3. What Does the National Environmental Standard Require?

This national environmental standard (NES) applies to groundwater sources such as aquifers or springs, rivers, lakes and other natural waters that are sources of human drinking water. All these sources are able to be managed under the RMA, which is the legislation under which the NES has been created.

The NES applies only to water sources before they are abstracted by a drinking water treatment plant. After the water treatment plant, Ministry of Health legislation and standards apply.

The NES also only applies to sources from which water is abstracted for use in registered drinking water supplies. These supplies are those recorded in the drinking water register maintained by the Ministry of Health.

The NES has three main components that apply to:

1. resource consents
2. permitted activity thresholds in regional plans
3. emergency notification conditions that may be placed on resource consents.

The first part of the NES, Regulations 7 and 8, apply to discharge permits and water permits issued by regional councils and unitary authorities (Regulations 7 and 8). The second part applies to permitted activity rules in regional plans (Regulations 9 and 10). The third part relates to conditions that may be placed on any resource consents (Regulations 11 and 12).

Table 2 summarises what each of the regulations relates to.

Table 2: National environmental standard regulations and their content

To understand the NES, some common terminology used in the regulations and in drinking water management needs to be introduced. All of the terms in the box on the following page are used throughout this guide.

All regulations in the NES apply to the concentration of determinands at the abstraction point for the water treatment plant. This is important to note because there are almost always factors that decrease or increase the concentrations of determinands from the discharge point to the abstraction point. In most instances it is dilution that reduces the levels of a determinand.

Regional plans* set out whether an activity requires resource consent. The resource consent component of the regulations (7 and 8) does not change the status of an activity. All the NES does is make it explicit that effects on drinking water need to be included in the matters to be considered when assessing the effects of a proposed activity. For example, if a discharge consent is applied for, the applicant would already have been required to assess the discharge’s effects on the environment. Such an assessment would usually address the requirements of the regional plan, such as effects on the recreational use of water or aquatic ecosystems. Effects on drinking water would merely be an additional issue for the report to cover.

*Sections 14 or 15 of the RMA apply where regional plan rules relating to this issue are not in existence. 

This also applies to permitted activities in regional plans. Councils are already required to consider the effects of permitted activities on other aspects such as stock drinking water and recreational uses. All the NES does is make it explicit that effects on drinking water are to be considered when developing a plan.

Regulations 6, 7 and 8 apply to water and discharge permits issued by regional councils. The resource consent requirements under these regulations apply only to water permits and discharge permits that have the potential to affect registered drinking water supplies that provide 501 or more people with drinking water for 60 or more calendar days each year.

Each consent that has the potential to adversely affect drinking water quality will need to be assessed to ascertain the level of the effect. The application may have to be altered (or declined by a regional council) if the level of effect is too high. The level of effect allowable will depend on the current status of the drinking water supply (ie, whether the water currently produced complies with health standards). The effect of the activity will need to be estimated either before or after treatment, depending on the status of the water. This is discussed in more detail in section 4.5.5.

Only the existing treatment provided by a plant can be taken into consideration under the NES; ie, the treatment in place at the time an application is made. This approach is both precautionary and to ensure public safety. It cannot be assumed that any planned upgrades to a treatment plant will take place when granting consent: planned treatment upgrades may not be implemented before the consented activity begins or, in a worst-case scenario, may not happen at all.

Most of the details of Regulation 7, and particularly of Regulation 8, are intended to specify exactly how assessments are to be made for contaminants introduced by different activities. Examples in Chapter 4 help clarify this component of the regulation.

Regulations 9 and 10 apply to permitted activity rules in regional plans. Regulations 14 and 15 provide further detail on the timing at which these regulations will take effect for an individual regional plan. Again, Regulations 9 and 10 apply only to activities with the potential to affect registered drinking water supplies providing 501 or more people with drinking water for more than 60 days of a calendar year.

The principle underlying Regulations 9 and 10 is the same as that for Regulations 7 and 8: any new activity must not deteriorate receiving water quality in a drinking water source to the extent that existing treatment processes cannot make that water safe for people to drink.

As with Regulation 8, much of the detail of Regulation 10 relates to determining the exact circumstances in which an activity may or may not be permitted in a plan. Chapter 5 of this guide provides further discussion on these parts of the regulations.

Regulations 11 and 12 apply to emergency notification provisions for both regional and district council resource consent applications. Under the NES, emergency notification refers to the notification (preferably by phone) of authorities when an unintended activity occurs (this differs from the notification of a consent application under the RMA). One key difference between emergency notification provisions and previous parts of the regulation is that they now apply to a smaller population threshold: activities with the potential to affect registered drinking water supplies that provide 25 or more people with drinking water for 60 or more days of a calendar year must be notified.

There are two reasons for this lower population threshold. Firstly, these consent requirements are much less onerous than those specified in Regulations 7 and 8. Secondly, the regulations are intended to protect public health if a fairly significant but unintended event occurs with a considerable effect on human health (eg, a chemical spill into a river that is a drinking water source). The effects of such an event could be extreme, so the consent holder is required to inform the provider that it has occurred. The lower threshold is warranted because of the potential impact on public health.

Details of Regulations 11 and 12 are given in chapter 6. The underlying requirement is that a council should assess each consent application based on the potential risks to a human drinking water source. If the council deems that something could go wrong at the premises which could affect drinking water, then a condition should be placed on the consent in line with Regulation 12(3).

For example, a new application may have the potential to release large amounts of a toxic chemical, or any amount of chemical with particular toxicity to humans, into a drinking water source. In this case, this regulation should apply and a condition should be placed on the consent.

Circumstances in which the regulation applies are deliberately broad; this enables councils to determine whether risks posed by a particular consent are sufficient to use this regulation. Cases when this condition may be considered appropriate, along with an example condition, are set out in section 6.6 of this guide.