Major freshwater u-turn ‘snuck in’ to unrelated bill

The primary production committee has arbitrarily recommended weakening keystone freshwater policy – even though the bill it was reporting on never even mentioned that policy by name.
The committee read submissions by industry groups that sought a way to sidestep obligations surrounding waste discharge into highly polluted waterways. These groups, alarmed by a recent court ruling, suggested adding changes to the policy as part of an otherwise-unrelated bill. 
Forest & Bird heard of these requests, and asked during its submission on the bill if it ought to offer a counter-argument. They were told to save it “for another day”. But that day never came, and the committee’s final report included the concessions sought by industry groups, with no opportunity for public scrutiny.
On July 17, the primary production select committee heard oral submissions from the public on the Resource Management (Freshwater and Other Matters) Amendment Bill. The bill included proposed changes to Significant Natural Areas and intensive winter grazing, among other things.
What it did not include were changes to Resource Management Act section 107, a backstop of freshwater policy that has remained untouched since the act came into effect in 1991. It set a firm backstop against discharging waste into catchments that are at or below the national baseline for aquatic health, though it has not been consistently enforced.
Nonetheless, after industry groups submitted requests to scale back the legislation as part of the tangentially related freshwater bill, the final report from the committee recommended the Government follow these wishes. The proposed changes essentially allowed for councils to issue consent when they are satisfied a plan exists to eventually better the waterway’s health, though section 107’s history has been dominated by non-compliance. 
Evidence from these groups was heard by the committee to support the revision of section 107. One of the industry bodies behind the push was Horticulture New Zealand. It said while it agreed with the principles of the legislation, the implications of a recent court ruling would be “fatal” to vegetable-growing operations nationwide. But evidence to the contrary was not heard. 
Following Horticulture NZ’s submission, Forest & Bird asked if commenting on concerns raised by industry groups about section 107 was “appropriate” or out of scope. The group was told by committee chair Mark Cameron (Act’s spokesperson for agriculture and rural communities) the concerns were best “left for another day”, and dropped the matter. 
But earlier this week, the committee’s final report made it clear that those concerns were apparently very much in scope, as they recommended reworking section 107 in line with the wishes of the industry groups who submitted on it.
Discussion around section 107 was whipped up earlier this year following a landmark High Court decision. Section 107 governs when local councils are allowed to issue consents for diffuse discharges of waste into bodies of freshwater, and essentially says local councils can’t allow anyone to let materials seep into freshwater bodies if those bodies are already at or below minimum standards. 
In April, a case brought against Ashburton Lyndhurst Irrigation Ltd set off alarm bells for industry groups when it found the company’s consent did not comply with section 107, although the company had been operating under these conditions for some time. 
Nationwide, the application of section 107 to diffuse discharges (as opposed to point-source discharges, like a drain pipe) has not been consistent. The implications of this ruling set a clear and final precedent: diffuse discharges were in scope of section 107, and consents could not be granted to companies operating under such conditions, even if they previously had been.
Days later, Dairy New Zealand, Beef + Lamb and Federated Farmers wrote to Associate Minister for the Environment Andrew Hoggard with their concern that the precedent would see wide swathes of New Zealand’s primary sector suddenly unable to consent their activities, as so much of the nation’s freshwater is at or below minimum standards.
A month later, on May 23, the Resource Management (Freshwater and Other Matters) Amendment Bill was introduced. It said nothing of section 107, but many of these same industry groups mentioned it in their oral and written submissions on the bill. 
Horticulture New Zealand spent several minutes of its oral submission talking explicitly about section 107. Acting chief executive Michelle Sands told the committee “there’s something not working there that needs to be addressed urgently”. 
Sands said the problem was not the aim of section 107, but rather the way in which it had been interpreted in the court decision. And while it did not need to be removed, Sands said changes must be made to ensure New Zealand could legally continue to provide its population with a reliable stream of fresh produce. The precedent set by the Ashburton decision threatened this.
An amendment bill to the original could have targeted changes to section 107 and brought them into the fold, but this never happened.
Forest & Bird, as well as other environmental NGOs, caught wind of the industry requests and began voicing disagreement. But when it came to oral submissions before the select committee, Forest & Bird were directly told to save those concerns “for another day”. 
That day never came, as the amendments to section 107 were suggested by the committee despite never facing proper public scrutiny. 
The day came for industry groups, at least, as the committee’s final report said “several primary industry submitters” mentioned concern over section 107, hence the out-of-scope recommendation to dilute it. 
Differing views were not mentioned until the minority (Labour and Greens) section of the report, in which Labour described the process as “extraordinary”. The party wrote “it is an exceptionally poor process to panic at the result of a court decision and jump to a legislative change without analysis or process”.
Labour’s spokesperson for the environment Rachel Brooking said the result amounted to “sneaking it into this piece of legislation at the end of the process without all of the analysis”. 
Freshwater Ecologist Dr Mike Joy was one of the leading forces behind the original Ashburton lawsuit. He said the decision-making process was clear: “We took them to court, and then they have to [enforce section 107], and so that’s why they’re trying to get rid of it.”
He said while these waterways were already heavily polluted, “they can always get worse”. At a certain point, when pollution is added to a catchment in such dire straits, “they go off the bottom of the scale. You can’t show them being any worse when they’re already so impacted.”
Joy said you didn’t need to look far to see what the implications of this change were. For years, he said companies had been operating outside the bounds of section 107; the lawsuit merely set in stone a requirement to comply. “It just highlights the failure of the councils to do their job. Not the failure of the legislation, but the failure to enforce or to apply the legislation,” said Joy.
New Zealand’s history of compliance with section 107 discharges has neither been sterling nor consistent. Taupō District Council, for example, has maintained a high level of compliance with discharges into the lake. But just last week, reports emerged of young staff at Napier City Council having been told to take a “lenient approach” to a local company’s consent-breaching discharges because of their status as a major employer.
With full knowledge of the local council, and despite the constraints of their consent, AFFCO tannery had been pumping ammonia into the local waterway since the 1990s. In the words of Napier City Council director of infrastructure Russell Bond, this had gone on “due to their economic importance” in the region.
AFFCO head Nigel Stevens said this was commonplace in New Zealand, as “there is nothing at all unusual with what we are doing at Napier”.
But under the recommendations made by the primary production committee, even if a company had previously been non-compliant with section 107, they would now have a way to legally sidestep the requirements by promising future improvements.
This change was included as a tweak to a bill that never mentioned section 107 by name, and never saw public scrutiny.