Court backs green groups, overturns Ruataniwha 'factual fiction'

A High Court judge has ordered the board of inquiry for New Zealand's largest irrigation scheme, the Ruataniwha Water Storage Scheme in Hawke's Bay, back to the drawing board on the out-clause it created to allow 615 larger farms to dodge a stringent new water quality rule relating to nitrogen leaching into waterways.

The decision is a significant win for the Royal Forest and Bird Protection Society, the Hawke's Bay and Eastern Fish and Game Councils and the Environmental Defence Society, all of which appealed elements of the board's decision to exempt all farms larger than four hectares from having to comply with its finding that levels of dissolved inorganic nitrogen (DIN) in the Tukituki River, downstream from the proposed Ruataniwha dam, should be less than 0.8 milligrams per litre.

The proposed out-clause created "a factual fiction" that "approximately 615 farms are deemed ... not to be contributing to excessive quantities of DIN entering waterways in the catchment area when in fact they are likely to be doing so."

"While constructing a factual fiction may not in itself amount to an error of law, when the effects of that factual fiction are taken into account in the context of this case, it becomes apparent that an unsatisfactory state of affairs is created," the judgment of Justice David Collins, issued this morning, says. This was "difficult to reconcile with the board's desire to imposed controls over the discharge of nitrogen in order to manage the 'ecological health' of the catchment area."

The 0.8mg rule, as originally proposed in the board's draft decision in May, caused consternation nationally among farmers and irrigation lobbyists, who produced figures to show "all waterways in highly productive fertile plains of the country exceeded the limit." Irrigation New Zealand said at the time the new benchmark had the potential to "devastate New Zealand farming."

When the board's final decision was released, it contained an out-clause for farms covering more than four hectares, "so that farms covered by the rule are deemed not to be contributing to the specified levels of DIN entering the catchment area if the farm complies with nitrogen leaching rates specified in a different rule."

That produced two "over-arching errors of law", Justice Collins found The first was a failure to re-consult affected parties when it concocted the new Rule TT1(j). The second was the fact that the new rule meant "the regional council will lose an important tool in its management of the amount of DIN that enters significant portions of the catchment area."

As a consequence, the rule failed to give effect to the government's National Freshwater Policy Statement, first issued in 2011 and updated in 2014.

"I therefore direct the board to reconsider and change Rule TT1(j)," said Justice Collins. "I am not suggesting the board should necessarily revert to its draft rule."

It would "need to consider a range of possibilities and ensure the parties have had a fair opportunity on the final version."

In a statement welcoming the win, EDS said it would participate in fresh hearings and seek "real enforceable limits that will protect the ecosystem health of the Tukituki River."

The RWSS conditions of consent will also need to be revisited.

At this stage, the $265 million scheme lacks sufficient commercial support to be built, but its backers, including the Hawke's Bay Regional Council, continue to pursue resource consents in order to allow a development to occur in the future, should investor appetite improve.

(BusinessDesk)