Freshwater Reforms Discussion Document11 Mar 2013 |
On 9 March 2013 Environment Minister Amy Adams and Minister for Primary Industries Nathan Guy released the Government’s approach to reforming freshwater management; Freshwater reform 2013 and beyond with a speech at the Bluegreens Forum. The water reform package proposed for 2013 sets out short and medium-term reforms in the following foundation areas:
- Water planning – planning as a community;
- Setting of freshwater objectives – through a National Objectives Framework; and
- Setting of freshwater limits – by managing within quantity and quality limits.
The changes to the freshwater management system are proposed to unfold over the next few years and are expected to ‘take a generation to fully bed in’. Several of the proposals overlap with those contained in the discussion document Improving our Resource Management System released by the Government on 28 February.
Planning as a community
The Government proposes to immediately implement an optional collaborative planning process. It is acknowledged in the document that collaboration is already occurring successfully at regional and national levels but these reforms are described as a new approach to planning and decision-making processes. Councils will have the choice to use either the existing process (Schedule 1 RMA) or the proposed new collaborative planning model.
If the new collaborative model is chosen, councils will have to comply with requirements relating to:
- Partnering with iwi from the beginning of the process (to enable iwi and councils to shape the nature of their relationship to suit local needs before decisions are made);
- Appointment of at least one collaborative stakeholder group;
- Giving public notice of the proposed methods of engagement with the wider community, the nature of advice sought from stakeholder groups, timeframes and deadlines for processes and what to do if collaboration breaks down;
- Use of an independent hearings panel that has power to run mediations and allow cross-examination.
A decision by a council whose process complies with all the above requirements will then be subject to very limited appeal rights. Environment Court appeal rights will be restricted to points on which a council deviates from the recommendations of the hearings panel. Otherwise, rights of appeal will be restricted to the High Court on points of law.
The new collaborative planning model is intended to facilitate inclusive community discussion early in the process and the gathering of robust information rather than legal action and conflict. The next step in reform consists of the Government providing national guidance on implementing the collaborative process.
National Objectives Framework
The Government intends to make consequential changes to the National Policy Statement and/or other regulation-making powers to facilitate a National Objectives Framework along with consequential amendments to section 69 and Schedule 3 of the RMA.
The Framework will have a standard list of possible values, such as swimming, fishing or irrigating and set the minimum standards for those values, similar to how section 69 and Schedule 3 are currently intended to work, but potentially more comprehensive. The discussion document envisages that the local community will consider which values from the framework are relevant for a particular freshwater body and what standards will therefore apply. A subset of values will apply nationally to all water bodies – these are ecosystem health and general protection for indigenous species and human health for secondary contact.
The Framework will not detail every value and water body type immediately but will be populated progressively over time as information becomes available. To implement the Framework it is intended to change section 69, which deals with rules about water quality, and remove Schedule 3, which lists water quality classes and corresponding standards, from the RMA. The next step after the current reforms is to provide guidance and regulation to set clear national expectations and support limit setting under the Framework.
Additionally, the Government is floating potential changes to the current process for Water Conservation Orders. Potential changes include providing clear circumstances in which the responsible Minister might refer an application to a regional council or unitary authority instead of the current Special Tribunal process. For example, if a regional council advises that the matters the WCO application covers are being (or will be) considered through a regional planning process, the Minister may have the discretion to request the regional council process the application rather than it being done at a national level. Other changes may include using a Board of Inquiry with appeals on points of law only, rather than the current Special Tribunal/Environment Court two-step process. It is also proposed to amend the Act so that scope for a WCO is established at the beginning to prevent changes to that scope once consideration is underway.
Managing within quantity and quality limits
The discussion document includes several proposals to amend the system for managing water quantity and freshwater quality. The proposals for managing water quantity are to ensure that councils can obtain the information needed for freshwater accounting systems, to account for all freshwater takes to improve the efficiency of water use, and provide guidance on the specification of permits such as ensuring permit durations are not unnecessarily short.
Amendments are proposed to the National Policy Statement for Freshwater Management to make it clear that councils are required to set allocation limits covering all water takes, which will identify the amount of water available for allocation. The next step of reforms for water quantity will address over-allocation, unauthorised takes, managing takes that do not require water permits, compliance and enforcement.
The reform proposals for managing water quality are intended to strengthen the science, research, knowledge and information; government leadership; and the development of good management practice toolkits. Once these measures are in place they will be monitored and assessed and further measures will be considered.
The resolution of rights and interests related to other aspects of freshwater management interests will run alongside further reforms, built on these foundations over the coming years. Additionally, the Government expressly states that it remains committed to recognising Māori rights and interests in water and will weave in further reforms through different aspects of the reform process.
The Government is seeking comments on these proposed freshwater reforms. The closing date to submit comments is 8 April 2013. The discussion document indicates that decisions are expected to be made in mid-2013 and lead to the passage of a Resource Management Bill by the end of 2013.
Contact our specialist lawyers for further information: