An impassable fish pass

An Environment Court site visit to an illegally constructed dam raised concerns fish are no longer able to travel upstream.

A fish pass installed on an illegally constructed dam is unlikely to help fish get upstream to spawn. The fish are a vital food source for New Zealand's last 37 fairy tern.

The pass was installed as part of an Auckland Council condition in order for an exclusive golf course development company to gain a certificate of compliance for the structure it had built on public land.

Te Arai North, the developer of the Tara Iti golf course associated with US billionaire Ric Kayne, entered a regional park in 2016 with diggers and loads of boulders. Without permission Te Arai stream was narrowed in parts, an existing low ford was turned into a higher dam and sides of the stream were lined with boulders. 

The dam the developer constructed stops salt water from reaching an intake valve used by the golf course. Salt water could damage the greens.

Salt water irrigation could damage the cultivated greens of Mangawhai's sand dune golf course. Photo Farah Hancock

The New Zealand Fairy Tern Charitable Trust convener Heather Rogan told the court that since its construction the dam has compromised the spawning of inanga. Attempts to get this addressed had been unsuccessful which is why the trust is seeking an enforcement order against Auckland Council.

"We have tried every avenue we could for the last five or six years, ever since the dam has been in place. We’ve had discussions with council. We’ve been to all sorts of meetings."

Auckland Council issued two abatement notices to the developer. Te Arai North then applied for a certificate of compliance which was granted by the Council on the basis the dam was lowered and a fish pass was added.

Judge Jeff Smith said a site visit to Te Arai Stream by court staff on Monday raised immediate concerns over a structure intended to be a fish pass. 

“It was fairly obvious in the first 10 seconds that this wasn’t a standard fish passage situation.”

The pass is described as a series of drops and pools which fish are supposed to traverse in a series of “rapid bursts”. Inanga are not known for their ability to climb, but can do short bursts with rest periods if the flow of water allows.

Judge Smith said his rough estimation from the site visit was water was travelling through the first drop of around 200 millimetres at more than a metre a second. This would likely be too great for many inanga to pass. 

“We understand inanga can’t succeed above 0.3 metres per second and you get a 50 percent loss over 100 millimetre drop. I’ve got to say there are some concerns.”

Inanga spawn just above where salt water washes up streams. With the dam stopping salt water, inanga must get above the dam to fresh water to spawn.

Video of the dam and fish pass taken at high tide. The pass on the right is where inanga are supposed to be able to climb up in order to spawn. Video: Farah Hancock

Auckland Council engaged Tonkin + Taylor ecologist Josh Markham to give an independent technical review of the changes made to the stream in 2017 as part of the certificate of compliance. He made several visits to the site before the installation of the fish pass but none after it was installed.

His assessment of the pass was based on photographs he was supplied. The photographs submitted to the court as what Markham reviewed appear different to what is now in place.

"The ramp I reviewed on a photograph clearly had a pool and jump sequence to it," he said.

He agreed it would be unlikely inanga could climb a structure with the height and flow Judge Smith observed during the site visit.

The Auckland Unitary Plan requires fish passage for all structures except culverts.

Debate lingers over who is responsible for removing the dam and if the enforcement order sought by the trust could be served on Auckland Council.

Auckland Council opposes the orders saying Te Arai North is responsible for the dam and has asked the court to refuse the application. 

As a regulator but not owner of the Crown-owned stream bed and banks the dam is on, the council says it does not have the right to access the area and remove the dam. 

The Department of Conservation administers the banks of the stream, and Land and Information New Zealand owns the bed of the stream.

The trust did not apply for Te Arai North to be a respondent, a matter which was raised several times as being puzzling. 

In what's become a 'no man's dam' situation the trust argues Te Arai North also doesn't have the right to access the area and remove the dam it built.

Judge Smith said it was a complicated situation, but the court needs to be driven by the need to protect an endangered species.

He discussed other options available to the court if an enforcement order was found to be inappropriate. These included making a declaration, findings, or an interim decision. He said these may give direction on how matters should proceed. This might require additional applications which would come at a cost. 

"Given the limited means of the Fairy Tern Trust it would probably be expected council or somebody else has to move the matter forward from that point.

"Clearly there's been a failure of the council to properly monitor the compliance and what's occurred there. I would assume that the council would take that to heart and make sure things are done properly."

The hearing concludes this morning.

It's been reported US billionaire Ric Kayne is planning to create two new public golf courses next to the member's only Tara Iti course. 

Read More:

Court confusion over no man's dam

Advocates for rare bird take dam fight to court

Exclusive golf club’s ironic bogey

NZ’s rarest bird on the brink

The fence the billionaire built

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