HAWKE’S BAY REGIONAL COUNCIL
Regional
Planning Committee
Wednesday 05 April 2017
Subject: Government's
"Clean Water" Reform Proposals and Draft Submission
Reason for Report
1. On 23 February
2017 the Government announced a further suite of freshwater reforms. These
include new policy to improve “swimmability”, stock exclusion
regulations, further procedural and monitoring requirements on regional
councils, and the announcement of a Freshwater Improvement Fund.
2. The proposals
are generally positive, and reflect closer engagement between officials and
regional council staff over the last couple of years.
3. The main areas
of concern relate primarily to the proposed “swimmability” regime
and its monitoring and reporting requirements. The greater prescription of
resource management processes as well as resource implications for regional
councils are also of concern. There is also uncertainty about how the
significance of the full range water values is to be accounted for.
4. In addition,
there is a separate Ministerial directive to regional councils about providing
information by 2018 on how the target for swimmability can be met along with
likely costs and impacts on communities.
5. Submissions on
the Clean Water Package are to be lodged by 28 April 2017. A preliminary draft
submission can be prepared by staff based on suggestions in this paper and
following RPC direction, a final submission will be further refined and
reported to the Council for approval on 26 April 2017.
Background
6. In February
last year the government issued a discussion document; “Next Steps for
Freshwater” proposing a number of changes to freshwater management. HBRC
lodged a submission[1]
on those proposals. The government is now continuing its freshwater reforms
with new proposals for amending the NPS for Freshwater Management
(‘NPSFM’), a target for improving the swimmability of rivers, a
stock exclusion regulation and a Freshwater Improvement Fund.
7. These proposals
are contained in a further document; “Clean Water” and the
government is seeking feedback on proposed changes.
8. There are five
key components of the latest freshwater reform Clean Water package;
8.1. A new target
that 90% of New Zealand’s rivers and lakes are swimmable by 2040.
8.2. New maps and
information on the current water quality for swimming.
8.3. Changes to
the National Policy Statement for Freshwater Management including:
8.3.1. replacing
the term ‘wadeable’ with ‘swimmable’;
8.3.2. clarifying
interpretation of “maintain or improve overall water quality”;
8.3.3. adding
macroinvertebrate monitoring for ecological health;
8.3.4. strengthening
references to Te Mana o te Wai;
8.3.5. clarifying
the consideration of economic opportunities;
8.3.6. clarifying
inclusion of coastal lakes and lagoons;
8.3.7. clarifying
policy on exceptions; and
8.3.8. strengthening
the requirement for monitoring and improving quality.
8.4. Criteria for
allocation of the $100 million Freshwater Improvement Fund.
8.5. Details of
new national stock exclusion regulations.
9. Aspects of the
package have been foreshadowed over the past few months, for example, the Government
announced its intention to introduce regulations to exclude livestock from
waterways some time ago, and is essentially restating that intention here in
the context of a wider set of proposals. Other aspects of the package, for
example, NPSFM amendments, have now been outlined in considerably more detail
than was previously available.
10. Full details of the
proposed package are provided in the consultation document, which is available http://www.mfe.govt.nz/publications/fresh-water/clean-water-90-of-rivers-and-lakes-swimmable-2040.
Swimmability Targets
11. The Clean Water Package
includes a non-statutory government target of 90% of New Zealand’s rivers
and lakes swimmable by 2040.
12. Proposed swimmability
provisions have attracted much commentary in the media and from some interest
groups. The technical detail of the Government’s proposed standard is
necessarily complex and the full details are not included in the discussion
document. This has not helped public understanding of what its practical effect
might be, or how that differs from the status quo.
13. Government now proposes
that regional councils must work to improve water quality towards a newly
defined ‘swimmable’ standard over time, and to monitor and report
on progress.
14. A national target to
increase the proportion of swimmable waters to 80 percent by 2030, and 90
percent by 2040, is proposed. This would apply to rivers deep enough to swim
in, and to lakes with perimeters over 1500 metres. The government intends that
the target E. coli level is to be met “80 percent of the
time”. This reflects the natural variability of freshwater systems -
bacterial concentrations will, for example, often be higher when a river is in
flood (in which event, there are more significant constraints on
“suitability for swimming”).
15. The new approach changes
the assessment of whether a river is swimmable or not to one where a water body
is swimmable some of the time throughout the year - and that there is an option
of increasing the amount of time it is swimmable. It is why the Clean Water
package is focussed on the frequency that the water quality meets swimming
standards.
16. The policy applies to
rivers that are fourth order or greater. There is some conjecture that smaller
rivers are therefore not protected. While the way that the policy is written
may give that impression, the practical reality is that the smaller rivers must
be managed to ensure water quality in the larger ones. The NPSFM also continues
to require identification of swimming values and measures to improve them
through local plan change processes.
Comments
17. A number of concerns have
been identified with the monitoring and reporting regime for swimmability.
Technical staff are particularly concerned about;
18. Monitoring site
selection: The Council operates both a state of the environment water
quality monitoring network (SOE) as well as a recreational bathing water
monitoring network (RWQ) over summer. Some, but not all of the network sites
are the same. Both programmes have different ‘customers’ and uses
for the information which is reflected in the sampling strategies.
19. The swimmability maps
published in the Clean Water Package used modelled inputs trained with SOE
data, however they did not use the recreational data collected by councils. It
is important to understand what data will be used for reassessment of progress
towards meeting the government’s “swimmability” targets.
20. A proposed solution is
that MfE identify sites that will be used for future ‘swimmability’
reporting from Councils SOE (monthly/Quarterly) or RWQ data (weekly summer
only) stratified by region, land-use, population base, geology etc. This then
becomes the national sites for assessing swimmability targets and progress. MfE
then simply become another ‘customer’ of the data and sampling
strategies can be adapted to suit. In this way, much of the data can be readily
supplied to the LAWA portal.
21. We would note that if
swimmability is the key value driving the generation of statistics, comparisons
and progress, then the RWQ network is better suited to national reporting for
that issue. It also better reflects the seasonal nature of when people swim.
22. Appendix 5: We
suggest that the proposed new Appendix 5 be deleted. As drafted this appendix
puts untenable resource requirements on Regional Councils, including in
relation to daily monitoring for sites exceeding a threshold. There are also
several aspects of the monitoring requirements that do little or nothing in
contributing towards a) better management of public health or b) better
swimmability.
23. Inconsistency: The
NPSFM, LAWA and the MfE water quality guidelines have some major
inconsistencies such as in relation to assessment of risk and use of 3 or 10
year median data. The new proposals provide an opportunity for aligning and
updating these aspects.
24. Exception regime:
There is a concern about water body status and management for swimming in all
circumstances such as where bird populations (especially valued native species)
are present or where swimming is not a primary value (including some land
locked or shallow lakes and wetlands) for which the water body is managed.
25. Methodology: There
is an apparent omission in the metrics of the proposed NOF attribute table
(refer NPSFM Appendix 2) for E. coli. Importantly, in the MfE supporting
information for the Clean Water package there are four tests involved in
establishing the attribute states for rivers from A to E. All four tests have
been used in determining the categories identified in the NOF attribute but
only one is then used in the NOF attribute.
26. Application: We are
uncertain if compliance with the NOF attribute is to be assessed over an entire
catchment or just at the identified points at which people currently swim, when
they want to swim there. We currently monitor our recreational bathing sites
weekly during the bathing season (summer months). The approach as written looks
to assess performance against an entire river length, all year around. This is
at odds with MfE’s own guidance for assessing the performance of bathing
sites (see also para 23).
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Submissions;
Appendix 5
should be replaced with something more targeted to the purpose of monitoring
for swimmability.
The
selection of monitoring sites and data against which progress is to be
reported is clarified.
Inconsistencies
between NPSFM, LAWA and the MfE in relation to monitoring and reporting for
E. coli and swimming values of rivers are addressed.
Allow for
an exception regime where E. coli contamination does not pose a risk to human
health or where other water body values (such as for native birds) outweigh
swimming values.
Ensure the
NOF table is complete in relation to all relevant E. coli metrics.
Clarify how
compliance with the NOF attributes is to be assessed.
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NPSFM Requirements and
the Swimmability Targets
27. The NPSFM does not
directly guide decisions about acceptable swimming state and progress towards
the specified target. The government’s objective (90% rivers swimmable by
2040) is notably not included in the NPSFM and the NOF does not provide a
bottom line.
28. Instead, the government is
using ministerial directions to require (and assess how) the targets are to be
met. In his letter to the Chair, Minister Smith has stated;
28.1. “I want to draw
your attention to the new legal requirement in the proposals for every regional
council to improve the water quality for swimming in their region. You will
note that some regions have swimmability as low as 29% and some as high as 99%.
To achieve the nationwide 90% by 2040 target, regional councils will need to
take on varied regional targets with many well in excess of 90%. To achieve the
national targets, a council with 99% swimmability needs to be focused on
growing the proportion of rivers with excellent and good gradings”.
29. The Minister has made it
clear that proportional improvements will be required from all regions to
achieve an overall increase to 90% by 2040. It is worth noting that;
29.1. The targets have no
legal status.
29.2. The Minister is prepared
to see what regions can do without national regulation, but if we cannot do
this it is likely national regulation will come next.
29.3. The Minister is focused
on ‘fixing’ the red rivers (below the bottom line).
30. The regional council
sector has been responding to concerns about swimmability and is currently
working with MfE and MPI to formulate a collective sectoral response to meeting
this national target. This includes formation of a task force comprising
various technical experts across a range of disciplines in a two stage process.
It is intended that this group produce a national document that sets out how
the sector will achieve 2030 and 2040 targets. This will have
‘chapters’ that are regional and that each council will shape but
will bring all the regional information together into a coherent national
picture. The second part includes modelling effects of actions either planned
in policy or likely to be introduced to reduce bacterial loads as well as
assessment of financial implications. The process is expected to be somewhat
iterative.
31. The related issues with
reassessment and progress reporting as described in paragraphs 18-26 still
remain.
32. While the discussion
document indicates that ‘acceptable’ is anything graded
“fair” or better, it appears the main requirement is for the
council to identify where improvements will be made so they are suitable for
immersion more often and over what timeframe (Policy A5).
33. At the same time, new
provisions in Policy CA2 (f) suggest that improving water for swimming is still
part of a values based decision making process.
34. There is a fine line
between government direction, and by extension, requirements of councils to
meet the targets quickly and the need for robust and fair implementation of the
Clean Water Package and NPSFM.
35. Achieving the targets as
specified will have resourcing implications or costs to our community, both in
terms of plan change processes as well as costs of the physical works required
and possible assistance programmes. This will be particularly true in relation
to changes that require public participation at the regional level or where
issues of fairness are likely to arise, such as in relation to existing
activities.
36. We note also, that the
proposed stock exclusion regulation will be one of the tools for managing
bacterial contamination.
37. The changes to the NPS and
the government objective do not clearly show how that tension between rapid
compliance with the new swimmability targets and the new stock exclusion
requirements and good public process is to be addressed by councils in their
RMA Plan Change and LGA processes. Some alignment between this initiative and
the progressive implementation programme for giving effect to the NPS is also
required.
Improvement Timeframe
38. The work required to fully
understand what improvements can be made to allow draft targets to be reported
to the Minister by October is significant.
39. We will need to be able to
model the impact of any changes (such as land use change or stock exclusion) on
improving microbiological indicators, how long improvements will take, and what
the costs of the required changes are, both in physical works and impact on our
economy and communities.
40. There are significant
resourcing needs implicit in meeting the Minister’s directive and the
uncertainties in the technical aspects of modelling effectiveness and costs of
mitigation measures.
41. The final date for
reporting to the Minister on how targets are to be met is March 2018. We
suggest that this date be delayed to later in the year to take into account the
council’s Long Term Plan and reporting process.
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Submission
Delay the March 2018 date for
reporting on the swimmability target and the new progressive implementation
plan provision in the NPS until after the Long Term Plan process is
completed.
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Freshwater Management
42. The NPSFM amendments
include requirements to state objectives for nutrient concentrations.
Comment
43. There is no question that
nutrient loads are an important factor in managing for freshwater outcomes.
44. More broadly, however,
many in the sector are concerned about a growing emphasis in freshwater
management on those aspects of freshwater systems that are amenable to
measurement.
45. The relationship between
the objective being pursued (limiting periphyton growth) and nitrogen or
phosphorus is probabilistic, however, not directly causal. How much slime
actually coats a river bed depends on a complex set of factors. Focussing on
two of those for which numerical measures can be established may not only be a
poor use of limited resource, but may invite misunderstanding of the challenge
to be addressed.
46. We recommend
expressing reservations about the growing degree of prescription, and risk of
reductionism, in how councils manage for freshwater outcomes.
47. The inclusion of new MCI
monitoring is noted and this Council already carries out MCI monitoring across
the region. Senior science staff continue to be involved in nationwide
practitioner initiatives through the Environmental Monitoring and Reporting
project to enhance the utility and monitoring effectiveness of MCI and similar
indicators of macroinvertebrates.
48. We query the inclusion of
“measures of the health of indigenous flora and fauna”. As
proposed, it is unclear if this is reference to only aquatic flora and fauna
– being a NPS for freshwater- or whether the intent extends to
terrestrial flora and fauna too. We note this will have potentially significant
financial impacts on Council’s activities.
49. Methods for inclusion of
Matauranga Maori should be subject to the needs and interest of the local iwi
in councils’ freshwater decision-making. Council also notes the added
financial implications of this requirement.
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Submission
There is a
concern about the growing degree of national prescription in how councils
manage for freshwater outcomes. The council notes the particular focus on
nutrient concentrations could lead to perverse outcomes.
The
requirement for monitoring MCI is supported where this is appropriate.
Further
clarity about what is meant by monitoring measures of health of indigenous
flora and fauna is required, including restricting the requirement to aquatic
species.
Requirements
for monitoring Matauranga Māori need also to be subject to the needs of
local Māori.
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Shallow Lakes and
ICOLLS
50. Targets for shallow lakes
are quite ambitious for shallow North Island lakes. We are failing those bottom
lines even in areas without intensive agriculture. Given that the values for
those shallow lakes may relate to things other than water clarity (e.g. wetland
values, bird habitat, etc.), it seems like this may unintentionally force the
council to prioritise a lot of spend (monitoring, land management, mitigation,
policy) on shallow lake systems without consideration of the priorities that
exist for other water bodies. Those shallow lakes may already be fulfilling
objectives in terms of how most of how the community values them.
51. Sampling stipulations for
ICOLLs need to be removed (Note at bottom of on p 31) to allow flexibility in
sampling. For example, Whakaki Lake may only be open for about 5-10 days per
year, haphazardly. So monthly sampling will not capture ‘12
samples’ of an ‘open’ state within a reasonable time frame.
52. The infrequent nature of
ICOLL openings completely negates the idea of having an annual statistic for
these systems in terms of both and open and closed state.
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Submission
Review the
targets for shallow lakes.
Remove
sampling stipulations for ICOLLs.
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Economic Well-being
53. The discussion paper notes
concerns that the NPSFM does not specifically oblige councils to consider
implications for economic well-being before establishing limits. It proposes
some additional text in relation to this in the NPSFM.
Comment
54. The decision
making processes under the NPSFM have raised the focus of environmental bottom
lines and management objectives in the limit setting exercises, but the NPSFM
still clearly recognises extractive activities as national values for which
water quality and quantity is to be managed. For example, national values of
fresh water (in the existing 2014 NPSFM) include mahi mara/cultivation and au
putea/economic or commercial development.
55. This is potentially an
issue of perception and requires some attention to detail as the NPSFM clearly
requires assessment of the implications for resource users including
implications for “actions, investments, on-going management changes and
any social cultural and economic implications” (Policy CA2).
56. In addition, Section 32
still guides the preparation of regional plans. Section 32 requires an
extensive examination of the costs and benefits of any proposal including
cultural, social, environmental and economic effects that are anticipated from the
implementation of the provisions, including the opportunities for:
56.1. economic growth that are
anticipated to be provided or reduced; and
56.2. employment that are
anticipated to be provided or reduced.
57. Additional references to
economic wellbeing appear to be unnecessary.
58. Furthermore, the
additional text proposed for objectives A2 and B1 create confusion and overlap.
The purpose of the Act is repeated in an inconsistent and potentially
conflicting way in these NPSFM amendments. Section 5 of the RMA already states
that sustainable management means managing the use, development, and protection
of natural and physical resources in a way, or at a rate, which enables people
and communities to provide for their social, economic, and cultural well-being
and for their health and safety. The plans developed as a result of the NPSFM
requirements give effect to the purpose of the Act.
59. A second inconsistency and
potential internal conflict is also created by the new text proposed for
Objective A2. The definition for ‘outstanding freshwater bodies’
does not contain a limited list of values that might be considered
outstanding. There remains ambiguity whether or not extractive/economic
values and uses of water can be recognised and protected as ‘outstanding’
values. At its March meeting, the Committee received some advice on
identification of outstanding values and outstanding water bodies as required
by the NPSFM and a further report on this is due next month.
60. The NPSFM remains unclear
and uncertain on this matter. Research into how the NPSFM has evolved indicates
that there was unlikely to have been an intention to allow for extractive
values to be considered ‘outstanding’. However, this issue is not
yet resolved and there remains considerable debate as to how the NPSFM should
be interpreted.
61. It is possible that by
allowing extractive values to be considered outstanding, there might be better
and more rigorous attention to the economic and social well-being values of
water use and results in the additional text becoming redundant.. However, it
may also increase confusion and complexity where values are competing.
62. This does not mean that
extractive values will in any way trump ecological values or Te Mana o Te Wai
as both the NPSFM and the RMA require sustaining the potential of natural and
physical resources to meet the reasonably foreseeable needs of future
generations; and safeguarding the life-supporting capacity of air, water, soil,
and ecosystems. The NPSFM also specifically notes that aquatic ecosystem health
is a compulsory value that must be provided for. Allowing all values to be
potentially considered outstanding does however, mean that lower levels of
protection for ecological values are able to be considered.
63. We suggest that these new
references to economic well-being be deleted. We also suggest that further
clarity in relation to the status of all water values and any assessment of
their significance be provided by the Ministry.
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Submission
Delete
additional references to economic well-being.
Clarify how
significance of the national values in the NPS are to be considered,
especially in relation to ‘outstanding values’.
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Freshwater Improvement
Fund
64. The Council supports the
financial assistance being provided by the government to address some of the
legacy issues around water quality. It is grateful for the opportunity to
apply for this funding for some valued but highly vulnerable water bodies in
Hawkes Bay.
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Submission
Support
financial assistance being provided by the government.
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Stock Exclusion
65. The government proposes
new regulations to exclude most stock from waterways.
Comment
66. The council supported this
concept in principle in its submission in 2016, but expressed misgivings about
the lack of flexibility such a regulation could entail.
67. The regulation allows
progressive movement towards stock exclusion according to stock and farming
system and land slope. Where exclusion does not provide sufficient benefit for
the costs involved or where there are practical constraints, farmers can
prepare a stock exclusion plan that is approved by the council.
68. The Council’s
experiences with the Plan Change 6 implementation in the Tukituki Rover
catchment show a number of potential issues that might arise with the national
regulation proposal.
69. The number of variables
contained within the proposed regulation will add considerable complexity to
interpretation and compliance. We note that this sort of regulation will have
considerable resourcing requirements in respect of compliance.
70. Making farm scale
decisions about fencing based on a national slope database such as LRI is
complex and results in significant uncertainty. Paddock size is an important
component and the council has found that it needs to be taken into account when
deciding on the need for fencing.
71. The council has been
required to develop detailed slope maps based on LIDAR information to provide
sufficient slope information at a property scale to enable decisions to be made
by landowners. The Council has LIDAR slope information over approximately 20%
of the region.
72. The Council has also
determined that a concept of predominant slope in relation to a paddock
area through which a stream is flowing is also required in order to assist
interpretation and decision making.
73. Further, the use of slope
is not always a good indication of sediment or other contamination sources.
74. In addition to this, the
Council is currently engaged with the farming community in a collaborative plan
change process in relation to meeting objectives set for water quality within
the TANK catchments. A national approach to regulation in this context
undermines local solutions and innovative approaches to meeting freshwater
objectives.
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Submission
We propose
an alternative approach to stock exclusion;
Councils
to be required to adopt stock exclusion policies by 2025 (consistent with the
NPSFM timeframe and consistent with work underway to meet the
government’s swimmability targets,
Wetlands,
lakes, rivers subject to water conservation orders and their tributaries and
coastal areas be required by national regulation (or national environmental
standard) to exclude stock by 2020,
The proposed stock exclusion plan
provision remains,
Include
the new infringement fees and ensure they are applicable for non-compliance
with national as well as regional rules,
Regional
councils (in consultation with the primary industries) be required to work
out a local timetable for the remaining rivers based on the identified risks
and river values.
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Financial and Resource Implications
75. There are no financial
implications for council considering this report and potentially lodging a
submission on the Clean Water Package proposed by government.
76. However, some of the
implications for council resources (financial and staffing) are significant in
terms of what the ‘Clean Water’ package currently proposes. These
have been alluded to in the commentary above.
Decision Making
Process
77. Council
is required to make every decision in accordance with the requirements of the
Local Government Act 2002 (the Act). Staff have assessed the requirements in
relation to this item and have concluded:
77.1. The decision
does not significantly alter the service provision or affect a strategic asset.
77.2. The use of
the special consultative procedure is not prescribed by legislation.
77.3. The decision
does not fall within the definition of Council’s policy on significance.
77.4. The persons affected by
this decision are all persons with an interest in the region’s management
of natural and physical resources under the RMA including iwi.
77.5. The council
might consider not making a submission, but given the significance of the
proposed changes to the NPS for Council resources this is not recommended.
77.6. The decision
is not inconsistent with an existing policy or plan.
77.7. Given
the nature and significance of the issue to be considered and decided, and also
the persons likely to be affected by, or have an interest in the decisions
made, Council can exercise its discretion and make a decision without
consulting directly with the community or others having an interest in
the decision. Notwithstanding this, any person may make their own submission on
the government’s “Clean Water” package proposals.
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Recommendations
1. That the Regional Planning Committee receives and notes the
“Government's "Clean Water" Reform Proposals and Draft
Submission” report.
2. The Regional Planning Committee recommends that Council:
2.1. Agrees that the decisions to be made are not significant under the
criteria contained in Council’s adopted Significance and Engagement
Policy, and that Council can exercise its discretion and make decisions on
this issue without conferring directly with the community and persons likely
to be affected by or to have an interest in the decision.
2.2. Make a submission to the Ministry for the Environment in respect
of the Clean Water discussion document as outlined in this report and as
further directed by the committee.
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Authored by:
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Mary-Anne
Baker
Senior Planner
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Anna Madarasz-Smith
Senior Scientist - Coastal Quality
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Gavin Ide
Manager, Strategy and Policy
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Approved by:
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Iain Maxwell
Group Manager Resource Management
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James Palmer
Group Manager Strategic Development
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Attachment/s
There are no
attachments for this report.
