Statement of evidence (ecology) of Stephen Andrew Fuller on behalf of the New Zealand Transport Agency

Dated: 28 March 2018

Hearing Date: 9 April 2018 (commencement)

Before the Proposed Natural Resources Plan Hearing Panel

under: the Resource Management Act 1991

in the matter of: a submission by the New Zealand Transport Agency (submitter number 146) on the Proposed Natural Resources Plan for the Wellington Region

and in the matter of: Hearing Stream Five (Beds of lakes and Rivers, Wetlands and Biodiversity, Discharges to land)

by: New Zealand Transport Agency Submitter

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1. Executive Summary

1.1. My evidence is in relation to the Greater Wellington Proposed Natural

Resources Plan (pNRP) and specifically those elements related to the

Hearing Stream Five provisions.

1.2. My evidence is given from the point of view of an applied ecologist,

looking at past projects and the issues which the new definitions and

rules within the pNRP would have or will create in the future. I focus on

water, specifically streams, wetlands, and lakes, and the activities that

must occur over and within these interconnected waterbodies in order

to develop a linear infrastructure project such as a road, in the

Wellington Region.

1.3. I look at the practicalities of consenting these kinds of projects based

not on an idealised view presented by a plan or definition, but based on

the reality of the challenging Wellington landforms in which I work. I

provide examples where I can.

1.4. My key findings are:

a) There is a disparity between the condition and value of ecological

systems, and the level of protection being imposed by policies and

rules in the Proposed Plan;

b) The focus of policies on avoid, coupled with a non-complying and

prohibited activity status, for many activities within ecological

systems, pre-determines the ecological value of those systems.

c) This is exacerbated by the catch-all definitions in the pNRP which

make no distinction between different classes of streams, wetlands

and lakes, an issue reinforced by Policy 23 of the Regional Policy

Statement (RPS) to which the Proposed Plan must give effect (as

explained in the evidence of Mr Edwards).

1.5. I conclude that, when considering my role in assessing sites and

developing mitigation for various large and small scale construction

projects (including infrastructure projects) in the Wellington region over

the last thirty years, that under the framework of the pNRP, and taking

into account its definitions, policies and rules, all of those projects would

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have failed the gateway test for ecology. As such, these projects would

have been very challenging, if not impossible to consent under the

pNRP.

1.6. In my view, the pNRP should:

a) Review or add a definitions including; river vs. catchment, natural

lake & lake, induced wetland, natural wetland and significant

wetland, piping & culverting, diversion, and cumulative effects;

b) Provide guidance on the assessment of cumulative effects;

c) Consider providing step wise increases of activity status (restricted

discretionary to non-complying) for streams and rivers, wetlands

and lakes which recognise their varying ecological values.

d) Reconsider some aspects of the guidance on bio-diversity

offsetting including limits to offsetting, no net loss, and explicit

calculations.

2. Qualifications and Experience

2.1. My full name is Stephen Andrew Fuller.

2.2. I am Principal Ecologist with Boffa Miskell Limited (‘BML’). I have

worked as an ecologist over much of the last 30 years, including

employment with the Department of Lands and Survey, and Botany

Division DSIR, where I conducted biological surveys of scenic reserves

in the lower and central North Island. From 1992 to 1997 I ran my own

ecological consultancy. From 1997 to 2002 I was the project manager

responsible for the design and development of the Karori Wildlife

Sanctuary. In November 2002 I joined BML.

2.3. I work primarily in the area of ecological impact assessment, project

shaping, the determination of ecological value and significance,

quantifying mitigation requirements, and the design and

implementation of ecological restoration. My work covers a range of

fields, including the mapping and description of terrestrial and wetland

flora and fauna, freshwater habitat descriptions and monitoring, and

avifauna studies. I work primarily in the lower North Island but have

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carried out assessments and assisted colleagues throughout New

Zealand.

2.4. I hold a Bachelor of Science in Zoology and Botany, and a Diploma of

Applied Science in Ecology from Victoria University of Wellington. I am

a Certified Environmental Practitioner with the Environment Institute of

Australia and New Zealand.

2.5. My professional memberships include:

a) The Environment Institute of Australia and New Zealand;

b) The New Zealand Ecological Society; and

c) The Wellington Botanical Society.

2.6. During my time practicing as an applied ecologist I have undertaken a

wide range of ecological assessments. These assessments have

ranged in scale from single property developments, through to

moderate scale subdivisions, to major infrastructure projects. My role

usually requires working collaboratively with urban planners,

engineers, and landscape designers to integrate community services,

physical works, and public open space with protection of significant

natural areas, rare and threatened flora and fauna, the creation of

conservation corridors, and the sensitive treatment of stormwater.

2.7. In the Wellington Region, I have carried out ecological impact

assessments for a number of linear infrastructure projects including;

SH1 Rural Upgrade Pukerua Bay – Paremata (1997); State Highway 1

Mana Upgrade Plimmerton - Paremata (1998); Notices of Requirement

for Transmission Gully (1995); West Wind Windfarm (2006); Mill Creek

Windfarm (2008); Western Corridor Transportation Study (2005),

Westchester Ave Link Road (2008), SH1 MacKays to Peka Peka

(2011) and Transmission Gully (2011). I have also carried out scoping

studies for Petone to Grenada (2016). For a number of these projects

I was also responsible for development and implementation of

ecological mitigation plans, and monitoring of construction effects.

2.8. I have also prepared biological inventories for the Wellington Regional

Council (‘GWRC’) of regional parks and water collection areas (1995),

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regionally significant wetlands (1993, 2011) and regionally significant

coastal sites (2008).

3. Code of conduct

3.1. While these proceedings are not before the Environment Court, I have

read and am familiar with the Code of Conduct for Expert Witnesses in

the current Environment Court Practice Note (2014). I have complied

with the Code in the preparation of this evidence, and will follow it when

presenting evidence at the hearing.

3.2. Unless I state otherwise, my evidence is within my sphere of expertise

and I have not omitted to consider material facts known to me that might

alter or detract from the opinions that I express.

4. Scope of evidence

4.1. My evidence:

a) Considers the pNRP in the light of past roading projects that I have

been involved in;

b) Identifies a range of rules and associated activity statuses under

the pNRP that are in my view problematic and that I believe may

unreasonably hinder future roading developments; and

c) Suggests amendments to the pNRP to address the issues

identified.

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5. Practical Examples

5.1. In the following discussion I consider all things water: wetlands

(including estuaries), rivers, and lakes. All are interconnected and

cannot be separated in an ecological sense when assessing a large

roading (and earthworks) projects.

5.2. In Attachment 1 I itemise the planning status, as I understand them,

for activities within waterbodies under the pNRP.

5.3. By way of real examples of how the pNRP would operate in practice, in

Table 1, I use my knowledge of two large roading projects in the

Wellington region which I have been fully involved in MacKays to Peka

Peka (M2PP) and Transmission Gully (TG). While these are two very

large projects, I believe the lessons learnt will also apply to smaller

projects. I describe the extent and complexity of water related works

associated with these projects to illustrate how these roading

construction processes would be assessed and determined under the

pNRP as currently drafted.

5.4. In addition, in Table 2, I make some predictions on the extent and

complexity of water related works that might be encountered for

possible future roading projects, namely for an upgrade of SH58, and

for a possible Petone to Grenada Link.

5.5. I then analyse the results presented in these tables in terms of the

pNRP.

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5.6. The following tables summarises the range of waterbodies that have been affected by the

construction of M2PP and TG, and provide a description of the scale of critical activities.

Table 1: Approximate scale of consented works for M2PP and TG and waterbodies affected.

M2PP TG

Outstanding

surface water

bodies

Te Harakeke (A3), (Map 1)

30% of construction works (101 ha)

discharge to tribs of this.

Waikanae Saltmarsh (A3), (Map 1)

28% of construction works (85 ha) discharge

to tribs of this

Pauatahanui Saltmarsh (A3), (Map 1)

Pauatahanui Tidal Flats (A3), (Map 1)

60% of construction works discharge to

tributaries Pauatahanui Stream and then into

Pauatahanui Inlet.

Wetlands –

significant

Raumati Manuka

Northern Otaihanga

Southern Otaihanga

El Rancho

Tuku Rakau

Ngarara

Mackays Crossing Swamp.

Horokiri Sphagnum Bog.

Approx 20 ‘induced’ wetlands in pasture. Defined as

‘natural’ by GWRC.

Other

Scheduled

surface water

bodies.

Schedule A

(nil)

Schedule F1b

Schedule F2a

Schedule F3

Schedule F4

Schedule I

Directly or

indirectly

affected by

works

Kowhai Stream & Stream Mouth (Map13 b & c)

Waimeha Estuary (F4), (Map 19)

Waimeha Stream (F1), (F1b), (Map 14 & 42)

Ngarara Stream (F1)

Waikanae River (F4), (F1) (F1b), (Map 14, 22 & 42)

Waikanae Estuary (F2c), (Map 18 & 19), (F4)

Wharemauku Stream (F1)

Wharemauku Estuary (F4) (Map 19),

Whareroa Stream (F1), (F1b), (Map 14 & 19), (F4)

Whareroa Stream mouth (F4), (Map 19)

Ngarara Creek (F1- 13a, b, c)

Kakariki Stream (F1)

Smithfield Stream (F1)

Paetawa Stream (F1)

Mazengarb Stream (F1)

Muaupoko Stream (F1)

Whareroa Stream (F1), (F1b), (Map 14)

Whareroa Stream mouth/Estuary (F4), (Map 19)

Wainui Stream (F1), (F4), (i), (Map 22)

Wainui Stream mouth / Estuary (F4), (Map 19)

Te Puka Stream (F1)

Ration Creek (F1)

Porirua Stream (F1), (F1b), Map 14 & 44

Cannons Creek (F1)

Kenepuru Stream (F1), (F1b), (Map 14)

Horokiri Stream (F1), (F1b), (Map 14), Map 42

Horokiri Wildlife Refuge (F4)

Pauatahanui Inlet (F4), F5

Pauatahanui Saltmarsh (A3), (Map1)

Pauatahanui Tidal Flats (A3), (Map1)

Pauatahanui Stream (F1b), (Map 14 & 43) (F1)

Duck Creek Estuary (F4), (Map 19)

Duck Creek (F1b), (Map 14), F1

Porirua Stream (F1), (F1b), Map 14 & 44

Culverts (in

perennial or

intermittent

streams)

N=23 streams

15 > 20m long

820 m combined length

Avg. length approx. 46m

N = 28 streams

27 > 20m long

3,200 m

Avg. length approx. 70m

Diversions

N=8 streams

1,260 m combined length

Avg. length approx. 165m

N=39 streams

8,800 m combined length

Avg. length approx. 125m

Stream loss/

reclamation

N=7 streams

490 m combined length

Avg. length approx. 70m

N=44 streams

1,800 m combined length

Avg. length approx. 42m

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5.7. The following tables summarises the range of waterbodies that could be been affected by the

upgrade of SH58, or the construction of a road from Petone to Grenada. as well as providing

some indication of the broad scale of critical activities.

Table 2: Rough Estimate of works for two potential NZTA projects and waterbodies affected.

SH58 P2G

Outstanding

surface water

bodies

Pauatahanui Saltmarsh (A3), (Map1)

Pauatahanui Tidal Flats (A3), (Map 1) nil

Wetlands –

significant Duck Creek Estuary (F4), (Map 19) nil

Other

Scheduled

surface water

bodies.

Schedule A

(nil)

Schedule F1b

Schedule F2a

Schedule F3

Schedule F4

Schedule I

Pauatahanui Inlet (F4), (F5)

Pauatahanui Saltmarsh (A3), (Map1)

Pauatahanui Wildlife Refuge F4, (Map 19),

Pauatahanui Tidal Flats (A3) , (Map 1)

Pauatahanui Stream (F1b), (Map 14 & 43) (F1)

Duck Creek Estuary (F4), (Map 19)

Duck Creek (F1b), (Map 14), F1

Duck Creek Saltmarsh/SR (F4), (Map 19), (F3)

Petone Beach (F2c), (Map 18)

Wellington Harbour (F2c) (Map 18), F5

Korokoro Stream (F1), (F2c)

Belmont Stream (Tributary of Porirua Stream)

Takapu Stream (Tributary of Porirua stream)

Porirua Stream (F1), (F1b), Map 14, Map 44

Te Awarua-o Porirua Harbour – Onepoto Arm (F2c),

(Map 18 & 19), (F3), (F4)

Korokoro Estuary (F4), (Map 19)

Petone Beach (F2c),(Map 18)

Wellington Harbour (F2c) (Map 18), F5

Culverts (in

perennial or

intermittent

streams)

Current SH58 has crossings of approximately 18

tributaries of Pauatahanui Stream and several

crossings of the main stem.

One crossing of Duck Creek.

Crossing of 3 tribs and main stem of Korokoro

Stream.

Crossing of 3 tribs and main stem of Belmont Stream.

Piping of up to 10 tributaries of Belmont and Porirua.

Crossing of 5 tributaries of Porirua Stream.

Diversions /

Stream Loss /

Reclamation

Multiple diversions of streams along the alignment. Multiple diversions of streams, onto fill surfaces, or

along the alignment.

Discharges

To Pauatahanui Saltmarsh

Pauatahanui Tidal Flats, and

All streams crossed.

Approximately 70% of works would discharge to

Porirua Harbour via Porirua stream and tribs. affecting

Te Awarua-o Porirua Harbour – Onepoto Arm

Belmont Stream

Takapu Stream

Porirua Stream

Approximately 30% of works would discharge to

Wellington Harbour via Korokoro stream and tribs

affecting

Korokoro Stream

Korokoro Estuary

Petone Beach

Wellington Harbour

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6. Analysis of examples

6.1. For M2PP and TG,

a) a large number of scheduled sites and several outstanding water

bodies were directly or indirectly affected;

b) almost all culverts were longer than 20m;

c) discharges during rain events normally exceeded the permitted

activity threshold; and

d) all diversions involved an element of reclamation (i.e. loss of

stream length).

6.2. Of particular note, at M2PP a number of significant wetlands lay along

the road alignment, and were affected by discharge of sediment,

diversion of flows, and dewatering necessary for construction of the

road formation. Culverting and diversion of lengths of 14 scheduled

streams was necessary, and discharges from a large proportion of the

construction footprint flowed into and through two outstanding

waterbodies.

6.3. For TG, the diversion of approximately 8,800m of stream into new

channels, and the associated loss of approximately 1,800m of stream

length are key effects of the project which have required significant

amounts of mitigation. This occurred within 12 scheduled streams.

Added to this discharges from a large proportion of the construction

footprint flowed into, and in part, was deposited on the bed of an

outstanding waterbody, Pauatahanui Inlet.

6.4. The upgrade of SH58 would require a similar range of activities to TG,

and would affect many of the same scheduled sites, albeit on a smaller

scale.

6.5. Construction of P2G link will discharge sediments into both Wellington

and Porirua Harbours, including Korokoro estuary and Petone beach,

all of which are scheduled sites. It would require the reclamation and

piping of a number of tributaries of Porirua Stream, the reclamation of

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a number of linear wetlands, and require culverting and diversion of

parts of 4 scheduled streams.

6.6. Taking into account:

a) The considerable scale and complexity of a typical State Highway

project as described above;

b) The wide range of scheduled sites unavoidably affected by these

large scale linear roading project;

c) The requirement by current pNRP Policies to avoid a range of

activities in waterbodies (Attachment 1);

d) The almost universal activity status of non-complying for most

other activities in streams, wetlands and lakes under the pNRP

(Attachment 1);

e) The process required for developing and getting agreement to a

biodiversity offsetting proposal (described below).

I conclude that an affects assessment for any roading project, carried

out under the consenting regime of the pNRP, would find the effects in

at least some waterbodies for at least some activities were more than

minor. I believe both M2PP and TG projects would have failed the

gateway test for adverse effects on ecology. I am similarly hesitant

about the possibility of meeting this test for a potential P2G link, or for

a future upgrade of SH58.

6.7. In relation to non-complying activity status I refer to the attached memo

from GWRC (Attachment 2) which states:

“We note that a non-complying activity status signals that an

activity is highly undesirable (generally inappropriate) and that

resource consent applications under a noncomplying rule

should only be granted under exceptional circumstances.

6.8. Also supporting my concerns, I refer to the early stages of the TG

project in 2010. At that time three potentially affected streams, Horokiri,

Ration and Pauatahanui, were listed in Appendix 2, Part B of the

Operative Regional Freshwater Plan, which required them to be

managed for their aquatic ecosystems and advocated for avoidance of

adverse effects. It was concluded that TG could not therefore be

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consented without a plan change. The resulting plan change went

through the Environment Court and successfully changed the activity

status to discretionary with regard to the TG project.

7. Additional thoughts

7.1. In addition to the provisions discussed above, there are a number of

other provisions in the Proposed Plan that I find problematic. I discuss

these briefly below.

7.2. Under the plan ‘intermittent stream’, ‘stream’, and ‘river’, appear to be

equal in terms of the application of policies and rules, irrespective of

the location of the activity within the waterway, size, flow, condition, and

the presence or absence of important biodiversity. So, for example non-

complying status for a culvert over 20m long applies equally to the

Waikanae River and a tiny intermittent headwater stream. Ecologically

rivers, streams and intermittent streams are very different and the

values will change depending on land use and stream order. I have

provided some comparative photos of streams in Attachment 3.

7.3. It is also my understanding that generally when the rule says ‘river’ or

‘stream’, it means ‘catchment’, i.e. the rule applies to all tributaries of

that stream or river to the upper extent of intermittent flow (See Maps

13a, 13b, and 13c showing rivers with significant indigenous

ecosystems or fauna). Similarly, the activity status for a listed waterway

applies from the stream mouth upstream to include all tributaries to the

upper extent of intermittent flows. The exception to this is Map 1

showing Outstanding Rivers. This only shows the portion of the river

body considered outstanding. I believe the pNRP should be more

explicit where a policy or rule applies to a catchment, or where it just

applies to a section of a stream.

7.4. Under the pNRP ‘natural’ wetland and ‘significant’ wetland appear to

be equivalent and the rules apply equally. However, ecologically these

wetlands are very different. I have provided some comparative photos

of wetlands in Attachment 4. Despite the ecological differences

between these wetlands, non-complying status for a discharge or

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reclamation would be applied equally to all of them under the pNRP.

This issue is exacerbated by the way GWRC have been interpreting

the definition of ‘natural’ wetland which I discuss later in this evidence.

7.5. It is not clear in the pNRP if there is a difference between ‘Lake’ and

‘Natural Lake’. Natural lake is defined, and is used in a number of

specific instances. However, the plan generally refers to just a ‘lake’, or

the ‘bed of a lake’. If all policies, objectives and rules are intended to

refer specifically to ‘natural’ lakes, this should be clarified in the

definitions.

7.6. I remain confused on whether a diversion or culvert is also a

reclamation under the pNRP, and whether the activity status is

discretionary or non-complying. The plan takes a very simplistic view

of culverting, assuming that the crossing is perpendicular to a stream

allowing the shortest possible culvert to be used. In reality, this is not

the experience commonly found in linear roading projects where the

road can approach a stream from any angle.

7.7. With regard to diversions, I also believe the pNRP takes a simplistic

approach. My reading of the pNRP is that it really only considers

diversions as temporary features for installation of river crossing

structures including culverts, or used as necessary for flood flows, or

part of the creation of a small dam, or maintenance of a drain, or

dewatering etc. Again, this approach is in my view, unrealistic. In a

practical sense, for linear projects in Wellington diversions, often many

tens or hundreds of metres long, can be needed to direct water to

crossing points or shift a waterway away from the road alignment. In

my view, this reality is not really addressed in the pNRP. I have

provided some examples of construction complexity in Attachment 5.

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8. Definitions

8.1. I find that several definitions in the pNPR have created catch-all

situations with regard to wetlands, streams, lakes and rivers. By this, I

mean the definitions will catch almost all, if not all wetlands and streams

as ecologically significant. This is exacerbated by the treatment of

significance by Policy 23 of the RPS, which is also in my view a “catch-

all” policy.

8.2. Due to the catch-all nature of Policy 23, the RPS in almost every

situation will find indigenous vegetation or habitat of indigenous species

to be significant. I have tested this policy on a range of projects, and

have not encountered a situation where this is not the case.

8.3. Recognition of Waterway Diversity: The pNRP makes no distinction

between

a) large diverse stream ecosystems and tiny simple intermittent

waterways, as all are treated identically by the rules;

b) large dynamic wetland ecosystems and for example, cattle pugged

gullies, as all are considered natural and by default are therefore

also ‘significant’; and

c) large, complex and highly representative lake systems and small

simple and highly modified lakes.

8.4. The rules treat all equally and do not account for different ecological

value, or functional importance, which as an ecologist I consider they

should under effects based legislation, and where non-complying

status is applied to many activities in those waterbodies.

8.5. I acknowledge that this situation is the same as that which we have

worked with historically under the Operative Freshwater Plan, in which

all streams, wetlands and lakes have been treated equally. This has

not been a major issue under the Operative Plan as the application

status for undertaking activities in those areas is discretionary or

restricted discretionary. This status provides an applicant with the

opportunity to assess value and condition within a waterbody and tailor

an approach to avoidance or remedy or mitigation of the actual adverse

effects of the proposed activity accordingly.

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8.6. However, the shift of policies to ‘avoid’ and rule status to ‘non-

complying’ under the pNRP creates a situation which prevents this

case-by-case consideration of effects and removes the opportunity to

meaningfully assess actual ecological value. The pNRP has in effect

made the decision regarding the ecological value of all waterbodies,

and has determined that they are all significant. Every application which

suggests an alternative assessment of value must now fight back

against Councils pre-determination.

Stream

8.7. As discussed above, under the pNRP ‘intermittent stream’, ‘stream’,

and ‘river’, are all given equivalent value. As such the rules in respect

of activities within these waterways apply equally irrespective of the

location of the activity within the waterway, its size or condition.

8.8. I have looked to the pNRP definitions of Category 1 water bodies and

Category 2 water bodies, but these appear to relate only to stock

access, and are not otherwise used in the pNRP. They are therefore

not useful in considering different stream values or the application of

rules.

8.9. I also looked to the pNRP definition of ‘River class’. However, this

appears to only be used in O25 (aquatic ecosystem health) and P71

(quality of discharges). It is not used elsewhere for definition of rules

(see below). Therefore, this is also not useful in this considering

different stream values or the application of rules under the pNRP.

8.10. If non-complying status for most activities in streams is to remain, I

suggest that some form of division of activity status would need to be

applied, recognising stream variation and applying a lower activity

status for some waterways, for example modifying Category 1 and

Category 2 water bodies to provide a separation between non-

complying, discretionary and restricted discretionary.

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River / Catchment

8.11. My understanding is that generally when a rule says ‘river’ or ‘stream’,

it means ‘catchment’, i.e. the rule applies to all tributaries of that stream

or river. This distinction is not explicit in the pNRP.

Lake

8.12. There is a pNRP definition for ‘Natural lake’, which I am comfortable

with as it requires the lake to have been formed by “natural geomorphic

processes”. However, like streams and wetlands, the pNRP rules

governing activity in lakes apply irrespective of the size, condition or

permanence of the lake.

8.13. I also note that in the pNRP the phrase ‘Natural Lakes’ is used sparingly

for a number of situations. Usually it just says ‘lake’ or ‘beds of lakes’

etc., without ‘natural’ being used as a qualifier’. It is unclear to me

whether this is intentional and I suggest that the position should be

clarified.

Wetlands

8.14. In my view, the pNRP approach to defining ‘natural wetlands’ and

‘significant wetlands’ is ambiguous and not ecologically grounded. The

pNRP contains different definitions for ‘natural wetlands’ and

‘significant natural wetlands’. However, in reality, they are treated

equally, as significant, under the pNRP.

8.15. The schedule of significant wetlands in the pNRP (F3) is in fact only

presented with regard to rules on grazing. It is not provided as a guide

to wetlands which are significant., Instead, this is left to RPS Policy 23

which, as already discussed, ensures that all wetlands will be found to

be significant.

8.16. The need for assessment under Policy 23 to wetland sites is moot in

any event, because as noted, there is no obvious difference in the

application of rules for ‘natural’ and ‘significant’ wetlands; Both natural

and significant natural wetlands appear to be treated equally under the

pNRP rules, which implies that all wetlands are significant.

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8.17. I am disappointed that the wetlands listed in Schedule F3 do not have

more status in this plan. As the author of the inventory from which this

list is derived1, I would suggest that the majority of both ‘natural’ and

‘significant’ wetlands in the Wellington region were captured in the

inventory. Use of the schedule, or some form of it in the pNRP, would

therefore remove considerable uncertainty.

8.18. In my view the definition of ‘natural’ wetland in the pNRP, is a catch-all

definition. The ambiguous interpretation of the definition has, and will

continue to find a large number of ‘induced’ wetlands to be both natural

and significant. I provide examples of natural and induced wetlands in

Attachment 4.

8.19. I have already encountered disparate interpretations of this definition.

By way of example, in the time since GWRC started applying the pNRP

definition of ‘natural wetland’ to resource consent assessments, I have

presented assessments of a number of induced wetlands, which I do

not consider to be ‘natural’. These wetlands and many hundreds like

them that are scattered throughout farmland across the Wellington

region, were formed by the following processes:

a) Prior to human occupations these sites would have been forested.

b) Wetland seepages were induced in these locations by (i) the

clearance of the original forests, (ii) the infilling of the original

stream channels by colluviation, and (iii) the binding of those

colluviated muds by introduced pastoral species.

c) The plant communities and species found within these pastoral

wetlands are determined by (i) the presence of invasive pastoral

grasses, (ii) stock grazing and trampling, (iii) the toxic effects of

stock effluent, and (iii) prevention of scrub reversion. The

communities that develop under these conditions are only found in

pastoral seepages and not found in natural wetlands.

d) If farming were to cease, scrub reversion would rapidly

overshadow and eliminate the pasture and wetland plants that

1 Boffa Miskell Ltd. 2011: Desktop delineation and assessment of significance of wetlands of the

wellington region methodology & results. Prepared for Greater Wellington Regional Council. November 2011. 50p.

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currently bind the colluviated sediments, resulting in flushing of the

muds from the channels and over time the re-establishment of the

original ephemeral stream channels. In Attachment 7 I provide

images showing this process.

8.20. I provide in Attachment 6 images of two such induced wetlands. For

these two sites I described the ecological values as follows:

i All indigenous species that were components of the seepage

habitats were common, locally abundant and widespread

nationally within rural landscapes, having opportunistically

expanded in distribution from their pre-European extent, to

occupy created or induced habitats within pasture.

ii There were no rare or at risk species of plant.

iii The seepages do not provide habitat for indigenous birds.

iv They do not provide habitat for indigenous lizards.

v They comprise anoxic muds and so do not provide habitat for

important indigenous terrestrial or freshwater invertebrates.

vi They do not contain any aquatic habitat.

vii They do not contain indigenous fish.

viii They do not buffer other areas of ecological or biodiversity

value.

ix They do not provide corridors for the movement of indigenous

fauna.

x They do not provide seasonal or core habitat for any species

of fauna.

xi Based on my understanding of the history, geo-morphology,

soils, and ecology of the site, and the absence of indigenous

biodiversity, I conclude that the wetland seepages had been

induced by human activities, were not natural and were not

significant.

8.21. GWRC’s response to the above assessment of induced wetlands did

not challenge any of the above findings of ecological or biodiversity

value, but rather challenged my interpretation of the definition of

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‘natural wetland’ and of Policy 23 of the RPS. They concluded that

because the wetland seepages shown in Attachment 6 are not

specifically excluded in (a) and (b) of the pNRP ‘natural wetland’

definition, they must be considered ‘natural’ under the definition.

Therefore, as they considered them to meet the definition for ‘natural

wetland’ under the pNRP they would also be considered to have

significant values under Policy 23 of the RPS. This is in my view a

semantic, not an ecological argument and highlights to me the

importance of getting these definitions ecologically grounded.

8.22. The already apparent difficulties with the approach to defining wetlands

and significance under the pNRP is a key issue for linear infrastructure

providers. The form of induced wetland which was the subject of my

assessment outlined above, occurs in large numbers across the

Wellington region, and can be seen in all farmed lowland and hill

country. They cannot be avoided by a linear infrastructure project that

crosses this terrain. Therefore, if crossing of these induced systems is

treated as a non-complying activity under the pNRP, it would be a major

constraint for linear infrastructure projects.

8.23. There is some case law guidance on the RMA definition of wetland2,

which suggest that in order to meet the definition, the relevant area

must be naturally occurring and self-sustaining, requiring consideration

of hydrology, and the plants and animals which form part of the

ecosystem dominance must include indigenous wetland plants which

are wetland obligate.

8.24. I note that the definition of ‘natural lake’ includes “A lake which is

formed by natural geomorphic processes, whether modified by human

activity or not.” Adding similar wording to the definition of ‘natural

wetland’ would be helpful and combined with reference to hydrology,

and obligate species, would remove the ambiguity of the current

definition.

2 D-G of Conservation v Ferguson [2006] NZEnvC 214/05 (at [53]) and Clearkin v Auckland Council

[2012] NZEnvC 238.

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Culvert / Pipe

8.25. ‘Culvert’ and ‘piping’ are not covered in the pNRP definitions leaving

open questions such as at what point does a culvert become a pipe? I

understand that culverting is specifically provided for in R115, piping is

provided for in other rules (e.g. 112, 117), but they may both be caught

by the catch-all Rule R129, apart from reclamation associated with the

piping of a stream (R127).

8.26. I suggest that a definition should be provided in the pNRP to avoid

confusion.

Diversion

8.27. Diversion is not defined in the pNRP. The activity status of a diversion

is addressed through a range of different rules for a range of situation

with different activity statuses.

8.28. I suggest there needs to be greater certainly over the activity status of

a diversion in the pNRP, and if there is more than one type of diversion

then there should be a definition added to the pNRP to provide clarity.

Cumulative effects

8.29. Cumulative effects are not defined and there is no guidance on how to

assess these. Yet, Policy P42 requires that cumulative effects on rivers,

lakes and wetlands be avoided.

8.30. Consideration of cumulative effects is an assessment form that is rarely

carried out, in part because there is no guidance, and it is incredibly

difficult to do. If avoidance of this effect is being required, then I believe

the plan needs to include a definition of cumulative effects in the pNRP

and specific guidance on how these are to be assessed.

9. Prohibited Activity Status (general comment)

9.1. I understand why councils seek to have a higher bar for activities

proposed on special sites through imposing a prohibited activity status.

I note that in the pNRP, prohibited status typically only applies to

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outstanding waterbodies. However, I believe that by imposing a

prohibited activity status, the pNRP effectively closes down any

opportunity for discussion, and will take off the table some activities

that, by way of necessary mitigation, could lead to positive

environmental outcomes for these outstanding sites.

9.2. By way of example, sections of the margin of Pauatahanui inlet have

been compromised historically by the formation of SH58. This road

creates a hard edge along nearly 2 km of its length, narrowing or in

some cases eliminating beaches, rocky shoreline, and high tide roosts

by between 10 and 15m. I can see a number of opportunities to improve

this situation which might form part of an upgrade of SH58, allowing

some reclamation, but also providing opportunities for rehabilitation.

Under the pNRP this potential option is lost.

9.3. For this reason, I question whether a prohibited activity status will in all

cases lead to the best environmental outcomes for these sites, and for

any future sites that might be added to Schedule A.

10. Biodiversity Offsetting (Schedule G2)

10.1. I have viewed the new definition for ‘biodiversity offsetting’, and

Schedule G2, Principles to be applied when proposing and considering

a biodiversity offset. I have three general comments.

Limits to what can be offset

10.2. Firstly, with regard to “limits to what can be offset” the pNRP states that

consideration of biodiversity offsetting is inappropriate when an activity

has the potential to cause residual adverse effects on an area where

a) The species or ecosystems are threatened, or

b) the ecosystem is naturally uncommon, or

c) where there is no appropriate site in which to carry out the

offsetting, or if the knowledge or proven methods to design and

implement is lacking.

10.3. In reality:

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a) I suggest that threatened ecosystems should be provided for in

para ii (naturally uncommon) as discussed below.

b) I struggle with the position that the presence of threatened species

would preclude offsetting. This is a catch-all and should be based

on actual analysis of the species present, their abundance,

distribution within the site, each species reliance on the habitat

present, and their resilience or sensitivity to change.

c) It is suggested that “offsetting is not achievable for activities in

Naturally uncommon ecosystems”. It is not clear if this is a

suggestion open for testing, or an absolute. I will assume the worst

case for this discussion, that this criterion is prescriptive.

d) For the panels information there are 72 historically rare terrestrial

ecosystems (naturally uncommon) as follows:

From - TABLE 2 Status of the 45 threatened naturally uncommon ecosystems in New Zealand3 Reprinted from Holdaway et al. (2012)

Coastal

*Active sand dunes

Dune deflation hollows

Shell barrier beaches

Coastal turfs

Stony beach ridges

Shingle beaches

*Stable sand dunes

Coastal rock stacks

Coastal cliffs on quartzose rocks

Coastal cliffs on acidic rocks

Basic coastal cliffs

Calcareous coastal cliffs

Ultrabasic sea cliffs

Inland and alpine systems

Volcanic dunes

*Screes of acidic rocks

Calcareous screes

Ultrabasic screes

Young tephra (<500 years)

plains and hillslopes

Recent lava flows

(<1000 years)

Old tephra (>500 years) plains (= frost

flats)

Frost hollows

Boulderfields of acidic rocks (non-volcanic)

Volcanic boulderfields

Volcanic debris flows or lahars

*Cliffs, scarps and tors of acidic rocks

Basic cliffs, scarps and tors

Calcareous cliffs, scarps and tors

Ultrabasic cliffs, scarps and tors

Ultrabasic hills

Inland sand dunes

Inland outwash gravels

Braided riverbeds

Granitic sand plains

Granitic gravel fields

Sandstone erosion pavements

Limestone erosion pavements

Inland saline (salt pans)

3 Williams etal: 2007. New Zealand’s historically rare terrestrial ecosystems set in a physical and

physiognomic framework. New Zealand Journal of Ecology (2007) 31(2): 119-128 ©New Zealand Ecological Society.

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*Moraines

Boulderfields of calcareous rocks

Ultrabasic boulderfields

Cliffs, scarps and tors of quartzose rocks

Strongly leached terraces and plains

(‘Wilderness’ vegetation)

Cloud forests

Geothermal systems

Heated ground (dry)

Hydrothermally altered ground (now cool)

Acid rain systems

Fumeroles

Geothermal streamsides

Induced by native vertebrates

*Seabird guano deposits

*Seabird burrowed soils

Marine mammal haulouts

Subterranean or semi-subterranean

Sinkholes

Cave entrances

Caves, and cracks in karst

*Subterranean river gravels

Subterranean basalt fields

Wetlands

Lake margins

Cushion bogs

Ephemeral wetlands

Gumlands (excludes those induced by

anthropogenic fire)

Pakihi

Damp sand plains

Dune slacks

Domed bogs (Sporadanthus)

String mires

*Blanket mires

Tarns

*Estuaries

*Lagoons

Seepages and flushes

Snow banks

i I do not agree that a sites status as uncommon should

automatically prevent offsetting from being applied at a

number of these sites

ii There is a subset of these 72 ecosystems, 45 naturally

uncommon ecosystems which are also classed as

threatened. Looking at each one, I do believe it makes sense

that offsetting for most of these would be challenging or

impossible. A shell barrier beach is a good example of where

offsetting has been carried out successfully for a threatened

ecosystem. Similarly, lake margins, inland sand dunes, and

so on can all be rehabilitated, or restored.

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From - TABLE 2 Status of the 45 threatened naturally uncommon ecosystems in New Zealand. Reprinted from Holdaway et al. (2012) 4

Critically Endangered Endangered Vulnerable.

Shell barrier beach Active sand dune Coastal cliffs on mafic rock

Coastal turf Dune deflation hollow Screes of calcareous rock

Old tephra plains Stony beach ridge Young tephra plains and hill

slopes

Inland sand dunes Shingle beach Boulder fields of calcareous rock

Outwash gravels Stable sand dune Cliffs, scarps and tors of mafic

rocks

Inland saline Coastal cliffs on calcareous rock Cliffs, scarps and tors of

calcareous rocks

Leached terraces Ultramafic sea cliffs Moraine

Fumaroles Volcanic dunes Lake margins

Geothermal stream sides Sandstone erosion pavements Blanket mire

Geothermal heated ground Frost hollows Estuary

Geothermal hydrothermally

altered ground Volcanic boulder fields

Seabird guano deposits Sinkholes

Seabird burrowed soil Dune slacks

Marine mammal influenced sites Domed bog (Sporadanthus)

iii In response to the third item, I would suggest that biodiversity

offsetting is always an experiment; each situation is unique,

the methods used always tailored to the site, the ecological

system being offset, and the specifics of the site where

offsetting will be carried out. So the ecologist may not have a

proven method but this does not preclude success.

No Net Loss

10.4. Secondly, the definition of ‘biodiversity offsetting’ does not provide for

a situation where there is a net loss (para 6). Over the years that I have

worked on large infrastructure projects I have seen a number of

activities where no net loss could not be achieved, however, given the

need to balance ecological, social and economic matters the project

has proceeded. I do not believe TG could not have proceeded under a

4 Williams PA, Wiser S, Clarkson B, Stanley MC 2007. New Zealand's historically rare terrestrial

ecosystems set in a physical and physiognomic framework. New Zealand Journal of Ecology 31: 119-128.

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no-net loss requirement as some activities led to unavoidable effects

such as sediment deposition to Pauatahanui Inlet which were assessed

and understood by the BOI.

Explicit Calculation

10.5. Thirdly I am concerned at the practicality of the requirement for

“an explicit calculation of loss and gain has been undertaken as

the basis for the biodiversity offset design which demonstrates

the manner in which no net loss and preferably net gain can be

achieved”.

10.6. There are no accepted models for carrying out these” explicit

calculations”. Even SEV which has been used quite extensively for a

number of years has its critics including one of the original authors,

based on concerns that it is being used incorrectly and outside of the

situations for which it was developed.

10.7. Other biodiversity offsetting models have been put in front of the court

and strongly challenged or thrown out5. Ecologists have spent

significant amounts of time arguing about the application of highly

subjective assessment criteria, and multipliers, without generally

reaching agreement.

10.8. In the absence of an agreed offsetting model, this guidance needs to

accommodate other simpler and, for many projects, more practical

methods for determining appropriate levels of mitigation.

11. Conclusion

11.1. Based on my 30-year experience carrying out ecological impact

assessment and designing mitigation plans for projects large and small

in the Wellington Region, I am concerned that there is a disparity

between the actual condition and value of ecological systems and the

level of protection being imposed for them in the pNRP provisions.

5 see [217]-[220] of West Coast Environmental Network Inc v West Coast Regional Council and

Buller District Council [2013].

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11.2. I do not believe that the high level of protection being afforded in many

instances is justified from an ecological point of view. Under this

consenting regime I do not believe a number of projects I have

assessed in the past could pass the s104D RMA gateway test for “non-

complying”, and this will leave many applicants, including in particular

regionally significant infrastructure providers, without a consenting

pathway for their projects.

11.3. I believe that, if the bar for activities in stream, river, lake and wetland

ecosystems is to be raised through avoidance focused objectives and

policies, and non-complying activity status in the pNRP, then the pNRP

should also recognise the variability between different stream, wetland

and lake ecosystems, to ensure that the level of protection afforded to

the ecosystem is commensurate to its actual value. In my view, this

could be achieved through amendments to the relevant pNRP

definitions, and by allowing ecological assessments to be carried out

on a case-by-case basis, free of the pre-determination of significance

or value which Non-complying and Prohibited activity status in effect

does.

Stephen Andrew Fuller

28 March 2018

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12. Attachments

Attachment 1 Relevant Policies and Activity Status

Attachment 2: GWRC memo

Attachment 3. Comparative photos of intermittent streams /

streams / rivers

Attachment 4. Comparative photos of natural and induced

wetlands

Attachment 5. Complexity of stream crossings and diversions (two

examples)

Attachment 6. Induced wetlands which are ‘significant’ under

Policy 23 of the RPS (two examples)

Attachment 7. Decline of ‘induced’ wetlands as a result of canopy

shading (three examples)

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Attachment 1 Relevant Policies and Activity Status

While I am not a planner, I regularly assess activities affecting ecological

systems against Plan Provisions. I believe the following Policies and Rules are

relevant to a consideration of ecological assessments under the pNRP

framework.

Policy P12, P13, P14, recognises the benefits of regionally

significant infrastructure and renewable electricity generation

facilities.

But with regard to water bodies, only RSI is used for Policy P102

(the reclamation or drainage of the beds of lakes and rivers and

natural wetlands shall be avoided, except where RSI). All other

reference to RSI relate to coastal policies.

Otherwise:

Policy P22 requires the avoidance of significant adverse effects on

ecosystem values of estuaries.

Policy P25 requires the avoidance of significant adverse effects on

the natural character of the beds of lakes and rivers.

Policy P32 requires the avoidance of significant adverse effects on

aquatic ecosystem health.

Policy P33: states that more than minor adverse effects of

activities on the species known to be present in any water body

identified in Schedule F1, F1a, and F1b shall be avoided.

Policy P42 requires the avoidance of cumulative adverse effects

on significant habitats listed in Schedule F1, F2, F3, F4 and F5.

Policy P66 seeks in the first instance avoidance of any discharge

that will have an adverse effect on the life-supporting capacity of

fresh water including on any ecosystem associated with fresh

water.

Policy P72 requires (where not otherwise permitted by a rule),

avoiding significant adverse effects within the zone of reasonable

mixing.

Streams

Activity status for any culvert over 20m long appears to be non-

complying. A range of rules appear to apply where Rule 115 isn’t

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met. It may be restricted discretionary under R125 if in a mana

whenua site, or discretionary under R129 where no special values

apply. R129 doesn’t provide for damming or diversion of water so

this, by default may trigger non-complying.

Activity status for reclamation of a stream is non-complying

(includes piping) (Rule 127)

Activity status for the diversion of a stream is possibly discretionary

but may be non-complying particularly if the diversion is shorter

than the stream that was diverted i.e. a reclamation. (Rules 131 /

132).

Activity status for the diversion of an ‘outstanding’ river is non-

complying. (R132 as not provided for under 131b))

Wetlands

Activity status for reclamation of a ‘natural’ wetland is non-

complying (R108)

Activity status for damming or diverting water in a ‘natural’ wetland

is non-complying (R108)

Activity status for discharge to a ‘natural’ wetland is non-complying

(R108 associated with in –wetland works)

Activity status for reclamation of an ‘outstanding’ wetland is

prohibited (R111).

Lakes

Activity status for reclamation of a lake is non-complying (R127).

Activity status for diverting water from a lake is either discretionary

or non-complying.

Activity status for reclamation of an ‘outstanding’ lake is prohibited

(R128).

Discharges

I note that these rules are not being covered in Hearing Stream 5,

but discharges are integrally associated with the construction

activities being described, so provide important context.

i Activity status for discharges into sites of significance

(scheduled sites) within rivers, lakes, and wetlands goes from

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‘permitted’ (R42) to a ‘non-complying’ activity (R67) if the

discharge is >50gm/m3. (I believe this is equivalent to

between 45 and 60 NTU). This is a small sediment loading

similar to that which occurs naturally during a small rainfall

event.

ii Activity status for discharges into all other sites; within rivers,

lakes, and wetlands goes from ‘permitted’ (R42) to a

‘discretionary’ activity (R68) if the discharge is >100gm/m3. (I

believe this is equivalent to between 90 and 150 NTU)

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Attachment 2 GWRC Memo

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Attachment 3 Comparative photos of intermittent streams / streams / rivers

All of these waterways are Scheduled sites. Rules apply equally to each of these, e.g. a culvert over 20m is a non-complying activity.

Photo 1 Waikanae River. Photo 2 Te Puka Stream. Perennial Stream, main stem. Photo 3 Duck Creek, main stem - upper. Photo 4 Duck Creek, main stem – mid.

Photo 5 Duck Creek intermittent tributary. Winter wet. Photo 6 Horokiri Stream intermittent tributary. Winter wet. Photo 7 Te Puka Stream intermittent tributary. Summer dry Photo 8 Porirua Stream - intermittent tributary. Summer dry.

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Attachment 4 Comparative photos of natural and induced wetlands

Photo 9 Mt Cone turf bog, an outstanding wetland. Photo 10 Taupo Swamp, a significant wetland with minimal modification.

Photo 11 Unnamed natural wetland on Lincolnshire farm. A highly modified swamp forest. It retains key elements of the original vegetation and so retains high ecological value.

Photo 12 A natural wetland on saturated river terraces in the Horokiri valley. It is a highly modified site missing some key elements of the original swamp forest that occurred at this site. It is therefore of low to moderate value.

Photo 13; A natural wetland in a natural depression. It is a highly modified site missing most elements of the original swamp forest that occurred at this site and so is of low value.

Photo 14 An ‘Induced’ wetland where the native canopy has been removed and cattle have pugged a headwater spring. pNRP wetland definition would find this ‘natural’ and therefore significant.

Photo 15 An ‘Induced’ wetland on colluviated muds in gully headwaters. pNRP wetland definition would find this ‘natural’ and therefore significant.

Photo 16 An ‘induced’ wetland, colluviated muds pugged by stock. pNRP wetland definition would find this ‘natural’ and therefore significant.

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Attachment 5 Complexity of stream crossings and diversions (two examples)

Photo 17 Design of a road alignment in the context of a complex stream pattern. Ration Stream, Transmission Gully. Road alignment in yellow, red is designation. This type of complex pattern is common in lowland hill country and would be encountered in P2G and upgrades of SH58

Plan section of the Original Stream shown in photo 17. The stream is shown in blue showing natural meanders and tributaries. The construction footprint is in yellow; the designation is in red..

Plan section of the final drainage presented in photo 17. Culverts are shown in green, diversions in orange, retained streams in blue. The construction footprint is in yellow and the designation is in red. There is both stream loss ≈ reclamation, stream redirection ≈ diversion.

Photo 18 Design of a bridge. The stream while generally in alignment still required diversion to enable a perpendicular crossing, and armoured diversion channels to direct the stream to and from the crossing. This is common to almost all large bridges and would be encountered in P2G and upgrades of SH58

Plan section of the Original Stream shown in photo 18. The stream is shown in blue showing natural meanders and tributaries. The construction footprint is in yellow; the designation is in red..

Plan section of the final drainage presented in photo 18. Diversions are in orange, retained streams in blue. The construction footprint is in yellow and the designation is in red. There is both stream loss ≈ reclamation, stream redirection ≈ diversion.

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Attachment 6 Induced wetlands which are ‘significant’ under Policy 23 of the RPS (two examples)

Photo 19; Wetland EQM 3, formed where the forest canopy has been historically removed, colluviated soils have been oversown, and pugged by cattle.

Photo 20 Wetland EQM 3, scattered rushes over exotic pasture grasses (creeping bent) adapted to wet conditions

Photo 21 Wetland EQM 3, in places water reaches the surface, forming a thin sheet over pugged and anoxic muds.

Photo 22 Wetland EQM 2. formed where the forest canopy has been historically removed, colluviated soils have been oversown, and pugged by cattle.

Photo 23 Wetland EQM 2. scattered rushes over exotic pasture grasses (cocksfoot , Isolepis prolifera, and creepong bent) adapted to wet conditions.

Photo 24. Wetland EQM 2, in places water reaches the surface, forming a thin sheet over pugged and anoxic muds.

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Attachment 7 Decline of ‘induced’ wetlands as a result of canopy shading (three examples)

Photo 25 Stream 1. Development of a Carex secta sedgeland in a wet gully following forest clearance. This gully was retired from farming and a canopy is closing over the gully floor.

Photo 26 Stream 1. Upstream of photo 25. The regenerating canopy has closed over the gully floor and the Carex secta sedgeland and associated wetland grasses have been shaded out.

Photo 27 Stream 1. As for photo 26, showing deep muds beneath the young canopy with sheet flow across them.

Photo 28 Stream 1. Showing the margin of the induced wetland where the stream is excavating out the muds and washing them downstream. This will lead to a return of the natural rocky gully over time.

Photo 29 Stream 2. An induced wetland which would have originally been a small forested gully. Vegetation influenced by tolerance to grazing and eutrophication.

Photo 30 Stream 2. Same gully (Photo 29) upstream, under a very thin canopy, sufficient to shade out adventive wetland plants. Deeps muds remain, largely due to continued cattle access.

Photo 31 Stream 3. Open to the sky and accessible to stock. Dense steam macrophytes and wetland margins of a small stream. Vegetation influenced by tolerance to grazing and eutrophication.

Photo 32 Stream 3. Immediately upstream of photo 31, under a forest canopy. This is the natural state of this valley floor, deep gravels and a meandering channel under a canopy.

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