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In the wake of COVID-19, the Government stays firm on action for healthy waterways

Home Insights In the wake of COVID-19, the Government stays firm on action for healthy waterways

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Contributed by: Daniel Minhinnick and Simon Pilkinton

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Published on: May 29, 2020


Post-lockdown, the Government has moved swiftly to announce its decisions on freshwater law reform proposals under the Resource Management Act 1991 (RMA). As discussed in our Resource Management Update in September 2019, the Government's "Action for Healthy Waterways" discussion document proposed greater national direction under the RMA to improve the quality of freshwater resources, in the form of an updated National Policy Statement for Freshwater (NPS-FM), an updated National Environmental Standard (NES) for Human Drinking Water, and new NESs for Freshwater and Wastewater. The decisions announced yesterday, while light on final detail, clearly signal where this national direction is heading. 
Overall, the majority of the Government's announcements do not materially differ from the proposals set out in its Action for Healthy Waterways discussion document. There continues to be an emphasis on rapid action through the new NES Freshwater to prevent further losses of wetlands and streams and strictly control higher-risk farming activities including intensification. There will also be swift implementation of the NPS through regional plan change processes. The decision has also been made to adopt stricter environmental bottom-lines for Freshwater Management Units (FMUs) through the adoption of detailed attributes. This means existing agricultural, horticultural and forestry land-uses are going to face stricter controls around their fertiliser use and other management practices, while proposals for new or intensified land-use, particularly in rural environments, will find it tougher to obtain the necessary resource consents. 
However, some changes to the Government's original proposals have been flagged, following the approximately 17,500 submissions the Government received on its discussion document. From a technical perspective, some attribute states (including nitrogen toxicity) will be strengthened, while the implementation of others, including dissolved inorganic nitrogen, will be delayed to enable further consideration – the latter is a significant change and reflects the ongoing technical debate surrounding this attribute. More practically, riparian setback and fencing requirements will be eased, and requirements for mandatory and enforceable freshwater modules in farm plans will be phased in, with a focus first on those FMUs that need immediate improvement/protection. 
Stream in-filling provisions are also proposed to be clarified. Under the Draft NES, infilling of streams associated with "nationally significant infrastructure" (as defined in the NES) was a discretionary activity (subject to compliance with the specified standards). In-filling for all other activities was proposed to be non-complying. The Government has decided to make in-filling of streams discretionary for all activities, but subject to the applicant demonstrating compliance with a stringent assessment process. This will require the applicant to demonstrate they have exhausted all options to avoid in-filling, before any mitigation, offsetting or compensation can be considered. 
Ultimately, the devil is in the detail, and this has not been released yet. The national direction documents including the new NPS-FM and NES Freshwater are still in the process of being drafted to give effect to the Government's decisions. The NES Freshwater is intended to come into force in July 2020, with the NPS-FM to follow. The Ministry for the Environment has also indicated it is working on more targeted rules and provisions for certain sectors, including irrigated horticulture. The final details of the documents – when they are available – will be critical to understanding the full extent of the opportunities and risks that may arise.
In our view, for the most part the Government has made the decisions that would have been expected at the end of consultation on the Action for Healthy Waterways in October 2019. However, since then we have had COVID-19, the lockdown, and its associated significant economic impacts. It does not appear that the immediate-term impacts of COVID-19 have been significantly influential in the final decision-making, and a longer-term view has been taken by the Government. We agree this is the right approach in the context of freshwater resources, which will take several generations to improve and restore at an economically-sustainable rate and scale, but it remains to be seen if this will have impacts on the immediate need to stimulate economic growth in the aftermath of COVID-19. 
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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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