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ACTION FOR HEALTHY WATERWAYS - ESSENTIAL FRESHWATER PROPOSALS ANNOUNCED
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The Government has now released the detail of its proposals for national direction on freshwater, following on from the Essential Freshwater announcements late last year. Public submissions are open until 17 October 2019.

The changes have been described as the biggest set of freshwater reforms since the Resource Management Act (RMA) was passed in 1991.  They aim to stop further degradation of our rivers and lakes, achieve a noticeable improvement in five years, and restore our waterways within a generation.

Summary

The flagship proposals in the Discussion Document are to:

  • ‘Set and clarify policy direction’ – through a new freshwater planning process in the RMA, and a new (replacement) National Policy Statement for Freshwater Management (NPSFM);
  • ‘Raise the bar on ecosystem health’ – through focusing on a wider range of ecosystem health attributes in the new NPSFM, higher standards for swimming in summer, and new measures to protect wetlands and streams;
  • ‘Support the delivery of safe drinking water’ – while specific amendments have not yet been developed, it is proposed to amend the existing National Environmental Standards (NES) for Sources of Human Drinking water to provide direction on setting source water risk management areas (as part of the Government’s wider Three Waters Review);
  • ‘Better manage stormwater and wastewater’ – a new Wastewater NES and Water Services Act are proposed, which would set minimum standards for wastewater discharges and overflows, and require operators to follow good practice risk management;
  • ‘Improve farm practices where needed’ – through a number of proposals to manage the effects of farming, including mandatory farm plans, restrictions on further intensification until the new NPSFM has been implemented, interim limits for nitrogen loss to apply in identified catchments, excluding stock from waterways, and controls on feedlots and intensive winter grazing.

Some of these proposals are still under development and/or will also be consulted on through separate processes (such as the proposed legislative changes), but the Discussion Document nonetheless seeks feedback on all aspects (and provides specific questions to consider). The most advanced proposals (with drafts available online for more detailed feedback) are the proposed new NPSFM, NES for Freshwater, and stock exclusion regulations.

Who will the proposals affect?

Everyone. The proposals are so broad that they will touch all aspects of society. Councils, communities and tangata whenua will need to take part in new freshwater planning processes. Landowners with wetlands on their properties, or who carry out erosion control, install culverts, or flood prevention works will all be affected. Anyone who grazes animals, undertakes commercial vegetable production or irrigated farming, or takes water to irrigate their vineyards or orchards, will be impacted by the changes. Infrastructure operators, developers of land, operators of our 3-waters networks, anyone who likes to swim in a lake or river, fish, or take a boat out. All of us.

Key Changes:

The Discussion Document proposes a large number of wide-ranging policy changes, and the implications of some of these will only become clear through more detailed consultation further down the track.  We summarise the more significant and immediate aspects of the reforms below. 

New Planning Process

While the RMA already contains a specific Collaborative Planning Process that was originally developed to facilitate freshwater planning, the Discussion Document now proposes a new ‘freshwater planning process’ to enable ‘better, faster, more nationally-consistent water management plans’. The new process is also intended to enable councils to meet the deadline of 2025 to fully give effect to the new NPSFM through changes to their regional plans. 

As outlined in the Discussion Document, the key features of this new process would be:

  • Plans are developed by councils in consultation with communities (under the NPSFM) in the usual way;
  • Notified plans are considered by a panel comprised of government-appointed freshwater commissioners, local counsellors, and tangata whenua-nominated representatives, which would hear submissions and make recommendations;
  • Councils would make the final decisions, with restricted avenues for appeal.

New (replacement) NPSFM

The existing NPSFM 2014 would be completely rewritten, from the ground up.  In general terms many of the same substantive requirements are present (and new ones added).  However, it is proposed to restructure the NPSFM so that it comprises just one objective and thirteen succinct policies, with the rest of the document setting out what is needed in order to implement or give effect to them.

Other features of the draft NPSFM include:

  • Elevating the status of Te Mana o te Wai (‘the mana of the water’), so that it is put first in decision making as the ‘fundamental concept’ which underpins the NPSFM.  Essential human needs (e.g. drinking water) will be second in line, followed by all other uses.
  • Additional requirements to involve iwi and hapū in freshwater management, and to reflect tangata whenua values in decisions relating to water bodies and freshwater ecosystems.
  • A greater focus on integrated management, and managing freshwater in urban environments.
  • Retaining most of the high level requirements from the NPSFM 2014, such as to ‘maintain or improve’ freshwater, to allocate and use water efficiently, and to phase out over-allocation.
  • Retaining the core components of the ‘National Objectives Framework’, which will require councils to identify ‘values’, ‘environmental outcomes’ (previously ‘freshwater objectives’), ‘target attribute states’ (i.e. the ‘band’ of water quality they are targeting, for each metric), ‘limits’ on resource use for each catchment (‘freshwater management unit’), through engagement with communities.  However, notable changes to this framework include:
    • Adding ‘threatened species’ as a new compulsory value, and potentially also mahinga kai (i.e. kai are safe to harvest and eat, and freshwater resources are available for customary use). 
    • Broadening its focus from physical and chemical water quality to include more holistic aspects of ecosystem health (i.e. aquatic life, habitat, and ecological processes, in addition to water quality and quantity).  Councils will be required to set objectives for a range of new attributes (e.g. macroinvertebrates, fish, submerged plants) which need to be above the ‘national bottom lines’ specified in the NPSFM.
    • Adding new attribute tables and national bottom lines for dissolved inorganic nitrogen (DIN) and dissolved reactive phosphorous.  This is in addition to the existing limits for total nitrogen, and nitrate, and total phosphorous, which are not proposed to change.
  • Providing specific direction on a range of new matters to be addressed in regional plans, such as identifying and protecting wetlands, managing adverse effects on streams (to prevent ‘net loss’ in ecosystem health), and providing for fish passage.  The overarching policies in the NPSFM are quite directive, requiring ‘no further loss or degradation of natural inland wetlands’, and ‘no further net loss of streams’.

Significantly, the deadline for full implementation of the new NPSFM (with its additional requirements) has been brought forward to 2025 (whereas most Councils have specified an implementation date between 2025 and 2030 for the existing NPSFM 2014 requirements). 

New NES for Freshwater

The proposed new NES would directly regulate a number of activities that have the potential to impact on freshwater, by setting out standards to be met and when resource consents will be required.

The key activities and requirements are:

  • Standards for wetlands: including standard wetland monitoring obligations to be imposed on resource consents, specific provision for nationally significant infrastructure (such as the National Grid and state highways), and requirements for resource consents for vegetation destruction, earth disturbance, and drainage activities.
  • Restrictions on ‘river bed infilling’, which will generally be a non-complying activity, or else a discretionary activity if specific circumstances apply (e.g. the activity relates to nationally significant infrastructure or is for the purpose of flood prevention or erosion control).
  • Requirements to provide for fish passage, and standards for culverts, weirs and dams.
  • Livestock control requirements for farming activities such as feedlots, sacrifice paddocks, and intensive winter grazing.
  • Standards for the freshwater module of a farm plan (‘FW-FP’), which will be required for farms used for commercial vegetable production and other farms in specified catchments within 2 years of the NES coming into force, and for all other farms by 2025.
  • Interim restrictions on land use intensification, which will apply until such time as the NPSFM has been fully implemented for the catchment in question (so until 2025, or possibly earlier).  Restrictions would apply to increases in intensive winter grazing, increases in irrigated farming of more than 10ha, land use change to either dairy support or dairy, or from forestry to any form of pastoral farming, as well as any increase in commercial vegetation production (unless it results in no net increase in terms of the total area within the catchment).  While this restriction applies, it is proposed that resource consent could only be granted if there would be no increase in the nitrogen, phosphorus, sediment, or microbial pathogen discharges from the farm following the expansion or land use change (as compared with average discharges from the 2017/2018 farm year). 
  • Proposed interim restrictions for nitrogen loss in specified catchments, which are likely to be based on a ‘threshold value’ determined by the 75th percentile for nitrogen loss within the catchment, so that the farms with higher levels of nitrogen loss would have to make changes to get below the threshold (this is one of three options for interim limits set out in the Discussion Document).

Comment

The proposed changes will have significant implications for our environment, communities, and economy, and will affect a wide range of stakeholders.

As usual, some will claim the proposed measures go too far, while others will see them as not going far enough.  In particular, concerns have already been raised about the new nitrogen bottom lines, the interim nitrogen limits, and the ‘interim ban’ on land use intensification.  The Discussion Document acknowledges that the new standards ‘may require land-use change in some catchments’.

Overall, the proposals provide much more directive guidance for managing freshwater than we have seen previously under the RMA, cover a broader range of environmental attributes and components of the freshwater system, and will require changes to be implemented faster than the current NPSFM timeframes.  

While greater national direction or guidance is proposed in many areas, there will remain a strong emphasis on community level engagement and consultation, in developing a ‘long term vision’ to give effect to Te Mana o te Wai, and to set values, environmental outcomes and limits at a catchment level. Provided the national bottom lines are (or will be) met, the National Objectives Framework still provides communities and councils with discretion as to what ‘attribute band’ will be achieved and the timeframes for achieving it. The timeframes can be ‘any length or period’, but interim targets (at intervals of 10 years or less) are required for longer term goals. 

The more immediate challenge will be getting robust plans that fully implement the new NPSFM in place by 2025.  For many councils the workload necessary to meet the existing NSPFM 2014 requirements was already looking challenging – they will now have more work to do, but less time in which to do it.

To some extent the new freshwater planning process will assist with that, saving time at the ‘back end’ of the planning process through restrictions on appeal rights.  However, it will not make the necessary ‘front end’ monitoring and assessment work any easier.  The task of investigating the current state of the environment in every catchment, and then setting goals for improvement and limits to achieve them (not to mention methods to allocate resources where catchments are overallocated), all in consultation with communities, should not be underestimated.  It is the scope of this work, as much as the more formal statutory planning process, that has delayed progress in many cases.

Perhaps in light of that, the draft NPSFM provides that where a council does not have ‘complete and scientifically robust data’ on the current environmental state, it is to use ‘best efforts’ to proceed in any event, relying on ‘partial data, local knowledge, and information obtained from other sources’.  Likewise, in deciding on water quality targets to aim for, councils are required to ‘use the best information available at the time’ and ‘not delay making decisions because of uncertainty about the quality or quantity of the information’.  While the desire to make progress is understandable, this degree of urgency introduces a risk that attribute states are not set at the right level to achieve environmental outcomes, or that the social and economic consequences of the associated limits are not fully understood.

In the even more immediate term, the wording of the new NPSFM and NES will require careful attention.  There are a number of moving parts to consider.  For example, there is the potential for the higher level policies for wetlands and streams in the NPSFM to be more directive (restrictive) than what is contemplated by the substance of the NES and other NPSFM provisions.

Finally, while the proposals deliver on most of the initiatives announced as part of the Essential Freshwater paper available here, they stop short of addressing the third government objective, which is to address water allocation issues (including in terms of interests among Māori and existing users).  Further technical assistance may also be needed on the process and options for setting limits in order to achieve environmental objectives.

Your chance to have a say

The Discussion Document, draft NPSFM, draft NES, and draft regulations are all available here. Submission close on 17 October 2019.

If you would like further information on this topic and the implications for you, or assistance with making a submission, please get in touch with Nicky McIndoe, Christina Sheard, Marija Batistich, or Ezekiel Hudspith.

Our thanks to Ezekiel Hudspith and Joe Wright for assistance with the preparation of this newsflash.

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Ezekiel Hudspith

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+64 4 498 0849

Nicky McIndoe
Nicky McIndoe

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+64 4 915 0818

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