Opinion: Freshwater regulations need a fresh start

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Opinion: The Government's freshwater reforms are going to need more than a few "tweaks" if they are to be effective, retired farmer and natural resource engineer Graham Pinnell writes.

Concerns over the freshwater decisions taken by Government in August have centred on slope rules for stock exclusion and winter grazing of crop.

The government has told us that they are open to tweaking the rules where they can be persuaded.

Farm levy organisations are saying to farmers "trust us to work constructively inside the tent to effect those tweaks."

Fair enough, if only tweaks are required. The reality is somewhat different.

There are many more concerns with the detail of the set of regulations, such as:

• The stock exclusion rules superficially only apply to "wide rivers", which is a misnomer when the definitions are applied. Stock exclusion is required along the entire length of any watercourse that has a defined bank which in flood is wider than 1m at any point within a parcel of land. A stream doesn't even need to be permanently flowing. There is no avenue to apply for an exemption to these rules; or to adopt a reasonable alternative.

• The slope exemption for stock exclusion does not apply to dairy, dairy support and intensively grazed beef cattle. In effect, all streams and lakes; and many natural wetlands, regardless of the slope of land require fencing to exclude these animals. Riparian fencing of land over 15° generally requires benching to create a fence line. Expect increased sedimentation of streams from benching earthworks and stock treading.

• All new culverts require consents unless a complicated list of conditions are met, including sufficient diameter such that the cross-sectional area of the culvert is at least that of the adjacent stream in times of major flood. The expense to reach this standard will deter farmers from installing further stock crossings. A condition of consent is to report to council on your monitoring and maintenance of the culvert on a regular basis and after each significant flood.

• A long list of details must be provided to your regional council whenever installing a new culvert or modifying or replacing an existing one, regardless of size. Good luck with achieving compliance.

This list is far from exhaustive. Of wider concern is the extreme prescribed for any consent that may affect water quality. This not only applies to winter grazing as there are currently a myriad of activities requiring consent, including for effluent disposal, soil disturbance of many types, vegetation clearance near streams, culverts and water allocation.

The new National Policy Statement prioritises water quality over all other well-beings of sustainability. This is an extreme interpretation of the purpose of the RMA, that is, finding a balance between environmental, economic, social, cultural and health and safety wellbeings of sustainability.

Farmers will now have to convince councils that they can and will avoid, minimise, remedy or offset all adverse environmental effects to a less than "minor" level in order to gain consent, and will be held accountable through consent monitoring.

If the lens of good regulatory practice is applied to the above, the gold standard is not to abate to a less than minor effect, but to a reasonably practicable level.

That is, a level that is feasible and practical; and for which the costs are proportionate to the sustainability well-beings. That way, we target optimal societal well-being.

The first test any regulation should pass is that its benefits exceed its costs. Regulation 101, if you like.

As we face up to paying for the huge debt of Covid-19 it is even more critical that investments should be able to demonstrate value.

So, if we had regulation based on reasonably practicable standards, what might that look like? Let's illustrate by taking the example of riparian fencing.

It might result in an obligation to fence wherever it is possible to drive posts with a tractor-mounted driver; and where there is a significant water quality benefit to do so. Steep or rocky terrain would then be excluded.

A high level reasonably practicable requirement could be applied when formulating farm environment plans, thereby giving clarity as to where precisely on each farm riparian fencing much be built. Forget trying to refine a web-based terrain map that can't map slopes in fine detail or identify other obstructions to fencing.

How did the Government get to this position?

Firstly, we lost the Land and Water Forum. This widely representative group, who were knowledgeable and had skin in the game operated in a collaborative manner, had produced excellent and robust work over almost a decade.

In order for the forum process to work, ministers had to step back and give opportunity for all the key issues to be worked through. Instead, for these new regulations the ministers set up various working groups to make recommendations for their decision alone.

We all know that the regulations now in place will have huge costs - in monetary terms, in social impacts on hill country communities, and on the mental health of farmers as they try to implement the impossible.

These are just some of the relevant matters that Minister Parker was required to consider.

It is high time that our farming levy bodies came outside of the tent and publicly told the Government that farmers are not prepared to be regulated for good management practices unless they are based on good regulatory practice.

These regulations are so fundamentally flawed that a fresh start should be made to freshwater regulation. Making tweaks without addressing the fundamental extremism does not cut it.

The Prime Minister needs to stop smoothing over the cracks and take decisive corrective action.

The starting point should be to recognise another matter of good regulatory practice; i.e., the "compliance pyramid".

It recognises that the foundation of good compliance relies on the regulator providing good information, guidance and advice to strengthen voluntary compliance.

The next level is for the regulator to assist compliance through providing incentives such as grants or disincentives such as informal warnings.

As the pyramid narrows, indicating less frequent interventions by the regulator, are compliance directions. At the tip of the pyramid is enforcement.

So, Government, please recognise all of the voluntary efforts being made by farmers, and the great upsurge in catchment groups that are focused on local solutions to local issues.

These efforts are achieving far more than prescriptive regulation can ever do.

While I support the need for regulation to bring the minority into line, please recognise that the heavy lifting will be achieved through encouragement rather than punitive means.

• Graham Pinnell is a retired farmer and natural resource engineer. He has served on two Crown regulatory boards.