Environmental groups want to have their say on a late tweak to the conditions imposed on the proposed $230 million Ruataniwha dam in Hawke's Bay in a High Court challenge.
At the start of a three-day hearing at the High Court in Wellington, Royden Somerville QC, on behalf of the Fish & Game Council, told Justice David Collins the board of inquiry erred in law in approving the project by not seeking input from interested parties when setting the target and limit for in-stream dissolved inorganic nitrogen (DIN). The level set meant that about 615 farms wouldn't require resource consent, by deeming them not to be contributing to excessive nitrogen levels in a legal sense, even if they were in a factual one.
Somerville agreed with the judge's summation of his argument that it would create a "fictitious fact", saying that it was "particularly" so under the Resource Management Act, which deals with environmental effects and protections as part of sustainable management.
"To exceed the DIN limit has an adverse environmental effect and doesn't promote sustainable management," Somerville said.
Fish & Game wants to have the amendment sent back to the board of inquiry, which would then need to seek feedback on the changes, and conduct an evaluation of the matter.
Somerville said that kind of consultation wouldn't take too much time, with submitters already having made contributions in short time-spans during the process.
The board had followed the public participation process up until this last step, he said.
The Fish & Game submission was the first of several in a three-day hearing that is continuing. The Royal Forest & Bird Protection Society and Environmental Defence Society are also appealing the decision, with the Hawke's Bay Regional Council and its investment company responding to the appeal. Representatives for the Hastings District Council, and Dairy NZ, Irrigation New Zealand, Federated Farmers and Fonterra Cooperative will also make submissions as interested parties.
The Hawke's Bay Regional Council's investment arm, the Hawke's Bay Regional Investment Company, has said the scheme had the potential to supply water for irrigated farming and horticultural uses to between 25,000 and 30,000 hectares of land, and was expected to create about 2,520 jobs for the region.
The final decision by the board of inquiry in June reversed a 'single nutrient' approach proposed in the draft plan to manage both nitrogen and phosphorous.