The National Environmental Standards for Freshwater (NES-F) and the National Policy Statement for Freshwater Management (NPS-FM) came into force on 3 September 2020.
In an effort to protect natural wetland extent and values across New Zealand, the NPS-FM and NES-F seek to control activities in and around natural wetlands.
The new regulations have been in force for just over 18 months. However, there have been challenges in applying them.
The challenges include:
- determining whether a wetland is natural or artificial;
- determining whether a wetland is natural or is improved pasture; and
- that the consent pathways provided in the NES-F are too restricted with primary production industry businesses.
This article explores the above challenges and explains the changes that the New Zealand Government is looking at making to address them.
Is it an artificial or an induced wetland?
A key issue experienced by landowners has been determining whether a wetland is constructed by artificial means. An artificial wetland is excluded from the definition of Natural Wetland in the NPS-FM.[1] Therefore, it is not regulated by the NES-F.
The Ministry for the Environment (MfE) released guidance to provide clarity on the exception for artificial wetlands. The MfE guidance states:
- The exception applies to waterbodies that have been deliberately constructed for a specific purpose.
- Wetlands that have been unintentionally induced as a consequence of human activities are not artificial and are instead classified as induced wetlands. Induced wetlands are natural wetland and regulated by the NES-F.
There is potential for uncertainty when determining whether a wetland was created for a specific purpose (artificial wetland) or was unintentionally induced by human activities (induced wetland).
Councils may require specific evidence of the purpose that the arterial wetland was created before works in the waterbody are allowed. The MfE guidance further suggested that the artificial exclusion is based on whether the wetland requires maintenance over time to continue to fulfil its purpose. MfE suggests that Councils are required to undertake case-by-case assessments to determine whether maintenance has been occurring.
The distinction between and induced and artificial wetland may become problematic when a wetland has been present on a site for many years with little information known about its origin. Landowners may find it difficult to provide evidence that there was a deliberate purpose for the waterbody at the outset and may not have been gathering evidence as to maintenance of it. Properties may have also changed hands resulting in varied maintenance practices.
The suggestion that Councils take a case by case approach to considering the maintenance of a wetland also poses possible uncertainty for landowners. The case by case approach leaves room for different standards taken by Councils across the country.
At this stage, the Government has not proposed amendments to provide clarity regarding the artificial wetland exception.
Improved pasture exclusion
The NPS-FM also contains a pasture exclusion to natural wetlands. The definition of natural wetland excludes areas that meet the following definition:
“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.”
The NPS-FM does not provide further guidance on how to determine whether an area fits this exclusion. The definition has provided overly complicated to apply.
A recent Environment Court case, Greater Wellington Regional Council v Adams [2022] NZEnvC 25 highlights the difficulties in applying this exclusion. The case concerned an application for enforcement orders by the Regional Council relating to a 12-lot rural residential subdivision. A key issue for the Court was whether the site qualified as a natural wetland and whether the improved pasture exclusion applied.
Ultimately, the Court held that the site met the pasture exclusion provision and did not constitute a natural wetland because:
- the predominant species on the site were pasture species with an average pasture species coverage of 83.6%, well above the 50% threshold required by the NPS-FM; and
- water pooling had been observed on the surface of the site.
In particular, the Court expressed that it had difficulty in determining the meaning of the temporary rain derived water pooling limb of the pasture exclusion. However, it ultimately held that it had enough reason to find that the site was improved pasture.
The Government has acknowledged the issues with the pasture exclusion provision in the discussion document ‘Managing our wetlands’ prepared by MfE and published in September 2021 (Discussion Document). In response to feedback from various stakeholders the Government has proposed to amend the pasture exclusion in the NPS-FM definition of natural wetland to:
“Any area of pasture that has more than 50 percent ground cover comprising exotic pasture species or exotic species associated with pasture.”
The proposed amendment to the pasture exclusion provision clarifies the meaning of the exclusion as it:
- removes the reference to ‘temporary rain derived water pooling’, which was uncertain; and
- simplifies the definition to make it clear that what is required is more than 50 percent ground cover in exotic species at the time a particular activity takes place.
Consent pathways
The NES-F provides a narrow consenting pathway for activities in natural wetlands such as wetland restoration and the construction and maintenance of wetland utility structures. For all other activities, an application to carry out earthworks in a natural wetland is unconsentable due to the prohibited activity status.
It has now become clear that the consent pathways provided in the NES-F are too restricted with primary production industry businesses such as quarries facing unconsentable projects.
The Government has recognised this in the Discussion Document and has proposed a new discretionary activity status consenting pathway in the NPS-FM and NES-F for the following activities within, or within 100 metres of a natural wetland:
- Landfill, cleanfills and managed fills.
- Mining (minerals), We note that it has not been determined whether the proposed consenting pathway will provide for the mining of fossil fuels.
- Urban development.
Public consultation on the proposed amendments in the Discussion Document closed on 27 October 2021. MfE will now report back to the Government on the submissions received and develop final policy advice that considers these submissions. We understand that decisions on the proposed amendments to the NES-F are expected by the end of 2022.
We are available to assist clients to navigate any of these or other 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] Unless it was constructed to offset impacts on, or restore, an existing or former natural wetland.
