Late Agenda of Regional Planning Committee

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 03 June 2020

Subject: Feedback from Tukituki Catchment Proposed Plan Change Pre-consultation

Reason for Report

1. This is a supplementary report to the main item on the agenda ‘Proposed Plan Change 6A: Tukituki Catchment – Table 5.9.1D’. It presents feedback received from pre-notification consultation on the draft of Proposed Plan Change 6A: Tukituki Catchment Table 5.9.1D. This report considers those responses received, addresses feedback from iwi authorities, and, in light of the recently announced reforms associated with the package of ‘Actions for Healthy Waterways’, reconsiders the pathway for notification.

Officers’ Recommendations

2. Officers recommend that Council use the streamlined planning pathway to notify the proposed plan change to recalibrate Table 5.9.1D as a ‘fit for now’ solution to ensure the best available science (OverseerFM) is used to allocate nitrogen leaching fairly and transparently for consenting.

3. Further, officers consider it appropriate to note that Council will be reviewing nitrogen management provisions in the Hawke’s Bay Regional Resource Management Plan (RRMP), which is due to commence in 2021. This will address the concerns of iwi authorities and stakeholders with respect to the wider issues around the management of nitrogen and give effect to the government’s new requirements with respect to Actions for Healthy Waterways.

Executive Summary

4. Approximately 50 government agencies, local authorities, iwi authorities, stakeholders groups and the Tukituki Leaders Forum were consulted as part of pre-notification consultation undertaken in accordance with clause 3 of Schedule 1 Resource Management Act 1991 (RMA). The main report identifies who was contacted for feedback.

5. A total of 29 respondents provided feedback either through the online survey or by email response (31 responses were received in total, but two responses were duplicated in the online survey and by email).

6. Of the twenty-three respondents to the online survey and six additional respondents who replied by email, twenty-three agreed with the proposal (five of those were conditional support) and three disagreed with the proposal (one of those was conditional opposition). A further three respondents made comments about the proposal, neither in opposition nor in support.

7. In general, those supporting the proposed plan change recognised that it was necessary to recalibrate Table 5.9.1D because of the version changes to Overseer.

8. Most of those supporting the proposed plan change also identified the need to undertake a more comprehensive review of nitrogen management for the Tukituki Catchment.

9. Those opposing the proposed plan change generally wanted a review of nitrogen management to be undertaken instead.

10. In making the officer recommendation to proceed to notify the proposed plan change, staff recognise that this is a ‘fit for now’ solution to address an immediate need to ensure consistent application of OverseerFM for assessing Farm Environment Management Plans and managing resource consenting processes. Staff recognise that there is a need to review nitrogen management beyond this technical fix.

11. The announcement from Government last Thursday regarding the Actions for Healthy Waterways Package noted a delay in introduction of legislative reform to enable the new freshwater management plan-making process. This means that there is still opportunity to apply to the Minister for the Environment to use the streamlined planning process for this plan change. This pathway is recommended because the proposal meets two of the relevant criteria set in section 80C RMA.

Background

12. For the background to this report, please refer to the main report to this Committee, ‘Proposed Plan Change 6A: Tukituki Catchment Table 5.9.1D’.

Feedback

13. The main report notes that pre-notification consultation was being undertaken with some 50 people and organisations, with feedback closing on Friday 29 May 2020.

14. In addition to the online survey, two on-line Zoom meetings were organised for those 50 people and organisations being consulted. The first online meeting was held on Wednesday 27 May 2020, with a representative from one iwi authority attending. The second stakeholder online meeting was held on Friday 29 May 2020, with ten stakeholders attending.

15. A total of 29 responses were received, either through the online survey or by email response (31 responses were received in total, but two responses were duplicated in the online survey and by email).

16. Of the 23 respondents to the online survey and six additional respondents who replied by email, 23 agreed with the proposal (five of those were conditional support) and three opposed (one of those was conditional opposition). A further three respondents made comments about the proposal. Note that the response from Te Taiwhenua o Heretaunga is included in these figures.

17. A copy of the online survey results and all email responses is attachment 1 to this report.

18. Of those supporting the proposal, comments made related to:

18.1. Maintaining relativity (comparing apples with apples)

18.2. Providing more consistency and equity

18.3. The old version of Overseer no longer being available

18.4. A preference for using the streamlined planning process

18.5. Use of the LUC system, including in relation to Overseer updates, or in opposition to its use in this way as a surrogate for natural capital

18.6. Further information being available on the recalibration

18.7. Use of an independent organisation to recalibrate the table

18.8. Costs for all parties if there is opposition to the proposed recalibration

18.9. Conditional support for a very narrow-based plan change.

19. Those supporting also requested:

19.1. Addressing future version changes, including a mechanism to ensure relativity within the table when Overseer is improved into the future

19.2. Recognition of the current government directed review of the use of Overseer and any guidance resulting in due course

19.3. A review of the entire approach to managing water quality in the Tukituki as a priority, as LUC is not suitable or appropriate.

20. Of those opposing the proposal, including one iwi authority, comments made related to:

20.1. Further clarification about the proposed change

20.2. Further information about the elevation of nitrates in Central Hawke’s Bay groundwater and the health risks and implications

20.3. The need for a regional approach to nitrates management in ground and surface water, not just on a catchment by catchment basis

20.4. The need to further consult before initiating a plan change to Table 5.9.1D

20.5. The need to investigate the health risks of nitrate levels above 3.8mg/l

20.6. The need to continue to implement the operative plan in the interim, including the requirement for resource consents.

21. Of those who did not state a position, comments were made in relation to:

21.1. Having insufficient time to consider the proposal

21.2. Needing more information about the need for the change, and the extent to which DIN in waterways needs to be reduced.

22. This summary of responses is being incorporated within the Section 32 Evaluation Report for the proposed plan change.

Actions for Healthy Waterways and RMA reforms

23. On Thursday 28 May, the Government announced the latest package of ‘Actions for Healthy Waterways’ (summarised in a separate Memo to the RPC 28 May 2020, also refer to https://www.mfe.govt.nz/action-for-healthy-waterways ).

24. Of note for this proposal, the package includes a number of actions to reduce excess nitrogen in our waterways. The Minister for the Environment noted that increasing rates of nitrates in drinking water are a concern worldwide, and that the Ministry of Health is preparing a report due out later in the year. He also noted the ongoing work directed by the Government on the independent review on nutrient tracking technology, which looks at the use of Overseer (refer https://www.mfe.govt.nz/fresh-water/freshwater-and-government/essential-freshwater-work-programme/independent-review).

25. Reforms to the RMA, including to introduce the new freshwater planning process, are still being drafted. A date has not been set for the reintroduction of the Resource Management Amendment Bill.

Options Assessment

26. The RPC must now consider whether or not to notify the proposed plan change to recalibrate the nitrogen leaching rates in Table 5.9.1D.

Section 32 Evaluation

27. In light of feedback received, staff have reviewed the evaluation sections of the draft Section 32 Evaluation Report. Only minor changes to that initial assessment are proposed, better describing possible impacts and updating the report in light of the ‘Actions for Healthy Waterways’ package, as shown in Attachment 2.

Plan-making pathway

28. At the time of writing the main report, staff had anticipated that legislative reforms to the RMA, including the freshwater plan-making process, would be announced along with the government’s decisions on the ‘Actions for Healthy Waterways’ programme. However, drafting is still in progress and there is no set date for when this legislation will be introduced to Parliament for its second and third readings. The consequence is that there is still a small window of opportunity to apply to the Minister for approval to use the streamlined planning process (SPP).

29. The use of this process was discussed at the March 2020 meeting of the RPC, though no formal decisions were made in this respect. A link to the SPP process is here: https://www.mfe.govt.nz/sites/default/files/media/RMA/Final%20FlowchartDiagram%20Nov17.pdf

30. As part of the ‘fast fail’ approach, staff have only held preliminary discussions with MfE officials. Ministry officials advised that the freshwater planning process must be used for any related plan change once the amended RMA is enacted. Until then, the streamlined planning process remains available.

31. Given that the opportunity to use the streamlined process remains, ahead of RMA reform, staff consider it is worth pursuing this pathway. The proposed plan change meets at least two of the relevant criteria:

31.1. As a matter of public policy, the preparation of a planning instrument is urgent (s80C(2)(b) RMA)

31.2. A plan or policy statement raises an issue that has resulted in unintended consequence (s80C(2)(d) RMA).

32. If this process is followed, the Council must apply in writing to the Minister requesting a directive to use the SPP. If the Minister approves use of the SPP process, he provides a Statement of Expectations and direction on what processes and procedures (such as reporting) are to be used. The Council must then follow those directions. The Minister must also give his approval at the end of the process, before the plan change can be made operative.

33. A brief evaluation of the two plan-making pathways for this proposed plan change is set out below:

Table 1: Evaluation of plan-making pathways

Matter	Option 1 Stream-lined planning process (Part 5 Schedule 1)	Option 2 Part 1 Schedule 1 planning process
Participation in plan-making process	Opportunity for anyone to make submissions and further submissions on notified proposed plan change (unless the Minister directs otherwise)	Opportunity for anyone to make submissions and further submissions on notified proposed plan change
Quality of decision-making	Submissions and hearing process, with accredited RMA hearing commissioners, in accordance with direction from the Minister	Submissions and hearing process with accredited RMA hearing commissioners
Right of appeal	No right of appeal to the Environment Court	Right of appeal to the Environment Court
Timeliness for plan decision-making	Enables a quality decision to be made and the change to be made operative in the shortest time.	Enables a quality decision to be made, but right of appeal risks delay before the change can be made operative
Use for consenting processes	Has legal effect once notified, but this is given limited weight until the decision is made	Has legal effect once notified, but this is given limited weight until the decision is made and any appeal is resolved
Cost	Costs are limited to the submission, hearing and deliberations processes	Costs include those for submissions, hearing and deliberations, but may increase sharply for all parties on appeal
Purpose of plan change	Achieves the purpose	Achieves the purpose if there are no appeals

34. While some additional time is required to secure the Minister’s approval to use the SPP pathway, the previously proposed notification date of Saturday 27 June 2020 may be deferred. However, staff consider that the benefits of following a sound decision-making process as directed by the Minister, and a more timely decision to inform consenting processes, warrant any such delay.

35. Accordingly, staff recommend use of the streamlined planning process as it offers the best opportunity to deliver an operative plan change in the shortest possible time. This clearly achieves the purpose of the plan change and provides the a timely and cost-efficient way of addressing the unintended consequence to Table 5.9.1D arising from the change in Overseer versions.

Next Steps

36. Should the RPC recommend use of the SPP pathway, the following actions will be undertaken to progress this proposal:

36.1. Apply to the Minister to use the SPP pathway

36.2. Contact iwi authorities of the Tukituki Catchment to inform them of the recommendations made by the RPC, and request:

36.2.1. Further feedback on the proposed plan change and pathway

36.2.2. Nominations for a suitably qualified RMA accredited hearing commissioner for the hearings panel.

36.3. Commission an independent agency to recalibrate Table 5.9.1D using data from the original 2012 table

36.4. Report back to the Council with the decision of the Minister with respect to use of the SPP pathway

36.5. Report back to the Council identifying how particular regard may be given to any further feedback received from the iwi authorities of the Tukituki Catchment

36.6. Update the proposed plan change and Section 32 Evaluation Report accordingly

36.7. Proceed to notify (or abandon) the proposed plan change according to the Council’s decision in light of the above information

36.8. Should the Minister not approve use of the SPP pathway, the opportunity to use the standard Schedule 1 Part 1 pathway remains available until the RMA reforms are enacted. In this situation, should the RPC wish to, they may resolve now to use the standard Part 1 Schedule 1 plan making process.

36.9. Given that time is critical to this plan change, should there be a delay in receiving a response from the Minister, staff will report back to the August meeting of RPC to consider remaining options.

36.10. Ensure the Proposed Long Term Plan includes resourcing to undertake the review of nutrient management with respect to land and water systems for the region, as is expected to be required by the National Policy Statement for Freshwater Management 2020, by 31 December 2024 (noting that this document is still to be finalised).

Response to iwi authorities concerns

37. Before notifying the proposed plan change, the Council must have particular regard to any advice received on the proposed change from iwi authorities consulted (Clause 4A (1)(b) Schedule 1 RMA)and must enable them time to consider the draft and provide advice (Clause 4A(2) Schedule 1 RMA).

38. Written feedback was received from one iwi authority (Te Taiwhenua o Heretaunga). The Chair of Heretaunga Tamatea Settlement Trust attended the online iwi authority meeting, where she gave her support to proceed with the plan change, while noting the diversity of opinions held within the Taiwhenua.

39. In response to the issues raised by Te Taiwhenua o Heretaunga (summarised at paragraphs 20-2 – 20.6 above):

39.1. With respect to groundwater quality, staff scientists note that what appears to be an increasing trend, is actually an artefact of a large number of shallow bores that were added to the Ruataniwha monitoring network in recent years. The increased NO₃ concentrations observed in recent years reflect increased spatial coverage of the monitoring network and not a temporal trend.

39.2. Further, a Ministry for Health report on the impacts of nitrogen in drinking water is due later this year, and Cabinet has requested a copy of that report to see if there are nitrate problems in aquifers.

39.3. An independent report to recalibrate Table 5.9.1D will be commissioned, for presentation to the hearing commissioners. For the purposes of notifying the proposed recalibration of Table 5.9.1D, the RPC needs to be sufficiently satisfied with Dr Hanly’s assessment that to all intents and purposes, the changes will be the same as those made to Horizon’s One Plan

39.4. A wider review of nitrate management will be required when the Tukituki Catchment provisions are reviewed and to give effect to the proposed National Policy Statement for Freshwater, signalled for 31 December 2024 in the recently released Government’s ‘Action for Healthy Waterways’ programme.

40. This response to the feedback from iwi authorities is also being incorporated within the Section 32 Evaluation Report.

Decision Making Process

41. 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:

41.1. The decision does not significantly alter the service provision or affect a strategic asset, nor is it inconsistent with an existing policy or plan.

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

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

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

41.5. The Council must use the plan making processes prescribed in Schedule 1 RMA. Either the SPP process (set in Part 5 of Schedule 1) or the usual process (set out in Part 1 of Schedule 1) may be used until any further reform to the RMA. The proposed new freshwater planning process would only apply if this change is notified after the RMA reforms are enacted.

Recommendations

That the Regional Planning Committee:

1. Receives and considers the staff report on Feedback from Tukituki Catchment Proposed Plan Change Pre-consultation.

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.

3. Approves Proposed Plan Change 6A Tukituki Catchment – Table 5.9.1D for notification and the associated report, Section 32 Evaluation of proposed plan change 6A Tukituki Catchment – Table 5.9.1D.

4. Requests staff apply to the Minister for the Environment to use the streamlined planning process.

5. As a default, should there no response from the Minister for the Environment by 15 July 2020, then approve the use of the Part 1 Schedule 1 RMA plan making process to enable a Council decision for the date of notification.

6. Requests staff inform all those who provided pre-notification feedback of their decision.

7. Requests staff contact iwi authorities of the Tukituki Catchment to nominate a suitably qualified and accredited RMA hearing commissioner.

8. Requests staff prepare a proposal to review nutrient management as part of the review of freshwater management provisions in the RRMP, with notification of the reviewed provisions to occur by 31 December 2024. Resourcing for this review will be included in the Proposed Long Term Plan 2021-2031.

Authored by:

Dale Meredith

Senior Policy Planner

Ceri Edmonds

Manager Policy and Planning

Approved by:

Liz Lambert

Group Manager Regulation

Attachment/s