Freshwater reforms confirmed

The Government’s Essential Freshwater work programme seeks to restore and protect freshwater bodies throughout New Zealand, and has been a focus of debate for several years. The outcomes of this programme have now been confirmed, with the following legislative and policy changes being passed into law:

• • Resource Management Amendment Act 2020 (RMAA 2020)
  • National Policy Statement for Freshwater Management 2020 (NPS-FM 2020)
  • National Environment Standards for Freshwater 2020 (NES-FW)
  • Stock Exclusion Regulations, and
  • Measurement and Reporting of Water Takes Regulations

Controls on farming activities

NES-FW

The NES-FW introduces a number of new standards that apply to farmers, including:

• resource consent requirements for intensification of land use, until the end of 2024 – for example increasing irrigation by more than 10 hectares on a dairy farm, converting land to dairy, or increasing forage cropping above the highest annual amount between 2014/15 and 2018/19. The standard does not apply to commercial vegetable growing and horticultural crops. These regulations will only apply until the end of 2024.
• controls or resource consent requirements for winter grazing on forage crops – winter grazing will be permitted where the area grazed is less than 50 ha or 10% of the property (whichever is the greater), land slope is less than 10 degrees, and conditions relating to setbacks from waterways, depth of pugging and re-sowing are met. These standards apply from 1 May 2021.
• minimum standards or resource consent requirements for stock holding pads – minimum standards relate to the permeability of the base area; collection, storage and disposal of effluent; and setbacks from waterbodies. Where standards are not met resource consent will be required from 1 July 2021.
• resource consent requirements for feedlots – feedlots will require resource consent, and will be required to address compliance with the stock-holding standards referred to above.
• a cap on synthetic nitrogen fertiliser use – all pastoral farmers are required to keep synthetic nitrogen use below 190kgN/ha/year. In addition, dairy farmers will be required to report on levels of nitrogen fertiliser use to their regional council. The cap will be reviewed in 2023 to consider whether the amount should be adjusted.

Unless otherwise prescribed in the NES-FW, the standards will take effect from 3 September 2020. Activities which were lawfully established prior to the NES-FW can continue, provided an application for resource consent is made within six months of the NES-FW taking effect. In some cases, activities which already hold consent may continue to rely on that consent until its expiry. Farmers should obtain advice specific to their circumstances when determining whether consent is required.

The NES-FW also provides that regional plans may contain more stringent requirements – so in some cases there may be dual consent requirements under both the NES-FW and relevant regional plan.

Regulations

The Regulations impose the following additional requirements:

• Stock Exclusion – generally requiring a three metre setback from waterbodies with a width of greater than one metre, although exemptions apply in some circumstances, including for sheep and most low intensity hill country farming. Deadlines for compliance are staggered depending on factors including stock type, feed and land slope, and range from 1 July 2023 to 1 July 2025. Existing permanent fences (as defined) will not have to be moved to comply with the setback distances.
• Measurement and Reporting of Water Takes – requirements apply to takes of more than 5 litres/second, with timeframes for compliance staggered from two to six years depending on volume of the take. In most cases the system will need to measure water use every 15 minutes and provide electronic records to the regional council daily.

Freshwater planning

NPS-FM 2020

The NPS-FM 2020 sets national policy direction that regional councils must adhere to when preparing regional policy statements and plans, replacing previous versions of the NPS-FM. Key changes include:

• a strengthened requirement to “give effect to” Te Mana o Te Wai, prioritising the health and wellbeing of water bodies, then the essential needs of people, followed by other uses;
• a requirement to improve degraded waterbodies, and maintain or improve all others using the national objectives framework;
• an expanded national objectives framework, including new compulsory values (threatened species and mahinga kai), and attributes relating to ecosystem health, to be managed through regional plans. More stringent national bottom lines now apply for ammonia and nitrate toxicity, although notably no bottom lines have been introduced for Dissolved Inorganic Nitrogen (DIN) or Dissolved Reactive Phosphorus (DRP). New requirements are included for freshwater monitoring and response to any degradation identified.
• specific requirements to avoid loss or degradation of wetlands and rivers, and maintain or improve fish passage.

RMA Amendments for faster freshwater planning

Regional councils are required to notify new or varied regional policy statements and plans, to give effect to the NPS-FM by December 2024. Final decisions must be  made by 2026 (or 2027 where an extension is granted). All freshwater plans will now be heard by a freshwater hearings panel. The panel can make recommendations beyond the scope of submissions and appeal rights are limited.

Freshwater Farm Plans

The RMAA 2020 also introduces the ability to require farms of a certain size (20ha for arable and pastoral farms, 5ha for horticultural land use) to have certified freshwater farm plans (FFP). The FFP must specify how adverse effects on freshwater and the ecosystem are to be avoided, remedied, or mitigated. FFPs will be audited and compliance monitored.
These requirements will only apply to areas as specified in an Order in Council, based on recommendations from the
Minister for Environment. In many regions farm plans are already required by the regional plan, and FFP requirements are unlikely to be applied.

Compliance and involvement in future planning processes

As with most new regulations, there will be intricacies in applying the rules to the particular circumstances of some farms. We encourage farmers to undertake a detailed review of applicable requirements and take advice where required to ensure compliance. We also recommend farmers participate in relevant regional planning processes, particularly given that these will be more fast paced going forward, with the potential for changes during the process, and limitations on appeal rights.

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