Submission date: 27 October 2017

The Legislative Basis for the New Zealand Conservation Authority submission.

1. The New Zealand Conservation Authority (NZCA) was established under the Conservation Act 1987.

2. The NZCA has a range of powers and functions, under the Conservation Act 1987, as well as under other conservation related legislation. Under the Conservation Act, Section 6C (2) (c), the NZCA has the power to “advocate the interests of the Authority at any public forum or in any statutory planning process.”

3. The Act sets out the Functions of the Department of Conservation which include: “To preserve so far as is practicable all indigenous freshwater fisheries, and protect recreational freshwater fisheries and freshwater fish habitats” (Section 6(ab)).

4. One of the NZCA’s statutory functions is to approve conservation management strategies and conservation management plans, and review and amend such strategies and plans. They constitute the key management documents for directing conservation effort and resources in New Zealand. Many of these documents have objectives, policies and outcomes relating to the conservation of fresh water habitats and fresh water fisheries.

5. Another function of the NZCA is to investigate any nature conservation or other conservation matters it considers are of national importance and to advise the Minister or the Director- General of Conservation, as appropriate. The NZCA sees the protection and management of fresh waterbodies to be a conservation matter of national importance and has consistently identified fresh water ecosystem restoration, management and protection as one of its strategic priorities.

6. Following the logic of the above powers and functions, the NZCA submitted in support of the application for a Water Conservation Order over the Ngaruroro and Clive Rivers.

NZCA Advocacy for fresh water protection.

7. The NZCA has taken a close interest in fresh water issues in New Zealand over at least the last decade including publishing a report in 2011 on “Protecting New Zealand’s Rivers”.

8. The NZCA’s current advocacy on fresh water issues recognises and reflects the widespread public concern about water and the biodiversity therein (notably whitebait and long-fin eel). The NZCA recognises the high significance New Zealanders place on “healthy” rivers, wetlands, lakes and estuaries; these places are an inherent part of being a New Zealander.

9. As indicated above, fresh water bodies are a significant feature of Conservation Management Strategies. These 10-year planning documents developed and amended, based on submissions from a wide spectrum of the New Zealand community, set out how conservation priorities and assets are to be managed.

10. Media reports over the last two decades have, to a large degree, concentrated on the deterioration of water quality and water quantity issues in lowland water bodies, where land-use intensification has had the greatest impact. The NZCA believes a wider perspective on freshwater issues should be adopted that takes into account conservation concerns and the upper reaches of waterways (many of which are located within land areas administered by the Department of Conservation).

11. Accordingly, the NZCA perspective on fresh water covers: • The requirement for a “headwaters to sea” integrated approach (including estuaries and immediately affected inshore marine environments).

• Emphasis on the diverse range of freshwater ecosystem types (rivers, streams, lakes, hydrologically connected groundwater, spring- fed streams, wetlands, estuaries, coastal lakes).
• Healthy fresh water ecosystems (maintaining the diversity of in-stream habitat types, riparian margins, natural flow regimes, a high standard of water quality).
• Preservation of indigenous fish species.
• Protection of indigenous aquatic flora and fauna (additional to fish species), as part of the food web.
• Recognition of the ecosystem services public conservation land provides to fresh water ecosystems beyond the boundary of such lands.
• The public accessibility of fresh water resources.
• Public health issues associated with degraded water quality.
• Permanent protection of fresh water bodies.

13. In relation to the last point – permanent protection of fresh water bodies - the NZCA’s 2011 report on “Protecting New Zealand’s Rivers” specifically addresses Water Conservation Orders (WCOs). A copy of the full report is attached as part of this Evidence. The use and effectiveness of WCOs are discussed in Sections 4 & 5. The 19 recommendations from the report are summarised in Section 7 (Enhancing River Protection NZCA recommendations). Recommendations 13 to 17 relate to Water Conservation Orders (WCOs). The “Rivers” report - the various points of discussion and recommendations - has helped inform the NZCA evidence for the Hearing today.

General:

14. The New Zealand Conservation Authority (NZCA) supports the making of a Water Conservation Order on the Ngaruroro and Clive Rivers.

15. The NZCA views WCOs to be an appropriate statutory planning mechanism for the conservation of rivers in New Zealand

a) with outstanding amenity or intrinsic values of waters in their natural state; and’

b) where waters are no longer in their natural state, the amenity or intrinsic values of such waters warrant protection because they are outstanding.

16. In reaching this view, the NZCA has taken into account the evidence provided by the applicants that the upper part of the Ngaruroro River, above the Whanawhana Cableway has outstanding amenity and intrinsic values, while the braided river systems in the remainder of the Ngaruroro and Clive Rivers have amenity and intrinsic values which warrant protection¹.

17. The NZCA makes the point that WCOs are a national planning instrument. Therefore, where a water body has outstanding values, it provides a more secure long-term protection mechanism than within a Regional Plan under the RMA, which are reviewed and subject to change every 10 years. A WCO has a much higher level of protection and cannot be changed easily based on a whim of local body politicians.

18. Regional Plans offer no guarantees for the consistent and permanent protection of water bodies, in comparison to WCOs.

19. The NZCA has good reason to be sceptical of the collaborative approach to water management to address conservation related matters. This doubt is based on its engagement with the Land & Water Forum and observing progress to date in implementing the National Framework for Freshwater Management in enacting limits, especially where there are high levels of vested interest and economic consequences for some (such as those who have contributed to water quality deterioration). We note too that industry groups generally have far greater resources at their disposal, compared to environmental groups, to advocate for a particular outcome.

20. The current TANK process may well establish scientific bottom-lines to guide water allocation but, given that the regional council has already over-allocated the available water, we do not believe the outcomes of the TANK process will lead to better allocations of water, to suit both environmental and industry groups, or that the timeframe for doing so will be acceptable in relation to the pressures on indigenous biodiversity whose habitat is provided by the Ngaruroro and Clive Rivers.

The Applicants:

21. The NZCA notes the application has been made jointly by five independent groups and has been a cooperative approach. This is significant and adds strength to the application in that it recognises and provides for all the matters provided for in Section 199 (2) of the RMA.

Water conservation orders

199 Purpose of water conservation orders

(1) Notwithstanding anything to the contrary in Part 2, the purpose of a water conservation order is to recognise and sustain—

(a) outstanding amenity or intrinsic values which are afforded by waters in their natural state:

(b) where waters are no longer in their natural state, the amenity or intrinsic values of those waters which in themselves warrant protection because they are considered outstanding.

(2) A water conservation order may provide for any of the following:

(a) the preservation as far as possible in its natural state of any water body that is considered to be outstanding:

(b) the protection of characteristics which any water body has or contributes to, and which are considered to be outstanding, —

(i) as a habitat for terrestrial or aquatic organisms:

(ii) as a fishery:

(iii) for its wild, scenic, or other natural characteristics:

(iv) for scientific and ecological values:

(v) for recreational, historical, spiritual, or cultural purposes:

(c) the protection of characteristics which any water body has or contributes to, and which are considered to be of outstanding significance in accordance with tikanga Maori.

22. The application is therefore holistic, ecosystem based and ensures any WCO which may be made will mean the amenity and intrinsic values will be managed in an integrated way, rather than in an ad hoc fashion or single value as has been common in the past. The NZCA is of the view that this approach provides an important step forward for the Rivers and local community.

WCO history:

23. The NZCA is mindful of the history and evolution of WCOs.

24. Up to the point when the Water and Soil Conservation Amendment Act 1981 (also known as the Wild and Scenic Rivers Amendment) was enacted, New Zealand’s rivers were under increasing development pressure. Rivers were seen from an “engineering “ perspective only – i.e. available for exploitation for all manner of uses, treated as a means of disposing of waste and all manner of contaminants, managed and modified by mechanical means to ensure water travelled as quickly as possible to sea without flooding adjacent productive land. They were not managed from an ecological perspective. Instream habitats were often destroyed by repeated mechanical manipulation of channels and gravel. In-stream values and other intrinsic values were not regarded to be of significance. The 1981 Amendment was designed to “re-balance” the nation’s narrow approach to managing our rivers.

25. WCOs, under the Amendment Act, were designed to promote conservation values of waterbodies, rather than economic values. The purpose of WCOs has largely carried forward to the RMA.

26. Leading up to the passing of the legislation and following its enactment it was envisaged a list of nationally significant rivers of potential candidates for WCO would be identified. In 1982 the National Water and Soil Conservation Organisation published their report:
A Draft for a National Inventory of Wild and Scenic Rivers – Part 1 – Nationally Important Rivers. Water and Soil Miscellaneous Publication No. 42.

27. This report set out three lists of rivers and other fresh water bodies.

List A – consists of rivers clearly having outstanding wild scenic, recreational or other natural characteristics, based on the available information.

List B – contains those which may have outstanding characteristics, but which on the information available could not be confidently included in List A.

List C – consists of rivers which do not have sufficient information to show there are outstanding natural characteristics (which is not to say they do not have worthwhile intrinsic values).

28. The NZCA notes that the Ngaruroro River was on List B of the report and was on the minds of people nominating candidates for the National Inventory in 1982. Widespread protection of New Zealand rivers via WCOs was the objective at the time. This was a national policy initiative, with nationally important rivers listed.

29. Since then 15 Applications for WCOs have been made and granted, with various conditions, but not within any Government driven policy national framework, as originally intended in 1982.

30. Since the enactment of the Amendment, and particularly from the early 1990’s, onwards New Zealand’s waterbodies have come under more pressure from development and, in particular, land-use change and intensification.

31. The consequences of these pressures are that New Zealand fresh water ecosystems have suffered through abstraction of water for irrigation, declining water quality, loss of habitat quality and quantity, declining native fish populations, and declining habitats of river dependent and associated bird life.

32. The NZCA would argue, that without the existing WCOs, New Zealand’s waterbodies would overall be in an even worse state than they are currently.

33. The NZCA is cognisant of opposition to the WCO shown by water users on the Heretaunga plains, in spite of the evidence WCOs are in place on a number of rivers where there are also highly successful agricultural economies. This includes the Mohaka River in northern Hawke’s Bay, the Rangitikei River in the Manawatu, many of the braided rives in Canterbury, and the Mataura River in Southland.

34. Concern about the state of New Zealand’s freshwater bodies has been to the forefront of public concern for at least three decades now. The National Policy Statement (NPS) for Freshwater is attempting to put some protection in place but current policy around maintaining and improving degraded water bodies will be in the “several decades” time frame. The NPS freshwater is based on an ecosystem health approach, but the national bottom lines for many contaminants are not considered to be adequate to protect human and ecosystem health. Some contaminants (e.g. phosphorus and sediment) do not have national bottom lines. Limit setting for contaminant levels and water abstraction quantities and rates within catchments is a logical next step.

35. Given this background, the application for a WCO over the Ngaruroro and Clive Rivers at this time is entirely appropriate. In the NZCA’s view the Application is seeking the protection of outstanding amenity and intrinsic values and the setting of necessary environmental limits for the health of the ecosystem and conservation of the river system now, rather than waiting for the NPS Freshwater Policy outcomes which, based on progress to date in other districts/regions will be decades away. With such delays, there will undoubtedly be further losses of outstanding amenity and intrinsic values, if the WCO is not granted and the NPS for Freshwater is the only planning tool to be relied on.

36. The NZCA also believes the application for the WCO should be viewed by the panel as being complementary and of great assistance to the NPS freshwater process for the Ngaruroro and Clive rivers.

River Flow regimes:

37. River Flow regimes drive the amenity and intrinsic values of rivers and in particular the function and structure of freshwater ecosystems. Section 200 of the RMA recognises this by enabling restrictions or prohibitions to be put in place around all parameters of a fresh water body’s flows when a WCO is made.

Section 200 Meaning of water conservation order

In this Act, the term water conservation order means an order made under section 214 for any of the purposes set out in section 199 and that imposes restrictions or prohibitions on the exercise of regional councils’ powers under paragraphs (e) and (f) of section 30(1) (as they relate to water) including, in particular, restrictions or prohibitions relating to—

(a) the quantity, quality, rate of flow, or level of the water body; and

(b) the maximum and minimum levels or flow or range of levels or flows, or the rate of change of levels or flows to be sought or permitted for the water body; and

(c) the maximum allocation for abstraction or maximum contaminant loading consistent with the purposes of the order; and

(d) the ranges of temperature and pressure in a water body.

37. The NZCA urges the Panel to give full consideration to the flow regime of the Ngaruroro and Clive Rivers in making the WCO. Ecosystem values are not only determined by minimum flows as has been the approach in the past. Mean and median flows help define ecosystem productivity and ecosystem health as do the number, frequency, duration and peak flows of floods and freshes.

38. Consideration of the flow regime also needs to take in to account the effects of ground water abstraction from unconfined aquifers. Depending on the degree of aquifer connection to the river, ground water abstractions result in stream depletion and can have a significant impact on river low flows. The following paper:

Hunt, B (1999): Unsteady Stream depletion from Ground water pumping. Groundwater Vol 37, No 1

and some of the more recent updates, is now the basis for determining the effects of pumping on stream flows and for defining water policy.

39. The NZCA acknowledges the TANK process being run by the Hawkes Bay Regional Council, to determine flow regimes and allocations within the main rivers of Hawkes Bay including the Ngaruroro River. At the very least in the making of a WCO all minimum flow analysis should be based on the natural occurring mean annual flow (7 day) of the river along its whole length. The naturally occurring mean annual low flow should include all surface and hydraulically connected ground water takes.

River Habitats:

40. The NZCA notes sections of the Ngaruroro River are braided. In contrast to the South Island, braided rivers are rare in the North Island, providing further justification for a WCO to protect these habitats (some of which are unique).

Native Fishery:

41. The evidence filed by the Department of Conservation (DOC) provides detail about the conservation status of the native fish species within the Ngaruroro and Clive river systems, as far as is known. It also describes how the status of various species has declined over time. The NZCA agrees with the evidence supplied by DOC and that the permanent protection afforded the river ecosystem by a WCO will enhance the prospects of the identified native species being sustained.

42. The NZCA emphasises that in the making of the WCO any flow regime conditions must reflect the fish passage requirements of all fish within the river systems. Fish passage from the headwaters to the ocean, including into and out of tributaries at all times, is fundamental to the sustainability of fisheries, but especially for species which are anadromous.

River Dependent Birds:

43. The DOC evidence details the conservation status of native bird species that are dependent on the Ngaruroro and Clive river systems for all or part of their live cycles. It also describes how the status of the various species has declined over time. The NZCA adopts the evidence of the DOC. The NCZA is of the view that the making of a WCO will provide permanent protection to the ecosystem and thereby enhance the sustainability of these native species.

CONCLUSION

44. Due to the national distinctiveness of the ecosystems, habitat and biodiversity values of the Ngaruroro and Clive Rivers the NZCA supports the making of a Water Conservation Order.

45. A WCO provides a more appropriate protection mechanism for long term permanent protection of these rivers’ amenity and conservation values than under the 10-year Regional Plans under the RMA. Furthermore, these is good evidence from elsewhere in New Zealand that WCOs add considerable value to Regional Council planning processes and need not be in conflict with the inter-generational use of water resources for economic purposes.

46. An ecologically based flow regime should be an integral part of the WCO and this should include the hydraulically connected groundwater resource, when minimum flows are being set.

 

¹ http://www.epa.govt.nz/Resource-management/wco/the-application/Pages/Application-documents.aspx