Farming lobby pushes to declaw ‘the meat of the RMA’

As the Government rolls out a suite of environmental and regulatory reforms, industry groups have written to ministers requesting changes to environmental laws governing when and how harmful discharges can be made into freshwater catchments.
Three recent court rulings have restricted the ability to discharge nutrients into New Zealand’s unhealthiest waterways, a move these industry bodies say will be “fatal” to farming nationwide.
Defenders of the court rulings say they represent legislation finally catching up to human and environmental needs, while critics say they will completely undermine the country’s ability to grow food.
The industry concerns centre on two sections of the Resource Management Act: 70 and 107. On April 29, leaders of Dairy New Zealand, Beef + Lamb and Federated Farmers wrote to Associate Minister for the Environment Andrew Hoggard with their concerns about the recent rulings on sections 70 and 107, which they argued would make pastoral farming in New Zealand “effectively unlawful”. Hoggard – himself a former Fed Farmers head – agreed on Wednesday it would be “fatal to all farming that relies on consent”. 
Section 70 governs permitted discharges into waterways, and section 107 governs how and when councils can grant discharge permits for activities otherwise not permitted. Lan Pham, Green Party spokesperson for the environment, called these sections “the meat of the RMA”. 
Historically, according to the April 29 letter, these sections have been “generally accepted” to apply only to point source discharges: discharge coming from an identifiable source, such as a pipe or a leaking drum. This is opposed to diffuse discharge, like pasture runoff from animal waste or fertiliser. 
But three recent court rulings have set a firm precedent: diffuse discharge is within the scope of section 70, and councils may not be able to grant exceptions under section 107 if the health of a waterway is already in dire straits. This includes from the cumulative effects of other discharges, meaning even if a given discharge might not otherwise be noticeable, if it’s part of a bigger problem, it can’t get a permit.
All of this is set against the background of RMA reform by the current Government. Legislation has been introduced to amend the hierarchy of obligations set out in the National Policy Statement for Freshwater Management, which currently puts the health of freshwater systems above all. Elsewhere, Minister for Regulation David Seymour has begun a regulatory review into agricultural and horticultural products, which he presented to industry leaders on Wednesday in Wellington alongside Hoggard.
The three court rulings have all come since 2022. That year, an Environment Court decision in Aratiatia, Southland, held that section 70 applied to diffuse discharge as well as point source, so long as the waterway in question was at or below national health standards according to the freshwater policy statement. Because of this, anyone who wanted to operate in such an area would need to apply for a consent from their council; having cows on a paddock means having cow waste on a paddock, and therefore in the catchment.  
This year, a decision in Canterbury made a further ruling: Ashburton Lyndhurst Irrigation Ltd’s consent was found by the High Court to have been inappropriate, because an independent hearings commissioner did not take into account the cumulative effects of widespread farming in the area. The company had applied for a consent to discharge nutrients onto or into land – not directly into the nearby Rangitata River – but without an included plan for immediate remediation of the waterway, the consent apparently should not have been granted. The sum total of inputs into the catchment had to be considered, and consents could not be granted without that consideration.
Hoggard told Newsroom on Wednesday the combination of these two rulings “was effectively the end game … [it’s] going to create a massive headache for councils as to what they do around renewing consents”. 
A third ruling came in 2023, when the Court of Appeal quashed the Specified Vegetable Growing Areas of Pukekohe and Horowhenua from the National Policy Statement. This essentially meant that horticulture operations now no longer have an exception to the considerations around catchments currently at or below a minimum standard.
All up, for the affected farming or growing operations, these rulings suggest any discharge – diffuse included – would now be unlawful without a consent. Furthermore, councils may not even be allowed to grant such a consent in the first place. But this set of regulations applies exclusively to select waterways that are already at or below the minimum standards for quality in New Zealand. 
Pham told Newsroom the decisions meant “legislation is finally catching up to where human and environmental health and wellbeing actually needs to be … where there’s really degraded environments, these consents are starting to be declined”.
Pham said this wasn’t a matter of what she thought was right or wrong for the environment, but a signal of a wider shift in agricultural and farming policy: “It’s where the markets are going, where the international trade agreements are going. All the signals are pointing so clearly to the fact that we can produce food – and we need to be able to produce food – in ways that do not severely degrade the environment. We can do that.”
She had faith in New Zealand farmers and growers to produce enough to feed the country and pay their checks without doing so at the cost of the environment. “We know that food producers, farmers, landowners on the ground, do produce food now in positive ways that do not degrade the environment. If we’re not doing enough of it, surely the industry should be learning from those leading farmers.” Doing so was the only way she saw to uphold “our ‘clean green New Zealand’ brand, but also set our country up as a truly sustainable food producer that’s fit for the future and not preoccupied with the bad practices from our past”.
The outlook from the industry sector was not quite as optimistic. Horticulture New Zealand said the implications of the combined rulings will be “fatal to the production of sufficient quantity of fruit and vegetables in New Zealand as required for domestic consumption and food security”. Beef + Lamb said: “This catch-22 has the effect that all or most farming could become unlawful.” Both of these comments came in written submissions from the parties to the Resource Management (Freshwater and Other Matters) Amendment Bill.
Hoggard told Newsroom on Wednesday the issues stemmed from a change of intention from the original Resource Management Act, and it all hinged on point source versus diffuse discharges.
“It was never intended when all of this was dreamed up that we would be trying to consent diffuse discharge. It was all around managing the point source discharges, not the diffuse,” which he described as “effectively, animals doing their business on a paddock”.
Anna Sintenie, senior researcher at the Environmental Law Initiative, told Newsroom she didn’t think that was true “at all”. According to Sintenie, “all that needs to be said is that the judgments have been consistent in finding that diffuse is captured by [the legislation]”. She gave the example of the Taupō catchment, which has consistently managed diffuse discharges in these same frameworks. 
Sintenie believed questions about the RMA’s original intentions didn’t hinge on diffuse versus point source discharges, because the RMA’s original intent was to protect the environment, first and foremost. “There’s only two ways councils can enable [harmful discharges], and it’s through section 70, permitted activities, or through consents, which are controlled by section 107,” said Sintenie. “Both have a very clear environmental bottom line.” 
As far as the “fatal” claims went, Sintenie agreed the implications may pose some barriers to operators, but only “to those very activities” described by sections 70 and 107, the ones that would “give rise to significant effects on aquatic life”. But she did not agree they would be fatal to the industry.
Hoggard also questioned the way in which the status of “over-allocated” or “below minimum thresholds” was determined. His own catchment is “supposedly over the limit for E coli, but it’s over the limit when it leaves the ranges as well”. He asked “What are we going to do to the Department of Conservation, you know, and all the wild deer” who affect that water before it reaches farmers? 

The April 29 letter to Hoggard has some suggestions, though Hoggard himself said official updates would be coming soon. In the letter, industry leaders proposed two amendments: the first would clarify section 70 to restrict its domain to point source discharges; the second would allow consents to be granted for discharges into minimum-standard waterways so long as that discharge would not have been noticeable without the cumulative effects of other discharges, and only so long as the consent included a plan for remediation. 
The amendments to section 70 specifically state that animal waste and nitrogenous fertilisers applied to the land are not within the scope of the section. In Canterbury, the major source of drinking water is groundwater; a survey from last year showed 40 percent of the wells had rising nitrate levels and 9 percent tested positive for E. coli. 
Sintenie said these discharges only became a problem “when you’re hitting up against these significant effects on aquatic life”, which is what the proposals were trying to circumvent. “But, I mean, in catchments when these are the discharges that are causing 80-90 percent of the problem, we would be managing only the point source discharges to minimum standards. So it would be absurd.”