Zaryd Wilson look at the controversy around management of the One Plan.
AS NEW Zealand grapples with how to deal with its polluted waterways the Horizons Regional Council One Plan is sometimes held up as a pioneering regime.
But less than a year after it was signed off, the reality of one of its flagship schemes, managing nitrogen loss to waterways, appears to be drifting away from what was settled on after 10 years of planning, submissions and court hearings.
The One Plan for the first time required intensive farming operations in certain catchments to have consent.
Limits were put on the amount of nitrogen which could be leached based on the class of land and its ability to deal with nitrogen. The limit would slowly drop over 20 years.
Most farms were expected to meet targets but exceptions were made available via discretionary consents for those who were close.
They would have to meet the targets within four years.
The Chronicle revealed last month 52 of the 61 consents issued so far had not meet the nitrogen targets and those farms had been given the restricted discretionary consents intended for the minority.
Moreover, many would not meet them within four years and little reduction was predicted beyond the first few years.
Part of the the problem is Overseer, the model used to determine a farm's rate of nitrogen leaching. An updated version of it is now calculating nitrogen leaching at a higher rate for many farms. But for some, estimated leaching may come down.
"If someone's either halting an increase and at the very worst not continuing to increase and at best they're reducing their nitrogen loss ... that's a pretty sound basis for consenting"
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Horizons says the Overseer changes are the reason the targets have not been enforced to the letter of the plan.
Critics say it runs deeper.
One option would have been to change the nitrogen limits in the plan to reflect the new version of Overseer.
It was considered by Horizons but in the end the council decided against.
"You'd have to go through a plan change process every time which is like the same process as the One Plan itself, submissions and cross submissions and hearings," Horizons chief executive Michael McCartney said.
So what is the basis now for granting discretionary consents?
"If someone's either halting an increase and at the very worst not continuing to increase and at best they're reducing their nitrogen loss ... that's a pretty sound basis for consenting," Horizons regulatory manager Nic Peet said.
A farm's level of pollution at 2012/13 has been used as a starting point for reductions regardless of the targets set in the One Plan.
It's a method critics say is "grandparenting", a concept the Environment Court said was "allowing existing operations to continue to leach nutrients at rates based on their own historical performance" and "should not form part of the rules regime".
So is Horizons grandparenting consents?
No, if you ask Dr Peet: "Oh look, people have different definitions of it," Dr Peet said. "For me I'm more focused on how we get restricted discretionary consents out the door that make a difference. If you are going to make a judgement ... I have to be able to have some kind of yardstick, otherwise I have nothing."
Yes, if you ask Andrew Day: "You look at consents and one's got 25 (leaching 25kg/ha) and one's got 50 and they're both farming on the same grade of land," he said. "That's grandparenting."
Mr Day is a Tararua farmer, a former Federated Farmers president and was one of the parties to take the One Plan to court.
He wanted equity across all farming types and for everyone to pull their weight in reducing agricultural pollution.
"It's staggering really that you can have all this process, go through all the legal things and yet the upshot is that the industry gets to do exactly what it wants"
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Pollution is a resource because the ability to pollute is the ability to produce, he said. Those who had been high polluters in the past were able to carry on at higher rates than those who had reduce their pollution.
"It's not rocket science to figure out you shouldn't get caught being lower intensity," Mr Day said.
"It's not like it's just me saying this to the council. The court decisions have gone through all of this. The court said the class of the land should set the allocation.
But Dr Peet said the restricted consent option allowed for differences between farms.
"No I don't think (it's unfair) because we have done that retrospectively. We didn't say to people in 2010, 2011 we're going to use 2012 and 2013."
"It always envisaged that you would have those differences so there was always a restricted discretionary pathway so I don't see it as unfair."
Mr McCartney said overall it was more important to halt the decline in water quality and where possible seek improvement. While reductions were being made and businesses remained viable, the plan was achieving what it intended, he said.
"There's an acceptance there that this needs to be managed and that's just going to grow in time."
Horizons estimate there has been an overall eight per cent reduction in nitrogen for the Mangatainoka catchment, which was the first to come into effect. (Parts of Wanganui and Rangitikei need to be consented by January 1, 2016).
Good intentions were fine, Mr Day said, but there was a set of rules and processes in place which were not being followed.
"It's kind of that notion that everyone just does stuff because it's good and it's voluntary and it will all work out because everyone's really good and we're great people.
"You know, you could voluntarily send all your money to Ethiopia to feed the hungry but that's probably not going to solve the problem because no one else is doing it necessarily.
Everyone's got to chip in to make a difference and that just doesn't happen in a big group of people regardless of how nice you think people are.
"Regulation is there because it's a mark of failure.
"To address it, it actually needs to be in a public forum."
Mr Day believes Horizons have taken it upon itself to issue consents in a way contrary to the One Plan and the court with untested methods.
"I don't see there's much difference between the consents they are issuing and a district council issuing consent for a building knowing it's going to leak."
Dr Peet said such a comparison was "ridiculous" and the approach had been identified and backed at public council meetings, most recently this week.
"Council is issuing carefully considered consents for which a pathway exists in the One Plan," he said. "To put it simply, Horizons, via its consenting process, is making actual and real reductions in the amount of nitrogen leaching into rivers."
The ability to farmers to pay for mitigation was argued all the way through court and continues to be.
"I don't think they can avoid that gap between what they're doing and what the courts have said"
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Mr McCartney points out the Resource Management Act is about economic sustainability along with social and environmental sustainability.
"Sustainability isn't always about protecting things at any cost and cost is a relevant factor, affordability is a balancing factor. That's not to say there shouldn't be some tension in there around expecting people to pay."
It's a balancing act Horizons handed over to farming consultants.
"We don't go there," Dr Peet said.
"It's not our job to understand a farmers' balance sheet. Council were really clear with us on that so hence the use of a set of consultants who can provide advice to a farmer and essentially to build a consent application to us."
"Sustainability isn't always about protecting things at any cost and cost is a relevant factor..."
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Mr Day said that was an issue. A partnership between the industry and council ignored other interested parties.
"It's staggering really that you can have all this process, go through all the legal things and yet the upshot is that the industry gets to do exactly (what it wants)," he said.
"You can't just say 'oh carry on because it's going to be too hard for you'. To me the overarching thing of the regional council is resource management and its about setting limits and enforcing limits and that doesn't necessarily match with economic agendas and that's just tough, that's the reality of it.
"You know, it's like watching a game of rugby with the touch line and on the line is out and everyone watching knows that that's the boundary whereas (industry) and council are arguing, 'well if you run up to the grandstands and just nip down the side you're good to go'."
Mr Day is not alone in his concerns with implementation. Fish & Game has called for a review of the council.
Two of the architects of the plan, Greg Carlyon and Peter Taylor have said the current approach is "significantly at odds with the intended implementation and is a risk of undermining the One Plan and improved water quality".
The Environmental Defence Society is also asking questions. Horizons plan to meet with some of the concerned parties such as Fish & Game in the coming weeks.
But Mr McCartney the bottom line was things were improving.
"And we should celebrate that," he said.
"Once you enter a litigation process that first thing that happens is the farmers will stop because there's a whole lot of uncertainty.
Mr Day thinks legal action may be inevitable.
"I don't think they can avoid that gap between what they're doing and what the courts have said, you know, I think that's a problem for them and at some point there needs to be some heat put on that."