Action for Healthy Waterways reforms now passed

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After nearly a year since the package was first released for consultation, the Government has now made the key policy changes that comprise the ‘Action for Healthy Waterways’ reforms. The new National Policy Statement for Freshwater Management 2020 (NPS-FM 2020), National Environmental Standards for Freshwater 2020 (NES-FW), stock exclusion regulations, and measurement and reporting of water takes regulations were gazetted on Wednesday 5 August, and will take effect on 3 September 2020.

These instruments will significantly change the way in which freshwater is managed under the Resource Management Act 1991 (RMA), and will now have to be implemented through regional planning documents (and plan changes processes). The key requirements and changes are summarised below.

Background and comment

The Action For Healthy Waterways package was first announced in September 2020, and was described at the time as the biggest set of freshwater reforms since the RMA was passed in 1991. Our summary of the proposals as first announced is available here. The central promise of these changes was to “stop further degradation, show material improvements within five years, and restore our waterways to health within a generation”.

The main proposals were:

  • Amendments to the RMA to establish a new freshwater planning process (since implemented);
  • Exposure drafts of the NPS-FM 2020, NES-FW, and stock regulations;
  • Proposed National Environmental Standards for Wastewater; and
  • An updated National Environmental Standard for Sources of Human Drinking Water.

In May 2020 the Government announced key decisions that had been made with regard to the NES-FM, NES-FW, and stock exclusion regulations (the other proposals are being progressed separately) – our summary of those decisions and analysis of what had changed is available here.

As such, the new instruments have already been well-signalled, and do not reflect a significant change of direction from the previous announcements (although having the final text released last week reveals more detail about the new requirements and their likely implications). While we can expect some public debate on the new requirements (particularly leading in to an election), for many the focus will now turn to implementation.

Under the RMA, Regional Councils have until 31 December 2024 to notify regional plans (or plan changes) that give effect to the NPS-FM 2020, which in many cases will require extensive technical work as well as consultation with communities. Where freshwater plan changes are already in train (and particularly where submissions have not yet closed) submitters and councils may look to implement the new requirements where possible now, rather than repeat the process later. However, particularly for plan changes that are not notified until 2024, it could still be several years before the new plans are made operative. It therefore remains to be seen how quickly the goals of stopping degradation and showing material improvement can be realised.

Councils are not required to implement national environmental standards or other regulations in the same way as policy statements, but still need to review their plans for ‘duplication or inconsistency’ (noting that plans are allowed to be more stringent than the NES).

Beyond the procedural requirements in implementing the new NPS-FM (which should not be underestimated), the substance of the new instruments will create operational challenges for many. In the pursuit of its ambitious goals, the NPS-FM has a fairly uncompromising focus on environmental outcomes in setting targets and limits for water quality – and the list of attributes to set ‘limits’ or action plans for has been expanded. The NES-FW introduces a range of new consenting requirements (including a ‘nitrogen cap’) that are likely to go beyond what is required in most regional plans.

These aspects will be challenging for dairy farming operations, and at the margin could ultimately lead to land use change in some instances. Commercial vegetable growing has been spared some of the impact of the changes, with horticulture no longer subject to the restrictions on farming intensification, and also receiving a partial exemption in Pukekohe and the Horowhenua.

Other aspects of the NPS-FM and NES-FW will have wider implications, for example the new restrictions on works affecting wetlands will require even providers of significant infrastructure to demonstrate a ‘functional need’ to be in those locations.

Looking further ahead, there may still be further policy changes to come in the freshwater space. The overarching ‘Essential Freshwater’ discussion document (available here) had also signalled an intention to address more fundamental issues with the regulation of fresh water in this country such as the ownership of water and how it is allocated (beyond the current ‘first in first served’ system). The new instruments do not touch on these issues, which remain to be dealt with in the future (and it has been argued that the question of iwi rights to water needs to be resolved sooner rather than later).

As part of the wider background, the ‘Randerson Report’ into the resource management system (available here) has recently recommended repealing the RMA entirely and replacing it with a separate Natural and Built Environments Act and Strategic Planning Act. Given the very significant investment that councils and submitters have already made in developing freshwater plans, and will continue to make in order to implement the NPS-FM 2020, we can only hope that any future regime includes appropriate transitional provisions (i.e. preserving to some extent the freshwater plans being developed now) so that this considerable effort is not wasted.

The contents and requirements of the new instruments are summarised below.

NPS-FM 2020

The NPS-FM 2020 (available here) sets out national level objectives and policies that regional councils must ‘give effect to’ in their planning documents, including by setting targets and limits for maintaining or enhancing water quality and the ecological health of water bodies over time.

Key features of the new NPS (which replaces the current NPS-FM 2014) include:

  • A requirement to manage freshwater in a way that ‘gives effect’ to Te Mana o te Wai, including by actively involving tangata whenua in freshwater management, working with tangata whenua and communities to set out a ‘long-term vision’ in the regional policy statement, and through a new ‘hierarchy of obligations’ which prioritises the health and wellbeing of water bodies, then the essential needs of people (e.g. drinking water), followed by other uses.
  • Requirements to improve degraded water bodies, and maintain or improve all others using ‘bottom lines’ (minimum standards) defined in the NPS.
  • An expanded ‘national objectives framework’ (which sets out the values and attributes that regional councils must provide for and manage by setting environmental outcomes, ‘target attribute states’, and ‘limits’ or ‘action plans’ to achieve them). This includes:
    • two additional compulsory ‘values’ - threatened species and mahinga kai (in addition to ecosystem health and human health for recreation, carried over from the NPS-FM 2014);
    • a requirement for councils to develop plan objectives that describe the environmental outcomes sought for all values (including an objective for each of the five individual components of ecosystem health);
    • new ‘attributes’ aimed specifically at providing for ecosystem health, including fish index of biotic integrity (IBI), sediment, macroinvertebrates (MCI and QMCI), dissolved oxygen, ecosystem metabolism and submerged plants in lakes (councils will have to develop action plans and/or set limits on resource use to achieve their objectives with respect to these attributes);
    • more stringent national bottom lines for the ammonia and nitrate toxicity attributes, to protect 95% of species from toxic effects (up from 80%);
    • requirements to manage dissolved inorganic nitrogen (DIN) and dissolved reactive phosphorus (DRP) as they relate to periphyton and other ecosystem health attributes, and to provide for the health of downstream ecosystems (but no compulsory national ‘bottom lines’ with respect to these attributes); and
    • partial exemptions for 5 major hydro-electricity schemes (Waikato, Tongariro, Waitaki, Manapouri, and Clutha), and for 2 specified vegetable growing areas (Pukekohe and Horowhenua).
  • Requirements to avoid any further loss or degradation of wetlands and streams (with some limited exceptions for specified infrastructure), map existing wetlands, and encourage their restoration.
  • Directions to identify and work towards target outcomes for fish abundance, diversity and passage and address in-stream barriers to fish passage over time.
  • A requirement to set an aquatic life objective for fish and address in-stream barriers to fish passage over time.
  • Annual monitoring and reporting requirements with respect to freshwater, with a synthesis report to be published every five years that includes a single ecosystem health score and responds to any deterioration.

While draft versions of the NPS-FM had included deadlines for full implementation in regional plans (initially 2025 then 2026), Part 4 now simply requires local authorities to give effect to the NPS-FM ‘as soon as reasonably practical’. It is therefore likely that most councils will work towards the December 2024 date for notifying changes as specified in the RMA.

NES-FW

The new NES (available here) will directly regulate a number of activities that have the potential to impact on freshwater, by setting out performance standards and/or new requirements for resource consent (which will be additional to any existing requirements in regional plans). Some aspects of the NES (e.g. in terms of wetlands) complement the policy provisions in the NPS-FM.

In summary, the regulations include:

  • Performance standards and consent requirements for feedlots and other stockholding areas, and for intensive winter grazing;
  • Restrictions on further agricultural intensification before the end of 2024 (specifically, on conversions from forestry to pastoral land use, conversions of farm land to dairy farming, irrigation of dairy farm land, or the use of land as ‘dairy support’ land would be restricted over certain thresholds; where those restrictions apply resource consent can only be granted if it will not increase contaminant loads in the catchment, compared with what was present at the close of 2 September 2020);
  • A ‘nitrogen cap’ for the application of synthetic nitrogen fertiliser, of 190 kg/ha/year (the discharge of fertilizer over and above the cap requires resource consent as a non-complying activity), with associated reporting requirements;
  • Restrictions on earthworks and vegetation clearance within 10m of a natural wetland, and reclamation of river beds; and
  • Requirements to provide for fish passage in relation to culverts, weirs, and dams.

A requirement to prepare freshwater farm plans, originally proposed as part of the NES-FW, has since been incorporated into new Part 9A of the RMA, via the RMA Amendment Act 2020. The requirement to have a FW-FP will apply to almost all farms over a minimum size (e.g. 20 ha for pastoral farming and arable farming, 5 ha for horticulture), or otherwise as described in future regulations (yet to be prepared).

While regional councils do not need to amend their plans to ‘give effect’ to the NPS, they will need to ensure there is no ‘duplication or inconsistency’. The NES provides that regional plans are able to include requirements that are more stringent (but not more lenient) than the NES.

Stock exclusion and water take regulations

The Resource Management (Stock Exclusion) Regulations 2020 (available here) come into force from 3 September and will prohibit the access of cattle, pigs and deer to wetlands, lakes, and rivers. In particular, the regulations:

  • Require anyone who owns or controls beef cattle, dairy cattle, dairy support cattle, deer or pigs (‘stock’) to exclude them from specified wetlands, lakes, and rivers more than one metre wide;
  • Apply to dairy cattle, dairy support cattle, and pigs regardless of the terrain, but only apply to beef cattle and deer on mapped low slope land, or if they are break-feeding or grazing annual forage crops or irrigated pasture;
  • Do not require stock to be excluded from land within three metres of the bed of rivers or lakes if there is a permanent fence in place on 3 September 2020; and
  • Provide that stock, except deer, can generally only cross a river or lake by using a dedicated bridge or culvert, unless they cross no more than twice in any month.

Finally, the Resource Management (Measuring and Reporting of Water Takes) Regulations 2010 have been amended to introduce a staged timeline eventually (i.e. by 2026) requiring holders of resource consents to take water at a rate of 5 litres/second or more to:

  • Measure their water use every 15 minutes;
  • Store their records; and
  • Electronically submit their records to their council every day.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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