19 April 2010

Canterbury water conservation orders

A commenter asks Claire Browning at the Pundit blog:
"Does the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010) mean that the new ECan can bypass the process so that rights to access water in the Hurunui can be granted regardless of anyone else's needs or concerns?"

No the special legislation doesn't bypass the process, it completely rewrites the process!

Specifically, it inverts the old decision making criteria so that development of water resources is more important in the decison on a WCO than preserving rivers in their natural state.

In a tribunal decision on a WCO (under Section 207 of the RMA) environmental criteria ("outstanding amenity or intrinsic values which are afforded by waters in their natural state" s 199 RMA) have predominance over resource development criteria, which were still a matter the tribunal "shall also have regard to" (S 207(b)).

The Hurunui River WCO application, even though it was applied for and had it's tribunal stage prior to the Ecan Act, is now to be decided by the new Ecan/Dame Margaret. See Section 46 of "the Ecan Act".

Dame Margaret/Ecan's decision on the Hurunui WCO is to guided by Section 50 of "the Ecan Act"

The decision must have particular regard to the vision and principles of the Canterbury Water Managment Strategy (S 50(2)(a)(ii). The "vision" is now Schedule 1 to the Ecan Act.

I am afraid when I see the "vision and principles of the CWMS", it just seems a rehash of "resource management" apple pie matters, just like sections 5, 6 and 7 of the RMA.

The decision must also have particular regard to the old WCO criteria; "outstanding amenity or intrinsic values that are afforded by waters in their natural state" (S 50(2)(a)(i) and S 50(3)(a)).

But the decision must be made foremostly "subject to Part 2 of the RMA" (S 50(2)). That wording is from s 104 of the RMA (the section about how to consider the granting of resource consents). It means that ultimately the decision on a WCO should 'promote sustainable management' of resources as defined by court interpretations of Section 5 of the RMA. Just like a consent decision.

The MfE and Court-approved interpretation of "sustainable management" is the "broad overall judgment" weighing all matters. In other words, it is a balancing exercise. So what will this sort of decision look like in practice?

I suggest it will look exactly like the recent decision to grant consents to dam the Mokihinui River within a conservation area. See the article Watchdogs explain giving dam go-ahead, 8 April 2010 in the Herald.

The three-person hearing panel made a split 2 vs 1 decision to grant the consents. The civil engineer and the west coast councillor outvoted the specialist freshwater ecologist, who considered the dam should not go ahead due to significant adverse effects on freshwater ecosystems.

We may ask "how did the Hearing Panel "have regard to" the adverse effects of the dam on freshwater ecosystems?". The answer is that one of the three panel members recognised and documented the importance of the freshwater ecology in their decision and the other two considered the instream values worth sacrificing for the power.

To me that is a perfect example of what is wrong with the "broad overall judgment" approach to sustainable management It is "weak sustainability" writ large.

The definitions section of the Ecan Act also defines the term 'WCO application' to include an application to revoke or vary an existing WCO. Applying to revoke or vary a WCO is provided for in S 216 of the RMA. But there is a high threshhold as it's still the same S 207 decision-making criteria "outstanding amenity or intrinsic values" of water in it's natural state".

The Majac Trust (the Talley family) tried to vary the Buller River WCO to allow hydro dam on the Gowan River. That application was declined.

The Ecan Act now means that Canterbury's WCOs, which were established against criteria of "outstanding intrinsic values", can now be varied or revoked by appications that will be considered against a criteria of fairly weak sustainability.

It is no wonder Chris Hutchings of the NBR decribes the Ecan Act as a major victory for the irrigators.

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