Pulpit

Water regs fundamentally flawed

Graham Pinnell

CONCERNS over the freshwater decisions taken by the Government in August have centred on slope rules for stock exclusion and winter grazing of crop. The Government has told us that they are open to tweaking the rules where they can be persuaded. Farm levy organisations are saying to farmers, ‘trust us to work constructively inside the tent to effect those tweaks.’ Fair enough, if only tweaks are required.

The reality is somewhat different. There are many more concerns with the detail of the set of regulations, such as: – The stock exclusion rules superficially only apply to “wide rivers,” which is a misnomer when the definitions are applied. – Stock exclusion is required along the entire length of any watercourse that has a defined bank which in flood is wider than one metre at any point within a parcel of land; a stream doesn’t even need to be permanently flowing. – There is no avenue to apply for an exemption to these rules, or to adopt a reasonable alternative. – The slope exemption for stock exclusion does not apply to dairy, dairy support and intensively grazed beef cattle. In effect, all streams and lakes, and many natural wetlands, regardless of the slope of land, require fencing to exclude these animals. – Riparian fencing of land over 15 degrees generally requires benching to create a fenceline. Expect increased sedimentation of streams from benching earthworks and stock treading. – All new culverts require consents unless a complicated list of conditions are met, including sufficient diameter, such as the cross-sectional area of the culvert is at least that of the adjacent stream in times of major flood. The expense to reach this standard will deter farmers from installing further stock crossings. A condition of consent is to report to the council on your monitoring and maintenance of the culvert on a regular basis and after each significant flood. – A long list of details must be provided to your regional council whenever installing a new culvert or modifying or replacing an existing one, regardless of size.

Good luck with achieving compliance, this list is far from exhaustive.

Of wider concern is the extreme prescribed for any consent that may affect water quality. This not only applies to winter grazing as there are currently myriad activities requiring consent, including for effluent disposal, soil disturbance of many types, vegetation clearance near streams, culverts and water allocation.

The new National Policy Statement prioritises water quality over all other wellbeings of sustainability. This is an extreme interpretation of the purpose of the Resource Management

DRASTIC: Graham Pinnell says the National Policy Statement prioritises water quality over all other wellbeings of sustainability, and that it’s an extreme interpretation of the purpose of the Resource Management Act.

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Act (RMA), that is finding a balance between environmental, economic, social, cultural and health and safety wellbeings of sustainability. Farmers will now have to convince councils that they can and will avoid, minimise, remedy or offset all adverse environmental effects to a less than “minor” level in order to gain consent, and will be held accountable through consent monitoring.

If the lens of good regulatory practice is applied to the above, the gold standard is not to abate to a less than minor effect, but to a reasonably practicable level – a level that is feasible and practical, and for which the costs are proportionate to the sustainability wellbeing. That way, we target optimal societal wellbeing.

The first test any regulation should pass is that its benefits exceed its costs. Regulation 1-0-1, if you like. As we face up to paying for the huge debt of covid-19, it is even more critical that investments should be able to demonstrate value.

So, if we had regulation based on reasonably practicable standards, what might that look like? Let’s illustrate by taking the example of riparian fencing. It might result in an obligation to fence wherever it is possible to drive posts with a tractor-mounted driver, and where there is a significant water quality benefit to do so. Steep or rocky terrain would then be excluded. A high level reasonably practicable requirement could be applied when formulating farm environment plans, thereby giving clarity as to where precisely on each farm riparian fencing must be built. Forget trying to refine a web-based terrain map that can’t map slopes in fine detail or identify other obstructions to fencing.

How did the Government get to this position?

Firstly, ministers put the Land and Water Forum (LAWF) on ice. This widely representative group, who were knowledgeable, had skin in the game and operated in a collaborative manner, had produced excellent and robust work over almost a decade. In order for the LAWF process to work, ministers had to step back and give opportunity for all the key issues to be worked through. Instead, for these new regulations the ministers set up various working groups to make recommendations for their decision alone. Members were hand-picked by ministers rather than the normal practice of being nominated by stakeholders. The groups were told not to talk to each other, nor to stakeholders, and so the process was shrouded in secrecy. Is this democracy or dictatorship?

The minister predetermined the outcome with his terms of reference for the science technical group, requiring them to advise on science-based issues alone. Minister David Parker asked that they leave the wider economic decisions to him.

“We recognise that recommendations in this report could, depending on the way they are incorporated into policy, have very significant economic and social implications for individuals and communities in some parts of New Zealand,” the group reported.

“Our focus has been on the freshwater ecosystems themselves and in this respect, our recommendations are aligned with prioritising water quality over other wellbeings.

The spreadsheet summarising submissions does not list any submissions from individuals. The implication is that they were ignored.

The published report from the panel that considered submissions and made recommendations to the minister acknowledged that by saying “we have had limited understanding of the effect of the instruments on the social and economic wellbeing of people and communities. A report on the risk impacts was not available to us before the time for presenting this report.”

The Government will have to deny my assertion of predetermination, as it is unlawful when undertaking consultation. However, there is not a shred of evidence that the minister gained the necessary understanding of the range of impacts on the wellbeings of sustainability and undertook any meaningful weighing of those impacts as fundamentally required in “achieving the purpose” of the RMA. We all know that the regulations now in place will have huge costs – in monetary terms, in social impacts on hill country communities, and on the mental health of farmers as they try to implement the impossible. These are just some of the relevant matters that the minister was required to consider.

It is high time that our farming levy bodies came outside of the tent and publically told the Government that farmers are not prepared to be regulated for good management practices unless they are based on good regulatory practice. These regulations are so fundamentally flawed that a fresh start should be made to freshwater regulation. Making tweaks without addressing the fundamental extremism does not cut it.

The Prime Minister needs to stop smoothing over the cracks and take decisive corrective action.

The starting point should be to recognise another matter of good regulatory practice, the “compliance pyramid.” It recognises the foundation of good compliance, and relies on the regulator providing good information, guidance and advice to strengthen voluntary compliance. The next level is for the regulator to assist compliance through providing incentives such as grants or disincentives such as informal warnings. As the pyramid narrows, indicating less frequent interventions by the regulator, are compliance directions. At the tip of the pyramid is enforcement.

So, Government, please recognise all of the voluntary efforts being made by farmers, and the great upsurge in catchment groups that are focused on local solutions to local issues. These efforts are achieving far more than prescriptive regulation can ever do. While I support the need for regulation to bring the minority into line, please recognise that the heavy lifting will be achieved through encouragement rather than punitive means.

Who am I?

Graham Pinnell is a retired farmer and natural resource engineer. He has served on two Crown regulatory boards.