Curbing non-point pollution: Lessons for the Swan-Canning

Environmental and Planning Law Journal

Volumn 21, Issue 3, 2004, Pages 181-199

  Gunningha, Neil ^a   Sinclai, Darren ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

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[No Author keywords available]

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EID: 77951743002     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (73)

1. See, for example, Deeley DM and Paling EI, Assessing the Ecological Health of Estuaries in Australia (LWRDC Occasional Paper 17/99, 1993).
2. Productivity Commission, Industries, Land Use and Water Quality the Great Barrier Reef Catchment (Productivity Commission, 2003)
3. Banfield K, Sustainable Land Management in the Ellen Brook Catchment (Bulletin No 4498) (Department of Agriculture, Western Australia, 2001). In the Swan-Canning river catchment, agriculture is estimated to contribute between 70 and 80% of nutrients entering the system (Miller D, "Understanding the System-Nutrients" (2003) a paper presented at the Drainage Management Forum, Swan/Canning Catchment, Western Australia.)
4. See Ribaudo MO, Horan MD and Smith M, Economics of Water Quality Protection from Nonpoint Sources (USDA, Agricultural Economic Report 782, 1999) p 32.
5. Gunningham N and Sinclair D, "Non-point pollution, voluntarism and policy failure: Lessons for the Swan-Canning" (2004) 21(2) EPLJ 93.
6. Recent reports, such as the Ellen Brook Best Management Practices Manual and the Swan Canning Clean-up Plan, fall short of demonstrating a quantitative link between abatement policies and nutrient reduction. Other reports rely on catchment modelling in the absence of field data.
7. Department of Environment, Food and Rural Affairs, United Kingdom, Strategic review of diffuse source pollution from agriculture: Discussion Document (DEFRA, 2003) p 24.
8. Banfield K, Sustainable Land Management in the Ellen Brook Catchment (Bulletin No 4498) (Department of Agriculture, Western Australia, 2001). In the Swan-Canning river catchment, agriculture is estimated to contribute between 70 and 80% of nutrients entering the system (Miller D, "Understanding the System-Nutrients" (2003) a paper presented at the Drainage Management Forum, Swan/Canning Catchment, Western Australia.)
9. These include soil sediment, pesticides, veterinary medicines, biocides, and pathogens (Dampney P, Goodlass G and Hillman J, Methods and Measures to minimise the diffuse pollution of water from agriculture-a critical appraisal (DEFRA, 2002).
10. For a more detailed eight step framework see Brezonik PL, Easter KW, Mulla L and Perry DJ, "Management of diffuse pollution in agricultural watersheds: lessons from the Minnesota River" (1999) 39 Water Science and Technology 323.
11. For example, in the Peel-Harvey area, a phosphorus reduction management target for the catchment has been devised which is technically defensible, "ba sed on empirical modelling and observed behaviour of the estuaries and catchments over some 10 years of data collection" (Peel-Harvey Expert Review Committee, Peel Inlet and Harvey Estuary System Management Strategy: Progress and Compliance by the Proponents with the Environmental Conditions set by the Minister for the Environment in 1990 (Environment Protection Authority, 2002).
12. Riverplan: An Environmental Management Framework for the Swan and Canning Rivers (Government of Western Australia, 2003), http://www.environ.wa.gov.au/downloads/Riverplan_Brochure_030725.pdf.
13. Riverplan: An Environmental Management Framework for the Swan and Canning Rivers (Government of Western Australia, 2003), http://www.environ.wa.gov.au/downloads/Riverplan_Brochure_030725.pdf.
14. Riverplan: An Environmental Management Framework for the Swan and Canning Rivers (Government of Western Australia, 2003), http://www.environ.wa.gov.au/downloads/Riverplan_Brochure_030725.pdf.
15. Environmental Policy: How to Apply Economic Instruments (OECD, 1991).
16. See, for example, Ecologically Sustainable Development Working Group, Intersectional Issues Report (Australian Government Printing Service, 1992).
17. Winsemius P and Gutram U, "Responding To The Environmental Challenge" (1992) March-April Business Horizons 12.
18. Jacobs defines this criterion as concerning: how certainly does the instrument achieve the environmental target set; how quickly; and how flexible it is to changing circumstances (Jacobs M, The Green Economy: Environment, Sustainable Development and the Politics of the Future (University of British Columbia Press, 1993) p 152).
19. We define efficiency in terms of cost effectiveness rather than in terms of reducing pollution to the point where the cost of further abatement outweighs the additional benefits, because the latter is impossible to operationalise in the context of non-point source pollution.
20. Coglianese C and Lazar D, "Management Based Regulatory Strategies" (2001) Regulatory Policy Program Working Paper RPP-2001-09.
21. Performance standards set a limit on the level of pollution that an enterprise emits, but do not dictate to them how this limit is to be achieved, leaving them with considerable discretion as to the means by which they reach the prescribed outcome.
22. Specification standards dictate a particular type of technology or physical change that is known (or believed) to bring about environmental improvements (and thus remove discretion as to how abatement is achieved), whilst remaining silent on the actual pollution outcomes.
23. Process standards dictate a series of management decision-making processes that are likely to improve environmental outcomes, without nominating particular technologies that must be employed or particular pollution reductions that must be achieved.
24. Coglianese C and Lazar D, "Management Based Regulatory Strategies" (2001) Regulatory Policy Program Working Paper RPP-2001-09.
25. In Western Australia, the Department of Agriculture has been working with the agricultural community to develop an Environmental Management System (EMS) that is integrated with Safe, Quality Food (SQF) and consistent with the internationally recognised EMS, ISO 14001 (Environmental Systems in Agriculture (Department of Agriculture, Western Australia, 2004), http://agspsrv34.agric.wa.gov.au/environment/intro/EMS_in_agriculture.htm). In terms of addressing non-point source water pollution, however, an all encompassing EMS may be far too complex and beyond their capabilities (and inclination) to achieve. An alternative could be to provide a modified, streamlined process standard, for example an environmental farm plan that provides a more focussed approach.
26. Agriculture and Water: A Diffuse Pollution Review (DEFRA, 2002).
27. See, for example, Manderson AK, Farming from the ground up: The use of land resource information as a basis for planning farm susta inability in New Zealand (2003) (Unpublished PhD thesis in Soil Science, Massey University, Palmerston, New Zealand).
28. Interview with David Deeley, February, 2004.
29. On a more sophisticated approach, soil testing is also an integral part of monitoring soil nutrient states, calculating fertiliser requirements and estimating nutrient budgets. See Ledgard SF, Journeaux PR, Furness H, Petch R and Wheeler DM, "Use of nutrient budgeting and management options for increasing nutrient use efficiency and reducing environmental emissions from New Zealand farms" (2004) a paper delivered at the OECD Expert Meeting on Farm Management Indicators, Palmerston North, New Zealand, March 2004.
30. Gunningham N and Sinclair D, "Non-point pollution, voluntarism and policy failure: Lessons for the Swan-Canning" (2004) 21(2) EPLJ 93.
31. The problem with cross-compliance is that, unlike their North American and European counterparts, Western Australian farmers do not receive large and direct financial subsidies that could be used as a cross-compliance mechanism (and where they do exist, subsidies are often provided by the Commonwealth, not State governments).
32. In the context of industrial pollution, best management practices may have encompassed a more specification standards approach leading to be some blurring between two categories.
33. Gordon S, Regulatory Design for Water Quality Management in Perth, Western Australia: Economic Instruments Series: Paper 2: Innovative economic instruments for nonpoint source water pollution in the Swan-Canning river system (SRES, ANU, 2003).
34. Gordon S, Regulatory Design for Water Quality Management in Perth, Western Australia: Economic Instruments Series: Paper 2: Innovative economic instruments for nonpoint source water pollution in the Swan-Canning river system (SRES, ANU, 2003).
35. Bates G, Environmental Law in Australia (5th ed) (Butterworths, 2002).
36. In Queensland for example, the Land Act 1994 requires all lessees, licencees and permittees on State land to have a duty of care for the land as a condition of tenure.
37. Done properly, the benefits can be impressive-in nitrate vulnerable zones in the United Kingdom, where farmers are required to follow a program of best management practices to reduce nutrient pollution, the main action program entailed a limit on inorganic nitrogen fertiliser application to crop requirements, after allowing fully for residues in the soil and from other sources, and the keeping of adequate farm records, including cropping, livestock number and the use of organic manures and nitrogen fertiliser. This was regarded by government, at least (far less by farmers), as being efficient and cost-effective. (Dwyer J, Eaton R, Farmer A and Baldock D, Policy mechanisms for the control of diffuse agricultural pollution, with particular reference to grant aid (Report No 455) (English Nature, 2002) p 47.)
38. Done properly, the benefits can be impressive-in nitrate vulnerable zones in the United Kingdom, where farmers are required to follow a program of best management practices to reduce nutrient pollution, the main action program entailed a limit on inorganic nitrogen fertiliser application to crop requirements, after allowing fully for residues in the soil and from other sources, and the keeping of adequate farm records, including cropping, livestock number and the use of organic manures and nitrogen fertiliser. This was regarded by government, at least (far less by farmers), as being efficient and cost-effective. (Dwyer J, Eaton R, Farmer A and Baldock D, Policy mechanisms for the control of diffuse agricultural pollution, with particular reference to grant aid (Report No 455) (English Nature, 2002) p 47.)
39. Gunningham N and Sinclair D, "Non-point pollution, voluntarism and policy failure: Lessons for the Swan-Canning" (2004) 21(2) EPLJ 93.
40. These include soil sediment, pesticides, veterinary medicines, biocides, and pathogens (Dampney P, Goodlass G and Hillman J, Methods and Measures to minimise the diffuse pollution of water from agriculture-a critical appraisal (DEFRA, 2002).
41. These include soil sediment, pesticides, veterinary medicines, biocides, and pathogens (Dampney P, Goodlass G and Hillman J, Methods and Measures to minimise the diffuse pollution of water from agriculture-a critical appraisal (DEFRA, 2002).
42. In correspondence from Alex Gardner he notes that one should be careful to structure the imposition of a tax by a State Government to avoid invalidity under s 90 of the Commonwealth Constitution as an excise-a tax on the production and distribution of goods. Only the Commonwealth can levy an excise. The proposed State tax could be characterised as a tax on the consumption of the goods, and as having a regulatory purpose associated with the privilege of polluting the environment, and, thus, not an excise.
43. One example is the fertiliser New Coastal Super, which has shown potential to limit the run-off of phosphorus. It may also be possible to encourage the development of new, improved varieties of slow release fertiliser with the advent of a price differential. Another example, although still at the development phase is "red coat ", where fertiliser pellets are coated in clay derived from the iron rich mud wastes of the Alcoa facility. This introduces an element of soil modification to the fertiliser issue.
44. In this context, subsidies are essentially just the flipside of taxes-instead of imposing a tax on the environmentally harmful option a subsidy is given to the environmentally preferred version. The consequence of the subsidy approach is that, in an immediate sense at any rate, the cost of the price differential is shifted from the individual farmer to the community as a whole.
45. Farmers would be required to make a provisional assessment of their total surplus of, for example, phosphorus and nitrogen produced on their farms, taking into account nutrients imported as food and fertiliser and exported as product-they would then calculate the estimated losses of nutrients to the environment (Derikx PJL, Mineral bookkeeping, new manure legislation in The Netherlands (Institute of Agricultural and Environmental Engineering, 1998).
46. While there is some residual overlap between the two categories, this category is conceptually distinct and lends itself to different policy strategies. For example, buffer fencing achieves little without appropriate management of livestock to limit access. Similarly, contour landscaping requires ongoing maintenance, arguably placing it in a grey area somewhere between landscape changes and farm management practices.
47. Monitoring and enforcement of their contractual obligations is a substantial challenge, with the potential to be overwhelmed by the sheer scale of the exercise. The Department of Environment reports that the number of farms having their subsidies withheld due to compliance breaches is low, however it is possible that the rate of inspection is insufficient to detect many cases of non-compliance.
48. Cripps E, Binning C and Young M, Beyond Roads, Rates and Rubbish: Opportunities for Local Government to Conserve Native Vegetation (CSIRO, 1997).
49. Gordon S, Regulatory Design for Water Quality Management in Perth, Western Australia: Economic Instruments Series: Paper 2: Innovative economic instruments for nonpoint source water pollution in the Swan-Canning river system (SRES, ANU, 2003).
50. Gunningham N and Sinclair D, "Non-point pollution, voluntarism and policy failure: Lessons for the Swan-Canning" (2004) 21(2) EPLJ 93.
51. Gunningham N and Sinclair D, "Non-point pollution, voluntarism and policy failure: Lessons for the Swan-Canning" (2004) 21(2) EPLJ 93.
52. See further Gardner A, "Law and Policy for Sustainable Water Quality Management: Focus on the Sydney Water Catchments" (2003) 8 The Australasian Journal of Natural Resources Law and Policy 2, p 124.
53. Griffiths R, Planning for Urban Development (2003) (a paper presented at the Drainage Management Forum Swan-Canning Catchment, Western Australia) http://www.ourwaterfuture.com.au/community/drainage_presentations.asp.
54. Bates G, Environmental Law in Australia (5th ed) (Butterworths, 2002).
55. Bates G, Environmental Law in Australia (5th ed) (Butterworths, 2002).
56. Consistent with this the Ecovine Report noted that "in general agricultural land use in Australia has not been subjected to statutory planning restrictions typically used in urban areas. In the past, formal planning mechanisms have rarely been applied in determining the appropriateness of land use or development activities at particular sites (Griffin/Alexandra Associates, The Ecovine Project (Land and Water Australia, 2002) p 15).
57. In practice, applicants may have to seek simultaneous approval from a number of State agencies administering a number of State controls, as well as obtaining local government approval. It should be recognised that in the majority of cases, local government approval will be the only requirement.
58. For example, in the Peel-Harvey area, a phosphorus reduction management target for the catchment has been devised which is technically defensible, "ba sed on empirical modelling and observed behaviour of the estuaries and catchments over some 10 years of data collection" (Peel-Harvey Expert Review Committee, Peel Inlet and Harvey Estuary System Management Strategy: Progress and Compliance by the Proponents with the Environmental Conditions set by the Minister for the Environment in 1990 (Environment Protection Authority, 2002).
59. For example, the State Planning Strategy 1997 provides guidance to the Western Australian Planning Commission with the aim of promoting water sensitive urban design, integrating stormwater development into urban design, promoting integrated catchment development and encouraging the use of recycled waste water.
60. Griffiths R, Planning for Urban Development (2003) (a paper presented at the Drainage Management Forum Swan-Canning Catchment, Western Australia) http://www.ourwaterfuture.com.au/community/drainage_presentations.asp.
61. Gardner A, "Planning for Integrated Natural Resources Management in WA" (1996) 26 Western Australian Law Review 427. However, there is some evidence that some local governments, such as the Shire of Harvey, with the introduction of a requirement for development approval for the clearing of native bushland, are beginning to address natural resource issues.
62. Bates G, Environmental Law in Australia (5th ed) (Butterworths, 2002).
63. McNamara and Cornish, for example, describe a process of ranking areas and land-uses within a catchment "for their importance as contributors to pollution (McNamara L and Cornish P, "Prioritising Remediation Measures that Address Diffuse Nutrient Pollution" (2002) Coast to Coast, pp 286-289.)
64. Bates G, Environmental Law in Australia (5th ed) (Butterworths, 2002).
65. In New South Wales, for example, the Native Vegetation Conservation Act 1997 facilitates the establishment of regional vegetation management plans that aim to conserve native animals and their habitats. In particular, it classifies the removal of native vegetation as "development", and landholders require consent from the Department of Land and Water Conservation.
66. Productivity Commission, Impacts of Native Vegetation and Biodiversity Regulations (Draft Report) (2003).
67. Some commentators have argued that one should establish a baseline for polluting run-off from farms which could be used as the catalyst for the introduction of compensatory mechanisms when farmers are expected to improve beyond that standard.
68. Productivity Commission, Industries, Land Use and Water Quality in the Great Barrier Reef Catchment (2003) p 193.
69. McNamara and Cornish, for example, describe a process of ranking areas and land-uses within a catchment "for their importance as contributors to pollution (McNamara L and Cornish P, "Prioritising Remediation Measures that Address Diffuse Nutrient Pollution" (2002) Coast to Coast, pp 286-289.)
70. Gordon S, Regulatory Design for Water Quality Management in Perth, Western Australia: Economic Instruments Series: Paper 2: Innovative economic instruments for nonpoint source water pollution in the Swan-Canning river system (SRES, ANU, 2003).
71. Gordon S, Regulatory Design for Water Quality Management in Perth, Western Australia: Economic Instruments Series: Paper 2: Innovative economic instruments for nonpoint source water pollution in the Swan-Canning river system (SRES, ANU, 2003).
72. Productivity Commission, n 64.
73. For a description of how a general duty might work, see A Gardner, "The Duty of Care for Sustainable Land Management" (1998) 5 Australasian Journal of Natural Resources Law and Policy 1, p 29.