Water regulator defends progress on checking for potential non-compliance. David Williams reports

Last year, Bill Southward, of Rakaia Huts, on the South Island’s east coast, expressed concerns Canterbury’s water regulator wasn’t doing its job.

“They give out these consents, they’ve got to check that it’s actually happening,” he said, reacting to a leaked ECan report which uncovered evidence of problems with compliance and monitoring of water takes from the Rakaia River.

Further, he thought it was a cover-up. “What they found out they didn’t like.”

Wilco Terink, the senior hydrologist and data analyst who spent more than two years writing the report, left ECan, Canterbury’s regional council, over concerns the most contentious findings would be removed.

So what has happened since?

Southward, one of the Rakaia’s staunchest advocates, remains concerned about the disappearance of smelt – a small, silvery native fish, at the bottom of the food chain – larger fish species, and native birds, some of them endangered.

“Nothing’s changed,” he says now. “It’s slowly but surely, I believe, getting worse.”

Paul Hodgson, of Christchurch, is a committee member of the NZ Salmon Anglers Association. He points to a NIWA report, prepared for ECan and published in January, summarising anglers’ long-term observations of hāpua (coastal lagoons) on key Canterbury rivers – the Rakaia, Ashburton/Hakatere and Rangitata.

The main physical issues were insufficient flows and deteriorating water quality, plus increased fine sediment and periphyton, and river mouths migrating to the north. The authors compared it to writing a eulogy about the loss of a loved one.

Hodgson says: “We’ve said for quite some number of years now that the native fish have gone, the birds, in general, the numbers are significantly diminished from where they were 20 years ago, the water seems to have disappeared in the bottom end of the river.”

He adds: “We’re yet to get an answer to tell us where the water’s gone.”

The irony is the Rakaia is supposed to be protected. A water conservation order – akin to national park status for a river – was made in 1988. The order was granted because of the Rakaia’s outstanding characteristics and features.

“Anglers still have not seen and do not understand how ECan is monitoring that outstanding character,” Hodgson says.

The Terink report – kept in draft, and reviewed “a zillion times”, according to its author – raised serious concerns about possible breaches of consent conditions and the water conservation order. (ECan maintains the report hasn’t met peer review standards.)

Yet, since the scientist left, little progress appears to have been made.

ECan hasn’t published the Rakaia water balance report, its compliance review is ongoing, and it is yet to seek a court declaration, something council staff declared internally they would do in June or July.

Also, a hydrologist’s informal review of the Terink report, sent to ECan’s science director, Dr Tim Davie, suggests the Rakaia catchment’s consents should be reviewed to simplify the overly complex water-take system – an overhaul ECan isn’t committing to.

Southward, of Rakaia Huts, says of the council’s work: “They’ve done stuff but they aren’t telling you they’re doing anything.”

Conservation lobby group Forest & Bird is extremely disappointed.

“This is one of our most significant rivers – supposedly ‘protected’ with a water conservation order,” freshwater advocate Tom Kay says via email. “Yet we’re fumbling around with any action to actually do something when there is an obvious threat to its health.

“In our view this is representative of a broken system where we continue to put the interests of developers and irrigators above the health and wellbeing of the environment (and often above the requirements of environmental plans and laws).”

It has the hallmarks, Kay suggests, of environmental abuse and a reluctant regulator. “And as time goes on the likelihood of action, particularly things like declarations, just shrinks. It’s a significant failing.”

Will the new crop of freshly elected councillors see it that way?

ECan says the systematic monitoring of water-take consents from the Rakaia will cost more but the community will have increased confidence the river’s water conservation order is being adhered to. Photo: ECan

Before we get to ECan, a little background is necessary.

The Rakaia’s water conservation order is designed to keep a certain amount of natural flow through mandated minimums, which change from month-to-month, between the Rakaia Gorge and the sea.

Above that minimum, measured in the Rakaia gorge at a place known as Fighting Hill, water can be taken on a one-for-one sharing basis.

Let’s say the monthly minimum is 120 cubic metres per second – if the flow is 140 cumecs, then 10 cumecs, or half the amount above the minimum, can be diverted or abstracted. The maximum amount that can be taken is 70 cumecs.

In 2013, an amendment to the Rakaia water conservation order allowed Trustpower, now Manawa Energy, to release water from Lake Coleridge, where it has a hydro-electric power scheme, down the Rakaia, to be diverted downstream by irrigators, the largest of which is now Central Plains Water (CPW). The irrigation water is considered over and above the minimum flows.

That might sound complex already.

To make matters worse, there’s a banding regime which decides which consent holder can take water at which flow, and, according to the Terink report, ECan doesn’t have access to real-time water meter data. Checking consent compliance is “very difficult if not impossible”, the report says.

There are two other potentially concerning developments revealed in the Rakaia report.

In 2014, Trustpower advised ECan it was bringing in a new operating regime at Lake Coleridge, known as warehouse stored water, allowing it to expand its theoretical storage capacity for irrigation by more than three times. Despite ECan’s advice that Trustpower seek an Environment Court declaration to ensure the regime was consistent with the water conservation order, the company went ahead and implemented it anyway.

CPW, meanwhile, brought in its own new regime for taking water, known as the “alternative strategy”, calling on “subservient” water apparently not being used by other consent holders.

Terink was critical of both. His report said warehouse stored water did not meet the conservation order’s conditions, while, according to his numbers, CPW “exceeds its consented rates” for water takes.

The Rakaia – significant to Ngāi Tahu – was being “impeded and manipulated” beyond what was anticipated in the water conservation order, Terink concluded.

Since Newsroom’s first story on the leaked report, almost a year ago, Manawa and CPW have said, at various times, they abide by consent conditions.

Ebb and flow

ECan’s attitude to the Terink report has ebbed and flowed.

In July last year, the report was used, at least in part, as justification for terminating three unexercised resource consents held by CPW.

A month later, ECan managers and staffers discussed the report with Trustpower representatives, and blamed water management and catchment changes for the Rakaia’s lower reaches “suffering”.

Yet, in comments to Newsroom at least, ECan has sought to distance itself from the Terink report’s findings.

Last year, surface water science manager Helen Shaw tried to claim it wasn’t a compliance report – that it was more about creating a reliable model. (One of the reasons for ECan creating a Rakaia water model was to estimate flows at the mouth, to ensure the conservation order’s objectives were being met.)

However, that contradicted the Rakaia project plan Shaw herself approved in April 2018.

ECan’s regional leader of compliance delivery James Tricker was firmer. In April this year he said: “The ‘Wilco Terink report’ you refer to is not an ECan report and we will not be commenting on unsubstantiated information.”

Yet, in the background, council staff were working to substantiate the information, including a refined analysis by surface water scientists. While that analysis was in draft form, it indicated “the potential for non-compliance” by CPW, ECan operations director Katherine Harbrow said.

A briefing to ECan councillors from May, released to Newsroom after an official information request, said work on the modelling part of the Rakaia project was ongoing but “the demand to determine compliance cannot wait”.

“The systematic monitoring of water-take consents from the Rakaia is currently underway and will inevitably result in greater compliance costs,” the memo said. “The benefit of this approach will be increased community confidence that the water conservation order is being adhered to.”

A few weeks ago, ECan’s science director, Davie, said the analysis of CPW’s subservient data and methodology was “nearing completion and will be finalised soon”.

The analysis highlighted areas in the draft Rakaia report which reflected an incomplete understanding of CPW’s operation, he added.

It also highlighted the need for ECan to have additional operational information to allow “closer to real time assessment of compliance”.

“Our compliance team is working with CPW staff to improve transparency and improved reporting regarding CPW’s compliance with subservient consent conditions.”

Harbrow, the operations director, said on October 3: “The work to review the stored water register and undertake analysis of Manawa Energy’s daily stored water calculation has not yet begun.

“We are looking at how we can build capacity to progress these items alongside the ongoing work relating to water abstraction compliance, including registered stored water consents.”

ECan provided fresh comment on Friday last week.

Shaw, the surface water science manager, says the draft modelling report on the Rakaia is not fit for purpose, and ECan has elected to take a simpler approach that will be “better understood by partners, stakeholders and the wider community”.

“We are currently planning meetings to share results of the latest version of the water balance model with the community over the coming months, a step that will enable those interested to contribute to our science work.”

Compliance monitoring is ongoing, Shaw says. “We are developing a holistic compliance approach to ensure that we assess compliance in a comprehensive manner for large and complex catchments such as the Rakaia.”

Asked about court proceedings in relation to the water conservation order – something the May memo said should be filed in June or July, Shaw says: “We have been engaging with Iwi, Manawa Energy, The Environmental Defence Society and Fish & Game in respect of the draft declaration questions. This engagement process has taken longer than anticipated and is still ongoing.”

“The report provides a really good platform for ECan to initiate a review of all consents in the catchment.” – Andrew Fenemor

Official information requests to ECan turned up an informal review of the Terink report by hydrologist and water policy expert Andrew Fenemor.

Fenemor has more than a passing interest in the Rakaia, as one of three commissioners appointed to hear power giant Trustpower’s application to amend the water conservation order in 2012.

(His only comment to Newsroom was that as he’d been a commissioner he had a professional interest in the outcome.)

In a note to Davie, ECan’s science director, sent in February, Fenemor described Terink’s analysis as incredibly thorough. However, some of the report’s conclusions were “quite political, costly, and technically/legally difficult to implement”, and no doubt being contested.

Some of the compliance issues identified were minor, but others, “such as the use of warehouse stored water and the double-counting of CPW unexercised water allocation” were “quite a concern”.

“Those issues arise at least partially from the complexity of the banding system, of consent conditions, and of ECan not having more real-time oversight of what Trustpower is doing to manage their Lake Coleridge discharges for both hydro generation and to meet downstream irrigation orders.”

This fits closely with Terink’s findings, which painted a picture of a reluctant regulator unable to properly monitor an overly complex system.

One of the main deficiencies with the report’s modelling was, according to Fenemor, the availability of data.

“The report provides a really good platform for ECan to initiate a review of all consents in the catchment to come up with a much simpler system for implementation and compliance checking. Ideally people … should be able to access an ECan website and see at any time that compliance is being achieved.”

Is ECan interested in such a review?

The regional council’s regional planning manager, Andrew Parrish, replies via email: “While a review of consents in the catchment could potentially have benefits for the management of water quantity in the Rakaia, consent review is a very costly and time-consuming legal process, and any potential benefit would not be seen for many years.”

ECan will develop a new regional planning framework over the coming years, in partnership with Papatipu Rūnanga, he says.

“A simplification of the system and a change to how consents are issued and managed is a possible outcome of this process,” Parrish says.

“While the process is just beginning, we will be engaging with stakeholders and the public next year on visions for our new plans, with the aim of notifying a new regional plan by December 2024.”

That would be more than three years since Newsroom revealed the contents of the Terink report.

ECan science director Tim Davie is a former colleague of Andrew Fenemor. Photo: ECan

Central Plains Water Ltd (CPWL) chief executive Mark Pizey responds: “CPWL continue to work with ECan to resolve matters raised in the draft Rakaia Water Balance Report.

“CPWL remain confident that the methodology used complies with the requirements to provide for the management of subservient water takes on the Rakaia River.”

We asked Manawa Energy to respond to Fenemor’s comments about warehouse stored water non-compliance, and if it supported a review to simplify consents on the Rakaia, with more real-time oversight.

Head of generation Stephen Fraser says: “It’s not very helpful for us to respond to speculation in a draft report that we understand is still being worked on and yet to be finalised, but from our perspective we are comfortable that Manawa has complied with the resource consent conditions on this front.

“We’re open-minded about what any review of consents might mean, but if this became a reality we would be very keen for it to be grounded in pragmatism.”

One person who seems keenly interested in progress on Fenemor’s recommendations is ECan’s science director, Davie.

In April, Davie emailed ECan chief executive Stefanie Rixecker about Fenemor, a former colleague of his, who he said “is a good choice for a review”.

Fenemor’s comments were insightful, Davie told Rixecker, “and in many ways confirm the reviews from others”.

“He also makes some good points about WCOs [water conservation orders] and about making things simpler and easier for people to see what is happening in the Rakaia. We absolutely agree and this is part of the overall project.”

Talk of projects and progress seems cold comfort for Southward, who turns 79 in February, and continues to observe the deterioration of his beloved river.

“Where do we go from here?” he asked two weeks ago. “I’ve already asked that [of ECan]. That would be a very good question to ask.”

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

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