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Fresh updates in the freshwater space

Home Insights Fresh updates in the freshwater space

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Contributed by: Daniel Minhinnick, Simon Pilkinton and Jessica Hayman

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Published on: August 10, 2020

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The Government has now released the key statutory documents that make up its Action for Healthy Waterways freshwater reform package, which it has been developing and consulting on throughout this term of Parliament. 
 
The overall goal of the reform package is to stop further degradation of New Zealand’s freshwater resources, waterways and ecosystems, to bring them to a healthy state within a generation. To achieve this, four new national direction documents have been Gazetted and come into force on 3 September 2020:

  • a new National Policy Statement for Freshwater Management 2020 (NPS-FM) to replace the existing 2017 NPS-FM;
  • new National Environmental Standards for Freshwater (NES-FM);
  • stock exclusion regulations; and
  • amendments to the regulations for the measurement and reporting of water takes.

National Environmental Standards for Freshwater

The new rules in the NES-FM provide an immediate response designed to prevent any further wetland and stream loss. Resource consents are now required for any works in and around wetlands, stream reclamations and other stream works that may affect fish passage. 
 
Importantly, for stream reclamations, the Government has backed down from the indications in its earlier Cabinet Paper that there would be a detailed and stringent assessment process set out in the NES-FM for assessing stream reclamation consent applications (see our May update here). This has not been carried through into the final NES-FM, which instead simply makes stream reclamations a discretionary activity but without any specific requirements as to how such applications must be assessed by regional councils. Given almost every greenfields development proposal of medium-to-large scale will require some element of stream works, this is a significant change. 
 
The NES-FM also includes stricter controls on higher-risk farming activities. However, these have also been watered-down from the Government's original proposals. The clear focus of the confirmed rules is on controlling feedlots and dairy farm conversions and intensification. Other primary production sectors like dry-stocking and horticulture are now not as significantly affected as originally contemplated.  

National Policy Statement for Freshwater Management 2020

The new NPS-FM provides the longer-term framework for achieving improvements in freshwater quality. The fundamental concept of the NPS-FM is Te Mana o te Wai. Consistent with that fundamental concept, the objective of the NPS-FM is to firstly prioritise the health and well-being of water bodies and freshwater ecosystem health, secondly prioritise human health needs, and then thirdly prioritise the ability for people and communities to provide for their own social, economic and cultural wellbeing.
 
Regional councils will be required to implement the NPS-FM through the new freshwater planning process recently included within the Resource Management Act 1991. Freshwater planning instruments must be notified by 31 December 2024 at the latest, with the final recommendations report from the freshwater hearings panel due no later than 31 December 2026. 
 
As with the NES-FM, there are some changes to the final NPS-FM from what was signalled by the Government in its decisions on the reform package released in May. Most significantly, for the horticulture sector, the final NPS-FM confirms two "specified vegetable growing areas" in Pukekohe and Horewhenua. The relevant regional councils (Auckland/Waikato and Horizons) are required to have specific regard to the contribution these specified vegetable growing areas make to the domestic supply of vegetables and New Zealand's food security, when implementing the NPS-FM in these areas. This means regional councils are able to set requirements for freshwater quality in these areas that are below national bottom-lines. The only other exemptions to the NPS-FM's requirements are for the country's five largest hydro-electricity schemes and naturally occurring processes.
 
Moving forward, given the significant scope of the freshwater reform package, the Ministry for the Environment is expected to release comprehensive guidance on the implementation of the reforms over the coming months. It will also be interesting to see how these reforms are integrated with the major overhaul of the resource management system that is expected in the next term of Parliament, particularly given the firm view of the RMA Review Panel (led by Justice Randerson) that the RMA has generally failed to maintain environmental bottom-lines. 
 
Please do not hesitate to contact one of our experts to discuss the implications of this reform for your business.


This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.

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