By: Alyssa Langford, Mike Doesburg, Emmalene Lake
The National Policy Statement for Freshwater Management 2020 (NPS-FM) and the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (NES-F) were introduced in August 2020 as part of the government’s Essential Freshwater regulatory package.  A key focus of Essential Freshwater is preventing further loss or degradation of ‘natural wetlands’.

The ‘natural wetlands’ provisions in the NPS-FM and NES-F have caused considerable issues throughout the country as councils, applicants and other stakeholders have struggled with their implementation.  For example, there have been well-reported concerns from the quarrying sector about effective prohibition of existing quarry expansion.  The ‘improved pasture’ exclusion in the definition of ‘natural wetland’ has also caused difficulties in distinguishing between ‘natural wetlands’ and soggy paddocks.

As a result of this feedback, the government has released a discussion document which sets out proposed changes to the NPS-FM and NES-F and is seeking feedback from the public. 

In summary, the proposed changes include:
 
  1. Changes to the definition of ‘natural wetland’ – the current definition in the NPS-FM is problematic to apply and captures some heavily modified, exotic pasture-dominated wetlands even though part (c) of the definition seeks to exclude those areas.  The proposed changes to the definition are[1]:

natural wetland means a wetland (as defined in the Act) that is not:
  1. a wetland constructed by artificial means (unless it was constructed to offset impacts on, or restore, an existing or former natural wetland); or
  2. a geothermal wetland; or
  3. any area of improved pasture that, at the commencement date, is dominated by (that is more than 50% of) has more than 50 percent ground cover comprising exotic pasture species or exotic species associated with pasture and is subject to temporary rain derived water pooling.

The revised definition is intended to better reflect the original intent that wet pasture areas are highly modified environments and should be able to continue their current use or be able to change their land use, even if they were once ‘natural wetlands’.
 
  1. Changes to better enable ‘natural wetland’ restoration, maintenance and biosecurity work – the current regulations restrict the ability of groups to restore and maintain ‘natural wetlands’ and undertake biosecurity activities, which was not the intention of the regulations.  Several changes are proposed to address this issue, including:
    • The inclusion of “maintenance” within the regulations relating to restoration
    • Amendments to the regulations relating to restoration and maintenance activities, so that removal of exotic species is permitted regardless of the size of the area treated
    • Allowing activities necessary for implementing a regional or national pest management plan, or those undertaken by a biosecurity agency for biosecurity purposes, but with restrictions such as ensuring that the general conditions in Regulation 55 are met
    • Making the restoration and maintenance of a natural wetland a permitted activity if it is undertaken in accordance with a council-approved wetland management strategy
    • Making weed clearance using hand-held tools a permitted activity
 
  1. Proposals for additional consent pathways – Government has received feedback that there are additional activities that require consenting pathways in the regulations.  A new discretionary activity status consenting pathway is proposed for the following activities within, or within 100 metres of, a natural wetland:
    • Quarrying
    • Landfill, cleanfills and managed fills
    • Mining (minerals)
    • Urban development

These additional activities would be subject to the same gateway test that is already provided for by ‘specified infrastructure’ in the NES-F.  This will mean that:
  1. The activity must be of significant national or regional benefit
  2. There must be a ‘functional need’ for that activity in that location
  3. Adverse effects must be managed through the ‘effects management hierarchy’ (set out in the NPS-FM)

In our view, the proposed changes appear to improve the workability of the NES-F and should address some of the concerns raised, while still ensuring that ‘natural wetlands’ are protected. How effective in practice the changes will be remains to be seen as they are tested throughout the country in a wide variety of wetland environments.  

We are also aware of other difficulties with the NES-F that have not been addressed in this proposed package.  For example, the restriction on any taking, using, damming and diverting water within 100m of a ‘natural wetland’ is triggering non-complying consent requirements for existing minor water takes or discharges that would otherwise be permitted.  We are hopeful that we will continue to see further refinement of the regulations as the government works through other issues and feedback.

Feedback on the proposed changes is due by 27 October 2021.

Further details of the proposed changes can be viewed on the Ministry for the Environment website: https://environment.govt.nz/publications/managing-our-wetlands-discussion-document/

If you would like to discuss the proposed changes to the NPS-FM and NES-F, or would like assistance preparing feedback, please contact a member of our Resource Management and Environmental Law team.
 
[1] Ministry for the Environment. 2021. Managing our wetlands: A discussion document on proposed changes to the wetland regulations. Wellington: Ministry for the Environment.
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