*UPDATED* with ECan comment on March 24.

A court will consider whether the Rakaia River’s water conservation order has been breached. David Williams reports

Pressure from environmental groups appears to have told on Canterbury’s water regulator.

Last November, Newsroom revealed the contents of a scientific report, leaked from within the regional council, ECan, which said there was evidence a water conservation order on the Rakaia River was being breached, and too much water was being taken by irrigators, who were occasionally breaching consent limits.

The claims – which centre on Lake Coleridge, where NZX-listed Trustpower stores water for a hydroelectric power scheme and irrigation – were all the more startling because ECan, the regulator, was sitting on the full report, and had released only a sanitised version to fishing groups.

Public comments on the report by the regional council have been muted.

Last year, the project’s manager, Helen Shaw, said: “The report is not yet final and ready for release, and the project is not complete.”

Earlier this month, Shaw, ECan’s surface water science manager said it was important to ensure the data and outputs were accurate and up to date. “We cannot finalise a report until we have a high degree of confidence that this is the case.”

Now, the regional council has been spurred into action.

The Environmental Defence Society (EDS) announced yesterday it has agreed in principle to seek – jointly with ECan and statutory body Fish & Game – an Environment Court declaration over the unpublished Rakaia report.

That follows a video meeting between the three groups on Tuesday, spurred by a warning letter from EDS that it might take legal action to force the regional council to act.

“At [Tuesday’s] meeting, it was agreed that the parties would cooperate in preparing the questions of law for the court to address,” EDS’s newsletter said yesterday. “EDS and Fish & Game believe the regional council has allowed breaches of the national water conservation order to occur.”

The society commissioned a legal analysis of the full Rakaia report, produced by specialist environmental firm Berry Simons, of Auckland.

Agricultural irrigation almost doubled in Canterbury between 2002 and 2017. Satellite image: Google Earth

Gary Taylor, the EDS chief executive, told Newsroom: “I’m pleased that ECan has agreed with EDS and Fish & Game that there are indeed some real questions about the management of the Lake Coleridge water regime that need to go to court to be answered definitively.”

The big question, according to Taylor, is: Who is actually responsible for monitoring compliance with water conservation orders (WCO)?

“I expect to be able to fast-track an agreement on the declaration questions and get the proceeding filed in relatively short order.”

(In a neat, circular circumstance, EDS and Fish & Game were key players in establishing the Rakaia WCO, first made in 1988 and amended in 2011 and 2013.)

Rasmus Gabrielsson, chief executive of the North Canterbury Fish and Game Council, says action over the Rakaia is urgent. “Despite recognised outstanding characteristics through a water conservation order (including braiding, wildlife habitat, fisheries, recreational angling and jetboating) there are widespread concerns about adverse trends in river flow, water quality, fisheries and wildlife habitat values.”

EDS’s newsletter only landed yesterday afternoon. ECan said it wasn’t in a position to comment.

On Thursday, however, the regional council sent Newsroom a copy of an email from ECan chief executive Dr Stefanie Rixecker to Taylor. It claimed material inaccuracies in his statements, in particular that ECan was put on notice, when it was already discussing the matter with Trustpower.

“Throughout our engagement with you on this issue we have indicated our willingness and indeed our intention to bring declaration proceedings,” Rixecker wrote. “It is also consistent with our discussion on Tuesday, which concluded with Environment Canterbury agreeing to prepare draft questions to put to the court.”

(The intention to bring proceedings is somewhat belated, given ECan sent a lawyer’s letter to Trustpower in 2014 advising it to seek an Environment Court declaration on its operating regime at Lake Coleridge. The power company did not, and implemented the system anyway. At a meeting with ECan last August, Trustpower said it “remains of the view that this is not necessary”.)

It’s revealed that in 2014, ECan – through law firm Wynn Williams – advised Trustpower to seek an Environment Court declaration to ensure its new operating regime for Lake Coleridge was consistent with the water conservation order.

Trustpower referred Newsroom to its previous statements, the latest of which said: “Trustpower operates all its assets in line with their consent conditions and cooperates fully with regulators across the country to ensure compliance.”

Central Plains Water, the South Island’s biggest irrigation company, is the biggest user of irrigation water from Lake Coleridge. Its chief executive, Mark Pizey, said: “Central Plains Water have no comment in relation to this matter.”

Last Saturday, Newsroom reported three unexercised water consents held by the irrigation company had been terminated by ECan. One of the reasons for the decision was the findings of the Rakaia report.

“To many, the very heart of these rivers has been ‘ripped out’ by over-abstraction of surface and ground water.” – NIWA report

More details about the hidden report have come to light since Newsroom’s original story.

As reported just before Christmas, the report’s author, senior hydrological scientist and data analyst Wilco Terink, withdrew from the project when his bosses signalled they wanted contentious findings removed. He eventually resigned.

After two-and-a-half years his report had been subject to the usual internal and external review, but then was subject to two more internal reviews and examination by chief scientist Fiona Shanhun. The matter was escalated to science director Tim Davie.

The most explosive claims implicated Trustpower and Central Plains Water for potentially breaching the WCO and water-take consents. (Central Plains has said the report required further work to ensure the data modelling was accurate.)

But the Rakaia report also exposed ECan as a poor regulator.

At any given moment, the report said, it didn’t know how much water was entering or leaving Lake Coleridge, or the lake’s level. Not only that, it allowed Trustpower to introduce a new operating regime at the lake without checking if it complied with the WCO. Similarly, Central Plains was allowed to adopt an “alternative strategy” for taking water that, Terink’s report showed, “exceeds its consented rates”.

Like the river itself, the situation at Lake Coleridge is complex. Too complex, it seems.

Checking consent compliance was “very difficult if not impossible”, the report said. Of particular mention was an increase in water diverted from the Wilberforce River.

In another telling quote about the regulator, ECan’s principal consents planner Richard Purdon wrote to Central Plains Water last year, to terminate the three unexercised consents, saying that complying with the Rakaia’s irrigation consents “is so complex they have proven to be unworkable and impractical in another consent” held by the company.

Environmentalists might be buoyed with how the regional council has talked about the Rakaia report behind closed doors.

In a meeting last August, Davie, ECan’s science director, gave Trustpower a high-level overview.

The river was suffering, particularly the lower reaches, ECan representatives told the power company, and the water conservation order “is not achieving what it was designed to achieve”.

These unexpected effects were blamed on catchment changes and water management – including water being stored and released for irrigation.

Observations about the river’s degraded state have been bolstered, recently, by a NIWA report capturing the observations of long-time anglers on the Rakaia, Ashburton/Hakatere and Rangitata Rivers.

The report’s authors, including principal freshwater ecology scientist Don Jellyman, said the responses were sad commentaries on the loss of treasured resources. “For us as recorders, it was reminiscent of writing a eulogy about the loss of a loved one.”

The report said: “To many, the very heart of these rivers has been ‘ripped out’ by over-abstraction of surface and ground water.”

Perhaps the eulogy has been premature – for the Rakaia, at least.

While the perception of anglers is that decision-makers have been favouring irrigation over the environment, a court will now review evidence that protections on the Rakaia have been violated – and decide what, if anything, needs to be done about it.

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

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