BEFORE COMMISSIONERS APPOINTED BY THE CANTERBURY REGIONAL

COUNCIL

Under the Resource Management Act 1991 In the matter of an application by Benmore Irrigation Company Limited for a

change of conditions of CRC981619.1 And In the matter of an application by Benmore Irrigation Company Limited for

resource consent to discharge nutrients from farming activities.

10 October 2016

LEGAL SUBMISSIONS ON BEHALF OF BENMORE IRRIGATION

COMPANY LIMITED

Duncan Cotterill

Solicitor acting: Ewan Chapman / Jamie Robinson PO Box 5, Christchurch 8140 Phone +64 3 379 2430 Fax +64 3 379 7097 ewan.chapman@duncancotterill.com jamie.robinson@duncancotterill.com

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INTRODUCTION

1 Benmore Irrigation Company Limited (BIC) currently holds resource consent CRC981619.1

(the current consent) which authorises the take and use of 51,626,000 cubic metres of water

in any period between 1 September to 31 May the following year. This is enclosed with these

submissions as Appendix 1.

2 This is an application by BIC to increase the area available to them from a maximum of 4,000

hectares under the current consent, to 7,658 hectares. There is no proposed change to the

annual water take or the instantaneous rate of take. This increase in area is achieved by

improved efficiencies in irrigation practices.

THE SITE AND APPLICATIONS

3 BIC delivers water to 8 farms, as follows:

Twizel Dairies;

Glenbrook;

West edge;

Benmore Station;

Little Ben;

The Glens;

Willowburn; and

Buscot.

4 The areas of proposed irrigation, as well as the farm boundaries, are shown in Appendix B.

5 Further information about the properties, including the presence of ecological areas, and

landscape issues, is addressed in the evidence of Andrew Craig, Graham Ussher and Richard

Allibone.

6 This application is for two consents – a water take consent, and a discharge consent. The

water take consent was applied for as a variation to the existing BIC consent – CRC981619.1.

As is discussed further below, the application has been considered by the Canterbury

Regional Council (ECan or Regional Council) as a new application.

7 The discharge consent is for a discharge of nutrients associated with farming use – some

farms have obtained individual consents – however, from BIC’s perspective, it is the irrigation

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company that will hold the consent; model nutrient losses; manage compliance and reporting

through to ECan. This application is a new consent.

THE CURRENT CONSENT

8 The starting point for evaluation of this application is the current consent under which BIC

operates. This will inform the Panel of the nature and extent of the current operating

environment of BIC, and the constraints on irrigation.

9 The consent was first granted on 12th March 1999 and it contains the following terms:

It runs for a 35 year term – through to 17th February 2034;

It secures the take of water – to a maximum stipulated of 51,626,000 cubic metres

between 1st September and 31st of May in the following year. This volume remains

unchanged by the current variation;

It provides for an irrigation methodology being spray and border dyke irrigation – both

methods which have been used;

It provides for an area limitation – somewhat unusually in today’s environment, the

limitation is in the grant – rather than imposed as a condition – and that limit is 4,000

ha;

The irrigation area is non-specific. It is not required to be detailed on any map.

Condition 5 of CRC981619.1 requires that the Canterbury Regional Council to:

Be given the names of the owners and legal descriptions of the properties

supplied with water. The importance of the legal description is to ensure that

the scheme remains within its original command area which was only defined

by legal description of the properties set out earlier in these submissions.

Be given details of the maximum rate of take, the overall hectares and the

irrigation methods to be utilised. This is an overall scheme requirement for

the consent holder to comply with. The consent does not require

measurement of the turn-outs to the individual properties.

Lastly BIC needed to confirm irrigation practices will represent an efficient use

of water.

Accordingly, provided the overall land area was met and provided the District Plan

permits irrigation on any area within a command area it is submitted that any area

under the overall command area can be irrigated by virtue of this consent.

Further conditions of the current consent set out practical limitations to ensure:

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Water can’t be taken when the Ohau River reaches its minimum flow of 8000

litres per second.

Meridian Energy needs to be notified of the take in advance – either 7 days in

advance or 2 days in advance depending on whether the take volume

exceeds 2000 litres per second.

There is a requirement to measure the take within an accuracy of 10%.

Any notice of dewatering the main race has to be given to Fish and Game NZ

and Ngāi Tahu.

Standard review conditions of the consent were included in its original form.

This review has been exercised by Canterbury Regional Council on one occasion in

2008. This resulted in one change to the consent to install a fish screen at the point of

take from the Ohau River. Somewhat unusually the consent also contains a condition

to allow BIC to apply for a change in the annual volume at any time during the consent

during the month of September. The implication of this clause is that were the volume

insufficient for the purposes of carrying out irrigation, that the Canterbury Regional

Council would entertain a request. It is not clear whether this process would be

notified or not. In any event nothing turns on this condition as no application has been

made to change the annual volume.

General commentary on CRC981619.1

10 Undoubtedly any irrigation company would consider the BIC consent “a dream” consent. It

was granted in the early days of irrigation scheme development in Canterbury.

11 It has a 35 year duration carrying through to February 2034.

12 It has little in the way of monitoring conditions, although as the evidence will show, voluntary

monitoring is undertaken by BIC throughout its command area and in the adjacent streams

and lakes.

13 BIC has fully implemented the consent. While the consent has no landscape requirements, the

method used to reticulate water to properties is via a canal from the point of take and along

(some 30 kilometres). The scheme canal is virtually undetectable on the landscape.

14 To date, BIC’s responsibility has been to effectively supply water to the farm “gate”. Any

internal reticulation, and irrigation method, has been at the choice of the irrigating farmer.

15 That line of responsibility will change with this proposal. BIC’s responsibility will now change

to be responsible for nutrient management. Compliance auditing; and importantly adherence

to stated Overseer parameters or inputs will be important for scheme management. However

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in this regard the scheme is small, in relative terms to other down plains schemes – and with

the open nature of the Basin, I suggest that little is not known about one neighbour by the

other.

16 BIC as a scheme was fully operational at the time of the Upper Waitaki Water Take Consent

hearings. The importance of this is that the full impact of BIC’s take and methodologies

allowed under the consent, was factored in to the GHD study that lead to the imposition of

TLI’s in both the Haldon and Ahuriri Arms of Lake Benmore.

17 As a bottom line it has allowed those properties within the scheme area to remain viable. The

challenges facing these properties from weather, soil loss, weed infestation (hawk weed) and

rabbits would have meant for these properties without irrigation, certain financial disaster and

in my submission an environmental disaster.

18 It is a scheme of which the shareholding farmers are immensely proud – of its implementation;

and its value to the overall sustainability of many, many families.

19 Scheme development has resulted in a change to landscape along SH8. Mr Craig will deal

with these issues in his evidence. The original change to landscape along SH 8 forms part of

the existing environment. In my submission the focus on this hearing must be on changes

arising from the variation.

20 BACKGROUND TO APPLICATION

Reason for this application to vary the consent

21 Following a detailed round of discussions with ECan prior to submitting the application it was

determined both by BIC and ECan that an application for variation should be submitted to

extend the area of this scheme. In my submission nothing turns on the issue of variation,

primarily for two reasons:

a. This application was fully notified; and

b. By virtue of section 104(1) (5) of the RMA.

22 The wider question, however, of why BIC wish to extend the area for irrigation deserves some

preliminary comment at this stage. Firstly, BIC is doing nothing different than other irrigation

schemes in Canterbury.

23 It is an irrigation scheme, and as such it is under a strong directive from the Land and Water

Regional Plan to use water efficiently.

24 What BIC is doing here is no different to:

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The Amuri Irrigation Scheme in the north converting from border dyke irrigation to

spray and using the surplus water to irrigate further area.

The Mayfield Hinds Irrigation Scheme which has implemented a twofold

improvements to its scheme by both conversion from border dyke as well as piping

the scheme. In this context BIC acknowledges that a scheme volume provided

originally for border dyke irrigation can be used more efficiently.

And in the context of the Waitaki, the North Otago Scheme has undergone staged

development, to meet water efficiency targets.

25 Its driver for this application is to meet ECan’s water efficiency targets.

26 There is no change to the take volume associated with this consent and an irrigation take is

not part of this hearing.

27 Consistent with other irrigation schemes and in accordance with the LWRP, BIC is also

applying for overall nutrient management within its command area. [Section 3 objectives

LWRP particularly 3.4, 3.5, 3.9, 3.10, 3.11 of this point to also policy 4.51]

28 On the nutrient management consent, BIC is applying to be the manager of nutrients within its

command area. The framework of the plan, particularly from rules 5.60 to 5.62, is for a strong

preference that where an irrigation scheme is in place the rules encourage the scheme to

apply to be the holder of the nutrient allocation.

29 BIC’s application is no different in my submission than every other irrigation scheme within

Canterbury. The implication from the plan is that provided that an overall nutrient budget is

set it is then for the scheme to manage that budget by aggregating nutrients between

properties depending on their use. The focus of the plan is for Overseer to be the managing

tool. The evidence from the 42A reports casts doubt on the accuracy and applicability of

overseer. It suggests that the outcomes of Overseer are uncertain. The Officers suggest no

other alternative and in my submission that is because there is none.

Tenure review

30 All of the properties have undergone the tenure review process, with some having been

subdivided since they were freeholded. Glenbrook Station is one example – it was subdivided

in two to create West Edge. All of the properties, at the time of tenure review, were either

soldier settlement blocks, or pastoral leases owned by the University of Otago.

31 Tenure review is the process whereby leasehold land is freeholded – with land which is

deemed to have ‘significant inherent values’ remaining in Crown ownership, usually under the

control of the Department of Conservation (DoC). The land which was freeholded and

available to the leaseholder was deemed to be land with ‘productive potential’.

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32 The tenure review process involved the assessment of the significance of the properties, with

ecological reports commissioned for every property. The Glenbrook report has been included

with the evidence of Simon Williamson, by way of example.

33 Ultimately, the process resulted in large areas of land being retained by the Crown/DoC for

conservation purposes, with the remaining land available to the new landowner as freehold

title. It was a fully participatory process.

34 Most leaseholders underwent the tenure review process as the restrictions placed on a lease

limited development options. The freehold title was sought to ensure that the landowner could

develop the land (excluding those parts containing ‘significant inherent values’) in a manner

which they considered appropriate.

35 Both Glenbrook Station and Benmore Station ‘lost’ considerable areas of land through the

freehold process (compared with what they had been entitled to graze previously under the

lease). What these stations are now facing is opposition from community groups and the

Regional Council in developing land which did not meet the criteria of ‘significant inherent

values’ during the tenure review process. This is essentially eroding the property rights of

these landowners, and goes against the basic principle that freehold land should be able to be

developed.

ISSUES TO BE DETERMINED

Overall

The extent and applicability of PC5 to this hearing.

What is the baseline and what is the existing environment.

The relevance of the land use status under the Waitaki District Plan.

The extent to which terrestrial ecology is a matter controlled by the Regional Plans.

The extent to which mitigation measures and conditions proposed by the applicant

ameliorate the effects of the proposal.

On the nutrient allocation application:

Is there acceptance that Overseer is the correct tool for evaluating a nutrient

allocation application?

Has Overseer been run correctly?

Has Mr Heller applied the results of Overseer correctly to the effects on water quality

on the surface water bodies?

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Is it practical for farmers to run their properties to the modelled Overseer results?

Is the allocation of nutrients consistent with other allocations in the Basin?

On the irrigation extension application:

Is it practical to irrigate the extended area from the current source?

Does the extension of irrigation area assist the company and ECan to meet water

efficiency targets as set out in the planning?

Is an effect on ecology an environmental “bottom line”?

Can effects on ecology be mitigated?

Can the Commissioners have regard through ecological management of

significant species beyond the application site?

What are the controls on landscape imposed by the Waitaki District and the LWRP

Plan?

and finally

Does this application on a broad overall judgment of Commissioners meet the

purpose of the RMA?

IS THIS APPLICATION OCCURRING IN A STATIC ENVIRONMENT?

36 It is submitted that parts of the Section 42A Report and evidence for submitters is based on

the presumption that this part of the Omarama Basin is in a static state.

37 Put another way, that an effect on the environment which has been identified by this

application, was there many years ago – and will continue to be present in the future if this

application is declined. The evidence for the applicant is that, but for the influence of farming,

many values would have been irretrievably lost.

38 In my submission, the wide definition of effect under the RMA entitles you to take account of

current state – but also the past and future effects on the subject site.

39 This application site together with most of the Mackenzie Basin at some stage have been

subject to:

Broad scale rabbit infestation; and

Overgrazing;

Weed invasion; and

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Soil erosion

40 It is submitted that as part of your broad overall judgment that you need to take two important

criteria into account:

The rate of change that is occurring in this environment particularly with respect to

Wilding Pines and other weeds and pests.

That any identifiable values on properties are there because of a responsible grazing

regime.

41 It is submitted that waving a stick at that regime may not produce the best environmental

outcome contemplated by the RMA.

42 One of the primary reasons for farmers exploring further irrigation is that it takes the seasonal

variables out of the farming equation. When a property is fully stocked and a drought occurs

currently a farmer has three options:

Destocking;

Bringing in feed, or using winter feed early; or

Overgrazing in the hope that the drought will break.

43 Irrigation on the other hand removes to some extent that variable. It enables farmers to

overall manage their property on a more sustainable basis.

44 Knowing that you can always make winter feed, on an irrigated area, enables a lighter grazing

regime to operate on the extensive grazing areas of a property.

45 I have struggled in preparing for this hearing in relation to Commissioners ability to

micromanage this outcome through resource management conditions. I am not confident that

you can prevent an overgrazing regime from ever occurring. However, on a practical level in

exercising your overall judgment that if your assessment is restricted solely to the effects on a

relatively small part on a particular property (the irrigation area) you will lose focus in terms of

your broad overall judgment to determine whether an overall farming operation is more or less

sustainable with an element of further irrigation.

PLAN CHANGE 5

46 Since the filing of this application the Council has notified Plan Change 5 to the Land and

Water Regional Plan (PC5). Submissions and further submissions have been received, and

the final week of the hearing was in Omarama, last week.

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47 Submissions, further submissions and evidence presented to the hearing panel seek

amendments to the PC5 provisions. At this stage of the process, there is no certainty as to

what the final PC5 provisions will be, and so it is inappropriate to place weight on these

provisions when deciding this application.

48 The legal position is that the closer the proposed plan comes to its final content, the more

regard is had to it1. Despite the fact that PC5 is at the end of the hearing of submissions, we

are no closer to having a final (or updated) version of the provisions than when PC5 was

initially notified. Therefore, it is inappropriate to place weight on these provisions, and the

operative provisions of the LWRP should be considered instead. This is outlined particularly in

the evidence of Tim Ensor, where he discusses that the methodical, almost rule-like nature of

the policies, mean that to have regard to the policies of PC5 would essentially be to give them

legal effect.

49 Despite the fact that we do not consider the provisions of PC5 to be particularly useful

guidance to the Commissioners, we do note that on the whole, this proposal complies with

what PC5 is seeking to achieve.

50 In particular, we note proposed Policy 15B.4.18 which relates to irrigation schemes, and

requires that water quality within the Waitaki sub-region be maintained. This is to be done by:

Implementing Good Management Practices;

Nitrogen loss not exceeding the Upper Waitaki Nitrogen Headroom (Headroom)

available to those properties in the Haldon Zone; and

Nitrogen Loss not exceeding the Baseline GMP Loss Rate for any other area (in this

instance, the Ahuriri Zone and the Sensitive Lake Zone).

51 The Headroom has been set by the Regional Council at 300 tonnes – which allocates out to

1.6kg/ha/annum for land that meets the irrigation criteria. This allocation technique (not the

actual figure of 300 tonnes as available headroom) is still a live issue before the PC5 hearing

panel, as it was disputed in the BIC submission. Regardless, the proposal (based on the

Overseer numbers as provided by Nicole Phillips) will comply with the 1.6kg/ha/annum limit.

52 The acceptability and application of the Baseline GMP Loss Rate also remains a live issue

before the PC5 hearings panel, and so should not be applied. Instead, we consider it

appropriate to refer to the Nitrogen baseline (as defined in the LWRP). The BIC proposal will

result in less nitrogen being leached in both the Ahuriri Zone and the Sensitive Lake Zone

than under current operations, which is line with the PC5 objective of maintaining water

quality.

1 Queenstown Central Ltd v Queenstown Lakes District Council [2013] NZHC 815

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53 Despite the above, for the information of the Commissioners the evidence of Tim Ensor

discusses the proposals compliance with the overall approach of PC5. Weight cannot be given

to these discussions, as the provisions may not end up in the final decision version of PC5.

However, it gives reassurance to you, as Commissioners, that the proposal is in line with both

the LWRP and the broad approach the Regional Council is proposing to take in PC5 as

initially notified.

STATUS OF APPLICATIONS

54 The application for resource consent for the water permit was applied for as a change of

conditions to CRC981619.1 under s127 of the RMA. However, the Regional Council has

processed the application as a new consent.

55 It is submitted that nothing turns on whether the application is considered as a new consent or

a change of conditions. Under both s127 and s88 the application will be processed as a

discretionary activity, meaning that Commissioners are unfettered in terms of what is

considered when determining the application, or the conditions of the consent.

56 The application for a discharge consent is also a discretionary activity. It is considered

appropriate to ‘bundle’ the two consents together, as they are both applications to the same

consent authority, and there is an overlap of matters requiring consideration between the two

consents. This is consistent with the approach set out in AA Hamilton v Far North District

Council2.

IRRIGATION AS A LAND USE

57 When considering the issues raised by submitters on the application, it appears that the

critical issue in question is the expansion of irrigation as a land use.

58 The zoning of all of the land under the Waitaki District Plan is Rural Scenic. The zone permits

farming activities (including irrigation) – Outcomes regarding the pattern of change are

predicted by the WDC Plan.

59 Irrigation development is an issue before this Panel – but only from the perspective of

irrigation intensifying nutrient losses over dryland farming. The issue for the panel concerns

the down-stream/groundwater effects arising from this proposal. Not the act of putting the

water on the land.

60 Of note, the WDC Plan both controls where irrigation can be located, and where it cannot.

The plan has a zoning overlay identifying outstanding natural landscapes which specifically

exclude irrigation development as a permitted activity. These properties do contain ONL

areas – but no irrigation development from this proposal will occur in those areas.

2 [2015] NZEnvC 12

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REQUIREMENT FOR OTHER RESOURCE CONSENTS

61 Several submitters outlined that further consents would be needed for the proposal from the

Waitaki District Council (WDC), and that the current application should be put on hold until

these applications were made, in order to ensure they were dealt with concurrently.

62 BIC disagrees that any consents are required from WDC at this stage. Specifically, the

submissions raised concerns with regard to the following:

Modification/destruction of ecological sites;

Areas of outstanding natural landscapes; and

The construction of storage ponds.

Modification of ecological sites

63 Forest and Bird in its submission consider that a resource consent will be required from the

WDC to allow the modification or destruction of ecological sites.

64 Firstly, it is relevant that there are no sites within the proposed irrigation area that are

identified as being within areas of significant indigenous vegetation and habitat of significant

indigenous fauna identified on the Planning Maps and listed in Appendix C under the Waitaki

District Plan (WDP).

65 However, as well as not being within ecologically significant sites, this application is for

irrigation, which is not considered to meet the definition of ‘clearance’. This has been a matter

put before the High Court, in Royal Forest and Bird Protection Society of New Zealand v

Waitaki District Council and Five Rivers Limited3. In that case, Forest and Bird sought a

declaration that irrigation in the Rural Scenic zone required a resource consent, as it would

contravene Rule 4.4.8 of the WDP – general indigenous bush vegetation clearance. The Court

determined (at paragraph [34]) that irrigation does not come within the definition of vegetation

clearance, and therefore no resource consent is required.

66 The WDP, including the definition of ‘vegetation clearance’ and the rule in 4.4.8 relating to

indigenous bush vegetation clearance remains the same as when the Forest and Bird decision

was issued. Therefore, it is appropriate to rely on the findings of the court – that irrigation does

not meet the definition of vegetation clearance.

Outstanding natural landscapes

67 Submitters are correct that a resource consent would be required for irrigation if it were

occurring within an area identified on the WDP Planning Maps as an Outstanding Natural

Landscapes (ONL).

3 [2012] NZHC 2096

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68 However, as has been shown in the evidence of Andrew Craig at Attachment A, the

proposed irrigation locations do not overlap with those areas identified on the planning maps

as ONL. Therefore, no consent is required in relation to the ONL rule.

69 Some submitters have inferred ONL status over the whole of the Mackenzie/Omarama Basins

by referencing a technical regional report on ONL’s produced for planning guidance purposes

only. It is a non-statutory document with no rules underpinning the ONL status the report’s

opening statements confirm that district plans may determine wider or narrower parameters

for ONL delineation.

Construction of storage ponds

70 The application seeks to allow storage of water. The current BIC consent does not

contemplate the storage of water, and so there are no existing storage ponds. Therefore,

consent may be required for the construction of ponds, particularly in relation to earthworks.

71 Storage of water is not a critical aspect of this application. It is a mechanism which could be

used to cut down delivery times for water, at the Southern end of the scheme. However the

nature, extent and location of storage (if any) is dependent on this grant. This grant defines

the physical locations of where further irrigation will occur.

72 BIC accept that consent may be required from the WDC for this activity in future. Any

application for storage, along the main canal –is in the nature of an ancillary consent - it would

meet the permitted volumes for storage, from the Regional Council. – It intends to apply for

such consents, if necessary, at a time when that part of the development is feasible and

required.

73 It is submitted that the effects of the development of a storage pond – are de minimus in

nature. It would not lead to any change to an overall irrigation area, and it would have no

effect on the nutrient allocation. It is submitted that the effects in those areas are fully

described and before you.

74 Case law states that, in general, all resource consents for a project should be identified from

the outset and applied for together4. However, there have been exceptions, such as in Kett v

Auckland RC5 where the Court accepted it is not always practical to apply for all consents at

the same time, particularly in relation to large-scale projects. The Court also identified an

exception in Zwart v Gisborne District Council6 in situations where a proposal can be broken

down into discrete and separately operable parts, and a reasonable assessment can be made

of one or some of those parts without having to consider overlapping or cumulative effects.

4 AFFCO NZ Ltd v Far North DC (No 2) [1994] NZRMA 224 (PT). 5 EnvC A086/00 6 [2014] NZEnvC 96

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75 In this application, the matters for Regional Council consideration relating to the storage of

water are very different to those matters which concern the WDC. It is appropriate for the

Regional Council to determine the issue of storing water, as it relates to the take, separately

from the WDC consideration of the development of infrastructure.

Permitted baseline

76 The nature of the permitted baseline test is most relevant in relation to issues of ecology and

landscape.

77 In terms of the Regional plan, it is submitted that the sole determinant of what can be done on

the land is based on whether you exceed your nutrient baseline, by changing farming

practices.

78 At a District plan level, the permissive nature of farming activities is commented on by Mr

Ensor.

79 To the extent that submitters raise issues with the land use (colour /texture/ stock

type/cropping /winterfeed areas) it is clear that that the permitted baseline allows very

significant change to occur over the whole of the property. Oversowing and topdressing, for

example, is one mechanism that regularly occurs – to allow farmers to improve exotic pasture

cover. It can and will lead to changes in both landscape and ecology.

80 The Environment Court7 has suggested questions along the following lines would assist in

determining whether the permitted baseline test should be used:

Does the plan provide for a permitted activity or activities from which a reasonable

comparison of adverse effect can conceivably be drawn?

Is the case before the Court supported with cogent reasons to indicate whether the

permitted baseline should, or should not, be invoked?

If parties consider that application of the baseline test will assist, are they agreed on

the permitted activity or activities to be compared as to adverse effect, and if not,

where do the merits lie over the area of disagreement?

Is the evidence regarding the proposal, and regarding any hypothetical (non-fanciful)

development under a relevant permitted activity sufficient to allow for an adequate

comparison of adverse effect?

7 Lyttelton Harbour Landscape Protection Assoc Inc v Christchurch City Council [2006] NZRMA 559 (at [21])

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Is a permitted activity with which the proposal might be compared as to adverse effect

nevertheless so different in kind and purpose within the plan’s framework that the

permitted baseline ought not to be invoked?

Might application of the permitted baseline have the effect of overriding Part of the

RMA?

Existing environment

81 The Court of Appeal in Hawthorn8 determined that the receiving environment embraces the

future state of the environment as it might be modified by the utilisation of rights to carry out a

permitted activity (the permitted baseline, as above), but also the future environment as it

might be modified by resource consents which have been granted, and where it appears likely

that those resource consents will be implemented.

82 In this scenario, the relevant resource consent is the current BIC consent, and the issue of

likelihood is irrelevant, as the consent is already being used.

83 As previously outlined, the current consent allows effects which impact the environment to a

greater degree than those proposed as part of this application.

84 The evidence of Nicole Phillips and Tom Heller explain the impacts of the application on

groundwater. It is clear from this evidence that the effects on the receiving environment will be

an improvement over what is currently permitted by the consent, particularly with regard to the

reduction of nitrogen leaching from the activity.

UNCERTAINTY

85 Several submitters and the Council Officers report have expressed concern relating to the

uncertainty of the Overseer model. It seems to be implied that there is a risk in relying on

Overseer, and so the Council in its section 42A report is advancing a precautionary approach.

86 BIC considers that this wariness with which submitters, and particularly the Regional Council,

are approaching Overseer is inappropriate, given the reliance placed on Overseer modelling in

the objectives, policies and rules of the Land and Water Regional Plan, under which this

application seeks consent. The nitrogen baseline is a critical part of the LWRP, and it is

constantly used as the ‘measuring stick’ for activities. The definition of nitrogen baseline is

completely reliant on Overseer. The Regional Council has chosen to rely on Overseer when

determining the appropriateness of activities, and resource consent applications. Therefore,

this must be applied consistently, and the Overseer modelled results must be accepted in this

hearing as appropriate and certain.

8 Queenstown Lakes District Council v Hawthorn Estate Ltd (2006) 12 ELRNZ 299.

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ADAPTIVE MANAGEMENT

87 Adaptive management is a response to a precautionary approach. It allows for a condition of

consent to change over time in response to a measurable outcome – which was uncertain at

time of hearing.

88 In Sustain Our Sounds Inc. v The New Zealand King Salmon Co Ltd9 the Supreme Court

stated that whether the precautionary approach requires an activity to be prohibited until

further information is available, rather than an adaptive management or other approach, will

depend on an assessment of a combination of factors (with (d) being the vital part of the test):

The extent of the environmental risk (including the gravity of the consequences if

the risk is realised);

The importance of the activity;

The degree of uncertainty; and

The extent to which an adaptive management approach will sufficiently diminish

the risk and the uncertainty.

89 The Court in that case concluded that as the uncertainty would be largely eliminated and the

risk managed by the adaptive management conditions imposed it was open to the Board to

consider that the adaptive management regime it had approved (in the plan and the consent

conditions) was consistent with a proper precautionary approach.

90 Adaptive management conditions have been widely used in the upper Waitaki catchment area

in relation to other consents for water takes to be used for irrigation. BIC does not consider

that adaptive management conditions are necessary, due to the decreased levels of nutrients

being leached to both the Ahuriri and the Sensitive Lake Zones. However, in order to be

consistent with other consents, a revised set of conditions outlining an adaptive management

approach have been included in the BIC proposed consent conditions.

91 The adaptive management conditions proposed by BIC are to apply over the entire command

area provided water by the BIC scheme. This means that the current 4,000 hectares

authorised by the current consent (which is currently not subject to any nutrient limits, or any

adaptive management conditions) will also be required to reduce, in situations where either

the early warning or environmental TLI level is reached.

9 [2014] NZSC 40, (2014) 17 ELRNZ 520.

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92 The proposed adaptive management conditions are not entirely consistent with the

requirements of other consents for similar activities in the upper Waitaki. This is due to a

difference in ‘starting point’. As has been outlined in the evidence of Nicole Phillips, the

proposed BIC scenario is based on best practice, which includes soil moisture monitoring and

efficiency requirements. Therefore, the Nutrient Discharge Allowance (NDA) set in the

proposed consent is modelled based on known likely practice on each farm. In comparison,

NDA limits on other consents in the Basin have been set much higher without reference to the

current Overseer model, allowing ‘wriggle room’ in terms of real on-farm reduction if/when TLI

trigger levels are reached.

93 Therefore, it was considered appropriate to introduce an adaptive management condition

which is reliant on other discharges (after an initial three year reduction by BIC) reaching a

point where the discharge is consistent with good management practice.

94 The concern with this approach is setting reliance on good management practice (GMP),

which is a concept introduced through PC5. As already outlined above, PC5 is not yet at a

point where weight can be given to it, which means that the ‘trigger point’ for the BIC

conditions may be reworked following the conclusion of this hearing. BIC understand that the

definition and workability of GMP is a matter that was live before the Commissioners Panel

hearing PC5, and is yet to be determined.

SECTION 104 CONSIDERATIONS

95 It is the role of the Commissioners under s104 to balance several competing interests, when

determining a resource consent application. These submissions have defined the relevant

issues.

Efficiency of resource use

96 Section 7 of the RMA requires that a decision maker “have particular regard to” the efficient

use and development of natural and physical resources. As already explained, this application

does not seek further water, to enable the irrigation of the additional area. Instead, it seeks to

allow the already consented water to be able to be used more efficiently, resulting in the

irrigation of a larger area.

97 There is support in the LWRP for the efficient use of resources, particularly water. Objective

3.9 seeks that any water is necessary and reasonable for its intended use, and that it is used

efficiently. Objective 3.11 sets out that water is recognised as an enabler of the economic and

social wellbeing of the region. The evidence before you from the shareholders of the scheme

outlines clearly the necessity of the water for an economically viable farming operation.

98 Policies 4.65 to 4.69 of the LWRP address the efficient use of water. This proposal is

consistent with these policies. The conditions proposed, contemplate sign-off of any new

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irrigation system. The Environmental Manager for the scheme has a role in auditing irrigation

efficiency.

Nutrient management regime

99 It is accepted that BIC needs to demonstrate compliance with Red/ Pink and Orange zone

nutrient requirements. The evidence is for improvement of water quality parameters in the

“sensitive” zones.

100 However, that aside, the scheme is not new in terms of its level of nutrient loss. As discussed

the scheme was factored in to the original study, which set nutrient thresholds for the receiving

lakes – based on a full BIC water use.

101 Accordingly on the overall effect to Waitaki waters, this, more closely monitored and controlled

scheme, will contribute to an overall improvement in water quality in the Waitaki Valley.

Ecological (terrestrial and freshwater)

102 It is apparent on the evidence as between both the Resource Management Planners and the

Ecologists that there is a significant divergence of opinion both as to the nature and extent to

which terrestrial ecology is a matter before this panel.

103 Firstly on the planning side, there is no issue that freshwater ecology is squarely within the

regional council’s function. The LWRP is clear that instream activities and activities which

affect water quality (occurring adjacent to stream or lake margins) is within your purview.

104 However, subject to your acceptance of the evidence of Dr Heller, where measures

implemented by this consent will contribute to an overall improvement of water quality and the

evidence of Dr Allibone on mitigation measures relating to the exercise of consent, then in my

submission those matters addressed by the Regional Plan are satisfied.

105 Moving your focus purely to terrestrial ecology is problematic – purely because of your

encroachment on District Council functions to regulate land use.

106 It is submitted, if there is a neutral outcome in terms of water quality, what can grow where –

and importantly what protection is accorded to avoid a loss of flora and fauna is a land use

issue.

107 That is reflected in the District wide rules. The district has implemented rules appropriate for

its area to both:

Identify significant ecological areas; and

Introduce controls – regulating irrigation development and indigenous vegetation

clearance.

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108 The district plan has not turned its back on terrestrial ecology.

109 It is submitted your function here is not to superimpose a regional council “wish list” on WDC’s

plan.

110 The District Council are fully aware of this hearing and understand the position with respect to

the ancillary consents mentioned above.

111 Quite apart from that jurisdictional boundary, the applicant accepts that the Department of

Conservation is appearing at this hearing in its role as advocate for ecology preservation and

biodiversity. As such, the position of its “experts” deserves scrutiny.

112 However from the applicant’s position, curious events unfold. On a reading of the DoC

evidence it appears that it represents a train of missed opportunities:

The original PNA surveys and their subsequent ongoing reviews “missed”

identification of this land – despite significant scientific rigor in the process.

The Waitaki Plan process set out ecological areas of importance – but missed these

areas;

The site specific tenure review, advocated that these areas of further irrigation lacked

conservation values worthy of further protection, and allowed them to be intensively

farmed.

113 All of these processes were ones that DoC was either running themselves, or they had

significant involvement in.

114 From an applicant’s perspective, their assumed interest in this project comes something as a

bolt from the blue. Given the rating that DoC now places on this land, they are at a loss to

explain, why this wasn’t raised earlier – and particularly so when the intentions from

freeholding were clearly defined.

115 It is submitted that these factors are highly relevant to your balancing process.

116 Aside from the issues of which plan is before this Council, s 6(c) sets out a separate matter for

consideration of ecology.

117 The evidence of Tim Ensor outlines the approach that the Regional Plans and the WDP have

taken with regards to ecology protection. These plans have been developed under the RMA,

and so it was a requirement that the protection of significant indigenous vegetation and

habitats of indigenous fauna be recognised and provided for.

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118 In a plan change process King Salmon indicated that if the Higher Order directives are clear,

there should be no need to resort to Part 2.

CONDITIONS

119 A set of conditions as proposed by BIC has been prepared, and are included with these

submissions as Appendix C. These conditions are drawn from the evidence of the experts

giving evidence at this hearing. These conditions are intended to be a working draft to be

adapted throughout the course of the hearing.

WHAT ARE ECAN AND THE COMMUNITY GAINING BY THE GRANT OF THIS CONSENT?

120 Through the variation it is submitted that BIC is placing its current consent up for review by

this panel. BIC are already conceding by the conditions pre-circulated, that adaptive

management of TLI lake levels will apply, not just to the new irrigation area but the whole

command area. Like other irrigators in the Upper Waitaki BIC will be brought in to line to

paying for lake water quality testing and the consequences of those tests.

121 Nutrient controls will be introduced into the BIC consent – based on Overseer. It is accepted

that through one way or another Overseer controls will be brought in to all of these farming

properties but this application does it in the preferred way by requiring an irrigation scheme to

manage nutrients and report to ECan as a scheme.

122 This application will ensure greater water efficiency. Farmers will need to watch their soil

moisture metering like a hawk because those parameters will set in place when irrigators can

be turned on. At present there are no controls in that area.

123 The application also sets in train a process for weed and pest control. Wilding Pines are

identified as a major threat to ecology whilst perhaps not relevant to your consideration further

irrigation provides the financial impetus for control.

124 The application identifies gains in water quality in the sensitive water catchments.

125 The application will prevent further soil losses sustaining the life supporting value of soils as a

responsibility of the Regional Council.

126 Lastly, the conditions proposed by the applicant will take the Benmore consent from a rather

uncontrolled irrigation regime to one with significant management and water quality controls.

127 Having regard to the mitigation measures, it is submitted that this application should be

granted.

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Dated 10 October 2016

______________________________

Ewan Chapman / Jamie Robinson

Counsel for Benmore Irrigation Company

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Final Recommended Conditions BIC

CRC156319 – Water Permit

Expiry date: 17 February 2034

1. Water shall be only diverted and/or taken from the Ohau River at or about map reference Topo50 BZ15:5888-9329.

2. The rate at which water is diverted and or taken shall not exceed 4,000 litres per second.

3. The total volume of water diverted and/or taken shall not exceed 51,626,000 cubic metres in any period from 1 September to 31 May in the following year.

4. Water shall be only used for the irrigation of up to 7,658 hectares of land and stockwater as shown on Plan CRC156319, attached to and which forms part of this consent.

5. The diversion and/or taking of water shall cease whenever the flow in the Ohau River as estimated by the Canterbury Regional Council at a site immediately downstream of the intake falls below 8,000 litres per second.

6. Meridian Energy Limited, or its successor, shall be notified of the intention to divert or take water during the months of September or May, including the intended rate and duration, at least seven days before the first day of those months, provided that if neither the diversion nor the take exceeds 2000 litres per second then two days’ notice shall be required.

7. Within one month following the grant of this consent the Canterbury Regional Council shall be provided with:

a. The names of the owner(s) and the legal descriptions of the properties ("the properties") to be supplied with water for irrigation purposes listing the existing irrigated area (under CRC981619.1); and

b. One month prior to the commencement of irrigation on any areas which did not have existing irrigation at the grant of this consent, the Canterbury Regional Council will be provided with information outlining the new areas to be irrigated; and

c. Details of the maximum rate (in litres per second), hours to take per design return period, maximum area (in hectares) to be irrigated, and the irrigation method to be utilised on the properties. All new irrigation after 29/9/2016 shall be restricted to spray irrigation.

8. Water metering – taking of water

The consent holder shall, within one month of the commencement date of this consent, provide records to the Canterbury Regional Council showing that the following metering has been installed at the point of take:

a. A water measuring device in a location that will enable the determination of the continuous rate of flow and volume of water being diverted to within an accuracy of 10 percent.

i. The water measuring device shall, as far as is practicable, be installed at a site likely to retain a stable relationship between flow and water level. The measuring device shall be installed in accordance with the manufacturer’s instructions.

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b. a tamper-proof electronic recording device such as a data logger(s), which is telemetered, as specified in clause (c).

c. The recording device(s) shall be connected to a telemetry system which collects and stores all of the data continuously with an independent network provider who will make that data available in a commonly used format at all times to the Canterbury Regional Council and the consent holder.

d. The water measuring and recording devices described in clauses (a) and (b) shall be available for inspection at all times by the Canterbury Regional Council, including access to the data recorded in accordance with clause (c).

e. All data from the recording device described in clause (b), and the corresponding relationship between the water measuring device (a(i)), shall be provided to the Canterbury Regional Council annually in the month of June.

9. Within six months of the installation of the water measuring or recording device(s), specified in condition 8, or any subsequent replacement water measuring recording device(s), or at any time when requested by the Canterbury Regional Council, the consent holder shall provide an installation and commissioning demonstrating by means of a clear diagram, that:

a. the water measuring and recording device(s) is installed in accordance the manufacturer’s specifications; and

b. data from the recording device(s) can be readily accessed and/or retrieved in accordance with condition 14(d) above.

10. All practicable measures shall be taken to ensure that the water meter and recording device(s) specified in Condition 8 are at all times fully functional and have an accuracy standard of ten percent.

11. At five yearly intervals or at any time when requested by the Canterbury Regional Council, the consent holder shall provide a certificate to the Canterbury Regional Council, attention: RMA Compliance and Enforcement Manager, signed by a suitably qualified person certifying that:

a. The water meter(s) is measuring the rate of water taken as specified in Conditions 8 to 13 inclusive; and

b. The tamper-proof electronic recording device is operating as specified in Conditions 8 to 13 inclusive.

12. Soil Moisture Management

Irrigation shall not occur if:

a.

i. the soil moisture content of the top 60 cm of soil exceeds 95% of the

profile available water; or

ii. the application of irrigation water results in the top 60 cm of soil

exceeding 95% of the profile available water; and

b. Soil measurement measuring and recording devices are not installed and

operated in accordance with Conditions 13 and 14 below.

13. Before the exercise of this consent, the Consent Holder shall provide to the

Canterbury Regional Council, Attention: Regional Manager, RMA Monitoring and

Compliance, signed by a suitably qualified soil expert, a report detailing the location

and profile available water capacity of each of the different types of soils to be

irrigated in accordance with this consent.

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14. The Consent Holder shall ensure that soil moisture measuring device(s) (tapes or probes) and recording devices are installed and operated to measure compliance with Condition 12. At a minimum, the soil measurement and recording devices installed and operated shall:

a. include electronic recording device such as a data logger(s) which

records with a time stamp a pulse from the soil moisture meter at least once every 60 minutes.

b. store the entire season’s data in each 12-month period from 1 July to 30 June in the following year, which the consent holder shall then download and store in a commonly used format; and

c. be connected to a telemetry system which collects and stores all of the data continuously with an independent network provider who will make that data available in a commonly used format at all times to the Canterbury Regional Council on request and the consent holder.

d. be installed and operated in accordance with the manufacturer’s instructions.

15. Within one month of the installation of any soil moisture measuring or recording device(s) or any subsequent replacement soil measurement and recording device(s), and at five-yearly intervals thereafter, and at any time when requested by the Canterbury Regional Council in response to findings of the Annual Report required by Condition 16, the consent holder shall provide a certificate to the Canterbury Regional Council, Attention: Regional Manager, RMA Monitoring and Compliance, signed by a suitably qualified person certifying that the soil measurement and recording devices have been located, installed in a manner that is appropriate for the purposes of measuring compliance with Condition 12 and is in accordance with Condition 14.

16. The Consent Holder shall provide by 30 September every year, an annual report to the Canterbury Regional Council, Attention; RMA Monitoring and Compliance Manager for the purposes of demonstrating compliance with Condition 12 and as a minimum, shall:

a. identify the areas irrigated in the past year and the profile available water of

those soils ; b. summarise and interpret all data collected as required by Condition 14 of

this consent and analyse the information in terms of compliance with Condition 12;

c. compare results obtained over the reporting period with the results obtained from previous reporting periods;

d. report and discuss any operational difficulties, changes or improvements that should be made to ensure compliance with Condition 12; and

e. list any maintenance or replacement to soil moisture measuring or recording device(s) needed to ensure compliance with the Conditions 12 and 14.

17. Fish & Game New Zealand - Central South Island Region, Te Runaka o Arowhenua, Te Runaka o Moeraki and Te Runaka o Waihao ("Papatipu Runaka") and Te Runanga o Ngai Tahu shall be given at least seven days’ notice of dewatering in the main race.

18. All practicable measures shall be taken to minimise water losses from the irrigation races.

19. The consent holder shall surrender CRC981619.1 before first exercise of this consent.

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20. Nutrient Loading

For the purposes of interpretation of the conditions of this consent the Irrigation Scheme Area shall be defined as the areas shown in Plan CRCxx[scheme command area]

21. Nitrogen and phosphorus losses from farm activities to be undertaken in the forthcoming year are not to exceed those resulting from the farming activities described in the Overseer input file:

1. The Overseer input file is defined as “TRIM no [to be inserted]” attached to and forming part of this consent.

2. ‘Forthcoming year’ means the period 1 July to 30 June.

22. a. Using the Overseer input file referred to in condition 21, a report shall be

prepared not less than one month prior to the commencement of the irrigation season, calculating the losses of nitrogen and phosphorus under the latest version of the Overseer model and these losses shall be referred to as the Nutrient Discharge Allowance (“NDA”).

i. Except that if the same version of Overseer has been submitted previously in relation to this consent then no report is required under condition 22(a).

b. Where the NDA is to be reduced by the application of an Adaptive Management condition, the reduced NDA shall apply.

Advisory note: The conditions of this consent do not specify the quantity (kg/annum) amount of nitrogen or phosphorus. Under version 6.2.2 of the Overseer model the NDA for the properties was calculated to be:

a. For properties (and parts of properties) within the Ahuriri Zone: i. 99,297 kg of nitrogen; and ii. 1,430 kg of phosphorus.

b. For properties (and parts of properties) within the Sensitive Lake Zone: i. 134,626 kg of nitrogen; and ii. 1,358 kg of phosphorus.

c. For properties (and parts of properties) within the Haldon Zone: i. 65,199 kg of nitrogen; and ii. 148 kg of phosphorus.

The NDA of the BIC scheme is 299,122 kg of nitrogen and 2,936 kg of phosphorus.

Later versions of Overseer (using the same input TRIM files) may produce a different value for the NDA.

23. a. A report shall be prepared not less than one month prior to the commencement

of the irrigation season, demonstrating losses of nitrogen and phosphorus from farming activities to be undertaken in the forthcoming year do not exceed the NDA.

b. Losses of nitrogen and phosphorus shall be calculated using the latest version of the Overseer model.

c. Annual irrigation shall not commence until a certificate is produced by the

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person completing the modelling confirming that the modelling demonstrates calculated losses of nitrogen and phosphorus do not exceed the NDA.

24. A copy of the reports and certificate prepared under conditions 22 and 23 shall be given to the Canterbury Regional Council, Attention: RMA Compliance and Enforcement Manager within one month of their completion.

25. Where Overseer, or Overseer modelling, is referred to for the purposes of calculating or determining compliance with the NDA limits associated with activities on the property, it shall be undertaken by an independent person with an Advanced Sustainable Nutrient Management Certificate issued by Massey University or an equivalent qualification

26. The consent holder shall at all times comply with the Scheme Environmental Management Plan (SEMP) for Benmore Irrigation Company. The SEMP will be supported by individual Farm Environmental Management Plans (FEMPs).

27. a. The consent holder shall implement the SEMP, and the SEMP shall be updated

as necessary to reflect any changes in the farming operation over time. A copy of any updated SEMP shall be provided to the Canterbury Regional Council; Attention: RMA Compliance and Enforcement Manager and shall include:

i. Reference to the Industry Agreed Good Management Practices relating to water quality in accordance with the document dated 18 September 2015.

ii. A property specific environmental risk assessment (including a description of the risks to water quality arising from the physical layout of the property and its operation which are not factored in as an Overseer parameter) prepared by a suitably qualified person which identifies any farm specific environmental risks along with measures to mitigate the farm specific environmental risks.

iii. A requirement to review the risk assessment if there are any significant changes in land use practice.

b. The SEMP will also assist to implement the following objectives:

i. Nutrient management: To maximise nutrient use efficiency while minimising nutrient losses to water;

ii. Irrigation management: To operate irrigation systems efficiently and ensure that the actual use of water is monitored and is efficient;

iii. Soils management: To maintain or improve the physical and biological condition of soils in order to minimise the movement of sediment, phosphorus and other contaminants to waterways;

iv. Collected animal effluent management: To manage the risks associated with the operation of effluent systems to ensure effluent systems are compliant with the conditions of this resource consent, and any other requirements, 365 days of the year;

v. Livestock management: To manage wetlands and water bodies so that stock are excluded from water, except as specifically provided for by conditions of this resource consent to avoid damage to the bed and margins of a water body, and to avoid the direct input of nutrients, sediment, and microbial pathogens; and

vi. Offal pits: to manage the number and locations of pits to minimise risks to health and water quality.

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and

any updated SEMP shall not be implemented until written notice is received from the consent authority that the updated SEMP complies with sub-clauses (b) of this condition.

28. Changes may be made to the BIC Overseer model inputs, provided that written certification is provided that the change is modelled using Overseer, and that the result of that modelling demonstrates that the NDAs are not exceeded. A copy of that certification plus a copy of the resultant Overseer parameter report shall be provided to the Canterbury Regional Council, Attention: RMA Compliance and Enforcement Manager, prior to the implementation of that change.

29. The consent holder's compliance with, and implementation of the SEMP shall be audited every year.

30. The audit required by condition 29 of this resource consent shall be undertaken by an independent Farm Environment Plan Auditor as defined in the Canterbury Regional Land and Water Plan and shall include:

a. An assessment of the scheme’s performance against the management objectives and targets.

b. An assessment of the SEMP’s compliance with the conditions of this resource consent.

c. An assessment of the level of confidence in the nutrient budget results.

An assessment of the overall robustness of the management programme to manage identified risks.

31. Irrigation Infrastructure

The consent holder shall ensure that all new irrigation infrastructure from the commencement of this consent (i.e. excluding irrigation infrastructure put in place under consent CRC981619.1) is:

a. Designed and certified by a suitably qualified and experienced expert in accordance with the Irrigation New Zealand ‘Code of Practice for the Design of Irrigation Systems in New Zealand, October 2012’ and ‘Design Standards for Irrigation Systems in New Zealand, October 2012’. Copies of certified design documents shall be provided to the Canterbury Regional Council upon request; and

b. Tested by a suitably qualified and experienced expert within 12 months of the first installation of the new irrigation infrastructure and every five years thereafter in accordance with the ‘Irrigation Evaluation Code of Practice, February 2006, Revised April 12 April 2010’.

32. Within two months of the testing referred to in Condition 31(b) the expert shall prepare a report outlining their findings and shall identify any changes needed to comply with the code of practice. Any such changes shall be implemented within five years from the date of the report. A copy of the report shall be provided to the Canterbury Regional Council Attention: RMA Compliance and Enforcement Manager, within three months of the report being completed.

33. Cultural Monitoring

Within three months of the commencement of this consent, the consent holder shall invite Ngai Tahu to form a Kaitiaki Advisory Group. The purpose of the Kaitiaki

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Advisory Group is to:

a. Facilitate discussion and free flow of information between the consent holder and Ngai Tahu on the cultural effects of the activities authorised by this consent;

b. To enable monitoring, by Tangata Whenua, of the environmental and cultural effects of the activities authorised by this consent;

c. To provide recommendations to the consent holder and the Canterbury Regional Council on cultural effects of the activities authorised by this consent;

d. To discuss any other relevant matters that may be agreed by the Kaitiaki Advisory Group.

34. The consent holder shall at the request of Ngāi Tahu convene a meeting, not more than once a year, with representatives of the Canterbury Regional Council and Ngai Tahu (including the Kaitiaki Advisory Group) to discuss any matter relating to the exercise and monitoring of this consent.

35. Where requested, the consent holder shall provide a written invitation to the members of the Kaitiaki Advisory Group at least 10 working days before the proposed meeting is to be held.

36. The meetings referred to in condition 35 shall be held at a convenient location as agreed by the Kaitiaki Advisory Group.

37. Adaptive Management Conditions

The water quality of the Ahuriri Arm and the Haldon Arm of Lake Benmore, the Wairepo Arm of Lake Ruataniwha, Kelland Pond and Lower Lake Benmore shall be monitored in accordance with this condition from the date water is taken under this consent as follows

a. Locations: i. Ahuriri Arm, Map reference: NZMS 260 H39:8027-2667 ii. Haldon Arm, Map reference: NZMS 260 H39:8823-3531 iii. Wairepo Arm NZTM E 1366937 N 5090850 (NZMS H38 769 525 iv. Kelland Pond NZTM E 1378279 N 5090899 (NZMS H38 759 525 v. Lower Lake Benmore, Map reference: NZMS 260 H39:8802-2371

b. Depths: depth integrated 0-10m c. Water quality variables:

i. Total nitrogen; ii. Total phosphorus; iii. Chlorophyll a.

d. Calculated key water quality variable: Trophic Lake Index (TLI), using the following equations:

i. TLc = 2.22 + 2.54 log (chlorophyll a); ii. TLp = 0.218 + 2.92 log (total phosphorus); iii. TLn = -3.61 + 3.01 log (total nitrogen); iv. TLI = Σ (TLc + TLp + TLn)/3.

e. Frequency of monitoring: Once per month from 01 December to 30 April each year, with a minimum of three weeks between sampling.

f. Methods: The methods of sampling and analysis shall be those that are generally accepted by the scientific community as appropriate for monitoring

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lake water quality. The methods of sampling shall be documented and made available to the Canterbury Regional Council on request.

g. The water quality monitoring shall be undertaken by a suitably qualified and/or experienced person who demonstrates that they understand the appropriate methods to use for lake water quality sampling, including depth integrated sampling, and preservation of samples. That person shall certify in writing that each batch of samples has been sampled and preserved in accordance with generally accepted scientific methods. A copy of those certifications and the person’s qualifications shall be provided to the Canterbury Regional Council on request.

h. The laboratory undertaking analyses shall be accredited for those analyses by International Accreditation New Zealand (IANZ) or an equivalent accreditation organisation that has Mutual Recognition Agreement with IANZ and shall be capable of analysing the variables listed in subparagraph c above with detection limits generally recognised by the scientific community as appropriate for oligotrophic lakes.

i. The results of all sampling including the calculated average summer TLI, shall be provided to the Canterbury Regional Council Attention: RMA Compliance and Enforcement Manager by 30 May each year. This shall include copies of reports from the laboratory that undertook the analyses.

38. If the monitoring undertaken in accordance with Condition 37 shows that the average TLI [fixed in accordance with a three year rolling average as ascribed by the Plan] for the 1 - 10 m depth integrated samples for either the Ahuriri Arm monitoring site, the Haldon Arm monitoring site or the Lower Benmore monitoring site Wairepo Arm or Kelland Pond monitoring site over the period December to April is greater than 2.75 (early warning trigger) [3.75 for Wairepo Arm or Kelland Pond] , then:

a. The NDA within the relevant zone (i.e. the zone within which the exceedance of the trigger has occurred), as specified in Condition 20, shall be reduced by 5% x Irrigation Proportion Factor (IPF) for the irrigation season subsequent to the monitoring period. The IPF shall be the proportion of the area within the relevant zone authorised for irrigation under this resource consent divided by the total scheme area within the relevant zone; and

b. Unless the TLI corrects to be below the early warning trigger as a result of subsequent testing, then the reduction of 5% shall continue for an initial period of 3 years [the first NDA reduction].

c. A report into the cause of the breach of the environmental standard trigger shall be prepared by a person with an appropriate post-graduate science qualification, by 30 July following the sampling. A copy of this report shall be provided to the Canterbury Regional Council Attention: RMA Compliance and Enforcement Manager, by 30 August following the sampling. The impact of this report is set out below.

39. If a reduction in nutrient loading is required under Condition 38(a) and monitoring in the period that that reduction applies shows that the average TLI for the 1 – 10 m depth integrated samples for the monitoring site over the period December to April:

a. Continues to be greater than 2.75 but does not exceed 3.0 then there shall be a further NDA reduction of 5% x IPF for the subsequent irrigation season, up to a maximum of three irrigation seasons (the second 15% reduction over 3 years ), or until the revised NDAs are equal to Good Management Practice, whichever is the greater.

Is less than or equal to 2.75, then for the subsequent season the full NDA for the

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scheme, as specified in Condition 20 shall be restored.

40. If the TLI for the 1 – 10m depth integrated samples for the monitoring site over the period December to April continue to be greater than 2.75, but less than 3.0, the consent holder is not required to make the second NDA reduction, until such a time that the Canterbury Regional Council determines that 75% by area of the nutrient loss from consented farming and aquaculture activities in the relevant catchment is occurring at GMP levels.

41. If a reduction in nutrient loading is required under Condition 38(a) and monitoring in the period that that reduction applies shows that the average TLI for the 1 – 10 m depth integrated samples for either the Ahuriri Arm monitoring site or the Lower Benmore monitoring site over the period December to April:

a. Is greater than 3.0 (environmental trigger) then there shall be a further NDA reduction of 5% x IPF for three subsequent irrigation seasons, or until NDA losses are less than GMP, whichever is the greatest, unless the consent holder has already undertaken reductions in accordance with Condition 39, and is operating at or below GMP.

b. The consent holder is not required to make any further reductions if the TLI level continues to be greater than the early warning trigger, or the environmental trigger, until such a time that the Canterbury Regional Council determines that 75% of the nutrient loss from consented farming and aquaculture activities is occurring at GMP levels.

c. Is less than or equal to 2.75, then for the subsequent season the full NDA for the property, as specified in Condition 20 shall be restored.

42. The nutrient load reductions and investigation referred to in Conditions 38 to 43 inclusive shall not be required if a two person expert scientist panel (with one expert nominated by the Canterbury Regional Council):

a. both conclude after considering all the relevant available information (including catchment resource consent compliance, SEMP compliance monitoring pertaining to this consent and audit reports made available by the Canterbury Regional Council) that the cause of the breach of the early warning trigger or environmental standard (as applicable) was unlikely to have been caused in whole or in part by nutrient loss associated with the irrigation authorised by this consent; or

b. Both agree that it is probable that sufficient nutrients have been removed from the system to meet the early warning trigger for the period of time (i.e. lag time) it calculates as being necessary for monitoring of the receiving environment to demonstrate a response to the change in nutrients. .

43. In addition to the monitoring required in Condition 38, the consent holder will also undertake additional monitoring at the following sites:

a. Surface water monitoring at Willowburn Stream at Quailburn Road, Upper Wairepo Creek at Pylons, Spring Creek at Omarama-Twizel Road, Wairepo Creek at Wairepo Arm; and

b. groundwater monitoring at two representative sites (to be identified), in each of the Wairepo and Willowburn aquifer zones.

44. The monitoring in Condition 43 will include the collection of the following data four times per year, with at least 2 months between samples:

a. Surface water monitoring includes: total nitrogen, nitrate-nitrite nitrogen, ammoniacal nitrogen, total phosphorus, dissolved reactive phosphorus, total

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organic carbon, E-coli, water temperature, dissolved oxygen, turbidity, pH and electrical conductivity.

b. Groundwater monitoring includes: total nitrogen, nitrate-nitrite nitrogen, ammoniacal nitrogen, dissolved reactive phosphorus, total alkalinity, E-coli, water temperature, pH and electrical conductivity.

All data will be made available to the Canterbury Regional Council yearly.

45. The Canterbury Regional Council may, once per year, on any of the last five working days of March or July serve notice of its intention to review the conditions of this resource consent under section 128(a) and 128(b) of the Resource Management Act 1991 for the purposes of:

a. Dealing with any adverse effect on the environment which may arise from the exercise of the resource consent and which it is appropriate to deal with at a later stage; or

b. Assessing the need for additional monitoring and/ or to adjust trigger levels and/or management responses in order to:

1. Avoid, remedy or mitigate adverse effects on the environment; and/or

2. Respond to relevant water quality targets/objectives included within the Waitaki and South Coastal Canterbury Sub-regional Chapter of the Canterbury Land and Water Regional Plan (once operative).

c. Dealing with advances in technology associated with nutrient budget modelling and/or farming methods and practices; or

d. Reviewing the frequency of monitoring, reporting, and nutrient budget modelling required by the conditions of this consent.

e. Dealing with any nutrient limits prescribed in the Waitaki and South Coastal Canterbury Sub-regional Chapter of the Canterbury Land and Water Regional Plan (once operative).

46. The consent holder shall:

i. Operate and maintain, a fish barrier across the intake to ensure that fish and fish fry are prevented from passing through the intake and from being trapped against the fish barrier;

ii. Ensure that the seepage velocity through the surface of the fish barrier shall not exceed 0.12 m/s;

iii. Should the intake to the fish barrier, installed in accordance with (a) above, not be drawing water directly from an active braid of the Ohau River, the consent holder shall ensure that an effective fish by-pass back to an active braid of the Ohau River is maintained with a continuous flow of at least five percent of the total diversion in the channel, and designed so that it encourages unimpeded fish passage through the bypass in both directions.

In the event of the fish barrier becoming damaged or ineffective, the consent holder shall:

i. Cease taking water until such time as the fish barrier is again operative; and ii. Undertake fish salvage in the event that fish are stranded in pools or channels

within the scheme; and iii. Within 24 hours of the failure of the barrier, notify the Canterbury Regional

Council, Attention: RMA Compliance and Enforcement Manager, of the situation and all remedial actions taken.

47. Biodiversity Management Plan (BMP)

The consent holder shall, at least six months prior to any new irrigation, prepare a BMP for all biodiversity offset and compensation work within areas of new irrigation.

6906326_1

The BMP shall be submitted to the Canterbury Regional Council for certification that it includes the matters and meets the objectives prescribed in Conditions 48 and 49.

48. The objective of the BMP shall be to demonstrate how the consent holder will mitigate, remedy and compensate for the adverse effects of irrigation on streams and indigenous biodiversity values, including but not limited to:

a. Rare and threatened species of native birds and plants; b. Native lizards; and c. Native vegetation communities.

49. The BMP shall set out in the methodologies and processes that will be used to achieve the objectives in Condition 48, and shall include, but not be limited to:

a. Relocation of species of significance; b. Fencing to exclude livestock from waterbodies; c. Native revegetation planting near waterbodies; d. Control of rabbits; e. Control of wilding trees; and f. Location of irrigation areas within sites BM1a, GB1 and GB2a in response to

the results of a survey of rare and threatened plants by a suitably qualified ecologist.

50. Lapse

The lapsing date for the purposes of section 125 of the Resource Management Act shall be 5 years from the commencement of this consent.

Advice Notes

When making applications to the Waitaki District Council and the Canterbury Regional Council for the additional resource consents required to implement the proposal, the Consent Holder shall ensure that those applications are consistent with, and that any controls are no less stringent than the conditions of this resource consent.

In relation to the lake monitoring required under Condition XXX, it is anticipated that all consent holders subject to this condition would coordinate and cooperate together to ensure that the lake water quality monitoring is undertaken and the costs of that monitoring is shared between those consent holders. The Canterbury Regional Council may provide resources to facilitate that coordination and recover the costs of that facilitation from the relevant resource consent holders as a cost of supervising and administering the resource consents. Any non-compliance with water quality monitoring requirements would be a matter for all relevant consent holders and may be the subject of enforcement proceedings. . .

Because this consent authorises the take and use of water only if any other consents are required from either the Regional or District Council, including consents for indigenous vegetation clearance, they must be sought and obtained before giving effect to this consent.

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Printed: Thursday, 13 October 2016

Record Number: CRC981619.1

Key Dates:Event DateCommencement Date 13 Jun 2008Given Effect To 01 Jan 2005Lapses 01 Feb 2005Expires 17 Feb 2034

Workflow (Only shows if workflow has open tasks):

Conditions:No Text1 The rate at which water is diverted and or taken shall not exceed 4,000 litres per second.

2 The total volume of water diverted and/or taken shall not exceed 51,626,000 cubic metres in any period from 1 September to 31 May in the following year.

3 The diversion and/or taking of water shall cease whenever the flow in the Ohau River as estimated by the Canterbury Regional Council at a site immediately downstream of the intake falls below 8,000 litres per second.

4 The Electricity Corporation of New Zealand Limited, or its successor, shall be notified of the intention to divert or take water during the months of September or May, including the intended rate and duration, at least seven days before the first day of those months, provided that if neither the diversion nor the take exceeds 2000 litres per second then two days notice shall be required.

5 Prior to the commencement of the diversion and/or take the Canterbury Regional Council shall be provided with:

a. The names of the owner(s) and the legal descriptions of the properties ("the properties") to be supplied with water for irrigation purposes;

b. Details of the maximum rate (in litres per second), hours to take per design return period, maximum area (in hectares) to be irrigated, and the irrigation method to be utilised on the properties;

c. Confirmation that the irrigation practices to be utilised on the properties will represent an efficient use of water as described in the consent application.

Record Number:Record Type:Permit Type:

Record Holder:Record Status:

File Number:Previous Record(s):

Next Record(s):Location:

Description:

CRC981619.1Notice of ReviewWater Permit (s14)Benmore Irrigation Company LimitedIssued - ActiveCO6C/11786CRC981619

Ohau River 3km Downstream Of Lake Ohau, TWIZELTo divert and/or to take water from the Ohau River from a point approximately three kilometres downstream of Lake Ohau, at or about map reference NZMS 260 H38:688-549, for spray and border dyke irrigation of up to 4,000 hectares of pasture.

Task Name Task Status Task Status Date

Printed: Thursday, 13 October 2016

Record Number: CRC981619.1

6 When requested in writing by the Canterbury Regional Council, the rate at which water is taken shall be measured to within an accuracy of 10 percent, and the measurement and the hours during which water is taken shall be recorded. A copy of the records shall be provided to the Canterbury Regional Council in accordance with the request.

7 The diversion and/or taking of water in terms of this permit shall cease for a period of up to 48 hours on notice from the Canterbury Regional Council, to allow measurement of the flow in the Ohau River.

8 Fish & Game New Zealand - Central South Island Region, Te Runaka o Arowhenua, Te Runaka o Moeraki and Te Runaka o Waihao ("Papatipu Runaka") and Te Runanga o Ngai Tahu shall be given at least seven days notice of dewatering in the main race.

9 All practicable measures shall be taken to minimise water losses from the irrigation races.

10 The Canterbury Regional Council may, on the last working day of February each year, serve notice of its intention to review the conditions of the consent for the purposes of:

a. Dealing with any adverse effect on the environment which may arise from the exercise of the consent and which is appropriate to deal with at a later stage; including:

i. requiring the installation of a fish screen on the intake of the main race, and on secondary races; or

ii. requiring the undertaking of measures to reduce or avoid adverse effects arising from the inefficient use of water; or

b. Complying with the requirements of a relevant rule in an operative regional plan.

11 The consent holder may apply to the Canterbury Regional Council during the month of September in any year for a change to condition (2).

12 Charges, set in accordance with section 36 of the Resource Management Act 1991, shall be paid to the Regional Council for the carrying out of its functions in relation to the administration, monitoring and supervision of resource consents and for the carrying out of its functions under section 35 of the Act.

13 a. The consent holder shall:

a. within three months of this condition becoming operative, install, and at all times thereafter operate and maintain, a fish barrier across the intake to ensure that fish and fish fry are prevented from passing through the intake and from being trapped against the fish barrier;

b. ensure that the seepage velocity through the surface of the fish barrier shall not exceed 0.12 m/s;

c. submit design plans to Environment Canterbury at least one month prior to construction which demonstrate that items (i) and (ii) above will be achieved;

d. notify the Canterbury Regional Council, Attention: RMA Compliance and Enforcement Manager, not less than 48 hours prior to the commencement of works to install or maintain the fish barrier;

e. prior to commissioning provide a certificate from a suitably qualified person confirming that construction has occurred in accordance with the design specified in item (iii) above.

a. Should the intake to the fish barrier, installed in accordance with (a) above, not be drawing water directly from an active braid of the Ohau River, the consent holder shall ensure that an effective fish by-pass back to an active braid of the Ohau River is maintained with a continuous flow of at least five percent of the

Printed: Thursday, 13 October 2016

Record Number: CRC981619.1

total diversion in the channel, and designed so that it encourages unimpeded fish passage through the bypass in both directions.

b. In the event of the fish barrier becoming damaged or ineffective, the consent holder shall:

i. cease taking water until such time as the fish barrier is again operative; and

ii. undertake fish salvage in the event that fish are stranded in pools or channels within the scheme; and

iii. within 24 hours of the failure of the barrier, notify the Canterbury Regional Council, Attention: RMA Compliance and Enforcement Manager, of the situation and all remedial actions taken.

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