Statement of Evidence of Luke Christopher James Faithfull on Behalf of Trustpower Ltd

BEFORE A SPECIAL TRIBUNAL AT NELSON

UNDER of the Resource Management Act 1991

IN THE MATTER an application for a water conservation order by Ngati Tama Ki Te Waipounamu Trust and Andrew Yuill in respect of Te Waikoropupū Springs and associated water bodies

STATEMENT OF EVIDENCE OF LUKE CHRISTOPHER JAMES FAITHFULL ON BEHALF OF TRUSTPOWER LTD

6 APRIL 2018

Counsel Instructed B J Matheson Richmond Chambers PO Box 1008

Shortland Street Auckland 1140

Trustpower Ltd

1. EXECUTIVE SUMMARY

1.1 In my opinion, the relief sought by Trustpower Limited (Trustpower) is appropriate given the recognition and protection required for renewable electricity generation provided for in the higher-level policy documents being the National Policy Statement for Renewable Electricity Generation 2011 (NPSREG) and National Policy Statement for Freshwater Management 2014 (NPSFM).

1.2 I consider that Trustpower’s position on the Water Conversation Order application (WCO application) takes a ‘holistic’ approach to wider catchment management, as well as providing for its specific interests and the need for the protection of the values the WCO seeks to ‘recognise and sustain’.

1.3 Trustpower’s position also addresses the wider requirements under the Resource Management Act 1991 (RMA), including those of section 207. Specifically:

(a) Trustpower’s submission, and proposed relief, has regard for values that the WCO application is seeking to protect being to provide appropriate and adequate protection of the outstanding waters of Te Waikoropupū and the waterbodies that contribute to the springs but also providing for the needs of its business and the needs of the wider communities;

(b) The relief sought by Trustpower is consistent with the overarching direction of the higher-level policy documents and, if applied, will enable Trustpower to manage the Cobb Hydroelectric Power Scheme (Cobb HEPS or Scheme) in a sustainable manner both now and into the future, as contemplated by the RMA; and

(c) The relief sought by Trustpower provides for the needs of the other downstream water users, as well as ensuring that current

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and future hydro-electric generation potential is also protected and provided for.

1.4 Overall, I accept that the precautionary approach sought by the WCO application will achieve the purpose of a WCO as identified by section 199 of the RMA, however, I consider that the relief sought by Trustpower will not have a negative impact on the ability of the WCO to meet its intended purpose.

1.5 Trustpower’s position is to simply provide for current and future activities associated with the Scheme and where modifications are proposed in the future, these would only be exempt where it can be demonstrated that any effects of a modified regime will not detract from the values the WCO protects.

1.6 I consider that by Trustpower taking this position on the WCO, it demonstrates a high level of environmental responsibility as an operator and essentially empowers the WCO, if granted, as the primary indicator as to whether the activity is appropriate outside of the Part 2 of the RMA considerations.

1.7 I also consider that inclusion of Trustpower’s proposed relief is consistent with the section 217 of the RMA as the targeted exemption will ensure that there is no ‘affect or restriction’ on Trustpower’s existing resource consents, or future consent where the activities are consistent with those already consented.

1.8 In my opinion, if the Special Tribunal (Tribunal) considers that the WCO application is to be granted, I consider that it is appropriate, and within the power of the Tribunal, to include the proposed relief offered by Trustpower as outlined in Section 9 of this evidence.

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2. INTRODUCTION

Experience/qualifications

2.1 My full name is Luke Christopher James Faithfull.

2.2 I hold a Bachelors’ degree in Geography and Environmental Science from the University of Auckland.

2.3 I am employed by Mitchell Daysh Limited as a Senior Consultant and I am also the company’s Northern Operations Manager. I have worked as a resource management professional throughout New Zealand in both the public and private sector since 2007.

2.4 My previous work experience includes Senior Consents Officer positions at both the Greater Wellington and Bay of Plenty Regional Councils where most of my work involved processing of both non-notified and notified resource consent applications.

2.5 Under my current role at Mitchel Daysh, much of my work has involved the preparation of resource consent and marine consent applications under both the RMA and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act). This work has included the preparation of due diligence reports and environmental effects assessments, drafting of consent conditions and planning evidence, and providing strategic planning advice to a wide range of public and private sector clients. I have also been responsible for the preparation of submissions and evidence on district and regional plan changes representing both private and commercial enterprises.

2.6 I have presented expert planning evidence in multiple resource consent hearings and have previously been engaged as an expert planning witness by the Environmental Protection Authority for a Marine Consent application process under the EEZ Act.

2.7 I am a Member of the Resource Management Law Association and an Associate Member of the New Zealand Planning Institute.

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Prior involvement in process

2.8 I have not been involved in any aspect of this WCO application process prior to preparing this statement of evidence.

Code of Conduct

2.9 I have read the Environment Court's Code of Conduct and agree to comply with it. My qualifications as an expert are set out above. I confirm that the issues addressed in this statement of evidence are within my area of expertise.

Scope of Evidence

2.10 In my evidence I will:

(a) Briefly summarise Trustpower’s submission;

(b) Provide a brief overview of the Cobb HEPS and identify Trustpower’s current consents for the Scheme;

(d) Consider the WCO application as it relates to Trustpower’s interests against that relevant RMA framework, and discuss the importance of the NPSREG and the NPSFM, and the importance of clearly providing for the current and future operation of the Cobb HEPS;

(e) Provide commentary on other submissions as they relate to Trustpower’s interests and relief sought;

(f) Consider Ngati Tama Ki Te Waipounamu Trust and Andrew Yuill’s (the Applicant) evidence as it relates to planning matters; and

(g) Identify the relief sought by Trustpower in its submission, including any recommended amendments. 6

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3. TRUSTPOWER’S SUBMISSION

3.1 As noted in paragraph 9 of the WCO application, the waterbodies to which the application relates is “all parts of the aquifer in the catchment of the Takaka River and its tributaries that supply water to Te Waikoropupū and / or are hydraulically connected.” This area captures Trustpower’s Cobb HEPS which located on the Cobb River therefore, the WCO application has a potential impact on Trustpower’s current and future operations.

3.2 Trustpower’s submission is one of support, however this support is conditional on any WCO appropriately providing for Trustpower’s existing and future operations of the Cobb HEPS.

3.3 Key aspects of Trustpower’s submission are summarised below:

(a) The resource consent application process for the current suite of consents for the Cobb HEPS (completed in 2004) thoroughly examined the effects of the Scheme on the Takaka River and the low-lying aquifers;

(b) Trustpower is continuously examining how the Scheme can be operated more effectively and efficiently, while also providing for operational flexibility with the Scheme (summarised in Sections 5 - 7 of the evidence of Mr Peter Lilley on behalf of Trustpower);

(c) The Second Draft of the WCO, provided as Annex 2 to the evidence of Mr Simon Beale on behalf of the Applicant, will directly and indirectly affect the Cobb HEPS as the WCO in its current form does not sufficiently recognise or provide for Trustpower’s existing interests;

(d) Trustpower considers that if granted, the WCO should appropriately recognise the current operations, and provide for the continued development and upgrading of the Cobb HEPS; and

(e) That the amendments to the proposed WCO identified in Attachment 2 of its submission are adopted. 7

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4. COBB HEPS AND TRUSTPOWER’S EXISITING RESOURCE CONSENTS

Cobb HEPS

4.1 For context, the Cobb Dam is located on the Cobb River within the Kahurangi National Park approximately 9.5 km above the confluence of the Takaka River with the Cobb HEPS located immediately above the confluence of the Cobb and Takaka River. This means that downstream of the dam the Cobb River is essentially dry apart from minimal flow contributions from other minor tributaries through this length of the river.

4.2 Below the confluence with the Cobb River, the Takaka River flows approximately 38 km downstream before discharging into Tasman Bay. The catchment area for the Takaka River is approximately 855 km2. The confluence of the Waikoropupū River and Takaka River is approximately 2.2 km downstream of Te Waikoropupū.

4.3 Sections 3 and 4 of Mr Lilley’s evidence provides a description of the Cobb HEPS and its existing operations. Further, Section 3 of the evidence of Mr Richard Spearman outlines the importance of the Cobb HEPS. I have not repeated these here to avoid duplication.

4.4 Further to Mr Lilley’s evidence, Schedule 30A(21) of the Tasman Resource Management Plan (TRMP) identifies the Cobb HEPS as ‘Regionally significant hydro-electric power generation’.

Existing Resource Consents

4.5 Trustpower currently hold 19 resource consents from the Tasman District Council (TDC) that provide for all activities associated with the operation, maintenance and management of the Cobb HEPS. Each consent was granted with a 35-year term and expire at various dates in 2038 / 2039. The different expiry dates are due to some of the consents being subject to appeals at the time of granting.

4.6 The resource consents currently held are identified in Appendix 1. 8

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5. FUTURE RESOURCE CONSENT PROCESSES

5.1 Whether there is a need for Trustpower to vary an existing resource consent or apply for new consents following their expiry, consideration needs to be given to the relevant planning framework under which any such application would be determined.

5.2 Given the location of the Cobb River and Cobb HEPS within the Tasman Region, the relevant planning framework is provided for under the Tasman Regional Policy Statement (RPS) and the TRMP which is a ‘unitary’ planning document that provides TDC’s district and regional plans.

5.3 Under the TRMP planning maps, the Cobb Dam is located within the ‘Rural 2’ zone with the land immediately surrounding the site, being Kahurangi National Park, zoned ‘Conservation’.

5.4 Reconsenting the current operation, maintenance and management of the HEPS (i.e. to provide for the same activities which are provided for by the 19 resource consents identified in Appendix 1), would include the following requirements:

(a) Dam structure - as the Cobb Dam, and associated infrastructure, is an existing ‘lawfully established’ structure it would be a permitted activity under Rule 28.2.2.2 of the TRMP;

(b) Damming of freshwater – as the damming of water would be authorised by a water permit this activity would be a controlled activity under Rule 31.1.4.2 of the TRMP;

(c) The take and use of freshwater – any take and use of freshwater from the Cobb Reservoir, whether it is in line with the current flow regime or a change to the regime, would be considered a restricted discretionary activity under Rule 31.1.2.5 of the TRMP;

(d) The discharge of water into the Cobb River – any discharge of freshwater to the Cobb River, whether it is in line with the current flow regime or a change to the regime, would be considered as a discretionary activity under Rule 36.2.3.1 of the TRMP; and 9

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(e) The damming and diversion of floodwaters – as the Cobb Dam was lawfully established prior to 3 November 2001, the activity would be a permitted activity under Rule 31.1.5.1 of the TRMP.

5.5 There would be additional resource consent requirements to those above to provide for the full suite of the Scheme’s activities but those identified above are the most relevant to WCO application as they are the aspects of the operation that have a direct impact on the hydrology of the Takaka River.

5.6 When considering that the current consents expire in 2038 / 2039, and that the current regional and district statutory documents are yet to specifically implement the policies of the NPSREG and NPSFM (discussed further in paragraphs 6.49 and 6.51), it is expected that the regional and district objectives and policies, and rules will be different to those currently provided. This is due to there being requirements under these higher-level policy documents that need to be given effect to through the regional and district planning documents.

5.7 Overall, the reconsenting of the Cobb HEPS would require a suite of resource consents under the TRMP and these would likely be ‘bundled’ as a discretionary activity (under the current framework). This activity status would allow TDC, as the consent authority, to consider any matter it considered relevant to the activities for which consent was being sought. In this instance it would be expected to include any potential downstream effects on other water users and waterbodies within the catchment and, if granted, any WCO and the values that it is in place to ‘recognise and sustain.

5.8 Therefore, it is important that there is adequate provision for, and protection of, Trustpower’s interests in any WCOs for the Takaka catchment.

Trustpower Ltd

6. PLANNING FRAMEWORK

6.1 Section 207 of the RMA sets out the overall framework for what the Tribunal ‘shall have regard to’ when considering a WCO application. It states:

207 Matters to be considered

In considering an application for a water conservation order, a special tribunal shall have particular regard to the purpose of a water conservation order and the other matters set out in section 199 and shall also have regard to —

a) The application and all submissions; and

b) The needs of primary and secondary industry, and of the community; and

c) The relevant provisions of every national policy statement, New Zealand coastal policy statement, regional policy statement, regional plan, district plan and any proposed plan.

6.2 As they relate to the Trustpower’s interests, these matters have been discussed below.

SECTION 207(A) – THE APPLICATION AND SUBMISSIONS

6.3 The Tribunal must ‘have regard to’ the application and the submissions received.

6.4 The Applicant has identified the sole objective of the WCO application being “to protect a culturally significant Wāhi tapu (scared place) and outstanding natural freshwater and aquifer system of national significance to descendants of Ngati Tama and the communities of New Zealand” with protection sought for “all parts of the aquifer in the catchment of the Takaka River and its tributaries that supply water to Te Waikoropupū and / or are hydraulically connected.”

6.5 For the WCO application, the Applicant has identified the waters as being in their ‘natural state’ thus providing justification as to the purpose of the WCO in accordance with section 199(1)(a) of the RMA.

6.6 Section 217 states:

217 Effect of water conservation order

(1) No water conservation order shall affect or restrict any resource consent granted or any lawful use established in respect of the water body before the order is made. 11

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(2) Where a water conservation order is operative, the relevant consent authority—

a) shall not grant a water permit, coastal permit, or discharge permit if the grant of that permit would be contrary to any restriction or prohibition or any other provision of the order:

b) shall not grant a water permit, a coastal permit, or a discharge permit to discharge water or contaminants into water, unless the grant of any such permit or the combined effect of the grant of any such permit and of existing water permits and discharge permits and existing lawful discharges into the water or taking, use, damming, or diversion of the water is such that the provisions of the water conservation order can remain without change or variation:

c) shall, in granting any water permit, coastal permit, or discharge permit to discharge water or contaminants into water, impose such conditions as are necessary to ensure that the provisions of the water conservation order are maintained.

6.7 The current operations at the Cobb HEPS provides flow into the Takaka River, which is hydraulically connected to Te Waikoropupū. The effects of the Scheme’s flow on the Takaka River, and in turn on Te Waikoropupū, have been discussed further in Section 4 of Mr Lilley’s evidence. I note that paragraph 4.16 of his evidence states:

The influence the Scheme has on flow in the Springs is therefore limited to the way the Scheme regulates the flow in the river downstream. No direct impact on the Springs has been identified arising from the physical presence of the Scheme including from the existence of the reservoir or from any fluctuations in the level of the reservoir over time.

6.8 Therefore, when considering section 207(a) and Mr Lilley’s evidence, in conjunction with section 217, the natural environment must be taken to include the amended flow regime regulated (in respect of the Cobb River) by the Cobb reservoir and operation of the Cobb HEPS. Any on-going effects of the Cobb HEPS therefore must also be assessed against that modified flow regime which is currently consented.

6.9 In practical terms, that will mean there will be an on-going variable discharge from the Cobb HEPS and the reservoir. Mr Lilley’s evidence is that this will, overall, have a positive effect on the Springs because it will regulate the flow to a greater extent than an unmodified “run of river” might, however there will be times when there will be no flow from the Cobb HEPS. This will in turn reduce flows in the Takaka River and therefore have some effect on the Springs. However, that is an outcome of the existing consented environment, which is preserved by section 217(1). 12

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6.10 Regarding the submissions on the WCO application, other than some general commentary that the Cobb HEPS flow regime causes an ‘artificial state’ of the waterbodies which the WCO application is subject to, there is no specific mention, in support or otherwise, of Trustpower’s submission on the application that needs to be given regard to.

SECTION 207(B) – THE NEEDS OF PRIMARY AND SECONDARY INDUSTRY, AND OF THE COMMUNITY

6.11 The relief sought by Trustpower contributes to the significant and demonstrable needs of industry and the community sustained by the Takaka River of which the Cobb HEPS contributes to. The Tribunal is required to have regards to the needs of these parties under section 207(b).

6.12 Paragraph 4.3 of Mr Lilley’s evidence states:

While the Scheme, and in particular the Cobb Reservoir, significantly regulates flow in the Cobb River, its effect on hydrology is diminished, but still evident, further down the river. This is due to the influence of unmodified flow in the main stem of the Takaka River and numerous tributaries that join downstream of the Cobb reservoir.

6.13 Therefore, while the flows are dynamic in nature, the Scheme technically provides a more reliable flow contribution to the Takaka River than what would otherwise occur in an unmodified Cobb River environment.

6.14 As a result, the Scheme’s flow contributes to ensuring that there is water available more often for ‘the needs of primary and secondary industry, and the community’ downstream of the Cobb HEPS within the catchment noting that in order for the downstream water users to utilise these benefits, they themselves also need to allow for the dynamic variability of the Scheme. Sections 4 and 5 of Mr Spearman’s evidence describe the benefits, and the importance of the Scheme in further detail, and acknowledges the importance of the existing environment.

6.15 Through its proposed relief, Trustpower aims protect and provide for their current and future operations. Where provided for, this will ensure that the wider needs of the catchment are provided for through a reliable, albeit regulated, flow downstream of the Scheme. 13

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6.16 Overall, the flow from the Cobb HEPS provides an important contribution to ‘the needs of primary and secondary industry and the community’ and appropriate consideration must be given to providing for this pursuant to section 207(b) of the RMA.

SECTION 207(C) – THE RELEVANT PLANNING DOCUMENTS

6.17 When considering an application for a WCO, section 207(c) of the RMA requires that regard be had to the relevant provisions of every national policy statement, New Zealand coastal policy statement, regional policy statement, regional plan, district plan and any proposed plan.

6.18 Section D1.3 of the WCO application identifies the relevant planning documents and I concur with this list. Of particular relevance to Trustpower and its current and future operations are the:

(a) National Policy Statement for Renewable Electricity Generation 2011; and

(b) National Policy Statement for Freshwater Management 2014 (Amended 2017).

NPSREG

6.19 Within its Preamble, the NPSREG acknowledges the importance of renewable energy generation in the context of addressing the effects of climate change and in turn the wellbeing of the population regardless of the scale of the operation.

6.20 The importance of Trustpower’s need to have certainty for current and future operations is also reinforced in the NPSREG which identifies “the need to develop, upgrade, maintain and operate renewable electricity generation activities throughout New Zealand” as a matter of national importance.

6.21 The NPSREG Preamble also identifies that:

In some instances the benefits of renewable electricity generation can compete with matters of national importance as set out in section 6 of the Act, and with matters to which decisionmakers are required to have particular regard under 14

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section 7 of the Act. In particular, the natural resources from which electricity is generated can coincide with areas of significant natural character, significant amenity values, historic heritage, outstanding natural features and landscapes, significant indigenous vegetation and significant habitats of indigenous fauna. There can also be potential conflicts with the relationship of Maori with their taonga and the role of kaitiaki.

6.22 The key provisions of the NPSREG relevant to Trustpower’s interest and the WCO application are:

OBJECTIVE A - Recognising the benefits of renewable electricity generation activities;

POLICY A - Decision-makers shall recognise and provide for the national significance of renewable electricity generation activities, including the national, regional and local benefits relevant to renewable electricity generation activities.

POLICY B - Decision-makers shall have particular regard to the following matters:

a) maintenance of the generation output of existing renewable electricity generation activities can require protection of the assets, operational capacity and continued availability of the renewable energy resource; …

POLICY C1 - Decision-makers shall have particular regard to the following matters:

a) the need to locate the renewable electricity generation activity where the renewable energy resource is available;

b) logistical or technical practicalities associated with developing, upgrading, operating or maintaining the renewable electricity generation activity;

c) the location of existing structures and infrastructure ….

OBJECTIVE E - Incorporating provisions for renewable electricity generation activities into regional policy statements and regional and district plans.

POLICY E2 - Regional policy statements and regional and district plans shall include objectives, policies, and methods (including rules within plans) to provide for the development, operation, maintenance, and upgrading of new and existing hydro-electricity generation activities to the extent applicable to the region or district.

6.23 Commentary on these provisions has been provided below.

6.24 The recognition of renewable energy generation at the Cobb HEPS as a ‘matter of national importance’ is a relevant for consideration under the WCO application. Trustpower’s Cobb HEPS assets are existing, it is the largest hydroelectric generation scheme within the Takaka catchment area, and it contributes significantly to the energy requirements of the region. 15

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The evidence of both Mr Spearman and Mr Lilley further expands on these matters.

6.25 Associated local benefits of the current operation are that when there is flow from the Cobb HEPS, that flow will:

(a) Contribute to the base flows of the Takaka River which contributes flow, through hydraulic connection, to Te Waikoropupū; and

(b) Provide a more reliable year-round flow, albeit regulated, to the downstream water users than would be the case for an unmodified Cobb River catchment.

6.26 Regarding the long-term operation of the Cobb HEPS, as the assets are existing and, provided any changes to the flow regime do not result in any adverse effects on the downstream receiving environment or downstream water users that cannot be avoided, remedied or mitigated, long-term security of operations will contribute to the overall ability of the Scheme to meet the increased energy needs of the local and wider community.

6.27 These factors contribute to the ‘national significance’ of the operation and therefore, the Cobb HEPS should be ‘recognised and provided for’ in accordance with Objective A and Policy A.

6.28 As previously mentioned, Section 217 of the RMA is relevant when considering the ‘effect’ of a WCO on current or future activities.

6.29 As Trustpower’s proposed relief seeks to protect its assets and current operations, which is consistent with Objective A and Policy A, it is appropriate for the Tribunal to ‘recognise and provide for’ Trustpower’s operations and assets as this will ensure that the WCO does not ‘affect or restrict’ the Scheme which is lawful and authorised by resource consents. I consider that this is consistent with section 217(1).

6.30 Where the WCO is granted, Trustpower proposes that any future development or optimisation should only carry protection (in the form of exemption under the WCO) where such changes do not compromise the values which the WCO application is seeking to protect. This would 16

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technically be at the discretion / interpretation of the consent authority for consideration where any new application was lodged for the Scheme.

6.31 Furthermore, I consider that any continuation or replacement of the current resource consents, and the effects associated with that operation, should be preserved into the future. This latter point is consistent with the provisions of section 217(2), and my interpretation of the intention of the amendment to clause 12 of the WCO proposed by the Applicant in the evidence of Mr Beale.

6.32 The location of the Cobb HEPS and its reservoir provides Trustpower with direct access to the renewable energy resource, being water, and certainty of supply without being impacted by upstream water users. This unique location further classifies the Cobb HEPS as a significant renewable energy generation resource amongst Trustpower’s assets.

6.33 The certainty of supply, the established assets, and, where proved appropriate and acceptable, the ability for Trustpower to expand / optimise its operations into the future, are all identified as matters which the Tribunal shall ‘have particular regard to’ under Policy B(a) and Policy C1.

6.34 Regarding Objective E and Policy E1, paragraphs 6.50 - 6.52 below, discusses the RPS and TRMP and the lack or specific provisions for renewable generations that give effect to the NPSREG.

6.35 As Trustpower’s current consented operations contribute to existing environment and the ‘outstanding values’ of the waterbodies that the WCO is seeking to ‘recognise and sustain’, it is my opinion that it is appropriate for any WCO to contain specific exemptions which provide for the protection of these existing operations.

6.36 In terms of long-term operations, where these are consistent with that which is already consented, any future resource consent considerations should be exempt from the WCO requirements for the reasons outlined in 6.35.

6.37 If Trustpower wish to optimise the scheme and amend the flow regime, where Trustpower demonstrates that such activities do not compromise the values which the WCO seeks to ‘protect and sustain’, I consider that 17

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recognition and protection of these long-term operations within the WCO, is consistent with the overall intention of the NPSREG.

6.38 The overarching policy direction under the NPSREG is to protect and provide for renewable energy generation. Through its submission, and provided for specifically by the proposed targeted relief, Trustpower is seeking to ensure that both its current and future operations are protected and provided for. I consider this approach is consistent with the overarching purpose of the NPSREG and will enable the Cobb HEPS and the WCO to effective work together.

6.39 I note that the Rakaia WCO is a current example where hydroelectric generation and a WCO work effectively together to protect the outstanding characteristics and features of the Rakaia River.

6.40 Clause 9A of the Rakaia WCO provides for ongoing and future operation of the Lake Coleridge Hydroelectric Power Scheme provided the outstanding characteristics and features identified in the order for the Rakaia River and its tributaries are ‘recognised and sustained’ as part of any further resource consent applications.

6.41 I also note that under Clause 5 of the Rakaia WCO requires that ‘because of the outstanding characteristics and features specified in clause 3 and for their protection downstream of the confluence of the Rakaia River …’ the ‘natural state’ of the Wilberforce River and its tributaries shall be retained however, it only requires the flows from Lake Coleridge and its tributaries to be retained in ‘their existing state.’

6.42 I consider that this distinction between ‘natural’ and ‘existing’ state is an important one, and one that the Tribunal should have regard to in this case. This is important because an existing state of affairs can equally contribute to a waterbody’s outstanding characteristics. For example, in the case of the Rakaia WCO, while the Harper River is modified by the hydro scheme’s diversion into Lake Coleridge, the Harper River still makes some contribution to the outstanding characteristics identified by the Rakaia WCO.

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NPSFM

6.43 Paragraph 123 of the WCO Application identifies that the draft WCO is consistent with the water quality objectives of the NPSFM. While I generally concur with this statement, there are also other aspects of the NPSFM that are relevant to Trustpower’s interests. These are:

Objective A2 - The overall quality of fresh water within a freshwater management unit is maintained or improved while:

a) protecting the significant values of outstanding freshwater bodies; ...

Objective A4 - To enable communities to provide for their economic wellbeing, including productive economic opportunities, in sustainably managing freshwater quality, within limits.

Objective B3 - To improve and maximise the efficient allocation and efficient use of water.

Objective B5 - To enable communities to provide for their economic wellbeing, including productive economic opportunities, in sustainably managing fresh water quantity, within limits.

Policy B8 - By every regional council considering, when giving effect to this national policy statement, how to enable communities to provide for their economic well-being, including productive economic opportunities, while managing within limits.

6.44 Regarding Objectives A2 and A4, provision for security of operation both in the short and long-term for Trustpower, and the recognition that Trustpower is seeking for this under the WCO, is consistent with these provisions.

6.45 If Trustpower wishes to modify the flow regime, it’s their position that any exemptions provided for will only apply where the modifications do not compromise the values the WCO is seeking to protect. I consider that provision for a targeted exemption of Trustpower’s operations from the WCO is not contrary to the intention of Objective A2.

6.46 Further, the certainty of operations will enable Trustpower to continue to provide for the economic benefits to its business and the populations that both rely on the water downstream of the Cobb HEPS and those who rely on the power produced by the Scheme. Therefore, I consider that the exemptions proposed by Trustpower will enable Trustpower’s continued operations and therefore, ensuring there is consistency with Objectives A4 and B5, and Policy B8. 19

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6.47 If Trustpower wish to modify the HEPS regime to provide for optimisation or enhancement of the Scheme, this process would be consistent with Objective B3 as it would demonstrate both effective allocation and efficient use of water. As previously mentioned, the exemption proposed would only apply where it is demonstrated that the modifications do not have an impact on the values which the WCO seeks to ‘recognise and sustain’.

6.48 In my opinion, the adoption of Trustpower’s proposed relief in any WCO granted, ensures that the above objectives and policies of the NPSFM are appropriately given effect to.

Regional / District Planning Documents

6.49 The following regional policy statement and plans are relevant to the WCO application:

(a) Tasman Regional Policy Statement;

(b) Tasman Resource Management Plan

6.50 It is important to note that both the RPS and the TRMP have not been updated to specifically provide for the higher-level policy direction provided for within the NPSREG or the NPSFM, as required by Objectives E and H, and Policy E1 respectively, to:

(a) include management objectives for all water bodies as well as limits and thresholds for water quality and quantity; and

(b) to recognise the national significance of the need to develop renewable electricity resource including hydro-electric power generation.

6.51 This is an important matter in the context of the WCO application, particularly the section 207(c) considerations, given the requirement of these higher-level documents to ‘recognise and provide for’, and ‘have regard to’ existing and future renewable electricity generation which is the basis for Trustpower’s submission. 20

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6.52 Other than some general provisions around water (including values, limits, quality and quantity) and infrastructure, the RPS and TRMP do not currently give effect to these national policy statements therefore, I consider that the NPSREG and NPSFM are the primary statutory documents for consideration regarding Trustpower’s interest in the WCO application.

6.53 On that basis I have not provided any further commentary on the RPS or the TRMP as they relate to Trustpower’s interests as part of this evidence.

7. OTHER SUBMISSIONS

7.1 I have generally considered the submissions lodged on the WCO application.

7.2 As previous mentioned in paragraph 6.10, there no specific reference to support or opposition to Trustpower’s submission in any other general submissions.

7.3 However, in line with the intent of the requested relief sought by Trustpower, I support Fonterra’s submission point 4 (Existing Activities and consents in the draft Order) and the proposed amendments to Clause 12 of the WCO.

7.4 I consider that Fonterra’s proposed amendment to Clause 12 will provide further ‘protection’ of existing activities, both permitted and consented, of which the current Cobb HEPS operations is part of, while also ensuring that the values the WCO is intending to ‘recognised and sustain’ are provided for.

7.5 Further, I support the broad, non-specific, nature of the amendment as it will provide protection for all water users, permitted and consented, within the WCO application boundary.

8. APPLICANT’S EVIDENCE

8.1 In preparing this evidence brief, I have generally considered the Applicant’s evidence and have specifically reviewed the Applicant’s planning evidence provided by Mr Beale. 21

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8.2 While paragraph 187 of Mr Beale’s evidence identifies that “The applicant is not opposed to the inclusion of some of the exemptions sought by Trustpower in the WCO”, I do note that Trustpower’s proposed relief has not been included in the ‘Second Draft Te Waikoropupū Springs and the Arthur Marble Aquifer Water Conservation Order, March 2018’ provided as Annex 2 to Mr Beale’s evidence.

8.3 I note that Clause 12 of the ‘Second Draft’ has been amended to provide for ‘ongoing operations post expiry of existing consents’ and states:

b) In respect of resource consents to take water held at the date this order comes into force (existing consents) this order does not prevent the granting of further resource consents (further resource consents) for the same volumes, discharge rates, rate of take and minimum flow restrictions, on the expiry or surrender of the existing consents. The same exclusion applies on the expiry or surrender of the further resource consents.

8.4 While the amendment partially addresses Trustpower’s concerns over the certainty of providing for continued operations, I consider the proposed amendments do not capture all the activities for which Trustpower requires consent for the Cobb HEPS. Trustpower’s current consents, as identified in Appendix 1, go beyond simply the taking of water and Trustpower need certainty that all aspects of the operation will be exempt from the WCO considerations.

8.5 It is my understanding that the Applicant is willing to engage with Trustpower directly to identify how best to incorporate the needs of both parties into the WCO prior to any wording being proposed. I support this approach but note these discussions had not occurred at the time of drafting this evidence.

9. RELIEF SOUGHT

9.1 When considering the proposed amendments to the WCO outlined in Mr Beale’s evidence, and that which was provided in the submission from Fonterra, I consider that further additions to Trustpower’s proposed relief are required as outlined below:

1. I consider that additional wording should also be included to the proposed definition for the Cobb HEPS under Clause 3 of the WCO to that which was previously provided in Trustpower’s submission. The 22

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inclusion of the additional wording will clarify what constitutes the Scheme both now and into the future therefore, avoiding ambiguity or conflict. The further amendment (underlined below) is as follows:

Cobb Hydroelectric Power Scheme means the hydroelectric power scheme, and all associated structures and activities (including the Cobb Reservoir), located on the Cobb River and Takaka River, including any enhancements or modification of that scheme within the Cobb River or adjacent catchments, and any new works, structures and activities associated with those enhancements or modifications.

2. Replace Clause 12 with the following wording, based on the content of the Fonterra’s submission point 13, to provide broad protection for existing resource consent holders and permitted activity users:

12. Replacement of existing consents and existing or permitted activities

The restrictions and prohibitions in clauses 8 and 9 and Schedule 1, 2 and 3 do not limit the regional council’s functions in respect of any part of the preserved or protected waters to:

1) Enable an activity existing and permitted at the date the commencement date of this National order to continue;

2) Transfer a resource consent if the transferred resource consent does not result in any increase in allocation or have any additional effects on water quality; and

3) Replace any existing resource consent or grant any resource consent in substitution for an expiring resource consent if the new resource consent is granted on substantially the same terms and conditions as the existing or expiring resource consent.

9.2 Further to the additional relief sought, I restate the relief identified in Trustpower’s submission below:

1. The inclusion of a specific exemption for Trustpower’s Cobb HEPS:

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13. Specific exemptions for the Cobb Hydroelectric Power Scheme

Nothing in this Order shall affect or restrict:

a. the exercise of any resource consent for the Cobb Hydroelectric Power Scheme in effect at the date this Order comes into force;

b. the granting or variation of any resource consents for the continued operation or maintenance of the Cobb Hydroelectric Power Scheme, provided that any resource consents are made subject to similar terms and conditions as apply to any resource consent authorising the scheme at the date this Order comes into force;

c. the making of a rule in a regional plan authorising the continued operation or maintenance of the Cobb Hydroelectric Power Scheme, provided the terms of the rule have the same or similar effect as any rule or resource consent authorising the scheme as at the date this Order comes into force; or

d. the granting or variation of resource consents authorising the development, or material changes to the operation, configuration or maintenance, of the Cobb Hydroelectric Power Scheme, provided the outstanding characteristics, features and values recorded in clause 4 are recognised and sustained;

e. the making of a rule in a regional plan authorising the development, or material changes to the operation, configuration or maintenance, of the Cobb Hydroelectric Power Scheme, provided the outstanding characteristics, features and values recorded in clause 4 are recognised and sustained.

L C J Faithfull

6 April 2018

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Appendix 1 – Resource Consents for the Cobb HEPS The resource consents currently held by Trustpower are as follows:

Damming

(a) NN000445 – Water Permit for Damming of the Cobb River for hydroelectric power generation;

Generation Flows

(b) NN000446 – Water Permit to take and use water at a maximum rate of 10 cumecs from the Cobb River;

Spillway Flows

(d) NN000448 – Water Permit to divert, take and use water over the Cobb Dam spillway;

(e) NN000449V1 – Discharge Permit to discharge water from the Cobb Dam spillway and stilling basin into the Cobb River;

Minor Stream Diversions

(f) NN000450 and 51 – Water Permit to dam, divert, take and use water from unnamed tributaries of the Cobb River;

Dam Seepage and leakage flows

(g) NN000452 and 53 – Water Permit to dam, divert, take and use water and any material contained therein for the purpose of:

(i) Conveying surface water and groundwater around, through, over, under or past structures that are part of the Cobb Power Scheme;

(ii) Providing for water leakage to, from and through structures that are part of the Cobb Power Scheme.

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Use and operation of Scheme Structures

(h) NN000455– Land use consent to use any structure that is part of the Cobb Power Scheme located in, on, under, or over the Cobb River and Takaka River;

(i) NN000456V1– Land use consent to disturb the bed of the Cobb River, unnamed tributaries of the Cobb River and Takaka River, and to deposit material on the bed of the Cobb River, unnamed tributaries of the Cobb River and Takaka River as a result of the operation of the Cobb Power Scheme;

(j) NN000457V1 – Discharge permit to discharge water and any material contained therein, including any material associated with hydroelectricity generation, onto or into land, or into water, for the purposes of operating the dam and Cobb Power Scheme structures;

Septic Tanks Discharges

(k) NN000458 – Discharge permit to discharge wastewater onto or into land form wastewater treatment systems from the Cobb Power Station;

Scheme Wide Maintenance Activities

(l) NN000459V1 – Discharge permit to discharge water and any material contained therein, including any material associated with hydroelectricity generation, onto or into land, or into water, for the purposes of dewatering, draining, testing or otherwise maintaining operating the dam and Cobb Power Scheme structures;

(m) NN000460V1 – Discharge permit to discharge materials associated with the removal of sediment, weed, debris or other materials from or adjacent to the Cobb Dam and spillway, into or onto land;

(n) NN000461V1 – Discharge permit to discharge materials into the air, onto land and into water from abrasive blasting activities for the purpose of maintaining or repairing structures that are part of the Cobb Power Scheme; 26

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(o) NN000462V1 – Land use consent to undertake activities associated with maintaining, upgrading or repairing structures that are part of the Cobb Power Scheme; and

(p) NN000463 – Water permit to take water at a maximum rate of 1 cumec from the Cobb River for the purpose of maintaining or repairing structures that are part of the Cobb Power Scheme.