Three incidents in quick succession show fish aren’t being properly protected, Forest & Bird argues. David Williams reports.

Some images are seared into your memory.

For Napier City Council’s Cameron Burton, his confronting moment happened on February 5 while responding to a hydrochloric acid spill into the stormwater system and the nationally significant wildlife refuge Te Whanganui-a-Orotū/Ahuriri Estuary. (The estuary was formed by the 1931 earthquake, when uplift of between one and two metres exposed about 1300ha of the Ahuriri Lagoon.)

Burton, the environmental solutions manager, trudged from an industrial area, where the spill occurred, to a natural drain along the estuary’s mudflats, taking water samples – showing acid levels “of concern” – and coordinating sucker trucks, which ended up extracting 40,000 litres of acid-contaminated water.

Hundreds of fish were killed: shortfin eels, yelloweye mullet, either yellowbelly or black flounder, freshwater shrimp, and possibly inanga (declining in conservation status), smelt and pilchard.

“It was physically nauseating,” Burton says. “The fish were literally trying to swim out of the water onto land to try and get to somewhere that was going to have less effect on them.”

He goes on: “One image that will stick in my mind for a very long time was the skin and face of an eel physically peeling off because it had been so badly burnt by the acid.”

The acid spill – the investigation into which is ongoing – is one of three recent fish kill incidents that show native fish aren’t being prioritised, conservation lobby group Forest & Bird says.

“Fish are falling through the regulatory cracks, and they’re barely hanging on,” says freshwater conservation advocate Annabeth Cohen.

An eel during a feeding session. Photo: Bon Wilton Scott/DOC

A 2017 report from OECD said New Zealand’s species extinction rates were among the highest in the world. Stats NZ says of the indigenous freshwater fish species assessed in 2017, 76 percent are classified as threatened with or at risk of extinction. That’s up from about a quarter in the early 1990s.

“They face lots of stressors,” Cohen says of native fish. “Climate change, predation from invasive species, water quality, water quantity – springs and rivers being re-routed and drying out.

“The regulations are not doing enough to prevent this decline, and then on top of it you have these events which occur often times because the rules are poor.”

A compounding factor is under-staffed regional and unitary councils aren’t known for strictly enforcing environmental rules. (In her 2017 EDS/Law Foundation report, policy analyst Marie Brown said councils received little support or guidance in undertaking compliance, monitoring and enforcement and “appear to pay varying degrees of attention to this role”.)

A spokesperson for Acting Conservation Minister Ayesha Verrall says: “To restore the health of our freshwater fisheries all threats need to be tackled.

Environment Minister David Parker hasn’t asked to be briefed on the fish kill incidents. “The new national policy statement for freshwater management will strengthen previous protections for the habitats of indigenous freshwater species,” he says via email.

The Our Freshwater report from last year said an estimated 90 percent of this country’s wetland habitats, including swamps, have been drained. (Much of the remaining wetlands are degraded.) And it’s still happening. More than 200 wetlands, covering 1247ha, were lost between 2001 and 2016.

February’s fish kill in Dunedin’s Kaikorai Estuary killed smelt, flounder, giant bullies, trout and inanga. Photo: Ian Hadland/Otago Fish & Game

The trio of recent fish kill incidents are quite different, making it hard for one simplistic argument to cover them all.

The second incident happened in Dunedin in February.

Hundreds of dead smelt, flounder, giant bullies, trout and inanga lined the Kaikorai Stream and estuary, just a day after a contractor’s digger opened the coastal mouth by excavating a channel in the sand bar. The stream was lowered, on the orders of the Otago Regional Council, to prevent it reaching a “trigger limit”, at which leaching might occur from the Green Island landfill.

Otago Fish & Game’s chief executive Ian Hadland reported the fish kill on February 20. A few weeks later, Fish & Game’s national chairman Ray Grubb, who lives in Wanaka, blamed the regional council for the ecological “disaster”.

The regional council’s internal memo from its incident responder said: “The most likely cause of the incident remains that the opening of the river mouth caused the dissolved oxygen levels in the Kaikorai river to drop, leading to the deaths of the fish.”

(The estuary water was stratified and when the mouth was opened, draining the top, oxygen-rich layer, and leaving the lower anoxic water. Water quality in the upstream reaches were degraded, with high nutrient levels, a report penned by water quality scientist Jason Augspurger said, but “not at a high enough level that I believe they would be a singular factor in the fish kill”.)

Two independent reports back the council’s response. Law firm Wynn Williams found the regional council’s mouth opening work was permitted.

“They were operating completely within the law but they did not think about the fish before they decided to open up an estuary and all the water goes out on a hot day,” Cohen, of Forest & Bird, says. “These fish basically bake and get strangled with no oxygen, and it’s really unfortunate to have the council turn around and say, ‘Well, we were doing our job’.”

Councils shouldn’t be let off the hook, says Cohen, who notes the Otago Regional Council has a coastal plan, and a land and water plan. “There should be some overarching values and objectives in there that should say fish should be a priority.”

Fish & Game’s Hadland says it’s disappointing the same authority charged with protecting the estuary likely caused the fish kill, albeit inadvertently. He calls the regional council investigation thorough.

It’s believed the regional council has earmarked money to improve the long-term health of the Kaikorai estuary and catchment, Hadland says, adding: “This cannot come soon enough.”

The regional council’s general manager of regulatory and communications Richard Saunders says, via email, the council has adopted recommendations, including a new monitoring and testing regime, made in a report from consulting firm Ryder Environmental.

“We currently have three coastal mouths being monitored under this process, with Tokomairiro opened on Thursday trialling a new methodology as recommended by Ryder.

The national policy statement for freshwater management adopted last year seeks to stop further degradation of waterways. The regional council will be required to develop an action plan to improve water quality. The council expects to notify a new land and water regional plan by 2024, Saunders says.

“It is extremely disappointing that the council prioritises growing grass over the protection of a threatened species.” – Eugenie Sage

The last fish kill incident of three happened at Hikurangi Swamp, north of Whangārei, the country’s northern-most city.

On February 15, during heavy rain, four of the catchment’s seven pumps were started to prevent flooding damage to crop and pasture. Ten days later, a distressed Hori Kingi, a longtime member of Ngā Kaitiāki o Ngā Wāimāori, discovered dead migrating eels, or tuna whakaheke, chopped up in the water near the Ngaratanua pump station.

(Tuna whakaheke migrate thousands of kilometres of ocean to breed with elvers returning to Aotearoa. They migrate over summer and early autumn, when most floods at Hikurangi Swamp occur.)

Ngā Kaitiāki o Ngā Wāimāori hapū couldn’t be reached for comment. But members have called for the Northland Regional Council, which issued a resource consent for the flood protection system, to get tough on the scheme’s owners, Whangārei District Council.

Green Party MP Eugenie Sage, the former Conservation Minister, says mincing the tuna is careless and cruel and the regional council should take enforcement action. “It is extremely disappointing that the [district] council prioritises growing grass over the protection of a threatened species, especially at a critical part of the eels’ lifecycle.”

However, enforcement action seems unlikely.

The regional council’s group manager of regulatory services Colin Dall says the tuna kill didn’t breach the resource consent. Under the consent, Whangārei’s council is required to prepare a fisheries management plan (FMP), which it did. However, Dall says the plan, prepared in 2013, is generally recognised as out-of-date and needs to be revised.

Whangārei’s council has agreed to review and update its so-called scheme management plan, which is also required by the consent. That review is overdue, Dall says.

When tuna migrate in floods they get trapped behind a closed gravity gate in Hikurangi Swamp and if the pumps turn on they’re drawn in. Hapū estimate hundreds if not thousands of tuna were killed in February, but council contractors HydroTech estimated there were about 140.

From the farmers’ point of view, flood waters can kill pasture then remain for two or three days, and re-seeding is expensive and time-consuming. Less lethal pumps are costly – the district council estimates it would cost $42 million to install Archimedes screws to stop eels being harmed when the pumps are running.

HydroTech’s report into February’s incident suggests operating procedures at the pump stations be reviewed. A meeting of interested parties will be held tomorrow.

“The worst thing is we seem to be doing the paying but we have very little saying.” – Geoff Crawford

Hikurangi Swamp farmer Geoff Crawford, who’s in hospital with a crushed leg, says farmers want the eels protected, too. A plan was agreed last year by farmers and the council, but during February’s flood there was what he called a breakdown in communication – when the council failed to tell its contractor.

“We expect when you have a meeting with a farmer and you look up and you say, ‘Yeah, let’s do it’, and you walk away, that it’s actually done,” a frustrated Crawford says.

“All we want, as farmers, is we just want it maintained to a level that works.”

The scheme seemed to be a “bit of a pain in the arse” for the council, says Crawford, who has farmed at Hikurangi for 27 years. He milks 1000 dairy cows over 500 hectares. Crawford pays $1900 a week in rates; swamp farmers pay targeted rates totalling $1.3 million a year.

“The worst thing is we seem to be doing the paying but we have very little saying.”

Whangārei District Council chief executive Rob Forlong says the council was criticised last year for leaving the pumps off too long, which destroyed pasture. It “planned” to change its procedures this year: only turning the pumps on after hapū confirmed eels had migrated for the season.

“Unfortunately, the protocols for this (which need to be agreed by hapū and farmers) had not yet been drawn up at the time of the recent rain,” Forlong says. He adds: “We regret the deaths of the eels.

The council has already taken measures to limit fish kills, he says, and more will be considered in the wake of HydroTech’s recommendations. If agreement can be reached, the pumps could be turned off between January and April.

“Our aim is to find a balance between saving the pasture (using the pumps) and saving the eels when they are migrating (delaying using the pumps),” Forlong says.

Cohen, of Forest & Bird, says the new freshwater regulations that came in last year have provision for fish passage as a requirement for all new structures – but existing structures aren’t included.

Dr Tanya Blakely, an ecologist for Boffa Miskell who chairs the country’s Fish Passage Advisory Group, says the group is working with the Waikato Regional Council to develop guidance on pump stations. The issue was highlighted three years ago, after several reports documented evidence of widespread fish kills in pumps.

The spokesperson for Acting Conservation Minister Verrall says recent amendments to the Conservation Act give the Minister the power to create regulations to control activities that kill or injure fish. “No regulations have yet been made, but if Resource Management Act [RMA] processes are unable to effectively address significant threats to fish, regulations could be proposed.”

A punitive misalignment

Back to Napier’s chemical spill. City council environmental solutions manager Burton says it’s the most significant incident to occur during his three years in the job, and costs are now approaching $50,000.

The spill is covered by existing bylaws and the RMA. Prosecution is a possibility. (Hawke’s Bay Regional Council’s group manager of policy and regulation Katrina Brunton says: “The regional council has nothing to add at this point as our investigation is still underway.”)

Burton, the city council’s environmental solutions manager, says there’s a “misalignment” between the two regimes. Under the RMA, applied by regional councils, a “grade one offence” can lead to up to two years’ imprisonment for a person, and fines of up to $600,000 for an entity.

Under the Local Government Act, bylaw breaches can only attract a maximum fine of $20,000, Burton says. (A close reading of the act says trade waste offences can reach $200,000.)

“And to get that $20,000 we have to take court proceedings and they have to be found guilty of that offence,” Burton says. Given the cost of court action, it might not seem a good return on investment, as such, but it can be a worthwhile deterrent, he says.

“To be able to actually make an example of something and show that we are serious by following that through is something that is considered on its merits.”

The mismatch raises questions about the ability of city councils to enforce bylaws in a manner that discourages others. Local Government Minister Nanaia Mahuta’s office didn’t respond to a request for comment yesterday. On Tuesday, her office said officials weren’t available

Burton, of Napier’s city council, says avoidable incidents such as February’s spill are disappointing because the money and time could be better spent. The council has only recently upgraded its stormwater bylaw, and spent two years on a well-received education campaign. Under the bylaw, high-risk businesses have to create an environmental management plan, and detail future investments to improve their environmental impact.

“Everybody within the catchment where this occurred is well aware of what’s right and wrong, and we’ve spent a lot of time having one-on-one chats and group presentations with them as to what our quest is. But we can’t do it without individuals taking responsibility and then collectively, hopefully, we can make some positive change.”

* This story has been updated to correctly attribute comments in a report to Otago Regional Council water quality scientist Jason Augspurger

David Williams is Newsroom's environment editor, South Island correspondent and investigative writer.

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