Generating electricity from wave power may not exactly qualify as aquaculture (wave farming, anybody?). But the recent Crest Energy Kaipara Ltd v Northland Regional Council Environment Court decision is interesting, nonetheless. The decision related to an application by Crest to the Northland Regional Council for a number of resource consents to enable the installation, on a staged basis, of 200 turbines and associated cables in the Kaipara Harbour.
Crest had initially been granted consent from the council for approximately half the total number of turbines sought, but that grant was appealed to the Environment Court. The court had to consider a number of viewpoints, ranging from whether the full 200 turbines should have been approved to whether none should be allowed.
Following an interim decision on December 22, 2009 and much work by the parties involved, the court issued its ﬁnal decision on February 3, 2011. Although the legal context for the activity in question is somewhat different than for aquaculture, the principles used in the consent process might provide a guide for future consents for new and experimental aquaculture activities.
Crest had submitted an environmental monitoring plan as part of its application, providing for monitoring of the effects of the turbines. However, the court felt the plan should go further and incorporate an adaptive management programme.
The concept of adaptive management has developed through a number of decisions of the Environment Court, for instance, Golden Bay Marine Farmers v Tasman District Council, Clifford Bay Marine Farms v Marlborough District Council, and Lower Waitaki River Management Society Inc v Canterbury Regional Council.
The concept has been applied in a range of situations, often involving uncertainties about potential impacts of proposed mussel farms. So adaptive management is not a new idea for the aquaculture industry, but it is likely to be applied increasingly often in the context of new and experimental aquaculture activities.
Adaptive management is effectively the imposition and subsequent reﬁnement of management plans in response to any observed environmental effects. One of the most important elements of those management plans is the collection of baseline knowledge upon which management plans can build on in an on-going and cyclical process. Typically, management plans will involve a cycle of steps, including:
- setting objectives
- design and planning for managing the resource or activity
- managing the resource or activity
- monitoring and evaluation of monitoring results
- reviewing and reﬁ ning the management plan and programme to better meet the objectives, and
- implementing that reﬁned plan.
In the resource consenting context, councils and courts will always be at pains to ensure the objectives for adaptive management are reasonably certain and enforceable. An important feature of adaptive management is it does not require that all necessary research be carried out before an application can be made or consent granted, provided the council or court is satisﬁ ed the environmental management plan can operate so it will serve the purpose of the Resource Management Act.
Adaptive management is therefore particularly appropriate for new and innovative activities, where it is difﬁcult to be deﬁnitive about environmental effects before the activity is actually undertaken.
In the Crest case, consent was granted for the activity to be undertaken in (effectively) ﬁve stages, preceded by a two-year period of baseline monitoring. Stage 1a would see a maximum of three turbines installed and the environmental effects of those turbines monitored for at least one year.
On the basis of the results of that monitoring, the council could determine that:
- the level of the environmental effects are no more than minor and development to the next stage can proceed
- the level of effect is more than minor, and design modiﬁcations or downscaling are required to reduce those effects, or
- the level of understanding of the effects is insufﬁcient, in which case further development would be put on hold until further monitoring and research is undertaken.
Similar decision points would occur after each subsequent stage, with the council having the option of initiating the full review of the resource consents.
While the adaptive management approach arguably places a heavy burden on developers, in the form of monitoring costs and uncertainty of tenure, this must be preferable to being placed in the no-win situation of being required to prove, to the satisfaction of a council or court, the precise environmental effects of a previously untested activity.
Adaptive management therefore provides a means of breaking the Catch 22 cycle of not being allowed to undertake a development until its environmental effects are proven, but not being able to prove those effects without being allowed to undertake the development.
We would suggest proponents of new aquaculture activities would be well advised to study the Crest Energy decision and the principles underlying it, closely.