The Conservation Authority

November 2011 Protecting New Zealand’s Rivers 2

This report may be cited as: New Zealand Conservation Authority. 2011: Protecting New Zealand’s Rivers. New Zealand Conservation Authority, Wellington. 68 Pages November 2011 ISBN: 978-0-478-14918-0

Photo: Tawhai Falls, River. Crown Copyright: Department of Conservation Te Papa Atawhai, Photographer: Helen Mitchell. 3

Foreword

Rivers have special intrinsic values This discussion paper is the NZCA’s that are being incrementally lost. advice to the Minister of Conservation The New Zealand Conservation and is designed to generate public Authority (NZCA) believes action discussion on the future of New should be taken to reverse this trend. Zealand’s rivers. Existing statutory agencies have a The NZCA can be contacted at range of tools available to better [email protected] or: protect rivers. Some of these tools New Zealand Conservation Authority would be more effective if they were PO Box 10 420 refined, and there was greater national Wellington 6143 direction for their implementation. Protecting New Zealand’s Rivers 01

Foreword Contents Executive summary 03 - Context 03 - What is the problem? 03 - What is needed? 04

01 Introduction 05 02 State of our rivers 07 - Overview of New Zealand rivers 07 - DOC statutory advocacy 09 - River physical processes 10 and functioning - Water quantity (flows) 11 - Water quality 11 - Indigenous freshwater 12 biodiversity - Societal values 13 - Māori values 13 - Recreation 14 - Hydro-electricity 14 generation and irrigation - History of river protection 15 - NZCA conclusions 15

03 Protecting rivers using 17 conservation legislation - Conservation legislation 17 - National Parks Act 1980 18 - Reserves Act 1977 18 - Conservation Act 1987 18 - Freshwater Fisheries 19 Regulations 1983 - River-specific legislation 19 - Protection and management 19 of Crown riverbeds - Protection of land 20 alongside rivers - NZCA conclusions 20 Protecting New Zealand’s Rivers 02

04 Water conservation 21 - National policy statements 37 Appendix 1: Freshwater 50 orders - Maintaining indigenous 37 management bodies and - History of WCOs 22 biodiversity their responsibilities - Purpose of WCOs 23 - National environmental 38 Appendix 2: Statutory 52 - “Natural state” 24 standards mechanisms for protecting rivers - “Outstanding” 24 - Regional plans as a 39 protection tool - Statutory effects of a WCO 25 Appendix 3: Water 58 - Protecting water quality 40 conservation orders: - Process for initiating a 25 relevant sections from WCO (outside Canterbury) - RMA co-ordination with 40 conservation legislation the Resource Management - Revocation of or 26 Act 1991 amendments to WCOs - Methods for assessing 40 (outside Canterbury) the values of rivers Appendix 4: process for 59 water conservation orders - WCOs in Canterbury 26 - Collaborative processes 41 (outside Canterbury) - NZCA conclusions 27 - NZCA conclusions 41 Appendix 5: Water 60 05 The use and 29 07 Enhancing river 43 conservation orders effectiveness of WCOs protection NZCA (as at April 2011) - Protection of representative 30 recommendations Appendix 6: New Zealand 66 habitats and ecosystems - Protect outstanding rivers 43 Conservation Authority - Past protection initiatives 30 - Establish a network of 43 freshwater principles - Identifying outstanding rivers 31 protected rivers - Enhancing regional planning 31 - Ensure water management 43 properly reflects the - Funding and cost of the 32 conservation status of application process conservation land and - Length and robustness 33 the rivers within it of process - Indigenous biodiversity 44 - Permanency of protection 33 - Protect Crown riverbeds 44 - Enhancement of outstanding 34 - Mechanisms in 44 characteristics cannot be conservation legislation considered - Retain WCOs and improve 45 - Land use and water quality 34 their use - NZCA conclusions 34 - Improve river management 45 under the RMA 06 Other RMA tools for 35 river protection and Glossary 47 their efficacy References 48 - Sustainable management 35 Appendices 50 includes “protection” of natural and physical resources 03

Context energy continues to grow, which means more rivers could be modified Executive New Zealand is strongly influenced to enable hydro-electricity, whether by rivers. They are central to the by damming or by diverting water identity of many New Zealanders and out of a river. The Government aims summary are highly valued for their scenic to have 90 per cent of our electricity and recreational qualities, as well generation sourced from renewable as their economic potential. sources by 2025. New Zealand has many rivers, great Water quality in major rivers has and small, and an apparent abundance declined since 1989, largely attributable of fresh water is conveyed by them to increased agricultural intensification, from the mountains to the sea. Our and the development of farming that is freshwater biodiversity is unique; dependent on a reliable supply of water 92 per cent of our freshwater fish in naturally dry areas. species are endemic to New Zealand. Declining flows and water quality Rivers are inherently difficult to can adversely affect river health manage owing to their dynamic and biodiversity values. Some rivers character, length, size of catchment and streams are now unsuitable and diversity of values, as well as for fishing and swimming, and as the many agencies involved in land, a source of mahinga kai (food). water and fisheries management. Important values and interests in The Resource Management Act fresh water are not being adequately 1991 (RMA) provides the primary protected in National Policy legislative mechanism for the Statements and regional plans, management of rivers and the water despite recent calls for this to happen; within them. Water conservation particularly from the Land and Water orders (WCOs) are the major RMA Forum (2010). Examples of these tool for river protection. values and interests are the natural Rivers within public conservation land character of rivers, recreational are perceived to be protected, but use and enjoyment, or the needs the water within them usually is not. of indigenous biodiversity and future generations. What is the problem? Retired Environment Court Judge All is not well with New Zealand’s David Sheppard summed up the rivers and there is increasing public situation as follows: concern about their state. “Freshwater is being managed National demand for fresh water in in many valuable ways to enable New Zealand almost doubled in the people and communities to provide decade between 2000 and 2010, for for their social, economic and uses such as irrigation, domestic water cultural wellbeing and for their supply and manufacturing. Demand for health and safety. Protecting New Zealand’s Rivers 04

All is not well with New Zealand’s rivers and there is increasing public concern about their state.

“But there are important respects in rivers. The set of selected rivers should characteristics (including which the management of freshwater be genuinely protected in perpetuity biodiversity, landscape, cultural, is still not conforming to the elements in their natural state and should recreational, amenity) to identify of safeguarding the life-supporting include rivers with outstanding priorities for protection capacity of water and associated ecological, landscape, scenic, q More effort to ensure that management ecosystems; is still not safeguarding recreational, amenity and cultural mechanisms, including those under the potential of freshwater resources to characteristics and values. the RMA and protected area statutes, meet future needs; and is not avoiding, The NZCA does not seek to protect adequately provide for the protection remedying or significantly remedying all rivers everywhere. The challenge is of freshwater biodiversity from the adverse effects on the environment. to provide for all interests somewhere adverse effects of activities on “There are shortfalls in the imperatives and then to respect the decisions that land and in water 2 that are classified as having national have been made and not subsequently qAmendment to the RMA 1991 to importance; in particular those of seek to negate or modify those decisions by later relitigation. allow regional councils to use preserving the natural character of moratoria (similar to those in the water bodies; of protecting significant The NZCA specifically seeks: Environment Canterbury (Improved indigenous vegetation and significant q Government commitment to the Water Management and Temporary habitats of indigenous fauna; and of protection of rivers Commissioners) Act 2010) to pause providing for Māori traditional cultural consent applications while a river’s relationship with their ancestral q Specific responsibility and resourcing in-stream values are assessed, water and taonga (things or places for achieving such protection allocated flow regimes developed or reviewed, of great value). to one government agency and plans amended; and for water “Although there have been many q A comprehensive, national strategic allocation limits in plans to be fixed advances, after a couple of decades approach to secure protection of qExploration of opportunities to better the management of freshwater does both outstanding rivers in their natural state and a representative protect rivers within protected areas, not yet qualify as sustainable in some including giving national park status 1 range of rivers catchments and some respects.” to rivers including their water within q A stocktake of the extent of river national park boundaries What is needed? protection to provide baseline information, track progress towards q The management of Crown riverbeds The New Zealand Conservation the protection of a representative with conservation values to protect Authority (NZCA) considers that range of rivers, and determine where those values a suite of measures are needed additional protection is needed qEnhancement of the use, application to address the problem. q The preparation of a national and effectiveness of WCOs by The outcome sought is comprehensive inventory of outstanding rivers relatively small changes to protection for a representative range of and rivers with outstanding legislation and policy.

1 Sheppard David F (October 2010). 2 New Zealand Biodiversity Strategy Objective 2.1 01 05

Introduction SECTION SUMMARY

q5IF/FX;FBMBOE q5IFVTF EFWFMPQNFOU Conservation Authority and protection of rivers is (NZCA) can investigate governed by the Resource and report on any nature Management Act 1991. conservation matter of q3JWFST BOEUIFGSFTI national importance. water within them, have q3JWFSTBSFQPPSMZQSPUFDUFE multiple values and are in New Zealand. Even where coming under increasing they appear to be protected pressure for a wide range of because they are within uses, both extractive and land administered for non-extractive. How best conservation purposes, such to provide for the often as national parks, the water conflicting demands of itself is seldom protected. these values is challenging.

Background review of the New Zealand Biodiversity Strategy New Zealand is a country strongly influenced by rivers: they are q Concern about delays in national significant landscape features and guidance for the sustainable shape our environment. New Zealand’s management of rivers freshwater biodiversity is unique with q Legislative changes to the water a high number of endemic species. conservation order (WCO) regime Rivers generate much of our electricity in Canterbury and provide water for community purposes and irrigated agriculture. q The release of the 2010 Land They are highly valued for recreation and Water Forum report making and for their mauri (life force), and recommendations for freshwater also simply for their own sake. management The catalysts for this paper were: The use, development and protection of natural resources including rivers is Increasing public concern about q governed by the Resource Management water quality and the state of Act 1991 (RMA). Sustainable New Zealand’s rivers 3 management in terms of the RMA q A desire to see progress on the requires managing the use, development recommendations from the 2005 and protection of natural resources

3 Hughey et al. (2009). Protecting New Zealand’s Rivers 06

New Zealand is a country strongly influenced by rivers: they are significant landscape features and shape our environment.

including rivers. WCOs, the RMA’s major biodiversity, recreation, cultural, q “To encourage and participate in tool for protecting outstanding water and other conservation values, and educational and publicity activities bodies, cover only 13 rivers or parts of current demand pressures on rivers. for the purposes of bringing about rivers and two lakes. The NZCA is also aware of the a better understanding of nature 5 While headwater catchments and importance of public access to conservation in New Zealand”. mountain streams are well represented waterways and is familiar with the within public conservation land, public discussion that preceded the few middle and lower reaches are establishment of the Walking Access protected. New Zealand lacks a Commission and the Commission’s representative network of protected work to improve access. River rivers and freshwater biodiversity protection requires effective control continues to decline. of pest fish and aquatic weeds but biosecurity issues are beyond the The NZCA considers that rivers have scope of the paper. suffered from decision-makers putting greater emphasis on the use and development aspects of sustainable About the New Zealand management, with limited attention Conservation Authority to the protection aspect. The NZCA is a statutory body established by section 6A of the Purpose and scope Conservation Act 1987 with This paper’s purpose is to assist public responsibility to advise the Minister discussion and policy development of Conservation and Director-General around improved river management, of Conservation on conservation 4 by reviewing protection mechanisms matters. The NZCA has prepared this for rivers in their natural state that paper under its statutory functions: have outstanding amenity or intrinsic q “To investigate any nature values, and recommending ways these conservation or other conservation can be improved and strengthened. matters the NZCA considers are of The NZCA recognises the importance national importance, and to advise of lakes, wetlands and groundwater. the Minister or the Director-General, This paper restricts itself to a as appropriate, on such matters”; discussion of rivers because of their and

4 The Minister of Conservation appoints Authority members on the nomination or recommendation of four specified bodies (four members), after consultation with three specified Ministers of the Crown (five members) and after the receipt of public nominations (four members). This process ensures that a wide range of perspectives contribute to the advice provided and decisions made by the NZCA. 5 Conservation Act 1987 section 6B(1)(d)) and section 6B(1)(g). 02 07

State of SECTION SUMMARY

q5IJTTFDUJPOQSFTFOUTBO q5IFSFWJFXPGUIF our rivers overview of New Zealand New Zealand Biodiversity rivers, natural river Strategy noted a “serious processes and functioning, decline” in the quality of Māori and societal values, many freshwater systems. indigenous freshwater This decline is adversely biodiversity, public affecting biodiversity values perceptions and some of the and the full range of services use pressures. The protection that can be derived from of rivers is discussed in rivers. sections 3 to 6. q%FTQJUFBHFOFSBMSFEVDUJPO q3JWFSTBSFJOIFSFOUMZEJбDVMU in point-source discharges to manage, owing to their from sewage and industry dynamic character, length, over recent decades, water size of catchment area, and quality in major rivers diversity of values, as well has declined since 1989. as the many interest groups Increasing agricultural and agencies associated with intensification and diffuse land, water and fisheries (non-point) discharges and management. Some parts nutrients associated with of rivers or specific values increased stocking rates and (riverbeds, land adjoining fertiliser use are the main rivers, wildlife, fish) may be contributors to this decline. protected through statute, q/BUJPOBMBMMPDBUJPOPGGSFTI while other aspects of the water almost doubled in same river, such as flows, the decade between 2000 are not. and 2010, predominantly for increased irrigation.

Overview of New Zealand rivers mahinga kai (food) and their mauri (life force) is fundamental to Māori culture. Rivers have many values: in-stream Abstractive uses include community (includes ecological and intrinsic values); landscape, scenic and natural and stock water supply, and irrigation. characteristics; amenity, and recreation Rivers are also used to generate (such as swimming, angling, rafting and electricity, for which they are dammed kayaking). Rivers are a source of or have portions of their flow diverted, Protecting New Zealand’s Rivers 08

and for disposal of waste water. land status, but affected in different rivers are owned by the adjacent land parts by the activities permitted on owners to the centre line. The legal New Zealand has more than 70 major status of the beds of large rivers is river systems (30 in the or alongside the river. complex. For rivers that meet the test and 40 in the ) and The quality and quantity of water of “navigable”, riverbeds are, for the numerous other streams and delivered to the coast by a river system most part, classified as unoccupied watercourses. Half of New Zealand’s directly influences coastal water quality Crown land nominally administered 425,000 kilometres of rivers and and sedimentation processes. by Land Information New Zealand streams are small headwater streams.6 (LINZ) but for flood and sediment New Zealand rivers have some unusual Management of rivers as drainage management purposes, are managed characteristics: they are short and systems is pervasive. Habitat by regional councils. Rivers are steep, and many carry large sediment destruction has resulted, and led to not managed for conservation loads. New Zealand rivers are highly wholesale change in lowland rivers. purposes even where they adjoin variable in flow, and have very large This practice remains ongoing today. public conservation land. floods in proportion to their catchment area owing to the country’s latitude, climate and mountainous relief. New Zealand also has a large proportion of The quality and quantity of the international stock of braided rivers; these contain specially adapted biota. water delivered to the coast The protection of our backcountry (originally for water and soil protection by a river system directly rather than for public use or biodiversity) means that high water influences coastal water quality quality is largely maintained there. This provides public benefit by supplying clean water and by diluting Few sizable freshwater catchments exist Management of rivers is shared amongst the much poorer water quality resulting entirely within public conservation land, several agencies. Protection requires from intensive land use on farms aside from some rivers on the South a level of co-ordination between them, and in cities further downstream. Island’s west coast. but this is apparently neither sought nor achieved. Of New Zealand’s total length of Fresh water is administered by regional rivers and streams, 51 per cent lie councils under the RMA. The water The Crown exercises its overall 8 in catchments with predominantly in most rivers running through public control of fresh water largely through the RMA, which delegates natural land cover, such as native conservation land is not protected by river management primarily to bush or alpine rock and tussock. conservation legislation, even though regional councils.9 The RMA is the main The remaining 49 per cent of river the public thinks it is. legislation for managing fresh water length is in catchments that have in New Zealand. Regional councils’ been modified by agriculture (43 per While some upland river and responsibilities for controlling the cent), plantation forestry (5 per cent) streambed areas are included within taking, use, damming, diversion and or urban settlement (1 per cent).7 protected areas, this is seldom the case in lowland areas, partly due to pollution of fresh water (RMA section Each river is an ecological corridor the paucity of protected areas there. 30 (1) (e) and (f)) include the power from its source in mountains or hill to set and decide on flow regimes country to the sea, transcending legal The beds of smaller (non-navigable) and to manage and allocate water

6 www.mfe.govt.nz/environmental-reporting/freshwater/rivers (accessed 26 January 2011). RMA). Exceptions include taking for reasonable domestic needs, for stock water, fire fighting 7 www.mfe.govt.nz/environmental-reporting/freshwater/rivers (accessed 26 January 2011). and takes of geothermal water for use in accordance with tikanga Māori for communal benefit 8 The Water and Soil Conservation Act 1967 (WSCA) vested the sole right to use or pollute of tangata whenua, uses lawfully established before the regional rule came into effect and natural water in the Crown. other established uses permitted by section 20A RMA. Similarly no one may discharge any 9 With limited exceptions, no one can take, use, dam or divert water or take heat or energy contaminant into water, or onto land in circumstances where it may enter water, without from water unless this is expressly allowed by a resource consent or a regional rule (section 14 authorisation by a plan rule or a specific resource consent. Protecting New Zealand’s Rivers 09

and activities in riverbeds. Councils See Appendix 1 for a summary plan and consent processes. Similarly, exercise these powers through of agencies and their freshwater Fish and Game commonly provides preparing regional policy statements management responsibilities. expert evidence for sports fish and (required) and regional plans its habitat. In the absence of DOC In addition to its responsibility for (optional), and by their decisions or Fish and Game advocacy, consent indigenous species, DOC actively on resource consent applications. authorities may make decisions manages freshwater sites (rivers, Activities on the surface of waters without appropriate information, streams, lakes and wetlands) within can be regulated through district public conservation land and as they seldom commission their rules by territorial authorities. advocates protection for significant own evidence on these matters. National direction can be provided freshwater ecosystems outside public DOC has successfully advocated through national policy statements conservation land. These are part of for stronger provisions in plans and and national environmental DOC’s broad functions under section policy statements, and more stringent standards.10 The standards can 6 of the Conservation Act 1987, in consent conditions such as changes relate to water level, flow, quality particular section 6(a), (b) and (d). to minimum flows and mitigation or contaminants (RMA section 43). DOC also has a specific function, packages on consent applications. “to preserve as far as is practicable No government agency has an explicit Examples of negotiated mitigation all indigenous freshwater fisheries responsibility to preserve and protect packages include ongoing funding and protect recreational freshwater rivers as an entity. for Project River Recovery when fisheries and freshwater fish habitats” the Waitaki hydro scheme was Regional councils and territorial (section 6(ab)). The Conservation re-consented in the early 1990s, and authorities, Department of General Policy 2005 identifies the establishment of a blue duck/whio DOC’s priorities when discharging Conservation (DOC), and LINZ have recovery package when the Tongariro these functions. various responsibilities for managing Power Scheme was re-consented. the beds of rivers, commercial Project River Recovery has funded a activities on the surface of rivers, %0$TUBUVUPSZBEWPDBDZ breeding programme and predator and surrounding land areas. LINZ DOC’s RMA advocacy has been control for kakī/black stilt and administers large areas of riverbed, important for achieving the protection extensive riverbed willow and weed and these are not managed for of rivers per its functions under control in the Tekapo and Twizel conservation. DOC manages most section 6(ab), (b) and (d) of the Rivers. Genesis Energy helps fund the indigenous freshwater species Conservation Act. DOC does this Central North Island Blue Duck Trust including whitebait, as well as the through submissions on regional to enhance, protect and promote Taupo sports fishery. The Ministry of policy statements and plans, and blue duck/whio populations. Fisheries (MFish) manages indigenous on resource consent applications species for which there is commercial In recent years Government has for irrigation, hydro generation and take (e.g. eels). Fish and Game required departments to work together other development, and by providing Councils manage sports fish (other for a whole-of-Government approach evidence in WCO hearings. The than Taupo fishery) and game birds. to nationally significant resource Conservation General Policy identifies The Environment Minister and consent applications. The process DOC’s priorities for advocacy outside Ministry for the Environment (MfE) may of developing an integrated position public conservation land and waters. establish national policy and national by multiple agencies (MfE, MAF, the environmental standards affecting Consent authorities typically rely Ministry of Economic Development rivers, which lower levels of government on DOC for expert evidence on (MED), Te Puni Kokiri, and DOC) can have to variously give effect to, not be freshwater habitat values and result in conservation and biodiversity inconsistent with, or have regard to. ecosystem functioning, both for values being de-emphasised in the

10 Mulcahy K, Peart R and Garvan N (2010). Protecting New Zealand’s Rivers 10

negotiated whole-of-Government morphology, sediment transport, on Southland’s Bluecliffs Beach was position. biological habitat, riparian conditions, observed between 1966 and 1972 and flow regime, and water quality. by 1987 the population was estimated The volume of large resource consent at only 0.9 per cent of the 1966 applications has stretched DOC’s Rivers are linear systems connecting population. The cause of the statutory advocacy capacity. It may headwater areas to the coast. This accelerated decline is believed to also divert scientists and technical connectivity allows the movement be erosion of the marine substrate. experts away from freshwater research of organisms, energy and matter This is linked to the reduced river and practical protection and throughout the catchment system. management actions. outflow, and therefore reduced Human activities can change and disrupt sediment load, from the Advocacy for, and expert evidence this system and affect river functioning: into Te Waewae Bay. This occurred about, the protection of ecosystem when water from Lake Manapouri q Land disturbance in a catchment, such services and in-stream values of was diverted from the Waiau River as cultivation, vegetation removal, and regionally and locally significant rivers to Doubtful Sound, through West the introduction of browsing animals, is increasingly being led by Fish and Arm Power station, in 1969.11 Game, voluntary organisations such can accelerate soil erosion and increase as Whitewater New Zealand, Forest rivers’ sediment load. Water temperature is critical to freshwater life. A 10 degree increase and Bird, and interested citizens. Dams and increasing abstraction q in temperature doubles respiration The full load of advocacy work on of water reduce a river’s capacity rates for coldblooded organisms while behalf of the public is beyond the to mobilise sediment. capacity of these groups. reducing the proportion of oxygen in the water. Around 25oC seems to be a critically warm temperature for much No government agency has an freshwater life. Where surface water reaches 25oC for periods during explicit responsibility to preserve summer, several dramatic changes can occur, including accelerated and protect rivers as an entity. growth of algae. Such temperatures are lethal to the freshwater snail Potamopyrgus antipodarium, a significant algal grazer. In the snails’ The existence of DOC’s statutory q Flood control schemes have confined absence, algae grow unchecked.12 functions and priorities does not many kilometres of rivers to defined Some fish and invertebrates have a guarantee that it will advocate on channels, which can accelerate definite preference for water below 16 behalf of a river or its values, or sediment deposition. to 18oC, and are vulnerable if shading that resource or DOC consents q Changes in the delivery of sediment that impact on the river’s natural vegetation is lost from stream banks, to river mouths can affect sediment functioning will not be given. or if water is warmed because of very supply to the coastal environment and low flows, with natural variability have consequences for coastal erosion. River physical processes exacerbated by abstraction. and functioning Reduced outflow of both river water Climate change is likely to further and sediment into the sea may increase pressure on fresh water in Effective river management requires have, as yet poorly understood, most regions east of the main dividing a holistic view of the river system, consequences. A dramatic decline ranges, as these are predicted to including its geology, fluvial in the abundance of adult toheroa become drier with less rainfall overall,

11 Beentjes, M.P. (2010). 12 Savage, L (2005) at p 16. Protecting New Zealand’s Rivers 11

or altered seasonal distribution of Irrigation (46 per cent) and hydro herd increased from 3.4 million to rainfall, and possibly more frequent generation (41 per cent) account for 5.9 million, significantly increasing and severe droughts. This may lead the majority of fresh water allocations, the sources of diffuse pollution. to reduced run off to rivers and with industry, drinking water supply Between 1990 and 2005 the use of decreased aquifer recharge. and stock water accounting for nitrogen fertiliser in New Zealand 6 per cent, 5 per cent and 2 per increased by more than 800 per cent Sea level rise as a result of climate cent, respectively.16 (the highest percentage increase change could increase the salinity in 29 OECD countries). Phosphate of the lower reaches of rivers and Water quality fertiliser use increased by more than aquifers as salt water intrudes 100 per cent (the second highest 13 increasingly further upstream. Water quality in New Zealand, while increase in the OECD).18 generally good by international Water quantity (flows) standards, is declining according to The national sheep flock has declined data from the National Rivers Water from 34.8 million in 1999 to 32.4 Water flow in many rivers is highly Quality Network (NRWQN).17 Trends million in 2009 (and is around half the variable owing to climate (except in NRWQN data between 1989 and all-time peak of 70.3 million in 1982). for lake-, spring- or resurgence-fed 2007 show an overall decline in Beef cattle numbers also have rivers). Many rivers have already water quality across the monitoring declined—from 4.6 million in 1999 to been modified or degraded to some network. In particular there is a 4.1 million in 2009. The number of degree, which means that they are significant increasing trend in nitrogen dairy cows has increased; the most not functioning in a wild state with (as nitrate and nitrite), dissolved dramatic increase has been in the natural water flows. reactive phosphorus and total South Island where the 2.1 million dairy phosphorus levels. cows in 2009 are around seven times For rivers to function in a manner that the number that existed 20 years ago.19 14 fulfils their ecosystem services role Numerous studies have demonstrated and sustain the species dependent the influence of land use on the quality The reduction in beef cattle and on them, they should be managed of fresh water. NRWQN and regional sheep numbers, and any positive consequences for water quality that so that their natural variability of state of environment reporting show this may have had, is outweighed by flow can occur. that diffuse pollution from agricultural the large increase in dairy cattle. In land use is the main cause of water Water allocation for uses such as particular, detrimental effects from quality degradation. Dissolved irrigation, domestic water supply dairy cattle relate to the different nitrogen, phosphorus, faecal and manufacturing nearly doubled behaviour displayed by dairy herds microbes and sediments are the key between 1999 and 2010, highlighting (e.g. twice daily walk to be milked, contaminants from diffuse sources. the increasing demand for water, 15 which may include river crossings) and Animal urine is a source of nitrogen and putting pressure on rivers. the associated intensification of land and agricultural fertilisers are a source use. Dairy cattle tend to be farmed on Surface water (rivers, streams, lakes of both nitrogen and phosphorus. and storage reservoirs) accounts for flat to easy country, and increasingly on Some contaminants associated with most of the fresh water allocated for irrigated, intensively fertilised pastures. point-source sewage and industrial Therefore the most intensive farming is human use in New Zealand. Eighty discharges have reduced over happening close to water sources, and per cent of the volume of fresh water recent decades. in areas of groundwater recharge. allocated by resource consent in 2010, and 32 per cent of consents, came Pastoral farming occupies 40 per cent Time lags in many groundwater from surface water sources (the of New Zealand’s land area. Between systems, where it can take decades remainder came from groundwater). 1990 and 2010 the national dairy cattle for water falling as rain to emerge as

13 Savage, L (2005) at p 7. 17 Davies-Colley R quoted in Proffit F. (undated). The NRWQN network is operated only on larger 14 Ecosystem services refer to a wide range of conditions and processes through which natural rivers. More rapid declines have been noted on smaller rivers in many regions, according to ecosystems, and the species that are part of them, sustain and fulfil life. For example data collected by regional councils. hydrological cycles sustain life and provide the basis of our economy (particularly for sectors 18 Land and Water Forum (September 2009) at p 15. such as agriculture, forestry, fishing and tourism). 19 www.stats.govt.nz/browse_for_stats/industry_sectors/agriculture-horticulture-forestry.aspx 15 www.mfe.govt.nz/freshwater. (accessed May 2011). 16 www.mfe.govt.nz/publications/water/water-allocation-2009-10/page1-html(accessed January 2010). Protecting New Zealand’s Rivers 12

springs into surface waters, means Indigenous freshwater continued decline in their status.24 that recent monitoring results probably biodiversity Despite control measures, freshwater reflect the effects of farming practices weeds have spread in several regions, in the 1960s and 1970s in those New Zealand’s indigenous freshwater often linked to deterioration in water catchments. The full effects of biodiversity is unique: 92 per cent of quality. The review noted a “serious our native freshwater fish species are current land use may not be obvious decline in the quality of many endemic because of our evolutionary in spring-fed streams, lakes and freshwater systems, which is having history isolated from other land masses. wetlands for another 30–40 years.20 negative impacts on biodiversity The New Zealand Biodiversity Strategy values and ecosystem services”.25 Increasing diffuse source pollution (2000) included six objectives for the from intensive land use degrades Structures impeding flows such as management of fresh water, including: rivers’ recreational amenity as well as dams, culverts, fords and weirs can habitat values. During 2003–2009 the q Protect a full range of remaining impact on freshwater habitat, destroy proportion of freshwater sites in annual natural freshwater ecosystems and connectivity, limit access to critical surveys that did not meet the guidelines habitats to conserve indigenous habitats such as spawning areas, and for contact recreation such as swimming freshwater biodiversity, using a significantly affect fish passage. ranged from 40 to 60 per cent.21 range of appropriate mechanisms. Freshwater fish occupy complexes of connected habitats between or through Ensure that management mechanisms, River water quality also affects coastal q which they often need to pass at two including mechanisms under the water quality. The recently completed or more life history phases. Nearly half Resource Management Act and (2000–2010) Integrated Catchment of New Zealand’s native freshwater fish 22 protected area statutes, adequately Management Project , focusing on the are diadromous, spending part of their provide for the protection of Motueka River catchment, showed that life cycle at sea and part in freshwater.26 freshwater biodiversity from the ‘catchment’ effectively extends Studies of indigenous freshwater fish 2 adverse effects of activities on offshore, affecting more than 400 km of distributions in West Coast South Island land and in water. the marine environment of Tasman Bay. rivers and elsewhere show that where Nutrients and sediment originating in The 2005 review of the New Zealand migration is unimpeded, most species rivers can have a direct effect on marine Biodiversity Strategy showed that the have a more or less continuous species. Storm-generated sediment health of our indigenous species and distribution from the lower reaches originating from the upper catchment natural lands and waters continues to to the upstream limits of each species’ interfered with the feeding of scallops, decline. A quarter of New Zealand’s range. Where dams impede fish and appears to be a major contributor indigenous fish species are threatened passage, species richness is lower to the poor performance of the Tasman with extinction. Acutely and chronically above dams, even when effects of Bay scallop resource in recent years.23 threatened freshwater species show a elevation and distance from the sea

Water quality in New Zealand, while generally good by international standards, is declining according to data from the National Rivers Water Quality Network.

20 Proffit F (undated). risk. Endemic galaxiids (Galaxiidae) dominated this group. Four taxa were classified in the highest 21 Around 200 sites across New Zealand are sampled annually and the information collated by threat category, nationally critical, and a further 10 taxa were threatened (nationally endangered MfE. See www.MfE.govt.nz/publications/water/water-quality-trends-1989-2007/html/page4. or nationally vulnerable). Twenty taxa were ranked in the at-risk group with the majority ranked as html. declining. A large proportion of threatened species occur in the Canterbury and Otago regions where 22 Collaborators on this study were Landcare Research, Council, Cawthron a suite of rare non-migratory galaxiids exist. See Allibone R, David B, Hitchmough R, Jellyman D, Ling Institute, SCION, NIWA, GNS, Fish and Game NZ and Otago University. N, Ravenscroft P, Waters J (2010). 23 Landcare Research (December 2010). 25 Green W and Clarkson B (November 2005) at p 21. 24 A 2009 study ranked 34 of 51 (or 67 per cent) of native freshwater fish taxa as threatened or at 26 McDowall R. M. (1992). Protecting New Zealand’s Rivers 13

Public concern about water use and water quality has increased significantly, especially in the last decade.

are considered. Only four27 lakes environmental issue facing New Māori values greater than 10 km2 in area in the Zealand.29 Thirty-two per cent of South Island have unimpeded fish respondents rated water as the top For Māori, water is the essence of all life, akin to the blood of Papatuanuuku passage from them to the sea, environmental issue (ahead of climate (Earth mother) who supports all due to the hydro network. change or biodiversity loss) compared people, plants and wildlife. Māori with just 7 per cent in the 2002 survey. Habitat fragmentation and changes assert their tribal identity in relation According to the 2008 survey, in land use can significantly affect to rivers and particular waterways public perception is that economic freshwater fish populations by both have a role in tribal creation stories. development and intensification of reducing total habitat area and changing Rivers are valued as a source of its configuration. Species that remain some activities, particularly farming mahinga kai, hāngi stones and cultural within habitat fragments are exposed and urban development, are increasing materials, as access routes and a to sub-optimal conditions. As a result pressures on the environment. means of travel, and for their proximity of disproportionate ‘edge effects’, fish Respondents were concerned whether to important wāhi tapu, settlements or habitat can be reduced over a much rivers can accommodate these other historic sites.32 Indicators of the greater distance than the length of pressures while providing for in-stream health of a river system (such as stream that has been directly affected needs such as healthy ecological uncontaminated water and species (by, for example, vegetation clearance).28 functioning, freshwater wildlife, gathered for food, continuity of flow This can cause a decline in adult stocks fishing, kayaking and other activities. from mountain source to the sea) and restrict fish distributions. can provide a tangible representation DOC’s annual surveys track public of its mauri. Societal values awareness and perceived value of conservation30. In the 2010 survey, The relationship between Māori, and Without water, no living thing, human, “preserving natural land and water their culture and traditions, and their plant, fish or animal can survive. habitats” was the third most important ancestral lands, water, sites, wāhi tapu (sacred place) and other taonga is a Public concern about water use conservation issue identified by those matter of national importance under and water quality has increased surveyed (35 per cent, up from 30 per RMA section 6(e), which decision- significantly, especially in the last cent in 2009). The issue rated the makers must recognise and provide decade. In Lincoln University’s 2008 highest in 2007 when the figure was for. Giving effect to the principles of biennial survey of people’s perceptions 37 per cent. The other conservation the Treaty of Waitangi is a requirement of the state of the environment, outcomes respondents valued most of the Conservation Act 1987.33 respondents identified freshwater- highly were “protecting national parks related issues (use, water quality, and reserves” and “protecting native Several notable Waitangi Tribunal water pollution) as the most important plants and animals.”31 claims, such as Whanganui and

27 Lakes Rotoroa (Nelson Lakes), McKerrow, Hauroko and Sumner. 31 Department of Conservation (September 2010) at pp 20–21. 28 Eikaas H S, Harding J S, Kliskey A D and McIntosh A R (2005). 32 Te Runanga O Ngai Tahu (undated) “Freshwater Policy” available on www.ngaitahu.iwi.nz. 29 Hughey K (2008). The survey seeks New Zealanders’ perceptions of all main resource areas 33 Section 4, Conservation Act 1987. and in 2008 included a more specific look at the freshwater environment. The 2008 survey 34 Unwin M (2009)—data relate to the 2007/08 fishing season. sampled 2,000 people, randomly selected, and had a response rate of 40 per cent. 35 SPARC (2008). 30 Department of Conservation (September 2010). Protecting New Zealand’s Rivers 14

Waikato, have sought redress for exist. Such opportunities may result demand for hydro in the North Island Treaty breaches in relation to rivers. from improvement to environmental include a new hydro scheme proposed The Waikato-Tainui Raupatu Claims factors (e.g. better water quality, a for the Motu River (which is currently () Settlement Act 2010 different flow regime or an improved protected by a WCO39) and Bay of Plenty provides redress through a new fishery), technological advances (e.g. Energy’s proposed hydro scheme for the co-governance entity to oversee river new boat designs that can navigate Kaituna River. In the South Island, new management and give effect to a vision previously inaccessible rivers), hydro generation proposals have been and strategy to protect the health and enhanced access (by foot, vehicle or consented by the Environment Court on wellbeing of the river for present and air), and improved management (e.g. the Wairau, the Arnold and the Waitaki future generations. provision of boat ramps or the removal North Bank, while the Mokihinui and of restrictions). The issue associated Nevis hydro proposals are under appeal Recreation with potential value is to avoid to the Environment Court. New irrigation precluding future opportunities. schemes (sometimes combined with Recreational use of rivers encompasses hydro generation) are proposed for Consent authorities have a statutory a wide range of activities, including Hurunui (resource consents lodged), role to consider recreation under both water-based recreation (‘wet’ Waiau (under investigation), section 7 of the RMA, where those activities) and land-based activities Waimakariri (appeal to Environment exercising the functions and powers (‘dry’ activities). Water-based Court), rivers (Central Plains of the RMA must have particular recreation includes swimming, Water/Ashburton Community Water regard to (amongst other things) the boat-based activities (especially jet Trust take consented), / boating, waka ama, kayaking and maintenance and enhancement of Rakaia (under investigation, which rafting), and biota-based recreation amenity values, and the maintenance would also require amendment to (fishing and whitebaiting). Land-based and enhancement of the quality of the Rakaia WCO), and Hunter Downs activities vary from passive recreation the environment.36 on the Waitaki (consented).40 to walking the dog and playing with children. The maintenance and Hydro-electricity generation Investment in large-scale irrigation schemes is being encouraged by enhancement of public access to and and irrigation along rivers is a matter of national Government. The 2011 Budget allocated importance under RMA section 6(d). Rivers have long been a resource used $35 million over five years for the Irrigation for both hydro-electricity generation Acceleration Fund to support the The use of rivers for recreation is difficult (since 1886)37 and irrigation. The development of irrigation infrastructure to quantify. A lack of data precludes Government has a target of 90 per proposals. Further investment statements about the number of visits cent of electricity generation needs from future Budgets was flagged. to rivers for recreation. The exception being met from renewable sources by is freshwater angling: an estimated As Environment Minister Nick Smith 2025. Hydro-electricity is classified as 727,400 angler-days per annum occur has noted: renewable energy. Currently renewable on New Zealand rivers .34 Recreation sources account for 70 per cent of “The expansion of irrigation in participation data suggest land-based electricity generation.38 New Zealand during the past couple activities, especially walking, may attract of decades has been huge in much larger numbers of people than Increased demand for electricity, international terms. Thirty-five per cent water-based activities35. land use intensification and water- of new irrigated land in OECD countries dependent farming development in The recreational value of rivers is not during the past two decades has been naturally dry areas has increased limited to existing use. Also relevant in New Zealand—and New Zealand the pressure on rivers. is the potential for future recreation makes up 1 per cent of the population opportunities that do not currently Recent examples of this increased of the OECD”.41

36 Section 2 of the Resource Management Act 1991 defines “Amenity values” as “those natural 37 Martin, J, (1991). or physical qualities and characteristics of an area that contribute to people’s appreciation 38 Ministry of Economic Development (July 2010). of its pleasantness, aesthetic coherence, and cultural and recreational attributes”. 39 Mercer, G (23 March 2008). “Environment includes— 40 Reasons for the large number of Canterbury proposals include: 70 per cent of New  q B FDPTZTUFNTBOEUIFJSDPOTUJUVFOUQBSUT JODMVEJOHQFPQMFBOEDPNNVOJUJFTBOE Zealand’s irrigated land is in Canterbury, expansion of dairying, and irrigators have shifted  q C BMMOBUVSBMBOEQIZTJDBMSFTPVSDFTBOE their attention to alpine rivers as a source of water given tighter regional controls on  q D BNFOJUZWBMVFTBOE groundwater takes in aquifers at their allocation limit.  q E UIFTPDJBM FDPOPNJD BFTUIFUJD BOEDVMUVSBMDPOEJUJPOTXIJDIBЮFDUUIFNBUUFSTTUBUFE 41 Quoted in Collett, G (23 April 2010). in paragraphs (a) to (c) or which are affected by those matters”. Protecting New Zealand’s Rivers 15

History of river protection 1970s campaign to save Lake to give rivers long-term protection. Manapouri from the impact of a major One government agency should be New Zealand’s mountainous hydro scheme is widely regarded given specific responsibility to facilitate environment, high rainfall, and many as a landmark in uniting many the integrated planning and management fast-flowing streams led to efforts New Zealanders in a commitment to of rivers for their protection and to protect steep uplands in river environmental protection.43 Other long-term sustainability. catchments as a way of preventing notable campaigns during the 1980s erosion as early as the late 19th A greater commitment by Government, sought to prevent the damming of government agencies and local century. In the years after the the Motu River, and the construction enactment of the Soil Conservation government is needed to safeguard of the Clyde Dam, which flooded remaining outstanding rivers. This and Rivers Control Act 1941, districts a significant length of the Clutha, is required because of mounting established their own catchment New Zealand’s largest volume river. scientific evidence about the decline boards supported by a central of indigenous freshwater biodiversity regulatory and research agency Government’s response to such public and the deteriorating health of rivers (National Water and Soil Conservation concern around flows in the 1980s and streams, the loss of wild rivers Authority) within the then Ministry of was legislative change through the and their recreational opportunities Works.42 Local body re-organisation Wild and Scenic Rivers Amendment to hydro-electricity generation and to the Water and Soil Conservation in the late 1980s saw regional councils irrigation, and anecdotal evidence Act 1967 (WSCA), to introduce a new (with wider functions) replace the that people can no longer fish or swim mechanism to protect wild and scenic catchment boards. in streams they enjoyed as children. rivers—the WCO (see sections 4 and 5 Protecting rivers has been a theme of of this paper). More attention and resources need conservation activism for more than to be directed to the protection 60 years, spurred on by a growing NZCA conclusions of rivers, including those with awareness of the environmental outstanding characteristics. Effective impacts of the large hydro-electric No government or quasi-government and timely river protection can provide generation schemes under agency has a specific responsibility certainty that the life-supporting construction at that time. In the 1960s to preserve and protect rivers as an capacity that rivers provide, and their people mobilised to try and save wild entity. This is a significant gap in intrinsic, mauri and in-stream values river landscapes, such as the Aratiatia the legislative fabric: the different (including recreation and amenity), rapids and other falls on the Waikato obligations of agencies such as are safeguarded for present and River, from hydro development. The regional councils and DOC are failing future generations.

42 Te Ara Encyclopaedia of New Zealand. See www.terara.govt.nz/rivers/conservingrivers. 43 Young, D (2004) at p 168. 16

For Māori, water is the essence of all life, akin to the blood of Papatuanuuku (Earth mother) who supports all people, plants and wildlife.

Photo: Mavora River, Southland. Crown Copyright: Department of Conservation Te Papa Atawhai (1989). 03 17

Protecting SECTION SUMMARY

q5IJTTFDUJPOEFTDSJCFTSJWFS q4UBUVUPSZNFDIBOJTNT rivers using protection tools available to protect rivers apply to under conservation specific parts or values of the conservation legislation (specifically the river ecosystem (riverbeds, National Parks Act 1980, adjoining land, wildlife, or Reserves Act 1977 and fish). No single mechanism legislation Conservation Act 1987) and offers complete protection. river-specific legislation. It Riverbeds and banks may considers the management be part of a protected area of Crown land in riverbeds NBOBHFECZ%0$CVUUIJT and how this could be does not protect the water. improved. Appendix 2 q8FIBWFZFUUPQSPUFDUB summarises information on representative range of the statutory mechanisms rivers. As noted in section for protecting rivers. 2, many highly significant q5IFQSJNBSZXBZBSJWFS waterways have no formal is protected under protection, and few conservation (non-RMA) lowland rivers and legislation is that it is streams are protected.44 located within a protected q&YUFOTJWFBSFBTPGSJWFSCFE area (for instance in a are managed as Crown land. national park or reserve). There is no requirement for A small number of individual them to have management rivers have specific objectives (e.g. for legislation applying to protection of natural or them but none of these give cultural values) or public overall protection: they input into decisions about are mostly associated with their use or management. hydro schemes.

Conservation legislation do supporting policy and plan documents (e.g. General Policy for The purpose and statutory criteria National Parks, Conservation General in conservation legislation (e.g. Policy, national park management Conservation Act 1987, National Parks plans, conservation management Act 1980) emphasise the preservation strategies). This emphasis is and protection of natural resources, as substantially different from the RMA

44 DOC and MfE (2002) “New Zealand Biodiversity Strategy” Theme 2 Freshwater Biodiversity www.biodiversity.govt.nz/picture/doing/nzbs/part-three/. Protecting New Zealand’s Rivers 18

approach of allowing use and provisions apply to aquatic as well as they provide as well as for their development provided effects are terrestrial values. The general purpose intrinsic values. avoided, remedied or mitigated. of national parks includes “…. ecological systems, or natural features Conservation legislation, taken Reserves Act 1977 so beautiful, unique, or scientifically together, protects a network of areas important that their preservation is The purpose of the Reserves Act for their natural and historical values. in the national interest”. Two of the 1977 includes ensuring the survival Effort has been made to extend this specific purposes of national parks or preservation of a representative network so that it is representative of are that native plants and animals range of all classes of natural terrestrial ecosystems and habitats. be preserved, and the park’s value as ecosystems and landscapes that Protection of a representative range “soil, water, and forest conservation originally gave New Zealand its of freshwater ecosystems and habitats areas [are] maintained”. These recognisable character. has received little, if any, attention descriptions can include rivers. and has not been achieved. The reference to preservation The protection provided by national of representative samples is a National Parks Act 1980 park status does not extend to the fundamental ecological concept widely water in rivers or to the river outside applied terrestrially, and is also the Owing to their large size and high level the boundary of the park/protected basis for our current marine protection of protection, national parks are of area, so does not protect the river in programme. It is an anomaly that it has particular importance for river its entirety. An example is the Waiau not been applied across river systems. protection. In most national parks River, which links Lakes Te Anau and (with the exception of the Whanganui Manapouri in Fiordland National Park Conservation Act 1987 River in Whanganui National Park and and flows from Lake Manapouri to the some rivers such as the Pororari in sea. Flows have been substantially The Conservation Act 1987 promotes Paparoa National Park) the declaration reduced by the diversion of water to the preservation of indigenous of land as national park includes the the Manapouri power scheme and freshwater fisheries and the habitats beds of all waterways within the park subsequently into Deep Cove. of freshwater fish species, but river boundaries.45 Where rivers are part of and stream protection specifically the national park, they have the same If waters within national parks and has generally not been highlighted level of protection as the surrounding public conservation land had the as a priority in the establishment land. Any application to take, use, same status as the land they adjoin, and management of protected areas. divert water from or dam a river at they would be better protected. a site within a national park would There is a popular view that national The Conservation and National be subject to the statutory tests and park status fully protects rivers within Park General Policies apply to the processes of the National Parks Act such boundaries. management of freshwater species, 1980 and concessions provisions habitats and ecosystems as much Most investigations for new national of conservation legislation as well as they apply to terrestrial species, parks have concentrated on terrestrial as those in the RMA. This includes habitats and ecosystems. There are values rather than aquatic values. applying the specific policy guidance in no specific policies for river protection, With greater recognition of human national park management plans and although there are specific policies reliance on ecosystem services, the General Policy for National Parks. relating to fishing for indigenous national park investigations could give species and the release of sportsfish. The National Parks Act does not greater focus to protect river systems make any specific provision for the and their catchments within the total Inclusion of rivers and their beds in protection of aquatic habitats and area proposed for national park status conservation land does not guarantee ecosystems; however, its general because of the ecosystem services46 their protection as evidenced by hydro

45 The bed of the was not included in the national park. Where the park adjoins the river the national park boundary is the riverbank. 46 Ecosystem services refer to a wide range of conditions and processes through which natural ecosystems, and the species that are part of them, sustain and fulfil life. For example hydrological cycles sustain life and provide the basis of our economy (particularly for sectors such as agriculture, forestry, fishing and tourism). Protecting New Zealand’s Rivers 19

generation in Kaituna Scenic Reserve, any freshwater fauna is prohibited in Tainui Raupatu Claims (Waikato approved in 2010, and by a Meridian faunistic reserves without the Director- River) Settlement Act 2010. It states Energy Limited’s proposal for a dam General of Conservation’s approval. in section 3 that “The overarching and power station on the Mokihinui Only three faunistic reserves exist: purpose of the settlement is to River. The proposed 85-metre high Lake Chalice, Lake Marion and restore and protect the health and dam on the Mokihinui River would . wellbeing of the Waikato River for flood more than 14 kilometres of future generations”. The Regulations also give the Director- river gorge. General a decision-making role in The various statutes mentioned Applicants for resource consents relation to fish passage when facilities establish separate governance bodies associated with river uses within such as new or modified culverts, and, in some cases, set specific flow public conservation land do not need fords, dams, weirs and diversions regimes. While the establishment of to first get landholder (i.e. Minister on natural waterways are proposed. such bodies has the benefit of focusing of Conservation) permission under Many installers of fords and culverts attention on those particular water conservation legislation (where it in particular are unaware of this role. bodies, if there was to be further is required). This means that a full DOC uses RMA processes to comment river-specific legislation, there is a consent process could be completed on a wide range of impacts from risk that a proliferation of governance only to have access to conservation in-stream structures and activities. structures, management mechanisms land declined. Where it has been satisfied that a and regimes could give rise to Council has imposed appropriate For the proposed Ngakawau River fragmented decision-making. conditions for culverts and fords hydro scheme in the 1990s, Buller relating to fish passage, it has Electricity withdrew the proposal after Protection and management interpreted an Environment Court47 a High Court decision confirmed the of Crown riverbeds ruling as meaning additional Minister of Conservation’s decision permission under the Freshwater The riverbeds of navigable rivers are that granting access would be Fisheries Regulations is at its classified as Crown land administered inconsistent with the requirements of discretion. by Land Information New Zealand the Conservation Act. This occurred (LINZ). The Land Act 1948 provides before councils heard resource no guidance on management consent applications. In contrast, for River-specific legislation objectives for Crown riverbeds, nor the Mokihinui hydro proposal, Meridian As a result of public concern about any restrictions on uses; nor are there Energy Limited has indicated it will proposed hydro schemes, four lakes criteria to guide decisions on private seek access to conservation land and their associated rivers have use or privatisation of such riverbeds. and/or exchange or disposal of specific legislation establishing conservation land following the guardians to oversee their The riverbeds of non-navigable rivers appeal stage of the consents process. management; namely the Waiau and are part of the title of the adjoining Monowai rivers (Guardians of Lakes land to the mid-line of the river. Freshwater Fisheries Manapouri, Te Anau and Monowai Where a riverbed adjoins land Regulations 1983 under the Conservation Act 1987) managed for conservation purposes, and the Clutha and Cardrona rivers whether it is public conservation land Regulation 68 of the Freshwater (Guardians of Lake Wanaka under the or under private covenant, it has the Fisheries Regulations 1983 enables the Lake Wanaka Preservation Act 1973). same conservation designation. Minister of Conservation to declare any water to be a faunistic reserve through River-specific legislation has been Landowners with a title that identifies a Gazette notice. The introduction of enacted recently, as part of a Treaty a river as a boundary (known as a any plant and the taking or killing of of Waitangi settlement: the Waikato- moveable water boundary) have a

47 Transit NZ V Auckland Regional Council, A100/00 (5 NZED 814). Protecting New Zealand’s Rivers 20

common law right to stable land that to river margins. Despite ordinances not been examined in the preparation has accreted slowly and imperceptibly from as early as 1841 providing for a of this paper but it might be fruitful due to the action of the river along public access land margin alongside to do so, so that the utility of the that boundary. This common law water, and the establishment of watercourse area can be assessed. right can be converted to legal title uniform policy for the reservation by application to LINZ. Conversely, of public land alongside water NZCA conclusions landowners with a moveable water boundaries in the Land Act 1892,49 boundary may lose land to erosion coverage for public access alongside A representative network of protected by a river. New Zealand rivers remains rivers should be established. incomplete. Accretion can result in areas perceived The beds and waters of rivers that flow to be riverbed on braided rivers to be Part IV of the Conservation Act requires within national park boundaries should converted to pasture, exotic forestry a marginal strip 20 metres wide to be have national park status unless there or vineyards, thus reducing the natural reserved from sale upon disposal of is a compelling national interest reason character of a river and its margins. Crown land adjoining a stream more to exclude them. than three metres wide or a lake LINZ has published guidelines for Greater consideration should be over eight hectares in size. The considering both accretion claims given to rivers and their values purposes of marginal strips include and dry stream or riverbed claims48. when considering areas suitable the maintenance of water quality, The former do not require public for designation as a protected area. notice but the latter do. Both require protection of aquatic life, and natural a wide range of parties to be directly values of the riparian zone, and Landowner (i.e. Minister of advised of the application, including provision for public access and Conservation) consent should be DOC. Objections have to be based on recreation (section 24C). obtained prior to lodging resource material legal or evidential grounds The Conservation Act (section 23) consent applications to modify rivers and cannot be simply due to enables an overlying protective and lakes, or extract water from rivers disagreement on principle. status for land adjoining some rivers. or lakes, in public conservation land. Specific objectives and clear criteria A “watercourse area” may be declared Crown riverbeds with recognised for Crown riverbed management for public conservation land or private nature conservation values should 50 are desirable. This would require protected land having outstanding be managed for those values. amendments to the Land Act. wild, scenic or other natural or recreational characteristics where The Land Act 1948 should be amended Crown riverbeds with recognised it adjoins any river, lake or stream to provide for the establishment of nature conservation values (especially protected by a WCO, or otherwise management objectives for Crown braided rivers) should be managed protected. Every watercourse area riverbeds. for those values. must be managed to protect the wild, The opportunities available to enhance scenic or other natural or recreational river protection by applying faunistic characteristics it has when considered Protection of land alongside reserve or watercourse area status with the river, stream, or lake rivers should be explored by DOC. concerned. This is subject to the Crown protection of public rights to protective status that applies to access rivers extends back to Queen that particular land and the WCO Victoria’s 1840 instructions to Governor provisions. Hobson, colloquially known as the ‘Queen’s Chain’. These instructions There are no watercourse areas in were inconsistently applied with regard New Zealand. The reason for this has

48 LINZG20710 and LINZG20711 published 30 October 2007. 49 Hayes, B.E (2003) at p 3, 9 and 18–19. 50 For example Queen Elizabeth II National Trust covenant or protected private land agreement under the Reserves Act. 04 21

Water SECTION SUMMARY

q5IJTTFDUJPOPVUMJOFTUIF deemed worthy of protection; conservation history of water conservation however, these must be orders (WCOs) and how “outstanding”. Courts have orders they came to be the major interpreted this to mean tool for protecting rivers. “quite out of the ordinary 51 It describes how the courts on a national basis”. have interpreted key terms, q5IFFЮFDUPGB8$0JTFJUIFS the Iegal effect of a WCO, and to protect a water body in its the process for applying for a natural state or to restrict new WCO as well as the steps or prohibit abstraction or to amend an existing one. uses that affect water flow, q8$0TBSFUIFNBJOTUBUVUPSZ or quality, or the habitat instrument that specifically qualities of a water body in recognises and provides for order to protect/preserve the protection of in-stream its outstanding amenity or river values. intrinsic values. A WCO can prohibit or restrict a regional q"8$0QSPUFDUTXBUFS council from issuing new within a water body in water and discharge permits order to protect or preserve but cannot annul existing its identified outstanding permits. amenity or intrinsic values. These can include: the q6OEFSUIF&$BO"DU  habitat of terrestrial or assessments of WCOs in freshwater species; fisheries Canterbury (c.f. other (e.g. whitebait, eels, trout parts of New Zealand) give or salmon); wild, scenic or less weight to preserving other natural characteristics; and protecting nationally outstanding water bodies and scientific and ecological greater weight to potential values; recreational, abstractive uses of water. historical, spiritual or However, the ability to cultural values; and impose moratoria on resource characteristics of outstanding consents for water and significance in accordance discharge permits created with tikanga Māori. by the Act provides a useful q3JWFSTUIBUIBWFCFFO mechanism to allow the modified may still possess planning regime to ‘catch up’ suites of these characteristics with demand.

51 See: An Application by the Minister of Conservation (Kawarau River) CO 33/96; The Inquiry the preservation and protection of the wild, scenic and other natural characteristics of rivers, into a Draft National Conservation () Order CO32/90; and the Mohaka River streams, and lakes.” Water conservation order WO 20/92. 53 For example the North Canterbury Catchment Board described its task as “multi-objective 52 The purpose of the Water and Soil Conservation Act 1967 was “to make better provisions planning for water and soil resources with an underlying philosophy of resolving any conflicts for the conservation, allocation, use and quality of natural water….. and for the promoting between present and potential users in an equitable manner and with any burden evenly and controlling multiple uses of natural water and the drainage of land, and for ensuring shared.” It had proposed an overall planning goal of “the wise management of water and soil that adequate account is taken of the needs of primary and secondary industry, community resources in a manner that yield balanced and sustainable benefits for present and future water supplies, all forms of water-based recreation, fisheries, and wildlife habitats, and of generations.” NAWSCO, (3 April 1984). Protecting New Zealand’s Rivers 22

WCOs are the main statutory instrument that specifically recognises and provides for the protection of in-stream river values.

History of WCOs fishery and habitat preservation that there was “a need for a for the threatened blue duck/whio54. positive policy ensuring protection WCOs were first enabled by the Water The Tribunal noted the “great of rivers or sections of rivers that and Soil Conservation Amendment difficulty in making a value judgement have outstanding wild, scenic Act 1981 (WSC Amendment Act; also on behalf of the community without or other natural characteristics known as Wild and Scenic Rivers guidelines bearing upon those in their natural state”.58 Amendment). The WSC Amendment matters”55. In another case, the Planning Act was a response to the impacts The Ministry of Works and Tribunal held that the WSCA did not of increasing development pressures Development and the Minister contemplate water rights being granted and the shortcomings of the Water for the Environment subsequently for in-stream purposes such as the and Soil Conservation Act 1967 issued a wild and scenic rivers policy. use of water for fishery management (WSCA).52 Decision-makers under At the time, much public debate and fishery enhancement purposes.56 the former WSCA had the difficult was occurring over the Government’s task of “balancing” competing Such cases highlighted the plans for a second aluminium demands (such as to carry away inadequacies of the WSCA regime smelter at Aramoana in Otago waste and provide for recreational for those interested in in-stream Harbour, a proposal to dam New fishing) for a particular water body.53 values. Acclimatisation societies Zealand’s largest river (the Clutha), This ‘balancing’ favoured resource (subsequently Fish and Game and the ‘Think Big’ schemes. The development ahead of conservation Councils) together with Save the WSC Amendment Act 1981 was the because developmental uses could Rivers Campaign members and culmination of this policy effort. be more easily quantified in the then New Zealand Canoeing The WSC Amendment Act stated: economic terms than less tangible Federation57 argued that there should “The object of this Act is to recognise values associated with a natural be legal recourse to protect water, and sustain the amenity afforded ecosystem. As a result, river not just to exploit it. This argument by waters in their natural state” flows, water quality and healthy was proposed as a direct counter to (section 2). This signalled that the river functioning diminished. the then recently enacted National WSC Amendment Act was to be Development Act 1979 (repealed 1986). A notable example was the 1978 case administered with an emphasis on involving the damming and diversion In a 1978 discussion paper, the sustaining waters in their natural of the Rangitaiki and Wheao Rivers. Commission for the Environment state, i.e. conservation.59 Where there The Planning Tribunal decided that raised the concept of protection for were outstanding features worthy of electricity generation from a renewable wild and scenic rivers. In its review protection, the overriding objective of source outweighed both recreational of submissions on the discussion the legislation was to protect those and interests in an outstanding trout paper, the Commission concluded not to provide for competing uses.

54 Fish and Game New Zealand advocacy questions the soundness of regarding rivers or the 57 Subsequently renamed Whitewater New Zealand. water in them as a renewable resource. 58 Young D (2004) at p 196. 55 Royal Forest and Bird Protection Society v Bay of Plenty Regional Water Board (1978) 6 NZTPA 59 Ashburton Acclimatisation Society v Federated Farmers of NZ Inc C.A. 204/86 at p21. 361 referred to in Nolan D (ed) (2005). 56 South Canterbury Acclimatisation Society v National Water and Soil Conservation Authority (Planning Tribunal C37/83 12 February 1983). Protecting New Zealand’s Rivers 23

For the first time, legislation q The provisions of any relevant ensures that if a freshwater resource is specifically recognised and provided regional planning scheme recognised as outstanding, the objective for in-stream values of rivers. The and district scheme. of its management is preservation or instrument to achieve this was called protection, rather than the more ‘balance’ To the acclimatisation societies, the a water conservation order. WCOs oriented ‘sustainable management’ legislation was a step towards national could impose conditions, restrictions requirement of the rest of the RMA. water resource management policy. It and prohibitions on the powers of established a mechanism whereby a As the Environment Court has noted: regional water boards to grant water regional or national perspective was part rights over natural waters subject “Substantively and procedurally the of regional water board and National to a WCO. differences between the WSCA and Water and Soil Conservation Authority Part 9 of the RMA are so great that we As Sir Robin Cooke in the decisions, instead of their consideration consider it is not useful, and indeed is Court of Appeal noted: 61 being restricted to individual streams. probably misleading, to consider the “In particular cases the needs of former except as to some guide as to industry or other community needs or planning schemes may demonstrably outweigh the goal of conservation. A WCO can protect a water body But as a general working rule or guideline the preservation of the in its natural state or, where a natural state as fully as possible or to the extent of protection of waterway has been modified, protect outstanding characteristics or features is to be aimed at unless clear and its outstanding characteristics clearly sufficient reason is shown to the contrary. The ultimate criteria must and allow uses compatible with be the public interest. The presumption is in favour of conservation. A those characteristics. strong, really compelling case is needed to displace it.” 60 The broad principles of the WSC the interpretation of identical words Section 20B(6) of the WSC Amendment Amendment Act, to recognise and or phrases in the latter.” 62 Act set out the matters the National provide protection for outstanding 63 Water and Soil Conservation Authority waters, were carried over into the RMA Purpose of WCOs or regional water board had to take when it was introduced in 1991. Part 9 WCOs can be sought for rivers, into account when considering an RMA deals specifically with WCOs. Part 9 streams, lakes, ponds, wetlands, application for a WCO, namely: contains phrases identical to those in the aquifers, or geothermal waters All forms of water-based recreation, WSC Amendment Act and, like that Act, q that are not in the coastal marine fisheries and wildlife habitats; contains its own purpose and procedures for WCOs. However, legally there are area. A WCO can protect a water The wild, scenic or other q significant differences in both content body in its natural state or, where a natural characteristics of and procedure. Most importantly, Part waterway has been modified, protect the river, stream or lake; 9 of the RMA is only partially subject to its outstanding characteristics q The needs of primary and secondary Part 2 of the RMA. It has been described and allow uses compatible industry and of the community; and as a ‘code within a code’, which with those characteristics.

60 Ashburton Acclimatisation Society v. Federated Farmers of NZ Inc [1988] 1 NZLR 78 at 87-88. 63 The case summaries in Berry S in chapter 8 “Water” in Nolan D (ed) (2005) in at pp 509-526 61 New Zealand Acclimatisation Societies (June 1983) An application for a national water were particularly helpful in compiling the following three sections. conservation order for the and its tributaries. 64 Berry S in Nolan D (ed) 2005 at para 8.76 on p 516. 62 Rangitata South Irrigation Ltd v Fish and Game (Environment Court C109/2004 5 August 2004) at p 15. Protecting New Zealand’s Rivers 24

Part 9 of the RMA, which deals q The maximum and minimum features, or contribute in some exclusively with WCOs, has its own levels or flow or range of levels significant way to outstanding specific purpose, giving primacy or flows, or the rate of change characteristics or features.69 to the conservation of outstanding of levels or flows to be sought or The test as to what is outstanding is scenic and amenity values (section permitted for the water body; and a “reasonably rigorous” one.70 Before 199). Without this provision, the q The maximum allocation for a feature or characteristic can qualify sustainable management purpose abstraction or maximum contaminant as outstanding, it needs to be quite of the RMA (Part 2), which applies to loading consistent with the out of the ordinary on a national all other allocation decisions under purposes of the WCO; and basis.71 “If one takes a national the RMA, may, in the context of comparative approach, the fact that WCO applications, have operated in The ranges of temperature and q the wider region is well endowed the same way as the balancing test pressure in a water body. with similar high-quality features under the WSCA64 and weakened the In considering a WCO application, the may well suggest that particular prospect of WCOs being gazetted. Special Tribunal (and the Environment waters do not stand out when The RMA contemplates “preservation Court in any subsequent inquiry) considered in a national context.” 72 orders” that provide for “the must have “particular regard” to the Special Tribunals and the Environment purpose of WCOs and other matters preservation as far as possible in its Court can determine that only some set out in section 199 (see Appendix 3). natural state of any water body that of the values for which a WCO is 65 is considered to be outstanding” sought are “outstanding” and/or that and “protection orders” to protect “Natural state” these only occur in specific reaches particular characteristics that a “Natural state” means “towards the of the river. In relation to Southland’s water body has, or contributes pristine end of the artificial/polluted , for example, the Special to, which are considered to be 67 Tribunal considered the river supported 66 to pristine continuum.” outstanding. The characteristics an outstanding brown trout fishery, that can be protected include: The existence of resource consents particularly in its upper reaches above for abstraction does not necessarily q The habitat of terrestrial Rocky Point, and the upper reaches mean that waters are no longer in or freshwater species provided outstanding angling amenity their “natural state”. In the Rangitata and were of outstanding significance in Fisheries (indigenous, q WCO case, the Environment Court held accordance with tikanga Māori. Parts trout or salmon) that such takes were only authorised of the river also provided outstanding temporarily (under RMA section 124 q Wild, scenic or other habitat for the threatened endemic natural characteristics as existing permits had expired) and black-billed gull Larus bulleri. But the were not continual, (e.g. takes were Tribunal held that on the evidence the Scientific and ecological values q shut off during maintenance of intake river’s wild and scenic values and native q Recreational, historical, structures). The Court held that it fisheries were “significant” rather than spiritual or cultural values should consider the Rangitata flow “outstanding in a national context”, as if the takes were not occurring.68 though these could contribute to the q Characteristics of outstanding values considered to be outstanding. significance in accordance “Outstanding” with tikanga Māori. For wildlife habitat values to qualify To be included in a WCO, a water body as nationally outstanding (rather than A WCO can set conditions relating to: either has to be itself outstanding just significant), a river would have q The quantity, quality, rate of flow, in a national context, or contain to support at least 5 per cent of the or level of the water body; and outstanding characteristics or national population of a species.73

65 Section 199 (2)(a) RMA. 70 Re National Water Conservation (Mataura River) Order 1989 (Planning Tribunal C32/90 4 May 1990). 66 Section 199(2)(b) and section 199(2)(c) RMA. 71 Re National Water Conservation (Mohaka River) Order 1990 (Planning Tribunal W20/92 8 April 67 Rangitata South Irrigation Ltd v Fish and Game (Environment Court C109/2004 5 August 2004) 1992) p45. This was upheld in subsequent cases under the RMA such as Re National Water pp11-12. conservation order (Kawerau River) C33/1996 at p 5. 68 Rangitata South Irrigation Ltd v Fish and Game (Environment Court C109/2004 5 August 2004) 72 Rangitata South Irrigation Ltd v Fish and Game (Environment Court C109/2004 5 August 2004) p 10. pp11-12. 73 Rangitata South Irrigation Ltd v Fish and Game (Environment Court C109/2004 5 August 2004) 69 Re National Water Conservation () Order 1989 (Planning Tribunal C28/93 7 May 1993 p p32. 7 at p 18. Protecting New Zealand’s Rivers 25

In the Rangitata case, the Court noted also have the effect of controlling and if the application is accepted s/ it did not appear appropriate to activities on the beds of rivers he can appoint a Special Tribunal to identify characteristics of outstanding and lakes.77 Despite their gazettal invite and hear public submissions significance to Māori, because it “is under the old legislation, they are and then report on the application. not tika” to compare resources across still operative today and continue RMA section 207 requires the 74 iwi. Yet, in the Oreti application the unless they are changed through Special Tribunal to have particular Special Tribunal determined that the provisions in Part 9 of the RMA. regard to the purpose of a WCO and upper reaches of the Oreti were of Resource consents granted after a the other matters set out in RMA outstanding significance in accordance WCO is in place must not be contrary section 199, and to have regard to: with tikanga Māori because of to any restriction, prohibition or other the presence of taonga species q The needs of primary and secondary provision in the WCO. A WCO does not (both fish and wildlife), evidence industry and the community; and affect existing resource consents until of past occupation, and continuity these expire and replacement consents q The relevant provisions of of flow and high water quality are sought, nor existing lawful use national policy statements, contributing to a vibrant “mauri”.75 established before the WCO was New Zealand coastal policy A WCO may extend to an entire gazetted. For example, the flow regime statement, regional policy river system, including parts of the in the WCO enables statement, regional and district system that are not in themselves the Rangitata Diversion Race Limited plans and any proposed plan; and outstanding, but that contribute to continue to take a third of the river’s qThe submissions lodged with it. to the integrity of the system.76 mean flow for its irrigation scheme The Special Tribunal’s report will and hydro generation at Highbank. include either a draft WCO or a Statutory effects of a WCO Taking water for the reasonable recommendation that the application As a national instrument to protect domestic needs of an individual, be declined. In both cases it gives values deemed to be nationally or for the drinking needs of their the reasons for its decision. stock, are allowed by the RMA outstanding, WCO have a high place The applicant for the WCO and all and are not affected by a WCO. in the hierarchy of RMA regulation. submitters have the right to refer Gazetted by Order in Council, they the Special Tribunal’s report and are government regulations. Councils Process for initiating a WCO recommendations to the Environment must ensure that their regional (outside Canterbury) Court, as does anyone else to whom policy statements and regional or Any person, group or organisation the Court has given leave to do so. district plans are not inconsistent can apply to the Minister for the with the provisions of any WCO. The Environment Court’s function Environment for a WCO for a specified is to conduct an inquiry into, and A WCO acts in a similar way to water body, citing the reasons for report on, the Special Tribunal’s operative regional plan rules by the application (with reference to report, not conduct a de novo constraining the regional council’s RMA sections 199, 200 and 207), the hearing on the application. discretion in managing the water body. values for which protection is sought, In undertaking its inquiry, the It restricts regional council powers to the provisions sought in the WCO and Environment Court, like the Special the extent necessary to maintain the the effects these would have on the Tribunal, is required to have particular outstanding characteristics of a river water body. The application fee is regard to the purpose of a WCO and in their current quality or quantity. $1,000 (as at the date of this paper). the other matters set out in section WCOs that were gazetted under The Minister can request further 199 RMA. Under section 212 RMA, the WSC Amendment Act may information about an application, the Court must also have regard to:

74 Rangitata South Irrigation Ltd v Fish and Game (Environment Court C109/2004 5 August 2004) p 14. 76 Ashburton Acclimatisation Society v. Federated Farmers of NZ Inc [1988] 1 NZLR 78. 75 Special Tribunal (November 2007) Summary of the Report by a Special Tribunal Appointed by 77 The Rakaia WCO for example prohibits the granting of water permits that facilitate agricultural the Minister for the Environment to consider an Application for a Water conservation order for encroachment into the protected waters. the Oreti River, see www.MfE.govt.nz/. Protecting New Zealand’s Rivers 26

A WCO acts in a similar way to operative regional plan rules by constraining the regional council’s discretion in managing the water body.

q The needs of primary and secondary Appendix 4 summarises the effect of Majac’s proposed changes industry and the community; and statutory process for a WCO to the outstanding rafting amenity application outside Canterbury. protected by the WCO. To date, this q The relevant provisions of every has been the only application seeking national policy statement, New to reduce the protection afforded Zealand coastal policy statement, Revocation of or by a WCO that has been heard. regional policy statement and amendments to WCOs regional and district plans and (outside Canterbury) Applications to restrict the scope of any proposed plan; and No applications can be made to a WCO preclude submissions in opposition that seek to expand the The report of the Special Tribunal revoke a WCO for the first two years q WCO (section 205(3) RMA). In the and any draft WCO; and after it has been gazetted. Only minor or technical changes enabling the Majac Trust case, the Court rejected q The application and all submissions WCO to better achieve its purpose a submission seeking recognition in lodged with the Court; and may be made (section 216 RMA). the WCO of additional characteristics, namely the kayaking and scenic and q Such other matters as Once two years have passed, any amenity values of the Matiri River the Court thinks fit. person can apply to revoke or below the lake. Submitters may The Court reports and makes a amend a WCO. An application to make a separate application to recommendation to the Minister for revoke or amend follows the same expand the scope of a WCO 78. the Environment on whether the draft process as the original application. WCO (that which was considered by the Applications to amend might be to WCOs in Canterbury Special Tribunal) should be rejected or extend or restrict the WCO’s impact. The Environment Canterbury (Ecan) accepted with or without modifications. In 2007 DOC, Fish and Game, Forest Act 2010 has created a separate The Minister considers the report from and Bird and the New Zealand regime for granting, amending or the Special Tribunal (or the Environment Recreational Canoeing Association revoking WCOs in Canterbury. Firstly, Court if an inquiry has been held) and (now Whitewater New Zealand) it changed the statutory test and decides whether or not to recommend and rafting parties opposed an removed the primary purpose of to the Executive Council that a WCO application by the Majac Trust to protection. It makes the assessment should be issued. The Minister must vary the Buller WCO to enable water of an application subject to the decide in accordance with the relevant take from the Gowan River. The Part 2 (sustainable management) report, or reject it and give reasons in amendment was declined owing to provisions of the RMA rather than a written statement to Parliament. If evidence from the opposing parties Part 9 (emphasis on the protection the Minister recommends the making about the importance of the Gowan of outstanding amenity and intrinsic of a WCO, it is gazetted by Order in and to sustaining values). The decision-maker also has Council by the Governor General. the eel and trout fisheries, and the to have particular regard to the vision

78 Talley v Fowler CIV 2005-485-000117. Protecting New Zealand’s Rivers 27

and principles of the Canterbury Water The provisions of the ECan Act may be (i) high or increasing demand or Management Strategy (CWMS) 2009. primarily used by hydro generation, to diminishing quality; or Although the CWMS was prepared irrigation and other development (ii) is fully allocated, nearing full through a collaborative process interests seeking to amend existing allocation, or over-allocated; and with public input through meetings, WCOs for Canterbury rivers, given submissions and hearings, it was not the weakened statutory tests, rather q Any other relevant matter. a statutory process incorporating than for new WCO applications. As The ‘pause’ created by a moratorium legal tests and appeal rights. Whitewater New Zealand president is useful because it potentially The different statutory tests in Polly Miller said when announcing enables the planning regime for a river the ECan Act for a new WCO or the withdrawal of its amended catchment to ‘catch up’ with increasing applications to amend an existing Hurunui WCO application: water demand. To date, moratoria have WCO in Canterbury mean “significantly “The primary reason for withdrawing been notified for the Hurunui and Waiau less weight”79 is given to the is that the ECan Act watered down the Rivers. They expired in October 2011 requirement to preserve and protect water conservation order law and before new regional plan provisions nationally outstanding water bodies, process to such an extent that we have and flow regimes were in place and greater weight is given to decided that our efforts to protect the (submissions close December 2011). potential abstractive uses of water. river are better directed toward other The ECan Act provides an opportunity Instead of a Special Tribunal processes. We are hopeful that to pursue restoration opportunities considering an application and making withdrawing from the WCO will create through a WCO, as seen for the recommendations to the Minister for a context where a collaborative solution Lake Ellesmere WCO84, whereas the Environment, the Government to conservation and recreation needs, the RMA (section 9) restricts appointed ECan Commissioners to do and environmentally responsible itself to the preservation and this at the Minister’s request. There is irrigation possibilities, may be found protection of existing conditions. no right of appeal to the Environment for the Hurunui/Waiau catchment Court on the Commissioners’ report within the framework of the Canterbury The ECan Act contains a ‘Henry VIII’ and recommendations. An ECan Water Management Strategy.” 82 provision (section 31), which gives the Minister for the Environment wide decision can be appealed to the The legislation also gave new power High Court only on points of law. powers to amend both the ECan Act to the ECan Commissioners to impose and the RMA through regulation by As a local authority, the council is not moratoria in relation to specified Order in Council, rather than through permitted to allow cross-examination resource consent applications Parliament. The Minister can amend in its hearings; nor did the ECan Act for water and discharge permits, the duration and extent of the ECan give it this power. The result is that or applications to amend their Commissioners’ powers as they apply, 83 technical and other expert evidence on conditions. The prior approval of for example, to WCOs, moratoria a river’s values and characteristics and the Minister for the Environment and plans. This has received wide relevant planning provisions will not be to such moratoria is required. comment and concern from legal tested through cross examination nor In issuing a moratorium, ECan and practitioners and academics. considered by a specialist court.80 the Minister must have regard to: MAF papers released under the Official NZCA Conclusions q The vision and principles Information Act indicate that facilitating of the CWMS; and Conclusions relating to WCOs are irrigation development in Canterbury by presented in section 5 of this paper. more easily enabling changes to WCO q The extent to which the fresh was one of the drivers for the ECan Act.81 water of that area is subject to:

79 Baker M, resource management lawyer (pers. comm., August 2010). previous Environment Ministers to help address the region’s “water goldrush, the avalanche of 80 Baker M, resource management lawyer (pers. comm., August 2010). resource consent applications to take water, and the shortcomings of a “first-in, first-served” 81 MAF Policy (21 December 2009) Briefing on Facilitating Irrigation Development in Canterbury. approach to water allocation when existing takes are approaching or exceed sustainability B09-429A. limits. 82 Whitewater NZ and Fish and Game New Zealand (20 December 2010) press statement. 84 Lake Ellesmere to get $11m clean-up http://www.stuff.co.nz/environment/5507280/Lake- 83 Environment Canterbury had previously requested a moratorium power from the Ministry and Ellesmere-to-get-11m-clean-up (accessed 2 September 2011). Protecting New Zealand’s Rivers 28

Resource consents granted after a WCO is in place must not be contrary to any restriction, prohibition or other provision in the WCO.

Photo: Forest stream, Fiordland National Park. Crown Copyright: Department of Conservation Te Papa Atawhai (1996), Photographer: Chris Rance. 05 29

The use and SECTION SUMMARY

q5IJTTFDUJPOEJTDVTTFTIPX applicants, user groups, effectiveness WCOs have been used and and submitters, careful evaluates their effectiveness consideration of technical of WCOs as a tool for protecting and and other evidence by Special managing rivers. It considers Tribunals, and the testing of the robustness and length evidence by the Environment of the WCO process, and Court. Accordingly, they the relationship between deserve greater permanence. WCOs and regional plans. It highlights potential areas for q5IFFЮFDUJWFOFTTPG8$0T could be improved by improvement. requiring local authorities q8$0TIBWFCFFOQBSUJDVMBSMZ to have particular regard to valuable in augmenting the protection of outstanding regional water planning by values recognised by a WCO setting flow and allocation in managing land use in regimes for particular rivers catchments where a river is in the absence of regional or subject to a WCO. catchment plans. q3JWFSNBOBHFNFOU q8$0TBSFUIFPOMZ3." (particularly through regional mechanism used to effectively plans and greater use of protect outstanding rivers. WCOs) could be enhanced As at November 2011, there if a national inventory of were 15 WCOs—13 for named outstanding rivers (and rivers or reaches (including outstanding reaches of rivers) some of their tributaries and was compiled. This would associated lakes) and two for help identify rivers with the lakes. highest values nationally as q8$0TBSFBDIJFWFEUISPVHIB candidates for protection of robust process that requires their natural state through a significant investment strong plan rules or new WCO of time and expertise by applications. Protecting New Zealand’s Rivers 30

Protection of representative Strategy.85 If WCOs are to assist in a proactive national strategy to habitats and ecosystems achieving such protection, a strategic identify a representative range of approach to applications is required. rivers deserving protection based Only a small number of New Zealand’s on their values. Available staff rivers are protected by WCOs. As Fish and Game councils, or their acclimatisation society predecessors, and funding resources have been at November 2011, there were 15 directed to defending rivers under WCOs—13 for named rivers or reaches have applied for the majority of WCOs and been at the forefront of their use immediate threat from large-scale (including some of their tributaries 86 for river protection. Fish and Game’s irrigation and hydro proposals. and associated lakes) and two for applications have, understandably, lakes (summarised in Appendix 5). focused on its statutory functions Past protection initiatives It seems likely that these rivers of managing and advocating for the WCOs have been used successfully protection of sports fisheries (trout represent only a small proportion to protect in-stream interests and and salmon) and game birds, and the of those potentially meeting the to safeguard flow regimes before recreational opportunities derived criteria in section 199 RMA as being resource consent applications have from them, rather than freshwater outstanding in their natural state and/ been lodged for hydro generation indigenous biodiversity or other values. or having outstanding characteristics. or irrigation proposals. The identification and protection of WCOs have primarily been used to protect For example, the Central South outstanding biodiversity characteristics rivers under threat. They have not been Island Fish & Game Council was has been incidental (although this used to protect a representative range prompted to lodge the application has been significantly assisted by of rivers or as a means to implement for a Rangitata WCO by proposals for Fish and Game consulting interested the New Zealand Biodiversity Strategy. several large new takes to irrigate WCOs have primarily been used to protect rivers under threat. They have not been used to protect a representative range of rivers

Priority action 2.1(c) of the New parties prior to lodging applications). land on the river’s south bank. One Zealand Biodiversity Strategy is to Advocacy for, and evidence on, third of the river’s mean annual flow progressively protect representative biodiversity and other values relies on was already diverted to one of the country’s largest irrigation schemes freshwater habitats and ecosystems. participation by DOC, conservation (Rangitata Diversion Race) to irrigate The 2005 five-year review of the groups such as Forest and Bird, land north of the river and generate Biodiversity Strategy assessed and recreational organisations power through the Highbank scheme. progress on implementing this like Whitewater New Zealand. With no environmental flow regime as “limited” relative to the size of The ‘water gold rush’ of the last 15 for the Rangitata, except the de the task. The review identified the years has given Fish and Game and facto one provided for in Rangitata action as having a “high” priority in other environmental and recreational Diversion Race’s consent conditions, the next phase of implementing the NGOs little opportunity to develop

85 Green W and Clarkson B (November 2005) at p 48. 86 Martin D, Forest and Bird field officer (pers. comm., December 2010). Protecting New Zealand’s Rivers 31

WCOs can therefore significantly enhance the planning framework for rivers and in-stream values by establishing environmental flow regimes

advocates for in-stream values Such a stocktake should map and Sustainable Water Programme would have had to contest each describe the rivers and river reaches of Action, but not progressed88). and every application for further already protected, the extent of Possible tools for assessing outstanding irrigation takes. The WCO application protected land in the catchment, rivers are discussed in section 6. was made before any new consent the river protection mechanisms applications were lodged. Once the utilised (e.g. WCO, regional rules Enhancing regional planning WCO was gazetted, the flow regime it prohibiting dams), the security of WCOs have often been sought for rivers established provided certainty for all any protection, and any management that lack a catchment or regional plan, parties. The flow regime developed threats and issues. It would help track in order to establish a flow regime and through the WCO process meant progress towards the protection of allocation limit. When acclimatisation that a subsequent resource consent a representative range of freshwater societies applied for a Rakaia WCO application by Rangitata South Limited ecosystems and habitats (see in June 1983, for example, there was to take water within the constraints section 3), and determine where no management plan that covered established by the WCO attracted additional protection is needed. few submissions (and no appeals). the river. The North Canterbury A national inventory of rivers with Catchment Board produced a draft This demonstrates that WCOs outstanding conservation values management plan for the river two are useful for all parties because meriting protection under a WCO could months after the WCO was made. they provide a clear, transparent be developed. Priorities for protection Once gazetted, WCOs can restrict mechanism that sets real limits, could be identified by overlaying new takes and diversions to those provides certainty, helps the the results of the stocktake of rivers consistent with the regime established planning process, lowers costs currently protected on the inventory of and makes effective use of in the WCO. For example, the Rangitata rivers with outstanding values. Public stakeholders’ time and resources. WCO prohibits damming, establishes consultation could then be undertaken a flow regime that allows the existing on the inventory and policy options Rangitata Diversion Race take, Identifying outstanding for progressing protection of these specifies 1:1 sharing between in-stream rivers rivers. The inventory would update and and abstraction for some flows, caps A stocktake of the extent of river extend work begun in 1984 to prepare abstraction at 33 cumecs (cubic protection in New Zealand would and publish an inventory of New metres per second), and provides provide baseline information to help Zealand’s nationally important wild and for additional takes but only when identify freshwater ecosystems and scenic rivers. It was never completed flows are above a certain threshold. habitats which are not represented nor given statutory recognition.87 in the existing protected areas (The inclusion of a schedule of waters WCOs can therefore significantly network, and elucidate the adequacy of national importance (WONI) in the enhance the planning framework of current protection tools. RMA was suggested as part of the for rivers and in-stream values by

87 National Water and Soil Conservation Authority (1984). The 1984 “National Inventory of Wild and 88 The work programme for the WONI project included producing a public discussion paper on the Scenic Rivers” initially used assessment criteria for scenic, recreational, wild, biological, scientific value of determining water bodies of national importance, the methods used and the initial list. and cultural values to rank water bodies into three groups in order of importance with fisheries and This was intended as a basis for public consultation on methods and criteria used, alternative tourism values added subsequently. Initially the inventory’s purpose was simply to identify wild and approaches and options for managing nationally important water bodies. A technical report notes scenic rivers and lakes, not seek legislative protection. Government subsequently called for public that the results of consultation could have been developed into a Cabinet paper with a candidate submissions on a new schedule to the WSCA but this was never passed into law. list of nationally important water bodies and options for their appropriate management. The discussion paper was not published. MAF and MfE did not consult on any of the candidate lists for rivers of national importance, or on policy options for progressing the project. Protecting New Zealand’s Rivers 32

establishing environmental flow Regional councils have generally support of, or opposition to, regimes where none have previously opposed WCO applications, but this a WCO or its amendment. existed. In the absence of a plan opposition is not always strenuously The expense of obtaining expert or a WCO, the de facto flow regime pursued. In the WCO application evidence and legal representation for the Oreti River in Southland, is determined by how much water to establish the presence of the council chose not to call is left after individual consents outstanding values has limited the evidence to support its submission for water takes are granted. number of WCO applications and in opposition, and during the the scope of some to critical WCOs also achieve the Land and Hurunui WCO application, the reaches and tributaries less Water Forum’s objective to set regional council took a neutral attractive to development interests, rigorous standards and limits on position at the hearing. the use of water. These can be and therefore considered more inadequate or ineffective in regional The RMA promotes integration ‘winnable’ for the applicant plans even where plans exist. between WCOs and regional plans organisation and supporting parties. by requiring that a decision-maker For this reason, applications often WCOs are not processed by on a WCO application has regard do not include all of the river regional councils, but councils can to relevant plans, and by requiring reaches, tributaries and waterways (and should) participate in the WCO that district and regional plans that have outstanding values. process. WCOs take the planning not be inconsistent with a WCO.90 and water management initiative Fish and Game New Zealand For example, in developing its estimates it spent more than and decision-making powers away regional plan, Environment $3 million in the 10 years from from the regional council (except Canterbury noted that the WCO 2000 to 2010 on applications in Canterbury) and give it to the for the Rangitata River, gazetted and advocacy for WCOs. Minister on the recommendation part way through the planning Since its establishment in 1987, of a Special Tribunal and (and if process, was incorporated into DOC has only applied for one WCO appealed) the Environment Court. the Natural Resources Regional (Kawarau). DOC has had historical In a WCO application, the regional Plan without this causing any council is a submitter (albeit an significant complications.91 Other involvement in WCOs through influential one); not the decision- regional councils have successfully applications made by one of its maker. WCOs can limit the powers of incorporated WCO provisions into predecessors, the New Zealand regional councils in relation to their their regional planning documents Wildlife Service. DOC was a joint water management functions. Once (e.g. the Bay of Plenty Regional applicant with Ngāi Tahu for the gazetted, WCOs override regional Land and Water Plan includes a Te Waihora/Lake Ellesmere WCO plans. No resource consent can schedule with the provisions of amendment and has been a party to be granted that would be contrary the Motu WCO, and the Tasman some other applications (e.g. Buller). to the provisions of the WCO. Regional Plan includes schedules Frivolous applications are unlikely with the provisions from the No catchment boards, regional given the rigour and cost of the Buller and Motueka WCOs). councils or unitary authorities have WCO process. All applications to applied for or supported WCOs. date have been upheld in some WCOs were rarely mentioned as a Funding and cost of the form by Special Tribunals and the Environment Court, indicating river management tool in a recent application process diligent preparation of applications comprehensive review of regional Individual parties must fund the and supporting evidence. council practice in setting limits application, legal submissions for freshwater flows and quality.89 and evidence for their case in

89 SKM (16 April 2010) The survey included a lengthy questionnaire provided to planning staff in 90 Baker, M (August 2010). all regional councils and unitary authorities with follow up interviews or meetings. None of the 91 Cowie B et al (28 October 2010). questions were specifically about WCOs. Protecting New Zealand’s Rivers 33

Length and robustness proposed draft WCO because of The one completed application to of process evidence of inconsistencies with amend a WCO (on the Buller River) to national and international guidelines. reduce protection was unsuccessful, WCO applications under both partly because of the robustness of the For any future Canterbury WCOs the WSCA and RMA have proven original application process. The Court or amendments, the ECan Act to be lengthy processes. was unable to see any “materially promises a faster process but it As the Environment Court has noted: altered circumstances” from those dispenses with cross examination considered by the then Planning “There are at least two reasons and any opportunity to amend and Tribunal that recommended the WCO: why WCO applications are time improve a draft WCO by removing consuming. The first is that they the opportunity for the Environment “Having regard to the holistic analysis proceed by way of at least one but Court’s inquiry and scrutiny. of the river system undertaken by usually two inquiries and have to the Planning Tribunal at that time, take into account an enormous Permanency of protection this Court must be careful, when range of material. Second, if granted considering a variation, that it does they have severe implications as Anyone can apply to amend or not allow changes which might provide to the use of water. So they are of revoke a WCO two or more years for inconsistent administration of the themselves always of vital interest to after its gazettal (section 216 RMA). WCO or otherwise create scope for conservationists, recreational users Amending or revoking a WCO requires other or wider changes.”95 and last but not least, to those a recommendation from the Minister The length and thoroughness of an persons and organisations who for the Environment to the Executive initial application justifies protection wish to take or divert water.” 92 Council based on a recommendation from a Special Tribunal and/or being made more permanent. The The Environment Court has identified Environment Court (or in Canterbury, WCO process is arguably more rigorous the Special Tribunal’s report to from the ECan Commissioners). than a national park investigation by the Minister as having primacy. the NZCA under the National Parks The purpose of any subsequent In Opotiki District a proposal by Act, given it involves submissions to, Environment Court hearing is Horizon Energy to dam the Motu River and a hearing and decision report by, “to enable a secondary report to generate electricity and provide the Special Tribunal, and possible on matters of concern to further an investment vehicle for Māori has inquiry by the Environment Court. submitters who wish to challenge been discussed.94 This would require WCOs are frequently cited as the the findings in the Special Tribunal’s the rescinding of the Motu WCO. equivalent of ‘national parks for report by calling evidence and TrustPower Limited has applied to rivers’. Removing land from a national cross examining witnesses”.93 amend the Rakaia WCO to operate park requires an Act of Parliament. Lake Coleridge for irrigation as well Cross examination of witnesses is not Traditionally this has been seen as a as hydro-electricity generation. permitted before Special Tribunals, significant safeguard.96 Requiring an but is permitted in the Environment The comprehensive process that Act of Parliament to revoke a WCO Court, ensuring that expert evidence precedes the formal gazettal of a would align the status of these two is tested. Environment Court reports WCO outside of Canterbury suggests classifications. An alternative would and recommendations have contained that the Environment Court is be to extend the time period before detailed changes to the content of unlikely to recommend amendments an amendment or revocation could be WCOs recommended by Special to the Minister without strong considered under section 216 of the Tribunals. In the Rangitata South reason. To date, no existing WCOs RMA (other than an amendment of a case, for example, the Court changed have been revoked or amended minor or technical nature to enable the several clauses in the Special Tribunal’s to reduce their protection. WCO to better achieve its purpose).

92 Talley v Fowler CIV 2005-435-000117. 96 Though legislation can be passed through Parliament under urgency without public submissions, 93 Rangitata South Irrigation Ltd v Fish and Game (Environment Court C109/2004 5 August 2004) at p20. or referral to or scrutiny by a select committee. The ECan Act amending the regime for WCOs 94 Mercer, G (23 March 2008). in Canterbury was passed through all its stages within 48 hours without submissions or select 95 MJ Talley and others as trustees for MAJAC Trust v Fish and Game C102/2007 at para. 57. committee consideration. Protecting New Zealand’s Rivers 34

Enhancement of outstanding The Land and Water Forum 2010 water quality. This last change would characteristics cannot be report recommended WCOs be help promote integrated land and considered made more effective with respect water management as recommended to water quality; it notes that by the Land and Water Forum. The WCO process centres upon WCOs are restricted to in-stream WCOs could be used more strategically the assessment and protection influences and are unable to take an to help protect a representative range of existing characteristics of the integrated approach in addressing of rivers with outstanding values. river—it is about maintaining their other influences such as land use. quality and quantity. The Act does It recommended that this change. Conducting a stocktake of the extent not provide for their enhancement. of river protection and compiling a A more integrated approach would 97 national inventory of outstanding rivers In the Rangitata South case , the also be assisted by requiring local and river reaches with outstanding Environment Court found that while authorities to have particular regard characteristics (including biodiversity, it could consider what was needed to WCO status when developing landscape, cultural, recreational, to halt the decline of an endangered plan provisions for the relevant amenity) would help identify priorities species, section 199(2) appeared river or lake catchment. to exclude any consideration of for additional protection. Secure a WCO being for the purposes of This is because while WCOs protect protection is needed for river systems enhancement, such as an increased the natural water in a river and and river reaches that remain in, minimum flow to improve the recognise the wild and scenic elements or are close to, their natural state, habitat of a threatened species to of the landscape, the Courts have and have outstanding wild, scenic help avoid extinction. This is not held that they do not, in themselves, and amenity characteristics. protect the landscape elements.98 sensible and the Act should be Canterbury rivers should once again amended to provide for this. NZCA Conclusions be covered by the WCO regime that applies to the rest of New Zealand Land use and water quality WCOs are the primary means (i.e. in accordance with Part 9 of Many WCOs include provisions that by which rivers have been the RMA) when the term of the set water quality standards for protected in New Zealand. They ECan Commissioners expires in 2013. are an effective mechanism for the protected waters and prohibit Allocating a government agency the protection of rivers, albeit that point source discharges that do specific responsibility for advancing some aspects could be improved. not comply with the standards WCOs could help improve their use outside a reasonable mixing zone. The use, application and effectiveness and effectiveness for river protection Despite being able to establish of WCOs could be enhanced by in New Zealand. This should be the maximum contaminant loading carefully considered changes same agency charged with overall limits (section 200(c) RMA), WCO to legislation and policy. This river protection (see section 2). applications have not been used includes, but is not restricted to: primarily to protect water quality lengthening the two year restriction except for the Buller River. This may on applications to amend or revoke be because safeguarding flows has WCOs; allowing WCOs to provide been the most pressing priority for for the enhancement of outstanding applicants. There is no ability for characteristics; and requiring local WCO provisions to control diffuse authorities to take account of WCO sources of sediment or contaminants status in land use planning including entering rivers as a result of land use. controlling land uses to safeguard

97 Rangitata South Irrigation Ltd v Fish and Game (Environment Court C109/2004 5 August 2004) 98 Under the former WSCA, the Planning Tribunal held that the WSCA did not authorise the making pp137 and 83. of an Order to protect landform values, although the contribution that the subject waters make to those values could be taken into account in deciding whether the waters should be subject to an Order. See Re National Water Conservation (Motu River) Order 1983 (1984) 10 NZTPA 7 at 12. 06 35

Other RMA SECTION SUMMARY

q5IJTTFDUJPOFYBNJOFT major hydro-electricity tools for river the statutory planning and irrigation proposals framework for river with potentially significant protection management under the RMA, adverse effects on river other than that for WCOs, health and in-stream values. and identifies opportunities q4USBUFHJDQMBOOJOH to enhance river protection. and their instruments, such as q%FDJTJPONBLJOHBCPVUVTF national policy statements and development proposals and national environmental efficacy has occurred at a faster rate standards, have been than the development of under-utilised as means a comprehensive planning to protect rivers.99 framework that includes q"/BUJPOBM1PMJDZ4UBUFNFOU effective provisions for (NPS) for Freshwater river protection. Management was released q5IFoVTFpBOEoEFWFMPQNFOUp in May 2011 and an NPS elements of sustainable for Renewable Electricity management in the RMA Generation was released in appear to be given greater April 2011. Both make regional attention and weight than planning compulsory with the the “protection” element. latter on a faster time track. Councils have consented Both affect rivers.

Sustainable management cultural wellbeing and for their health includes “protection” of and safety while— natural and physical (a) sustaining the potential of natural resources and physical resources (excluding The purpose of the RMA is to promote minerals) to meet the reasonably the sustainable management of natural foreseeable needs of future and physical resources. Sustainable generations; and management means managing the use, (b) safeguarding the life-supporting development, and protection [our capacity of air, water, soil, and emphasis] of natural and physical ecosystems; and resources in a way, or at a rate, that enables people and communities to (c) avoiding, remedying, or mitigating provide for their social, economic, and any adverse effects of activities on the

99 National policy statements state objectives and policies for matters of national significance. National environmental standards are legally enforceable regulations that provide a standard to be enforced nationally. Protecting New Zealand’s Rivers 36

Sustainable management means managing the use, development, and protection [our emphasis] of natural and physical resources...

environment (section 5 RMA) instruments currently available in proposed abstraction, diversion, legislation (e.g. national policy or other interference... While sustainable management statements, national environmental includes the protection of natural and “Absence of evidence that proposed standards) have been under-utilised”.100 physical resources, application of the abstraction, diversion or other broad overall judgement approach has A result is that individual consent interference with natural levels seen “use and development” being decisions to take, dam, divert and or flows would be unsustainable favoured over “protection.” The RMA’s use water are made with little does not justify granting a permit. enabling thrust and effects-based consideration of their cumulative Rather, unless a consent authority regime means that regional councils effects over the whole catchment. is positively satisfied that exercise have more often sought to remedy Fish and Game has described this of the permit would be sustainable or mitigate effects, rather than approach as the “salami syndrome” management of the resource, it proactively protect water bodies by whereby river flows are sliced should refuse consent.”102 prohibiting takes, dams, diversions incrementally but repeatedly, Resource consent decisions for or other uses that degrade a river’s compromising a river’s healthy abstraction and diversion have been natural state. functioning, habitat values, and and are made on rivers for which there recreational and other amenity Policies and plans under the RMA is either no environmental flow and values. This has also been described have not kept pace with the speed allocation regime or an inadequate as “death by a thousand cuts” and of development. Hydro generation one (e.g. a minimum flow that does “a little bit more of a little bit less”101. and irrigation developments have not recognise the need to protect occurred at a faster rate than either The approach described by retired flow variability). Controls on land use the Ministry for the Environment (MfE) Environment Judge, David Sheppard, and intensification have been slow to has been able to formulate and achieve could be adopted more widely: develop and are rudimentary in areas operative national policies and such as the Mackenzie Basin where “A water body may be able to tolerate environmental standards, or regional water is vulnerable to developments some abstraction, diversion or councils have been able to finalise and such as intensive dairying. make regional plans operative. interference with the natural pattern of changes of levels and flows while Section 9 RMA (restrictions on land As MfE and the Ministry of Agriculture qualifying as sustainably managed. use) is enabling, meaning that any and Forestry noted in 2004: But the manner and rate of land use can occur unless a national “Existing frameworks and processes for interference with its natural regime environmental standard (NES) or resolving competing national interests that can be tolerated has to be district or regional plan rule provides and optimising complementary prudently considered in respect of otherwise. However, for water, this outcomes are poorly developed and each water body and catchment, and presumption is reversed, and water inadequately used. The national the conditions that would apply to the takes or discharges to water cannot

100 MfE & MAF (2004) identified by regional councils during the Sustainable Water Programme 101 McDowall, Robert M (attrib.) of Action. 102 Sheppard David F (October 2010). Protecting New Zealand’s Rivers 37

occur unless expressly allowed by a regional councils to manage the effects of land use and development National Environment Standard (NES), catchments of outstanding rivers, to maintain indigenous biological a plan rule or a resource consent. an aspect that cannot be covered diversity. This should influence the If this latter presumption had applied by a WCO. preparation of second-generation to land uses affecting water quality The NPS for Renewable Electricity regional and district plans to better as well, these may have been a focus Generation 2011 requires councils to protect freshwater biodiversity. for action earlier. amend their existing and proposed MfE’s Quality Planning website104 The deficiencies in the current RMA policy statements and plans within has a substantial guidance note framework for water management 24 months to provide for renewable on indigenous biodiversity to were a stimulus for the Sustainable energy generation if the documents assist councils in implementing Programme of Action for Freshwater do not already do so. One policy these functions. However, specific 2003–2008 and the more recent promotes offsets or environmental references to freshwater biodiversity Fresh Start for Fresh Water. compensation where “residual are limited. environmental effects” cannot be National Policy Statements103 avoided, remedied, or mitigated. The New Zealand Biodiversity As hydro-electricity is considered Strategy (2000) noted the disparity The purpose of a national policy renewable, this NPS affects rivers. between achieving representative statement (NPS) is to state objectives It can be argued that although protected areas on land and in water, and policies for matters of national water is a renewable resource, and suggested “a special focus on significance relevant to achieving rivers are not. sympathetic management of fresh sustainable management under water and surrounding land areas”.105 the RMA. An NPS can direct a local Both the NPS for Freshwater authority to amend its regional policy Management and the NPS for When the Strategy was reviewed statement or district or regional plan Renewable Electricity Generation in 2005 the need to prioritise to include specific objectives and will therefore guide decision-makers protection and restoration of policies (without notification or public on resource consent applications freshwater ecosystems and hearings), or to amend these within affecting rivers. However there is biodiversity was again highlighted. no clear guidance on the integration a designated timeframe to give effect Neither the proposed NPS for of the two policy statements should to the NPS. Indigenous Biodiversity, nor the they be in conflict. The NPS for Freshwater Management NPS Freshwater Management include was gazetted on 12 May 2011. specific requirements relative to Maintaining indigenous indigenous freshwater biodiversity. Objective A2 of the NPS requires biodiversity protection of the quality of There is a need for either a Statement Under section 30 of the RMA, outstanding freshwater bodies. of National Priorities for Protecting regional councils have the function This may result in regional councils Rare and Threatened Biodiversity of controlling the use of land for identifying outstanding rivers within in Freshwater Environments or the the purpose of maintaining and their regions but applies only to water proposed NPS for Indigenous enhancing freshwater and coastal quality and gives no guidance as to Biodiversity or NPS Freshwater water ecosystems. They are also how this is to be achieved. Management to be expanded to responsible for objectives, policies include and provide guidance On the other hand, the direction and methods for maintaining specifically for the protection of given in the NPS for Freshwater indigenous biological diversity. freshwater indigenous biodiversity. Management to establish water Territorial authorities have had a quality limits gives a mandate to parallel responsibility to control the

103 Biodiversity and national policy statements are discussed in the next sub-section. 110 SKM (16 April 2010 at p24. 104 www.qualityplanning.org.nz. 111 Ministry for Environment (March 2008) defines environmental flow as “the flows and water 105 Department of Conservation and Ministry for the Environment (2000) at p49. levels required in a water body to provide for a given set of values which are established through 106 SKM (16 April 2010). a regional plan or other statutory process.” MfE defines ecological flows as “the flows and water 107 SKM (16 April 2010) See Table 3 at p100. levels required in a wate rbody to provide for the ecological integrity of the flora and fauna present 108 SKM (16 April 2010) See Table 4 at p 101. within water bodies and their margins.” 109 SKM (16 April 2010) at p25. Protecting New Zealand’s Rivers 38

National environmental councils (Northland and West Coast) set Regional councils have used different standards minimum flows but have no allocation technical methods to assess ecological limits, while another four (Auckland, flows, the consequences of A 2010 survey and review undertaken Taranaki, Chatham Islands and Gisborne) abstraction, and flow options. They 106 for MfE of regional council practice have neither minimum flows nor have applied flow regimes at scales in setting and meeting RMA-based allocation regimes for surface water.108 varying from specific catchments to limits for freshwater flows and quality Gisborne and Hawke’s Bay use short- more generic (or default) regional shows inconsistent performance in term consents (5–10 years) to provide approaches. The lack of a consistent developing an integrated planning more control over consented takes.109 national method has made determining framework for rivers. flow regimes more difficult and has Activities that fall outside the set generated considerable debate over All 17 regional councils and unitary allocation or flow regime generally the appropriate methodology and the authorities in New Zealand have trigger a change in consent status impacts of different regimes on river objectives and policies in their regional (generally from permitted or controlled health and values.112 plans that address water quality and to discretionary as allocation increases). quantity for surface water. In relation Six councils use non-complying status The Land and Water Forum noted to water quality, 11 of 17 regional when some or all of the allocation the importance of NPS and NES in councils have operative or proposed regimes set in the plans are exceeded. establishing limits, standards and region-wide water quality limits, but These councils are: Horizons, Nelson, targets for water quality and flows. at present only six councils give these Tasman, Marlborough, Canterbury Finalising the proposed NES on limits regulatory status in plan rules.107 and Southland.110 Ecological Flows and Water Levels Case law has shown that for limits to is desirable to promote consistency Setting an environmental flow111 or be effective in constraining adverse in the selection and application of water level requires the regional effects, they have to include both technical methods. council to identify the natural and strong clear policies and specific rules. use values associated with the water MfE states the NES is intended to: Twelve councils have flow regimes and body, and the consequences for those “enable regional councils to avoid allocation limits for some or all of the values of changes in the quantity and over-allocation of the resource and surface waters in their region that have variability in flows and levels caused by should avoid the degradation of natural regulatory status in plan rules (eight of abstraction and diversion. Ecological values until a thorough assessment these are operative and four proposed). flows are a subset of an environmental of the potential impacts of water 113 Rules refer to the available level of flow regime and provide a base limit use has been undertaken.” allocation in the river or the compliance on the extent to which flows and water Assessing potential impacts of with a minimum flow. Two of these levels can be altered. abstractive use first requires an assessment of the river’s in-stream values and their significance relative to Finalising the proposed NES other rivers in the region and nationally. Enabling regional councils to impose on Ecological Flows and Water moratoria while they undertake values assessments, promote a collaborative Levels is desirable to promote process among stakeholders and amend their plans would help avoid consistency in the selection and over-allocation and ensure flow regimes were based on a better understanding application of technical methods of in-stream values. Without moratoria,

112 SKM (16 April 2010 at p18). MfE says other challenges councils identified in the timely  q"IJTUPSJDBMGPDVTPONJOJNVNаPXTSBUIFSUIBOFOWJSPONFOUBMаPXT SFTVMUJOHJOVODFSUBJOUZ establishment of environmental flows and water levels included: that ecosystem function is safeguarded and limited protection for in-stream values when  q$POUFOUJPVT MJUJHJPVTBOEBDDPSEJOHMZMFOHUIZEFDJTJPONBLJOHQSPDFTT demand increases.  q/PDPOTJTUFOUBHSFFENFUIPEPMPHZGPSBTTFTTJOHSJWFSWBMVFTBOEFTUBCMJTIJOHаPXSFHJNFT  q/PDPOTJTUFOUBHSFFENFUIPETUPSFTQPOEUPUIFQPUFOUJBMJNQBDUTPGGVUVSFDMJNBUFWBSJBCJMJUZ The selection, application and merits of different methodologies are contested by stakeholders or climate change on water availability. through the plan process, including at the Environment Court.  q"MBDLPGаFYJCJMJUZJOQMBOOJOHJOTUSVNFOUTPCTUSVDUJOHBEBQUJWFBQQSPBDIFT4FF.JOJTUSZGPSUIF  q%BUBDPMMFDUFEVTJOHCFTUQSBDUJDFBOEHPPETDJFODFCFJOHIFBWJMZDPOUFTUFEJO&OWJSPONFOU Environment (March 2008). Court hearings. 113 Ministry for the Environment (March 2008) at section 4.1. Protecting New Zealand’s Rivers 39

applications for abstraction are likely Jackson noted that a regional plan In Coromandel Watchdog of Hauraki to continue to outpace plan variations. prepared under section 65 of the RMA Inc. v Chief Executive of the Ministry of Moratoria powers in the ECan Act must gives greater flexibility to deal with Economic Development119 the Court of be directed at specific catchments and water allocation issues than does a Appeal upheld the use of district plan require prior approval of the Minister for WCO under Part 9.118 However WCOs rules to prohibit mining in part of the the Environment. Giving other regional are more robust than regional plans, Thames district, paving the way for councils a similar ability to implement and have afforded crucial protection wider use of prohibited-activity rules in moratoria would enable them to in the absence of regional plans, or plans. The Court identified prohibited enhance regional planning. catchment plans that set environmental status as potentially appropriate where flows and establish an annual a council had insufficient information Regional plans as a allocation limit for particular rivers. while developing a plan to determine protection tool Even where regional plans include an how an activity should be provided for; environmental flow regime (rather than where it sought to take a deliberate Regional plans have to promote the just a minimum flow), they often do not staged approach; and/or where it RMA’s purpose of sustainable provide secure protection for natural wanted to direct in a strategic way the management. Matters of national flow regimes because of the wide use of sustainable management of resources. importance in the RMA include the discretionary or non-complying status preservation of the natural character of Prohibited activity rules require rivers and their margins and protection for takes that breach the flow regimes. adequate scientific justification, strong of this from inappropriate subdivision, The case history of TrustPower Limited’s section 32 RMA benefit-cost analysis120 use and development114; the protection consented 73 MW hydro scheme on and policy support. Given the economic of outstanding natural features and Marlborough’s illustrates value of water, they are likely to be landscapes from inappropriate that non-complying status does not strongly contested by user interests subdivision, use and development115; guarantee the protection of in-stream and must survive the plan submission, the maintenance and enhancement values, even though the granting of that hearing and appeal process to become of public access to and along lakes consent is in breach of the flow regime operative. Plan changes can also be and rivers 116; and the protection of for that river. initiated to try and rescind prohibited significant habitats of indigenous activity status. fauna117. However, they comprise only Often, robust scientific information In Canterbury, the Natural Resources some of the matters in Part 2 that must about the ecological and other Regional Plan notes the merit in to be considered when making an effects of decreasing river flows is “protecting some of the region’s rivers “overall broad judgement” of what not available. Councils have therefore and lakes in a relatively natural state”. constitutes sustainable management. been unable to quantify sustainable allocation limits. There has been It says, “In general the level of Regional plan objectives, policies reluctance to constrain resource use protection should be that activities and rules controlling the take, use, and economic development in the face affecting their natural character and and diversion of water can provide of opposition from abstraction and value should have no significant adverse 121 a measure of practical protection for generation interests, and councils have effect.” Flow and allocation regimes are generally seen as appropriate to rivers by prohibiting activities such as made little use of prohibited activity achieve this. The plan prohibits dams damming or large-scale abstraction rules. For example, the Wairau Awatere from specified rivers or reaches, on a small number of river reaches with Plan only prohibits abstraction from and applying non-complying activity high natural character. four small lakes (all within public status to activities that would breach conservation land) and an aquifer Greater use of prohibited status by environmental flow regimes. (if water is to be transferred out of councils would promote certainty, In the Rangitata South case, Judge the catchment). protect future options, help safeguard

114 Section 6(a) RMA. 119 Coromandel Watchdog of Hauraki Inc. v Chief Executive of the Ministry of Economic Development 115 Section 6(b) RMA. [2007] NZCA 473 285/05. 116 Section 6(d) RMA. 120 Section 32(4)(b) RMA requires this evaluation to take into account the risk of acting or not acting 117 Section 6(c) RMA. if there is uncertainty or insufficient information about the issue addressed by policies or rules. 118 Jackson J in Rangitata South Irrigation Ltd v Fish and Game (Environment Court C109/2004 5 121 Natural Resource Regional Plan (as modified by Decisions), Chapter 5 Water Quantity, section August 2004) at p21. 5.4.1.1. Protecting New Zealand’s Rivers 40

Progress in developing tools to assess and classify waterways on a national scale could improve protection of freshwater biodiversity and rivers.

biodiversity and ecosystem functioning Regional Plan identifies upper catchment The waters within public conservation and better provide for the “protection” reaches of a small number of rivers lands are generally of high value and element of sustainable management. within public conservation land as in a natural state. Development of “natural state” waterways for the them may be inconsistent with their Protecting water quality purposes of water quality classification, conservation and protection and but does not prohibit discharges or could also be inconsistent with The RMA provides for a system of takes. If a river has a “natural state” sustainable management of water. classifying water bodies through classification for water quality RMA section 104(1) sets out the regional rules (section 69). The water purposes, then another classification matters to which decision-makers on quality classes (RMA Third Schedule) for abstraction purposes and supporting resource consents must have regard. relate to the purposes for which water objectives, policies and rules would They do not include conservation is to be managed. Standards are set seem logical and reasonable. for waters that are to be managed for management strategies or national freshwater ecosystems, fisheries, fish The Environment Court, however, has park management plans. While a spawning, gathering or cultivation of discharged Trust Power on the Wairau consent authority has a discretion shellfish for human consumption, River from meeting water quality whether or not to consider them under water supply, contact recreation, standards. section RMA 104(1)(c) (“any other irrigation, industrial abstraction, matter the consent authority considers aesthetic and cultural purposes and RMA co-ordination with relevant and reasonably necessary water being managed in its natural conservation legislation to determine the application”), their state. Councils can set more stringent specific inclusion would ensure that The National Parks, Conservation, and specific standards than those they are indeed considered. Wildlife, and Reserves Acts and the in the Third Schedule but cannot Freshwater Fisheries Regulations 1983 set standards that would result in a Methods for assessing the enable protection of the land part reduction in water quality. The classes (riverbeds and banks) of freshwater values of rivers apply after reasonable mixing of any habitats with significant conservation Progress in developing tools to assess (authorised) contaminant discharged or species values. As flows and and classify waterways on a national into the receiving water. discharges are primarily administered scale could improve protection of The Bay of Plenty Regional Plan has by regional councils under the RMA, freshwater biodiversity and rivers. natural-state water quality standards however, complementary provisions These tools can identify rivers or for waterways in public conservation are needed in regional plans and sections of rivers that are land, but no similar recognition for policies to ensure that the quality of “outstanding” nationally and merit abstraction. Environment such protection is maintained in preservation and protection using Canterbury’s Natural Resources resource consent decision-making. WCOs, regional plan rules and/or Protecting New Zealand’s Rivers 41

additions to public conservation land implementation of a National Land on Ecological Flows and Water Levels and waters. One such tool is the and Water Strategy. is desirable. Freshwater Ecosystems of New Zealand “National instruments should be Consideration should be given to amending (FENZ) geodatabase. FENZ includes developed to enable and give priority the RMA to allow regional councils to use rankings for biodiversity value that to large scale consents, regional moratoria (similar to those in the ECan indicate a minimum set of sites plans and water conservation Act 2010) to pause consent applications that would provide representative orders that have undertaken an while a river’s in-stream values are protection for a full range of freshwater initial collaborative approach over assessed, flow regimes developed ecosystems, while taking account of or reviewed, and plans amended. 122 proposals that have not undertaken human pressures and connectivity. 124 that approach. Regional plan objectives, policies and rules Rivers or river reaches with “We need to use the RMA and the tools controlling the take, use, and diversion of outstanding landscape, amenity, it provides to greatest effect, together water should be used to provide a measure recreational, cultural and other values with a national strategic approach, of practical protection for rivers by could be identified using the River and using collaborative approaches prohibiting activities such as damming Values Assessment System (RiVAS).123 to engage water and land users, and or large-scale abstraction, diversions It seeks to provide a standardised communities, including iwi, in the or other uses that degrade a river’s method for regional councils to management of our water resources.” 125 natural state. Non-complying activity assess the significance of both classification can also give some level in-stream and out-of-stream river of protection but cannot be relied upon. values. It can be used to generate NZCA conclusions Regional plans should recognise and lists of rivers graded by relative Greater emphasis needs to be placed on protect the natural state of rivers within importance for different uses. the protection of rivers as a means to public conservation land through plan achieve their sustainable management. objectives, policies and methods. Rules Collaborative processes The over-emphasis on use and prohibiting new takes, diversions and development requires correction. Non-statutory, multi-stakeholder discharges would provide secure collaborative processes for consenting A Statement of National Priorities protection for such rivers. abstractive river uses are increasingly for Protecting Rare and Threatened RMA decision-makers should be being explored in an attempt to reduce Biodiversity in Freshwater Environments required to have regard to the protected the adversarial and litigious nature of should be issued. NPSs should include status of public conservation land and subsequent RMA processes. They are specific policies on indigenous waters if a consent application affects hoped to result in better-formulated freshwater biodiversity. consent applications, encourage more conservation land or waters within it Appropriate guidance is needed efficient use of existing takes, and (reflecting the protection component to resolve conflicts between NPS therefore reduce demand for water. of sustainable management). Freshwater Management and NPS An amendment should be made to The Land and Water Forum (itself a Renewable Electricity Generation. RMA section 104(1) to include by name collaborative process) endorsed NESs would help improve water management plans and strategies further use of collaborative processes management and allocation, and issued under other legislation (e.g. and recommended: also achieve improvements in the conservation management strategies, “The establishment of a non-statutory slow and heavily contested process national park management plans, National Land and Water Commission of establishing environmental flows fisheries plans, iwi management plans) as a co-ordinating, leadership and and water levels in regional plans. as a mandatory consideration in collaborative body to oversee the Prompt gazettal of the proposed NES resource consent decision-making.

122 DOC through its Natural Heritage Management Strategy using scientific and technical expert teams 123 Hughey K, Booth K, Deans N and Baker MA (December 2009). has assessed representative ecosystems to prepare a draft list off sites requiring protection for 124 Land and Water Forum (September 2010) at p 43. their ecological values. These sites have been identified using a weighting of their relative value, 125 Land and Water Forum (September 2010) at p 18. the degree of threat, and the cost of protection and restoration. The list includes some rivers. Their value ratings have been derived from FENZ. The highest priority sites are being included in conservation management strategies. 42

Greater emphasis needs to be placed on the protection of rivers as a means to achieve their sustainable management.

Photo: Waipakihi River, Kaimanawa Ranges. Photographer: Brian Stephenson. 07 43

Enhancing river protection NZCA recommendations

Protect outstanding rivers middle and lower reaches are No government agency has a specific protected. Many highly significant responsibility to preserve and protect 1. Government commitment is required waterways have no formal rivers as an entity. Giving a single to protect river systems and river protection whatsoever. agency this responsibility could help reaches that remain in or are close promote a more strategic approach It is equally important that rivers to, their natural state and or have to river protection generally, and with outstanding characteristics be outstanding wild, scenic and amenity WCOs specifically, so as to protect protected, even if they are no longer characteristics. a representative range of rivers in their natural state. Many of our rivers are already highly with outstanding values. Once established, this network should altered from their natural state, 5. Regional councils could make be genuinely protected and not eroded especially in their lowland reaches. greater use of prohibited activity status by development proposals. A commitment to protect those in regional plans to secure protection remaining outstanding or natural rivers 3. A stocktake of the extent of river (from development and extractive would prevent any further loss of these protection in New Zealand is needed uses) for remaining wild and natural high-value rivers. Once these values to provide baseline information, rivers with outstanding values. are lost it is expensive and almost track progress towards the protection While non-complying activity status impossible to return them to their of a representative range of freshwater in a regional plan provides a signal previous state—a poor legacy for ecosystems and habitats, and future generations. to users as to what is considered determine where additional an inappropriate activity due to protection is needed. the values of a specified location, it Establish a network of does not guarantee that development protected rivers This baseline information would ensure future policy is developed on a fully proposals that affect those values 2. A key objective of national water informed platform. The protection of will be declined as evidenced by policy should be the establishment rivers could be enhanced if a national the 2010-approved hydro-electricity of a representative network of inventory of outstanding rivers (and scheme for the Wairau River. protected rivers, including rivers with parts of rivers) were compiled to outstanding ecological, landscape, identify and prioritise candidate rivers. Ensure water management scenic, recreational, amenity and This would ensure rivers with the properly reflects the cultural characteristics and values. highest ranking values are targeted conservation status of for protection. conservation land and It is important to protect a fully the rivers within it representative range of the different 4. Allocate a government or freshwater ecosystems, habitats and quasi-government agency specific 6. RMA decision-makers should biodiversity. While some upland rivers responsibility for protecting be required to have regard to the and mountain streams are included rivers, including advancing water protected status of lands and waters within our protected places, few conservation orders (WCOs). managed by DOC if these are affected Protecting New Zealand’s Rivers 44

by a consent application, to properly extract water from rivers in public history isolated from other land reflect the protection component of conservation land. masses—and is in decline. Its sustainable management. protection needs to be made a priority Applicants for resource consents in decision-making around land and Each river is an ecological corridor from that will affect public conservation water management for this decline its source in mountains or hill country land currently do not need to first to be halted and reversed. Whilst a to its end at the sea, and is affected in get landowner (i.e. DOC) permission draft NPS for Indigenous Biodiversity different parts by the activities on or under conservation legislation. has been released, it only covers (a alongside the river. Although public This means that a full consent conservation land has a protected process can be completed only narrow range of) terrestrial species. status, and in a limited number of to have use of conservation land, instances the water also, they can where required, declined. Protect Crown riverbeds be negatively impacted by activities 9. Rivers, including water, within 11. Crown riverbeds with conservation upstream, downstream and around national park boundaries should values should be managed for those them, as they are all parts of have national park status. values. complicated interconnected ecosystems. It is therefore important that the impact Owing to their large size and high The Land Act 1948 should be amended of activities on conservation values level of protection, national parks to provide for the establishment of are explicitly required to be considered are of particular importance for river management objectives for Crown in decision-making. protection. In most cases, national land including riverbeds and a public park status protects the beds of all consultation process for the disposal 7. The RMA should be amended to water bodies within the park boundaries or leasing of any interest in them. include conservation management but in only some cases does it cover strategies and conservation and the water. Even then, the protection Extensive areas of riverbed are managed national park management plans provided by national park status does as Crown land. They provide critical by name in section 104(1)(b) or (c) not extend to river flows, nor does habitat for braided river birds and as matters that consent authorities protection extend beyond national riverbed plants. There is no requirement must have regard to. park boundaries. Therefore, even if for them to have management objectives or for there to be public input into While a consent authority has the a river is in part in a national park, decisions about their use or management. discretion whether or not to consider it is not protected in its entirety. them under section 104(1)(c) RMA (“any other matter the consent Indigenous biodiversity Mechanisms in conservation authority considers relevant and legislation 10. A Statement of National Priorities reasonably necessary to determine for Protecting Rare and Threatened 12. The opportunities available to the application”), their specific Biodiversity in Freshwater Environments enhance protection for rivers by applying inclusion would ensure that such should be issued or the current proposed faunistic reserve or watercourse area strategies and plans are considered. NPS for Indigenous Biodiversity or the status should be explored by DOC. Such an amendment would be NPS Freshwater Management expanded The National Parks, Conservation, consistent with the approach taken to specifically include freshwater Wildlife and Reserves Acts, and the in section 66(2)(c)(i) where regional indigenous biodiversity. Freshwater Fisheries Regulations 1983 plans must have regard for them. New Zealand’s freshwater indigenous enable varying levels of protection of 8. Landowner permission should be biodiversity is unique—92 per cent freshwater habitats with significant obtained prior to lodging resource of our freshwater fish species are conservation values through such consent applications to modify or endemic because of our evolutionary instruments. Protecting New Zealand’s Rivers 45

Retain WCOs and improve Case law indicates that enhancement Ecological Flows and Water Levels their use of an outstanding characteristic (e.g. would help provide more comprehensive of a threatened species population protection for river values. 13. WCOs should be retained to through an improved flow regime) is Establishing standards for water is provide protection for rivers and other beyond the scope of the legislation. water bodies with outstanding values. both politically and technically difficult 16. The two year restriction on and expensive. If requirements in Regional planning has often lagged applications to amend or revoke the NPS Freshwater Management to behind increasing demand for operative WCOs should be lengthened. establish standards for all rivers in all abstraction of surface water. WCOs Or alternatively, give WCOs greater regions are to be met in a nationally have been valuable in augmenting permanency appropriate to the consistent and meaningful way, there regional water planning through rigorous process for achieving a WCO. needs to be national guidance on how setting flow and allocation regimes to set these standards and what they for particular rivers in the absence 17. Canterbury rivers should be must encompass. Without NESs setting of regional or catchment plans. considered under the standard flow and quality standards, litigation RMA process after October 2013. WCOs are achieved through a by vested interests will continue in transparent and robust process In Canterbury, the ECan Act means each region. requiring a significant investment WCO applications are considered The NES needs to include a tool that of time and expertise by applicants, against different criteria with sets ‘hard limits’, i.e. takes beyond user groups, and submitters, and Environment Canterbury the limits set in plans are not allowed. careful consideration of technical Commissioners rather than a Special Currently most plans allow consents and other evidence by Special Tribunal making recommendations to to be applied for, and granted, beyond Tribunals and testing of evidence the Minister. The Environment Court the allocation limit set in a plan. by the Environment Court. now has no jurisdiction over WCOs in the Canterbury region. 19. The RMA should be amended 14. The RMA should be amended to to allow regional councils to use enable a WCO to include provisions The different statutory tests for a new moratoria (similar to those in the applying to land use that may impact WCO or applications to amend an ECan Act 2010) to pause consent on the effect of a WCO, and to require existing WCO in Canterbury mean applications while a river’s in-stream local authorities to have particular significantly less weight is given to the values are assessed, flow regimes regard to the protection of outstanding requirement to preserve and protect developed, and plans amended. values, as recognised by a WCO, in nationally outstanding water bodies, managing land use through plans and greater weight is given to potential Consents involve legal rights to use and consent decisions in catchments uses of water. water. It can be legally difficult and where the river is subject to a WCO. prohibitively expensive to take back Improve river management water that has been allocated if it This would help implement the under the RMA is subsequently found that a river recommendation of the Land and is over allocated and not able to Water Forum that the WCO provisions 18. A National Environmental Standard sustain its in-stream values. in the RMA be amended to enable on Ecological Flows and Water Levels them to achieve an integrated should be implemented. management approach. Additional national standards and 15. The RMA should be amended so that policy guidance for recognition of river WCOs can provide for enhancement values not covered by the proposed of outstanding characteristics. National Environmental Standard on 46

Government commitment is required to protect river systems and river reaches that remain in or are close to, their natural state and or have outstanding wild, scenic and amenity characteristics.

Lower Moeraki River, South Westland. Photo: Wilderness Lodges NZ Ltd Protecting New Zealand’s Rivers 47

Glossary

CWMS Canterbury Water Management Mātaitai seafood RiVAS River Values Assessment System Strategy 2009 Mātaitai reserve an identified RMA Resource Management Act (1991) DOC Department of Conservation traditional fishing ground established Rohe geographical territory of an iwi or ECan Environment Canterbury as a mātaitai reserve under the hapū Fisheries (South Island Customary ECan Act Environment Canterbury Fishing) Regulations 1999 SWPOA Sustainable Water Programme (Temporary Commissioners and of Action Mauri life force Improved Water Management) Act Tangata tiaki/kaitiaki guardians 2010 MfE Ministry for the Environment Tangata whenua indigenous people of MFish Ministry of Fisheries FENZ Freshwater Ecosystems of the land New Zealand NES National Environment Standard Taonga things or places of great value Fluvial morpohology the study of the NGO Non-governmental organisation Tauranga ika fishing ground processes and pressures operating on NHMS Natural Heritage Management Tika correct, proper river systems System Hāngi earth oven NPS National Policy Statement Tikanga Māori Māori customary values and practices Hapū kinship group, subtribe NRWQN National Rivers Water Quality Wāhi tapu sacred place Hydro hydro-electricity generation Network WONI Waterbodies of National Iwi extended kinship group, tribe NZCA New Zealand Conservation Authority Importance Kaitiaki guardian OECD Organisation for Economic WSCA Water and Soil Conservation Kaitiakitanga the exercise of Co-operation and Development Act 1967 guardianship Rāhui a restriction or control of WSC Amendment Act Water and Soil LINZ Land Information New Zealand specified activities put in place by the Conservation Amendment Act 1981; MAF Ministry of Agriculture and tangata whenua as kaitiaki to manage also known as Wild and Scenic Rivers Forestry an area in accordance with tikanga Amendment Mahinga kai food REC River Environment Classification WCO Water conservation order Protecting New Zealand’s Rivers 48

References

Allibone R, David B, Hitchmough R., Department of Conservation and Hayes, B.E (2003) The Law of Public Jellyman D, Ling N, Ravenscroft D, Ministry for the Environment (2000) Access Along Water Margins ISBN Waters J (2010). Conservation status New Zealand Biodiversity Strategy. 0-478-07762-9. of New Zealand freshwater fish, 2009 www.biodiversity.govt.nz/picture/ Hughey K, Cullen R, Kerr G (March in New Zealand Journal of Marine doing/nzbs/ 2009) Public Perceptions of New and Freshwater Research, 1175-8805, Department of Conservation (August Zealand’s Environment: 2008, Volume 44 Issue 4, pp 271–287. 2010) Freshwater Ecosystems of Lincoln University. Baker, M (August 2010) A watershed New Zealand (FENZ) Geodatabase, Hughey K, Booth K, Deans N and Baker moment in Canterbury for water Unpublished DOC internal report. M-A. (December 2009) River Values management in New Zealand in Department of Conservation Assessment System (RiVAS) - Resource Management Journal (September 2010) Department of The Method. pp20-26. Resource Management Conservation Annual Report for the Law Association of NZ Inc. Kelly D (2008) Evidence for DOC, year ended 30 June 2010. Mokihinui River hydro application Booth K, England A, Rankin D, Eikaas, H.S., Harding, J.S., Kliskey, by Meridian Energy Limited at paras. Unwin M, Charles G, England, K, A.D. & McIntosh, A.R. (2005) The effect 9.3.–9.5 See www.wcrc.govt.nz/ Riley K, Ritchie D (21 February 2010) of terrestrial habitat fragmentation mokihinui. Whitewater kayaking in the West Coast on fish populations in small streams: Region: Application of the River Landcare Research (December 2010) A case study from New Zealand. Values Assessment System (RIVAS.) Discovery 10, Issue 32, Integrated Norsk Geografisk Tidsskrift–Norwegian Lindis Consulting. Catchment Management. ICM Journal of Geography Vol. 59: 1–8. Research. Beentjes, M.P. (2010) Toheroa survey Grainger, N (4 August 2010) What is of Bluecliffs Beach, 2009, and Review Land and Water Forum (September Freshwater Ecosystems of New Zealand of historical surveys. New Zealand 2010) Report of the Land and Water (FENZ)? DOC Intranet. See www.doc. Fisheries Assessment Report 2010/7. Forum: A Fresh Start for Freshwater, govt.nz/conservation/land-and- Land and Water Forum. Berry S and Matheson B (2005) Water freshwater/freshwater/freshwater- chapter in Nolan D (ed) (2005) Third ecosystems-of-new-zealand/. Leathwick JR, Gerbeaux P, Kelly D, edition Environmental and Resource Robertson H, Brown D, Chatterton L Green W and Clarkson B (November and Ausseil A-G (August 2010) Management Law. Lexis Nexis 2005) Turning the Tide? A Review of Freshwater Ecosystems of New Zealand Collet G (23 April 2010) Why we might the First Five Years of the New Zealand (FENZ) Geodatabase User Guide give a dam in The Nelson Mail. Biodiversity Strategy, The Synthesis Version 1, Department of Conservation. Report, Department of Conservation. Cowie B et al (28 October 2010) McDowall R M (1992) Particular Introduction to Decisions on the Harding J, Mosley P, Pearson C and problems for the conservation of (Canterbury) Natural Resources Sorrell B (eds) (2004) Freshwaters diadromous fish. Aquatic Regional Plan. See http://ecan.govt.nz/ of New Zealand, New Zealand Conservation: Marine and Freshwater publications/Plans/nrrp-variations-1-2- Hydrological Society and New Zealand Ecosystems, 2: 351–355. doi: 10.1002/ 4-14-introduction-decisions-231010.pdf Limnological Society. aqc.3270020405. Protecting New Zealand’s Rivers 49

Martin J (1991) Power, politics and of Water, Information Sheet. Special Tribunal (November 2007) power stations: electric power Summary of the Report by a Special Mulcahy K, Peart R and Garvan N generation in New Zealand 1880–1990. (2010) Managing freshwater: An EDS Tribunal appointed by the Minister Wellington. Bridget Williams Books. Guide, Environmental Defence Society. for the Environment to consider an Mercer G (23 March 2011) Damming Application for a Water Conservation National Water and Soil Conservation the Motu River to generate income Order for the Oreti River see www.MfE. Authority (undated) National Inventory for Maori and improve the coast’s govt.nz/ of Wild and Scenic Rivers electricity supply is under Miscellaneous Publication No. 68. Statistics New Zealand. New Zealand consideration in Opotoki News. Agricultural Production Surveys 1999 NAWSCO, (3 April 1984) Report and Milne, P (February 2008) When is recommendations on Rakaia River to 2009. www.stats.govt.nz/browse_ Enough, Enough? Dealing with Water Conservation Order Application. for_stats/industry_sectors/agriculture- Cumulative Effects Under the Resource horticulture-forestry.aspx accessed Management Act. Simpson Grierson. New Zealand Acclimatisation Societies May 2011. (June 1983) An application for a Ministry of Agriculture Policy national water conservation order for Te Ara Encyclopaedia of New Zealand (21 December 2009) Briefing on the Rakaia River and its tributaries. www.terara.govt.nz/rivers/ Facilitating Irrigation Development conservingrivers. in Canterbury. B09-429A. Proffit F (undated). How clean are our rivers? in Water and Atmosphere on Te Runanga O Ngai Tahu (undated) Ministry of Economic Development www.niwa.co.nz/news-and- Freshwater Policy available on (July 2010) Draft New Zealand Energy publications/publications/all/water www.ngaitahu.iwi.nz Strategy Developing Our Energy Potential. Savage L (2005) An overview of climate Unwin, M, (2009) Angler usage of lake change and possible consequences and river fisheries managed by Fish Ministry for the Environment (2001) for Gisborne District. Gisborne Civil and Game New Zealand: results from Protection of Waterbodies of National Defence and Emergency Management the 2007/08 National Angling Survey. Importance: Issues and Options, Group. Unpublished MfE paper. NIWA client report CHC2009-046 Sheppard David F (October 2010) prepared for Fish and Game Ministry for the Environment Reaching Sustainable Management of New Zealand. (March 2008) Proposed National Fresh Water, Presentation to Resource Environmental Standard on Management Law Association Warren P (undated) Riverbed Ecological Flows and Levels, Conference 2010, Christchurch. Protection, Unpublished internal file Discussion Document. note, Department of Conservation. SKM (16 April 2010) Regional Council Ministry for the Environment and Practice for Setting and Meeting RMA Whitewater NZ and Fish and Game Ministry of Agriculture and Forestry Based Limits for Freshwater Flows and New Zealand (20 December 2010) (December 2004) Water Programme Quality, Report for Ministry for the Fish and Game and Whitewater NZ of Action – Potential Water Bodies of Environment. withdraw from the Hurunui Water National Importance, Technical SPARC (2008) Sport, Recreation and Conservation Order. Press statement. Working Paper Physical Activity Participation Among Young D (2004) Our Islands, Our Selves Ministry for the Environment and New Zealand Adults: Key Results of the – A History of Conservation in New Ministry of Agriculture and Forestry 2007/08 Active NZ Survey. Wellington, Zealand University of Otago Press. (October 2006) Water Programme of New Zealand, Sport and Recreation Action – New Zealand A Valuable Body New Zealand. Protecting New Zealand’s Rivers 50

Appendices

Appendix 1: Freshwater management bodies and their responsibilities From: Mulcahy K, Peart R and Garvan N (2010) Managing freshwater: An EDS Guide, Environmental Defence Society at pp.154-155. Reproduced with kind permission of the authors and the Environmental Defence Society.

Management body Role in freshwater management Key legislation

- Minister for the Environment - Oversees freshwater management under the RMA - Environment Act 1986 - Recommends the issue of national policy statements - Resource Management 1991 on fresh water - Environment Canterbury - Recommends the making of national environmental (Temporary Commissioners and standards related to fresh water Improved Water Management) - Recommends the approving of requiring authorities Act 2010 for water infrastructure - Recommends the use of water conservation orders - Calls-in matters of national significance related to fresh water - Oversees the Ministry for the Environment

- Ministry for the Environment - Provides policy advice to the Minister on freshwater - Environment Act 1986 management - Resource Management Act 1991 - Disseminates information on freshwater management Engages in collaborative efforts to improve freshwater management

- Environmental Protection Authority - Processes freshwater management matters of national - Resource Management Act 1991 significance that are ‘called-in’

- Minister of Conservation - Oversees coastal management under the RMA including - Conservation Act 1987 fresh water within the coastal environment - Resource Management Act 1991 - Recommends the issue of the New Zealand coastal policy statement - Calls-in matters of national significance within the coastal environment - Oversees the Department of Conservation and Fish and Game Councils

- Department of Conservation - Manages the conservation estate - Conservation Act 1987 - Manages wildlife (especially section 6 and Part 5B) - Undertakes research into freshwater fisheries - Freshwater Fisheries - Advocates for the conservation of aquatic life and freshwater Regulations 1983 fisheries including involvement in RMA proceedings - Resource Management Act 1991 - Promotes the benefits of conservation and prepares and - Wildlife Act 1953 disseminates conservation materials - Manages the Taupo “sports” fishery and whitebait fisheries - Controls introduced species that cause damage to indigenous freshwater species and habitats Protecting New Zealand’s Rivers 51

Management body Role in freshwater management Key legislation

- Minister of Fisheries - Manages freshwater fisheries, excluding sports fish - Fisheries Act 1996 and whitebait

- Iwi and hapū - Exercise kaitiakitanga over freshwater bodies - Deeds of Settlement - Co-governance and co-management arrangements for - Rotorua and Taupo fisheries specific water bodies regulations

- Fish and Game Councils - Manage freshwater sports fish and gamebirds - Conservation Act 1987 (Part 5A) (mainly waterfowl) - Wildlife Act 1953 (Part2) - Advocate for the interests of sports and game including - Resource Management Act 1991 involvement in RMA proceedings - Licence anglers and gamebird hunters - Undertake hatchery and breeding programmes for sports fish - Undertake research, information and education activities

- Regional councils - Control discharges affecting freshwater bodies - Local Government Act 2002 - Control the taking, use, damming and diverting of fresh water - Resource Management Act 1991 - Allocate fresh water - Control the impact of land use on freshwater quality, quantity, ecosystems and natural hazards - Control the introduction of plants to the bed of freshwater bodies - Maintain indigenous freshwater biological diversity

- Territorial authorities - Control the impact of land use on fresh water - Local Government Act 2002 - Control activities on the surface of freshwater bodies - Resource Management Act 1991 - Provide water and wastewater services - Land Drainage Act 1908 - May control drainage

- Guardians - Make recommendations to the Ministers on management - Conservation Act 1987 of hydro lakes - Lake Wanaka Preservation Act 1973 Protecting New Zealand’s Rivers 52

Appendix 2: Statutory mechanisms for protecting rivers

Mechanisms to protect rivers occur in 17 separate statutes. Only three relate to the whole river—water conservation orders, the protection of rivers within protected areas and river specific statutes. All other tools relate to a specific component of the river ecosystem (riverbeds, adjoining land, wildlife, fish). The main river protection mechanisms described in the main text or summarised below include:  q8BUFSDPOTFSWBUJPOPSEFSTVOEFSUIF3."  q1SPUFDUJPOPGSJWFSTUIBUGBMMXJUIJOQSPUFDUFEBSFBT/BUJPOBM1BSLT"DU 3FTFSWFT"DUBOE$POTFSWBUJPO"DU  q4UBUVUPSZBEWPDBDZCZUIF%FQBSUNFOUPG$POTFSWBUJPO %0$  q1SPUFDUJPOPGSJWFSCFETBOENBOBHFNFOUPG$SPXOMBOE  q1SPUFDUJPOPGMBOEBMPOHTJEFSJWFSTNBSHJOBMTUSJQT XBUFSDPVSTFBSFBT  q1SPUFDUJPOPGXJMEMJGF  q1SPUFDUJPOPGGSFTIXBUFSЯTIBOENBOBHFNFOUPGЯTIJOH  q3JWFSTQFDJЯD"DUT XIJDINBZFODPNQBTTBDPNQMFUFSJWFSTZTUFN  Water Conservation Orders 1. See sections 4 and 5 and Appendices 3, 4 and 5. National Parks Act 1980 and Reserves Act 1977 2. See section 3. Conservation Act 1987 3. DOC’s broad functions under section 6 of the Conservation Act 1987 include: “to manage for conservation purposes, all land, and all other natural and historic resources” held under that Act. (section 6(a)). This includes managing the conservation estate, which includes rivers, lakes, streams, and wetlands. 4. Advocacy for protection of freshwater ecosystems is part of DOC’s broad functions: “to advocate the conservation of natural and historic resources generally” (section 6(b)) and “to prepare, provide, disseminate, promote, and publicise educational and promotional material relating to conservation”.. (section 6(d)). 5. DOC has a specific function: “to preserve as far as is practicable all indigenous freshwater fisheries, and protect recreational freshwater fisheries and freshwater fish habitats.” (section 6(ab)). 6. DOC summarises its freshwater conservation management functions as:  q1SPUFDUJOHGSFTIXBUFSOBUVSBMIFSJUBHF  q1SPUFDUJOHOBUJPOBMMZJNQPSUBOUGSFTIXBUFSFDPTZTUFNTBOETJUFT  q4BGFHVBSEJOHUIFOBUVSBMFDPMPHJDBMDIBSBDUFSPGGSFTIXBUFSFDPTZTUFNTBOEIBCJUBUT  q1SPUFDUJOHGSFTIXBUFSTQFDJFTBOETUPDLT  q.BOBHJOHBMJFOJOWBTJWFT  q1SPWJEJOHGPSSFDSFBUJPOBMVTFPGGSFTIXBUFSFDPTZTUFNTBOETQFDJFT  q1SPWJEJOHBDDFTTBOESFDSFBUJPOBMGBDJMJUJFT TVCKFDUUPQSPUFDUJPOPGGSFTIXBUFSWBMVFT  q)BSWFTUJOHBOENBOBHJOHTUPDL Protecting New Zealand’s Rivers 53

7. The Director-General of Conservation has a range of specific powers in relation to freshwater management (section 53(2) and (3)) including:  q6OEFSUBLJOHSFTFBSDI TVSWFZT BOEJOWFTUJHBUJPOTJOUPGSFTIXBUFSЯTIFSJFT  q*TTVJOHQMBOTBOEQVCMJDBUJPOTSFMBUJOHUPGSFTIXBUFSЯTI  q"EWPDBUJOHGPSUIFDPOTFSWBUJPOPGBRVBUJDMJGFBOEGSFTIXBUFSЯTIFSJFTHFOFSBMMZ  q.BOBHJOHUIF5BVQPTQPSUTЯTIFSZ  q"DRVJSJOHBOEQSPUFDUJOHIBCJUBUT  q$POUSPMMJOHBOZJOUSPEVDFETQFDJFTDBVTJOHEBNBHFUPBOZJOEJHFOPVTTQFDJFTPSIBCJUBU 8. The prior approval of the Minister of Conservation is required to introduce a freshwater species into waters where it does not already occur and for all releases into waters within lands administered by DOC (section 26ZM). Movement of aquatic life between sites where the species already occurs and between the islands of New Zealand requires the prior consent of the Minister of Fisheries (to address risks of disease transfer). 9. While the RMA contains the primary controls on contaminant discharges to water, the Conservation Act (section 39(4)– (7)) defines offences in relation to discharges that cause adverse effects on freshwater fish and their habitat in waters of any tenure. These provisions are rarely used by DOC. The Act also sets out defences.

Protection of riverbeds Crown ownership of riverbeds 10. The Crown owns riverbeds by one of three mechanisms:  q5IFTUBUVUPSZUBLJOHPGOBWJHBCMFSJWFSCFETUISPVHIUIF$PBM.JOFT"NFOENFOU"DU XIJDIWFTUFEBMMOBWJHBCMFSJWFST in the Crown. By subsequent Acts and section 354(1) of the RMA, the beds of navigable rivers remain vested in the Crown. The Court of Appeal has held that for a river to be Crown land under that law it had to be navigable in 1903. In deciding whether a river is navigable, the river as a whole is to be considered even if there are barriers (e.g. waterfalls) on it .  q&YJTUJOHUJUMFJGUIFSJWFSCFEJTJOBEFЯOFE$SPXOUJUMFGSPNQSFWJPVTBDRVJTJUJPOGSPN.ÜPSJPSTVCTFRVFOUPXOFSTPSUIF purchase of title to a riverbed.  q5IFBDRVJTJUJPOPGBENFEJVNЯMVNBRVBFSJHIUT PXOFSTIJQSJHIUTPWFSSJWFSCFEUPUIFDFOUSFPGUIFSJWFSBTBSFTVMUPG acquisition of the adjoining land). 11. Whether the riverbed is still Crown land (even if it was navigable in 1903) is determined by examining whether there has been a subsequent grant of title to the bed. This could be through an explicit grant or through the grant of a land title where the surveyed boundary of the land title includes the riverbed. 12. Where land has a boundary that is a non-navigable stream or river, the certificate of title or computer register issued for that land does not usually include any part of the bed of the stream or stream, and the Registrar will decline to make any endorsement on the title as to whether or not the landowner has any rights to the stream or riverbed. Protecting riverbeds 13. Activities in riverbeds (such as earthworks, structures and planting) are controlled by regional councils under the RMA. 14. Riverbeds like any other piece of land can be legally protected through addition to public conservation land, a covenant or similar measure. For riverbeds that are Crown land, protection is generally achieved using the Conservation Act (section 7), which allows the Minister of Conservation to negotiate an agreement with the Minister responsible for the Protecting New Zealand’s Rivers 54

MBOE HFOFSBMMZ.JOJTUFSPG-BOET UIBUJUCFDPNFTDPOTFSWBUJPOBSFB5IFSJWFSCFEPGUIF)VOUFS3JWFSBOE'SFTIXBUFS River on Rakiura/Stewart Island were recently protected using this process. 15. In some cases, riverbeds are mistakenly thought to be public conservation land because large areas of adjoining land are. The bed of the Porarari River in Paparoa National Park and the Whanganui River are not conservation land, nor are the beds of the upper Rakaia or Rangitata Rivers. For some rivers this is because the land allocation process of the late 1980s, when DOC was established, did not always specifically identify riverbed land as part of the land parcel allocated. 16. The New Zealand Conservation Authority is not aware of any schedule of the amount and type of riverbed land within the conservation estate and its biodiversity values. Riverbeds not in Crown ownership are privately owned by a variety of types of owner.

Protection Of Land Alongside Rivers

Marginal strips 17. Part IV of the Conservation Act requires a marginal strip 20 metres wide to be reserved from sale upon disposal of Crown land adjoining a stream more than three metres wide or a lake over eight hectares in size. The purposes of marginal strips include the maintenance of water quality, protection of aquatic life, and natural values of the riparian zone and providing for public access and recreation (section 24C). 18. Marginal strips are set off where high country pastoral lease land is freeholded through tenure review or when a pastoral lease is renewed. Since 1990, over two thirds of pastoral leases have been through a renewal process and marginal strips should have been set aside. 19. Marginal strips created since 1987 have been notated on the land title and move when the boundaries of the river move. Since 1987, all previous strips set aside under section 58 Land Act 1948 have been deemed to be marginal strips. They do not move, however, when rivers move and can often be within or well away from the actual river or stream margin.

Esplanade reserves and strips 20. Section 229 RMA sets out the purpose of esplanade reserves and strips. They help to protect conservation values by maintaining or enhancing the natural character of riparian and coastal margins, water quality, and aquatic habitats and help with flood protection. They also enable public access to and along rivers, lakes and the coast, including access to undertake customary activities (such as gathering of mahinga kai). 21. Esplanade reserves may be required when land is subdivided or developed or when a road is stopped. Section 230 RMA provides that a 20 metre wide esplanade reserve is created when land beside a river (with an average width of three metres) is subdivided into allotments of less than four hectares, unless a plan rule or resource consent waives or reduces this. 22. They can also be created voluntarily. Land ownership is transferred to a territorial authority and they are classified as reserves under the Reserves Act 1977. The landward boundary is fixed, so does not change as the river moves. 23. Esplanade strips may be required by a rule in a plan, when land is subdivided or developed or when a road is stopped. They can also be created voluntarily by agreement. Esplanade strips are a legal instrument created between a landowner and a territorial authority. Land in the strip remains owned by the landowner. 24. The creation of a strip, and any conditions relating to its use and management, are noted on the land title. These can include excluding public access during certain times. The conditions are binding on every party having an interest in the land. Strips do not need to be formally surveyed. Protecting New Zealand’s Rivers 55

25. Unlike esplanade reserves, the landward boundary of an esplanade strip moves as a river moves (e.g. bank erosion) so that the width of the strip remains unchanged.

Access strips 26. Access strips can be used to enable public access to or along water bodies or public land. They can be established (and cancelled) at any time by agreement between the landowner and the territorial authority under section 237B of the RMA. Access strips are surveyed and fixed. Ownership remains with the landowner.

Legal roads 27. In many cases when Crown land was subdivided in the 19th and 20th centuries, legal roads were set aside along rivers, lakes and the coast (as part of the Queen’s Chain). These can be identified on cadastral maps. Like section 58 Land Act strips, they do not move when rivers change their course. In themselves they do not provide protection but they do provide a buffer. Any land uses on legal road (other than the right of public passage) require consent from the territorial authority.

Watercourse areas adjoining rivers protected by water conservation orders (WCOs) 28. The Conservation Act (section 23) provides for an overlying protective status of “watercourse area” for conservation land or private protected land with outstanding wild, scenic or other natural or recreational characteristics that adjoins any river, lake or stream protected by a WCO. Every watercourse area must be managed to protect the wild, scenic or other natural or recreational characteristics it had when the associated waterway was considered for WCO status, subject to the protective status that applies to the land and the WCO provisions. Watercourse areas are established by Order in Council on the recommendation of the Minister of Conservation. They require the landowner’s consent if established over protected private land.

Protection Of Wildlife

Wildlife Act 1953 29. The Act safeguards designated species of wildlife including waterbirds, some invertebrates and amphibians throughout New Zealand. The Act enables the establishment of wildlife refuge, wildlife sanctuary or wildlife management reserve status over water bodies to control some activities (e.g. motor boat use) affecting wildlife.

Wildlife Regulations 1955 30. While the RMA contains the primary controls on contaminant discharges to water, Regulation 43A of the Wildlife Regulations provides for offences in relation to discharges that cause adverse effects on protected wildlife and their habitat in waters of any tenure. The regulations are rarely used by DOC. 31. DOC could more regularly use section 43A and section 39(4)–(7) Conservation Act to reinforce councils’ enforcement responsibilities under the RMA.

Stautory Acknowledgment Of Rivers

Ngāi Tahu Claims Settlement Act 1998

5IFTUBUVUPSZBDLOPXMFEHFNFOUJOTUSVNFOUJOUIF/HÜJ5BIV$MBJNT4FUUMFNFOU"DUSFDPHOJTFT/HÜJ5BIVnTQBSUJDVMBS cultural, spiritual historical and traditional associations with specified areas on Crown land and a number of rivers and Protecting New Zealand’s Rivers 56

MBLFTTVDIBTUIF5VUBF1VUBQVUB$POXBZ )VSVOVJ 1BSJOHB$MVUIBBOE8BJUBLJ3JWFST4UBUVUPSZBDLOPXMFEHFNFOUT aim to improve the implementation of RMA processes, particularly decision-making in relation to notification of resource consent applications. -PDBMBVUIPSJUJFTXJUIJOUIF/HÜJ5BIVSPIF HFPHSBQIJDBMUFSSJUPSZ NVTUSFDPSEBMMSFMFWBOUTUBUVUPSZBDLOPXMFEHFNFOUT in their plans and policy statements. Statutory acknowledgements empower the Crown agency responsible for the NBOBHFNFOUPGUIFBSFBUPFOUFSJOUPBEFFEPGSFDPHOJUJPOQSPWJEJOHGPSBHSFFEJOQVUCZ/HÜJ5BIVJOUPNBOBHFNFOU QSPDFTTFT5IJTIBTGBDJMJUBUFE/HÜJ5BIVJOQVUJOUPOBUJPOBMQBSLNBOBHFNFOUQMBOTBOEDPOTFSWBUJPONBOBHFNFOU strategies and the rivers covered by these.

Managing Freshwater Fishing

Whitebait Fishing Regulations 1994 34. DOC manages the whitebait fishery focused on the young of the inanga, kōaro and banded kōkopu. Fishing is controlled using the Whitebait Fishing regulations, which set the whitebait season in the North and South Island, hours of fishing, specifications for the nets, screens and other gear that can be used and how, and offences.

Whitebait Fishing (West Coast) Regulations 1994 35. In addition to the provisions noted above, a schedule to these regulations lists 22 areas where whitebait fishing is prohibited on the West Coast to protect spawning areas and other key habitats. 36. DOC also seeks to protect whitebait habitat by encouraging landowners to fence off from stock riparian vegetation used for spawning.

Freshwater Fisheries Regulations 1983 37. These apply largely to sports fish but include provisions about freshwater conservation, including to protect fish passage and control liberations of introduced fish and weed species. 38. Regulation 43 requires mechanisms to allow fish passage to be provided when new culverts, fords, dams and diversions are constructed unless the Director-General gives written approval to do otherwise. 39. Regulation 65 controls freshwater fish species gazetted as “noxious” (e.g. rudd and koi carp) and sets out restrictions on their taking, possession and sale. 40. Regulation 68 enables the Minister of Conservation to establish faunistic reserves through a Gazette notice. The introduction of any plant and the taking or killing of any freshwater fauna is prohibited in faunistic reserves without the Director General’s approval.

Fisheries (South Island Customary Fishing) Regulations 1999 5IFSFHVMBUJPOTFOBCMFNÜUBJUBJSFTFSWFT BSFDPHOJTFEUSBEJUJPOBMЯTIJOHHSPVOEsTFFHMPTTBSZ UPCFFTUBCMJTIFEPWFS GSFTIXBUFSBTXFMMBTDPBTUBMXBUFSCVUBTUIFUJUMFJOEJDBUFT POMZJOUIF4PVUI*TMBOE.ÜUBJUBJSFTFSWFTBSFJNQPSUBOU traditional fishing areas or mahinga kai (food) with which tangata whenua (the indigenous people of an area) have a special relationship. Tangata tiaki/kaitiaki (guardians) chosen by the tangata whenua manage non-commercial fishing within the reserve by recommending bylaws to be approved by the Minister of Fisheries. Bylaws can restrict or prohibit the taking of fish or aquatic life (e.g. species, quantity, size, area) or the use of particular fishing methods. Bylaws can only apply to species managed under the Fisheries Act 1996, and not to species managed under the Conservation Act (e.g. trout). The Ministry of Fisheries consults on proposed bylaws before they are enacted. Protecting New Zealand’s Rivers 57

5IFЯSTUGSFTIXBUFSNÜUBJUBJSFTFSWFXBTFTUBCMJTIFEJOPOBLJMPNFUSFSFBDIPG4PVUIMBOEnT.BUBVSB3JWFS #ZMBXTQSPIJCJUUIFUBLJOHPGUVOB FFMT BOELBOBLBOB MBNQSFZ BOEUIFVTFPGGZLFOFUTXJUIJOUIF.BUBVSBNÜUBJUBJ

Temporary closures under the Fisheries Act 1996 43. Sections 186A and 186B of the Fisheries Act 1996 allow the Ministry of Fisheries to temporarily close or temporarily restrict or prohibit a method of fishing in any area within New Zealand fisheries waters, including fresh water and tauranga ika (fishing grounds) for customary management purposes. Such closures can only last two years unless their objective is not achieved and tangata whenua apply for an extension. Their purpose is to improve the size and/or availability of depleted fish stocks, or to recognise and provide for the use and management practices of tangata XIFOVB5FNQPSBSZDMPTVSFTPSNFUIPESFTUSJDUJPOTNBZQSPWJEFMFHBMTVQQPSUGPSBSÜIVJ UFNQPSBSZSFTUSJDUJPOQVUJO place by tangata whenua). 44. Anybody can suggest to the Ministry of Fisheries that a temporary closure or method restriction should be implemented. The Chief Executive must be sure that it will meet the intended purpose so must provide for tangata whenua input and participation, and have regard for kaitiakitanga when assessing a proposal.

River-Specific Legislation

Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 45. The Act creates a new co-governance entity, the Waikato River Authority, to oversee river management. Waikato-Tainui are an equal partner with the Crown. The Authority is charged with giving effect to Te Ture Whaimana (vision and strategy for the river) reviewing it, and undertaking monitoring and reporting. The Authority has powers to request call-ins under the RMA and appoint accredited iwi commissioners to resource consent hearings related to the river. Te Ture Whaimana influences RMA decisions by Environment Waikato because it is included in the Regional Policy Statement and prevails over any national policy statements or the NZ Coastal Policy Statement in relation to the Waikato River. The legislation also provides for the development of a cross agency integrated river management plan and joint management agreements.

Guardians of Lakes Manapouri, Te Anau and Monowai (section 6X Conservation Act 1987) 46. The Minister of Conservation appoints the Guardians under section 6X Conservation Act 1987. Their functions include advising the Minister on any matters arising from the environmental, ecological, and social effects of the Manapouri-Te Anau power scheme on the rivers flowing in and out of Lakes Manapouri and Te Anau. They have the same role in relation to the effects of the Monowai power scheme on rivers flowing into and out of Lake Monowai. The Act charges the Guardians with having particular regard to the effects on social values, conservation, recreation, tourism, and related activities and amenities. The Guardians prepare an annual report to the Minister. The major rivers affected are the Waiau and Monowai Rivers.

Lake Wanaka Preservation Act 1973 47. One of the four purposes of the Act is to prohibit any works (except in an emergency) that vary or control the flow of the between the lake outlet (the source of the Clutha River) and the confluence of the Clutha and Cardrona Rivers. The Act establishes the Guardians of Lake Wanaka to advise the Minister of Conservation and the Otago Regional Council on lake levels and flows. Protecting New Zealand’s Rivers 58

Appendix 3: Water conservation orders: relevant sections from the Resource Management Act 1991

Section 2 Interpretation amenity values means those natural or physical qualities or characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural or recreational attributes: intrinsic values, in relation to ecosystems, means those aspects of ecosystems and their constituent parts that have value in their own right, including— B UIFJSCJPMPHJDBMBOEHFOFUJDEJWFSTJUZBOE b) their essential characteristics that determine an ecosystem’s integrity, form, functioning and resilience: When considering whether to recommend a water conservation order, the Special Tribunal and Environment Court, or Environment Canterbury Commissioners (for applications in Canterbury) must have “special regard” to the matters in section 199.

Section 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 PVUTUBOEJOHTJHOJЯDBODFJOBDDPSEBODFXJUIUJLBOHB.ÜPSJ

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— B UIFRVBOUJUZ RVBMJUZ SBUFPGаPX PSMFWFMPGUIFXBUFSCPEZBOE (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 PSQFSNJUUFEGPSUIFXBUFSCPEZBOE D UIFNBYJNVNBMMPDBUJPOGPSBCTUSBDUJPOPSNBYJNVNDPOUBNJOBOUMPBEJOHDPOTJTUFOUXJUIUIFQVSQPTFTPGUIF0SEFSBO (d) the ranges of temperature and pressure in a water body. Protecting New Zealand’s Rivers 59

Appendix 4: Process for water conservation orders (outside Canterbury)

Source: Mulcahy K, Peart R and Garvan N (2010) Managing freshwater: An EDS Guide, Environmental Defence Society at p 198. Reproduced with kind permission of the authors and the Environmental Defence Society.

Application lodged with Minister

Minister requires further information (optional) Minister rejects application

Minister appoints Special Tribunal

Special Tribunal publicly notifies application

Submissions received

Special Tribunal requires further information from Submitters (optional)

Hearing of application and submissions

Special Tribunal makes recommendation Submissions lodged with Environment Court

No submissions Environment Court holds inquiry

Minister’s consideration Environment Court makes recommendations

Minister recommends Order Minister declines Order

If Court recommended Order Minister lodges Governor General in Council makes Order written reasons before House of Representatives Protecting New Zealand’s Rivers 60

Appendix 5: Water conservation orders (as at April 2011)

There are currently 16 water conservation orders (including one amendment) with applications to vary two existing orders under consideration.

Outstanding Water body (including %BUFPG Provisions and Protection characteristics Other considerations protected reaches) gazettal provided or features Pre RMA

Motu River 1984 Not stated in WCO. Permits maintenance of - River to be preserved From and including the Motu 4)JODMVEJOHCSJEHFT as far as possible in 'BMMTUPUIF4)CSJEHFBOEЯWF and for soil conservation its natural state. tributaries: Waitangirua Stream, and associated matters - Dams prohibited. Mangaotane Stream, Te Kahika permitted Stream, Mangatutara Stream and part of the Takaputahi River below its confluence with Whitikau Stream.

Rakaia River 1988 - Outstanding natural - Dams prohibited. Mainstem and tributaries of characteristic in the - Order establishes a minimum flow at both the Rakaia and Wilber- form of a braided river. (which varies monthly) force Rivers upstream of the - Outstanding wildlife and caps allocation for abstraction Rakaia /Wilberforce conflu- habitat above and downstream of this. FODF JODMVEJOHUIF)BSQFS below the Rakaia River - Retain in their natural state the 3JWFS -BLF)FSPOBOEJUT Gorge. quantity and rate of flow of all natural inflowing streams, and Lake - Outstanding fisheries, water in the Rakaia River upstream of Coleridge/Whakamatua and and outstanding its confluence with the Wilberforce its tributary streams. recreational, angling, River, the , and all and jet boating tributaries of both the Rakaia and features. 8JMCFSGPSDF JODMVEJOHUIF)BSQFS River), the quantity and level of Lake )FSPO BOEUIFRVBOUJUZBOESBUFPG flow of natural water in the lake’s tributary streams. - Retain partially in their natural state (subject to replacement consents) the quantity and rate of flow of the wRakaia below its confluence with the Wilberforce River and Fighting )JMM 3BLBJB(PSHF  - Retain in their existing state the quantity and level of natural water in Lake Coleridge, and the quantity and rate of flow in the lake’s tributary TUSFBNTBOEUIFаPXCFUXFFOPG 'JHIUJOH)JMMSFDPSEFS 3BLJB(PSHF  and the sea - Sets water quality standards for receiving water and prohibits discharges which would breach these. Protecting New Zealand’s Rivers 61

Outstanding Water body (including %BUFPG Provisions and Protection characteristics Other considerations protected reaches) gazettal provided or features Lake Wairarapa 1989 - Outstanding wildlife - Continued operation of - No right to divert water from lake habitat, partly created the barrage gates at the or to grant water rights which by natural fluctuations lake outlet is permitted would “diminish significantly” of water levels, the wildlife habitat. particularly over the eastern shoreline.

Manganuioteao River 1989 - Outstanding wild and - Dams prohibited Mainstem and tributaries scenic characteristics. - Retain in their natural state the of the Manganuioteao, the - An outstanding quantity and rate of flow of the Mangaturuturu and Makatote wildlife habitat for Manganuioteao River upstream Rivers, and the Waimarino the blue duck/whio of its confluence with Waimarino and Orautoha Streams. (Hymenolaimus 4USFBNUIF.BLBUPUFBOE malacorhynchos). Mangaturuturu Rivers. - An outstanding - No takes to reduce the natural recreational fishery. flow by more than 5 % or reduce the following reaches below the minimum flow for the Manganuioteao River downstream of its confluence with Waimarino Stream, Waimarino and Orautoha Streams. - Sets water quality parameters and prohibits discharges which would not comply.

Lake Ellesmere 1990 - Outstanding wildlife - Sets lake levels for artificial habitat. opening and closing. - Prohibits any damming, stopbanking, polderisation or drainage of any part of the lake that is inconsistent with the lake opening and closing regime established in the Order except for research purposes and replacement consents and maintenance of existing drains and stopbanks.

Ahuriri River 1990 - Outstanding wildlife - Allows consent - Prohibits dams in waters covered by Ahuriri River and mapped habitat applications for the Order. Any dam outside protected tributaries from its source to - Outstanding fisheries. maintenance of roads, waters must not affect flow regime its entry into Lake Benmore, - Outstanding angling bridges, pylons and for waters protected by the Order. associated ponds, tarns and amenity. public utilities, soil - Quantity and level of water in all lagoons part of Omarama conservation, flood lakes, ponds, tarns, lagoons and Stream protection and erosion streams (other than Omarama control work research Stream) to be retained in their and emergency sewage natural state. discharges. - Establishes a minimum flow regime for Ahuriri River and Omarama Stream and prohibits any takes that are inconsistent with this. - Establishes broad water quality standards and prohibits discharges that would breach these beyond the mixing zone. Protecting New Zealand’s Rivers 62

Grey River 1991 - Incised Gorge - Allows consent - The waters of Lake Christabel and Ahaura River downstream with its meandering applications for road, the Blue Grey River must be retained PG)BNFST'MBU pattern is an bridge and pylon in their natural state. Blue Grey River , its tributaries outstanding natural maintenance and soil - Prohibits any water permits for hydro and Lake Christabel characteristic. conservation and flood generation, any dam on the Ahaura - Outstanding scenic protection works. 3JWFSVQTUSFBNPG)BNFST'MBU BOE features, particularly any dam downstream of the Ahaura Ahaura Gorge and Gorge which would affect flows or Lake Christabel water levels in the Gorge. - Any water right granted for mining or other purposes in the Gorge must not detract from outstanding characteristics and features.

Under the RMA

Rangitikei River 1993 - Upper Rangitikei River - Allows granting of - Prohibits dams on the upper and - from its confluence with have outstanding consent applications middle river. Makahikatoa Stream to wild and scenic for road, bridge and - Establishes broad water quality .BOHBSFSF#SJEHF DIBSBDUFSJTUJDTBOE maintenance and soil standards which any discharges - the Whakaurekau River - outstanding recreational, conservation and flood must comply with after reasonable BOEJUTUSJCVUBSJFTBOEUIF fisheries, and wildlife protection works. mixing Kawhatau River and named habitat features. - Provides for existing use - Quantity and rate of flow in the tributaries - Middle Rangitikei River rights and replacement upper river must be retained in has outstanding scenic consents their natural state DIBSBDUFSJTUJDTBOE - Rate of flow of middle river must outstanding recreational not be reduced by more than 5 % and fisheries features. of natural flow

Kawarau River 1997 Outstanding amenity and - Allows granting of consent - Schedule 2 lists the specific - Schedule 1 lists waters intrinsic values meriting applications and regional prohibitions and restrictions on to be preserved in their preservation in natural rules for maintenance the exercise of regional council’s natural state and Schedule 2 state as contributing to: or protection of network powers in section 30 (1) RMA to protected waters, and their - people’s appreciation of utility operation, grant consents or make regional outstanding characteristics. pleasantness of waters. maintenance of soil rules for specific waters. - Schedule 1 includes: - aesthetic coherence conservation or river - Prohibits damming. protection works, roads, - Part Dart River mainstem and - cultural and recreational - Requires maintenance of fish - bridges and pylons, some of its tributaries, attributes passage, specified water quality - Route Burn and its tributaries, research into restoration classifications. - biological and genetic and enhancement, and - Part Rees River mainstem diversity of ecosystems - Requires braided character and some of its tributaries replacement consents for - essential characteristics of rivers such as the Dart and Greenstone River mainstem existing lawful uses. that determine the Rees to be maintained. including Lake McKellar and - Operation of Clyde power ecosystem’s integrity, station and changes )ZESPFMFDUSJDHFOFSBUJPO its tributaries. only allowed on Nevis River if form, functioning and in Lake Dunstan levels - Part Caples River mainstem, resilience restrictions complied with e.g. Lochnagar and Lake Creek. unaffected Outstanding any dam sustains flows which - Schedule 2 includes: characteristics as allow kayaking in Nevis Gorge. - Kawarau River to control gates - habitat for terrestrial and aquatic organisms - Nevis River mainstem - Shotover River mainstem -as a fishery - Part Dart and Rees Rivers - for wild scenic, and - Lake Wakataipu natural characteristics - Lochy River - for scientific value - Von River - for recreational and - Diamond Lake and Reid Lake historical purposes - Nevis wetland on Roading - significant in acccordance Lion Creek XJUIUJLBOHB.ÜPSJ Protecting New Zealand’s Rivers 63

Outstanding Water body (including %BUFPG Provisions and Protection characteristics Other considerations protected reaches) gazettal provided or features

Mataura River 1997 - Outstanding fisheries - Allows granting of - Establishes minimum flow - from source to sea and - Outstanding angling consent applications regimes for Mataura and tributaries upstream of amenity features and regional rules for Waikaia Rivers which must not be confluence with Otamita fisheries and wildlife breached. Stream habitat research, roads, - Prohibits granting of consent - Waikaia River and tributaries bridges, pylons and applications and regional rules other public utilities, - Otamita Stream which would contravene the soil conservation Order. - Mimihau Stream and and river protection Mokoreta River and their - Prohibits dams on the Mataura activities, and and Waikaia Rivers. tributaries stockwater reservoirs. - Sets water quality standards for protected waters and prohibits discharges which do not comply after reasonable mixing. Standards differ depending on the reach.

Buller River 2001 - Outstanding - Allows granting of - Quality, quantity, level and rate of - Schedule 1 lists waters to be (amended recreational consent applications flow of Schedule 1 waters are to maintained in their natural 2008) characteristics and regional rules for CFSFUBJOFEJOUIFJSOBUVSBMTUBUF state including Travers, - Outstanding wild and minor water uses by Schedule 2 waters to be protected Sabine and D’Urville Rivers, scenic characteristics DOC for conservation in accordance with conditions in Lakes Constance, Rotoiti - Outstanding fisheries or management. the Order. and Rotoroa and Daniells, wildlife habitat features - Allows granting of - Schedules 2 and 3 set out Deepdale, Ohikanui, - Outstanding scientific consents for fisheries restrictions and prohibitions Blackwater, Ohikati, Gowan values and wildlife habitat which apply to specific reaches and Mangles rivers and part research, hydrological and water bodies. Owen, Matakitaki, Glenroy, and water quality - Prohibits damming in specified Maruia rivers. investigations, roads, waters - Schedule 2 list protected bridges and network - Regional council cannot grant waters including Buller River utility operation and soil resource consents or make and Gowan, Mangles, Tutaki, conservation and river rules which would not maintain Owen and Fyfe rivers and protection works. the channel cross section, Mole Stream. - Allows replacement meandering pattern and braided - Schedule 3 – Lakes Rahui, consents for Maruia character. Maori and Matiri and Matiri Springs Thermal Resort - Limits alternations in natural flow River in Schedule 2 rivers to 5% - 15 %. - The schedules also identify - Establishes flow regime for relevant outstanding Gowan River. characteristics or features. - Requires resource consents and regional plans to maintain lake levels in Lakes Rahui, Maori and Matiri within their natural range. - Requires maintenance of fish passage. - Sets water quality standards including limits on turbidity/ suspended solids for Schedule 2 and 3 protected waters. Protecting New Zealand’s Rivers 64

Motueka River 2004 - Outstanding - Allows applications - Quality, quantity, level and rate of - Schedule 1 lists waters to recreational for water permits flow of Schedule 1 waters are to be retained in their natural characteristics for management of CFSFUBJOFEJOUIFJSOBUVSBMTUBUF state eg North and South - Outstanding fisheries conservation land, Schedule 2 and 3 waters are to Branches of Wangapeka and wildlife habitat roads, bridges, pylons be protected in accordance with River, upper Motueka above features and other public utilities, provisions in the Order. Gorge) and Schedule 2 - Outstanding scientific soil conservation and - Prohibits dams, including waters to be protected and values river protection works, structures which prevent brown fisheries and wildlife their relevant outstanding - Outstanding wild and trout passage habitat research, characteristics or features. scenic characteristics - Establishes minimum flow regimes hydrological and water - Schedule 3 list waters (e.g Part of the Motueka and restrictions on alternations of quality investigations, to be protected for their and Wangapeka Rivers river flows and form for Schedule 2 and release of contribution to outstanding contain or contribute and 3 rivers water from water features. to an outstanding - Requirement to maintain fish augmentation brown trout habitat passage schemes in catchment and fishery, nationally - Sets water quality standards outstanding habitat including limits on turbidity/ for blue ducks/whio, suspended solids for protected waters in a karst system waters and prohibits discharges that demonstrate which do not comply after outstanding qualities, reasonable mixing. provide specific scientific and recreational values and have wild, scenic and recreational characteristics)

Mohaka River 2004 - Outstanding trout - Allows granting of - Prohibits dams unless less than 3 - Mohaka River and its fishery in the upper water permits and m. high, on a tributary and they tributaries from headwaters river, Outstanding regional rules for do not detract from outstanding UP5F)PF(PSHF scenic characteristics gravel extraction, characteristics or features. JO.PLPOVJBOE5F)PF roads, bridges, river - Water permits and regional Gorges crossings, pylons and rules for other purposes must - Outstanding amenity for other public utilities, not detract from outstanding water based recreation and soil conservation characteristics and features. and river protection provided do not detract from outstanding characteristics Protecting New Zealand’s Rivers 65

Outstanding Water body (including %BUFPG Provisions and Protection characteristics Other considerations protected reaches) gazettal provided or features

Rangitata River 2006 - Outstanding amenity and - Allows granting of - Prohibits damming in Schedule 1 - Schedule 1 lists waters to intrinsic values including consent applications and 2 waters. be retained in their natural outstanding salmon and regional rules for - Prohibits damming in Schedule state and their relevant fishery minor water uses by 3 waters which would materially outstanding characteristics - Outstanding recreational DOC for conservation alter sediment flow or reduce or features. It includes Clyde values – upper river for management. bird habitat. BOE)BWFMPDL3JWFSTBOE jet boating, rafting, and - Allows granting of - Establishes a detailed flow all their tributaries, and DBOPFJOHHPSHFBOE consent applications management regime which their relevant outstanding lower river – kayaking for fisheries and wildlife establishes minimum flows for characteristics or features. and rafting habitat research, the Sept/May and May/ - Schedule 2 lists waters to - Outstanding habitat for hydrological or water September, requires 1:1 sharing be protected in accordance terrestrial and aquatic quality investigations, between the river and water with provisions in the Order organisms including roads, bridges, pylons abstraction above an initial and their outstanding outstanding native bird and network utility allocation band, caps allocation. characteristics. It includes habitat in upper river operations, soil - Restricts takes from hydraulically the whole of Rangitata above gorge, outstanding conservation and river connected groundwater which mainstem below Clyde/ habitat for black fronted protection activities, would affect tributary flows in )BWFMPDLDPOаVFODF  terns – lower river gravel extraction which lower river does not materially tributaries - Brabazon CFMPX"SVOEFMCSJEHF - Requires maintenance of fish alter channel cross Fan, Black Mountain outstanding habitat for passage and fish passage on section, meandering Stream , Deep Creek, Deep macro-invertebrates – any intakes Stream, Ealing Springs and whole river pattern or braided river - Restrictions to ensure the McKinnons Creek. characteristics. - Outstanding wild, maintenance of water quality. - Schedule 3 lists waters scenic and other natural - Allows granting of - Establishes water quality to be protected for their characteristics - upper replacement consents standards and for Schedule 2 contribution to outstanding river and gorge for Rangitata Diversion and 3 waters and prohibits features, and the features to Race. - Outstanding scientific granting of consents or regional be maintained – Rangitata and ecological values as rules which do not comply River and all its tributaries a braided river system after reasonable mixing. CFMPX$MZEF)BWFMPDL and confluence and hydraulically - Outstanding historical, connected groundwater in spiritual and cultural lower catchment characteristics - Outstanding significance in accordance with UJLBOHB.ÜPSJ

Oreti River 2008 - Outstanding habitat - Allows granting of - Prohibits dams on Oreti River, - Oreti mainstem for brown trout consent applications Weydon Burn and Windley - Weydon Burn and Windley - Outstanding angling for roads, bridges, River and tributaries River, and other tributaries amenity and network utility - Requires maintenance of fish VQTUSFBNPG-JODPMO)JMM - Outstanding habitat operations, soil passage conservation and river - Schedule 2 lists waters for black billed gulls - Prohibits discharges which protection works, to be protected for their - Outstanding reduce water quality outside fisheries and wildlife contribution to outstanding significance in a reasonable mixing zone. habitat research , features includes accordance with protection of human hydraulically connected UJLBOHB.ÜPSJ or animal health groundwater

Protecting New Zealand’s Rivers 66

Appendix 6: New Zealand Conservation Authority freshwater principles New Zealand’s freshwater resources are approaching crisis point. These principles are a tool to guide the assessment of the New Zealand Conservation Authority’s role, its contribution to, and/or response to issues relating to freshwater management. These principles acknowledge the interaction of freshwater with the land from the mountains to the open sea and recognise that freshwater is essential to all life. It exists in various states, described by the hydrological cycle: in the atmosphere, as snow and ice, and as liquid water both above and below ground, some of which is geothermal in nature. Water is only in part a renewable resource. The Authority believes that current and future generations of New Zealanders all have the right to enjoy the benefits of our common freshwater resources, so that we can all fully enjoy the environmental, social, cultural and economic benefits associated with freshwater. The Authority is concerned that economic drivers are dominating the management of freshwater issues to the detriment of other values and believes freshwater management requires taking a long -term, holistic approach, to conserve and protect freshwater it for all its many uses and values.

Governance 1. Freshwater is a taonga - a treasured and common resource vital to all our lives and must be respected and managed for the benefit of all the people and natural ecosystems of New Zealand. 2. Freshwater environments should be managed in an integrated, long-term, whole-of-catchment, way that recognises the complex inter-relationships of the various components and values. 3. Decisions about the allocation of water must be made in the context of the whole catchment, region and ecosystem, encompassing the range of environments, flow regimes, landforms and landscapes. 4. There should be clear national policy to address competing values and uses. 5. Decision-making should provide for public and tangata whenua participation at all levels form community to Government, and be informed by principles of Kaitiakitanga, stewardship and traditional knowledge as well as scientific understanding. 6. The quantity and quality of freshwater should be regularly monitored; new information and research results reviewed, and management continually adjusted to incorporate these. 7. Where there is insufficient information, or effects may be irreversible, the precautionary principle should apply. 8. Use of water for drinking (by humans and animals) has priority over other consumptive uses. 9. Any allocations granted should be based on evidence of environmental sustainability, fairness and equity, rather than greatest potential economic gain, and should preclude any possibility of on-selling or trade.

Protection 10. Freshwater management should provide for the protection of all instream values especially the connectivity of water bodies, their riparian margins, and the protection of indigenous biodiversity, natural character, intrinsic, recreational and aesthetic values, wilderness values, historic and wāhi tapu values and ecosystem services. Protecting New Zealand’s Rivers 67

11. Priority should be given to New Zealand’s unique indigenous flora and fauna. 12. Indigenous aquatic species should be present in natural abundance and be able to, if their natural lifecycles require, freely migrate up- and downstream, to and from the sea, through river mouths and in and out of lakes. 13. The role of rivers, lakes and their outlets in provision of sediments for natural coastal processes should be recognised. 14. Freshwater management should provide for the rehabilitation of degraded water bodies and their margins. 15. Freshwater management should include prevention of the establishment of new pests and provide for the containment/ reduction/elimination of existing ones. 16. Freshwater management should provide for the provision of open space adjoining freshwater bodies and access to estuaries, lakes and waterways for the benefit, recreational use and enjoyment of the public.

Sustainability 17. Freshwater management should ensure that any use of water resources, and the indigenous species therein, is ecologically sustainable and managed in a way that maintains its potential for future generations. 18. Water should be safe for both swimming and food harvesting. 19. Freshwater management must address the cumulative effects of both abstractive uses and discharges. 20. Reduction or elimination of water pollutants should occur at their source, rather than clean up and remediation after environmental damage has been done; land uses creating diffuse-source pollution must therefore be monitored as stringently as point-source discharges. 21. Environmental outcomes for freshwater should be based on the values and physical characteristics of the particular waterway. 22. Freshwater management regimes should acknowledge the changes brought about by natural processes including floods, droughts and climate change.

Management 23. Authorised uses should generally be time-limited and reviewable and contain conditions specific to timing and quantity of abstraction. 24. New Zealand needs a national water quality- and quantity- monitoring network that provides comprehensive coverage of flowing waters, lakes and wetlands, capable of providing data that is compatible across regions. 25. Collected data should be used for research and modelling to connect precipitation and river flows enabling greater understanding and prediction of flows and river behaviour. 26. Resources are required to expand management capability and provide appropriate hydrological skills at regional level, and hydrological modelling skills at a national level.

Footnote: These principles should be read in conjunction with the other current NZCA principles and the template for section 4 of the Conservation Act (giving effect to the principles of the Treaty of Waitangi). Protecting New Zealand’s Rivers 68 New Zealand Conservation Authority PO Box 10 420 Wellington 6143 www.conservationauthority.org.nz [email protected] +64 4 471 3289 November 2011