Helen Atkins and James Hassall: Resource act has power to save lakes

The Herald's "Dying lakes" series that examined the toxic threat to some of the central North Island's most magnificent lakes highlighted many of the difficulties and complexities of averting an environmental disaster.

Clearly the costs are high and the impact on peoples lives and livelihoods will be great. Already the communities affected are involved, and voluntary steps to address the issues are being taken. But will this be enough to avert disaster? Regulation must be considered as part of the long-term solution.

One question unanswered in the series was whether the Resource Management Act had all but failed to meet its purpose of safeguarding the life-supporting capacity of some of our lakes.

The act is not peripheral to the dying lakes issue. It is right at the heart of it and should not be placed in the do-not-resuscitate basket.

It offers local and central government a regulatory tool to provide a backstop to other steps being taken, and the means to more forcefully encourage co-operation when co-operation is not forthcoming.

Admittedly, using the act in this area will not be without problems that some may consider too hard to overcome. But without denying the issues are complex, it is not sufficient to use these problems as an excuse to avoid making hard decisions to deal with what is clearly one of our more important environmental issues.

At the core of the act is its much-discussed purpose - sustainable management of natural and physical resources.

Three so-called bottom lines are: sustaining the potential of our resources to meet the reasonably foreseeable needs of future generations; safeguarding the life-supporting capacity of water; and avoiding, remedying or mitigating harmful effects.

Regional and district plans established under the act can contain rules dealing with the discharge of contaminants to water. District plans deal with land use while regional plans focus on discharges from land. A co-ordinated approach between regional and district councils is, therefore, required to obtain the best results.

Such rules can be used to control the number of stock on land; require riparian strips to be fenced and restored; retire land from certain uses; control discharges from dairy sheds; impose high standards on septic tanks; require sewage to be discharged into a reticulated system; and require financial contributions to help to clean up the damage that has occurred and to prevent future damage occurring.

Regulation is unpalatable in certain circles. However, in the case of our dying lakes, where the impact on people's lives and livelihoods will be great, regulation must be considered as one of the measures adopted, with the voluntary steps that have been considered in the Herald series.

Regulation may be difficult to impose in practice. Established farms and residences might have existing use rights that will not immediately be affected by any changes to rules in plans. However, the plans can ensure that the intensity of farming and housing in relation to the impact they have on discharges to water is not increased.

The imposition of a nitrogen cap has been raised as one means of controlling the level of discharge of nitrogen from farms. Again, it is possible to impose such a control mechanism through district or regional plans.

Conceptually, this is simple but the reality is problematic. The amount of nitrogen likely to be discharged into a lake from a farm cannot be measured by weighing it or taking samples and testing for it.

To assess its likely flow from a farm to a lake requires a complicated calculation taking into account the number of stock, the amount of fertiliser, the type of pasture, the type of soil, weather, and many other factors. As with all legal rules, a nitrogen-capping rule must be able to be applied fairly and consistently across a wide range of different land-owners.

It has to be known about in advance so that farmers are aware whether they are breaking the rule. It has to be fixed in the medium term and it has to be enforceable by the courts. The complex formula required to impose a nitrogen cap may, in the end, be too imprecise to meet these requirements.

However, a nitrogen cap is not the only option available in the regulatory toolbox and other less scientific approaches have been listed. These measures are heavy-handed, but solving the problems facing our lakes requires a package of different measures.

The Resource Management Act has a central role to play in providing a life-support for our lakes. For all the criticism it has faced over the years, the act was designed to address, manage and avoid exactly the sort of problem posed by our dying lakes.

* Helen Atkins and James Hassall are resource management, environmental law and local government specialists at law firm Phillips Fox.