Environment Canterbury’s long running hearing into Meridian Energy’s North Bank Tunnel Concept (NBTC) came to an end last week, and three independent commissioners now have to reach a decision. Their decision will undoubtedly be appealed to the Environment Court. Depending on your perspective, the NBTC is yet another example of the Resource Management Act standing in the way of progress, or a water grab by a major corporation, or another cut to the body of a river that has already provided us with so much.
The history of conflicts over the Waitaki makes this case unusual. Despite the importance of water to the region, Canterbury has been remarkably slow to develop regional water plans. In the absence of these, Meridian launched the ambitious Project Aqua to generate power in the lower reaches of the river. The project was highly controversial and eventually withdrawn. The Government became concerned at the pressures being placed on communities from the competing applications for water. It responded with special RMA legislation setting up a high-powered Board to write a Waitaki Catchment Water Allocation Regional Plan (WRP).
The WRP included an environmental flow regime for the lower Waitaki River, requiring seven flushing flows each year and a minimum flow of 150 cubic metres per second (cumecs). This is well below the present mean flow of about 250 cumecs. It also required that certain natural and intrinsic values of the river were to be maintained by a variable water flow. In other words the water could be used but only if the minimum flow, flushing and characteristic environmental values of a big braided river were maintained.
The Board considered over 1000 submissions in attempting to balance the river’s competing interests. Key Meridian proposals were specifically rejected. The special legislation made the Board’s decision plan final, and Meridian was clearly irked that there was no right of appeal. So instead of working within the plan it has responded with the NBTC application. This proposal is to divert more than half the current flow of water in the river into a tunnel and then on to a generating station about 30kms downstream from the Waitaki Dam.
The bare facts of the NBTC case are that there is a specific regional plan covering the allocation of the Waitaki River water and Meridian’s proposal breaches the rules of that plan. It could request a plan change but this is not allowed for two years. In my view, the NBTC application is so far removed from the plan that it is an attempt to relitigate the plan through the resource consent process.
Many people assume that if something breaches a rule in a plan then it is not allowed. This is not so. The RMA divides activities into three categories: permitted, prohibited, and those over which there is some discretion left for decision-makers. If the activity would have effects breaching rules in the plan it is called ‘non-complying’. For a non-complying activity to be approved it must either have no significant effects or satisfy the hearings panel that it is not contrary to the objectives and policies of the plan.
The NBTC proposal is non-complying, primarily because it would leave less water in the river than the minimum 150 cumecs and with only four flushing flows per year. Meridian’s proposals will also “flat-line” the river. It provides for little variability of flow and the variations that it does have will not sustain the characteristics of a braided river and its ecosystems.
Meridian argues that the WRP expects more hydro-generation in the Lower Waitaki. It also argues that its proposals include mitigation measures that will mean the effects on the environment will not differ significantly from the effects of operating the river at 150 cumecs with seven flushing flows. The company’s experts therefore argue that the effects are minor compared to what the plan appears to envisage. Meridian’s final argument is that the NBTC is in the nation’s interest because we need the energy.
Meridian’s argument has significant flaws. The plan provides for some new hydro generation, but not necessarily the level and type that Meridian wants. But the new generation is only allowed if the specified values of the environment are maintained through a variable flow regime and the minimum flows and flushing flows are not breached. Secondly, the effectiveness of proposed mitigation measures are so uncertain that it may have further significant negative effects. (It seems improbable that the NBTC would be closed down if the mitigation fails). Thirdly, the generation of power at the NBTC requires transmission across large distances, which is inefficient. The national energy interest is better served by generating power closer to where it is used.
By being the first and applying for all and more of the water available for hydro, Meridian’s NBTC application will mean that it has effectively pre-empted other potential hydro generators from obtaining that water, at least until the Meridian application is resolved. Fundamentally, the proposal is a water grab.
But Meridian is not the villain in this. It has exercised its right to apply for resource consents. It is required to operate commercially and maximise returns. The project will generate local employment, and power for others. In applying for the consents it has operated as a competitive, commercial company.
But the people and communities of the region have gone through several years of engaging with applications like this. Considerable community resources and voluntary time have been consumed in previous battles and the WRP. Evidence presented at the NBTC hearing clearly demonstrated that many thought the issues had been resolved by the plan and they were getting on with their lives. The NBTC application plunged the region back into the tensions of the RMA resource consent process, with less voluntary, social and financial reserves to draw on. And they have a probable Environment Court appeal to follow.
This war of attrition may well result in disengagement with the entire process and further disenchantment with the RMA. This would be a very bad outcome for all concerned, including Meridian, and for the future of sound planning in New Zealand. Hopefully the commissioners will send a clear message to Meridian that it is not worth the appeal.
Dr Hamish Rennie is Senior Lecturer in Environmental Management and Planning at Lincoln University and gave evidence at the hearings in support of Waitaki First.