Freshwater Reforms to Cause Splash for the Forestry Sector

Introduction

The Government’s recently announced freshwater package introduces national direction for sediment management, which potentially has significant implications for the plantation forestry sector.

On 28 May 2020 the Government released its decisions on the national direction for freshwater. The freshwater package includes a replacement National Policy Statement for Freshwater Management (the NPS-FM 2020) which contains, among other matters, national direction for sediment management. The package is currently in draft form and the Government expects it will become law in July 2020.

In this article we discuss what the NPS-FM 2020 says about sediment management, how regional councils will be required to implement the NPS-FM 2020 and, lastly, the implications of these changes for the plantation forestry sector.

How will the NPS-FM 2020 manage sediment?

Because the freshwater package is currently in draft form we cannot be completely certain of the contents of the reforms. The comments that follow are based on the draft NPS-FM 2019 released for consultation and the Cabinet Paper which accompanied the Government’s recently announced decisions.

The first generation of the NPS-FM (created in 2014 and amended in 2017) covered a number of contaminants and nutrients, but was silent on the issue of sediment.

By contrast, the NPS-FM 2020 will include national targets for the amount of sediment present in waterbodies throughout New Zealand. Regional councils will be required to achieve these targets within their regions by amendment to regional policy statements and regional plans. This will have important implications for the forestry sector as sediment is the main contaminant of concern resulting from plantation forestry activities.

The introduction of sediment takes the form of two new “attributes”, namely suspended fine sediment and deposited fine sediment. Each attribute is accompanied by a national bottom line for its concentration in different waterbodies, depending on the class of the specific waterbody.

How are regional councils required to implement the NPS-FM 2020?

The NPS-FM 2020 sets out the process regional councils should follow in order to implement it. In broad summary, regional councils will be required to:

  • firstly, group all waterways in their region into manageable portions (known as a Freshwater Management Units or FMU);
  • identify the freshwater values of each FMU and ascertain, through baseline monitoring conducted over 2 years, the current levels of attributes in the FMU;
  • identify the target levels for attributes by reference to the NPS-FM (e.g. the target for suspended sediment); and
  • implement the steps required to achieve these target levels, either through rules (in the case of suspended sediment) or non-regulatory action plans (in the case of deposited sediment); and
  • monitor progress to achieve the targets.

In this regard, the NPS-FM 2020 requires freshwater management that is tailored to the quality of freshwater within individual waterbodies or FMU. This can be contrasted to some regional plans where blanket region-wide rules and limits on sediment discharges are currently used.

The recent Cabinet Paper signals that the Government intends to make five “significant modifications” to the sediment provisions that were included in the draft NPS-FM 2019. These changes include: relaxing the method for monitoring suspended sediment to allow councils to use visual clarity in place of turbidity (should they wish to do so), allowing for an alternative way of measuring deposited sediment in naturally soft-bottomed streams, and amendments to the timeframes, statistics of assessment and classification systems for both suspended and deposited sediment. Unfortunately, the detail of these amendments is not provided in the Government announcements.

Implications for plantation forestry sector

A matter which has not been clarified is whether the sediment management provisions of the NPS-FM 2020 are to be implemented through the National Environmental Standards for Plantation Forestry (NES-PF) or through rules within regional plans.

Historically sediment management has been controlled though regional rules. The NES-PF, gazetted in 2017, includes numerous regulations designed to manage sediment discharges from various plantation forestry activities.

Some regional councils now simply rely on the NES-PF provisions, whilst others retain sediment rules in regional plans. The latter situation creates difficulty for the plantation forestry sector as affected foresters have to comply with two different regulatory regimes designed to manage sediment effects from their forestry activities.

For foresters, it would be preferable to have the NPS-FM 2020 implemented through amendment to the NES-PF. This would avoid duplication and ensure a nationally consistent approach to management of sediment effects from plantation forestry activities.

During consultation regarding the draft NPS-FM in 2019 the Ministry for the Environment signalled that changes to freshwater management “…will not override the NES-PF”¹. It would appear the Government’s intention was that the NPS-FM would be implemented through the NES-PF rather than through regional rules.  However the recent cabinet paper is silent on this important point.

The Cabinet Paper records that 31% of monitored waterways do not meet the bottom lines for sediment and require improvement². So regardless of which regulatory vehicle is used to implement the freshwater package, the inclusion of sediment in the NPS-FM 2020 will likely result in increased regulation of the forestry sector to manage sediment-related effects from plantation forestry activities.

How should foresters respond?

We suggest that foresters seek clarification from the Government about whether the new national direction for sediment will be implemented through the NES-PF or instead through regional rules. We consider there are sound reasons supporting the former approach.

We also suggest that foresters continue to improve their sediment management practices so that when the new national direction for sediment is implemented foresters are well placed to achieve day-to-day compliance across all aspects of their business that potentially generate sediment effects on waterways. Not only is this positive for the environment it will help foresters occupy a position of compliance when the new sediment requirements take effect.

If you have any questions about the freshwater announcements please get in touch with one of the Adderley Head team.

¹ See Ministry for the Environment. 2019. Action for healthy waterways – A discussion document on national direction for our essential freshwater. Wellington: Ministry for the Environment, at page 102; where the Author states that: “the proposals in the pNPS-FM relating to streams and wetlands will not override the NPS-PF.”

² Cabinet Paper released with the Government announcements, at paragraph 90.

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

Posted on Wednesday 17th June, 2020 at 02:00 pm