Tasman District Council was notified by DoC in late March the request to acquire riverbed and adjoining land in the Mount Richmond Forest Park on the Lee River has been declined. The council wanted about 10ha of land from the Crown, via the Public Works Act.
The letter essentially says the underlying reason is not for a conservation purpose and so would be illegal.
DoC operations deputy director general Mike Slater also cited section 24F of the Conservation Act.
It says where the Crown owns part of a riverbed adjoining any land and disposes of that land, that part of the riverbed or stream shall remain owned by the Crown.
So the Crown could be at significant risk of a legal challenge if it allowed the handover.
But King said further negotiations to acquire the land remain a work in progress.
“That is a smaller part of the bigger jigsaw. We are still engaging in discussion with DoC on this.
“I thought we had a reasonable arrangement right through the process and it went through the resource consent hearing. It has got conditions but they were acceptable.
“What is frustrating is that it has been well supported until this news.”
The decline comes just as the project has got over the hurdle of getting commitment for 3000ha to be irrigated.
About the same time project supporters learned it is one of three irrigation schemes to continue to receive Crown funding allocated by the previous National government.
Tasman District Council chief executive Lindsay McKenzie said failing to acquire the land is a major roadblock that totally compromises storage capacity.
“We have gone back to DoC with a number of proposals. We do not necessarily agree with all the points the department has made with respect to the Public Works Act.”
Solutions proposed include allowing the land to be returned to the Mount Richmond Forest Park but still be flooded.
“We have had a meeting with the Minister (of Conservation Eugenie Sage) and we are hoping to head to Wellington to talk to department officials within a week.
He is optimistic despite Sage being guarded in her response.
“There were objections to the project at the consent process but these were resolved.
“That included a $1.67 million contribution to a biodiversity package and $480,000 of pest management in the Mount Richmond Forest Park. So DoC is pretty embedded already in this project.”
McKenzie acknowledged challenging the decision in court is not desirable,while pushing local government legislation to enable it would be time consuming.
“We would prefer to follow a more expeditious path.”
He appreciated the irony DoC’s letter was a contrast to the decision that sank the Ruataniwha dam. In that project DoC agreed to a land swap only to have its decision reversed in a Supreme Court ruling sought by Forest and Bird.
The Waimea project has also been bedevilled by constant cost creep over the 30 years since its inception.
Originally priced at $20m, it was most recently estimated with 95% probability to cost $80m, plus a $13m contingency fund.
McKenzie remains confident the price will hold. The project is in early stages of firming up costs with contractors.
Forest and Bird environmental lawyer Sally Gepp who fronted the organisation’s opposition to DoC’s proposed land swap at Ruataniwha said the decision in Nelson represents a definitive roadblock.
“The only option would be to change the law.
“It’s unlikely that New Zealand conservation law will be weakened for this project so we expect the dam company will be looking at getting an exemption via a local act. The outcome of that would stand or fall on Parliament voting for a specific law to allow this dam to proceed.”
She noted the DoC letter states the Ruataniwha ruling did not set the precedent for this decision because a different mechanism is being used in the Waimea Dam case.
“But at the same time there has been a precedent set in that you cannot make conservation decisions for a non-conservation outcome. Also, the Ruataniwha decision confirmed rules against giving marginal river strips away applied as much to DoC as to any other department.”
She noted while DoC took a limited role in the resource consent hearing, the outcome is the result of a separate process where DoC is being asked as landowner to give conservation land away and it can do that only in accordance with the law.
Waimea Irrigators and Water Users spokesman Brian Halstead said the decision from DoC is welcome in a project that had faced ongoing cost escalations and had only just managed to achieve its 3000ha threshold for irrigation area.
He also pointed to ongoing issues his group had with the constraints the scheme would put on future water takes.
The lowered take limits pushed smaller irrigators to a scheme they don’t need.
