Legal submissions on behalf of Dairy Holdings Limited

Transcription

1 under: the Resource Management Act 1991 and: and: submissions and further submissions in relation to the proposed Southland Water and Land Plan Dairy Holdings Limited Submitter Legal submissions on behalf of Dairy Holdings Limited Dated: 25 May 2017 REFERENCE: Ben Williams Jessie Cross

2 1 LEGAL SUBMISSIONS ON BEHALF OF DAIRY HOLDINGS LIMITED INTRODUCTION 1 Dairy Holdings Limited (DHL) is a submitter and further submitter on the proposed Plan. 2 DHL is generally supportive of the proposed Southland Water and Land Plan (Plan), but has a number of specific concerns that need to be addressed to ensure that environmental outcomes are appropriately balanced against the practical and economic demands of farming in Southland. 3 An overview of DHL s farm system and in particular DHL s operations in Southland has been provided in the evidence of Colin Glass. Specific issues relating to soils, drainage, effluent storage and disposal have been covered in Rob Potts evidence. OUTLINE OF SUBMISSIONS 4 In the interests of avoiding any unnecessary duplication, these submissions will take the statements of evidence of Mr Glass and Mr Potts as read, and will focus solely on the following more technical legal aspects: 4.1 The need for a clear and industry-agreed definition of good management practice, based off learnings from the Canterbury Land and Water Regional Plan process; 4.2 The need to provide for the lawful rights of existing users by properly acknowledging: (a) (b) existing, but not yet fully implemented, resource consents; and water taken as-of-right under section 14(3)(b) of the Resource Management Act 1991 (RMA); 4.3 The need to for consistency in terminology used to describe waterbodies; 4.4 The need to qualify any requirement to avoid adverse effects on water quality to ensure consistency with the National Policy on Freshwater Management 2014 (NPS-FM), and the related requirement to refer to specific best practice guidelines so that everyone is working towards an agreed set of standards;

3 2 4.5 The need for a review system for properties located in incorrect physiographic zones; 4.6 The appropriateness of incorporating a nutrient user group objective, policy, rule and definition before catchment-specific nitrogen limits have been set; 4.7 The need for a method for water allocations from overallocated waterbodies under Policy 42.2; 4.8 The need to further qualify the desirability of applying common expiry dates under Policy 40; and 4.9 The need for a rule explaining the process for creating and joining a register of Independently Audited Self-Management Participants. LEGAL ISSUES ARISING Good management practice 5 DHL submitted that a definition of good management practice with reference to industry-agreed standards is required so that there is consistency in approach across Southland, and clear expectations as to what is required from farmers. 6 Good management practice is referred to in Objective 18 and Policies In addition, good management practices must be included in Farm Environmental Management Plans (Appendix N), which are required by a number of Rules. It is clear that good management practice is central to the Plan, and it is therefore essential that the expectations around it are clearly understood. 7 The Section 42A Report (Report) acknowledges the work of the Land Sustainability Team within Environment Southland, and points out that the purpose of this team is to deliver non-regulatory advice and education to effect behaviour change in Southland to improve environmental outcomes, including by: 1 [D]elivering programmes of advice, information and education that contribute to increased sustainable environmental management and behaviour change. 8 Obviously one way that advice, information and education could be delivered would be through industry-agreed good management practice guidelines or standards. If the Plan refers to a specific set of industry-agreed standards or guidelines (such as the Industry- 1 See paragraph 3.129

4 3 Agreed Good Management Practices document 2 ) then the Land Sustainability Team would have a clear point-of-reference to use in educating and farmers and encouraging compliance. 9 The Report acknowledges that good management practices are evolving, and there is a need to update expectations over time. 3 The Report recommends amendments to Appendix N to become outcome oriented, and as such it does not require any specific actions to be implemented The Report also notes that: a specific definition of good (environmental) management practice has not been included in the pswlp as these will likely evolve and change as technology and knowledge improves over time. This provides the ability for the pswlp to be adaptable to changing technology and innovation over time as the information can be updated when new mitigations are developed While DHL supports an outcome-oriented approach that allows individual farmers the discretion to determine what management practices are most appropriate for their own properties, there is still merit in referring to industry-agreed guidelines as a baseline to set expectations. 12 It is accepted that good management practices will continue to evolve from any industry-agreed guidelines, and these will necessarily need to be regularly updated. However, this does not discount the benefits to be obtained from having a guiding document available to refer to for education and enforcement purposes. 13 Without a point-of-reference for what is meant by good management practice it is difficult to see how Environment Southland intends to enforce any of the policies or rules referring to the need to prepare management plans that include good management practice. 14 The definition of good management practice suggested in DHL s original submission does not prevent Environment Southland from updating and amending good management practice standards as 2 Industry-agreed good management practices relating to water quality, created through collaboration between DairyNZ, Deer Industry New Zealand, NZPork, Beef+Lamb New Zealand, Horticulture NZ and the Foundation for Arable Research, Environment Canterbury and Crown Research Institutes. Published 18 September Paragraph Paragraph Paragraph 5.221

5 4 technology develops, in fact it provides for that very situation. DHL has recommended referring to the Industry-Agreed Good Management Practices Relating to Water Quality (relied on the Canterbury context) so that farmers have a clear indication of what is expect of them from the start. However, these standards can easily be replaced by more Southland-focused guidelines at any time (as is stated in the original DHL submission): 6 Good management practices refers to those practices identified in the Industry-Agreed Good Management Practices Relating to Water Quality and updated versions of this guide; or other good management practice standards that may be issued by Environment Southland. 15 Without a definition along the terms of the above it is difficult to see how Environment Southland will have any way of enforcing the requirement to have a Management Plan that includes good management practices. Existing but not implemented resource consents 16 DHL s original submissions requested a number of amendments to policies and rules to adequately provide for and protect the interests of those landowners with resource consents that have not yet been implemented. 17 In particular, DHL requested amendments to Policy 20, Policy 21, Rule 21 and Rule This is directly relevant to DHL, with as set out in evidence, one of its properties ( Fairplace grazing ) holding consent to convert from a support property to a dairying property, which is yet to be fully implemented. Policy The Report has supported the amendments sought by DHL to Policy 20(1)(g) and 20(2)(b) to include reference to those holding consents that are not yet implemented. It notes that: 7 consented abstractions are considered to be part of the existing consented environment, and in my view, it is appropriate that these consent holders maintain the same rights as lawful existing users. 20 DHL agrees with the above sentiment, and requests that the Panel accept the amendments to Policy 20(1)(g) and 20(2)(b) as set out in the Report - i.e.: 8 6 DHL original submission point 40 7 Section 42A Report at paragraph Paragraph 8.62.

6 5 Manage the taking, abstraction, use, damming or diversion of surface water and groundwater so as to: 1. avoid, remedy or mitigate adverse effects from the use and development of surface water resources on: (g) the rights of lawful existing users, including those with existing, but not yet implemented, resource consents 2. avoid, remedy or mitigate significant adverse effects from the use and development of groundwater resources on: (b) the reliability of supply for existing groundwater users, including those with existing, but not yet implemented, resource consents Policy The Report considered the amendments sought by DHL to Policy 21, which were similar to those sought for Policy 20. The Report concluded that the amendments were unnecessary, because the policy wording already provides for current resource consents, which includes consents granted but not yet implemented. 9 While DHL accepts that this may be the case for Policy 21(2), the wording used in Policy 21(3)(b) is different, and still warrants clarification. 22 Policy 21(3)(b) reads (with emphasis added): (b) the reliability of supply for existing groundwater users is not adversely affected. 23 DHL maintains that clarification is needed so that existing groundwater users includes those with current resource consents that have not yet been implemented. On the current wording, Policy 21(3)(b) appears to only apply to those who are already taking groundwater, and does not necessarily include those with consents to take groundwater that have not yet been exercised. 24 Clarification could be achieved through amending Policy 21(3)(b) as set out in DHL s original submission: 9 Paragraph 8.79.

7 6 The reliability of supply for existing groundwater users (including those with existing resource consents for groundwater take that have not yet been implemented) is not adversely affected. 25 Or by similar amendment that achieves the same outcome, of clearly acknowledging all current resource consents. We note that the Report recommended a similar amendment to Policy 20(2)(b) to further define existing groundwater users, and therefore for the sake of consistency, a similar amendment should be made to Policy 21(3)(b). Rule The Report has recommended a number of changes to Rule 21. DHL has concerns around the addition of Rule 21(b)(iii): 10 the land area of the dairy platform is no greater than at 1 May Where a dairy farm was consented at 1 May 2016, but had not been established at this date, the land area of the dairy platform will obviously have to increase for the consented dairy farm to come into existence. DHL opposes the addition of Rule 21(b)(iii) as recommended in the Report, unless it is made clear that the land area may increase where this is done pursuant to a resource consent that existed as at 1 May 2016, for example: the land area of the dairy platform is no greater than what existed, or was consented, at 1 May Rule The Report has recommended an alternative amendment to that suggested by DHL for Rule 35(b)(i) and Rule 35(c), noting that use of established in Rule 35(b)(i) makes it unclear whether the rule captures all consented discharges, or only those that have been exercised. 29 DHL supports the recommended changes to Rule 35(b)(i) and 35(c) set out at paragraph of the Report, as these amends clearly provide for existing resource consents, regardless of whether these have been implemented or not, i.e.: (b) The discharge of agricultural effluent or water containing agricultural effluent onto or into land, in circumstances where contaminants may enter water, is a restricted discretionary activity, provided the following conditions are met: (i) the discharge is the replacement of a lawfully established an existing discharge consent pursuant to Sections C of the RMA 10 See paragraph 7.652

8 7 (c) The discharge of agricultural effluent or water containing agricultural effluent onto or into land, in circumstances where contaminants may enter water that did not exist as at 1 May 2016, or seeks to increase the number of stock provided for in the Riverine, Gleyed, Bedrock/Hill Country, Oxidising, Central Plains, or Lignite-Marine Terraces physiographic zones that does not meet one or more conditions of Rule 35(a), or Rule 35(b)(i) and (ii) is a discretionary activity, provided the following conditions are met: Water take rights under s14(3)(b) RMA 30 DHL requested amendments to Policy 20, Policy 22, Rule 49 and Rule 54 to acknowledge the right to take water for domestic use and stock water under section 14(3)(b) of the RMA. 31 The Report acknowledges that water abstracted in accordance with section 14(3)(b) of the RMA is a fundamental right provided for by the RMA. DHL supports this approach, however the amendments recommended by the Report do not fully endorse this approach and further amendments are needed, as set out below. Policy The Report supported the amendments sought by DHL to Policy 20(1)(g) and 20(2)(b). 11 However, while this support was translated into a suggested amendment to Policy 20 with regard to existing but not implemented resource consents (as discussed above), the amendment to include reference to water abstracted in accordance with section 14(3)(b) of the RMA was not included in the Report s recommended wording for Policy DHL therefore requests that Policy 20(1)(g) and 20(2)(b) be amended to include reference to section 14(3)(b) of the RMA as follows: 20(1)(g): The rights of lawful existing users, including those with existing, but not yet implemented, resource consents, and those taking water as of right pursuant to section 14(3)(b) of the Resource Management Act Paragraph Paragraph 8.62

9 8 20(2)(b): The reliability of supply for existing groundwater users, including those with existing, but not yet implemented, resource consents, and those taking water as of right pursuant to section 14(3)(b) of the Resource Management Act Policy 22, Rule 49 and Rule DHL submitted that the groundwater and surface water daily abstraction volumes referred to under Policy 22, Rule 49 and Rule 54 should exclude water taken as of right pursuant to section 14(3)(b) of the RMA, as it would be inappropriate for a Plan to restrict the ability of landowners to take water that is expressly provided for in the RMA. 35 The Report recommends that Rule 49 include a statement that section 14(3)(b) of the RMA has been taken into account and included as part of the 86 cubic metre per day limit for permitted takes. 13 A similar recommendation is made for Rule This Report commented that section 14(3)(b) of the RMA is not unfettered, as the taking or use cannot, or cannot be likely to, have an adverse effect on the environment. The Report states that the 86 cubic metre limit set out in the proposed Plan has been assessed by Council as the maximum level of take that can be permitted per landholding before adverse effects will occur, or are likely to occur, on the environment It is unclear why any water take above this limit is (as stated in the Report) expected to cause, or likely to cause, adverse effects. The 86 cubic metre limit may be appropriate in terms of managing adverse effects on some properties, but there will be a large number of properties where a take above this limit can safely be sustained without any adverse environmental effects. 38 In DHL s submission, site-specific factors are of critical importance in determining the potential for adverse effects from water take. For example, a particularly large landholding that supports a large number of stock and multiple dwellings would quite feasibly be able to take in excess of 86 cubic metres of water per day without adverse environmental effects (from a number of bores across the property), and indeed would need to do so in order to meet reasonable domestic and stock drinking needs as provided for in section 14(3)(b) RMA. In this situation, section 14(3)(b) is sufficient to ensure that water taken for domestic and stock water needs will not have adverse effects. 13 Paragraph Paragraph Paragraph 8.231

10 9 39 On the basis of the above, DHL opposes the Report s recommended amendment to Rule 49(a)(ii) and maintains that it is inappropriate to impose a maximum water take that has no consideration of the size of the landholding, and without a site-specific effects assessment. 40 Such a restriction is contrary to section 14(3)(b) of the RMA, which expressly permits water take for domestic and stock drinking water provided that such take does not, or is not likely to, have an adverse effect on the environment. 41 A limit within a Plan that restricts the section 14(3)(b) take right, without a clearly established justification based on environmental effects, 16 is inappropriate and amendment is required. 42 DHL requests that Policy 22 and Rule 49 be amended so that the 86 cubic metre limit does not apply to water taken as of right under section 14(3)(b). This is appropriate as water taken under this section must not have adverse effects on the environment, so it is unnecessary to further restrict the take through Plan rules. 43 For example, DHL seeks: 43.1 Policy 22.3.b: assess and manage the effects of groundwater abstractions with a daily volume exceeding 86 cubic metres per day (not including water taken under s14(3)(b) of the Resource Management Act 1991) in groundwater management zones other than those specified in Appendix L Rule 49.a.ii (noting other amendments are also sought to this rule that address the same issue): the maximum volume of take allowed under this rule and Rule 54(a) is not added. A maximum of 86 cubic metres, plus water taken under s 14(3)(b) of the RMA, of groundwater and surface water combined per landholding per day may be taken Waterway terminology 44 DHL submitted on the use of the term waterbodies in Policies 16 and 18, on the basis that this term is not defined in the Plan and using it creates uncertainty given the wide range of water courses that might be considered to fall within this term. 16 The section 42A report does not include any details of the assessment carried out by Environment Southland to determine the 86 cubic metre limit. In any case, it is difficult to see how such a limit can represent a level beyond which adverse effects will, or are likely to, occur when it is not linked to landholding area.

11 10 45 The Report recommends changes to Policy 16 and 18 to remove the references to waterbodies 17, and also recommends removing references to surface waterbodies and replacing with a lake, river, natural wetland, artificial watercourse or modified watercourse The Report recommends that Fonterra s suggestion of requiring exclusion from waterbodies with an active bed be adopted, noting that this also has support from Environment Southland s Land Sustainability team. 19 Fonterra s recommended definition of active bed appears to have been included in the Report by way of an amendment to the definition of intermittent waterbodies. 20 DHL supports this amendment. 47 The Report s recommended version of Policy 18 requires exclusion of stock from: Lakes, rivers (including intermittent rivers), natural wetlands, artificial watercourses, modified watercourses, estuaries and lagoons 48 It is unclear why the term intermittent rivers has been included, as there is no definition of this term suggested (however as noted above, there is a definition of intermittent waterbodies ). DHL suggests that for the sake of consistency with Rule 25, it would be appropriate to change Policy 18 as follows: Lakes, rivers (including intermittent rivers), intermittent waterbodies, natural wetlands, artificial watercourses, modified watercourses, estuaries and lagoons 49 Similar amendment to Rule 70 is also required, to replace intermittent rivers with intermittent waterbodies. Given that in many instances, the requirements for cultivation setback and stock exclusion from waterbodies will both be met by waterway fencing, it is necessary to ensure that there is consistency between the Rules. 50 For completeness it is noted that the stock exclusion requirements suggested in Rule 70 and Policy 18 appear more stringent than the Fonterra Water Accord however, Fonterra has supported fencing intermittent waterways in their submissions (intermittent waterways do not have to be fenced under the Water Accord) and DHL s happy with the approach being taken here. 17 Paragraph Paragraphs 8.308, Paragraph Pragraph 7.705

12 11 Effluent management 51 DHL submitted that Policy 17 required amendment to include further explanation of what is meant by best practice guidelines. 52 The Report notes that best practice is always evolving and as such it is difficult to refer to any specific practices or standards, and has recommended that examples of available best practice guidelines be included in two notes to Policy 17, rather than a definition - i.e.: 21 Note: Examples of best practice referred to in 17(2)(a) include IPENZ Practice Note 21: Farm Dairy Effluent Pond Design and Construction and IPENZ Practice Note 27: Dairy Farm Infrastructure. Note: Examples of best practice guidelines referred to in 17(2)(b) include DairyNZ s guidelines A Farmer s Guide to Managing Farm Dairy Effluent A Good Practice Guide for Land Application Systems, 2015 and A Staff Guide to Operating Your Effluent Irrigation System, DHL supports this approach. The notes recommended in the Report provide clarification and should be accepted. 54 With regard to Policy 17, DHL also submitted that the requirement to avoid all adverse effects on water quality is too high a standard, and needs to be qualified. 55 The Report states that avoid is necessary to give effect to the National Policy Statement for Freshwater Management 2014 (NPSFM), the Southland Regional Policy Statement (SRPS) and the proposed Southland Regional Policy Statement (psrps), which require the Council to provide clear policy direction with respect to the maintenance or improvement of water quality While the NPSFM undoubtedly requires the maintenance or improvement of water quality, 23 this does not translate into an absolute requirement to avoid all adverse effects (including minor adverse effects) on water quality in all circumstances. In particular, Policy A3 of the NSPFM provides (with emphasis added): Where permissible, making rules requiring the adoption of the best practicable option to prevent or minimise any actual or likely adverse effect on the environment of any discharge of a contaminant into fresh water, or onto or into land in circumstances that may result in that contaminant entering fresh water. 57 Further, Policy A4 and Direction (under section 55) to Regional Councils provides (with emphasis added): 21 Paragraph Paragraph Objective A2 of National Policy Statement for Freshwater Management 2014

13 12 When considering any application for discharge the consent authority must have regard to the following matters: a. The extent to which the discharge would avoid contamination that will have an adverse effect on the life-supporting capacity of fresh water including on any ecosystem associated with fresh water and b. The extent to which it is feasible and dependable that any more than minor adverse effect on fresh water, and on any ecosystem associated with fresh water, resulting from the discharge would be avoided. 58 Contrary to the suggestion in the Report, there are no Objectives or Policies in the Operative SRPS that require avoidance of all adverse effects on water quality. Policy 5.5 of the Operative RPS provides (emphasis added): In preparing, implementing and administering Regional and District Plans and in considering resource consents, local authorities shall assess the effects of land use and development on ground water and surface water quality, including both point and non-point source discharges, and provide for any adverse effects to be avoided, remedied or mitigated. 59 Similarly, the Objectives and Policies of the psrps are directed at implementing the NPSFM, but do not require avoidance of all adverse effects on water quality, provided that overall, water quality is maintained or improved The psrps also includes Policy WQUAL.6 which requires the social, economic and cultural benefits that may be derived from the use, development or protection of water resources be recognised. 61 Taking into account the relevant Objectives and Policies of the NPSFM, SRPS and psrps, it is submitted clear that amendment to Policy 17 and a softening of the requirement to avoid adverse effects on water quality is required. 62 This could be achieved by the following amendment: Avoid more than minor adverse effects on water quality and avoid, remedy or mitigate other adverse environmental effects of the operation of, and discharges from effluent management systems. 24 Objective WQUAL.1 of Proposed Southland Regional Policy Statement and Policy WQUAL.1

14 13 63 This wording aligns a little better with the NPSFM over the wording that was sought in DHL s original submission (which simply referred to avoid as far as practicable ). Physiographic zone policies 64 DHL submitted that the physiographic zone policies could be simplified to reduce unnecessary duplication. In addition, DHL supported a number of submissions that requested a mechanism for property owners to have the zoning of their property reviewed or changed. 65 The Report acknowledges that while there is some duplication between physiographic zone policies, this has been used to clearly state the requirements for each zone. 25 DHL has no objection to this. The Report has simplified other aspects of the physiographic zones by removing size thresholds based on physiographic zones, and differences between zones for stock exclusion provisions. 26 DHL supports these recommended amendments. 66 However, DHL maintains its submission that there needs to be a mechanism for applying to have zoning checked and updated if it is shown to be incorrect. This is illustrated by the evidence of Rob Potts which clearly sets out that a part of DHL s Valley Views property is incorrectly included in the Peat Wetlands zone. As explained by Mr Potts, on-site investigations have established that there is nothing to indicate this property should be included in the Peat Wetlands zone, and the soil characteristics are instead reflective of the Oxidising Zone. 67 The Report has outlined the scientific basis for the Physiographic Zones, which appears to be robust. However, the Report also acknowledges that (emphasis added): 27 Each physiographic zone represents distinct combinations of biogeochemical and hydrological controls over potential water quality state, while the variants represent areas within each zone where variability in drainage mechanisms can modify water quality risk on a temporal basis. However, zonation is by necessity a simplification of a more sophisticated, higher resolution conceptual framework, which provides additional spatial resolution over water quality and compositional outcomes. This process necessitated some simplification and generalisation of the modelling undertaken during Part 1, such that there may be 25 Paragraph Paragraph Paragraph and 6.46

15 14 instances where a property may have some different characteristics to those specified for the physiographic zone mapped. 68 Given that the Physiographic Zone framework is being used to determine the activity status of some activities, it is essential that restrictions on activities are justified based on environmental outcomes. Where an area of land has been incorrectly zoned, activities in this area will not have the anticipated environmental effects as have been contemplated for that zone. In this situation, landowners may find themselves facing stricter consenting requirements, for no good reason In this regard, the Report notes that: 29 While there may be some differences at the property scale, the key outcomes sought by the policy and rule framework in the pswlp remain important to ensure freshwater outcomes for Southland are met It provides better ability to decline consents where the activity is not appropriate, or mitigations required that are commensurate with the risk of both the activity and the physiographic zone. 70 In DHL s submission, there is a serious problem with using physiographic zones as justification to decline consents where the land in question might not exhibit the characteristics of the physiographic zone in question. In this situation, consents may be declined, even though there is no sound environmental basis for doing so. 71 The Report has addressed some, but not all, of DHL s concerns in this regard. The Report recommends including a new policy that recognises the need to take into account site specific information to verify key contaminant pathways when assessing resource consent applications. 30 The Report notes that the intention of this policy is to ensure that applicants are not required to adhere to mitigations that do not reflect the reality of their property For example, Rule 21(d) as proposed by the Report classifies dairy farming of cows that does not comply with various other Rules is a discretionary activity in various physiographic zones, but is non-complying in the Old Mataura or Peat Wetlands Zones. Similarly in Rule 23(d) intensive winter grazing is a discretionary activity in various zones, but the same activity in the Peat Wetlands or Old Mataura zones is a non-complying activity under Rule 23(e). A similar situation applies to discharge of agricultural effluent to land under Rule 35(c) and 35(d). 29 Paragraph Paragraph Paragraph 6.49

16 15 72 While this goes some way towards addressing DHL s concerns with the incorrect zoning of its Valley Views property, DHL s preference is still to have the zoning of this property changed, for the reasons set out in Mr Potts evidence. The physiographic zoning of a property contributes to the activity status of some activities, 32 and therefore will continue to have an impact on properties that are incorrectly zoned, even with the addition of the Report s recommended new policy. 73 The Report s recommended addition of Rule 21(h) will (in the alternative to correcting the mapping in the particular case of the Valley Views farm) resolve DHL s concerns, and DHL supports this amendment. However, this will not resolve the concerns of all landowners in Southland. 74 It is therefore necessary and appropriate for the Plan to provide an avenue for landowners to apply to have the physiographic zoning of their property changed, if that landowner can supply sufficient evidence to establish that the zoning is incorrect. While ideally the cost of this should not fall upon the landowner, the inclusion of a mechanism in the Plan that does leave the costs up to the landowner is a better outcome than no option to challenge the zoning at all. Application of the permitted baseline 75 DHL submitted that Policy 39 is inappropriate and should be deleted as it departs from the orthodox standard for the permitted baseline, developed through case law. 76 The Report states that the intent of the policy is to: capture farming activities that are less common land uses but have large N losses that are not captured by the permitted thresholds and proposed provisions. Application of the permitted baseline to such farming activities therefore has the potential to adversely affect water quality and risk the achievement of the Plan s water quality objectives Without any further explanation being provided it is unclear as to exactly what farming activities are said to be of concern. 78 Regardless, if the position is that there are other farming activities not provided for in the proposed provisions then the policy would be best directed to those provisions rather being a catch-all for all activities. As currently written an activity that is expressly provided 32 For example, Rule 21(e) as recommended by the Report: The use of land for dairy farming of cows that does not comply with Rule 21(a), 21(b)(i) or 21(b)(ii) in the Old Mataura or Peat Wetlands physiographic zone is a non-complying activity. 33 Paragraph 6.149

17 16 for but which might require a resource consent is denied the ability to refer or rely on what might be permitted under the plan. 79 Conscious that the issue of the permitted baseline will be covered by other submitters, it simply noted that the permitted baseline is a well-established and accepted concept throughout resource management law, DHL maintains that Policy 39 is inappropriate and should be deleted. 80 In the alternative, if there are other farming activities where there is a concern around application of the permitted baseline then it is important that the policy is redirected to those activities. Nutrient user groups 81 DHL requested a new objective, policy and rule to provide for nutrient user groups in the Plan. This was suggested as a result of DHL s experience in the Canterbury Land and Water Regional Plan process. 82 The Report responded as follows: 34 Given that the provisions set out in the pswlp do not set on-farm nutrient allowances or numeric discharge limits, it is my view that the Nutrient User Group provisions sought by DHL are unnecessary. Should any future FMU process indicate that on-farm limits are necessary or appropriate, it is my view that this topic could be reconsidered. 83 With respect, it appears that the very intention of the FMU process is to set limits, 35 which could be expected to include, for example, nutrient limits (as has been done in Canterbury). 84 Further, the Plan already requires the preparation of nutrient budgets, 36 which is fairly strong indicator that nutrient limits may follow through the FMU limit setting process. 85 Rather than try and include nutrient user groups at a later date (as was done in Canterbury), it makes sense to encourage consistency across the plan, and to avoid a situation where nutrient user groups are provided for in some FMUs, but not all. 34 Paragraph The Introduction to the Plan on page 7 states (emphasis added): The NPS-FM includes a requirement to define the waterbodies to be managed, and set outcomes, limits, targets and other measures to achieve those outcomes...through the FMU limit setting process, objectives policies and rules will be developed for each FMU. 36 As a part of Farm Environmental Management Plans: Appendix N, Part B of the Plan.

18 17 86 This has been an issue in Canterbury where different sub-regional chapters now take a slightly different approach to nutrient user groups and farm enterprises. Allocating water from over-allocated catchments 87 DHL submitted that discussions need to be had around the appropriate method for calculating allocations from over-allocated catchments under Policy The Report has accepted DHL s recommended addition to Policy 42.2 to refer to the method set out in Appendix O The Report also recommended that DHL provide suggested amendments to the Plan to include a method for calculating replacement water take consents from over-allocated waterbodies DHL considers that the requirements under Appendix O(b) that in effect refer to demonstrated use are already an effective means of reducing allocation over time. Equally, restricting or renewals to demonstrated use may not be appropriate or necessary in all cases. DHL suggests that the following considerations could be added to Appendix O, Irrigation(b): Replacement resource consent applications to take and use water for irrigation will utilise records of historical water use to establish a seasonal allocation which takes into account: Whether the previous seasonal allocation as determined under Appendix O(a) remains appropriate for the farming activity being undertaken; The volume of water utilised in previous irrigation seasons; Any proposed changes to the operation of the irrigation system or farming system; and In waterbodies that are determined to be over-allocated (in addition to the matters listed above): o The level of investment made in reliance on the previous water allocation, and the impact a reduced allocation would have on this investment; and o An annual irrigation volume to achieve 80 percent (4 in 5 year) reliability. 37 Paragraph Paragraph 8.187

19 18 Desirability of common expiry dates 91 DHL submitted that Policy 40 requires amendment because it will not always be desirable to require common expiry dates for water permits that allocate water from the same resource or land use and discharges that may affect the quality of the same resource. 92 In particular, where a property owner holds an existing water permit or discharge consent, with, for example, 3 years left to run, it would not be desirable for a new water permit to be granted for the length of term remaining on the existing water permit (i.e. 3 years) because this does not give sufficient certainty to the farmer. It would also result in higher consenting costs, as property owners would have to renew their consents more frequently. 93 The Report notes that the intention of the Policy is to provide the opportunity to bring consents in line with the limits that will be set in the Plan as the development of the FMU sections occurs. 39 The Report is not supportive of the idea of using suitable review conditions to achieve this outcome, as this would come at a large cost to Council DHL acknowledges the significant cost involved in large-scale reviews of consent conditions, however DHL s concerns around requiring certainty to support investment and ensuring that consenting costs do not significantly increase remain valid. 95 By way of compromise, DHL suggests the below amendment to Policy 40(5), so that the desirability of common expiry dates is considered where multiple applications are within one year of each other. This will help to prevent a situation where consent holders are granted consent for a very short period of time (to coincide with an existing consent in the same area) that does not provide sufficient certainty of supply to support the investment in on-farm equipment and infrastructure that often accompanies such consents. The desirability of applying a common expiry date for water permits that allocate water from the same resource or land use and discharges that may affect the quality of the same resource, where such applications are made within two years of each other; Independently Audited Self-Management Participants 96 DHL submitted that the Plan needed to include a definition or explanation of what Independently Audited Self-Management Participants are. 39 Paragraph Paragraph 6.178

20 19 97 The Report concludes that it is not necessary to include a definition, as Policy 16 and the relevant rules are sufficiently certain (in that it includes reference to a register of the participants), meaning that a separate definition is not necessary The Report also records that while no Independently Audited Self- Management Scheme exists now, it is envisaged that it will be developed by industry groups and Environment Southland This is consistent with the section 32 Report, which noted that at the time of drafting the plan there was good support, in principle, for the adoption of an Independently Audited Self-Management Scheme but no such scheme had been established. 43 The section 32 Report noted that the provisions of the proposed Plan: encourage industry to develop IASM schemes. Farmers would join these schemes and members would be exempt from preparing an FEMP in accordance with Appendix N However, there are currently no provisions in the Plan that explain this intent, and no explanation of how an Independently Audited Self-Management scheme will be created or joined. It is entirely unclear from the Plan who may take the initiative to create such a scheme, who will meet the costs of developing such as scheme, or how a scheme would operate in practice. Without some sort of further explanation it is difficult to see how an Independently Audited Self-Management system will actually be developed. 101 DHL therefore maintains its submission that further explanation of Independently Audited Self-Management Participants is required. In light of the comments in the section 42 and 32 Reports noted above, DHL recommends the following Rule: Register of Independently Audited Self-Management Participants 1. Environment Southland, or a farming industry group in consultation with Environment Southland, may create a register of Independently Audited-Self Management Participants. 2. Any such register referred to under Rule X(1) must be accompanied by a set of recommended good management practices. 41 Paragraph Paragraph Section 32 Report on Proposed Southland Water and Land Plan at page Page 108

21 20 3. Any register created under Rule X(1) and recommended good management practices under Rule X(2) shall be published on Environment Southland s website. 4. Any person or entity involved in farming activity may apply to Environment Southland or the relevant industry group to be included in a register of Independently Audited Self-Management Participants. 5. Independently Audited Self-Management Participants must manage their farming activities in accordance with the appropriate good management practices referred to in Rule X(2) in order to retain their place on the register. CONCLUSIONS 102 While DHL is generally supportive of the proposed Plan, there are a number of (relatively minor) amendments that need to be made in order to ensure the Plan can operate effectively, in a way that gives adequate recognition to existing and consented land use activities. 103 The Plan should be forward-thinking, and pro-actively provide the option of using management tools such as nutrient user groups, rather than try to respond to these issues as they arise at a later date through the FMU process. Such an after-the-fact approach will inevitably lead to a piecemeal Plan that is unnecessarily difficult to interpret and apply. 104 The Plan should also include reference to industry-agreed good management practice guidance and standards wherever possible, whilst also allowing for these to be updated over time. This approach has the dual benefit of providing certainty and clear expectations for farmers, whilst also future-proofing the Plan. 105 In DHL s experience, unless there is industry-wide agreement and understanding, it is very difficult to get traction in terms of changing long-standing farming practices. The best way forward is to include farming industries in the discussion, and to encourage the implementation of clear industry-agreed good management practices wherever possible. 25 May 2017 Ben Williams/Jessie Cross Legal Counsel of Dairy Holdings Limited