BEFORE THE ENVIRONMENT COURT AT CHRISTCHURCH I MUA I TE KOOTI TAIAO O AOTEAROA Ō TAU TAHI ROHE ENV- IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER of a submission under s 209 of the Act AND IN THE MATTER of a submission on the recommendation of the Special Tribunal appointed to hear the application for a water conservation order over Te Waikoropupū Springs and associated water bodies by Ngāti Tama ki Te Waipounamu Trust and A Yuill TASMAN DISTRICT COUNCIL Submitter NOTICE OF MOTION & SUBMISSION BY TASMAN DISTRICT COUNCIL REGARDING RECOMMENDATIONS OF THE SPECIAL TRIBUNAL APPOINTED TO HEAR AN APPLICATION FOR A WATER CONSERVATION ORDER FLETCHER VAUTIER MOORE Telephone: (03) 543 8301 LAWYERS Facsimile: (03) 543 8302 PO BOX 3029 Email:[email protected] RICHMOND 7050 Solicitor: CP Thomsen TO: The Registrar Environment Court Christchurch 1 Tasman District Council (TDC) applies under s 209 Resource Management Act 1991 to make a submission on the following matter: Recommendations to the Minister for the Environment to make a water conservation order (WCO) for the Te Waikoropupū Springs and associated water bodies (Draft Order). 2 The grounds of the application are set out below in its substantive submission. 3 Tasman District Council received notice of the Special Tribunal Recommendation Report on Application for Water Conservation Order - Te Waikoropupū Springs and associated water bodies (Recommending Report or Report) on 17 March 2020. 4 On 25 March 2020 the Court made directions enlarging the time to file submissions on the Recommending Report to 1 May 2020. 5 The recommendations in the Report were made by a special tribunal appointed by the Minister for the Environment under s 202 RMA (Special Tribunal). 6 Tasman District Council supports the recommendation to make a Water Conservation Order over Te Waikoropupū Springs (TWS) and associated water bodies. 7 The parts of the Report and Draft Order that TDC is submitting on are: (a) Interpretation – clause 3, and consequential amendments to the Draft Order; (b) Outstanding characteristics, values and features - clause 4; (c) Restrictions on alteration of aquifer depth and form - clause 7; (d) Restrictions on alteration of aquifer pressure - clause 8; g:\client data\561101\12\d200501cpt-final submission tdc.docx page 1 (e) Requirement to protect water quality – clause 9 and Schedule 3; (f) Existing consents – clause 12; (g) Schedules 1 and 2. 8 The reasons for the submission are as follows: (a) Tasman District Council is a unitary authority as defined in s 5 Local Government Act 2002 and has the functions set out at s 30 RMA. (b) Tasman District Council made a submission to the Special Tribunal on the WCO. (c) Tasman District Council supports the making of a WCO over TWS and its associated water bodies because: (i) Te Waikoropupū Springs and the Arthur Marble Aquifer (AMA) have outstanding values and characteristics that justify the making of a water conservation order; (ii) It recognises the importance of Te Waikoropupū Springs to the Golden Bay Community and agrees with the exemptions in the Draft Order for existing resource consents (subject to the matters addressed in this submission); (iii) It acknowledges and recognises the special relationship Tangata Whenua, including Ngāti Tama, have with Te Waikoropupū Springs. (d) Tasman District Council’s primary concern is that the Draft Order is certain and clear so it can be implemented by it while it is undertaking its functions under s 30(1) and part 6 RMA, including ensuring any regional plan is not inconsistent with the Draft Order. Planning Framework (e) The operative regional policy statement for the Tasman region is the Tasman Regional Policy Statement. g:\client data\561101\12\d200501cpt-final submission tdc.docx page 2 (f) The operative regional plan for water in the Tasman region is the Tasman Resource Management Plan (TRMP). (g) The TRMP has objectives, policies and rules for the Takaka catchment, which includes TWS, the AMA and associated water bodies. (h) To give effect to the National Policy Statement for Freshwater Management, Council has been undertaking a collaborative community planning process in the Takaka catchment, known as the Takaka Fresh Water and Land Advisory Group (FLAG). Recommendations from the FLAG have been made to Council, but no plan change notified. Definitions - Figures (i) The definitions refer to Schedules 1 and 2, which in turn refer to Figures 1 and 2. The figures are insufficiently detailed and at an insufficient scale or show aspects not referenced elsewhere in the Draft Order and therefore require amendment to properly assist with the interpretation of the definitions. Relief Sought (j) Amend Figure 1 and 2 of Schedule 2 and add an additional figure showing Te Waikoropupū Springs at a larger scale. Definitions – Te Waikoropupū Springs & Main Spring (k) Te Waikoropupū Springs is defined as: … the Main Spring, Dancing Sands Spring and Fish Creek Springs identified in Schedule 1. (l) The definition: (i) Refers to Schedule 1, which refers to Figure 1. That figure does not show enough detail to assist with the interpretation of the definition. g:\client data\561101\12\d200501cpt-final submission tdc.docx page 3 (ii) Creates uncertainty because water flow and quality measurement are to be undertaken at Te Waikoropupū Springs, which includes three different springs and the upper Spring Creek (see the definition of Main Spring). (iii) Flow and quality monitoring have historically been undertaken by TDC at the Main Spring (defined by TDC as the permanently artesian upwelling of Te Waikoropupū Spring adjacent to the main viewing platform, and for flow purposes, incorporating Dancing Sand Springs). (m) Main Spring is defined as: … the Main Spring of Te Waikoropupū Springs and extends to the point of Spring Creek above the entry point of Fish Creek. (n) The definition: (i) Is circular, referring again to Main Spring as a proper noun. (ii) Omits parts of Main Spring, including Dancing Sand Spring. (iii) Includes surface waters that are not springs but are fed from the combined flow of the Main Spring and Dancing Sand Spring. Relief Sought (o) Amend the definitions as particularised in Schedule A. Definition – Arthur Marble Aquifer Recharge Area (p) The Draft Order refers to the recharge zone of the AMA. However, the Draft Order: (i) Does not define the recharge zone of the AMA or identify the water bodies within it, except indirectly in the legend of Figures 1 and 2. (ii) Lacks clarity in referring to the recharge zone of the AMA in Schedule 2 as “upstream of the Artesian Boundary as shown in Figure 2”. g:\client data\561101\12\d200501cpt-final submission tdc.docx page 4 (iii) Inconsistently refers to waters that recharge the AMA in, for example, clauses 7(b), (d) and (e) and 9. Relief Sought (q) Include a definition of Arthur Marble Aquifer Recharge Area and show this in a graphic. Definition - Takaka River and its Tributaries (r) The definition of the Takaka River and its Tributaries, including the reference in Schedule 1 and Figure 1, does not provide sufficient clarity or detail to assist with the interpretation of the definition. Relief Sought (s) Amend the definition as particularised in Schedule A. Outstanding characteristics, features and values – clause 4 & Schedule 1 (t) Clause 4 and Schedule 1 provide for the protection of spiritual values as an outstanding characteristic, feature or value of Te Waikoropupū Springs. (u) Clause 4 and Schedule 1 provide for the protection of outstanding characteristics, features or values of Te Waikoropupū Springs that are significant in accordance with tikanga Māori. (v) At paragraph 312 the Special Tribunal states, in the context of spiritual values (not in respect of tikanga Māori): …but overall do not find the evidence strong enough on a national comparative basis to find that the spiritual characteristic of the Springs is outstanding. (w) TDC does not oppose the inclusion of spiritual values as an outstanding characteristic, feature or value of Te Waikoropupū Springs, but its inclusion means the Report and Draft Order are inconsistent. Therefore, given the finding in the Report, the Draft g:\client data\561101\12\d200501cpt-final submission tdc.docx page 5 Order incorrectly includes spiritual values at clause 4 and Schedule 1. Relief Sought (x) Amend the Draft Order to delete spiritual values in clause 4 and Schedule 1, subject to a finding by the Court that such values are outstanding. MALF – clause 7a low flow at TWS (y) Clause 7a provides No resource consent may be granted or rule included in a regional plan that - (a) Will cause the flow of groundwater from Te Waikoropupū Springs to fall below its mean annual low flow [being a flow of 6,895 litres per second]. (z) Tasman District Council accept 6,895 litres per second is an appropriate minimum flow at Te Waikoropupū Springs. However, there are three issues with the clause that will lead to implementation problems. (aa) The Draft Order is inconsistent with the Report because: (i) The evidence before the Special Tribunal was that the mean annual low flow (7-day MALF) was 7,661 litres per second, not 6,895 litres per second. (ii) At paragraph 345 the Report records it accepts the evidence of Dr Roger Young who recommended a minimum flow of groundwater at Main Spring of 6,895 litres per second, being 90% of MALF. (iii) The Report states that minimum flows should be based on 90% of MALF (6,895 litres per second). (bb) The drafting of clause 7a is flawed because: g:\client data\561101\12\d200501cpt-final submission tdc.docx page 6 (i) MALF is a flow generally calculated yearly from the actual measured flow to that date in the year.