Freshwater Reform - Where are we going and how will we get there?

Introduction

Two major national direction documents intended to lay the foundation for restoration of our waterways have been released by the Government.

The National Policy Statement for Freshwater Management 2020 (NPS-FM) and the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (Freshwater NES), coupled with changes to the Resource Management Act 1991 (RMA) passed earlier this year, are collectively intended to set New Zealand on a new pathway regarding freshwater management.

Degradation of our freshwater resources is a chronic, widespread and deep-seated problem. Growing community concern has resulted in some changes however action across the board has been inconsistent. Many interested parties consider the current framework is inadequate to cope with the scale of the problem.

This article briefly discusses where we are going with freshwater management and how we are supposed to get there. Opportunities for stakeholders to participate in the various consultation processes contemplated by the freshwater reforms are also considered.

Where are we now?

Freshwater is severely threated by land use intensification and population growth in urban areas. 94% of urban streams and 82% of streams in pastoral areas are not suitable for swimming at least some of the time, 76% of native fish are threatened with, or at risk of, extinction and New Zealand has lost more than 90% of wetlands[1].

Where are we going?

The Government’s Healthy Freshwater package is guided by the concept of Te Mana o Wai which acknowledges the fundamental importance of water and recognises that protecting the health of freshwater protects the health and well-being of the wider environment and the people living within it.

Te Mana o Wai is about restoring the balance between the water, the wider environment, and the community. The Healthy Freshwater package seeks to deliver on this outcome through the following over-arching and time-bound objectives:

  1. within five years: stop further degradation of freshwater resources and start making immediate improvements so that water quality is materially improving; and
  2. within a generation: reverse past damage to bring freshwater resources, waterways and ecosystems to a healthy state.

How will we get there?

The NPS-FM and Freshwater NES coupled with changes to the RMA (and new RMA regulations such as section 360 stock exclusions) introduce a range of new requirements that align with and support these objectives as summarised below.

Stop further degradation:

  1. Immediate protection for wetlands, steams and fish passage (NPS-FM and Freshwater NES);
  2. Controls on high-risk intensive winter grazing practices (Freshwater NES);
  3. Minimum standards for feedlots and stock holding areas (Freshwater NES); and
  4. Interim restrictions on agricultural intensification (Freshwater NES).

Material improvements in five years:

  1. Require stock exclusion from waterways in low-slope areas (new regulations introduced under s360 RMA) and via Farm Management Freshwater Plans (FM-FPs);
  2. Require minimum setbacks for vegetation clearance and earthworks from rivers and streams (Freshwater NES); and
  3. Reduce excessive nitrogen use through a cap on application of synthetic nitrogen fertiliser to pastoral land (Freshwater NES).

Path to restore waterways within a generation:

  1. New freshwater values, new freshwater attributes (including sediment) and an overarching fundamental concept guiding freshwater management as discussed above (NPS-FM);
  2. New planning processes that enable faster and nationally consistent regional plans, as discussed below (RMA);
  3. Mandatory and enforceable FM-FPs (RMA and new regulations to be introduced under s360 RMA); and
  4. Requirements for real-time measuring and reporting of data on water use (new regulations introduced under s360 RMA).

Faster and nationally consistent regional plans

Earlier this year the RMA was amended to include a streamlined freshwater planning process for regional councils that includes an independent hearings panel to hear submissions and make recommendations. New provisions deal with composition of the panel, the procedure for hearing submissions and recommendations of the panel. The remit of the panel is broader than usual and it can make recommendations on matters outside scope of submissions made on the freshwater planning instrument.

Appeal rights are limited compared to the standard plan-making process under the RMA. Rights of appeal to the Environment Court are available where the regional council rejects a recommendation of the panel and decides on an alternative solution. Rights of appeal to the High Court on questions of law only are available where the regional council has accepted the recommendation of the hearings panel.

Key role of regional councils

Regional councils have a key role in making the transition towards improved freshwater contemplated by the these changes. They will be responsible for promoting changes to regional planning instruments to give effect to the NPS-FM, monitoring compliance with the Freshwater NES, FM-FPs (once certified) and the new RMA regulations dealing with stock exclusion.

Non-regulatory measures

In addition to the above, the Government has also introduced a range of non-regulatory measures to support improvements to water quality. These include funding for planting trees to improve or protect water quality, funding to support the Hill Country Erosion Programme, and direct investment into environmental projects such as Catchment Group funding, resourcing waterway fencing, riparian planting and stock water reticulation, restoring wetlands and providing for fish passage[2].

Social change

Although not mentioned in the reform package, we have explained in an earlier article why improving water quality is more than just a regulatory, scientific issue or communication issue. It’s also a social problem which will require behavioural change within urban and rural communities. Read our earlier article here.

Timing of different measures

The key date for most of these measures is 3 September 2020. The NPS-FM comes into force on this date. Recent amendments to the RMA require regional councils to notify new or updated regional policy statements and plans by December 2024 that must detail how the region will implement the new NPS-FM over the coming decades. Final decisions on regional planning instruments are due in 2026, or 2027 at the latest.  

The Freshwater NES also comes into force on 3 September, except specified parts which don’t take effect until 2021. The Freshwater NES is subject to the National Environmental Standard for Plantation Forestry which is already in force and manages the environmental effects of plantation forestry activities.

The stock exclusion regulations also come into force on 3 September, although again specified parts don’t take effect until later to allow landowners time to comply with the new requirements.

FW-FPs are not required immediately. The purpose of FW-FPs is to better control the adverse effects of farming on fresh water and freshwater ecosystems within specified areas of New Zealand. Over the next 12-plus months the Government intends to engage with primary sector representatives and others to develop new regulations. The new regulations will set out requirements for certified freshwater farm plans and timeframes for when these plans are required[3].

How can landowners and stakeholders be involved?

There are several opportunities for landowners and stakeholders to be involved. The NPS-FM requires each regional council to develop long-term visions for freshwater and include those visions as objectives in its regional policy statement. Every long-term vision must be developed through engagement with communities and tangata whenua about their wishes for water bodies and freshwater ecosystems in the region.

The NPS-FM also requires each regional council to set and work towards more specific outcomes for measures of ecosystem health and other values within different freshwater bodies and their related catchments (known as Freshwater Management Units or FMUs). As part of this work, regional councils are to set limits as rules and prepare actions plans to achieve environmental outcomes. At each step of the process, regional councils must engage with communities and tangata whenua.

Notification of changes to regional policy statements, regional plans and district plans to implement the NPS-FM must occur under the RMA and stakeholders can participate in these processes in the usual way via the submission and hearing process.

Further, actions plan to manage FMUs must be prepared by regional councils in consultation with communities and tangata whenua.

Conclusion

The freshwater reforms are a coherent suite of measures that collectively provide a logical pathway for New Zealand to transition to healthier freshwater.

There is still a good deal of work to be done by regional councils to implement the new national direction and by central government to provide necessary implementation guidance and funding support for on-the-ground environmental initiatives by farmers and community groups.

Just as important is the need for behavioural or social change within urban and rural communities. It will be interesting to see how far we have travelled towards healthy freshwater by 2030.

If you have any questions about the freshwater reforms or how they may impact you please get in touch with one of the Adderley Head team.

Disclaimer: This is a brief summary for information purposes only and is not legal advice.

  

[1] Cabinet Paper, Action for Healthy Waterways – Decisions on National Direction and Regulations for Freshwater Management May 2020

[2] MfE website – Support and advice available to farmers and communities

[3] MfE website - Regulations for freshwater farm plans and reporting of sales of fertiliser containing nitrogen

Posted on Thursday 20th August, 2020 at 09:22 am