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Report on submissions: Proposed National Environmental Standard for Sources of Human Drinking-water

1 Introduction

2 Overview of Submissions

3 General Submission Summary

4 Submissions on Parts 1–4

5 Responses to Questions

Appendix A: Public Notice

Appendix B: Index of Submitters

3 General Submission Summary

This chapter summarises general comments by submitters on the NES. More detailed comments on the individual parts of the standard can be found in chapter 4.

3.1 Need for an NES

A large number of submitters questioned the need for an NES for human drinking–water sources. These concerns are broadly grouped into two categories and discussed below.

(a) Existing provisions are sufficient

Thirty–one submitters said that existing legislative provisions are sufficient to protect human drinking–water sources and that the NES is therefore unnecessary. Existing legislation and other mechanisms referred to were:

• existing RMA provisions
• regional plan provisions
• consent conditions
• proposed health legislation and public health risk management plans (PHRMPs)
• Ministry of Health, Drinking–water Standards for New Zealand (DWSNZ).

Several of these submitters commented that agencies are already (or should be) practising the methods specified by the NES and there is therefore no requirement for the regulation.

One submitter said that the NES is not consistent with the approach of the RMA because it controls activities, not effects. Instead, this submitter said, councils should promote best practice. Another objected to the NES because they perceived it as taking away local decision–making.

(b) Lack of health risk

Sixteen submitters said there was no justification for the NES because there is no evidence of health threats posed by contaminated water in New Zealand.

3.2 Support general intent

An overview of support and opposition for the proposal is presented in chapter 2. The current section summarises comments from submitters who made more detailed statements about their reasons for supporting the standard.

Eight submitters supported the general intent of the NES but had reservations about its workability, appropriateness or details.

Thirteen expressed stronger support for the NES. Reasons stated included:

• protection of drinking–water
• integration with Ministry of Health initiatives
• consideration of nutrients and pathogens
• possible reduction in treatment costs.

3.3 Priority of human drinking–water sources

Three submitters explicitly stated that human drinking–water sources should be given priority over other uses. However, another four objected to the NES giving priority to human drinking–water sources, with one stating that if this was the intention of the RMA, it would be spelt out in Part II of the Act.

3.4 Catchment protection

Submitters held a range of views on the need for catchment protection compared with drinking–water treatment in order to deliver safe drinking–water. Two submitters said that the NES measures for water source protection are insufficient and that there is too much emphasis on treatment. Instead, the NES should focus more on preventing contamination and enhancing water quality where necessary. This submitter also said that the proposed NES demonstrates a reluctance to impose stringent consent conditions to prevent contamination of water.

One submitter said that developers should not be permitted to pollute water on the assumption that it can be treated and so does not need to be protected. Another said that if treatment is not appropriate, the onus should be on the treatment provider to provide appropriate treatment.

One submitter said a combination of treatment and catchment management is needed to deliver safe drinking–water. Two said it was important to balance catchment protection with upgrading treatment where it is inadequate (or new technologies emerge). Another expressed concern that water suppliers might decrease their level of treatment if catchment protection improved.

One said that where treatment is inadequate it should be upgraded (to balance managing the effects of activities). Another suggested that the NES require drinking–water supply catchments to be identified in all local authority plans, with special rules applicable to these areas.

Two submitters said that not all catchments can be managed for potable supply. Another pointed out that many activities in catchments cannot be regulated (eg, birds).

3.4.1 Future water supplies

Four submitters said the NES should recognise future water supply catchments and sources. Another raised the question of whether the NES should apply to resource consent applications in potential future water supply catchments.

3.5 Narrative nature of standard

Three submitters objected to the narrative nature of the standard. Submitters said that it was too broad (1), [Submitter numbers in parentheses in this chapter refer to the number of submitters commenting on a particular matter. They are not submitter identification numbers.] and ambiguous (1), and that it will be ineffective and difficult to assess compliance. Another was concerned that it would be difficult to ensure compliance without measurable criteria.

Another two expressed support for nationally consistent quantitative standards rather than regional and local variation. They did not support “a national approach where variability regionally and locally precludes a definitive standard and/or requires local reinterpretation on a site–specific basis”.

3.6 Catchment definition

A number of stakeholders expressed concern about how drinking–water catchments would be defined. These concerns could be grouped into two main areas.

(a) Costs

Six submitters said that defining catchments for the purposes of the NES would be costly. Several specified that costs would be passed on to suppliers (1) or would be borne by applicants (2). Defining groundwater catchments was seen as particularly difficult.

(b) Definition and methodology

Twenty–five submitters commented on catchment definition and methodology. The need for a clear and rigorous method for defining catchments was expressed by many. Seven submitters criticised the lack of a methodology for catchment definition. Without the catchment definition work, some argued, it was very difficult to assess the extent to which their activities would be affected (e.g. how much of their region would be classified as a drinking–water catchment, and therefore how much assessment might be required in accordance with Part 2 of the proposed NES). (See section 3.15 of this report for further information.)

Four submitters said that the definition of catchment in the NES is unclear and needs to be more certain. One argued the need for a method for defining/delineating catchments (catchment extent) Another expressed concern about how the term “catchment” would be interpreted, and therefore the extent of land that would be affected. Two said catchment definition is likely to be difficult. A scientifically rigorous method for defining catchments was seen as vital by three submitters. Another two commented on the difficulties of defining catchment extent for aquifers (1), and on the need to consider the connection between surface and groundwater (1) when defining catchments.

Three said that water supply catchments should be identified in local council plans. Another stated that it was not clear who is responsible for delineating catchments.

Three submitters wished to be involved with further catchment definition (methodology) work, and one requested further official consideration and consultation on catchment definition methodology prior to finalisation of the NES.

Development of a catchment definition methodology was supported by another submitter. Another commented that guidance from the Ministry for the Environment on catchment definition will be critical.

3.7 Definitions

Many submitters emphasised the need for improved definition of terms in the wording of the NES. Terms specifically mentioned included:

• appropriate action
• periodically assess
• treatment
• catchment
• wholesome
• potable
• point of abstraction
• unauthorised activities
• raw water quality.

3.8 Diffuse/non–point source discharges

Many submitters expressed concern about the potential for regulating diffuse/non–point source discharges through the NES. Five said that the NES is not suitable for regulating diffuse/non–point source discharges. Others felt the NES does not recognise the complexities of water management, particularly diffuse and cumulative effects (1), and noted the difficulties of managing both point and non–point sources in a large river system like the Waikato (1).

Several submitters acknowledged the importance of managing diffuse/non–point source discharges to avoid adverse effects on water supplies. Another said that central government assistance is needed to develop solutions for diffuse run–off.

Further discussion on diffuse discharges is provided in section 4.2.4 (feedback on Part 2 of the NES).

3.9 Cumulative effects

Four submitters expressed concerns about how cumulative effects would be managed under the NES. One said the NES needs to consider cumulative effects. Another said that technical guidance needs to be provided on how to consider cumulative effects under the NES. Two expressed uncertainty about how cumulative effects will be assessed or managed under the NES, and one said that both water suppliers and applicants will face large costs in investigating the impact from cumulative effects.

3.10 Land use/agriculture

(a) Land use

Two submitters were concerned that the NES would be used to regulate land use. Another considered the NES to be a ‘simplistic’ response to the complexities of land–use issues. However, three others were concerned about the effects of land use on water quality. Two of these expressed a need for regulation, with one saying there should be consistently high land–use control standards nationally. One submitter raised specific concerns about the effects of agriculture on water quality.

(b) Agriculture

Two submitters were concerned that the NES would lead to the regulation of agriculture. One said that farmers need to be provided with better tools to manage their effects, and that the NES should not be legally binding until such tools are provided. Another said that the NES would strain relationships between farmers and councils. Another said that it was important to engage farmers in implementation if the NES is approved.

3.11 Rural versus urban communities

Several submitters saw inequities in how the standard would affect rural versus urban communities. One suggested that the multi–barrier approach may only be needed for larger towns and cities, because rural areas are accustomed to “boil water” notices. Several said that the NES would result in increased costs for small suppliers. Onesaid that the NES threatens the viability of smaller rural supplies, and that additional costs incurred by the NES for small communities should be subsidised by central government. A major metropolitan local authority considered that the NES focuses on the rural environment and is not necessary or appropriate in the urban context.

One submitter said that the existing regulatory system works well on the West Coast, and that there is no need for the NES in this part of the country. This submitter recommended that the West Coast and rural areas be excluded from the NES.

3.12 Consent issues

Two submitters suggested retrospective application of the NES to existing consented activities. One of these was concerned that there could be a long delay in considering the effects of existing consented activities if the standard only applied to new consents.

Another submitter suggested that every discharge consent should include a consent condition enabling a review of the discharge one to two years into the consent. This would allow an assessment to identify whether the discharge was having a measurable effect on the water supply.

Another submitter said that all consents in a catchment should be reviewed at the same time to allow systematic assessment. They also argued that whole–of–catchment approaches would be a more efficient way to manage contaminants and nutrients, and suggested that assessments under the NES be performed at a whole–of–catchment level.

Two other submitters questioned how the impacts of a new consent will be assessed compared with those from existing consents in a catchment.

Addition of a clause requiring cessation or reduction of activities that contaminate water was suggested by one submitter. This submitter said that consent holders should be charged if their activities have led to contaminants entering drinking–water catchments, and the money used to help fund treatment.

One submitter saw the proposal as introducing another level of uncertainty to the consent process. Another said that the impact on resource consent holders has not been adequately assessed. One claimed the NES will result in significant delays to the consent process.

3.12.1 Compliance monitoring

One submitter was concerned that the focus of the standard, including the test for compliance, seemed to be on water quality after treatment rather than at the source, and that this would not put sufficient emphasis on protecting source water quality. This submitter said that testing should be conducted at the abstraction point rather than after treatment.

Another submitter said it would be valuable to include a requirement for water suppliers to provide raw water data to regional councils.

A number of submitters expressed concerns about possible/perceived monitoring requirements associated with the standard. One was concerned that monitoring requirements will be onerous.

3.13 Implementation

One submitter said that a detailed schedule for implementation of the NES will be needed. Two said that timeframes for compliance are needed. Another was concerned that guidelines or a supporting package could be released with little or no public involvement.

Among the other submitters:

• one recommended that the NES should only apply to activities that have a potential effect on water quality
• one was concerned about a perceived lack of consideration of chemical contamination and emerging contaminants under the NES, and emphasised the need for these contaminants to be included
• one suggested adding “relative scale”/“appropriate” to all parts of the NES, because they did not consider it realistic to assess all effects or activities
• one said the NES does not adequately address the effects of permitted and unregulated activities
• one said that triggers need to be established for reviewing the NES, including scheduled reviews.

3.14 Costs

Submissions on costs were broken down into three main themes: (a) costs in general, (b) costs to local government, and (c) costs to landowners and farmers.

(a) General costs

The potential costs that could be incurred by the standard were a major area of objection.

Six submitters said costs associated with the NES would outweigh any benefits. One submitter said the cost of implementing the standard would be very high. One said the NES would result in increased costs for water suppliers and resource consent applicants. Others said it would be costly for small communities (1) and ratepayers (1).

Another submitter criticised the NES for not recognising the social and economic benefits of industry. Along similar lines, one submitter said the NES should avoid setting a “bottom line” for source water quality. Instead, councils should have the option of balancing treatment costs with land–use benefits.

(b) Costs to local government

Local government expressed particular concern about costs, both as suppliers and as regulators.

Fourteen submitters said that implementing the standard would be costly and onerous for local government. Two also said that local government would need additional funding to implement the standard, and one of these said that the Part 2 of the standard would be particularly costly for local government.

Eight expressed concern about monitoring requirements, either as water suppliers or regulators. Four more were concerned about staffing requirements resulting from the standard. Two of these said that additional staff would be required in order to implement the NES for their council. One said it would result in increased staff time requirements, and another said that councils would require additional expertise to assess applications in accordance with the requirements of the NES.

(c) Costs to landowners/farmers

One submitter said the NES would increase costs for producers/farmers. Another was concerned that land users will be required to fund upgrades to inadequate treatment plants.

Two criticised the NES for not adequately assessing costs to landowners and consent holders. They also said that the NES aims to reduce costs to treatment plants by protecting source water, without considering the wider costs to the economy. They also said that the analysis to date has not considered the costs of reconfiguring wastewater treatment or industry process plants.

Table 4: Cost increases, by stakeholder group

3.15 Cost–benefit analysis

Lack of a full cost–benefit analysis accompanying the proposed NES was a major criticism of the process. Twenty–one submitters said that the full cost–benefit analysis should have been released at the same time as the proposed NES. Without this information, many submitters said they could not make an informed comment on the impacts of the proposal.

Submitters suggested a range of matters for consideration in the cost–benefit analysis, including:

• the cost of re–engineering consent holders’ plant (2)
• the capital and social cost of regulating permitted activities (2)
• the cost:benefit ratio of ensuring safe drinking–water by treatment (2)
• fairness and equity issues of cross–boundary impacts (1)
• the need to recognise the fact that the NES will drive regulation of land use (1)
• the application of the NES has to be guided by balancing other economic and social benefits (1)
• the need to assess costs of the NES on Transit NZ(2).

Several submitters said that the cost–benefit analysis, or a full section 32 analysis, needs to be completed before any further work is done on developing the NES.

3.15.1 Section 32 analysis

Three submitters said it was difficult to determine whether the NES is required because a full section 32 analysis has not yet been conducted. One recommended that the NES be further developed and then re–notified once its implications have been fully considered.

3.16 Development and consultation process

A large number of submitters expressed dissatisfaction with the development and consultation process. These comments could be broken down into four themes, which are discussed in detail below.

(a) Lack of supporting information

Lack of supporting information was a key criticism of the proposed NES. Eight submitters said that the information provided was insufficient for them to fully understand the impacts of the NES on their activities. In particular, submitters commented on the lack of:

• a full cost–benefit analysis
• catchment definition work.

More detail on both of these topics is provided in sections 3.15 and 3.6, respectively.

One submitter commented that the detail needed to be developed and more fully discussed. Another stated that the problem definition was unclear.

Other suggestions included case studies (1) and a trial or pilot study of the NES before enacting (2). Another submitter said that to be effective, the standard should provide guidance on:

• appropriate measures to protect water sources
• examples of standard resource consent conditions
• background material for section 32 assessments.

One submitter suggested a fifth part of the NES requiring promotion of activities that improve water quality.

(b) Lack of stakeholder involvement

Four submitters said that stakeholders should have been more closely involved in the NES development process. Stakeholder groups mentioned included landowners and farmers (3) and tangata whenua (1).

(c) Time constraints

One submitter considered that the development of the NES had been rushed. Another felt the consultation process was inadequate and of limited value, and that more time needs to be invested in the development process. One submitter said that time constraints in the development process have significantly limited the amount of research and consultation that is required to establish whether an NES is the most appropriate instrument.

(d) Lack of opportunity for further involvement

Four submitters were concerned that there was no opportunity for further consultation or involvement in the NES development process (e.g. further submission, a hearing, or comment on the final draft). Another three requested an opportunity for key stakeholders to comment on the legally drafted wording of the draft NES before it is made a regulation.

Other comments were that it was difficult to comment on the NES without the exact wording (2), and that there needs to be further consultation on the NES (3).

3.17 Alternatives

A number of alternatives to the NES were suggested. Table 5 shows a full list of alternatives suggested and their relative submitter support. The most common suggestions were:

• amendments to the RMA (17)
• development of a national policy statement (5)
• non–regulatory approaches (12).

Three submitters criticised the discussion document for not considering alternatives to an NES.

Table 5: Submitter–suggested alternatives to the proposed NES

* Note: The total is less than all specific suggestions because some submitters suggested more than one amendment.

3.18 Roles and responsibilities

Five submitters said there was a need to clarify roles and responsibilities under the NES. Two of these wanted to see the role of consent authorities (such as regional councils) clarified (eg, the role of a water supplier versus a regional council in the consent process under the NES).

Another submitter said that roles and communication protocols between catchment users, councils, water supply authorities and water supply regulators would have to be defined, developed and applied. One commented that all parties need clarity about their respective roles and responsibilities, duties, costs and liabilities in order to evaluate how the standard would work in practice. Without this information, it was claimed, there are many varied interpretations that could cause significant conflict. It was recommended that a specialist working group be established to work through these issues.

3.18.1 Local government

One city council recommended that the NES clarify that water resource management is the responsibility of regional government, and that regional councils will be responsible for implementing the requirements that apply to consent authorities.

One submitter said that clarification was required about local government roles and responsibilities. Another requested clarification over who is responsible for managing and protecting water in irrigation races.

A water supplier commented that they were supportive of being identified as a potentially affected party and of being given the opportunity to comment and review the potential effects of a discharge prior to consent being granted. Another submitter said water suppliers should have automatic affected party status. However, another said that involving water suppliers in all resource consent applications would be too onerous.

3.18.2 Health agency responsibilities

One submitter was concerned about councils determining appropriate responses in emergencies and said that these decisions should lie with public health authorities. This submitter also said that consent conditions should include agreed notification processes that include public health authorities.

Two submitters also said that the interface between the Health Act and the NES needs to be clarified, including issues such as duplication, timing and intervention. One suggested delaying the introduction of the NES until the proposed Health (Drinking Water) Amendment Bill has been passed. Another noted that public health units have a role prior to the abstraction of source water, via grading. They commented that NES grading should be consistent with public health grading criteria.

Two submitters noted the need for the Ministry of Health register of community drinking–water supplies (under the DWSNZ) to be accurate and complete before it is referred to in the NES.

One submitter was concerned that the NES will not provide sufficient protection to communities between now and when the proposed health legislation requirements become mandatory.

Other

One stakeholder, while supporting recognition of the need for greater co–operation between various parties, said that more tangata whenua involvement was needed in assessing and managing risks to water quality. Another submitter said the NES should contain details on how disagreements between parties might be resolved.

3.19 Reverse sensitivity

Five submitters identified reverse sensitivity issues. Four of these specifically mentioned the second part of the standard. (See section 4.2.13 for further comment on this aspect.) One of these submitters was particularly concerned that the NES could lead to reverse sensitivity effects when new suppliers locate in agriculturally dominated catchments.

3.20 Other issues

Four submitters were concerned that the NES introduces additional and unnecessary regulation.

Two submitters raised liability issues. One said there would be liability issues associated with shutting down a supply in accordance with the Part 4 of the standard. Another queried whether a council would be held liable if contaminants were found in a water supply catchment.

Four submitters mentioned roof water. Two said it should be included in the NES, one said it should not be regulated, and another said that rainwater should be considered under the NES because of contaminant drift.

Other general comments included the following.

• Individuals should take responsibility (1).
• The NES should include requirements relating to organic agriculture and age testing of water (1).
• It is hard for lay people to understand the NES and DWSNZ (1).
• Privatisation of water should be avoided (1).
• The NES has the potential to constrain the operating parameters of hydro–generation (1).
• The NES may make every discharge a non–complying activity in plans (1).
• Guidance should be provided on how to address equity and fairness issues (1).
• Consistent discharge regulations are needed nationwide (1).
• Water quantity and demand are also an issue (3).
• The NES would create incentives for water suppliers to decline approval for consents, and there would need to be independent oversight of water suppliers’ assessment decisions (1).