A regional council will be warned if it does not respect a water conservation order to which it could be forced. David Williams reports.
An environmental organization is set to threaten legal action over a leaked report suggesting the Canterbury Regional Council is not monitoring or properly enforcing legal rules on the Rakaia River.
As Newsroom revealed last month, the regional council, ECan, has been accused of hiding the damning scientific report, which contains evidence that the national river water conservation ordinance is being violated and that consent limits for water withdrawal have been exceeded.
Water conservation decrees, numbering 15 across the country, preserve and protect the exceptional amenity or intrinsic values ââof water bodies. For the Rakaia, this is partially achieved by setting minimum monthly flows and water withdrawal rules.
Rakaia’s ordinance, originally made in 1988, was changed by the government in 2013 so that TrustPower could store water in Coleridge Lake, where it has a hydroelectric system. This âstoredâ water would then be released into irrigators, the most important of which is Central Plains Water.
(This regime affects the Rakaia because the water diverted into the lake would otherwise flow into the river.)
Environmental Defense Society chief executive Gary Taylor said his organization commissioned a legal analysis of ECan’s unpublished report which shows that “there have been violations of the Conservation Order of the water “and that” no enforcement action was taken when it should have been “.
âThe legal position is pretty clear,â Taylor says. âThere have been violations of the water conservation order, and the regional council has a duty to respect the terms of these orders. These are water conservation orders of national importance, delegated to the regional council to supervise, and in this case they do not have [upheld the terms] or at least they didn’t to the extent necessary.
The Auckland-based environmental group shared the analysis – produced by Auckland-based environmental law firm Berry Simons – with Fish & Game. The ancestor of the statutory body, the acclimatization societies, requested the water conservation order (OMD) on the Rakaia in the 1980s.
Taylor says he will now write to the regional council.
âECan has the discretion to act or not to act, but has not and, in our opinion, should have in the circumstances. We will point it out to them.
“We’re going to ask them what they plan to do, and if they don’t take action, we’ll ask our board for approval to take action.”
The model that could be used, if the EDS board approves a lawsuit, is the environmental tribunal’s statement that it requested to remove thousands of tonnes of hazardous substances from a former paper mill on the banks of the Mataura River in Southland. Taylor notes that any proceedings concerning the Rakaia would be “coupled with coercive action.”
ECan’s scientific director, Dr Tim Davie, said in an emailed statement that the area council had not yet received a letter from EDS, but was happy to discuss with the environmental group “how we can work with partners to ensure better respect for the MDG â.
âThe Rakaia river system (both the river itself and the water use) is very complex, which is why we have an ongoing project to develop tools to better understand the system and verify the compliance. “
Davie’s response needs some explanation – something aided by the details of the leaked report, dated May of this year.
Work on the report began in April 2018. It involved modeling the complex regime of the river and, after more than two years of work, this was done in a document of over 200 pages.
Part of the initial project brief was to check whether the water withdrawal permits and the water conservation order were being followed, and senior hydrologist scientist Wilco Terink found evidence that they were not. . This seems to be a major sticking point for board managers. The report also raises questions about the effectiveness of ECan as a regulator.
Two months ago, in response to a request for official information, copies of the âdraftâ Rakaia report were sent to selected parties. Fishing advocacy groups were concerned about a noticeable decrease in the once mighty river caused by, it was suspected, too much water being withdrawn.
But the circulated “draft” was a sanitized version, with the summary, conclusions and recommendations of the May report deleted.
A crucial detail removed was that in 2014, ECan, through a law firm, advised Trustpower to seek a declaration from the environmental tribunal to verify that a new operating regime planned for in the Coleridge Lake was in compliance with the Water Conservation Order. (The regime, known as warehouse water, hypothetically “stores” water below the operating range of Coleridge Lake.)
The power company went ahead and implemented the scheme without asking for the declaration – and ECan went no further. For years, the regional council did not verify whether the scheme complied with the 2013 amendment to the decree.
That work was done, years later, for the leaked report, written by Terink, who resigned earlier this year. “It can be concluded that the calculations underlying this concept do not meet the conditions set out in the amendment,” said the report.
Likewise, the Rakaia report revealed that ECan had not previously verified whether Central Plains Water’s âalternative strategyâ for water intake, adopted in 2015, complied with consents. The company “exceeds its agreed rates,” according to the Terink report. Mark Pizey, chief executive of Central Plains, told Newsroom last month that the “draft” report needed additional work to ensure the accuracy of the data modeling.
Someone who received the sanitized report in October was Bill Southward, who lives in Rakaia Huts. Last month he accused ECan of cover-up. “What they found out they didn’t like.”
The withholding of information from the public has also stirred Fish & Game National President Ray Grubb of WÄnaka, who said ECan should disclose all material he has, and does not have, on the Rakaia.
âTheir job is to enforce this water conservation ordinance. Complete stop. They must be able to produce proof at all times that the water conservation order is being applied correctly. “
There shouldn’t be any hidden material or redaction by ECan, Grubb says. “They should just provide it – it’s the law.”
It shouldn’t be for outside groups or the courts to determine whether ECan is doing its job, he says.
“Here we have a generation and it looks like this water conservation order is being disgraced.” -Gary Taylor
ECan’s chief scientist for surface water, Helen Shaw, told Newsroom last month that the Rakaia report template was ‘checked and updated’ – even though it had been subject to internal review and external. Enforcement action would be taken if violations were found, she said.
As Shaw explained, a statute of limitations only allows action to be taken within 12 months âfrom the time we reasonably should have become aware that an offense has been committedâ. The data in the Rakaia report is now several years old.
Asked for further comment, Trustpower chief production officer Stephen Fraser reiterated that the NZX-listed company was working with ECan to provide the information and data needed to “inform a full report.”
In a cut-and-paste of last month’s statement, Fraser said, “All of our licensed water intakes are measured and we are confident that our operations comply with our terms of resource consent.”
It is questionable why Trustpower has to provide information and data to ECan. The deleted report said that at one point, area council did not know how much water was entering or flowing Coleridge Lake, or the level of the lake. In one of his drafted recommendations, Terink suggested that council install its own flow loggers at the lake in order to have direct access to the data.
That this hasn’t happened already might shock independent commissioners who have heard Trustpower’s proposed change to the water conservation ordinance.
At the time, they were told that the flows in and out of the lake should be carefully monitored and recorded. The regional council said it could develop, together with the power company, “a rigorous web-based management regime.”
Grubb, the chairman of Fish & Game, acknowledges ECan’s assertion that the Rakaia report is not finished, but says there are question marks about the council’s lack of knowledge about levies and water flows.
âIn fact, we have to go back to the original intention of the water conservation decree and ask ourselves whether it is being administered correctly or not. “
Taylor of the Environmental Defense Society can speak authoritatively about the original intent of the order – he attended the hearings in the 1980s, as did Simon Berry, the lawyer who provided the recent legal analysis.
“It’s a bit personal, in a way, that we’re here a generation and it looks like this water conservation order is being disgraced in the breach,” Taylor said.
He describes the situation as “a glaring misstep”, given the council’s legal responsibilities to enforce the order. It is certain, based on the advice, that there are grounds for legal action.
âIt is a question of knowing if the regional council wants to intervene and exercise its responsibilities or if we must do it.