Resource Management (Freshwater and Other Matters) Amendment Bill passes – with controversial last-minute amendment

The Resource Management (Freshwater and Other Matters) Amendment Bill was passed by parliament today – but not before a last-minute amendment to stop regional councils implementing plans to give effect to the National Policy Statement for Freshwater Management (NPS-FM)

The Resource Management (Freshwater and Other Matters) Amendment Bill (the Bill), designed to reduce regulatory burden, was controversial upon introduction – for excluding the application of Te Mana o Te Wai to consent applications, aligning the consenting pathway for coal mining with other mineral extraction, removing requirements relating to stock exclusion and winter grazing, and delaying implementation of the National Policy Statement for Indigenous Biodiversity. Read our article here.

The Government then announced that rapid changes would be made to section 107 of the Resource Management Act 1991 (RMA) (relating to when councils must not grant consent to discharges) in response to High Court decision in Environmental Law Initiative v Canterbury Regional Council (which has been appealed to the Court of Appeal). The Primary Production Select Committee recommended those amendments be incorporated in the Bill.

Further changes to section 70, in response to the High Court decision in Federated Farmers Southland Inc v Southland Regional Council, are coming, but not yet. Those amendments are intended to provide certainty on diffuse discharge rules for primary producers and councils, and enable permitted discharges to be managed in a practical way.

But one further eleventh-hour amendment was made to the Bill during the Committee of the Whole House stage, before the Bill was read for a third time and passed into law last night.

That amendment precludes a regional council notifying a freshwater planning instrument, if its purpose is to give effect to the NPS-FM), earlier than the sooner of:

• the date on which a new NPS-FM (replacing the NPS-FM 2020) is published; or
• 31 December 2025.

Exemptions from the Minister are available – targeted at whether the planning instrument is required for other specified reasons – including flood protection/ remediation, mitigation of natural hazard risk, progression of housing developments, and the provision or maintenance of certain infrastructure or municipal water supply, stormwater or wastewater.

While legislation does not ordinarily come into force until the day after Royal Assent, these provisions are of retrospective application – they apply from 22 October 2024.

The amendment is intended to provide clarity to farmers and align planning efforts with national direction. Its retrospective application, appears to be in response to an item on the agenda of the Otago Regional Council (ORC) to consider notifying the draft proposed Otago Land and Water Regional Plan, despite the Government clearly signaling that a replacement NPS-FM will be introduced in 2025. That agenda item was withdrawn by the Chief Executive and was not considered at the council meeting.

Want to know more?

If you have any questions about RM Reform, including fast-track or freshwater-related matters, please contact our specialist Resource Management team.

PDF version here.