Govt answers industry pleas to weaken freshwater law

By amending a longstanding tenet of the Resource Management Act, the Government has fallen for lobbying and scaremongering from primary industries, critics say.
Section 107 of the act governs discharges into freshwater. Recent court rulings reinforced the strength of this section, sounding alarm bells for industry bodies, which proceeded to lobby the Government to weaken it. But it wasn’t just industry groups; in April, to the chagrin of some of his councillors, Environment Canterbury Chair Peter Scott independently wrote a letter to Minister for RMA reform Chris Bishop explicitly requesting changes to section 107. 
His wishes, and those of many industry groups, were granted on Friday when Minister for Agriculture Todd McClay announced the Government’s plans to amend the section. These amendments would be the first to section 107 since the RMA was introduced in 1991.
The court ruling at the heart of the 107 debate came in March 2024 and centred on Ashburton Lyndhurst Irrigation’s permit to discharge nutrients from farming. Its consent was challenged by the Environmental Law Initiative, which cited section 107 as the key factor. The consent was denied. 
Allan Brent, one of the original members of the initiative, explained “structurally, in New Zealand law, there’s no inherent right to discharge to water. You can’t deal with water unless the law says you can.” 
The only ways to currently do this are either with a permit, via section 107, or by having the law explicitly allow a discharge, which is governed by section 70: a section these same industry groups have called to the Government’s attention. In both cases, a backstop is set when the freshwater catchment the discharge is intended for is already at or below minimum standards for health; these rules only become a barrier when dealing with the worst of the worst.
Essentially, what these groups want is for the Government to limit section 107’s scope to point source discharge only, allowing all runoff sources to bypass the relevant permitting process. The longstanding legislation has always applied to both, but it has not always been uniformly enforced. Because of this discrepancy, for some in the industry, entire careers have passed without seeing section 107 applied to a diffuse discharge in their catchment. And, until recently, these minimum standards were more of a hypothetical than a reality.
In the weeks after the Ashburton ruling, Bishop wrote a letter to various groups asking for their suggestions on RMA reform. He asked for responses by April 5 – a week later. Environment Canterbury was one of these groups and took up the offer by sending back a response. But the response didn’t come from the whole council; it came from the chief executive, Stefanie Rixecker, and chair, Peter Scott. 
The letter was then followed, two weeks later, by another – this time from Scott exclusively. The council did not meet until May 7, and not all councillors agreed with the content of the letter. They proceeded to debate withdrawing it, endorsing it fully, or sending a follow-up to include further comment from the council.
According to documents released under the Local Government Official Information and Meetings Act, ECan spent the first six months under the new Government positioning itself as a leader in environmental policy and a champion of good agricultural practices. Many of these were sent to ministers Chris Bishop, Todd McClay, and Andrew Hoggard: respectively, the Minister for RMA Reform, Minister for Agriculture and Associate Minister for Agriculture and Environment.
When the letter calling for section 107 reform landed on Bishop’s desk, it came in the wake of hundreds of pages of ECan content. The vast majority of it was the product of council-wide initiatives and represented the voices of everyone at the table. But this letter, according to many of those same voices, was different.
The letter said ECan was “asking that the Government urgently amend specific sections of the RMA (s107 requires amending, and there is also merit in considering changes to s70), to avoid significant issues for the economy, for both New Zealand and Canterbury”.
Councillor Vicky Southworth said during the May 7 meeting “Had this [letter] come through council we could have created something that suited all of us – but we didn’t have that opportunity.” She bemoaned the “overly-economic” nature of the letter, which placed a higher priority on the fiscal implications of the 107 ruling than the environmental.
“To ask a government that’s hellbent on prioritising the economy at every opportunity … to then send them a letter that encourages them to essentially prioritise the economy in an area that has got significant environmental impact going on in our waterways … I’m really disappointed,” said Southworth.
Her opinion was not unanimous. Councillor Claire McKay said because the chair was voted in, “in my opinion they are entitled to write such letters”. She directed her constituents to part two, section five of the RMA (the purpose) which includes “to provide for our social economic and cultural wellbeing”. “The economy is definitely important,” said McKay, “we can’t just be looking at environment only.”
Councillor Ian Mackenzie didn’t understand how clarifications to section 107 presented a threat to the environment. He understood “all the rhetoric around saving the environment” and said everyone could “gnash our teeth and whip our backs and cry crocodile tears”, but felt such efforts would be misplaced by kicking up a fuss over changes to 107. 
Mackenzie said “withdrawing the letter would be a nonsense that undermines our credibility. I don’t think anything we achieve by sending a supplementary letter can be achieved without a loss of mana.” Besides, he said, the letter was “only the first gambit” – merely the beginning of a process to address issues with the RMA.
The letter and council debate also swirled around stormwater discharge, with those in favour of amending 107 arguing that stormwater discharge could in some cases become illegal. But this didn’t stack up with Brent, who said “stormwater is clearly a point source … if your argument is that [107] only applied to point source, then, well, it always applied to stormwater”.
These issues, what every councillor at ECan was focused on, and what all the industry groups writing to Bishop were also focused on, come down to this distinction: point source versus diffuse discharges. 
Point source discharges come from a specific point, like a pipe. Diffuse discharge is spread across an area, like cow waste on a paddock. The Ashburton ruling found a permit was not able to be granted because the catchment it would be discharging into was at or below the minimum national standard for health, and because of the cumulative effects of other discharge consents in the area. It was a milestone for environmental ruling, one that gave Green MP Lan Pham hope that “as a society, we are drawing a line”.
But in industry circles, in tandem with a prior ruling that strengthened section 70, this raised an alarm. If councils could not grant the consent for discharge, and the discharge was not otherwise permissible, this would effectively make certain operations unable to lawfully operate: the ones discharging into below-threshold catchments. But in their submissions to the Government, concerns were raised about the future of farming in New Zealand as a whole, framing it as an existential threat.
The rhetoric stuck. On August 1, Hoggard described the implications as “fatal to all farming”, and last week, McClay’s press release about the intent to address section 107 said the recent rulings would “make the law unworkable by reducing councils’ ability to manage discharges from a range of activities”. 
The solution, as proposed by industry bodies, was to restrict section 107 to point source discharge only: a reality that some, like Hoggard, argued was always the case. Or, at least, was never explicitly made clear.
Brent didn’t disagree. He told Newsroom “as a matter of practice, it’s true that these provisions haven’t been enforced for diffuse discharges for the longest time”. At least, not universally. There were a few cases – including the ones that raised this issue in the first place – in which section 107 did apply explicitly to diffuse discharge, “but it’s fair to say that commonly, people just didn’t look at things this way.” From a legal perspective, though, “sections 70 and 107 make up key qualitative bottom lines for freshwater quality”.
But the reason for confusion was apparent, Brent said. These sections date back to 1963 regulations. And while they applied to point source and diffuse discharge from day one, Brent said the fact that we have definite freshwater bottom lines “has faded in the collective memory for many reasons. This is not least because some, probably like Hoggard, wish it wasn’t so. Others have narrow financial or political interests in pushing those bottom lines away.”
In the 60s, when these lines were drawn, New Zealand’s waterways were in reasonably good shape. Setting bottom lines back then didn’t affect day-to-day operations. So while water quality slowly declined, the people who set those bottom lines never actually saw the limit reached. 
Fifty years later, John Key’s government began to aggressively pursue dairy exports with China. Brent said this was a turning point. Taupō and Rotorua started having algal blooms. At this point, he said, freshwater health really “began to enter the electoral calculus … you just can’t have Lake Taupō going red on your watch”.
But down in the South Island, intensive farming had taken root on the Canterbury plains. It continues to be a source of rising nitrate pollution in freshwater, which has been linked to rising rates of cancer and other ailments in those who depend on it – not to mention the health of the waterway itself.
It was in this context that the Environmental Law Initiative challenged the Ashburton consent, which prompted the reaction from industry groups, and then from the Government. Brent said amending 107 would be “an overreaction”. He said “you can sort of see the structure of the argument: it’s going to be too hard for us to do what the law says. So we can ask you to change the law rather than we’re going to improve our game.” 
If the Government followed suit, he said, they would be “the first in 60 years to unambiguously weaken freshwater law”.