Challenging ECan’s Pollution Rule

ELI has filed for a judicial review of ECan’s decision to include a permitted activity rule in the Canterbury Land and Water Regional Plan allowing incidental nitrogen pollution

Canterbury holds the majority of Aotearoa New Zealand’s freshwater, but this public resource is significantly degraded as a result of intensive agriculture.

Many freshwater ecosystems in Canterbury are experiencing significant impacts as a result of excess nutrients (including nitrogen-nitrate and phosphorous) from farming activities, which leads to eutrophication. A major report by the Ministry for the Environment recently found significant management weaknesses by Environment Canterbury (ECan) and according to ECan’s own data, groundwater concentrations of nitrogen-nitrate are likely or very likely increasing at a majority of sites.

The Canterbury Land and Water Regional Plan (CLWRP) manages the land and water resources in Canterbury under the Resource Management Act (RMA). It includes policies and rules, and provides direction in terms of the processing of resource consent applications.

Rule 5.63 of the CLWRP provides that discharge of nutrients onto or into land in circumstances that may result in a contaminant entering water is a permitted activity provided certain conditions are met.

Before including a permitted activity rule in the CLWRP that allowed nutrient discharges, ECan was required by s 70 of the RMA to be satisfied that significant adverse effects on aquatic life were not likely to arise, among other things.

ELI alleges that to be satisfied, ECan should have identified the particular rule, considered evidence of effects allowed by the rule and assessed the likelihood of those effects occurring, among other things.

As at no point in the CLWRP hearings did ECan do this, ELI argues that Rule 5.63 is unlawful.

To improve freshwater management in Canterbury, ELI is seeking an order quashing the rule and various declarations of what the law requires in these circumstances.

Banner photo: Mt Sunday, Ashburton Lakes, Jeff Hitchcock, CC BY 3.0 <https://creativecommons.org/licenses/by/3.0>, via Wikimedia Commons.