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Repealed and Transitional Provisions: Guide to Marine Farming Consent Conditions for Deemed Coastal Permits

Introduction

Part 1: Issues and Explanations

Part 2: Other matters to be considered

Part 3: Possible Wording for Consent Conditions for Deemed Consents

Part 1: Issues and Explanations

1.1 Commencement and duration of deemed coastal permit

The deemed coastal permits created from marine farming leases and licences have a duration of 20 years from 1 January 2005 (section 10(8) ARA). Those created from marine farming and spat catching permits expire on the same date as the original permits, which is normally the same date as the associated coastal permits (sections 20(2) and 21(2) ARA) [Note: A preferential right to apply for a new coastal permit is provided in sections 49 of the ARA Act 2004 and 165ZH and 124 of the RMA. With applications for new coastal permits, the consent can be granted for a duration of up to 35 years (the maximum duration of resource consent under the RMA) and is decided by the council, as the consent authority] .

1.2 Activities authorised by the deemed consent (condition 1)

Marine farm leases and licences issued under the Marine Farming Act 1971 are deemed coastal permits by section 10 of the ARA. The deemed coastal permits for the former marine farm leases and licences are comprehensive consents that provide all authorisations necessary to carry out the activity, including structures, discharges and occupation of space in the coastal marine area (ARA section 10(9)).

Marine farm and spat catching permits issued under sections 67J and Q of the Fisheries Act 1983 are deemed coastal permits by sections 20 and 21 of the ARA. The marine farming and spat catching permits issued under the Fisheries Act authorise the activity of marine farming or spat catching only (sections 20(6) and 21(7) ARA). However, before obtaining the marine farming permit, a coastal permit would have been granted by the relevant council that addresses occupation and all other necessary authorisations as required under the RMA.

1.3 Density of lines and access-ways (condition 2)

Marine farming leases and licences should have a corresponding structures plan issued under the old Harbours Act 1950 that defines the allowed density of development. These provisions should be retained in the deemed coastal permits. In the case of fisheries permits, the associated RMA coastal permit should include consent for structures, including the density of lines.

For mussel farms, there have been instances where the Ministry of Fisheries has set a limit on the density of lines within the farm because of concerns relating to fisheries resources eg, phytoplankton depletion. In cases such as these, the density recommended by Ministry of Fisheries in marine farm permits should be used.

1.4 Structure details to Maritime New Zealand (condition 3)

Although Maritime New Zealand (MNZ) should hold information on locations of all the existing farms, inclusion of the following condition may be complementary to the off-site farm process (see 1.5 below). In brief, that process allows councils to amend the deemed coastal permit to reflect the actual space. That process could result in MNZ being aware of the originally authorised location but not the actual location. Further, the condition asks for the method of marking to be provided to MNZ as the method may have changed since the farm was established.

MNZ would like to see this condition remain in the deemed coastal permits to ensure that it maintains up-to-date information.

1.5 Compliance with authorised location (condition 4)

In the past, it was not uncommon for farms to be developed in the wrong location (off- site), largely due to the inadequacies of surveying techniques at the time. Current differential GPS technology allows structures to be precisely located so this is unlikely to be such an issue in the future.

Section 53 of the ARA allows the area authorised by a deemed coastal permit to be adjusted to take into account the actual location of an off-site farm. Farmers and councils have until 31 December 2006 to initiate the off-site farm process to allow the consent authority to either amend the deemed coastal permit to reflect the actual space or require the farm to be moved to the permitted area.

Beyond that time, there will still be a need to monitor the location of farms, although the new technology means off-site farms are unlikely to be common. Councils should include a condition allowing them to require the coastal permit holder to provide coordinates of the farm structures to confirm they remain correctly sited and within the authorised size. The example condition allows for a quick rough check of coordinates and for a precise detailed survey plan. It is anticipated that councils will request whichever best provides the detail and degree of accuracy required at the time.

All structures associated with a farm, including anchors, must fall within the boundaries authorised by the deemed coastal permit. It should be noted that mussel lines will move with waves and tidal currents and this should be taken into account when surveying to determine whether or not a farm is within its authorised area.

The first stage of Marlborough District Council's (MDC) approach to dealing with off-site farms has been documented and made available to all regional councils and unitary authorities as an example of best practice on the Aquaculture Workspace [The Aquaculture Workspace is available to staff in councils, the Department of Conservation, Ministry of Fisheries, Ministry for Economic Development, New Zealand Trade and Enterprise and Ministry for the Environment to share relevant resources to support implementation of the aquaculture reform. Further information on the Workspace is available from the Ministry for the Environment] .

1.6 Navigation, safety, marking and lighting of farms (conditions 5 to 7)

Marine farms must be marked and lit to appropriate standards for navigation safety purposes. These are defined by Maritime New Zealand (MNZ) and stated in its Guidelines for Aquaculture Management Areas and Marine Farms. Although this is a guideline, and is not legally binding, it does carry a lot of weight as a best practice guideline. The December 2005 version of these guidelines is on the MNZ website:

www.msa.govt.nz/consultation/pandh_docs/GuidelineForAquacultureManagementAreas&MarineFarms.pdf.

The corner points of the farm should be marked with the coastal permit holder's name and number to help identify the farm. These markings should be visible from at least 10 to 20 metres. Buoys are occasionally lost from mussel lines. If this is a particular issue for the region, a condition should be used that requires the branding of all buoys with the owner's contact details.

Where the farm is contiguous with other farms, a joint lighting plan can be adopted. The example condition does not create an onus for a joint lighting plan but allows flexibility for coastal permit holders to choose to do so. The content and detail required in the lighting plan will be appropriate to the scale and type of the marine farm.

Condition 7 provides for lost marine farm structures. This could be anything from part of a farm to the whole farm coming adrift. Because lost marine farming structures could constitute a navigation and safety hazard, the coastal permit holder should be required to take action immediately, such as informing the council harbourmaster and MNZ, and finding and retrieving any lost structures.

1.7 Removal of derelict structures (condition 8)

A principle that underlies the private use of public space is that if a private use ceases, all structures associated with that use must be removed and the site rehabilitated. Rehabilitation means restoring the site to as close to its original state as is practicable. A key part of that is preventing any further adverse effects on the environment.

1.8 Structural integrity and waste removal from the farms (conditions 9 and 10)

Due to the nature of the marine environment, there is a risk of structures breaking loose in extreme weather conditions and due to wear and tear on materials. This can result in a hazard for other users of the coastal marine area. Regular maintenance is in the coastal permit holder's best interest but should also be a consent condition so that compliance can be enforced.

As well as avoiding the creation of a hazard or inconvenience for other users of the coastal marine area, maintaining structures and keeping lines under tension can also reduce the risk of marine mammal entanglement.

All non-biodegradable waste material should be removed from the coastal marine area. The industry has been proactive and many farmers are involved in beach clean-up operations. Monitoring by the Group A consortium of Wilson Bay, on the western coast of the Coromandel Peninsula, has found marine farming waste comprises an average of 17 percent of the volume of waste collected during seven clean-ups. The Mussel Industry Environmental Code of Practice (currently being reviewed) states that "...boat operators will not knowingly discard synthetic or non-biodegradable materials into the marine environment".

1.9 Discharges (condition 11)

The deemed coastal permit for a former lease or licence issued under the now repealed Marine Farming Act 1971 also includes those discharge permits (among others) that would have been required under section 15 of the RMA to discharge contaminants into the coastal marine area, to the extent the discharge activity was being undertaken as at 1 January 2005.

The deemed coastal permit for a former marine farming permit or spat catching permit issued under the Fisheries Act 1983 does not include a coastal permit for discharges under section 15 of the RMA (Figure 1). However, the related coastal permit that would have been obtained from the regional council or unitary authority before the marine farming or spat catching permit should address any discharge authorisations.

Condition 11 is self-explanatory. Councils most likely include a condition like this on all consents for activities undertaken in the coastal marine area - not just marine farming - and most councils are likely to have a further standard condition that requires a contingency plan to be prepared and followed in the event of accidental discharges of contaminants.

1.10 Review condition (condition 12)

It is common practice for councils to include a review condition in resource consent conditions. The RMA requires the purposes for which a council-initiated review may be undertaken to be specified in the consent (section 128 RMA). There may be specific purposes that councils might consider including in a review condition, such as the other matters discussed in Part Two: Other Matters to be Considered.

Section 128(1)(a) of the RMA provides that a review of consent conditions can be undertaken "At any time or times specified for that purpose in the consent..." and for any of the purposes listed in subsection 128(1)(a)(i) to (iii). Including a review condition such as condition 12 with the interval and review dates specified, provides certainty for marine farmers about when their permit could be reviewed.