Federated Mountain Clubs considers a legal challenge against a planned West Coast hydro scheme. David Williams reports.
Like many South Island battles, this one centres on water.
An Auckland-based company, Griffin Creek Hydro Ltd, was granted, in 2011, after four years of consideration, a 30-year Department of Conservation concession for a 1.3-megawatt hydro-electric power scheme. It would generate enough power for 2000 homes.
The company also gained consents from the Westland District and West Coast Regional Councils, for land and water use, and to disturb the bed of Griffin Creek.
The hydro scheme’s above-ground pipeline was meant to traverse conservation land on the West Coast side of Arthur’s Pass, in the South Island, and the intake infrastructure is to be built in the bed of Griffin Creek, which flows into the Taramakau River, which, in turn, sidles along State Highway 73.
What has upset conservation and recreation groups in recent years are variations to the concession sparked by a scheme re-design.
Reduced to its most simplistic form, changes to the scheme are said to be so drastic they should trigger an entirely new concession application, and the public should get input. DoC issued a variation to the concession anyway.
Late last year, recreation group Federated Mountain Clubs sent DoC a letter outlining its concerns and stating it was considering its legal options.
“DoC’s role was to fiercely protect our wild lands and in this case too, under the Conservation Act, the department is obliged to foster recreation, and clearly it’s putting economic considerations and needs over and above recreational needs,” says FMC’s vice president Neil Silverwood, of Blackball, on the West Coast.
He adds: “DoC’s actions fall well below what the public should be expecting.”
Dan Clearwater, of Wanaka, is president of NZ Canyoning Association, a group affiliated with FMC. He says Griffin Creek is nationally significant; the eight-to-10-hour journey through its gorge one of the most satisfying in the country. The hydro scheme aims to remove most of the water and would ruin the experience on the lower canyon.
“We’ve been deeply confused by the convoluted and drawn-out process, which appears to be at odds with the legal requirements of the Conservation Act.”
Griffin Creek Hydro’s director Rhys Morgan told Newsroom: “I’m not really interested in making any statement.”
Meanwhile, DoC shrugs off accusations it’s not protecting conservation land.
Hokitika operations manager Owen Kilgour says the concession doesn’t explicitly limit the water Griffin Creek Hydro Limited can take – just the size of the residual flow. An updated construction and operations plan “that meets the original and varied concession requirements” must be approved before work can start.
The battle is far from simple.
Over the hydro scheme itself, there is a split between the controls exerted by the DoC concession and those of council consents – particularly when it comes to water. Also, there’s the fact canyoning at Griffin Creek only started after the 2011 concession was granted, apparently diluting arguments about effects on recreational use of the area.
(DoC’s decision report says the variation application makes no change to the already consented water-takes, therefore the effect on recreational values is “nil to minor”.)
Then there are questions about DoC’s handling of concessions – that management is too complex, and the process too subjective. For example, the upside-down idea that variations can be granted without final designs being completed.
DoC’s Kilgour says: “The further concession conditions which need to be met before work can start are: an updated construction and operations plan that meets the original and varied concession requirements; an independent assessment of risk; all resource consents must be in place; bond must be in place; the local pperations manager must be notified immediately prior to works commencing; an opportunity for the department to brief contractors must be provided; areas to be disturbed must be marked and approved by the department; all standing vegetation 20 to 50cm diameter breast height (DBH) that will be removed must be flagged and approved by the department.”
FMC’s review of the issue, Conceding the Commons, published in 2020, argued an overhaul was needed for a system dedicated to speed and expedience, and which favours commercial interests.
Sitting above it all is the review of stewardship land – a holding pen category of conservation land yet to get an official status.
Griffin Creek’s conservation land is in stewardship. Should a concession decision wait until the land is thoroughly assessed for conservation values? Could the land be given greater protection – even added to the Arthur’s Pass National Park?
As the DoC concession process advances, these questions remain unanswered.
“In our opinion, it amounts to death by a thousand cuts.” – Dan Clearwater
A detailed history of Griffin Creek Hydro’s concession, and an insight into the department’s consideration, comes from the 86-page permission decision support document, prepared for Western South Island operations director Mark Davies.
The first iteration of the variation, submitted in 2017, included a proposal to increase the water take. It was withdrawn after the department signalled it would be publicly notified.
In 2019, Griffin Creek Hydro submitted a construction and operational plan, from which four elements – the easement location and area, a “temporary” increase in the construction area, and an increase in tree removal – were separated out and submitted as a variation application. It was identical to what had been submitted previously, with the water abstraction aspect removed. (The plan itself was later withdrawn.)
The Canyoning Association and other groups were invited to comment – which Griffin Creek Hydro said was public notification “by another name”. It also called third party input “interference”.
Clearwater, the association president, says: “Our assessment of the applicant’s intent was to apply for small, non-notifiable changes, and eventually take the water they wanted in the first place. In our opinion, it amounts to death by a thousand cuts, evading the legal thresholds and the intention of the law which seeks to prevent such degradation.”
The West Coast Tai Poutini Conservation Board told the department the changes were significant – a new pipeline route, the pipe itself was to be a larger diameter and buried, and more, and larger, trees needed to be cleared over a wider area. “It would materially increase the adverse effects to both conservation and recreation values,” the board said, adding a new application should be considered, paired with public notification.
Yet the department believed the adverse effects would be “nil to minor”. It said its assessment and analysis addressed the issues raised, while matters of process raised by the board were “noted”.
At times, the department seems to be dancing on the head of a pin to come to the “nil to minor” conclusion.
Assessments were made without the final design of the intake structures being completed, and without settling on a pipeline route.
An ecological review said several effects couldn’t be determined because of a lack of information, including whether the company wanted to install a larger pipe, and why a larger area needed to be cleared.
The new plan is to “remove, trim and cut down” vegetation of less than 50cm diameter at breast height, instead of 20cm, because a wider construction footprint would be “less able to adjust its alignment to avoid larger trees”.
The company estimates it would have to cut down fewer than 50 trees in the rata/kamahi forest, whereas an FMC survey suggested it would be more like 1000 native trees.
DoC went further, stating about 1325 trees would be “disturbed”, with some older and mature trees removed, compared to roughly 441 trees in the original proposal – a change considered “negligible”.
The DoC decision document says: “Although the new proposal identifies that larger trees will be impacted, and the construction footprint is double, the actual effects to vegetation remain minor in the short to medium term and are much the same in the longer term.”
Much hangs on the yet-to-be-approved construction and operational plan.
For example, the redesigned scheme requires a maximum “construction footprint width” of 6m, despite a concession condition specifying a maximum width of 3m, “unless otherwise agreed by the operations manager”.
“Because the changed width can be agreed through the construction and operational plan, this is not being sought as a variation,” the decision document says.
U-turns suggest the department is under pressure.
It initially recommended the 2012 construction and operational plan be revoked and a new one applied for. The hydro company strongly disagreed, and the recommendation was later reversed “in fairness to the applicant”.
Also, Davies, the Western South Island operations director, recommended the variation be publicly notified but he was overruled by permissions and land manager Judi Brennan.
Then, the error. Griffin Creek Hydro said the approved size (12m²) of the intake structure area was an unnoticed “typo”. The department agreed – it should have been almost four times that.
Council consent varied
But back to water. Griffin Creek Hydro varied its regional council consent in 2017 to allow a higher water take, from 1200 litres per second to 2500lps. The minimum residual flow immediately below the intake was reduced from 800lps to 456lps.
As noted in the DoC decision document, water take specifications in the concession are confined to one point – extraction must cease when flow “measured immediately upstream of the outlet” falls below the mean annual low flow of 800lps.
“The increased take allowed for by the resource consent will allow GCH to take more water at high flow but does not affect the departments [sic] residual flow requirement which is not part the [sic] variations sought.”
A further change is possible. “Once two years of data … has been obtained, a new minimum residual flow based on a revised mean annual flow may be used following agreement by the grantor and concessionaire.”
DoC acknowledges Griffin Creek gorge is used by experienced canyoners but “the amount of use is unknown”. “Overall, the effect remains one place in a day’s journey in the wilderness where a minor amount of industrial intrusion is viewed.”
Canyoners descending Griffin Creek will encounter the proposed intake structures and access track about five hours into a seven-hour descent. These words are underlined in the decision document, and a handwritten note, presumably by Davies, added: “70 percent of the experience is unchanged”.
There’s always an upside, if you look for one. “The associated access track will provide an exit route for canyoners should they wish to walk out at the location of the intake structures.”
Canyoning Association president Clearwater confirms the first descent of Griffin Creek was in 2013, two years after the concession was granted. “As far as I know, no one in the canyoning community was aware of the concession until they bulldozed a giant road to the proposed intake location.”
Although canyoning is thrilling, he says “thrill-seeking is not why we go”.
“These natural and unmodified environments are incredibly rare worldwide, and we visit them to appreciate them as they are. In most of life, we operate in a sanitised, curated world, which decays our abilities to make real decisions where there are real hazards, or the opportunities to connect with or even give a stuff about the natural world.”
Removing Griffin Creek’s high flows would be like “putting a speed limit on a Formula 1 racetrack”, Clearwater says.
“No one would be interested. The power and beauty of the water, the challenge to move through it are central to the enjoyment of visiting these canyons.”