4. What are the Options?

4.1 Policy objective

To improve the management of on-site wastewater systems and to minimise the risk to people and the environment from the cumulative effects of malfunctioning or poorly maintained on-site systems.

In particular, the objective aims proactively to:

• minimise health risks – by minimising contact with effluent as a result of malfunctioning or poorly maintained systems

• protect surface water and groundwater – by avoiding contamination of both surface water and groundwater resources caused by leaching or the direct flow of untreated or partly treated effluent caused by malfunctioning or poorly maintained systems

• prevent the degradation of land – by avoiding deterioration of soils or vegetation caused by contamination, salination, or erosion as a result of malfunctioning or poorly maintained systems

• protect amenity – by avoiding adverse impacts on amenity, including unpleasant odour, degraded aesthetics and the presence of pests as a result of malfunctioning or poorly maintained systems.

Underlying the policy objective is an assumption that the polluter pays principle should apply where on-site systems are having adverse effects on the environment.¹¹

4.2 What are the options?

This section looks at the options that were considered and assesses their appropriateness for addressing the problems defined in section 3, and for achieving the policy objective set out under 4.1 (above). The options considered included:

• non-regulatory measures (eg, a partnership with regional councils and/or city/district councils to produce guidance or voluntary agreements)

• amend the RMA to require better management of on-site systems

• amend other legislation (eg, the Building Act, Health Act or Local Government Act)

• a national policy statement under the RMA

• a national environmental standard under the RMA.

Each option is assessed against a set of criteria that are derived from the policy objective above. These criteria are:

• improves the management of on-site systems

• proactively manages risks to health and the environment

• clarifies roles and enhances effectiveness

• reduces the number of failing on-site systems

• has local government input

• is cost effective

• applies the polluter-pays principle.

The following discussion of alternative options will help form the basis of the section 32 (cost-benefit) analysis if the consultation process indicates that a national environmental standard is the best means for achieving the objective. The status quo is not discussed in this section as it is outlined in the problem statement.

4.2.1 Reticulation

Section 3 identifies the management of existing on-site systems as a key problem. Reticulation could remedy this issue through the centralised management of wastewater treatment. However, if the issue is as simple as poor management of existing on-site systems, then reticulation may not be a cost-effective solution, especially where existing systems may still be in a functioning condition. A move to reticulation may also penalise on-site system owners who currently manage and maintain their systems appropriately. It would be contrary to the polluter pays principle to require homeowners with functioning systems to pay the cost of remedying problems they may not have contributed to.

However, there are situations where improving the management of existing on-site systems is not an option and reticulation is likely to be the only cost-effective and environmentally sound solution (eg, in areas with poorly draining soils, high water tables, and small lot sizes). In these cases the community and their council will need to work together to identify the most appropriate solution. This discussion document focuses on the potential benefits of improved management of existing on-site systems and does not consider options where reticulation is the only real solution. The remainder of this section considers various options for situations where improved management of on-site systems is likely to reduce the number and effects of failing systems.

4.2.2 Non-regulatory approach

Voluntary agreements

In this approach, the Ministry for the Environment could, through the use of voluntary measures, encourage and support regional councils, district councils, industry operators and property owners to improve the operation and maintenance of on-site systems. For example, the Taranaki Regional Council and the New Plymouth, Stratford and South Taranaki District Councils entered into an agreement¹² that clarifies the roles and responsibilities for the control and management of domestic wastewater systems. The Dairying and Clean Streams Accord¹³ is another example of a voluntary agreement between different parties.

However, in the case of improving the operation and maintenance of on-site systems, the main parties are property owners, and it is unlikely that councils would want to draw up voluntary agreements with individual property owners. There would also be high costs involved in terms of the time and resources needed to develop the agreements. Finally, this option lacks any real incentive to comply, so there would still be uncertainty as to whether the process would lead to the improved management of on-site systems and, ultimately, better health and environmental outcomes.

Guidance and training

There is already a significant range of resources developed by central and local government to educate system owners in an effort to reduce the adverse effects from poorly operating or failing systems. These resources include:

• design and installation guidelines and requirements

• guidance on the operation and maintenance of on-site systems, including best practice guidelines on how to manage a system and avoid failures through correct operation and maintenance.

The information is readily available to system owners online and through pamphlets and booklets. This approach has already had some success, but based on the uptake of the currently available guidance material, further national or local guidance is unlikely to provide any additional or long-term benefit. It is unlikely that further guidance and training would, on its own, achieve the policy objective of improving the management or environmental performance of on-site systems or reduce the number of failing systems.

4.2.3 Using legislative changes

As we have seen, current legislation relating to on-site wastewater systems in New Zealand includes the Building Act 2004 (implemented by local authorities), the Health Act 1956, the Local Government Act 2002 and the RMA (implemented by district, city, unitary and regional councils).

The option of amending legislation to address the issue of failing on-site systems was considered. Current legislation addresses the design and installation of systems (the Building Act) or provides a mechanism to deal with any problems arising from the operation of on-site systems in a reactive manner (the Health Act). As a result, there is no continuity between the requirements of the various pieces of legislation as they relate to on-site systems.

Building Act 2004

The main purposes of the Building Act are to provide controls relating to building work and to set performance standards for buildings to ensure the health and safety of their occupants. The design and installation of an on-site wastewater system requires a building consent under the Building Act.

Territorial authorities are required to ensure that on-site wastewater systems are appropriately designed and installed, and will operate in such a way that no threat is posed to safety or public health. There is no mechanism under the Building Act to include a requirement in a building consent for ongoing monitoring or maintenance of on-site systems. Once a system is installed and a code compliance certificate is issued, the territorial authority has no further obligation for the on-site wastewater system. (In fact, some councils consider their responsibilities under the Building Act do not include on-site systems at all.)

A council is unable to recover directly any further costs associated with additional monitoring should it choose to do that. The effects of the discharge from on-site wastewater systems on the wider environment are not considered through the building consent process. There are powers in relation to unsanitary buildings, but these are only an option in the complete failure of an on-site system. The Building Act would require significant amendments to improve the ongoing management or environmental performance of on-site systems. Changing the Building Act to include addressing environmental effects would expand the purpose of that Act and also cut across the primary intent of the RMA. It is unlikely that the policy objective would be achieved efficiently and effectively through this option.

Health Act 1956

The Health Act 1956 supports the RMA in endeavouring to control adverse effects caused by the inadequate management of on-site wastewater systems. The RMA focuses on promoting the sustainable management of natural and physical resources, and the Health Act focuses on improving, promoting, and protecting public health, but both can work in tandem to address existing health problems.

Under the Health Act, territorial authorities have a duty to improve, promote and protect public health. Land occupiers and owners have a responsibility to comply with the Act, regulations and council bylaws that cover an activity. They are also liable for any 'nuisance' they cause, and this would include any on-site system that was considered to be in such a state that it was offensive or likely to be injurious to health (as defined in section 29).

The Health Act gives district and city councils powers to address problems with nuisances as they arise, and environmental health officers have powers to act where on-site wastewater management practices are having local or community health impacts. In practical terms, the Act gives territorial local authorities the power to require that actions are taken by a property owner to remedy a situation where a failing on-site system is creating a nuisance or risk to public health. Although councils are authorised to make bylaws for the protection of public health, the Act contains no other provisions for preventing nuisances arising, nor any mechanism to address the management of, or cumulative adverse effects from, multiple activities.

The Health Act would require significant amendments to provide a preventive or proactive mechanism for managing issues relating to the ongoing operation and maintenance of on-site systems. Amending the Health Act to include proactively managing the ongoing environmental (non-health) effects of on-site systems would be costly and not in keeping with the intent of the Health Act. The option of using the Health Act to achieve the policy objective has been discarded, as significant amendments to the Act would be required before any mechanism under the Act could be developed to achieve the policy objective.¹⁴

Local Government Act 2002

Under the Local Government Act 2002 (LGA), territorial authorities are responsible for the provision of water and sanitary services in their districts and are required to assess the provision of these services. The LGA also allows territorial authorities to make bylaws for the purpose of managing on-site systems. Under section 146(b)(iii) of the LGA bylaws can also be made by territorial authorities to manage, regulate against, or prevent the use of land associated with wastewater, drainage and sanitation. Bylaws can be used to enforce a requirement that is not covered by a rule in an (RMA) plan, and can be made to fulfil the purposes of the LGA, which is to provide for democratic and effective local government that recognises the diversity of New Zealand communities; and, to that end… provides for local authorities to… take a sustainable development approach. This is different from the purpose of the RMA, which is to promote the sustainable management of natural and physical resources.

However, despite the presence of model bylaws for the operation and/or maintenance of on-site systems produced by Standards New Zealand, they are not commonly used. Three territorial local authorities in New Zealand currently regulate the operation and/or maintenance of on-site systems through bylaws. For example, the Far North District Council and Waitakere City Council have put in place bylaws to tackle pollution and environmental health problems that are being caused by poorly managed on-site systems. The Waitakere City bylaw provides a regular pump-out and check of wastewater systems, with costs recovered through rates. The Far North bylaw provides for on-site wastewater disposal systems such as septic tanks to be assessed and maintained on a three-year cycle as part of a registration and certification process. Tank cleaning and maintenance responsibilities remain with individual property owners, but the bylaw gives the council the power to enforce compliance.

These bylaws cover installation as well as maintenance, so they may not be considered necessary by local authorities given the existing Building Code requirements and the Health Act requirements and priorities. Furthermore, a bylaw cannot require a building to achieve performance criteria that are more restrictive, or are additional to, those specified in the Building Act or the Building Code, and this includes on-site systems (section 152 of the LGA 2002). Amendments to the Building Code would be required to allow for the proactive management of on-site systems.

In future, district council bylaws may slowly tend towards reducing the risk of adverse effects arising from failing on-site systems, but without any clear direction there is no guarantee this will occur. There is no power under the LGA to direct a local authority to make a bylaw for a specific purpose. It would presumably be possible to amend the LGA to require all councils to adopt a bylaw relating to the maintenance of septic tanks. However, such an approach would be inconsistent with the philosophical underpinnings of the LGA, which is basically enabling legislation that allows for − rather than requires − bylaws to meet the needs of communities.

This option was not considered appropriate because of the uncertainty in outcome of encouraging councils to introduce individual bylaws. While bylaws could provide an appropriate mechanism for achieving the objectives of improved management and environmental outcomes and for clarifying the roles of local government, the uncertainty over whether they would be introduced or adopted means it is unlikely this option would achieve the whole policy objective.

4.2.4 Resource Management Act 1991

The RMA is the only legislation that requires consideration of the wider effects on the environment, including effects on public health. Arguably, therefore, it is the most appropriate legislation under which to evaluate the operation and management of on-site wastewater systems. The RMA provides for matters of national significance to be addressed through the development of national policy statements and for regulations (e.g. for national environmental standards) for particular environmental issues.

National policy statement

A national policy statement (NPS) would require councils to change their plans and policy statements to give effect to its provisions. An NPS would leave the exact form, content and choice of technical methods to achieve the policy outcome to the discretion of individual regional councils. An NPS would likely lead to regulatory inconsistency between regions as to how individual councils interpret and incorporate NPS considerations into a plan.

An NPS would provide high-level direction on matters of national significance that enables the use of lower-level mechanisms such as national environmental standards to prescribe technical standards, methods or requirements. A proposed National Policy Statement for Freshwater Management is being scoped by the Ministry for the Environment and is seeking to provide context and objectives for freshwater management in New Zealand. This NPS seeks to include policies developed to improve the management of the undesirable effects of land use on water quality through increased national direction.

An NPS could, over time, achieve the objectives of improved management and health and environmental outcomes. However, it is not the most effective or direct method of achieving these objectives because of the high level nature and uncertainty of interpretation and implementation of such a policy statement.

National environmental standard

National environmental standards are more prescriptive instruments than national policy statements. The RMA enables the Minister for the Environment to prepare national environmental standards. These are regulations and are binding on local authorities. Section 43 of the RMA outlines the matters that can be covered. National environmental standards can prescribe technical standards, methods or requirements for achieving a policy objective, and can be either quantitative or qualitative. There is considerable flexibility around what and how things can be considered or required. The Ministry for the Environment is currently developing or investigating the possibility of a series of national environmental standards to meet the outcomes of the Government-agreed strategy to improve the management of fresh water, including a:

• National Environmental Standard for Sources of Human Drinking-water (now in force)

• National Environmental Standard for Measurement of Water Takes (currently being drafted into regulation)

• proposed National Environmental Standard on Ecological Flows and Water Levels (under consultation).

A national environmental standard is appropriate for improving the management and environmental performance of on-site systems. As we have seen, a number of case studies have shown that lack of maintenance of on-site systems is the primary cause of inappropriate discharges from systems contributing to the contamination of waterways, groundwater and, in some cases, drinking-water. The majority of on-site systems in New Zealand are regulated by permitted activity rules under regional and district plans. Only two regional councils and three territorial authorities require regular maintenance of on-site systems through rules in plans or local bylaws. The Ministry for the Environment considers that it would not be efficient to expect each individual council to implement new rules in their plans or introduce new bylaws to address the problem. Instead, a national environmental standard would be a more efficient and cost-effective tool to improve the management of on-site systems and reduce the adverse effects that result from malfunctioning or poorly maintained on-site systems.

The opportunity to promote compliance with the Australia / New Zealand standard for on-site systems (AS/NZS 1547:2000) through a national environmental system was considered. However, many councils have chosen to use either Auckland Regional Council’s On-site Wastewater Systems: Design and Management Manual (TP58), or AS/NZS 1547, or a combination of both. These requirements have in many cases been written into regional and district plans, so it would be inappropriate to require compliance with just AS/NZS 1547:2000.

4.2.5 The preferred option

Having considered the available alternatives, a national environmental standard is considered the most appropriate means of achieving the policy objective. In this case, regulations are considered more effective for achieving the desired outcome than guidelines or voluntary agreements. In addition, a standard is considered a more appropriate instrument than an NPS because it can be more prescriptive. A national environmental standard meets the policy objective of improving the management of on-site systems more effectively and efficiently than the other available options.

An inspection regime was identified through the initial issues and options work as the most appropriate way to address ongoing failures of on-site systems. The management and maintenance of on-site systems is critical to their effectiveness, but at present there is no general mechanism to ensure this important aspect of on-site wastewater management is carried out.

Further in-depth consideration of the options presented here is contained in the document Issues and Options for the Management of On-Site Wastewater Systems in New Zealand (Duffill Watts & King Ltd et al, 2005), available on request from the Ministry for the Environment.

Table 3: Comparison of the different options in terms of their effectiveness in achieving the desired outcomes stated in the policy objective

Key to table:

Meets the criterion Does not meet the criterion ~ Partly meets the criterion

The main benefits of using a national environmental standard over other options are that it would:

• fulfil the policy objective by providing a framework for proactively managing the risks to human health and the environment from on-site systems

• provide mandatory requirements to achieve the policy objective

• allow for more prescriptive requirements than legislative amendments, and so would be less open to interpretation, and provide more direction and certainty to councils and the public

• be able to be more readily and quickly amended than legislation or plans if later changes are required

• remove any ambiguity over who is responsible for managing failing on-site systems

• provide consistency across all local government jurisdictions on the method of undertaking the inspections and what constitutes a failed on-site system

• give effect to the intent of the Proposed National Policy Statement on Freshwater management and meet the policy objectives of the proposed NPS of enabling the well-being of people and communities, improving the quality of fresh water, addressing freshwater degradation and ensuring effective monitoring and reporting

• be more cost-effective than alterations to legislation or plans.