RMLA News

Randerson Report – Freshwater Analysis

 

Author: Sarah Ongley – RMLA Freshwater Knowledge Hub Leader

In the first article in this series, Madeleine Wright discussed the inclusion of Te Mana o te Taiao in the purpose of the proposed Natural and Built Environments Act (NBEA).

Freshwater and biodiversity are intertwined. Both are mentioned as ‘pressures’ that have driven the review (as well as the decline in our coastal and marine environments).

Cumulative effects

The Report says that perhaps the most significant challenge for environmental effects management under the RMA has been in controlling cumulative effects.

The authors postulate that the ‘effects-based’ nature of the RMA has led to a system orientated around assessing individual applications, at the expense of managing cumulative effects (in plans). In response, a combination of specified planning ‘outcomes’ and ‘environmental limits’ are proposed.

The duty on the Minister for the Environment to set environmental limits for key biophysical domains, including the “quality, level and flow” of freshwater, would include a ‘margin of safety’ to ensure tipping points are avoided.

Arguably, this is already required of regional councils in the freshwater space, by the National Policy Statement – Freshwater Management 2020.[1]  Having said that, regional councils have been required to manage cumulative effects since the inception of the RMA and the Report indicates that this has not been adequately achieved.

Replacing the ‘first-in first-served’ approach to allocation of freshwater

The Report grapples with the difficult issue of freshwater allocation. Due to the problems with the current ‘first-in first-served’ approach, addressing allocation has been a national policy goal since at least 2004.

The Land and Water Forum also grappled with this matter but did not reach consensus on how to determine initial allocations and how best to reduce existing allocations.

The Report states “…further developing allocation policy for the discharge of nutrients to freshwater will require close coordination with the environmental controls developed through Natural and Built Environments Act processes at the regional level. This includes the provisions for decision-making, and accounting systems and baseline data needed to make a more sophisticated allocation approach possible.” 

The view is that a reformed Act should state principles for the design of policy and the application of tools for allocation, including some economic instruments.

The allocation ‘principles’ would establish:

  • a clear expectation that public resources should not be allocated for substantial periods without proper provision for environmental limits or future needs (‘sustainability’ principle – including the needs of future generations).
  • ‘Efficiency’ of use (which includes being able to re-allocate the resource).
  • ‘Equity’ – the balance between recognising existing investment and providing new opportunities – as well as meeting obligations under Te Tiriti.

While the reformed Act would state the principles, the detail would be contained in national direction and regional planning processes as follows:

  • National direction would provide a consistent framework, detail on the principles and range of allocative tools that could be used.
  • Regional plans could then specify:
  • the parameters for consenting and
  • the particular allocation methods to be used in the local context.

The reasoning here (for the regional council role) is that freshwater policy is “highly context-specific”.

It must be noted that Māori rights and interests in freshwater allocation is a matter that is excluded from the scope of the review under the Terms of Reference.

Related to allocation is the discussion in the Report to create a more “responsive” system.  This would include strengthening regional council powers to modify or extinguish consents. The Report even recommends limited exceptions to the current protection in section 10 of the Act for ‘existing use rights’ – including in circumstances where there is a “high risk of significant harm or damage to health, property or the natural environment, for example by the breach of an environmental limit” (emphasis).

This may be relevant in the freshwater space where activities such as farming are sometimes seen as a hybrid involving both discharges (e.g. leaching of contaminants) and land use activities.

[1] Refer in particular to the ‘Best Information’ guidance set out in clause 1.6.