Clarification of aspects of Essential Freshwater programme implementation requirements

Councils, industry leaders and farming sector stakeholders sought clarification on aspects of how the requirements of the Essential Freshwater programme work in practice. Below are some clarifications we have provided as responses to specific questions through the implementation programme. This guidance is intended to supplement the factsheets which should be referred to first.

Implementing Te Mana o te Wai

Why priority is placed on the health of the water over human health needs and what this means for human health needs

The intent is that regional councils can lead actions to restore and preserve the balance between the water, the wider environment and the community.

Councils will achieve this through their freshwater management decisions. Applying a hierarchy of obligations that protects the water for its intrinsic health needs (including its quality and associated freshwater ecosystems) in the first instance, will enable better protection for the second obligation (the health needs of people, such as drinking water).

A key purpose of this hierarchy is to shift thinking in how we view and manage our freshwater. Making this the first priority in freshwater management does not mean that councils will ignore the health needs (or other needs) of people.

What prioritising the health and wellbeing of waterbodies and freshwater ecosystems means in practice

In practice, the hierarchy applies most to local authorities in conjunction with the other provisions of the NPS-FM, such as when implementing the National Objectives Framework or provisions related to wetlands, rivers and fish passage.

The hierarchy of obligations will inform how councils set their:

  • limits
  • objectives
  • environmental outcomes
  • target attribute states
  • identify their values when implementing the NPS-FM.

In particular, councils, working with tangata whenua and communities, have to identify values and set limits that prioritise protecting the health and wellbeing of the water.

Once limits are set to provide firstly for the rights of the water, the limit setting process will apply to the essential health needs of people, such as drinking water, and finally to other uses.

Te Mana o te Wai in the consenting process

Policy 1 of the NPS-FM 2020 on Te Mana o te Wai is an operative policy and, in a consenting framework, decision makers must have regard to it like any other operative policy. Information from iwi, submitters, applicants and case law can guide assessments and making determinations in the absence of the requirement regional planning process having taken place to give effect to Te Mana o te Wai.

Each decision maker will need to form their own view on how they will weight policies where there is an inconsistency between provisions requiring a weighting exercise.

Weight of the National Policy Statement for Freshwater Management 2020 in the consenting process

In general, section 104 of the RMA gives the NPS-FM 2020 policies the same weight as any operative planning instrument in a consent process. However, the status of regional plans policies and rules, and the directiveness of rules, are considered in a consent process and these will influence whether a weighting exercise is required. Each decision maker will need to form their own view on how they will weight policies where there is an inconsistency between provisions requiring a weighting exercise.

Rivers and waterbodies - further definitions and clarification

How the National Environmental Standards for Freshwater 2020 and National Policy Statement for Freshwater Management 2020 apply to river reclamation

The NES gives reclamation a discretionary activity status, meaning councils will have full discretion to approve of, set conditions for, or decline any resource consents that will involve it. However, the NES sets minimum standards, and councils may opt to add stricter rules to reclamation (such as making it a non-complying activity).

The NPS-FM requires councils to assess any activity that could lead to the loss of rivers. They will consider whether it is absolutely necessary to conduct the activity in that river environment (using the functional need test); and if it is, whether the adverse effects of the activity can be managed, applying the effects management hierarchy. Alternative options which will not adversely impact the river should be thoroughly investigated (eg, planning a new development around rivers rather than reclaiming, piping or diverting them).

Further defining ‘extent’ and ‘values’ in relation to rivers

  • Extent refers to the length of the river and the area that it occupies.
  • Values refers to the existing or potential qualities of the river which include but are not limited to ecosystem health, indigenous biodiversity, hydrological functioning, mahinga kai and amenity values.

Functional Need in the National Policy Statement for Freshwater Management 2020

A “functional need” means that the activity must occur in the relevant environment because it can only occur there, and there are no alternative locations where the activity can take place, or other methods of providing for the activity that will not result in loss or damage to the river or wetland

Using the river policies and a proposed housing development as an example, a consent authority should ask whether the proposed housing development could be located in an area without streams or designed in such a way as to otherwise avoid damage to the streams present in the area. If it must be there because there is no way of avoiding the stream, then a subsequent question to ask would be in what ways could the development be made without damaging/minimally damaging the relevant stream environments?

The same principle applies to wetlands, however there are more restrictions on the types of activities that can occur in a wetland, For a detailed list, refer to 3.22(1) of the NPS-FM 2020.

Difference between extending an existing culvert and reclamation of a riverbed under the National Environmental Standards for Freshwater 2020

A culvert is primarily for conveyance across a waterway and should be no longer than is required for that purpose. If a culvert extension would result in the formation of land that is (or could be) used for any other purpose not needed to cross the waterway, then it is a reclamation.

Permanent diversion and realignment of streams under the National Environmental Standards for Freshwater 2020

The intent of the regulations was that permanent stream diversions and realignments are captured by the regulation managing reclamations under the NES-F. In addition, this activity will need to go through a ‘functional need’ test and the effects management hierarchy in the NPS-FM 2020. 

Definition of waterbodies for stock exclusion

  • Stock are required to be excluded from rivers (including creeks), including those that change course or flood, if the river has a bed more than one metre wide within the land parcel. The bed of a river is defined in the RMA as “the space of land which the waters of the river cover at its fullest flow without overtopping its banks”.
  • Stock need not be excluded from “ephemeral flows” which are “temporary flows that exist briefly and immediately only after a period of rainfall or snow melt”.

Note that the regulations require stock exclusion, not permanent fencing.

Irrigation of dairy farm land and discharges and contaminants in the National Environmental Standards for Freshwater 2020

Irrigation means the activity of applying water to land by means of a constructed system for the purpose of assisting production of vegetation or stock on that land (as defined in the NES-F). Irrigation of dairy farm land with water is a ‘use of water’ managed under r20(1) or r21(2) of the NES-F. It is not a discharge of a contaminant under r20(2) or r21(2) (unless the water also has the characteristics of a “contaminant” (see below)), but may also result in an associated discharge of a contaminant.

In the RMA a “contaminant” includes

any substance (including gases, odorous compounds, liquids, solids, and micro-organisms) or energy (excluding noise) or heat, that either by itself or in combination with the same, similar, or other substances, energy, or heat—

(a) when discharged into water, changes or is likely to change the physical, chemical, or biological condition of water; or

(b) when discharged onto or into land or into air, changes or is likely to change the physical, chemical, or biological condition of the land or air onto or into which it is discharged

Given the above, if the use of water for irrigation leads to the potential for a contaminant (e.g. effluent, nutrients such as nitrogen or phosphorous, sediment, pathogens etc.) entering surface or groundwater, then a discharge permit for the associated discharge of a contaminant will be required.

Agricultural clarifications

Meaning of a drain in the National Environmental Standards for Freshwater 2020

Drain means any artificial watercourse designed, constructed, or used for the drainage of surface or subsurface water, but excludes artificial watercourses used for the conveyance of water for electricity generation, irrigation, or water supply purposes.

Ephemeral rivers under the stock exclusion regulations

‘Ephemeral flows’ are covered in the stock exclusion fact sheet. The regulations do not apply in situations where there are “temporary flows that exist briefly and immediately only after a period of rainfall or snow melt.”

Intensive winter grazing

Intensive winter grazing module

The module has important information for farmers who graze stock on winter crops. 

What farmers, regional councils and industry bodies need to know about the module

  • The module includes a template for farmers who don’t already have a written plan for their winter grazing.
  • Regional councils and industry bodies should ensure their guidance and farm plan templates are consistent with expectations in the module.
  • Some already have rules in their plans to permit or restrict winter grazing. If these are more stringent than the guidance in the module they will continue to apply.
  • If farmers do require a resource consent under regional rules, regional councils must assess the application in light of relevant objectives and rules in the National Policy Statement for Freshwater Management 2020 (ie, Te Mana o Te Wai; Policy 6 no further loss of wetlands; protection of wetland values; promotion of wetland values; relevant national bottom lines).
  • Regional councils must continue to enforce the intensification rules in the National Environmental Standards for Freshwater. These do not allow for any new or expanded winter grazing without resource consent.
  • Existing farm plans will be tested and incorporated into certified freshwater farm plans from early 2022. 

How do I determine the permitted area of intensive winter grazing and how does it differ from the temporary restrictions on intensive winter grazing expansion?

This question combines two separate (but closely-related) sets of policies.

One set of policies requires the calculation of land used for intensive winter grazing as a percentage of the total farm.

The other set of policies requires the comparison of land currently used for intensive winter grazing against land use in a historical reference period (2014-2019), but does not require the calculation of a percentage.

Carrying out intensive winter grazing – general

Regulations 26 – 27 apply to all winter grazing from 1 May 2022 and will continue to apply after 1 January 2025 (compare with regulations 28-31, below).

Regulation 26(4)(a) provides that to carry out intensive winter grazing as a permitted activity, the area of the farm used for intensive winter grazing must be no greater than either 50 ha or 10% of the area of the farm (whichever is greater). If the area exceeds this maximum, the farm must get a consent.

Farm means a landholding whose activities include agriculture. So a “farm” doesn’t have to be wholly dedicated to agriculture – it could carry out a mixture of land uses e.g. both pastoral farming (agriculture) and forestry (non-agriculture).

Landholding means 1 or more parcels of land (whether or not they are contiguous) that are managed as a single operation. So a “farm” doesn’t have to be a single block.

Therefore, r 26(4)(a) refers to 10% of the whole farming operation, not only e.g. connecting blocks of pastoral land.

Temporary restrictions on expansion of intensive winter grazing

Regulations 28 – 31 are temporary rules aimed at controlling the expansion of intensive winter grazing on a farm compared to a specified past reference period (1 July 2014 - 30 June 2019).

They are temporary because they are only in force from 1 May 2021 and will no longer apply from 1 January 2025. They cease to apply even earlier than that if the relevant regional council notifies a plan that gives effect to the NPS Freshwater Management 2020.

Regulations 28-31 apply in addition to the rules in regulations 26 – 27. Their effect is to prevent both new winter grazing and the expansion of winter grazing above an historical maximum (unless the farm gets a consent).

The permitted activity conditions in r 29(3) are that:

  1. land on the farm must have been used for intensive winter grazing between 1 July 2014 and 30 June 2019; and
  2. the area of land used for intensive winter grazing can’t exceed the maximum area that was used for intensive winter grazing between 1 July 2014 – 30 June 2019

Once again, the rules apply to a “farm” as defined in the NES. So the rules apply to single operations that are not necessarily contiguous and do not necessarily solely comprise agricultural activities.

However, unlike regulations 26-27, these temporary rules require a simple comparison of the current area of land used for intensive winter grazing with the area used for intensive winter grazing in the past. This means there is no need to calculate a percentage of the total farm in order to apply them.

Wetlands definitions

How a ‘wetland’ is defined in the Resource Management Act 1991 (RMA)  

  • A wetland includes permanently or intermittently wet areas, shallow water, and land water margins that support a natural ecosystem of plants and animals that are adapted to wet conditions.

The Essential Freshwater regulations use a more refined definition, making a distinction between:

  • ‘natural wetlands’, to which the National Environmental Standards for Freshwater regulations apply, and 
  • ‘natural inland wetlands’, to which the National Policy Statement for Freshwater Management polices apply.

For the purposes of the NPS and NES:  

Constructed wetlands

  • Constructed wetlands are considered ‘natural wetlands’ under the NPS-FM only if they were constructed to offset impacts on, or restore an existing or former natural wetland.

Natural inland wetlands

  • Natural inland wetland means a natural wetland that is not in the coastal marine area

Small wetlands 

  • Wetlands smaller than 0.05ha can be recognised under NPS-FM even if they don’t contain threatened species
  • Regional councils may use the stringency clause (part 3 3.1(2)(a) of the NPS-FM) to recognise small wetlands such as seepages.  

The effects management hierarchy in the NPS-FM does not replace the direction to ‘avoid, remedy, mitigate’ in the RMA

The effects management hierarchy is the internationally-agreed best-practice approach to managing adverse environmental effects. It’s not intended to replace the requirement in the RMA’s purpose to ‘avoid, remedy or mitigate’ adverse effects; instead it provides an ‘order of operations’ to direct decision-makers’ approach to this requirement.

Further defining specified infrastructure and using wetlands as stormwater infrastructure

Drainage and flood works can be classified as specified infrastructure if the works fit the definition of “specified infrastructure” in the NPS-FM. This can include infrastructure identified by the regional council following the process in clause 3.22 (1)(b). 

Regional councils must be satisfied that any proposed specified infrastructure will provide significant natural or regional benefits, that there is a functional need for the specified infrastructure in that location, and that the effects of the activity are managed through applying the effects management hierarchy (NPS-FM Clause 3.22 (1)(b)). 

Any new drainage infrastructure or flood works that fits these criteria would be a discretionary activity (NES regulation 45) and subject to the effects management hierarchy. Minor maintenance of specified and existing infrastructure is a permitted activity (subject to conditions), otherwise this maintenance is a restricted discretionary activity and subject to the effects management hierarchy. 

When considering if a natural wetland can be used for the disposal of stormwater councils need to consider, among other things, how this would change the hydrological regime of the wetlands and any adverse effects on the values of the wetland. It may not always be appropriate to use natural wetlands for such purposes and constructed wetlands are a better option.

Biodiversity offsetting

How aquatic offsets and compensation should be measured

The Ministry for the Environment will develop technical guidance on offsetting and compensation specific to aquatic environments such as rivers and wetlands. In the meantime:

Current best practice guidance is available and should be applied for biodiversity offsetting and compensation as a guide, noting that the NPS-FM and NES also require consideration of values other than indigenous biodiversity such as ecosystem health, hydrological functioning, mahinga kai and other Māori freshwater values, and amenity values.  

Best practice guidance resources include: 

Note that the LGNZ guidance approaches the topic using the “avoid/remedy/mitigate” terminology of the Resource Management Act. Whereas the EIANZ guidance aligns with the international best practice approach of ‘avoid, minimise, remedy’ which is the basis of the approach for the effects management hierarchy.

Nitrogen toxicity vs nutrient effects of nitrogen

The NPS-FM has requirements for managing different types of nitrogen in different types of waterbodies.

Nitrogen affects waterways in two ways:

  • as a nutrient fuelling plant growth
  • as a toxicant affecting how animals grow and survive. 

Nitrogen can act as a nutrient fuelling growth of aquatic plants, periphyton (slime) and bacteria. This can become a problem when excessive nitrogen contributes to excessive or nuisance growth of plants. When these plants die and are broken down by microbes, oxygen is consumed leaving none for aquatic animals to breathe. 

 Nutrient effects of nitrogen are managed in the NPS-FM through the:

  • periphyton attribute
  • total nitrogen attribute for lakes
  • requirement to manage nitrogen levels to provide for other aspects of ecosystem health (such as macroinvertebrates)
  • requirement to manage nitrogen levels to achieve environmental outcomes in nutrient-sensitive downstream receiving environments.

Nutrient effects occur at lower concentrations of nitrogen than toxic effects. The toxic effects of nitrogen are managed through the attributes for nitrate and ammonia toxicity. The toxicity attributes are based on lab trials measuring the effect of nitrate and ammonia on growth or survival of animals. These effects happen at higher concentrations than nutrient effects. So, it may be possible to meet the nitrate and ammonia toxicity bottom lines (which only protect against toxic effects), while still experiencing problems with ecosystem health, such as excessive plant growth.