Agenda of Regional Planning Committee

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 03 June 2020

Subject: HBRC TANK Plan Change Submission

Reason for Report.

1. The Council publicly notified the Proposed TANK Plan Change 9 on 2 May 2020. This report describes an opportunity to refine some of the content of the Proposed Plan and proposes options to improve implementation.

Officers’ Recommendation

2. Council officers recommend that Regional Planning Committee considers the options presented and recommends to Council that an HBRC submission to the Plan Change is lodged to improve the implementation of stream flow maintenance policy.

Executive Summary

3. The plan preparation process was initially led by the TANK group, a community-based decision-making group, who presented a draft plan to the Regional Planning Committee in 2018. The Regional Planning Committee completed the drafting and the Council notified the proposed plan in May 2020.

4. The proposed stream flow maintenance solution provides a means to manage the cumulative stream flow depletion effect of all the groundwater abstraction in the Heretaunga Plains. The implementation of the policy relies on development of solutions by permit holders through conditions on consent. An informal working group was established in December to consider what would be needed to support consent applicants to enable the policy to be successfully implemented.

5. This work led to identification of alternative implementation approaches that have been further developed for the Committee’s consideration. This is with a view to the Council making its own submission to further refine and improve the Plan's proposed approach for managing stream depletion maintenance. It also provides the opportunity to align with other work programmes being initiated by the Council

6. Note that the resolution of this issue and decisions on the Council’s own submission will be considered by the hearing panel (which is yet to be set up) alongside all other submissions made on the Proposed Plan. It does not automatically amend the plan, nor does it necessarily have greater weight than other submissions. A submission enables other options to be considered more widely by other during the hearings process. The Council’s submission would be available for other submitters to support or oppose through the further submission process. Following receiving further submissions, all submissions will be analysed and incorporated into a section 42A report for the Hearings Panel.

Background/Discussion

7. The proposed plan change includes stream flow maintenance and habitat enhancement scheme measures that enable water users to maintain stream flows, mitigate the delayed and indirect stream depletion effects of collective groundwater takes and avoid restrictions on water takes. Key features of the approach in the proposed plan change are:

7.1. Water permit holders’ obligation to this mitigation scheme would be imposed through resource consent conditions (Policy 39 and TANK Rule 9)

7.2. the plan enables collective establishment and management of stream flow maintenance solutions by permit holders (Policy 39 and schedule 36)

7.3. the development and implementation of the stream flow solutions is to be rolled out as water permits are replaced or reviewed (Policy 39 and TANK Rules 9 and 18).

8. Those provisions reflect the collaborative approach to developing a pathway towards better resource management. Resource users (land and water users) favoured solutions that empowered them to make choices about how to meet the objectives stated in the Plan.

9. This solution was modelled on a successful approach in Twyford whereby water permit holders worked together to meet minimum flow triggers and avoid being subject to bans for the Raupare Stream. It was local leadership and local initiatives that enabled innovative solutions for a single waterway in response to issues arising for those consent holders around trigger flows for bans on water takes.

10. The draft TANK Implementation Plan notes the need for Council to support the establishment of Water User Collectives and ensure they have access to required water information in order to develop feasible flow maintenance solutions. However, little detail was developed regarding what is required to support consents applicants in how to comply with this aspect of the Plan. Further consideration was required to identify the support measures necessary to enable effective implementation.

11. An informal working group (made up of iwi and TANK Group representatives including from Napier and Hastings Councils and policy, science and consents staff) was established in December 2019 to progress this aspect of the Plan and to understand how implementation could be supported including the resources needed to implement the policy and other management aspects. The analysis by this group identified some opportunities, leading to this report and a recommendation to lodge a submission.

12. The Section 32 report's evaluation of this issue concentrated more on the feasibility of the solution rather than on the method of delivery, as it was the concept that was of most concern to stakeholders, including iwi.

13. However, in examining how to support implementation of this policy, the working group gave consideration to how the management approach was successfully adopted in Twyford. They raised a concern that this collective approach might not automatically translate well to a wider scale for multiple waterways as a way of managing the cumulative effects of nearly two thousand permit holders although they recognised the value in this approach in some circumstances.

14. These aspects of the Plan are complex and without appropriate support pose significant implementation risk, particularly in managing identification and assessment of feasible solutions, equitable funding across all affected streams and funding and roll out. The working group highlighted a possible risk that scheme development by consent holders could be haphazard and incomplete resulting in failure which would have huge implications for future water supply and demand in the Heretaunga Plains.

15. Key complexities about successful implementation are described in more detail below. They are not related to new information as the complexities of managing ground and surface water in the Heretaunga Plains are already known. However, they prompted the working group to examine other options and to suggest these be considered further. While Policy 39 can be implemented by Council with appropriate resourcing, it does present some challenges which can be managed by an alternative implementation approach. The main areas presenting implementation challenges are:

15.1. solutions accounting for spatial differences according to permit expiry

15.2. not all streams are suited to the same types of solutions

15.3. managing timing for roll out of solutions

15.4. benefits of regional solutions versus local solutions

15.5. ability to prioritise

15.6. social challenges

15.7. complexity.

Managing solution development spatially by consent expiry dates

16. According to modelling, all current water permits to take groundwater in the Heretaunga Plains contribute to stream depletion, but their effects are unevenly distributed (both in relation to total impact and percentage (%) contribution to stream depletion in each stream). Each permit is required to contribute to a stream flow maintenance and enhancement scheme of the most affected stream (where the take is having its biggest stream depletion effect). However, takes may have effects on more than one stream and the plan does not clearly describe how solutions across all streams can be provided for effectively and according to permit expiry.

17. Permits with common expiry dates (in similar areas) are not necessarily the only permits with a stream depletion effect for any one stream. While all permit holders will be required to mitigate their stream depletion effect (upon review or re-application under this plan), it also requires a permit holder to be linked to the stream of greatest effect for any ban. There are nearly 2000 permits likely to be affected by these provisions and managing this many within the proposed management regime will be complex and challenging.

Applicable Streams

18. It has been noted that not all streams are well-suited to stream flow maintenance solutions. For example, in parts of the Paritua Stream where natural flow losses to groundwater are significant and a separate policy (Policy 44) directs Council to develop other solutions. The plan does not require these permits to be subject to a ban if there are no feasible pumping schemes. However, if a feasible scheme does not exist, it is unclear whether they still need to contribute to alternative solutions to mitigate their cumulative stream depletion effect.

19. Further, the working group identified that the proposed flow trigger for the Tūtaekurī-Waimate has not previously been reached. While permits will cause (cumulative) stream depletion on this and on other streams, they would be subject to a ban linked to the Tūtaekurī-Waimate Stream as it is the most affected stream. As the chances of a ban are low, a permit holder would be unlikely to choose to contribute to a stream flow maintenance scheme.

Managing roll-out of stream depletion solutions

20. The feasibility assessment, design and construction processes for each solution will not necessarily align with the expiry dates of permit holders who will need to contribute to that scheme.

21. Currently, the proposed plan takes a consent by consent approach that requires a solution for each consent. While collective action is envisaged, there is as yet no process established to enable this, despite the provisions of schedule 36. This is especially challenging given the number of consent holders involved.

22. Each permit is obliged to contribute to stream flow depletion solutions equivalent to their total stream depletion effect, but the focus is on their most affected stream. (They may also choose to go on ban instead). The way in which the plan ensures allocation of funds to all affected streams as they are developed over time has yet to be determined.

Regional solutions versus individual solutions

23. Some permit holders may be able to develop their own stream flow maintenance solution by virtue of the scale of their operation. There is a risk that potential solutions providing regional efficiency and effectiveness will be weakened by development of smaller scale localised or individual solutions. An analogy is where the Council provides regional solutions for things with wide public benefits like stop banks for flood protection. While individuals might be able to provide their own, it may be at the expense of others or wider public benefit.

24. Assessment of the overall costs and benefits of the preferred solutions should ideally be done at a catchment scale so that overall efficiency and effectiveness of the solutions can be optimised.

25. There is an opportunity for resolution of this issue to focus on regional benefit rather than private solutions/benefits. There is no mechanism by which a regional approach to the development of solutions by consent holders is currently enabled or required.

26. This regional approach potentially allows for larger scale measures that provide benefits for more streams. It includes consideration of water storage and release schemes that would provide mitigation at a larger scale than envisaged by the groundwater pumping solutions alone.

27. Through the 2018-28 LTP Council established regional funding and policy for community scale water augmentations schemes. This funding was used as leverage for a more ambitious programme of work through the Provincial Growth Fund. Delays resulting from 2019 Council Elections and PGF negotiations meant that HBRC could only recently commit to and fund a leadership role in relation to this aspect of TANK (The Heretaunga PGF Agreements were only signed by the Crown on 20 April 2020), supporting the solutions suggested in this submission.

Prioritising

28. The Proposed Plan does not enable prioritising any particular scheme. For example, the Plan does not enable fast tracking or priority development of a highly effective solution or any scheme that provides benefit for multiple permit holders. The proposed mechanism initiates solutions by conditions on water permits and this will depend on expiry date of the permit.

Social Challenges

29. The plan requires contribution to or development of a solution on a permit by permit basis. The plan enables permit holders to work collectively, but there is little to guide how permit holders can do this effectively, nor force them to work collectively. Some permit holders, especially small-scale water users may prefer just to contribute to an established scheme and not be part of a more sophisticated management system. There are nearly two thousand water permits affected by these provisions and this large number adds to the challenge of deciding on and developing workable solutions.

Simplicity

30. Implementing solutions to offset the collective impacts of groundwater use on the Heretaunga Plains, without resorting to potentially catastrophic bans and/or allocation clawbacks, was always going to represent a significant challenge for all water users. Although the Twyford operating model provided some comfort that the proposed solution was both practical and implementable, it was acknowledged that it was not without its challenges. Staff agree that a community scale approach stands a greater chance of success and now that we are in a position to do that then it is appropriate to incorporate it as a policy implementation pathway.

31. There is an opportunity to consider alternative solutions that enable the same objectives to be met in a more cost effective, simpler and efficient way. The HBRC has access to resources, including funding, staff and information as well as wider functions and powers to develop solutions that are delivered through plan policies and rules. The Council has a potential role to play in helping to understand what the most appropriate solutions are using efficient and cost-effective means on behalf of the water permit holders and wider community.

Options Assessment

Options for Managing Stream Depletion

Option 1 – status quo

32. This option is for no Council submission to amend to Policy 39 and its associated provisions and leave it to other submitters to raise. We expect that given the complexity and costs involved, we will almost certainly get submissions.

33. The advantage of this approach is that submitters can consider these challenges and provide their own solutions. The stream depletion effect caused by permit holders remains an issue to be resolved by permit holders.

34. The disadvantage is that solutions may focus at an individual or water permit scale with little consideration of joining-up local solutions. The complexity inherent in requiring individual consent holders to collaborate across spatial, temporal and proportional differences is a significant risk to plan implementation. It is likely that industry representation will be made on behalf of sector interests. However, industry and sector interests may not be able to account fully for wider community and iwi interests in developing efficient or effective solutions for all affected streams and rivers at a catchment scale.

35. This status quo option does not enable the Council to show leadership and develop appropriate catchment scale water management solutions that address a cumulative effect from multiple water permit holders across the Heretaunga Plains.

36. Further, decision-making and solution finding will be bound by the scope of submissions received at this stage, therefore there is a risk that targeted narrow-focussed submissions would preclude Hearing Panel’s consideration of wider range of solutions, even if one of those solutions was far superior.

Option 2 – Council led approach

37. This option is for Council itself to make a submission on the TANK plan seeking amendment of Policy 39 and associated provisions. This would proactively and intentionally ensure that the scope of solutions which the Hearings Panel can consider does indeed include Council-led, catchment-wide solutions that also account for opportunities to leverage government funding and ensure the necessary links are made with the work currently underway through the Water Security programme.

38. A Council submission provides stakeholders with necessary information about the Council’s wider water security programme and how it can complement the direction and implementation of the TANK Plan. The Council is currently taking advantage of its own LTP and government funding of the Regional Water Security project which is identifying possible options for and assessing feasibility of solutions that will improve water security for water users, enable stream flows to be maintained across Heretaunga Plains waterways and the Ngaruroro River, improve aquatic ecosystem health and contribute to supporting development of community resilience in the face of climate change.

39. It should be noted that by the Council making a submission, does not guarantee that the Council's request will be automatically upheld by the Hearings Panel. The Hearings Panel will need to consider the merits of the Council's submission and those further submitters who may support or oppose the requested amendment.

40. This report suggests reconsidering the approach taken to manage the cumulative impact of multiple takes on lowland streams in the Heretaunga Plains and to develop a catchment-wide approach. A more co-ordinated and Council-led structured approach should be considered to identify options, assess feasibility, and develop management solutions for maintaining the flows in lowland streams above trigger flows. This sort of approach depends on the Regional Council playing a key leadership and facilitation role.

41. This approach potentially enables more cost effective and efficient stream flow maintenance solutions to be delivered across all affected consents and connected water bodies. The complexities involved in making individual consent holders responsible for solutions that address cumulative effects at the scale envisaged are described above. These complexities support the Council taking a stronger lead role to developing solutions.

42. In parallel, the Plan also specifically identified a storage and release solution needed to be investigated for managing the stream depletion effect on the Ngaruroro River. It recognises that the scale and complexity of this scheme requires a catchment scale approach and that the HBRC plays a critical role in working with iwi and affected communities to identify options and assess feasibility. A submission by Council on this issue will allow consideration of a similar approach to manage the stream depletion effects by the same permit holders and enable consideration of more integrated solutions.

43. Storage and release solutions can sit alongside groundwater pumping solutions that collectively enable the stream flow maintenance requirements to be met. Storage solutions are more likely to be at a catchment scale and potentially more costly than single stream based pumping solutions.

44. An approach that involves Council direction and co-ordination at a catchment scale requires amendments to the proposed TANK Plan policy 39 that directs how stream flow maintenance and habitat enhancement schemes are developed, implemented and funded by consent holders.

45. This policy change also has implications for Council’s budget, although the Water Security Programme already underway already addresses this issue.

Funding and timing challenges

46. Previous legal advice made it clear that consent conditions could not make consent holders dependant on the Council or third party to carry out an action before they can be compliant. A service charge could not be imposed through a resource consent because the service (stream flow maintenance scheme) has not yet been established by the Council and there is no detail or certainty for consent holders about costs and what this entails.

47. An alternative to the proposed plan requirements is for Council to carry out all the investigation, feasibility and design work for stream flow maintenance solutions. Timeframes could be specified to ensure the work is undertaken in a timely manner. Work to establish the Water User Collectives where appropriate could also be commenced in the interim as part of the development of management and operational planning for each scheme where necessary.

48. An alternative funding solution to support the Council’s involvement in developing catchment wide solutions needs to be developed. Options include:

48.1. The use of the financial contribution mechanism in the RMA (section 108).

48.2. Developing water security solutions and imposing targeted rates to fund them.

48.3. Establishing a separate entity and make contributions to or membership of the entity a condition of water abstraction.

Financial Contributions

49. In order for a financial contribution payment to be imposed on a consent holder under the RMA, firstly the regional plan must state the purpose for which the financial contribution is required, and describe the manner in which the level of contribution is determined.

50. The purpose for a financial contribution can be clearly linked to the provision of a stream flow maintenance or habitat enhancement scheme that maintain trigger flows at the specified levels or reduce water temperatures or increase oxygen levels to the levels stated in objectives.

51. The manner for determining the level of contribution can also be clearly described in terms of the stream depletion quantity or rate calculated for each permit and the costs calculated as an equitable proportion of the total costs of the schemes. (An exception can still be provided for consents to take water for essential human health as already intended by the proposed plan).

52. The plan could require a financial contribution to be payable only after the scheme solutions have been developed and agreed by Council in consultation with the community, iwi and permit holders. The actual amount of contribution will be calculated and imposed through a consent review condition once the stream flow maintenance solutions have been identified. Council would underwrite the costs until all consents have been reviewed under the new plan policies.

53. However, the financial contribution is generally a one-off up-front contribution to a solution. In this case we will have on-going operational scheme costs that will need to be funded.

Targeted Rate

54. One way of Council funding the costs of developing, constructing and operating the stream flow solutions is through a rate charged either spatially in the area receiving this service or via holders of water permits who take water in the service area. A rate can also be used to recover operational costs from those who receive the benefits of this service. They can be met by a rate solution that either covers all costs or may be used to cover the operational cost short fall identified as a concern with financial contributions.

55. As above, this option also relies on the Council taking a lead role to explore and develop stream flow maintenance solutions as part of its broader local government roles and responsibilities. The details of funding policies via rates etc do not need to be specified in the TANK plan, but the establishment of a rate becomes a method of implementation.

56. A rate removes implementation and funding of stream flow maintenance solutions out of RMA plan rules and therefore requirements are not imposed on water permit holders through consent conditions.

57. This funding solution for the stream flow maintenance takes some of the control and contribution to developing solutions away from water permit holders and places it with the Council as the provider of the service. It is potentially less flexible than the financial contribution option as it does not readily enable water user involvement in a way that allows for local solutions and management, as exemplified by the Twyford Irrigators.

Contribution or membership to a separate entity

58. This option relies on an entity, which may include Council or be a wider council and community entity, to develop, construct and operate all or some of the water solutions. A permit holder’s future water use would be contingent on the membership or contribution to the entity.

59. The entity would require the mandate to carry out this work and a clear pathway towards the solutions development. Such an entity does not currently exist so the Proposed TANK plan would need to be amended explicitly enable this approach to be developed. Future plan changes would also be required to enable such a provision to be given effect to.

Application

60. We recommend removing the option for permit applicants to elect a ban as an opt out for contributing to a scheme. This is because all permits contribute to the cumulative stream depletion effect, however, in some streams a ban has no impact on the permit holder (e..g. Tutaekuri-Waimate) or there may be alternative management solutions for a particular stream (such as has been identified for the Paritua). The schemes under this recommended approach would be developed as a catchment-wide solution for all the cumulative effects and the costs can be spread equitably across all consent holders.

Policy direction: Draft amendments to Policy 39

61. We have not yet been able to comprehensively develop the funding options to the point of being able to recommend a single option. Consequently, the recommended submission seeks changes be made to Policy 39 to enable a Council led development of the stream flow maintenance solutions that signals the commitment by Council to provide a greater degree of leadership and co-ordination and includes a direction to develop a funding mechanism that imposes the costs of the mitigation on water permit holders. This submission would provide a guide to other submitters about Council’s intentions and if supported enable further details of precise funding solution to be developed as part of the submissions and hearings process with stakeholder inputs.

62. The submission is recommended to read as follows.

62.1. Delete Policy 39 and replace it with a new policy along the following lines:

The Council will

(a) consult with iwi and other relevant parties to investigate the environmental, technical, cultural and economic feasibility of options for stream flow maintenance and habitat enhancement schemes including water storage and release options and groundwater pumping and discharge options that:

(i) maintain stream flows in lowland rivers above trigger levels where groundwater abstraction is depleting stream flows and:

(ii) improve oxygen levels and reduce water temperatures:

(b) determine the preferred solutions taking into account whether:

(i) wide-scale aquatic ecosystem benefits are provided by maintaining stream flow across multiple streams

(ii) multiple benefits can be met including for flood control and climate change resilience

(iii) the solutions are efficient and cost effective

(iv) scheme design elements to improve ecological health of affected waterbodies have been incorporated

(v) opportunities can be provided to improved public access to affected waterways.

(c) develop and implement a funding mechanism that enables the Council to recover the costs of developing, constructing and operating stream flow maintenance and habitat enhancement schemes from permit holders, including where appropriate,

(i) management responses that enable permit holders to manage local solutions and

(ii) commitment to develop any further plan change within an agreed timeframe if necessary to implement a funding solution

(d) ensure that stream flow maintenance and habitat enhancement schemes are constructed and operating within ten years of the operative date of the Plan while adopting a priority regime according to the following criteria:

(i) solutions that provide wide-scale benefit for maintaining stream flow across multiple streams

(ii) solutions that provide flow maintenance for streams that are high priority for management action because of low oxygen levels

(e) review as per Policy 42 if no schemes are found to be feasible.

62.2. Make amendments to TANK Rules 9 and 18 and Schedule 36, plus other consequential amendments to enable the new policy to be implemented.

Strategic Fit

63. The submission is consistent with the delivery of multiple strategic goals including in relation to water quality safety and certainty, sustainable land use, and sustainable services and infrastructure.

Significance and Engagement Policy Assessment

64. The Council’s submission will be considered along with all other submissions made on the Plan by the Hearings Panel (which is yet to be appointed). It is part of the submission-making processes in Schedule 1 of the RMA.

65. In terms of Council’s Significance and Engagement Policy, this matter is Not Significant.

Climate Change Considerations

66. The submission does not directly impact on climate change however, the implementation of this policy will contribute to climate change mitigation and adaptation.

Considerations of Tangata Whenua

67. The RPC has already considered tangata whenua impacts of the proposed TANK plan change in meetings since August 2018 including in respect of stream flow maintenance.

68. All submitters including iwi authorities and marae within the TANK catchments are being invited to make submissions on the proposed Plan Change themselves. There is also a subsequent opportunity to make further submissions in support or opposition of any original submission.

Financial and Resource Implications

69. This aspect of the plan implementation already had implications for Council budgets and staff resources, particularly in relation to enabling and supporting permit holders to develop stream flow maintenance solutions.

70. This new policy places more responsibility on Council to find solutions and provide community leadership and allows a more regional focus that can account for wider community benefits. It also potentially enables the use of other Council powers such as rating to address recovery of costs. Some risk that all costs may not be recovered from consent holders exists and Council will underwrite costs of scheme development until water permits become subject to the new plan provisions.

Consultation

71. This decision enables submitters and those with an interest in the Proposed TANK Plan Change to support or oppose the council’s submission as part of the Schedule 1 process. Advice about the submission can be provided to submitters as part of the plan consultation process currently underway.

Decision Making Process

72. Council and its committees are 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:

72.1. The decision does not significantly alter the service provision or affect a strategic asset.

72.2. The use of the special consultative procedure is not prescribed by legislation.

72.3. The decision is not significant under the criteria contained in Council’s adopted Significance and Engagement Policy.

72.4. The persons affected by this decision are iwi and stakeholders with an interest in the management of water in the TANK catchments, particularly the Heretaunga Plains

72.5. The decision is not inconsistent with an existing policy or plan.

72.6. 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.

Recommendations

1. That the Regional Planning Committee receives and considers the “HBRC TANK Plan Change Submission” staff report.

2. The Regional Planning Committee recommends that Hawke’s Bay Regional 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 the Committee can exercise its discretion and make decisions on this issue without conferring directly with the community or persons likely to have an interest in the decision.

2.2. Lodges a submission on the Proposed TANK Plan Change 9 before 3 July 2020 that seeks replacement of Policy 39 with a new policy along the following lines.

2.2.1. Hawke’s Bay Regional Council will:

(i) maintain stream flows in lowland rivers above trigger levels where groundwater abstraction is depleting stream flows and:

(ii) improve oxygen levels and reduce water temperatures:

(b) determine the preferred solutions taking into account whether:

(i) wide-scale aquatic ecosystem benefits are provided by maintaining stream flow across multiple streams

(ii) multiple benefits can be met including for flood control and climate change resilience

(iii) the solutions are efficient and cost effective

(iv) scheme design elements to improve ecological health of affected waterbodies

(v) opportunities can be provided to improved public access to affected waterways.

(i) management responses that enable permit holders to manage local solutions and

(ii) commitment to develop any further plan change within an agreed timeframe if necessary to implement a funding solution

(i) solutions that provide wide-scale benefit for maintaining stream flow across multiple streams

(ii) solutions that provide flow maintenance for streams that are high priority for management action because of low oxygen levels

(e) review as per Policy 42 if no schemes are found to be feasible.

2.2.2. make amendments to TANK Rules 9 and 18 and Schedule 36, plus other consequential amendments as necessary to enable the new policy to be implemented including removing a choice between contribution to stream flow maintenance and a ban on abstraction at trigger flows.

Authored by:

Mary-Anne Baker

Senior Planner

Ceri Edmonds

Manager Policy and Planning

Approved by:

Tom Skerman

Group Manager Strategic Planning

Attachment/s

There are no attachments for this report.

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 03 June 2020

Subject: Proposed Plan Change 6A: Tukituki Catchment Table 5.9.1D

Reason for Report

1. This report presents a proposed plan change to amend Table 5.9.1D in the Hawke’s Bay Regional Resource Management Plan (RRMP), recalibrating the nitrogen leaching figures using the current version of OverseerFM. A technical fix is highly desirable to ensure that all resource consent applications within the Tukituki Catchment use the current and only available version of Overseer.

Officers’ Recommendation(s)

2. Council officers recommend that the Committee considers the information provided within and attached to this agenda item to determine whether to initiate a plan change to the Regional Resource Management Plan (RRMP) as proposed.

3. Further, staff recommend that, subject to their consideration of feedback received on pre-notification consultation, the Committee agrees to publicly notify Proposed Plan Change 6A: Tukituki Catchment Table 5.9.1D,. This consultation is currently being undertaken and feedback will be provided through a supplementary report prior to this meeting.

Executive Summary

4. The proposed plan change ensures that the RRMP prescribes the right ‘tools’ for resource consenting by recalibrating the nitrogen leaching table (Table 5.9.1D) to reflect the equivalent numbers generated by the current and only available version of Overseer.

Background

5. At the start of this year, Federated Farmers requested the Council initiate a plan change to rectify the issue arising from the nitrogen leaching table being based on a much older version of Overseer. Typically, Overseer FM estimates a higher leaching rate than Overseer v5.4.3 (used in developing Table 5.9.1D) from exactly the same inputs. This leaching estimate is one of the determinants for needing resource consent, and it also determines the activity status for any such consent application (whether restricted discretionary or non-complying)

6. The request from Federated Farmers was considered by the RPC at their meeting on 18 March 2020. RPC recommended preliminary consultation be undertaken on making such a change. That RPC report contains more background on the issue and request.

7. In the meantime, a drought has been declared and COVID 19 restrictions are still in force. Note that the separate report to this committee meeting on implementation of the original Tukituki plan change 6 sets out the actions that Council has taken as a consequence of the drought and lockdown with respect to the need for farmers to gain consent.

Origins of Table 5.9.1D

8. Prior to commencing consultation, staff have undertaken further research on the origins of Table 5.9.1D, to better understand what farm system information was used in estimating nitrogen leaching with Overseer v5.4.3. This was to ensure that the same information would be used in re-estimating nitrogen leaching using OverseerFM.

9. The ‘natural capital’ approach was first investigated as a potential approach for managing Nitrogen at a farm scale for the Tukituki Catchment Plan in a 2012 report Nutrient Management Approaches for the Tukituki Catchment, commonly referred to as the Benson report.

10. In the report a Land Use Capability (LUC) based Nitrogen loss table was created. It saw allowable leaching rates varying spatially across the landscape, with the spatial variation being linked to the underlying LUC. Overseer nutrient modelling software was used to determine a Nitrogen leaching limit for each LUC.

11. The approach was initially developed by Dr Alec McKay for the Manawatu-Whanganui Regional Council (Horizons) and has been used in their One Plan since it became operative in 2013. The approach is explained in the following technical document:

11.1. http://www.horizons.govt.nz/HRC/media/Media/One%20Plan%20Documents/Defining-nutrient-nitrogen-loss-limits-within-a-water-management-zone-on-the-basis-of-the-natural-capital-of-soil.pdf?ext=.pdf

12. Using this approach, the following table was developed for the Tukituki Catchment:

Table 1: LUC leaching rates for Tukituki Catchment

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13. It was not included in the originally notified proposed Tukituki Catchment Plan Change 6 in 2012. Instead, it was inserted as Table 5.9.1D through the Board of Inquiry process in 2015.

14. It is important to note this natural capital approach does not link to the RRMP limits and targets for nitrogen in surface and ground water in the Tukituki Catchment.

15. In 2012, the approach was new and novel. It has since met much scrutiny over its lack of relationship with Nitrogen loads in river, for example through the Waikato and Bay of Plenty Regional Councils’ recent plan changes on nitrogen leaching.

16. For Waikato’s proposed plan change, the hearings panel made the following comments, which equally apply to the Tukituki Catchment, where Table 5.9.1D sets the activity status for farming activities and nitrogen leaching:

16.1. The downside of specifying N leaching numbers is that those numbers have been identified using a version of Overseer that has now been superceded by OverseerFM, and that means that there will be something of a mismatch between future modelled N leaching numbers and the trigger values we recommend. However, we will address that to some extent by the policies we will recommend, and the significance of any mismatch is reduced by the fact that the significance of the nominated values is that they determine consent status, rather than acting as hard limits.

16.2. https://www.waikatoregion.govt.nz/assets/WRC/WRC-2019/Volume-1-Hearings-Panel-Recommendations.pdf (paragraph 696, page 160).

Recalibrating Table 5.9.1D

17. Table 5.9.1D can be recalibrated using the latest version of Overseer to enable the relative consenting activity status thresholds to be retained between the use of Overseer v5.4.3 and Overseer FM (i.e. if a farm required a restricted discretionary consent using Overseer v 5.4.3, it would still need a restricted discretionary consent under OverseerFM).

18. Horizons used Massey University to undertake this work. The reports associated with the recalibration are below.

18.1. http://www.horizons.govt.nz/HRC/media/Media/One%20Plan%20Documents/FLRC-Revised-Table-14-2-Summary-Report-(Part-A-and-B)-January-2018.pdf?ext=.pdf

18.2. http://www.horizons.govt.nz/HRC/media/Media/One%20Plan%20Documents/FLRC-Revised-Table-14-2-Summary-Report-(Part-C)-July-2018.pdf?ext=.pdf

19. If Table 5.9.1D is based on the Horizons table, then it may be a simple exercise of updating using the same percentage changes.

20. The table below applies the percentage increases determine in Horizons table to Table 5.9.1D

Table 2: Recalibration of Table 5.9.1D

	LUC I	LUC II	LUC III	LUC IV	LUC V	LUC VI	LUC VII	LUC VIII
Original (v 5.2.6) kgN/ha/year	30.1	27.1	24.8	20.7	20	17	11.6	3
Revised kgN/ha/year	50.9	45.3	41.7	33.8	31.3	27	16.4	4.5
Change	69.0%	67.0%	68.3%	63.3%	56.3%	58.7%	41.3%	50.0%

Options Assessment

21. Three main options have been considered to address the issue arising in Table 5.9.1D from the use of Overseer in estimating nitrogen leaching.

Option 1: Recalibrate Table 5.9.1D using OverseerFM on the same farm systems assessed under Overseer v5.4.3

21.1. In the first option, a technical change is made to the plan as the RMA still requires a plan change to be made when any technical material is updated. Table 5.9.1D was generated using Overseer v5.4.3, which is outdated and no longer available. This change generates the equivalent leaching rates from the same farm systems using OverseerFM, the most up to date and only available version of Overseer

Option 2: Do not proceed with the plan change to recalibrate Table 5.9.1D

21.2. No change is made to the plan with the second option. In practice, OverseerFM would be used to estimate nitrogen leaching in the absence of any other available tool. The mis-match of estimates generated by the two versions would not be addressed through the plan. Rather, the resource consent process would somehow need to accommodate the differences.

Option 3: Undertake a comprehensive review of how best to estimate nitrogen leaching

21.3. The third option recognises that there are existing issues in the use of Overseer as a tool for regulating nitrogen leaching. For example, the Parliamentary Commissioner for the Environment in his 2018 report Overseer and regulatory oversight: Models, uncertainty and cleaning up our waterways identifies a number of issues relating to the use of Overseer in regulation. This change would involve a comprehensive review of how best to estimate and manage nitrogen leaching. Accordingly, it would take much longer to prepare as no alternative tool has been developed and there is no obviously better alternative management regime.

22. The table below provides a summarised evaluation of each option, in accordance with Section 32 RMA. Further detail of the analysis is provided in Appendix A: Section 32 Evaluation of proposed change: Tukituki catchment Table 5.9.1D.

Table 3: Summary s32 evaluation of Table 5.9.1D Overseer plan change options

Evaluation Matter	1: Recalibrate only	2: Do nothing	3: Review N leaching
Cost of plan change	- Additional cost, but if wide support cost of making plan change will be minimised	+++ No cost	- - - Significant additional cost would be incurred as this would involves a more comprehensive review
Resolve inequity of using OverseerFM estimate of N leaching	+++ Enables the right Overseer tool to be used	- - Mismatch between outputs from the 2 versions of Overseer	+++ Enables the best current tools to be used
Impact on actual N leaching	No difference to status quo	No difference to status quo	+++ Assume reduced N leaching when the best N management regime is in place
Impact on receiving environment	++ Assumes that once resource consents are in place, better practices will be adopted	++ Assumes that once resource consents are in place, better practices will be adopted	+++ Assumes that the best regime will deliver the best outcome
Timeliness of change for consenting	+++ A simple technical fix will inform current consenting process	No impact as no change is being made	- - - Review will not be completed within current consent round
Impact on efficiency of consenting	+++ One tool is used by all parties	- - - Some parties may try to use Overseer v5.4.3	- - - Inefficient as any change will not be able to be used in this round of consenting
Impact on consent activity status	+++ Clear & consistent activity status in line with the when the Tukituki plan change was made operative in 2015	- - Using OverseerFM more consents will be assessed as non-complying activities A few more will need to apply for consent	Not applicable to current consent round
Impact on certainty of consent outcome	++ With fewer consents assessed as non-complying, there is more certainty of being able to gain consent	- - - The higher threshold for granting non-complying activity consent (s104D) means there is greater uncertainty of gaining these consents	Not applicable to current consent round
Impact on plan change programme giving effect to NPSFM	- or - - - Minimal impact if there is full support for making this change Significant diversion of resources if there is opposition to making the technical fix, especially any appeal should eventuate	No impact on NPSFM plan change programme	- - - Isolating out a review for the Tukituki Catchment only will create a significant diversion of resources from the NPSFM plan change programme. Note that this matter will still be reviewed, but on a regional basis
Impact on tangata whenua/mana whenua	No impact as this is a technical fix only	No impact as there is no change to the current situation	? Unknown, as this will depend on work that has not been done yet
Impact on wider community	No impact as this is a technical fix only	No impact as there is no change to the current situation	? Unknown, as this will depend on work that has not been done yet
Impact on economic activity/employment	++ Enables consents to be obtained using clear currently available tools	- - - Possible confusion as to which version to use Delays & extra costs in preparing more detail for non-complying consent applications	? Unknown, as this will depend on how land users react to delays & risks around any change to the consenting environment
Risk	The main risks are around being able to undertake the plan change quickly so that it can be used for the current consent round. If there is significant opposition (noting that pre-notification consultation may not identify all concerns) and if there is any appeal to the Environment Court, costs of proceeding would exceed any benefit derived. If reforms to the RMA include the new freshwater planning process, there will be significant delay and complexity in establishing the new hearing and deliberation process using freshwater commissioners Although the drought and COVID 19 pandemic are important in terms of impacts on economic and social wellbeing of Tukituki residents, they are not clearly linked to the solution sought by making the technical fix	The reduced certainty of outcome and likely higher cost for non-complying applications The risk of applications using different versions of Overseer (back door access to v5.4.3) confusing science modelling for allocation of N to consents within a sub-catchment The risk of consent appeal relating to the version of Overseer applied to the consent & for the catchment The risk that some land users will delay supplying, or refuse to supply, data because of the original tool (v5.4.3) not being available	The use of Overseer in regulation is still under debate nationally. The best use for Overseer in regulation is still unknown HBRC would replicate work being done nationally & could land in a different space to any future national direction
Efficiency	Efficient if the change can be undertaken as quickly as possible: · It does not use the proposed freshwater planning process, which may still come into effect from mid-2020 · There is no significant opposition and no appeals (as gauged through consultation & submission making activities)	Inefficient in that 2 ways of estimating N leaching, with quite different results from the same inputs Leads to confusion & duplication of effort to standardise all N leaching information in order to be able to allocate fairly & transparently	Not efficient to address the current consent round as the delay in notification of a proposal would be too long – possibly at least a year away
Effectiveness	Effective in that: · All consent applications use the current and only available tool · N consent allocations can be made from one common method for estimating N leaching	Less effective if land users do not supply N leaching data at the same time, resulting in delay in calculating catchment N loads	Ineffective in addressing the current round of consents Effective in the longer term, for re-consenting in future

Evaluation Matter

1: Recalibrate only

2: Do nothing

3: Review N leaching

Cost of plan change

Additional cost, but if wide support cost of making plan change will be minimised

+++

No cost

- - -

Significant additional cost would be incurred as this would involves a more comprehensive review

Resolve inequity of using OverseerFM estimate of N leaching

+++

Enables the right Overseer tool to be used

- -

Mismatch between outputs from the 2 versions of Overseer

+++

Enables the best current tools to be used

Impact on actual N leaching

No difference to status quo

+++

Assume reduced N leaching when the best N management regime is in place

Impact on receiving environment

Assumes that once resource consents are in place, better practices will be adopted

+++

Assumes that the best regime will deliver the best outcome

Timeliness of change for consenting

+++

A simple technical fix will inform current consenting process

No impact as no change is being made

- - -

Review will not be completed within current consent round

Impact on efficiency of consenting

+++

One tool is used by all parties

- - -

Some parties may try to use Overseer v5.4.3

- - -

Inefficient as any change will not be able to be used in this round of consenting

Impact on consent activity status

+++

Clear & consistent activity status in line with the when the Tukituki plan change was made operative in 2015

- -

Using OverseerFM more consents will be assessed as non-complying activities

A few more will need to apply for consent

Not applicable to current consent round

Impact on certainty of consent outcome

With fewer consents assessed as non-complying, there is more certainty of being able to gain consent

- - -

The higher threshold for granting non-complying activity consent (s104D) means there is greater uncertainty of gaining these consents

Not applicable to current consent round

Impact on plan change programme giving effect to NPSFM

- or - - -

Minimal impact if there is full support for making this change

Significant diversion of resources if there is opposition to making the technical fix, especially any appeal should eventuate

No impact on NPSFM plan change programme

- - -

Isolating out a review for the Tukituki Catchment only will create a significant diversion of resources from the NPSFM plan change programme.

Note that this matter will still be reviewed, but on a regional basis

Impact on tangata whenua/mana whenua

No impact as this is a technical fix only

No impact as there is no change to the current situation

Unknown, as this will depend on work that has not been done yet

Impact on wider community

No impact as this is a technical fix only

No impact as there is no change to the current situation

Unknown, as this will depend on work that has not been done yet

Impact on economic activity/employment

Enables consents to be obtained using clear currently available tools

- - -

Possible confusion as to which version to use

Delays & extra costs in preparing more detail for non-complying consent applications

Unknown, as this will depend on how land users react to delays & risks around any change to the consenting environment

Risk

The main risks are around being able to undertake the plan change quickly so that it can be used for the current consent round.

If there is significant opposition (noting that pre-notification consultation may not identify all concerns) and if there is any appeal to the Environment Court, costs of proceeding would exceed any benefit derived.

If reforms to the RMA include the new freshwater planning process, there will be significant delay and complexity in establishing the new hearing and deliberation process using freshwater commissioners

Although the drought and COVID 19 pandemic are important in terms of impacts on economic and social wellbeing of Tukituki residents, they are not clearly linked to the solution sought by making the technical fix

The reduced certainty of outcome and likely higher cost for non-complying applications

The risk of applications using different versions of Overseer (back door access to v5.4.3) confusing science modelling for allocation of N to consents within a sub-catchment

The risk of consent appeal relating to the version of Overseer applied to the consent & for the catchment

The risk that some land users will delay supplying, or refuse to supply, data because of the original tool (v5.4.3) not being available

The use of Overseer in regulation is still under debate nationally.

The best use for Overseer in regulation is still unknown

HBRC would replicate work being done nationally & could land in a different space to any future national direction

Efficiency

Efficient if the change can be undertaken as quickly as possible:

· It does not use the proposed freshwater planning process, which may still come into effect from mid-2020

· There is no significant opposition and no appeals (as gauged through consultation & submission making activities)

Inefficient in that 2 ways of estimating N leaching, with quite different results from the same inputs

Leads to confusion & duplication of effort to standardise all N leaching information in order to be able to allocate fairly & transparently

Not efficient to address the current consent round as the delay in notification of a proposal would be too long – possibly at least a year away

Effectiveness

Effective in that:

· All consent applications use the current and only available tool

· N consent allocations can be made from one common method for estimating N leaching

Less effective if land users do not supply N leaching data at the same time, resulting in delay in calculating catchment N loads

Ineffective in addressing the current round of consents

Effective in the longer term, for re-consenting in future

Preferred Option

23. On the basis of the above evaluation, staff recommend the first option, recalibrating Table 5.9.1D using OverseerFM, the currently available tool for estimating nitrogen leaching. This will enable:

23.1. Consent activity status thresholds to be retained between the old and current versions of Overseer (the numbers of restricted discretionary and non-complying consent applications would be similar to that provided for when in 2015)

23.2. Use of the most up to date tool, OverseerFM for the current round of consent applications

23.3. Clear and consistent use of the only publicly available version, OverseerFM, enabling more efficient consent processing.

24. Staff note the risks arising from any significant lack of support for the technical fix, and the likely changes to freshwater plan-making processes, which are due to be announced ahead of the 3 June RPC meeting. These are addressed in the following section, Next Steps.

25. Staff note that this technical fix is specifically intended to address only the issue of the change in tool being available for estimating Nitrogen leaching in terms of Table 5.9.1D for the Tukituki Catchment. It does not address a wider review of the use of Overseer in regulation (described as Option 3, above), which would otherwise occur as part of any review of plan provisions.

Pre-notification consultation

26. For the technical fix to be effective, the plan change needs to have good support from the wider community and to be notified in sufficient time to be used for the current round of consent applications for nitrogen leaching in the Tukituki Catchment.

27. Accordingly, staff have now initiated consultation in terms of clause 3 Schedule 1 RMA, and in line with their delegations. Staff are consulting with the following people and entities:

27.1. The Minister for the Environment

27.2. The Minister of Conservation

27.3. The Minister for Primary Industries

27.4. Relevant local authorities (Central Hawke’s Bay District Council, Hastings District Council, Horizons Regional Council)

27.5. Iwi authorities of the Tukituki Catchment

27.6. Regional farming representative organisations (e.g. Federated Farmers, Beef and Lamb, Dairy NZ)

27.7. Tukituki Leaders Forum.

28. A copy of the pre-notification consultation letter is attached as Appendix B, which includes the possible change to Table 5.9.1D as well as the summary evaluation provided at paragraph 23, above.

Next Steps

29. Staff will provide a supplementary report to the RPC on feedback received on the pre-notification proposal by the end of this month (May 2020). The section 32 Evaluation Report (Appendix A) will be updated accordingly. If there is significant opposition to the technical fix, such that it is likely to generate appeal to the Environment Court, then the RPC will need to carefully consider whether or not to proceed to notification.

30. The RPC’s recommendation will go forward to the 24 June Council meeting. Should the RPC recommend a plan change, and Council resolve accordingly, the proposal could then be notified on Saturday 27 June. This should be ahead of any reform to the RMA coming into effect. Should the RPC recommend abandoning the plan change in light of feedback received, then all those invited to provide feedback will be informed accordingly.

31. At the time of writing this report, the government has not yet released their decisions on RMA reforms for freshwater planning which were originally signalled to be out by mid-2020.

32. Appendix C shows the proposed plan change to Table 5.9.1D, as it stands prior to receiving feedback.

Strategic Fit

33. The proposed plan change gives effect to Strategic Outcome 1: Water quality, safety and security. It recognises the change to the strategic driver: technology, data and information.

Significance and Engagement Policy Assessment

34. The RMA requires pre-notification consultation is undertaken with those organisations identified in clause 3 Schedule 1, and then prescribes the plan notification and submission-making processes in subsequent clauses of Schedule 1.

35. In terms of Council’s Significance and Engagement Policy, this matter is not significant.

Climate Change Considerations

36. The proposed plan change does not directly impact on climate change. However, the actions that land users take within the Tukituki Catchment, in giving effect to any required new consents, will contribute cumulatively to climate change mitigation and adaptation.

Considerations of Tangata Whenua

37. The RPC have already considered tangata whenua impacts of this proposed change generally, at the March 2020 RPC meeting when they resolved to proceed with initiating a plan change to recalibrate Table 5.9.1D.

38. Iwi authorities and marae within the Tukituki catchment are being consulted at the moment in terms of the proposal. Their feedback and any proposed response will be specifically addressed in the supplementary report.

Financial and Resource Implications

39. No specific budget has been assigned in the Annual Plan for this project.

40. By taking a ‘fast failure’ approach to testing support for the technical fix, it is envisaged that plan development costs will be minimised and can be covered through internal reallocation of staff and other resources.

Consultation

41. Consultation is currently being undertaken with people and entities interested, as required by clause 3 Schedule 1 RMA.

42. Should the proposal be notified, the RMA sets the submission and hearing process in Schedule 1 RMA.

Decision Making Process

43. Council and its committees are 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:

43.1. The decision does not significantly alter the service provision or affect a strategic asset.

43.2. The use of the special consultative procedure is not prescribed by legislation.

43.3. The decision is not significant under the criteria contained in Council’s adopted Significance and Engagement Policy.

43.4. The persons affected by this decision are those people and entities with an interest in freshwater management within the Tukituki Catchment.

43.5. The decision is not inconsistent with an existing policy or plan.

43.6. The Council must use the plan making processes prescribed in Schedule 1 RMA. The usual Part 1 process for plan making is recommended, given the need to notify ahead of any reform to the RMA, and given that the benefits of this proposal will only be achieved if there is good community-wide support.

Recommendations

That the Regional Planning Committee:

1. Receives and considers the staff report on Proposed Plan Change 6A: Tukituki Catchment – Table 5.9.1D.

2. 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 or persons likely to have an interest in the decision.

Either:

3. Approves:

3.1. Proposed Plan Change 6A Tukituki Catchment – Table 5.9.1D for notification in terms of clause 5 Schedule 1 Resource Management Act 1991

3.2. The associated report, Section 32 Evaluation of proposed plan change 6A Tukituki catchment - Table 5.9.1D, and

3.3. Notifies the proposed plan change and calls for submissions on Saturday 27 June 2020.

3.4. Abandons the Table 5.9.1D plan change proposal, and requests staff inform all those who replied feedback on the consultation draft accordingly.

Authored by:

Dale Meredith

Senior Policy Planner

Kate Proctor

Senior Regulatory Advisor

Ceri Edmonds

Manager Policy and Planning

Approved by:

Tom Skerman

Group Manager Strategic Planning

Liz Lambert

Group Manager Regulation

Attachment/s

⇩1	Section 32 Evaluation Report Draft Proposed Plan Change 6A (Tukituki Catchment Table)
⇩2	Pre-notification letter template Tukituki Catchment PC6A - 18 May 2020
⇩3	Notification Draft Plan Change 6A Tukituki Catchment Overseer Table 5.9.1D - May 2020

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 03 June 2020

Subject: Policy on Notification of Water Bottling Related Consent Applications

Reason for Report

1. This item seeks feedback from the Regional Planning Committee on the potential to change the policy requiring that any application relating to water bottling is publicly notified, as requested by the Regional Council.

Officers’ Recommendations

2. Five options are proposed for the Committee to consider. This is one more than was provided in the 29 April report to Council. All options have risks but are intended to provide some relief to the public concerns with consenting water takes for bottling.

2.1. Council retain the current policy that directs staff to apply special circumstances to water bottling take consent applications. This approach was adopted in 2016 with modification in 2017. This stopped applications but it is not without risk. The risks would include that an applicant could seek costs against the Council if they apply for a water bottling use, have their application notified and heard, are required to defend their application against arguments that are not relevant under RMA, and are ultimately successful in obtaining a resource consent that allows them to take and use water for water bottling purposes.

2.2. Council or delegated Councillors/ Commissioners could assume the notification decision making responsibility on a case by case basis. If an application is to be notified, staff would then proceed to notify, process submissions and manage a hearing if required.

2.3. Initiate a Plan Change to introduce a rule that requires notification of “water bottling” activities. This is the option that presents least risk but will take time to achieve. But note that this approach could have been incorporated into the TANK Plan change, but it was not.

2.4. Revert to the pre 2016 policy that leaves the discretion with staff to consider on a case by case basis.

2.5. Retain the public notification policy while amending the definition of water bottling to allow a higher percentage content of water. This could read “taking and using water for bottling in bottles, bladders or other containers for human consumption, where the water taken makes up at least 99 % content of the container”. This would accommodate the variety of energy and other beverages that are being produced for the market without providing for pure drinking water bottling.

Executive Summary

3. The Council adopted a policy in 2016 that requires any water bottling proposal to be publicly notified.

4. Water bottling remains a contentious issue in the Hawke’s Bay Region and across the country. A lot of the opposition to water bottling is based around concerns such as foreign ownership of the businesses; that the water is exported with little value added in NZ; or the associated use of plastic bottles and the environmental effects of their downstream use and disposal. These are not activities directly associated with the taking and use of the water at the site.

5. Apollo Foods have taken the opportunity to present to staff and Council on their concerns that their plans to expand their beverage product range will be more costly and potentially constrained by publicly notification of a change to their consent conditions. They sought that Council review the current policy with their situation in mind. They are locally owned, they value add making beverages using local product, they are wanting to compete across the range of products with multi national competitors.

6. Apollo Foods are not seeking a new consent to take water nor are they seeking more water under their existing consent. They are asking for an amendment to their consent conditions to allow for a wider range of beverages in their product range.

7. This discussion affords Council the opportunity to review the policy on water bottling and in particular the requirement that water bottling includes where water taken makes up at least 90% of the content of the container.

8. There is no specific recommendation. Updated options similar to those presented in 2016 are provided for Council to consider.

Background

9. In December 2016 Council established a policy position that all takes for water bottling trigger special circumstances and therefore should be publicly notified by staff. This was amended and clarified further in May 2017.

10. Public notification of each application to take water for water bottling use would have allowed any person to submit on the application and could have led to a hearing of the application if the applicant or submitters wished to be heard. No one has applied for a resource consent to take water for water bottling use since this policy position was set.

11. The Council decided in December 2016 that:

11.1. all takes for water bottling trigger special circumstances and therefore should be publicly notified by staff.

11.2. for clarity, water bottling is defined as “taking and using water for bottling in bottles, bladders or other containers for human consumption where bore water makes up at least 90% of the content of the container”.

12. This was amended in May 2017 to provide clarification of the Council policy position by:

12.1. Amending the definition of water bottling to read “taking and using water for bottling in bottles, bladders or other containers for human consumption, where the water taken makes up at least 90% content of the container”

12.2. Amending the Hearings Committee Terms of Reference to include the delegations to hear and decide applications for lapse date extensions for water bottling resource consents

12.3. Advising that all applications to change any of the conditions of a water take resource consent for water bottling will be publicly notified

12.4. Advising that all applications to transfer a water bottling resource consent, in part or in full, from site to site will be publicly notified.

13. No applications have been lodged and therefore none have been notified since this policy position was established.

14. The ability to apply for new water from the Heretaunga Plains has changed since this policy was established. The results of the groundwater modelling work undertaken for TANK were reported to Council in August 2017. This work determined that the sustainable allocation limit for the groundwater resource was in the order of 90 million cubic meters per year. The exact volume of water allocated across the plains cannot be established as not all groundwater takes have annual volumes assigned to them but it is estimated that between 150 and 180 million cubic metres per year is allocated from the Heretaunga Plains groundwater resource. This is well in excess of the scientific recommendation and hence no more new water has been allocated since this was determined, with some exceptions.

15. There was a transition period that applied where applications in process or underway and invested in on the basis of advice given prior to this date, were processed and granted. Apollo Foods was in this group and was able to obtain their water permit at this time. Their consent was issued in October 2017. Apollo Foods were aware of the policy position on water bottling and accepted that they would not seek to use the water for water bottling.

16. A condition and an advice note were included to document that the consent did not provide for the use of the water for water bottling purposes. These provided as follows:

16.1. Condition 14. The consent holder shall undertake all operations in accordance with any drawings, specifications, statements of intent and other information supplied as part of the application for this resource consent. This includes (but is not limited to) the statement confirming that ‘water bottling’ will not occur under this consent (see Advice Note VI).

16.2. Advice Note VI Water Bottling. The consent was issued on the basis of statements made in support of the application, including that water would not be taken and used for ‘water bottling’. ‘Water bottling’ is currently defined by the Council as “taking and using water for bottling in bottles, bladders or other containers for human consumption where bore water makes up at least 90% of the content of the container”. A change of consent conditions would be required to authorise any proposed ‘water bottling’ under this consent.

17. Also review conditions were included to allow for the review of the consent to ensure that it aligns with operative TANK plan provisions. An advice note was also included which explains that reductions or restrictions may occur as a result of the TANK plan change process.

18. As mentioned no applications have been lodged for water takes for or related to water bottling use. There have been a number of enquiries including one to relocate to a new location and transfer the water permit to this location. Staff interpretation of the Council policy was that this would have to be notified and on the basis of that advice the application was not proceeded with.

19. There is also the recent enquiry and discussion by Apollo Foods who would like to use some of their current allocation for water bottling purposes or for other beverages that are made up of more than 90 percent water.

The process prior to the 2016 Policy Position

20. Before this policy position was set, resource consents were issued for taking water without discriminating over the use. The use would be specified as part of the consent and as long as the volume of water could be justified as appropriate for the use intended, resource consent applications were granted provided other environmental considerations were satisfied. These included that:

20.1. there was water available from the water source (within the sustainable allocation limits)

20.2. effects on surface stream flows (through stream depletion) were understood and managed

20.3. effects on adjacent groundwater takes were understood and acceptable

20.4. the activity wouldn’t induce saltwater intrusion.

21. Between 2006 and 2015 approximately 5.1 million cubic metres of water was allocated for water bottling. (Of this 1.68 million was been allocated for a mix of uses e.g. irrigation, landscaping and may never be used for water bottling.) The actual taking of water for water bottling purposes is much less than this (28,000 cubic meters in the second half of 2019).

Apollo Foods

22. The Council received a presentation from Apollo Foods in March 2020 where they explained what they do and why they need to be able to include bottled water in their product range.

23. Apollo Foods is a beverage company and produce fruit juice and other high value beverage products. Much of the product they use is what they describe as “cosmetically challenged fruit” providing a market for horticultural product not otherwise suited for consumption within New Zealand or for exporting. They also have a partnership with Fonterra to produce milk drinks and potentially a protein-based energy drink.

24. Apollo Foods are looking to expand their product portfolio to allow them to continue to expand their markets throughout New Zealand, Australia, Japan and South-East Asia. Some of the potential product range would use more than 90% water in a bottle, triggering the current requirement to publicly notify the consent amendment.

25. They are requesting that Council amend the requirement to notify a change of condition application that would allow for their resource consent to include the use of more than 90% water within a bottle. Expanding their portfolio through the development of added value water based products will drive growth through their current facility, including the establishment of additional jobs.

26. Apollo Foods is not looking for a commoditised water bottling use right but more the ability to leverage off the trends operating within their market destinations to create “added value waters”. The opportunities they see are for healthy, low sugar, nutritious, nutraceutical type products.

27. By way of comparison many of the beverage products consumed daily already have a high percentage of water:

27.1. Coke Zero 99% water

27.2. Powerade Zero 99% water

27.3. Pump flavoured waters >97% water

27.4. Frucor OVI hydration 96% water

27.5. Beer up to 95% water

27.6. Milk 88% water

28. An Iceberg lettuce is 96% water, Romaine or Cos lettuce is 95% water, carrots are 88% water and tomatoes are 95% water.

29. The report presented to Council on 29 April was left to lie on the table, pending the feedback from the Regional Planning Committee. The 29 April report did not include an option to amend the 90% water content within the policy. This has since been clarified through additional discussion with Apollo Foods as to their desired product range. They accept that there is some community resistance to the bottling of 100% water but wish to see the opportunity for them to develop other beverage products not captured by the public notification policy.

Options for consideration

30. This report is provided as a review of the current policy position. The options for consideration are the following.

31. Option 1: Retain the current approach that directs staff to apply special circumstances to water bottling take consent applications.

31.1. This option will leave it that any application to take water for water bottling purposes or to change a condition or to consider a lapse date extension would need to be publicly notified. The risks associated with this are that the notification may elicit submissions that are outside the scope of the RMA. If this is found to be the case then the applicant may have grounds to object to the costs associated with the entire process. This may also frustrate local initiatives that seek the water bottling option using some of their existing allocation to allow them to compete with the larger multinational providers. It could be argued that this approach indicates predetermination and is not demonstrating a fair process. It could be open to judicial review. It may be preferable that this direction is established via a plan and a rule. It has worked to date. It is less necessary now that TANK has identified the Heretaunga Plains groundwater resource is over allocated.

32. Option 2: Council or delegated Councillors/ Commissioners could assume the notification decision making responsibility on a case by case basis. This would leave the discretion to be applied at the time of each application and for each to be considered on their merit.

32.1. If either of options 2 were adopted, where a notification decision is to be made, staff consider that the following process could be used:

32.1.1. An independent planner would prepare a decision recommendation report and report to a Panel appointed by Council who would make the notification decision.

32.1.2. Consideration would have to be given to which Councillors could sit on the Panel for this activity. It may be that there would need to be an independent panel to avoid any potential challenge of predetermination.

32.1.3. If submissions are made on the proposal the normal RMA based process (a hearing) would occur with the primary consideration being effects on the environment. It is envisaged that other matters may be raised by submitters, but these are unlikely to form grounds to decline the application.

33. Option 3. Initiate a simple Plan Change to introduce a rule that requires notification of “water bottling” activities. This is the option that presents least risk but will take time to achieve. But it should be noted that this approach could have been incorporated into the TANK Plan change, it was considered and it was decided not to.

34. Option 4: Revert to the pre 2016 state and leave the discretion with staff to consider on a case by case basis. This is straight forward and would be consistently applied. It could leave Council frustrated if the applications are judged to have effects that are no more than minor and accordingly are not notified and not able to be submitted on.

35. Option 5: Amend the definition of water bottling to be where the water content of the container is over 99%. This is an additional option which arises from the Council discussion. The current definition of water bottling is anything that comprises more than 90% of the water taken, but it could be amended to allow, for example, up to 99% water. This would then allow the use of water for the production of energy type beverages and flavoured drinks to be processed without being required to be notified as per the current policy.

Considerations of Tangata Whenua

36. Water is of significant importance to Tangata Whenua. Notification of applications will always allow Tangata Whenua the opportunity to submit on an application if they choose. There is a question of where to draw the line with notification. Should it just be for takes for water bottling or should it be for any groundwater take regardless of use? There may be occasions where tangata whenua would be considered affected and they would be specifically notified through the limited notified process.

37. In this instance Council has specifically sought the views of Tangata Whenua on the water bottling notification policy and any potential amendments.

Financial and Resource Implications

38. There are potential costs to Council depending on the option chosen.

39. Option 1 exposes Council to little additional cost given that the cost of the process is borne by the applicant.

39.1. There would be a significant increase in the costs to applicants to proceed with applications if they are publicly notified. The scale of additional costs is difficult to quantify but would be substantial. As a result, it may prove to be prohibitive for people to apply for these consents.

39.2. There is a risk that the notification decision could be contested in the High Court by judicial review. For example, in Associated Churches of Christ Church Extension and Property Trust vs Auckland Council [2014] NZHC 3405 the court found that notification was contrary to the purpose of achieving efficiency in the consenting process. If the notification decision was appealed to the High Court and the Council was found to have erred in process, then costs could be awarded against the Council.

40. Option 2 has no direct financial or resource implications. This would require some resourcing to convene meetings to decide whether to notify or not, and those costs would be borne by the applicant.

40.1. It may frustrate some applicants who do not wish to risk the notification process. It reduces the risk to Council if the process is run on an objective case by case basis consistent with the RMA. This is one way to do it as is option 4. Consultants and/or Councillors would need to be involved in certain parts.

40.2. Decision making timelines will need to be met to avoid a discount of costs back to the applicant. Council or their delegates would need to be reasonably available to make any decisions delegated to them.

41. Option 3, a Plan change will have cost and resourcing implications that may impact on existing or proposed policy processes. These costs have not been estimated. However as mentioned the TANK process did consider this as an option (to include a notification Rule for water bottling in Plan Change 9) and this was not considered to be appropriate or necessary.

42. Option 4 would not need additional resources. It is the simplest in terms of process. It puts the responsibility on the Consenting staff to administer the process as per RMA requirements. This may not lead to the determination that an application relating to water bottling warrants notification.

43. Option 5 would allow for a wider use of water without need for notification while still ensuring that any process for the bottling of 100% water would continue to be publicly notified. It may reduce the cost to applicants provided they don’t wish to bottle 100% water. If the 90% trigger remains then the costs and risks set out in Option 1 remain.

Consultation

44. No consultation has been held on this matter prior to consideration by the Regional Planning Committee, other than the discussion and presentation initiated by Apollo Foods.

Decision Making Process

45. Staff have assessed the requirements of the Local Government Act 2002 in relation to this item and have concluded that, as this report is for information only, the decision making provisions do not apply.

Recommendations

1. That the Regional Planning Committee receives and considers the “Policy on Notification of Water Bottling Related Consent Applications” staff report.

2. The Regional Planning Committee provides feedback to Hawke’s Bay Regional Council in relation to how resource consent applications for activities relating to water bottling should be assessed for notification.

Authored by:

Malcolm Miller

Manager Consents

Nick Zaman

Manager Compliance

Approved by:

Liz Lambert

Group Manager Regulation

Attachment/s

There are no attachments for this report.

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 03 June 2020

Subject: Update on Tukituki Regulatory Implementation

Reason for Report

1. This item provides an update on Tukituki Regulatory Implementation in response to a request from Councilors.

Executive Summary

2. This report outlines the Tukituki Regulatory implementation that has been undertaken by HBRC staff over the last 24 months, and in particular, the response to the Covid-19 and ongoing drought situation.

Background

3. The Tukituki Catchment Plan (Plan Change 6) became operative in October 2015. The Plan sets the freshwater objectives for the Tukituki Catchment. The five objectives are:

OBJ TT1	To sustainably manage the use and development of land, the discharge of contaminants including nutrients, and the taking, using, damming or diverting of fresh water in the Tukituki River catchment so that: (a) Groundwater levels, river flows, lake and wetland levels and water quality maintain or enhance the habitat and health of aquatic ecosystems, macroinvertebrates, native fish and trout; (b) Water quality enables safe contact recreation and food gathering; (i) Water quality and quantity enables safe and reliable human drinking water supplies (c) The frequency and duration of excessive periphyton growths that adversely affect recreational and cultural uses and amenity are reduced; (d) The significant values of wetlands are protected; (e) The mauri of surface water bodies and groundwater is recognised and adverse effect on aspects of water quality and quantity that contribute to healthy mauri are avoided, remedied, or mitigated; (f) The taking and use of water for primary production and the processing of beverages, food and fibre is provided for.
OBJ TT2	Where the quality of fresh water has been degraded by human activities to such an extent that Objective TT1 is not being achieved, water quality shall not be allowed to degrade further and it shall be improved progressively over time so that OBJ TT1 is achieved by 2030.
OBJ TT4	To manage the abstraction of surface water and groundwater within a minimum flow regime and allocation limits that achieve OBJ TT1 while recognising that existing takes support significant investment.
OBJ TT4A	To recognise that industry good practice for land and water management can assist with achieving Objectives TT1, TT2 and TT4
OBJ TT5	Subject to Objectives TT1, TT2 and TT4, to enable the development of on-farm storage and Community Irrigation Schemes that improve and maximise the efficient allocation and efficient use of water.

4. The Council is managing land use activities in the Tukituki Catchment in order to maintain and achieve the limits and targets set in the Tukituki Catchment Plan (the Plan).

5. One of the major regulatory deadlines in the Plan is the requirement for farming operations above 4 ha (apart from low intensity farming systems under 10 ha), to have completed Farm Environment Management Plans (FEMPs) by 31 May 2018.

6. The majority of FEMPs have been completed and summaries submitted to HBRC. Compliance continue to follow up on any remaining properties that did not register a FEMP or a low intensity checklist form. The dominant property type still missing a FEMP are deemed low risk – small lifestyle blocks.

Discussion

Consent Requirements

7. The next major regulatory deadline in the Plan is the requirement for production land use consents to be obtained for:

7.1. farm properties which are unable to comply with the stock exclusion rules

7.2. farm properties or farm enterprises exceeding 4 ha (apart from low intensity farming systems), where:

7.2.1. a subcatchment is exceeding the dissolved inorganic nitrogen (DIN) limit of 0.8 mg/L (based on a five year rolling average), or

7.2.2. the nitrogen leached from a property exceeds the Tukituki LUC Natural Capital: Nitrogen Leaching Rates in Table 5.9.1D¹.

¹Note the separate report to this committee meeting on Proposed Plan Change 6A: Tukituki Catchment – Table 5.9.1D.

8. The deadline for the first tranche of land use resource consents in the Tukituki Catchment is 1 June 2020.

9. Resource consents are required for:

9.1. Individual properties from across the whole Tukituki Catchment exceeding the Tukituki Nitrogen Leaching Rates

9.2. Properties in subcatchments exceeding the DIN limit (Papanui, Kahahakuri and Mangaonuku)

9.3. Properties not able (or willing) to comply with stock exclusion rules.

10. Approximately 273 land use resource consent applications are due by the 31 May 2020.

11. Further land use resource consents will be required from farms within other subcatchments, if these exceed the DIN limit of 0.8 mg/L (based on a five-year rolling average). The DIN limit is predicted to exceed in the Tukipo, Porangahau, Maharakeke and Upper Tukituki Corridor subcatchments towards the end of 2020 or early 2021.

Implementation support HBRC has provided to landowners

12. HBRC staff have been working on the implementation of the Tukituki Catchment Plan, with a particular focus on the resource consent requirements since the FEMP deadline of 31 May 2018.

13. Staff have worked with primary industry stakeholders to produce the required Procedural Guidelines, which set out how HBRC will approach the resource consenting process.

14. HBRC has engaged with the Tukituki Catchment community through a series of subcatchment meetings, direct communication via letters to the identified applicants and substantial media comms.

15. HBRC have facilitated a feasibility study looking at opportunities for Wetland construction in the Tukipo subcatchment, working closely with the Tukipo community. External funding has been sourced and construction of the first wetland is underway. It is hoped the lessons learnt here can be utilised in other Tukituki subcatchments.

16. HBRC will complete the required cumulative assessment of effects at a subcatchment scale on behalf of the applicants, thereby ensuring consistency and sharing the cost across all applicants.

17. HBRC staff have worked with Federated Farmers to investigate other potential areas, including policy analysis, where applicants can opt to be part of a wider group and thereby reduce the cost to the individual applicants.

Impacts of drought and Covid-19

18. A significant drought was declared on 12 March 2020. The Tukituki Catchment has been particularly adversely affected by this and the impacts on the community have been severe.

19. Staff were preparing to undertake further engagement with the Tukituki Community in the form of subcatchment meetings when the impact of Covid -19 hit. As a consequence, these meetings were cancelled.

20. Due to the combined impact of the ongoing drought and Covid-19, it quickly became apparent that applicants were going to struggle to meet the 31 May deadline.

21. An interim solution was sought, including discussions with staff from the Ministry for the Environment (MfE) to determine whether a 12 month extension of the 31 May deadline for resource consent applications would be possible. The indication from MfE was that an extension was unlikely to be approved under the pandemic response legislation available to the Minister.

22. In the meantime, an interim process was established that would ensure that applicants demonstrate their intention to comply with the regulatory requirements. This recognises that applicants have been unable to have service providers, such as nutrient budget providers and farm consultants, on their properties under Alert Level 3 and 4 of the Covid-19 response.

23. Applicants were advised to submit their full applications to HBRC by the 31 May deadline, including the required application deposit, if they were able to do so.

24. Those applicants that were unable to submit a full application can submit a simpler ‘placeholder’ pre application, which will be received by HBRC as a sign of intent by the applicant to submit a full application, once circumstances allow them to do so. No application fee is required as part of the pre application, but the cost of processing the consents will be recovered.

25. Communication and media release were widely circulated in the Tukituki Catchment, via primary industry stakeholder networks, emails, social media posts, radio interviews and newspaper notices. Once access to Dalton street offices was allowed under Level 3, letters were sent to identified applicants.

Next Steps

26. While restrictions imposed due to the Covid-19 response are easing, the ongoing drought is continuing to have a severe impact on the Tukituki community.

27. Approximately 273 potential land use resource consent applications are due by the 31 May deadline. To date, 14 full applications have been lodged with HBRC and 11 pre applications have been received. However, staff continue to field enquiries regarding the process and provide advice to landowners who may have already made adjustments to their farming practices, which mean they no longer require resource consents. In these circumstances they are required to supply evidence, such as updated FEMPs and nutrient budgets, to HBRC to confirm their new status as a Permitted Activity.

28. Once the 31 May deadline has passed, and the Covid-19 and drought situations have been reassessed, landowners in the Tukituki Catchment will be advised of a new deadline by which date full applications will be required from those who initially lodged a pre application.

29. Post the 31 May 2020 deadline, the compliance team will follow up with any overdue applicants, who have not submitted a full application, or taken opportunity of the interim pre application option made available to them.

30. The proposed Compliance response will be:

30.1. To follow up with either a letter or a phone call to discuss with the applicant why they have not applied

30.2. Work through any issues that can be dealt with e.g. lack of awareness/ understanding / stress due to drought etc

30.3. Send a letter giving a timeframe (date) by which a pre app (as a minimum), has been submitted (e.g. 5/ 10 working days)

30.4. Follow up any that either refuse in the first instance or who do not comply with the first request for a pre app within the stated timeframe and enforcement next steps.

31. Once a new deadline (date for when full applications need to be submitted to HBRC) has been agreed upon and communicated to the affected parties, a repeat of the above Compliance response will be followed.

Other resource consenting matters.

32. Surface water is allocated to the limits set by the plan. The surface water takes are expiring this year and require new applications. This will allow the Plan minimum flow conditions to be fully implemented. A higher minimum flow of 5,200 L/s takes effect at Red Bridge from 1 July 2023. Minimum flows have been triggered this year and water use has had to cease for an extended period this season. Applications have been made for emergency water use in line with the plan.

33. Groundwater within the Ruataniwha and Otane catchments is allocated to the limits set by the plan. Water use has been high this season reflecting the drought conditions and some consent holders have reached their maximum. Staff have been working with some of these to enable unused water to be accessed. This allows for the use of more water but not for the overall allocation to be exceeded.

34. There is provision in the Plan for a further 15 million cubic meters of groundwater water to be allocated as Tranche 2 water. This has all been applied for. The applicants have been requested to provide further information and this is still to be provided. The information was to determine the effects of taking this water and the extent to which these effects need to be offset.

Decision Making Process

35. Staff have assessed the requirements of the Local Government Act 2002 in relation to this item and have concluded that, as this report is for information only, the decision making provisions do not apply.

Recommendation

That the Regional Planning Committee receives and notes the “Update on Tukituki Regulatory Implementation” staff report.

Authored by:

Louise McPhail

Principal Advisor (Policy Implementation)

Malcolm Miller

Manager Consents

Nick Zaman

Manager Compliance

Approved by:

Liz Lambert

Group Manager Regulation

Attachment/s

There are no attachments for this report.

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 03 June 2020

Subject: Air Quality June 2020 Update

Reason for Report

1. This item provides the Regional Planning Committee with an update on the following air quality related matters:

1.1. An overview of the proposed amendments to the National Environmental Standards for Air Quality (NESAQ)

1.2. Current state of air quality in Hawke’s Bay

1.3. Recent air quality complaints and pollution response.

Review of the National Environmental Standards for Air Quality

2. The Government is currently consulting on proposed amendments to the National Environmental Standards for Air Quality (NESAQ). Submissions close on 31 July 2020.

3. Staff are currently drafting a submission on the proposed amendments. Staff at the four other Hawke’s Bay Councils have been invited to jointly submit on the amendments with HBRC.

4. Key changes to the NESAQ are:

4.1. Introduction of a daily and annual ambient PM_2.5 (fine particulate matter) standard

4.2. Stricter standards for newly-installed domestic solid fuel burners

4.3. Standards apply to all domestic solid fuel burners

4.4. Indefinite ban on new open fires in airsheds when standard is breached

4.5. Prohibition on the use of mercury in industrial processes.

Implications for Hawke’s Bay

5. Additional monitoring and modelling work needs to be undertaken before the implications of a PM_2.5 standard on our region are fully known.

6. Notwithstanding, based on limited PM_2.5 monitoring data, it is anticipated that the amended NESAQ will result in the following:

6.1. Additional regulatory and non-regulatory methods for Napier and Hastings to meet the proposed PM_2.5 standard

6.2. Two new airsheds – Wairoa and Waipukurau and associated regulatory and non-regulatory methods to meet the proposed PM_2.5 standard

6.3. An expansion of HBRC’s financial assistance scheme to assist with the upgrade of existing woodburners.

7. Further PM_2.5 monitoring and modelling will confirm whether new airsheds are necessary and will allow Council to determine the most appropriate management measures needed to meet the new PM_2.5 standard.

8. The results of the PM_2.5 monitoring undertaken in Hawke’s Bay to date, is discussed in Paragraph 25.

Outdoor Burning

9. The proposed NESAQ amendments do not regulate outdoor burning. Council staff’s draft submission proposes asking the Minister to amend the NESAQ to include new regulations for outdoor burning to minimise PM₁₀and PM_2.5 emissions, and localised smoke, from this practice.

Current State of Air Quality in Hawke’s Bay

Napier and Hastings Airsheds

10. Concentrations of PM₁₀ in the Napier and Hastings Airsheds have decreased since continuous monitoring began 14 years ago. The maximum 24 hour concentration recorded in both Napier and Hastings in the last three years was 55 µg/m³, compared to a high of 132 µg/m³ measured in Hastings in 2006 and 86 µg/m³ in Napier in 2007. Napier has not breached the NESAQ for PM₁₀ in the last five years. Hastings has not breached it since September 2016, when the NESAQ required no more than three exceedances of the PM₁₀ limit of 50 µg/m³ in that airshed. The annual average concentration in both airsheds in recent years has been below the guideline of 20 µg/m³, measuring 13 µg/m³.

11. Five-yearly air emissions inventories show that the gains in air quality have been achieved by a decrease in emissions of approximately 6.5% per year over the past fifteen years and primarily through changes in home heating. Recent inventories have not accounted for outdoor burning on production land that lies adjacent to or within the airsheds. An inventory of this activity was undertaken in 2016. It estimated emissions per day during winter were equivalent to approximately 20% of the total emissions generated within Airzone 1 of each airshed on an average winter’s night. The variability of this activity in space and time has made it difficult to quantify its contribution to airshed concentrations. However discharges of smoke have considerable localised impacts. Smoke related complaints saw a seven-fold increase over the last twenty years.

Awatoto Airshed

12. The Awatoto Airshed is industrial and coastal in nature. Natural sources contribute significantly to PM₁₀ concentrations in the airshed therefore achieving the NESAQ is more challenging than in the Napier and Hastings Airsheds. The annual average PM₁₀ concentration is relatively high compared to the residential airsheds but it remains within the guideline at 18-19 µg/m³. Maximum 24 hour concentrations have reached 81 µg/m³ and exceedances of the PM₁₀ limit have typically ranged between one and three per year. The NESAQ allows for only one exceedance in the airshed. Some exceedances have been deemed “exceptional events” under the regulations and attributed to high levels of sea salt. No discernible trends are evident in PM₁₀ concentrations since monitoring began in 2012 and exceedances are not limited to a particular season.

Whirinaki Airshed

13. The Whirinaki Airshed is another airshed which is coastal in nature but dominated by one industry. The monitoring in that airshed is undertaken in relation to a resource consent and results provided to the Council’s Compliance team.

Waipukurau, Waipawa, Wairoa

14. Rural centres have previously been monitored for PM₁₀ exceedances, typically for a year at a time. This monitoring has mostly been done using low cost sensors that do not meet the instrument standards set in the NESAQ. Results from these sensors suggest the rural centres are able to meet the current NESAQ for PM₁₀.

NESAQ – pollutants other than PM₁₀

15. The NESAQ sets limits on additional pollutants other than PM₁₀. These are carbon monoxide, nitrogen dioxide, sulphur dioxide and ozone. Roadside monitoring of these contaminants every four to five years shows levels are below the NESAQ limits and also below the World Health Organisation (WHO) guidelines. A recent short-term monitoring project on Breakwater Road, near the Port of Napier also found these contaminants, along with PM₁₀, were within the NESAQ. Sulphur dioxide was above the WHO 24 hour guideline on one occasion and attributed to shipping emissions. Sulphur dioxide is also monitored in the Awatoto Airshed in relation to an industrial consent. The WHO 24 hour guideline was exceeded three to six times per year between 2014 and 2018. Breaches of the NESAQ 1 hour average occurred in 2014, 2016 and 2018. The WHO guideline was not exceeded and the NESAQ was not breached last year however the ambient monitoring was disrupted in September 2019 and has not been reinstated yet.

16. Levels of arsenic and lead have been tested in the Napier and Awatoto airsheds in recent years. These were found to be within the New Zealand guidelines. Testing in Hastings will hopefully be undertaken in the next few years. Concentrations of these contaminants in ambient air are linked to the burning of treated and painted wood, which are prohibited activities.

NESAQ - PM_2.5

17. The proposed NESAQ amendments include new limits on annual and daily averages of PM_2.5. The proposed limits are in line with WHO guidelines. It would allow for three exceedances of a daily limit of 25 µg/m³ per year and set an annual limit of 10 µg/m³. Monitoring of PM_2.5 in the Napier, Hastings and Awatoto Airshed’s indicates that the annual limit would be met. The limit on daily exceedances would be met in the Awatoto airshed, where a measurement greater than 25 µg/m³ has occurred only once since 2016. In Napier it was exceeded five times last year and ten in Hastings. PM_2.5 monitoring in the rural centres has been conducted using low cost sensors. Last winter the sensors recorded fifteen measurements in Wairoa above 25 µg/m³and an annual average of 10 µg/m³. Results for Waipukurau are available for just half a winter season but the limit was exceeded nine times in that period.

Pollution Response

18. The Hawke’s Bay Regional Resource Management Plan (RRMP) currently has rules in place which manage the emissions from domestic wood burners, and restricts outdoor burning in Napier and Hastings during the winter months.

19. Despite this, Council receives a number of complaints each year. Table 1 sets out the number of burning complaints received between 2017 and 2019.

Table 1: Indoor/outdoor burning complaints (2017- 2019)

Type of burning	2017	2018	2019
Burning Materials (Non-Vegetation)	45	60	83
Burning Vegetation	76	114	130
Burning indoor (domestic)	31	61	48

Outdoor burning for horticultural purposes

20. Outdoor burning during the winter months, in the Napier and Hastings Airsheds, is classed as a non-complying activity, except when burning is taking place for disease control or orchard redevelopment (Rule 19e).

21. The Council’s Pollution Response Team has observed an increase in outdoor burning complaints over the last three years, possibly as a result of the exceptions allowed in Rule 19e.

22. In particular, there have been a number of smoke complaints related to the burning of diseased material, and in some instances Rule 19e has been used to justify the mass removal and burning of orchard trees within the same day. Depending on the scale, smoke emitted from these fires can last for several days.

23. In 2018-2019, the conditions of Rule 19e were strictly enforced to address concerns around this practice. During this period, a total of 101 infringement fines were issued for smoke nuisance, the majority of which were related to outdoor burning.

24. Notwithstanding, there has been a positive start to 2020 with a number of major orchard redevelopments using a large scale mulching machine instead of burning. The downside of mulching is the limited disposal options available for the large quantity of mulch generated.

Outdoor burning of waste for disease/quarantine control

25. The burning of waste for disease/quarantine control can occur in accordance with the Biosecurity Act, or where the Hawke’s Bay Regional Council has declared a Biosecurity risk (Rule 20a).

26. The National Beekeepers Association currently has authority to manage their own disease control programs pursuant to the Biosecurity Act, and requires beekeepers to destroy American Foulbrood disease (AFB) infected hives.

27. In 2018 and more recently, a pallet of plastic beehives was burned to destroy AFB under Rule 20a. In 2018, the burning was carried out in a manner which resulted in excessive smoke and a $300 fine was issued.

28. Over the last few years, Council staff have contacted the National Beekeepers Association about their destruction methods. Particularly, given this type of disposal directly conflicts with other rules contained within the RRMP, which prohibit the burning of plastic.

29. The National Beekeepers Association have advised that due to the increased use of plastic beehives, this type of burning is becoming problematic for local authorities.

Next Steps

30. The review of the RRMP is due to commence in the 2020/2021 financial year. The air quality rules will be reviewed and updated as part of this review. As a minimum, the following air quality related matters will be addressed in the RRMP review.

30.1. Consistency with the WHO air quality guidelines

30.2. Consistency with the amended NESAQ

30.3. Outdoor burning for horticultural purposes

30.4. The burning of waste for disease/quarantine control

30.5. Discharges to air from industrial and trade premises.

Decision Making Process

31. Staff have assessed the requirements of the Local Government Act 2002 in relation to this item and have concluded that, as this report is for information only, the decision making provisions do not apply.

Recommendation

That the Regional Planning Committee receives and notes the “Air Quality June 2020 Update” staff report.

Authored by:

Mike Alebardi

Team Leader Pollution Response & Enforcement

Belinda Harper

Senior Planner

Dr Kathleen Kozyniak

Principal Scientist (Air)

Approved by:

Ceri Edmonds

Manager Policy and Planning

Liz Lambert

Group Manager Regulation

Iain Maxwell

Group Manager Integrated Catchment Management

Tom Skerman

Group Manager Strategic Planning

Attachment/s

There are no attachments for this report.

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 03 June 2020

Subject: Update on Government's Healthy Waterways Reform Package

Reason for Report

1. This item provides an update on Central Government’s ‘Action for Healthy Waterways’ reform work programme.

Executive Summary

2. In September 2019, the Government released a package of proposals for future action for healthy waterways which followed on from earlier Essential Freshwater work. An independent panel has been considering over 5000 submissions received on those proposals, meanwhile the Environment Select Committee has just recently reported back on the resource Management Amendment Bill 2019 which features a new freshwater planning process to replace the current RMA Schedule 1 processes.

3. At the time of writing this report, details of any amendments to the package remain undisclosed and are not publicly available due to decisions yet to be made by Ministers, Cabinet and Parliament.

4. In the interim, staff have commenced preliminary planning for the upcoming release of a new national policy statement for freshwater management; a new national environmental standard for freshwater; regulations for stock exclusion from waterbodies; and an entirely new RMA planning process for freshwater-related plans and plan changes.

5. Staff anticipate these new national policy instruments will be confirmed and in effect in some form before the General Election in September 2020.

Update on Government’s proposals

6. The Government committed to addressing freshwater issues, and in 2018 established a work programme, titled Essential Freshwater – Healthy Water, Fairly Allocated. Its objectives are to:

6.1. stop further degradation and loss – a series of actions now to stop the degradation of freshwater and make improvements within five years

6.2. reverse past damage to bring freshwater resources to a healthy state within a generation, and

6.3. address water allocation issues to achieve efficient and fair allocation of freshwater and nutrient discharges.

7. On 5 September 2019, the Government released a discussion document, ‘Action for Healthy Waterways’ containing proposals for national direction that were generated through the earlier Essential Freshwater work. The self-described package would:

7.1 “strengthen Te Mana o Te Wai as the framework for freshwater management

7.2 better provide for ecosystem health (water, fish and plant life)

7.3 better protect wetlands and estuaries

7.4 better manage stormwater and wastewater, and protect sources of drinking water

7.5 control high-risk farming activities and limit agricultural intensification

7.6 improve farm management practices.”

8. Attachment 1 is a one-page summary of the Action for Healthy Waterways proposals.

9. During preparation of the proposals, Ministers and Crown officials had worked closely with the following advisory groups:

9.1 Te Kahui Wai Māori — the Māori Freshwater Forum

9.2 Freshwater Leaders Group

9.3 Science and Technical Advisory Group

9.4 Essential Freshwater Regional Sector Water Group.

10. The public submission period for Government’s Action for Healthy Waterways policy package closed on 31 October 2019. Hawke’s Bay Regional Council contributed to the Regional Sector-Local Government NZ submission, as well making a joint submission alongside most of the territorial authorities of the region.

11. Ministry for the Environment (MFE) received over 5000 submissions. A five-member independent advisory panel chaired by Judge David Sheppard has since been considering those submissions and was due to provide advice to Government in February. MFE officials are also developing recommendations.

12. Ministers will consider the Independent Panel’s report before deciding whether or not to proceed with the proposals or make changes. Cabinet decisions are expected in May, but the COVID-19 events may have recently altered Cabinet’s priorities.

13. Subject to Cabinet’s decisions, the following key proposals in the Government’s work programme are all in the pipeline to come into effect prior to the General Election in September:

13.1. a completely new re-written National Policy Statement for Freshwater 2020

13.2. a completely new National Environmental Standard for Freshwater 2020, and

13.3. a new regulation under section 360 of the RMA for stock exclusion.

14. Another key element of the proposals which is progressing as part of the Resource Management Amendment Bill 2019 is the proposal for a freshwater plan-making process. A 2017 review of the 16 regional and unitary councils’ progress in implementing the current NPS-FM showed that the standard planning process under Schedule 1 of the RMA creates a barrier to the timely implementation of the NPS-FM – particularly consultation requirements and the scope for appeals to prolong plan-making processes.

15. On 30 March 2020, the Environment Select Committee presented a 75-page report back on the Bill. The next step is currently pending Parliament to reconvene where the Bill will have its final reading in the regular Parliamentary process post-COVID-19 restrictions.

16. In addition there is on-going work to reform the regulation, delivery and funding of the three waters system (drinking water, wastewater and stormwater). The Three Waters Programme is part of the wider Essential Freshwater work programme, and together they are designed to create a system to better manage urban and rural water issues. As well as regulatory RMA tools, there are a range of other initiatives at both central and local government level that aim to improve the quality of freshwater. For example, at the national level this includes the Freshwater Improvement Fund, the Te Mana o te Wai Fund, and the partnership for good farming practice.

Preparing for Impact

17. The proposed 2019 ‘Action for Healthy Waterways’ package signals a considerable increase in the scope of work required to fully implement the NPSFM into the regional policy statement and regional plans, while substantially decreasing the timeframe to get this done (notification of plan changes by the end of 2023 instead of fully operative plans by December 2030). Given the large number and scope of submissions lodged, planning staff expect the draft policy package will change substantially before gazettal, but we cannot know for certain what those changes will be.

18. The scale of 2019’s proposals would have wide ranging impacts on many parts of the organisation (e.g. environmental monitoring, data management, science investigations, policy and plan drafting, Maori partnerships, communications, consents, compliance, asset management, finance and governance to name several). The proposals posed significant challenges in terms of capacity to deliver everything within timeframes that the Government wanted. Many regional council and local government submissions firmly echoed that while supporting the general overall intent of the Government’s proposals.

19. At the time of writing this report, there was no publicly available content or announcement on the latest progress of the Government’s package. Staff are not prepared to speculate in this report what may or may not be in the latest proposals. However, planning staff are pretty confident that our current freshwater plan-making work programme will need to dramatically change to get freshwater plans done faster.

20. Senior staff have already commenced preliminary planning about this. That work has also considered the wave of implications anticipated to emerge from the number of other pieces of national direction (e.g. national policy statements on urban development, highly productive land and indigenous biodiversity, national environmental standards on air quality and outdoor storage of tyres, RMA amendment legislation and so on). The preliminary planning will also serve to inform the Regional Council’s resourcing needs, prioritising and ultimately drafting of the 2021-31 Long Term Plan.

21. The preliminary work programme re-design indicates a broader reform of the Regional Policy Statement and RMA regional plans is required to not only deliver on the Government’s freshwater proposals, but also deliver updated policy in a timely manner on a range of other issues such as climate change response, enhancing indigenous biodiversity, natural hazard management, air quality, the marine environment, urban growth and numerous other issues.

22. Meanwhile, staff continue to actively look for opportunities to learn from and share with other councils. Furthermore, the regional sector group is considering opportunities to jointly progress some parts of any new freshwater requirements nationally, by collaborating between councils and with central government. Preliminary planning is also underway towards sizing likely implementation requirements for the NESF and s360 stock exclusion regulation, but further work will hinge on Cabinet’s decisions expected sometime soon.

23. After the Government has confirmed its freshwater policy package, staff will provide the Committee with further briefings in relation to implications for the preparation and review of the Council’s Regional Policy Statement and regional plans under the RMA.

Decision Making Process

24. Staff have assessed the requirements of the Local Government Act 2002 in relation to this item and have concluded that, as this report is for information only, the decision making provisions do not apply.

Recommendation

That the Regional Planning Committee receives and notes the “Update on Government’s Healthy Waterways Reform Package” staff report.

Authored by:

Gavin Ide

Principal Advisor Strategic Planning

Approved by:

Tom Skerman

Group Manager Strategic Planning

James Palmer

Chief Executive

Attachment/s

⇩1

Summary of Action Plan for Healthy Waterways proposals (2019)

Name	Represents
Karauna Brown	Te Kopere o te Iwi Hineuru
Tania Hopmans	Maungaharuru-Tangitu Trust
Tania Huata	Ngati Pahauwera Development and Tiaki Trusts
Nicky Kirikiri	Te Toi Kura o Waikaremoana
Joinella Maihi-Carroll	Mana Ahuriri Trust
Mike Mohi	Ngati Tuwharetoa Hapu Forum
Liz Munroe	Heretaunga Tamatea Settlement Trust
Peter Paku	Heretaunga Tamatea Settlement Trust
Apiata Tapine	Tātau Tātau o Te Wairoa
Rick Barker	Hawke’s Bay Regional Council
Will Foley	Hawke’s Bay Regional Council
Craig Foss	Hawke’s Bay Regional Council
Rex Graham	Hawke’s Bay Regional Council
Neil Kirton	Hawke’s Bay Regional Council
Charles Lambert	Hawke’s Bay Regional Council
Hinewai Ormsby	Hawke’s Bay Regional Council
Martin Williams	Hawke’s Bay Regional Council
Jerf van Beek	Hawke’s Bay Regional Council

Topic	Raised by