that HBRC now intends to proceed to process expired consents, based on their determination of actual and reasonable use that they have advised to consent holders. We expect that HBRC will contact you about this in due course.

We continue to seek a solution on the actual and reasonable use methodology, including through our appeal. In the meantime, we are proposing to hold an information session for members early in the new year to provide members with some insights into how to best manage the impending reconsenting process with HBRC, while discussing the likelihood that an Environment Court hearing will be required to resolve issues (ours, and other parties) regarding the TANK water allocation rules.

All businesses who are impacted should complete our online survey gathering data regarding the new water allocations and impacts of these on your businesses.

Click here to go through to the Survey

The Appeal HBWG made on behalf of members was predicated on members pledging to fund the legal costs.  We note the majority of those contributing are those that are directly impacted by this first round of expiring consents. We further note the large number of consents (particularly in the Crownthorpe / Managatahi regions) that are yet to expire and will be subject to the new A&R rules we are appealing. 

We ask all consent holders to consider supporting the appeal as all consents will be impacted by the new A&R rules that we are appealing. If you wish to support this appeal then please email [email protected] advising business name, contact and area under vine.  The contribution rate is $20/ha under vine in HB (minimum pledge $100).

Applications to replace TANK water permits that expire in May 2025

Anyone whose water permit expires in May next year (2025) should have recently received a reminder about applying for a replacement consent. HortNZ has spoken to the regional councils consents team and they have confirmed that as part of those applications, they will not require an assessment of the volume applied for against the definition of actual and reasonable water use that is in the TANK decision. This is because the definition may change as a result of the TANK mediation that remains ongoing. So, at this stage you do not need to spend time and effort justifying whether the volume of water you apply for is actual and reasonable. The council said that when you lodge your replacement application they will calculate your reasonable use (using Irricalc) and also your actual use (based on the water meter data HBRC holds) and provide that information to you. Make sure you get replacement applications into the regional council by 30 November 2024 – this ensures you can keep operating under the conditions of your expired consent until a new consent is issued.

Please also use any and all available opportunities to reiterate the advice below – all growers, big and small, need to be as well across their water meter data and their actual water use as possible. Some type of reduction in existing consented volumes is a very real possibility, and growers need to arm themselves with the best information they can about the water use, and future water use of their operations.

Future limits to the availability of new water are a reality, and reductions to existing consented volumes a real possibility. The best way to prepare for whatever the future brings is to do the following:

• Understand how much water you have actually use
• Understand what ‘reasonable use’ is for your crop/s using Irricalc (Irrigation Requirements (mycatchment.info)).
• Understand what water savings you could make with improved efficiency.
• Assess the quality of your water meter data, and if it’s not good, find out what you could do to improve it.
• If there are reasons why your future water use might not be the same as your past use (e.g. redevelopment, crop rotation, intention to change crops), you need to understand what volume of water is reasonable for that use (most likely this will require using Irricalc).
• Understand if your water allocation was to reduce in the future, what impact that would have on your production, and your business.

If you need help to understand your water meter data, or use Irricalc etc, please contact a rural professional.

HBRC have extended the timeframe for information justifying proposed allocations until 30 December 2024. This extension is to allow for further mediation to occur, and it is likely these will continue for the rest of this year.

HBWG remains actively involved in these mediations.

HBRC are no longer wanting further information justifying proposed allocations to be provided by 1^st September 2024. They have extended the timeframe until 30 December 2024 (you should have received an email from [email protected] late last week telling you this).  This extension will allow more mediation to occur, and it is likely to continue for the rest of this year. 

We are actively working in the mediation to improve the TANK plan for growers as much as we can but future limits to the availability of new water are a reality, and reductions to existing consented volumes a possibility. The best way to prepare for whatever changes eventuate it to understand in real detail your future water needs, so you should use this time extension to do the following:

• Understand how much water you have actually used.
• Understand what your reasonable use is for your crop/s using Irricalc (Irrigation Requirements (mycatchment.info)).
• Understand what water savings you could make with improved efficiency.
• Assess the quality of your water meter data, and if its not good, find out what you could do to improve it.
• If there are reasons why your future water use might not be the same as your past use (eg. redevelopment, crop rotation, intention to change crops), you need to understand what volume of water is reasonable for that use (most likely this will require using Irricalc).
• Understand if your water allocation was to reduce in the future what impact that would have on your production, and your business

If you need help to understand your water meter data, or use Irricalc etc, please contact a rural professional.

Two final things to confirm:

• You can continue to operate under the conditions of your expired consent until a new consent is issued.
• You do not need to provide any further information to the council at the moment.

Further to our earlier update on our mediation regarding the TANK plan change.

Subsequent to this advice we are aware that HBRC have written to holders of expired consents advising of an extension to the timeline for consent holders to submit information regarding the HBRC derived actual and reasonable use until 30 November 2024 and asking that any information to support applications is submitted to Council prior to
1 September 2024.

Our advice remains as follows:

• If you haven’t already done so make sure you tell HBRC if you do not agree with the actual and reasonable volume they have calculated for you.
• There is no need to provide any further information to Council at the moment. They are going to tell you what they want to know – wait until they do to make sure you are answering their questions correctly.
• There is no need to hurry – you can continue to operate under your expired water permit until new consents are issued.
• What you can spend time on is looking at your own water meter data and really understanding what your water use is. If you find it hard, get someone to help you – a viticultural consultant or the like. Make sure your meters are operating well – get them verified etc. While it isn’t clear yet what water allocations are going to be, what is very clear is that accurate water meter data, and understanding in real detail what your own water use is, is going to be really, really important and at the moment the most worthwhile thing you can do to future proof your business.

The HBWG water advisory group is continuing to engage with the parties in mediation that our appeal is subject to and will continue to inform you of developments.

In the meantime, we thank those members that have continued to fund the appeal process and request that all members give consideration to supporting your colleagues by joining the funding group. Contributions are scaled at $20/ha (minimum $200) under vine and you can join by emailing [email protected] advising business name and area under vine.

Update of our Appeal on Hawkes Bay Regional Council’s Plan Change 9 (the TANK Plan Change) as at 24 May.  

As you may recall, the Environment Court directed all parties to attend mediation. Mediations held from the 6^th to 9^th of May covered our appeal points and other appeals regarding the ‘actual and reasonable use’ rules that are guiding groundwater allocation renewals.

As we are bound by the rules of mediation, we are not able to specifically cover what each party said at mediation. However, we can disclose that despite a healthy discussion and positive engagement by some of the parties who were present, the mediation did not result in the settlement of any part of our appeals regarding the Council’s “actual and reasonable” rule framework or its “least of either” approach based on existing water use and/or the application of IRRICALC.  We also had to maintain our opposition to other parties’ appeal points at mediation, for example requests to reduce the overall allocation limit further than 90,000m³, and requests to drop consent durations for groundwater allocation from 15 years to 5 years.  Accordingly, all these appeals (including our own) will now need to progress to an Environment Court hearing.

TANK (PC9) plan changes will have significant impacts on winegrowing and it is imperative we continue to defend our position, ensuring sufficient water for grape growing.  We note that there are a large number of consents (particularly in the Crownthorpe / Mangatahi regions) that are yet to expire and will be subject to the new proposed Actual and Reasonable Allocation rules.  We would ask that you signify your willingness to support this work by emailing [email protected] with details of your area under vine and we will issue an invoice for your contribution.

Representatives from HBWG met with HBRC senior management last week to discuss the practicalities and limitations of the advised Actual and Reasonable allocations that have been released. HBRC expresses a desire to work with HBWG to better understand the issues irrigators are facing as a consequence of the new A&R allocations. Consequently, we ask that if you have not already done so, then could you please complete our water survey questionnaire here. 

One piece of advice we can share from this meeting is that HBRC will wait for the outcome of our mediation before issuing replacement consents (apart from those that have agreed to the new A&R assessment (approx. 26 of 800 consents). 

So, for those who have received a new A&R allocation letter that you don’t agree with, then there is no need to do anything other than advising HBRC that you do not agree with the proposed new allocations and reserve the right to seek resolution via the HBWG legal proceedings. HBRC advise us that they are looking for equity and fairness in the final allocations so wish to avoid a “first up, best dressed” approach. 

Parallel to these discussions HBWG has received advice that mediation on our appeal case has been set down for May. We are working with our legal team to present a compelling case to the mediator about the limitations we see in the Actual and Reasonable allocation methodology and proposing alternatives that we believe better supports our members ability to operate. 

• provide an update of the appeal process;
• discuss next steps; and
• discuss members response to letters released by HBRC advising of new allocation limits they have developed using their actual and reasonable interpretation.

• Mediation is progressing slowly with the key topic that the HBWG appeal is focussed on (being the actual and reasonable definition and allocation policies) set for May 2024.
• The Council has indicated that it considers this mediation topic likely to be contentious.  Noting this, and given the breadth of parties involved, it could be difficult to settle all issues through mediation.
• Our team are beginning to engage with its experts around the mediation process and will also continue to liaise with other interested parties over common issues.
• The estimated actual and reasonable allocation limits circulated by the Council provide an opportunity to pull together data which supports the arguments HBWG are making regarding actual and reasonable use and the need for winegrowers to have more water in circumstances where they are intensifying or developing their operations (efficiently).  See the request for information below.
• 26 parties have supported the costs of the Appeal, pledging c$50k.  $33k has been expended getting to where we are at now and further funding will be required.  This is a community led and funded initiative.  If you believe this issue is of importance then please email [email protected] indicating your support.  Contributions are scaled at $20/ha of vineyard, minimum $100.
• HBWG has written to HBRC questioning why they have released these new allocation limits while the Appeal and mediation process is underway.  They have advised they have a duty to implement the plan change.  HBWG Water Advocacy Group is to seek a meeting with HBRC senior managers.
• To support our appeal argument, we required real world examples of the new water allocations and impacts of these on your businesses.  A survey for you to complete is included here.  (Please complete this survey even if you have separately advised HBWG of your allocation changes).

Many of you who are operating on expired consents will have received a letter from HBRC in the last ten days advising you of their interpretation of what your new “actual and reasonable” consent volumes will be.

Attached you will find some background and context to help you in understanding “where to from here”.

Attachments:

• Letter to Members
• Cheat Sheet – Actual and Reasonable Water Use