National Environmental Standards for Freshwater

Some of the rules to be applied in order to the meet the NPSFM 2020’s objectives and policies and those set in regional plans through the National Objectives Framework process and under parts of the NPSFM 2020, are set out in the National Environmental Standards for Freshwater(NESF). ⁵¹⁹⁵

The NESF came into force on 3 September 2020 but some sections take effect at a later date. 

The NESF sets requirements for carrying out certain activities identified as posing risks to the health of freshwater and freshwater ecosystems.  Anyone seeking to undertake those activities will need to seek consent under the NESF, ⁵¹⁹⁶ as well as under any relevant rules under the applicable regional and district plan.  In Waka Kotahi NZ Transport Agency v Manawatū-Wanganui Regional Council ⁵¹⁹⁷ the Environment Court was clear that it is not lawful to grant consent under the NESF for an activity for which an application for resource consent was lodged prior to the NESF coming into force. ⁵¹⁹⁸   This was because the application documents would not have assessed the proposal against the specific requirements of the NESF. ⁵¹⁹⁹

The NESF’s controls relate only to the functions of regional councils (not to those of territorial authorities) and so replace equivalent rules in regional plans not district plans.  The NESF is expressly stated to be “subject to” the National Environmental Standards for Plantation Forestry.  Where the NESPF and the NESF conflict or overlap, the relevant provisions of the NES-PF will prevail over those in the NESF. Prevail over means the relevant performance standards, permissions, activity status, or conditions of the NES-PF apply, and those in the NESF do not. ⁵²⁰⁰

Exactly what this means is not specified, but it is likely to be interpreted to mean that if a specific activity is regulated under both the National Environmental Standards for Plantation Forestry and the NESF, the rule in the National Environmental Standards for Plantation Forestry applies.

According to the Ministry for the Environment, the NESF is designed to:

• protect existing natural inland and coastal wetlands
• protect urban and rural streams from in-filling
• ensure connectivity of fish habitat (fish passage)
• set minimum requirements for feedlots and other stockholding areas
• improve poor practice intensive winter grazing of forage crops
• restrict further agricultural intensification until the end of 2024
• limit the discharge of synthetic nitrogen fertiliser to land, and require reporting of fertiliser use

The general approach of the NESF is to:

• Set permitted activity conditions for each of the activities to which it relates, and then to provide for a resource consent to be required if the particular activity sought to be undertaken cannot meet those conditions.  In respect of some activities, the NESF includes specific direction to decision-makers about when resource consent can be granted and when it cannot, and in respect of others it lists specific factors decision makers must consider when assessing a resource consent application. 
• Control both the land use aspect and this discharge aspect of each activity in different subsections.  For example, under regulation 9 clause (1) the use of land for holding cattle in a feed lot is a permitted activity provided specified conditions are met and under clause (2) specific discharges of contaminants are permitted provided specified conditions are met. 
• A freshwater farm plan approach is taken in respect of a number activities.  Where this applies, the activity is permitted if it is being undertaken in accordance with a freshwater farm plan.  Freshwater farm plans are discussed here.

Specific parts of the NESF

Part 2 – controls on farms of certain sizes

Part 2 of the NESF applies to farms on which:

• 20ha or more is in arable land; or
• 5 ha or more is in horticultural land use; or
• 20 ha or more is in pastoral land use; or
• 20ha ore more is in a combination of any 2 or more of those three land uses.

These size limits apply to all the controls in Part 2 except those related to conversions of plantation forestry to pastoral land and conversions to dairy land. 

Part 2 is broken down into 4 subparts.

The activities controlled under subpart 1 are:

• Feedlots, with a focus on restricting the age and weight of cattle held in the feed lot.
• Stocking holding in areas other than feedlots, again with a focus on restricting the age and weight of cattle held in the feed lot, or if age and weight conditions cannot be met on the there being a certified freshwater farm plan ⁵²⁰² in place that meets specific requirements.

Subpart 2 controls agricultural intensification.  The controls in subpart 2 are temporary, only applying to a farm until the earlier of either 1 January 2025 when the subpart will be revoked, or until the regional council for the region in which it is located has publicly notified the proposed amendments required to give effect to the NPSFM 2020.  When that has occurred proposed amendments that relate to objectives and policies will be relevant when considering a resource consent application under the current plan (i.e. the plan subject to the proposed amendment), and any amendments relating to rules will have immediate legal effect because they relate to freshwater. ⁵²⁰³  

The specific intensification activities controlled by subpart 2 are:

• Conversion of plantation forestry to pastoral land use, with permitted conversion being limited to the size of existing pastoral land use when the NESF came into force plus 10ha. Larger conversion is a discretionary activity.
• Conversion of land on an existing farm to dairy farm land.  Again, with permitted conversion being limited to the size of existing dairy farm land when the NESF came into force plus 10ha.
• Irrigation of dairy farm land.  With permitted irrigation being limited to the maximum area irrigated within 12months before the NESF came into force plus 10ha
• Use of land for dairy support land, with the permitted area of land used for this purpose limited to the largest area used between 1 July 2014 and 30 June 2019.

Proposed activities do not meet these permitted conditions become discretionary activities and require resource consent.  Consent can be granted only for a term that ends before 1 January 2031.  Decision-makers faced with considering an application for a discretionary activity under this part must only grant the application if satisfied that doing so would not result in an increase in:

• Contaminant loads in the catchment compared with loads at the commencement date.
• Concentrations of contaminants in freshwater or receiving environments compared with loads at the commencement date.

Subpart 3 controls intensive winter grazing.  Intensive winter grazing is a permitted activity if it is undertaken in accordance with a certified freshwater farm plan, or if meets certain area size, slope, pugging, ⁵²⁰⁴ replanting, and water body distance requirements. 

Two additional permitted conditions apply until the point a regional council has publicly notified amendments to its regional policy statement and plan to give effect to the NPSFM 2020 or 1 January 2025.  These are:

• that the land on the farm proposed to be used for intensive winter grazing must have been used for this between 1 July 2014 and 30 June 2019; and
• must be no bigger than the area used during that time period. 

Until either a regional council has publicly notified amendments to its regional policy statement and plan to give effect to the NPSFM 2020 or 1 January 2025, proposed intensive winter grazing that does not meet the permitted activity conditions becomes a discretionary activity and is subject to the same restrictions on whether consent can be granted as farm intensification.  In addition, if consent is granted the term of consent must also end before 1 January 2031.

After one of these two requirements is met, intensive wintering becomes a restricted discretionary activity, with decision-makers tasked with determining whether consent should be granted only able to consider adverse effects on ecosystems and freshwater, human contact with water, cultural values, susceptibility of the land to erosion, and the timing and appropriateness of methods proffered to manage effects.

Subpart 4 controls the application or discharge of synthetic nitrogen fertilizer to pastoral land.  Synthetic nitrogen fertilizer means any substance (whether solid or liquid) that:

• is more than 5% nitrogen by weight
• is applied to any plant or soil as a source of nitrogen nutrition for plants

It includes an manufactured product that meets both of these criteria, but itdoes not include a compost, soil treatment, or fertilizer that is wholly derived from plant or animal waste or residue and is minimally processed (e.g. by composting).

Discharge of synthetic nitrogen fertilizer is managed on what is described as a “contiguous landholding” basis.  This means that where a farm is divided into separate land blocks that do not adjoin each other, each block must independently comply with the fertiliser cap. Nitrogen use must be separately managed and reported for each contiguous landholding within the farm.

Discharge of synthetic nitrogen fertilizer is a permitted activity within each contiguous landholding provided that:

• It is into the air or into or onto land
• It meets the following conditions when applied to pastoral use land  (which in this context includes grazed pasture and grazed forage crops but does not include land used for grazing of livestock on the stubble of a crop that has been harvested after arable land use):
  • For each  hectare of grazed pasture within a contiguous landholding the application of nitrogen as a part of the fertilizer does not exceed 190kg per hectare per year
  • For grazed annual forage crops, if more than 190kg per hectare is applied, this must be offset by reduced nitrogen use on other grazed land within the contiguous landholding, so that the average across all grazed land does not exceed 190kg per hectare per year.

Proposed discharges that do not meet these requirements become a non-complying activity.  This means that prior to being considered under s 104 of the RMA the applicant must first show that the proposed discharge is either not contrary to the objectives and policies of the regional plan or has adverse effects that are no more than minor. ⁵²⁰⁵

The NPSFM 2020 then includes two further conditions on grant of resource consent in this instance.  These apply in the alternative, meaning that an applicant can chose to focus their application on whether one or other condition is met.  They do not need to meet both. 

Under the first avenue, an applicant must show that the rate at which nitrogen may enter water would be no more than (or less than) the highest rate that nitrogen would enter water if the permitted amount of synthetic nitrogen fertilizer were being applied (190kg per hectare per year).  This information must be prepared for the applicant by a suitably qualified and experienced practitioner, who must also set out proposed good management practices for applying synthetic nitrogen fertilizer that should be adopted.  Consent cannot be granted unless these things are done.

If the consent authority decides to grant consent, the NPSFM 2020 also identifies specific conditions of consent that must be imposed.  These include ensuring that the rate at which nitrogen may enter water is controlled to be no more than (or less than) the highest rate that nitrogen would enter water if the permitted amount of synthetic nitrogen fertilizer were being applied (190kg per hectare per year), and to report on their fertilizer use each year.

Under the second avenue, an applicant must provide the consent authority with a synthetic nitrogen reduction plan which demonstrates how they will reduce their fertilizer use year-by-year so that from 1 July 2023 their application of nitrogen as a component of fertilizer does not exceed 190kg per hectare per year across each contiguous land holding.

If a consent authority decides to grant consent under this avenue it must impose conditions of consent requiring compliance with this reduction plan and annual reporting on fertilizer use.  A consent granted under this path must also be for a term that ends before 1 July 2023, at which point that provision is revoked.  Farms that have complied with the conditions of consent should then be able to operate as a permitted activity.  Those that have not will need to apply for a new resource consent. 

Importantly, applying for and securing consent for discharge of synthetic nitrogen fertilizer under this part of the NSPFM 2020 does not exempt farmers from having to comply with any applicant a regional rule that relate to the discharge of nitrogen or its compounds (including synthetic nitrogen fertilizer).

Part 3, subpart 1  - controls relating to natural wetlands

The overarching activities controlled by the NESF in relation to natural wetlands are vegetation clearance, earthworks, and wetland drainage or the taking, using , damming, diversion or discharge of water.  Importantly, none of the controls relating to natural wetlands apply to customary harvest of food or resources undertaken in accordance with tikanga Māori.

Different controls apply to each activity depending on the purpose for which it is being carried out. 

Vegetation clearance

Vegetation clearance means the disturbance, damage, destruction or removal of vegetation by any means, including activities that result in this occurring (e.g. over-planting).  It does not include clearance activities relating to sphagnum moss for the purpose of harvest in accordance with Regulation 48 or 49, maintenance or construction of fencing for excluding stock or marking property boundaries, maintenance of shelter belts, or grazing of improved pasture within the relevant setbacks.

The focus of the NESF is on controlling vegetation clearance within, or within a 10m setback from, natural wetlands. 

Vegetation clearance in these areas is a permitted activity if it is for the purposes of restoration, scientific research, maintenance of wetland utility structures, ⁵²⁰⁶ maintenance and operation of specified infrastructure or other infrastructure (being infrastructure that was in place at the close of September 2020), or natural hazard works, and the relevant permitted activity conditions are complied with.  At a high level these conditions relate to providing early notice of the activity, protecting indigenous vegetation, bird and fish habitat, and historic heritage, ensuring specific water quality and erosion outcomes are met, and other specific control measures to minimize the adverse effects on the wetland during and after carrying out activities.

Vegetation clearance within a 10m setback of a natural wetland, but not within a natural wetland, is also permitted for arable and horticultural land use purposes in an area that was used for either of those uses between 1 January 2010 and 2 September 2020.

For all but two of the purposes specified in the NESF, if proposed clearance for these purposes does not meet the permitted conditions, they it becomes a restricted discretionary activity meaning that resource consent is required but decision-makers can only consider matters specifically identified in the NESF when deciding whether to grant consent.  The two exceptions are clearance for arable and horticultural land use and natural hazard purposes.   Clearance for these purposes that does not meet the permitted conditions becomes a non-complying activity.

Specific controls on vegetation clearance are also provided in respect of construction of wetland utility structures and infrastructure within or within a 10m setback from a natural wetland.  Construction of wetland utility structures is a restricted discretionary activity, and of specified infrastructure is a discretionary activity.

Vegetation clearance activities within or within 10m from a natural wetland that does not have another status under Subpart 1 is a non-complying activity.

Earthworks

Earthworks within and within 10m from natural wetlands for the purpose of restoration, scientific research, construction and maintenance of wetland utility structures, ⁵²⁰⁷ construction, maintenance and operation of infrastructure, arable farming and horticulture , or natural hazard works are subject to a similare hierarchy of controls as applies in relation to vegetation clearance. 

Again, earthworks for any other purpose within and within 10m from natural wetlands is a non-complying activity. 

There are also two additional controls on earthworks where drainage of the natural wetland may occur:

• Earthworks outside, but within a 100m setback from, natural wetlands is a non-complying activity if it will result in or is likely to result in complete or partial drainage of all or part of the wetland. Because of the NESF’s other controls and the way this control is framed, this control effectively applies to earthworks for any purpose between 10m and 100m away from the wetland. Earthworks within this area.
• Earthworks within a wetland is prohibited unless allowed elsewhere in the NESF if it results or is likely to result in complete or partial drainage of all or part of the wetland.
• Complete or partial drainage of wetlands

Drainage is not defined by the NESF, the NPSFM 2020, or the RMA.  This is unfortunate because the controls applying to it are stringent so it is of increased importance that it is clear what is being controlled.  Logically, it must be something other than reclamation because this term is used elsewhere in the NESF and the RMA and is subject to specific control under both.

Taking, using, damming, diversion or discharge of water

The NESF also controls the taking, using, damming, diversion or discharge of water within, or within a 100m setback from, a wetland. 

Undertaking this activity within or within 100m setback from a wetland is a permitted activity if it is for the purposes of restoration, scientific research, maintaining a wetland utility structure or specified or other infrastructure, or natural hazard works, and provided relevant permitted activity conditions are met.  For all purposes listed in the NESF except natural hazard works, restricted discretionary activity status applies if the general conditions for permitted activities are not met.  Undertaking this activity for the purpose of natural hazard works that do not meet the permitted conditions is a non-complying or prohibited activity.

Taking, using, damming, diversion or discharge of water apply either within, or within a 100m setback from, a wetland for the purposes of constructing a wetland utility structure is a restricted discretionary activity if compliant with the listed conditions in clause 42. Undertaking this activity for the purposes of constructing specified infrastructure is a discretionary activity..

Taking, using, damming, diversion or discharge of water for purposes other than listed in the NES-F are either non-complying or prohibited activities depending on the location and impact of the activity.

Generally, taking using damming diversion or discharge of water within or within a 100m setback of a natural wetland is non-complying if it is not addressed elsewhere in the NES-F. If the activity results, or is likely to result, in the complete or partial drainage of all or part of a natural wetland and is within 100m setback of a natural wetland, it is non-complying; and if within a natural wetland it is a prohibited activity.

Part 3, subpart 2  - reclamation of rivers

The reclamation of the bed of any river is a discretionary activity.  There are no specific controls determining when resource consent can be granted as apply to other activities.

Part 3, subpart 3 – fish passage

The purpose of the NESF’s fish passage controls is to deal with the effects on the passage of fish of the placement, use, alteration, extension, or reconstruction of specific structures in, on, over, or under the bed of any river or connected area.

Regional councils must include policies in their regional plans to identify desirable and undesirable species and their environments, and how these environments are impacted by instream structures. The same species may be desirable in one environment, but not in others. Regional councils must also have regard to the provision, monitoring, and maintenance of desirable fish passage when assessing resource consent applications and promote the remediation of existing structures.

 The structures controlled by the NESF are:

• Culverts and Weirs
• Passive flap gates
• Dam, ford or non-passive flap gates

The controls do not apply to structures in place before the NESF came into force, including alterations to them, or weirs in place for tikanga purposes. However, the NPS does encourage regional councils to undertake a process of review and remediation of existing structures which may be ineffective at providing fish passage.

The controls are focused on structure and engineering requirements, with the ultimate goal being ensuring that what are termed desirable fish, are able to continue moving up and down the river as required. 

For more see the Ministry for the Environment factsheet here.

Last updated at 9:16AM on August 24, 2021