Expert witness stood down

BY PENNY WARDLE

In a surprise development at yesterday's Environment Court hearing into TrustPower's application to build a hydro-electric power scheme on the Wairau River, Marlborough District Council expert witness Peter Constantine was stood down part way through his evidence.

The council senior planner was being cross-examined by Save the Wairau lawyer Mike Hardy-Jones, when Judge Gordon Whiting called a break to confer with court commissioners.

At the time, Mr Hardy-Jones was arguing that the Marlborough District Council-appointed panel, which previously considered TrustPower's application, granted the company consent outside water allocation rules set out in the Wairau Awatere Resource Management Plan.

The panel's decision was appealed, resulting in the Environment Court hearing now under way in Blenheim.

The issues were complex and he was having difficulty understanding the cross-examination, while following relevant sections of the plan, Mr Whiting said.

He asked Mr Constantine to return to the stand in two weeks. Meanwhile, he should follow up on a suggestion in his brief of evidence that planning witnesses would get together to prepare a joint statement for the court.

Mr Hardy-Jones told the court that the Wairau Awatere plan set out two management systems for water. A three-class allocation system applied when water was removed and a separate system dealt with non-consumptive uses such as swimming, which left water in place.

Only class-B and C water was available from the Wairau, with class-B takes including restrictions aimed at maintaining a sustainable flow, while class C applied to water that was stored.

TrustPower had applied to extract 40 cubic metres per second (cumecs) of water from the Wairau River. Because this amount exceeded the class-B total of 15 cumecs, with only eight cumecs available, the company was in effect being allowed to operate outside the rules, said Mr Hardy-Jones. Normally, a rule change would be required in such circumstances.

Mr Constantine said the Wairau Awatere plan did not provide a management framework for large projects such as TrustPower's proposed scheme, which were not anticipated when it was written.

The only reference to hydroelectric power schemes was a positive mention of "non-consumptive" generation, which he agreed meant dams that did not take water out of the river.

If the plan was silent about an activity or proposal or was imprecise in expressing desired environmental outcomes, that proposal could not be contrary to its conditions, he said. The panel had dealt properly with TrustPower's application as a non-complying activity, focusing on effects.

Mr Constantine agreed with Mr Hardy-Jones that the setting of sustainable-flow regimes was an integral foundation of water allocation models. However, he disagreed that the flow sharing through a three-class allocation system was the way this was achieved.

"The plan works that you apply for a quantum of water, then the council allocates it within or outside the conditions," he said.

"Are you saying that the council has this double system? Some people are bound by class-system rules and others are not," Mr Hardy-Jones said.

If the scheme went ahead, a sustainable-flow regime would be achieved at Tuamarina, said Mr Constantine, who agreed that this was well below where water used by TrustPower would be returned to the river. Water would be left in the affected stretch and whether this amount was sufficient to protect instream values was being debated by witnesses "and is way beyond my expertise".

Until Mr Constantine returns to court, he will be required to follow conduct for witnesses, meaning he will not be able to discuss the case with anyone, including the council's lawyer.

This was with the exception of working with other planning witnesses to prepare a statement for the court, Mr Whiting said.

Fish & Game Nelson Marlborough manager Neil Deans later said that a Fish & Game-initiated amendment to the Wairau Awatere plan required that sustainable flow regimes be applied not only at Tuamarina, but along the length of the river.

- The Marlborough Express