Muddy waters: Clarifying freshwater regulations

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Since their introduction, problems interpreting the provisions of the various freshwater regulations has caused frustration for both councils, and stakeholders wishing to undertake development. The Government appears to have heard (at least some of) that criticism and is now seeking to clarify two key aspects of the regulations: wetland management, and low slope mapping for stock exclusion regulations.

Wetland management

Wetlands are primarily managed by the National Environmental Standards for Freshwater (‘NES-F’), the National Policy Statement for Freshwater Management (‘NPSFM’), and the Resource Management (Stock Exclusion) Regulations 2020. Among other things, these instruments prohibit or restrict (i.e. require resource consent for) certain activities within or adjacent to natural wetlands.

Guidance – what is meant by ‘natural’ wetlands

On 14 September 2021 Ministry for the Environment (MfE) issued Guidance (available here) on how to apply the current NPSFM definitions of ‘natural wetlands’ and ‘natural inland wetlands’. A particular ambiguity in the existing definitions that the Guidance seeks to address is the distinction between ‘natural’ and artificial or constructed wetlands. The distinction is important because ‘natural’ wetlands attract onerous obligations, while ‘artificial’ wetlands do not.

Sections 5 and 6 of the Guidance attempt to clarify this distinction through two new concepts:

  • ‘Induced wetlands’ are wetlands that have been unintentionally induced through human activities – but are nonetheless treated as ‘natural’ wetlands. Induced wetlands are therefore subject to restrictions in the NES-F and Stock Exclusion Regulations. Induced wetlands include wetlands that are inadvertently created by (for example) overflowing culverts, forestry activities, stock pugging, or roading works.
  • ‘Wetland constructed by artificial means’ refers to wetlands that have been deliberately constructed for a particular purpose – and are not treated as ‘natural’, or subject to the various regulations. Examples provided in the Guidance include effluent treatment or sediment control systems, and reservoirs for firefighting or water supply. The rationale is to avoid inappropriate restrictions on subsequent maintenance (etc.) of deliberately modified areas. (A notable exception is wetlands that were deliberately constructed for the purposes of offsetting and so on – which are to be treated as natural wetlands).

While the attempt to provide clarity is laudable (and should reduce uncertainty in many cases), it is still a relatively fine distinction, and there will likely be room for argument at the margins.

The Guidance has no legal status, and these two new concepts (which are not strictly defined) will remain outside of the NPSFM. However, the Guidance is intended to clarify MfE’s intention (and will no doubt be considered by RMA decision makers on that basis).

Consultation – further changes to come?

In addition to the Guidance on how to interpret the NPSFM as it stands, the Government is seeking feedback on further proposed changes to wetland regulations. In response to feedback received from various stakeholders and partners on the implementation of the wetland regulations, the Government is also proposing to:

  • Amend the definition of ‘natural wetland’ so as to not capture heavily modified, exotic pasture-dominated wetlands which were never intended to be protected;
  • Loosen the regulatory framework to better allow restoration works in natural wetlands; and
  • Provide a more realistic consenting pathway for certain activities so that development can occur where necessary, (while ensuring no net loss of natural wetland extent or values occurs).This includes quarrying, landfills, mining (minerals), and urban development.

The Discussion Document on these matters can be found here, and consultation closes on 13 October 2021. Current restrictions that apply to activities in or near wetlands are fairly onerous, and provide only narrow exceptions for activities that qualify as ‘specified infrastructure’ (which does not include those listed at 3 above). As such, this consultation provides a real opportunity to achieve a more workable regulatory framework.

Stock exclusion regulations – low slope mapping

Stakeholders have voiced concerns about how the Stock Exclusion Regulations 2020 are to be applied in practice. The existing Regulations contain a ‘low slope’ map which averages slope over large areas. This mapping directs where the exclusion requirements (i.e. stock exclusion from waterways) apply. Concerns have been raised that the existing map includes some steep land, fails to accurately capture some low slope land, and unintentionally captured extensive farming operations in the high country.

The Government is therefore proposing a new mapping approach to identify where beef cattle and deer will need to be excluded from waterways (available here). The proposed approach leans more heavily on management through freshwater farm plans, and includes:

  • Using a more advanced mapping methodology called ‘local terrain averaging’ to identify low slope land;
  • Managing the need to exclude stock from waterways in areas with an average slope of between 10 degrees to 5 degrees through freshwater farm plans;
  • Applying an altitude threshold of 500 metres above sea level to the proposed map. Stock exclusion requirements on land above 500 metres will be addressed through freshwater farm plans; and
  • Removing depleted grassland and tall tussock areas from the maps and managing it through freshwater farm plans.

Consultation on the proposed changes closes on 26 September 2021.

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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