Two water-first decisions, 1000km apart, suggest the country is turning a conservation corner. David Williams reports
Analysis: In 2020, when the updated national policy statement on freshwater stated decision-makers had to put the health of water above all else – above the needs of people, above the aspirations of businesses – many probably feared it would be a tick-box exercise.
However, a decision by consent hearing commissioners in Hawkes Bay last month has put this national direction, Te Mana o Te Wai, at the centre of its decision to decline eight applications, considered together, to take 15 million cubic metres of groundwater per year from the Ruataniwha aquifer.
“Te Mana o Te Wai is at the forefront of every water-related process that I am aware of,” says Sally Gepp, an environmental lawyer. “It definitely has had an effect.”
READ MORE: * Thousands of dairy farms aren’t reporting fertiliser use * Battle lines drawn over Canterbury’s nitrates
Gepp represented conservation lobby group Forest & Bird and statutory body Fish & Game Council’s Southland branch at the Environment Court in another water-first decision.
It was an appeal of Southland’s proposed water and land plan, which sets direction and guidance for activities that have a significant effect on water quality.
The court’s fifth interim decision, which dropped just before Christmas, made several important findings, despite pushback from farming groups.
“The case recognises the prioritisation of freshwater health, and affirms that as the number one priority,” Environmental Law Initiative researcher Anna Sintenie says.
“In a broader context, it shows that where freshwater’s polluted, to the extent that environmental bottom lines are being breached, the activities contributing to that are going to be constrained.”
Tom Kay, a freshwater advocate for conservation lobby group Forest & Bird, who gave evidence at the Hawkes Bay hearing, says: “It has taken us decades but we finally seem to be at a point where our policy has caught up to the idea that the environment has limits – we can’t continue to take from it indefinitely.”
The Southland decision has been appealed to the High Court by the regional council, Federated Farmers Southland, Fonterra and DairyNZ.
The regional council’s general manager of policy and government reform, Lucy Hicks, says the decision could have significant implications for consenting in Southland and across the country.
There is also the possibility of the Hawkes Bay hearing panel decision going another round.
While it hasn’t been appealed yet, Hawke’s Bay Regional Council’s Jenny Keown says: “The applicant group has applied to the Environment Court and got the period for lodging an appeal extended from 15 working days to 45 working days from the decision date.”
Primary driver of decision
The Hawkes Bay water battle arose from plan change 6 to the region’s resource management plan, operative since 2006.
The plan change separated groundwater in the Ruataniwha aquifer into two tranches, the first of which reflected existing allocation, was limited takes to 28.5 million cubic metres a year.
The unallocated second tranche had to be taken from wells at a depth of at least 50 metres, and only if river or streams were augmented, somehow, when flows were too low.
Eight applications for so-called ‘Tranche 2’ water had been made, separately, since 2014, and were rolled together.
The Hawkes Bay decision, issued by a panel chaired by Dr Brent Cowie, said the national policy statement directed the panel to prioritise the “health and wellbeing” of freshwater. So that’s what it did.
The plain meaning of the words in the statement (NPSFM) “indicate the intention was to protect freshwater environmental values ahead of the use and development of water resources”.
“Those words are the primary driver for our decision to decline the applications,” the 45-page document said.
“If our decision is indicative of the outcomes the Government seeks from the current NPSFM, so be it. If they are not, it needs to amended with some urgency.”
The panel said the application was likely to be turned down anyway because of potential adverse effects – on cultural values, on waterway flows and the associated effects on biota in them, and on other users of shallow groundwater.
Even though not all tranche-one water is being taken, water levels in existing wells have fallen in the past five-to-10 years.
Streams and rivers already run dry at times, leading to the loss of habitat for indigenous freshwater species, and this situation would be exacerbated by granting the consents, the panel found.
The national policy statement says habitat for indigenous species has to be “protected”, something the panel called a “very high and quite absolute threshold test”.
A peculiarity of the hearings was near-unanimous opposition – 70 of 72 submissions were against it, including mana whenua.
One of six principles of Te Mana o Te Wai is “mana whakahaere”: the power, authority and obligations of tangata whenua (people born of the land) to make decisions that maintain, protect and sustain the health and well-being of, and their relationship with, freshwater.
Submitter JB Smith, of Ngāti Kahungunu, said at a hearing last year the mauri (life force) of the wai (streams, creeks and rivers) throughout the Ruataniwha rohe (area) was so degraded “he feared for the worst if the application was granted”.
Tangata whenua sought the return of mahinga kai species, including black flounder and tuna (eels).
Originally, the applicants had proposed setting aside two million cubic metres of water a year for “potential cultural mitigation”. That was withdrawn during the hearing, however, and earmarked for additional augmentation, instead.
At the hearing, the efficacy of planned augmentation was questioned.
As described by the decision, it involved, in some instances, “simply taking water from a bore close to a surface water body, which would have very strong hydraulic connections to that water body, and putting the water back in that same surface water body, albeit more directly”.
Tom Kay, of Forest & Bird, says the Hawkes Bay decision allows threatened tuna (eels), īnanga (whitebait), and macroinvertebrates to hold on while the regional council develops a plan to prioritise the health of the water.
(Regional councils and unitary authorities must notify freshwater policy statements and plans by the end of 2024, and have them in place by 2026. Hawkes Bay’s is called the Kotahi Plan.)
“This decision gave me hope,” Kay says. “It acknowledged that there are limits. We can’t continue to take from our rivers and groundwater. Some things are more important than economic gain – and the health of our rivers and streams is one of them.”
Duncan Abernethy, of I&P Farming, a spokesperson for the consent applicants, says there’s “a lot going on” in central Hawkes Bay after Cyclone Gabrielle.
“We are naturally disappointed with the consent decision and are carefully considering the panel’s comments and our options.
“Nothing has been ruled in or out at this stage. We simply need time given everything else that is currently going on.”
It’ll be a long journey for agriculture to fully recover, Abernethy says. “Added security of water supply from tranche two, as provided for in the regional plan, would partly assist in this regard.”
In her pre-Christmas decision on the proposed Southland water and land plan, Environment Court Judge Jane Borthwick made several important findings.
Basically, many of Southland’s waterways are, or are likely to be, degraded; that significant adverse effects on aquatic life are likely the result of farming; and water quality improvements are required.
The court also found, absent more evidence, it couldn’t let discharges of contaminants – like nitrate-nitrogen, sediment, and phosphorus – from farming be “permitted”, under the proposed plan’s rule 24. If that finding is confirmed, farms in degraded catchments would require consents.
(Under section 70 of the Resource Management Act, discharges with certain effects on the environment can’t be permitted activities. What is new is the idea regulations might apply to “diffuse” discharges from farming, which don’t have a single “point” source.)
In a judgment issued just yesterday, the High Court has approved an application from Fish & Game and Forest & Bird that the trio of appeals be dealt with, together, as a priority fixture.
The proposed plan is of “major consequence for Southland”, Justice Robert Osborne said. “It is in the interests of justice that such an influential document be finalised as quickly as is justly possible.”
Federated Farmers’ appeal says there was no evidence to support the court’s finding “the significant adverse effect on aquatic life is likely the result of contaminant discharges from farming activities”.
“If this finding was to stand, Federated Farmers is concerned that all farming in Southland would likely require a resource consent for little or no environmental gain,” Southland vice president Bernadette Hunt says.
The ramifications might not be limited to Southland, she warns, as there are concerns the finding could be followed elsewhere.
Fonterra’s director of on-farm excellence, Michael Hide, says: “As this matter is before the court we cannot make any further comments beyond what is already available in the notice of appeal.”
(The notice takes aim at the court’s findings on significant adverse effects and not permitting authorised farm pollution.)
“The task to improve that water quality, even to national bottom lines ... is immense.” – Sally Gepp, environmental lawyer
Gepp, the lawyer who represented Forest & Bird and Fish & Game at the Environment Court hearing, says the decision is “a true recognition of the extent of degradation of Southland’s water”.
Threatened species, many on the brink in Southland, need healthy water to survive.
While noting the decision has been appealed, she says: “It definitely brings us closer to putting water first.”
The court’s finding of degraded water catchments has a visually confronting aspect, in the form of maps produced by the court.
“It’s essentially all of [mainland] Southland, outside of Fiordland,” Gepp says. “So the task to improve that water quality, even to national bottom lines, let alone to a state that is hauora, in terms of healthy water under Te Mana o Te Wai, is immense – and it needs to start now.”
The proposed plan sets region-wide provisions. What happens next is catchment-specific planning to reduce loads of nutrients, like nitrogen and phosphorus. Southland will do this under what’s known as Plan Change Tuatahi.
What needs to happen, Gepp says, is measuring contaminants in water bodies and defining the improvement required. The heavy lifting for making changes comes back to polluters.
(It’s not all about critters in rivers. In Canterbury, nitrate contamination of Waimate’s drinking water supply, and evidence suggesting exposure to nitrate in drinking water could increase health risks, shows this crisis is affecting humans, too.)
Gepp says in some cases historic land uses are still having an effect on water.
“But generally we’re dealing with the effects of the massive ramp up of dairy farming across the country over the last 15 to 20 years.
“And that looks to have plateaued, but plateauing is not enough to actually achieve the improvements in water quality that are needed, particularly in areas like Canterbury and Southland.”
Dr David Burger, DairyNZ’s sustainability general manager, says the industry group works with farmers on plans to improve practices.
“In Canterbury, 100 percent of dairy farmers have farm environment plans, while 75 percent in Southland do. Nationwide, 69 percent of dairy farms have farm environment plans and 45 percent have greenhouse gas farm plans. By 2025 all farms will have both plans.”
The dairy sector has focused on improving wintering practices, Burger says.
“The job is not yet done in Southland and we’re committed to supporting farmers to continue to improve.”
DairyNZ has partnered with farmers in Canterbury’s Selwyn and Hinds catchments over the past five years on nitrogen-loss reduction targets. “This project has seen farmers use less fertiliser and focus on farm system efficiencies, to help reduce losses to groundwater.”
Southland’s meandering journey to cleaning up its waterways shows how slow-moving these processes are. The proposed plan – which requires farm environment plans to be certified and audited independently – was first notified in 2016, and was replaced two years later with the “decisions version”.
Since then, various aspects have been tied up in Environment Court appeals. Earlier this month, the court issued its sixth interim decision.
How quickly might the people of Southland see an improvement in water quality? Gepp, the environmental lawyer, expects a modest improvement once the proposed plan is fully operative.
“It’s going to take Plan Change Tuatahi to become operative and then its rules to be implemented on the ground before we see significant improvements. So I think we’re looking at late 2020s to 2030s and beyond.”
That is if politicians can resist more tinkering. The national policy statement for freshwater management, which came into effect in 2014, was updated in 2017, and overhauled in 2020.
“Consistency in national direction is really helpful in terms of speeding up planning,” Gepp says.
Depending on the outcome of this year’s general election, there might be yet more water to go under the bridge on Te Mana o Te Wai.
* This story has been updated with DairyNZ comment
