9 September 2019

Action For Healthy Waterways - Freshwater Discussion Document

The Government has released a discussion document on national direction for essential freshwater: 'Action for healthy waterways'.
New Zealand Energy and Natural Resources
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The Government has released a discussion document on national direction for essential freshwater: 'Action for healthy waterways'. It is proposing amendments to the Resource Management Act, an updated National Policy Statement for Freshwater Management, updated National Environmental Standards for Freshwater, Sources of Drinking Water and Wastewater, and new Regulations relating to stock exclusion and water metering. Drafts of the new NPS-FM and Regulations (including the proposed National Environmental Standard for Freshwater) have been published as part of the package.

The discussion document can be downloaded here. There are links to the draft NPS-FM, proposed Freshwater NES and Draft Stock Exclusion Regulations in the discussion document.

Public consultation on the proposals in the document is now open, with submissions closing at 5pm on Thursday, 17 October 2019.

The policy direction

The proposals are aimed at providing clarity and support to local authorities so that that they are able to give effect to the current NPS-FM by 2025. The policy is driven by a holistic approach to managing land and water. The proposals clarify the concept Te Mana o te Wai - the health and wellbeing of the water - which is conveyed as a national framework to understand water. It requires that certain uses for water must be prioritised over others and that the health of the water is the first priority. The second priority is providing for essential human health needs, such as drinking water, and the third priority is other consumption and use. The policy aims to embed Te Mana o te Wai across all freshwater management systems.

It is proposed that Te Mana o te Wai is reframed so it underpins the whole framework of the NPS-FM, and that regional councils be required to give effect to Te Mana o te Wai when implementing the NPS-FM. Councils will also be required to develop and articulate in their regional policy statements a long-term vision that gives effect to it.

The proposals also focus on strengthening Māori values. The government is seeking feedback on two proposals: 

  • elevating the status of mahinga kai (indigenous freshwater species that have traditionally been used as food, tools or other resources, the places those species are found, and freshwater resources being able to be used for customary practices and use) to a compulsory value in the NPS-FM.
  • strengthening the priority given to tangata whenua values in freshwater planning, by creating a new values category for this in the NPS-FM.

A new freshwater planning process is proposed, through amendments to the RMA, in the coming months. This will require councils to have new plans in place, consistent with Te Mana o te Wai, no later than 2025 that fully give effect to the new NPS-FM. 

This would be achieved through a Resource Management Amendment Bill to be introduced in the coming months. Government-appointed freshwater commissioners would form a Panel with local councillors and tangata whenua-nominated representatives to consider council plans, hear submissions and make recommendations. There would be restricted avenues for appeal. Councils would still be responsible for developing their plans in consultation with local communities and would make the final decisions following recommendations from the Freshwater Hearing Panel. Standard RMA planning steps, up to and including public notification, would apply. The detail will be available when the Bill is introduced.

Recognising that regional councils, unitary authorities, and territorial authorities have overlapping roles in supporting integrated management of land and water, the Government is proposing to direct district councils, through the NPS-FM, to manage the effects of urban development on water so they are supporting integrated management across freshwater management units.

With respect to hydro-electric generation, it is proposed that the six largest hydro-electricity schemes be listed as exceptions in the new NPS-FM. Regional councils would be required, when making plans or setting limits, to have regard to the importance of not adversely affecting the generation or storage capacity of a scheme or its operational flexibility.

Ecosystem health

With respect to ecosystem health, the draft NPS-FM clarifies the policy intent that freshwater is managed through a National Objectives Framework to ensure the health and wellbeing of waterbodies and freshwater ecosystems is maintained or improved.  

It is proposed that councils are required to measure and manage a broader range of ecosystem health attributes, and some of these will require an adaptive management approach. 

The Government proposes a new compulsory national value for threatened species, as defined in the NPS-FM, to ensure regional planning identifies and manages threatened species. It is also proposed that regional councils be required to provide for fish passage in line with fish passage guidelines, both in plan-making and consenting, and in imposing design requirements on some types of new in-stream structures less than four metres high.

With respect to wetlands and streams, natural wetlands are to be protected and tighter controls are proposed for certain activities that damage inland and coastal wetlands. Through the NPS-FM, regional councils would be required to identify all existing natural inland wetlands, monitor their health, set policies to protect them, and consider about how to make restoration easier. The new Freshwater NES will also contain restrictions on drainage, damming, diversion, water takes, reclamation, or disturbance of the bed, and clearance of indigenous vegetation. Changes are also proposed to avoid the further loss of stream habitat.

More stringent bottom lines are proposed. The Government is seeking feedback on whether to include new nutrient attribute tables in the NPS-FM. Reaching the proposed new bottom lines would mean tighter restrictions on nutrient run-off in some lowland agriculturally-dominated areas, beyond the existing limits.

With respect to water quality, sediment is identified as being one of the most severe stressors on freshwater and coastal ecosystems. It is proposed that an attribute for suspended sediment that includes bottom lines and bands be included, setting out a range of ‘attribute states’, with a system for classifying rivers, reflecting the different natural levels of sediment in rivers. 

Changes are proposed to make the current requirements clearer for setting minimum flows and levels by regional councils. 
With respect to recording the amount of water taken, amendments are proposed to the Resource Management (Measurement and Reporting of Water Takes) Regulations 2010, to require the measuring of water use every 15 minutes and transmitting daily electronic records. 

Drinking water

The Government proposes to strengthen the obligations on regional councils and territorial authorities for managing risks to source waters through amendments to the Drinking Water NES, by providing direction on setting source water risk management areas; defining the types of activities that must be assessed as potential risks to source waters within the source protection areas, including consent applications that require public notification; expanding the scope of the Regulations; developing a new approach for managing specific contaminants in source waters, requiring regional councils and territorial authorities to place appropriate controls on the development and use of land in source water risk management areas, and to review plan rules for activities located within source water risk management areas. 

It is also proposed that if a regional council or water supplier has enough data to prove that the default source water risk management areas prescribed in the Drinking Water NES are not appropriate for a particular water supply, then the Regulations would allow for bespoke source water risk management zones to be established. Regional councils and territorial authorities would be required to identify any relevant consent applications in source water risk management areas, and notify the relevant water supplier, and then consider the potential risks to the relevant drinking water supply and determine whether the application must be declined, or meet certain conditions, in accordance with the requirements of the Drinking Water NES. 

The proposed amendments are intended to work with the proposed changes to the NPS-FM and the new Freshwater NES, which are intended to improve water quality at a catchment scale. 

Wastewater and stormwater

A National Environmental Standard for Wastewater Discharges and Overflows (Wastewater NES) is proposed, which would prescribe requirements for setting consent conditions on discharges from wastewater treatment plants and engineered overflow points. These requirements could include minimum treatment standards or ‘limits’ for nationally-applicable wastewater quality parameters; targets or limits on the volume and frequency of wet weather overflows; methods for monitoring compliance with standards or limits and reporting breaches to regional councils and the public; and approaches for incorporating culturally-acceptable wastewater treatment processes.

After receiving feedback, it is proposed that more work will be done on the proposed new Wastewater NES, followed by further consultation, likely in mid-2020.

It is proposed that stormwater network operators prepare a risk management plan. The discussion document notes that this proposal would formalise what is already emerging as good practice within the industry, and that a number of local authorities already have stormwater management plans.

The Government has also proposed to introduce a new obligation for wastewater network operators and stormwater network operators to report annually on a set of nationally-prescribed environmental performance measures, provided in a new Water Services Act.

Farm practices

It is proposed that further intensification be tightly restricted. The Government is also seeking feedback on a proposal on options for resource consent requirements for change to commercial vegetable growing.

It is proposed that all farmers be required to have a farm plan with a freshwater module. The Government is seeking feedback on whether this should be mandatory.

Three options are proposed for reduction of excessive nutrient leaching: setting a cap in catchments with high nitrate-nitrogen levels so farms with excessive losses will have to reduce to come under the cap; setting a national nitrogen fertiliser cap; and requiring farmers in catchments with high nitrate-nitrogen levels to show, in the freshwater module in their farm plan, how they will rapidly reduce nitrogen leaching, and auditing their progress.

New standards for when stock must be excluded from wetlands, lakes and rivers more than one metre wide are proposed. A two-tier approach is proposed via national standards enforced by regional councils for larger waterbodies (set in Stock Exclusion Regulations made under the RMA), and using farm plans for excluding stock from smaller streams and drains.

It is proposed that farmers are required to meet standards for intensive winter grazing, either by nationally-set standards through regulation, with a resource consent required for winter grazing above a defined area; or through current industry set standards (with resource consent required for winter grazing not meeting the standards).

The proposed NES for Freshwater will place restrictions on feedlots, and measures to control effluent and contaminant loss from stock holding areas. Stock holding areas would be required to get a resource consent that would set standards for permeability and managing effluent. The Government has acknowledged this could result in a large number of consent applications, and is seeking feedback on how this proposal could be implemented.

Impacts on councils

The Government anticipates that the clearer direction provided, and the removal of ambiguity in the current NPS-FM, will reduce debate in hearings and ultimately in the Courts. The discussion document notes that the work required by councils to implement the new requirements will vary depending on the stage the council is already at in its planning. It notes that councils that have started their implementation of the current NPS-FM may need to update existing plans with new requirements and therefore undertake further modelling and consultation, which may require additional staff for planning and consents, engagement with communities and ongoing monitoring to ensure compliance with the new rules. 

The Government is also progressing a new planning process for freshwater which will require councils to have plans in place by 2025. The Ministry for the Environment intends to roll out an implementation package to support councils. 

Broader RMA reform

In addition to what is proposed in the discussion document, the Government is continuing to undertake work on allocating allowances to discharge nitrogen into water. Proposed targets for emissions in the Climate Change Response (Zero Carbon) Amendment Bill are also likely to result in changes that affect water, and the proposals for freshwater are also linked with the Government’s priority to safeguard indigenous biodiversity. 

The two-stage process for reforming the resource management system, including freshwater management, includes an Amendment Bill, to be introduced to the House later this year, to reduce complexity, increase certainty, restore previous public participation opportunities, and improve RMA processes. Stage two is a comprehensive review of the resource management system, focussed on the RMA. A panel of experts will lead the review and will deliver a plan for resource management reform by mid-2020. The review will address urban development, environmental bottom lines, and effective participation, including by Māori. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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