Govt lacks clear rationale for weakening water pollution protections
In August, Minister for Agriculture Todd McClay announced the Government wants to urgently make ‘clarifying’ changes to section 107 of the RMA. In ELI’s view, the change is not about clarification, but really about weakening environmental protections.
The Minister asserts that councils will not be able to issue consents for discharges from a wide range of activities due to recent High Court decisions including ELI v CRC [1]. In this case a discharge consent for nutrients from farming across the Ashburton Lyndhurst Irrigation (ALI) scheme area was found to have been unlawfully issued by ECan, as it would give rise to significant adverse effects on aquatic life prohibited by section 107. The High Court remitted the decision to ECan to be reheard, due to errors in law.
Echoing scaremongering from industry lobbyists, the Minister asserts that the case threatens to make the law unworkable and alleges implications across a range of discharge activities.
The Government’s proposed changes to section 107 have not yet been specified, but if they continue to follow the lead of lobbying from irrigation schemes, and farming industry groups, who have sought ad hoc changes to section 107, they will be designed to allow major polluters to keep polluting despite exceeding minimum environmental standards.
ECan has continued to issue discharge consents since the High Court decision.
No one has an automatic right to discharge contaminants to water (s15(1) RMA). While councils may expressly allow discharges, their powers to do so are not unlimited. Section 107 restricts the grant of discharge consents to certain minimum standards, including that they do not give rise to significant adverse effects on aquatic life. It is this assessment that ELI v CRC engages.
To see whether ELI v CRC is having the wide-ranging impact on consent decisions as has been claimed, ELI have looked at the discharge consents that have since been decided by ECan. As the Minister has highlighted the impacts for Canterbury region, ELI has looked at the ECan’s decisions since ELI v CRC, to assess what impacts have been felt across the range of discharges applications determined.
Reviewing these, we have found nothing to suggest that the law has been made unworkable across a wide range of discharges, or even that any consents have been declined because of the High Court decision.
In fact, we have found that ECan has continued to issue discharge consents across Canterbury including for a town stormwater network, stormwater from housing and industry, septic systems, spraying agrichemicals within and adjacent to all waterways in the Canterbury Region, and farming activities.
Consents referenced are yet to be assessed
If ELI v CRC is causing challenges for particular discharges which have not yet been decided, there is little publicly available information about this. The Minister references impacts for ECan which include farmers needing consent to continue operating and a global stormwater consent.
The public record for that stormwater consent application shows that in response to ECan’s preliminary view on the impact of ELI v CRC, the applicant has now provided information and comment, and considers the High Court decision does not preclude ECan from granting the application [2].
The Minister for Agriculture should not be making significant policy changes based on resource consent applications that have yet to be fully assessed by the regional council.
The High Court in ELI v CRC remitted the decision to ECan to be reheard. ECan is still awaiting legal submissions on the appropriate next steps and the process to rehear the application [3]. If the Minister’s statement relates to the implications of ECan’s rehearing, these have not yet been explored substantively.
In light of this, urgently changing 107 is an overhasty amendment, and it is the Government’s problem definition, rather than the law, that needs clarifying. The High Court decision should be able to run its course. There should be a clear problem definition for any amendment.
Councils have powers to address the problems
The Minister is concerned about discharges that will give rise to significant adverse effects on aquatic life being restricted or declined because of the High Court’s decision.
Section 107 already has exceptions in exceptional, temporary, or maintenance situations to allow discharges that give rise to significant adverse effects on aquatic life to be consented.
However, if Councils are concerned about these impacts limiting the scope for more discharges in their regions, they have powers to address these effects beyond making decisions on applications as they come in. Councils can take proactive steps to address these issues, including gathering new information, and reviewing existing contributing consents across a catchment. Beyond this, section 107 provides a backstop of the minimum water quality standards councils can allow.
Rather than enabling Councils to take proactive steps to fix the problems, the Government has decided to give clarity and certainty to big polluters that they can continue polluting waterways, even where impacts exceed minimum environmental standards.
—
[1] Environmental Law Initiative v Canterbury Regional Council [2024] NZHC 612 (20 March 2024)
[2] CRC194958 applicant's response and attachment.
[3] CRC185469 Commissioner Minute 1; 6 August 2024.