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Brief Counsel

Fitting a gearbox into the Freshwater NPS

11 November 2013

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The National Policy Statement for Freshwater Management (NPS) is to be fitted with a gearbox or ‘how to’ manual in the form of a National Objectives Framework to assist regional councils with implementation.

This is the most significant amendment in a range of amendments proposed by the government in a discussion document issued last week.

Submissions close on 4 February 2014.

Background

The review of the freshwater NPS, which has been in effect since 1 July 2011, is driven by two factors:

  • that many regional councils are struggling to implement it effectively in its current form, with half citing problems in resourcing the necessary technical investigations and science, and
  • the recommendations of the Land and Water Forum to lift performance beyond what the NPS required by means of a National Objectives Framework (see Chapman Tripp’s commentary here.)

To promote feedback, officials from the Ministry for the Environment and the Ministry for Primary Industries will hold a series of public meetings and hui around the country over this month and next.

Proposed amendments

Accounting

Regional councils will be required to account for water takes and all sources of contaminants, including diffuse discharges.  This information will inform decisions on when water bodies can be used further and when they are approaching capacity or over-allocation.  It must be updated at least every five years for water quality, and annually for water quantity. 

The new requirements will come into effect in two years, at the point for each council when it begins setting or reviewing its freshwater objectives and limits. 

National Objectives Framework (NOF)

Objectives are expressed at different levels of precision – from a broad narrative objective to numeric objectives for specific attributes (e.g. minimum e-coli concentrations).

The NOF will set out:

  • scientific and technical methodologies for setting national freshwater objectives which are the same in every region (such as the water quality attributes needed for safe swimming).  Establishing these nationally will allow the regional scientific effort to focus on those aspects that are unique to the area
  • a menu of national values and uses which councils and communities must consider in relation to each freshwater management unit within their area.  These are drawn from the preamble to the existing NPS and include such values as recreation, irrigation, food security and mahinga kai
  • bottom line standards for each value.  These will run from A through to D with C as the minimum acceptable state.  A region may choose to manage an attribute to A, B or C standard but not to D, and never downwards
  • a prescribed process for translating values into objectives through community and iwi consultation.

The NOF attribute tables are only partly populated at this stage and will be fleshed out as the science is developed and agreed.  Councils must also set objectives for attributes that are not yet in the NOF (e.g. sediments, metals, pH temperature, invertebrates).

Compulsory values 

It is proposed to establish two compulsory national values – ecosystem health and human health for “secondary contact recreation”, each of which will be supported by national bottom lines.  As with the NOF, C will be the lowest standard and all targets must aim at achieving an improvement rather than managing to the status quo or for a deterioration.

The quality of most water bodies already complies with the proposed bottom line standards.  The human health one, for example, is set to allow for wading or boating, “except where there is a high likelihood of immersion”.  It does not require authorities to bring their waterways to swimming standard.   

Exceptions

These are intended to recognise circumstances where it is not feasible to improve water quality to the minimum standard.  Decisions will be made by regional councils, subject to the normal checks and balances of the planning process – iwi and public input, hearings and possible appeals. 

They can be applied where a water body:

  • is contaminated from natural processes (e.g. a native bird colony nesting above a river), or
  • has been degraded over time in ways that cannot be reversed even in the long term. 

Another exception will be allowed where river reaches cannot meet bottom lines due to established infrastructure – a hydro or drinking water dam.  These will be decided by the government after consulting with the public.

Tāngata whenua

Tāngata whenua values and the requirement that councils involve hapū and iwi in decision-making are to be articulated more clearly.

Monitoring

All councils already have monitoring systems in place and could continue to use these but will be required to meet certain criteria and to follow certain processes.

Timelines

Councils must give effect to the new NPS when they next review a plan.  The timeframes will vary in different regions, but the NPS must be implemented by 2030.

The NPS will be reviewed in 2016, and may at that time be amended to include the next version of the NOF. 

Chapman Tripp comment

Achieving greater national consistency and transparency of approach, improved accounting and enhanced scientific robustness all seem relatively obvious and sensible, if not ambitious, goals.  It is a measure of our under-performance in freshwater management in past decades that these are in fact reasonably far-reaching changes on offer. 

We expect there will be a high level of engagement in submission processes.  The emphasis in the proposed NOF on scientifically-derived values and attributes provides a strong incentive for major stakeholders to back their positions for and against with science. 

We will be happy to assist you in preparing a submission.

For further information, please contact the lawyers featured.

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