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A decision by independent commissioners to grant a consent for a North Otago farmer from 2020 to discharge nitrogen from three farms on to land ‘‘in a manner that may enter groundwater'' has been appealed to the Environment Court.
The consent application from Borst Holdings Ltd was the first to be made under Otago's new 6A water plan change, which concerns itself with the amount of nitrogen being released into the area's rivers.
The consent for the Borst farms, near the Kakanui River, was granted for 15 years starting from April 1, 2020.
The Moeraki and Ngai Tahu tribal councils, Te Runanga o Moeraki, and Te Runanga o Ngai Tahu (Tront), have appealed the decision to the Environment Court.
Maree Baker-Galloway, of Queenstown, appeared for the two tribal councils at an earlier consent hearing in February.
The appeal involved the overall ‘‘package'' of conditions and did not challenge the consent itself, Ms Baker-Galloway said last week. A court mediation process would probably begin within the next few months, she said.
In her earlier submissions, she said the Ngai Tahu tribal council had been adversely affected by the lack of direct notification by the Otago Regional Council, and Fish and Game and the Department of Conservation should also have been notified.
The 6A water plan change fully takes effect in 2020.
Independent commissioners Brent Cowie and Andrew Fenemor initially reserved their decision after a two-day hearing in Dunedin.
But in a 66-page decision, obtained by the ODT, the commissioners granted consent for the 15-year term sought, for a proposed discharge of nitrogen on to land ‘‘in a manner that may enter groundwater'', from the three farms.
Borst Holdings Ltd (BHL) had already reduced nitrogen losses by 38% on the three farms, including by reducing stock numbers, and proposed reducing nitrogen losses by a further 30%, by 2030. But the commissioners believed that, given the ‘‘sensitivity of the Kakanui and its very high cultural value to manawhenua'' , an overall reduction of 35% by 2030 was ‘‘more likely to deliver the outcomes sought''.
ORC officers had recommended nitrogen release reduction targets of 10%, 20% and 30% for the three successive five-year periods, respectively, from 2020. But the commissioners had set ‘‘more stringent'' respective targets of 15%, 25% and 35% , they said.
After taking ‘‘expert advice'', officers of the ORC had determined that the effects of the activities for which the consent was sought were ‘‘no more than minor'' and that the application should be ‘‘limited notified'' only to the Moeraki tribal body.
But Tront had been offended, and considered it should also have been notified.
An ORC submission was that the notification was correct.
But the commissioners were ‘‘not so sure'' and said there was ‘‘merit in the ORC reviewing its procedures'' in such cases.
The Kakanui River was ‘‘of undoubtedly very high value to Moeraki'' but a ‘‘strong body of case law'' showed tangata whenua did not have ‘‘veto rights'' under the Resource Management Act.
The commissioners said they had faced several ‘‘practical difficulties'' in dealing with some water plan matters, including the continually ‘‘evolving'' nature of the Overseer computer modelling system that was used by bodies such as the ORC to monitor nitrogen levels.
Although BHL was ‘‘committed to reducing their actual outputs'', their ‘‘modelled outputs'' could go up or down, simply depending on changes within the Overseer system, including system updates.
Robert Borst, the joint owner of BHL, with his wife Sylvia, had been frustrated that changes in Overseer had resulted in the nominal, but not actual, nitrogen leaching rates on his three Kakanui farms increasing ‘‘overnight'' by an average of 28%.
Mr Borst was a ‘‘passionate dairy farmer'' viewed by the hearing parties as a ‘‘very good and progressive dairy farmer'', the commissioners said.