Regional council accused of washing its hands of enforcing a water conservation order. David Williams reports
Eleven months after it promised to do so, Canterbury’s Regional Council has filed papers in the Environment Court regarding the Rakaia River’s protection.
The regulator isn’t attempting to enforce a water conservation order, however. Rather, the council, ECan, is asking the court whether, in the eyes of the law, it’s responsible for enforcing it.
It seems quite late in the piece, considering the order has been in place since 1988, and interesting timing considering replacement legislation for the Resource Management Act is progressing through Parliament.
READ MORE: * A year on, what has ECan done about the Rakaia * Big irrigator’s water takes ‘potentially non-compliant’
The application for declarations, filed on February 15, follows a series of stories by Newsroom about a leaked, unpublished report by one of the council’s senior scientists suggesting the river’s water conservation order (WCO) was being breached, and consented water-takes exceeded.
A WCO is like national park status for a river, protecting its outstanding characteristics and features. The Rakaia’s has been in place since 1988, with an amendment in 2013 allowing Trustpower (now Manawa Energy) to store water in Lake Coleridge, where it has a hydroelectric power scheme, for irrigation.
Stored water in Coleridge is a key part of the Environment Court declaration.
ECan has said there’s anecdotal and scientific evidence to suggest the river, particularly the lower reaches, are “suffering”, and the order “is not achieving what it was designed to achieve”.
The unpublished report, by senior hydrological scientist and data analyst Wilco Terink, who subsequently left ECan, provides some answers as to why.
With 15 WCOs on New Zealand rivers, the Environment Court case, which has been put on a fast-track, will likely set a precedent.
Already ECan’s application is drawing criticism from environmental groups.
“They’re [ECan] trying to limit their responsibilities to some precise, narrow bands of responsibility, instead of accepting that they should take responsibility for the water conservation order in the round,” says Gary Taylor, chief executive of Environmental Defence Society.
Rasmus Gabrielsson, chief executive of the North Canterbury Fish and Game Council, says it’s difficult to understand ECan’s view it doesn’t have any responsibility for monitoring “values identified in the WCO or enforcing the WCO’s provisions”.
“This position has only surfaced in the last two years as far as we are aware – since the release of the draft of the [Terink] water balance report.”
EDS and Fish & Game were key players in establishing the Rakaia WCO in the 1980s. They’re named by ECan as respondents in the Environment Court case.
Manawa Energy, also a respondent, says a declaration to provide clarity on this “potential issue” would be helpful.
“We are supportive of the process and have worked with ECan on the questions that have been put before the court,” head of corporate relations Paul Ford said via email.
We put a series of questions to ECan on Friday, and sent it some of Taylor’s critical comments.
ECan chief executive Stefanie Rixecker said in an emailed statement: “The council welcomes clarification as to its roles and responsibilities regarding the WCO and the Rakaia River, and anticipates that the outcome of the declaratory proceedings will provide that clarity.
“However, as the matter is now before the Environment Court, it is not appropriate for the council to respond to your specific questions regarding the outcomes for the Rakaia River, the framing of the declaratory proceedings or the question of stored water.”
“If ECan doesn't have overall responsibility for the water conservation order on its river then who does?” – Gary Taylor
In some ways, this month’s Environment Court filing seems to back one aspect of the Terink report – that ECan has been flying blind.
ECan’s court application sets out the council must ensure regional plans, permits, and consents are consistent with the WCO, and it must monitor the effectiveness and efficiency of policies, rules, and consents.
However, ECan wants the court to declare it has “no statutory duty to enforce” the WCO provisions, and its functions don’t extend to “directly monitoring compliance with, gathering information on, and keeping records under the WCO”.
The implication is it doesn’t directly monitor, gather information or keep records.
The Terink report noted the council was shut out of real-time water meter data, and the data itself was poor, making consent compliance checks “very difficult if not impossible”.
Fundamentally, you can’t enforce what you don’t measure.
The other part of the Environment Court application is about Manawa’s stored water regime at Lake Coleridge.
ECan wants the court to declare the WCO: enables water to be stored below the lake’s minimum operating range; doesn’t prescribe a maximum volume of stored water in Lake Coleridge; and doesn’t require stored water to be stored separately from other lake water.
We asked ECan if it now approves of Manawa’s stored water regime, but Rixecker chose not to answer.
Asked why filing papers has taken so long, Taylor says of ECan: “They were just slow. It’s landed now so we’re underway, which is good.”
It’s not a joint declaration, either – something mooted in March last year.
“We didn’t like the way that they had framed the questions, in the negative, just from the technical legal process point of view,” Taylor says. “We’ll be framing our own questions.”
While EDS’s legal team is still working on its submissions, Taylor picks two themes.
Manawa is the body undertaking monitoring and collecting data at Lake Coleridge – data that’s not transparently available to the public, Taylor says, and, in some cases, not even the regional council. That makes Manawa “the substitute regional council”, he says, and the situation “is essentially privatising that resource”.
The other theme is fundamental: “If ECan doesn't have overall responsibility for the water conservation order on its river then who does? It just has to be a nonsense that they can wiggle their way out of that responsibility by taking a narrow interpretation of the Resource Management Act.”
Gabrielsson, of Fish & Game, confirms it will seek additional declarations.
“We will also eventually supply more evidence to ensure the proposed context for the proceedings is laid out, as ECan’s evidence does not do that yet. In particular ECan’s evidence does not address the widespread perception of declines in river health.”
The regional council has been responsible for managing the Rakaia for more than three decades. Throughout, Gabrielsson says, the river has been identified as having outstanding in-stream values and characteristics through the WCO – including fisheries, wildlife habitats, natural character and recreational amenity.
“Yet there is a dearth of monitoring information on trends in river health despite very significant changes in catchment land and water use, with maximisation of water takes for irrigation and widespread agricultural intensification.”
The regional council isn’t exactly shouting from the rooftops about the court application.
It didn’t issue a press statement saying it had filed papers in the Environment Court. Newsroom only found out because we asked EDS for an update.
ECan has flip-flopped, somewhat, on the findings of the unpublished report by Terink, who left in frustration after managers wanted to remove contentious findings, and the report became mired in a cycle of reviews.
In July 2021, before Newsroom brought it to public attention, the report’s findings were used as partial justification for terminating three unexercised water consents.
Soon after, ECan released a sanitised draft of the report to fishing groups, with the executive summary, conclusions and recommendations removed.
Then, in April last year, ECan tried to disown the report.
The council has certainly been in no hurry to file declarations.
In 2014, ECan’s lawyers Wynn Williams advised Trustpower to seek a declaration over its Lake Coleridge operating system, known as warehouse stored water – which “stores” water below the lake’s mandated operating range.
Trustpower didn’t seek a declaration, and implemented the regime anyway. At a meeting in August 2021, ECan repeated its position a declaration was needed. Trustpower reiterated it didn’t think one was necessary.
In March last year, EDS announced in a newsletter it had agreed in principle, jointly with ECan and Fish & Game, to seek a declaration.
“EDS and Fish & Game believe the regional council has allowed breaches of the national water conservation order to occur,” the newsletter said.
The Environment Court is scheduled to hold a judicial conference on the declarations in early April. One question which might be asked is: How will this application improve the health of the Rakaia River?
After all, in proceedings being pursued by a water regulator, what is more important?
