BEFORE THE SPECIAL TRIBUNAL FOR THE NGARURORO AND CLIVE RIVERS WATER CONSERVATION ORDER AT NAPIER

IN THE MATTER of the Resource Management Act 1991 (“Act”)

AND IN THE MATTER of a Special Tribunal appointed under

s202 of the Act to consider an application for a Water Conservation Order

THE SPECIAL TRIBUNAL: Richard Fowler (Chair) Alec Neill (Member)

Dr Roger Maaka (Member) Dr Ngaire Phillips (Member) John McCliskie (Member)

STATEMENT OF EVIDENCE OF MARK ST CLAIR ON BEHALF OF HAWKE’S BAY WINEGROWERS’ ASSOCIATION, GIMBLETT GRAVELS

WINEGROWERS’ ASSOCIATION, & PERNOD RICARD WINEMAKERS NEW ZEALAND LIMITED

STAGE 2 HEARING

25 JANUARY 2019

Counsel instructed:

J D K Gardner-Hopkins Phone: 04 889 2776 james@jghbarrister.com PO Box 25-160 WELLINGTON

Solicitors acting:

Alison McEwan Phone: 06 835 8939 Fax: 06 835 3712 PO Box 446 NAPIER

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1. INTRODUCTION

1.1 My full name is Mark Leslie St Clair.

1.2 I am a director of Hill Young Cooper Ltd, a Planning and Resource Management

consultancy firm based in Wellington and Auckland.

1.3 My evidence is given on behalf of the Hawkes Bay Winegrowers’ Association, Gimblett

Gravels Winegrowers’ Association (together, the Winegrowers), and one of the

Winegrowers’ members, Pernod Ricard Winemakers New Zealand Limited (Pernod Ricard) on the draft Water Conservation Order (WCO) for the Ngaruroro and Clive

Rivers. This evidence focuses on the Lower Ngaruroro catchment and Clive River.

1.4 My evidence relates to planning matters.

2. QUALIFICATIONS AND EXPERIENCE

2.1 I hold a Bachelor of Resource and Environmental Planning, with first

class honours, from Massey University.

2.2 I have more than 25 years experience in planning practice in local

government (Lower Hutt City Council and Manukau City Council),

central government (Ministry for the Environment) and private practice

(Connell Wagner, Manukau Consultants Ltd, GHD Ltd and Hill Young

Cooper).

2.3 I also regularly sit as a commissioner on hearings for resource consents,

plan changes and general policy development administered under the

Resource Management Act 1991 (RMA) and Local Government Act

2002.

2.4 I have annexed full details of my qualifications and my relevant past

experience in Attachment A of my evidence.

3. CODE OF CONDUCT

3.1 While this is not a hearing before the Environment Court, I confirm that

I have read the 'Code of Conduct' for expert witnesses contained in the

Environment Court Practice Note 2014. My evidence has been

prepared in compliance with that Code. In particular, unless I state

otherwise, this evidence is within my sphere of expertise and I have not

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omitted to consider material facts known to me that might alter or detract

from the opinions I express.

4. SCOPE

4.1 I have been asked by the Winegrowers, and Pernod Ricard, to provide

expert evidence in relation to planning matters, arising from the WCO.

Amongst other things, my evidence assesses whether the current and

future needs of the primary and secondary industries are considered

and provided for in the proposed WCO, in response to Section 207(b)

RMA. In particular, I focus on:

a) The needs of industry;

b) The relevant planning instruments; and

c) The draft of the WCO order.

4.2 My brief has been to focus on the needs of primary and secondary

industry. As such I do not assess in depth the other matters sought to

be addressed by the draft WCO in relation to iwi values and the specifics

of water quality.

4.3 In setting out my evidence, I do not access whether the values of the

Lower Ngaruroro River are in fact ‘outstanding’, as that is beyond the

scope of my expertise. Instead I provide an assessment of the extent to

which a WCO is appropriate to achieve the purpose as set out in Section

199 RMA, and whether the values of the Lower Ngaruroro River (if found

to be outstanding) would be sustained without the draft WCO.

4.4 I am familiar with Hawkes Bay region and the issues related to the WCO

covered in my evidence through my professional practice in providing

planning and resource management services to Winegrowers and

individual winegrowing entities such as Pernod Ricard Winemakers

New Zealand Limited. This has involved site visits to various vineyards,

wineries and sections of the Ngaruroro River.

4.5 In preparing this evidence, I have reviewed and have relied on the

following evidence:

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a) Evidence in Chief of Xan Harding – Sustainability, future

needs;

b) Evidence in Chief of Peter Callander – Discharges;

c) Evidence in Chief of Mark Krasnow – Irrigation;

d) Evidence in Chief of Daniel Watson – Irrigation;

e) Evidence in Chief of Adam Evans – Water use;

f) Evidence in Chief of Graham Bartleet – Water use, frost;

g) Evidence in Chief of Fabian Yukich – Business; and

h) Evidence in Chief of Peter Robertson – Business.

4.6 In addition, I have reviewed the following;

a) Evidence in Chief of Thomas Kay – Forest and Bird

representative;

b) Evidence in Chief of David Stewart – Hydrology;

c) Evidence in Chief of Kathryn McArthur – Water Quality

and Native Fish;

d) Evidence in Chief of Dr Rachel McClellan – Native Birds;

e) Evidence in Chief of Paul Mullan – JBNZ representative;

f) Evidence in Chief of Brian Eccles – Jet boating values;

g) Evidence in Chief of Margaret McGuire – Operation

Pātiki, values in accordance with tikanga Māori;

h) Evidence in Chief of Arconnehi Paipper – Operation

Pātiki, values in accordance with tikanga Māori;

i) Evidence in Chief of Patrick Parsons – Kohupātiki

History; and

j) Evidence in Chief of Greg Carlyon – Planning.

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5. EXECUTIVE SUMMARY

5.1 The key conclusions of my evidence relate to:

a) The needs of primary and secondary industry require

consideration under section 207(b). Based on the evidence of

the Winegrowers, and my analysis of the provisions of the draft

WCO, the WCO will have potentially significant impacts on the

needs of the Winegrowers industry, particularly their future

needs.

b) The relevant planning instruments, and in particular the draft

proposed TANK plan change (PC9), provides a framework for

the management of significant values (including any outstanding

values) in a more comprehensive and integrated way. While

the draft PC9 has not yet been notified, because it has been

developed through an extensive collaborative process and the

Regional Council has committed to notifying it, it is my view that

its process will address all the issues raised in the WCO. PC9

must “give effect to” the NPS-FM, which provides significant

direction as to the outcomes required.

c) Issues in drafting of the WCO include:

i. A prohibition on damming tributaries in the upper

Ngaruroro waters. While I understand this to be a

“Stage 1 matter”, it has implications for activities in the

lower Ngaruroro as it precludes storage options in the

upper Ngaruroro, whereas draft PC9 provides for

storage on some tributaries in the upper.

ii. Under Clause 9, the draft WCO means that future water

takes and other consents would be declined, as the

effects of the existing consents are already “more than

minor” and any new consents will introduce effects that

are cumulative to those existing effects.

iii. Uncertainty in its application and enforcement - In my

opinion, any controls in a WCO should be clear and

enforceable in a way that permitted activity standards, or

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triggers for consent, in a plan are usually provided in a

clear way.

iv. There is uncertainty in the extent of “hydraulically

connected groundwater”, and how that will be applied in

any future planning instruments. In addition, relying on

the evidence of Mr Callander, the provisions in the WCO

to control discharges to land would not be effective in

preventing contamination in the rivers to which the WCO

relates. The implication would be that the WCO would

also prevent all new discharge consents from being

granted, irrespective of scale of effect.

v. Some aspects of the WCO appear to address section 13

activities, which I understand are outside the scope of a

WCO.

vi. The WCO’s attempt to provide for “flow variability” does

not, in my view appear to be workable, it would

potentially impact on how PC9 intends to allocate water

take volumes, and impacts the ability to take water at

high flows – which is important for high flow storage

opportunities.

vii. Other technical and drafting matters that would need to

be addressed, by way of example, the application of any

grandfathering to “use” consents, as well as, takes and

other section 14 of the RMA matters, and for discharges.

d) For all these reasons, but acknowledging that I have not

considered all the matters that the Tribunal will need to consider,

I do not consider a WCO appropriate for the lower Ngaruroro. If

a WCO is to be adopted, it needs significant revision so that it is

clear, enforceable, and does not unduly undermine the

comprehensive and integrated approach under PC9 and PC9’s

ability to give effect to the NPS-FM.

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6. FORMAT OF EVIDENCE

6.1 In setting out my evidence, I have started with summarising the needs

of primary and secondary industry, then considered the broader picture

of WCOs under the RMA, before considering how the needs of primary

and secondary industries are addressed in the planning framework

under the National Policy Statement Freshwater Management 2014

(NPS-FM)1 and the Regional Resource Management Plan (RRMP).

6.2 The Regional Resource Management Plan (RRMP) is the most

significant resource planning document for all resource users in

Hawke’s Bay. It includes the Regional Policy Statement (RPS) and sets

out a policy framework for managing resource use activities in an

integrated manner across the whole of the Hawke's Bay region.

6.3 In my opinion, the key planning instruments are the NPS-FM and

RRMP, including Plan Change 5 (PC5) and draft Plan Change 9 (PC9).

PC5 amended the RPS to give effect to the NPS-FM. Draft PC9 is the

TANK2 Plan Change. While draft PC9 is not yet notified, and so has no

statutory effect, I understand that it is a permissible relevant

consideration, in particular since it has had significant community input

to date.

7. NEEDS OF PRIMARY AND SECONDARY INDUSTRY

7.1 Section 207(b) of the RMA requires the Special Tribunal to have regard

the needs of primary and secondary industry and the community.

7.2 The needs of primary and secondary industry as they pertain to the wine

industry are set out in the evidence of the witnesses appearing for

Winegrowers and as such I do not repeat them here. I rely on that

evidence as to the specific and technical requirements of the viticulture

and winery components of the wine industry as to the present and future

needs.

1 Includes amendments that came into effect in August 2017 2 Tutaekuri, Ahuriri, Ngaruroro and Karamu collaborative planning exercise for the surface and groundwater resources in those areas undertaken by Hawkes Bay Regional Council, and a resulting Draft Plan Change (PC9) Version 8, December 2018.

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7.3 In terms of the potential impacts of the draft WCO on the present and

future needs of Winegrowers, I have also addressed those matters later

in my evidence in my review of the draft WCO order.

8. SECTION 20 (C) MATTERS TO BE CONSIDERED

8.1 Section 207(c) of the RMA requires the Special Tribunal to have regard

to national policy statements, regional policy statements, regional plans,

district plans, and any proposed plans.

9. RELEVANT NATIONAL PLANNING INSTRUMENTS

National Policy Statement on Freshwater Management

9.1 National Policy Statements have a significant influence on resource

management practice given that they must be given effect to in regional

policy statements, regional plans, and district plans. The

implementation of the NPS-FM by Hawke’s Bay Regional Council is set

out in the Council’s NPS-FM Progressive Implementation Programme3

and the TANK draft Plan Change (PC9) is part of that programme.

9.2 Mr Carlyon4 provides an outline of NPS-FM provisions which he

considers align with the provisions of the draft WCO (Version 3

September 2018). Attachment B of my evidence provides a list of the

NPS-FM provisions relevant to the needs of primary and secondary

industry which I address below.

9.3 Objective A4 and Objective B5 enable communities to provide for their

economic well-being including productive economic opportunities in

sustainably managing freshwater quality and quantity, within limits.

These matters are especially important for primary and secondary

industry and the wider economy of Hawke’s Bay. I also note the

substantial connection and overlap between the needs of industry and

the wider economic well-being of Hawke’s Bay.

9.4 In my opinion, the draft WCO does not consider the economic well-being

and needs of primary and secondary industry. I have a different view to

3 Hawkes Bay Regional Council National Policy Statement for Freshwater Management Progressive Implementation Programme, 3rd Edition, December 2018 4 EIC Greg Carlyon, paragraph 20

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that of Mr Carlyon,5 who considers that the draft WCO provisions are

consistent with the concept of sustainable management within limits.

Rather I consider the draft WCO order to be inconsistent with Objective

A4 and Objective B4 of the NPS-FM because further utilisation of the

freshwater resource is restricted, and as such productive economic

opportunities for primary and secondary industry, currently and in the

future, would not be provided for. I address this in further detail latter

in my evidence on the draft WCO order provisions.

9.5 The NPS-FM also includes provisions which require the integrated

management of freshwater and the use and development of land. Policy

C2, in giving effect to Objective C1, requires that every regional council

in making or changing regional policy statements provides for the

integrated management of the effects of the use and development of

land on freshwater. Plan Change 5 (PC5) was promulgated to give

effect to the NPS-FM integrated management provisions through

establishing a framework for how future management decisions will be

made in an integrated manner for the sustainable management of the

region’s land and freshwater resources.

9.6 As I understand it, WCOs cannot deal directly with land use practices

that can have an impact on water quality. In my opinion this has

significant implications for the ability of a WCO to manage freshwater

systems and the interactions between freshwater and land. As such I

consider that the NPS-FM and the TANK plan change soon to be

notified will afford greater protection to the issues sought to be

addressed by the draft WCO, in a more comprehensive and integrated

manner.

9.7 I also note the provision of ‘Compulsory National Values’ and ‘Other

National Values’ as set out in Appendix 1 of the NPS-FM. Compulsory

national values include ‘ecosystem health’ and ‘human health for

recreation’. Other national values include natural form and character, as

well as irrigation, cultivation and food production. Policy CA2, in giving

effect to Objective CA1 requires that every regional council when

developing objectives for freshwater management units consider and

identify these values. I consider the values identified in Appendix 1 of

5 EIC Greg Carlyon, paragraph 80

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the NPS-FM to be more comprehensive in scope than the values sought

to be addressed in the draft WCO. As such, it is my opinion that the

NPS-FM provides for a broader and more balanced range of ecological

and community needs for the management of freshwater bodies.

9.8 By comparison, I understand because of the statutory framework

applying to WCOs, that any WCO can only respond to those values

which are found by the Tribunal to be ‘outstanding’. For example, if the

Tribunal were to find that only outstanding jetboating values were

present in the Lower Ngaruroro River, the provisions of the WCO could

only recognise and sustain those values, and therefore could not

comprehensively recognise and sustain other values such as water

quality that may be found to not be ‘outstanding’.

9.9 The NPS-FM provides a planning framework which affords significant

protection to the values sought to be addressed by the WCO, as well as

wider matters that might not reach the WCO threshold of ‘outstanding’.

Regardless of whether a WCO is granted, regional policy statements

and regional plans must give effect to the NPS-FM. I consider that the

NPS-FM provides a broader and more comprehensive scope for

managing freshwater resources via an integrated management

approach. As I understand it, the appropriateness of any WCO also

needs to be considered in light of the imminent notification of the draft

TANK Plan Change.

Other National Planning Instruments

9.10 I do not consider the National Policy Statement for Renewable

Electricity Generation 2011 or the New Zealand Coastal Policy

Statement 2010 to be particularly relevant to the Lower Ngaruroro River.

10. RELEVANT REGIONAL PLANNING INSTRUMENTS

Regional Resource Management Plan

10.1 The current RPS was made operative in 2006 and is contained within

the Hawke’s Bay Regional Resource Management Plan (RRPM). Plan

Change 5 (PC5) ‘Land and Water Management’ was adopted in a form

to give effect to the NPS-FM. PC5 was notified in 2012 and whilst not

yet operative, I understand that all of its provisions, excluding the

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definition of ‘wetland’, are beyond legal challenge. I therefore include

PC5 in my assessment of the RRMP.

10.2 The objectives and policies of the RRMP of relevance to the needs of

primary and secondary industry are listed in Attachment C of my

evidence.

10.3 As outlined previously, PC5 was promulgated to give effect to the NPS-

FM integrated management provisions and makes amendments to the

RPS component of the RRMP (Chapter 3). Objective LW1 and LW2

provide for the recognition and balancing of multiple and competing

values and uses of freshwater and land resources in an integrated and

sustainable manner.

10.4 Objective LW1 of the RPS contains a wide scope of matters to be

managed in an integrated and sustainable manner. Of the 14 matters

listed in objective LW1, only a limited number can be or are potentially

addressed by the draft WCO. These include: protecting the quality of

outstanding freshwater bodies, avoiding further over-allocation, safe-

guarding ecosystem processes, providing for aspects of river

management, recognising and sustaining some recreational values,

and promoting preservation of natural character.

10.5 In my view, the scope of PC5 is broader than what the draft WCO seeks

to address, in additionally recognising the significant regional and

national value of water use for production and processing of beverages

and food in addition to 6 other listed matters in Policy LW1.

10.6 Policy POL LW1(1) of the RPS outlines a catchment-based integrated

management approach, and addresses matters sought to be addressed

by the WCO. These matters include maintaining the water quality of

outstanding freshwater bodies and ensuring efficient allocation. In my

opinion the approach to managing freshwater in PC5 requires

consideration of a broader framework than the provisions set out in the

draft WCO. Additional matters of relevance to primary and secondary

industry that Policy POL LW1 covers are:

a) the promotion of collaboration,

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b) taking a strategic long term planning outlook of at least 50 years

to consider the future state, values and uses of water resources

for future generations,

c) aiming to meet the differing demands and pressures on, and

values and uses of freshwater resources,

d) recognising and providing for existing use and investment,

e) and enabling water storage to provide security for water users.

10.7 Policy POL LW1 (2)(b) of the RPS states regional plans must identify

the values identified in Table 1 of PC5. These identified values for the

Lower Ngaruroro River (Greater Heretaunga/ Ahuriri Catchment Area),

in my opinion, address all the values sought to be addressed in the draft

WCO.

10.8 I acknowledge that there may be instances where a WCO may be

appropriate for particular bottom lines. However, in my view the list of

values in Table 1 of PC5 is more comprehensive than the scope of

matters sought or able to be addressed in the draft WCO, by including

both ecological and community values which take into account the

economic well-being of primary and secondary industry- thereby giving

effect to the NPS-FM.

10.9 Policy LW1(2)(d) states regional plans must set groundwater and

surface water quality limits and targets, groundwater and surface water

quantity allocation limits and targets and minimum flow regimes. The

draft TANK Plan Change 9 would give effect to this policy and I address

this later in my evidence.

Draft TANK Plan Change 9

10.10 Hawke’s Bay Regional Council agreed on 19 December 2018 to adopt

draft PC9 (Version 8) for targeted consultation programmed to start late

January 2019, with notification envisioned for mid-2019. While Section

207 RMA refers to ‘any proposed plan’, I note that PC9 is only a draft

and hence I understand does not have the same status a notified

proposed plan. Nonetheless, from a planning perspective I consider it

is a relevant planning instrument for the following reasons:

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a) Given the collaborative process by which PC9 has been

developed; and

b) Hawke’s Bay Regional Council’s commitment to finalising and

notifying PC9.

10.11 To assist the Special Tribunal I identify and assess how draft PC9

addresses the relevant issues sought to be addressed by the WCO and

how it addresses these in a way which gives effect to the NPS-FM and

RPS.

10.12 The issues sought to be addressed by the draft WCO, are in relation to:

• Significance in accordance with tikanga Māori

• Cultural and spiritual purposes

• Habitat for avifauna

• Habitat for native fish

• Contribution to outstanding habitat for native fish in the Upper

Ngaruroro Waters

• Jet boating amenity and recreation

• Scientific and ecological values – water quality

10.13 As I discussed above at paragraphs 10.6 – 10.9, the draft WCO values

are included in Table 1 of Policy POL LW2 of the RPS, but so are

additional values recognising wider ecological and community values,

so as to collectively give effect to the NPS-FM.

10.14 These is turn have been carried through with greater specificity into the

objectives, policies and rules of the draft PC9. By way of example

Objective 6, which is specific to the Ngaruroro River catchment,

addresses tikanga Māori and cultural and spiritual purposes, habitat

values, jet boating amenity and recreation and water quality. In

addition, it also addresses the water needs of people, communities, and

primary and secondary production.

10.15 The policies in draft PC9 to implement the objectives cover a broad

range of approaches under the following headings;

• Surface Water and Groundwater Quality Management,

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• Managing Adverse Effects from Land Use on Water Quality

(Diffuse Discharges)

• Stormwater Management

• Minimum Flow Regimes, Groundwater Levels and Allocation Limits

• Surface Flow Management

• General Water Allocation Polices

• High Flow Allocation Regime

10.16 By way of example, Policy 4 of PC9 addresses the same matters as the

draft WCO in relation to the lower Ngaruroro River as it seeks the

improvement of water clarity and to reduce the risk of proliferation of

algae by reducing nutrient loss from land by reducing phosphorus loss

associated with sediment and through stock exclusion and improved

riparian management. In my view this policy approach, along with the

Freshwater Objectives in Schedules 1 and 2 of draft PC9, is a more

effective approach than the draft WCO which appears to (or is able to)

only address maintaining the current state.

10.17 In my view the Draft PC9 reflects an integrated and collaborative

approach to managing the issues that is consistent with the NPS-FM.

and accounts for the primary and secondary needs of industry.

11. RELEVANT LOCAL PLANNING INSTRUMENTS

11.1 Hastings District Plan Decision Version (September 2015) (the District

Plan) is the District Plan that is of particular relevance to the Lower

Ngaruroro River that the draft WCO seeks to address. I also note that

the Napier City District Plan is relevant to those parts of the draft WCO

by way of the hydraulically connected groundwater.

11.2 While the WCO does not have to “give effect to”, the Rural Resource

Strategy, Plains Strategic Management Area, Rural Zone and Plains

Production Zone sections of the Hastings District Plan these are in my

view relevant to any consideration of the present and future needs of

primary and secondary industry.

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11.3 This is because the District Plan sets out a planning framework in terms

of a strategy for rural land use, objectives and policies, the zoning of

land and rules for viticulture and wineries which could be affected by the

way draft WCO seeks to include hydraulically connected groundwater.

12. ASSESSMENT OF THE DRAFT WATER CONSERVATION ORDER

12.1 In this section of my evidence I assess the draft WCO order (Version 3,

dated September 2018) as to potential impacts for winegrowers. I have

attached a copy of the draft WCO order as Attachment D to my evidence.

Clause 8

12.2 In summary, Clause 8 prohibits the granting of resource consent or

provision of a rule in a regional plan authorising the damming of waters in

the main stem of the Ngaruroro below the Whanawhana cableway (lower

Ngaruroro waters – Schedule 2) and the main stem of the Ngaruroro and

all its tributaries above the Whanawhana cableway (upper Ngaruroro

waters – Schedule 1).

12.3 Draft PC9 at Policy 55 prohibits damming on the main stem of the

Ngaruroro River and its tributary rivers the Taruarau and Omahaki. I

understand that these rivers were identified in the TANK collaborative

process due to their importance for trout habitat6. As such, the draft PC9

provides the opportunity for consideration of upper catchment storage for

the present and future needs of primary and secondary industry.

Clause 9 Cumulative effects

12.4 The effects based approach of Clause 9, specifically Clause 9(d), would be

prohibitive in relation to new resource consents.

Clause 9: No resource consent may be granted or rule included in a

regional plan that, either itself or in combination with existing consents or

rules –

d. Would allow water to be abstracted from the Lower Ngaruroro River,

tributaries and hydraulically connected groundwater as identified in

6 TANK Meeting 41, Covering Report, TANK Draft Plan Change, Section 3, Paragraph 1

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Schedule 2 or 3, unless this is in accordance with a minimum flow or

allocation regime that:

i. would have a no more than minor effect on the braided river form or the

outstanding characteristics identified in Schedules 2 or 3; and

ii. includes a minimum flow of no less than 2400L/s at Fernhill.

12.5 It is my understanding that all existing consents, and permitted activities,

have “more than minor” effects, including through their allocation of the

existing freshwater resource7 for the Ngaruroro and Clive Rivers.

12.6 Therefore from my reading of Clause 9, any application for a new resource

consent would necessarily exceed the threshold of a no more than minor

effect in combination with existing consents. The result would be that any

application for resource consent related to the waters controlled by the

WCO, would therefore be contrary to the WCO.

12.7 This approach to new resource consents as included within Clause 9,

would pose very significant implications for primary and secondary

industries.

12.8 In my opinion the wording of the qualitative restrictions within the drafting

of the draft WCO and the terminology of ‘no more than minor’ in Clause 9,

is restrictive and uncertain.

Clause 9a

12.9 Clause 9a, in summary relates to effects on the braided river character

of the river between Whanawhana and Fernhill. In terms of how this

provision would work, it would be primarily that any water takes under

section 14 of the RMA would (in combination with all existing or

authorised takes) not compromise the braided river character as it

relates to the values identified in Schedule 2. In my view rather than

water takes, it would be section 13 of RMA activities involving the beds

of lakes and rivers that may potentially affect the braided character.

However, it my understanding that a WCO does not control land use

consents under section 13 of the RMA8.

7 EIC Greg Carlyon, paragraph 109 8 Section 217(2)(a), Resource Management Act 1991 – which applies to water, discharge and coastal permits only.

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12.10 Mr Bartleet, in his evidence for Winegrowers and Pernod Ricard,

identifies that Pernod Ricard have resource consent to carry out river

work in order to maintain a flow of water across their irrigation gallery

for the purposes of frost protection and provision of irrigation water in

the event where river flow reaches the cut-off point of 2400 l/sec. I am

aware that there are number of gravel extraction operations on the

Ngaruroro River and that these have the potential to impact on the

braided character of the river.

12.11 These activities are regulated under the RRMP, in particular Objective

OBJ 45 and Policies POL 79 and Rules 63 – 76. In my view, the TANK

Plan Change which addresses all the significant resource management

issues (s9, s13, s14 and s15 matters), is a more comprehensive way of

maintaining a braided river character than a WCO.

12.12 Related to the above issue, I observe that in relation to damming, the

definition in the draft WCO order states,

“damming means the impounding of all or part of the natural flow of any

water that may involve an associated temporary or permanent

structure, and includes any intake or deflection structure, structure in

the river bed or modification of the river bed . that prevents the passage

of any fish.or any structure that prevents fish passage.”

12.13 The words “includes any intake or deflection structure, structure in the

river bed or modification of the river bed”, could be interpreted to include

matters under section 13 of RMA. As noted above, it is my

understanding that a WCO only applies to water, coastal and discharge

permits.

12.14 Similarly, diversions under section 14 of the RMA would also be

potentially affected by Clause 9 as drafted. I note that under Rule 56 of

RRMP, that minor diversions that remain within the bed of the affected

water body are permitted activities. In my view, there is a degree of

uncertainty as to whether or not this rule, in combination with any

existing consents or other rules would result in a more than minor effect.

In addition the other components of Clause 9 also use the language of

no more than minor to which issues of uncertainty would also apply.

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Clause 9ci

12.15 Clause 9ci, in summary relates to a restriction on any water abstraction

from the Lower Ngaruroro, its tributaries and hydraulically connected

groundwater identified in Schedule 2 and 3, including flows between 1.5

and 3 times median flow, in order “to ensure there is a no more than

minor reduction in the ability of flows” to scour and flush, to mobilise

sediment and bed material and trigger flow-dependent aquatic life –

cycle processes.

12.16 This provision would need to be considered for any resource consent

application and any Plan should not be inconsistent with the provision.

In my view there are some practical difficulties that would result from the

drafting of the provision in that it would be an operational limit on high

flow takes. Some of these include:

a) Uncertainty for consent holders as to when takes may

be exercised

b) Practical difficulties for applicants in assessing when any

reduction in the abilities of flows to do the things

specified in clause 9.c.i would be ‘more than minor’, and

uncertainty as to the proper basis for assessing this.

c) Uncertainty around the implication of a situation when

flows are between 1 and 1.5 median flows

d) It is my understanding that the TANK collaborative

process used 3 x median flow as an allocation

mechanism. I am not certain as to how a flow variability

of 1.5 – 3 times the median flow would affect the TANK

allocation mechanism.

Clause 12 - Separation of take and use

12.17 I understand that the purpose of Clause 12a is not to limit section

14(3)(b) and (e) of the RMA, “relating to the use of water for an

individual’s reasonable domestic needs, or for the reasonable needs of

an individual’s animals for drinking water, or taken or used for fire-

fighting purposes,…”

19

12.18 I observe that ‘use’ is the term used in relation to an individual’s

reasonable domestic needs, but the term ‘take’ is not. However, the

terms ‘use’ and ‘take’ are used in relation to fire-fighting purposes. This

difference in terminology does not occur in Section 14(3) of the RMA.

Rather, the terminology is take and use.

12.19 Similarly, in Clause 12d the introduction component of the clause states,

“In respect of resource consents to take water held at the date this order

comes into force (existing consents)…”. Again the clause only refers

to ‘takes’ and not ‘use’.

12.20 I have reviewed a number of water permits granted by HBRC that relate

to the wine industry, and in all cases they refer to take and use. It would

be a perverse outcome if on replacing a consent that the WCO only

provided for takes and that use was not covered.

12.21 In my view, consistent application of the terminology under section 14

of the RMA in the WCO order would address this matter.

Clause 12 Replacement Consents

12.22 Clause 12(d) expressly provides for the replacement of resource

consents on the expiry or surrender of an existing consent, where

12(d)(i-iii) are met.

12.23 In addition, as I identified above, Clause 12(d) of the draft WCO order

is only in respect of resource consents to take water. The WCO does

not exempt replacement of existing consents for water use, damming,

diversion, or replacement of discharge and coastal permits.

12.24 There are a number of wineries within what I understand to be the

hydraulically connected groundwater zone for the Ngaruroro River, such

as Constellation – 2972 SH50, Craggy Range – Gimblett Gravels and

Villa Maria - Te Awa wineries which have discharge to land permits. I

understand that discharges to land are generally preferable to direct

discharge to water and the ability to replace existing consents in the

same manner as water takes as set out in the draft WCO order would

be a consistent approach in recognising the needs of primary and

secondary industries.

20

Clause 11 and Schedules 1, 2, 3 and 5

12.25 For the lower Ngaruroro, Clause 11 restricts the granting of discharge

permits or the inclusion of rules in a plan, where the limits set out in

Schedule 5 would be exceeded because Schedule 3 specifies the

hydraulically connected groundwater of waters identified in Schedule 2.

12.26 It is unclear from the drafting of the WCO as to what constitutes

hydraulically connected groundwater. I note that no guidance on this

matter is provided by the Applicant. It is my understanding that

hydraulically connected groundwater is often classified as having a

high, moderate, or low degree of connection which each have varying

response periods to changes in the level/flow of the surface waterbody.

12.27 As the WCO order is currently drafted, no resource consent that would

exceed the limits, either by itself or in combination with existing

consents, may be granted. This is irrespective of the degree of hydraulic

connection, and I understand does not consider flow gradients and

natural lag times of hydraulically connected water.

12.28 I rely on the evidence of Mr Callander in relation to the degree of

connectivity of groundwater and its implications.

12.29 The final issue in relation to Clause 11 is that of the uncertainty as to

the extent of the spatial area of the hydraulically connected groundwater

to which that the provision would apply. A small graphic showing the

spatial area of the hydraulically connected groundwater was included in

the re-notification notice of 25 July 2018. This issue may be addressed

through the inclusion of an at scale map showing areas to which the

WCO would apply.

13. CONCLUSION

13.1 It is my opinion that the TANK draft Plan Change offers a regulatory

environment which provides protection under the NPS-FM and RPS

whilst also allowing appropriate present and future needs of the wine

industry, as a component of primary and secondary industry.

21

13.2 The draft WCO order, in my view does not have regard to the needs of

the primary and secondary industries located within Lower Ngaruroro

River catchment upon which the Hawkes Bay region relies upon, in part

to provide for its social, economic and cultural wellbeing.

13.3 For all the reasons I have described above, but acknowledging that I

have not considered all the matters that the Tribunal will need to

consider, I do not consider a WCO appropriate for the lower Ngaruroro.

If a WCO is to be adopted, in my view it needs significant revision so

that it is clear, enforceable, and does not and does not unduly

undermine the comprehensive and integrated approach under PC9 and

PC9’s ability to give effect to the NPS-FM.

Mark Leslie St Clair 25 January 2018

ATTACHMENT A

Qualifications and Relevant Experience

• New Zealand Certificate in Town and Country Planning Draughting 1984;

• Bachelor of Resource and Environmental Planning, First class honours, Massey

University 1994.

Professional Membership

• Full member of the New Zealand Planning Institute 1996.

• New Zealand Planning Institute Distinguished Service Award 2018.

My relevant past experience includes:

Providing planning and resource management services to Winegrowers and individual winegrowing entities such as Pernod Ricard Winemakers New Zealand Limited – Preparation of resource consent applications (ongoing);

Expert Witness – Golden Bay Cement – Submissions on Marlborough Environmental Management Plan (2018);

Commissioner (Chair) – Greater Wellington Regional Council – Proposed Natural Resources Plan (2017-19);

Policy Advisor – Manawatu Wanganui Regional Council - Section 35: Intensive Farming (2018);

Expert Witness – PEPANZ – South Taranaki District Council, District Plan Appeals (2018);

Section 87F officer – Manawatu Wanganui Regional Council for Horowhenua District Council Foxton Wastewater Treatment Plant applications (2017-19);

Commissioner (Chair) – Nelson City Council – Calwell Slipway Remediation Project (2016);

Commissioner (Chair) – Gisborne District Council – Makauri Aquifer Recharge Project (2016);

Section 42A officer – Horizons Regional Council for Department of Conservation Whakapapa Wastewater Treatment Plant applications (2016);

Section 42A officer – Horizons Regional Council for Manawatu-Wanganui Regional Council Lake Horowhenua Weed Harvesting, Fish Pass and Sediment Trap applications (2015);

Section 42A officer – Horizons Regional Council for Midwest Disposals Ltd Bonny Glen Landfill Extension applications (2014/15);

Facilitator Pre-hearing meeting – Horizons Regional Council, s128 review of Palmerston North City Council, Wastewater Treatment Plant (2014);

Advisor/Expert Witness – Planner to Board of Inquiry for Tukituki Catchment Proposal (HBRC Plan Change 6 and the Ruataniwha Water Storage Project) (2013/14);

22

Friend of Submitter – Environmental Protection Authority, NZTA Basin Bridge Proposal – Notice of Requirements and Resource Consent (2013/14);

Commissioner (Chair) – Horizons Regional Council, Hunterville Wastewater Treatment Plant discharge permit application(2013);

Advisor – Environmental Protection Authority, completeness check for RMA applications for Ruataniwha Water Storage Scheme (2012/13).

23

ATTACHMENT B

National Policy Statement for Freshwater Management (2014) objectives and policies

of relevance to the needs of primary and secondary industry:

Objective A4: To enable communities to provide for their economic well-being,

including productive economic opportunities, in sustainably managing freshwater

quality, within limits.

Policy A7: By every regional council considering, when giving effect to this

national policy statement, how to enable communities to provide for their

economic well-being, including productive economic opportunities, while

managing within limits.

Objective B5: To enable communities to provide for their economic well-being,

including productive economic opportunities, in sustainably managing fresh water

quantity, within limits.

Policy B8: By every regional council considering, when giving effect to this

national policy statement, how to enable communities to provide for their

economic well-being, including productive economic opportunities, while

managing within limits

Objective C1: To improve integrated management of fresh water and the use and

development of land in whole catchments, including the interactions between fresh

water, land, associated ecosystems and the coastal environment.

Policy C2: By every regional council making or changing regional policy

statements to the extent needed to provide for the integrated management

of the effects of the use and development of:

a) land on fresh water, including encouraging the co-ordination and

sequencing of regional and/or urban growth, land use and development and

the provision of infrastructure.

‘Other National Values’

Irrigation, cultivation and food production – The freshwater management unit

meets irrigation needs for any purpose.

Water quality and quantity would be suitable for irrigation needs, including

supporting the cultivation of food crops, the production of food from domesticated

24

animals, non-food crops such as fibre and timber, pasture, sports fields and

recreational areas. Attributes will need to be specific to irrigation and food

production requirements.

Objective CA1: To provide an approach to establish freshwater objectives for

national values, and any other values, that:

a) is nationally consistent; and

b) recognises regional and local circumstances.

Policy CA2: By every regional council, through discussion with communities,

including tangata whenua, applying the following processes in developing

freshwater objectives for all freshwater management units:

a) considering all national values and how they apply to local and

regional circumstances;

b) identifying the values for each freshwater management unit, which

i. must include the compulsory values; and

ii. may include any other national values or other values that the

regional council considers appropriate (in either case having

regard to local and regional circumstances); and...

25

ATTACHMENT C

Hawke’s Bay Regional Resource Management Plan (2006) Objectives and Policies

The relevant Regional Policy Statement primary and secondary industry enabling

objectives and policies are:

Overarching Plan Objectives

Objectives:

OBJ 1 To achieve the integrated sustainable management of the natural and physical

resources of the Hawke's Bay region, while recognising the importance of resource use

activity in Hawke's Bay, and its contribution to the development and prosperity of the region.

Managing the Built Environment

Policies:

POL UD1 In providing for urban activities in the Heretaunga Plains sub-region,

territorial authorities must place priority on:

a) the retention of the versatile land of the Heretaunga Plains for existing

and foreseeable future primary production, and

Loss and Degradation of Soil

Objectives:

OBJ 12 The avoidance of loss in the productive capability of land, as a result of

inappropriate land use practices hastening wind erosion.

OBJ 14 The avoidance of loss in the productive capability of land, as a result of reduced soil

health.

Ground Water Quality

Objectives:

OBJ 22 The maintenance or enhancement of groundwater quality in unconfined or semi-

confined productive aquifers in order that it is suitable for human consumption and irrigation

without treatment, or after treatment where this is necessary because of the natural water

quality.

Ground water Quantity

Objectives:

OBJ 24 The avoidance or remedy of any significant adverse effects of water takes on the

operation of existing lawful efficient groundwater takes.

26

Policies:

POL 32 TECHNICAL PROCEDURE - IRRIGATION TAKES 3.9.31 To allocate groundwater

for irrigation purposes on the basis of actual crop water requirements up to a maximum

equal to that required during a one in ten year drought. The allocation assessment will take

into account information on crop type, rainfall, potential evapotranspiration rates, and best

irrigation management practices. The allocation assessment may also have regard to soil

type and soil moisture capacity.

Surface Water Resources

Objectives:

OBJ 26 The avoidance of any significant adverse effects of water takes, uses, damming or

diversion on lawfully established activities in surface water bodies.

Policies:

POL 42 TECHNICAL PROCEDURE - IRRIGATION TAKES 3.10.25 To allocate surface

water for irrigation purposes on the basis of actual crop water requirements up to a

maximum equal to that required during a one in five year drought. The allocation

assessment will take into account information on crop type, rainfall, potential

evapotranspiration rates, and best irrigation management practices. The allocation

assessment may also have regard to soil type and moisture holding capacity.

The relevant Plan Change 5 primary and secondary industry enabling objectives and

policies are:

OBJ LW 1 Integrated management of fresh water and land use and development

Fresh water and the effects of land use and development are managed in an integrated and

sustainable manner which includes:

6. recognising the significant regional and national importance value of fresh water use for

production and processing of beverages, food and fibre;

8. recognising the benefits of industry good practice to land and water management,

including audited self-management programmes;

POL LW1 Problem solving approach - Catchment-based integrated management

1. Adopt an integrated management approach to fresh water and the effects of land use and

development within each catchment area, that:

e) promotes collaboration and information sharing between relevant management agencies,

iwi, landowners and other stakeholders;

f) takes a strategic long term planning outlook of at least 50 years to consider the future

state, values and uses of water resources for future generations;

27

g) aims to meet the differing demand and pressures on, and values and uses of, freshwater

resources to the extent possible;

iE) recognises and provides for existing use and investment;

k) enables water storage infrastructure where it can provide increased water availability and

security for water users while avoiding, remedying or mitigating adverse effects on

freshwater values.

2. When preparing regional plans:

b) identify the values for freshwater and their spatial extent within each catchment, including

identifying the values for each of those waterbodies identified as outstanding under Policy

LW1.1(d) and for catchments identified in Policy LW2.1:

i) the values must include those identified in Table 1; and

ii) may include additional values; and

OBJ LW2 Integrated management of freshwater and land use development The

management of land use and freshwater use that recognises and balances the multiple and

competing values and uses of those resources within catchments. Where significant conflict

between competing values or uses exists or is foreseeable, the regional policy statement

and regional plans provide clear priorities for the protection and use of those freshwater

resources.

POL LW2 Problem solving approach - Prioritising values

Subject to achieving Policy LW1.3: 1.

1. Give priority to maintaining, or enhancing where appropriate, the primary values and uses

of freshwater bodies shown in Table 1 for the following catchment areas in accordance with

Policy LW2.3:

a) Greater Heretaunga / Ahuriri Catchment Area;

3. When managing the fresh water bodies listed in Policy LW2.1:

a) recognise and provide for the primary values and uses identified in Table 1;

28

29

The relevant Regional Plan primary and secondary industry enabling objectives and

policies are:

Land

Objectives:

OBJ 38 The sustainable management of the land resource so as to avoid compromising

future use and water quality.

Surface Water Quality

Objectives:

OBJ 40 The maintenance of the water quality of specific rivers in order that the existing

species and natural character are sustained, while providing for resource availability for a

variety of purposes, including groundwater recharge.

Surface Water Quantity

Objectives:

OBJ 41 The maintenance of the water quantity of specific rivers in order that the existing

aquatic species and the natural character18 are sustained, while providing for resource

availability for a variety of purposes, including groundwater recharge.

Groundwater Quality

Objectives:

OBJ 42 No degradation of existing groundwater quality in aquifers in the Heretaunga Plains

aquifer system.

OBJ 43 The maintenance or enhancement of groundwater quality in unconfined or semi-

confined productive aquifers in order that it is suitable for human consumption and irrigation

without treatment, or after treatment where this is necessary because of the natural water

quality.

Policies:

POL 75 ENVIRONMENTAL GUIDELINES - GROUNDWATER QUALITY 5.6.1 Other than in

the productive aquifer systems in the Tukituki River catchment, to manage the effects of

activities affecting the quality of groundwater in accordance with the environmental

guidelines set out in Table 10.

30

Groundwater Quantity

Objectives:

OBJ 44 The maintenance of a sustainable groundwater resource.

31

ATTACHMENT D

Draft Ngaruroro River and Clive River Water Conservation Order

Version 3, September 2018

32

12000434/3156685

Draft Ngaruroro River and Clive River Water Conservation Order

September 2018 – Version 3

1. Title

This order is the Water Conservation (Ngaruroro River and Clive River) Order 2015.

2. Commencement

This order comes into force on the 28th day after the date of its notification in the

New Zealand Gazette.

3. Interpretation

In this order, unless the context otherwise requires:

Act means the Resource Management Act 1991.

damming means the impounding of all or part of the natural flow of any water that

may involve an associated temporary or permanent structure, and includes any intake

or deflection structure, structure in the river bed or modification of the river bed . that

prevents the passage of any fish.or any structure that prevents fish passage.

waters means the rivers and tributaries identified in Schedules 1, 2 and 3. and any

hydraulically connected groundwaters and wetlands.

upper Ngaruroro waters means the mainstem of the Ngaruroro River and all of its

tributaries and contributing waters (including hydraulically connected groundwaters

and wetlands), from its source in the Kaimanawa Ranges down to Whanawhana

cableway (at or about NZTopo50 BK37:918-158) as identified in Schedule 1.

lower Ngaruroro River means the mainstem of the Ngaruroro River from

Whanawhana cableway (at or about NZTopo50 BK37:918-158) downstream to the

inland limit of the coastal marine area (at or about NZTopo50 BK39:368-12854-127)

as identified in Schedule 2.

Clive River means the mainstem of the Clive River from the Rauuapare Stream

confluence (at or about NZTopo50 BK39:327-093) downstream to the inland limit of

the coastal marine area, at or about the State Highway 2 bridge, Clive (at or about

map reference NZTopo50 BK39:367-1184-113) as identified in Schedule 2.

33

12000434/3156685

4. Outstanding characteristics, features and values

The waters identified in Schedules 1, 2 or 3 include or contribute to, to the extent

specified in Schedules 1, 2 or 3, the following outstanding characteristics and

features:

a. significance in accordance with tikanga Māori

b. cultural and spiritual purposes

c. habitat for rainbow trout

d. rainbow trout fishery

e. angling amenity and recreation

f. habitat for avifauna

g. habitat for native fish

h. whitewater kayaking and rafting amenity and recreation

i. jetboating amenity and recreation

j. wild, scenic and natural characteristics

k. scientific and ecological values

5. Waters to be retained in natural state

Because they are in their natural state, and because of the outstanding

characteristics, features and values identified in Schedule 1, the waters specified in

Schedule 1 are to be retained in their natural state, including but not limited to the

quality, quantity, level and rate of flow of the waters, subject to clauses 12 and 13.

6. Waters to be protected

Because of the outstanding characteristics, features and values identified in

Schedule 2 and the contribution made to waters supporting outstanding

characteristics, features and values, the waters identified in Schedule 2 are to be

protected in accordance with the relevant conditions in clauses 8, 9, 10 and 11,

subject to clauses 12 and 13.

7. Waters to be protected as contributing to outstanding characteristics

Because of their contribution to outstanding characteristics, features and values

identified in Schedules 1 and 2, the waters specified in Schedule 3 are to be

protected in accordance with the relevant conditions in clauses 9, 10 and 11, subject

to clauses 12 and 13.

34

12000434/3156685

8. Restriction on damming of waters

No resource consent may be granted or rule included in a regional plan authorising

the damming of waters specified in Schedules 1 and 2.

9. Restrictions on alterations of river flow and form

No resource consent may be granted or rule included in a regional plan that, either itself or in combination with existing consents or rules –

a. Will cause the material alteration of the channel cross-section, meandering

pattern, mobile bed, and braided river channel characteristics of the Lower

Ngaruroro River specified in Schedule 2;

b. Will reduce the width of the active floodplain of the Ngaruroro River between

Whanawhana and Fernhill (NZTopo50 BK38:230-114);

c. Will authorise the abstraction of water from any part of the Lower Ngaruroro

River specified in Schedule 2 and the waters specified in Schedule 3 that will

cause, either by itself or in combination with any other existing consents or

rules:

i. Water to be abstracted when the Lower Ngaruroro River is below a

minimum flow of 4200L/s at Fernhill. This clause applies to any

resource consent that is not subject to the exclusion clause 12 (d); or

ii. Water to be abstracted in excess of an allocable instantaneous

volume of 1581L/s at flows less than three times the naturalised

median at Fernhill (70,986L/s). This clause applies to any resource

consent that is not subject to the exclusion clause 12 (d); or

iii. A reduction in the magnitude and frequency of flows in excess of three

times the naturalised median flow at Fernhill (70,986L/s).

iv. A reduction in flood flows sufficient to transport sediment;

35

12000434/3156685

a. Would allow a more than minor effect on the channel cross-section,

longitudinal sections, gradient steps, meandering pattern, braided channel

character, or gravel or sediment transport capacity of the Ngaruroro River

mainstem between Whanawhana and Fernhill (NZTopo50 BK230-114).

b. Would allow surface water to be abstracted from the Lower Ngaruroro River

and tributaries as identified in Schedules 2 and 3 when flows exceed 3 times

the median flow at Fernhill.

d.c. Would allow water to be abstracted from the Lower Ngaruroro River,

tributaries and hydraulically connected groundwater as identified in

Schedules 2 and 3, unless:

i. flow variability above the minimum flow is provided for, including flows

that are between 1.5 and 3 times the median flow, to ensure that there

is a no more than minor reduction in the ability of flows to scour and

flush periphyton and cyanobacteria accumulations, mobilise and

transport sediment and bed material, and trigger flow-dependent

aquatic life-cycle processes such as fish migration; or

ii. there is a no more than minor change to flows that are required for the

outstanding recreational values and activities.

d. Would allow water to be abstracted from the Lower Ngaruroro River,

tributaries and hydraulically connected groundwater as identified in Schedule

2 or 3, unless this is in accordance with a minimum flow or allocation regime

that:

i. would have a no more than minor effect on the braided river form or

the outstanding characteristics identified in Schedules 2 or 3; and

ii. includes a minimum flow of no less than 2400L/s at Fernhill.

e. Will authorise any additional abstraction of water from any part of the Clive

River as specified in Schedule 2 not already authorised by a resource

consent at the time this Order comes into force.

f. This clause does not restrict a regional plan from imposing rules that set

higher minimum flows or that reduce the allocable volume for any of the

waterbodies referred to in this Order.

36

12000434/3156685

10. Requirement for fish screens

No resource consent may be granted or rule included in a regional plan in respect of

the taking or diversion of the waters specified in Schedules 2 and 3, or taking or

diversion of the waters specified in Schedule 1 as exempted by clauses 12 and 13,

unless all associated intakes are screened and maintained in accordance with the

minimum standards for fish screens and intakes contained in Schedule 4.

11. Requirement to protect water quality

No resource consent may be granted or rule included in a regional plan authorising

relating to the discharge of contaminants onto land or into waters specified in

Schedules 1, 2 or 3 that will cause, either by itself or in combination with any existing

consents, activities or rules, the limits specified in Schedule 5 to be exceeded.

This clause does not restrict a regional plan from imposing water quality standards

that set more conservative limits.

12. Scope of order

a. This order does not limit sections 14(3)(b) and (e) of the Act relating to the

use of water for an individual’s reasonable domestic needs, or for the

reasonable needs of an individual’s animals for drinking water, or taken or

used for fire-fighting purposes, provided that all intakes (other than those for

emergency fire-fighting) be screened and be designed and maintained to

comply with the minimum standards specified in Schedule 4, to prevent the

entrapment or impingement of fish.

b. Subject to sub-clause (c), this Order does not restrict or prevent the grant of

resource consents or inclusion of a rule in a regional plan for the purpose of:

i. research into, and protection or restoration, rehabilitation or

enhancement of, water quality, cultural, spiritual and tikanga Māori

values, fisheries and wildlife habitats; or

ii. the removal, maintenance, or protection or replacement of any

existing road, ford or bridge, the maintenance or protection of any or

network utility operation (as defined in section 166 of the Act), or the

maintenance or operation of the Ngaruroro Flood Protection and

Drainage Scheme; or the protection of human or animal health; or

iii. Minor activities necessary for the management of land administered

37

12000434/3156685

by the Department of Conservation.

c. No resource consent may be granted or rule included in a regional plan that

would allow activities specified in sub-clause (b) if exercise of any such

resource consent or rule would compromise the protection of the outstanding

characteristics and features identified for the waters specified in the

Schedules.

d. In respect of resource consents to take water held at the date this order comes

into force (existing consents) this order does not prevent the granting of

replacementfurther resource consents (replacement further resource

consents) on the expiry or surrender of the existing consents, where: for the

same volumes, rate of take and minimum flow restrictions, on the expiry or

surrender of the existing consents.

i. The holder(s) of the resource consent(s) applies for the replacement consent

before the expiry or surrender of the existing consent;

ii. The replacement resource consent is granted on conditions providing for the

same or equivalent (or more stringent) volumes, rates of take and minimum

flow restrictions as the existing consent or existing consents (where one or

more existing consents are to be replaced by a single replacement resource

consent); and

iii. Any change in the conditions relating to volumes, rate of take and minimum

flow restrictions imposed on the replacement resource consent does not

adversely affect the environment beyond the effects authorised by the existing

consent(s) to be replaced.

This clause confirms that replacement resource consents are not prevented by

this order, but does not guarantee grant of those consents. Applications will be

assessed by the Regional Council in accordance with relevant statutory and

regional plan requirements.

e. The same exclusion in clause 12(d) applies, with all necessary modifications,

on the expiry or surrender of the replacementfurther resource consents, where

a further replacement resource consent meets the requirements of 12(d)(i) –

(iii), and shall continue to apply to successive replacement resource consents

provided that the requirements of 12(d)(i) – (iii) are met.

38

12000434/3156685

13. Exemptions

Nothing in this Order prevents the grant of a resource consent that would otherwise

contravene conditions set out in clauses 5, 6, 7, 8, 9, 10 and 11 if:

a. a consent authority is satisfied that:

i. the consent is for a discharge that is of a temporary nature; and

ii. the consent is for an activity that is associated with necessary

removal, maintenance or replacement works for works and structures

not otherwise prohibited by this Order; or

iii. the consent is for discharge of herbicides for control of pest plants;

and

b. the exercise of any such consent would not compromise the protection of the

outstanding characteristics and features identified for the waters specified in

the Schedules.

14. Existing consents

Nothing in this Order shall affect or restrict any resource consent granted prior to this

Order coming into force in respect of the protected waters, until the expiry of that

consent.

39

12000434/3156685

Schedule 1

Waters to be retained in Natural State

Waters Outstanding

Characteristics

or Features

Conditions to apply

The mainstem of the

Ngaruroro River and

all of its tributaries and

contributing waters,

(including

hydraulically

connected

groundwaters,

wetlands and the

Kaweka Lakes), from

its source in the

Kaimanawa Ranges

down to Whanawhana

cableway (at or about

NZTopo50 BK37:918-

158), "upper

Ngaruroro waters"

Amenity and intrinsic values afforded by natural state

Significance in accordance with tikanga Māori

Cultural and spiritual purposes

Habitat for rainbow trout

Rainbow trout fishery

Angling amenity and recreation

Whitewater rafting and kayaking amenity and recreation

Habitat for native fish

Habitat for avifauna

Wild and scenic characteristic

Natural characteristics – water quality

Scientific and ecological values – water quality, wetland ecological and botanical values

Natural state

Prohibit damming (cl 8)

No abstraction with the exception of cl12

Fish screens (cl 10)

Water quality (cl 11)

40

12000434/3156685

Schedule 2

Protected waters

Waters Outstanding Characteristics or

Features and contribution to

outstanding characteristics and

features

Conditions to Apply

The mainstem of the

Ngaruroro River from

Whanawhana

cableway (at or about

NZTopo50 BK37:918-

158) downstream to the

inland limit of the

coastal marine area (at

or about NZTopo50

BK39:368-12854-127),

“lower Ngaruroro

River”,

Significance in accordance with tikanga Māori

Cultural and spiritual purposes

Habitat for avifauna

Habitat for native fish

Contribution to outstanding habitat for native fish in the Upper Ngaruroro Waters

Jet boating amenity and recreation

Scientific and ecological values – water quality

Prohibit damming (cl 8)

Minimum flow and maximum abstraction (cl 9)

Maintain river form (cl 9)Restrictions on alterations of river flow and form (cl 9)

Fish screens (cl 10)

Water quality (cl 11)

The mainstem of the

Clive River from the

Rauuapare Stream

confluence (at or about

NZTopo50 BK39:327-

093) downstream to the

inland limit of the

coastal marine area, at

or about the State

Highway 2 bridge,

Clive, approximate map

reference NZTopo50

BK39:367-1184-113

“Clive River”.

Significance in accordance with tikanga Māori

Cultural and spiritual purposes

Prohibit damming (cl 8)

Maximum abstraction (cl 9)Restriction on alternation of river flow and form (cl 9)

Fish screens (cl 10)

Water quality (cl 11)

41

12000434/3156685

Schedule 3

Waters to be protected for their contribution to outstanding characteristics

Waters Contribution to Outstanding

Characteristics or Features

Conditions to Apply

Tributaries to the Lower

Ngaruroro River from

Whanawhana

cableway (at or about

NZTopo50 BK37:918-

158) to the inland limit

of the coastal marine

area (at or about

NZTopo50 BK39:368-

12854- 127),

Contribution to:

significance in accordance with tikanga Māori

cultural and spiritual purposes

habitat for native fish

habitat for avifauna

jetboating amenity and recreation

scientific and ecological values – water quality

Minimum flow (cl 9)

Maximum abstraction (cl 9)

River form (cl 9)Restriction on alteration of river flow and form (cl 9)

FRequirement for fish screens (cl 10)

Water quality (cl 11)

Hydraulically

connected groundwater

to the waters specified

in Schedule 2

Contribution to:

significance in accordance with tikanga Māori

cultural and spiritual purposes

habitat for native fish

habitat for avifauna

jetboating amenity and recreation

scientific and ecological values – water quality

Minimum flow (cl 9)

Maximum abstraction (cl 9)Restriction on alteration of river flow and form (cl 9)

Water quality (cl 11)

42

12000434/3156685

Schedule 4

Minimum requirements for fish screens and intakes

Feature Minimum Standard

Screen location At the point of water diversion from the

river (or as close as practicable)

Screen size (aperture) Aperture size not exceeding:

2 mm in diameter for profile bar

screens

3 mm in diameter for woven

mesh screens

3.2 mm in diameter for perforated

plate screens (round opening)

Approach velocity No greater than 0.12 metres per second

Sweep velocity (parallel to the face of the

screen)

Equal to or greater than the approach

velocity at all times

Return of fish to an active flowing

channel of the water from which they

were diverted

Effective bypass structure

Screen maintenance and operation To ensure that the screen remains

effective at all times

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12000434/3156685

Schedule 5

Water Quality Limits

Indicator

Limit

Upper

Ngaruroro

Waters

upstream of

Kuripapango

Upper Ngaruroro

Waters

upstream of

Whanawhana

Lower

Ngaruroro River

at Chesterhope

Clive River

Dissolved inorganic

nitrogen (DIN) (Total

oxidized nitrogen

(nitrate + nitrite) +

ammoniacal N)

5-year median

concentration shall

not exceed 0.01

mg/L

5-year median

concentration shall

not exceed 0.025

mg/L

Annual average

concentration shall

not exceed 100

mg/m3

Existing state

Ammoniacal nitrogen (unadjusted for pH and temperature)

5-year maximum

concentration

shall not exceed

0.01107 mg/L

5-year maximum

concentration

shall not exceed

0.0216 mg/L

Shall not exceed

100 mg/m3

Existing state

Dissolved reactive

phosphorus (DRP)

5-year median

concentration shall

not exceed 0.002

mg/L

5-year median

concentration shall

not exceed 0.004

mg/L

Annual average

concentration shall

not exceed 8 mg/m3

Existing state

Comment [AL1]: The limits below remain subject to further review

44

12000434/3156685

Escherichia coli (E.

coli)

5-year median

concentration shall

not exceed 4

E.coli/100ml

5-year median

concentration shall

not exceed 4

E.coli/100ml

E. coli shall not

exceed 260/100ml

when river flows are

less than median or

550/100ml when

flows are less than

the 20th

exceedance

percentile

Existing state

Dissolved oxygen (DO)

per cent % saturation

Daily (24-hour)

minimum DO shall

not drop below

80% of saturation

Daily (24-hour)

minimum DO shall

not drop below 80%

of saturation

Daily (24-hour)

minimum DO shall

not drop below 80%

of saturation

Existing state

Temperature 5-year 95th

percentile of

samples shall be

less than 20oC

5-year 95th

percentile of

samples shall be

less than 20oC

The 95th percentile

of samples shall not

exceed 21oC

Existing state

Clarity (horizontal

visibility of a black disc)

5-year median

shall exceed 5

metres

5-year median

shall exceed 2.5

metres

Shall exceed 1.6m

at flows less than

the median

Existing state

45

12000434/3156685

Macroinvertebrate

Community Index

(MCI)

Shall be ≥ 130

Shall be ≥ 100 Long-term

(continuous)

running average

shall exceed 100

Existing state

Periphyton weighted

composite cover

(periWCC)

Shall be less than

20%

Shall be less than

20%

Shall be less than

20%

Existing state

Cyanobacteria mat cover

Shall be less than

20%

Shall be less than

20%

Shall be less than

20%

Existing state

Unless otherwise stated, compliance with the limit should be assessed from monthly data

collected under all flow conditions.

46