Skip to main content.

8 Protection of Outstanding Features and Characteristics

  1. Having decided that the Oreti River provides outstanding habitat for brown trout along with outstanding angling amenity, outstanding habitat for black-billed gulls, and values in accordance with tikanga Māori; and having considered the matters in Part 2 and s207, we next had to decide how those values can appropriately be protected through the provisions of a water conservation order.
  2. The original application sought protection of the brown trout fishery through four main measures. These were a prohibition on damming, restrictions on any alteration of river flow, a requirement to maintain fish passage, and restrictions on the alteration of water quality. We are now not being asked to make any determinations in relation to some of these matters, but we do consider that the original application was drafted in a cumbersome, and we think rather impractical, way.
  3. At the April hearing Ms Jones presented us with an amended application that had previously been discussed with Environment Southland. The amended application contained three main elements – a restriction on damming, a requirement to maintain fish passage and restrictions on the alteration of water quality. The latter provision was drafted in much more simple terms than the original application, and no restrictions were sought on flows or on the water that can be allocated from the river.
  4. It is this amended application that the submitters who opposed the application commented on. One – Ms Young on behalf of Federated Farmers – went as far as to strike out previously prepared evidence relating to flows.
  5. The main reason an amended application was provided to us in April was because in late March Environment Southland had released their decisions on submissions to the Proposed Regional Fresh Water Plan. Ms Jones told us that this had meant that the application could be simplified, as the applicant could rely on the provisions of the Plan to cover some of the matters included in the original application. Mr Slowley said that although Environment Southland still opposed the application, the agreement reached with Fish and Game meant that they would not lead technical evidence against the application.
  6. Following the second stage of the hearing, but prior to the right of reply, Fish and Game lodged an appeal against some of the provisions of the plan as they relate to the Oreti catchment. Part of that appeal read:

“Fish and Game have applied for a Water Conservation Order on the Oreti. If the Order is granted on the terms sought by Fish and Game, there will be no need for the majority of this Appeal, particularly in respect of water quality and damming provisions relating to the Oreti. If the Order is gazetted on terms satisfactory to Fish and Game, there will be no need to pursue this Appeal as it relates to the Oreti. However, in case the Water Conservation Order is not granted, Fish and Game must pursue similar relief through the Plan process.”

  1. All but one of the appeal points raised by Fish and Game are addressed by the Order that we have drafted. That outstanding appeal point is “insert a new rule that makes water takes that breach the minimum flow as calculated by Appendix I a prohibited activity.”

8.1 Protection of Minimum Flow

  1. At the right of reply, Ms Baker inferred to us that we should consider making a minimum flow on the Oreti River consistent with Appendix I in the Water Plan which sets out methods for determining minimum flows and levels. This appendix sets a “default” minimum flow of MALF which applies if the total quantity of water allocated is less than 10% of MALF (which is currently the case in the Oreti). However, in the Water Plan, this provision can be changed if detailed studies, such as through habitat analysis, show that another minimum flow will protect specified in-stream values. In a river the size of the Oreti, those specified values include trout spawning and rearing, and the habitat of large adult trout. On the other hand, if this provision were applied in the order, there would not be the same flexibility.
  2. We heard no substantive evidence on what flows are necessary to protect trout habitat in the upper Oreti. Environment Southland, however, commissioned expert studies in setting a default minimum flow of MALF in rivers such as the Oreti.
  3. More importantly, submitters who opposed the application did not comment specifically on flow regimes at the April hearing. This is because the amended application made no mention of minimum flows. Those submitters were speaking to the amended application, not to the original application.
  4. We think for both evidential and process reasons there are no grounds for including minimum flow provisions in the draft order. In our view it was regrettable that the applicant, having amended the application to take out any provisions relating to flows, inferred at the right of reply that we should subsequently include them in the draft order.
  5. The position taken at the applicant’s right of reply also somewhat contradicts what Ms Baker said in her opening submissions. It was claimed that the order sought to provide a “win/win” outcome with the values of the river protected while “at the same time a major portion of the Oreti’s natural flow will continue to be available for agriculture through the resource consent process in accordance with the water plan”.

8.2 A Prohibition on Damming and Maintenance of Fish Passage

  1. There was reasonably compelling evidence provided to us that brown trout in the Oreti migrate long distances, and so unimpeded passage along the river is critical for maintaining the fishery.
  2. There were two streams to this evidence. Dr Hayes analysed trout energetics, and concluded that headwater trout could not grow to the size that they do in the relatively cool waters there. Accordingly he considered that most large trout in the upper river must spend some time feeding on fish and other food sources in the lower river or its estuary. Similarly Mr Olley and Dr Bickel found from their otolith studies that trout present in the headwaters of the river had migrated long distances.
  3. We accept the evidence of these experts, which was not contested by any other party. Accordingly we have decided that passage for brown trout along the length of the river system is a vital component of maintaining the outstanding brown trout fishery in the headwaters.
  4. We also note the value Ngāi Tahu accord continuity from the mountains to the sea, consistent with their conceptualisation of Ki uta ki tai, which they contend is vital to ensuring the wellbeing of the Oreti River.
  5. In the amended application, the applicant sought two means of protecting fish passage. The first is a clause seeking fish passage be maintained along the length of the Oreti River, and in Weydon Burn, the Windley River and other headwater tributaries.
  6. The second provision sought, is a prohibition on any damming of the main stem of the Oreti River or specified tributaries upstream of Rocky Point. Such damming is presently a non-complying activity under the Water Plan. As we have already discussed, in practical terms any proposal for a permanent dam is highly unlikely – the river valley is too wide and the flows in the river are too low to make such a proposal economically viable, at least in the foreseeable future.
  7. Both these provisions were part of the “agreement” reached between Environment Southland and Fish and Game in April, and were included in the amended application commented on submitters at the April hearing.
  8. In order to protect the outstanding characteristics we have identified, we consider that the water conservation order should prohibit damming of the upper Oreti and specified tributaries, and should ensure fish passage be maintained along the river and its headwater tributaries. This is what we have recommended. In combination these two provisions will ensure that brown trout (and migratory native species) continue to have unimpeded access along the length of the river, and in itself this will make a major contribution to the maintenance of the outstanding brown trout fishery of the Oreti River.
  9. We note here that structures such as stopbanks are, in legal terms, dams. The requirements preventing damming and maintaining fish passage will not prevent consents being sought or granted for such structures, nor will it prevent consents being granted for temporary structures such as coffer dams in the bed of the river to divert flows while construction or maintenance activities are being carried out. This is made clear in the exemptions to the ambit of the draft order that we outline below.
  10. The prohibition on damming and the requirement to maintain fish passage will also have some limited benefit for the outstanding black-billed gull habitat provided by the Oreti River. However, the management of the water resource of the river, whether it be through the auspices of the water conservation order and/or via the Water Plan, cannot alone provide for the protection of that habitat.
  11. Ms McClellan listed in her evidence the main threats to black-billed colonies on the river. The three most important were weed encroachment (such as broom and lupins) on to river bed gravels reducing habitat availability, predation by introduced mammals and floods wiping out breeding colonies. Other threats included disturbance (such as by gravel extractors, four-wheel drive vehicles or motorbikes, people and dogs), river modification works and water abstraction for irrigation reducing potential food availability. We consider the same threats would have potential to affect other breeding river bed birds found on the Oreti river bed, such as black-fronted terns.
  12. Of these threats the amended order sought by the applicant will only help prevent weed encroachment on to the riverbed by ensuring no damming occurs and so floods pass unimpeded down the river. The provisions of the Water Plan will protect flows, and so help provide for the “moat effect” which can limit predation and help protect in-stream food availability. However, any continuing success of breeding black-billed colonies on rivers such as the Oreti will require much more than this, and these are matters we have no control over.

8.3 Maintenance of Water Quality

  1. The original application sought the inclusion of some very prescriptive water quality standards in the upper river. These were subsequently taken out of the amended application put to us, after discussions between Fish and Game and Environment Southland on 13 April.
  2. The amended provision sought by the applicant was that in the main stem of the Oreti River upstream of Rocky Point no discharge permit be granted, nor rule made in a regional plan that will result in a reduction of water quality beyond the zone of reasonable mixing.
  3. This differs subtly from the present provision in the Water Plan, which does not allow a discharge permit to be granted that will result in a reduction of water quality beyond the zone of reasonable mixing unless it is consistent with the purpose of the Act to do so. We note here that the ambit of the exception is not very clear, and that it would have to be applied on a case-by-case basis.
  4. There are presently no consented discharges to water in the upper catchment. Given the extensive nature of the farming undertaken, it seems rather improbable that discharge permits will be sought in the foreseeable future.
  5. The very high water quality of the upper Oreti, and particularly its very high clarity, contribute strongly to the outstanding angling amenity. Individual fish can be spotted and fished to, and this is a major part of the challenge of fishing the river for skilled anglers.
  6. The high water quality is also highly valued by Ngāi Tahu and is seen as a vital contributor to protecting the mauri of the Oreti River.
  7. We think protecting the existing water quality in the upper catchment from the effects of point source discharges is an important component of protecting the outstanding brown trout habitat and angling amenity of the upper Oreti. It will also help protect the values of the river for Ngāi Tahu. Accordingly, we have included the provision sought by the applicant in the draft order.
  8. We did think about limiting the scope of the protection of water quality in the upper catchment by using numerical standards for parameters such as water clarity and colour that are most important to the maintenance of outstanding features. This would, however, have added complexity to the draft order for what we think would be very little tangible benefit to any possible resource user.
  9. We think it important to note here that this provision will not protect existing water quality in the upper river from the effects of any non-point source discharges. Clearly, however, existing land use in the upper catchment is compatible with existing high water quality. It seems that for the foreseeable future land use in the upper catchment will remain extensive.
  10. We can not, however, predict a long time forward. Factors such as farm economics, change of ownership and climate change could conceivably change the nature of land use in the upper catchment. If this occurs, such land use may be less compatible with the maintenance of high water quality in the river. A water conservation order cannot make provisions to control land use, however, so any such controls would be the responsibility of local authorities and will have to go through robust consultative procedures.

8.4 Scope of the Order and Exemptions

  1. A water conservation order in a catchment like the Oreti must provide for certain activities and make exemptions for possible future activities. These activities include:
    • the taking of water for domestic or stock use and for fire-fighting;
    • research into fisheries or wildlife;
    • the use of measures to control organisms such as didymo;
    • the maintenance of roads, bridges and other infrastructure;
    • soil conservation and river protection works (such as the construction and maintenance of stopbanks where necessary);
    • protection of human or animal health.
  2. All these matters are provided for in the order we have recommended. We have also recommended exemptions be provided for other unforeseen activities associated with matters such as temporary works or construction or maintenance. The exemptions are consistent with the provisions of s107(2) of the Act.
  3. Such provisions are “standard practice” in water conservation orders made over reaches of river not in their natural state. Transit NZ was satisfied that the wording of these provisions in the order would allow them to undertake necessary construction and maintenance works.
  4. We consider such provisions are essential if the water conservation order is to be managed effectively and pragmatically.

Dated this 28th day of November 2007

Dr Brent Cowie

CHAIR OF THE SPECIAL TRIBUNAL

[ |