A regional council will be warned that if it won’t uphold a water conservation order, it might be forced to do so. David Williams reports.
An environmental organisation is set to threaten legal action over a leaked report suggesting Canterbury’s regional council isn’t adequately monitoring or enforcing legal rules on the Rakaia River.
As revealed by Newsroom last month, the regional council, ECan, has been accused of hiding the damning scientific report, which contains evidence the river’s national water conservation order is being breached, and consent limits for taking water are being exceeded.
Water conservation orders, of which there are 15 across the country, preserve and protect the outstanding amenity or intrinsic values of water bodies. For the Rakaia, this is partially achieved by setting monthly minimum flows, and rules for water-takes.
The Rakaia’s order, originally made in 1988, was amended by the Government in 2013 so TrustPower could store water in Lake Coleridge, where it has a hydroelectric power scheme. That “stored” water would then be released to irrigators, the biggest of which is Central Plains Water.
(This regime affects the Rakaia because water diverted into the lake would otherwise flow into the river.)
Environmental Defence Society chief executive Gary Taylor says his organisation commissioned a legal analysis of the unpublished ECan report which shows “there have been breaches of the water conservation order”, and “no enforcement action was taken when it should have been”.
“The legal position is quite clear,” Taylor says. “There have been breaches of the water conservation order, and the regional council has a duty to uphold the terms of those orders. They are nationally important water conservation orders, delegated to regional council to oversee, and in this case they haven’t [upheld the terms] or at least they haven’t to the extent necessary.”
The Auckland-based environmental group has shared the analysis – produced by Auckland firm Berry Simons, which specialises in environmental law – with Fish & Game. The statutory body’s forerunner, acclimatisation societies, applied for the water conservation order (WCO) on the Rakaia in the 1980s.
Taylor says it will now write to the regional council.
“ECan has a discretion whether to act or not but didn’t, and, in our view, should have in the circumstances. We’re going to point that out to them.
“We’re going to ask what they’re intending to do, and if they won’t act then we will seek approval from our board to act.”
The template likely to be used, should the EDS board approve legal action, is the Environment Court declaration it sought for removing thousands of tonnes of hazardous substances from an old paper mill on the banks of the Mataura River, in Southland. Taylor notes any proceeding over the Rakaia would be “coupled with enforcement action”.
ECan science director Dr Tim Davie said in an emailed statement the regional council was yet to receive a letter from EDS but was happy to discuss with the environmental group “how we can work together with partners to better enforce the WCO”.
“The Rakaia river system (both the river itself and the water use) is highly complex, hence we have an ongoing project to develop tools to better understand the system and check compliance.”
Davie’s response needs some explaining – something helped by details in the leaked report, dated May of this year.
Work on the report began in April 2018. The point was to model the river’s complex regime and, after more than two years of work, that’s what was done in a document stretching to more than 200 pages.
Part of the project’s original brief was to check if water-take consents and the water conservation order were being complied with, and senior hydrological scientist Wilco Terink found evidence they were not. That seems a major sticking point for the council’s managers. The report also raises questions over ECan’s efficacy as a regulator.
Two months ago, in response to a request for official information, copies of the “draft” Rakaia report were sent to select parties. Fishing advocacy groups were worried about a noticeable diminishment of the once-powerful river caused by, it was suspected, too much water being taken.
But the circulated “draft” was a sanitised version, with the May report’s executive summary, conclusions and recommendations removed.
A crucial detail excised was that in 2014, ECan, through a law firm, advised Trustpower to seek an Environment Court declaration to check a planned new operating regime at Lake Coleridge complied with the water conservation order. (The regime, known as warehouse stored water, hypothetically “stores” water below Lake Coleridge’s operating range.)
The power company went ahead and implemented the regime without seeking the declaration – and ECan didn’t take it any further. For years, the regional council didn’t check if the regime was consistent with the order’s 2013 amendment.
That work was done, years later, for the leaked report, authored by Terink, who resigned earlier this year. “It can be concluded that calculations behind this concept do not meet the conditions set out in the amendment,” the report said.
Similarly, the Rakaia report revealed ECan hadn’t previously verified if Central Plains Water’s “alternative strategy” for taking water, adopted in 2015, complied with consents. The company “exceeds it consented rates”, the Terink report said. Mark Pizey, chief executive of Central Plains, told Newsroom last month the “draft” report needed further work to ensure the data modelling was accurate.
Someone who received the sanitised report in October was Bill Southward, who lives at Rakaia Huts. Last month he accused ECan of a cover-up. “What they found out they didn’t like.”
The withholding of information from the public has also agitated Fish & Game’s national chairman Ray Grubb, of Wānaka, who says ECan should disclose all material it has, and doesn’t have, on the Rakaia.
“Their job is to enforce that water conservation order. Full stop. They have to be able to produce the evidence at any given time that the water conservation order is being operated correctly.”
There shouldn’t be any hidden material or redactions by ECan, Grubb says. “They should simply provide it – it’s the law.”
It shouldn’t be up to external groups, or the courts, to establish if ECan is doing its job, he says.
“Here we are a generation on and it appears as if that water conservation order is being dishonoured.” – Gary Taylor
ECan surface water science manager Helen Shaw told Newsroom last month the Rakaia report model was being “verified and updated” – even though it had undergone an internal and external review. Enforcement action would be taken if breaches were found, she said.
As Shaw explained it, a statute of limitations only allows action to be taken within 12 months “of when we should have reasonably become aware an offence took place”. Data in the Rakaia report is now several years old.
Asked for fresh comment, Trustpower’s general manager of generation, Stephen Fraser, reiterated the NZX-listed company is working with ECan to provide information and data needed to “inform a complete report”.
In a cut-and-paste of last month’s statement, Fraser said: “All of our consented water takes are measured, and we are confident that our operations are compliant with our resource consent conditions.”
One might ask why Trustpower needs to provide information and data to ECan. The suppressed report said at any given time the regional council didn’t know how much water was entering or flowing from Lake Coleridge, or the lake’s level. In one of his redacted recommendations, Terink suggested the council install its own flow recorders at the lake so it had direct access to the data.
The fact this hasn’t happened already might shock the independent commissioners who heard Trustpower’s proposed variation to the water conservation order.
At the time, they were told flows in and out of the lake would have to be carefully monitored and recorded. The regional council said it could develop, with the power company, “a rigorous and web-based management regime”.
Grubb, the Fish & Game chairman, acknowledges ECan’s contention the Rakaia report isn’t finished but says there are question marks over the council’s lack of knowledge about water takes and flows.
“We actually have to go back to the original intent of the water conservation order and ask whether or not it’s being administered correctly.”
Taylor, of the Environmental Defence Society, can speak authoritatively about the order’s original intent – he attended the hearings in the 1980s, as did Simon Berry, the lawyer who provided the recent legal analysis.
“This is a little bit personal, in a way, that here we are a generation on and it appears as if that water conservation order is being dishonoured in the breach,” Taylor says.
He describes the situation as “an egregious misstep”, given the council’s legal responsibilities to uphold the order. He’s sure, from the advice, there are grounds for legal action.
“It’s a question of whether the regional council wants to step in and exercise its responsibilities or whether we need to do it.”
