Last month we provided an overview of the challenges faced by operators navigating the regulations in the National Environmental Standards for Freshwater (NES-F). The challenges that we addressed in applying the regulations included:
- determining whether a wetland is natural or artificial;
- determining whether a wetland is natural or improved pasture; and
- navigating the limited consent pathways provided in the NES-F for primary production businesses.
In response to the concerns of submitters on the above challenges the Ministry for the Environment has released the Essential Freshwater Amendments – Report, recommendations and summary of submissions[1] (Freshwater Amendment Report) and associated exposure draft of amendments to the NES-F and the National Policy Statement for Freshwater Management (NPS-FM), which recommend a host of amendments to the wetland regulations.
Wetlands constructed by artificial means and induced wetlands
A key issue for landowners arising from the wetland regulations is uncertainty in determining whether a wetland is an artificial wetland and exempt from regulation or whether they are induced wetlands, captured by the regulations.
It has been recommended that the definition of artificial wetland is amended and that induced wetlands is given a definition. The proposed definitions are:
natural wetland means a wetland (as defined in the Act) that is not:
(a) a deliberately constructed wetland other than a wetland constructed to offset impacts on, or to restore an existing or former natural wetland as part of giving effect to the effects management hierarchy.[2]
induced wetlands are wetlands that have resulted from any human activity, except the deliberate construction of a wetland or waterbody by artificial means.
The definitions proposed are likely to give some more certainty to landowners and operators. However, the definitions do not address the issues that we raised in our previous article with the distinction between deliberately created wetlands and induced wetlands. We consider that landowners and operators may still face issues in providing evidence that a wetland was constructed deliberately (rather than as an unintentional consequence of human activity) and different Council’s may still apply different standards to the level of maintenance required for a wetland to meet the definition of a deliberately constructed wetland.
Amendment to improved pasture exception
The improved pasture exclusion to the definition of natural wetlands has also proved to be problematic, as the definition has been complicated to apply in practice. In an attempt to address these issues, part (c) of the definition of natural wetland is now recommended to be amended to read:
natural wetland means a wetland (as defined in the Act) that is not […]:
(d) a wetland that:
(i) is within an area of pasture; and
(ii) has ground cover comprising more than 50% exotic pasture species (as identified in the National List of Exotic Pasture Species (see clause 1.8)); and […]
The key amendments are the removal of the word ‘improved’ as well as deleting the reference to temporary rain derived pooling. The Freshwater Amendment Report also recommends a list of exotic pasture species and species associated with pasture be incorporated into the NPS-FM.
We consider this proposed amended definition would be simpler to apply and that the proposed list of species will give more certainty to landowners and operators as to whether the exclusion will apply.
Consent pathways
The Freshwater Amendment Report proposes that consent pathways will be widened to include:
- landfill, cleanfills and managed fills;
- mining and quarrying subject to limitations placed on coal mining; and
- urban development.
The additional consent pathways enable certain activities related to the above land uses as discretionary activities. The ability to grant consent will be restricted based on specific policy gateway tests proposed in the NPS-FM for the specific activity.
It is proposed that there be a discretionary pathway for mining but that this will not extend to ‘mining operations.’ It is proposed that disposal, storage, deposit and treatment of overburden will be enabled by way of the consent pathways for clean and managed fill.
Further, there will be additional controls in relation to mining of thermal coal, which is proposed to only be provided for until 2030. It is proposed that mining of coking coal used in the production of iron and steel will be provided for past 2030.
Next steps
The Ministry for the Environment seeks submissions on the exposure draft by 10 July 2022.
The Minster for the Environment will then undertake an evaluation of these recommendations and submissions on the exposure draft, with decisions on the proposed amendments expected at the end of 2022.
We are available to assist clients on the submissions process or to navigate any of these issues arising out of the regulations and proposed amendments. If you have any questions or would like to discuss, please contact our Resource Management team.
[1] Ministry for the Environment 2022. Essential Freshwater Amendments: Report recommendations and summary of submissions: Managing our wetlands: Proposed changes to the wetlands regulations. Wellington: Ministry for the Environment.
[2] This definition is given in the exposure draft however, it differs from the definition given in the guidance which states: ‘Wetlands constructed by artificial means’ includes wetlands and waterbodies that have been deliberately constructed for a specific purpose (e.g. stock drinking) and that may require maintenance over time (for example, vegetation or silt removal) to continue to fulfil that purpose. This includes areas of wetland habitat that have formed in or around any deliberately constructed waterbody.
