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5. How Does the National Environmental Standard Apply to Regional Plans?

5.1 Introduction

Regulations 9 and 10 apply to permitted activity rules in regional council plans. This part of the regulation applies to all activities regulated by regional councils; in other words, activities regulated under sections 9, 13, 14 and 15 of the RMA.

Like the resource consent requirements for Regulations 6, 7 and 8, the permitted activity rule requirements apply only to activities with the potential to affect drinking water sources supplying populations of 501 or more people for 60 or more days of a calendar year.

Regulation 10(1) states that a regional council must not include a rule in its regional plan that allows a permitted activity upstream of an abstraction point if that activity is likely to result in the drinking water becoming unsuitable for human consumption, as specified by the health quality criteria. Regulations 10(2) and 10(3) outline similar principles to those in Regulation 8. These regulations guide decision-making where:

  • drinking water supplies are not adequately monitored in accordance with the DWSNZ

  • individual determinands do not comply with MAVs specified in the DWSNZ.

[10] Limitations on permitted activity rules for activities upstream of abstraction points

(1) A regional council must not include a rule or amend a rule in its regional plan to allow a permitted activity, under section 9, 13, 14, or 15 of the Act, upstream of an abstraction point where the drinking water concerned meets the health quality criteria unless satisfied that the activity is not likely to –

(a) introduce or increase the concentration of any determinands in the drinking water so that, after existing treatment, it no longer meets the health quality criteria; or

(b) introduce or increase the concentration of any aesthetic determinands in the drinking water so that, after existing treatment, it contains aesthetic determinands at values exceeding the guideline values.

(2) A regional council must not include a rule or amend a rule in its regional plan to allow a permitted activity, under section 9, 13, 14, or 15 of the Act, upstream of an abstraction point where the drinking water concerned is not tested in accordance with the compliance monitoring procedures in the Drinking-water Standard unless satisfied that the activity is not likely to –

(a) increase the concentration of any determinands in the water at the abstraction point by more than a minor amount; or

(b) introduce or increase the concentration of any aesthetic determinands in the drinking water, so that, after existing treatment, it contains aesthetic determinands at values exceeding the guideline values.

(3) A regional council must not include a rule or amend a rule in its regional plan to allow a permitted activity, under section 9, 13, 14, or 15 of the Act, upstream of an abstraction point where the drinking water concerned does not meet the health quality criteria unless satisfied that the activity is not likely to –

(a) increase, by more than a minor amount, the concentration of any determinands in the water at the abstraction point that in the drinking water already exceed the maximum acceptable values for more than the allowable number of times as set out in Table A1.3 in Appendix 1 of the Drinking-water Standard; or

(b) increase the concentration of any determinands in the water at the abstraction point that in the drinking water do not exceed the maximum acceptable values for more than the allowable number of times as set out in Table A1.3 in Appendix 1 of the Drinking-water Standard to the extent that the drinking water, after existing treatment, exceeds the maximum acceptable values for more than the allowable number of times as set out in the Table in relation to those determinands; or

(c) introduce or increase the concentration of any aesthetic determinands in the drinking water so that, after existing treatment, it contains aesthetic determinands at values exceeding the guideline values.

The regulation does not state how a council should go about assessing whether or not an individual permitted activity rule would comply with the NES. A deliberate decision was made not to go into too much detail or set out a process. This was done in response to feedback the Ministry received during consultation indicating that councils would like maximum flexibility when preparing regional plans. Therefore the regulation specifies only that the council needs to be satisfied that the activity is not likely to result in the drinking water becoming unacceptable for human consumption.

The amount and kind of information gathered by the council to support the permitted activity standard should be similar to that used when making determinations in accordance with section 70 of the RMA, which states:

[70] Rules about discharges

(1) Before a regional council includes in a regional plan a rule that allows as a permitted activity –

(a) A discharge of a contaminant or water into water; or

(b) A discharge of a contaminant onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water, –

the regional council shall be satisfied that none of the following effects are likely to arise in the receiving waters, after reasonable mixing, as a result of the discharge of the contaminant (either by itself or in combination with the same, similar, or other contaminants)

(c) The production of conspicuous oil or grease films, scums or foams, or floatable or suspended materials

(d) Any conspicuous change in the colour or visual clarity

(e) Any emission of objectionable odour

(f) The rendering of fresh water unsuitable for consumption by farm animals

(g) Any significant adverse effects on aquatic life.

Note that the test set out in section 70 is similar to that given in the NES. Section 70 states that a regional council shall be satisfied that none of a range of specified effects are likely to arise (in receiving waters) from activities before they are permitted. This is very similar to the requirement in the NES that states that a regional council must not include a rule unless it is satisfied that the activity is not likely to adversely affect drinking water quality (ie, result in increased concentrations of determinands to the point where drinking water will not meet health quality criteria) after existing treatment.

A council could undertake its assessment of how activities could affect sources of human drinking water in concurrence with other assessments required to satisfy section 70 when preparing its regional plan. Although section 70 does not explicitly state how a regional council should come to its decisions, it does specify that certain effects should not occur as a result of permitted activities. These effects include rendering fresh water unsuitable for consumption by farm animals (section 70(1)(f)), and any significant adverse effects on aquatic life (section 70(1)(g)). The NES is a regulation and therefore does not add to section 70 requirements. However, for practical purposes it could be viewed as making explicit that effects on sources of human drinking water need to be considered when preparing permitted activity rules in a regional plan.

Note that there is guidance on planning for surface water on the Quality Planning website (http://www.qp.org.nz/plan-topics/surface-water-quality.php). This material addresses planning for the management of surface water quality in rivers, lakes and wetlands, but it will be of some relevance to drinking water.

5.2 Treatment plant status

The status of drinking water treatment plant processes at the time that the plan is prepared must be the status considered.

Treatment plant upgrades may be planned or possibly underway through separate water supplier decision-making processes at the time that a proposed regional plan is under development. However, there is no certainty that a potential future plant upgrade will go ahead at the specified time, or that the plant will perform to specifications and deliver safe drinking water. Therefore, the cut-off time for considering an upgrade is the time of notification of a new or amended rule in a regional plan.

Regulation 3 of the NES states that ‘existing treatment’:

means the treatment process in respect of a registered drinking-water supply at the time an application for resource consent is made or a proposal to include or amend a rule in a regional plan is notified, as the case may be.

Thus, it is the existing treatment plant process that is relevant, and must be considered when making a decision on whether a permitted activity rule may be amended, or what should be attached to a permitted activity rule.

Obviously there may be quite some time between initial planning for a new regional plan and the time of notification. It is perfectly legitimate for a council to have discussions with a treatment plant operator about the nature of planned or proposed upgrades, provided the status of the plant at the time of notification is used in final decision-making.

5.3 Timing of the application of the national environmental standard to permitted activity rules

The NES does not require councils to amend existing rules in their regional plans until the relevant regional plan is scheduled for review.

[14] Regional council not required to immediately amend rules in plan

A regional council is not required to amend an existing rule in a plan that does not comply with regulation 10 until the earlier of the following:

(a) a scheduled review of the plan; or

(b) a plan change or variation that relates to the existing rule is introduced.

Note that the NES states that a regional council is not required to amend an existing rule in their regional plan until either (a) a scheduled review of the plan or (b) a plan change or variation that relates to the existing rule is introduced.

Remember, however, that the NES applies not only to permitted activity rules that exist in regional plans at the time of the NES but to all permitted activity rules in regional plans from that time forward. In other words, if a new permitted activity rule is placed in a regional plan, regardless of whether or not a similar rule existed in a previous plan, that rule must comply with the provisions of the NES.

5.4 Suggested approach to implementing permitted activity rule provisions of the national environmental standard

Figure 7 on the following page outlines the suggested approach to applying Regulations 9 and 10 during the development of the regional plan. Many of these steps can be undertaken in parallel with existing regional council actions taken during the preparation of permitted activity rules that relate directly or indirectly to effects on water quality.

Figure 7: Suggested approach to apply the National Environmental Standard for Sources of Human Drinking Water to permitted activities in regional plans

Figure 7 represents a suggested approach to apply the NES for Sources of Human Drinking Water when developing permitted activity rules in regional plans, and shows possible actions based on the outcomes of each step in the approach.  A full description of each step is contained in the text of this chapter following the flow chart (pages 40 to 42).

Note: AEE = assessment of environmental effects.

5.4.1 Step 1: Identification of abstraction points

One of the first steps when assessing a permitted activity rule is to identify abstraction points for drinking water supplies. This can be done using the Ministry for the Environment database that is supplied to regional councils. Applicants can contact the local public health unit or regional council to obtain information about the location of abstraction points relevant to the proposed activity.

The database identifies registered drinking water treatment plants that supply 501 people or more with drinking water for at least 60 days each year. From this information it can easily be determined which plants are relevant to Regulation 10.

5.4.2 Step 2: Assessment of activities

The next step is to assess the extent of activities regulated by regional councils in areas upstream of the abstraction points. It is up to individual councils to decide how much information they need in order to be satisfied that the NES requirements are met. In many instances a desktop assessment may be adequate.

For example, a council may generate maps that show the extent of different land covers using the Land Cover Database (refer to the Terralink website at http://www.terralink.co.nz/products_services/satellite/land_cover_database_of_new_zealand/). Agriculture databases such as Agribase (refer to the Agriquality website at http://www.agriquality.com/corporate/it_services/agribase.cfm) and other readily available data on different activities within a region can also help in collecting information on the types of activities currently conducted upstream of abstraction points.

The Ministry for the Environment recommends that the council meet with drinking water assessors from the local public health unit and treatment plant operators. This would improve council understanding of a drinking water supply and provide an overview of the types of activities that are posing actual or potential threats to the source waters for the supply.

5.4.3 Step 3: Estimate determinands

The next step is to estimate potential concentrations of determinands already present in source waters. We recognise this will usually be only an estimate because the concentration of determinands is based on current activities and discharges in the catchment. Identifying the types and locations of current activities and discharges in the catchment is the first step in estimating the likely types and concentrations of determinands in source water.

Data on soil types, land gradient and other factors that may mitigate the absorption of pathogens or chemicals will also be useful. There are several information sources on the range of determinands and their expected concentrations in effluents, surface waters and, in some cases, ground waters as a result of particular activities.13 However, these concentrations can be highly variable: they depend on the scale of the activity, distance from the receiving water, soil type, land gradient, seasonal factors such as rainfall, and peaks in activities (eg, during calving).

Monitoring information from existing consents may also be useful for determining concentrations of determinands that are likely to be present in receiving waters as a result of different activities. If no such monitoring data is available for the catchment in question, information from a similar catchment may provide some guidance.

5.4.4 Step 4: Research the existing situation

Once an estimate of determinands has been made, the existing situation needs to be researched. Ideally this is done by obtaining existing monitoring data, but this kind of information on source water quality may not always be available. Most regions have a large number of water sources, and regional council monitoring networks are unlikely to include all these sources. (Note that the NES does not explicitly require such monitoring.)

It is up to a council whether they choose to increase their water quality monitoring regime to gain a more accurate idea of water quality at certain drinking water abstraction points. It is also important to consider whether there is any other data on drinking water quality at or near the abstraction points. It may be worth contacting the operators of the treatment plant potentially affected at this stage (or before). They may have knowledge that can be helpful.

Possible sources of information include:

  • state of the environment monitoring

  • other monitoring conducted by the regional council (including consent monitoring and compliance data)

  • public health risk management plans

  • individual assessments of environmental effects (AEEs) that may have been conducted by the applicants for resource consent elsewhere in the catchment

  • records from treatment plant operators.14

5.4.5 Step 5: Check water supply compliance

The next step is to check an individual water supply’s compliance with the DWSNZ. The council needs to know the status of each supply in the region to which the regulation applies in terms of its compliance with the health quality criteria specified in Regulations 4 and 5. This is necessary because different parts of Regulation 10 will apply based on whether a supply is currently delivering water that complies with health quality criteria. This information can be obtained from the database supplied by the Ministry for the Environment (see Appendix 2) or by contacting the public health unit for the area.

Information may already be available on whether a treatment plant has sufficient capacity to remove or reduce the levels of determinands that are likely to be present in the source water. Again, the regional council could contact the drinking water assessor or the relevant local public health unit at this point to check that information obtained from the database is accurate. The drinking water assessor may be aware of additional factors relating to treatment plant status or capacity.

5.4.6 Step 6: Decide if changes to permitted activity rules are required

If, on completion of the above research, you find that some current permitted activities could have an adverse effect on drinking water quality, you have several options. These include:

  • retain the existing permitted activity rule but add more stringent conditions/terms (sections 9 and 10)

  • retain the existing permitted activity rule but, in addition, implement non-regulatory measures throughout the catchment to reduce inputs of the contaminants of concern from other sources

  • change the status of the permitted activity rule to discretionary.

The second option is relevant where a drinking water source is at risk of contamination from activities whose impact could be reduced by non-regulatory methods. For example, a catchment may be at risk of high levels of sedimentation, which can decrease the effectiveness of the disinfection processes at the water treatment plant (see Appendix 1). The council may decide that it is more effective to establish riparian planting in high sediment yield areas around the catchment than to add conditions to permitted activity rules. In this case, the permitted activity status could be retained for possible sediment-generating activities. However, other rules, council incentives, regulations, bylaws, or other methods could be used to encourage wider riparian planting throughout the catchment to ensure source water quality in the catchment does not deteriorate.

If the third option above is chosen (to increase the status of the activity to discretionary), this would not necessarily mean that all activities of this nature would now be regulated as discretionary. Instead, a threshold could be set above which the activity would be discretionary and below which the activity would be permitted. This would result in (i) a new discretionary activity rule and (ii) a new modified permitted activity rule similar to the original, but with a lower threshold of effects or more stringent requirements. An example is provided on the following page.

Whichever option is chosen, the council will need to ensure the new permitted activity rule is consistent with regulation 10 of the NES.

Example: permitted activity rule

(Note: this example is fictitious and is provided for illustrative purposes only. It is not based on any calculations or actual farm practice.)

Consider a permitted activity rule that states:

Original Rule: Discharge of Farm Animal Effluent onto Land

The discharge of contaminants onto land from the application of farm animal effluent, and the subsequent discharge of contaminants into air or water, is a permitted activity subject to the following conditions.

  1. No discharge of effluent to water shall occur from any effluent holding facilities.
  2. Storage facilities and associated facilities shall be installed to ensure compliance with condition (a).
  3. All effluent treatment or storage facilities (eg, sumps or ponds) shall be sealed so as to restrict seepage of effluent.
  4. Effluent shall not enter surface water by way of overland flow, or pond on the land surface following application.
  5. The total nitrogen loading rate for grazed pasture shall not exceed 150 kg N/ha/year.*

If an assessment of this rule was carried out during plan review, and it was found that effluent discharge to land at this loading rate could result in levels of nitrogen in source water that would lead to the water supply exceeding the MAV for nitrate, the rule could be changed by decreasing the permitted nitrogen loading rate to 130 kg N/ha/year*.

This could be done if calculations showed that decreasing the loading rate by this amount would result in levels of nitrogen at the abstraction point for the treatment plant that would continue to allow drinking water to comply with the MAV for nitrate.

The status of activities where the loading from effluent discharge exceeds the stated rate would then need to change (eg, to discretionary activities). The new rule would be:

New Rule: Discharge of Farm Animal Effluent onto Land

The discharge of contaminants onto land from the application of farm animal effluent, and the subsequent discharge of contaminants into air or water, is a permitted activity subject to the following conditions.

  1. No discharge of effluent to water shall occur from any effluent holding facilities.
  2. Storage facilities and associated facilities shall be installed to ensure compliance with condition (a).
  3. All effluent treatment or storage facilities (eg, sumps or ponds) shall be sealed so as to restrict seepage of effluent.
  4. Effluent shall not enter surface water by way of overland flow, or pond on the land surface following the application.
  5. The total nitrogen loading rate for grazed pasture shall not exceed 130 kg N/ha/year.*

* Tables could be provided in the plan to assist with the calculation of stocking rates to achieve the loading rates stated for nitrogen. For example The Operative Waikato Regional Plan includes such tables to explain their nitrogen loading rates (see Table 3-7 under Rule 3.5.5.1 at http://www.ew.govt.nz/Policy-and-plans/Regional-Plan/Waikato-Regional-Plan/3-Water-Module/35-Discharges/355-Implementation-Methods---Farm-Effluent-Discharges/).

Pathogens

In addition, farm animal effluent can contain pathogens that can cause human illness. The plan review process may result in a decision to consider this dimension of risk to drinking water quality. Investigations may show that the discharge of effluent could result in increased pathogen levels (as indicated by E. coli concentrations) in the source water, which could result in levels of E. coli in drinking water exceeding the MAV after existing treatment. The new permitted activity rule could include controls on the discharge of pathogens. This could be done by adding E. coli to contaminants regulated under the rule, and/or by adding conditions/terms that would reduce the entry of pathogens to water bodies.

 


13 These include data in published literature (both journals and reference texts), commissioned reports and information from professionals with expertise in the field.

14 Water treatment plant operators are not required to carry out routine monitoring of source waters. However, some will have conducted such monitoring for individual parameters such as turbidity, to optimise plant performance in dealing with varying conditions or to determine the need for treatment in order to meet the requirements of the DWSNZ. It is recommended that the regional council request any such information from individual treatment plant operators.