ECan moves over ‘explicit and continuous breaches’

Water-take rules are being enforced after concerns were raised in a hidden scientific report

The South Island’s biggest irrigation company is making “explicit and continuous” consent breaches while taking water from the country’s largest braided river.

In a compliance report from February, Canterbury’s water regulator, ECan, says Central Plains Water’s method of determining how much water is available from the Rakaia River – more particularly, water not used under consents held by other companies – doesn’t meet rules set in its own consent, issued in 2016.

In fact, it never has.

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“After our recent abstraction assessment, we now consider its use to constitute an explicit and continuous non-compliance,” states the ECan report, released after an official information request.

The irrigation company is now being ordered to comply with its consent conditions or formally apply to vary them.

It’s a difficult line to tread for ECan. Any veneer of being a tough regulator is ripped off by the fact it knew about these issues for years but failed to act.

This awkward truth is set against the background of the government sacking Canterbury regional councillors in 2010, after which the Rakaia’s water conservation order was altered to allow Trustpower (now Manawa Energy) to store irrigation water at Lake Coleridge and release it down the river.

Concerns about water takes from the Rakaia surfaced in November 2021, when Newsroom revealed the existence of a damning internal ECan report, which is still unpublished.

The report’s author, senior hydrological scientist and data analyst Wilco Terink, found evidence consent limits for water takes were being exceeded, on occasion, and Rakaia’s national water conservation order was being breached.

He resigned after his bosses signalled they wanted to remove contentious findings.

In the 2021/22 irrigation season, Central Plains Water supplied its farmers with 105 million cubic metres of water from the Rakaia River, 42 percent of which came from Lake Coleridge. Photo: Francis Vallance/Flickr/Creative Commons

To be fair to Central Plains, February’s ECan compliance report identified 10 possible instances in which abstraction rates appeared to be above limits, but nine were ruled out for various reasons.

The only legitimate exceedance, in September 2018, involved at most 600m³, above a permitted take of 15,000m³. ECan considered the amount minor, requiring Central Plains to “ensure it does not occur again”.

Last Thursday, ECan refused to explain the real-world effects of the Rakaia rule breaches, saying it couldn’t comment while the matter is before the courts. The regional council is seeking Environment Court declarations regarding the Rakaia’s water conservation order.

(In evidence filed in the court, the regional council admits: “Historically there has been very little dedicated water-take compliance activity undertaken on the Rakaia River, beyond that carried out in the ordinary course of compliance monitoring more generally.”)

Central Plains has no such reluctance.

Chief executive Susan Goodfellow – who was the company’s environmental general manager from 2011 to 2017 – says the two key issues raised by ECan were technical, and river flows were not adversely affected.

“The compliance report clearly shows that Central Plains Water is mainly compliant with our consent, and we take pride in that outcome.”

Greenpeace campaigner Christine Rose thinks the Central Plains example might be the tip of the iceberg. She accuses ECan of not properly monitoring water consents.

“ECan is abrogating its responsibility to monitor and enforce consents (and indeed, challenging whether it even should), and is therefore failing to uphold the integrity of planning rules and the council’s environmental mandate.”

Bill Southward, of Rakaia Huts, one of the river’s greatest champions, has spent years complaining to ECan, and other agencies, about the state of the river. He asks, somewhat deflatedly: “Are they going to do anything about fixing any of the problems out there?”

Water available if not being taken

It’s worth noting the words in Central Plains’ consent, which doesn’t expire until 2047.

Conditions explicitly state if a listed consent holder isn’t taking its allocated water, and written approval’s given, it’s available to Central Plains.

(The Rakaia’s complex flow bands mean older consents get the most reliable water. That meant Central Plains, as the last on board, had the least reliable, and was, at times, reliant on water from consents approved earlier. The company now holds three of the listed consents, and jointly owns three others.)

However, the water is only available if it’s “not being taken” by the other user. This is meant to be measured by “on-off telemetry”.

Also, the rate at which the water can be taken “shall not exceed the sum of individual takes” by all consents.

The telemetry system connected to these other takes should “collect and store all data continuously”, the consent says, and on July 31 each year, Central Plains is required to submit a compliance report.

ECan’s February 3 compliance report, written by resource management technical lead Paul Murney, said: “The on/off telemetry system and annual report required under this condition has never been implemented or supplied.”

The averaging method estimates water availability based on expected average takes, rather than actual data, which might explain the lack of documentation.

In September last year, Central Plains (CPWL) provided ECan with a compliance report which stated there were no breaches of its permitted takes, including water from other consents. But, Murney notes, “it does not detail how this was determined or look in detail at the amount of water taken under subservient consents by CPWL and the relevant consent holders”.

The averaging method breaches the consent because Central Plains considers water from other consents to be available even when that consent holder is taking water.

In coming to this conclusion, ECan is forced to eat crow.

Writes Murney: “We acknowledge that Environment Canterbury has not, up until now, provided a formal response or compliance monitoring report in relation to CPWL’s use of the ‘averaging strategy’ despite being informed of its adoption in 2015.”

The strategy wasn’t formally approved by ECan, but correspondence provided by Central Plains suggests some sort of verbal OK by its surface water science team in 2015. Because it was thought to be a “very minor technical non-compliance”.

Explicit legal authorisation is needed, Murney writes, as the strategy’s use is now considered “explicit and continuous non-compliance”.

ECan admits the strategy is conservative enough to ensure compliance with minimum flows and the water conservation order “most, if not all, of the time”. However, greater assurance is needed through near-to-real-time, independent telemetry.

Central Plains was asked to state how it intended to comply by February 28, and give a timeframe for completion.

ECan also warned it will carry out further analysis of water-take data for the period between July 1, 2021, and June 30, 2023. To do that, it required access to further data – which shows how blind the regulator has been to Rakaia water-take information.

It has asked for information about Central Plains’ takes from Lake Coleridge, from which NZX-listed company Manawa Energy releases “stored” water for irrigation; and more accurate abstraction data from the company’s Rubicon system.

Several water consents aren’t being used lawfully, the regional council warns, because water’s not being taken from the listed abstraction point. Central Plains has been advised to formally transfer the consents as soon as possible, or it risks having them cancelled.

“It is a technical monitoring issue.” – Susan Goodfellow

Goodfellow, the Central Plains boss, says the company has recently decided to provide annual reporting data to ECan “to ensure all parties have 100 percent visibility” of water-take data.

The one-off event of over-abstraction, in September 2018, was caused by operational error, she says, and lasted a maximum of 15 minutes.

“This occurred due to the slow closure of control gates,” Goodfellow says. “The operational issue was immediately addressed at that time and has not occurred since. We are disappointed that this occurred. Our team work hard to make sure that this type of thing doesn’t occur.”

The averaging strategy was developed to allow the company to take available water from subservient consents that didn’t have telemetering installed, she says, “without breaching the combined water take allowed under those consents”.

This explanation overlooks the fact telemetering was a prerequisite, as now confirmed by ECan, and Central Plains can only take water allocated to other consent holders when their right isn’t being “exercised”.

In January 2015, Goodfellow, in her previous role, wrote to ECan seeking permission to proceed with its “alternative strategy” for “the initial two-to-three irrigation seasons”.

In February this year, Murney wrote to Goodfellow, who took over as chief executive from Mark Pizey, to say ECan’s verbal approval in 2015 presumably extended to July 1, 2018, after which the strategy has been applied “without any form of approval”.

(Murney appears to knock the idea of ECan’s verbal approval, saying advice was provided from the council’s consents section, and one of its lawyers, to say the strategy “did not comply with the requirements of the consent and that a change of conditions should be applied for to formally authorise its use”.)

Last week, Goodfellow noted ECan had confirmed its strategy was conservative. The council’s review of the averaging method, over three years to June 30, 2021, found the total amount of water allocated under “subservient consents”, of 9460 litres a second, wasn’t exceeded through abstraction by Central Plains.

“The river flows were not adversely impacted by this approach, rather it is a technical monitoring issue,” Goodfellow concludes.

Central Plains is now “engaging with consent holders to install telemetry on all subservient consent takes”, she says, which should be completed before the next irrigation season, starting on September 1.

“The installed telemetering on the subservient takes will provide another layer of certainty and transparency to CPWL, ECan and the community that our subservient takes are compliant.”

“To me, the Wilco Terink report has lifted a scab.” – Peter Trolove

Someone who doesn’t share Goodfellow’s vision of certainty and transparency is Peter Trolove, of the Federation of Freshwater Anglers, who lives at Rakaia Huts, near the river’s mouth.

“The situation’s so opaque,” he complains. “ECan issues these consents for water takes and, as members of the public and ratepayers, we can’t get easy access to know what the hell’s going on.”

Trolove contributed to a Niwa report, commissioned by ECan, capturing observations of long-time anglers along the Rakaia, Ashburton/Hakatere and Rangitata Rivers. “To many, the very heart of these rivers has been ‘ripped out’ by over-abstraction of surface and ground water,” the report said.

Smelt – a small, silvery native fish, at the bottom of the food chain – have disappeared from the lower Rakaia, Trolove says, and the trout fishery started collapsing from about 2010. That was the year John Key’s government sacked ECan’s elected councillors and replaced them with appointed commissioners.

“To me, the Wilco Terink report has lifted a scab,” says Trolove.

The water conservation order alteration, formally accepted by the Government in 2013, was predicated on careful monitoring and recording of all flows in and out of the system.

(Yesterday, Fish & Game NZ announced it had joined the Environment Court declaration proceeding about the Rakaia’s water conservation order, alongside its North Canterbury council. In a statement, Chief executive Corina Jordan said it was concerned about inadequate monitoring of changes to the river’s health, despite significant alterations to land and water use in the catchment.)

Christine Rose, of Greenpeace, also harks back to 2010. She says sacking councillors created “industry capture of ECan by design”, leading to a rush of irrigation projects. Even with the return of elected councillors, Rose says it has been hard to shift the organisation’s culture back to its core environmental mandate.

Rose says Central Plains’ averaging method didn’t just undermine the consents, the situation “undermines public confidence in ECan as well as in their administration of the rules and consent conditions, including under the most significant water conservation frameworks”.

ECan’s initial response, from general counsel Robyn Fitchett, was: “As this matter is currently before the Environment Court, we are not able to provide the information requested.”

Questions that went unanswered included why a company holding infrastructure assets that would cost an estimated $446 million to replace was not being financially penalised for “explicit and continuous” consent breaches, and whether Murney’s compliance review vindicated some of the findings in the Wilco Terink report – a report ECan has, at times, tried to distance itself from.

In fact, that continues to be the case.

A further response from director of science Dr Tim Davie said the original Wilco Terink report was not up to publication standards.

“Subsequent analysis done by Environment Canterbury science staff, which has been shown to the NZ Federation of Freshwater Anglers and other stakeholders, has reinforced this. This subsequent work is currently being written up.

“A key aim of the modelling work is to provide a simple daily model of the Rakaia showing the flows, abstractions (e.g. irrigation takes) and additions (e.g. Lake Coleridge and Highbank power station discharges) that the public can view. This is not a simple task, but we are working diligently to provide it.”

Davie added: “Any ‘scab that was picked’ was done so deliberately by Environment Canterbury to get a better understanding of the Rakaia River and its management.”

Another party to the Environment Court proceedings is the Environmental Defence Society.

Contacted about ECan’s compliance report on Central Plains Water’s consent, chief executive Gary Taylor said: “That outcome shows the importance of civil society’s, including the fourth estate’s, vigilance in monitoring what regional councils do.”

* This story has been updated with further ECan comment from Tim Davie.






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