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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)

5 Proposal for an NES on Ecological Flows and Water Levels

The proposed national environmental standard is intended to complement and enhance the existing Resource Management Act process for establishing environmental flows and water levels through regional plans. The proposal has been developed in response to one of the challenges identified by regional councils.

The proposed national environmental standard will apply to all water bodies, but the effect of the standard on any individual water resource will vary according to existing regional plan provisions.

The proposal includes interim limits that will apply to all water bodies that are not covered by environmental flows and water levels established through a regional plan process. The proposal will also specify which methods are appropriate for determining the ecological component of environmental flows and water levels. These methods will be triggered when applications for resource consent that would breach the interim environmental flows and/or water levels are considered or when such an environmental flows and/or water levels are reviewed, added to or changed in a regional plan. The methods will ensure that the process is transparent and consistently applied.

5.1 Proposed interim limits

The proposed national environmental standard establishes interim limits on alterations to flows and water levels that will apply to water bodies for which there are no environmental flows or water levels specified in a proposed or operative water plan. The interim limits will apply until an alternative is established through the regional plan process.

The interim limits on alterations to flows and water levels all clearly establish a limit to the amount of available water.

An interim limit to alteration of water levels for lakes has not been included. Natural lakes, as opposed to controlled or artificial lakes, are not a major source of water for taking and diversion. A common (or standardised) measure of lake size and relative level variation is not available.

The proposed national environmental standard establishes interim limits on alterations to flows and water levels derived from expert scientist and regional council staff experience with many existing environmental flows and water levels. The interim flows and water levels are also intended to accommodate other values, such as recreational, natural character, and cultural flows. While there is some differentiation between river size and groundwater type, the interim limits are generalised across very different water-body types, so they are set at a level that caters for most water bodies. Water bodies were not further differentiated because these interim limits are intended to be in place only until a regional council has the time and resources to develop its own default or catchment-specific limits. At that stage, local knowledge and expertise can address and respond to differences among rivers and systems.

5.1.1 Proposed interim limits for groundwater

For shallow, coastal aquifers (predominantly sand)

An allocation limit of, whichever is the greater of:

• 15% of the average annual recharge as calculated by the regional council

• the total allocation from the groundwater resource on the date that the standard comes into force less any resource consents surrendered, lapsed, cancelled or not replaced.

For all other aquifers

An allocation limit of, whichever is the greater of:

• 35% of the average annual recharge as calculated by the regional council

• the total allocation from the groundwater resource on the date that the standard comes into force less any resource consents surrendered, lapsed, cancelled or not replaced.

For groundwater that is shown to be connected to adjacent surface water, the environmental flow or water level set for the surface water body will also apply to the management of groundwater takes.

5.1.2 Proposed interim limits for wetlands

Wetlands are ecosystems that have been identified nationally¹² as a national priority for biodiversity because they are greatly diminished in extent and considered rare and threatened ecosystems. Wetlands are not a major source of water for consumptive use, but even small changes in the amounts of water can affect their ecosystem values. A very conservative approach has been used for wetlands. The interim limit essentially prevents any increase in the abstraction of water from a wetland unless provision is made in a regional plan.

For all wetlands

• No change in water levels, beyond the water level variation that has already been provided for by existing resource consents on the date the Standard comes into force.

5.1.3 Proposed interim limits for rivers and streams

To meet the requirements to clearly establish a limit on the available water, the interim flows for rivers and streams specify:

• a minimum flow – a flow at which the abstraction of water ceases

• an allocation limit – a limit on the amount of water that can be abstracted from the resource that will ensure that flow variability is maintained and the river is not held at its minimum flow for excessive periods of time.

If an existing environmental flow in a plan meets one requirement but not the other, then the interim provisions shall apply to the requirement not addressed by the plan.

For rivers and streams with mean flows less than or equal to 5 m3/s

A minimum flow of 90% of the mean annual low flow (MALF) as calculated by the regional council and an allocation limit of, whichever is the greater of:

• 30% of MALF as calculated by the regional council

• the total allocation from the catchment on the date that the national environmental standard comes into force less any resource consents surrendered, lapsed, cancelled or not replaced.

For rivers and streams with mean flows greater than 5 m3/s

A minimum flow of 80% of MALF as calculated by the regional council and an allocation limit of, whichever is the greater of:

• 50% of MALF as calculated by the regional council

• the total allocation from the catchment on the date that the Standard comes into force less any resource consents surrendered, lapsed, cancelled or not replaced.

5.2 Methods for determining ecological flows and water levels

The Ministry for the Environment commissioned scientists from five agencies to develop a process for selecting appropriate methods for determining ecological flows and water levels. The outcome of this work is contained in the technical document Draft guidelines for the selection of methods to determine ecological flows and water levels (Beca 2008), released for public consultation along with this document. It is intended that the document will be referenced in the national environmental standard and form the basis for the selection and application of methods to determine ecological flows and water levels.

An executive summary of the technical document is included in Appendix 4. Full copies are available from the Ministry for the Environment’s website www.mfe.govt.nz or can be obtained by emailing standards@mfe.govt.nz or telephoning 04 439 7400.

The technical document concentrates on aspects of determining ecological flows that require scientific expertise and judgement. Other parts of ecological flow decisions, such as the level of protection to provide, are not included.

The technical document builds on a previous report – Flow Guidelines for Instream Values (MfE 1998). It extends the previous report’s approach to wetlands, lakes and groundwater, and provides a decision matrix for the selection of methods. The matrix requires information specific to a water body on:

• the potential / allowable demand and the degree to which that demand could alter flows or water levels

• the ecological value of the water resource.

Simple assessment methods would apply where only minor hydrological change to a resource with low ecological value was envisaged, but sophisticated methods (including computer modelling) would be necessary for major alterations to a water resource with high ecological values. The process would apply when new ecological flows and water levels were added to a plan or where existing ones were reviewed.

The proposed national environmental standard caps the amount of water that can be allocated from a water body if sufficient technical assessment of the effects on ecological values has not occurred.

The proposed national environmental standard purports that the approach set out in the technical document be used:

• on those water bodies for which no environmental flows and/or water levels are set in a plan, and a resource consent application would breach interim flows and water levels set in the standard

• when an existing environmental flow or water level is reviewed and/or changed in a plan

• when a new environmental flow or water level is added to a plan.

The technical document will be ‘incorporated by reference’ in the proposed national environmental standard. Incorporation by reference means that the technical document is formally part of the NES. The RMA allows for documents referenced in national environmental standards to be updated, provided that the NES flags that possibility. It is proposed that the NES state that the technical document can be updated to reflect any new methods or to remove existing methods that are no longer appropriate.

A variation to that approach would be to allow new methods to be used in plan and consent processes provided that the ones set out in the technical document were also applied. The downside of that latter option is that it dilutes the focus of the Standard, and could result in debate about the appropriateness of new methods on a case-by-case basis, rather than new methods being selected as a result of a single decision made as part of implementing the national environmental standard. That variation is not the preferred option set out in this document, but one of the questions below seeks views on how new methods are incorporated.

5.3 In what situations will the proposed NES apply?

The interim limits will apply only to those water bodies for which there is no environmental flow or water level set through the regional plan process, or to those that have an environmental flow or water level set in a plan that does not clearly specify the available water.

The proposed standard is intended to apply to the setting of environmental flows and water levels set on or after the date the Standard comes into force. It would exclude consent or plan processes that had already reached a notifiable state (or for which a decision not to notify had been made).

Where an existing environmental flow or water level in a regional plan does not completely define available water, then the interim limits in the national environmental standard will apply until the water plan is amended. For example, for rivers and streams with only a minimum flow specified in a regional plan, the interim allocation limit in the NES will apply until a catchment-specific allocation limit is set, but the minimum flow from the plan would prevail.

The potential application of the proposed national environmental standard is outlined in Table 2.

5.3.1 Situations where the interim minimum flow may not be appropriate

There are some existing regional plans and water conservation orders in which a minimum flow is not specified either in the plan or on some resource consents. These situations include:

• waterbodies for which a high level of protection of natural values is achieved by allowing only a very small or minor amount of allocation. For these water bodies, a minimum flow is deliberately not seen as necessary to protect environmental values.

• community public and stock health water bodies, as resource consents for them are often exempt from minimum flows.

The national environmental standard should also address situations in which minimum flows are currently set via consents rather than through a plan framework. In some of these cases, applying the interim minimum flow to a new or replacement consent will achieve little change in river flow because of the operation of existing consents. This situation occurs in catchments with high levels of allocation, with long-term consents that have many review or expiry dates, and with no minimum flows set in proposed or operative regional plans.

It is proposed that these issues around minimum flows be addressed in the final standard by discussions with regional councils regarding catchments or types of use that should be exempt from the interim minimum flow requirements for one of the reasons outlined above. For such catchments, the regional council would be allowed a specified amount of time to establish an appropriate environmental flow regime via a plan change or variation.

5.3.2 Situations where the interim limits are breached

The proposal as currently stated allows applications to be made for resource consents that would breach the interim limits. The Standard would require that such applications be considered to be for non-complying activities, and it would require that the applicant use the process set out in the technical document to assess ecological values.

Another option is to disallow any applications (ie, classify them as being for a prohibited activity) until an environmental flow or water level is included in an operative or proposed regional plan. Under this option, an applicant who wanted to apply for more water than allowed under the interim limits would either have to initiate a plan change or wait for one to occur. There is not necessarily an incentive to instigate a full data gathering and analysis process.

Concerns have been raised about the use of ‘non-complying’ activity status, particularly in the absence of a strong planning framework. There is a perception that it is easy for an applicant to gain approval to abstract slightly more water because the effects of that individual application are unlikely to be considered more than minor. Concerns arise because of the cumulative effect of many such applications, the potential to undermine the environmental limits and, more importantly, the ecological and other values that the limit is intended to protect.

Table 2: Potential application of the proposed national environmental standard

5.4 How will the NES affect existing resource consents?

The proposed national environmental standard will not directly impact on existing resource consents during their currently specified term. The proposal does not require the alteration of existing consent conditions even when they are not consistent with the proposed NES interim limits.

Once existing consents expire, an application for a new consent is required for the activity to continue. The interim allocation limits have been deliberately set in a way that includes all existing resource consents. Applications for replacement consents cannot, therefore, trigger a breach of the interim allocation limits. Compliance with the interim limits (or an environmental flow or water level in a plan) does not guarantee a consent will be granted. For rivers, streams or connected groundwater systems, the proposal could affect some replacement consents, but only if the consent is from a river or stream where a minimum flow has not been set by a plan. In that case, the interim minimum flow will apply.

There is one situation where existing consent will be indirectly affected by the methods part of the proposed national environmental standard. If a council reviews or adds an environmental flow or water level to a plan, it must assess the effect of flows on ecological values using the methods outlined in the technical document. If a council then applies the environmental flows or water levels to existing consents by consent review under section 128 of the RMA, existing consent holders may be affected. However, it is the council’s planning processes that initiate the review, not the NES. Whether or not, and how existing consents are reviewed to effect new environmental flows is a decision made through regional plans, not through the proposed NES.

The process of changing a plan or the subsequent consent review will address the application to existing consents. All the national environmental standard does is standardise the technical methods for providing ecological information for the plan process.

The proposed national environmental standard is not intended to replace the existing regional planning process. Technical methodologies applied to the assessment of individual components of environmental flows and water levels do not, in themselves, pre-determine the level of protection that values should be accorded, nor how any conflicts between values will be resolved. While the proposed NES 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.

5.5 How will the NES affect existing regional plans?

It is not the intent of the standard to trigger the review of existing environmental flows and water levels specified in proposed or operative regional plans. However, if a review of an existing environmental flow or water level does occur, then the methods part of the proposed national environmental standard would apply to the ecological aspects on the decision. The Standard would also apply to adding new environmental flows or water levels (either catchment-specific or default limits) for rivers, groundwater systems or wetlands to an existing plan.

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