2. The Current Situation

2.1 Introduction

2.2 Statutory controls

Freshwater management in New Zealand is primarily carried out under the RMA. There are a number of provisions in the Act that relate to freshwater management, and the institutional arrangements for managing water under the Act are reasonably complex. Management is subject to the general planning provisions of the Act through a hierarchy of documents, from the national to regional to district level. These documents must reflect the purpose and principles of the Act, as outlined in Part II. The purpose of the Act, outlined in section 5, is:

1. ... to promote the sustainable management of natural and physical resources.
2. In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while –
   1. Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
   2. Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
   3. Avoiding, remedying, or mitigating any adverse effects of activities on the environment.

Some matters of national importance (section 6) are also of relevance:

a. The preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development.

c. The protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna.

d. The maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers.

e. The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.

g. The protection of recognised customary activities.

Other matters (under section 7) that are relevant are:

a. Kaitiakitanga

b. The efficient use and development of natural and physical resources

f. Maintenance and enhancement of the quality of the environment

g. Any finite characteristics of natural and physical resources

h. The protection of the habitat of trout and salmon.

The principles of the Treaty of Waitangi (section 8) also have implications for freshwater management:

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

Sections 9, 13, 14 and 15 are also crucial in terms of the duties and restrictions people have in relation to both the use of land, and the use of rivers and lakes, water and discharges to water. In addition, schedule 3 of the RMA provides for the use of water quality classes that can be adopted by councils.

In the absence of any national policy on fresh water, regional-level documents have provided the main framework for the management of fresh water. The main planning instruments have been mandatory regional policy statements and optional regional plans. District plans, prepared by territorial authorities, are predominantly concerned with land-use planning, which indirectly influences fresh water in many cases. As such, district plans are required to 'give effect to' regional policy statements (section 73(4)). Note that this requirement was introduced in an RMA amendment in 2005, before which district plans were to be 'not inconsistent with' regional policy statements, which was considered a more flexible less demanding requirement. In practice, the connections between freshwater management and land-use planning have been variable.

2.2.1 Regional policy statements and regional plans

Regional councils are the main local authority charged with managing freshwater resources, and their boundaries are largely based on hydrological catchments. Regional policy statements are mandatory under section 60 of the RMA and are aimed at achieving the integrated management of the natural and physical resources of the region. They are required to state the resource management issues for the region and the objectives, policies and methods for addressing those issues.

In addition to regional policy statements, regional councils may also choose to prepare regional plans to address resource management issues. All but two of the 16 regional councils (unitary authorities included) have prepared regional plans on water management, and it is through these plans that rules relating to the abstraction and use of fresh water and discharges to water bodies are given statutory effect. Although most regions do have plans in place for water management, the focus and content of these plans are variable (Hill Young Cooper, 2005).

Activities that involve the abstraction of water or the discharge of contaminants to water require a resource consent, unless a rule in a regional plan expressly permits such activities. Such discharges and abstractions are subject to the provisions of the regional policy statement and regional plans (if in place). The abstraction of water for domestic and stock drinking is expressly permitted under section 14 of the Act, and there are a number of provisions in the Act specifically in relation to water. Under section 68(7) regional councils are able to set minimum or maximum flow levels and establish minimum standards for water quality. Section 136 allows for the transfer of water permits for the take and use of water. Although this provision has not been widely used, it does allow water permits to be transferred between users as a tradable commodity.

Finally, amendments to the Act in 2005 have created additional procedures (sections 124A to 124C) which allow regional councils to consider natural resource allocation. In relation to water, councils may have regard to “the efficiency of the person’s use of the resource” and “the use of industry good practice by the person”. These amendments come into effect on 9 August 2008, so it is unclear what impact they will have on freshwater management, but they do potentially offer a wider range of tools to councils.

A review of regional plan provisions relating to freshwater management was undertaken in 2005 (Hill Young Cooper, 2005), and focused on three key areas of management:

• freshwater allocation

• water quality management

• integration of monitoring and management.

In terms of freshwater allocation, the 2005 stocktake found there were a number of different approaches, but that all plans that had been prepared did address this issue. It was noted that:

Most plans have one or more catchments with specified minimum flows, some as a result of Water Conservation Orders, and a variety of mechanisms by which allocatable flows or residual stream flows are determined. Most plans also provide for allocations greater than the identified allocatable flow/residual stream flow on a case-by-case basis. (Hill Young Cooper, 2005)⁵

In general, it was found that most water allocation takes place through the resource consent process, typically on a first-in-first-served basis.

In relation to the management of water quality, most plans were found to identify the important 'values' in each region in relation to water quality. A number of councils use the third schedule to classify water (or intend to do so), including Waikato, Hawke’s Bay, Northland, Wellington, Canterbury, Horizons (Manawatu−Wanganui), Tasman, Marlborough, Nelson, West Coast, Otago and Southland.

Perhaps the greatest concern is the conclusion from a review of plans that “the link between contaminant discharges, especially diffuse source discharges, and minimum flow levels in streams is generally not clear in the plans” (Hill Young Cooper, 2005: 9). The report did note that “most of the councils appear to have significant programmes in place in respect of sustainable land management practices”.

In terms of taking an integrated approach to management, and the availability of monitoring data, the 2005 review found that most regional councils were undertaking “a wide range of monitoring activities to determine, surface water and groundwater availability, stream health and other aspects of environmental quality, and have ongoing programmes to identify areas of natural and cultural significance” (p.9). This suggests that although programmes vary between regions, there is a reasonable level of base information available to make increasingly informed decisions about freshwater management.

2.2.2 District plans

District plans are mandatory under section 73 of the RMA. Their primary focus is the management of land use, although the focus of many plans is on managing the effects of land use (rather than a system of zoning for land-use management per se). Although district plans are concerned with land management, they must “not be inconsistent” with regional plans and water conservation orders in place in the district.

However, land-use planning and freshwater management have not often been well integrated. In particular, the cumulative effects of land-use activities on fresh water do not appear to have been considered under the current framework. District plans must give effect to regional policy statements and take account of regional plans. A key concern is whether this link is sufficiently recognised to affect decision-making in relation to land-use change and subdivision. Although land use and subdivision 'control' are clearly within the responsibilities of territorial authorities, section 31 of the RMA does not identify water management as a function of territorial authorities. This may provide some explanation as to why the link between land use, subdivision and water management has been relatively weak. More specifically, the significant challenge of addressing the cumulative impacts on water quality arising from land-use practices is often not well handled.

2.2.3 Water conservation orders

Under Part IX of the RMA, water conservation orders (WCOs) can be placed on water bodies to sustain their “outstanding amenity or intrinsic values”. The process for obtaining a WCO involves applying to the Minister, and the Minister appointing a special tribunal to hear and report on the application. Further submissions can be made to the Environment Court. There are currently 14 WCOs in place. Under a WCO, controls can be placed on the rates of flow and the taking of water, and standards for water quality can be prescribed. Once a WCO has come into effect, a regional council is bound to manage the water body in such a way as to uphold the standards established by the WCO (Richmond et al, 2004). WCOs cannot deal directly with land-use practices that can have an impact on water quality, and this has implications for the ability of a WCO to be used as a tool to manage freshwater systems. Lake Ellesmere, for instance, has had a WCO in place since 1990, yet during that time the lake ecosystem has deteriorated significantly due to eutrophication caused by diffuse discharges into feeder streams and wetlands.

2.3 Non-statutory measures

In addition to the regulatory framework of the RMA, there are a number of programmes and activities carried out by regional and district councils, community organisations, industry groups and non-government organisations (NGOs) that aim to improve freshwater management and/or the interface with land management. A few examples of these are set out below, but there are many more specific examples, many of them regionally based.

2.3.1 Dairying and Clean Streams Accord

The Dairying and Clean Streams Accord (the Accord) was developed in partnership between New Zealand’s biggest dairying co-operative (Fonterra), the Ministry for the Environment, the Ministry of Agriculture and Forestry and regional councils. The Accord was developed in 2003 to address increasing concerns about the negative environmental impacts of dairying on stream water quality. The Accord sets five performance targets, with associated timeframes. The first target is “Dairy cattle excluded from 50 percent of streams, rivers and lakes by 2007, 90 percent by 2012”. Reporting on progress towards the performance targets is completed at regular intervals. The most recent report (2006/07) found that although progress has been made in some areas, overall there are still significant concerns around effluent disposal, nutrient management and resource consent compliance (Fonterra Dairy Co-operative et al, 2008).

2.3.2 Kaitiakitanga programmes

Iwi and hapū across New Zealand have been proactive in engaging in a range of activities of protection, monitoring and enhancement. Tangata whenua take their role and responsibilities as kaitiaki seriously. One example is the Ngati Tuwharetoa Wai Ora programme, which monitors both the cultural and ecological health of waterways in its tribal rohe. Another example is the Rotorua Lakes Strategy Group, which is the overarching management group responsible for co‑ordinating policy and actions to improve the Rotorua lakes. It is made up of representatives from Te Arawa Lakes Trust, Environment Bay of Plenty and Rotorua District Council. The Group is now established in law, as part of the Te Arawa Lakes Settlement, for co-ordinated management of the Rotorua lakes.

2.3.3 Community restoration programmes

Many councils and NGOs have established restoration programmes for streams and lakes, and in some instances for groundwater aquifers. These programmes typically involve the community becoming involved in cleaning up streams or riparian areas, and undertaking projects such as replanting riparian vegetation.

2.3.4 Public education programmes

A number of programmes are in place to educate the public on the importance of water quality, avoiding pollution and discharges. These programmes can have a positive impact in terms of the way different people go about their normal activities, especially where the education is targeted at particular user groups (eg, industry, boat users, etc).

2.3.5 Water metering

Water metering is a further non-statutory technique used in some parts of the country (most notably, in Auckland). This can encourage greater awareness of the true cost of water, as well as delivering immediate benefits in terms of managing demand for water. However, water metering and pricing are highly contentious unless the community is demanding greater accountability and fairness in water pricing.

2.4 Effectiveness of the current approach

The key tools for managing fresh water under the RMA – regional policy statements, regional plans and district plans – have had mixed success at delivering improved environmental results. Statutory controls on freshwater management have been relatively successful at addressing point-source discharges to freshwater bodies. Tighter statutory controls and higher community standards regarding the environment have seen a substantial reduction over the past 20 years in point-source freshwater pollution from industry, municipal sewage and intensive agriculture.

The control of diffuse discharges to fresh water has been much less successful. In particular, heavily urbanised land and land used for intensive agriculture contribute significantly to overall discharges to fresh water. These cumulative effects are difficult to control under the RMA, and currently limited use is made of catchment-wide approaches to freshwater management – although there are some notable exceptions, such as the Lake Taupo and Lake Rotorua catchment management approaches. Voluntary measures such as the Dairying and Clean Streams Accord have met with some success.

Current methods of water allocation operate on a first-in-first-served basis. Traditionally this method has been adequate where water resources have greatly exceeded demand. In some regions where fresh water is becoming limited, notably in the east of the South Island, this approach to allocation may not be sustainable. Also, such an approach does little to promote the efficient use of water or the effective management of cumulative affects.

It is clear that in some cases the current approach to freshwater management is not leading to good environmental outcomes. In particular, degraded water quality in urban and intensive agricultural catchments is not being well addressed. This was confirmed by the recently released state of the environment report, which identified the degradation of New Zealand’s freshwater resources as a key concern (Ministry for the Environment, 2007b).

Following are some of the key conclusions of the state of the environment report.

• many larger freshwater systems are fully allocated, although most regions have a good supply of water

• between 1999 and 2006 the demand for fresh water has increased by 50 per cent

• our total water use is two to three times higher than the OECD average

• nitrogen and phosphorus levels are increasing in our most polluted rivers (although they are still about half the OECD average)

• bacterial levels in swimming locations appear to be reducing around the country

• twenty per cent of monitored groundwater aquifers have bacterial levels that make the water unsafe to drink

• shallow aquifers typically have high nitrate and bacterial levels, and are heavily affected by farming and urban development.

Although New Zealand has an abundance of freshwater resources as a whole, our waters are facing increasing degradation pressures, particularly with the diversification of rural land uses that has occurred over the past 20 years.

Given that a number of the indicators for water quality are moving in a negative direction, it is clear that the existing resource management framework is not entirely achieving its goal: the sustainable management of natural and physical resources. National guidance may help to resolve the inability to make the tough decisions at a local level, while also creating a more consistent regulatory environment across the country.

It will be important for Māori to see how the interests of hapū and iwi are balanced against the national interests, as there is a clear view that local issues are important and need to be addressed where possible at a local level. However, in general there is support from tangata whenua for national environmental standards to achieve consistency in some areas (Ministry of Agriculture and Forestry and Ministry for the Environment, 2005).

There are a number of options for providing national policy guidance, and these are addressed in section 3.

2.5 Problem statement

The framework for managing a range of resource management issues is now well established, both at the legislative level within the RMA itself, and at regional and district levels with regional policy statements, regional plans and district plans. However, one of the fundamental questions this section 32 assessment seeks to address is whether the existing framework can fully achieve the sustainable management of freshwater resources as a matter of national significance.

As noted in the previous section, strictly focusing on the environmental results being achieved by existing district and regional policies, at a nationwide level the 2007 state of the environment report identifies a range of indicators in relation to freshwater resources that are either not improving or are degrading. Although there are some areas where improvement is noted (eg, bacterial levels at swimming locations), there is a solid argument that stronger national guidance is needed to address this environmental challenge.

The key problems that are identified at a national level, and which support the need to examine a national response to freshwater management, are as follows.

• Problem 1:Decline in a wide range of freshwater quality indicators. As noted above, the state of the environment report provides evidence that there has been a decline in a number of aspects of water quality. Although there are clearly regional variations, and some areas where improvements are noted, overall the picture suggests New Zealand is not managing its precious freshwater resources as well as it should. Although the RMA has undoubtedly improved the management of point-source discharges, there is an ongoing decline in water quality.

• Problem 2:Lack of integrated management. Although the RMA is focused on achieving sustainable management, and focuses on integrated consideration of a range of factors (eg, water management, coastal management, land-use management), the separation of functions between district and regional councils and a lack of focus on the impacts of land uses on freshwater resources have resulted in a lack of truly integrated management. This has resulted in continued degradation of freshwater resources. A much greater focus on the cumulative impacts of land use, land-use change and intensification in both urban and rural environments is required to achieve a more sustainable approach to fresh water – and ultimately to meet the Government’s goals for fresh water.

• Problem 3:Lack of focus on the uses of freshwater resources. There is a wide range of, often conflicting, uses for fresh water. In many cases there are winners and losers, because in a number of areas in New Zealand water is over allocated. Inefficient use of water results in poor environmental outcomes. Social, economic and cultural uses of water need national recognition, or there will be a continuing lack of focus on the national significance of freshwater resources.

• Problem 4:Freshwater demand management is not presently sustainable. In part, this problem is related to the previous one, in that water allocation is not considered sustainable in some catchments or regions. Recognising the national importance of water demand management is likely to become increasingly important as tensions relating to water use increase.

• Problem 5:Insufficient information and reporting. Although there is a range of excellent monitoring programmes, particularly at the regional level, it is an increasingly complex area of reporting. If the importance of water resources at a national level is acknowledged, it follows that reporting at a national level will be required to determine whether real results are being achieved. At present, although thorough and detailed, the state of the environment report is perhaps not regular enough to provide information that will enable national-level judgement of whether sufficient gains are being made.

These five key problems need to be addressed within the existing RMA framework. At present it appears that at a national level the sustainable management of freshwater resources is not being achieved through the mix of existing policy and decision-making mechanisms (ie, regional and district plans, and resource consent decision-making). Given that regional and district plans have been in place for some time, there appears to be a case for national intervention.

This is not to suggest that district and regional councils are not able to resolve the issue. Rather, the Government needs to provide strong and clear direction on what is considered to be nationally significant.

The Government has noted the following goals for any national intervention:

• to address existing and future constraints on the availability of freshwater resources

• to address the effects of existing and future discharges of contaminants to freshwater resources

• to provide more certainty in respect of competing demands on New Zealand’s freshwater resources and facilitate opportunities to increase benefits from the use of freshwater resources, within the above constraints on availability

• to meet the recreational aspirations of New Zealanders, including that freshwater resources are swimmable

• to address matters of national significance relating to the sustainable management of freshwater resources

• to improve the integrated management of freshwater resources by territorial authorities, regional councils, and others whose activities affect the freshwater resources.

Given that the status quo does not provide national guidance on how to achieve these goals, and that the existing policy framework is not achieving the sustainable management of freshwater resources, the case to consider national guidance is compelling. There are, of course, a range of other alternatives to consider, and these are outlined in the following section.