transcript of proceedings board of inquiry tukituki ...€¦ · tukituki catchment proposal

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TRANSCRIPT OF PROCEEDINGS BOARD OF INQUIRY Tukituki Catchment Proposal HEARING at CENTRAL HAWKE’S BAY MUNICIPAL THEATRE on 20 January 2014 BOARD OF INQUIRY: Hon Lester Chisholm (Chairperson) Russell Howie (Board Member) Loretta Lovell (Board Member) Alec Neill (Board Member) Matthew Lawson (Board Member)

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Page 1: TRANSCRIPT OF PROCEEDINGS BOARD OF INQUIRY Tukituki ...€¦ · Tukituki Catchment Proposal

TRANSCRIPT OF PROCEEDINGS

BOARD OF INQUIRY

Tukituki Catchment Proposal

HEARING at CENTRAL HAWKE’S BAY MUNICIPAL THEATRE

on 20 January 2014

BOARD OF INQUIRY:

Hon Lester Chisholm (Chairperson)

Russell Howie (Board Member)

Loretta Lovell (Board Member)

Alec Neill (Board Member)

Matthew Lawson (Board Member)

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APPEARANCES

<SARA GERARD, sworn [9.58 am] .......................................................... 3479

<CROSS-EXAMINATION BY MR WILLIAMS [10.54 am] ......... 3498

<THE WITNESS WITHDREW [11.56 am] ..................................... 3513 5

<HELEN MARR, sworn [11.57 am] .......................................................... 3514

<FURTHER EXAMINATION BY MR MALONE [11.57 am] ....... 3514

<FURTHER CROSS-EXAMINATION BY

MR ROBINSON [12.00 pm] ............................................................ 3515 10

<EXAMINATION BY MR GARDNER [2.57 pm] ......................... 3556

<RE-EXAMINATION BY MR MALONE [2.59 pm] ..................... 3557

<THE WITNESS WITHDREW [3.40 pm] ....................................... 3575

15

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[9.33 am]

CHAIRPERSON: Good morning everyone. We will begin this morning with

a representation from Mr Mannering which is carried over from last

week. Welcome, Mr Mannering, come forward thank you. Good 5

morning, Mr Mannering, we are ready when you are, thank you.

MR MANNERING: The Mannering Family Trust owns orchards on

Lawn Road and Saint Georges Road in Hastings. Adrian Mannering

has managed the large orchard and irrigation on the Ruataniwha Plains 10

from 1985 to 1990. Rose and I have owned orchards in Hastings from

1990 and we also operate an irrigation design and contracting business

from 1995 until present with the headquarters at 450 Lawn Road.

Rose and I also own and operate an HDPE pond lining contracting 15

business operating throughout New Zealand with the majority of the

work in farm dairy effluent ponds for dairy farmers. We employ 25

staff year round and up to 50 during the season.

Specific areas we wish to comment on are the freshwater objectives, 20

minimum flow limits, managing groundwater takes hydraulically

connected to surface water and consent characterisation and durations.

Freshwater objectives. The summer dry nature of Hawke’s Bay means

that unless water resources are made available to intensive horticulture 25

on the lower Tukituki orcharding will not support consistent and

minimal production levels required for a viable operation. I note fruit

growing has long been established in the lower Tukituki area with land

sold for this purpose in 1905, refer “100 harvests - A History of Fruit

growing in Hawke's Bay”. 30

Further options to water resources are limited here. The cost of

localised water storage required is difficult on a typical lower Tukituki

orchard of 12 hectares for 40 days cut off. See my calculations on the

construction design calculation sheet. 35

[9.36 am]

You will note the construction footprint of the storage pond required is

90 metres by 90 metres, almost one hectare of a 12 hectare property. 40

This is an accurate commercial cost for this infrastructure and does not

include the loss of production from one hectare orchard required to be

removed. Pumping and irrigation infrastructure would vary per site but

is expected to be 20 to 50 thousand additional cost.

45

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Existing wells cannot be deepened unless very recently constructed

within one or two years. This negates that option. Deeper wells are

still uncertain in this area.

Managing groundwater takes hydraulically connected to surface water. 5

The burden of proof and expense is to an individual consent holder

with a linkage until proved otherwise approach, it is unacceptable that

the science to prove the linkage has not been carried out by the

Hawke’s Bay Regional Council prior to restrictions proposed in this

plan change. Also this science is not freely available and clear to 10

current users. This is where the S36 charges should be used.

Uncertainty of linkage results means uncertainty of horticultural

practice long term.

15

Affected parties cannot be characterised as a small number of surface

water takes due to the fact the groundwater takes hydraulically

connected to the surface work has not been undertaken, it is unclear

and uncosted.

20

To reduce water takes from the established business models employing

considerable labour and contribution to the economic activity of the

district is unfair when water is allocated to new upstream applicants.

The opportunity to allocate the resource fairly has lost. The

opportunity not to over allocate with the proposed dam is also lost. 25

Minimum flows. The proposed increase in minimum flow limits at

Red Bridge on the Tukituki River from the present level of 3,500 litres

per second is to increase to 4,300 from 2018 and 5,200 2023. Based on

these flows surface takes in the previous growing season, 012/013, at 30

the current level of 3,500 litres per second water cut off will be on

March 3 and a subsequent 45 days of ban until April 17. At 4,300 litres

per second the water take cut off on January 31 2013, less six days

between February 6 and 12, water bans would be removed on April 20,

overall a total of 80 days of water bans. At 5,200 litres per second 35

water cut off on December 13 2012, less 26 days through the growing

season, water bans would be removed on April 22, a total of 130 days

of water bans. See attached graphs. That is just off the Regional

Council website.

40

A full analysis needs to be undertaken but it is obvious intensive

horticulture would become extremely high risk due to the unpredictable

nature of the availability of water. This established intensive

horticulture would become economically unviable under current

proposed flow limits. 45

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The planning review amendments to plan change 6, January 2014,

groundwater connection to surface water. The amendment said, “Wells

screened shallower than 50 metres requiring assessment”, this is on

page 19 of that review. I assume this was amended to address the

Ruataniwha area only. 5

Nearly all the wells in the lower Tukituki area are shallower than

50 metres therefore nearly all the wells in the lower Tukituki would be

classed as stream depleting to an unknown degree. This leads to

uncertainty of supply in operation. 10

[9.41 am]

The proposed methodology in the plan change does give some certainty

with regard to interpretation. Being a lay person not a hydrologist 15

when the Commission asked the question how many current consent

holders in the lower Tuki will be classed in the stream depleting group.

Based on this proposed criteria it is vital for orchard and vineyard

viability that the science is done prior to minimum flows and

groundwater to surface water connection rules being adopted. 20

Consent characterisation and duration. Restructuring the renewal of

consents to five years is uncertain to an intensive horticultural business.

Replanting of a pip fruit block due to varietal change takes five to

seven years to approach full production again. If allocation limits are 25

not exceeded why can this not be a longer period. Thank you.

CHAIRPERSON: Thank you very much, Mr Mannering. Mr Howie, have

you got any questions.

30

COMMISSIONER HOWIE: Thank you, sir, yes, I did have a couple of

questions if I may. On your first page you mentioned “existing wells

cannot be deepened unless very recently constructed”. Could you give

us the detail of why that is?

35

MR MANNERING: Not being a well driller, but it’s steel casing that’s driven

down into ground and then after a period of time that becomes

encrusted and various other binding factors go on and it’s difficult to

put a rig over that well again and drive it down further. So basically

you have to front up for a new well at a different location. 40

COMMISSIONER HOWIE: And you can’t drill through the old casing?

MR MANNERING: No.

45

COMMISSIONER HOWIE: Why not?

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MR MANNERING: The casing size. If it’s a four inch well for example,

which a lot of them are on the lower Tuki, to drill through that, that will

lessen the yield that will come out of that well because it’s a smaller

diameter pulling out of the aquifer. But with a larger well you will still 5

lessen the yield that you’ll be able to gain from that well which will

affect your following infrastructure – your pumping and so on.

COMMISSIONER HOWIE: That may be made up by a greater yielding

aquifer at a deeper level perhaps? 10

MR MANNERING: I couldn’t answer that question.

COMMISSIONER HOWIE: No. And to put a four inch well down to 50

metres plus a new one, how much are you looking at? 15

MR MANNERING: $50,000.

COMMISSIONER HOWIE: 50?

20

MR MANNERING: Yes. A good question for a well driller, but from my

experience.

COMMISSIONER HOWIE: Over the page, your point 4, you are commenting

on the hydraulic connectivity to the surface water. As I recall the 25

amended proposal is to make a cut-off at 50 metres.

MR MANNERING: Yes.

COMMISSIONER HOWIE: And deem everything above 50 metres connected 30

and those - - -

MR MANNERING: Yes.

COMMISSIONER HOWIE: - - - below 50 metres not connected. Does that 35

sort out that question of yours about the science of connectivity?

MR MANNERING: No, that’s exactly my point. All the wells in the lower

Tuki, a lot of them are off the Heretaunga Plains aquifer or there’s

some sort of connection that we don’t fully know about, but they are all 40

sub – they’re all under 50 metres.

COMMISSIONER HOWIE: Mm.

MR MANNERING: There’s not many at all that are over 50 metres. 45

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COMMISSIONER HOWIE: If they’re in the Heretaunga aquifer they

wouldn’t be subject to this provision would they?

MR MANNERING: Who’s to know? The work has not been done. Whether

they’re connected or not connected. 5

COMMISSIONER HOWIE: I see.

MR MANNERING: Yes.

10

COMMISSIONER HOWIE: And you’re inviting us under your point 6 to ask

the question how many current holders in the lower Tukituki will be

classed as depleting. Can I reverse that and ask you if you’ve got any

idea yourself?

15

[9.46 am]

MR MANNERING: Can you ask the experts, I haven’t – it is a question for

the regional council hydrologists to answer that question and say of all

the boards, the Lower Tuki, are they in the Heretaunga Plains aquifer or 20

are they drawing off the river.

COMMISSIONER HOWIE: Do you have no idea?

MR MANNERING: I would suspect – well we did – we did have a visit from 25

the regional council, Helen Codlin came round and one of her

hydrologists and there was discussion about the deeper wells on the

Tuki, on the true ride of the Tuki and some of them wells being

70 metres, but it was pointed out that they were drilled from, you know,

up the hills from the Tuki, you know, so is it drawing off the river or is 30

it drawing off the – so they didn’t know either.

COMMISSIONER HOWIE: So you are really raising the issue there that a

plain 50 metre cut-off depends on what level you start at?

35

MR MANNERING: That’s right, you could build a hill 10 metres and are you

in the clear, and the hole you’ve dug is your pond, it is unknown, I

know in the Te Manamanga territory we have done a number of

irrigation jobs, I know as soon as you get up the top end of

Te Manamanga territory that it is definitely not off the Heretaunga 40

Plains, but they will be assuming that they are in the Heretaunga Plains

aquifer.

COMMISSIONER HOWIE: And then just finally, you mentioned at the

beginning that you hard orchards at St George’s Road, could you tell us 45

where that is?

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MR MANNERING: 290 St Georges Road.

COMMISSIONER HOWIE: Yes, where’s that? I don’t come from Hawke’s

Bay so - - - 5

MR……….: roughly between Hastings and Havelock.

MR MANNERING: Yeah.

10

COMMISSIONER HOWIE: Oh, okay.

MR MANNERING: So that is actually in the Karamu catchment catchment,

yeah, and the lawn road is in the Tuki catchment, the 450 Lawn Road is

in the Tuki catchment. 15

COMMISSIONER HOWIE: But it is in the downstream end of it, is it, Lawn

Road?

MR MANNERING: Yes. 20

COMMISSIONER HOWIE: Is it near Red Bridge or something?

MR MANNERING: We are on the Black Bridge, the seaward side of Black

Bridge so we are less affected. 25

COMMISSIONER HOWIE: Yes.

MR MANNERING: If it is from Red Bridge to Black Bridge which is the

affected area, but of course, the nature of the business that we are in we 30

are dealing with lots of orchardists that are in the affected area as well.

COMMISSIONER HOWIE: Thanks Mr Mannering, thank you, sir.

CHAIRPERSON: Mr Lawson. 35

MR LAWSON: Thank you, sir. Mr Mannering, the first former consent

duration, the five years, have you caught up with the proposal that there

is a proposed amendment, I think it is 20.10. Te Ata increased that to

10 years, does that - - - 40

MR MANNERING: That’s very good.

MR LAWSON: The other one about the reduction of current allocated levels,

I think you are referring to schedule 18 where everyone was pro rated 45

reduced, the proposal currently, and there are some who oppose that, so

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Central Hawke’s Bay Municipal Theatre 20.01.14

there is a proposal being put forward to increase the allowable

allocation to 28.5 million cubic metres which would mean that – and do

away with that schedule 18 process. I am just sort of trying to allay

some of the concerns you have expressed.

5

The third thing, or the third issue that you have got and Commissioner

Howie’s referred to it, this interconnection between groundwater and

surface water. It is really the same issue as the arbitrary 400 metres

from a surface water body, isn’t it, that applies elsewhere for the plan?

10

MR MANNERING: Yes, that used to apply and that was a defined goal post

and I can remember doing a number of jobs and getting the compass

out and drawing a 400 metre radius and placing the well outside of that

boundary. So you can see the intent is more sensible but - - -

15

MR LAWSON: There is no science behind it - - -

MR MANNERING: - - - there is no science but the methodology is there

which is great for interpretation but there is no science behind it or

hasn’t been applied, so we do not know who is going to be affected and 20

who is not going to be affected, and my gut feel would be, yeah, there

is a number of properties along Te Manamanga territory and twill be

effected when they assume that they are not.

[9.51 am] 25

MR LAWSON: Yes. Have you seen the evidence, the geology evidence,

where the various layers as far as they know, and it’s not a perfect

knowledge situation – but there was an aquiclude layer at about

30 metres but that was variable and hence the 50 metre cut-off. Have 30

you seen that evidence?

MR MANNERING: No.

MR LAWSON: Okay. Okay, thank you. 35

CHAIRPERSON: Thank you. Ms Lovell?

MS LOVELL: No thank you.

40

CHAIRPERSON: Mr Neill?

MR NEILL: Thank you. Just before you go, Mr Mannering, what do you

think about the proposal that there be water available to avoid root

stock death? Are you aware of that? 45

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MR MANNERING: From what I’ve read with 200 litres a second pro rata

between the affected parties is that - - -

CHAIRPERSON: Well, leaving aside the detail, what about the concept?

5

MR MANNERING: Yes that’s essential. It would be.

CHAIRPERSON: It’s not totally what you want but that would go some

distance would it to avoiding the problems that you’re foreseeing?

10

MR MANNERING: That’s right. So the only one is that 200 litre per second,

how many growers is it allocated to you at the moment. I think there is

an assumption that it’s X amount but no one knows.

CHAIRPERSON: Yes, okay. 15

MR MANNERING: So as I say the science has not been done to know how

many affected parties that 200 litres a second is going to apply to.

CHAIRPERSON: Yes, all right. Thank you very much Mr Mannering. 20

That’s very helpful. Apart from a representation from someone’s

who’s travelling up from Palmerston North, Mr Mannering’s is the

final representation and we will hear from Mr Riden (ph 2.21) later

today. Now Ms Graham, you have asked whether there should be an

opportunity – you don’t need to stand thanks very much – whether 25

there might be an opportunity for those who have presented

representations to effectively present closing submissions.

I am afraid the answer is no and there is a hearing process that has been

designed to enable information to be presented to us as efficiently as 30

possible and that does not include an opportunity for those who have

made representations to effectively come back at the end of the process

and make closing submissions. The exception has been that the door

has been opened to those who want to make comment on the outcome

of a planning conference that was held which was an unexpected 35

development, but that was in a very confined area and the other

exception was for those who wanted to comment on a report that has

been provided at the request of the Board by Mark Sinclair, a planner.

So I’m afraid that – and I should add that the time for those wishing to 40

take advantage of the opportunities to put in more information on the

two specific matters I’ve mentioned closed on Friday. I can understand

why everyone is keen to place as much information as they can before

the Board and we’ve greatly appreciated the information that has been

presented to us by all those who have provided representations 45

including yourself Ms Graham, but we do have to keep a rein on the

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process so I hope that helps you to understand why we can’t open the

door and if we did I suspect it would become a very wide door.

[9.56 am]

5

MS GRAHAM: Can I just thank you for even considering it? For people like

me who don’t have an expertise, we are a wide ranging number of

people – thank you for even considering it. I just felt that when you are

on the back foot people like me in small groups and that we weren’t

catered for in a sense. I understand your reasons and thank you once 10

again.

CHAIRPERSON: Well, thank you very much, Ms Graham, and to all others

who have presented representations. Now, we move to the matter of

Ms Gerard’s cross-examination. Now, Ms Gerard, would you like to 15

come forward.

MS……….: Does she have to have all of her documentation?

CHAIRPERSON: Well, no, that’s fine, just what you have got will be fine 20

and because this is an evidence base we will get you to move over to

where the witnesses give evidence from, Ms Gerard, thank you.

<SARA GERARD, sworn [9.58 am]

25

CHAIRPERSON: Have a seat, Ms Gerard, thank you. Before we go any

further there is an issue and the issue is whether you should be entitled

to present supplementary evidence, Ms Gerard. We have seen your

memorandum. We have also the memorandum from Mr Williams in

opposition. And the short answer is that it is simply not possible within 30

the processes for us to allow you to adduce further evidence or

supplementary evidence. To do so would not only breach the

procedures that we have outlined but it would be unfair.

All the other people who have presented evidence have provided their 35

evidence as required by the timeframe and then, apart from corrections,

when it comes to the evidence phase they have presented a brief

summary, which I know you have got, and then they are cross-

examined by whoever wants to cross-examine them.

40

In your case there was a development, however, and that arose in

relation to what has been loosely described as a the “bare” zone. After

Mr Lister had given evidence you raised the issue of whether there

should be some pictorial depiction of the bare zone and the matter was

left on the basis that Mr Lister and you would be able to look at that 45

matter and come up with a pictorial presentation of the bare zone.

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Now, to the extent that that might be supplementary evidence you are

entitled to give us a pictorial description of the bare zone but beyond

that I am afraid that we just can’t allow you to depart from the rules

that we have laid down. As you will have heard me to say, Ms Graham, 5

we have a process here and, apart from anything else, we work within a

very tight statutory timeframe of nine months and for that reason we

have had to adopt an approach that is as efficient and fair as it might be.

So we get to the point now where, subject to one matter that I want to 10

clarify with Mr Williams, you will simply read your concise summary

and, if you want to, you can present your pictorial representation of the

bare zone and then you will be subject to cross-examination by

Mr Williams.

15

[10.01 am]

The thing I want to clarify with Mr Williams is does Mr Lister intend to

present any more material relating to the bare zone?

20

MR WILLIAMS: No, sir, he has produced a supplementary statement which

was filed with that pictorial material. I think it is relatively self-

explanatory. He was available for questions.

CHAIRPERSON: Sure. 25

MR WILLIAMS: But, no, we are not intending to recall him for that.

CHAIRPERSON: No, that is fine.

30

MR WILLIAMS: As long as that statement is in.

CHAIRPERSON: All right. Well, thank you. Now, do you understand where

we are at, Ms Gerard?

35

MS GERARD: Part of it. Yes, I can understand the situation of having late

evidence, sir.

CHAIRPERSON: Yes.

40

MS GERARD: Given right from the beginning I needed to assess this work,

you know the purpose of this work is to provide the information

required for assessment.

CHAIRPERSON: Yes. 45

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MS GERARD: In Mr Lister’s supplementary statement produced with the

exhibit came new information.

CHAIRPERSON: Yes, you are entitled to respond to his supplementary

statement, I should have made that clear, yes. 5

MS GERARD: And in that supplementary statement was a new minimum

water level for the reservoir and that’s the whole issue I was trying to

address in my evidence.

10

CHAIRPERSON: Well, no, what we want to understand is the landscape

impact of the alterations in water level that might occur should the dam

go ahead. But as far as the scientific or hydrological evidence about

water levels, I am afraid that we are not about to get drawn into that in

a landscape context. We, early in the process, had the broad 15

fluctuations between the likely lower level and the likely top level and

it is the bare zone between those two levels that we are concerned

about.

MS GERARD: There is a landscape consequence to which the minimum level 20

- - -

CHAIRPERSON: Yes, but have you got a – there might be a much better

landscape description – have you got any pictorial representation of

what you think the bare zone will look like because your complaint, as 25

I understand it, was that the material already presented to us effectively

showed that as green which wasn’t, as you thought, representation.

MS GERARD: I certainly have.

30

CHAIRPERSON: So if you have got that material that will help us.

MS GERARD: Thank you.

CHAIRPERSON: So perhaps why don’t we start with you reading your 35

concise summary and then you present to us the pictorial information

you have got for us.

MS GERARD: Yes. Now, in my concise summary I refer to this extra

assessment work that I have done on the exhibit. 40

CHAIRPERSON: Right.

MS GERARD: So that also is an extra layer of - - -

45

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CHAIRPERSON: Well, let us work through your concise summary and if we

strike problems Mr Williams will no doubt let us know.

MS GERARD: Yes.

5

CHAIRPERSON: But I am still unclear, have you got any depiction,

something similar to what Mr Lister - - -

MS GERARD: Yes.

10

CHAIRPERSON: Would it be a good idea if we had those now so that we

have got them in mind when you are reading your evidence?

[10.06 am]

15

MS GERARD: Certainly, sir.

CHAIRPERSON: Okay. Can you help us, Ms Gerard?

MS GERARD: Yes. 20

CHAIRPERSON: Now, some of the material, at first glance, seems to be – is

it Mr Lister’s or not?

MS GERARD: That’s right. So we have got two exhibits and I’ll get the 25

supplementary evidence in place so that I – supplementary, yes, thank

you so much, it’s going to be a long morning. Right, now exhibit

documents for the assessment of fluctuating reservoir water levels the

following three image documents were produced.

30

CHAIRPERSON: I wonder if we could adjust the microphone please,

Ms Ioane because we are finding it difficult to hear.

MS GERARD: Should I sit over here, is that better?

35

CHAIRPERSON: Well, it is awkward for you I know but just so that we can

hear what you are saying.

MS GERARD: Thank you.

40

CHAIRPERSON: That’s great, thank you very much. Now we will try again.

MS GERARD: Exhibit documents, how does that sound – you are happy. For

the assessment of fluctuating reservoir water levels the following three

image documents were produced. Joint exhibit A. So this is the large 45

document which I have bounded, so the one with the bounded cover is

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the joint exhibit A images depicting reservoir water levels which was

produced by Isthmus. So that’s Mr Lister’s evidence in the joint

exhibit. This includes two additional viewpoints.

CHAIRPERSON: Yes. 5

MS GERARD: At the back of the document BPO5 and BP06. (INDISTINCT

3.06) from Marr viewpoint 2 but orientated to the south key (ph 3.14)

down the reservoir positioned where Mr Lister considers the likely

position of the public area and the terrain for the boat ramp. 10

In viewpoint BP05 is from the western dam abutment looking across

the dam towards Donnistan (ph 3.34) Valley.

Exhibit B, in the joint exhibit B. This document is the (INDISTINCT 15

3.58) All right. So joint exhibit B is the autumn level document, so

draw down in seasonal autumn fluctuations which has got this one on

the cover.

MS……….: This one here? 20

MS GERARD: Yes. Sorry, I’ll just double check.

CHAIRPERSON: Well, now, just before we go any further - - -

25

MS GERARD: Excuse me, I’ll just double check that it is.

CHAIRPERSON: Well pause for a moment, Ms Gerard, so that we can record

some exhibit numbers once Ms Ioane has been able to return to her

desk. 30

[10.11 am]

Now, the exhibit number we are up to is 86 so this volume, which is the

larger will be exhibit 86. And the smaller one - - - 35

MS GERARD: That’s the - - -

CHAIRPERSON: Well, we will just get an exhibit number and we will call

this exhibit 87 just so that we have got a record of these documents, 40

Ms Gerard.

EXHIBIT #86 – IMAGES DEPICTING RESERVOIR WATER LEVELS

FIGURES PRODUCED BY GAVIN LISTER AS AN OUTCOME

OF LANDSCAPE JOINT WITNESS CONFERENCING 45

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EXHIBIT #87 – IMAGES PREPARED TO SARA GERARD’S

INSTRUCTIONS DEPICTING A WATER LEVEL OF 405MRL

DATED DECEMBER 2013

MR NEILL: A question, Mr Chair? 5

CHAIRPERSON: Yes, sure.

MR NEILL: There is also a statement of evidence which is her original

evidence but with additions attached to it, as I understand it looking at 10

it, is that an exhibit or not?

MS GERARD: Yes, this is from Mr Lister.

MR NEILL: It is your evidence and which additions have been put to it? 15

CHAIRPERSON: Yes, following a telephone conference there was an

amendment to your evidence, do you remember the telephone

conference that we had, Ms Gerard, with the lawyers?

20

MS GERARD: Yes.

CHAIRPERSON: And some alterations were made after that to your evidence

and you did produce an amended version of your evidence, is this the

amended version of your evidence? 25

MS GERARD: Yes, and with after the conferencing as well.

CHAIRPERSON: Yes.

30

MS GERARD: And some minor changes to make it more readable for you.

MR NEILL: Is it an exhibit or is it just replacing?

CHAIRPERSON: Well, we will take it in as an exhibit but it is, as I 35

understand it, Ms Gerard’s evidence.

EXHIBIT #88 – TRACKED CHANGED STATEMENT OF EVIDENCE

OF SARA GERARD AMENDED 1 NOVEMBER

40

Now, you were going through explaining to us these various things. I

am just wondering whether it might be better for you to read your

concise summary and then come back and highlight to us the various

aspects of these two exhibits that you would like to emphasise.

45

MS GERARD: Yes, sir.

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MR WILLIAMS: Just before that happens, and this may be of assistance, I

have isolated within the concise summary three or four paragraphs that

I think relate to the supplementary evidence that hasn’t been allowed

and I can identify those now before they are read, if that would be the 5

approvable procedure.

CHAIRPERSON: Yes, that would be the helpful.

MR WILLIAMS: The additional material that I have identified that has found 10

its way into the concise summary would appear to involve, from my

point of view at least, paragraphs 4.2E regarding rewording of the

vegetation removal condition. Paragraph 4.2G dealing with

stabilisation of the bank. Paragraphs 4.3 and 4.4 regarding the

minimum level issue and the suggestion of a different boat ramp 15

location and paragraph 5.4, finally, regarding the place from which

Ms Gerard is now suggesting gravel for beach replenishment be taken.

Now, none of that material was either in the original statement, as

amended on 1 November or otherwise or fairly relates to the joint 20

witness statement that came in as a consequence in my submission, sir,

at least of the supplementary evidence. Equally, the schedule of

amended conditions, all of those were put through the supplementary

evidence that hasn’t been allowed. So, sir, those were the parts of the

concise statement that I would submit, following the Board’s direction, 25

should not be admitted.

[10.16 am]

CHAIRPERSON: All right, thank you, Mr Williams. 30

MR LAWSON: So that’s all of appendix 1 is it?

MR WILLIAMS: Yes.

35

CHAIRPERSON: From your point of view it is a difficult process and I can

understand it. Let’s see if we can work our way through these points

that Mr Williams has raised with us. Now if you go to page 6 he says

that paragraph (e) is new material and it doesn’t arise out of your – it is

in effect a concise summary of the evidence. Now is there somewhere 40

in the evidence, this is exhibit 88 that we’ve all got, that you did refer

to this matter or not? Because if it is new material I’m afraid that it is

caught by the ruling that I’ve made that supplementary evidence can’t

be provided but you might be able to point us to somewhere in your

evidence in chief that did cover this matter. 45

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MS GERARD: Or in conferencing.

CHAIRMAN: No, no the conferencing is something outside our hearing

process and as far as the Board is concerned we do not get involved in

the conferencing process except to the extent that I was drawn in 5

because there was a bit of an argument in your case, but what goes on

in the conferencing is not something that this Board is concerned about.

We simply look at the report as to the outcome of the conferencing.

MS GERARD: Yes. 10

CHAIRMAN: If it concerns the outcome of the conferencing that’s a different

matter.

MS GERARD: Yes, that was the outcome of the conferencing. I’m looking at 15

(e) is it?

CHAIRMAN: Yes.

MS GERARD: Yes. It is an outcome of the conferencing and then when I 20

had a look at the images, especially DP06, I thought well this is getting

a bit impractical when you have an area that is going to be inundated

for a significant amount of the time and that taking trees out of the

gorge is totally impractical.

25

CHAIRMAN: But what in particular did it relate to in the conferencing report?

MS GERARD: Sorry, it will be in my other evidence. My supplementary

evidence.

30

CHAIRMAN: I don’t want to get too bogged down in this whole process

because we’re going to take more time resolving it.

MS GERARD: Yes, it certainly is and we’ve changed a condition - - -

35

CHAIRMAN: What’s that?

MS GERARD: Mr Daysh has actually changed a condition on the basis of an

outcome from our conferencing on this matter and what I was doing is

trying to save money for the Hawke’s Bay Regional Council by not 40

having to clear vegetation from the gorge which would be totally

impractical. And something that NIWA report highlighted. They

considered that vegetation removal would be - - -

CHAIRMAN: All right, well Mr Williams is there any issue that it did arise 45

out of the conferencing report? I’m simply not going to get bogged

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down. We’re going to spend so much time debating process here, but

equally it’s got to be a proper process and that’s the conundrum we

have got.

[10.21 am] 5

MR WILLIAMS: I am with you there, sir. I have signalled the areas where

my submission do not connect with either of the conference statement

or the original statement of evidence or any of the additional

supplementary visual material, and I am happy to leave it at that, sir. 10

CHAIRPERSON: I think the approach we will adopt, we will let Ms Gerard

read it and then ultimately it will be for us assess the weight we give to

it.

15

MR WILLIAMS: Yes.

CHAIRPERSON: Because I can understand the points you have raised, but I

think that is going to be the most efficient way of getting around it.

20

MR WILLIAMS: These issues were covered in the conference statement but

not the proposition that we should now re-amend the condition that was

agreed in the conference statement and that is an example.

CHAIRPERSON: Yes, okay. Ms Gerard you go ahead and read your concise 25

summary.

MS GERARD: Sorry, I didn’t catch all the statements that Mr - - -

CHAIRPERSON: What we have decided Ms Gerard is that you will read your 30

whole concise summary to us and ultimately the Board, bearing in

mind the issues raised by Mr Williams, will decide the weight it gives

to – of course, the whole of your report, and in particular, those matters

that Mr Williams is not happy about.

35

MS GERARD: Thank you, sir.

I apologises about these glasses, I’ve got irlen if you are wondering.

CHAIRPERSON: That is all right. 40

MS GERARD: Precise summary of evidence. Introduction.

I present myself today as a no-independent landscape witness. I do this

with the intent to provide an overriding duty to assist the Board 45

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impartially on matters within my area of expertise as a landscape

architect.

After placing a submission opposing the RWSS in part, with advice

from the friends of the submitter, I have entered into this contesting 5

witness role. My rose is to assess the actual and potential effects on

natural character, landscape and visual amenity if the proposed RWSS

proposal involving the dam reservoir distribution network and the

potential land use changes enabled by the waters applied through the

WS. 10

I understood two full days of site assessment made possible with a time

extension granted by the Board enabling my visit to the dam site. My

apologies to the Board that my statement of evidence document is not

as polished as I would have desired. 15

During preparation of my evidence, I sought through information

regarding fluctuating reservoir water levels, undertook private

conferencing with Mr Lister and prepared a joint witness statement. I

also prepared fluctuating reservoir water level imageries for a joint 20

exhibit and supplementary statement of evidence in regard to the new

information.

This concise summary is derived from material from all these

documents. I have some paraphrasing and rewording in order to be 25

precise. As a result of the assessment and conferencing work, there are

several additions and amendments to conditions I would like the board

to consider. For the Board’s and the expert planning convenience, I

have attached these as appendix 1. I ask for the Board’s indulgence

that these maybe considered accordingly. 30

My concise summary focuses on the main landscape issues relevant to

the RWSS and Plan Change 6. I have followed Mr Lister’s concise

summary in the general format for the Board’s convenience.

35

Natural character. Summarising my landscape assessment in my

evidence-in-chief, the proposed RWSS project will have significant

effect on the natural and landscape character of the Tukituki catchment

caused development of:-

40

[10.26 am]

(a) A large in-dam interrupting a major tributary within the Tukituki

catchment as a graded river system, affecting the natural flow of water,

coarse and fine sediment, natural ecology and intrinsic values on hills 45

of the sea.

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The extent of river footprint causing the loss of the river landscape

derived from the terrace gorge and braided river landform and mature

indigenous forest and associated intrinsic value, the extensive water

distribution network that extends across other tributaries within the 5

catchment and is incoherent to natural catchment drainage patterns.

(b) The RWSS would cause potential changes in distinctive landscapes

with the Tukituki catchment changing scale and shape in production

areas caused by large travelling irrigators. 10

(c) Natural character of the dam and reservoir.

Both Mr Lister and I agree, there will be significant adverse effects on

natural character in the vicinity of the dam and reservoir. We both 15

agree that natural character would be preserved.

In my opinion, in terms of natural character and the in-river dam as in

an inappropriate location and should be avoided due to the following.

20

See (a) and (b) on the previous page.

(b) This level of visibility that Mr Lister refers to is not relevant to the

river’s natural character. The adverse effects of adverse character

would still be significant whether one can see it or not. The level of 25

visibility of the dam in the reservoir, I consider to be a visual amenity

issue.

(c) I consider, while the reservoir has the Ruahine Range backdrop

and surrounding plantation forestry and extensive pastoral farming, 30

there is a degree of naturalistic appearance described by Mr Lister.

This reservoir in this present setting, will provide degrees of landscape

amenity. However, the reservoir will not provide natural character.

(d) In my opinion, the integrated mitigation offset approach measures 35

will not avoid, remedy, or mitigate loss of natural character, ie the

natural processes the river, terraces, gorge and braided river landform

and associated to intrinsic values.

4. Fluctuation design and landscaping amenity of the reservoir. 40

In my opinion, the photo montages prepared in the applicant’s

landscape assessment showing an attractive lake at full water level, is a

misrepresentation of a purpose built, irrigation reservoir and a range of

levels that should have been provided. 45

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In my opinion, the dam reservoir when drawn down, especially during

summer and dry years, will not have the qualities of being picturesque

or a serpentine lake as provided by the applicant document suite

imagery and described by Mr Lister in his evidence.

5

The issues and reasons for this are:-

(a) In our conferencing we agreed that the working reservoir, that will

be a working reservoir and will therefore not have the same amenity as

the natural lake with relatively stable water levels. 10

(b) The fluctuating dendritic nature of the reservoir giving it much

greater edge effect than the oblong water body. I consider, in terms of

fluctuating water levels in relationship to the landscape amenity, Lake

Pukaki referred to by Mr Lister and the RWSS reservoir cannot be 15

compared.

(c) Regarding fluctuating reservoir levels and the effects of dust, in his

evidence rebuttal, Mr Fisher states, “The large flats areas such as

former river terraces and the top surface of the sediment delta, will be 20

more likely to trap sediment and cause dust than the riverbed at present.

[10.31 am]

The management options would be to reshape these areas with an 25

increase in slope towards the lake to encourage the removal of fine

sediment by erosions and waste.

I accept Mr Fisher’s statement and I would like the Board to consider a

condition and information in schedules 1 and 9 that refer to 10.2 in 30

appendix 1.

(d) In my opinion, the proposed revegetation, the 20 metre buffer

planting and proposed gravel armoring areas of the reservoir margins

will not be able to mitigate the adverse effects of a large extent of 35

fluctuating ‘bare zone’(INDISTINCT 0.51) of the drying deposited

gravels, mud, silt and resulting dust through reservoir drawdown.

Now, would you like me to refer you to - - -

40

CHAIRPERSON: Yes, just press on.

MS GERARD: Yes?

CHAIRPERSON: Thank you. 45

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MS GERARD: (e) In the application suite document it is not clear whether

the vegetation in the reservoir footprint would be removed and as a

result in our conferencing schedule 1, condition 20B has been reworded

so it is explicit in its intent.

5

However, for reasons of practicality regarding the gorge area I would

like to ask the Board to address and consider the rephrasing of this

condition. I refer you to 10.4, appendix 1.

We also need it agreed that extending this 20 metre buffer to plantation 10

forest edges would also be beneficial, especially when clear felling of

the plantation forestry around the northern and north-eastern sides of

the reservoir occur.

I ask the Board to consider the 25 metre wide planted buffer as 15

recommended in the NIWA Reservoir Water Quality report to be

concluded in the relevant conditions and budget provisions. I refer to

10.5, appendix 1.

(g) Potential stabilisation treatment of slide located on the true right 20

half a kilometre upstream of the dam has yet to be resolved and there

are landscape effects of stabilisation works under CEMP (ph 2.45) are

an unknown. The degree of earthworks required may not be indeed a

minor effect on the landscape.

25

In regard to the stabilisation work, in my opinion planting and drainage

described by Mr Lister for this situation would be ineffective, and that

is due to the fluctuations.

CHAIRPERSON: Mm. 30

MS GERARD: 4.3 – In preparing of the fluctuating reservoir water evidence I

found there to be conflicting references in the application document

suite in regard to the minimum reservoir water levels.

35

I would like to ask the Board to address and consider a condition to

provide for a minimum reservoir water level of 423 MRL. I refer you

to 10.1 in appendix 1.

Other potential benefits may also need assessing and considered by 40

other experts – sedimentation, recreation and water quality.

Around 700 metres downstream in a bay shaped area I consider there to

be a suitable sloping terrain for a boat ramp and public access with

good proximity to the reservoir pool at summer and autumn levels. In 45

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my opinion this would be an alternative, preferable location for public

access. Refer to 10.2 of appendix 1.

5) Natural Character Effects Downstream of the Dam – refer to 1.8A.

It was agreed that there would be changes to natural character of the 5

Makaroro River downstream of the dam, which will be diluted as one

goes downstream.

In my opinion these changes would be adverse mainly due to the

change in pattern of the seasonal flow and the geomorphology and 10

mixing of waters through the distribution network and the reduction of

energy flowing down through the river affecting the dynamic natural

characteristics of the river to the coastline.

[10.36 am] 15

Any reduction in water quality causing growth of slime will have an

adverse landscape effect. In my opinion the area zoned for gravel

extraction upstream of Black Bridge at Tukituki estuary has a high

natural character and landscape values and it would be preferable to 20

allow the river to transport the gravel out to the river mouth naturally.

In my opinion the gravel supplies regarding for beach nourishment

should be extracted from the reservoir delta and I ask for the Board to

consider the relevant conditions to provide for that intent. Refer to 25

10.8, appendix 1.

Primary Distribution System, Zone M – It was agreed that the proposed

approach for conveying water in the old Waipawa River bed and

Papanui Stream channel with some positive natural character and 30

landscape effects is preferable to the alternative piping option included

in the proposal.

Mr Lister consider pipelines are benign in the general sense and I

consider piping would adverse because it would take the environmental 35

values of the catchment’s water out of the landscape.

I consider there should be community discussion on the merits of

piping for water conveyance. This process should provide engineering,

economic and environmental whole life cost assessment. This would 40

assess whether piping the water underground is benign in terms of

natural character and landscape, as being described by the applicant.

Head Race, Canal and Pipeline – refer to 1.8C, 7.2. The proximity of

the head race to residential houses, location of bridges et cetera, will 45

need to be carefully worked through as it will affect people’s daily

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lives. That canal formation would be seen from State Highway 50 and

other roads, mostly as (INDISTINCT 2.45) glimpses depending on the

degree of future vegetation clearance.

In my opinion the canal alignment would be more visually coherent if it 5

had terminated at a river rather than Ashcroft Road. I consider the

further environmental engineering detail could provide opportunities to

incorporate environmental and other values into the canal head race.

8) Natural Character, Landscape and Visual Amenity Effects resulting 10

from the changes in land use enabled through RWSS – In our

conferencing we agreed guidelines should be developed to promote

landscape values, including biodiversity in conjunction with irrigation

and land use change.

15

Potential change of the existing patchwork landscape pattern on the

plains would occur from irrigation, most notably with the removal of

shelter planting on the plains and indigenous trees from the lower river

terraces.

20

I consider the longer the irrigators the greater the removal of trees, the

more monoculture the character of the landscape becomes. The

circular irrigator changes the cultivation from geometric to a circular

pattern. In my opinion the more monoculture the character of the

landscape the greater the adverse effect on biodiversity. 25

In regard to the issue being raised regarding potential removal of the

shelter planting I would rather see relevant industry sector and regional

council advocacy solutions instead of specific provisions under the

Essential Hawke’s Bay District Plan. 30

In my view precise controls would not be appropriate and potentially

cause a rush of clearance prior to any rule being put into place, and

discourage new shelter and farm tree plantings in the future.

35

[10.41 am]

Scattered indigenous podocarp trees provide important feature on the

distinctive landscape character of the undulating terrace landscape.

Some of this landscape falls under RWSS land use zone. In my 40

opinion it is likely scattered podocarp trees would need to be cleared

for the path of irrigators. I agree with Mr Lister district plan rules need

to be more targeted to protect the scattered remnant indigenous trees if

this landscape is to remain under the RWSS land use zone.

45

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Conclusion. In my regard to provide for the preservation of natural

character of the Tukituki River and its tributaries a dam located on the

Makaroro River should be avoided and alternative solutions to manage

river flows, no flows, river habitat, cultural values and the demand for

irrigation within an integrated management strategy should be sought. 5

I consider the RWSS proposal requires an in-river dam and extensive

across catchment type distribution of irrigation water which would

adversely affect natural features, patterns and processes within the

Tukituki catchment.

10

The proposed in-river dam as a major tributary of the Tukituki braided

river system would have ongoing adverse effects to natural flow

patterns of water and cause sediment geomorphology, natural ecology

in the associated intrinsic values from the hills to the sea. In my

opinion in terms of natural features, patterns and processes expressed in 15

the landscape the extent of adverse effects of the RWSS on the river

from the hills to the coastline cannot be effectively avoided, remedied

or mitigated.

Therefore the overall short to long term adverse effects of the proposed 20

RWSS on the natural character of the Tukituki braided river system is

significant.

CHAIRMAN: All right, thank you very much. Now could you briefly highlight

the points you want to from these two pictorial presentations. 25

MS GERARD: Well for the minimum reservoir water levels R15 and 405RL

which is the smaller document.

CHAIRPERSON: Have you got them with you? 30

MS GERARD: Sorry?

CHAIRPERSON: You’ve got them with you?

35

MS GERARD: Yes.

CHAIRPERSON: Perhaps if you could just give us the page number that

you’re looking at with the particular document?

40

MS GERARD: Yes. So I’ll go through the exhibit shall I?

CHAIRPERSON: You want to start with this one do you?

MS GERARD: Yes, please. 45

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CHAIRPERSON: Or which one?

MS GERARD: Do you want me to describe them all first?

CHAIRPERSON: No, just very briefly highlight the points that you’re 5

making.

MS GERARD: Right so for 40 – this one here.

CHAIRPERSON: Okay. 10

MS GERARD: Which is C.

CHAIRPERSON: Exhibit 87 we’re looking at.

15

MS GERARD: So minimum reservoir levels 415MRL and 405MRL have

been included in my assessment as worst case scenarios.

CHAIRPERSON: Yes.

20

MS GERARD: I’ve included these because there are several conflicting

references of the operating level range in the applicants references.

And that ranged from 65 I’ve got here. 37, 47 and 52 as minimum

levels. So I’m just sort of thinking well there’s so many levels that

have been talked about how am I going to assess what is the actual 25

lowest level that we’re dealing with. So I have produced these to show

that lower impact. So Mr Lister’s evidence has been based on these

two reports that he’s produced on the figure 2.8 in Tonkin and Taylor -

- -

30

[10.46 am]

CHAIRPERSON: So each of these shows a particular level?

MS GERARD: Yes. 35

CHAIRPERSON: Okay.

MS GERARD: So just as a demonstration of what the lower level would look

like if we went – if the reservoir was taken lower than what was 40

modelled for the report, sorry for the figure 3.8. So therefore I’m

thinking well because it’s been modelled and data saying that’s the

worst case scenario is 424MRL well then can’t we have a minimum

water level set.

45

CHAIRPERSON: Okay.

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MS GERARD: So that was my discussion that I needed to illustrate in my

evidence of why I looked at that so that’s why I quoted different

applicants references in my supplementary evidence.

5

CHAIRPERSON: Right.

MS GERARD: So that’s that main issue there. So the next one was just really

a small issue about trying to just work through the project figure 3.8 in

the project description which was provided by Isthmus in their report 10

that there is this situation where you have the secondary irrigation

tranche. Now that is a temporary – I’ll just read this. Assuming that

this, sorry. I am assuming from this all round - - -

MR WILLIAMS: The witness is reading from the supplementary statement 15

which has been struck out.

MS GERARD: Sorry.

MR WILLIAMS: I think the questions are, could she go to these exhibits and 20

show us what she wants us to see.

CHAIRPERSON: Yes, sure. Now all we want Ms Gerard - - -

MS GERARD: Right. 25

CHAIRPERSON: - - - you have taken us through exhibit 87 and we – just

highlight anything in this other exhibit that you want us to take note of

but again just highlight the important – the thing that you want us to

take from the material. We’ve got it in front of us and just draw our 30

attention to the page number if you want to. Or alternatively we could

simply proceed with cross-examination because I think we’re capable

of interpreting these ourselves. So it’s only any highlights that you

want us to take.

35

MS GERARD: I think maybe the - - -

CHAIRPERSON: Sorry, just pause here. Ms Lovell has pointed out that there

is another one that I haven’t even appreciated existed. Let’s get an

exhibit number and that will be exhibit 89. 40

EXHIBIT #89 – IMAGES DEPICTING RESERVOIR WATER LEVELS

DRAW DOWN AND SEASONAL (AUTUMN) FLUCTUATIONS

PREPARED BY SARA GERARD

45

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[10.51 am]

Well this seems to have some features in common with exhibit 87 just

at a quick glance.

5

MS GERARD: Yes, it’s really – two exhibits were produced - - -

CHAIRPERSON: You run the risk of confusing us with too much information

here, Ms Gerard.

10

MS GERARD: Yes the problem was the Isthmus exhibit was delivered

straight to EPA - - -

CHAIRPERSON: Yes.

15

MS GERARD: - - - on the 16th and I hadn’t had – that’s pretty much when I

received it so I hadn’t done my work. So that’s where this problem is

where we’ve got this extensive range of material.

CHAIRPERSON: Just to make sure that at I’ve understood from your point of 20

view the purpose of these pictorial exhibits is to illustrate to us what the

impact of the bare zone depending on water levels at a particular time.

That’s in a nutshell isn’t it?

MS GERARD: Yes. 25

CHAIRPERSON: Okay.

MS GERARD: And also the fact of the fluctuation on the terrain.

30

CHAIRPERSON: Fluctuation on - - -

MS GERARD: The effect of fluctuation on the terrain.

CHAIRPERSON: Yes, sure. 35

MS GERARD: So when you have this – what I’m looking at when I assess

this is what that fluctuation is going to be doing to the terrain, how it

interacts with the terrain.

40

CHAIRPERSON: Yes, sure.

MS GERARD: And that has a long-term effect so that things like the terraces

and how that - - -

45

CHAIRPERSON: Okay.

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MS GERARD: - - - works with fluctuations. Whether it’s going to be turbid

or water or what happens to the change in slope that they’re looking at

and that whole erosion process.

5

CHAIRPERSON: Your point is that I was too restrictive in referring to the

“bare zone”, the whole thing should be put in context depending on

particular location. Okay.

MS GERARD: It’s really the effects of the fluctuating water levels. 10

CHAIRPERSON: Yes, all right well I think we’ll go to cross-examination

now.

MS GERARD: Thank you, sir. 15

<CROSS-EXAMINATION BY MR WILLIAMS [10.54 am]

MR WILLIAMS: Good morning, Ms Gerard.

20

MS GERARD: Good morning, Mr Williams.

MR WILLIAMS: I don’t have many questions and I’d like this to be as

constructive and as amicable as possible this morning Ms Gerard. So

what I’d first like to just understand from you is if we could have a 25

handle on, and if I can just make sure I properly understand, what your

principal concerns are. Would it be fair to say that as summarised in

the concise summary there are really three main aspects of concern.

One, the dam and reservoir. Two, the water distribution network

infrastructure. And three, land use change from irrigation. Would that 30

be the main areas of concern to you?

MS GERARD: No, sorry. The main area of concern is interrupting the

natural river system.

35

MR WILLIAMS: Okay so that would be the first point at your summary

2.1A?

MS GERARD: Yes. I’ll just have a double-check there. I consider interrupting

the natural river system, its processes and patterns. That’s the most 40

important.

MR WILLIAMS: More important than the other points that you’ve set out at

2.1? I’m just not wanting to waste the Board’s time. I’m wanting to

get to the nitty gritty and talk to you about the issues that are most 45

important to you.

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MS GERARD: I’m just trying to work out what you – understand your point

Mr Williams. So no, 2.1 is just looking at natural character and I’m

following Mr Lister’s point. Sorry, I’ll just have a look. I do follow

Mr Lister’s points so it’s sort of like relating to that but overall I think 5

my conclusion is where my main aspect of concern is.

[10.56 am]

MR WILLIAMS: Okay. Well look, can I just deal firstly, before we get back 10

to the dam reservoir – I am going to work in reverse, if you like, I am

going to start at almost the bottom and work up in terms of this overall

system and the issues you have raised. I am going to start with land use

change, okay?

15

MS GERARD: Mm’hm.

MR WILLIAMS: One of the dimensions you touch on in your various

statements of evidence is that there would be, as you say in your

concise summary, distinctive – well, there would be changes to the 20

broader landscape of the Ruataniwha Basin from irrigators and removal

of shelter belts, that sort of thing, right?

MS GERARD: Yes, I do discuss removal of shelter belts.

25

MR WILLIAMS: Yes. Would you accept through that that would really just

be part of (and if the scheme is approved) a sequence of land use

change in the Ruataniwha Basin, which has been an area of land that

has been dynamic and evolving for over 150 years of agriculture?

30

MS GERARD: The pattern certainly – it has, yes, evolved of the – yes, yes

certainly.

MR WILLIAMS: And this would be another step in that evolution, it’s a

dynamic working environment, isn’t it? 35

MS GERARD: Yes, it’s the monoculture I’m concerned about. The

monoculture – can I extend from there please, sir? May I extend on

from that question?

40

MR WILLIAMS: Carry on.

MS GERARD: Right, thank you.

MR WILLIAMS: I have got my - - - 45

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MS GERARD: The monoculture is a concern because of the effects on

biodiversity, especially when you look at the effects on vertebrate and

with those shelter provides other functions as well. It reduces the

evapotranspiration rates and the need for putting water on the

landscape. And the shelter belts protect the soil and provide shade and 5

shelter for the stock. So they’ve got many different reasons for

existence as far as they provide the aesthetic and amenity in the

landscape.

MR WILLIAMS: Where the shelter belts are removed as a consequence of the 10

scheme it would depend on individual land owner requirements and

decisions over time, wouldn’t it?

MS GERARD: Yes, but we can only but encourage farmers and land owners

to keep their shelter belts. 15

MR WILLIAMS: And other than in river margins there is no district or

regional plan rule that currently requires shelter belts to be retained, is

there?

20

MS GERARD: No, and I do not advise that to happen.

MR WILLIAMS: Now, moving back up the system into the water distribution

network you would appreciate that some 200 kilometres of primary and

secondary distribution network is involved here, Ms Gerard, but only 25

18 kilometres of it is above ground. Do you understand that?

MS GERARD: Yes.

MR WILLIAMS: And in terms of the above ground 18 kilometre component 30

the joint witness statement acknowledges that those canals could in

some respects be a positive feature?

MS GERARD: Yes.

35

MR WILLIAMS: Yes, and that the proposals appended to Mr Lister’s

evidence represent best practice for integration of those canals into the

landscape, don’t they? You have agreed that in the joint witness

statement?

40

MS GERARD: Yes. The canals are a significant feature. Through this

conferencing I learnt that they could be 14 to 22 metres in width – that

is the actual canal itself. So that is sort of the size of between the canal

was compared in our conferencing to be one between Tekapo and

Pukaki, so if somebody would like to imagine that on the landscape, it 45

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is a reasonable feature on the landscape that can be positive or it can be

negative, so it needs to be carefully considered.

[11.01 am]

5

MR WILLIAMS: Yes, and in terms of the Zone E Papanui Stream part of the

system, you would acknowledge that the restoration of the Papanui

Stream is a positive feature of this distribution system in natural

character terms?

10

MS GERARD: Whether it happens within this scheme or not, it would be a

positive work to do.

MR WILLIAMS: Right.

15

MS GERARD: And I think that abstraction could happen without the scheme.

MR WILLIAMS: Okay. With regard then - moving back up to the to the top

to the dam and the reservoir, you would accept that any large water

storage dam in a river gorge setting would have a significant impact on 20

natural character, wouldn’t it, there is really not avoiding that is there?

MS GERARD: No, you cannot avoid it.

MR WILLIAMS: You take Mr Lister to task for raising the issue of its relative 25

visibility and you point out in your concise statement, that the natural

character in fact arises regardless of visibility, but in terms of whether

the development is appropriate which is part of section 6A, you would

accept that its relative visibility is a relevant consideration, wouldn’t

you? 30

MS GERARD: I have always considered the visibility question around natural

character and that is where I separated it out. In terms of natural

character, visibility is not an issue because, you know, you look at

(INDISTINCT 2.07) got natural character but it is not highly visible 35

from anywhere else.

MR WILLIAMS: So my question to you was accepting that the dam would

not preserve natural character from just one part of section 6A - - -

40

MS GERARD: Yes.

MR WILLIAMS: - - - as to whether it is appropriate the extent to which it is

visible is a relevant consideration, isn’t it?

45

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MS GERARD: I have put it further down the spectrum of decision making,

yes.

MR WILLIAMS: But from your landscape perspective, it is a relevant factor

you would apply in assessing the effects of this sort of thing, isn’t it? 5

MS GERARD: I wouldn’t think it is actually whether the dam is highly

visible or not, is not a – um, I am trying to work out your question.

Um, the visibility is an issue of amenity.

10

MR WILLIAMS: Right, so you don’t see it as relevant in a natural character

impact context?

MS GERARD: I said in my concise summary, it is about visual amenity.

15

MR WILLIAMS: If you agree with Mr Lister that the relative visibility of this

dam is lower than say, some other site, and its visual amenity impact is

therefore lower than some other site, wouldn’t that inform the issue of

appropriateness?

20

MS GERARD: No, I mean, you could have a dam on the Tukituki lower

down, that is not going to be a major issue regarding its

appropriateness. A dam can be positive in the landscape as well, but it

is not an important criteria, whether it is visible or not, it is how it is

placed in the landscape is what is important. 25

MR WILLIAMS: But whether this dam would have any greater or lesser - - -

MS GERARD: - - - so the designer that, yeah.

30

MR WILLIAMS: Well, whether this dam would have any greater or lesser

impact than some other site, and you would understand that there were

a range of sites investigated, is also going to be – the developer is going

to need to consider engineering issues, how well it is going to catch a

water, the topography of the landscape, is it a good place in terms of it 35

being in a gorge, that sort of thing, aren’t they?

MS GERARD: I think the main thing the engineers will – I won’t talk about

the engineers. When I think of alternative sites, I keep thinking of

maybe solutions like the Rangitata south wetlands that have just been 40

built, the ponds there I think that’s a solution where you have

abstraction and create water storage in that way and you could turn it

into a multi bayou water storage system. It would be highly visible but

it could be well designed and fit into the landscape. So there are

alternatives – am I answering your question, sorry? 45

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[11.06 am]

MR WILLIAMS: I guess what I’m most interested in is for you to confirm

that in discussing the issue of alternatives and what’s appropriate in

terms of whether the site is you really have to focus just on your 5

expertise which is landscape. You can’t comment on relative attributes

of sites from an engineering hydrology perspective can you?

MS GERARD: We have to interpret what the engineering and all other works

– we have to interpret that onto the landscape. So what other work’s 10

going to look like on the landscape.

MR WILLIAMS: I’m not sure that you answered my question.

MS GERARD: Sorry. 15

MR WILLIAMS: I just wanted you to confirm whether or not in discussing

the issue of what’s appropriate that you were confining – you’d accept

you’d have to confine your response to landscape. You can’t comment

on engineering hydrology cost factors that sort of thing, can you? 20

MS GERARD: Well again you have to know that information to interpret it

onto the landscape. Just like you’ve got to know what water level

we’re dealing with. And interpret that onto the landscape. So you have

to understand what you’re dealing with. 25

MR WILLIAMS: Right. Just really dealing then on this issue of water levels.

Can I ask you to have in front of you – let’s go to exhibit 86. Page 11.

MS GERARD: Yes. 30

MR WILLIAMS: And compare that with exhibit 86, page 14. Okay?

MS GERARD: Yes.

35

MR WILLIAMS: Now you said this morning in giving your concise

statement that despite your status as a submitter you’re wanting to

advise the Board impartially and give the benefit of your expertise to

help it make its decision, that would be fair?

40

MS GERARD: Mm’hm.

MR WILLIAMS: Looking at this purely objectively what do you think is

most helpful for the Board to understand how the reservoir will appear

most of the time and for example page 11, 70 per cent of the time, or 45

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how it would only appear a small fraction of the time as on page 14?

Why do you need to go to these extremes?

MS GERARD: Because what I was looking at was the seasonal effect. When

people are more likely to go and use the water body, the reservoir, 5

would be probably in the summer and early autumn. From December

through to perhaps – January through to March.

[11.11 am]

10

And that’s why I sort of looked at the seasonal levels and so in this

exhibit here I have gone to – so if we go to page 7 in this exhibit. Yes.

You’ll see that I was trying to give – say in page 7 - - -

MR WILLIAMS: This is exhibit 88 you’re now talking about. Is that right. 15

MS GERARD: Yes.

MR WILLIAMS: Or 89?

20

MS GERARD: Sorry, the question again?

MR WILLIAMS: I was actually asking you a question about an entirely

different exhibit. I’m just wondering why you think it’s helpful for the

Board and why you’ve really taken so much effort to get all these 25

extremes on the table. What is most helpful to the Board Ms Gerard

objectively is the way this reservoir would appear most of the time or

only in small fractions of any given year.

MS GERARD: Well I think the seasonal aspect needs to be considered. So 30

when you look at it for the percentage of the season it’s going to be –

when you go there at that time of year 20 percent of the time it’s going

to be lower than that level. Around about that 17 per cent. So you’re

sort of like – you think well would the reservoir be low when I go there

or not. What would it look like? What would it feel like? Do I want to 35

go there? And that’s the whole humanity side of it. So that’s where I

was having to look at the assessment of that.

MR WILLIAMS: But you’re not saying that people only recreate in this area

in autumn? People would go in spring, summer and autumn if not 40

winter wouldn’t they?

MS GERARD: We hope so.

MR WILLIAMS: Yes. So why then again this fixation that you seem to have 45

on making sure this Board absolutely understands the absolute

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extremes? Surely what’s most commonly going to happen would be

more helpful. That’s the question I’m putting to you.

MS GERARD: Well I accept that these water levels are – for most of the time

that water level in that – again I tried to find out in my statement of 5

evidence there I talk about the tranches and then later on when the

secondary tranche – the primary tranche is used up when you still have

the functions of having to do the environmental services for the river

downstream that the reservoir will have more demand on it in 15 /

20 years’ time. So they’ll be reduced more often to the lower levels 10

and - - -

MR WILLIAMS: Ms Gerard the question I put to you and I’ll get to this issue

of where the secondary irrigation’s factored into these simulations is a

simple one. What is most helpful to the Board the reservoir as it will 15

appear most of the time or only in the extremes.

MS GERARD: Well if they’re going to go down to the extreme it’s going to

take longer to fill up isn’t it. So you are going to - - -

20

CHAIRPERSON: I still think you’re really at cross purposes and I’m not sure

that the cross purpose is ever going to be resolved but your point is

something the Board can take into account I think Mr Williams is

perhaps the easiest way forward.

25

MR WILLIAMS: Moving on Ms Gerard, you understand that and you asked a

specific question and it was specially answered that these simulations

include the secondary irrigation tranche don’t they?

MS GERARD: Yes. 30

MR WILLIAMS: Right.

MS GERARD: They do.

35

MR WILLIAMS: Okay. Now we’ve also understood that in terms of your

request that Isthmus Group acceded to to produce the 405 and 415

extremes, that across 36 years of modelling the minimum average level

was in fact RL 444, some 40 metres above RL 405, wasn’t it, do you

understand that? 40

[11.16 am]

MS GERARD: Mm.

45

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MR WILLIAMS: So the fact that the reservoir outlet might be at 405 is really

only putting up a theoretical possibility, isn’t it?

MS GERARD: Yes, and I think it’s quite an interesting point where I still

state with Rula’s (ph 0.55) statement that she, you know the absolute 5

minimum is the worst case scenario is 423, the absolutely worst case

scenario in the modelling, And they talk about that, you know, in most

- and I’ll get the wording correct – “While the minimum predicted

water level in an extreme year is 423 MRL (ph 1.37) the annual

minimum level averaged over all years is 44 ML”. So, yes, so therefore 10

would it not be preferable to actually have a minimum level set?

MR WILLIAMS: Okay, you have no understanding of the engineering,

maintenance or other factual obligations of setting a minimum level,

would you, it is purely from an amenity perspective you are talking? 15

MS GERARD: Well, exactly, yes.

MR WILLIAMS: Look just - - -

20

MS GERARD: And that’s other experts could consider the benefits of setting

a minimum level such as water quality and the water quality report,

NIWA report - - -

MR WILLIAMS: No, I am not going to let you. Sir, the witness is now trying 25

to open the door on the supplementary statement through the answer on

an amenity question. Sir, I just don’t think that is fair.

CHAIRPERSON: Well, we have to stick to your area of expertise, okay.

30

MR WILLIAMS: Thank you, sir. Just one, really it is just the last question I

wanted to ask you, Ms Gerard, is the simulations that have are

produced through 86 to 89 are schematic in the sense that they show

the bare zone as a pink area and the mitigation is a yellow strip. Now -

- - 35

MS GERARD: Sorry, I’ll just find myself again, the - - -

MR WILLIAMS: Simulations showing the bare zone as pink and the

mitigation area as yellow are just schematics. 40

MS GERARD: Yes.

MR WILLIAMS: The question I want to put to you is that in fact you would

accept that if one were to look at the bare zone from any of these 45

simulations, let’s just take page 12 for example of exhibit 86, that pink

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zone would in fact have a mix of texture, it would have gravels, sands,

driftwood.

MS GERARD: Sorry, what number, what page?

5

MR WILLIAMS: I said page 12, it doesn’t really matter. The point I am

putting to you is that you would accept in real visual terms it is not

going to appear uniformly pink, it is going to have a mixture of texture

and colour, it’s going to have driftwood, it’s going to have sand, it’s

going to have siltstone cliffs, that sort of thing, isn’t it? 10

MS GERARD: The bare zone, yes, it will.

MR WILLIAMS: It will comprise a mix of those features?

15

MS GERARD: And so like the vegetation would be, you know that they do

not clear from the site would be sort of like a smudgy brown or quite a

bit of tone. Yes, there will be gravels, silts, cliffs and the dying

vegetation.

20

MR WILLIAMS: Thank you, sir.

CHAIRPERSON: Thank you, Mr Williams. Ms Lovell?

MS LOVELL: No. 25

CHAIRPERSON: Mr Neill? All right, we will take the adjournment because

Mr Neill and possibly other Board members have a few more questions

to be put to you, all right.

30

MS GERARD: Thank you.

CHAIRPERSON: Thank you.

ADJOURNED [11.21 am] 35

RESUMED [11.38 am]

CHAIRPERSON: Mr Neill?

40

MR NEILL: Thank you, sir. Thank you for the extensive group of photographs

and I have compared the originals which we had against yours and so I

fully understand the purpose for which those photographs have been

provided and it has helped, so thank you for that.

45

MS GERARD: Thank you.

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MR NEILL: Can we just go on a little journey and - - -

MS GERARD: Sorry, I am having a wee bit of difficulty hearing, thank you.

5

MR NEILL: Okay. I thanked you for the photographs and said that they were

helpful.

MS GERARD: Yes, thank you.

10

MR NEILL: Now, I want us to go on a little journey just to look at a couple of

things that relate to your evidence. Can we start at Lake Manapouri,

are you familiar with the fluctuations in respect to that lake and have

you ever inspected it?

15

MS GERARD: No.

MR NEILL: Okay. Then if we move up the South Island more into the area

in which you reside, Lake Ohau, have you looked at the position in

respect to Lake Ohau and its water fluctuations and the effect? 20

MS GERARD: Yes, I do know Lake Ohau. I do not know the range, the

operating range, I do not know how much it fluctuates.

MR NEILL: Have you looked at it at different times of the year as to its 25

heights and as to the effects on landscape, the effects on tourism, the

effects on aesthetics?

MS GERARD: Not Lake Ohau but certainly Lake Pukaki. I have been very

involved with Lake Pukaki with tourism. 30

MR NEILL: And the lake that probably fluctuates the most is Lake Hawea.

MS GERARD: Yes.

35

MR NEILL: Have you looked at the issues in respect to Lake Hawea?

MS GERARD: I am aware of Lake Hawea, that it did have very wide

operating levels when I was quite young, I can remember having to

walk way, way down to get my bucket. So, yes, I am aware of and that 40

they had to change it to reduce the operating level so it has been

reduced in more recent years.

MR NEILL: And have you in anyway looked at it in a professional capacity?

45

MS GERARD: No.

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MR NEILL: Okay, then with respect to Lake Opuha, which is the most

similar to this project, have you given any consideration to the lake

level fluctuations and the effects at Lake Opuha?

5

MS GERARD: Yes, only from what I could see on the internet so I haven’t

visited the site or talked to the people operating it. But certainly I have

looked at the, yes, what I can access off the internet.

MR NEILL: Okay. Now, you have indicated to us that you would prefer to 10

see on farm storage and a range of different types of storage and you

specifically referred, I think I got it right, to Rangitata South?

MS GERARD: Yes, I have driven past it, you know with living just across the

river from there, so I am familiar with the site and I am making myself 15

more familiar with the proposal and how it is now, you know, looking

at being commissioned.

[11.42 am]

20

MR NEILL: Now, as a landscape architect and someone who is appearing

before this Board as an expert do you consider a lake of that – well, it is

called a pond – but a pond of that nature to be aesthetically pleasing?

MS GERARD: There is certainly work that could be done to make it better 25

but – yes, it’s an engineered project and they could have done more to

integrate it.

MR NEILL: And for those travelling past it you get a glimpse of it, but then

as you go down hill a little all you see is a bund - - - 30

MS GERARD: Mm.

MR NEILL: - - - and say to yourself, “I hope the bund doesn’t burst”.

35

MS GERARD: You know it better than I do, yes.

MR NEILL: Well then if we just go further north to the Eyrewell Forest, or

what was the Eyrewell Forest, now owned by Ngai Tahu and being

developed, there is a huge, again, pond being developed by way of on-40

farm water storage. Are you familiar with that project?

MS GERARD: No, I am not familiar with it. I have – sorry; can I expand on

on-farm storage?

45

MR NEILL: Right.

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MS GERARD: There are different ways to design these facilities to make

them more aesthetic and multi valued, you know, like so that you can

actually – I do know people who have built irrigation ponds and they

sail their yachts on it, you know? 5

And so I think land owners, developers can amalgamate and provide

facilities – you know, join together. There could be, if regional

councils helping to facilitate these things, that there could be water

storage that is on farm but that provides for these other environmental 10

values and cultural values.

So they do not just have to be engineered, purposely built storage, you

know? I do know of examples of that.

15

MR NEILL: Well they definitely all need to be very carefully engineered - - -

MS GERARD: Mm.

MR NEILL: - - - because Rangitata South leaks like a sieve - - - 20

MS GERARD: Ah huh, yes, they have got a - - -

MR NEILL: - - - and it some major issues.

25

MS GERARD: Mm.

MR NEILL: But this is about landscape, not about engineering, otherwise my

colleague will get excited. Let’s talk about the landscaping.

30

From a landscape perspective can you say to me that you are delighted

that people are building these storage ponds in – well, where you come

(Canterbury), and particularly in the Rangitata/Rakaia area?

Aesthetically?

35

MS GERARD: Aesthetically? Not the way that a lot of them have been done

because they are generally very engineered and, yes, they - - -

MR NEILL: And is it true that some of them now are of areas in excess of 75

hectares in size? 40

MS GERARD: Mm, which is very large scale and taking up – yeah.

MR NEILL: And at $40,000 a hectare it makes an expensive pond.

45

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MS GERARD: Yes. I won’t go into the economic side of it because I do

know farmers down there who say water is more valuable then

farmland.

So I won’t go into the economics of that, but in my assessment I really 5

wasn’t looking at on-farm storage so much as more the tributary sub-

catchment storage. So not providing one large storage, but going back

to the smaller catchment issue and trying to perhaps look at options

such as Rangitata South – that sort of project where you abstract water

and form off river facilities like that. 10

[11.47 am]

MR NEILL: Let us now look at your assessment itself. How often have you

had to give evidence before a RMA Commission or on the assessment 15

in respect to water storage?

MS GERARD: I have not had any experience in this level of providing

evidence.

20

MR NEILL: At 10.51, you indicated in response to a question from counsel

that your major concern, and correct me if I have got the exact words a

little wrong, but it was, ‘the interruption of the natural river system and

its process.’ Did I understand that right?

25

MS GERARD: Yes.

MR NEILL: With respect to the natural river, the Tukituki River, would you

consider it is a natural character braided river?

30

MS GERARD: It has got a reasonable amount of gravel extraction at present

which – and there is some stretches where it is has got stop banks

downstream of the State Highway 50, so it is not totally natural by any

means, but a lot of the processes like the movement of gravel through

the system is – you know, the gravel extraction is there but - - - 35

MR NEILL: So you accept it is in itself very much a modified river?

MS GERARD: Yes, there are degrees of modification, yes, it has got – you

know, it has plenty of intrinsic values that people (INDISTINCT 40

2.36).

MR NEILL: Being a Cantabrian living very close to the Rangitata, would it

concern you that I have observed, and I am sure you have, that there is

substantial, what’s known as ‘river raking’ in respect of the river? 45

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MS GERARD: Yes, it is something that has to be really carefully managed of

course, with bird life and it is a concern with lower flows and I am not

an expert on that area in why to rake but it does certainly have effect on

the natural character but it is probably more though for management of

the river that has produced that issue. Does that answer your question, 5

no.

MR NEILL: But as a result of that river raking from a landscape perspective,

surely that would be contrary to the naturalness that you are requiring?

10

MS GERARD: Yes.

MR NEILL: And whilst I am no bird watcher, having heard evidence in the

Canterbury area on this sort of matter, worry me about bird nesting and

all of those things that go with that issue? 15

MS GERARD: Mm, yes.

MR NEILL: So as a braided river landform , you accept that it is very much a

modified and compromised braided river landform? 20

MS GERARD: Well, the whole management of the river is under review, so

how are they going to manage it into the future, that river could

actually be more natural with a change of management, so it is just a

management system that it is under, that it is highly modified, well it is 25

not highly modified, a degree of modification is occurring. So with a

change of the management of it and a dam would only increase by a

substantial amount the modification of it – the degree of modification

because of the slower flow rates in the winter would increase the

aggradation of gravel in the system. So the more gravel extraction is 30

required and that sort of thing so – not that I’m an expert in that area,

but a dam will only increase the degree of modification. The river can

turn back into a more natural state with change in management.

[11.52 am] 35

MR NEILL: Now in your evidence presented this morning you used the words

5.2 of your evidence and it came from the joint witness statement, “the

dynamic natural characteristics of the river to the coastline”. Can you

just explain what you mean by that in landscape terms. 40

MS GERARD: Living by the Rangitata River it’s a continually changing

landscape the braided river system. And you can go there one day and

island’s in one place and the channels are here. And the next day after

the flood last night you go down there and it’s a totally different 45

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landscape. It’s a very dynamic landscape, the river, braided river

system. So that’s my word “dynamic”.

MR NEILL: And that definitely relates to the Rangitata - - -

5

MS GERARD: Yes.

MR NEILL: - - - but how do you relate that to a river where (a) it has river

raking and (b) bulldozers actually affecting the stream flow and the

direction into which it goes? 10

MS GERARD: It certainly still has floods and it still will have those natural

fluctuations in flows that change the character of the river in a dynamic

way.

15

MR NEILL: Can we just then finish in respect to the Opuha which you are

familiar with but haven’t done any specific research on it. From a

landscaping perspective how has the Opuha affected the area in which

it can be found?

20

MS GERARD: Sorry, I cannot – I haven’t actually seen the site so I can’t

really define that point I’m sorry.

MR NEILL: Okay. Thank you for coming.

25

MS GERARD: Thank you.

CHAIRPERSON: Mr Howie?

COMMISSIONER HOWIE: I have no questions thank you, sir. 30

CHAIRPERSON: Mr Lawson?

MR LAWSON: No thank you, sir.

35

CHAIRPERSON: Thank you very much, Ms Gerard.

MS GERARD: Thank you, sir. Thank you for this opportunity.

<THE WITNESS WITHDREW [11.56 am] 40

CHAIRPERSON: And thank you Mr Williams. Now at this point I think

we’re back to Ms Marr’s cross-examination. Mr Malone.

MR MALONE: I’ll recall Ms Marr. 45

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CHAIRPERSON: Thank you.

MR MALONE: She was sworn before Christmas your Honour. Can we take

it that she’s still under oath?

5

CHAIRPERSON: Well, we’ll re-swear her again this morning thanks

Mr Malone.

<HELEN MARR, sworn [11.57 am]

10

<FURTHER EXAMINATION BY MR MALONE [11.57 am]

MR MALONE: I just have a couple of questions for Ms Marr before my

friend resumes his cross-examination your Honour. Ms Marr, did you

participate in the latest planning conferencing just earlier this year? 15

MS MARR: Yes, I did.

MR MALONE: And you signed the planner conferencing statement dated

10 January 2014? 20

MS MARR: Yes.

MR MALONE: And you prepared an attachment to that which is attachment 2

the Fish and Game provisions? 25

MS MARR: I did.

MR MALONE: Do you have any corrections you need to make to that

attachment? 30

MS MARR: I do.

MR MALONE: Can you please just go through that slowly so that the Board

and everybody else can follow it please. 35

MS MARR: Certainly. On page 16 of that attachment 2 which is labelled the

Fish and Game version of change 6 there is a key to tables 5.91(b), (c)

and (d). And there are a number of changes shown in the periphyton

part of that key shown in blue wash. And that blue wash is text 40

amended by myself. Those changes in blue wash should be reversed. I

incorrectly copied those over from an earlier piece of technical

evidence and so the wording of the key in relation to periphyton should

actually be the same as in attachment 1 which is the Hawke’s Bay

Regional Council version. And that more accurately reflects the 45

technical agreements that were met.

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MR MALONE: Yes. Ms Marr are you aware that there have been some

further amendments to the Regional Council’s version of the planning

provisions that are attached as attachment 1 to the planners’

conferencing statement? 5

MS MARR: Yes, I received a printed copy of that this morning.

MR MALONE: At approximately what time was that?

10

MS MARR: After the hearing started, or just prior to, about 9.30 this morning.

MR MALONE: And have you had a chance to have a look at the amendments

that are included in it?

15

MS MARR: I have had a chance to read through them once.

MR MALONE: And do any of those amendments change your expert opinions

that are in your evidence in the planners’ conferencing statement?

20

MS MARR: No they don’t.

MR MALONE: Can you please answer any questions my friend has?

CHAIRPERSON: Thank you, Mr Malone. Mr Robinson. I presume you will 25

continue but I note that Mr Minhinnick and Mr Gardner I understand

also seek to ask a few questions. Is that right?

MR ROBINSON: I’ve discussed it with them and I think they’re going to

observe how I go and take - - - 30

CHAIRPERSON: That answers the question. That’s fine, thank you.

<FURTHER CROSS-EXAMINATION BY MR ROBINSON [12.00 pm]

35

MR ROBINSON: So Ms Marr.

MS MARR: Good morning.

MR ROBINSON: Greetings. So we’re resuming where we were I think on 40

the 18th of December. And at that point we had a discussion about the

objectives.

MS MARR: Yes.

45

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MR ROBINSON: And the fact that the section 32 tests in the Act of course

focus on those objectives. Among other things.

MS MARR: Among other things, yes they do. Yes.

5

MR ROBINSON: And, you’re of course, suggesting one of the principal

focuses of the inquiry is the DIN limits that you’re suggesting to

achieve those objectives.

MS MARR: Yes, that is one of the main areas of contention. What nitrogen 10

limits need to be set to achieve their objectives. Yes.

MR ROBINSON: And pre-Christmas you also said that you weren’t qualified

– I’m not surprised you said this – but just record it for the record for

the context of my questions - - - 15

MS MARR: Yes.

MR ROBINSON: - - - you weren’t qualified to comment on what DIN value

would control periphyton. 20

MS MARR: Not in a specific sense, no. No, I’m not an aquatic ecologist so

that’s outside my area of expertise. I can only read, understand and

interpret the technical information and evidence that’s in front of me. I

can’t provide my own evidence on that at all. 25

MR ROBINSON: And am I correct in assuming that you’re relying, maybe

not solely, but certainly in large manner in the evidence of

Ms McArthur who basically led the charge supporting a DIN limit of

.444? 30

MS MARR: Yes I’m drawing on Ms McArthur’s evidence and also that of

Associate Professor Death in relation to what an appropriate nitrogen

limit would be for maintaining aquatic ecosystem health.

35

[12.02 pm]

Associate Professor Death gave a range and Ms McArthur gave a

specific number based on her experience, yes.

40

MR ROBINSON: And you have adopted Ms McArthur’s specific number?

MS MARR: Well, in order to write planning provisions a specific number is

more useful than a range so, yes, I did adopt the specific number that

was provided in her evidence. 45

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MR ROBINSON: Now, Ms McArthur said during the course of her cross-

examination, and these were here words, a big leap or a big assumption

that 0.444 would limit periphyton growth, you are aware of that?

MS MARR: I’m not aware of that specific phrase that she used. I did read her 5

cross-examination, the transcript of it, but I don’t recall that particular

part of it.

MR ROBINSON: Now, on the assumption that I have correctly recorded what

she says in the transcript at page 2125. So I am not asking you to 10

confirm that that is or isn’t the case but just so this is all on

hypothetical basis, on the assumption - - -

MS MARR: Can you please repeat what you said that her statement was?

15

MR ROBINSON: That she said it was a big leap or a big assumption that

0.444 DIN concentration would limit periphyton growth.

MS MARR: Okay.

20

MR ROBINSON: And on the assumption that she said that, as the person you

are relying on for the specific limit, do you think that that’s a sufficient

basis in terms of the section 32 test to impose a limit?

MS MARR: To impose a limit? 25

MR ROBINSON: Yes, a limit on nitrogen in this catchment.

MS MARR: I have assessed the imposition of a limit on nitrogen in this

catchment based on a wide range of evidence not just the number 30

proposed by Ms McArthur, so I have looked at the evidence of the

ecologists about what nutrients need to be controlled to maintain

aquatic ecosystem health, what the costs of that might be and what is

required to give effect to the NPS. And so all of those factors go into

my assessment not just one number. 35

MR ROBINSON: Yes, but the number is the output, isn’t it, and if it is an

assumption that it will actually achieve the desired object, will actually

achieve the objective of reducing nuisance periphyton growths, my

question is do you think that that is a sufficient underpinning to impose 40

a hard limit?

MS MARR: A sufficient underpinning is an understanding that both nitrogen

and phosphorus need to be controlled in order to achieve a reduction in

periphyton growth, which is the objective. And Associate Professor 45

Death’s evidence is that, in order to do that, the limit needs to be

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between 0.08 and 0.8 micrograms per litre. And Ms McArthur’s

evidence, based on her experience and a practical application of that

drawing on her knowledge, has picked a number at 0.44. So that being

the only number in front of me between the range that Associate

Professor Death outlined, then I have made the assessment that that’s 5

an appropriate number. Now, if there is other evidence that another

number between 0.08 and 0.8 is more appropriate then I would

consider that evidence also.

MR ROBINSON: But you would agree, wouldn’t you, that the acid test in 10

section 32 terms is whether the limit you ultimately suggest will

achieve the objective, namely to reduce nuisance periphyton growths.

MS MARR: Effectiveness is one of the tests, yes absolutely.

15

MR ROBINSON: Now, I want to talk to you about your table XX and XXA

in your version of the plan change. I apologise in advance for

appearing to squint at this, the blue colour doesn’t do a lot for my

fading eyesight.

20

MS MARR: It is quite hard to read in this light actually.

[12.07 pm]

MR ROBINSON: One of the differences between this table and the table 25

which we were discussing before Christmas is that you have no

inserted in-stream loads, haven’t you - actual tonnes per year?

MS MARR: Yes, I have inserted those as an example to demonstrate that

these are the types of numbers that need to be in there. I have tried to 30

make it clear that they are just an example, I am not pinning my colours

to them.

But there seem to be, when discussing it with people, a bit of confusion

as to what actually this table would look like when it was populated 35

and so I have just provided those numbers as an example to show that

this is conceptually what I thought it would look like.

MR ROBINSON: And that was in fact going to be my next question – that is

what the comment is saying, isn’t it? 40

MS MARR: Yes.

MR ROBINSON: This is a placeholder for illustration purposes.

45

MS MARR: That is correct, yes.

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MR ROBINSON: And you have drawn these numbers, you say, from Dr

Abell’s evidence?

MS MARR: I have. 5

MR ROBINSON: Now, but you say that what you are expecting effectively is

that the Board will direct these calculations to be undertaken by the

technical experts?

10

MS MARR: I think that – in my opinion that would be the best way forward,

yes. Because there are a number of experts with slightly different

methods around this and if they were to caucus I am sure that they

could come to some agreement about the most appropriate method for

calculation. 15

MR ROBINSON: Well in a purely practical sense, given that I am closing the

case tomorrow, when do you think that is going to occur?

MS MARR: I am simply giving my opinion on what the best way to populate 20

that table would be.

MR ROBINSON: Okay, that’s understood.

MS MARR: Yes. 25

MR ROBINSON: Now, you would agree I take it that a concentration of

nitrogen - in this case if I just call it nitrogen and take it as a given that

- - -

30

MS MARR: That it’s dissolved inorganic nitrogen?

MR ROBINSON: That it is – call it nitrogen for short.

MS MARR: Sure. 35

MR ROBINSON: That a concentration of nitrogen in the water of a river is a

function of the volume of the nitrogen and the volume of the water?

MS MARR: Correct. 40

MR ROBINSON: And obviously the volume of water is going to vary year to

year.

MS MARR: And moment to moment on many occasions, yes. 45

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MR ROBINSON: And every other time period in between?

MS MARR: Yes.

MR ROBINSON: In your illustration – like, if I forget that, just take it as a 5

given that I accept that it’s an illustration for illustrative purposes.

MS MARR: Certainly.

MR ROBINSON: Your illustration is specifying one number of tonnes per 10

year. Now, I read Dr Abell’s evidence and he says at page 20 that

precisely because of fluctuating river flows, or the fact that river flows

are fluctuating, is not conducive to calculating a single load figure –

and that is at page 20 of his evidence.

15

MS MARR: Mm’hm.

MR ROBINSON: So how do you suggest that that problem is overcome?

You have come up with a single number (this is a hard limit), should

this be an average? 20

MS MARR: Well, I will just familiarise myself with what Dr Abell says, but

just before I do that I will just correct a statement that you made. It is

not a hard limit, it’s not proposed to – the numbers in table XX are not

proposed to be a limit in a sense of the national policy statement at all. 25

They are a tool to use to allocate nitrogen to achieve the concentration

base limit.

MR ROBINSON: Oh, yes, thank you for that. So that is the interrelationship

between table XX and XXA. 30

MS MARR: No, that’s the relationship between table XX and the limits in

table 5.9.1.

MR ROBINSON: Okay. I’m not sure I understand that, but keep going. 35

So that is paragraph 8.3 of Dr Abell’s evidence and I was picking up

the point at the very top of his page 20.

[12.12 pm] 40

MS MARR: Yes, I have read that sentence, that context.

MR ROBINSON: And the punch line question was if, as Dr Abell says, the

change in river flows means that it is not conducive to calculating an 45

absolutely load limit, how do you propose that that’s addressed?

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Should these be averages over a period of years or should they be based

on a – like we’re talk in water quantity terms about MALF and various

other examples, so schematically how should this number be derived?

MS MARR: Well the number should be derived to reflect the long term 5

average, which is what the data that Dr Abell has used to calculate

those numbers. So he’s used the long term record of flows to calculate

that.

His statement to me, reading it, appears to be that because the limit is 10

based on an 80th percentile maximum flow then you could exclude

some of the concentrations and flows that he included in his

calculations but didn’t. That was his statement.

But in relation to your question, it is a long term average and it should 15

be a long term average because of the variability, but that long term

average should be calculated so that it would meet the limits – the

nitrogen limits in the plan. And it is appropriate to use a long term

average because other tools that are going to be used in relation to this

(for example, OVERSEER) are also based on long term averages. 20

So that would be an appropriate application of a load as a tool to

achieve a limit.

MR ROBINSON: And that was in fact going to be my next question, that you 25

would agree then that if the flow component or the load component of

table XX is along term average - - -

MS MARR: Yes.

30

MR ROBINSON: - - - then so too should the leaching rates calculated in table

XXA.

MS MARR: Well because they’re calculated using OVERSEER by their

nature they are long term averages. They are based on long term 35

average rainfall data; they are based on the long term average leaching

that would be measured from that property. They are not

instantaneous, they don’t even relate to a single year – they are a long

term average and that has been quite clear from expert evidence on the

use of OVERSEER. 40

MR ROBINSON: Indeed, and so that really goes to the period of

benchmarking, doesn’t it, because – like, I was going to ask you this

question later in the context of I think one of the policies, but I will ask

it now while it is now raised. 45

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One of the differences between your version of PC6 and Mr van

Voorthuysen’s version is that he suggested a three year benchmarking

for most pastoral activities, but seven years for activities involving, I

think it’s non-permanent horticulture and arable farming among other

things. 5

MS MARR: Yes.

MR ROBINSON: I will find my notes about that particular point – and you

have said three years for everything? 10

MS MARR: Can you refer me to where that has occurred?

MR ROBINSON: I will make sure, out of my notes where I wrote that down.

I apologise, I might have to hold that thought and find out where I 15

picked it up. I think it’s in the rules but - - -

MS MARR: I might be able to help you, Mr Robinson.

MR ROBINSON: If you could please? 20

MS MARR: I think I might have found it.

MR ROBINSON: Oh, well done.

25

MS MARR: In Mr van Voorthuysen’s version of policy TC4E.

[12.17 pm]

MR ROBINSON: Oh yes, that’s right. So he’s got for arable farming, 30

“non-permanent horticulture and cropping, mixed arable cropping,

livestock farming, non-permanent horticulture.” He is suggesting

seven years based on the input from the primary sector, that crop

rotations mean you need a longer period.

35

You haven’t accepted that change and obviously you haven’t accepted

the input from the primary sector about what is required to get an

accurate benchmark, and so my question is why, or why not, you can

take it either way.

40

MS MARR: I haven’t used that same cause in my version of TT4, I haven’t

referred to any benchmarking period there except in the grand-parented

leeching rate.

MR ROBINSON: Indeed, that’s what I had in mind. 45

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MS MARR: That provision that I wrote in table XXA, the second column in

relation to how you would calculate the grand-parented rate, I believe I

took that benchmarking period from an earlier version of Plan

Change 6 which used to refer to three years for everything, and I

haven’t actually reviewed that since they talked about seven. 5

Because I am using this grand-parented benchmarking for a slightly

different purpose than Mr van Voorthuysen, I was cognisant of the fact

that in order to grand-parent using historical data, you need to choose a

timeframe for which data might be available and three years seems to 10

be a reasonable period of time, whereas Mr van Voorthuysen is

referring to benchmarking change in the future in which case you can

start keeping records now on working forward and hold them for seven

years if you are planning on making a change.

15

I have got no problem with a longer benchmarking period, I would be

quite comfortable with including that in these provisions, but I

acknowledge that there is a difficulty when you are applying the

benchmarking historically, with actually those records being available.

20

MR ROBINSON: So summarising, you would accept that if there is good

reason in terms of – for these particular subsets that

Mr van Voorthuysen has picked up because of the arable farming, crop

rotations, for a longer benchmarking, that should be translated into your

ah 25

MS MARR: I think that would be appropriate.

MR ROBINSON: Thank you. In terms of – going back to the table having

converted myself – how these tables work. As I understand it, the way 30

table XXA works in conjunction with table X, is that in step with the

step down of in-stream loads, there is a step-down in leeching rates

based on the grandfather position?

MS MARR: Yes. 35

MR ROBINSON: And would you agree that because of the time lag in

nitrogen leaving the farm and entering water, so for instance, a

20 percent reduction in leeching rates in 2022 is not going to produce a

10 percent reduction in in-stream load in 2022, it is going to be years if 40

not decades later?

MS MARR: And that is precisely why I recommend using a load calculation

as I have here to measure compliance of farming, rather than a

measured in-stream concentration. 45

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MR ROBINSON: So there is going to be a mismatch – say for instance, these

things are not going to line up, but you have solved the compliance

issue, but on the face of the plan, whatever the numbers are used,

ultimately depopulate your table XX, it is not actually going to happen,

is it, if table XXA leeching rates are stepped down, then the table XX 5

loads are not going to be achieved on the dates that are specified?

[12.17 pm]

MS MARR: Table XX is intended to be an allocation mechanism so it is 10

intended to be – this is how much nitrogen is available within the

whole catchment to allocate to those land uses, and so the way that you

measure how much you have allocated, is you assess nutrient budgets

and how much has been allocated through resource consents, so that

maths will add up to the outcome in table XX because it is an allocation 15

mechanism.

If you are trying to measure the compliance against actual measured in-

stream concentrations, then there is going to be a lag and the phasing

will be difficult, and that is precisely why it is useful to use a load 20

calculation to allocate, rather than measuring it against in-stream loads,

because of the lag between changes on land and impacting river.

This is an allocation mechanism so that if we allocate this amount of

nitrogen to land use, we have some confidence that on an average, we 25

will be achieving our limits or achieving some steps towards our limits,

then that is a tool that is a method to achieve the limit rather than being

something that you measure in the river, it is a method rather than a

limit.

30

MR ROBINSON: So I think your answer is that no, - is yes, there will be a

mismatch, but it doesn’t matter because this is an allocation

mechanism. Have I understood that correctly?

MS MARR: Well, there shouldn’t be a mismatch between what is allocated 35

individually on farm and the aggregate of all those things in terms of

how much is allocated in the catchment. They should match up

because they are both allocation mechanisms, one at the farm level, one

at the catchment level.

40

MR ROBINSON: I think my point though, is I think you have accepted there

is a mismatch in dates so they are not going to line up on the specified

dates?

MS MARR: They are because you will allocate to each individual. Each 45

individual farm will be allocated a certain amount of nitrogen in terms

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of tonnes, or kilograms per hectare per year, in a particular year, so

each farm in the catchment, for example, might be allocated

20 kilograms theoretically, and that would add up to, say, a thousand

tonnes in the catchment, and that will align to what you have specified

as your allocation limit – sorry, your allocatable load. Those two 5

things should match up and then the load has been set in order to

achieve a limit, or achieve progressive steps towards a limit.

MR ROBINSON: I think I am missing something and I will just give you an

opportunity to explain it and it may be just because I am being unduly 10

slow here - - -

MS MARR: It is very complex.

MR ROBINSON: My understanding is that these tables start from different 15

points, if you look at table XXA(a), these are OVERSEER runs or

these are going to produce leeching rates based on current OVERSEER

runs on day X, day X being assumed to be 2014.

Whereas table XX on – I shouldn’t have said day X, there are far too 20

many in here, but just take that, didn’t think ahead, table XX is a

current load provision as I understand it calculated on the basis of a

long term average, is that correct, or have I got that wrong too?

MS MARR: They are both calculated on long term averages. 25

CHAIRPERSON: Sorry, what was that answer?

MS MARR: They are both calculated on the basis of long term averages.

30

MR ROBINSON: And my concern, or my issue, is that at each step change,

there is going to be a lag before the long term average load reflects the

reduction from a grand-parented existing leaching rate, and as I say, is

that incorrect?

35

[12.27 pm]

MS MARR: It is. Your statement would be correct if the numbers that I’ve

used in – or that are used in table XX are calculated every year based

on actual monitoring data gathered in the river because that will reflect 40

the short term variabilities in the system, and that will reflect the actual

in-stream situation at that particular time.

But my proposition is that they be calculated as an allocation

mechanism based on long term data so that you don’t go back and do 45

monitoring to populate the table, it’s done in advance. And so then you

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allocate nitrogen to individual land uses, aggregate that up across the

catchment and it adds up to the number in the table.

It’s not the same as the way that mean annual zone loads are proposed

to be used in the current version of change 6, which is to recalculate 5

that on a regular basis to measure as a monitoring tool. It’s not a

monitoring tool, it’s an allocation tool.

MR ROBINSON: And so the methodology should iron out the date

differences? 10

MS MARR: Yes. Yes, I also tried to make that clear in the notes regarding

the tables, that the important thing is that there is a reduction in

nitrogen leaching across the catchment and that that reduction is

achievable on farm, and I’ve populated XXA with what I think is 15

achievable and realistic, for example, 20 percent reductions in nitrogen

leaching.

And then that should be back-calculated so that we can understand

what the consequential change that we are going to see over across the 20

catchment will be.

It is simply a tool to measure and allocate nitrogen loadings across the

whole catchment, that’s all it is.

25

MR ROBINSON: And if you look at your illustrative load limits my

calculation is that the difference between taking zone 1, conveniently at

the bottom of the page - so 2014, 679 tonnes a year current load, 2050,

234, and my trustee calculator suggests to me that that’s a 66 percent

reduction. 30

MS MARR: The reductions range from about 37 percent to about 60 percent,

yes.

MR ROBINSON: Yes, I worked out zone 3 as 69. It sounds right to you? 35

MS MARR: Yes, that range 30 to 60 percent approximately is consistent with

various pieces of technical evidence where people have calculated

these types of reductions. Yes.

40

MR ROBINSON: Yes, there are a whole lot of numbers attempting to estimate

what a .444 limit would be, but I think there is a consensus of the broad

range that we are talking, as you say, 30 to high 60s, maybe more in

some sub-catchments. But we are talking certainly a substantial

reduction. 45

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My question is, have you looked at the pattern of land uses that would

be necessary in order to achieve that level, or a level of load that

reflects that scale of reduction?

MS MARR: I am aware of some modelling that has been undertaken by a 5

council trying to model land use changes at a fairly coarse scale, and

I’m aware of other evidence, from Dr Dewes for example, about the

types of mitigations and the reductions that they might achieve across

the catchment.

10

[12.32 pm]

And, for example, the modelling undertaken by Mr Harris, the

economic modelling where he modelled land use change, he states in

that evidence that he hasn’t modelled all of the possible mitigation 15

scenarios, such as the ones that Dr Dewes outlined when she gave

evidence. So that is why I refer to that as fairly coarse scale.

MR ROBINSON: So Dr Dewes evidence was restricted to the amount of

mitigation that would be possible from dairy uses, and so my question 20

is broader than that – have you looked at the broader range of land uses

that would need to be in the catchment to achieve load reductions of

that order?

MS MARR: As I said, I only had been able to rely on the evidence that is in 25

front of this board in this case.

MR ROBINSON: And in that regard you haven’t undertaken yourself any

different assessment of how that pattern of land uses that would be

required might differ from the current pattern of land uses in the 30

catchment?

MS MARR: I am not qualified to undertake that assessment, but my point is

I’m not sure that looking at a pattern of land use is necessarily the most

useful tool when we know that existing land uses can make 35

management changes that will reduce their nitrogen and phosphorous,

and faecal and sediment contributions to the catchment without a

change in the pattern of the landscape, of land uses in the landscape. It

is a change in the management of the land uses within the landscape.

40

MR ROBINSON: So your evidence to the Board is that it can be confident

that the entire range of existing land uses have mitigations available to

them or “s” (ph 2.03) them, I am not whether it is singular or plural,

that would enable these limits to be met?

45

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MS MARR: That is not my evidence. For example, forestry has no mitigations

that I am aware of to reduce its very low leaching rate below what it

current is.

My evidence to the Board is that based on the evidence I have seen the 5

changes in land management practices can achieve good reductions and

that the changes that might be required can occur at a reasonable cost

and within some technology – the changes that I have specified here.

And longer term, accepting that we are a long way away from the limit, 10

longer term we are going to have to come up with some new solutions,

and that is why I have proposed a long time frame.

MR ROBINSON: So – and I think that the punch line is that while Dr Dewes

came up with ways in which dairy could achieve what you might call 15

“super reductions” they were – I think her evidence was that they were

at significant cost and that the highest level of dairy reduction – I think

she quoted a number of ranges but the highest one I remember was a 50

percent reduction, and we are talking about here, 69 percent.

20

MS MARR: In some catchments.

MR ROBINSON: In some catchments.

MS MARR: Yes, and in some catchments it’s 30, and quite achievable. 25

MR ROBINSON: That’s right, and I think that comes back to the fact that if

you are going to impose a limit that is catchment wide you would want

to be confident that it was achievable across the catchment, wouldn’t

you? Not just in some places? 30

MS MARR: Well I think that there are a couple of ideas at play there. If you

are setting a limit the limit needs to be set to achieve the environmental

outcome sought with freshwater objective, so we need to base our

assessment of what the appropriate limit is on that. 35

So in this case one of the key environmental objectives, freshwater

objectives, is the management of periphyton, and so we need to set a

limit for nitrogen at a level that will achieve that reduction in

periphyton proliferation. It is as simple as that, and if we understand 40

what that is then we can then turn to what the methods might be for

achieving that.

So in this case the methods are going to be some changes in land use

management practice and another method is the amount of time 45

available to achieve that change, and I think that we need to separate

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those two ideas in our minds – what the limit should be to achieve the

environmental outcome and what the appropriate method is to achieve

the limit.

MR ROBINSON: And in terms of the NPSFM, once the limit is set then the 5

council has to ensure that that limit is met, isn’t it? It has to work

towards achievement of that limit?

MS MARR: Yes, the council has to change its plan to incorporate methods to

achieve the limit or target over time – yes. 10

[12.37 pm]

MR ROBINSON: And particular land use types cannot achieve the method

because the management mechanisms are not available or they’re not 15

affordable, then those land use methods – land uses or land use

categories – are going to have to change to land use categories that can

meet the limit aren’t they?

MS MARR: Well, the limit is an instream nitrogen limit and that can be 20

achieved in a number of ways and changes to land use are one of them,

changes to points of discharges are another a smaller component of that

and periphyton which is the key objective that we’re looking at here is

also influenced by flow and shading in some parts of the catchment as

well. So there is a number of different methods that you have to 25

consider when looking to achieve that freshwater objective.

MR ROBINSON: But ultimately in terms the Board are looking on knowing

that steps have to be taken to achieve the limit, the Board has to be

confident that there are steps available to achieve that aren’t they? 30

MS MARR: Yes, the Board has to consider whether change 6 has got methods

regulatory and non-regulatory that will progressively achieve the limit

over time, yes. Yes, that would be one of the tests.

35

MR ROBINSON: And in terms of section 32 of the Act the Board also has to

assess the costs of the implementation of those methods doesn’t it?

MS MARR: The costs and the benefits, and the effectiveness and the

efficiency. Yes. 40

MR ROBINSON: Yes as you are say, you can read out the entire part of

section 32, but one of the things it has to consider is the costs.

MS MARR: It is, yes. 45

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MR ROBINSON: And on the basis that Dr Dewes was specific to dairy uses

can you point to evidence other than the evidence perhaps that the

Council has produced as to what those cost would be, or are you

accepting the Council’s evidence on that point?

5

MS MARR: I’ll just refer to where I have assessed this in my evidence in

chief. I’ll give you a reference. In my evidence in chief from page 34

which is paragraph 120, I’ve assessed the costs of managing nitrogen

and I’ve looked at the Council’s evidence on doing that. And the

Council modelled two scenarios. 0.15 milligrams per litre and 0.3 10

milligrams per litre. Both of which are lower than the proposed .444

that is in Ms McArthur’s evidence. And I say that was quite coarse

landscape change evidence and they were both using slightly different

scenarios.

15

But that evidence shows that there’s a relatively small regional

economic impact over time. So Mr Harris' evidence talks about a 5%

change and he goes on to state and I’ve quoted this in paragraph 121

that the .3 milligrams per litre scenario would ultimately have similar

regional outcomes to the current situation. So although I accept there’s 20

been a lot of talk about the high economic costs of managing nitrogen

down to a limit to control periphyton I haven’t been able to find any

evidence to support that and in fact the evidence that I have found

suggests that over time that type of reduction will come at a relatively

small cost to the regional economy. 25

MR ROBINSON: Yes, that’s a regional perspective isn’t it?

MS MARR: Yes, it is.

30

MR ROBINSON: Can you point to evidence of costs for particular land uses

other than dairy? Obviously there’s been a lot of comment about the

costs of mitigation of dairy.

MS MARR: The report that I’m referring to, Mr Harris’ report, does look 35

across the whole catchment and at a range of different land uses and

mitigation scenarios and changes in land use. So it’s the best

information I have on which to base a conclusion about regional

economic impacts.

40

[12.42 pm]

MR ROBINSON: Thank you. At a general level would you agree that the

concept that you’ve set out in your table XX(a) of a progressive

reduction in leaching rates – so we have 20%, sorry all the blue. 20%, 45

2022, 30%, 2025, 35%, 2030 and an unspecified percentage but

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presumably in the order that we’ve been talking about. 60+% in some

catchments in 2050 is fundamentally inconsistent with any or

incompatible with any material in land use intensification.

MS MARR: I’m not sure whether a land use – let me put it another way. A 5

land use could change within this scenario provided it stayed within the

grandparented rate so potentially a particular property could go from

mixed cropping and arable to a dairy situation. If that dairy was a fully

mitigated dairy situation and could stay within that grandparented rate.

So land use change could occur to a limited extent within that. 10

MR ROBINSON: Yes so my question was, any significant intensification.

You’d agree that that wouldn’t be feasible would it?

MS MARR: I really can’t comment on that. I’m not a farm systems expert so 15

I really can’t be sure on the degree to which it would be possible. You

would have to address that question to Dr Dewes or one of the many

other farm system experts that we’ve heard from.

MR ROBINSON: Yes indeed. But certainly the evidence would suggest it’s 20

inconsistent with the RWSS isn’t it? For instance the modelling of

Dr Rutherford’s suggests that there’s a 30% increase in nitrogen at Red

Bridge and higher percentages across the plains. And I think that the

source modelling was consistent with that. So there’s no way you

could have land intensification of the scale of the RWSS based on the 25

evidence before the Board.

MS MARR: If land intensification is predicated on increased nitrogen leaching

then no. If by land intensification you mean moving land use to a

different or more profitable outcome not necessarily. But if your 30

intensification’s predicated on leaching more nitrogen then that would

be incompatible with achieving a limit, yes.

MR ROBINSON: And so as you say the only development which would be

possible would be conversion of land uses within the same nitrogen 35

footprint effectively.

MS MARR: If the grandparented allocation mechanism is chosen then yes.

But at the catchment level that’s true, at a catchment level. Keeping

nitrogen losses at the catchment level at or below current levels would 40

have to be a prerequisite for land use change if we’re to achieve limits

relating to nitrogen to manage periphyton.

MR ROBINSON: Have you considered the implications for future economic

growth in the catchment from that scenario? 45

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MS MARR: I’m not aware of any evidence that gives me any numbers to

consider in relation to that.

MR ROBINSON: So that’s a “no”? No on the basis there’s no evidence.

5

MS MARR: Yes.

MR ROBINSON: Sorry, I didn’t mean to suggest you have been derelict - - -

MS MARR: No, I haven’t been able to consider any hypothetical futures. My 10

only comment on that would be that economic growth does not

necessarily have to be predicated on increased nitrogen leaching.

MR ROBINSON: And I think Dr Dewes gave some evidence on that.

15

MS MARR: Mm.

MR ROBINSON: Can I go to your rule TT1 on page 31 of your evidence. As

I understand it, - - -

20

[12.47 pm]

MS MARR: Joint witness statement?

MR ROBINSON: Yes, the joint – sorry, your version of PC 6, because I want 25

to talk about the differences between your version and

Mr van Voorthuysen’s version.

MS MARR: Sure.

30

MR ROBINSON: It is page 31 of Ms Marr’s – sorry, I don’t mean to make it

personal, but we know what you mean. You understand that I use that

interchangeably with the Fish and Game version, because your hand is

all over it. That, as I understand the difference between this permitted

activity rule and the one that Mr van Voorthuysen poses, his rule 35

focuses on a general limit of 15 kilograms per hectare as a key

condition and you have attacked the issue by identifying it by land use,

haven’t you?

MS MARR: Yes, identified low risk land uses by land use type rather than 40

Mr van Voorthuysen has identified – he doesn’t identify no risk land

uses, his permitted activity rule applies to every land use in the

catchment that does not increase their leeching beyond the allowed

amount so 15 is – the figure that you gave of 15 kilograms of N per

hectare per year, for a certain number of land uses it is not across the 45

board.

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MR ROBINSON: Absolutely. The intent of the rules is the same but you have

attacked it in different ways.

MS MARR: I do not think the intent is the same, no, no. The intent of my 5

rule is to identify land use activities that are a low risk for leeching

nitrogen and phosphorous and identify those and deal with them in a

permitted activity sense, and that is so that those low risk land uses do

not have to go through a resource consent process that would achieve

very little in terms of change on that property. 10

Mr van Voorthuysen’s version, his permitted activity applies to

everybody who is not intending to increase their nitrogen leeching

beyond a certain threshold, so that is quite a different proposition.

15

MR ROBINSON: Oh, yes. Well in terms of the land uses you have specified,

I want to focus on, first of all, the pastoral farming example, the

previous page. So first category A, plantation forestry, that’s obvious.

The second, category B, pastoral farming with the exceptions, so any cropping, 20

any cultivation, any grazing of dairy cattle and feed lots feed pads?

MS MARR: Yes.

MR ROBINSON: Would you agree that almost all sheep and beef farms will 25

have some cropping or some cultivation on the property from time to

time?

MS MARR: I don’t know.

30

MR ROBINSON: Well, think about it in terms of pastoral renewal, that is

going to be cultivation, isn’t it?

MS MARR: If the pasture renewal is done through direct tilling or no tillage

methods then no, it wouldn’t. 35

MR ROBINSON: What it says is – oh yes, so you have got an exception to

the exception?

MS MARR: Yes. 40

MR ROBINSON: I understand. So a cultivation through direct drilling comes

back into the fold?

MS MARR: It does, yes. 45

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MR ROBINSON: But any other cultivation won’t?

MS MARR: Correct. The activities I have identified there in (i) to (iv), are

the activities identified in the evidence of, for example, Dr McDowell

of activities that increase the phosphorous or nitrogen leeching risk on 5

a property and therefore of opportunities for mitigations.

MR ROBINSON: In section 32 terms, in order to understand the costs that the

exceptions to this permitted activity rule would impose, presumably

you would need to know how many farms undertake some cropping or 10

some cultivation, wouldn’t you?

[12.52 pm]

MS MARR: What is the cost that you are referring to? 15

MR ROBINSON: The costs you are imposing on the farming community, for

instance, of a consent process.

MS MARR: The cost for consent process? 20

MR ROBINSON: Yes.

MS MARR: So the cost of gaining a resource consent, doing a nutrient budget

to gaining a resource consent. Yes, in order to calculate that you would 25

have to know how many properties and also what the cost of gaining a

resource consent is, so the marginal cost would be the cost of council

processing, and I don’t know what the fee is.

MR ROBINSON: And the cost of whatever the farmers themselves are 30

spending. But if the difference is between – well, I think there is

evidence on the table that there are 1,100 farms in the Tukituki

catchment greater than four hectares - - -

MS MARR: Mm. 35

MR ROBINSON: - - - those costs are going to be rather greater if there are a

thousand consent applicants than if there are say, a hundred, aren’t

they?

40

MS MARR: Absolutely. The cost to gain a resource consent to authorise an

activity might be in the order of thousand dollars per farmer and the

term of that consent might be 30 years, so it is a fairly small – like, the

administrative cost is relatively small.

45

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MR ROBINSON: But again, in order to know what that cost is, you need to

have some sense about how many farms are going to come within this

permitted activity rule and how many are going to fall outside it, aren’t

you?

5

MS MARR: Yes, you would need to know that, yes.

MR ROBINSON: And I think that you have said, you don’t know that?

MS MARR: I don’t. 10

MR ROBINSON: I was looking again at the third point that lifestyle blocks,

again, they reference back to the same exclusions, aren’t they?

MS MARR: Yes. 15

MR ROBINSON: The question I wanted to put to you was, whereas I think

you could reasonably say to me that you don’t know whether sheep and

beef farms would typically involve some cropping or cultivation, and I

admit freely that I don’t know either, that I think it is much more likely 20

that a lifestyle block will have some cropping or cultivation, won’t it, if

only it is the vege garden out the back.

First of all, would you agree that a lifestyle is likely to have some

cultivation or cropping? 25

MS MARR: I don’t know the answer to that.

MR ROBINSON: So again, that is an example where we would need to know

that in order to know the ambit of whether every lifestyle block in the 30

Tuki catchment is going to need a consent or whether none of them do,

that would be a relevant factor?

MS MARR: If you wanted to assess the number of resource consents, then

yes. 35

MR ROBINSON: In terms of your rules TT2 B, C and D, and there is a few

pages further on, so starting at page 40 of your version of the

document.

40

MS MARR: Yes.

MR ROBINSON: So 2B is about controlled activity rule for animal effluent,

2 C feed lots and feed pads, 2 D feed lots and feed pads. There are

existing rules in the regional resource management plan governing 45

those activities, aren’t there?

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MS MARR: Yes, there are.

MR ROBINSON: And that change 6 has not proposed to vary those rules?

5

MS MARR: No, it hasn’t.

MR ROBINSON: And you are suggesting that new rules be put in alongside

those existing rules?

10

[12.57 pm]

MS MARR: I am, I think that the rules that are currently in the regional

resource management plan do not adequately address the risks posed by

these activities in terms of loss of nitrogen and phosphorus and that 15

further conditions in addition to those are required in order to

adequately control those things.

And this is to address some issues I raised in my evidence-in-chief that

in order for any modelling done by OVERSEER to be accurate the best 20

practices that OVERSEER assumes need to be put in place. So that’s

things like sealing effluent ponds and practising deferred irrigation for

effluent applications. And in terms of managing phosphorus, issues

that I raised in my evidence-in-chief about obvious practises that can

lead to increased phosphorus losses like feed pads and feedlots on 25

coarse soils need to be addressed within the plan. In the current rules

in the bulk of the regional resource management plan don’t have those

types of conditions.

MR ROBINSON: Well, from a planning point of view, like putting aside that 30

that’s your opinion as to the merits or otherwise of the existing rules,

from a planning point of view, because change 6 hasn’t sought to

amend those rules, they are still going to sit there even if the Board

accepts your recommendation that there be new rules, aren’t they?

35

MS MARR: Yes, they will but these ones will be the rules that apply within

the Tukituki catchment.

MR ROBINSON: Well, can I put to you that that’s not going to be the case

because the rules that are already there won’t contain an exclusion to 40

say that they don’t apply to the Tukituki?

MS MARR: Generally when you are assessing compliance with a plan you

have to look at all of the rules and you have to comply with all of the

conditions of all of the relevant rules. So because the Tukituki 45

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catchment section of the plan will contain more specific rules that must

be complied with then they will apply within the Tukituki catchment.

MR ROBINSON: That’s an interesting approach. Would you accept that

there is the potential for a degree of confusion given the existence of 5

two sets rules given the same activity?

MS MARR: Well, I did note that that was a criticism raised in some of the

supplementary legal submissions raised by some of the parties and I

considered it. But if I think about the rules around takes that are 10

contained within change 6, they are also double ups on rules that exist

in the regional resource management plan but they propose to insert

specific or further controls within the Tukituki catchment and they will

sit alongside rules that apply outside the catchment.

15

So the extent to which confusion exists I don’t think will be any greater

than - in relation to my rules around land use it will be no greater than

the rules proposed around taking and use of water. It is simply a matter

of how people use the plan and people coming to understand it and

know how to use the plan. And that will take time but a relatively short 20

amount of time of practice will resolve that I imagine.

MR ROBINSON: Sir, I wonder if it is a convenient point since I am about to

move on to the next topic?

25

CHAIRPERSON: Absolutely.

MR ROBINSON: Thank you, sir.

CHAIRPERSON: Thank you. We will take the adjournment now, thank you. 30

ADJOURNED [1.01 pm]

RESUMED [2.03 pm]

35

CHAIRPERSON: Just before we resume, Mr Robinson, Mr Malone

mentioned a track changed version of change 6 that was coming

through. I understand that that has now come through to the Board and

we probably need to give it an exhibit number. Mr Robinson, sorry, to

interrupt you in this. 40

EXHIBIT #90 – TRACK CHANGED VERSION OF PLAN CHANGE 6

19 JANUARY 2014

MR ROBINSON: Not at all. 45

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CHAIRPERSON: But can you tell us in a nutshell, this is the latest Fish and

Game – no.

MS MARR: From Hawke’s Bay Regional Council.

5

CHAIRPERSON: Oh, I see.

MS MARR: It was circulated by counsel for the Hawke’s Bay Regional

Council last night.

10

CHAIRPERSON: Okay. Yes, as at 19 January, great.

MR NEILL: It includes those changes that you had to the schedule that you

were referring to earlier on?

15

MS MARR: No, this exhibit has got nothing to do with me whatsoever other

than I was asked to read it.

[2.04 pm]

20

CHAIRMAN: No, sorry, I am responsible for making you the author, and you

are in the fact the responsible person, Mr Robinson?

MR ROBINSON: Yes, counsel is always responsible.

25

CHAIRMAN: Yes.

MR ROBINSON: Even when he has got nothing to do with it. This is the

product of the direction that the Board made requesting the applicants

to table in advance of closing a copy of Plan Change 6 effectively post 30

the submissions received Friday night, which were in turn feedback on

Mr Sinclair’s report, and the revised conditions. And the last thing I

saw on my email over lunch, Mr Daysh was pairing the schedules off

as conditions in order that they would go down the email.

35

CHAIRMAN: Yes.

MR ROBINSON: My intention, because the conditions are too big, is to table

a hard copy set of the conditions, but as I say, subject to surmounting

the IT difficulties, the revised conditions have been circulated or will 40

be circulated to all parties and to the Board in parallel. As I say, I saw

him attempting – he said that it had bounced back. I think he attempted

to send it late morning.

So, as I say, this is the HBRC’s version. My closing submissions will 45

outline the differences. I asked Mr van Voorthuysen to give me a

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bullet point list and there are eight or 10 points on it, but I would need

to crank up my email to be able to tell you what they are.

CHAIRPERSON: Well thank you for that, Mr Robinson.

5

MS SIMONS: May I address you on that, sir, please?

CHAIRPERSON: Yes, certainly.

MS SIMONS: I am afraid that Fish & Game has no idea of what those 10

conditions will contain and what changes they may include, and that is

problematic because clearly the conditions are going to be fundamental

in terms of decision – should you make a decision one way or another

to grant a consent the conditions are going to be vital in terms of

identifying what the effects are and how they will be addressed. 15

So I am concerned that there has not been - - -

CHAIRPERSON: Yes.

20

MS SIMONS: - - - an opportunity to address you on those, or even see them.

CHAIRPERSON: I can understand your concern. My understanding is that

what is occasionally happening in terms of the conditions is that Mr

Daysh is responding to a request from the Board for someone to keep 25

track of all the suggested modifications that cropped up during the

course of the hearing.

MS SIMONS: I accept that.

30

CHAIRPERSON: Yes, and the question then arose whether Mr Daysh should

formally produced them, and I made a decision that it was unnecessary

for Mr Daysh to formally produce them and they could be produced

through counsel.

35

So I think the way we might handle it – you are intending I suppose to

depart today all being equal?

MS SIMONS: Yes, sir.

40

CHAIRPERSON: But if you want to cast your eye over those conditions once

they become available - it is something I need to discuss with other

members of the Board but I guess if there was something that was of

critical importance then we are likely to hear from you or other counsel

present, but that is not to encourage that course because everyone has 45

had their opportunity to put forward conditions and we can’t keep on

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having everyone comment on everything that’s coming forward. But

we will leave the door open, perhaps is as best I can do at the moment.

MS SIMONS: Yes. Thank you, sir. I just want it recorded that we have not

seen them - - - 5

CHAIRPERSON: Sure.

MS SIMONS: - - - and that they are vital in terms of the outcomes.

10

CHAIRPERSON: Yes, okay. And I suspect that they are not likely to contain

any huge surprises because they are reflecting, to the extent that the

regional council might be prepared to reflect it, suggestions that have

come forward during the course of the hearing. That is my

understanding. 15

MS SIMONS: And, sir, I would anticipate that it is simply confirmation of

that, that Fish & Game are seeking.

CHAIRPERSON: Yes, well now, you haven’t seen either, Mr Robinson, so 20

can you confirm that the situation is as I’ve broadly stated it or - - -

[2.09 pm]

MR ROBINSON: The intent was that as I think the Board requested that the 25

applicants team have been, just as Mr van Voorthuysen has been

keeping track of all of the plan change requests, the applicants team

have been keeping track of suggestions about how conditions should be

amended and this is the extent to which the applicants are prepared to

move in response to the request of the parties. I have seen the last draft 30

before – literally at 20 past 9.00 this morning. The format is a colour-

coded set of changes. My recollection is there are probably like in a

120 page document I think there are six or eight areas of change. They

are colour-coded as to who they’re responding to. And as I said before

my understanding is that Mr Daysh is attempting to email all parties as 35

we speak.

CHAIRPERSON: I think what Ms Simons is wanting some reassurance about

is that there are not likely to be left field changes that come totally

unexpectedly. 40

MR ROBINSON: There is nothing sir, that is not responding to the

submissions and evidence put before the Board. Now I freely accept

that other parties, such as Fish and Game, may feel that the Council has

not gone far enough - - - 45

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CHAIRPERSON: Yes, sure.

MR ROBINSON: - - - because the applicant’s within its rights to accept the

concept but not every aspect. But that is the way we’ve approached it.

5

CHAIRPERSON: Yes. Thank you very much. Well, we’ll see what develops

Ms Simons.

MS SIMONS: Thank you, sir.

10

CHAIRPERSON: Okay, thanks. Now back to you Mr Robinson.

MR ROBINSON: Thank you, sir. Could we turn please Ms Marr to your

policy TT1 and the relevant point I want to discuss with you as we shift

for the deletion of references to environmental state indicators for MCI 15

visual water clarity and deposited sediment.

MS MARR: Yes.

MR ROBINSON: So you’re proposing that they now become limits or targets 20

depending on the current state of the water body concerned.

MS MARR: Yes.

MR ROBINSON: And that’s reflected in the amendments you’ve made to the 25

tables later in the document.

MS MARR: That’s correct.

MR ROBINSON: And I assume, it certainly looked it to me, that what you’ve 30

done is to pick up the changes that Ms McArthur made or tabled in her

evidence?

MS MARR: That’s correct.

35

MR ROBINSON: And you’re relying on her evidence for the rationale to shift

from indicators to limits?

MS MARR: Yes, I’ve applied my own analysis in part to that as well. As in

do the limits. Do they meet the definition of limit in the MPS for 40

freshwater management. So I’ve used that interpretation and

Ms McArthur’s evidence as to her view on that to come to that

conclusion.

MR ROBINSON: And in relation to the planning side of fixing limits as 45

opposed to the technical side – or technical underpinning that

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Ms McArthur’s provided, you’d agree that part of the – and I think this

is something we discussed before lunch, part of the process for setting

limits is that you need to know that the limits are achievable and if

they’re not being achieved have a way to achieve them.

5

MS MARR: No. A limit is to describe the amount of resource use available

while achieving the freshwater objective. So that is the test. Will it

achieve the freshwater objective? And then when you are preparing

methods to achieve that limit, that is when you need to come up with

the mechanisms by which the limit will be achieved. 10

[2.14 pm]

MR ROBINSON: But obviously if the limit is not actually achievable, you

are going to come to a screaming halt, aren’t you, the plan – you will 15

not achieve the objectives which must presumably call into question the

appropriateness of the objectives if there is no way to achieve them?

MS MARR: Yes, I think that you should look to make sure that the objectives

clearly reflect the combined goals of the community and that objectives 20

reflect the statutory obligations to achieve ecosystem health, life

supporting capacity et cetera, and once you have set your objective,

then you come up with a limit to achieve it.

MR ROBINSON: So that one way or another, you need to be satisfied that the 25

whole package is achievable?

MS MARR: That question is really too general for me to give a response that

you are looking for.

30

MR ROBINSON: I started suggesting to you that the limits needed to be

achievable and you said, no, you consider achievability when you are

deciding the methods, the limits just have to achieve the objectives, and

I think you agreed, that if the limits are not achievable, the objectives

are not achievable and that means that you should perhaps be 35

reassessing your combination of objectives, limits, and methods.

Is that fair?

MS MARR: I think that you have to approach that with a considerable 40

amount of caution given that the methods – one of the key methods that

you have to choose from is time and long term change, and making an

assessment about achievability, that is a very relevant factor to weigh.

Should you go back and look at the freshwater objective, well I think 45

that you should assess your freshwater objective in the first place in

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relation to how it achieves sustainable management and set a goal that

is consistent with sustainable management and then the steps setting

limits and methods follow from that, in my view.

MR ROBINSON: But ultimately there is a reality check. You have referred 5

to time being available and that is obviously a solution that is an

important component of your proposal for nutrient management, for

instance?

MS MARR: It is, yes. 10

MR ROBINSON: But in relation to MCI deposited sediment, and visual

clarity, these are immediate limits, aren’t they, or are they deferred as

well?

15

MS MARR: Well, where they targeted, they are to be met by 2030.

MR ROBINSON: Yes, indeed.

MS MARR: Yes. 20

MR ROBINSON: So to an extent there is - - -

CHAIRPERSON: Excuse me just a moment, Mr Robinson. I should say, it is

just an issue of photographs being taken and that is fine, but as far as 25

witnesses are concerned, they can only be photographed with their

permission, so that was the thing I was seeking to have clarified.

DISCUSSION

30

MR ROBINSON: Do you accept though, that if there are limits or targets then

the NPS requires the council to take steps to ensure that they are

complied with and in the case of targets, that by the target date, that

they are complied with?

35

MS MARR: Yes, the NPS requires that where limits are set, that they are

complied with and where targets are set, that it must put in place

policies and methods in the plan so that they are achieved over time.

That’s what the NPS requires.

40

[2.19 pm]

MR ROBINSON: By the specified time.

MS MARR: By the specified time. Whatever time the plan specifies in 45

relation to that. Yes.

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MR ROBINSON: Yes that’s right. And I asked you an open-ended question

before Christmas about what that time is because I had in mind the date

of 2030 - - -

5

MS MARR: Mm’hm.

MR ROBINSON: - - - and I think the planners have gone into a huddle and

agreed that the MPS doesn’t in fact require achievement by 2030. It

requires that the policies or the targets be in place by that date. 10

MS MARR: By 2030 yes.

MR ROBINSON: In the case of limits. Now in terms of being able to take

steps to achieve a limit that requires identification of cause and effect 15

doesn’t it? You have to know what’s causing an effect in order to take

steps to alter it.

MS MARR: Sorry could you rephrase that?

20

MR ROBINSON: Well I’ll give you an example. If you have a deposited

sediment limit that’s not being achieved then the Regional Council has

to find out why it’s not being achieved and take steps to alter that

position to ensure that it is achieved.

25

MS MARR: Yes, in order to implement methods you would need to target

those methods to the cause or causes of the breach of that target, yes.

MR ROBINSON: And you’d agree that in the particular case of deposited

sediment there are a wide range of natural and anthropogenic causes of 30

deposited sediment entering water bodies aren’t there?

MS MARR: Well, there’s a wide range of causes of sediment entering water

bodies and then a wide range of causes of that sediment being

deposited in bed and so that would relate to erosion, stream bank 35

management, the management of in rivers, of flood protection

activities, the flow variability in the river. So yes, all those matters

would have an impact on that.

MR ROBINSON: And also they’re impacted by - the extent to which any 40

particular cause is creating deposited sediment is influenced by climate,

because I’m thinking of the effect of large floods in exacerbating hill

country erosion, large amounts of sediment flowing down rivers.

MS MARR: Yes. Climate would play a part in that. And that’s why it’s 45

important that the limits take into account – the way the limits are

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measured take into account those variables. And they way that they’ve

been proposed in the various versions of the plan does allow for

exceedances, the way that it’s measured. So that 95th percentile or the

average allows for that number in the plan does not have to be met

100% of the time. It has to be met a certain percentage of the time and 5

that allows for those variables where extreme events might cause

something beyond everybody’s control to occur.

MR ROBINSON: So if you put extreme events to one side you’ve got a range

of causes. If there is an exceedance of deposited sediment limit in a 10

river how is the Regional Council going to know the cause of that

exceedance given as I say the range of inputs of sediment?

MS MARR: The Regional Council have to call on its knowledge of the causes

of it. The fact is that impact sediment in streams which we’ve discussed 15

in answer to a previous question and addressed those factors. So for

example that would be managing stream banks, the earthworks that

occur there and stop access to them. It would be managing erodible hill

country through their non-regulatory programmes and ensuring that

those areas are appropriately planted or not cleared of vegetation. 20

It would involve making sure that their water allocation framework

appropriately allowed for flow variability which would move the

sediment through the system rather than allowing it to deposit over

extended periods of time. So it’s multivariable, but those things are all 25

levers in the system to achieve the outcome that is being sought.

MR ROBINSON: While accepting that there are multiple management

mechanisms open to Council would you agree that ultimately with a

multi-variant cause or with many variables causing the issue, that that 30

is a formidable task for the Council to undertake to achieve a particular

limit?

[2.24 pm]

35

MS MARR: Well, it is a task that this Council and many others have elected

to undertake in relation to a number of other limits, for example

periphyton, which is proposed as a limit here and in other regions as a

multivariate type of environmental outcome as well. That’s influenced

by a number of different nutrients, shading, flow, temperature et cetera. 40

So as the sources of phosphorus are multivariate, they are similar to the

ones we have just discussed for sediment. They involve erosion from

hill country land use, erodible land, the use of riverbanks for

management within the beds. Many, in fact most of these indicators –

sorry, limits, the numbers that have been set in relation to those limits, 45

they are all multivariate, there is not one in that only comes from a

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single source. And this is the nature of freshwater management in this

country, it is complex dealing with natural systems that are influenced

by multiple anthropogenic and natural factors and that is the reality that

we are faced with.

5

MR ROBINSON: That’s right and so ultimately, as with periphyton, it is

partly an issue of what is the objective, partly an issue about its

achievability, partly about an issue about the costs on the community of

achieving it, isn’t it? That’s the section 32 analysis that we talked

about earlier. 10

MS MARR: Sorry, you lost me, I am not sure what that question relates to,

periphyton - - -

MR ROBINSON: No, that just as with periphyton a more general view would 15

be, say, well, there are many variables affecting periphyton, you have

made that point. Periphyton is the single, one of the principal focuses

of this plan change, and the Council is taking on that challenge and we

have debated, or you and I have discussed the achievability of

managing some of the components to managing periphyton. You 20

would agree that each limit has to be looked at separately in terms of

achievability?

MS MARR: Well, each limit has to be assessed as to whether it will be

helping to achieve the freshwater objectives. And so are all of the 25

factors, all of the variables in those tables are related to one of the

freshwater objectives and they describe an intended environmental

outcome in relation to that particular variable that will help achieve the

freshwater objective. So each one, each limit serves a purpose and that

purpose is describing how we will know if those freshwater objectives 30

will be achieved on the basis of an in-stream outcome.

MR ROBINSON: And in terms of the section 32 test it is about is this

particular method the most appropriate way to achieve the objective?

35

MS MARR: Yes, if you consider a limit to be a method. In this sense they

most commonly operate as policies so the test is, is it the most

appropriate way to achieve the objective?

MR ROBINSON: Yes. 40

MS MARR: Yes.

MR ROBINSON: Right, so looking at the shift, you also suggested limits for

shallow lakes. 45

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MS MARR: Yes.

MR ROBINSON: Presumably that also reflects Ms McArthur’s evidence in

relation to Lake Hatuma>

5

MS MARR: In terms of the technical detail of that, yes. In terms of the fact

that I think it’s necessary to specify limits and targets for shallow lakes,

that’s my planning analysis. The purpose of change 6 is to give effect

to the national policy statement for freshwater and that talks about

setting limits and targets for freshwater in the region and the Council’s 10

implementation of plan is that that should occur with this plan change.

So it’s a necessary part of this plan change to specify the limits for

lakes otherwise the policy statement has not been given effect to. And

so I have drawn on Ms McArthur’s for what the technical detail of 15

those limits should be.

[2.29 pm]

MR ROBINSON: You will be aware of the joint witness statement 20

agreement. This is in the additional statement on water quality limits,

No 13, that currently there is insufficient information to identify

appropriate water quality limits to lake - it’s called Lake Hatuma, in

this joint witness statement, and to assess if even aspirational limits

would be able to be met and through what means. Do you think that 25

that absence of information provides a satisfactory basis to set a limit?

MS MARR: I’m - - -

MR ROBINSON: As a planner. 30

MS MARR: Yes. An absence of information. My understanding is that

Ms McArthur clarified her position in relation to that when she was

giving evidence, that there is a lack of information to specify what the

causes or the sources of phosphorus in particular in that catchment are. 35

That doesn’t seem to me to be an impediment to saying this lake, what

would it, in order to achieve the freshwater objectives for a lake, what

sorts of in-water limits should we set and to turn to the national body of

work for setting water quality parameters for similar lakes, which is

what Ms McArthur has done as I understand it. To set that as a limit 40

and, in this case, a target in most cases to maintain the ecosystem

health of that lake or to improve ecosystem health of that lake.

MR ROBINSON: So your planning evidence is that it is acceptable to impose

a limit with, in this case, insufficient information to identify what the 45

appropriate limit is?

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MS MARR: If there is insufficient information to identify what the appropriate

limit is then it would be inappropriate but that is not my understanding

of what Ms McArthur clarified.

5

MR ROBINSON: I think what Ms McArthur – well, I was going to reach for

my recollection of exactly what she said but I think that you have

agreed that if the joint witness statement accurately reflects the position

it would be inappropriate?

10

MS MARR: Yes, in which case the plan needs to be amended to clearly set in

place some methods and a timeframe for setting limits for

Lake Hatuma. And until those limits are set the plan can’t be said to be

giving effect to the NPS for freshwater management.

15

MR ROBINSON: And that would be your fall-back position?

MS MARR: It would be, yes.

MR ROBINSON: And if we could go to policy TT3 please. I’ll find out 20

where that is. The specific point I wanted to ask you about was in fact

a section you have deleted. This is subsection 2 where

Mr van Voorthuysen’s version of change 6 has provisions suggesting

that implementation of point source discharge limits should take into

account measurement uncertainties and whether the activity is 25

temporary or not. And does the fact that you have deleted it mean that

you do not believe that measurement uncertainties or duration are

relevant events that ought to be taken into account?

MS MARR: This policy refers to limits, numerical in-stream limits and they 30

should be put in the plan in a way that is able to assess whether or not

they are met. And allowing for those limits to be varied from in a

manner that is fairly loosely put, in my view, adds such a level of

uncertainty to whether the purported limit will be achieved is to render

it not a limit anymore. 35

In my view if there are some variables that people think will influence

measurement, such as seasonal variability, that should be incorporated

into the limit itself in the way that it has been for many of the other

limits where we talk about how it’s going to be measured, over what 40

timeframe compliance is going to be measured and that should be

specified.

[2.34 pm]

45

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At the moment it could be up to any applicant or any submitter to argue

that this particular location is difficult to sample so we don’t have to

comply with a particular limit, and that to me seems an inappropriate

amount of uncertainty.

5

MR ROBINSON: But in terms of your revision of the plan change you haven’t

gone through and inserted reference to measurement uncertainty, or

you haven’t done an analysis as to where it needs to be inserted in the

specific limits, have you?

10

MS MARR: I cannot think of an occasion, for example something like

ammoniacal nitrogen or biological oxygen demand are absolute limits.

If those things are breached then significant adverse effects occur. So I

can’t think of an example where it would be appropriate to vary from

those. 15

MR ROBINSON: Have you done an analysis of each limit?

MS MARR: Of each limit?

20

MR ROBINSON: Yes.

MS MARR: No.

MR ROBINSON: Now, in terms of temporary activities, the temporary 25

activity which is somewhat notorious for in-stream riverbed works

affecting water clarity. You would understand that that is a common

effect of in-stream channel works?

MS MARR: That changes in water clarity are? 30

MR ROBINSON: Yes.

MS MARR: Yes, they are. Yes.

35

MR ROBINSON: And would you agree that if even temporary effects were

precluded that might make undertaking of any in river works, riverbed

works, impossible to achieve within the limit. Have you considered

that?

40

MS MARR: Well, the limit does not require no effect. So the limit allows for

a change in water clarity to occur.

MR ROBINSON: That’s right. Have you assessed the ability of common

infrastructure works within bridge maintenance to comply with those 45

limits?

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MS MARR: I am quite familiar with these types of limits and having them in

plans, and 20 and 30 percent changes in water clarity are quite

common. And they apply after reasonable mixing, so it’s not

immediately downstream. 5

The setting of the reasonable mixing zone would be quite key in the

achievability of those, and other plans and resource consents that I am

familiar with allow for maximum durations of sediment discharges,

which would be a way of dealing with the issue that you raised. 10

My main concern with talking about clause 2B, talking about

temporary nature, is that it is very poorly defined and in my experience

resource consents have been argued and granted on the basis of being

temporary for periods of years. And to my mind, allowing for some of 15

these effects to occur for that period of time would be inconsistent with

achieving the objectives of this plan.

MR ROBINSON: So, as I understand your answer, I think you agreed that it

is appropriate to consider duration but that the wording would need to 20

be sharpened up so that what is temporary is truly temporary?

MS MARR: Absolutely, and that that is in relation to the things that are not

absolutely critical to ecosystem health, like some of the parameters in

there that relate to death of in-stream life. 25

MR ROBINSON: Yes.

MS MARR: Yes.

30

MR ROBINSON: Now turning to TT32A you have inserted a policy which I

read as a minimum monitoring requirement.

MS MARR: Yes?

35

MR ROBINSON: So your minimum requirement of one upstream sampling

location, one sampling location beyond the zone of reasonable mixing

and one free discharge sample?

MS MARR: Yes. 40

MR ROBINSON: And because it is framed as a policy this would apply to all

point source discharges?

MS MARR: Well, because it is framed as a policy it would apply to all point 45

source discharges that require resource consents, yes.

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MR ROBINSON: So it wouldn’t apply by definition to permitted activities?

[2.39 pm]

5

MS MARR: Correct.

MR ROBINSON: In terms of applying to consented activities, you would

agree that monitoring is a standard consideration in any point source

discharge application? 10

MS MARR: It is extremely common for monitoring conditions to be applied

on resource consent conditions. As per my experience, the monitoring

components of those conditions can vary quite a lot between consents,

one consent to two consent, and so my goal with inserting this type of 15

policy is to give a minimum set of parameters that would allow the

impact of all those discharges to be considered on a like basis that

would help the council implement the plan and understand the causes

of breaches of limits to a greater extent than they would if the

monitoring of various point sources was slightly more ad hoc. 20

MR ROBINSON: My question therefore is would you agree that the nature of

monitoring that is undertaken or imposed on a resource consent

application, will vary among other things, because every discharge is

different, and the receiving environment will vary even within the same 25

catchment. It is a case by case issue?

MS MARR: Absolutely there will be case by case factors to take into account

when considering monitoring conditions. This policy insertion is not

intended to be the final word on monitoring but just to set the minimum 30

that you do sample upstream and downstream and you sample the

discharge so that you can get a good understanding of the nature of the

discharge and its impact on the receiving environment.

MR ROBINSON: And my question is, are you confident that this minimum 35

standard, and you say upstream, downstream and in the discharge, is

appropriate for every conceivable point source discharge in every

location?

MS MARR: Every consented point discharge to water after reasonable mixing 40

– I can’t think of where this wouldn’t be appropriate, that would not

already be covered by a permitted activity. Obviously there is an

exception to every rule, Mr Robinson, and if you think of one I would

be welcome to hear it.

45

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MR ROBINSON: So you are confident, but would you accept that in a

situation where resource applications have historically been done on a

case by case basis, it would be in the, ‘you could never say never’

category?

5

That is a little unfair, we will take that as a rhetorical question.

MS MARR: Okay, but I do note, just in relation to that, this is a policy, it is

not a rule, so obviously if it was ridiculous to impose these types of

monitoring conditions, that is at the discretion of the decision maker. 10

MR ROBINSON: You don’t think the policy should therefore have some

qualification to signal that there may be an exceptional case where that

is not appropriate?

15

MS MARR: I don’t think it is necessary to say that, that is the situation

imposed by section 104 of the Act, the decision maker has regard to

these policies and when writing the plan, wants to set a clear direction,

then they should use clear language, in my view.

20

MR ROBINSON: Looking at policy TT5, this is about phosphorous

management. I put your TT5 next to Mr van Voorthuysen’s trying to

work out the differences, and I thought that one difference that I picked

up was in stock exclusion provisions, and you have deleted reference in

policy 5D 22 to, “Preparation of a phosphorous management plan is an 25

alternative to stock exclusion.”

MS MARR: Mm’hm.

[2.44 pm] 30

MR ROBINSON: And so what the policy requires, blanket stock exclusion

except for sheep. Subject to where it meets the degree slope. You’re

aware of representations that the Board have heard for instance from

the Deer Association and from certain farming interests suggesting that 35

stock exclusion imposes unreasonably onerous obligations on those

users, on those land users?

MS MARR: I’m not familiar with those representations. I haven’t read them

sorry. 40

MR ROBINSON: So if I told you that the rationale for providing for a

phosphorous management plan in lieu of stock exclusion was to

provide those users with the opportunity to proffer alternative means to

achieve the plan’s objectives, if stock exclusion is indeed impractical, 45

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would you concede that that would be an appropriate planning

provision to make?

MS MARR: It would be an appropriate planning provision if the policy

provided for where stock exclusion is impractical, alternative methods 5

to achieve the objectives of the plan are offered. That would be

appropriate. That, however, is not what the clause that I deleted said.

It gave phosphorous management plans as a blanket alternative to

everybody within the catchment. And the definition of a phosphorous

management plans only refers to maintaining or improving 10

phosphorous loss from the farm. Whereas stock exclusion has a number

of other benefits that go to achieving freshwater objectives. For

example sediment and faecal contamination as well as natural character

issues in extreme cases obviously. And so that would need to be made

clear within the plan framework as well. 15

MR ROBINSON: So am I correct therefore that you’d accept that there would

be some circumstances where a phosphorous management plan would

be appropriate in lieu of stock exclusion but the provisions would need

to be clearer about what sort of circumstances those would be? 20

MS MARR: Well, I think it’s appropriate that the plan provide four alternative

mitigations to be provided but I’m not convinced that a phosphorous

management plan is the right tool.

25

MR ROBINSON: But you’d agree that alternative mitigations might be a key

focus of a phosphorous management plan on the part of an applicant

seeking to justify non-stock exclusion?

MS MARR: No, I refer back to the first answer that I gave you that stock 30

exclusion is such a fundamental step in improving the quality of water

bodies and achieving the freshwater objectives that goes beyond

phosphorous management that it should only be an exception, not a

blanket alternative, and that the mitigations offered need to be clearly

directed at achieving the freshwater objectives, not just phosphorous 35

management.

MR ROBINSON: I understand. If I could just ask you to turn the page

because I went to phosphorous a little early, back to TT4. Because

you’ve used the notified version it’s a little difficult to compare the two 40

but as I understand that the key difference or one difference of your

TT4 compared to Mr van Voorthuysen is that you’ve deleted all

reference to industry good practice. That’s correct?

MS MARR: Reference to some future development of industry good practice 45

rates is not necessary in my framework so I haven’t referred to it.

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MR ROBINSON: You would agree that industry good practice or application

of good practice is inherently a good thing? Should be encouraged?

MS MARR: If that industry good practice is targeted towards achieving the 5

objectives of the plan then yes. But industry good practice can be

targeted at any number of things. For example in achieving

profitability, increasing production, increasing the welfare of the people

who live on the land. There’s a lot of factors that industry good

practice is targeted at but if it’s targeted at achieving the objectives of 10

the plan then it is a very good thing.

[2.49 pm]

MR ROBINSON: What you have inserted in lieu of collaboration to develop 15

industry good practice is working with the community to develop an

allocation regime for nitrogen leaching rates isn’t it?

MS MARR: That’s correct.

20

MR ROBINSON: And the thought underlying your plan is the one you’ve

already discussed that you populated the table on the basis that there’ll

be further work and indeed your preferred position is that rather than a

grandparenting approach there is at least the possibility of an

alternative allocation regime in a future plan change. 25

MS MARR: Yes there is. I think it’s important that the community go

through that process. At the moment we’ve only got information

available to allocate on a grandparenting basis but there are a number

of alternatives that need to be explored and some of them have been 30

explored in previous Council documents. There’s a very good report

on nutrient management and it discusses a number of different

allocation mechanisms. And it may be that the community decides that

grandparenting is the best option for them but I think it is something

that’s worth revisiting in just the same way as the notified version of 35

this policy suggested revisiting the idea of setting allocations based on

industry good practice and developing that in consultation with the

community, and the farming community in particular. This is just the

same thing but targeted but not focussed on that the answer is industry

good practice, but focussed on let’s find the right answer for each 40

particular sub-catchment.

MR ROBINSON: Would you agree that the community faced with the

knowledge of a further regulatory process potentially – with the

objective of discussing whether there be an alternative allocation 45

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mechanism is going to ponder that position and going to decide that

that doesn’t give it much investment certainty in the meantime does it?

MS MARR: If I’m comparing what I’ve proposed with what’s in

Mr van Voorthuysen’s approach the same uncertainty exists in both. In 5

Mr van Voorthuysen’s version he’s contemplating discussing with the

community what industry best practice leaching rates would be and

imposing that as a permitted activity condition in the future. And this

is just saying a similar thing in relation to a different topic which is

let’s have a discussion about whether the allocation mechanism is right 10

and if we decide it’s not let’s change the plan to reflect that. So it’s the

same type of process and in fact I really can’t see the difference and

uncertainty that this provides.

MR ROBINSON: More generally, I think we discussed earlier that at least for 15

some uses there is a gap between what’s currently believed to be

possible in terms of nutrient reduction and what the long range limits

would apply. Do you think that there is an issue with investment

certainty for those activities? Or a lack of investment certainty for

those activities? 20

MS MARR: I’m not sure where the investment uncertainty is arising in your

mind.

MR ROBINSON: Let me be a little clearer. If you have a big dairy farm, and 25

the Board’s heard from Mr Lindsay Smith of Ingleton Farms, big dairy

farm on the Ruataniwha Plains on stony soils, he’s going to be thinking

very hard about a long range requirement to reduce leaching by 70%

and that has the potential to – he could easily come to the view that that

doesn’t provide him with a lot of certainty to invest in his property 30

doesn’t it?

MS MARR: Well he may well take the view that he does not want to invest in

his property on that basis but I would say that that would be based on

quite a lot of certainty. 35

MR ROBINSON: Yes, he has the certainty of knowing he doesn’t want to

invest.

[2.54 pm] 40

Now, in terms of your rule TT1A there is just one minor point that I

was a little curious about, if I can find the right rule. So it starts on

page 35 and there are a whole series of – so again, this is a production

land use consent you have suggested that be controlled, a series of pre-45

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conditions, some of which are carried over from Mr van

Voorthuysen’s version.

MS MARR: Mm’hm.

5

MR ROBINSON: And the one I wanted to ask you about is on page 38 you

have deleted “L”, a reference to compliance with the drinking water

regulations, and I was just curious as to why you thought that wasn’t a

relevant consideration which should be in the frame?

10

MS MARR: Well if the nitrogen loads that I propose are adopted then they

should keep the concentrations of nitrogen and groundwater well below

the drinking water standards, and so that clause just isn’t necessary and

it adds an extra layer of uncertainty into the rule so I thought it was

more appropriate to delete it. 15

MR ROBINSON: Well certainly you would agree that certainly the nitrogen

rates that you have been talking about are going to preclude any large

scale degradation of water quality? You don’t think there is a potential

for near scale degradation and that compliance with the drinking water 20

standards should be a consideration?

MS MARR: If there is a potential for hot spots of nitrate contamination to

groundwater at these rates then yes, it should be a potential

consideration. 25

MR ROBINSON: Thank you, Ms Marr. Thank you, sir.

CHAIRPERSON: Yes, thank you, Mr Robinson. Now, Mr Minhinnick?

30

MR MINHINNICK: Thank you, sir. No questions.

CHAIRPERSON: Thank you. Mr Gardner?

MR GARDNER: Yes, just one question, thank you, sir. 35

CHAIRPERSON: Sure.

<EXAMINATION BY MR GARDNER [2.57 pm]

40

MR GARDNER: I’m just following up, before lunch Mr Robinson asked you

some questions about rule TT1, the permitted activity rule.

MS MARR: Yes.

45

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MR GARDNER: And he put to you the proposition that most sheep and beef

farmers do cropping or pasture renewal on a fair regular basis. Do you

remember that?

MS MARR: Yes, he did. Yes. 5

MR GARDNER: And I must admit I was somewhat taken aback when you

said you didn’t know whether that was true or not. The question I have

for you is, with that mind, you have got no way of knowing whether the

proposals you are putting forward are practical on farm or not, have 10

you, equally in terms of section 32, Efficiency and Effectiveness.

MS MARR: Are practical?

MR GARDNER: On farm, yes. 15

MS MARR: No, I am pretty comfortable around that. That is the condition of

a permitted activity rule and there is a cascade down to a controlled

activity rule which would allow for that activity to continue with a

resource consent. 20

So I don’t think that anything in the provisions that I have proposed are

precluding a farm from doing cropping, they are just saying that if they

are going to do that cropping then it needs to be undertaken in the

context of the nutrient management of that whole property. 25

MR GARDNER: So you would need a resource consent even for quite low

levels?

MS MARR: You would need, under the wording that I have proposed – yes, 30

if you are undertaking that at any scale then you would need to do a

nutrient management plan. Yes.

MR GARDNER: So if I come back to the question I asked, which was about

permitted activity rule? If you don’t know what the effect of the rule 35

is, which you said you didn’t know, you haven’t really got a way of

knowing whether the proposals are practicable on the farm or not, have

you, in terms of section 32 and effectiveness and efficiency?

MS MARR: I don’t accept that proposition. 40

MR GARDNER: All right, thank you. That is all I have. Thank you, sir.

Thank you, Ms Marr.

CHAIRPERSON: Yes, thank you, Mr Gardner. Re-examination, Mr Malone? 45

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MR MALONE: A couple of small questions, your Honour.

CHAIRPERSON: Thank you.

<RE-EXAMINATION BY MR MALONE [2.59 pm] 5

MR MALONE: Ms Marr, do you have a copy of Fish & Game’s opening

legal submissions?

MS MARR: I don’t think I have a printed copy in front of me sorry, Mr 10

Malone.

MR MALONE: Well as it happens I have a spare copy here so I will get it

handed up to you.

15

[2.59 pm]

MR MALONE: Well as it happens, I have a spare copy here so I will get it

handed up to you, if you are happy to fax it through when you are

finished. 20

MS MARR: Okay.

MR MALONE: And can I just ask you to turn to paragraph 2.5A of those

legal submissions, and I will just give you a moment to read that. 25

MS MARR: Yes.

MR MALONE: In his cross-examination of you, my friend, Mr Robinson,

referred to a few figures, one of them being 1,100 properties in the 30

Tukituki catchment, the other one being a reference to

Mr van Voorthuysen’s 15 kilograms of nitrogen per hectare per year

figure.

MS MARR: Mm’hm. 35

MR MALONE: So in relation to that figure of 15 kilograms of nitrogen per

hectare per year and the reference in those legal submissions to those

750 to 850 properties, what type of land uses do you think those

properties are, that are leeching less than 15, what are they likely to be? 40

MS MARR: They are likely to be extensive land uses, for example, hill

country sheep and beef farming, forestry and some of the smaller units

that are running a few llamas.

45

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MR MALONE: And where would you anticipate that they fit into your

proposal’s framework?

MS MARR: Many of them would be permitted activities in my framework.

5

MR MALONE: That is all I have, thank you, your Honour.

CHAIRPERSON: Thank you, Mr Malone. Mr Lawson.

MR LAWSON: Thank you, sir. Ms Marr, if you can just go to the table XX 10

and XXA, and you are proposing a nitrogen limit based on a percentage

reduction over time of a grand-parented rate. Is that a fair summary?

MS MARR: I am proposing an allocation mechanism that will go towards

achieving the limit, I am not proposing the loads to be limits, if that 15

distinction is important, but otherwise yes.

MR LAWSON: Let’s say we have got a top 10 or a top 20 percent farmer

who has adopted all of the best practices and has minimised nitrogen

and isn’t a problem, if I can put it that way - - - 20

MS MARR: Yes.

MR LAWSON: - - - and then next door there is someone who doesn’t care

and has been a problem, has a much higher leeching rate. They are 25

both going to have a percentage reduction, so the person who has

optimised their position and minimised their impact on the environment

is still going to have to reduce. That seems counter intuitive, doesn’t

it?

30

MS MARR: It is one of the big downsides of using grand-parenting as an

allocation mechanism and that is one of the reasons why I think it - - -

It is fine as an initial allocation to stop further degradation of water

bodies, but it does have the inequities that you have outlined and that

other Courts have identified in their considerations, and that is why I 35

think it is really important that as soon as we possibly can in the

community, have a discussion about what would be the most

appropriate allocation mechanism.

MR LAWSON: We have had various representations and evidence about the 40

need to base it on land use capabilities.

MS MARR: Yes.

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MR LAWSON: And my understanding of that is that for the various classes

of land, it has identified what the likely leeching rate and the uses, and

you get a figure for a hectare of hill country versus a hectare of flat?

MS MARR: Correct, yes. 5

MR LAWSON: Is that the sort of thing that you would envisage moving to

once that classification is available?

MS MARR: I think that that would be definitely one of the option that needs 10

to be carefully considered. In my experience, that type of allocation

mechanism has the least downsides of allocation mechanisms that I am

familiar with.

[3.04 pm] 15

MR LAWSON: In any of the things that you have read and heard, has that

sort of analysis been contemplated or done for this proposal?

MS MARR: The appropriateness of a land use classification allocation 20

system?

MR LAWSON: Yes.

MS MARR: Yes, there is a report within the files “Nutrient Management in 25

the Tukituki Catchment”, which specifically analyses allocation

mechanisms including an LUC based one and comes to the conclusion

that an LUC based allocation mechanism would be the most

appropriate for this catchment.

30

MR LAWSON: And was that Mr Isles?

MS MARR: It’s Benson is the primary author of that. Benson, Codlin

and van Voorthuysen I think and there might have been another one on

there as well. But I do have the reference in my evidence if you would 35

like me to look it up. But that did analyse a range of allocation

mechanism including an LUC based one and did come to the

conclusion that that would be the most appropriate but it did stop short

of saying what the - - -

40

MR LAWSON: The amounts.

MS MARR: The amounts should be, yes.

MR LAWSON: Thank you, that is very helpful. Thank you. 45

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CHAIRPERSON: Thank you.

MR ROBINSON: Before you go on, Commissioner Lawson is hot to trot,

folder 5 of the PC6 background documents.

5

MR LAWSON: Thank you.

MS MARR: Thank you.

CHAIRPERSON: Right, thank you, Mr Robinson. Mr Howie? 10

COMMISSIONER HOWIE: Thank you, sir. I would like to refer to table XX

as well if I could.

MS MARR: Sure. 15

COMMISSIONER HOWIE: Just looking at the 2014 nitrogen load, 679.

Now, that is tonnes per annum current load. Do you know its origin,

the origin of that number?

20

MS MARR: That comes from Dr Abell’s evidence.

COMMISSIONER HOWIE: Abell, yes

MS MARR: And he describes the method that he used in his evidence to 25

derive that load.

COMMISSIONER HOWIE: Thank you. And are you able to tell me the

nitrogen concentration that corresponds to?

30

MS MARR: I believe it is 0.444. Oh, no, sorry, that’s the current load. So

that would be whatever the current concentration is in river which I

believe – no, I am not going to guess, I can’t remember off the top of

my head, I would have to look it up.

35

COMMISSIONER HOWIE: Then if we go along to the 2050 target at 234,

that concentration of 0.444, as I understand it.

MS MARR: Yes.

40

COMMISSIONER HOWIE: And again that’s from the same source, from the

Abell source, is it?

MS MARR: Yes, it is.

45

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COMMISSIONER HOWIE: Okay. And if that 0.4 became 0.8 for instance,

like Dr Death was talking about, presumably that would double the 234

to 468?

MS MARR: Something of that order I imagine, yes. 5

COMMISSIONER HOWIE: Yes, proportional because it’s just a

concentration times flow, isn’t it?

MS MARR: Times flow, yes. 10

COMMISSIONER HOWIE: So on that basis, if we go back to the original

evidence that we have heard, the 679 would probably be three times so

it would be about 1.2 on that same proportional basis. I am sort of

thinking aloud rather. 15

MS MARR: Well, the numbers in that 2014 column should reflect the current

state of the river. So that I would imagine, depending on the method

you use, but if you use Dr Abell’s method that first number would stay

the same and it’s the ones down from there and what the end goal is 20

that would alter.

[3.09 pm]

COMMISSIONER HOWIE: But the 679 would correspond to a concentration 25

of something like 1.2?

MS MARR: If that’s the current state, yes.

COMMISSIONER HOWIE: Well, just proportionally on those figures. Like 30

you mentioned 0.4 gives you 234. If you went to 0.8 it would give you

400.

MS MARR: Oh, I see what you are saying, yes.

35

COMMISSIONER HOWIE: So if you go up to 679 you would have about

1.2.

MS MARR: Yes, the maths might be a bit beyond - - -

40

COMMISSIONER HOWIE: Roughly.

MS MARR: I’m not sure what influence flow has in that because it is – a lot

of the load comes down at very high flows so it might not be

disproportional flow. 45

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COMMISSIONER HOWIE: Well, it will be at the same flow pattern.

MS MARR: It will be, yes, that’s true.

COMMISSIONER HOWIE: Okay. And the 0.4, as I remember, comes from 5

the ANZECC guidelines?

MS MARR: Yes, I believe that’s its origin.

COMMISSIONER HOWIE: Have you had a look at the ANZECC 10

guidelines?

MS MARR: No. I am familiar with what they say but I am not familiar with

the detail of them at all, no.

15

COMMISSIONER HOWIE: They talk about trigger values.

MS MARR: That’s right, yes.

COMMISSIONER HOWIE: And they talk about species protection different 20

percentages.

MS MARR: For some of the variables, yes.

COMMISSIONER HOWIE: And if you look at the ANZECC guidelines for 25

nitrate they don’t use this 0.4 figure that I can find, they use 0.7 but you

can’t help us on that?

MS MARR: No, I can’t, sorry, no.

30

COMMISSIONER HOWIE: Okay. But that would be pretty critical in setting

these sorts of tables, wouldn’t it?

MS MARR: Yes, absolutely, you would need to set the in-stream nitrogen

limit at a level that is going to maintain ecosystem health and avoid the 35

proliferation of periphyton blooms and so that will sit somewhere

within the range of 0.08 to 0.8 on Associate Professor Death’s

evidence. 0.44 is chosen as a good trigger level where you should

assess your particular river in more detail and so, yes, somewhere in

that range is going to be the right level for this river. 40

COMMISSIONER HOWIE: Yes. Now, in one of your amendments, and I

don’t know whether I can put my finger on it or not yet, you used the

term “chronic avoidance” from nitrogen, does that ring a bell for you?

45

MS MARR: Yes, it does, it’s in policy TT1.

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COMMISSIONER HOWIE: TT1?

MS MARR: Yes, TT1.1A.

5

COMMISSIONER HOWIE: Oh, yes, chronic avoidance, there we are. So

you are suggesting that in surface waterbodies set water quality

concentration limits and targets for nitrates, nitrate nitrogen, to protect

aquatic fauna from chronic avoidance.

10

MS MARR: Chronic avoidance and toxicity effects of nitrate nitrogen.

COMMISSIONER HOWIE: Well, the toxicity effects are in there already,

aren’t they?

15

MS MARR: Yes, they are.

COMMISSIONER HOWIE: They are the ones that are quite high levels?

MS MARR: Yes, they are. 20

COMMISSIONER HOWIE: But you have added in chronic avoidance?

MS MARR: Yes.

25

COMMISSIONER HOWIE: Now, what do you see as the concentration of

nitrates that deals with chronic avoidance? Chronic avoidance is

presumably the fauna avoid?

MS MARR: Yes, they’re two different types of effects. Chronic effects and 30

avoidance effects and toxicity effects, so there's three different types of

effects from nitrate nitrogen.

COMMISSIONER HOWIE: Oh, I see, there is a comma there?

35

MS MARR: Yes, it is hard to read with the blue, I appreciate that. And that’s

about setting the nitrate nitrogen limits at the right species protection

level.

COMMISSIONER HOWIE: Yes. 40

MS MARR: To not just avoid the worst of the effects of that particular

pollutant but the other effects that might contribute to a decline in

ecosystem health or a decline in health of the species rather, it is not

targeted to ecosystem health, it is targeted to health of the species that 45

are particularly being dealt with in that nitrate nitrogen limit.

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[3.14 pm]

COMMISSIONER HOWIE: So is your thought that chronic effects or

avoidance behaviour equates to the trigger values that ANZECC talk 5

about?

MS MARR: They will equate to the – yes, the levels that are in table 5.9.1,

yes, which is the ANZECC water quality standards, yes.

10

COMMISSIONER HOWIE: So that is the assumption you have made, that

the ANZECC trigger values appropriately set chronic or avoidance?

MS MARR: That is based on the evidence of Ms McArthur that it would be

appropriate – if you want to achieve the freshwater objectives, you 15

need to set those limits at those levels as well as the toxicity level.

COMMISSIONER HOWIE: I also had a question about dissolved inorganic

nitrogen versus nitrate. They are clearly not the same, but I don’t think

in practice they are much different in numerical terms, in other words 20

there is not a lot of ammoniacal nitrogen and stuff like that in there, it is

mostly nitrate nitrogen. I think you distinguished in your suggested

blue line stuff, a distinction there, am I right?

MS MARR: Between nitrate nitrogen and dissolved inorganic nitrogen? 25

COMMISSIONER HOWIE: Yes.

MS MARR: Yes.

30

COMMISSIONER HOWIE: Just take me to where you differentiate?

MS MARR: Well, A talks about – policy 31A - - -

COMMISSIONER HOWIE: Whereabouts are you referring to? 35

MS MARR: I am looking at policy TT1, 1A - - -

COMMISSIONER HOWIE: Yes.

40

MS MARR: - - - talks about nitrate nitrogen limits - - -

COMMISSIONER HOWIE: Yes, that’s right.

MS MARR: - - - to avoid those toxicity et cetera effects. 45

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COMMISSIONER HOWIE: Yes.

MS MARR: And B talks about setting phosphorous and dissolved inorganic

nitrogen limits to manage periphyton effects.

5

COMMISSIONER HOWIE: Yes, that was where - - -

MS MARR: Now, it is my understanding and qualifying this by the fact that I

am not a chemist or an ecologist, that nitrate nitrogen is a subset of

dissolved inorganic nitrogen. 10

COMMISSIONER HOWIE: Correct.

MS MARR: Yes, so you set the dissolved inorganic nitrogen at a level to

provide for the periphyton and ecosystem health effects that should 15

take care at the catchment level of the nitrate nitrogen but there might

be hot spots, for example, downstream where the point source of

discharge is, where at a catchment level, you might be achieving the

total dissolved nitrogen, but it is important to set a limit to avoid those

very extreme adverse effects as well. 20

COMMISSIONER HOWIE: Yes, I just don’t understand why you have

included dissolved inorganic nitrogen in B. Is it not adequately taken

care of in A?

25

MS MARR: A only deals with nitrogen levels where they reach toxic

concentration, so if you look at the - - -

COMMISSIONER HOWIE: Well, not if you add in your chronic and

avoidance? 30

MS MARR: Yes, if you look at table 5.9.1B, which is on page 13, you will

see the column that refers to nitrate nitrogen has got levels of 1, 1.5, for

nitrate nitrogen that will deal with the toxic type of effects.

35

COMMISSIONER HOWIE: hang on, I haven’t caught up with you here – oh,

nitrate nitrogen of – yes, 1 and 1.5 yes- - -

MS MARR: Yes, but in order to manage periphyton growth which is a

different type of effect, the dissolved inorganic nitrogen limit target 40

which is the next column over, is much smaller.

[3.19 pm]

COMMISSIONER HOWIE: Yes. 45

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MS MARR: So different types of effects need different types of limits to deal

with them.

COMMISSIONER HOWIE: So the dissolved inorganic nitrogen limits at

point 4 are designed to control the effects on fauna and you are telling 5

me that the nitrate nitrogen limits are designed to control periphyton?

MS MARR: The other way around.

COMMISSIONER HOWIE: Other way around? 10

MS MARR: Yes. DIN is about managing periphyton or nuisance weed

growth - it’s not just periphyton, its macrophytes and things as well.

COMMISSIONER HOWIE: Yes. 15

MS MARR: And nitrate nitrogen is about the concentration of that chemical

in the water, which will have an effect of its own regardless of the

periphyton level.

20

COMMISSIONER HOWIE: Oh, I see.

MS MARR: I hope I am explaining it – I am explaining it as I understand it.

For any more detail you might be better off to ask one of the ecologists.

25

COMMISSIONER HOWIE: Yes, or certainly go back to their evidence.

MS MARR: Yes.

COMMISSIONER HOWIE: So as you understand it, in zone 1 you are 30

looking for concentrations of no more than 1.5 – what is (a) and (b)?

Hang on, let’s check that. What do (a) and (b) mean in the heading?

MS MARR: They are maximum medium concentrations and maximum, the

95th percentile. 35

COMMISSIONER HOWIE: Oh, okay?

MS MARR: So different measurements protocols.

40

COMMISSIONER HOWIE: So one’s maximum mean?

MS MARR: Maximum medium concentration.

COMMISSIONER HOWIE: Medium, yes. 45

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MS MARR: And the other, (b), is maximum, 95th percentile.

COMMISSIONER HOWIE: 95? Oh, okay. So your understanding is that a

nitrate nitrogen concentration of 1.5 milligrams per litre will give a 95

percentile protection for the fauna? 5

MS MARR: I think that’s a 99th percentile protection.

COMMISSIONER HOWIE: 99 percentile, okay.

10

MS MARR: But the measurement is 95th percentile measurement, yes.

COMMISSIONER HOWIE: Okay. So 1.5 will give us 99 percent protection

for the fauna and .4 will give us the protection against periphyton?

15

MS MARR: That will achieve a periphyton limit, yes.

COMMISSIONER HOWIE: Okay. Mm’hm. You were asked about

monitoring upstream, downstream and of the discharge?

20

MS MARR: Mm.

COMMISSIONER HOWIE: And you thought that that should be a

requirement of all discharges. Sometimes, in my experience, when you

monitor downstream the results you get might be affected by more than 25

one discharge upstream.

MS MARR: Yes.

COMMISSIONER HOWIE: So you are then faced with attributing the effect. 30

MS MARR: Yes, that’s why it’s important to monitor upstream of the

discharge as well as downstream of it, so that you can measure the

relative change caused by the discharge.

35

COMMISSIONER HOWIE: If you are a discharger is it your responsibility to

keep an eye on the other discharger that is nearby?

MS MARR: Not to keep an eye on them, no.

40

COMMISSIONER HOWIE: Well why should you measure their effect?

MS MARR: The point of monitoring upstream of the discharge is not to

measure somebody else’s effect but it is to understand the dischargers

contribution to the effect that you’re measuring downstream. 45

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So if, for example, you are measuring phosphorous and you measure

downstream of your discharge that the concentration of phosphorous is

.02 and clearly in breach of - you know, the catchment is in breach of

the limit, you don’t have any way of understanding what the other

upstream discharges are. But if you monitor directly upstream of your 5

discharge as well as downstream you can see the relative change in the

impact that your discharge is having.

[3.24 pm]

COMMISSIONER HOWIE: Yes, so long as any effect from other discharges 10

is conservative, but if it’s changing in that time then you’ve got to

distinguish, and that’s usually the job of the regional council or the

regulator.

MS MARR: Yes, but you are only – when you measure upstream you might 15

measure that the concentration is 0.2 and then you measure

downstream and find that the concentration is 0.2. You can say that

your particular discharge is not having any impact but if you don’t

measure directly upstream you’ve got no way of understanding the

relative effect that you are having directly on the resource. 20

COMMISSIONER HOWIE: But it is only true of a conservative pollutant,

not true of BOD and dissolved oxygen and things like that, which is not

conservative between positions. But that’s okay; you don’t need to

take that any further. 25

MS MARR: Okay.

COMMISSIONER HOWIE: Now, I am just wanting to understand limits,

targets and indicators as ideas. 30

MS MARR: Mm.

COMMISSIONER HOWIE: Now, I see in the plan change that there is a

footnote – now where do I find that? 35

DISCUSSION

COMMISSIONER HOWIE: From memory, the way the plan change was

written, a limit was the level of contamination allowable if it wasn’t

already as high as that. 40

MS MARR: Yes.

COMMISSIONER HOWIE: A target was level of contamination to be aimed

for if the present was higher than that? 45

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MS MARR: That’s right.

COMMISSIONER HOWIE: I don’t think an indicator is defined but

presumably that would be to indicate the trend.

5

MS MARR: Well, there is a footnote about indicators and it says that - - -

COMMISSIONER HOWIE: Oh, whereabouts? Yes?

MS MARR: On my version of the plan it is on the bottom of page 3, it is hard 10

to read.

DISCUSSION

MS MARR: On Mr van Voorthuysen’s version it is on the bottom of page 2. 15

It is not crossed out so it might be easier to read on his version.

COMMISSIONER HOWIE: Yes, that is on Mr van Voorthuysen’s page 2.

MS MARR: It is, yes. 20

COMMISSIONER HOWIE: Yes – oh, indicator, here we go. Yes, so there is

definitely a trend – a measure indicating whether you are getting there

or not.

25

MS MARR: That is how Change 6 proposed to use them, yes.

COMMISSIONER HOWIE: Yes.

MS MARR: They don’t talk so much about trends but they do say it’s another 30

way that we will measure if we have achieved the objectives. And my

thought is, well, if it is a way that you measure whether you achieve the

objectives then it’s appropriate to use it as a limit, because that’s the

definition of a limit.

35

COMMISSIONER HOWIE: Yes, we are talking here about a policy

document, - - -

MS MARR: Yes.

40

COMMISSIONER HOWIE: - - - not a consent as such.

MS MARR: That is correct, yes.

[3.29 pm] 45

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COMMISSIONER HOWIE: And the provisions of a policy document are not

enforceable as such. In other words you can’t prosecute the Council

for not meeting an objective or a policy.

MS MARR: No, no. 5

COMMISSIONER HOWIE: You can for a consent.

MS MARR: That’s right.

10

COMMISSIONER HOWIE: So in a way any numerical figure in a policy is

an objective or a target. It’s not enforceable in that sense as a limit

might be.

MS MARR: “Not enforceable as a limit might be” did you add? 15

COMMISSIONER HOWIE: Yes if you set a limit then you can say well

they’re not meeting that limit or they’re breaching it or something like

that.

20

MS MARR: Yes.

COMMISSIONER HOWIE: But a policy’s about something looking to the

future as an objective or as a target. Do you not think?

25

MS MARR: A number contained in a policy – no, there’s no action you can

take against the Council if they don’t achieve - - -

COMMISSIONER HOWIE: No.

30

MS MARR: - - - the policies of their plan.

COMMISSIONER HOWIE: No.

MS MARR: Absolutely not, but the policies are quite key in a number of 35

statutory senses to achieving sustainable management. The first of

those is when a decision-maker’s considering a resource consent they

have to turn their mind to the policies and the extent to which the

resource consent achieves those policies and if it’s a non-complying

activity the extent to which it’s consistent with those policies. And the 40

second sense is that the Council does have an obligation to give effect

to national policy statements in their policy documents. And so that is

a statutory obligation to set limits and to achieve – put in place a

process for achieving those limits. So they do hold a very important

place in the regulatory scheme of the RMA. Policies do. In my view. 45

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COMMISSIONER HOWIE: So does the national policy statement require

limits or targets or indicators?

MS MARR: The national policy statement requires freshwater objectives,

limits and targets and methods to achieve those limits and targets. 5

COMMISSIONER HOWIE: And does it make any definition of limits and

targets?

MS MARR: It does, yes. 10

COMMISSIONER HOWIE: Are they the same as these definitions?

MS MARR: Yes. They are the same as the way that we’ve just discussed

them, yes. 15

COMMISSIONER HOWIE: Okay. Clearly we’re going to be poring through

this at some length. Thank you Ms Marr. Thank you, sir.

MS LOVELL: Hello Ms Marr. Just following on from Commissioner Howie’s 20

comments and using his example of 0.8. Just looking at your table XX,

we all seem to come back to it. And the suggestion well effectively in

the 2050 column that would put it at around the 460, 470 mark using

zone 1 at 0.8. When we’ve been listening to some of the

representations we’ve heard the feedback in terms of 2050 and maybe 25

it’s me feeling my own mortality it seems that it’s quite a long way

away. If we were inclined to set, again using an example 0.8, would

you suggest to us that we could or should reduce from 2050?

MS MARR: The timeframe? 30

MS LOVELL: The timeframe.

MS MARR: It would definitely be appropriate to reconsider that. Yes.

35

MS LOVELL: Have you got any thoughts on the type of – the way we would

calculate that?

MS MARR: Well I think it needs to take into account what changes are

required to happen on land to get there and allow appropriate amount of 40

time to do that.

MS LOVELL: Mm’hm.

MS MARR: For example even though a 30% change or reduction in leaching 45

is possible it’s a significant shift in management and might require

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some investment and so I think that allowing a reasonable timeframe,

20 years even, is completely reasonable to allow that sort of change to

occur. So that’s definitely one factor I think that you’ll need to take

into consideration.

5

MS LOVELL: That was my one question, thank you.

CHAIRPERSON: Thank you. Would you like to go ahead now?

MR NEILL: Yes, I’ve only got two small questions. In understanding nutrient 10

management you believe we should set the policy and then any

irrigation company that’s providing water should make it a condition of

any consents granted that they meet the irrigation company

requirements ie NOIC in North Otago, Hunter Downs type thing?

15

[3.34 pm]

MS MARR: I’m not familiar with those particular schemes but if what you’re

asking me is should the plan drive the resource consent my answer is

yes. Not the other way around. 20

MR NEILL: Yes.

MS MARR: Yes.

25

MR NEILL: Notwithstanding the conferencing that took place recently you’re

still adamant that it should be a dual nutrient management programme?

MS MARR: I am. Yes. My position on that is still that dual nutrient

management is the most appropriate way to achieve these freshwater 30

objectives.

MR NEILL: And whilst you’ve indicated that your preference is that of .444

that the Board could consider something additional to that?

35

MS MARR: Absolutely. I think that the evidence before you is that at

somewhere within that range, .08 to .8, would achieve the freshwater

objectives around periphyton in particular so yes, somewhere in that

range I think there’s evidence to support that and it’s just a matter I

suppose of the further up that scale you are the increasing risk and the 40

further down you are the decreasing risk and it’s getting the risk in the

right place.

MR NEILL: And finally the suggestion was that under section 32 there is

some economic indicators that need to be considered as to the cost of 45

that.

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MS MARR: Yes.

MR NEILL: Otago have implemented .444 and no one appealed against it.

Correct? .444, no one appealed against the .44. I believe I am right. 5

They appealed against other things, but not against that.

MS MARR: Yes.

MR NEILL: And life has continued to go on. 10

MS MARR: It has.

MR NEILL: The sun’s still coming up in Central Otago.

15

MS MARR: Yes and .444 was the level considered for the lowland rivers in

the Manawatu / Whanganui region as well. And there were many

appeals on that plan but that number was not one of the key issues in

contention and life has gone on there as well.

20

MR NEILL: Thank you. Thank you, sir.

CHAIRPERSON: Thank you. And back to this table XX again I’m afraid.

2014 we effectively look at the current load for the relevant catchment.

and Dr Wilcock gave evidence indicating the DIN load at particular 25

points within particular catchments. Have you seen that?

MS MARR: Is that the table in the back of his evidence with the red and the

orange - - -

30

CHAIRPERSON: It’s this table here. Does that ring a bell with you?

MS MARR: I have seen that yes.

CHAIRPERSON: Yes. And so you contemplate if the plan change included 35

table XX that it would derive the current load starting point by

reference to evidence obviously but is that the sort of evidence you had

in mind? Or have you got something else in mind?

MS MARR: No I think that draws on the state of the environment monitoring 40

that the Council has done and that would be the source of information

that would have to be used. Yes.

CHAIRPERSON: Okay. Now the next thing is .444 as referred to in the 2050

column would be derived in the same way as the .444 if that was the 45

figure that is used in table 5.9.1(b) presumably and am I correct in

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understanding that that would be calculated by reference to the plan

description which is maximum, depending on whether “annual” is

deleted, maximum average concentration of dissolved inorganic

nitrogen when the river flow is at or below three times the median flow,

is that what you have got in mind? 5

[3.39 pm]

MS MARR: Yes, that would be an appropriate way to calculate it, yes.

10

CHAIRPERSON: And the average concentration of din shall be calculated as

the average of monthly monitoring results obtained over a period of

five consecutive years, so that is your method of calculation?

MS MARR: Well, yes, that the number in the 2050 column relates to 15

achievement of that limit, so whatever calculations need to be done to

calculate the load to achieve the limit, that’s what needs to occur. They

need to relate to one another, yes.

CHAIRPERSON: Okay, now the other thing is that when Mr Robinson was 20

cross-examining you about phosphorous management plans as an

alternative, you said something to the effect that there were other tools

that might be used to provide what is effectively a safety valve. Now,

have I got you correctly there?

25

MS MARR: In relation to the effects of the access of stock to water bodies?

CHAIRPERSON: Yes, now what I am curious about – if it isn’t a

phosphorous management plan that would be adopted by farmers – let

us assume for a moment who had major problems in excluding stock, 30

what other tools have you got in mind?

MS MARR: Well, it would be about managing the adverse effects that that

stock access is causing, so it might be if the adverse effect is a pulse of

faecal contamination or sediment, there might – and it’s a small stream, 35

there might be some actions you can take further down in the

catchment that would mitigate that- - -

CHAIRPERSON: I see, yes.

40

MS MARR: For example sediment retention or wetland that would capture

that. It might be riparian planting further downstream that would be

more of an offset for that adverse effect. It would depend on what the

adverse effects of the access is. So, you know, if it’s a river crossing

that’s used very frequently, it’s going to have a large impact that would 45

need to be mitigated within the catchment, and if it’s a, you know, a

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small herd of cattle once every two months, then that would need to be

factored in as well.

CHAIRPERSON: Yes, all right. Well thank you very much, Ms Marr and we

will take the adjournment now. 5

<THE WITNESS WITHDREW [3.40 pm]

ADJOURNED [3.40 pm]

RESUMED [4.06 pm] 10

CHAIRPERSON: I am not sure whether – oh, Ms Gerard, we have received

your request to admit the supplementary evidence notwithstanding the

ruling that we made earlier today. I am afraid the position is that the

supplementary evidence is well out of the timeframe that was set for 15

evidence and we have made our ruling and cross-examination

proceeded on the basis of the ruling that we made. So there is no

possibility of us accepting the supplementary evidence. I know you

find that unsatisfactory but I am afraid that that is the ruling that we

have made, all right, thank you. 20

Now, Mr Riden. I understand that we have got a few problems in terms

of having your representation in written form but no problem, we will

press on, receive it orally. It will be recorded in the transcript and any

photocopying that needs to be completed can be completed in due 25

course, all right. So, when you are ready, if you would like - - -

MS……….: We have got to do the closing, Fish and Game’s closing.

CHAIRPERSON: Of course, sorry, you are quite right. You will probably be 30

wondering - - -

MS SIMONS: Well, I was wondering, sir.

CHAIRPERSON: - - - with the shakes that have been brought to bear here 35

where we are going. So, Mr Riden, we will hear from you in a moment.

MS SIMONS: Thank you, your Honour, I have written closing submissions.

CHAIRPERSON: Yes. 40

MS SIMONS: There should be two pieces of paper there. There is a set of

submissions and there is a supplementary sheet which should have been

attached but unfortunately didn’t make it to the back of the document.

That is an extra from Crest Energy which I will be referring to in my 45

submissions.

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What I have done is to set out or formatted the submissions by firstly

identifying a number of issues that the Board has sought a response to

or are a matters that have arisen in the course of the hearing that are

specific issues. 5

CHAIRPERSON: Yes.

MS SIMONS: So if I proceed with the first issue which was a matter that was

raised by Commissioner Neill. He inquired about a comment on the 10

Fish and Game website Otago with regard to the Opuha Dam. And I

made some inquiries and what I have here is obviously a submission

but it’s not evidence, it’s just advice that I have received and you can

give it whatever weight. But I am hoping it will fill that gap in terms of

what is the difference between the Opuha dam and the Tukituki River 15

in terms of the potential there.

[4.09 pm]

CHAIRPERSON: Yes. 20

MS SIMONS: So by way of background. In the mid-1980s, the Opihi River

was a dying river due to naturally dry climatic conditions plus over

allocation of water extraction. Large sections of the river were

completely dry in summer and the mouth of the river was often closed 25

for long periods of time.

The dam company, Opuha Water, approached the community with a

view to organising a community group focus to develop the dam but

also to restore the river. The dam company proposed to increase the 30

volume of water in the river from 2.3 cumecs to 6 cumecs, that is

practically tripling it, and increase the storage capacity of the reservoir

by 50 percent in order to provide storage for an environmental share to

allow for the 6 cumecs and the consequent near tripling of minimum

flow in the river. 35

This effectively enabled the river to flow without ever drying up or the

river mouth closing. Fish & Game were actively involved and in

support of the proposal. There was one area of discussion and that was

the issue of consistency and flow volumes. Fish & Game wanted to 40

ensure that the 6 cumecs was variable, at certain times of the year

having more or less than the overall annual average of 6 cumecs and

that would make it consistent with the natural hydrograph and the dam

company agreed to this.

45

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So while the Opuha dam is identified as a success story in terms of

water storage projects, there are key differences between that project

and the proposed Ruataniwha dam project, and they are:-

Firstly, the state of the river at the time of the proposed dam the Opuha 5

was to a large degree, a case of restoration of a badly degraded river;

secondly, the Opuha dam does not dam the main stem river, and

thirdly, the Opuha is – and it should be constructed there – only one is

constructed on only one of the three headwater streams of the Opihi

catchment effectively enabling the other two to provide flow and flow 10

variability to the Opihi River.

So prior to that, there had been allocation and water extraction taken

from all three of the headwater streams with the advent of the dam on

one, it allowed the other two contributing headwater streams to provide 15

a more natural flow consistency.

Phormidium and didymo are problems in the Opuha and the Opihi

Rivers in mid-summer as they are in other streams in Canterbury, most

of which have not been dammed. Nutrient input from the 20

intensification in the Opihi catchment has not been assessed, so while

there has been an overall improvement in the mouth of the river by

virtually being increased flow, the issues of unsafe nutrient levels

remains an issue to be addressed and the catchment is still classified as

a red zone by Environment Canterbury. 25

So there is an improvement, there is a restoration but it is an ongoing

project. We have got the flow under control but the nutrient issue is yet

to be investigated and addressed.

30

Now turning to the National Policy Statement for freshwater

management. Your Honour raised the issue of whether achieving a

sustainable in-stream nitrogen concentration by 1 July 2050, as

proposed in policy TT11B and elsewhere in Ms Marr’s planning

provisions, we give effect to the National Policy Statement for 35

freshwater management and requested that Fish & Game’s closing

submissions address this issue.

This request specifically related to policy E1B of the freshwater NPS

regarding what fully completed by no later than 31 December 2030 40

means.

Policy E1 of the freshwater NPS, provides for progressive

implementation of freshwater NPS policies by regional councils.

45

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Policy E1 B requires regional councils to implement the policies as

promptly as is reasonable and so that they are fully completed by no

later than 31 December 2030.

Fish & Game submits that policy E1 B does not require that the 5

policies are to be given effect to or achieved by 31 December 2030.

And the planners have reached the same position and that is recorded in

paragraph 14 of the latest planners conferencing statement.

This position is also consistent with the following statements from the 10

implementation guide to the freshwater NPS, and that states, “Policy

E1 does not create a requirement for all objectives and limits under

policies A1, A2, B1, and B2 to be achieved by 2030 although

objectives limits and targets including timeframes for achieving the

targets must be set. In some cases where there are significant legacy 15

issues and long lag times to be dealt with, in other words nutrients from

past land use still in transit to water bodies, objectives and limits may

take longer to achieve.

[4.14 pm] 20

So there’s a realistic timeframe there for achievement. They’re just

insistent on there actually being targets. The statement quoted above

recognises the reality that contamination from past and present land

uses can continue to cause contamination for long periods of time and 25

therefore setting a date of 31 December 2030 for that contamination to

be remedied or adequately mitigated would not necessarily be realistic.

And that is consistent with policy A(2) of the freshwater MPS as it

provides for regional councils to specify targets and implement

methods within a defined timeframe if the water bodies do not meet the 30

freshwater objectives set pursuant to policy A(1) of the MPS.

There is no defined timeframe specified in the MPS as to when the

specified targets have to be met as that will depend on the

circumstances of each case. 35

Now the next issue is the increased groundwater abstraction and your

Honour also asked Fish and Game to address you on that issue. You

recall that there was a proposed increase in groundwater abstraction

from 25 million cubic metres to 28.5. Fish and Game is not in a 40

position to provide adequate advice on that. The evidence did not

address that to any great degree and so it is the position that Fish and

Game will not submit to you on that and will abide by whatever finding

the Court takes on this.

45

CHAIRPERSON: Thank you for addressing those two matters.

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MS SIMONS: Now the proposed nitrogen cap is a matter I do wish to address

you on. The Council has produced effectively new evidence in the

form of a memorandum attached as attachment 3 to the planners’

conferencing statement. That memorandum was prepared for the 5

purpose of trying to provide a technical basis for the proposed nitrogen

cap included in the latest version of the Council’s proposed planning

regime.

Fish and Game does not agree that the information in the memorandum 10

provides a supporting technical basis for the proposed nitrogen cap.

The primary reason for that is that the TRIM model has been relied on

to determine end loads and instream end concentrations at Black Bridge

near the end of the Tukituki catchment. And I refer you to table 2 of

the memorandum. Fish and Game does not consider that the TRIM 15

model is fit for that purpose. The deficiencies with the TRIM model

were addressed in our opening submissions so I will not repeat those

closing submissions but I would ask you to refer back to those opening

submissions on that issue.

20

Another reason why Fish and Game does not consider that the

memorandum provides the supporting technical basis for a nitrogen cap

is that it only relates to Black Bridge and provides no information about

end concentrations or end loads anywhere else in the Tukituki

catchment. End concentrations and end loads can vary significantly 25

over the Tukituki catchment depending on numerous variables such as

the amount of N being inputted into the system at any time, where it is

inputted, water volume at any given time and instream attenuation

of N.

30

What scenario C in table 2 of the memorandum appears to indicate is

that the Council considers an instream median N concentration of

0.9 milligrams per litre of DIN at Black Bridge as an appropriate

instream concentration. Now that figure is close to the upper limit of

the 0.8 milligrams per litre of DIN in the 0.8 / 2.8 milligrams per litre 35

range set out in Associate Professor Death’s evidence. And that’s just

been recently referred to in Ms Marr’s evidence where she referred to

the range that was acceptable.

However, no changes are proposed to the end toxicity limit set out in 40

table 5.9.1(b) of the Council’s proposed planning provisions and no

DIN limits are included in that table for water management zones 1, 2,

3 and 5. And those are obviously – you’ll be quite familiar with.

They’re quite elevated way above that. To avoid any confusion I note

that Fish and Game still supports 0.444 milligrams per litre figure 45

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proposed in Ms McArthur’s evidence, for all the reasons that you’ve

heard in the evidence today.

[4.19 pm]

5

Finally, the independent planning report – Fish & Game has identified

a number of issues with the independent planning report by Hill Young

Cooper.

The primary issue is that the evaluations in the report essentially only 10

relate to the planning regime proposed by the council. The report

specifically acknowledges this at paragraph 5.24 where it states that the

purpose of this report is to assess the policies as amended during the

hearing, being the 10 December version of Change 6.

15

The report also states the following – “It is considered that it is not

appropriate for this report to identify what the nitrogen targets limits (if

any) should be.”

The brief for Hill Young Cooper, however, refers to the “most 20

appropriate” tests that are in section 32 of the RMA and the relevant

provisions in sections 32 state the following – “Consideration of

alternatives, benefits and costs – an examination must examine the

extent to which each objective is the most appropriate way to achieve

the purpose of the Act and whether having regard to their efficiency 25

and effectiveness the policies, rules or other methods are the most

appropriate for achieving the objectives.”

Now, I just want to point out that these are the provisions of the RMA

prior to the 2009 amendments which came into force in December of 30

2013 – 2013 amendments, I am sorry.

So the prior provisions that I have referred to are those that were extant

at the time that this application was notified, which is why they apply

here. 35

In determining what is appropriate it is necessary to consider

alternatives, such as the planning regime proposed by Fish & Game,

but the report does not do this. That is clear from the words quoted

above from the old section 32 that applies to these proceedings and has 40

been made explicit in the new section 32.

It is therefore submitted that the report is of limited value to the Board

as it does not include the necessary evaluations.

45

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The report also does not contain an assessment of the effectiveness of

the proposed council and Fish & Game regime, such an assessment is a

requirement of applying the most appropriate test in section 32.

At paragraph 5.34 of the report the conclusion is made that the adaptive 5

management approach, in reviewing the success of the proposed

process, and the need for an increased regulatory approach is

considered appropriate.

For the reasons that have been set out in the opening submissions by 10

Fish & Game and the reasons below in these submissions it is

submitted that what the council is proposing is not adaptive

management. It is therefore submitted that the quote above is quite

incorrect.

15

The report assumes at paragraph 5.63 that the council has committed to

funding various things in that paragraph, and I have been advised by

Ms Marr that the council has not committed to that funding.

So if I turn now to our overall closing submissions on behalf of Fish & 20

Game – over recent years the issue of freshwater, its use as a resource,

its allocation and its protection has become of increasing interest and

concern both globally and locally.

Water has fast become recognised as a finite resource. In this case 25

water is a commodity over which one section of the community seeks

the right to not only take but to contaminate. The issues are numerous

and very complex.

Council (ph 4.01) is essentially the applicant, the proponent of the dam 30

and at the same time is also the regulator with the statutory duties to

monitor, control and maintain water quality and quantity. This raises

another layer of issues and intentions.

Counsel for the council will say that council controlled organisations 35

are common and are used for managing a great many council services

and community resources, and this is true.

What is not so common is for the council to hold a position with a clear

potential for conflict within a community with views about this project 40

that cover the whole spectrum of opinion, from full support to total

opposition.

The council and its company has had to divine certain fictions and

elevate a number of issues to hypothetical status to argue that a credible 45

case exists for this proposal.

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The Tukituki is a river already under threat with acknowledged hot

spots of elevated N levels and over-allocation of P. Periphyton growth

in summer is an acknowledged concern. Eight out of 14 water quality

monitoring sites monitored for P and N already demonstrate that water 5

quality is neither P nor N limited.

[4.24 pm]

I just pause there because what that also indicates is that the balance of 10

those sites, the six out of 14, demonstrates that the 0.444 limits are

being met, are currently being met.

The Council takes the position an improvement in water quality in the

Tukituki River is at this time unaffordable. In other words the current 15

farming practices should endure because clean dairying or clean

agriculture is unaffordable.

Now, Dr Dewes gave evidence that clean dairying is attainable,

affordable and profitable. There is no avoiding, however, that a dam 20

and the subsequent use of water for intensifying agriculture will cause

changes in the flow regime and increased levels of P and N. There will

be consequent degradation of water quality, increases in periphyton

growth and significant stresses on ecosystem health.

25

The Council seeks to justify these effects notwithstanding its statutory

duties in relation to water quality and ecosystem health by inventing

the fiction that says that by single nutrient management there is

capacity to increase the levels of N in the Tukituki River. It is

fundamental to the Council’s case that you accept that there is capacity 30

for greater levels of N to be discharged into the river. The case for the

dam depends on it.

There is only headroom though to allow for more N if it is acceptable

to have the river water quality transition from current to degraded to 35

toxic. That is the only means by which the Council can reason that

there is headroom to allow more N to be discharged into the river. It

would create, in my submission, complete turmoil for the Council if the

applicant were to concede to dual nutrient monitoring. It is a

concession that cannot be made. 40

So by managing only for P the Council has told the community that it

can have the dam and still fulfil its statutory role to maintain and

enhance water quality. But you heard evidence that a P limitation

approach has been globally discredited. 45

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The evidence is quite clear that serious ecosystem harm can occur well

before toxicity and the level of toxicity that the Council aspires to is

well in excess of that experienced in the Waikato River or indeed the

Mississippi or the Thames. And you will recall Associate Professor

Death likened it to be paralytically drunk rather than dead from alcohol 5

poisoning.

Efforts to improve water quality in those systems have not succeeded

and I am talking about the Mississippi, the Thames, the Waikato. It

was Dr Abell’s evidence that if nitrates are set at toxicity limits aspired 10

to by the Council the Tukituki River would be among the top eight

most polluted rivers in the world.

And if this case before the Board now is setting a precedent, if it’s a

test case, then what we are doing is condoning the serious possibility of 15

New Zealand having a significant number of rivers ranking in the most

polluted rivers in the world.

The evidence also confirms that P can never be turned down. Never

controlled totally because it is simply too complex a task. Examples 20

provided by Dr Abell and Associate Professor Death demonstrated that

trying to manage the single nutrient P has been an abject failure

internationally and in New Zealand.

While it is apparently not economically viable to manage N we haven’t 25

heard any evidence as to why it is economically viable to manage or

affordable to manage P, there is no evidence there.

Now, I just want to address the Hurunui decision. This was referred to

by Commissioner Neill in questions to various expert witnesses 30

because of the single nutrient issue. It was a decision of Council

appointed commissioners and was released in April 2013. The decision

does provide for single nutrient management approach in the sense that

it allows increases in N leaching while seeking to ensure P discharges

do not increase. 35

The decision to take that approach was based on the view that the lower

Hurunui River was P rather than N limited.

[4.29 pm] 40

In comparison there is evidence in the present case from expert

witnesses for Fish and Game and even the Council that indicates

significant parts of the Tukituki catchment are nitrogen limited or co-

limited at times, particularly during periods of summer low flows. On 45

that basis it is submitted that the Hurunui decision is not a precedent for

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a single nutrient management approach to the Tukituki catchment. In

addition the decision related to a completely different part of the

country and it is not apparent from the decision whether similar

geologic issues and groundwater lag times is applied in relation to the

Ruataniwha aquifer were relevant considerations in the Hurunui 5

decision.

More importantly in my submission the Hurunui decision clearly relies

on evidence that is based on the application of Redfield ratios. Nothing

in the decision indicates that the use of the Redfield ratios is questioned 10

or challenged and the witnesses who really took you through those

issues were again Dr Abell and Associate Professor Death. And they

discredited the Redfield ratios and Associate Professor Death stated in

this context of the Ruataniwha aquifer the Redfield ratios were no use

because N and P levels change in just 24 hours. And again he used that 15

really useful illustration where he said you cannot measure the health

of your body by measuring what you ate today. Your health is based

on what you ate yesterday, what you ate last week, what you ate last

month. So to measure what happened today provides you with no

useful information. 20

There’s been no evidence available that demonstrates that the decision

to provide for a single nutrient management in Hurunui was appropriate

or effective because obviously the decision was only in April last year.

25

In terms of monitoring water quality the Council has submitted that it is

appropriate to rely on its models which in my submission are not fit for

purpose. You will recall that the Council was resistant to any third

parties having access to the TRIM model. There were doubts held that

the TRIM model was not fit for purpose and after intervention by the 30

Board these concerns were confirmed. To his credit Dr Rutherford

modified his position to suggest that there were weaknesses which

made the TRIM model unreliable.

One of the inputs into the TRIM model is the outputs from the 35

OVERSEER model and you heard evidence to say that the application

of the OVERSEER model in the context of the Ruataniwha Basin was

also unreliable. OVERSEER assumes for instance best practice and

has limitations in terms of storm events. Furthermore it has not been

validated for intensive land use on coarse soils which is what we have 40

here in the Ruataniwha Basin. Therefore there are inadequate inputs

through OVERSEER going into an inadequate TRIM model and it is

on this basis of these models that the Council will monitor and control

water quality.

45

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Dr Baalousha was satisfied with his groundwater model which even his

own peer reviewer warned was inadequate for a range of purposes.

Dr Zemansky expressed concern that the groundwater modelling ought

to have included a geologic modelling component because of the

clearly complex hydrogeology of the region. While acknowledging the 5

hydrogeology was complex Dr Baalousha saw no reason to take

advantage of offers made to assist him with the hydrogeological

modelling that would have provided another level of certainty absent

from his model. He justified these shortcomings by relying on a need

for simplification. 10

Dr Zemansky warned that over simplification was a common pitfall

and that models have to bear some resemblance to reality. The

modelling by both Dr Baalousha and Dr Rutherford is not fit for

purpose with neither of them being able to prove that their models can 15

model the current situation let alone any changes arising from changing

land use and management.

Relying on the Council models is therefore in my submission highly

risky. As Dr Abell said a model is wrong until proved otherwise. The 20

burden of proof is on the modeller.

The usefulness of the models to monitor and control the effects on the

Tukituki River are further diminished by the groundwater lag times

between contaminants entering the groundwater and their manifestation 25

in the river. By the time it is recognised that the Tukituki River is on

the brink of toxicity the real situation may not manifest itself for

another decade or more, during which time the effectiveness of the

steps taken to improve the situation will not be known for those very

same reasons. 30

[4.34 pm]

The council says it can rely on adaptive management as a regime for

ensuring that in the event that water quality declines, it can take steps to 35

remedy the situation. In my opening submissions on behalf of Fish &

Game, identified but what is proposed is not adaptive management.

What is being proposed by the council is that there will be some kind of

unidentified reactionary response to an inability to maintain water

quality. 40

Now at this point, I would just like to refer you to the extract from “The

Press case”. That is part of a decision of the Environment Court

division chaired by the acting principle, Judge Newhook. You will see

there that a witness for the applicant referred to the biodiversity 45

strategy which had a definition of adaptive management, and that was

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an experimental approach to management or structural learning by

doing. It is based on developing dynamic models that attempt to make

predictions or hypotheses about the impact of alternative management

practices. Management learning then proceeds by systematic testing of

these models rather than by random trial and error. 5

Adaptive management is most useful where large complex ecological

systems are being managed and management decisions cannot wait for

the final research results.

10

Paragraph 100. His Honour stated, “We are inclined to the view that

the definition and the strategy might be deficient in a failure to focus on

the need on such occasions for robust baseline monitoring.” We had

more empathy, he said, with the following extract taken from the

agreement at the planning witness caucus meeting, and that definition 15

is. “Features of adaptive management are, firstly, that stages of

development are set out, the existing environment is established by

robust baseline monitoring, there are clear and strong monitoring,

reporting and checking mechanisms so that steps can be taken before

significant adverse effects eventuate. These mechanisms must be 20

supported by enforceable resource consent conditions which require

certain criteria to be met before the next stage can proceed and there is

a real ability to remove all or some of the development that has

occurred at that time if the monitoring results warrant it.

25

How the council propose to respond address impacts on water quality

issues is not readily identifiable. If the agricultural community cannot

afford improved water quality by cleaner farming practices now, it has

not been explained how they are expected to afford such measures in

the future after investing in a dam and all the accompanying 30

infrastructure and the capital required for intensive farming anticipated.

As Dr Dewes said, farmers need certainty and that certainty must

include what their obligations will be if they had to change practices

because the water quality at the Tukituki River has reached toxicity or, 35

as indicated by experts even prior to toxicity, full ecosystem collapses

occurred.

And I refer back to the Hurunui decision where the council

commissioners there accepted a submission that toxicity was reversible 40

but it would require deintensification. Now, in my submission, the last

thing the farming community needs after intensification has taken

place, to be told now we have to deintensify to address the issues of

river water quality.

45

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The means by which the council seeks to construct this dam in terms of

its statutory framework is to wrap a set of rules around the dam. And

in my submission that can be clearly seen in the way that Ms Marr was

cross-examined by my friend, Mr Robinson, this morning, where he

suggested that because land intensification is incompatible with the 5

progressive reduction in N levels, that the rules should be changed to

provide.

And Mr Robinson also said, if the limits are unachievable, then

objectives are not being met but the objectives are not the dam, the 10

objectives are to ensure that the NPS standards for water quality are

being met and that there is a measure of ecological health being

maintained.

Fish & Game urges the Board to ensure that Plan Change 6, standing 15

alone without reference to the dam or other stakeholder interests,

reflects the statutory imperatives of the RMA, the National Policy

Statement for freshwater management and parliament’s intentions in

terms of the use and management of freshwater in New Zealand.

20

[4.39 pm]

Getting Plan Change 6 to stand alone as a piece of well crafted

subsidiary legislation must be the imperative in light of the precedent

effect and the need to provide a template for good water management 25

policy and rules. A trajectory for improvement, not toxicity, must be

the objective.

The preamble to the freshwater NPS includes the following statement,

which is relevant to the interpretation of the NPS. 30

“Given the vital importance of freshwater resources to New Zealand

and New Zealanders, and in order to achieve the purpose of the

Resource Management Act the Crown recognises there is a particular

need for clear central government policy to set a national direction 35

through the management of the resource needs to reflect the catchment

level variation between water bodies and different demands on the

resource across regions. This includes managing land use and

development activities that affect water so that growth is achieved with

a lower environmental footprint”. 40

In my submission which is proposed by the council is not growth with

a lower environmental footprint.

Fish & Game has sought to assist the Board by providing key evidence 45

and an amended version of Plan Change 6. In these circumstances Fish

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& Game submits that the best evidence as to what Plan Change 6

should look like comes from Helen Marr. She has sought to ensure the

rules are not tailored to enable a certain development such as a dam.

Like any development, if the dam has merit then it can stand on its

own. 5

Fish & Game cannot concede to the rules being drafted to

accommodate a defective application. The rules, as offered by Fish &

Game as a compromise, provide for grand-parenting nitrogen rather

than land use capability limits, but over time provide for the trajectory 10

of improved water quality which cannot, in my submission, logically be

objectionable.

The alternative, progressive and almost certain irreversible toxicity and

increased growths of excessive periphyton, cannot realistically be 15

countenanced.

If you look at the way that Ms Marr approached the drafting of her Plan

Change 6 you can see she started by identifying the environmental

issues, undertaking a section 32 analysis. The council started with the 20

dam.

The evidence of Dr Abell, Associate Professor Death and Ms Jordan

clearly demonstrated that ecosystem collapse can occur well before

toxicity. There is an irrefutable logic to the council using ecosystem 25

health as a benchmark rather than toxicity. That would better represent

the interests of the whole community.

In my submission, there is no statutory, community or scientific

mandate to support the concept of toxicity as a limit. Furthermore, as 30

indicated by Ms McArthur, a DIN level of .444 milligrams per level, as

opposed to toxicity, provides a more satisfactory means of actually

measuring water quality. In other words, it’s a tangible measure, unlike

toxicity. How do you know?

35

Whatever the limit becomes, in my submission, effectively becomes

the goal. If your threshold is toxicity that effectively (because you are

dealing with a resource), that becomes the goal. So you have to be very

careful in what goal you set, and in my submission the goal (the only

threshold, the only limit), must be ecosystem health. 40

The council has suggested that follow the prescription offered by Fish

& Game will set farming back by 100 years. Well, maybe it wasn’t a

hundred years but it was in that order. The irony, in my submission, of

that criticism is that it ignores progressive changes in farming practices 45

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now occurring and be accepted in farming – and you heard from Dr

Dewes on that.

Clean farming practices are not only possible, they are profitable. Dr

Dewes has given clear and compelling evidence to support that 5

proposition.

CHAIRPERSON: Now, just to pause there. During cross-examination Mr

Robinson asked Ms Marr about other evidence that might apply to

other than dairying. 10

MS SIMONS: Yes.

CHAIRPERSON: Is there other evidence you have got in mind or are there

particular parts of Dr Dewes evidence that refer to not only dairying but 15

other activities? Or do you say that her conclusions encompass the

others?

MS SIMONS: Well, she did refer to intensive agriculture.

20

[4.44 pm]

CHAIRPERSON: Yes.

MS SIMONS: And the principles remain the same. So her examples she gave 25

were in the context of dairying because that’s what she knows best.

But when she was talking about fodder cropping she also mentioned

the same issues. How they are dealt with is possibly different but when

you are talking about intensive farming the principles, the high level

principles remain the same. 30

So I agree with Ms Marr’s evidence that she gave today that the

evidence that the evidence that Dr Dewes produced it dealt with

primarily dairying, that much is correct. But that is not to say that the

attitude of the dairy farming community stands alone outside the rest of 35

the agricultural community and I would suggest that it would be

specious to suggest that only dairy farmers are interested in being

progressive and creating a balance between ecosystem health and

economic growth.

40

CHAIRPERSON: Okay, thank you.

MS SIMONS: Now, Dr Dewes said that dairy farms can reduce their N

leaching by 15 to 20 percent over five years. What is required, she

says, is leadership. In my submission the Council rather than 45

embracing the old assumptions could have taken a leadership role but

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has failed here to do so. If the Council proceeded on the basis that

Dr Dewes has proposed it could concede to dual nutrient management

and ecosystem health as opposed to toxicity as a limit.

Dairying and other forms of intensive agriculture cannot continue to be 5

developed and operated unfettered without being in balance with good

environmental practices. And that needs to be encouraged and required

over a reasonable timeframe and that, in my submission, is what the

Fish and Game version of plan change 6 anticipates.

10

Now, no one said it was going to be easy and it is accepted, in my

submission, that it will take a long period of time but just because it’s

hard, in my submission, is no reason not to do it.

And I also hark back to the evidence that Ms Marr gave earlier on 15

today to say that the Council’s own economic evidence included the

Harris modelling which showed that at 0.3 milligrams per litre, which

of course is below the 0.44, that would over a long period of time

would have the same economic outcomes as currently occurs. So while

a lot is made of the cost of managing N there is no evidence to support 20

that.

Once the rules are established then the application in the notice of

requirement can be assessed on its merits. We have to accept that the

science around N leaching into groundwater and surface water is 25

complex and therefore there are many uncertainties. As many of these

as possible should be eliminated.

Fish and Game considers that the Council and the applicant have

embarked on a highly risky strategy based on imprecise science, flawed 30

modelling and a failure to adduce fundamental and necessary

components of an adaptive management regime to address the

significant uncertainty and achieve a precautionary approach.

Fish and Game are not opposed to a dam per se but for the above 35

reasons and the ones addressed in the opening legal submissions, Fish

and Game remains of the view that the most appropriate decision for

the Board to make, to give effect to the sustainable management

purpose of the RMA, is to decline the consent sought for the proposed

scheme and not confirm the notice of requirement for the proposed 40

scheme.

A specific submission now on section 70. Section 70 provides rules

about discharge. Before a Regional Council includes in a regional plan

a rule that allows, as a permitted activity, a discharge of a contaminant 45

or water into water or a discharge of a contaminant onto or into land in

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circumstances which may result in that contaminant or any other

contaminant emanating as a result of natural processes from that

contaminant entering water, the Regional Council shall be satisfied that

none of the following effects are likely to arise in the receiving waters

after reasonable mixing as a result of a discharge of the contaminant 5

either by itself or in combination with the same, similar or other

contaminants. The production of C, D, E, F, and G, any significant

adverse effects on aquatic life.

[4.49 pm] 10

The council is relying on a permitted activity rule that allows increases

in N leeching onto land of 10 and 30 percent above existing leeching.

Much of the N leech will enter waterways resulting in elevated

in--stream N levels above the already high levels that exist in some of 15

the Tukituki catchment already.

That increased leeching is likely to result in significant adverse effects

on aquatic life according to the evidence of Fish & Game expert

witnesses. Fish & Game therefore submits that the requirements of 20

section 70 have not been met. In comparison, the regime proposed by

Fish & Game would not result in any significant adverse effects on

aquatic life, so the permitted activity rule and the proposed Fish &

Game planning regime meet the section 70 test.

25

Thank you, your Honour. I am happy to answer any questions.

CHAIRPERSON: Yes, thank you very much, Ms Simons.

COMMISSIONER HOWIE: I was just wondering if we adopt the tables of 30

Ms Marr, they are yet to be populated with the right numbers. Have

you given any thought as to how that might occur?

MS SIMONS: I have given a thought to it to the degree that I know that that

is a conundrum that has to be met, and I don’t have any instructions 35

from my client on that either at this point in time, but I am happy to be

flexible and assist the Board in any way I can. Whether or not that

would be by having a specific group of experts to caucus who are in a

position to be able to advise the Board, or whether we make

submissions in writing to the Board which the Board can then 40

collectively review.

COMMISSIONER HOWIE: Well, the statutory time limit keeps ticking away

and doesn’t really make - - -

45

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MS SIMONS: It is a statutory time limit but, sir, if you were to say, give us a

period of time within which to come up with options to populate that

table, then we can address that in a way that would meet that

timeframe. If you were to say within 10 working days, it is to be tabled

to the Board, then that is what we would do. 5

COMMISSIONER HOWIE: Yes, okay, thank you.

MS SIMONS: I understand that it is an issue.

10

COMMISSIONER HOWIE: I beg your pardon?

MS SIMONS: I do understand that that is an issue, but the difficulty is, of

course, that we are dealing with a situation which has evolved where

we have made an attempt to assist the Board by coming up with an 15

adaption of a defective plan to try and bring it in line with the statutory

imperatives, but in terms of that last bit, that is something that may

have to rely on evidence.

COMMISSIONER HOWIE: Thank you, thank you, sir. 20

CHAIRPERSON: Mr Lawson.

MR LAWSON: Nothing, thank you, sir.

25

CHAIRPERSON: I suppose just thinking aloud about the issue that

Commissioner Howie has raised, depending on what decision the

Board arrives at, there has to be a draft decision first and that might

provide an opportunity for any errors that fit into the legislation, I can’t

remember the precise wording, could be addressed by interested 30

parties.

MS SIMONS: I have been involved in another Board of Inquiry where that

has actually occurred quite successfully - - -

35

CHAIRPERSON: Yes.

MS SIMONS: - - - so I think there is probably merit in that.

CHAIRPERSON: Commissioner Howie is asking which Board? 40

MS SIMONS: That was the Wiri Prison, it was to do with conditions.

CHAIRPERSON: Well, Ms Simons and Mr Malone, thank you very much for

presenting the case on behalf of Fish & Game. 45

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MS SIMONS: Thank you, your Honour.

CHAIRPERSON: As far as this matter that we left the door open of

conditions is concerned, have you had a chance to - - -

5

MS SIMONS: I think I can assist. I have been – well, I opened an email and

it was there, - - -

CHAIRPERSON: Yes.

10

MS SIMONS: - - - there is a lot of document there, however, my friend has

pointed to a number of matters that are probably going to be relevant to

the Fish and Game case.

[4.54 pm] 15

What I propose is this with the Board’s leave is that I have a look at it

tonight if everything is as indicated by my friend, then I will indicate to

the Board that I do not want to take the matter any further. If there are

any horrible surprises, then I will address them directly in a written 20

document which will come through tomorrow morning.

CHAIRPERSON: Yes, whatever happens, if there was to be any response, it

would have to be before the evidence closed.

25

MS SIMONS: I recognise that, yes.

CHAIRPERSON: All right.

MS SIMONS: I might have a discussion again and see if there are any other 30

matters that my friend can point me to so that I do not have to troll

though a thousand pages or whatever, it seems to be a big document so

that will probably assist.

CHAIRPERSON: Well, thank you very much indeed Ms Simons and Mr 35

Malone. Now Mr Minhinnick?

MR MINHINNICK: Just following on from the Board’s directions last week

regarding the further submissions that parties could make following on

from the expert conferencing and getting the opportunity for a brief 40

after cross-examination, just wondering about the possibility of, there

are a couple of matters that I just wish to very briefly address the Board

on?

CHAIRPERSON: Well I think provided they are things that have, one that are 45

significant and two have emerged out of cross-examination today

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unless any members of the Board would like us to go out and confer on

this, I would be inclined to allow those matters to be raised.

MR MINHINNICK: Yes, it is two matters, it is very brief sir.

5

CHAIRPERSON: All right well press on then Mr Minhinnick.

MR MINHINNICK: Thank you sir, so some brief legal submissions were

filed on Friday on behalf of Fonterra and Dairy NZ.

10

CHAIRPERSON: Yes, we have received them, thank you very much.

MR MINHINNICK: Thank you, there were three matters that those

submissions touched on. There was firstly Fonterra’s position on the

Fish and Game relief and there are two matters that I wish to address 15

you on that. Those submissions also touched on the nitrogen cap that

the council had proposed and then finally on the independent planners

report.

The matters that I wish to update relate to Fonterra and Dairy NZs 20

position on the Fish and Game relief. The cross-examination today

reinforces for Fonterra and Dairy NZ, the concerns about the

practicability of the Fish and Game relief.

The questions that Commissioner Lawson asked of Ms Marr regarding 25

the approach that two neighbours would be faced with, one who to date

have been following good industry practice and another who had not

and the different ways that they would be affected by requiring each of

them to further improve is one example and the questions from

Commissioner Howie regarding monitoring of discharges and the way 30

that the policy that Ms Marr had suggested whereby monitoring was

required upstream and below the reasonable mixing zone. They do fail

to deal with a situation where there is another discharge taking place

within that reasonable mixing zone.

35

CHAIRPERSON: As far as the matter that was raised by Mr Lawson is again,

what do you see as the solution if you are looking at, I presume route

zone discharges do you have a set number per hectare or how do you

say you go about it. In fact Mr Lawson might be a better person to be

asking you about this anyway. Do you want to clarify? 40

MR LAWSON: It is just that conceptually, you heard my question to Ms Marr

that the concept of someone who is a good operator and not the

problem being required to effectively become less productive or to

compromise their production so as to achieve this rule. It does not sit 45

well with any form of sustainable management that I can see.

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[4.59 pm]

MR MINHINNICK: Indeed it is a concern with that type of approach and

Fonterra and Dairy NZ do support the version of plan change 6 put 5

forward by Mr van Voorthuysen and prefers that version of the plan

change to that put forward by Fish and Game. And the reasons for that

have been set out in the various statements of evidence and then also in

those further supplementary submissions and the annexure which

provides some further detail to that. So that’s the annexure to those 10

further submissions that were filed on Friday.

MR LAWSON: I suppose the flip side though is that Ms Marr’s regime of

targeting the ones that aren’t operating properly and I’m looking at this

table on Dr Wilcock with the various catchments that exceed and those 15

that don’t. And it’s something that we’re going to have to ponder on.

Have you got any ideas in terms of how the information that we do

have about where the hot spots and there’s been reference to hot spots.

In fact there are a lot of hot spots according to this Mr Wilcock one. Or

Dr Wilcock’s table. How that could be implemented. 20

MR MINHINNICK: Yes it’s perhaps not something I can really assist more

on, step beyond Fonterra and Dairy NZ’s position which is that the

Council’s version of plan change 6 is the most appropriate means of

achieving sustainable management. 25

MR LAWSON: Thank you.

DISCUSSION

30

COMMISSIONER HOWIE: The Chairman’s just invited us to discuss the

question of the monitoring of discharges with you and the difficulty

that I foresaw is where some contamination exists that tracing it to the

origin might be a Regional Council function rather than a dischargers

function where there’s more than one discharge affecting it. 35

MR MINHINNICK: Certainly as far as under section 30 and 31 with the roles

and responsibilities of District and Regional Councils that does

contemplate the environment monitoring and that does provide some

sort of option as a mechanism by which Councils can look at 40

identifying particular sources of contamination perhaps.

COMMISSIONER HOWIE: I think there are some, at least one, case that has

limited the obligation of the discharger to measure effects from the

discharge once it’s in the receiving environment and limits them to 45

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complying with whatever discharge requirements they have, rather than

meeting some condition in the receiving environment.

MR MINHINNICK: Certainly and that fits with the limits as far as what sort

of conditions can be imposed on a resource consent under section 108. 5

COMMISSIONER HOWIE: Yes. Thank you. Thank you, sir.

MR MINHINNICK: And then the second matter relates to Fonterra and

Dairy NZ’s position that the Fish and Game relief does not meet the 10

section 32 tests, particularly the aspects that have been touched on

today in cross-examination regarding the costs and benefits and here

highlighting the costs aspects as well as the efficiency and effectiveness

of those particular objectives, policies and other methods. And further

to that there has been discussion about the particular costs of reductions 15

in nitrogen leaching and I’d just refer you to Dr McCall’s evidence on

behalf of Fonterra and Dairy NZ which did provide evidence on what

the impacts would be of the approach initially suggested by Fish and

Game through its submissions.

20

So those are the two matters that I wish to address you on. Two final

points, one was that I was asked to enter an appearance on behalf of the

Ruataniwha Water Users Group.

[5.04 pm] 25

CHAIRPERSON: Okay, thank you.

MR MINHINNICK: And then finally we’d just like to thank the Board and

the EPA staff for accommodating submitters and for taking the time to 30

hear the various submissions, evidence and representations by all

parties; particularly given the pretty tight statutory deadline that the

pace is.

CHAIRPERSON: Thank you very much, Mr Minhinnick. Any questions? 35

Right, no, thank you.

MR MINHINNICK: Thank you, sir.

CHAIRPERSON: Thank you to you and Ms Dines (INDISTINCT 00.45) for 40

being here too, thank you.

Now, Mr Gardner?

MR GARDNER: I haven’t got anything to add, sir, at all. (INDISTINCT – 45

NOT AT A MIC).

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CHAIRPERSON: Yes. She would be coming anyway, would she, Mr Gardner?

Well that is fine, because I doubt that the Board would want her to be

coming especially, in case the Board had questions. All right.

5

MR GARDNER: (INDISTINCT – NOT AT A MIC)

CHAIRPERSON: That’s great, all right. No. Thank you very much,

Mr Gardner. Well, we are now, full circle, Mr Riden.

10

Now, have we made any progress on the copying issues? I presume

not? No? That is fine. That is fine.

MS……….: Perhaps you do them on the screen?

15

CHAIRPERSON: Okay, that is excellent. And we are happy if you just

present your representation from where you are, Mr Riden. And the

only other thing, we’ve been asking everyone to stand so that we are

consistent when they are making representations, so if you would be

good enough to stand? That is all right. 20

MR RIDEN: (INDISTINCT 2.41 – NOT AT MIC)

CHAIRPERSON: Yes, if you wouldn’t mind. It is just so that we are

consistent in our approach to everyone. 25

MR RIDEN: Good afternoon. I was born in Napier and I have lived here for

about 30 years but I am currently Palmerton and probably going to

come back to Hastings in the next couple of months.

30

I have a couple of science degrees, the second being in computer

science. I am an analyst, systems and data background, but also quite a

lot of engineering before that.

Obviously I understand data, its capture and its analysis, and I brought 35

with me a couple of engineering papers that I had published that

basically demonstrate that I do know what I’m talking about in that

field, so I am not going to give you too much of a CV here in terms of

history, but the evidence is there if you wish to see that I sort of know

what I’m talking about. 40

DISCUSSION REGARDING MICROPHONE [5.09 pm]

MR RIDEN: My relationship to the Tukituki is via the Makaroro. I guess I

was basically heading down the Ruahine’s from Napier Taihape (ph 45

0.16) Road to Palmerston one day in about 1977 and bailed out of that

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and ended up in the Makaroro, and this is about two years after

Cyclone Alison. So I spent a night there and next morning up the Mak,

and it’s a fairly – you don’t forget what the river looked like. It had

metres and metres of gravel and shingle and it was a very fast trip up

the river. 5

I did the same trip a year ago and it took four hours – back in 1977 it

took an hour and a half, we just (INDISTINCT 0.51) flat, long gravel,

into the river, up the other side. A very different river – the devastation

of Cyclone Alison was something to remember. 10

I have spent a lot of time walking rivers, not just Makaroro, mostly

Ngaruroro, which is gauged, so you know what the flows are and you

can make assessments. So from personal experience I have a good idea

(from thousands of crossings) what the Makaroro flows are at different 15

times of the year, and with different conditions. So, you know the river

from the bottom to the top.

The last time I was in the river was two weeks ago and I walked down

from the mill through the dam site, and it was quite interesting. I 20

hadn’t actually been through the dam site before. I’m in that river quite

often and particularly since the Tukituki Choices, I’ve been monitoring

the gauges, particularly the Burnt Bridge and the Fletchers Crossing

ranges. I have got some photographs if we have time to show you.

25

The key thing there will be how much the stream bed has changed over

the last 12 months. This impacts a little bit on Gil Zemansky saying

that, you know, it’s a very bad site. So I have got photographs to show

you that show the bend in the river for the 10 to 15 metres above the

bridge a year ago. 30

I was there in October again, now the whole bend (the whole system)

had moved downstream perhaps 30 or 40 metres, and the riverbed has

accumulated 700 millimetres of gravel from a year ago. It is a very

changeable river, and walking down to the dam site there is a lot of 35

movement in there.

I will concentrate later on the issues with the gauge because I have had

discussions with David Leong and Rob Waldron over it and what could

be done about it. 40

So this is where my background in measuring data and analysing it

comes in to things a little bit. I am a hydrologist and I have learnt quote

a lot about hydrology but I do understand the data side, the analysis of

it. 45

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I have helped people make submissions in the long term plan and spoke

at the council meeting that was discussing that. I have made a

submission on the Tukituki Choices. That was quite a tidy submission,

this one here is a work in progress, I am putting together a lot of data

and that will have uses beyond the Board. But I have spent a lot of 5

time understanding the background, but also as a systems person, trying

to understand how some decisions are arrived at.

So I have worked on a lot of projects, because I am a contractor or have

been a contractor and worked in the UK, et cetera, and you see 10

different cultures and how things are managed, and I am sort of going

to get down to a couple of points here where I think the decision was

made to have a dam before the evidence was available.

If you go back to Tonkin & Taylor’s early work, their first report is 15

fairly short but they had a 90 million cubic metre dam, 22,500 hectares

and it was going to be spread across numerous small dams, no in-river

dams because they had bad environmental effects, too much sediment

and too high distribution costs.

20

So there was a very – that was something that I could agree with and

have no problems with, but somehow or other the three or four years

since the project has turned around completely to a single, big in-river

dam with all of the things that were ruling out a large in-river dam

earlier basically being in place. 25

[5.14 pm]

I will also do some comparisons between Opuha and the Ruataniwha

because that’s commonly used as being similar and they are actually 30

very different when you look at the metrics of the dam sites.

The other big difference between the Ruataniwha and the Opuha is the

cost of the distribution system so the Ruataniwha is a very expensive

dam. And having walked through the dam site I know there is going to 35

be issues or I suspect there is going to be issues once they have put the

cofferdam in, they have drained the water out and start looking into the

area below the river itself because there’s faults in there along the river

as well as across the river. I presume they know they are there but that

what they are going to find is an unknown. 40

It also has an impact on the timing. I mention in here that there’s a lot

of conflicts. The project plan has a 54 month timeline with about six

months to fill the dam. And I think Tonkin and Taylor, one of their

people, gave evidence it was still going to be 54 months and maybe 45

shortened by five months. But the last Regional Council meeting I

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listened to had HBRIC saying it was all going to be done and dusted in

three years.

There is some issues here also in that the net present values calculated

by Butcher use three years as well. And I will give you an example 5

when I get into spreadsheets where the difference between three years

and five years makes a $30 to $40 million difference of net present

value and if it’s negative. So if you had a five year construction period

the net present value of the system would be minus $30 million even if

everything else was as modelled back then. 10

And not everything else is as it was modelled back then because the

cost of the dam is higher than it was and there’s a whole lot of other

things and we get into the benefits.

15

For me I am starting from an assumption that the RWSS is working

back from a pre-determined outcome makes the lack of integrity

between the different things I am going to bring up understandable. I

mean they don’t make any sense unless there is a pre-determination,

that’s what I’ll be trying to stress. 20

The pre-determination doesn’t make it right or the economics any more

viable but it does make it understandable as to what processes are going

on. So being a systems person, a process person I look at it from, you

know I go through the engineering reports from the day 1 through to 25

where they are now and notice how things have changed along the way.

From here, I am standing up, but I want to cover crop irrigation

demand, the water resource which is the hydrology of the Makaroro,

the farm economics, the macroeconomics and some myths about the 30

Ruataniwha being Opuha like.

I am going to have to go into another piece of documentation. Okay,

this is, as I said, part of a bigger documentation in the - - -

35

CHAIRPERSON: If it is easier to sit and use this, feel free to do so.

MR RIDEN: I think it might be better for everybody.

CHAIRPERSON: Yes, that’s fine. So long as you have got a microphone. 40

MR RIDEN: Crop demand is something that caused me a great deal of

difficulty in understanding exactly what was going on because there

seemed to be people using it differently. The data is mostly there but

it’s in a form which, if you read it, unless you know what you are 45

looking for you can’t actually extract it. So Macfarlane, for instance,

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can talk about irrigating 25,000 hectares but he doesn’t mention the

reliability.

[5.19 pm]

5

David Leong talks about irrigating 17,000 hectares, 17,120, at an 85

percent reliability, percentile.

Now are the two compatible, you can’t tell because it hasn’t been

graphed or shown, so if we could show you some graphs. What I 10

managed to do was produce the actual irrigation crop demand because

that was provided by Hawke’s Bay Regional Council via Planting Food

and that is not available to most people, but if you look at that, you see

– this graph here, you can see it I presume – this is at the dam, okay,

and water at the dam is a different beast to water on a farm because 15

there are losses between the two, so we find that Tonkin & Taylor talks

about demand or reliability at the root zone, other people talk about

irrigation and there is quite a difference between the two, and others

talk about the dam, so this graph here shows crop demand if the dam

which is 95 percent distribution efficiency, so this is a bigger quantity, 20

so I’ve shown this in metres.

Also it shows the maximum supply which is 95.8 million cubic metres

which is 91 cubic metres delivered to the farm, so the numbers are

there. 25

It also shows you that in three of the driest years, or the most

demanding years, that crop demand wasn’t met. I have taken that

graph a little bit further and it is this one here. It fitted a curve to it, and

this is something I will come back to and talk about, the farms 30

modelling because he doesn’t give a percentile demand met, and if you

look here, it is pretty much 50 percentile.

So we have people talking about the 85th

percentile, in some cases in

irrigation schemes you might be talking about the 95th

or the 98th

so we 35

are looking here at a very low reliability of supply. I also only put that

curve in there last night, but it is quite startling how demand goes up at

one end and there is very little demand at the other end and so I will

come back to this and discuss the confidence of farmers to invest given

that the amount of water that can be supplied is the red line, and there is 40

a bloody big gap in there and there is a bloody big area in there where

you are paying for water that is not providing any benefit,

(INDISTINCT 3.21), going to use that term is in there, where the

amount of water is matched.

45

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It says, implications for someone modelling on irrigated farms versus

non-irrigated farms because they modelled that the biggest advantage

non-irrigated farms had is when there is a drought and that shows up in

there. In the middle there, there is less disadvantage to be aware of

that. 5

The next graph has what capped suppliers, and I didn’t actually

understand what that meant, so this is taken from David Leong’s graph

showing the amount of water he can supply from the dam – sorry, the

capped 85th

percentile demand is the red circles so it is basically 10

matching demand up to a point – 85th

percentile, you have six years out

of 36 where the demand in here outstrips demand, and what the scheme

can actually deliver and it fails on three out of those five years.

So we are not talking about high reliability here. I have taken that 15

same data and put it into a yearly basis, so we find that we have had, 1,

2, 3 years and there is 83, 89 and 98, where the supply wasn’t met. The

85th percentile which is supposed to be met wasn’t. Not only was it

not met but there was a large gap in the amount of demand that

couldn’t be supplied because where up here in the 98 percentile. And 20

this is the line of the 85th percentile.

[5.24 pm]

It was put around that droughts wouldn’t be too much of a problem 25

because when you get a drought in Central Hawke’s Bay there was

more water going to flow into the dam because it was the mountains

and the rains is going to spill over. I looked at that and basically it’s

not true. The correlation is that when it’s drier in Central Hawke’s Bay

there’s less flow into the dam. It’s not a particularly strong correlation 30

but it’s a negative one and it’s significant. So that’s just showing that

when you have low flows down this end, where you have high crop

demand, over here where you have plentiful flows you have lower crop

demand. It’s reasonably important.

35

The next thing I was trying to do was work out the relationship

between percentile crop demand in the different crops because we had

people talking about 85th percentile, we had them talking about 98

percentile and in fact MacFarlane was using 50th percentile. And we

have the difference mixture of crops so the plant and food modelling is 40

with pasture. That’s more demanding than the mix that MacFarlane

was using but it wasn’t that much more rain.

There’s also a climate change scenario. So if you want to tell me how

many hectares you want irrigated I can say depending on what crops, 45

this is the percentile cap that you can meet.

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So this sort of explains how MacFarlane is using 25,000 hectares. He’s

not actually getting 25,000 hectares because he’s actually using more

water than what David Leong is modelling but it’s not too far away.

And David Leong’s modelling 17,120 hectares but at a different 5

reliability.

There’s quite a lot of information in there. The other thing is that

David Leong had a nice little table in his evidence that showed the

difference between root zone – he didn’t show this. He showed the 10

percentiles. But if you just divide the root zone – I looked at it and

thought those numbers seem reasonable. But when you realise they’re

root zone you then have to basically scale them to get the irrigation

volumes required and you have to scale them again to get the amount

of water required at the dam. So these are all in millimetres of 15

irrigation. You effectively have root zone, irrigation applied and at the

dam. Different efficiencies.

I’ve made the statement that MacFarlane is basing his on a 50th

percentile demand. Now taking our information here we have 50 20

percentile demand there. MacFarlane is using the amount of irrigation

applied which is this column in here so it’s 440 and the most he uses is

435 I think. For his light dairy. So he’s modelling less water than the

50th percentile demand. Which means one year in two the water is

going to be undersupplied. It’s not going to meet demand. Don’t think 25

we need to go into that – part done.

There is another set of notes though and this is where my information

came from. It’s David Leong’s statement of evidence and I’ve chosen

a few parts of it. So David says his supply is reliable plus or minus 30

10% which is fine. I think it’s probably not but the thing is nobody’s

done any sensitivity analysis on that. So if you’ve got the major driver

of your irrigations system and you have got your chief engineer saying

I think it is accurate within plus or minus 10 percent should that not be

being built into the sensitivity analysis? 35

[5.29 pm]

I did bring that up with Mr Butcher (INDISTINCT 00.30) and he

agreed but he did not do anything about it. He also agreed that he was 40

using 95 cubic metres in his model as opposed to the 91 cubic metres

that David Leong was using.

I do not know if you want me to go through these, I mean these are

things you can read if you want to but this is what I have just spoken 45

about.

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CHAIRPERSON: We will be able to read the written version when they come

through.

MR RIDEN: You will be able to that is fine so I will not go any further into 5

that.

I will go onto the next point. This is where I spent most time up until

recently when I (INDISTINCT 1.15) so my experience is the

Makaroro River is an extreme catchment. It is a very small catchment 10

with a large reservoir, with a large irrigation scheme going into it.

Over the last two years perhaps I used to have doubts and I checked

things out and gone through the long process of working through firstly

from experience, questioning the rainfall using the RENS data and I am

quite happy with the RENS data and it has been blamed for various 15

things but it does not seem to lack, the RENS data if you model it for

the Waipawa River at RTS, it comes in ten percent over the actual

flows so it is overstating flows and two thirds of that flow is coming

out of the mountain regions.

20

So we better support that RENS data underrates rainfall amounts, well

it does not if you are looking at the Waipawa. Like some of the peer

review and Gill Zemansky also supported that intention. I did engage

the Hawke's Bay Regional Council hydrologist via Stephen Daysh who

invited me to send him stuff. 25

What I did with them was present a chance to balance the sub-

catchments of the Waipawa. As far as I can see if you have four parts

to a catchment, one, two, three and four should add up to the water at

the end of a catchment. There has been arguments made that the 30

Waipawa has groundwater interaction that is fine, it does but over a

long enough period the only place the water can get out of the

Ruataniwha basin is via Waipawa or the Waipukurau, the Tukituki so it

is neutral. There is groundwater interactions over a reasonable period

of time cancels itself out so it does not apply. 35

The challenge was for them to be provide me with a credible balance. I

gave him one and it was offered, there was one that did not agree with

the synthetic flow so I can balance out, ask them to balance it with their

synthetic flow and they could not. 40

What I did get back from them was a reference to an article by

(INDISTINCT 4.06) included the synthetic flow is the flow from the

Makaroro but he also had an alternative which was a rainfall run off

model and if I did the same scaling exercise I had done to balance the 45

sub-catchments I came in with a result that was almost identical, it was

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something under 5,000 litres per second as opposed to 6,680 for the

model.

Now so I can balance the sub-catchments with lower flows, I cannot

balance them with higher flows, I have put that option to the regional 5

council and they have not come up with an answer either. Now the

version I gave them was more complicated in that it had rainfall run off

and evaporation in there and what I have done here is a very simple

model with only the run off and only three parts of the catchment.

10

[5.34 pm]

What I should show you here is this map, I think you have probably

seen it several times before. I have actually drawn the Makaroro

catchment is T70. The south branch of the Waipawa is T1 and T2 is 15

the balance, mostly the Mangaonuku but also some of the actual main

part of the step.

And down here is Waipawa RDS. If we go back to our – no, that one.

So this is WRENZ (ph 0.53) data for the sub-catchments of the 20

Waipawa and it comes in at 15,560 litres per second, that’s mean

annual flow. And if we scale it back to 14,970 which is Wilding and

Aldren’s (ph 1.12) naturalised flow. I think there’s a number of flows

from Waipawa RDS but they all seem to be between 14,000 and 15,000

litres per second. So we get a nice balance. And what I mean by 25

balance is that the rainfall seems appropriate. 1,800, 1,900 for the two

mountain catchments, much lower in the Mangaonuku, average at

Waipawa.

This column here is the amount of flow per square kilometre in litres 30

per second. And this is something I will concentrate in on in a minute.

The highest values I can find for that is in small catchments in the

Ruahines like five or 10 square kilometres or Benmore. Benmore

draining the (INDISTINCT 2.05) But the synthetic flow is higher than

everything else and it stands out like dog’s balls really. So we can 35

balance it and end up with figures that are just over 5,000.

And I will also just – if I substitute the synthetic flow for the Makaroro

flow, that’s it in there, you get that number but the balance that at

Waipawa RDS, the other two catchments have to get very dry and they 40

look completely out of kilter.

So the Makaroro has 6,680. The south branch now, which is the better

(ph 3.05) catchment has got a most lower flow, almost half. So

something is not right. Now, one way, and this is what I basically 45

asked the Regional Council to do, was to come up with the numbers so

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I can make everything balance so that the Waipawa, the south branch

of the Waipawa and Makaroro look comparable but to do so I have got

to put a very large number in up here for the flow at Waipawa.

Waipawa doesn’t have that flow at RDS so something is still wrong.

5

Now, this is in a spreadsheet which I have brought here so people can

play around with it. The original I sent to the Regional Council is there

as well so there’s tools there. If people want to try and make synthetic

flow look reasonable they can try, I can’t.

10

The next one is to look at some catchments and what sort of flows they

have. Now, we have got Opuha in there, quite low. We have got

Benmore then we have these two here which are the synthetic flows for

the Makaroro and at the dam.

15

Now, the heavy ones in here are small catchments. Here am I looking

for small red (ph 4.29) catchments and I can find some that are still

drier than the whole Makaroro.

So I have sort of presented a case there but it doesn’t work. The other 20

thing is to look at the case that says why it doesn’t work. This is recent

in the last two or three years and it’s at stage heights. The Makaroro is

a gauge where 100 millimetres probably doubles the flow at the bottom

end of the range and 200 millimetres doubles it around the 20 to 30

cubic metres. So these large variations in stage height are not because 25

there’s more water mostly, it is mostly because the bed is moving.

[5.39 pm]

This is the same data stream, the same stage heights, but from the 30

period where the Red Bridge gauge was calibrated, and you see very

extreme fluctuations. It has also got a bed which most of the time is a

metre lower than the current bed, so we have had less than a metre of

accumulation at the moment.

35

I was there on Saturday – two Saturday’s ago, and I will go around

showing you photographs of that. The gauge is not in the water

anymore.

What I discussed with David Leong and Rob Waldron is something I’d 40

done, which was to take all the calibration curves and then to make

them into what I call iso calibration curves, which is where you graph

what same stage height means in terms of flow.

What I tried to argue was that there had been a major change at this 45

point here. It is possibly also when they were attempting to bring the

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gauge up to a higher standard as part of a national scheme. There is

also a lot more calibration curves down here, then they seem to get

much flows.

These are big changes, and my argument was that prior to this point 5

here the whole thing had some sort systemic problem. It could have

been personnel one, it could have been software, it could have been

something, but there was a major change in the middle of – well, it’s

actually August/September of 1989.

10

This point here is where they stopped using the gauge as a flow

recording site because the calibration curves just weren’t working. It is

a slightly larger scale of it here and you can see that at the bottom end

as well as the top end there’s major changes.

15

And just in case, this is taken last night. This is the system Hawke’s

Bay Regional Council. They give you up to a year’s worth of data at a

time and we can see here that the stage heights were tending down until

about March last year, now they are all over the place. There is a major

anomaly in there. 20

The site is a difficult one and has problems and has had as long as the

thing has been there. Light relief, I think I need a glass of water.

CHAIRPERSON: All right, well thank you very much, Mr Riden. Have you 25

got any questions. Have you got any questions, Ms Lovell?

MS LOVELL: No.

CHAIRPERSON: Mr Neill? 30

MR NEILL: No. Can I just ask, and you may have already printed it out, it is

just the font you’ve used, they are quite hard to see on the screen, but if

it is as simple as changing the font to Arial or something that would be

great. But if it is already printed out then that is fine. 35

MR RIDEN: I don’t know.

MR NEILL: It is printed? No, that’s all right. Thank you for the - - -

40

CHAIRPERSON: Thank you. Mr Howie?

COMMISSIONER HOWIE: No, I have no questions thank you, sir.

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CHAIRPERSON: Thank you very much, Mr Riden. Now, tomorrow are you

going to be ready to kick off do you think, Mr Robinson, at 9.30 or do

you need a bit of breathing space?

MR ROBINSON: Well I think I should commit to 9.30 because the number of 5

issues that have been raised means that I anticipate we are going to take

some time and I think that I am better to start early, crack into it and

give the Board plenty of time to interrupt me.

CHAIRPERSON: Well, thank you very much for that. So we will see you 10

again tomorrow morning at 9.30.

MR ROBINSON: Thank you, sir.

CHAIRPERSON: Thanks very much. 15

MATTER ADJOURNED AT 5.44 PM UNTIL

TUESDAY, 21 JANUARY 2014