MEMORANDUM OF COUNSEL FOR THE ENVIRONMENTAL DEFENCE SOCIETY INC. REPLY TO PROPOSED AMENDMENTS TO RULE TT1(j)

Transcription

1 BEFORE THE BOARD OF INQUIRY IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER of the Tukituki Catchment Proposal MEMORANDUM OF COUNSEL FOR THE ENVIRONMENTAL DEFENCE SOCIETY INC REPLY TO PROPOSED AMENDMENTS TO RULE TT1(j) 19 February 2015

2 MAY IT PLEASE THE BOARD Introduction 1. This memorandum responds to the directions given in the Board s Minutes No. 34 and No. 35 and addresses the proposed revised wordings of Rule TT1(j) provided to the Board on 12 February In particular: (a) The measuring point of the DIN limit; and (b) Exclusions to Rule TT1(j). Measuring Point 2. The Board must decide between a whole-catchment or sub-catchment approach for measurement of the DIN limit. The competing merits are discussed below. 1 The debate largely turns on questions of causation and attribution. On the one hand, which approach better identifies individual properties that contribute to a cumulative effect (thereby triggering a resource consent under Rule TT1(j)). On the other, which approach better excludes individual properties that do not contribute to a cumulative effect The issues raised by the competing approaches cannot be described as creating a factualfiction as it is not a question of deeming. Instead it relates to questions of causation and identifying those properties which may be too remote to be causing or contributing to a cumulative effect. The focus is on the extent of the causal nexus between sub-catchments (or whole-catchments) and DIN limits in freshwater. 4. EDS supports the sub-catchment approach because it is more fine-grained, capturing those properties that can be attributed responsibility for cumulatively causing an exceedence of the DIN limit. It therefore promotes efficiency because it is directed at the properties in question. In contrast, the whole-catchment approach is more of a blunt instrument. It adopts a more 1 HBRC, PPI, Fertilizer New Zealand and Paul Bailey propose measuring the DIN limit at any downstream HBRC monitoring point ( whole-catchment approach ). Fish and Game, Forest and Bird and EDS propose measurcement at the nearest downstream monitoring site within which a farming property or farming enterprise is located ( sub-catchment approach ). Gerard Land Design and Chris Perley have specifically sought that measuring occurs on a sub-catchment basis. 2 In s32-speak: which approach is more efficient and effective at the two goals.

3 diffuse approach to the causal nexus between properties responsible for discharge and exceedence of the DIN limit. 5. A sub-catchment approach measures the DIN limit on a smaller spatial scale than a wholecatchment approach. Only those properties within the particular over-allocated sub-catchment require resource consent. 6. Parts of the wider Tukituki catchment are under allocated. 3 It is therefore not necessary (to give effect to the NPS Freshwater 2014) to require all farms within the wider catchment to obtain resource consent. The sub-catchment approach means that a lesser number than the 615 farms originally identified by the Board as requiring consent under the draft Rule TT1(j) will require consent. In contrast, under the whole-catchment approach the entire catchment above Shag Rock is over-allocated. 4 This is likely to require several hundred farms to obtain resource consents in A sub-catchment approach provides a pragmatic system for measuring the DIN limit. Measuring the DIN limit on a smaller spatial scale avoids over-allocation and achieves ecosystem health, while limiting the regulatory burden on the Council and land owners. A sub-catchment approach achieves the desired environmental outcome of protecting ecological health while enabling productive land use A sub-catchment approach is also consistent with the measurement approach in the policies in Plan Change 6 ( PC6 ). Policy TT4(1)(g) requires: 8 Policy TT4(1)(g) Require the use of production land 12 in those Tukituki River sub-catchments where there are exceedences of Table 5.9.1B (surface water) of Table (groundwater) nitrate-nitrogen or the dissolved inorganic nitrogen limits and targets to be subject to a land use consent under Rule TT2 if the targets are still exceeded or become exceeded after 1 June [Emphasis added] 3 Joint Witness Statement of Water Quality Experts 10 February 2015, Map Joint Witness Statement of Water Quality Experts, 10 February 2015, Map 2. 5 Memorandum for HBRC 12 February 2015 at [13]. 6 Schedule 2 of Memorandum for HBRC providing information on farm numbers, costs and benefits of Rule TT1(j) with formulations at [22]. 7 Final Report and Decision of the Board of Inquiry, Volume 1, at [442]. 8 Proposed reworded version of TT4(1)(g) has been used with additions underlined.

4 9. It is trite that policies are intended to implement objectives; methods (including rules) implement policies Policy TT4(1)(g) refers to sub-catchments. It does not refer to a downstream monitoring point encompassing the entire catchment. It is submitted that a subcatchment approach is required for Rule TT1(j) to implement Policy TT As noted, HBRC contends that a sub-catchment approach creates a factual fiction. 11 This is a partly factual, partly evaluative issue for the Board, bearing in mind the issue of causal nexus and the need to exclude discharges from farm properties that are too remote to be causing cumulative impacts. The Joint Witness Statement (JWS) accepts that properties outside a particular sub-catchment may have some impact on that sub-catchment s allocation level. 12 Contributions these properties make to over-allocation in that sub-catchment are too remote. It is not efficient or effective to require that they obtain resource consent. 13 Wider costs of regulation outweigh the benefit of requiring these properties to seek consent. 11. The JWS identified limitations with both a whole-catchment and a sub-catchment approach. 14 The experts consider there is merit in exploration of other approaches that could reduce these limitations. 15 At an evidential level, the measurement points for determining allocation status may change. Exclusions to Rule TT1(j) Low intensity farming systems 12. The revised wording of Rule TT1(j) submitted by Fish and Game, Forest and Bird, EDS, HBRC, PPI, Fertilizer New Zealand and Paul Bailey proposes an exclusion for low intensity farm systems. 16 This exclusion responds to the Board s concerns regarding the possible number of consents required by Rule TT1(j) in its draft Report. 9 RMA section 75(1)(c). 10 Environmental Defence Society Inc v New Zealand King Salmon Company [2014] NZSC 38 at [10] and [11(c)]. 11 HBRC contends farms contributing to over-allocation in a different sub-catchment further down-stream will be exempt from the requirement to seek resource consent. 12 Joint Witness Statement of Water Quality Experts, 10 February 2015, page 4 at (d)(i)-(iii). 13 At page 4(d)(i) and (ii) the Joint Witness Statement records that the contribution from high sub-catchments to those downstream are relatively minor and very minor. (d)(ii) does not specify the level of contribution to downstream sub-catchments. 14 cf EDS Memoranda of 12 February 2015 at [8] and 15 February Joint Witness Statement of Water Quality Experts at page 4 (d)(v). 16 The revised wordings provided by Gerard Land Design and Chris Pearly did not. If an exclusion for low intensity farming systems is included in the final version of Rule TT1(j) Gerard Land Design has sought that the definition of low intensity farms be amended. The Board has determined that amendments to the definitions in PC6 are outside the scope of reconsideration. See Minute No. 34 at [15]-[16].

5 13. EDS has excluded all low intensity farming systems on the understanding that these have limited, if any, ability to reduce their nitrogen leaching economically. HBRC has limited the exclusion to low intensity farming systems under 10 hectares. EDS has no issue in principle to a size limit of 10 hectares. However, such an exclusion would need to be justified on the basis that low intensity farming systems larger than 10 hectares have high leaching rates which can be mitigated. A size limit will result in more farms being required to apply for resource consent. Exclusion for sheep and beef farms 14. PPI has proposed an exclusion for all sheep and beef farms with less than 11 stock units per hectare. Although EDS is amenable in principle to an exclusion for sheep and beef farms (noting that the definition of low intensity farming systems includes farms with no more than 8 stock units per hectare), it is concerned that no justification has been provided to support PPI s proposal. It is our understanding that certain low-stocking farms have high leaching rates which can be mitigated. R Enright / M Wright Counsel for Environmental Defence Society