And it sets a precedent likely to affect water rules throughout the country.
The status of trout and salmon has been devalued by the Environment Court decision setting minimum flows in an Otago river, in what is being viewed by environmental management experts as a precedent-setting ruling.
The decision, contained in a ruling that sets minimum flows for the Lindis River near Wanaka, puts a higher priority on protecting native fish from what it refers to as introduced predators (trout).
It observes that too high a minimum river flow increases trout access to tributaries, which could devastate the native fish population.
Graeme Martin, a former Otago Regional Council chief executive who has been advising farmers on the issue, says the decision has national implications.
“This decision goes way beyond the Lindis decision. This decision goes way beyond Otago.”
Fish and Game Otago is appealing against the decision.
It wants clarification on what it calls several errors of law relating to the protection of trout and salmon habitat.
Following several years of hearings to set minimum flows in the Lindis River, the Environment Court last month sided with the Lindis Catchment Group and set a minimum flow of 550 litres a second, which will allow users to take 1640 l/sec.
There is currently no minimum flow for the river but the new levels will generate higher flows for 18km of the river for 92% of the irrigation season.
The council and Fish and Game wanted a minimum flow of 900l/sec and a primary allocation of 1200l/sec.
The court said 550l/sec allows for more efficient water use and will achieve the objectives of the council’s water plan and the national policy statement on fresh water.
Martin says the ruling questions the previously held status of trout and salmon.
He believes it is the first time the court has ranked indigenous fish above trout and salmon, which is consistent with the existing national policy statement.
“That is probably why Fish and Game has appealed, that is my speculation, but what we are seeing is the judge applying the national policy statement.”
Evidence heard by the court is that the river has five native fish species and that distribution of the native Clutha flathead galaxias is severely limited by the presence of predatory trout.
The commissioners described the number of overseas anglers using the Lindis River as vanishingly small and noted that should the minimum flow increase too greatly brown trout will have greater access to native fish in tributaries, potentially eliminating the population.
Otago Fish and Game chief executive Ian Hadland said the court applied the wrong legal tests regarding the value of trout and salmonids under the Resource Management Act.
“This appeal is focused primarily on seeking clarity on aspects of the judgment that have potential for national application, not simply for the Lindis River context.”
There are 25 farms covering 88,000ha in the Lindis catchment, a mix of high-country stations and seven intensive breeding or finishing farms.
Combined, they irrigate about 5000ha but farmers are not seeking to extend that area.
In addition to supporting a minimum river flow the farmers will install bores alongside the river to access ground instead of surface water and replace border dyke systems with spray irrigation.
Alexandra farmer and Otago Water Resource Users Group member Gary Kelliher says provided the appeal is not up upheld the ruling will assist other water user groups as the court made its decision based on science, data and common sense.
Kelliher, who was last month elected to the council, says the decision also shows the Otago Water Plan can be operative when used as intended and each catchment must be treated individually rather than a one-size-fits-all regime proposed by the Government’s Essential Freshwater reforms.
The council has had issues implementing its water plan, especially for rivers where water has been allocated under historic mining privileges.
Earlier this year Environment Minister David Parker appointed the Professor Peter Skelton to investigate whether the council is on track to adequately manage and allocate freshwater resources.
His report has been delayed, partly by the Lindis River case.