‘Big Farm’ lobbies hard for law change after mega-irrigation court loss

Wednesday, 10 July 2024

“Big Farm” lobby groups are pushing for a law change after a landmark court decision overturned a pollution discharge consent for a mega-irrigation scheme.

Beef + Lamb, Dairy NZ and Federated Farmers have penned their own suggested amendments to the Resource Management Act in a letter to Andrew Hoggard, associate minister for the environment.

They claim the decision – and a second case which reinforced that the health of water must be placed at the forefront of decision-making – would “have a significant impact on the efficient and continued operation of a number of industries and activities”.

Irrigation giant Central Plains Water has also joined the chorus of concern from major dairy interests.

The South Island’s largest scheme asked Parliament’s Environment Select Committee to make the changes to a new bill changing freshwater protection rules – the first stage of an overhaul of the RMA.

The lobbying comes after the High Court ruled in March that a resource consent given to Ashburton Lyndhurst Irrigation (ALIL) – a large co-operative irrigation scheme – must be set aside.

Regional council Environment Canterbury is appealing and has written to the Government, warning the decision could have broad repercussions nationwide.

Ministers, who are unpicking resource management law changes implemented by the last Labour government, have asked for advice from officials.

At the heart of the row are two clauses of the RMA: sections 70 and 107.

Advocacy group Environmental Law Initiative (ELI) recognised that these were environmental bottom lines in the 1991 legislation that bar discharge activities that might cause significant adverse effects on aquatic life.

Based on this argument, they successfully asked for a judicial review of the 2021 decision by ECan to grant a resource consent to Ashburton Lyndhurst Irrigation Ltd (ALIL).

That permission allowed, over a decade, the use of synthetic nitrogen fertiliser in an 177, 000ha area that stretches between the Hakatere/Ashburton and Rakaia rivers.

The Ashburton River flows into the Hakatere hāpua (a lake which forms behind a bank along the beach), a breeding area for vulnerable native fish and birds.

However, the trio of lobby groups argue that this was not the original intent of the RMA. And until now the conventional approach has accepted the provisions apply to discharges from “an identifiable source”, like a pipe, rather than pollutants from widespread or dispersed sources, such as pasture runoff of animal wastes, fertiliser and sediments.

The ALIL decision and a 2020 case between Southland Regional Council and Aratiatia Livestock, a dairy company which farms 600 hectares in Western Southland overturned this approach, the letter to Hoggard argued.

This now makes it too difficult to grant discharge permits where waterways don’t meet national freshwater bottom lines and many farmers would require a resource consent to farm, the groups wrote.

It would be a “regulatory roadblock that no farm or farmer can pass through. This would lead to the loss of pastoral farming and associated rural communities”.

The groups would prefer a “risk-based approach … where solutions are targeted to the specific issues on-farm” over blanket rules.

ALIL and Irrigation NZ have also asked for amendments to the two RMA clauses.

As has CPWL, which is owned by 397 farmer shareholders and irrigates 63,000 hectares of farmland between the Rakaia and Waimakariri Rivers, holds a global discharge consent.

“The recent interpretation of s.107 adds an unacceptable level of regulatory burden … with the impacts on projects from large scale housing developments to individual septic tanks,” CPWL told the committee’s MPs.

ELI’s Matt Hall said it appeared the groups were trying to use the new bill to get through changes.

“We are disappointed that farming industry lobbyists are asking for ad hoc legal changes that will make it harder for councils to address the real problem: the degraded condition of many of Aotearoa’s waterways,” Hall said.

“These environmental bottom lines have been law for decades and apply to all discharges that may enter water. Industry bodies should focus on helping their members to phase out polluting farming practices, rather than making short-sighted requests for special treatment for one group of polluters.”

Fish and Game also oppose the amendments.

“The recommendation that these provisions should no longer apply to diffuse discharges…is entirely contradictory to the language and intent of these provisions and will remove critical ‘bottom line’ RMA freshwater protections,” the submission said.