Hopes for a smooth introduction of tough new farming regulations in Canterbury have become mired in legal challenges. Photo: Lynn Grieveson

Years of collaboration between dairy farmers, environmentalists and Environment Canterbury aimed at improving water quality has collapsed into a court battle, Lynn Grieveson reports.

The regional authority, ECan, had hoped its attempts at toughening up nutrient loss limits on dairy farms would be able to nudge farmers into better practices by using a modified form of a controversial modelling tool known as Overseer. Instead, farmers are accusing the authority of botching the modelling and are now challenging the closely-watched ‘Plan Change 5’ in the High Court.

The stakes are high for the dairy industry, given Environment Canterbury’s plan is the toughest and most sophisticated yet written to deal with nutrient leaching from dairy intensification.

“Hacking” Overseer to enforce good management practices

ECan last month announced it would amend its Land and Water Regulatory Plan to cap nutrient losses for each farm at the amount that would result if the farmer was strictly implementing “good management practices”.

Currently ECan’s regulations only require farmers to limit the amount of nitrogen loss to no more than their farm’s average yearly loss rate over a four year period.

Ecan estimates the Plan will apply to 5000 farms, which will all need a land use consent. Half of those will need individual resource consents and the other half will be covered by irrigation scheme consents.

“Staff don’t usually applaud the passing of a council resolution, but they did today and it was lovely”

Announcing the changes last month, ECan said its modifying of the Overseer software, used by farmers to measure their nutrient losses, was unique amongst councils.

“There is no other council modifying Overseer in the way we are doing it. We are modifying it to reflect practices which farms could use, but aren’t. And that’s unique,” said Councillor David Caygill, in a video recorded by ECan.  

“Staff don’t usually applaud the passing of a council resolution, but they did today and it was lovely,” he added.

Caygill said the old nutrient loss limits on Canterbury farmers were “a cap designed to make sure, you could say, that things did not get any worse.”

“What we are doing now is taking that limit and reducing it – reducing in the sense of toughening it. And we are toughening it in a way that, in effect, requires the introduction of good management practice,” he said.

The change would require farmers to register and enter details of their farming activities and soil types into an online portal, which Caygill said was designed with input from industry sector groups, environmental groups and local iwi.

“It was a work of a good couple of years to get an agreed narrative statement of good management practice,” he said.

“Then we asked those same people — and experts that they were comfortable working with — to see if they could agree on ways the Overseer model might be modified to reflect those practices. That was both a significant step and a creative step – a step that took a lot of skill and science as well as largely agreement on the part of industry.”

Farmers and primary industries say it just doesn’t work

But now, despite reports that it was not planning to appeal the plan change, Federated Farmers has lodged a legal challenge to the proposals with the High Court.

Also appealing are DairyNZ, Dairy Holdings Ltd, Ravensdown Fertiliser Company, Irrigation NZ, and irrigation companies Barhill Chertsey and Rangitata Diversion Race Management.

Mark Adams, Federated Farmers’ South Canterbury Provincial President, said the decision to appeal arose from frustration at the results of trials of the portal, and legal action was the only way to get ECan to address those concerns. “The basis of this appeal is that we need this to work. It’s not a pushback around ‘we don’t want to engage’ –  we just need it to work,” he said.

“For it to work we need the data, the information, that comes out of the model to correlate with what is actually happening on the ground. You know there is going to be teething issues with this, but it just seems that the number of farmers that have engaged come away shaking their heads, and that’s an issue.”

Lynda Murchison, Federated Farmers’ North Canterbury Provincial President, told Newsroom that the results coming out of trials of the portal “don’t make sense.”

“The trial stuff that has been done: the numbers are quite perverse,” she said. “For some farming operations it’s not working at all, and for others it is requiring the biggest reductions in nitrogen losses from the farmers with the smallest footprint.”

“The only way you can appeal is on points of law, but that’s the only way to get back around the table. It’s really important that everybody remembers this is all brand new and it’s not going to be perfect, you’ve got to keep talking, you got to keep working on it until you find the recipe that actually does what you want it to do,” she said.

“The problem’s with the proxies”

Murchison said the industry-agreed good management practices “are largely qualitative things, but what Environment Canterbury have tried to do, is they have tried to model that and give it a quantitative number in terms of what adopting those good management practices would do to your nitrogen losses.”

It is this modelling – “proxies” for good management practices – that is the basis of the legal appeals, with Murchison saying: “it is those proxies that are wrong and are giving funny numbers.”

Irrigation NZ said the settings for irrigation used by the portal were unachievable, and could affect the viability of farming in Canterbury.

The revised Plan assumes that there would be no run-off from irrigation if the water was applied in the correct amounts at the right times – effectively setting a requirement of 100 percent efficient use of irrigation.

“There are very few businesses who can say they are 100 percent efficient, 100 percent of the time, and farms are no different,” said Irrigation NZ chief executive Andrew Curtis. “It’s very disheartening for farmers who have invested in more modern irrigation equipment and training with the goal of meeting the 80 percent efficiency requirements of the recently adopted Land and Water Regional Plan to find they are operating in an environment where regulations are continually changing and unrealistic targets are set that they can’t hope to achieve.”

Irrigation is an important issue for Canterbury, as around 65 percent of the country’s irrigated land is in the region and it has played a major role in the intensification of dairy farming in Canterbury.

“We don’t know how much it will cost to comply with the new rules but the investment in infrastructure required is likely to be significant with some farms being unable to meet these costs. We are hoping that a workable solution will be able to be achieved through the mediation process,” Curtis said.

“While it is good to be aspirational, this is a regulatory framework and the bar is raised so high”

Adams said, while he was positive about what ECan was trying to achieve, the portal settings made the plan unworkable as nearly all farmers would fail to comply with their resource consent conditions.

“While it is good to be aspirational, this is a regulatory framework and the bar is raised so high that people are going to fail, and so how is that going to work, really? The amount of resource if everyone has to re-consent because they can’t comply with 100 percent efficiency, how does that work?”

As well as toughening the general limits on nutrient losses, in some over-allocated catchments ECan plans to impose specific loss limits that it describes as “in various ways, even tougher still.”

As a result, Dairy Holdings is appealing the Plan Change because it says it is “unjustified and unreasonable” that it will not be able to use permits for intensification that it hasn’t yet fully implemented. It gives the example of its Croyston property, for which it has a resource consent for intensification, but which is in a zone where “it appears further intensification will be either a prohibited or a non-complying activity.”

Legal challenges no surprise

Forest and Bird general counsel Peter Anderson said the legal challenges were disappointing but expected.

“It’s unsurprising that they will have a crack at it when you look at what’s needed to address the issues,” he said.

“Getting all that information is definitely a step in the right direction. One of the complaints a few years ago was that we just have no idea what’s going on. So using the portal to get a whole lot of farm information that we can work with, I think that’s definitely a good idea.”

ECan Regional Planning Manager Andrew Parrish, in an email to Newsroom, said the Council would “consider each appeal on its merits.”

“If there are aspects of the Nutrient Management and Waitaki Plan Change that may not align with good management practice, we will work with our partners and stakeholders to make sure that is the case,” he said.

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