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New Zealand Journal of Environmental Law |
Last Updated: 13 February 2023
255
Managing the Environmental Effects of Agriculture under the
Resource Management Act: Non-point Source Discharges
Lucie Drummond*
“Earth first ... we’ll graze the rest of the planets later.”1
The intensification of agriculture, in particular pastoral farming, has led the way in the demise of water quality in New Zealand. Much of this pollution is due to the non-point source discharge of nutrients into our waterways. This environmental damage has been noticed for over 50 years, yet the cause of the problem has remained under relatively voluntary management. Agriculture has now been identified as one of the greatest causes of environmental pressure to freshwater quality. Current management is ineffective and is doing little to fix an escalating problem. Freshwater quality is currently managed by regional councils under the Resource Management Act 1991. Within the Act there is provision for central government to have a role in freshwater management through the setting of national targets. To date there are no national standards set and regional councils can be seen to take a wide range of approaches to managing the issue. Under the Resource Management Act 1991 councils have the ability to regulate non-point source discharges through land-use controls or discharge permits. A survey of some regional councils conducted for this paper revealed that most councils currently advocate a voluntary approach.
*BSc, specialisation in Environmental Science, LLB (Hons). Lawyer DLA Phillips Fox. This paper is an edited version of a dissertation written in partial fulfilment of the requirements of the University of Auckland for the degree of Bachelor of Laws (Hons), January 2006.
1 Bumper sticker as recalled by J G Boswell in Mark Arax and Rick Wartzman, The King of California (Public Affairs, USA, 2003) 98.
However, where regulation does appear it is through land-use controls applied to specified areas within the region. The nitrates directive was signed by the Commission of European Communities in 1991. In recent years most European countries have taken action under this directive to identify nitrogen-sensitive areas and create action programmes for these areas. In New Zealand there has also been research conducted on agriculture’s role in non-point source discharges. In the past 10 to 15 years several studies have been conducted by central government agencies, councils, industry groups and environmental organisations. The result of these studies is a body of knowledge and tools that can now be used to improve the management of non-point source discharges and the quality of fresh water. These changes to management can be made within the current legislative structure through enforcing current provisions and creating stronger land-use controls. If a discharge per- mit approach was preferred this could require additions to the Resource Management Act 1991.
1. INTRODUCTION
“The relationship between agriculture and the environment is not static. Agriculture has intensified and intensification has in turn increased pressure on the environment.”2
It has now been widely acknowledged that agricultural land uses have wide ranging adverse effects on the quality of freshwater systems. The way these effects are managed in New Zealand is currently under discussion.3 In any environmental management system the Resource Management Act will play a key role. This paper looks at what the problem is, how it is currently being managed, and what developments are occurring both here in New Zealand and overseas. Possible changes are also proposed to improve the current management.
In these discussions this paper is limited to the impact on freshwater quality of nonpoint discharges from agricultural sources. More specifically the paper focuses on the effects of the nonpoint source discharge of nitrate nitrogen. In
confining the paper in this way it is acknowledged that there are other activities that harm freshwater quality and that agriculture itself has other adverse effects on fresh water (eg through erosion and sedimentation). Throughout this paper the term “agriculture” will be used frequently. It should be noted that this term will be used to refer to the pastoral farming branch of agriculture and in particular dairy farming.
1.1 What is a Non-point Source Discharge and Why are they a Problem?
Point source discharges are those that have a readily identifiable discharge point (such as a sewer pipe). A nonpoint source (“NPS”) discharge (also known as a diffuse discharge) is where there are several sources that are more difficult to identify.4 Much of NPS discharges are caused from rain washing organic matter into waterways. It can also occur when water is leached through the soil and into the groundwater.5 Some of the sources for NPS are farm tip and silage leachate, animal wastes, surface runoff of soil, pesticides and fertilisers.6 The results of these discharges include eutrophication or increased nuisance growths in response to the increase in nutrient levels. This can lower the oxygen levels in the water reducing its lifesupporting capacity. Plant and animal species may die off, water clarity reduces, and in some cases the increased plant growths rot and create a stench. Examples of some of these effects have been seen in recent years in Lake Rotorua.7
1.2 The Role of Agriculture
Most nutrient enrichment to waterways in New Zealand occurs through NPS discharges from agriculture.8 The water pollution in New Zealand is relatively high in relation to the small size of the population,9 and it has been identified
that the main source of pressure on New Zealand’s water quality is pastoral agriculture.10 Agriculture is a main source of NPS discharges due to the change in vegetation cover across the country and the inputs of pastoral farming. The New Zealand natural habitat is one of forested vegetation covering most of the country. The forests were able to absorb the rainfall to a greater extent than the introduced grasses that now cover the country. The reduction in forest cover has led to a higher amount of runoff into our waterways. Along with the increased amount of runoff, what is contained within the runoff has changed.
Increased amounts of stock on pasture and increased inputs of fertiliser change the composition of runoff to higher nutrient levels. In particular, nitro gen is a nutrient that readily enters waterways. Excess nitrogen can lead to eutrophication of waterways, and once it enters the environment there is no effective way to remove it.11 Nutrients such as nitrogen appear naturally in the environment, and in undamaged ecosystems nutrients cycle through land based and atmospheric systems.12 In damaged ecosystems parts of the cycle are unable to cope with the inputs and the cycle breaks down. An example of this is the high concentrations of nitrogen found in animal urea. With normal nitrogen cycling urea can easily be converted into nitrates, but on the farm it is concentrated in areas (where it is excreted by the animals) and the cycle can not take it up and it is leached into the soil and also washed into waterways.13 Problems that go hand in hand with increases in nutrient growth include a lowering of the oxygen content of the water and blooms of nuisance growths (as described above). Agriculture now amounts to over 50 per cent of the land area of New Zealand and tonnes of faecal matter, nutrients (from fertilisers and pesticides), and sediment are washed into our waterways and leached through to our groundwater.14
Management of NPS discharges is a difficult issue. The nature of the dis charges, in that they can be difficult to attribute to a single source, can give rise to uncertainty when trying to stop the problem at the source. The difficulties are to be balanced against the importance of the issues. Water is an extremely valuable resource to us. We gain 60 per cent of our power generation through water and we personally use around 160 litres every day.15 NPS discharges from agriculture are a real threat to this resource. A study completed in 1993
looked at the impact of agriculture in different regions of New Zealand and found that intensively farmed areas (particularly dairying) had fresh water in a poor condition and high levels of dissolved nitrogen in the water.16 This is one study that shows dairying in particular poses a great risk to water. The amount of oxygen consumed by waste excreted by cattle is 30 times that of sheep and nine times that of humans.17 The waste generated by the 3,000 dairy herds in the Waikato region alone is comparable to the waste generated from around 5 million people.18 This means that dairy herds have a significantly greater impact on the freshwater environment than other animals.
1.3 Social and Economic Links
The impact of agriculture on fresh water is not an environmental issue in a vacuum. Agriculture contributes significantly to New Zealand’s GDP, and employs over 120,000 people.19 Agriculture is a main source of food for the nation and also the export markets. Dairying alone accounts for 20 per cent of New Zealand’s export income, and the products produced make up almost a third of internationally traded dairy products.20 There are also wider social issues relating to agriculture. Rural communities are often centred around the agricultural business, with many other businesses, schools and community related facilities reliant on farming for income, patrons and livelihood.
There is a perception among farmers that sustainable farming practice is a costly business that would affect the economic viability of their business.21 Changes to the economy of farming communities would have flowon social effects. There has been a general decline in farm returns and this makes it difficult to advocate investment in sustainable agriculture, unless such investment can also enhance the farm profitability.22
2. ENVIRONMENTAL HISTORY
Damage to freshwater systems from agriculture has been noticed in New Zealand for over half a century. In the 1950s a group of concerned Taupo
residents (the leaders of the Taupo County) noticed changes in the water qual ity of Lake Taupo and prepared a plan to ensure the quality of the lake. Within this plan the group identified that if the environment was going to continue to be treated in the same way then the lake would deteriorate. They proposed the creation of buffer reserves around the lake and the retirement of land from pasture.23 Studies have continued throughout the years. In the 1970s it was shown that agricultural runoff accounted for 88 per cent of total nitrogen in waterways.24 Ten years later it was still the major contributor at 75 per cent of the total nitrogen loading to surface water.25
In 1993 a survey of waterways in New Zealand found that in sparsely developed areas the water condition was good, but that lowland waterways in agriculturally developed catchments are in poor condition. These poor conditions were due to dissolved nutrients (nitrogen and phosphate), and many of the lowland rivers were found to be unsuitable for contact recreation.26 The 1997 State of New Zealand’s environment report27 identified definitively that the main source of pressure on our freshwater resources is pastoral agriculture. This is due to the removal of forest on hill country and in riparian margins, and the increase in inputs from agriculture.28
The intensification of pastoral farming, and in particular dairy farming, has led the way in the demise of the water quality in lowland areas. In the 23 years from 1974 to 1997 the number of dairy cows increased 47 per cent, the average herd size from 112 to 208, and the average cows per hectare from less than 2 to 2.5.29 Along with these increases there have also been increases in the amount of external inputs into farming systems. Across all farming sectors the amount of nitrogen fertiliser applied to the land has soared.30 Nitrogen fertiliser application has increased more than threefold from 1994 to 2000,31 and more than 770,000 tonnes of nitrogen fertiliser was applied in the year ending in June 2002.32 Dairy farmers have generally moved away from pasturebased systems
and are now heavily dependent on these external inputs.33 Most dairy farmers apply from 25–100 kg of nitrogen fertiliser per hectare per year, but some apply up to 200 kg/ha/year.34 In the fertiliser industry it is commonly believed that unless there is heavy rainfall or irrigation following the application of nitrogen there is little leaching or runoff. However, it has been shown by research that nitrogen applied through fertiliser enters the system through animal urine and contributes to leaching and runoff regardless of whether there has been rainfall or irrigation.35 High applications of nitrogen fertiliser have been shown to be economically and environmentally unsustainable.36
One problem that has been discovered with nitrogen NPS discharges is that there is a lag period over when the land use changes and when the effects are seen in water bodies. This is because the nitrogen moves through the soil, into groundwater, and then out into the water bodies. Due to this long process we are currently seeing the effects on the water of the land changes that occurred in the 1930s.37 The effects of the large amount of intensification of land use over the past 20 years are yet to be seen.
3. LEGAL HISTORY
In New Zealand the water is not owned by anyone, but rights to the use of water can be permitted.38 The first ever rules for the management of water were developed by Maori, whose focus was on the prevention of pollution of the spiritual and physical elements of the water.39 At common law water rights existed for riparian owners; however, the extent of their rights was dependent on the purpose for which that person wished to take or use water.40 Early on there was a differentiation between those uses that were classed as “normal”, which included taking water for domestic purposes (cleaning, washing, feeding) and supplying water for the ordinary number of cattle on the land, and those uses classed as “extraordinary” such as irrigation and manufacturing.41 Also
identified in early cases was the principle that any use of water (even those uses included in the “normal” class) held an obligation on the user to restore the water which they take undiminished and unaltered in character.42
In the early 1940s there was an increase in the public awareness of flood and erosion control.43 This led to the first piece of legislation relating to the control of water, the Soil Conservation and Rivers Control Act 1941. This Act created a system of catchment authorities to manage flooding and reduce soil erosion. The catchment authorities worked with private landowners throughout the catchment,44 and protected most communities from large flooding events. (In the 1989 council reforms the catchment authorities joined with the united councils to create the regional councils.)45 In the 1950s the quality of fresh water, and concerns over pollution, became larger public issues. The government was also aware of problems in water pollution caused from land development.46 The Waters Pollution Act 1953 was passed to help reduce the significant pollution that had been identified.47 It was thought that this Act was unsophisticated, and in 1967 the Water and Soil Conservation Act (“WSCA”) was introduced. This was part of the widening focus relating to concerns over water quality at the time.48 The WSCA extinguished rights to water at common law and created a regulatory scheme for the management and control of water. Section 21 of the Act specifically dealt with the extinguishment of any common law rights and outlined that statutory rights were to take their place.49 The Act saw the introduction of water quality as a consideration when management of water was to take place. In this way the role of the catchment authorities created under the 1941 Act was extended to cover both the quantity and the quality of the water.50 Section 21(3) of the Act created the authority to grant a right to discharge waste into natural water. There were no specific criteria within the section; however, it was interpreted that where there was any detrimental effect of the discharge the rights of the discharger were to be balanced against the public interest in protecting the water from the detrimental effect and preserving the water for other uses.51 The Act also introduced a duty on the catchment authorities to maintain a minimum standard. This meant that when the authorities were
considering applications relating to discharges the focus was on conditions that were required to preserve that classification, and not on the difficulties that the discharger might face in meeting those conditions.52 In contrast to this view of the WSCA is one that the Act was more focused towards the allocation of water, and that on the discharge side multiple discharges were consented to without a focus on what the cumulative effects could be.53 In 1981 the Act was amended to introduce Water Conservation Orders (“WCOs”). This was done to address a failure to protect important water bodies.54 The WCOs protected outstanding waterways and provided for catchmentwide planning for selected outstanding waterways.55
One problem with the WSCA was the division between the water manage ment and the land management. Land management at the time was done by local bodies through the Town and Country Planning Act 1977. This separation made some aspects of the water management more difficult and fragmented.
4. CURRENT POSITION
In 1988 the government began a review of statutes that related to different planning rights and other environmental aspects. From this review it was pro posed that a single integrated statute should replace the current management system which spanned five different Acts.56 The Resource Management Bill was introduced to the house in 1989; after detailed scrutiny of the Bill it was passed into force in 1991. Currently water resources are managed under the Resource Management Act 1991 (“RMA”). The one aspect of the previous legislation scheme that remains is the WCO, which is found in Part 9 of the RMA.
Section 5 of the RMA outlines that the overall purpose of the Act is the promotion of sustainable management of natural and physical resources. The management of water resources under the Act is done by central, regional and local government. Central government can prepare national policy statements, prepare national water quality guidelines, set environmental standards57 and regulations, and issue Water Conservation Orders to protect outstanding water bodies.58 Currently there are no national policy statements, guidelines
or standards that relate to water quality. If central government were to issue environmental standards in relation to water quality this would have the effect of setting minimal standards, which could then be further regulated under a regional plan, or within a resource consent.59 As there are no national provisions, the use of water is managed by regional councils. Section 30 of the RMA outlines that regional councils have responsibility for the management of natural and physical resources in their region. This includes management of land uses that might affect the water quality of the region, and the management of discharges of contaminants.60 Regional plans created by the councils state the ways in which water and land (among other resources) can be used in the region. Any use not stated in the regional plan is restricted by ss 13, 14 and 15 of the RMA. Any use that is described in those sections but not outlined in the regional plan would require a resource consent.
Section 15 relates to discharges and states that no person may discharge a contaminant into water 61 or onto land in circumstances which may result in that contaminant entering water,62 unless the discharge is expressly allowed by a rule in a regional plan, a resource consent, or regulations. This provision has worked well to manage the effects of point source discharges and over the past 10 years many point source problems have been removed.63 There has been little effort made to use this section to manage the effects of NPS discharges.
Section 30 also requires regional councils to achieve integrated management of the resources of the region64 and in completing their plans the councils have to have regard for Part 2 of the Act. Part 2 includes the purpose of sustainable management outlined in s 5, along with the matters of national importance outlined in s 6 and the other matters to be considered in s 7. Of the matters of national importance that need to be provided for the “preservation of the natural character of wetlands, lakes and rivers and their margins”65 and “the protection of indigenous species and habitats”,66 both relate to water quality.
Section 69 outlines the rules relating to water quality. This is linked to Schedule 3 which lists different water classifications that can be used by councils to appropriately class the water throughout the region for different uses and standards. This section stipulates that the classes in Schedule 3 are to operate as a minimum standard and that councils may adopt more stringent
— insight and inspiration (New Zealand Law Society, New Zealand, August 2005) 26.
62 Ibid, s 15(1)(b).
rules in order to achieve a higher standard. Also included in this section is provision that the councils may not allow for a regional plan to be proposed if it would result in a reduction in water quality in the region.67
Section 70 relates to regional rules about discharges. This section requires that before a regional council allows a discharge to be a permitted activity they must be satisfied that the discharge does not cause any significant adverse effect on aquatic life68 (among other effects).
In relation to discharges the definition of contaminant under the RMA is wider than that used in the WSCA.69 This means that it could be possible to manage NPS discharges using this section. While it may be possible, based on interpretation, only obvious and overt cases of water contamination have been managed through this section and the enforcement aspects of the Act.70 As outlined above, it is also possible for regional councils to manage NPS discharges through their regional plans, through the regulatory control of land uses. This could involve restricting a land use, such as pastoral farming, occurring at all in an area of a region, or controlling an activity in an area, such as the application of fertiliser.
In order to discuss the current state of management under the RMA it is necessary to understand different regional approaches. A survey of some of the current regional plans and their management of NPS discharges, particularly in relation to farmingrelated discharge of nitrogen, revealed that there is a spectrum of management approaches. The findings of this survey are outlined below.
4.1 Regional Plans — the Management of NPS Discharges
The Auckland Regional Council has some regulation in their plans through the application of the fertiliser practice code. There is some sense of a reluctance to regulate under the current system in the policy statement for the region. This may point to a feeling that the council is unable to adequately manage NPS discharges under the current system and with current knowledge.
Under the proposed Auckland Regional Plan: Air, Land and Water, Part 5 controls the discharges to land and water and land management. Within this section it is outlined that fertiliser use should be controlled for good landuse
67 Ibid, s 69(3).
68 Ibid, s 70(1)(g).
practice.71 Rule 5.5.38 outlines that the application of fertiliser into or onto land in circumstances where it may enter water is a permitted activity, subject to compliance with the fertiliser practice code. Rule 5.5.39 covers the application of fertiliser which is not permitted under rule 5.5.38 and this is a restricted discretionary activity. This rule states the limits of the discretion and the condition that applications under this rule will be considered without notification or the need to obtain approval from affected parties. Other related sections in the plan include the promotion of a holistic approach to good farming practices, the facilitation of training in the use of nutrient budgets,72 and development of an Integrated Catchment Management Plan.73
The Auckland Regional Farm Dairy Discharges Plan became operative in January 1999. This plan discusses the problem that in the past the council has not required farmers to apply for consent for many of their discharges. This led to a situation where many inappropriate discharges were taking place. The plan acknowledges that without regulation there will be unacceptable environmental results.74 The rules relating to farm dairy discharges are outlined in section
6.1. This makes the discharge of waste to land permitted, subject to certain conditions in 6.2.1.1. This condition relates to the application rate of nitrogen from the combination of dairy sludge, washwater and fertiliser. It states that the rate of application should not exceed 150 kg of nitrogen per hectare per year (150 kgN/ha/year) and 30 kg of nitrogen per hectare per day, on areas of sand or volcanic basalt based soils, and a rate of 200 kgN/ha/year and 50 kgN/ha/day on low permeability soils.
The Auckland Regional Policy Statement became operative in January 1999. Within this policy it is stated that diffuse runoff will be controlled through the “best practicable option” (“BPO”) approach. The BPO approach relates to discharges and means the best method of preventing or minimising the adverse effects on the environment. It is more flexible than stating one method or approach and takes into account financial implications and the current state of technical knowledge on the matter. In this plan the BPO is said to include cleaner production, waste minimisation and an appropriate level of monitoring and surveillance. It is also believed that education will play a major role in achieving the stated objectives. Of interest are the plans for managing NPS discharges. National and international methods for managing NPS discharges will be observed and the ARC will review its methods of management as appropriate.75 It is specifically stated that point source discharges will continue
to be managed through the RMA. There is no mention of managing NPS discharges in the same way and from this it may be thought that the council has excluded the possibility of managing NPS discharges under the current RMA discharge provisions.
Throughout the plans and documents of Environment Waikato there is a strong emphasis on a voluntary and nonregulatory approach to NPS discharges. However, the council does place a restriction of completing a nutrient budget for applications over 60 kgN/ha/year. This is quite a low rate and so may mean that most farms are required to produce nutrient budgets. The Taupo variation created by the council is a signal of the extent of changes necessary for some areas to become sustainable. The landuse changes indicated in the variation are at the opposite end of the spectrum from the nonregulatory, voluntary approach advocated by the council generally. The variation is based mainly on landuse restrictions.
The Waikato Regional Plan is still in the proposed stage and has been updated to February 2002. Within the plan it is acknowledged that NPS discharges have a significant effect on water quality. Chapter 3.9 focuses on NPS discharges and outlines that achieving a reduction in the effects of NPS discharges will be done through nonregulatory methods and permitted activity rules. Throughout the chapter it is emphasised that a nonregulatory approach is to be taken to tackle the problem of NPS discharges. This is because the ability to regulate NPS discharges is said to be complex and compliance too difficult to monitor and enforce. The nonregulatory methods to be used include the promotion of good practice, environmental education, working with territorial authorities, economic incentives, streamside enhancement funds, riskbased investigations, and nutrient research.76 Rule 3.9.4.11 makes the application of fertiliser a permitted rule. Inside the rule a condition of fertiliser application being a permitted activity is that a nutrient budget model must be used to plan the application of nitrogen where the application is greater than 60 kgN/ha/ year. The model must be approved by the council and be designed to predict leaching rates. This section of the rule is currently subject to a reference of the Environment Court. It is specifically stated in the plan that Environment Waikato will apply for enforcement orders and issue abatement notices or use other enforcement methods if there are significant adverse effects on the environment caused by discharges.77
Environment Waikato has created a variation in the Regional Plan specif ically to protect Lake Taupo. This variation relates to managing the land use and the nutrient discharges around the lake. “Protecting Lake Taupo” is a joint initiative between Environment Waikato, the Taupo District Council, the Ministry for the Environment, tribal groups, local interest groups, and scientific and research organisations. The estimated cost to implement the whole plan is
83.5 million dollars. This cost does not include the loss to private landowners for lost opportunity and nitrogen restrictions. Lake Taupo is a nationally significant lake and it is thought that this cost is justified to protect the amenity value of the lake and the local economy that is reliant on its quality. Monitoring of the lake has shown a decline in quality over the years. The worse the quality gets the harder it will be to restore it. The variation acknowledges the cause of this decline is the changing land use and the intensification of agriculture in the area. It is estimated that to maintain the water quality at the current levels the amount of nitrogen leaching into the lake must be reduced by 20 per cent. In order to achieve this reduction the council aims to upgrade community sewerage systems, change farm management practices and change rural land use. These changes will inevitably mean a change in business and social operations in the area. To overcome some of the adverse reaction to these changes the council has come up with some ideas for the transition. These include the establishment of a fund (from local, regional and central government) to convert pastoral land into lownitrogen land uses, research and development into lownitrogen farming practices, exploring lownitrogen landuse options and using the Regional Plan rules to restrict the current levels of nitrogen being lost from land in the catchment. One way to implement the 20 per cent nitrogen reduction would be to place a nitrogen cap on discharges through the Regional Plan (similar to that done by Environment Bay of Plenty). Even with such a cap it is estimated that 13,500 ha of land would need to be retired from pastoral land use within the catchment. Based on current knowledge, this change in land use would signal a large reduction in income from the land. The public fund would be used to ameliorate the loss either through purchases, joint ventures, land “swaps” or a nitrogen credit trading system.
One suggestion to help with the implementation of the variation and the ongoing management of the water quality of the lake is to set up a landowner based land care group. The landowner group could make codes of practice, assist regulatory authorities, and liaise with the public trust to help reduce nitrogen discharges.
One of the methods of implementation for the landuse controls will be that existing farming activities will be allowed but they will require a resource consent. This will require the farms to be benchmarked with a computer model called Overseer to come to a nutrient budget amount. The property must then adhere to this amount.
Overall, lownitrogenleaching farming activities and nitrogenleaching nonfarming activities will be permitted activities, nitrogenleaching farming activities and nitrogen offsetting will be controlled activities, and land use that doesn’t meet any of the rules will be noncomplying.78
There is a general aversion to regulation shown by the Bay of Plenty Regional Land Management Plan; however, the new Regional Land and Water Plan shows the council incorporating a range of tools to protect atrisk lakes within the region. This plan uses mainly landuse controls to regulate the effects of NPS discharges and places the region at the “highly managed” end of the spectrum. The Regional Land Management Plan became operative in February 2002.
Within this plan water quality and quantity are discussed in section 2.3.Within this section point source and NPS discharges are discussed, with the example of fertiliser given as a NPS discharge. It is stated that this type of discharge is not amenable to control through consent.
The Regional Water and Land Plan was proposed in January 2002. Section
9.4 relates to the discharges of nitrogen or phosphorus from landuse and discharge activities in the Rotorua Lakes catchments. This section of the plan is effectively operative.79 In this section rules 11B, 11C, 11D and 11E apply to rural land and a nutrient budget is to be established that landowners can then not breach. This effectively sets a cap on the level of nutrients from rural land uses within each of the targeted lake catchments. Rule 9.4.1 covers the increase in nitrogen and phosphorus exports from NPS discharges in the catchments of Rotorua, Rotoiti, Okareka, Rotoehu and Okaro. Smallscale activities and those that are connected to a reticulated wastewater system are permitted. Where an increase in nitrogen is offset on land within the same catchment it is a controlled activity. Where a discharge occurs that does not come under rules 11, 11A, 11B, 11C, 11D and 11E, then it is a discretionary activity. In other lakes within the Bay of Plenty region landuse changes are permitted, unless the changes increase the nitrogen or phosphorus discharge from the land, then the landuse change is discretionary.80 It is signalled within the plan that there may be changes to this section to provide greater protection for these lakes at a later date.81 In all other areas the application of fertiliser onto land is a permitted activity under rule 26. There are conditions for application, one of these being that appli cation can only occur by hand for planting in a riparian management zone.82
ManawatuWanganui Council operates quite differently as it operates on a catchmentbycatchment basis and makes use of the water classifications in Schedule 3 of the RMA. There is also a focus on land capabilities in the Whanganui catchment plan. This approach is encouraging, as land use and water quality are inextricably linked. Mitigation measures can only go so far in relation to managing the effects of agriculture and in some cases it may be that the particular area cannot support agriculture. This is a strong stance for the regional council to take; however, the support that it offers to make changes seems limited. This may be due to limited resources or simply only setting achievable goals. At the same time as this strong standpoint is being taken the council also advocates a voluntary approach in its Land and Water Plan. There are threats that this approach will turn more regulatory in nature if no action has been taken by 2008.
The Manawatu Catchment Water Quality Plan became operative in October 1998. This plan relates only to the Manawatu catchment and all rivers in the catchment have been classified for contact recreation (as per the third schedule of the RMA which outlines water quality classes. Class 5 being CR water — water managed for contact recreation). The management of NPS discharges under the plan is done through a mix of regulatory and nonregulatory methods. Some of the nonregulatory methods include the promotion of planting riparian margins and the promotion of discharge standards. Chapter 6 relates to Riparian Management. It acknowledges that agriculture has a significant adverse effect on water quality. It also implies that this is greatly to do with increased rain flow and that contamination only occurs when rainfall intensity exceeds infiltration rate. This chapter then goes on to advocate the benefits of riparian margins. It states that riparian management is the most effective method known to mitigate and avoid adverse effects which can arise from nonpoint source discharges. The plan acknowledges that to tackle NPS discharges an integrated management approach is required.
The Whanganui Catchment Management Plan became operative in Decem ber 1997 and was updated November 2003. This plan focuses on the capability of land within the catchment in order to address water quality issues. In the plan it is found that 95,808 ha of grazing land requires planting with spaced trees, 71,059 ha of grazing land needs to be converted to forestry, and 13,313 ha of grazing land needs to be retired. The estimated cost of the planting that is required is 16 million dollars. Current planting rates are insufficient and it would take 300 years to plant the appropriate amount of trees at the current rate. The provisions of this action plan will be implemented through landowners accepting responsibility, considering the productive capability of their land, managing land prone to erosion, maintaining grass cover, retaining indigenous
vegetation, and considering local monitoring of water. It is recommended that an environmental plan or a farm plan be prepared. In the plan the regional council will provide information, provide environmental grant assistance for approved soil conservation projects, and seek to reduce the amount of land that is managed outside of its inherent capability by 3,000 ha as a direct result of the implementation of environmental plans and environmental grant assistance. They will also deliver environmental education programmes, promote public awareness of the strategy and services and produce a report every five years. They will promote the prioritisation of erosion control and riparian management in atrisk areas and it is recommended also that the community should consider joining a land care action group.
The Land and Riparian Management Strategy became operative in July 1999. This strategy is linked to the Land and Water Plan and looks at the aspects that are unable to be addressed through regulatory means. It takes the approach that a voluntary scheme is better than a regulatory scheme because there is no interference with the operation of the free market, there are marketing opportunities for primary produce that may be created, and all actions are voluntary and positively focused. The council plans to assist with information and advice, promotion of the fertiliser practice code, undertake research into the effect of fertilisers on waterways and also a project to map NPS discharges in the region, and increase public awareness.
The Land and Water Plan became operative in September 2003. Chapter 2 of the plan deals with discharges to land. Policy 3 restricts the nitrogen loading in wastewater applied to land to 150 kgN/ha/year. This figure does not include any nitrogen to be applied via fertiliser. Fertiliser application is to be managed through the promotion of the fertiliser practice code. Rule 7 details that the application of fertiliser onto land is a permitted activity. In making it so the council does not deny potential adverse effects, but feels that regulation is not the most effective way to avoid or mitigate the effects of this activity. In areas where fertiliser could cause adverse effects the council will provide people with information. The council will encourage compliance with the code of practice. This rule will be reviewed in five years and a regulatory scheme may be put into place if this rule is not working. One of the reasons that the council believes that nonregulatory methods of management will be successful is because they believe that people will be driven by the economics of fertiliser application
— when it is not making sense in cost terms they will not apply it.
Another section of the plan that relates to NPS discharges is Chapter 6 which is land management. This again emphasises the nonregulatory methods and that riparian management is to be preferred.
The Hawke’s Bay Regional Council takes a mainly voluntary approach to the management of NPS discharges. They do require compliance with the fertiliser practice code, but then stipulate a level of nitrogen loading that is lower than the maximum that is stated in the code.
The Regional Resource Management Plan was proposed in January 2000 and has been updated to February 2005. In this plan section 3.10 discusses surface water resources of the region. The council considers that NPS discharges have a greater effect than point source discharges on the water quality in the region. In this region even though the impacts from agricultural land use are not as great as in other regions of the country, there are still problems with nutrient runoff in the middle and lower reaches of the intensively farmed catchments of the region. The council’s policy focuses mainly on voluntary methods of addressing NPS discharges and believes that these nonregulatory methods are the principal means of addressing adverse effects on waterways. The main nonregulatory methods are research and investigation, economic instruments (financial incentives to plant riparian margins), and education and coordination. If there is no improvement in the state of waterways after these methods have been introduced (or if there is a decline), the council will then look at regula tion as a method to control these activities. Rule 11 states that the discharge of contaminants onto land arising from use of fertiliser is a permitted activity, a condition of this being compliance with the fertiliser code of practice. Rule 47 makes the discharge of contaminants to surface water a permitted activity except as regulated by other rules in the plan. And rule 49 makes the discharge of a contaminant to land that may then enter water a permitted activity. There are conditions placed on such discharges, and these include that the rate of discharge should not cause the concentration of nitrogen to exceed 0.1 mg/litre after reasonable mixing.83
The Water Resources Plan is currently operative and came into force in December 2000. When the Resource Management Plan discussed above comes into force it will supersede this plan. This plan acknowledges that the application of fertiliser can have an adverse effect on water quality, either through direct runoff and discharge into water or through leaching and runoff from applica tions to land. Rule 7.3 deals with the discharge of fertiliser. This rule makes the discharge of fertiliser into water or onto land in circumstances which may result in the fertiliser entering water a permitted activity, subject to the condition that it does not have a significant adverse effect on the environment. In making such a rule the council outlines that the main reason for high amounts of nitrogen leaching relates to stocking rates and the potential of leaching from urine is very
high. The maximum loading of nitrogen is recommended at 150 kgN/ha/year, against a recommendation from literature of 100 kgN/ha/year. This elevated level was chosen by the council as the lower figure was a significant decrease from current use and there is a need for stages of progress.
The Taranaki Regional Council approach to NPS discharges is mainly voluntary in nature and has a large emphasis on riparian management. The application of fertiliser is permitted and the conditions placed on application are not stringent.
The Regional Fresh Water Plan became operative in October 2001. Issue 6.2 in the plan deals with the adverse effect on water quality from NPS discharges. It is said that NPS discharges contribute significantly to the progressive decline in water quality from the upper to lower catchment areas. The main issues identified as contributing to NPS discharges are landuse practices and large losses in the amount of riparian vegetation. The discharge of fertiliser onto land is a permitted activity under rule 31. The only conditions on this being that the application should be done at suitable times and should not occur directly above a lake, river or wetland. Nonregulatory methods of management include the promotion of sustainable landmanagement plans, promotion of appropriate planting, consideration of economic instruments, and the preparation of guide lines on riparian management. A particularly successful aspect of the Taranaki region’s management of NPS discharges is the Taranaki free tree trust. This has seen a vast increase in the amount of vegetation planted in riparian areas and has helped involve key stakeholders together.
The Canterbury region is managed mainly on a voluntary basis, with regulation threatened if no voluntary measures are taken. Where there is a small amount of regulation, it is based on landuse restraints and not discharge provisions.
The Natural Resources Regional Plan was proposed in June 2000. Chapter 4 relates to water quality and this section of the plan was part of variation one which was adopted as operative in July 2004. Policy WQL4 covers NPS dis charges to surface water. Inside the policy the actions include ensuring that the discharge of fertiliser is done in ways that will minimise contamination of water, and encouraging and assisting local communities to reduce their impacts on the environment. Where communities do not undertake action within two years of receiving a written request to do so by the council the introduction of additional landuse controls will then be considered. In order to show a commitment to action the community will need to have either a) 80 per cent of
landowners within the area agreed to undertake work within a specified time frame, or b) an integrated land and water care programme which incorporates an implementation timetable.84 The methods that will be used to implement these stated policies are mainly voluntary, such as informing communities, formulating individual property plans, and creating water care programmes.
The rules involved in the plan include WQL17 which makes the discharge of fertiliser onto production land where it may enter into a river or wetland a permitted activity. Rule WQL18 makes the use of land that may result in the dis charge of nitrate nitrogen into groundwater in an unconfined or semiconfined aquifer a permitted activity, subject to conditions. The conditions require the calculation of the concentration of nitrate nitrogen in the soil drainage water, and where the average annual concentration of nitrate nitrogen exceeds the stated amounts best management practices should be implemented to reduce the loss of nitrate nitrogen to the soil.85 Land use that is likely to exceed the conditions stated in this rule include pasture grazing with a stocking rate greater than two dairy cows per hectare.86 These restrictions are being placed by the council on the land use as opposed to using the discharge provisions in the RMA.
This survey shows that there is a vast range of management techniques cur rently under way with councils throughout the country. Some councils, such as Taranaki and Canterbury, are currently emphasising a voluntary approach. Councils such as Environment Waikato and Environment Bay of Plenty are taking a more stringent regulatory approach. This is perhaps reflective of the prominent waterways that occur in those areas, the effect of NPS discharges that are currently being experienced in those waterways, and the public awareness of the issues in those areas. It can also be seen that most councils who are instigating regulation are choosing to do so through landuse controls as opposed to discharge controls.
Many of the councils refer to the Fertiliser Practice Code in their plans and regulations. This is a code that is funded by the New Zealand Fertiliser Manufacturers’ Research Association and developed through consultation with regional councils, Federated Farmers, government agencies, environmental organisations, farm advisers and users of fertiliser. The code was developed as a response to requirements under the RMA and states that if fertiliser is used in compliance with the code then it will be a permitted activity under the RMA.87 The code regards sustainability as a balancing act, stating that sustainable
management of fertiliser use will mean that it will not have an adverse effect on the environment and will result in economically viable levels of production.88
The fertiliser use considerations listed in the code include those of nutrient requirements. This information relates to applications made based on present and future needs, as calculated through nutrient budgets.89 A nutrient budget involves the balancing of the nutrient inputs of the farm (such as fertiliser, effluent application, and clover fixation) against the nutrient outputs of the farm (such as the products from the farm, eg wool, meat or milk, the leaching and runoff to waterways, and the losses to the atmosphere). This balancing is done in a similar manner to a monetary budget and allows analysis of whether the inputs are being used effectively or whether there is avoidable leaching occurring.90 The requirement in the fertiliser code would seem to stipulate that in order to comply with the code a nutrient budget is required. The code goes on to state that any adverse effects arising from the appropriate application of fertiliser will be low and NPS. This gives the impression that NPS discharges have a low environmental effect, yet as previously stated it is recognised by both central and local government that this is not the case.
The fact sheets that accompany the code of practice include sheets on nitro gen leaching to groundwater and freshwater contamination through runoff. Both of these are types of NPS discharge. In relation to groundwater contamination the code recommends that if adverse environmental effects are evident then applications of nitrogen of 200 kgN/ha/year and above should be reevaluated. This level is higher than the maximum level of 100 kgN/ha/year recommended by most councils, and much higher than the 60 kgN/ha/year set by Environment Waikato for their permitted activity requirements.
What can be taken from the survey of regional plans and the fertiliser code is that although there is a strong reluctance to regulate there is some regulation in most regions. The fertiliser code could be viewed as comparatively lenient yet there remains the requirement to complete a nutrient budget. Most of the regional plans containing this regulation, and the fertiliser code, are relatively new. A lack of case law relating to NPS discharges and the enforcement of this regulation points to a reluctance on behalf of councils to enforce the requirements that they currently have. This may be a result of most councils being torn between advocating a voluntary approach, and at the same time recognising a requirement of regulation to effect changes.
5. CASE LAW
Currently there is very little case law in New Zealand that can be related to NPS discharges. This may be because any regulation relating to NPS discharges has only recently been introduced by some councils, and there has been little enforcement of existing provisions. Some cases have dealt with principles that may arise in upcoming cases relating to NPS discharges. In Woolley v Marlborough District Council 91 it was argued that effluent could be lawfully discharged to water, upon the basis of existing use rights. It was found that no such right existed. By not adapting to changing environmental standards the discharge was unlawful.
Environmental effects and the integrity of regional plans were upheld in an enforcement application by the Southland Regional Council against a farmer who allowed stock onto the banks of a river that is a tributary of the Maroroa River. The activity was not consented to and did not fit within any category of permitted activities.92
Discharges or damage that occur of this nature have been held to be strict liability offences. When an irrigator was left by a staff member too close to a gully which led into a rural stream, this was held to be a discharge that did not comply and the farmer was held liable.93
6. IMPORTANT PRINCIPLES
As developments in this matter are discussed two principles become more important. These principles are the “polluter pays principle” and the “pre cautionary principle”.
The polluter pays principle can be thought of as an economic measure of allocating costs where they truly lie. If all costs of a process that produces pollu tion are to be internalised then the cost of the pollution needs to be paid for by the producer. The cost is not internalised as such when the community bears the cost of the pollution.94 The principle was first adopted at an international level in 1972 in an OECD Council Recommendation.95 In 1974 the OECD described the principle as a “fundamental principle” to be applied. The principle has been incorporated into Agenda 21 through principle 16 where the promotion of
internalisation of environmental costs by nations is advocated.96 The application of this principle now applies not only to persistent pollution but accidental incidents as well.97
The precautionary principle first arose over discussions on the environ mental status of the North Sea. Although there had been regulations set by local councils for landbased pollution and ocean dumping there continued to be declines in the quality of the North Sea. The regulations made were based on the assumption that although the assimilative capacity of the sea for waste was not finite, actions were acceptable unless there was evidence that they caused harm. Scientific evidence is somewhat hard to gather in this regard and it is thought that once such evidence of harm exists the point of assimilative capacity has already been exceeded.98 The precautionary approach changes this way of thinking by requiring that once environmental damage is threatened there should be action taken to change the cause of the damage, even though the scientific evidence may not be certain as to the effect of the particular activ ities. The principle can also be thought of as a change to the burden of proof. Instead of having to prove that an action causes damage the polluter has to prove that it does not. Overall the principle means that when there is doubt over the effects on the environment preventative action should be taken. Science does not always provide the information or data required to make a decision in time enough to prevent any adverse effect on the environment.
The RMA incorporates a decisionmaking approach similar to the pre cautionary principle through s 32(4)(b). This section was inserted by s 11 of the Resource Management Amendment Act 2003 and requires that when a local authority or a Minister is making a decision under the Act the evaluation must take into account “the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of the policies, rules or other methods”.99
7. NEW ZEALAND DEVELOPMENTS
The effects of agriculture, and in particular NPS discharges, have been well researched and discussed within New Zealand. As the effects of NPS discharges become more and more evident there are larger projects started on this topic. This paper will look at some of the different studies that have been undertaken recently in New Zealand and the different aspects of the topic that they covered.
In 1997 a final report was made to the Ministry for the Environment on the Selwyn Stewardship Monitoring Project.100 This project was designed to come up with a set of indicators which would allow farmers to measure the change that resulted from changes in their landuse practices.101 The study covered arable farms, sheep, beef, dairy and organic farms, and one of the aspects that was examined during the study was nutrient audits. Results from monitoring during the study showed that nitrate concentrations in most shallow aquifers exceeded the level that is safe for human consumption.102 To help farmers monitor their energy inputs and outputs (which would include fertiliser and nitrogen losses), a spreadsheet was developed by Crop and Food Research. This helped the farmers to maintain or improve the balance of inputs and outputs by reducing one or more of the parameters. Overall the project was held to be a success as it joined together many stakeholder groups (universities, govern ment bodies, schools, councils, and private landowners) who were able to share knowledge on the issues. It was also a success because it increased farmers’ awareness and knowledge of the issues and gave them data that was relevant, easily monitored, cost effective, and defensible.103 A point made during this study is that the farmers feel that the RMA is a threat to the industry. The data provided by this study creates a better understanding of the sustainability of current practices and how they fit within the RMA.
Also in 1997 the State of New Zealand’s Environment report came out. As mentioned previously this report identified that the greatest source of pressure on our fresh water was the removal of hill and riparian forests for pastoral agriculture.104 The main source of pressure that continues on fresh water is pastoral agriculture, and NPS sources of pollution are still a major problem.105 Flowing on from the State of New Zealand’s Environment report the New Zealand Biodiversity Strategy was released in 2000. In this report the first action point in relation to the protection and sustainable management of freshwater ecosystems is to ensure that current statutes adequately provide for the protection of fresh water from adverse effects of activities on land and in water. One way in which this is to be achieved is through the provision of guidance with a national policy statement on biodiversity and the National Agenda for Sustainable Water Management (“NASWM”) and the Sustainable Land Management Strategy.
“Making Every Drop Count” was the title of the report for the NASWM.
This report identified a need to halt the degradation of freshwater quality and aimed to do so by 2005, reversing the trend of decline by 2010.106 Other needs were to make a list of national icons so that they could be protected, and to effectively monitor for all freshwater systems. One of the main points in the report is that in order to achieve freshwater sustainability, changes in land user behaviour would be required in some areas. However, instead of taking any action on that point, the report concludes that there is a need for existing information to be collated and presented in a more accessible form for land users, and that more work needs to be done to establish which approach would be best to tackle the issue.107
In 2003 the Dairying and Clean Streams Accord was developed by Fonterra, Environment Waikato (representing regional councils), the Ministry of Agriculture and Forestry, and the Ministry for the Environment. The accord is a statement of intent to promote sustainable farming in New Zealand, with the focus of reducing the effects of dairying on the freshwater systems of New Zealand. Actions under the accord include the development of a dairy liaison group, the industry adoption of environmental management systems, a move to consistency in regional plans, and a communication plan.108 Also included in the accord are performance targets. For example, there is a target that dairy cattle are excluded from streams — 50 per cent by 2007 and 90 per cent by 2012. In a snapshot of progress report done by the Ministry for the Environment for the 2003/2004 period, these targets were examined.109 Four out of the five percentagebased targets were met. The target that was not met related to nutrient management. The accord target was to have 100 per cent of farms with systems to manage nutrient inputs and outputs. Only 17 per cent of farms had such systems. This has led to a focus on this aspect of the accord.
A full and detailed report on the issues surrounding agriculture and its effects on the environment was released by the Parliamentary Commissioner for the Environment in October 2004. “Growing for good” looks at the stresses on farmers currently and the demands made to increase intensity of farming. Dairy farming has become more intensive through an increase of external inputs (such as nitrogen fertiliser), and increasing intensity through the number of stock per hectare of land. In comparison, sheep and beef farming have increased intensity through an increase in the size of animals, not numbers per hectare. A common theme across all sectors of agriculture has been a heavy increase in the
106 See Ministry for the Environment, supra note 43. 107 Ibid, 31.
amount of nitrogen fertiliser applied to all systems.110 These increases are due to pressures faced by farmers to maintain their position as lowcost producers. The report outlines that remedy and mitigation approaches simply aim to reduce the impacts of practices that themselves are undesirable. A more fundamental change is required, understanding the drivers of the current system and then how it can be changed to deliver better environmental, social, and economic results.111
In making these recommendations and somewhat bold statements the Commissioner also shows a robust understanding of the economic systems that farmers are operating within. The report goes into some detail about the world markets. New Zealand farmers are affected by the world market due to the high amount of product that is exported. New Zealand farmers are almost totally exposed to the world market while other farmers (such as those in the European Union) are heavily subsidised.112 The European Union has the Common Agricultural Policy (“CAP”) which has subsidies that are linked to environmental standards. These are becoming an important part of payments that are made to farmers.113 The runon problem from subsidies is that consumers currently display little notion of who produced their food and in what manner. The people buying the end product do not see the environmental impact of their purchase. Consumers demand good products at cheap prices, driving an increase in intensity of farming. The flip side of this is that if farm ing systems continue to degrade the natural environment the longterm viability of farming will be threatened.114 Recommendations for fundamental change include a broad systematic approach, improved access to information, increased resources and technology, institutional support, development of strategies, and investment into the redesign.115 Action needs to be taken at all levels — on the farm, regionally, nationally, and internationally.116 Nutrient management is singled out as requiring immediate focus. It is said that in the short term New Zealand needs to move rapidly to a situation where all farmers are using nutrient management plans and tools that balance nutrient inputs to minimise outputs. Voluntary approaches to date are identified as insufficient and regulation will probably be required.117
Also started in 2004 was the Water Programme of Action. This project is coordinated by the Ministry for the Environment and the Ministry of Agriculture
115 Ibid, 178.
116 Ibid, 179.
117 Ibid, 185.
and Fisheries.118 Technical papers done as a background to the project and as a basis for discussions on the topic looked at the effects of rural land use on water quality119 and property rights in water quality.120 The paper on rural land use identified the main reason of impact was due to the lack of effective action in regards to the management of NPS discharges in some catchments.121 It is pointed out that central government has not specified any outcomes for freshwater or land management approaches, and regional councils are still coming to terms with it. At this stage many councils have chosen a voluntary and nonregulatory approach to management of the problem and this report points out that any action taken under such schemes is lost when economic environments change and intensification is required to increase profit.122 It is currently hard for councils to regulate NPS discharges and allow for the flexibility of land management which is sought by farmers.
The report also acknowledges that this issue is one that is politically contentious for councils, especially those in ruraldominated areas, as any changes may be perceived as impinging on rural property rights.123 Potential ways forward include managing NPS discharges through the current s 15 system under the RMA, or expanding the current range of tools available to councils. Issues that have come to light in relation to the RMA and manage ment of NPS discharges include that by some interpretations any urination by an animal onto pasture could amount to a discharge; economic instruments such as nutrient trading are not currently allowed under the RMA; and monitoring of NPS discharges is somewhat impractical without computer models, though as these models have a high margin of error it may not be possible for them to be used for enforcement purposes.124
The technical paper which reviewed property rights drew attention to a view that landholders see that they do not have an unconstrained right to pollute.125 All groups who were consulted for the paper felt that they had a responsibility to minimise their impact on the environment. However, there was also a strong feeling that they had a right to make a living off the land, this right being gained when they purchased the land. This right, to the extent that it conflicts with the
obligation to minimise environmental impacts, meant that such an obligation should be limited only to those impacts that were scientifically proven effects.126 There has been no right to pollute established within New Zealand but the approaches taken by regional councils to regulation could be interpreted as establishing property rights in relation to NPS discharges and seem to recognise a certain level of existinguse rights.127 This may be because the private right to discharge and the public right to clean water are poorly defined rights. Farmers surveyed during this study felt that problems relating to NPS discharges did not apply to them and that it was other farmers that cause 90 per cent of the problem.128 It seems from the report that the participants did not connect their actions with environmental outcomes. Most participants agreed that if a land use was unsustainable it should be discontinued but were resistant to the concept of banning land uses and thought that lower stocking rates or other constraints were preferable.129 Overall, participants in the discussions in the different regions felt that the core rights discussed should be balanced against the environmental impacts, and that the economic element of sustainability was a strong one not to be dismissed. In acknowledging this they felt that some damage to the environment needed to be accepted.130
After these technical papers the government released the discussion document on the project, “Freshwater for a sustainable future”. A preferred set of directions for improving the system was included in the document that went out for submissions at the end of 2004.131 The preferred package outlines that regional councils will continue to have the responsibility of managing freshwater resources, but that there will be a greater amount of support from central government. Thirteen action points are proposed within the document. These include the development of national policy statements, national environmental standards, an increase in central government participation in regional planning, the development of market mechanisms to manage discharges, raising the awareness of freshwater problems and issues, and working with local government, scientists and key stakeholders on pilot projects.132
In making these recommendations it is also identified that management of NPS discharges is likely to be controversial as it will mean placing limits on what people can do on their land. Submissions closed on the paper in March and
five reports were published on the reaction to the report in July 2005.133 On most points the submissions were split for and against. In relation to the management of NPS discharges this was considered to be a critical issue. Many submitters were disappointed that there were not more actions proposed to address the issue, and the majority of submitters were strongly opposed to the proposal of introducing market mechanisms to manage NPS discharges.134
8. INTERNATIONAL DEVELOPMENTS
In the same year that the RMA was established (1991), the European Com munity issued the nitrates directive to all members. This directive recognises that the main cause of pollution from NPS discharges affecting the European Community is from agricultural sources and has the objective of reducing the pollution from these sources.135 This directive requires member States to designate as vulnerable zones all areas of land which drain into waters and contribute to pollution over a level of 50 mg/l.136 This was to be done within two years. Action programmes then needed to be developed in relation to each identified vulnerable zone, and implemented within four years. Member States were also required to establish codes of good agricultural practice which could be implemented on a voluntary basis and would include the education and training of farmers.137 Monitoring of nitrate levels was also required as per the directives provisions in articles 5, 6, 7 & 9. The main actions that the nitrates directive programme promoted were crop rotations, balancing use of fertiliser with needs, frequent soil analysis, buffer strips along watercourses and ditches, and good management and restrictions on steeply sloping soils.138
The implementation of this directive was slow to get started with most member States and in the first five years not much action was seen. In recent years there has been a real improvement. All member States have now set up monitoring networks, and established codes of good practice. Due to the delays in action the effects of such programmes may not be seen for some years. Good results have already been recorded in countries who have put into place regimes, such as in Denmark and the east of France. All States (except Ireland) have at
least partially designated their vulnerable zones. In March 2004 Ireland was taken to the Court of Justice by the European Community due to its lack of action in relation to the nitrates directive.139 In this case it was declared that by failing to fulfil its obligations under the directive within the stated time frames, Ireland had failed to fulfil its obligations under the entire directive.
Another case that arose in the Court of Justice over the nitrates directive was in relation to farmers in the United Kingdom.140 It was claimed by the farmers that the establishment of vulnerable zones where they own or farm land, and the establishment of action programmes restricting agricultural use, would cause them immediate and longterm economic harm. They believed that the directive went against the polluter pays principle as farmers were punished for pollution that was caused by others and was outside of their control, and that no restrictions could be placed on areas where it could not be proved that agriculture caused the nitrate level to exceed 50 mg/l. In response to this the Court held that it would be incompatible with the whole directive to restrict the identification of vulnerable waters to only those where agricultural sources give rise to more than 50 mg/l, as article 5 of the directive provides for the development and implementation of action programmes taking into account agricultural and other sources of nitrates. In relation to the infringement of property rights it was said that this right must be viewed in relation to its social function, and may be restricted when there are general interests pursued by the community. The argument in relation to the polluter pays principle was rebuked on the grounds that the directive does not require farmers to take on the responsibility of the elimination of pollution that they had not contributed to. Member States take into account other sources of pollution in the action programmes that they formulate as part of the directive. In doing so they are not to impose on farmers costs that are unnecessary.
The nitrates directive is a main player in the European Community’s drive towards sustainable agriculture. High price support for farmers throughout Europe has driven intensity of farming upwards, along with an increase in the use of fertilisers and pesticides. This in turn has resulted in high pollution, the cost of which has been borne by the consumers and taxpayers.141 The EC is now trying to turn this around. In Europe there is a symbiotic relationship between farming and the ecosystem. This relationship has developed over thousands of years, with many species making their home in farmland. This has led to farmland having an important conservation value in Europe, and has brought about a concern for policymakers which is additional to those considered by policymakers in New Zealand. With changes towards sustainable
agriculture some farmers find that the costs are unbearable and abandon their land. Abandonment of the land creates pressure on the landscape and indeed the biodiversity of the land.142 To help reduce the incidence of abandonment the EC has set up a system of support for farmers who provide additional environmental service. Compulsory measures such as the nitrates directive are seen as a minimum requirement that all must comply with. They are a flow on from the polluter pays principle and should be followed without receiving remuneration.143
Any additional services beyond the basic level are paid for by society through what are called agrienvironment programmes. These programmes are based on the idea that the EC Commission does not intend to undermine competitiveness of farming by adding additional environmental costs. The large majority of farmers already comply with the minimum environmental standards and it would be unfair to reward farmers who gain a competitive advantage through making excessive demands on the environment. Farmers who provide services to the environment beyond the basic level of good agricultural practice are paid through the agrienvironment mechanisms.144 These programmes can improve the quality of life in the countryside and can contribute to the diversi fication of economic activities in rural areas, particularly through tourism.145
Similar programmes exist within the UK. The European Community nitrates directive applies in the UK and there are designated nitratevulnerable zones throughout the country. In these areas, measures are taken to control the application of manure to land, and to limit the application of fertilisers. Prior even to the directive the UK launched the nitratesensitive area programme.146 This programme involved payments to farmers who voluntarily made changes to their farms to limit the application of nitrogen to their land. The changes made in the programmes went well beyond “good agricultural practice” and payments are made in return for a management contract regulating the farmers’ land management practices. The nitratevulnerable zones from the nitrates directive were established six years later and carry a requirement to make changes to refrain from potentially polluting practices.147
Penal sanctions are applicable for breaches of the regulations for the nitrate vulnerable zones; however, farmers sticking to good agricultural practice as stipulated in the voluntary codes should not have a problem. The action programmes created for the nitratevulnerable zones include the provision of periods when land application of fertiliser is prohibited, limitations on
the amount of land application of fertiliser, and prescriptions relating to soil conditions, climatic conditions and crop rotations. By using these flexible action programmes instead of prescriptive regulation the intention is to ensure that the programmes are tailored to each region’s conditions, and can change as the needs arise.148
9. POSSIBLE CHANGES
As recognised by reports in New Zealand, especially Growing for Good, and the Water Programme of Action, any changes in New Zealand legislative manage ment of NPS discharges need to be part of a wider package of tools. Stakeholder participation and involvement will be important as there is a widely documented feeling in rural communities, and especially amongst pastoral farmers, that the RMA does nothing more than remove their rights.149 This engagement has been undertaken already in many regions and is currently being done through the Water Programme of Action. Many reports have been undertaken over the years to collate more data in order to take definitive steps on this issue, yet the cause of inaction is often described as the lack of information and education. This reason is becoming increasingly baseless as information on the topic is available from a wide range of easily accessible sources.150 It is time to take action in this area and it is encouraging to see that through the Water Programme of Action the central government is doing so.
9.1 Changes to Management without Legislative Change
The first proposal for change is to stick with the current regime under the RMA through ss 30, 69, 70 & 15 and simply enforce them. It could be argued that the regional councils are not currently fulfilling their obligations under ss 30, 69 or 70. This is because s 30 calls for the regional council to control land use so that water quality is enhanced or maintained. In many areas water quality has declined. Section 69 forbids the proposal (and indeed operation) of a regional plan that sets standards that have the effect of a reduction in water quality. Through permitting pastoral farming and high rates of fertiliser application many regional plans have included standards that have lowered water quality. Section 70 requires regional councils to be satisfied that no discharge will cause adverse environmental effects including significant adverse effects on aquatic
148 Ibid, 421.
life. This has not been fulfilled, most publicly in the Rotorua Lakes, where nuisance plant growths have reduced oxygen levels so that little aquatic life remains.151 On this interpretation of the current scheme councils are currently required to take a more stringent approach than they do.
Under the current system councils could regulate the effects of NPS dis charges through controls on land use152 or on discharges.153 Many councils choose to regulate through landuse controls. This may be the preferred choice as water quality and land use are so closely linked, and because landuse controls may be easier to enforce than discharge permits. Possible minimum actions that could be taken by councils to regulate through land use are to require riparian areas to be managed (either through fencing off or through planting), and to allocate pastoral farming areas based on land capabilities. This would be similar to the WhanganuiManawatu Council’s approach in the Whanganui Catchment Plan. These landuse controls would have widereaching effects (as if the land in an area was not capable of supporting farming systems this approach would effectively exclude farming operations in that area), and while being a straight forward approach, such a change may require a stepwise integration.
Another landuse approach would be to regulate the activity of fertiliser application to the land. All fertiliser application should require a nutrient budget as a condition of the activity. This is effectively the case at the moment as most councils either explicitly require nutrient budgets or require compliance with the fertiliser code which requires nutrient budgets for the correct application. However, as Fonterra has recorded only 17 per cent of dairy farmers have a nutrient budget in place154 it can be seen that most farmers currently do not comply with this regulation. One way in which this situation may be helped is a more explicit statement of this as a requirement by all councils and the provision of the means to complete a budget. The appeal of managing NPS discharges through landuse controls is the appearance of more direct and straightforward control. A point to be made against this approach is that the RMA aims to be an effectsbased piece of legislation and moving towards landuse controls to stop the cause of NPS discharges instead of focusing on the effect on the water quality may contravene the aim of the Act.
One of the appeals of managing NPS discharges through discharge controls is that landowners are unable to rely on existinguse rights provisions of the
RMA in respect of such discharges.155 This means that any new controls must be complied with, regardless of how long a period previous discharges have been going on for. The nature of NPS discharges may require a catchmentbased approach to their management. In this way a more effectsbased approach could be taken. This would mean prescribing a level of nitrogen in the catchment waterways that could not be exceeded, and then requiring the property owners in the catchment to regulate their activities to remain under that level. This is similar to the nitrates directive used by the European Community,156 and could be managed through action programmes in a manner similar to the directive. Depending on the level of nitrogen set under the plans a flowon effect could be that land cannot be used for pastoral farming (ie in order to be below the nitrogen level set by the council some of the land in the catchment needs to be retired). In this way the management through discharge controls would achieve the same end result as the landuse controls, in a less direct manner. The advantage of managing the NPS discharges through the discharge controls would be that if the land users could come up with some way of altering their operation to meet the required nitrogen amount, and maintained farming operations, that would be their prerogative. The discharge controls may allow landowners to become more resourceful and would encourage them to seek more information on the problem and become better managers.
Discharge controls could also be used more proscriptively. The application of a contaminant to land where it may enter water is also able to be managed under discharge provisions. If nitrogen was classed as a contaminant (which it most probably is under the current definition)157 then all applications of nitrogen to the land would require a resource consent, unless the regional plans allowed such application. The discharges of nitrogen to land in pastoral farming systems include animal urination, manure spreading, and fertiliser application. All of these applications could be controlled under the Act, either separately or as a total nitrogen application control.
One change that is signalled strongly in the Water Programme of Action, and recommended in Growing for Good, is the development of national standards for water quality. The differences in regional management and the lack of enforce ment of current regulations indicate that currently councils lack support in the management of freshwater quality. National standards could work in a similar manner to the nitrates directive. This would mean that the standards indicate a minimum set of requirements. Areas not meeting the standards would require action programmes to be developed for those areas. Action taken over and above
minimum standards could be rewarded through financial contributions. This investment could be assured through landmanagement contracts with farmers who voluntarily enter into the system. These programmes and payments could be incorporated (eg through pilot studies) into the development of fundamental redesign of pastoral farming systems that is required.
A greater input from central government into regional planning is viewed by some parties as a negative. However, freshwater quality is a national problem and action is required. At a minimum, central government needs to implement national standards. If the rest of its input is through voluntary measures as opposed to further regulation this is unlikely to be opposed.
One of the tools central government could supply as a voluntary measure is planning support for councils. This may involve providing staff from govern ment departments to work with regional staff on developing their plans to meet minimum standards. Another alternative could be that central government depart ments could develop examples of management through regional plans.
9.2 Changes to Management Requiring Legislative Change
To maintain or enhance freshwater quality it may be necessary to change the current legislative system. In order to support regional councils who are taking a discharge approach to the management of NPS discharges it may be necessary to create a new provision relating to monitoring and enforcement. The compliance with any discharge permits or provisions required under a plan would need to be monitored and measured. Although exact measures of nutrients in water can be made, where the nutrient is coming from is harder to ascertain. One tool which may be used is computer modelling which can predict nutrient leaching amounts from the inputs put into a farm system. There are reservations about the ability to enforce any planning tools put in place due to the margin of error of these computer models.158 The precautionary principle and the current decision making framework in RMA s 32(4)(b) could be used as grounds for a change to current enforcement provisions. The changes could involve allowing for the margin of error in the measurement of NPS discharges. This may still cause some impracticalities. If a catchment is still exceeding minimum standards the use of computer models may not be able to point to one landowner in the catchment as the source of the excess nutrients, due to the margin of error. An alternative approach could be to expand the enforcement provisions to enable group liability. This would mean that if minimum standards are exceeded in the catchment all landowners within the catchment would be liable.
Further changes that could be made to the current legislative scheme
involve the specific acknowledgement of NPS discharges and emphasis on their management. This could be done through additions to s 30 stating that the management of NPS discharges is included under the functions of the regional council.159 Section 15 could also be altered to include statements regarding the management of NPS discharges. This could involve altering s 15(1)(b) to use the term “nonpoint source discharge” or adding the term simply for clarity. It may also be necessary to allow for provisions for the issuing of discharge permits on a catchmentwide basis. The introduction of collective responsibility could require several changes to the Act and the insertion of a part specifically in relation to the management of NPS discharges may be required. This part may include information about who would come under such provisions (likely to be specified by area and land use), the individual requirements of being a member of a collective group, and liability, monitoring and enforcement provisions. In this way management of NPS discharges through the discharge controls could require extensive changes to the RMA.
10. CONCLUSION
The management of NPS discharges and their effect on freshwater systems has been identified as an important environmental issue for New Zealand.160 Agriculture is a major source of NPS discharges, with pastoral agriculture and dairy farming in particular causing degradation of our fresh water through nutrient runoff and leaching. Water quality is an important issue. New Zealanders personally use 160 litres of water every day161 for washing, drinking, and food, and we rely on water for recreation, tourism, electricity generation, and many other uses. The significance of this issue has not, at this stage, translated into action to change the effects of NPS discharges on our freshwater systems.
Several groups have studied the area of NPS discharges and the effects of agriculture on freshwater quality.162 These studies have created a significant body of knowledge on the subject in a range of different affected areas. Prop erty rights, social impacts, economic implications, and environmental effects have all been researched. These studies have allowed interested parties to gain a greater understanding of the implications of current practices and the required changes. The information gained through these studies is easily accessed and available through their websites, libraries, and by contacting councils, central government, industry groups, and environmental organisations. Tools to manage
162 For example, the Selwyn Stewardship programme, the Dairying and Clean Streams Accord, and Growing for Good, as discussed in this article and in the references noted.
NPS discharges are also provided free of charge by many organisations. An example of this are the spreadsheets available from the Environment Waikato website163 that can be used to develop nutrient budgets for farms, along with the OverseerTM computer model that can be downloaded free and used to understand what is currently being leached from the farm, and what the result would be with reduced or increased inputs into the farming system.
Problems in landmanagement practice remain, notwithstanding the amount of information available on NPS discharges, its accessibility, or the tools pro vided to help. This is illustrated through the Dairying and Clean Streams Accord targets where nationwide only 17 per cent of dairy farmers have completed a nutrient budget, tracking well below the targeted amount of 100 per cent by 2007.164 This is one indication that the information is not translating into action. Land practices continue to be economically driven with little regard to the impacts on the surrounding environment and the longterm sustainability of the systems relied upon for the wellbeing of the land.
Due to the lack of any national standards, regulation or policy the manage ment of freshwater or NPS discharges has sat with the regional councils. A survey of some of the regional councils shows that there is a spectrum of management approaches, with most councils favouring a voluntary approach to nutrient management, while others take an approach more reliant on regulation. The two councils surveyed in this paper that can be placed at the regulation end of the spectrum are Environment Waikato and Environment Bay of Plenty. Both of these councils have significant water bodies under their area of management that have been affected by NPS discharges (Lake Taupo in the Environment Waikato area and the Rotorua Lakes area in the Environment Bay of Plenty area). Although other water bodies throughout the country have undoubtedly been affected by NPS discharges these water bodies in particular have had a large amount of public attention. The effect of this public attention on the issue is an important factor. Regional councils, particularly in areas where there are large farming communities, are under a degree of political pressure to maintain voluntary management approaches. Public pressure due to environmental issues can create a mandate that the regional councils can use to regulate. In some areas it can be seen that regulation has been put in place but that there has been no enforcement. The current action taken in regards to the management of NPS discharges is ineffective and the predominantly voluntary approach is not working.165
Changes in the management of NPS discharges can occur with or without legislative change. Perhaps the change signalled the clearest is that national standards are required for freshwater quality. This would have the effect of placing minimum standards on water quality which the regional councils would need to meet, and enhance if they so chose. Predicting the effect of the implementation of national standards is somewhat difficult but they should not be devastating (ie the social and economic impacts should be minimal). Information collected from farmers during studies (such as the technical papers in the Water Programme of Action) imply that most farmers are following recommended landuse practices and are currently applying 100 kgN/ha/year or less of nitrogen fertiliser.166 This could mean that only a small number of highintensity farmers would be affected. In some areas the effect of minimum standards could mean greater changes, such as changing land uses, requiring moving of their farming operations elsewhere, or changing their operation into a lownitrogenleaching land use. Regardless of the format of the national standards they would bring some consistency to the management approach across regional councils and they would provide some support to the current regime.
Further changes in management of NPS discharges depend on the approach to be taken. Although management through discharge permits has some appeal due to following the effectsbased nature of the RMA it may be less practical in a monitoring and enforcement sense. Discharge controls may also require extensive changes to the current legislation, such as the introduction of a part to the current Act, specifically in relation to NPS discharges. Even though these changes may be required, this option for management should still be pursued. In the long term management through discharge permits or catchmentwide discharge control allows for innovation on behalf of the land users. Placing controls on the discharges and not the land uses allows farmers to develop their land practices to reduce discharges, without having what could be blanket application of landuse controls applied to them. For this reason management through discharge controls should continue to be developed.
In the interim landuse controls should be put in place to start the regulation and changes that are required to maintain or enhance our freshwater quality. The landuse controls in the Lake Taupo variation in Environment Waikato plans and in the Environment Bay of Plenty plans for the Rotorua Lakes area may be more stringent than what is required in other areas. Landuse controls could require that riparian margins be fenced or planted, and that nitrogen application to land could not take place without a nutrient budget. Landuse controls could also be used to place restrictions on the amount of nitrogen that could be applied to land. These controls could provide the immediate focus called for in studies on freshwater management.167
NPS discharges are not a problem that occurs only in New Zealand. Along side benefiting our environment, controls put in place for NPS discharges could help us to become world leaders in the advancement of lownutrient farming. The entire European Community is under the nitrates directive and knowledge gained from our experiences would be valuable to farmers on the other side of the world. Investment is required in order for New Zealand to gain a solution to this problem, and this investment could return dividends from overseas application. While it is important to remember that there are farreaching social and economic implications for the management of NPS discharges, gains to be made by becoming world leaders, and maintaining our pristine image, should also not be forgotten.
Managing NPS discharges so that freshwater quality is maintained or enhanced does not need to be a situation seen as an environmental win and a pastoral agriculture loss. New Zealand, through central and local government, industry, and environmental groups, now has a body of knowledge and tools developed to tackle this issue. What is required at this point is for action to be taken to adequately manage the environmental effects of agriculture on our freshwater systems. Under the RMA there are sufficient provisions for councils to regulate NPS discharges through landuse controls if they so chose. However, if it was decided to proceed with regulation through discharge controls — which is in line with the RMA effectsbased nature — it is likely that legislative changes would be required.
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URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2006/8.html