Wetland provisions poised to evolve

Topics covered in this article: RMA, RMA & Local Government

Rachael Zame

Senior Associate

Senior Associate

Phone: +64 7 927 0522
Email: rzame@clmlaw.co.nz

LinkedIn

Bachelor of Laws, Bachelor of Science, University of Otago 

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Jemma Hollis

Law Clerk

Law Clerk

Phone: +64 7 927 0528
Email: jhollis@clmlaw.co.nz

Bachelor of Laws Hons (1st class); Bachelor of Science

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An estimated 90% of New Zealand’s wetlands have disappeared as a result of human activities, with degradation continuing today. However, the 2020 measures introduced to combat wetland loss have been roundly criticised by environmental groups, developers, and industry alike, as being difficult to apply (or being applied inconsistently across the country) and inadvertently capturing areas not intended to be captured by the regulations. Now, the Government is looking to address some of the issues with the standards which have been creating headaches across the board.

The Issue
Central to the National Environmental Standards for Freshwater Regulations 2020 (NES-F) was the introduction of new controls on activities within ‘natural wetlands’. A consenting pathway was provided for a narrow range of activities (including wetland restoration and sphagnum moss harvesting). A prohibited activity status, meaning no consent application could be made and no consent granted, was given for other activities including any earthworks or use of water within a natural wetland that would, or would likely, result in drainage of all or part of the wetland.

The definition of a ‘natural wetland’ was:

Permanently or intermittently wet areas, shallow water, and land water margins that support a natural ecosystem of plants and animals that are adapted to wet conditions, and is not:
(a)  a wetland constructed by artificial means; or
(b)  a geothermal wetland; or
(c)  any area of improved pasture that, at the commencement date, is dominated by (that is more  than 50% of) exotic pasture species and is subject to temporary rain derived water pooling.

This broad definition captured some areas not previously considered to be a ‘natural wetland’, including some areas with limited actual wetland values, particularly due to the framing of the third ‘exemption’ in paragraph (c) of the definition relating to ‘improved pasture’.  This has meant that some heavily modified, exotic pasture dominated areas have been captured, although that was not the intention of paragraph (c).  This has had unintended consequences, such as restricting changes in land use and development in some areas.

The Flat Top Quarry expansion is a notable example of the complications associated with the new provisions. Operating in Kaukapakapa since the 1940s, the quarry had its application to expand into a field used for grazing returned by Auckland Council, as part of the field now fell within the definition of a ‘natural wetland’ because of the wording of the ‘improved pasture’ exemption.

Conservationists have also encountered challenges in doing their work under the NES-F. Although ‘restoration’ is permitted to occur, the definition does not include key ‘maintenance’ and ‘biosecurity’ functions, including implementation of regional and national pest management plans. As a result there is no provision for these activities to be undertaken in ‘natural wetlands’ at present.

The solution
As a result of feedback from all sectors, the Government is proposing to amend the NES-F, and has released discussion documents for comment  by the end of October 2021.

A key change is the introduction of a discretionary activity consenting pathway for quarrying, landfills, cleanfills, mining, and urban development occurring within or within 100m of a ‘natural wetland’. Further, changes to the ‘natural wetland’ definition will be made to acknowledge that wet pasture areas which once were wetlands are now highly modified environments and should not be captured by the provisions.

For mining activities, the Government is also seeking feedback on whether additional restrictions should be placed on the provision for  these activities, for example only providing a consenting pathway  for minerals required for projects of national significance, and which are not fossil fuels, or requiring additional conditions around offsetting.

The consenting pathway for urban development is proposed to be expanded to allow ‘plan-enabled’ development to occur. The term ‘plan-enabled’ is borrowed from the National Policy Statement on Urban Development 2020, and encompasses land which is zoned for urban purposes in an operative or proposed city or district plan, or a future strategy. 

In addition, the changes propose to remove barriers to conservation work, including existing notification and consenting requirements. They also propose to provide for maintenance and biosecurity work  and the implementation of regional or national pest management plans, and to relax restrictions on the management of exotic species and weeds.

How can you be involved?
These changes will be of interest to a broad range of groups, including councils, farmers, industry, developers and conservationists. The full discussion document can be found here.

Submissions are due by 27 October 2021. If you need help preparing a submission or have any questions, please contact our Resource Management team.

 

 

Latest Update: 17 September 2021