MAJORITY DECISION IS IN - NO DAMMING OF THE NEVIS
Fish & Game, with the support of the Clutha Fisheries Trust and a range of other organizations, applied for a variation to the Kawarau Water Conservation Order to prohibit damming of the Nevis River and to fully recognize its outstanding and unique values. The initial hearing process was completed with the Tribunal finding in favour of the application based on the outstanding values of the native fish Gollum galaxias.
Pioneer Generation appealed this decision to the Environment Court. Fish and Game and Whitewater New Zealand also appealed. The hearing was held over several weeks during October/November 2012.
The decision released in June 2013 was a majority decision in favour of the variation application. Click here for copy of the decision
The majority decision by two of the three court members made the following key findings in respect of the Nevis River:
� The river below the Nevis Crossing is both �wild and scenic� rather than just �wild�.
� The entire river and its tributaries have been recognized as containing native fish habitat for the rare Nevis galaxiid, found only in the
� The river upstream of the crossing has �biogeographic river capture� as an outstanding scientific feature. This relates to the geological
history ofthe river which once used to flow south into the Mataura catchment. Tectonic uplift reversed the river�s flow so that it joined
the Clutha catchment. That river capture event resulted in the isolation of the Nevis galaxiid from the more widespread Gollum galaxiid
population throughout Southland.
� A dam on the lower Nevis (below the Crossing) was found to have a major negative effect on the wild and scenic qualities of the lower
Nevis and a significant adverse effect on the angling and kayaking amenity.
The majority decision favoured the retention of outstanding recreational angling rather than more specific reference to backcountry fishery characteristics or trout habitat characteristics but that doesn�t diminish the high level of protection achieved for all the river�s values.
While there was also a minority decision by Judge Jon Jackson recommending a lower level of protection (suggesting damming was possible in the Nevis Crossing/Potters Creek reach with stringent conditions) it is important to note that a decision of a majority of members sitting is the decision of the court in accordance withs265 (3) of the RMA. The decision of the court is a recommendation to the Minister for the Environment who makes the final decision to amend the order.
Another layer of protection has been achieved concurrently with the WCO success, with the Environment Court confirming the whole Nevis valley as �outstanding natural landscape�, the highest and most protected landscape class in the Central Otago District Plan. This was a result of Otago Fish and Game�s appeal (along with others ) over Plan Change 5. Previously the lower river had an area of lesser landscape protection which matched a hydro dam footprint. That area is now gone.
It is important to recognise the strong support Fish and Game has had for its efforts to protect the Nevis; from anglers, angling guides, rod and gun clubs and a host of other groups and individuals including Whitewater NZ, Forest and Bird, Public Access NZ, Historic Places Trust and Clutha Fisheries Trust (who generously funded all our expert evidence on native fish and landscape values). Support from overseas anglers was feature of the submission round as well.
We hope the Minister�s decision to amend the WCO will not be too far away once the period for appeals to the High Court, which ends in early July, is past.
If you have any questions, please contact Niall Watson, Otago Fish & Game Officer email firstname.lastname@example.org
Local power company Pioneer Generation Limited have long term plans to develop the Nevis River for hydro power production by constructing two dams below the Nevis Crossing, diverting water into a tunnel or pipe which would discharge through a powerhouse two or three kilometres upstream from the river's confluence with the Kawarau River,
The company purchased two Crown pastoral leases in the valley - Ben Nevis and Craigroy - in the late 1990s and both are presently going through the tenure review process. They hope to get freehold title to valley floor land to assist their development plans.
While Pioneer have not applied for resource consent for the hydro development, the project is under active investigation.
The proposed dams would flood a large area of land from the Dell area up towards Nevis Township � over 8 kilometres of the most important reach of the river. The larger of the two lakes would be the size of Lake Hayes but its level would fluctuate leaving a large area of exposed lakebed when the reservoir level was low. River flows in the lower gorge would also be adversely affected.
In 2011 Pioneer announced publicly that they would no longer be pursuing hydro development above Nevis Crossing but this position has not yet been formally confirmed and is not yet reflected in their legal position on the water conservation order or the proposed tenure review outcomes which aim to secure a freehold hydro dam footprint for their proposed upper reservoir. If they do confirm this position it would mean the impacts would be centred on a highly scenic and recreationally important area known as 'The Dell' downstream from Nevis Crossing
The Nevis River's outstanding character is already recognized by a water conservation order granted under the terms of the RMA after public submissions and hearings in the early 1990s [Water Conservation Order (Kawarau) 1997]. The outstanding features identified included the recreational trout fishery; the rivers value for kayaking and its wild and scenic character. However the original water conservation order stopped short of completely prohibiting hydro development.
An Amendment to the Water Conservation Order
In the 15 years since the original conservation order hearings a lot has been learned about the cultural, historical, natural, recreational and landscape values of the Nevis River, confirming its importance.
As a consequence Otago Fish and Game applied to the Minister for the Environment for an amendment to the Water Conservation Order to further protect the Nevis River by completely prohibiting dams. The application, made jointly with the New Zealand Fish and Game Council, was referred by the Minister for the Environment to a special tribunal which heard submissions on the application in 2009 and 2010. About 250 submissions were made in response the application of which the overwhelming majority (240) were in support of the amendments
See http://www.mfe.govt/issues/water/freshwater/water-conservation/kawarau/evidence for expert evidence presented to the tribunal:
The Trout Fishery
Recent fishery survey work has enhanced our understanding of the trout fishery, confirming the river's ability to produce trophy trout and identifying the critical importance of low gradient river reaches for spawning and trout food production. Angler survey work has confirmed the fishery's key characteristics including the importance of the natural and largely unmodified setting.
Historical assessments describe the Nevis goldfields as the most intact in Otago and identify the area from Nevis township downstream to Nevis Crossing as a site of national importance because of the diversity of alluvial gold mining sites, their lack of modification and their visibility and accessibility. The Lower Nevis Valley is considered to be a unique historic complex and has recently been formally registered by the NZ Historic Places Trust
Historical values did not get recognised at all in the original conservation order.
Native fisheries survey work identified populations of non-migratory galaxiids (Galaxias gollumoides) with biogeographical importance in the Nevis valley. The presence of this species in a Clutha catchment tributary when the species is otherwise restricted to Southland rivers is consistent with river capture 500,000 to 800,000 years ago. Genetic divergence from the original Southland stock is scientifically important because it allows the rate of genetic divergence to be determined. The Nevis galaxiid has now been classified as a species in its own right.
Flora and Fauna
Several acutely threatened plant species have been identified living adjacent to the river upstream from Nevis Crossing.
Landscape values of the Nevis Valley have been recently reassessed as part of a landscape review within Central Otago District. This confirmed the whole Nevis valley as an outstanding landscape and recognised its extreme sensitivity to change.
The Nevis valley is important to Ngai Tahu. It was used as a trail through to Central Otago from the Southland plains in earlier times and Maori occupation sites have been identified in the valley
The original water conservation order did not preclude damming of the river as long as outstanding characteristics were protected. Damming of the river for hydro power development can now be seen to be ncompatible with protection of outstanding characteristic and so a prohibition on damming is now being sought as part of the amendment to the order.
In addition there was no minimum flow set in the original order. Fish and Game wants to see a minimum flow to protect instream values although this is not intended to impinge on existing water takes.
The Nevis River is a rare commodity in Central Otago. It flows freely from its source to its confluence with the Kawarau River. It has not been significantly abstracted for irrigation, it hasn't been dammed or submerged beneath a reservoir, its flow is not regulated or fluctuating, it hasn't been channelised and it doesn't run dry in summer. That sets it apart from the Clutha, the Kawarau, the Lindis, the Manuherikia, the Teviot, the Fraser and the Upper Taieri all of which have been developed to a greater or lesser extent for hydro power or irrigation or flood control with associated environmental losses.
Fish and Game's view is that the Nevis deserves to be protected in its present state. That view is shared by Forest and Bird, Clutha Fisheries Trust, Historic Places Trust, New Zealand Recreational Canoeing Association, Federation of Freshwater Anglers, and New Zealand Professional Fishing Guides Association amongst many others.
Special Tribunal Report 2010
The Special Tribunal Report recognised additional outstanding characteristic of the Nevis River namely native fish habitat and biogeographic river capture. On the basis of these values they proposed a complete prohibition on dams on the river. See the full report - http://www.mfe.govt.nz/issues/water/freshwater/water-conservation/kawarau/special-tribunals-report/