environment

RMA oversight unit ‘not fit for purpose’

Two investigators with a meal allowance are hoped to address nationwide inconsistencies with council RMA monitoring and enforcement 

An oversight unit intended to improve councils’ inconsistent approach to RMA monitoring and enforcement is shaping up to be the “antithesis” of what was intended, according to Forest & Bird.

Environment Minister David Parker announced the oversight unit’s establishment in May 2018, saying it would improve consistency across councils.

“At present compliance, monitoring and enforcement actions are somewhat variable across councils.

“The unit will improve the consistency, effectiveness and transparency of council enforcement of RMA rules and decisions.”

Operational funding of $3.1 million over four years was allocated.

Little has been heard of the unit since the announcement, but during that time it’s morphed from an oversight unit to an enforcement unit. 

It appears it will predominantly consist of two Wellington-based investigators helping councils in an ad-hoc manner with specific investigations. 

It’s a far cry from what Forest & Bird’s freshwater conservation advocate Annabeth Cohen expected.

“We were looking for a government agency which would audit and assess council performance.”

In 2018, Forest & Bird published a report showing a high level of inconsistency between councils in monitoring, compliance and enforcement of dairy effluent management. 

Some councils didn’t know how many dairy farms were in their region, thousands of farms weren’t monitored annually and serious non-compliance wasn’t always followed up with enforcement. 

Nine seriously non-compliant farms in the Waikato hadn’t been inspected for over 10 years and a Northland farm which received four abatement notices and eight infringement notices had never been prosecuted for breaches.

“There were incredible failures on the hands of regional councils which would have resulted in massive amounts of raw dairy effluent going into a waterway, groundwater or pooling on land. That’s dangerous to human health and the environment," said Cohen

She hoped the oversight unit would push councils to improve their monitoring, compliance and enforcement activity. She’s disappointed with the direction the unit appears to be going in. 

“It looks like it’s going to swoop in and help with evidence collection and take over a couple of prosecutions.”

Based on documents Cohen has seen from January, she said she can’t see any function to improve council performance. Instead, the unit appears to be looking at individual incidents rather than systemic failures. 

“When councils make mistakes it can be really dangerous ... there’s no government body that holds them to account on their performance and that should be a real concern to New Zealanders.”

Forest & Bird's report showed in 2016-17 Auckland only monitored 23 percent of dairy farms and Waikato 26 percent. There appears to be nothing the new unit is doing which will likely raise council dairy farm monitoring rates.

In a submission to the Action for Healthy Waterways discussion document, Forest & Bird pointed out their concern at how the unit’s purpose had evolved:

“Forest & Bird recognises that there was political goodwill at the outset of this unit and is concerned that it is the antithesis to that which motivated its creation - in other words, we do not think that in its current form it will be fit for purpose (original purpose or revised purpose).”

Cohen describes the funding put aside for unit as “slim”.

“With only a handful of employees working on this there’s no way they’re going to be able to deal with what’s going on across the country.”

Two investigators, a dinner allowance and help taking statements

A pilot project plan from January outlines what the enforcement unit could look like. The unit is housed within the Environmental Protection Authority.

The pilot project will have two full-time investigators, a part-time project manager and 20 hours per week of administration support. 

The pilot is estimated to cost $500,000. This includes travel and food allowances so the two Wellington-based investigators can attend out-of-town incidents. 

A letter outlines what the EPA was offering to councils that wanted to partner with the unit’s pilot project.

This includes mentoring, limited field investigative support such as taking statements from witnesses, assisting with follow-up of non-compliance, assistance with creating case files and advice on enforcement decisions.

There are no activities in the plan for the pilot project related to monitoring council performance.

The EPA said it is not currently carrying out any investigations but has been liaising to offer assistance where possible, an EPA spokesperson said. 

"Currently, the Environmental Protection Authority (EPA) has no enforcement powers or functions under the RMA Act, however we are setting up an RMA enforcement unit in anticipation of the RMA Amendment Bill providing the EPA with powers, including the ability to investigate environmental non-compliance."

The bill is likely to allow the EPA unit to either assist councils, intervene in enforcement actions, or instigate enforcement action if the council hasn't done anything.

When asked why the oversight unit had changed to an enforcement unit, the spokesperson said when the EPA initiated the work to develop the unit it referred to it as an enforcement unit.

Environment Minister David Parker told Newsroom there had been no change of focus, saying it was always intended the unit would have a direct enforcement role. 

He's confident the changes being pushed through in the amendment bill: "...will support the consistency, effectiveness and transparency of council enforcement of RMA rules and decisions".

Forest & Bird's submission to the amendment bill "cautiously welcomes" the EPA being given enforcement powers but says the bill does not go far enough in addressing overall council performance on compliance-monitoring and enforcement.

Its submission to the Action for Healthy Waterways discussion document puts it more bluntly. 

"It appears that this unit has been underfunded to the point that they are unlikely to be more than assisting councils from time to time on tasks such as completing evidence collection or uptake of prosecutions when the council does not have resources or political will to follow through. Some in the industry are dubbing this Unit as the '17th regional council', doomed to fall into the same traps."

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