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Proposed National Environmental Standard on Ecological Flows and Water Levels: Discussion Document

• Acknowledgements
• Executive Summary
• 1 Introduction
• 2 Ecological Flows and Water Levels in the Context of Environmental Flows and the Resource Management Act
• 3 How Could National Direction Address Issues with Ecological Flows and Water Levels?
• 4 The Options
• 5 Proposal for an NES on Ecological Flows and Water Levels
• 6 Preliminary Evaluation of Costs and Benefits of Preferred Option
• 7 Future Actions to Complement the NES
• 8 What Next?
• 9 References
• Appendix 1: Definitions
• Appendix 2: Existing Approaches to Ecological Flows
• Appendix 3: Environmental Flows and Water Levels
• Appendix 4: Executive Summary and Recommendations from: Draft Guidelines for the Selection of Methods to Determine Ecological Flows and Water Levels (Beca 2008)

4 The Options

4.1 Preferred option: an NES that sets interim limits and technical methods for ecological flows

The preferred option is a national environmental standard that has two elements:

• interim limits on the alterations to flows and/or water levels in those rivers, wetlands and groundwater systems for which there are no limits set in a proposed or operative regional plan (or other statutory instrument)¹¹

• a process for selecting the appropriate technical methods for evaluating the ecological component of environmental flows and water levels. The proposed national environmental standard endorses the use of simple methods if there is low demand for water and more sophisticated methods as the amount of allocation demand increases. The process would apply when new environmental flows and water levels were added to a plan, where existing ones were reviewed or where the interim limits are breached.

Full details of the option are outlined in Section 5. However, it should be noted that, while the proposed national environmental standard may assist the decision-making process, the determination of appropriate environmental flows and water levels remains a regional council decision, except where an interim limit is required.

4.1.1 Interim limits to alterations to flows and water levels

The interim limits are the preferred way to meet policy objectives 1 and 2 (see previous page). The interim limits on alterations to environmental flows and water levels will ensure that regional councils have time to respond in situations where there are rapid increases in the demand for water in a water body for which there is no environmental flow or water level currently defined in a regional plan. The limits will provide clear protection for ecological (and other) values from any adverse effects of water abstraction. The limits should enable regional councils to avoid over-allocation of the resource and should avoid the degradation of natural values until a thorough assessment of the potential impacts of water use has been undertaken.

The inclusion of interim limits on alterations to flows and water levels within a national environmental standard is intended to put limits in place in a more cost-effective and expedient manner than would the regional plan process. It should minimise debates around the need for and justification of default flows and water levels. As demand increases, the proposed NES will mean that resource consent decisions addressing the cumulative effect of applications will not be made on an ad hoc basis for those water resources where no environmental flow and water level is currently defined in a regional plan. The ad hoc approach has been described as the ‘salami syndrome’, and it leads to justifiable concerns about the level of protection for ecological and other values. As more of the water resource is taken, that which remains is less resilient to change and may be less valued.

The establishment of interim limits allows resource consent applicants to clearly see the amount of water that could be granted, subject to meeting the tests of the RMA. It will provide some certainty to new applicants on the availability of water when resources are under less demand pressure. It also provides certainty to existing resource consent holders on how much more water can be allocated prior to specific provisions being included in a regional plan.

The concept of an interim limit is not uncommon. Some regional councils have already established ‘default’ environmental flows and water levels through their regional plans (refer Appendix 2). The rationale of a default is to have some measure in place that protects values and allows some taking of water until there is sufficient demand for water-monitoring data and/or information to justify a catchment-specific environmental flow.

4.1.2 Technical methods for assessing flows for ecological values

The technical methods part of the preferred option meets policy objective 3 (section 3.2). A national environmental standard that specifies techniques for establishing ecological flows and water levels would provide consistency in the methods applied and reduce debate about the selection of appropriate methods and associated data requirements. The NES aims to significantly reduce the need for the same technical debate over methodologies to be repeated in separate plan and/or consent decisions.

The proposal is limited to the ecological component of environmental flow and water level decisions. The proposed national environmental standard relates only to ecological flows and water levels for two reasons:

• Assessing the ‘needs of freshwater ecosystems’ is often the starting point for environmental flows and water levels decisions, and there are a large number of technical methods for making that assessment. Regional councils have requested clarity on which methods are appropriate for a given situation. Recreational values are perhaps the only other type of value for which a range of proven methods exist.

• Other values provided for in environmental flows often rely on ecological values. For example, mahinga kai and angling both need healthy fish populations and ecosystems. Often the flows and levels set to protect ecological values will go some way to protecting other natural values, although additional flows or higher levels will be necessary in some cases to provide for values other than ecological values. Methods for assessing these other values that complement this proposed standard are identified in Section 7 of this discussion document.

4.2 Status quo

This option would involve no national direction and would rely solely on regional plans, water conservation orders and resource consent applications to address the issues with ecological flows and water levels. The existing dominant mechanism is regional plans, where an ecological flow assessment is carried out to support environmental flow and water level decisions.

Continuing the existing RMA process through regional plans will see proposed plans become operative over time, and reviews will be initiated of those plans not later than 10 years after they become operative. This review process provides an opportunity for the adequacy of existing environmental flows and water levels to be considered via the plan review process. Alternatively, regional councils may initiate changes (or variations) in existing regional plans under section 65 of the RMA at any time, to add or amend environmental flows and water levels, to address specific resource management issues.

Given the time and resources invested in developing existing environmental flows and water levels, regional councils may be reluctant to embark on additional regional plan development processes, to establish additional resource-specific or default environmental flows and water levels for all water bodies, outside of already programmed regional plan reviews.

Several proposed and operative regional plans already include default environmental flows and water levels, particularly for surface water. These default environmental flows and water levels essentially establish interim limits that, depending on specific plan provisions, cap allocation until sufficient information is available to support the granting of additional resource consents. In those locations, objective 1 and 2 have already been achieved. However, in other locations, the status quo cannot be guaranteed to meet objectives 1 and 2.

Existing methods for determining the ecological component of environmental flows and water levels are relatively well developed and suitable for most hydrological settings. However, considerable debate commonly occurs over the selection and application of these methods in both the resource consent and regional plan processes. This can result in significant costs and lengthy delays for regional plans to advance through often contentious hearing and environment court processes. A similar situation occurs in the resource consent process, where debate may occur regarding the selection and application of particular methodologies to advance or rebut individual resource consent applications. In resource consent and regional plan hearings, the Environment Court is often called upon to decide on complex arguments about the selection, application and merits of particular technical assessment methodologies. These arguments are commonly exacerbated by uncertainties in information available to inform the decision-making process. Objective 3 would not be achieved under the status quo.

4.3 A national directive to set environmental flows

Another option to ensure that environmental flows and water levels are established for all water bodies is for central government to establish a national directive using either existing policy instruments – most likely a national policy statement – or legislative change. Such a directive would require regional councils to develop environmental flows and water levels for all water bodies within a nominated timeframe, but would leave their exact form, content and the choice of technical methods to the discretion of individual regional councils.

Regional plans are required to give effect to any relevant policies or objectives contained in a national policy statement. Inclusion of specific provisions requiring environmental flows and water levels for all water bodies in a national policy statement or national environmental standard would require regional councils either to develop a comprehensive list of environmental flows and water levels in a regional plan schedule or to develop default environmental limits that would apply to water bodies for which a specific environmental limit was not already established (or a combination of these approaches). Depending on the timeframe specified, this would require regional councils either to consider the addition or change of environmental flows and water levels as part of existing plan review processes, or to initiate a plan change process under section 65 of the RMA.

The main benefit of the using a national directive to require the setting of environmental flows and water levels is that it would ensure that environmental limits are established for all water bodies within a nominated timeframe, while enabling individual regional councils to develop environmental flows and water levels in a form and manner specific to their individual regions.

This option would meet policy objectives 1 and 2, but not in as expedient or cost-effective a manner as the preferred option. It would not meet objective 3.

4.4 National guidelines on technical methods

A national guidance document on the setting of ecological flows and water levels could be produced by central government. The guidance could be in the form of the technical document referenced by the proposed national environmental standard (or a modified version of it). The guidelines would not have any statutory weighting but could be used to inform the resource consent and regional plan processes at the discretion of individual regional councils.

Overall, a national guideline document for the setting of ecological flows and water levels would essentially provide an updated version of the existing Ministry for the Environment ‘Flow guidelines for instream values’, extended to include groundwater, lakes and wetlands and to address flow variability. This approach would provide national guidance on the selection and application of technical methods and promote a nationally consistent approach to the ecological component of environmental flows and water levels.

The lack of statutory weighting for a guideline document means that it would provide limited assistance for the resource consent process, with the selection and application of technical methods likely to be debated through the hearing process. Regional councils would be free to adopt the recommended guidelines as part of future plan reviews or to support changes (or variations) to existing regional plans. The lack of statutory weighting for the methods contained in a guideline document increases the potential for the selection and application of methods by a regional council to be challenged during the regional plan or resource consent process (which would not occur should the proposed national environmental standard be implemented).

The use of national guidelines would assist in, but cannot guarantee, objective 3 being met. This option would not meet objectives 1 and 2.

4.5 An alternative NES

A further alternative is a national environmental standard that has a broader scope than the preferred NES option. Under this option, the methods part of the standard would be extended beyond ecological methods. Such a document would provide direction for the selection and application of technical methods covering the full range of ecological, recreational, tangata whenua, cultural and amenity values associated with water. It would provide greater guidance for the development and application of environmental flows and water levels in the regional plan and resource consent process. This option would meet objective 3.

The major disadvantage of this option is that, aside from the ecological (and possibly recreational) components of environmental flows and water levels, methods for the other components are not sufficiently developed to allow their incorporation in, or reference to, a national environmental standard in the short to medium term. Delaying the development of an NES until technical methods are available for all components of environmental flows and water levels would result in the continuation of the status quo, at least over the medium term.

4.6 A comparison of the options

Table 1 summarises the five options evaluated against the three policy objectives and the criteria of cost-effectiveness, expediency, consistency and provision for local decision-making. Analysis of the potential options indicates that the proposed national environmental standard meets all the criteria considered, except the one relating to local decision-making in the setting of interim limits on alterations to environmental flows and water levels.

Table 1: Comparison of options

= substantially achieves criteria; = unlikely to achieve criteria;≈= no change from status quo.

a Compared to the status quo.

b Provided that the requirement to establish environmental flows and water levels is time-bound.

Although the proposed national environmental standard does not meet one of the criteria on local decision-making, it does endorse local decision-making because the interim limits would be over-ridden when environmental flows and water levels were established through the community processes required as part of developing a regional plan. In effect, there is a trade-off that results in less local decision-making, in the short term, in order to provide the protection of values through interim limits specified at a national level and that are put in place quicker than a regional plan process can achieve.

An alternative national environmental standard is the only other option considered that would satisfy the stated policy objectives. However, the effective implementation of this option is limited in terms of expediency owing to current limitations in methods available to assess the components of environmental flows and water levels related to a comprehensive range of values (eg, recreational, cultural, tangata whenua and aesthetic). The delay required to develop the appropriate technical assessment methods significantly restricts the efficacy of this option to address the policy objectives in the short term.

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