Action for healthy waterways

Photo from:  Ministry for the Environment. 2019. Action for healthy waterways – A discussion document on national direction for our essential freshwater.

On 5 September 2019 the Government released the long-awaited package of freshwater reforms. The Action for Healthy Waterways package seeks to stop the degradation of New Zealand waterways and restore them to a healthy state, and includes a Consultation Draft of a new National Environmental Standards for Freshwater (NESF). This proposed NESF sets out standards for wetlands, rivers, fish passage, and farming.

Wetlands, rivers and fish passage

The NESF includes a series of standards relating to wetlands, rivers and fish passage including wetland monitoring obligations, consent condition standards for nationally significant infrastructure, and standards for vegetation destruction, earth disturbance, water takes, river bed infilling, culverts, weirs, flap gates, dams, and fords. These standards are primarily aimed at stopping any further loss of wetlands and rivers, and providing for fish passage.

Interestingly, the definition of “nationally significant infrastructure” in the NESF includes national renewable electricity generation facilities that connect with the national grid but specifically excludes the facilities of existing hydro schemes. This means that existing hydro schemes and renewable electricity generation facilities that do not connect to the national grid are not considered “nationally significant infrastructure”, despite renewable electricity generation being recognised as a matter of national significance in the National Policy Statement for Renewable Electricity Generation.

The NESF sets specific activity status for a range of activities which are considered the most destructive to wetlands, including vegetation clearance, earth disturbance, and water take activities that change the level of a natural wetland. These standards seek to protect natural wetlands and the triggers for requiring resource consent include being carried out close to a natural wetland. Notably, earth disturbance for drainage in any part of a natural wetland is prohibited unless it is done for restoration, public flood control or drainage, or in relation to new or existing nationally significant infrastructure (which as set out above, excludes existing hydro schemes and renewable electricity facilities that do not connect to the national grid).

There are also specific activity status for river bed infilling and for culverts, weirs and passive flap gates, of which the latter three are aimed at providing for fish passage. Notably, culverts and weirs will require consent if they do not provide for the same fish passage as exists naturally, and the construction of passive flap gates is a non-complying activity. With respect to protecting rivers, any resource consent granted as a discretionary activity must include a condition which requires, after working through the mitigation hierarchy, residual adverse effects on the river to be offset to achieve a no net loss.

Farming

The NESF also includes a series of standards relating to livestock control. These standards set specific activity status for feedlots, sacrifice paddocks, stockholding, and intensive winter grazing. In line with the Government’s plan to clean up New Zealand’s waterways, the concept of being located away from vulnerable areas is brought through several of the standards, either as an activity standard or a condition on resource consents.

For example, sacrifice paddocks will require consent if they are located less than 50m away from waterbodies, water abstraction bores, drainage ditches, and coastal marine areas whereas for stockholding (for a certain duration) and feedlots that requirement must be included as a consent condition. Intensive winter grazing will require consent if stock is grazed in a “critical source area”, which means a landscape feature such as a gully, swale, or depression that accumulates runoff from adjacent flats and slopes and delivers it to surface waterbodies.

The NESF also introduces tight controls around further land use intensification through interim measures until regional councils have implemented the national policy statements for freshwater management. In many instances, resource consents must include a condition that the nitrogen, phosphorous, sediment or microbial pathogen discharges resulting from the intensification will not exceed the average discharges of those contaminants for the farm during 2017/2018. This effectively puts a freeze on additional contaminant discharges until the national policy statements for freshwater management are implemented.

Farm plans

The NESF also introduces nationally standardised requirements for a freshwater module in farm plans. It is already good practice amongst farmers to include management of contaminant losses in their farm plans however there are no mandatory requirements for these plans unless required by regional rules, and then regional rules often differ between regions.

The new national standards include a timeline for implementing the new requirements, which is within 2 years if the farms (amongst other things) are located within a schedule of specific at-risk catchments including the Upper Rangitaiki and Otangimoana Rivers catchment in the Bay of Plenty. All farms must implement the requirements by 31 December 2025. The standards are generally aimed at managing the risks of contaminant losses and associated impacts on freshwater. For farms located in the at-risk catchments, they must also include action points to reduce nitrogen discharges.

Interestingly, the Government has introduced an alternative proposal for managing nitrogen loss in the scheduled catchments, which if adopted would replace the requirement to include action points in farm plans to reduce nitrogen discharges. The proposal sets activity status for low-slope pastoral farming and dairy farming which are focussed around managing nitrogen loss. Notably, any resource consent granted under these standards will expire after no more than 5 years of being granted. This proposal also puts an onus on regional councils to calculate a threshold value for each catchment or sub catchment based on nitrogen loss figures provided by farmers.

Submissions

In summary, the proposed NESF introduces a series of standards aimed at stopping any further loss of wetlands, providing for fish passage and regulating farming practices at a national level to manage contaminant losses.

The official closing date for submissions is Thursday 17 October 2019 at 5pm. However, submissions will be accepted for a further two weeks beyond that date, until 31 October 2019. 

Also open for submissions as part of the freshwater reforms Action for Healthy Waterways package are a proposed national policy statement for freshwater management and draft stock exclusion regulations.

 

Megan is a solicitor working in Holland Beckett Law's Environment and Resource Management team with Vanessa Hamm.