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NPS provisions

Preamble

[130]     Many submitters were critical of the Preamble to the proposed NPS, highlighting inconsistencies between the Preamble and the objectives and policies of the proposed NPS, and between the Preamble and the provisions of the Act. A number of submitters requested amendments to the Preamble, including changing its focus and rewriting it to provide what was considered by submitters to be the necessary guidance and direction for freshwater management.

[131]     During the inquiry, the Board requested an explanation of the status of the Preamble from the Ministry for the Environment. The Board was advised the Preamble had been drafted on the understanding that, because it is not formally part of a national policy statement as dictated by statute, its legal status would be minimal. The Preamble functions as an additional piece of guidance to help clarify the Government’s intention as reflected in the proposed NPS and is intended to provide some context to the objectives and policies of the proposed NPS, to assist interpretation.

[132]     The Board accepts that, in principle, there is value in stating, in a preamble, the circumstances in which the NPS is considered desirable. The Board also accepts submissions to the effect that some of the content of the Preamble to the proposed NPS is inappropriate.

[133]     The Board recommends replacement of the proposed Preamble with a statement of the national values of fresh water, the national issues about freshwater management, and national goals in respect of those issues. They are drawn from the Act, the proposed NPS, the submissions, and the evidence presented by submitters. Taken together, those issues and goals are the circumstances in which the NPS is desirable.

Purpose

[134]     Some submitters argued that the purpose of the proposed NPS does not add significantly to the document, nor clearly state the reasons why the proposed NPS has been prepared.

[135]     As noted earlier, the Board considers that the NPS should be outcome focussed. However, a purpose statement should only be included if it helps the reader to understand the intention of having the NPS.

[136]     The national values, the national issues, and the national goals, together provide a clear statement of the intention of the NPS. Therefore, the Board considers that a separate statement of the purpose of the NPS is unnecessary.

Objectives and policies

[137]     The RMA treats the words objective and policy as having different meanings. From section 62(1)(c) of the RMA the Board understands that an objective is something sought to be achieved. The Court of Appeal has held22 that a policy is a course of action, and may be a mandatory direction having a restraining effect. The Board infers from that case that a policy is intended to be a course of action for the achievement of an objective.

[138]     So, to the extent relevant in deciding submissions on the proposed NPS, the Board will assort the content as objectives or policies accordingly.

[139]     Some submitters asked for the stating of an overarching objective of the proposed NPS. The RMA does not provide for a category of overarching objectives. However, it can be helpful to identify as such a broad objective having general application. The Board prefers to call it a general objective.

[140]     Objective 1 in the proposed NPS, by restating enabling elements of the meaning given to sustainable management, focuses on the utilising of fresh water for human benefit. As many submitters urged, that would not respond to the main matters of national significance identified. They may be briefly restated as over-allocation, contamination of water, loss of wetlands, and incompletely integrated management.

[141]     The general objective of the NPS can be drawn from the matters of national significance, and national issues and goals identified by the Board, and restated as follows:

To manage fresh water in a way and at a rate that –

  1. maintains, and to the extent practicable, restores and enhances the intrinsic values of fresh water:
    1. in the interdependence of the elements of the freshwater cycle; and
    2. in the natural form, character, functioning and natural processes of water bodies; and
    3. in natural and healthy conditions free from alterations resulting from human activity; and
    4. in healthy ecosystem processes functioning naturally; and
    5. for safeguarding the life-supporting capacity of air, water, soil and ecosystems; and
    6. for providing healthy ecosystems supporting the diversity of indigenous species in sustainable populations; and
    7. for sustaining cultural and traditional relationships of Māori with fresh water; and
    8. for sustaining the potential for fresh water to meet the reasonably foreseeable needs of future generations; and
  2. (while not detracting from attaining clause 1), enables people and communities to provide for their social, economic and cultural well-being, and for their health and safety.

Freshwater intrinsic values

[142]     The proposed NPS contains an objective to recognise and protect life-supporting capacity and ecological values (Objective 4).

[143]     Although the link between the policies of the proposed NPS and Objective 4 is not entirely clear, it appears that Objective 4 is to be achieved by:

  • identifying notable values (including potential values) of outstanding and degraded freshwater resources; and
  • setting freshwater quality standards and environmental flows and levels for all freshwater resources of a region, with a particular focus on protecting outstanding freshwater resources and enhancing or restoring degraded freshwater resources.

[144]     Submitters proposed a variety of amendments to Objective 4. Most of them sought to narrow the terms life-supporting capacity and ecological values by insertion of qualifiers such as ‘net’ life-supporting capacity and ‘significant’ ecological values. One submitter proposed a much more detailed objective, specifying the methods by which the life-supporting capacity of fresh water would be safeguarded. Another submitter requested that groundwater which is unconnected to surface water be omitted from the objective.

[145]     Many submitters commented that the link between the objective and policies is not clear, and that it is not easy to discern how life-supporting capacity and ecological values are to be recognised and protected.

[146]     These submitters generally suggested that values of some type (be they ‘notable’,  ‘natural’ or ‘significant’) should be identified for all freshwater resources, although submitters differed on who should be responsible for that identification.

[147]     Many submitters commented on the requirement for freshwater quality standards and environmental flows and levels to be established for freshwater resources. These submissions are addressed later in this report, in the Board’s considerations of water quantity and water quality.

[148]     The Board approaches those submissions for alteration of the proposed NPS by considering what would more fully achieve sustainable management of fresh water. As mentioned earlier in the report, the Board considers that fresh water should be managed so that the enabling elements do not prevail over, but are constrained by, the sustaining, safeguarding and effects-based elements of sustainable management. In that way the intrinsic values of fresh water should not be sacrificed to its values for well-being and amenity of people and communities.

[149]     Objective 4 of the proposed NPS would be restricted in achieving that goal. By being limited to significant values, it would allow for minor and de minimis effects on the environment to be ignored. Cumulative effects of doing so have contributed to the national issues that called for the NPS. There are other intrinsic values that have also to be safeguarded and sustained.

[150]     Likewise, the Board considers that introducing the concept of ‘net’ life-supporting capacity would narrow the objective too much, and would imply that compensation and trade-offs can be used as the first choice when addressing adverse effects of inappropriate activities on fresh water.

[151]     In the Board’s opinion, making an exception for the specific situation where groundwater is not connected to surface water would not be warranted. The case advanced for this exemption was that a deep aquifer may have no life-supporting capacity or ecological values. In those circumstances, the objective would not on its terms apply to that water.

[152]     The detailed objective (noted in paragraph [144]) that was suggested to the Board would outline relatively narrow values for fresh water (only relating to biodiversity) and then set standards and outline details of implementation. The Board considers that the setting of standards and provision of details on implementation are laudable aims, but an objective of that nature would raise questions about how practicable it would be to implement. When an objective is seen as too difficult to implement, this can lead to inaction.

[153]     However, the suggestion about values of fresh water has led the Board to consider what the focus of Objective 4 should be. Earlier in this report, the Board noted that values of fresh water are wider than just ecological values. As suggested by some submitters, the Board recommends that Objective 4 should be widened to include ecosystem processes and indigenous species and their associated ecosystems.

[154]     Policies for achieving the objective should apply to all the values of fresh water, not just those classified as notable. Identifying national values of fresh water in the NPS can help regional councils in preparing policy statements and plans, especially in the range of intrinsic values. That should lead to an improvement in managing fresh water, and in controlling activities that can affect full realisation of its values.

[155]     Policies for achieving the objectives in respect of water quantity and quality are discussed below. They do not require carrying forward the concepts in the proposed NPS of outstanding and degraded fresh water.

Water quantity

Environmental flows and levels

[156]     Policies 1(a) and 1(c) of the proposed NPS would require environmental flows and levels to be set for all freshwater resources of a region. The purposes of setting environmental flows and levels are to protect the notable values of outstanding freshwater resources and to enhance or restore the notable values of any degraded freshwater resources.

[157]     Some submitters asked that the requirement to set environmental flows and levels should be removed altogether, or that they should only be set for outstanding water bodies or those at risk of degradation. One submitter urged the Board to require setting of environmental flows and levels in order to ensure security of supply to domestic and municipal water supplies.

[158]     A number of submitters also commented that the definition of environmental flows and levels should be consistent with the definition contained in the proposed National Environmental Standard on Ecological Flows and Levels.

[159]     Submitters questioned who should be responsible for setting environmental flows and levels, with suggestions including: central government through the NPS; regional councils; or that a case-by-case approach should be adopted, where flows and levels are set if a community has decided that the values of, or demands on, the water resource make setting standards appropriate and where freshwater resources are affected by discharges or abstractive use.

[160]     The Board considers the NPS should contain a policy of setting environmental flows and levels, and that regional councils should be responsible for doing this. The Board accepts that many regional councils have already made significant progress in setting flows and levels for some water bodies in their regions. The setting of these flows and levels needs to be done over time for all water bodies, not just those that are outstanding or at risk of contamination. However, there is no need to do so in respect of ponds and naturally ephemeral water bodies.

[161]     So the Board recommends that regional councils should adopt programmes for setting flows and levels for all water bodies in the region. If need be, it could be done over a period by adopting a progressive programme. This programme should be publicly stated and should be publicly reported annually, so that the community can see the progress being made.

[162]     When setting environmental flows and levels, the range of values to be considered needs to be wider than notable values. Security of supply for domestic and municipal supplies is only one of many values (including intrinsic values) that should be considered.

[163]     The proposed National Environmental Standard on Ecological Flows and Levels is not in its final form, so the Board cannot rely on any of its contents for consistency between the documents.

[164]     The Board was asked to prescribe default flows and levels in the NPS. The Board understands that there is a divergence of expert opinion about how to set flows and levels, so choosing any one method for setting interim defaults would be controversial. The Board also understands that the appropriateness of different ways of setting flows and levels is being considered as part of the process of developing the National Environmental Standard on Ecological Flows and Levels, so this is not required in the NPS. The Board does not wish to parallel the NES process, nor recommend a policy that may be inconsistent with it.

[165]     Because some councils may need to take a protracted period to set flows and levels for all water bodies in their regions, a transitional provision is needed in the meantime. The Board recommends that the NPS direct immediate inclusion in regional plans (without using the Schedule 1 process) of a policy requiring resource consent for certain changes in activities involving taking, using, damming or diverting of fresh water, or draining of any wetland or in the natural variability of flows or level. The policy would state assessment criteria to be applied to consent applications.

Allocation of water

[166]     A number of submissions related to allocation of water. Many submitters contended that the application of the ‘first-in, first-served’ approach to allocating fresh water is an approach that would not promote healthy fresh water in the long term. That may be, but even though some may doubt whether the ‘first-in, first-served’ approach serves the promotion of the sustainable management purpose of the Act, that approach has authoritatively been declared to be the law.23

[167]     Where a resource has been fully allocated, applying the principle of non-derogation of grants can also limit further grants that may be justifiable for promoting sustainable management, but that principle has also been authoritatively declared to be the law.24

[168]     The Board’s duties are to make recommendations about the content of the NPS stating objectives and policies, and methods for including them in planning instruments. Its duties do not extend to making recommendations about changes to the law; and a national policy statement itself could not be effective to alter the law. Therefore, the Board does not accept submissions that, directly or indirectly, seek alteration of the ‘first-in, first-served’ approach to allocation of fresh water, nor of the application to water allocation of the principle of non-derogation of grants.

[169]     A wide variety of submitters also commented on the prioritisation of water supply to various uses. Although the proposed NPS envisages management of demand for fresh water in such a way that priority is provided to reasonably foreseeable domestic water supply, many submitters sought the prioritisation of ‘domestic and municipal’ supply, with various methods suggested by which this could be done.

[170]     The RMA confers on regional councils the function of establishing rules in regional plans to allocate the taking or use of water,25 including allocating the resource to types of activities.26 So the NPS might contain an objective or policies on how, in general, that function is exercised by regional councils. However, the relevant conditions in regions and catchments may vary, and the Act entrusts to regional councils the function of specific allocations of water to types of activity. That is to be done by provisions in regional plans, and by decisions on consent applications giving effect to those provisions.

[171]     Therefore, the NPS may include a policy of allocating fresh water to intrinsic values, and of allocations to other types of activity being prescribed as absolute limits that are not to be exceeded, so the allocation to intrinsic values is not vulnerable to being diminished by over-allocation to types of activities for taking and use.

[172]     The Board considers that the NPS should contain a policy of regional councils setting priorities for allocations of fresh water to intrinsic values and to types of activity for achieving sustainable management and the objectives of the NPS, according to the particular conditions in their regions and catchments. The Board considers it inappropriate for the NPS to direct specific priorities or amounts for allocation to types of activity, beyond the policy of giving primacy to the needs of intrinsic values over the needs of types of activity. The policy should also include the regional councils’ duties to have regard to the potential for climate change.

[173]     The Board sees no national justification for giving priority to domestic and municipal supply, bearing in mind the regional differences in water availability, and the complexity of existing consents for the allocation of water to domestic and municipal supplies in cities and towns.

Addressing over-allocation

[174]     In some regions, water has been over-allocated, leaving insufficient water for sustaining intrinsic values and the health of water bodies, and for various classes of needs. Some allocations are for greater amounts than are needed, and some exceed what is actually used.

[175]     Many submitters contended that this outcome has arisen from an imbalance between the enabling elements of sustainable management as described in section 5(2) of the RMA and the counterpoint goals in paragraphs (a) to (c) of that subsection. Submitters asked that the NPS give firm direction to those carrying out functions under the RMA so that over-allocation of water is reversed, and efficient use of water required.

[176]     The Board supports the concepts for managing over-allocation suggested by a number of submitters, and considers that if this type of approach assists in better management of fresh water, it should be included in the NPS.

[177]     Policies in the proposed NPS would require regional councils to restrict existing taking, using, damming and diverting of fresh water in order to sustain notable values and tangata whenua interests and values in times of low flow.

[178]     A number of submitters requested that conditions in which restrictions can be applied be expanded. Some requested that restrictions be able to be applied throughout the full flow regime, indicating that it is not only in times of low flow that values need to be sustained. Others proposed restrictions as a method for addressing the issue of over-allocation. They suggested that the policy be extended to provide for restrictions in over-allocated catchments at all times and in all catchments in times of low flow. Some submitters have sought exceptions to restrictions.

[179]     In general, restrictions on taking, using, damming and diverting of fresh water may be needed to ensure the life-supporting capacity of water bodies is sustained. The sustaining of that capacity may be imperilled at times of low flow or level. It may also be imperilled in other conditions too, such as in over-allocated catchments. In alignment with recommended general Objective A1, restrictions on taking, using, damming and diverting of fresh water may be needed in periods of low flow or level, or in other circumstances to protect the intrinsic values of fresh water described in the second list in paragraph [40].

[180]     The Board does not accept that there are types of activity that should be exempt from restrictions on taking, using, damming or diverting of fresh water. For instance, it does not support an exception for community water supplies. They provide water for more than domestic drinking and washing needs. Rather, the Board considers that all consent holders should bear their share of restrictions on a pro rata basis.

[181]     The Board agrees with the submitters’ suggestions that the restrictions policy be extended to provide for restrictions to be imposed in over-allocated catchments at all times and in all catchments in times of low flow or level. The Board acknowledges there are limitations on what can be done to change the exercise of existing consents until they expire or are reviewed in terms of section 128 of the RMA.

Managing demand and avoiding wastage

[182]     Many submitters commented on the policies in the proposed NPS that require councils to manage demand for fresh water and ensure water that is taken is used efficiently.

[183]     The Board considers that regional plans should manage demand according to efficient use of water and local and regional circumstances. It is not appropriate for the NPS to go to the detail of specifying types of demand management.

[184]     The Board further considers that a number of the suggestions made by submitters about efficient use of water are either not within the scope of a national policy statement (such as directing that water that is ‘fit for purpose’ is used, and directing territorial authorities to address potential impacts on water quantity and quality) or have been reflected in different ways in other recommendations of the Board (such as those relating to integrated management).

[185]     The Board has concluded that the proposed Objective 7 is really a policy and can be omitted. The general intent of it is met by other objectives and policies the Board has recommended for inclusion in the NPS.

Transfer of water permits

[186]     Policy 1(i)(iii) of the proposed NPS would require that regional policy statements guide and direct regional and district plans to manage demands for fresh water in a manner which promotes efficient water use, including (where appropriate) through the transferability of resource consents.

[187]     Some submitters have stated that increased guidance for implementing a transferable water permit regime would be helpful. Others have noted that there still needs to be a full discretionary assessment of the effects of any transfer, and that councils should ensure that existing allocation regimes are sustainable before allowing any transfers.

[188]     The Board considers that the NPS does not need to state policies for markets for water. However, there would be merit in a policy stating criteria for assessing applications for transfer of water permits, including the extent to which the transfer would result in maintaining quantities of fresh water; in enhancing the quality of fresh water; and in enhancing the technical efficiency of the use of water.

Water quality

Enhancement of water quality

[189]     Objective 3 of the proposed NPS refers to the concept of progressive enhancement of the overall quality of fresh water, including by ensuring that appropriate freshwater resources can reach or exceed a swimmable standard.

[190]     Some submitters raised questions about the meanings of the terms progressive enhancement and overall quality in the proposed NPS, and whether this would mean that the water quality of some water bodies could be allowed to degrade while that of others are improved, in order that overall quality is enhanced.

[191]     Many submitters questioned the inclusion of the goal that appropriate water bodies reach or exceed a swimmable standard. Some submitters requested that the reference to swimmable either be removed or better defined. Other submitters urged the Board to set the bar higher than ‘swimmability’, commonly requesting that fresh water be improved to drinkable standard. Some submitters also requested that a standard to aspire to should apply to all fresh water, not just those water bodies seen as appropriate.

[192]     Submitters also noted that the link between objectives and policies relating to water quality is not clear, and sought that the NPS include a policy framework that would require that:

  • outstanding freshwater resources be protected;
  • degraded freshwater resources be enhanced or restored (with the exception of those deemed to be ‘naturally degraded’);
  • catchments considered to be ‘at risk’ of degradation be managed, or prioritised for pre-emptive action; and
  • the quality of all other freshwater resources be maintained.

[193]     The Board considers that the NPS should state a national goal of phasing out contamination of fresh water. So progressive enhancement of water quality is necessary. However, with a national goal of phasing out contamination, the Board does not consider it necessary to include a standard such as ‘swimmability’ in objectives or policies of the NPS.

[194]     The Board acknowledges concerns expressed by submitters about reference to overall water quality in the proposed NPS. The Board considers it would be appropriate to include the following objective in the NPS to recognise the need to differentiate between different types of water bodies:

To protect the quality of outstanding fresh water, to enhance the quality of all fresh water contaminated as a result of human activities, and to maintain the quality of all other fresh water.
This objective would also provide the exception sought by many submitters for ‘naturally degraded’ water bodies.

[195]     The suggestion to focus on ‘at risk’ catchments is considered to be an example of good practice when establishing a programme for enhancing and maintaining the quality of fresh water. That level of detail is not needed in the NPS.

[196]     In the same way that the Board indicated that environmental flows and levels could be set progressively, the Board recommends that regional councils could adopt a programme of progressive implementation of defined, time-limited stages that protects or enhances the water quality of all water bodies in a region, with annual public reporting of progress.

Further degradation of water quality

[197]     Many submitters commented on the need to improve water quality and to recognise that water is a finite resource. These submissions have informed the Board’s development of recommended Objective A1. Equally, many submitters protested that the reference in Objective 5 of the proposed NPS to avoiding further degradation of freshwater resources would implement a zero-tolerance threshold for contamination that is not appropriate or consistent with the concept of reasonable mixing contained in the RMA.

[198]     Some submitters saw the capacity of water bodies to assimilate discharges as a ‘value’ that should be provided for. A number of submitters in metropolitan areas urged the Board to look differently at urban streams, with their perceived values for conveyance of stormwater and sewage overflows. Some urged that a ‘polluter pays’ approach should be adopted when existing or potential discharges are being considered, in order to ensure that effects are avoided, remedied or mitigated. Other submitters asked that the NPS make allowance for temporary or short-term effects on water quality as an exception to the requirement to avoid further degradation, based on the perceived minor extent of these effects.

[199]     The Board considers that a change in attitude to, and management of, contamination of fresh water is needed. Fresh water should only be used for cleaning, diluting and disposing of waste if there is a positive assurance that the life-supporting capacity of the water and associated ecosystems, and the potential of the water to meet reasonably foreseeable needs, will not be diminished, and will, where practicable and necessary, be enhanced.

[200]     The RMA entrusts to regional councils a function of making rules to allocate the capacity of water to assimilate a discharge of a contaminant. The concept of assimilative capacity assumes that it is possible to calculate the capability of fresh water to receive contaminated discharges without resulting in adverse effects on the quality of the water, or on ecosystems that it supports.

[201]     However, in many parts of the country, cumulative effects of contaminants discharged into water bodies have resulted in fresh water having unacceptably degraded conditions. That leaves doubt about the soundness of assumptions about assimilative capacity.

[202]     The Board considers that a national policy should not recognise any right to contaminate fresh water, nor to use its supposed assimilative capacity. Nor does it support the concept of ‘polluter pays’ if it implies that a polluter is free to buy or trade off contaminating fresh water in order to gain consent. Compensation for a truly unavoidable effect may be acceptable, but only where there is a causal link between the compensation and the unavoidable effect.

[203]     The Board is not persuaded that differences between streams in urban and rural environments are of such significance that the NPS should differentiate in how they are to be managed. Urban streams still have values, and these need to be sustained. The Board acknowledges the imperative of disposing of stormwater. However, contaminants carried by stormwater can be intercepted and removed before they reach a water body, and progressive enhancements to stormwater systems to do so should be continued.

[204]     The Board also considers that no allowance should be offered by the NPS to either councils or resource users by explicitly allowing temporary or short-term degradation, as this would not be consistent with the national goal of phasing out contamination of fresh water.

Diffuse source discharges

[205]     Submitters urged the Board to ensure that the NPS contains policy to address diffuse source discharges. Most of these submitters considered the proposed NPS does not deal explicitly with diffuse source discharges when considering water quality.

[206]     The objective is that life-supporting capacity, ecosystems processes and indigenous species and their associated ecosystems will be sustained. The Board accepts that this cannot be achieved without accounting fully for all sources of contaminant from natural sources and human activity, including diffuse long-term leaching from deposits on land.

[207]     The Board recommends a general objective of restoring and enhancing the intrinsic values of fresh water; and objectives of protecting, enhancing and maintaining fresh water and of safeguarding its life-supporting capacity. It also recommends policies that include controlling use of land so as to avoid cumulative effects, setting water quality standards, avoiding future contamination, and consent conditions requiring adoption of best practicable options to protect against contamination.

[208]     Although these objectives and policies are not specifically limited to diffuse source discharges of contaminants, they are intended to apply to contamination of fresh water from diffuse sources, including application of pesticides and fertilisers and grazing by livestock. They are also intended to include contamination from discharges to, and deposits onto or into, land, and leaching to groundwater or surface water.

Freshwater quality standards

[209]     Many of the points raised by submitters in relation to environmental flows and levels also applied to the requirement in the proposed NPS that freshwater quality standards be set for all freshwater resources in a region.

[210]     Consistent with the discussion at paragraphs [160] and [162], freshwater quality standards should be set for all water bodies in a region, and for the full range of intrinsic values, rather than just notable values. Where early implementation is not practicable, this work could be carried out progressively as part of a staged programme of implementation.

[211]     There were also requests by submitters for a transitional regime for managing fresh water until quality standards are established. The Board agrees that this would be appropriate. To that end, the Board recommends a transitional policy be included in the NPS for direct insertion into regional plans. The policy would require that any change or increase in the intensity of a land use or activity involving a discharge of contaminants would require resource consent. It would also set assessment criteria for deciding consent applications.

District plan provisions

[212]     Many submitters commented on the provisions of the proposed NPS that require territorial authorities to undertake functions in relation to the management of effects of activities on water quantity and water quality. A number of submitters requested that these provisions be removed, because they do not fall within the scope of territorial authorities’ responsibilities under the RMA.

[213]     As discussed earlier, the Board accepts the points made by these submitters, and considers that references to functions of territorial authorities in the proposed NPS should be amended to ensure that the NPS is consistent with the RMA.

Wetlands

[214]     Some submitters sought that the NPS make provision for wetlands and the indigenous biodiversity of their ecosystems. They asked for a national policy that councils protect wetlands from invasion by, or expansion of, exotic plant and animal species.

[215]     The Board understands that the main issues relating to wetlands are draining and other activities affecting water quantity, and maintaining indigenous biological communities. A healthy functioning wetland provides habitat for essential ecosystem processes.

[216]     The Board accepts that protection of wetlands is a national issue, and that changes in wetland ecosystem processes allow invasive species to become established. To the extent relevant to the subject-matter of the NPS, that is addressed by the recommended objectives and policies. However, invasive species that are pests are managed under the Biosecurity Act 1993, not under the RMA.

Integrated management

[217]     Submitters urged that the NPS provide more fully for the two major aspects of integrated management:

  • the interconnected nature of freshwater resources (e.g. surface water and groundwater) spatially, temporally and within catchments; and
  • adoption by councils of management methods that respond to the nature of the resource and the diversity of effects that can occur.

[218]     Various objectives and policies were suggested by submitters to address these requests on integrated management. Some would relate to connections between natural features, others to interactions between institutions.

[219]     The Board considers that it would be inappropriate for the NPS to require councils to adopt particular institutional arrangements. It would be more pertinent and effective for the NPS to state a policy for integration of the management of effects of activities on water quantity and quality. Incomplete integration in management of these effects is leading to cumulative adverse effects.

[220]     The Board recommends that this issue is addressed by an objective of managing catchments in an integrated manner, as follows:

To improve integrated management of fresh water, associated ecosystems and use of land in whole catchments.

[221]     The Board also recommends the following policy to give effect to this objective:

By every regional council managing fresh water and freshwater ecosystems, and controlling activities and use of land, in whole catchments, so as to avoid adverse cumulative effects anywhere in the catchment.

[222]     The Board considered whether to recommend an integrated management policy for district councils as well. However, the functions conferred on territorial authorities by section 31 of the RMA do not extend to the management of the quantity or quality of fresh water, as those conferred on regional councils by section 30 do. So the Board infers that achieving integrated management of fresh water is a responsibility of regional councils, but not of territorial authorities.

Tāngata whenua roles and Māori values and interests

Involvement in freshwater management

[223]     Many submitters questioned the reference in Objective 8 and Policy 1(d) of the proposed NPS to the involvement of iwi and  hapū in the management of, and decision-making regarding, freshwater resources. As noted in paragraphs [93] and [94], some iwi submitters requested full partnership in management of fresh water, and some requested new management approaches to allow them to more fully give effect to their kaitiaki responsibilities.

[224]     Other submitters were opposed to the increased involvement of iwi and  hapū in decision-making that the proposed NPS would provide for.

[225]     The Board considers that the use of the term involvement in Objective 8 deliberately allows for different approaches to iwi and  hapū roles in the management of fresh water. This reflects the different ways in which involvement currently occurs around the country. The difference in approach reflects different relationships between Māori and local government. The NPS can state the objective of involvement, but should not dictate details of the kind of relationship. The type of relationship is something for the parties to establish, develop and take responsibility for, together.

Iwi and  hapū

[226]     A number of submitters were concerned at the requirement of Objective 8 and Policy 1(d) to involve iwi and  hapū in freshwater management. They pointed out this would change the existing presumption about consultation with tāngata whenua in some parts of the country. Other submitters were concerned this would impose a burden, based on the large number of  hapū within some regions.

[227]     Submitters generally suggested that reference to iwi and  hapū in the proposed NPS be replaced with tāngata whenua. Many asked that tāngata whenua values and interests be defined in the NPS.

[228]     Section 6(e) of the RMA refers to the relationship of Māori with their ancestral lands, waters and sites. By section 2 of the RMA tāngata whenua means ...in relation to a particular area...the iwi, or  hapū, that holds mana whenua over that area.

[229]     Consistent with the Board’s recommendation to use RMA terms (see paragraph [118]), the word Māori should be used instead of iwi and  hapū or tāngata whenua in respect of values; and as generally the term tāngata whenua relates to the people of a specific area, that term would be more appropriate in respect of involvement in management and decision-making.

[230]     The Board considers that a definition of tāngata whenua or Māori values and interests could limit the identification of the values to only those included in the definition. This could restrict the flexibility of the application of the NPS objective around the country.

Identification of values and interests

[231]     Many submitters argued the proposed NPS would not provide clear guidance to regional councils on how tāngata whenua values and interests are to be identified. Current practice was seen by these submitters as meaning that the use of existing RMA provisions would not achieve the intention of the proposed NPS.

[232]     Several of the iwi submitters explained what they expected to see included in a national policy statement on freshwater management for it to be of benefit to Māori. The existing objectives and policies were seen as not being strong enough to protect Māori interests, partly due to the perceived relegation of iwi and  hapū interests and the Treaty partnership.

[233]     Māori and other submitters also urged the Board to address issues relating to fresh water in the coastal marine area.

[234]     Various suggestions were made as to how tāngata whenua values and interests could be identified.

[235]     The Board considers that the NPS should be responsive to different understandings about Māori values in different areas. Although this approach may result in variation of practice, it also respects the diverse relationships between tāngata whenua and local government in different parts of the country.

[236]     Far from relegating iwi and  hapū interests, the NPS expressly provides for the contribution that iwi management plans, statutory acknowledgements and Waitangi Tribunal reports make to decision-making. (The Board acknowledges that Waitangi Tribunal reports are only available for some areas.)

[237]     On the submissions about fresh water in the coastal marine area, the subject-matter of the NPS is management of fresh water. At or near the coast, fresh water mixes with coastal water. The NPS applies to fresh water down to the landward boundary of the coastal marine area established under the RMA. Improvements in the quantity and quality of fresh water flowing into the coastal marine area are likely to have positive effects on coastal waters.

Monitoring and reporting

[238]     Objectives and policies of the proposed NPS would require that regional councils and territorial authorities undertake effective monitoring and reporting of various matters to do with freshwater management. A number of submitters considered that it is unnecessary for the proposed NPS to impose monitoring obligations additional to those required under the RMA, and that the RMA requirements are sufficient in respect of monitoring.

[239]     Concerns were also expressed by submitters about the costs of additional monitoring being imposed by the proposed NPS, and the appropriateness of territorial authorities being required to monitor and report on freshwater management issues.

[240]     By section 35(2)(b) of the RMA, local authorities are required to monitor the efficiency and effectiveness of policy statements and plans. By section 35(2A), local authorities are required to report on the outcome of that monitoring. Other relevant monitoring and reporting sections in the RMA include:

  • section 360(1)(hk) – relating to the Minister’s regulation-making powers in relation to councils supplying information to the Minister
  • section 24(f) – relating to the Minister’s monitoring responsibilities
  • section 27(3) – relating to the supply of information to the Minister.

[241]     The Board considers that it is inappropriate to include a policy in the NPS for local authorities to perform duties already imposed by the RMA. If a legal obligation to monitor and report under the RMA is not being complied with, in future it should be. A policy in the NPS about monitoring and reporting would not make an effective difference to performance of duties imposed by the Act.

[242]     Where costs of monitoring and reporting fall is an administrative matter, and there is no need for a policy in the NPS about it.

Non-regulatory methods

[243]     Some submitters requested that the policy on non-regulatory methods be broadened by including additional detail on non-RMA methods of achieving the objectives of the proposed NPS, and by referring to the methods that central government will employ to give effect to the proposed NPS.

[244]     Other submitters expressed concern about the costs of non-regulatory methods, and requested various restrictions on the policy in the proposed NPS.

[245]     The Board considers that Policy 7 as currently written is not strictly a policy, and therefore need not be included in the NPS recommended by the Board. However, the Board notes that the absence of a policy on using non-regulatory methods does not diminish the desirability of using them.

Implementation

[246]     The Preamble to the proposed NPS states a goal that, by 2035, the quality of fresh water is to meet the aspirations of all New Zealanders. Policies 1, 2 and 3 of the proposed NPS specify that local authorities are to take stipulated actions by prescribed times. A number of submitters questioned those provisions.

[247]     Some submitters argued that the goal of 2035 is too far away, others expressed concern about whether the objectives of the proposed NPS would be able to be achieved within that time. Many submitters requested an extension of the time limit for regional and district planning instruments to give effect to the proposed NPS, particularly the 40-day timeframe for amending regional and district plans. Other submitters requested the time limits be shortened, particularly the two-year time limit for regional policy statement changes to be notified.

[248]     In general, the matter of time limits has been considered in more detail in relation to the specific objectives and policies assessed earlier in this report.

[249]     The Board doubts whether the 2035 date contained in the Preamble to the proposed NPS would have force and effect, as it is not, itself an objective or policy of the proposed NPS. The Board also accepts there are differences in resourcing and in the extent of work that may be required in various regions. Where considerable cost and effort may have to be applied in a region to achieve the objectives of the NPS fully, a progressive implementation programme may be adopted, and progress reported annually.

[250]     On considering the submissions about compliance times, the Board recommends a new policy combining two provisions to give regional councils some flexibility in carrying out the policies, while still setting time limits for full implementation of them.

[251]     Many regional councils will, with determination, be able to implement most policies within a short period of years. Allowing for the local authority election cycle, the Board recommends that policies be implemented by the end of 2014.

[252]     But where a regional council is satisfied that it will not be practicable for it to complete implementation of a policy by the end of 2014 it may, within 18 months, adopt a programme of progressive implementation of defined and time-limited stages, by which the policy would be fully implemented by an extended time limit, no later than the end of 2030. To engage the public in such a protracted programme, its adoption should be publicly notified, and annual progress reports published.

Existing NPS provisions

[253]     To this point of the report, the Board has addressed major topics on which submitters asked for amendments to the proposed NPS. The Board has indicated several provisions which it recommends be replaced. In its terms of reference, the Board has to review the remainder of the proposed NPS to address any potential inconsistencies.

[254]     The Board considers that a preamble can provide a useful introduction to the NPS. It should outline in broad terms the challenges for freshwater management, and state national values, issues and goals. But the Board doubts whether the Preamble to the proposed NPS does that clearly and effectively. It recommends a replacement preamble.

[255]     As discussed in paragraph [135], a purpose statement should only be included if it helps the reader to understand the intention of having the NPS. The purpose statement in the proposed NPS does not do this, and the Board considers that a separate statement of the purpose of the NPS is unnecessary.

[256]     As discussed in paragraph [140], Objective 1 of the proposed NPS focuses on utilising fresh water for human benefit, and does not respond to the main matters of national significance identified. The Board therefore recommends that it be omitted.

[257]     An issue of incompletely integrated management of fresh water was identified in the proposed NPS in Objective 2 and was the subject of some submissions. The Board accepts that the NPS should state an objective on that topic. It stated its recommended objective in paragraph [220].

[258]     As suggested by some submitters the Board recommends that Objective 3 of the proposed NPS be amended to focus on protecting the quality of outstanding fresh water and enhancing the quality of all fresh water contaminated as a result of human activities. As the Board recommends that the national goal with respect to water quality should be to phase out contamination, this would set a more stringent requirement than the reference in Objective 3 to a swimmable standard of water quality. This national goal would also remove the need for Objective 5 of the proposed NPS.

[259]     The Board accepts that the ecological values the subject of Objective 4 of the proposed NPS should be clarified to apply to ecosystem processes and indigenous species and associated ecosystems. The Board also considers that Objective 4 would be clearer if split into two objectives, one relating to water quality and one to water quantity.

[260]     Objectives 6 and 7 of the proposed NPS are considered by the Board to be more in the nature of policies than objectives, and it is therefore recommended that they be omitted. The general intent of both objectives would be met by other objectives and policies that the Board recommends be included in the NPS.

[261]     The Board recommends that Objective 8 is retained in the NPS, with amendments to give effect to comments from submitters.

[262]     As discussed in paragraph [241], the Board does not consider it appropriate to include an objective or policy relating to monitoring and reporting in the NPS, as these are the subject of requirements of the RMA.

[263]     Policies 1(a) to (c) of the proposed NPS address the identification of notable values, and the setting of freshwater quality standards and environmental flows and levels for freshwater resources. The Board sees merit in requiring regional councils to set freshwater quality standards and environmental flows and levels for all bodies of fresh water in their regions (with the exception of environmental flows and levels for ponds and naturally ephemeral water bodies). However, the Board recommends that, when setting freshwater quality standards and environmental flows and levels, all intrinsic values of a particular water body be considered, rather than there being a particular focus on notable values. The Board therefore recommends that Policy 1(b) of the proposed NPS be omitted.

[264]     Policies 1(d) to (f) of the proposed NPS relate to the involvement of iwi and  hapū in management and decision-making in respect of freshwater resources; identifying and recognising tāngata whenua values and interests in those respects. Earlier in this report, the Board addressed submissions on those topics, and stated its conclusions that the NPS should allow for variation in Māori values and interests in different areas, and in the part tāngata whenua have in management and decision-making in respect of fresh water. Therefore, the Board recommends a policy (Policy B1) for achieving the objective (Objective B1).

[265]     Policy 1(g) of the proposed NPS relates to restricting certain activities in times of low flow in order to sustain notable values and certain tāngata whenua values and interests. The Board recommends a revised version of the policy that recognises the limits on permissible restrictions on existing consents, and broadens the scope of the purposes for which restrictions might be imposed.

[266]     Policies 1(h) and 1(j) of the proposed NPS are directed towards integrated management. The Board recommends a clearer policy on that topic.

[267]     As discussed at paragraph [24], the Board considers that a national policy statement may need to place emphasis on particular elements of sustainable management. It has determined that the emphasis of the NPS should be on the sustaining and safeguarding elements of section 5(2) of the Act. In this context, the Board considers that the matters covered in Policy 1(i) of the proposed NPS are more appropriately addressed in a policy that requires regional councils to manage demand for fresh water so that water bodies are not over-allocated.

[268]     Policy 2(a) of the proposed NPS applies to regional councils changing regional plans to set freshwater quality standards and environmental flows and levels. By Policies D2 and E1 the recommended NPS would do so.

[269]     Policy 2(c) of the proposed NPS outlines various requirements for regional councils to impose consent conditions. While the Board agrees that efficient use of water, sustainable management of demand, integrated management of the effects of activities on water quality and quantity, and protection against contamination of water quality are important matters for the NPS, the Board prefers simpler and more direct policies. As discussed at paragraphs [241] and [262], the Board considers that the NPS should rely on the RMA provisions for monitoring and reporting, rather than restating those duties as policies.

[270]     Policy 3 of the proposed NPS would impose requirements on territorial authorities that would be outside their functions under section 31 of the RMA. The policy should therefore be omitted.

[271]     The Board considers that Policies 4 and 5 of the proposed NPS (which outline matters to be considered by councils in the preparation of planning documents) do not add significant value to the contents of the proposed NPS. Regional councils are required to recognise a national policy statement by making amendments to their planning documents. The objectives and policies that the Board recommends for inclusion in the NPS cover, to the extent the Board considers appropriate, the matters contained in Policies 4 and 5.

[272]     Policy 6 of the proposed NPS relates to consent and designation conditions. The substance of that is included in Policies C1, D7, D8, E2 and E3 of the recommended NPS.

[273]     Policy 7 of the proposed NPS about the use of non-regulatory methods is not a policy. Therefore, the Board recommends that it be omitted.

[274]     Policies 8 and 9 of the proposed NPS repeat duties that are imposed by the RMA and the Board considers that unnecessary and recommends they be omitted.

[275]     Following omission of objectives and policies using them, the Board recommends omission of definitions used in the proposed NPS.

Endnotes

22.Auckland Regional Council v North Shore City Council [1995] 3 NZLR 18, 22f; [1995] NZRMA 424, 430; 1B ELRNZ 426, 433.

23.Fleetwing Farms v Marlborough District Council [1997] 3 NZLR 257, 264 (CA) and Central Plains Water Trust v Synlait [2009] NZCA 609 (CA).

24.Aoraki Water Trust v Meridian Energy [2005] 2 NZLR 268; [2005] NZRMA 251; 11 ELRNZ 207 (FC).

25. RMA, s30(1)(fa).

26. RMA, s30(4)(e).