Measurement and reporting of water takes amendment regulations

The Resource Management (Measuring and Reporting of Water Takes) Regulations 2010 have been amended to introduce a staged timeline requiring holders of consent to take between five and more than 20 litres of water a second to:

• measure their water use every 15 minutes,
• store their records, and
• electronically submit their records to their council every day.

Disclaimer: The information in these web pages is, according to the Ministry for the Environment’s best efforts, accurate at the time of publication and the Ministry makes every reasonable effort to keep it current and accurate. However, users of the information are advised that:

• the information provided does not alter the laws of New Zealand and other official guidelines or requirements
• users should take specific advice from qualified professional people before undertaking any action as a result of information obtained from these web pages
• the Ministry for the Environment does not accept any responsibility or liability whatsoever whether in contract, tort, equity or otherwise for any action taken as a result of reading, or reliance placed on the Ministry for the Environment because of having read any part, or all, of the information in these web pages or for any error, or inadequacy, deficiency, flaw in or omission from the information provided in these web pages
• all references to websites, organisations or people not within the Ministry for the Environment are provided for convenience only and should not be taken as endorsement of those websites or information contained in those websites nor of organisations or people referred to.

While the Regulations established a nationally consistent regime for measuring water use they were relatively permissive in terms of reporting water use to the relevant regional council. In addition, the Regulations allowed for a range of methods of reporting, and these records could be in either hard copy or electronic formats. In practice, reporting ranged from hand-written records being posted to the council, to excel spreadsheets being e-mailed, to real-time time data being sent electronically directly to councils.

The 2010 Regulations provided for a staged implementation to manage demand for water meters and verification services. The Regulations came into effect for water takes of 20 litres per second or more in November 2012, for takes from 10 up to 20 litres per second in November 2014, and for takes from 5 up to 10 litres per second in November 2016.

In 2016 the Regulations were amended to require water consent holders for every consumptive consented water take over 5 litres per second to:

• have an appropriate measuring device (almost always a water meter) installed
• have the measuring device independently verified by an accredited company (usually an irrigation engineering firm) to ensure the water meter is calibrated to meet the accuracy requirements in the Regulations, and
• provide a continuous record of water use data to their regional council. This data must be provided at least annually in hard copy or electronic formats.

Despite the amendment there is in many cases a lack of accurate data for the actual amount taken for many resource use consents. The data supplied to councils has been of poor and irregular quality, which limits how useful it can be. These data quality issues have been identified by the Auditor-General and through the Environmental Reporting Programme.

The 2020 amendments introduce stricter regular measuring and reporting requirements to address these issues.

The regulations apply to holders of water permits (resource consents) which allow freshwater to be taken at a rate of 5 litres/second or more - see Regulation 4 [New Zealand Legislation website]. This means that the regulations do not apply to:

• people who do not require a resource consent for their water take (permitted takes), including:
• individual households or businesses that take water from a reticulated supply
• takes that are specifically permitted in section 14 of the RMA including takes for an individual’s domestic purposes, for animals’ drinking water, or for fire-fighting
• any takes which are permitted by a rule in a regional plan
• holders of permits for water takes that only allow water to be taken at a rate of less than 5 litres/second.

The regulations also do not apply to:

• holders of permits for non-consumptive takes (irrespective of the rate of that take), which are described in the regulations as takes where the same amount of water is returned to the same water body at or near the location from which it was taken; and there is no significant delay between the taking and returning of the water
• holders of permits for takes of coastal or geothermal water.

The regulations take effect on 3 September 2020.

To make compliance easier, the Regulations apply in a staged approach, applying to consent holders with larger water takes first.

If you have a resource use consent to take over 5 litres a second, you will need to install a water meter that is capable of measuring your water use every 15 minutes every day as specified in the key timelines section. This information must then be sent to the council that issued the consent.

The minimum requirements in the Regulations do override less stringent consent conditions on consents to take water covered by the Regulations (note: this override occurs from the date that the Regulations first apply to a consent).

The Regulations specify that holders of consents that take between:

• five and 10L/s must comply with these requirements six years after the Regulations come into force
• more than 10 and less than 20L/s must comply with these requirements four years after the Regulations come into force
• 20L/s or more must comply with these requirements two years after the Regulations come into force.

The regulations are monitored and enforced by regional councils.

Regulations apply without needing to change or impose consent conditions

The regulations have been made under section 360(1)(d) of the Resource Management Act (RMA) [New Zealand legislation website]. An important feature of regulations made under this part of the RMA is that they apply directly to holders of qualifying water permits. This is different to regulations made under section 43 of the RMA (national environmental standards), where minimum requirements need to be reflected in consent conditions.

This means that the regulations do not require regional councils to:

• review the conditions of consents granted before 10 November 2010
• impose conditions on new or replacement consents granted on or after 10 November 2010.

However, conditions must be imposed to give effect to more stringent requirements, or to impose any requirements on water takes not covered by these regulations.

Relationship to less or more stringent requirements

Regulation 12 [New Zealand legislation website] sets out the relationship between the regulation, and other requirements outside of the regulations (eg, a requirement to measure water taken that is already on a consent by way of an existing condition).

This relationship is that:

• the minimum requirements in the regulations do override less stringent consent conditions on water permits covered by the regulations (note: this override occurs from the date that the regulations first apply to a permit. Because the override occurs automatically from that date, the regulations do not require regional councils to review consents to remove less stringent conditions)
• the minimum requirements do not override more stringent requirements.

For the avoidance of doubt, the regulations also do not prevent regional councils from:

• imposing more stringent measurement and/or reporting requirements on future permits covered by these regulations
• imposing any measuring or reporting requirements, including more or less stringent requirements than those in these regulations, on water takes not covered by the regulations (eg, non-consumptive takes, takes of geothermal or coastal water, or takes of freshwater of less than 5 litres/second).

Relationship between Regulation 8 and other reporting requirements

Regulation 8 [New Zealand Legislation website] requires consent holders to provide records to the regional council by 31 July, covering the period 1 July – 30 June (or part thereof), (see ‘Reporting’). These requirements are additional to any other reporting requirements imposed as a condition of consent by a regional council.

For the purposes of the regulations, all water take permit holders need to understand their rate of take in litres per second (litres/second). Knowing this rate is important for two reasons:

1. The regulations only apply to water take consents that enable the taking of 5 litres/second or more (see ‘Who the regulations apply to’)
2. The transition period that applies for certain permit holders is dependent on the maximum rate of take, in litres/second, allowed by a condition of that consent (see ‘When the regulations take effect’).

Regulation 5 [New Zealand Legislation website] provides direction for permit holders on how to determine this rate for the purposes of the regulations. Because there is considerable variation in how consent conditions setting maximum rates of take are worded, this direction covers a range of potential scenarios including:

• Where a consent specifies a rate in litres/second
• Where a consent does not specify a rate in litres/second

Where a consent specifies a rate in litres/second

Many water take consents specify a maximum allowable rate of take in litres/second. For example:

The rate at which water is taken from Acme Creek, shall not exceed 23 litres per second.

Sometimes consents may have additional rates too. For example:

The rate at which water is taken from Acme Creek, shall not exceed 23 litres per second, with a volume not exceeding 1,987 cubic metres per day.

In either case, the rate for the purposes of the regulations is simply the rate stated in litres/second – other rates (such as the daily rate in the second example) should be ignored for the purpose of the regulations.

So for both of these examples, the rate for the purpose of the regulations is 23 litres/second, which means that:

• the regulations do apply (see Regulation 4(1))

Some consents include more than one rate in litres/second – for example, a rate in summer and a different rate in winter. In these cases, the greatest of these rates applies for the purpose of these regulations.

Where a consent does not specify any rate in litres/second

Some consents (usually consents for groundwater takes) do not include a maximum rate of take in litres/second, but rather they specify a maximum volume that may be taken over a longer period, such as a daily, weekly or even annual rate. Many of these consents have two or more such ‘alternative’ rates.

For these consents, each of the alternative rates needs to be converted into a litre/second rate – if there is more than one alternative rate, then after conversion, the greatest of those rates applies for the purposes of the regulations.

The standard conversion formula for converting alternative rates into a litre/second rate is shown below:

Remember, if the consent includes an ‘alternative rate’ and also a rate in litres/second, no conversion is necessary – the stated litres/second rate always applies for the purposes of the regulations.

Other possible scenarios include permits:

• that do not specify any rate at all (unlimited takes): these permits are to be treated as if they specify a rate of 20 litres/second (for the purposes of the regulations)
• that specify only a rate that is not a fixed number (for example, a consent to take river water up to a specified percentage of total river flow): these permits are also to be treated as if they specify a rate of 20 litres/second (for the purposes of the regulations)
• to take a certain number of 'head' or 'sluice-head' (generally these are old mining privileges): the regulations direct that a "head" or "sluice-head" means 28.3 litres/second (eg, a mining privilege allowing 2 head of water to be taken means it allows 56.6 litres/second to be taken, for the purpose of the regulations).

The minimum requirements cover:

How records are kept

These requirements are set out in Regulation 6(1) – 6(5). They state how measurements shall be collated into ‘records’, and how those records shall be kept.

It is important to understand the difference between ‘measurements’ and ‘records’, for the purposes of the regulations:

Measurements

Are the individual data outputs from water measuring devices or systems. These data outputs usually occur at regular intervals (eg, every 15 minutes). Each data output reflects the volume of water taken during that specific interval.

The regulations require that measurements of water taken are ‘continuous’, but they do not prescribe a minimum time period (interval) between individual measurements.

Records

Are the aggregate total of all measurements over a particular period of time.

In the regulations, the period over which records must be kept is daily, though the regulation 9 allows regional councils with the unlimited discretion to approve the keeping of weekly, rather than daily records (see ‘Local flexibility’).

For water measuring devices or systems fitted with an automated device to keep records (such as a datalogger or telemetry unit), this requirement is met by configuring that device to record 15-minute (or weekly) volumes taken.

Daily records measuring 15-minute periods must be provided to the regional council no later than the end of the next day, or by any deadline specified by the regional council. In cases where the regional council is satisfied that it is reasonably impracticable for the permit holder to supply daily records the regional council may set an agreed deadline. Councils have the discretion to agree a different time period for the reporting of the 15 minute records if satisfied that it is reasonably impracticable for the permit holder to comply with the reporting requirements because of limitations in cellular mobile networks where the recorded measurements are made.

On days (or weeks, if approved) where no water is taken, the records must specify the volume of water taken as zero cubic metres. This ensures that records are continuous, and by eliminating gaps in the annual record, it also avoids any perception that incomplete records have been provided. The requirement to specify zero during periods when no water is taken is another factor to consider when configuring automated means of keeping records.

Records must also be kept in an electronic format that is auditable, in the opinion of the regional council. In general terms, this means that permit holders will need to keep archives of original records in case of loss, damage or errors found during later auditing that may need original data to be checked. Regional councils may offer more specific direction on how to keep records in a manner that satisfies this requirement.

General guidance is available to help water users manage their data.

Specific water measuring device/system requirements

These requirements are set out in Regulation 6(6). They relate to the actual water measuring device or system that is used to create ‘the records’.

The water measuring device or system must:

Verification

In the context of these regulations, verification means the checking of a water measuring device or system to make sure it is accurately measuring water taken (for information on accuracy requirements see ‘Specific water measuring device/system requirements’).

The verification requirements are set out in Regulation 7 [New Zealand Legislation website]. These requirements cover who can carry out a verification, and how often verifications must be carried out.

Who can carry out a verification: Verification must be also carried out by someone who, in the opinion of the regional council that granted the permit, is a suitably qualified person.

Note: to provide an optional resource for regional councils to decide who is ‘suitably qualified’, and to encourage national consistency, nation-wide certification and accreditation programs have been developed for verification providers (see 'Water Measurement and Reporting Quality Assurance Program').

How often verification is required: an initial verification must be conducted, followed by subsequent verifications at least every five years.

The initial verification must be conducted before the end of the permit’s first water year. Note that Regulation 3 [New Zealand Legislation website] defines a ‘water year’ as a period during the term of the permit—

• starting on 1 July or, for the permit’s first water year, starting on the first day on which these regulations apply to the permit; and
• ending on the next 30 June or, for the permit’s last water year, ending on the last day on which these regulations apply to the permit.

The latest that the initial verification could occur is 30 June in the first water year, but it could occur at any time before that date - even before the regulations first apply to the permit. Irrespective of when the verification occurred, it must have been carried out by a person that, in the opinion of the council, was suitably qualified.

So, for example:

After that first water year ends, subsequent verifications must occur, so that at any time during later ‘water years’, the measuring device or system must always have been verified by a suitably qualified person sometime within the 5-year period ending when that water year ends.

It should be noted that if the initial verification occurred before the first water year of the permit, this will bring forward when the next verification is required.

Finally, note that councils can request evidence that the regulations have been appropriately verified.

Reporting

These requirements are set out in Regulation 8 [New Zealand Legislation website].

Permit holders must provide daily records measuring 15 minute periods must be provided to the regional council no later than the end of the next day, or by any deadline specified by the regional council. In cases were the regional council is satisfied that it is reasonably impracticable for the permit holder to supply daily records the regional council may set an agreed deadline. This requirement applies for the life of the permit, beginning from the date that the regulations first apply to a permit.

Records must be provided no later than one month after the end of the water year. As the ‘water year’ is defined in Regulation 3 [New Zealand Legislation website]as ending on 30 June, records must therefore be provided to the regional council sometime in the following month (ie, and no later than the following 31 July).

Each annual record must also comply with all of the minimum requirements as set out in Regulation 6 [New Zealand Legislation website].

Separate to the requirement to report annual records, the regional council may request evidence of verification, and permit holders must provide this evidence as soon as practicable. For this reason, it is important that permit holders obtain a certificate or some other form of evidence from their verifier, and that this evidence is kept for future reference.

In relation to both the annual records and also the evidence, this shall be provided in writing to the regional council – unless the regional council has requested that the permit holder provides those records or that evidence in electronic form. Regional councils may have their own format preferences (eg, they may be able to provide you with a pre-formatted spreadsheet). If not, an example of a standardised reporting template is included in the guidance document.

Regulations 9 and 10 [New Zealand Legislation website] enable regional councils to apply discretion for two requirements.

The regulations do not limit the discretion of regional councils – approvals may be granted, or refused, for any reason.

If the regional council does grant an approval in respect of either requirement, it must provide written notice to the consent holder, and that written notice must specify the period for which the approval is granted (eg, ‘until the expiry date of this permit’).

If the approval is granted for an alternative location for the water measuring device or system, this must also be done by a written notice specifying the location at which the device or system is installed. That location must be, in the opinion of the regional council, as near as practicable to the point where water is taken.

Approvals under regulation 7A(5) must be granted each year.

Using consent conditions to grant approvals under the regulations

The regulations are not directive about the form that the written approval needs to take. It is expected that approvals would generally be provided via a letter from the regional council to the consent holder for that purpose. However, it is possible that regional councils may wish to include approvals within consent conditions.

Some existing consents granted before 10 November 2010 allow the keeping of weekly records, and/or specify a location for the device or system that is not at the point of take. These pre-existing conditions do not constitute an automatic approval from the regional council.

In this circumstance:

• if the regional council is willing to grant an approval, this needs to be separately confirmed in writing (consistent with the requirements for written approvals outlined above)
• if the regional council does not wish to grant an approval, there is no formal regulatory requirement to advise the consent holder of this. However, it would be best practice for that regional council to contact consent holders in these circumstances to clarify the change in requirements (as of the date that compliance is required).

For consents granted after 10 November 2010, it is possible to grant approvals in consent conditions. This could be achieved in an advisory note which meets the relevant minimum requirements in either Regulation 9 or 10 [New Zealand Legislation website].

Revoking approvals

Regulation 11 [New Zealand Legislation website] enables regional councils to revoke approvals under Regulation 9 and/or 10 [New Zealand Legislation website]. The only justification for revoking an approval is if, in the council’s opinion, the approval was granted on the basis of incorrect information provided by the permit holder.

Because there are limited grounds for revoking an approval, regional councils need to give due consideration to the implications of granting an approval. If there is good reason not to grant an approval, then it should be refused, or alternatively, granted for a short period to indicate to the permit holder that the approval may not be extended to the full duration of the permit.

Any decision to revoke an approval must be formalised by way of a written notice that specifies when the approval is revoked.

Note: if the regional council’s approval was provided via consent condition (and advisory note), a formal review of the consent may be required to facilitate that revocation. Approval given under regulation 7A cannot be revoked under the regulations, as it only applies yearly.

For more information contact your local council, see Council maps and websites [LGNZ website]