Case book for Opening Submissions for the Applicants Table of contents 1. Report of the Special Tribunal on an application to amend the Water Conservation (Buller River) Order, 20 December 2007 2. Rangitata South Irrigation Ltd v New Zealand and Central South Island Fish and Game Council Dec No. C 109/2004 3. Report of the Special Tribunal on a Water Conservation Order Application for the Oreti River, November 2007 4. Interim Decision on Application to Vary the Buller Water Conservation Order, 11 July 2007 5. Re Talley as Trustees for Majac Trust EnvC C006/06 6. Re an Inquiry into the Draft National Water Conservation (Kawarau) Order C33/1996 7. NZ Paper Mills Ltd v Otago Acclimatisation Soc [1995] NZRMA 155 8. Re Whitewater New Zealand Inc [2013] NZEnvC 131 9. Re an Inquiry into the Draft National Water Conservation (Mohaka River) Order W20/92 (PT) 10. Ashburton Acclimatisation Society v Federated Farmers [1988] 1 NZLR 78;12 NZTPA 289 CA 11. Report and Recommendation of the Inquiry into the National Water Conservation Order for the Buller River; PT Wellington, C32/96 Decision No. C I o /2004 4 IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER of an application for a water conservation order pursuant to section 201 of the Act BETWEEN RANGITATA SOUTH IRRIGATION LIMITED @MA 80’7102) TIMARU DISTRICT COUNCIL (RMA 80X/02) TRUSTPOWER LIMITED @MA 809/02) RANGITATA DIVERSION RACE MANAGEMENT LIMITED @MA 810102) FEDERATED FARMERS OF NEW ZEALAND INCORPORATED (RMA 812102) CANTERBURY REGIONAL COUNCIL (RMA 815102) Submitters AND NEW ZEALAND AND CENTRAL SOUTH ISLAND FISH AND GAME COUNCIL Applicant BEFORE THE ENVIRONMENT COURT Environment Judge J R Jackson (presiding) Environment Commissioner C E Manning Deputy Environment Commissioner R Grigg 2 HEARING at Christchurch on 13-17,20-24 October, 3-7 November 2003; at Timaru on 10. 12 November 2003 and in Christchurch on 10-14, 17-21 and 31 May and 2, 3 June 2004. River and canal inspections on 12 November 2003 and 26 May 2004. (Final submissions received 11 June 2004) APPEARANCES Mr P J Mime and Mr J G A Winchester for Rangitata South Irrigation Limited and Timaru District Council Mr N Davidson QC and Ms Dunningham for Rangitata Diversion Race Management Limited and for TrustPower Limited Ms C English and Ms A Undorf-Lay for Federated Farmers of New Zealand Incorporated Mr M Wallace for Canterbury Regional Council Mr S W Christensen for the New Zealand Fish and Game Council and the Central South Island Fish and Game Council Ms M Baker for New Zealand Recreational Canoeing Association, New Zealand Rafting Association, W Keenan, Rangitata Instream Users Group and Save the Rivers Ms B Burt and Ms J Appleyard for Rangitata Dairies and Others Ms A Limmer for Te Runanga o Ngai Tahu Mr E Alty for the Director General of Conservation Ms E Sage for Royal Forest and Bird Protection Society Dr C D B Burt for himself Mr T Hay for Friends of the Earth Ms P Steven and Mr A Prebble for Ashburton District Council Mrs A P Grigg for herself Mr N G Black for Shepherds Bush Limited INTERIM REPORT ON A PROPOSED RANGITATA WATER CONSERVATION ORDER To: The Minister for the Environment The parties 3 TABLE OF CONTENTS Paragraph Part 1 Introduction 1.1 The Special Tribunal’s Report and the background Ul 1.2 The purpose of a Water Conservation Order [I31 1.3 The requirements of Part 9 and the scheme of the RMA [311 1.4 Conclusions as to the method and purpose of the inquiry [531 1.5 Which provisions of the Special Tribunal’s Report are challenged? [601 Part 2 Are certain characteristics outstanding? 2.1 Habitat for terrestrial or aquatic organisms [@I 2.2 Fishery F21 2.3 Recreational, historical, spiritual or cultural purposes t901 2.4 Other characteristics PO31 2.5 Significance under tikanga maori [IO51 Part 3 Is a water conservation order necessary? 3.1 Matters to be considered [IO91 3.2 The needs of industry t1191 3.3 The relevant statutory instruments [I271 3.4 To protect habitat for black-fronted terns? [1311 3.5 To protect the salmon fishery? [1641 3.6 To protect scientific and ecological values? [I821 3.7 To protect recreational values (salmon anglingikayakingl rafting)? WI 3.8 Other matters c2171 Part 4 What terms are recommended? 4.1 Introduction c2231 4.2 The competing flow water regimes 12251 4.3 Wetlands, tributaries and groundwater [2401 [2551 WOI 4 Part 5 Appendices 5.1 Table of flows, abstractions and residual flows below Klondyke 5.2 Draft Water Conservation Order 5.3 Hydrograph for the 1998/g year 5.4 Maps: Figure 1 Rangitata River Catchment Figure 2 Lower Rangitata River PART 1 Introduction 1.1 The Special Tribunal’s Report and the background Ul On 21 October 2002 a Special Tribunal issued a report recommending that a water conservation order under Part 9 of the Resource Management Act 1991 (“the Act” or “the RMA”) be made in respect of parts of the Rangitata River in Canterbury. As required by the Act, this is a report on that report. PI The issues for the Special Tribunal to report on were: (1) What are the correct legal tests to apply when considering an application for a water conservation order? (2) Are certain characteristics of the Rangitata River outstanding? (3) Is a water conservation order necessary to sustain any outstanding characteristics? (4) What order (if any) is it appropriate to recommend? The issues for the Environment Court are, begging the answer to (1) slightly, whether the Special Tribunal was correct in its answers, or whether in the light of further evidence on some issues we should make different recommendations. We set out the background to this inquiry and answer question (1) in Part 1 of this ort. We report on the other three issues and on our recommendations in Parts 2 to 4. 5 The parties to the inquiry [41 Because of their concerns about the report and the draft water conservation order, various submitters to the Special Tribunal lodged further submissions with the Environment Court under section 209 of the RMA. At the inquiry which the Environment Court is required to conduct under section 210 of the Act we heard from the following parties: Further submitters (to the Environment Court) l The Canterbury Regional Council (“the CRC” or “ECan”); l Rangitata South Irrigation Limited (“RSIL”); l The Timaru District Council (“TDC”); l Rangitata Diversion Race Management Limited (“RDRML”); l TrustPower Limited (“TrustPower”); l Federated Farmers of New Zealand Incorporated (“FF”); Applicant l New Zealand and Central South Island Fish and Game Council (“Fish and Game”); Primsrv Submitters l The New Zealand Recreational Canoeing Association (“NZRCA”); l New Zealand Rafting Association; l Mr W Keenan; l The Ashburton and Rangitata Instream IJsers Group; l Rangitata Dairies Limited and the Rangitata Dairies Partnership; . Te Runanga o Ngai Tahu’(“Ngai Tahu”); l The Director-General of Conservation (“the Director-General”); l The Royal Forest and Bird Protection Society Incorporated (“Forest and Bird”); l DrCDBBurt; . Friends of the Earth Incorporated; 6 l The Ashburton District Council (“ADC”); * Mrs A P Grigg; * Shepherds Bush Limited. [51 Each of the parties has an interest in the Rangitata River, Several take, or wish to take, water from the river. In our inquiry we have had regard to the submissions of and evidence for each of those persons even if we do not specifically identify them further at each point on which they had something relevant to say. Some other persons lodged submissions and/or appeared at pre-hearing conferences but did not appear at the hearings. We give no weight to their submissions. Finally, although it appeared before us, Friends of the Earth Inc neither called evidence nor presented any submissions to the hearing. The Rangitata River 161 The Rangitata River is 140 kilometres long, with a catchment of 1,600 square kilometres. It runs from the glaciers and snowfields of the Southern Alps, eastwards to the Pacific Ocean. The river is one of four large braided rivers (the others are the Waimakariri, Rakaia and Waitaki) that have formed the extensive gravel outwashes that are the Canterbury Plains. A map’ of the Rangitata River catchment is included as an appendix in Part 5.4 of this decision as Figure 1. [71 The river is a very dynamic system. It has an annual mean flow* at Klondyke of 100 cubic metres per second (“cumecs’“) and a median flow at that point of 78.2 m3/sec. The mean annual flood (which occurs on average every 2.3 years) is about ten times the mean flow, Floods greater than that - more than 1,000 cumecs - carry out the major reshaping of channels and removal of weeds. WI Aider the river is joined by its three steep and fast-flowing tributaries-the Havelock, Clyde and Lawrence - the upper Rangitata flows in a broad braided stream between the Figure 1 is taken from the Special Tribunal’s Report. Dr MP Mosley evidence-in-chief pam 15. The~other abbreviations are “n?/sec” or ‘kn3/s”. Note also that 1 cubic metre = 1,000 litres. __-.-~~~ ~~-_ -- -- - -__ 7 terraces of Mesopotamia and Erewhon Stations, past Mt Sunday and the shades of Edoras. Towards the eastern end of this huge upland valley it is joined by two important salmon- spawning streams - Deep Creek from the north and Deep Stream from the south, The river then flows into a narrow gorge cut through the argillite and greywacke below Whiterock and emerges at Klondyke.