REPORT BY CHANCERYGREEN (INDEPENDENT FACILITATORS) REGARDING EXPERT CONFERENCING

Transcription

1 BEFORE A SPECIAL TRIBUNAL IN THE MATTER OF the Resource Management Act 1991 ( RMA ) AND IN THE MATTER OF an application for a Water Conservation Order by Ngāti Tama Ki Te Waipounamu Trust and Andrew Yuill in respect of Te Waikoropupū Springs and associated water bodies REPORT BY CHANCERYGREEN (INDEPENDENT FACILITATORS) REGARDING EXPERT CONFERENCING 12 APRIL 2018 ChanceryGreen PO Box 47516, Ponsonby

2 REPORT Subject: To: From: Expert conferencing: Water Conservation Order application - Te Waikoropupū Springs and associated water bodies The Special Tribunal ChanceryGreen (independent facilitators for expert conferencing) Date: 12 April 2018 Introduction 1. ChanceryGreen was engaged by the Environmental Protection Authority ( EPA ) on 6 April 2018 to provide independent facilitation services for expert conferencing for the application by Ngāti Tama Ki Te Waipounamu Trust and Andrew Yuill for a Water Conservation Order in respect of Te Waikoropupū Springs and associated water bodies. 2. This report documents the expert conferencing that was undertaken and annexes the Joint Witness Statements produced from each conference. Conferencing undertaken 3. The following expert conferences were undertaken: Subject Date and time Experts attending Facilitator Planning Monday 9 April pm 3pm Simon Beale (Applicant) Christina Robb (Tasman District Council) Luke Faithfull (Trustpower) Dean Chrystal (Ravensdown) Chris Simmons, ChanceryGreen Ecology Monday 9 April pm 3.30pm; and Wednesday 11 April am-11am Dr Graham Fenwick (Applicant) Dr Roger Young (Tasman District Council) Dr Philippe Gerbeaux (Director General of Conservation) Jason ChanceryGreen Welsh, Hydrology Tuesday 10 April am 2.35pm Professor Paul Williams (Applicant) Joseph Thomas (Tasman District Council) Hillary Lough (Fonterra) Annabeth Cohen (Forest and Bird) Peter Lilley (Trustpower) Steve Mutch, ChanceryGreen 1

3 Water Tuesday 10 April 2018 Dr Chris Hickey (Tasman District Council) Chris Simmons, Quality 10am 1.15pm Andrew Fenemor (Tasman District Council) ChanceryGreen Dr John Russell (Fonterra) Klaus Thoma (Personal) [Jan Riddell 1 (New Zealand Conservation Authority) elected not to attend the conference; and Dr Mike Stewart 2 (Tasman District Council) was overseas and unavailable to attend] Joint Witness Statements 4. We have annexed to this report the Joint Witness Statements produced from the expert conferences: (a) The Planning Joint Witness Statement is attached as Annexure A. (b) The Ecology Joint Witness Statement is attached as Annexure B. (c) The Hydrology Joint Witness Statement is attached as Annexure C. (d) The Water Quality Joint Witness Statement is attached as Annexure D. 5. In the case of the Hydrology Joint Witness Statement, due primarily to timing constraints it was necessary to include as an annexure to the Joint Witness Statement a memorandum from one of the experts setting out where her opinion diverges from those recorded in the body of the Joint Witness Statement. 3 That memorandum was reviewed by all other Hydrology experts prior to finalisation of the Hydrology Joint Witness Statement, and forms part of the Joint Witness Statement. The conferencing process 6. The Special Tribunal Minute and Directions dated 6 April 2017 set out the experts directed by the Special Tribunal to undertake conferencing, and the conference subject areas. Before the conferences, ChanceryGreen circulated to the conferencing experts (or counsel, where instructed) the memorandum attached as Annexure E. The purpose of the memorandum was to outline the conferencing processes and timetables, to promote effective and efficient expert conferencing. Conferences were carried out by way of teleconference. 1 Ms Riddell advised us by dated 10 April 2018 that she would not be attending the Water Quality expert conference. 2 Counsel for Tasman District Council, Mr Thomsen, advised us by dated 7 April 2018 that Dr Stewart would not be attending the Water Quality expert conference because he was overseas and unavailable. 3 Or clarifying which expert(s) she agrees with, where several positions are recorded in the body of the Joint Witness Statement. 2

4 Issues raised regarding certain witnesses 7. For completeness, we record that following the Special Tribunal s Minute and Directions dated 6 April 2018 counsel for Tasman District Council, Mr Thomsen, raised issues concerning several witnesses (being Mr Thoma, Ms Riddell, and Mr Russell) with respect to the application of the Environment Court Practice Note (2014). 4 We invited the relevant parties to provide clarification, but advised that it was not our role to exclude from conferencing those parties who had been directed by the Special Tribunal to attend. 5 Mr Thoma, and Mr Russell (through counsel), provided some clarification in response to the issues raised by Mr Thomsen. As noted in the table above, on 10 April 2018 Ms Riddell advised us that she had elected not to attend the Water Quality conference. Mr Thomsen did not pursue the matter further. Conclusion 8. ChanceryGreen thanks all the experts for undertaking conferencing in a professional manner. We also thank the EPA staff for their practical assistance. ChanceryGreen Chris Simmons (Partner) Chris Simmons DDI: chris.simmons@chancerygreen.com 4 from Mr Thomsen to the parties dated 7 April s from ChanceryGreen to the parties dated 8 and 9 April

5 ANNEXURE A: PLANNING JOINT WITNESS STATEMENT

6 SPECIAL TRIBUNAL WATER CONSERVATION ORDER: TE WAIKOROPUPŪ SPRINGS AND ASSOCIATED WATER BODIES IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER of a Special Tribunal appointed under s202 of the Resource Management Act 1991 to consider an application for a Water Conservation Order made by Ngāti Tama Ki Te Waipounamu Trust and Andrew Yuill (the applicants) in relation to the Te Waikoropupū Springs and associated water bodies TRIBUNAL Camilla Owen (Chair) Kevin Prime Bob Dickinson Jon Harding Lew Metcalfe EXPERT CONFERENCING JOINT WITNESS STATEMENT TO THE SPECIAL TRIBUNAL TOPIC: PLANNING DATE: 11 APRIL 2018 Expert conferencing joint report to the Special Tribunal INTRODUCTION 1. This joint signed report is written in response to the Tribunal s Minute and Direction 01 (refer to Paragraph 2 of that Minute and Direction requires that experts seek to identify and reach agreement with the other expert witness(es) on the issues/matters within their field of expertise. As soon as practicable following the close of conferencing, the EPA should be provided with a signed joint witness statement that includes: the issues/matters on which the expert witnesses agree; the issues/matters on which they do not agree, and the reasons for their disagreement. 2. This joint witness statement relates to the conferencing topic of planning. 3. A conferencing meeting was held on 9 April Participants were:

7 2 Christina Robb - Director, Happen Consulting Limited (for Tasman District Council) Dean Chrystal - Director, Planz Consultants Limited (for Ravensdown Limited) Luke Faithfull - Senior Consultant, Mitchell Daysh Limited (for Trustpower Limited) Simon Beale - Director, Beale Consultants Limited (for the Applicant) 5. In preparing this statement, the experts have read and understood the Code of Conduct for Expert Witnesses as included in the Environment Court of New Zealand Practice Note TOPICS ADDRESSED Schedule 3 of the draft WCO. National Policy Statement for Freshwater Management, National Policy Statement for Renewable Electricty Generation, and New Zealand Coastal Policy Statement Exemptions for Cobb Hydropower Scheme Clause 12 of the draft WCO Schedule 4 of the draft WCO Schedule 5 of the draft WCO Needs of Primary and Secondary Industries FLAG process KEY FACTS & ASSUMPTIONS 6. The witnesses acknowlege the uncertainty about the extent of the recharge zone and the boundary where the Arthur Marble Quifer becomes confined. 7. Ms Robb and Mr Beale agreed that the New Zealand Coastal Policy Statement is relevant to the application. 8. Mr Beale confirmed that the applicants revised draft WCO (contained as Annex 2 to Mr Beale s evidence) is the version to be used for conferencing. 9. The witnesses agree that the NPSREG is relevant to the current and future operation of the Cobb Hydropower scheme. 10. Mr Faithfull stated that the intention of the exemptions sought by Trustpower is to ensure the current and future operations are provided for while protecting the values that the WCO is seeking to recognise and sustain under Section 199 of the Act. This approach this is consistent with the effects of a WCO as identified in section 217 of the Act. 11. Mr Faithfull noted that in accordance with section 217 of the Act, any WCO granted cannot inhibit Trustpower s current consented operations of the Cobb hydropower scheme. 12. The witnesses agreed that the limits in Schedule 4 are absolute and represent prohibitions. 13. With respect to Schedule 4, the witnesses agreed that a WCO cannot contain trigger values.

8 3 14. Ms Robb spoke of the importance of the FLAG process in addressing the needs of the community but noted that the outcomes from the process have yet to be formalised. The other witnesses were in agreement with Ms Robb. AREAS THAT HAVE BEEN RESOLVED 15. The witnesses agree that the Te Waikoropupu Springs are outstanding according to the values, characteristics and features listed in Schedule 2. Ms Robb wishes to draw attention to the witnesses preference, with the exception of Mr Beale, of describing the outstanding characteristics and features in the line with those specified in NPSFM, as noted at paragraph The witnesses agree that the scheduled and contributing waters are not in a natural state owing to for example, the influence of the Cobb Hydropower scheme (Cobb HEPS) on the Takaka River. 17. The witnesses agree that the spring water quality as it relates to Clause 9 is better defined as solely water quality given the confusion this creates with respect to aligning with the Schedule 4 limits. 18. The witnesses agreed that any new activties will need to demonstrate that they can comply with any limits contained within the WCO if granted. 19. The witnesses agreed that Clause 3 should include a specific definition for Trustpower s Cobb HEPS based on the definition provided at paragrapgh of Mr Faithfull s evidence. 20. The witnesses agreed that the WCO should contain an additional clause providing for a specific exemption for Trustpower s Cobb HEPS, for both current and future operations, in accordance with the recognition of the importance of the Cobb HEPS in the National Policy Statement for Renewable Electricty Generation and the Tasman Resource Management Plan. The exemption clause provided in paragraph of Mr Faithfull s evidence was to be put forward to the Tribunal for consideration following commentary from the technical expert hydrology, on the appropriateness of the proposed Clause 13 d) and e) in recognising and sustaining the values the WCO is seeking to provide for. 21. Ms Robb was of the opinion that if limits are to be used the WCO needs to concentrate on a smaller list of parameters that are relevant to the outstanding values, and any risks to those values, to be effective. The witnesses agreed with this and further agreed that the parameters needed to be identified by the experts. Mr Beale considers that a smaller list of parameters should be limited to Schedule 5. AREAS THAT HAVE NOT BEEN RESOLVED Schedule 3 of the draft WCO 22. Mr Chrystal expressed concern as to whether the second part of Schedule 3 associated with the hydraulically connected groundwater should continue in the WCO as currently worded as it is quite broad in the way it is structured. It was noted that this might change depending on the outcome of caucusing associated with the boundary of the confined and unconfined AMA. 23. Ms Robb sought separate reference to the Waingaro River in the schedule.

9 4 24. Ms Robb questioned the validity of inclusion of the reach of the Waikoropupu River downstream of the Springs in the schedule since it does not contribute to the outstanding characterstics of the Springs. 25. The witnesses with the exception of Mr Beale agreed that the listed outstanding characteristics or features are best described in line with the values specified in the NPSFM. 26. Mr Chrystal questioned how an exceedance of the proposed limits at the Springs would be addressed in the contributing waters given the complexity of the hydrological system. Clause Mr Faithfull sought clarity around the activities that should be included under Clause 12(b) citing for example, activities associated with maintenance of the Cobb hydropower scheme. Ms Robb agreed that the clause needed to be more inclusive and specific in terms of the activities intended to be captured. 28. Ms Robb further stated that the clause as written assumes there can be no further allocation of water, and Clause 12 may need refining following the Special Tribunal s recommendation on allocation. 29. Ms Robb and Mr Chrystal emphasised the need to consider the wording carefully given the potential for new consenting regimes, for example associated with nutrient budgets, to come through the regional plan process. Schedule There was agreement that the technical experts water quality, needed to confirm that the Indictaors in Schedule 4 were appropriate for the purpose of sustaining the values of the WCO. 31. In order for a site specific limit intending to control activities within a wider catchment area, Mr Chystal and Mr Faithfull agreed that the limits need to be set to a degree that they protect the values of the WCO but also cannot be exceeded as it is likely not possible given the complexity of the system to identify where within the catchment the potential exceedance would be located. Mr Chrystal was also concerned that the setting of low limits for the springs would become the default position for the wider catchement given the not to be inconsistent requirement of the RMA. 32. Ms Robb, Mr Chrystal and Mr Faithfull agreed that the specified water quality limits would be better placed in the Regional Plan as this would be preferable from a planning perspective. This is a matter the Tribunal should explore further. Schedule Mr Chrystal, Mr Faithfull and Ms Robb sought removal of Schedule 5 from the draft Order. 34. Mr Chrystal questioned how setting trigger values could be correlated with the ANZEEC guidelines especially as the guidelines are currently subject to review, noting also that the guidelines do not represent mandatory standards. Needs of primary and secondary industries 35. Mr Faithfull cited the need for a degree of flexiblity of application of the WCO that provides for the status quo while ensuring the values of the WCO are protected. Mr Faithfull, Ms Robb and Mr Chrystal

10 5 indicated a preference for the regional management plan approach to specifying the water quality and quantity limits as limits within a WCO are absolute. 36. Ms Robb noted that it will be a matter for the Special Tribunal to consider whether protection of the WCO values warranted a prohibition on further abstractions. 37. Mr Chrystal questioned how the setting of a limit regime would impact on existing primary industry in the catchment given the information gaps apparent in the current planning framework. He considered there would be a need for a body of work looking at the existing catchment water quality and the approrpiatness of adopting any limits and emphasised the importance of assessing the impacts of the regime both economically and socially. 38. Mr Faithfull drew attention to Section 208 of the Act which allows the Tribunal the opportunity without undue time constraints to undertake further investigations such as the appropriateness of a limit approach. 39. Ms Robb emphasised the need for the WCO and the Regional Plan and WCO to work together noting that the Tribunal consideration of the WCO application is ahead of the TRMP review. This statement was supported by Mr Chrystal and Mr Faithfull. DATE: 11 APRIL 2018 Simon Beale Luke Faithfulll Dean Chrystal

11 6 Christina Robb

12 ANNEXURE B: ECOLOGY JOINT WITNESS STATEMENT

13 SPECIAL TRIBUNAL WATER CONSERVATION ORDER: TE WAIKOROPUPŪ SPRINGS AND ASSOCIATED WATER BODIES IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER of a Special Tribunal appointed under s202 of the Resource Management Act 1991 to consider an application for a Water Conservation Order made by Ngāti Tama Ki Te Waipounamu Trust and Andrew Yuill (the applicants) in relation to the Te Waikoropupū Springs and associated water bodies TRIBUNAL Camilla Owen (Chair) Kevin Prime Bob Dickinson Jon Harding Lew Metcalfe EXPERT CONFERENCING JOINT WITNESS STATEMENT TO THE SPECIAL TRIBUNAL TOPIC: AQUATIC ECOLOGY DATE: 11 APRIL 2018 Expert conferencing joint report to the Special Tribunal INTRODUCTION 1. This joint signed report is written in response to the Tribunal s Minute and Direction 01 (refer to Paragraph 2 of that Minute and Direction requires that experts seek to identify and reach agreement with the other expert witness(es) on the issues/matters within their field of expertise. As soon as practicable following the close of conferencing, the EPA should be provided with a signed joint witness statement that includes: the issues/matters on which the expert witnesses agree; the issues/matters on which they do not agree, and the reasons for their disagreement. 2. This joint witness statement relates to the conferencing topic of AQUATIC ECOLOGY. 3. A conferencing meeting was held on 9 April 2018 and re-convened on 11 April Participants were: epa1_epa1-6_005.docx

14 2 Dr Graham Fenwick, Principal Scientist, NIWA (for Ngāti Tama ki Te Waipounamu Trust and Andrew Yuill (Applicants) and Tasman District Council (Submitter)). Dr Roger Young, Freshwater Ecologist, Cawthron Institute (for Tasman District Council) Dr Philippe Gerbeaux, Senior Technical Advisor, Department of Conservation (for the Director General of Conservation) 5. In preparing this statement, the experts have read and understood the Code of Conduct for Expert Witnesses as included in the Environment Court of New Zealand Practice Note KEY FACTS & ASSUMPTIONS 6. Agriculture of differing intensities predominates along the Takaka Valley. This includes activities that access water for irrigation (e.g., horticulture, dairying) from surface streams and rivers, and from the underlying aquifers. We understand that there is demand for further water to be allocated. 7. We understand that the proposed Water Conservation Order covers all waters, including groundwaters, within the entire Takaka Valley catchment that contribute water to Te Waikoropupu Springs. 8. There are reasonably good data on the biodiversity and ecology of surface waters within the Takaka River catchment. Data on biodiversity of the springs basin are also considered to be reasonably good and reliable. 9. There are almost no data on Takaka aquifer biodiversity and groundwater ecosystems. Our understandings of these ecosystems is developed from a significant, albeit very incomplete, international literature and a small number of New Zealand studies on groundwater biodiversity and ecology, coupled with extrapolation from a much more comprehensive literature on surface water ecosystems. 10. Biodiversity and ecological information contained within Fenwick & Smith (2016) and the Science Panel report (Young et al. 2017) was agreed to be the most comprehensive and up to date sources. Dr Gerbeaux s evidence provides a useful source of biodiversity information on wetland and terrestrial plants and birds associated with the Te Waikoropupu Springs reserve. 11. Dr Gerbeaux s evidence for this hearing provides a useful summary of how the Spring basin s overall biodiversity is recognised nationally and internationally. 12. Groundwater ecosystems within the catchment s aquifers are considered to be responsible for removing contaminants, especially coloured organic matter, from groundwater prior to its discharge from the Springs. 13. We note that Dr Fenwick and Dr Young have a reasonably good knowledge of groundwater quality and water exchanges between the different aquifers and rivers, and that Dr Young is also familiar with surface water quality within the catchment. Dr Gerbeaux lacked much of this background. We understand other experts will be involved in caucusing on water quality and hydrology, and that some information relevant to sustaining biodiversity and ecosystem values may be missed by those caucuses because ecologists were unable to participate. epa1_epa1-6_005.docx

15 3 14. Surface water quality within the catchment was taken as generally good to high, with some localised lower water quality in the vicinity of Upper Takaka. IDENTIFICATION OF DIFFERENCES IN METHODOLOGY 15. We reiterate that there are good existing data on the biodiversity and functioning of surface water ecosystems within the catchment, whereas there are few equivalent data for the catchment s groundwater biodiversity and ecosystems. Statements about the catchment s groundwater ecosystem functioning and risks (much of Dr Fenwick s evidence) were developed from a significant (but incomplete) international literature on groundwater ecosystems, along with extrapolations from the fundamental principles of aquatic ecology. 16. Dr Young s evidence presented a widely used approach for determining safe environmental flows and water abstraction (allocation) limits to protect biodiversity and ecosystem values (in-stream values) for streams and rivers, as well as aquifers and springs, within the catchment. Dr Fenwick noted that he was unaware of any literature supporting such a methodology for setting environmental flows and abstraction limits for groundwaters, whereas there is a very extensive literature supporting its use for surface waters. Thus, Dr Fenwick considered that the methodology was untested and may be inappropriate for managing groundwater ecosystems, and that this matter requires more detailed consideration. 17. Dr Gerbeaux used the Department of Conservation s system for identifying biodiversity values associated with sub-catchments within Takaka catchment, whereas Dr Young used data from NIWA s Freshwater Fish Database. The two approaches show broadly consistent biodiversity values within the catchment. IDENTIFICATION OF PUBLISHED INFORMATION & PRIMARY DATA RELIED ON 18. Almost all data and information presented in the ecologists evidence was drawn from the following key sources: 19. Michaelis, F.B The ecology of Waikoropupu Springs. Unpublished Ph.D. thesis, University of Canterbury, Christchurch. 158 pp. 20. Michaelis, F Physicochemical features of Pupu Springs. New Zealand Journal of Marine and Freshwater Research 10: Michaelis, F Biological features of Pupu Springs. New Zealand Journal of Marine and Freshwater Research 11: Fenwick, G., Smith, B.D Biodiversity of Te Waikoropupu Springs. Assessment and vulnerability to reduced flows. NIWA Client Report prepared for Ngati Tama ki Te Waipounamu Trust. 41 pp. 23. Young, R., Fenwick, A., Fenemor, A., Moreau, M., Thomas, J., McBride, G., Stark, J., Hickey, C., Newton, M. (2017). Ecosystem health of Te Waikoropupū. Cawthron Report No Prepared to support decision making by the Takaka Fresh Water and Land Advisory Group (FLAG), Nelson. 49 pp. epa1_epa1-6_005.docx

16 4 AREAS THAT HAVE BEEN RESOLVED 24. Flora (plant) biodiversity within the springs basin was agreed to comprise some 38 species (including 18 algae and nine mosses), none of which are endemic to the springs or threatened. However, there were some unique plant associations present, adding to the site s special biodiversity values. 25. The following table summarises the biodiversity values and threat status of invertebrates reported from 26. the Springs basin (from Fenwick & Smith 2016): Species of high interest Group Specific status Spathula alba Flatworm Endemic. Threatened (nationally critical) Paraleptamphopus sp. Amphipod Endemic Paracalliope karitane Amphipod Only South Island population Potamopyrgus antipodarum Snail Unusually high densities Hydrobiosis chalcodes Caddisfly Northern most population Hydrobiosis johnsi Caddisfly Northern most population Rakiura vernale Caddisfly Close to northern most population 27. Nine species of fishes are known from the Te Waikoropupu River catchment (Dr Gerbeaux inadvertently omitted to bold the shortfin eel from Table 1 of his evidence, bringing his total to nine also). These fish and additional species have been recorded elsewhere in the Takaka Catchment and Golden Bay, reflecting the high diversity of native fish in this part of the country. 28. The diversity of habitats, submerged, wetland and terrestrial around the springs is high and represents an unusual ecotonal sequence of plants and similarly diverse bird fauna. 29. Dr Gerbeaux noted that the low dissolved phosphorus reported from the springs potentially made this habitat vulnerable to Didymo invasions. We were unanimous in supporting continued prohibition of people entering the springs to minimise the risk of introducing Didymo. 30. It was noted that organic carbon enters groundwater from diverse sources, both naturally and as a result of land use activities. Large organic particles, such as leaves and twigs, may be carried into groundwater via large pores and cavities in karst, whereas fine pore spaces in soils and alluvial sediments generally allow only very fine and dissolved forms of organic carbon to enter the groundwater. 31. Monitoring water quality and ecosystem health upstream of Te Waikoropupu Springs is recommended for both groundwaters and surface waters to provide early warnings of any potential contamination of springs water. Ideally, monitoring would be frequent and at multiple locations to facilitate identifying source areas of contaminants for management action. 32. Water quality monitoring of springs and groundwaters should include the critical substances identified by Young et al. (2017): clarity (or some alternative, suitably sensitive measure, e.g., coloured dissolved organic matter), dissolved oxygen, nitrate nitrogen, and dissolved reactive phosphorus. Other epa1_epa1-6_005.docx

17 5 parameters identified for monitoring in Young et al. (2017) include ammoniacal nitrogen, dissolved organic carbon, ph, invertebrates/stygofauna, manganese, iron, conductivity, chloride and temperature. These and additional substances should be monitored in response to any changes in the critical substances (e.g., if dissolved oxygen becomes limiting), as recommended in Dr Hickey s evidence (paras 72-27). 33. Groundwater levels within monitoring bores also should be monitored to ensure that near natural groundwater flow directions and hydrodynamic environments continue to sustain the groundwater ecosystem. Groundwater level is recommended here in the absence of other, more ecologicallymeaningful measures of ecohydraulic conditions. 34. The distinction between triggers and limits (for water quality, water quantity, ecosystem health, etc.) is important, as outlined in Dr Young s (paras 23, 142) and Dr Hickey s (para. 42) evidence. Triggers are recognised as early warnings of potential, ecologically significant change. When a trigger is reached or breached, some process is initiated to examine relevant data and decide on actions to avoid levels where effects may occur. Limits are recognised as upper or lower values (concentrations or other measures) beyond which ecological effects are likely and so, must not be breached. 35. We agreed that the trigger values proposed by the Expert Panel (Young et al. 2017) are appropriate for water discharging into the Main Spring basin. The near natural range of each water quality parameter at different points in the contributing aquifers is expected to differ from that in water flowing from the spring, which is an average of that within contributing aquifers. Thus, water quality triggers proposed for Te Waikoropupu Main Spring water (Young et al. 2017) may require revision before applying them to upstream monitoring sites, especially for monitoring groundwater. 36. It was agreed that Dr Gerbeaux s (points 24, 25) outline of exchanges between rivers, aquifers and springs did not adequately capture the full complexity of hydrological exchanges within the Takaka River catchment. Dr Gerbeaux noted that this description was intended to relay some of the complexity, not all of the specific detail. 37. Dr Gerbeaux noted that the black disc visibility of Te Waikoropupu water under his point 23 ( at least 35m ) was imprecise and should be reported as 63 m, as in Davies-Colley & Smith (1995). AREAS THAT HAVE NOT BEEN RESOLVED 38. The specific detail of how the biodiversity significance assessments outlined in Dr Gerbeaux s evidence (points 42-44, Figure 2) were made was unclear, although Dr Young s assessment identified the same sub-catchments as having higher fish biodiversity values. The methodology used by Dr Gerbeaux for his biodiversity assessment is described by Leathwick (2016), as indicated in his evidence. Because this is unpublished literature, Dr Gerbeaux can produce the report. 39. Dr Gerbeaux sought assurance that river flow monitoring sites were appropriately located within the catchment to ensure that the system for managing flow regimes was adequate for protecting the significant fish biodiversity values within the overall catchment. Dr Young, who is very familiar with the epa1_epa1-6_005.docx

18 6 catchment, its surface water hydrology and hydrological data, provided an overview of water flow monitoring sites, flow regimes and extreme events, considered that flow monitoring within the catchment is adequate. 40. Dr Young s evidence considered that there was no evidence of any decrease in Main Spring s water clarity since 1993, with the decrease shown in Young et al. (2017) in the Springs River upstream of the salmon farm attributed to inputs from Fish Creek. He cited an oral report of Preliminary analyses of the data from in situ instrument measurements over September 2017-January 2018 as consistently very high (para. 92). Dr Fenwick noted caution with this interpretation and results, because there was no direct evidence presented of inputs from these tributaries and the unreleased NIWA data remain unconfirmed. 41. Dr Young (paras 84-89) discussed data on nitrate nitrogen concentrations in Main Spring water, concluding (point 89) that Data for the last 10 years showed no evidence of an increase or decrease [in nitrate nitrogen concentrations] after correcting for differences in sampling frequency. Dr Young agreed that the median annual weekly nitrate nitrogen concentration (data from Friends of Golden Bay) increased from 0.40 mg/l for Feb 2016-Feb 2017 to 0.44 mg/l for Feb 2017-Feb Based on this change, the graph of those data (Mr Yuill s evidence, Figure 1) and the full set of data (outliers removed; Dr Young s evidence, Figure 5; Young et al Figure 6), Dr Fenwick believes there is clear evidence of a long-term and continuing increase in nitrate nitrogen concentrations within Main Spring water, and within contributing groundwaters. 42. Dr Young (para 98) considered that the reported (Young et al. 2017, Figure 8) reduced dissolved oxygen concentrations over time of c. 11% since Michaelis s (1976) measurements (modified Winkler titration; mean of four-weekly samples, July 1970-Sept 1971) was only slightly greater than typical dissolved oxygen measurement uncertainty. Dr Fenwick noted that 14 of the 17 reported spot values were less than the 1970 concentrations, whereas a more equal distribution of measurements above and below the 1970 value would be expected if measurement error alone was involved. Also, the subsequent spot and logger measurements should be higher than in groundwater flowing from the spring vent (the concentrations) because they were taken from locations where spring water had partially mixed with re-oxygenated water. Thus, Dr Fenwick s interpretation of these data is that dissolved oxygen concentrations in groundwater discharging at Main Spring have decreased by 1 mg/l (c. 15%) or more since first measured. 43. Dr Fenwick noted that available data do indicate an overall decline in water quality in Te Waikoropupu Main Spring water and in groundwater from at least one of the contributing aquifers. He considered that, in combination, these increased nitrate nitrogen concentrations, increased ph, and decreased dissolved oxygen concentrations and, possibly, reduced water clarity, indicate reduced water quality. Dr Young agrees that there has been an increase in nitrate nitrogen concentrations over the last 48 years and possible reductions in dissolved oxygen concentrations. epa1_epa1-6_005.docx

19 7 DATE: 11 APRIL 2018 Dr Graham Fenwick Dr Roger Young Dr Philippe Gerbeaux epa1_epa1-6_005.docx

20 ANNEXURE C: HYDROLOGY JOINT WITNESS STATEMENT

21 SPECIAL TRIBUNAL WATER CONSERVATION ORDER: TE WAIKOROPUPŪ SPRINGS AND ASSOCIATED WATER BODIES IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER of a Special Tribunal appointed under s202 of the Resource Management Act 1991 to consider an application for a Water Conservation Order made by Ngāti Tama Ki Te Waipounamu Trust and Andrew Yuill (the applicants) in relation to the Te Waikoropupū Springs and associated water bodies TRIBUNAL Camilla Owen (Chair) Kevin Prime Bob Dickinson Jon Harding Lew Metcalfe EXPERT CONFERENCING JOINT WITNESS STATEMENT TO THE SPECIAL TRIBUNAL TOPIC: HYDROLOGY DATE: 12 APRIL 2018 Expert conferencing joint report to the Special Tribunal INTRODUCTION 1. This joint signed report is written in response to the Tribunal s Minute and Direction 01 (refer to Paragraph 2 of that Minute and Direction requires that experts seek to identify and reach agreement with the other expert witness(es) on the issues/matters within their field of expertise. As soon as practicable following the close of conferencing, the EPA should be provided with a signed joint witness statement that includes: the issues/matters on which the expert witnesses agree; the issues/matters on which they do not agree, and the reasons for their disagreement. 2. This joint witness statement relates to the conferencing topic of hydrology. 3. A conferencing meeting was held on 10 April 2018.

22 2 4. Participants were: Professor Paul Williams (Applicant) Joseph Thomas (Tasman District Council) Hilary Lough (Fonterra) Annabeth Cohen (Forest and Bird) [Note that Annabeth Cohen has provided in Annexure A a memorandum, forming part of this Joint Witness Statement and having been reviewed by all signatories to this Joint Witness Statement, setting out where her opinion diverges from the other experts (or clarifying which expert(s) she agrees with, where several positions are recorded below).] Peter Lilley (Trustpower) 5. In preparing this statement, the experts have read and understood the Code of Conduct for Expert Witnesses as included in the Environment Court of New Zealand Practice Note The experts identified Agenda items and then discussed them in turn, reaching agreed positions as follows: 1. HYDROLOGICAL DATA 7. It was agreed that the most authoritative hydrological data available is that provided by Tasman District Council (TDC) and as available in the paper by Stewart and Thomas (2008) and the report by Thomas and Harvey (2013), which have been up-dated through the FLAG process and as presented in the expert evidence of Joseph Thomas. Hydrological monitoring network sites are as shown on Fig. 5 of Joseph s evidence. 2. RECHARGE AREAS CONTRIBUTING WATER TO THE ARTHUR MARBLE AQUIFER AND TE WAIKOROPUPU SPRINGS 8. Maps of areas contributing water to the Arthur Marble Aquifer (AMA) are shown in the evidence of Thomas (Fig. 7) and Williams (Fig. 1). The maps have different boundaries because Thomas shows the areas contributing to the entire AMA, whereas Williams shows the boundaries of that part of the AMA that contributes to the flow of Te Waikoropupu Springs (TWS). Further, Thomas s map depicts areas of contributing water that includes outliers of marble, although the upper Anatoki catchment is excluded because there is no evidence from flow gauging that it contributes to the AMA. Marble in the upper reaches of Te Waikoropupu River is also excluded because there is no evidence that it contributes to the AMA and, further, it is conservation land so its high water quality is likely to be assured. Fig. 1 in Williams evidence also excludes those areas, including marble in the Anatoki catchment and adjacent Parapara Range, because there is no evidence that those areas contribute flow to TWS. However, it was agreed that, while no evidence exists that confirms the need to include these areas, there is uncertainty about possible water contributions that could derive from these areas, both to the AMA in general and to TWS; this uncertainty about the exact area that contributes flow to TWS is depicted in Williams Fig. 1 by the broken catchment boundary lines that converge on TWS. There were some discrepancies in the

23 3 Takaka Hill area between Joseph Thomas s Fig. 7 and Paul Williams Fig. 1 and Hilary Lough s Fig. 4, because the latter were based on surface water catchements. It was agreed by those parties that Joseph Thomas s recharge area in that boundary more accurately provided for recharge in those areas. Paul Williams considers that minor details regarding the position of the watershed on Takaka Hill need to be refined. 9. It was agreed that the AMA has an unconfined area and a confined artesian area where marble is overlain by an impervious caprock. The position of the artesian boundary between the two sections is uncertain, because it is buried beneath a veneer of terrace gravel, but its position has been refined over the years as more borehole data have been obtained. It was accepted that the position of the artesian boundary as shown on Fig. 6 in Thomas s evidence is conservative (namely, that the seawards side is certainly under caprock), but that the boundary is likely to be ragged or indented in plan and, as the caprock thins, will be punctured by karst collapse. So there is a transition zone in which thinning caprock could extend further up-valley in places by perhaps a kilometre or two although detailed evidence is limited. 10. It was noted also that there is uncertainty concerning the edges of the artesian boundary in the valley of Waikoropupu River near the Springs. Usually there is discharge of water from Fish Springs, which precludes ingress of surface water to the marble, but when Fish Springs are dry and a local flood comes down the Waikoropupu valley then surface runoff can be absorbed underground into Fish Springs vents thus entering the AMA, but such occurrences appear to be rare. Hilary Lough agrees that the primary source of water to the TWS is from the AMA, but is of the view that, as per the draft WCO boundary, it would be risky not to maintain some form of protection zone around the springs themselves, akin to a protection zone around a water supply bore, and potentially the full upstream extent of the Waikoropupu River, given the uncertainty on whether surface derived contaminants could affect water quality at the spring during these events and other conditions, for example interaction between groundwater in the shallow alluvial gravels around the springs and the springs. Joseph Thomas view is that the localised hydrogeological information does not support shallow groundwater interaction with TWS. Upwelling pressure from the TWS also further reduces any risk as the pressure is working the other way, pushing water out. Riparian management and landuse management in the Te Waikoropupu Valley is part of Council management role. The TWS is already a Dept of Conservation Reserve with buffers. 11. Acknowledging Hilary Lough s view above, it was agreed by Joseph Thomas, Hilary Lough, Paul Williams and Peter Lilley that the most likely extent of the recharge areas contributing waters to the TWS, in the sense of where contaminants entrained in the recharge could affect water quality in the TWS, is defined by the area enclosed by the black line in Figure 7 of Joseph Thomas evidence. Joseph Thomas view in response to Hilary s view needs to be considered in reference to para 10 that this para follows. 3. THE NATURE OF FLOW AND STORAGE UNDERGROUND IN THE AMA 12. The nature of underground hydrological conditions in the AMA can be conceptualized in different ways. The concept of shallow and deep parts of the aquifer has been used to help convey conditions that could

24 4 explain the spectrum of ages of water emerging at the springs, but the model was not intended for use in planning. Most of the groundwater is stored in a complex fissure system and this water eventually finds its way to TWS (and to other outlets) by travelling through flooded cave passages (or conduits) to which the fissures are interconnected. Thus the time for contaminants to reach the Springs will vary according to the inflow site, storage circumstances and pathways followed. 13. All experts agreed with the above statement. 4. WHERE COULD ABSTRACTION AFFECT SPRING FLOW? 14. To assist with the decision making on the WCO, it was considered useful to distinguish between areas that could contribute water, and any contaminants entrained in that water, via flow paths to the springs and areas where abstraction could affect flows in springs, from a pressure response. These areas are quite distinct. 15. It was agreed that abstraction anywhere in the AMA, including the full extent of the confined portion of the AMA, has the potential to affect the flow at TWS, although the effects will vary depending on connectivety to the TWS itself and distance from the TWS and will reduce where other discharge is affected (e.g. coastal spring discharge). 16. In comparison to these abstraction effects, water quality effects can only be generated in areas of the recharge zone that contribute water to the springs (unconfined parts of the marble, any waters draining into it, and places where marble is veneered by valley gravels). 17. It was noted that abstraction effects, such as from pumping, could be more obvious during low flow conditions. 18. It was noted that non-consumptive abstraction does not affect total volume discharged at the TWS but could affect the pattern of flow, unless the discharge is concurrent and of equal rate to the abstraction (e.g. a diversion). 19. Overall, it was agreed by all that the most likely extent of the connected waters to the TWS, in the sense of where abstraction from the AMA aquifer (or connected surface water and groundwater bodies) could affect flows in the TWS is defined by the areas enclosed by both the black line and the blue line in Figure 7 of Joseph Thomas evidence. 5. MONITORING 20. It was agreed that monitoring of surface water and ground water is important. TDC operates a number of water resource monitoring sites as shown on Fig. 5 of Thomas evidence. Panel members noted that we should not assume that existing monitoring sites are sufficient given the sensitivity of the AMA, and issues associated with climate change and sea level rise. It was noted thaat TDC have the responsibility of providing appropriate monitoring as part of their resource management role.

25 5 6. ALLOCATION LIMITS FROM THE AMA 21. It was noted that any water take above 5 litres/second has to be monitored under current regulations, but the panel considered that it was beyond their expertise to comment on what allocation limit might be appropriate from an ecological point-of-view. We were of the opinion that any limit should be accompanied by a cease-take limit if it was considered an effective management tool for the water bodies concerned. Hilary Lough noted that cease take limits are not usually an effective management tool for groundwater takes with a low degree of hydraulic connection to the potentially affected surface water body. 7. CLIMATE CHANGE CONSIDERATIONS 22. We are of the opinion that the potential impacts from climate change, including sea level change, should be taken into account when decisions are made concerning monitoring and water allocation, noting that there needs to be adaptability in the response to climate change and that the results of climate change modelling should be considered. 8. QUESTIONS REFERRED TO THE HYDROLOGY GROUP FROM THE PLANNERS GROUP 1. Are the specific exemptions sought by Trustpower the Cobb Hydropower, specifically Clauses 13 d and e on page 23 of the Statement of Evidence of Luke Faithfull appropriately worded from a hydrology perspective? 23. Clauses 13d and 13e are concerned with resource consents and the regional plan and we do not know what clause 4 referred to in d will be. So, because these are not hydrological questions, we do not feel competent to comment on them. 2. Can the extent of the contributing waters be better defined? Does the present indicative boundary present any degree of uncertainty around contributing volumes? 24. The matter of contributing areas was dealt with in Agenda item 2 above. Thomas s Fig. 6 shows the area contributing water to the AMA, whereas Williams s Fig. 1 shows that part of the area that is thought to flow to TWS but with dotted boundaries where there are uncertainties. Uncertainty about contributing volumes arises where there are uncertainties about contributing areas. 9. ANY OTHER MATTERS 25. No further items were raised for discussion. DATE: 12 APRIL 2018

26 6 Joseph Thomas Annabeth Cohen Peter Lilley

27 Annexure A: Annabeth Cohen memorandum 7

28 HYDROLOGY CAUCUSING MEMO TO: FROM: SUBJECT: DATE: CC: TE WAIKOROPUPŪ WCO TRIBUNAL ANNABETH COHEN AMMENDMENTS TO JOINT WITNESS STATEMENT 12-APRIL-2018 STEVE MUTCH, PAUL WILLIAMS, JOSEPH THOMAS, PETER LILLEY, HILARY LOUGH 1. Recharge areas contributing water to the Arthur Marble Aquifer a. Regarding paragraph 8, i. with regards to the exclusion of the Anatoki River and the uncertainty of its contribution to the AMA, it is my understanding from caucusing that the river is gaining in its upper reaches, and that the lower reaches are both losing and gaining to the shallow gravel aquifer. b. Regarding paragraph 9, i. it is my understanding from caucusing that there is uncertainty with regards to the size and scale of transition zone from confined to unconfined. I understand that the degree of uncertainty ranges from meters to kilometers, in which thinning caprock could extend further upvalley. ii. I support Paul Williams evidence paragraph 51that the artesian boundary [ ] is best considered to be a zone rather than a sharp edge. iii. In my opinion, it should be noted that this uncertainty will not necessarily be understood if the boundary is depicted as a solid line on a map. c. Regarding paragraph 10, i. I agree with Hilary s statements. ii. I would like to note that climate change may affect the frequency and intensity of flood events, causing a change in the frequency of overland flow affecting the AMA. 2. Where could abstraction affect Spring flow? a. Regarding paragraph 18, non-consumptive extractive use of water from the AMA is unlikely to affect total volume discharged at the TWS. This is assumed by definition of the words non-consumptive, however I am unable to conclusively state that it would not cause an effect without further relevant information relating to the non-consumptive water take. 3. Allocation limits from the AMA a. Regarding paragraph 21, i. It was not the remit of the group to comment on the effects of hydrology on the local ecology; however in my experience and among my studies, I have found that changes to hydrology (either sudden or gradual) are

29 known in most cases to have an effect of varying degrees on the dependent ecosystems. I am also aware as discussed in my evidence that the local ecology to the catchment and Te Waikoropupū Springs is high in diversity due to the hydrologic conditions present. b. During caucusing I expressed concern regarding the effects of setting a higher allocation limit than is currently available via resource consents. This notion was originally presented in Cawthron s report no by Young and Hay 2017 and reference in Joseph s evidence. i. Cawthron s report presents a 10% mean annual low flow as an AMA allocation limit which would be approximately 766 l/s. ii. It is my understanding that the catchment does not currently have an allocation limit, but there are a total volume consented is approximately 540 l/s. iii. While 10% of mean annual low flow (MALF) as an allocation limit is relatively low in comparison to other allocation limits in New Zealand, I am unsure if the complex geological and hydrological nature of this catchment renders this percentile or method transferrable to the AMA due to potential effects to TWS. iv. Presence of an effect on the TWS will depend on how full the AMA is at the time of the take and where the take occurs. The location of a water take from the AMA will have varying effects given the large recharge zone, the ephemeral stretches of the Takaka, other rivers and springs throughout the catchment and the contributing upland pressure component. v. If an allocation limit is set by the Tribunal that is greater than the current level of allocation, it would be appropriate to address constraints of where and when water can be taken as well as how much water can be taken as these aspects will contribute to varying degrees to how the AMA is able to support TWS. 4. Climate Change i. Through caucusing I am now aware that NIWA has done modelling and written a report on the localized effects of climate change and is available on the TDC website. ii. I am not aware of the content of the NIWA modelling or report at this time. Though to my knowledge the following effects of climate change if forecasted could create hydrology issues for TWS and the Takaka catchment: 1. Sea level rise 2. Changes in the salt/fresh water wedge 3. Pressure changes in the uplands 4. Rainfall intensity and frequency changes 5. Soil moisture changes 6. Change in the frequency or intensity of extreme weather events like flood or drought. 5. Questions referred to the Hydrology Group from the Planners Group a. Regarding paragraph 23, i. While the wording of clauses 13d and 13e of Luke Faithfull s evidence are not statements that contain hydrology concepts, the clause is to exempt the following from the Order: development, or material changes to the operation, configuration or maintenance, of the Cobb 2

30 Hydroelectric Power Scheme, provided the outstanding characteristics, features and values recorded in clause 4 are recognised and sustained. ii. I note that Peter Lilley s evidence states in paragraphs 6.11, 6.14, and 6.15 that material changes to the Cobb Hydroelectric Power Scheme s operation and configuration could include: diversion of upstream flow, increase in catchment area, or raised level of lake. iii. In that regard, if clauses 13d and 13e apply to the type of changes referenced above, there would be discernable hydrology effects downstream and upstream of the Scheme which may have an effect on Te Waikoropupū Springs. iv. While the clauses 13d and 13e both state that any changes would recognize and sustain the outstanding, characteristics, features and values recorded in clause 4, I am not satisfied that the types of modifications and the extent of those potential effects have been appropriately discussed to definitely know. 3

31 ANNEXURE D: WATER QUALITY JOINT WITNESS STATEMENT

32 SPECIAL TRIBUNAL WATER CONSERVATION ORDER: TE WAIKOROPUPŪ SPRINGS AND ASSOCIATED WATER BODIES IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER of a Special Tribunal appointed under s202 of the Resource Management Act 1991 to consider an application for a Water Conservation Order made by Ngāti Tama Ki Te Waipounamu Trust and Andrew Yuill (the applicants) in relation to the Te Waikoropupū Springs and associated water bodies TRIBUNAL Camilla Owen (Chair) Kevin Prime Bob Dickinson Jon Harding Lew Metcalfe EXPERT CONFERENCING JOINT WITNESS STATEMENT TO THE SPECIAL TRIBUNAL TOPIC: WATER QUALITY DATE: 10 APRIL 2018 Expert conferencing joint report to the Special Tribunal INTRODUCTION 1. This joint signed report is written in response to the Tribunal s Minute and Direction 01 (refer to Paragraph 2 of that Minute and Direction requires that experts seek to identify and reach agreement with the other expert witness(es) on the issues/matters within their field of expertise. As soon as practicable following the close of conferencing, the EPA should be provided with a signed joint witness statement that includes: the issues/matters on which the expert witnesses agree; the issues/matters on which they do not agree, and the reasons for their disagreement. 2. This joint witness statement relates to the conferencing topic of water quality.