Next Steps for Fresh Water Consultation Document - NZCA submission

1. The Legislative Basis for the New Zealand Conservation Authority submission

The New Zealand Conservation Authority (NZCA) was established under the Conservation Act 1987.

The NZCA has a range of powers and functions, under the Conservation Act 1987, as well as under other conservation related legislation. Under the Conservation Act, Section 6C (2) (c), the NZCA has the power to “advocate the interests of the Authority at any public forum or in any statutory planning process.”

The Act sets out the Functions of the Department of Conservation which include:

“To preserve so far as is practicable all indigenous freshwater fisheries, and protect recreational freshwater fisheries and freshwater fish habitats”.

One of the functions of the NZCA is to investigate any nature conservation or other conservation matters it considers are of national importance and to advise the Minister or the Director- General of Conservation, as appropriate. The NZCA sees fresh water to be a conservation matter of national importance and has consistently identified fresh water management as one of its strategic priorities.

One of the NZCA’s statutory functions is to approve conservation management strategies and conservation management plans, and review and amend such strategies and plans. They constitute the key management documents for directing conservation effort and resources in NZ. Many of these documents have objectives, policies and outcomes relating to fresh water habitats and fresh water fisheries.

The NZCA also has a function to investigate and advise the Minister or the Director-general on any conservation matter. Fresh water issues fall under ‘any conservation matter”.

Following the logic of the above powers and functions, the NZCA has decided to submit on the MFE Consultation Document – Next steps for fresh water.

2. NZCA Advocacy for fresh water.

The NZCA has taken a close interest in fresh water matters in New Zealand over at least the last decade. In 2008 the NZCA adopted a policy entitled “NZCA Fresh Water Principles” (attached as Appendix One).

The NZCA’s current advocacy on water issues recognises and reflects the widespread public concern about water. The NZCA recognises the significance New Zealanders place on rivers, wetlands, lakes and estuaries; these places are an inherent part of being a New Zealander.

As indicated above, water bodies are a significant feature of Conservation Management Strategies. These documents have been developed and amended, based on submissions from a wide spectrum of the NZ community.

Media reports over the last two decades have to a large degree, concentrated on deterioration of water quality and water quantity issues in lowland water bodies, where intensification of land use has had the greatest impact. This is of concern from an environmental perspective. The NZCA prefers to take a wide conservation perspective on the fresh water issue.

The NZCA perspective on fresh water environments covers:

• The requirement for a “headwaters to sea” integrated approach (including estuaries and immediately affected inshore marine environments).
• Emphasis on the diverse range of freshwater ecosystem types (rivers, streams, lakes, hydrologically connected groundwater, spring- fed streams, wetlands, estuaries, coastal lakes).
• Healthy freshwater ecosystems (maintaining the diversity of in-stream habitat types, riparian margins, natural flow regimes, a high standard of water quality).
• Preservation of indigenous fish species.
•  Protection of indigenous aquatic flora and fauna (additional to fish species), as part of the food web.
• Recognition of the ecosystem services public conservation land provides to fresh water ecosystems beyond the boundary of such lands.
• Public accessibility of fresh water resources.
• Public health issues associated with degraded water quality.
• Permanent protection of fresh water bodies.

In relation to the last point – permanent protection of fresh water bodies - in 2011 the NZCA published its “Protecting New Zealand’s River” Report. Section 7 (Enhancing River Protection) summarises the 19 recommendations from the report. Although the recommendations are broader than proposals in this Consultation Document, recommendations 13 to 17 relate to Water Conservation Orders (WCO). The recommendations from that report are attached in Appendix Two of this submission, and we recommend chapters 4 and 5 in particular be read for context. A copy of the full report is attached as part of this submission. Section 5a) of this submission expands on the proposed changes to the WCO section of the RMA.

3. Next Steps for freshwater Proposals - The NZCA position and suggestions:

The following submissions are the NZCA’s main concerns about the proposals. The submissions follow the structure of the consultation document.

a) Freshwater and our environment proposals

The development of new attributes, including sediment, toxic algae and wetlands is strongly supported. These are urgently needed, to ensure all effects on all aquatic ecosystems are addressed.

We note that standards are now urgently required for estuaries and coastal lakes and the NZCA supports the proposal to apply the Appendix 2 attributes table to these water bodies, noting that further research on estuaries and coastal lakes is necessary.

Both the development of the proposed new attributes and application of attributes to estuaries and coastal lakes will ensure cumulative effects are addressed and catchment management is integrated.

The NZCA considers some of the current water quality standards are inadequate. Standards should be ambitious and more aspirational, given the long term nature of improving water quality at some locations. The wadeable standard for human health in freshwater is a good example of the inadequacy of a standard and we note this standard has been much maligned by the general public and water quality experts. The standards should be more closely aligned with the well- researched ANZEEC guidelines (2000), which reflect human health, animal health, ecosystem health in terms of impacts of contaminants on ecosystem processes and aquatic species.

Inadequate standards may mean a longer time frame for improvement of degraded water quality. Some contaminant standards are set at such a level that greater degradation of aquatic ecosystems, will occur over the short to medium term. This may well prove fatal for some of the more sensitive aquatic species and those species with already limited habitat availability or habitat quality.

b) Macro vertebrate MCI as an attribute and measure of ecosystem health.

We strongly support this proposal, but for the reasons outlined earlier, the standards set should reflect and align with the ANZEEC guidelines for freshwater systems, to ensure ecosystem health is maintained and improved.

c) Significant infrastructure and water quality.

The NZCA acknowledges the importance of hydro- electricity generation and irrigation to NZ, and supports the proposal for further direction on evidence to define exceptions. The concept of “exception” requires careful thought and definition. Most hydro development and large scale irrigation infrastructure has resulted in significant, and often irreversible, adverse effects on freshwater ecosystems. The concept of exceptions could prove to be a disincentive to power generators and irrigators to even try to mitigate/ remediate adverse effects, on an ongoing basis.

Many mitigation/ remediation techniques exist and are practical. These include flushing flows to ensure periphyton biomass meets the appropriate standards for ecosystem health. Flushing of clean water can remove fine sediment from the interstices of rocks on river beds which degrade macroinvertebrate and small native fish habitat. Restoration of wetlands along the riparian margins of rivers affected by hydro development can add considerably to water quality and biodiversity.

It is unacceptable to enable exceptions where much can be done to improve water quality and habitats for fauna, as well as providing for infrastructure. Some mitigation and remediation activities can be out-of-stream.

We submit the following additions be made to the list of information needed to determine where exceptions should be considered:

• Community concerns about adverse effects on their local community. (These are often neglected in the national interest).
• The existing water permit conditions, including monitoring conditions. (These have often been negotiated and agreed with stakeholders. Conditions often require mitigation and remediation of adverse effects on an ongoing basis. It is important these matters are not neglected).
• The need for adequate flow regimes for rivers affected by HEP development and water takes for irrigation. (This means not just minimum flows and the occasional flushing flow. Attention needs to be given to median and mean flows, the number of high flow events and other flow regime characteristics).
• Evidence of the state of the affected water body ecosystem and trends over time.

d) Stock exclusion from water bodies.

The NZCA generally supports the “deadlines” proposal, but think the 2025 timeline should be the limit for having all stock types (as listed in the table) out of water bodies, if meaningful progress in improving water quality and ecosystem health is to be made.

We do not support the omitting of sheep from the proposed regulation. We consider that sheep should be excluded from lowland NZ waterbodies, particularly class 1 -4 land. Some parts of NZ are very intensively sheep farmed. Research highlights the presence of faecal matter from an ovine source, in surface water and in-stream sediments, in many lowland streams in Southland. A summary of this research is attached as Appendix Three. This information also refers to the research paper available on the Environment Southland website.

We note the Sustainable Dairying Water Accord standard of "streams > than 1m wide and > 30cm deep " as requiring to be fenced. This is inadequate for protecting small stream ecosystems. There are many small streams ecosystems in lowland areas that are permanently flowing and have smaller dimensions than the Accord definition. Many smaller streams provide habitat for long and short fin eel and a variety of non-migratory galaxiid species and bullies. These should not be ignored. All permanently flowing streams need to be fenced in lowland (class 1-4) land. A flexible approach to the Accord definition is required, to enable regional differences and to better protect small stream ecosystems and native fish populations.

4. Economic use of fresh water

a) Technical efficiency standards.

The NZCA is unclear how these will operate or how they will help address over-allocation and free- up water for new users. The concepts of "over-allocation" and "freeing- up water for new users" seem to be in conflict. An over-allocated surface water body often means the surface water ecosystem is under severe pressure at low flows. This can impact on habitat availability and native fish species. In such situations reducing the over- allocation as soon as possible, and giving the water body ecosystem a chance to recover, would be a more environmentally sustainable approach. We note there is further work to be done on allocation policy and we consider that policy needs to include the concept of restoring the ecosystems of over-allocated water bodies.

b) Good management practice standards.

The NZCA supports the concept of good management practice standards, noting that they need to be the "norm" for all farming. If real progress is to be made in terms of maintaining and improving water quality, good management practices need to be implemented as soon as possible. As noted in 3d), re stock exclusion, timelines to achieve that particular GMP should be brought forward.

Managing diffuse N discharges is the biggest challenge. Being able to meet this challenge is not helped by the fact that the national bottom line for nitrate is not set at an ecologically realistic level. We consider this standard should be reviewed, to ensure a more realistic ecological measure. This will lower people’s expectations about how much they are allowed to pollute and this will force further lateral thinking about good management practices around nitrate leaching.

It needs to be acknowledged that implementing GMP’s may not be enough to achieve the improvements in water quality sought in some catchments, where water quality allocations are exceeded.

c) Transferring consents to more efficient, higher valued uses.

The NZCA does not support the concept of transferring of consents for water takes and discharges of contaminants, unless the effects on the environment are reconsidered as part of the transfer process.

The problem with such a concept is that it fails to acknowledge that adverse effects of activities can be very site specific. The following example demonstrates this issue.

Water quantity: stream flow depletion effects of groundwater takes on surface water flows. These can vary considerably in a spatial sense. A ground water abstraction from one part of an aquifer affecting the flows in the lower reaches of a surface water course can be significantly different from the effects of the same take from the same aquifer on the upper parts of the stream system. For example a 100l/s take from groundwater with a 10% (10 l/s) depletion effect on a stream with a low flow of 200l/s in its lower reaches is very different from the upper reaches of the stream where the low flow is only 50 l/s. The adverse effects could be very significant on in-stream habitats and on fish species living in the upper reaches of the stream. Such effects must be considered under any transfer arrangements.

We consider that the concept of transferring discharge consents blurs the existing resource consent compliance processes. Transferring a discharge consent, with conditions setting nitrate leaching quantities, to another consent holder raises questions about responsibility for compliance with the consent conditions. Individual responsibility in terms of consents needs to be upheld.

The ability to transfer consents where nitrate leaching is below the consented level to another consent holder who wants to leach more nitrate represents a disincentive to “do better”. In the long term such a system would have a negative impact on maintaining and improving water quality and aquatic ecosystem health.

In New Zealand, a stage has been reached where under-allocated resources is a very good position to be in. Such a situation means there is time for natural ecosystems to recover and improve. It should not be the aim to use every last bit of “head room” in the name of maximising production. 

5.  Iwi rights and interests in freshwater

a) Water Conservation Orders (WCO).

The NZCA supports the proposal to include Iwi participation in WCO decision making. We understand this has been the case in more recent applications and hearing processes, e.g. the Oreti Conservation Order 2008.

The NZCA however, does not support other proposals under this heading. The key concern relates to the tying of WCO applications to regional planning processes. WCO, since being part of NZ’s environmental legislation, have come to be considered by some as the “national parks’ of NZ waterways. This concept comes from S 199 (2) of the RMA which has elements of “preservation” and “protection” of outstanding water bodies and outstanding characteristics of the water bodies.

The proposal to make WCO subservient to regional planning processes is a major backward step and is not supported by the NZCA. The proposal reverses the current legal hierarchy of the RMA, as at present WCO (S199, RMA) sit above Pt 2 of the Act. By nature WCO’s do not fit the regional planning 10 year timeframe, as they are a long term preservation and protection mechanism. It appears that this proposal would mean WCOs could be reviewed every 10 years, at the discretion of the elected members of a Regional Council. Currently WCO applications are reported on by a Special Tribunal, heard by the Environment Court, recommended by the Minister and signed off by the Governor General. The proposed new approach downgrades this high level process, which currently sits outside and above regional planning processes.

Fifteen (15) WCO are in place. It should be noted that Regional Councils around NZ have failed to support WCO applications. They have never applied for one. They have largely submitted in opposition to applications. They see them as a major impediment to their powers. Territorial Councils have also failed to support WCO applications, seeing them as an impediment to development. The NZCA is of the view that the state of New Zealand’s water bodies would be in a much worse state than they currently are, if the currently gazetted WCO were not in place.

The NZCA is of the view New Zealand rivers need greater protection than regional plans are likely to provide. We also submit, the post-Treaty landscape is likely to add another layer of complexity to the preservation and protection of lakes and rivers in the future. The recommendations from the NZCA Rivers report (Appendix Two) are a good summary of a number of mechanisms for achieving such protection, including improvements to the WCO process.

The NZCA has advocated for some time for greater protection of rivers and lakes. The 2011 Rivers report highlighted this. The proposals set out in the Next steps for fresh water consultation document do not fit with the greater preservation and protection the NZCA has been advocating.

The NZCA is mindful that WCO have been very hard and expensive to achieve. To achieve a WCO in a timely manner, often results in a few select values being promoted in order to make progress. Protection of rivers and lakes under WCO would be better served if all conservation values were considered as part of a WCO application process.

The NZCA would support a review of the WCO process, if it resulted in a more rigorous, all encompassing process that looked at a full range of fresh water and conservation values (including cultural values) of an outstanding waterbody. In this regard, the NZCA considers the “Next steps for fresh water” process is an opportunity to review the effectiveness of WCO and the WCO process. However the current legal status of existing WCO should be retained.

Background to the NZCA

The New Zealand Conservation Authority is established by the Conservation Act 1987, with members appointed by the Minister of Conservation. It has a range of functions, but primarily acts as an independent conservation advisor to the Minister and the Director-General. The NZCA’s role has, in the past, been seen to be largely as a strategic advisor, but it has a growing role as an objective advocate on matters of national significance and interest in the conservation arena and, more recently, as a “board” to provide high quality independent advice to the Department of Conservation on its strategic direction and performance.

Current membership of the New Zealand Conservation Authority

In consultation with the Minister of Maori Affairs:

• Waana Davis of Lower Hutt
• Rauru Kirikiri of Wellington

In consultation with the Minister of Tourism:

• Warren Parker of Rotorua
• Mike Simm of Kerikeri

In consultation with the Minister of Local Government:

• Jan Riddell of Winton

On the nomination of Te Runanga o Ngai Tahu:

• Sandra Cook of Otautau and Christchurch

On the recommendation of Royal Forest and Bird Protection Society of New Zealand:

• Gerry McSweeney of South Westland and Arthurs Pass

On the recommendation of Federated Mountain Clubs of New Zealand:

• David Barnes of Dunedin

On the recommendation of the Royal Society of New Zealand:

• Mick Clout of Auckland

From public nominations:

• Devon McLean of Nelson
• Jo Breese of Wellington
• Judy Hellstrom of the Marlborough Sounds
• Mark Christensen of Christchurch

Appendix one:

NZCA Freshwater principles (2008)

New Zealand’s freshwater resources are approaching crisis point.

These principles are a tool to guide the assessment of the New Zealand Conservation Authority’s role, its contribution to, and/or response to issues relating to freshwater management.

These principles acknowledge the interaction of freshwater with the land from the mountains to the open sea and recognise that freshwater is essential to all life. It exists in various states, described by the hydrological cycle: in the atmosphere, as snow and ice, and as liquid water both above and below ground, some of which is geothermal in nature.

Water is only in part a renewable resource.

The NZCA believes that current and future generations of New Zealanders all have the right to enjoy the benefits of our common freshwater resources, so that we can all fully enjoy the environmental, social, cultural and economic benefits associated with freshwater.

The NZCA is concerned that economic drivers are dominating the management of freshwater issues to the detriment of other values and believes freshwater management requires taking a long -term, holistic approach, to conserve and protect freshwater it for all its many uses and values.

Governance

1. Freshwater is a taonga - a treasured and common resource vital to all our lives and must be respected and managed for the benefit of all the people and natural ecosystems of New Zealand.
2. Freshwater environments should be managed in an integrated, long-term, whole-of-catchment, way that recognises the complex inter-relationships of the various components and values.
3. Decisions about the allocation of water must be made in the context of the whole catchment, region and ecosystem, encompassing the range of environments, flow regimes, landforms and landscapes.
4. There should be clear national policy to address competing values and uses.
5. Decision-making should provide for public and tangata whenua participation at all levels form community to Government, and be informed by principles of Kaitiakitanga, stewardship and traditional knowledge as well as scientific understanding.
6. The quantity and quality of freshwater should be regularly monitored; new information and research results reviewed, and management continually adjusted to incorporate these.
7. Where there is insufficient information, or effects may be irreversible, the precautionary principle should apply.
8. Use of water for drinking (by humans and animals) has priority over other consumptive uses.
9. Any allocations granted should be based on evidence of environmental sustainability, fairness and equity, rather than greatest potential economic gain, and should preclude any possibility of on-selling or trade.

Protection

1. Freshwater management should provide for the protection of all instream values especially the connectivity of water bodies, their riparian margins, and the protection of indigenous biodiversity, natural character, intrinsic, recreational and aesthetic values, wilderness values, historic and wahi tapu values and ecosystem services.
2. Priority should be given to New Zealand’s unique indigenous flora and fauna.
3. Indigenous aquatic species should be present in natural abundance and be able to, if their natural lifecycles require, freely migrate up- and downstream, to and from the sea, through river mouths and in and out of lakes.
4. The role of rivers, lakes and their outlets in provision of sediments for natural coastal processes should be recognised.
5. Freshwater management should provide for the rehabilitation of degraded waterbodies and their margins.
6. Freshwater management should include prevention of the establishment of new pests and provide for the containment/reduction/elimination of existing ones.
7. Freshwater management should provide for the provision of open space adjoining freshwater bodies and access to estuaries, lakes and waterways for the benefit, recreational use and enjoyment of the public.

Sustainability

1. Freshwater management should ensure that any use of water resources, and the indigenous species therein, is ecologically sustainable and managed in a way that maintains its potential for future generations.
2. Water should be safe for both swimming and food harvesting.
3. Freshwater management must address the cumulative effects of both abstractive uses and discharges.
4. Reduction or elimination of water pollutants should occur at their source, rather than clean up and remediation after environmental damage has been done; land uses creating diffuse-source pollution must therefore be monitored as stringently as point-source discharges.
5. Environmental outcomes for freshwater should be based on the values and physical characteristics of the particular waterway.
6. Freshwater management regimes should acknowledge the changes brought about by natural processes including floods, droughts and climate change.

Management

1. Authorised uses should generally be time-limited and reviewable and contain conditions specific to timing and quantity of abstraction.
2. New Zealand needs a national water quality- and quantity- monitoring network that provides comprehensive coverage of flowing waters, lakes and wetlands, capable of providing data that is compatible across regions.
3. Collected data should be used for research and modelling to connect precipitation and river flows enabling greater understanding and prediction of flows and river behaviour.
4. Resources are required to expand management capability and provide appropriate hydrological skills at regional level, and hydrological modelling skills at a national level.

Footnote: These principles should be read in conjunction with the other current NZCA principles and the template for section 4 of the Conservation Act (giving effect to the principles of the Treaty of Waitangi).

Appendix two and three

Appendix two and three are available on request.