The long-awaited National Policy Statement on Freshwater Management (NPS) will be gazetted today, Thursday (12 May 2011), and will take effect on 1 July 2011.
Councils will be encouraged to reflect the NPS within their regional plans by the end of 2014 but, if this is impracticable, can opt for a phased programme of implementation out to the end of 2030. Such programmes must be formally agreed and adopted within the next 18 months.
This Brief Counsel looks at the NPS and at how it sits within the Government’s broader Land and Water Strategy.
Although Councils have been given a long lead time to incorporate the NPS into their planning documents, they will be required to “have regard” to the NPS’s provisions when considering consent applications lodged after 1 July for new uses or for changes to an existing use. The aim of these transitional measures is to “hold the line” while limits are set.
Currently only four of the 17 regional councils have operative or proposed quality limits and flow regimes and fewer than half have allocation systems or targets for water quality.
Key NPS policies
Regional councils will be required in their Resource Management Act (RMA) planning and decision-making to:
establish limits for water quality and for the amount of water which can be abstracted
establish targets, methods and timelines to improve water quality where it does not meet NPS objectives
allocate fairly and efficiently water that is available for ‘out of stream’ use
better integrate fresh water and land management (reflecting that diffuse discharges from land use activities are a significant source of water quality degradation)
protect outstanding freshwater resources (including wetlands, 90% of which have already been drained or destroyed in New Zealand)
impose conditions on discharge permits and, where possible, require adoption of the best practicable option to prevent or minimise contaminants from entering fresh water
reduce existing over-allocation and avoid further over-allocation, including by reviewing water permits and consents, and
involve iwi and hapū so that tangata whenua values are reflected in freshwater planning.
Much of the detail above was taken from the Cabinet Paper.
The NPS in practice
Quality and quantity limits will differ between regions and from water body to water body within regions. The expectation is that most water bodies will be managed to balance public values and economic use but that some at the high end will be entirely protected in their natural state while others, where the economic benefit outweighs other considerations, will be allowed to remain “degraded”.
A NPS cannot insert rules directly into planning documents so will always be subject to regional differences. The Cabinet Paper acknowledges this, stating “we do not yet know the level at which limits will be set in individual catchments, and the rigidity with which they will be applied by individual councils”.
To ensure that this local discretion does not undermine the effectiveness of the NPS, additional detailed policy development and best practice guidelines will be developed and training and support will be provided for decision-makers. This will be done over the next six to 12 months in consultation with local government and other key stakeholders.
The Cabinet Paper also recognises that the NPS will need to be complemented by other instruments, such as economic levers to incentivise users to change their behaviours. But decisions on these have been kicked out to after the election with:
options to set limits for water quality and quantity, including governance arrangements, to go to the Cabinet in February 2012, and
work on more efficient allocation mechanisms to be completed by late 2012.
Indications are that the special Commission to oversee the implementation of the Land and Water Strategy, as recommended by the Land and Water Forum, will not proceed.
NPS part of broader package
The NPS for Renewable Electricity Generation will come into effect on 13 May 2011 but the issue of how the two Statements will interface seems to have been left to Council interpretation. Although the freshwater NPS identifies electricity generation as among the national values of fresh water, it does not prioritise any one use or value over others.
Other elements of the water management package announced by the Government with the NPS on Monday are:
an Irrigation Acceleration Fund to support irrigation infrastructure proposals to the prospectus stage ($35 million over 5 years will be allocated for this purpose in the 19 May Budget)
a contestable fund to help councils and communities restore nationally significant lakes and rivers, and
the creation in 2013-14 of a Crown investment vehicle to act as a minority partner or corner shareholder to encourage third party investment in the construction of regional-scale storage and irrigation schemes. The Government has indicated that this will have a budget of $400 million, funded through the proceeds from the partial SOE privatisation programme.
For further information, please contact the lawyers featured.