The Government has recently consulted on two national direction instruments under the RMA, being the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (NES-F) and the proposed National Policy Statement for Indigenous Biodiversity (NPS-IB). In both cases, we anticipate seeing some policy change in late 2022.
Changes to the Freshwater NES - wetlands
Government continues to consult on proposed amendments to wetland provisions in the NES-F.
In June-July 2022, feedback was sought on both the National Policy Statement for Freshwater Management and the NES-F. The Ministry for the Environment (MfE) sought feedback on proposed amendments described as “amendments aim[ed] to improve clarity, reduce complexity of drafting, and in some cases correct errors, without fundamentally changing policy”. The outcomes of that consultation are not yet known.
Further consultation is currently open, specifically on whether changes to the NES-F are required in response to the High Court decision in Minister of Conservation v Mangawhai Harbour Restoration Society Incorporated,[1] where it was held that the NES-F wetland provisions apply to natural wetlands in the coastal marine area (CMA).
MfE has stated that the “original policy intent” of the NES-F was to restrict activities likely to cause loss or degradation of wetlands, including in the CMA. However, MfE also acknowledges that applying the NES-F wetland provisions in the CMA “could prevent or constrain activities unlikely to cause the loss or degradation of natural wetlands, which goes beyond the original policy intent”.
Our experience is that attempting to apply the NES-F wetland provisions in the CMA is difficult factually/scientifically, and can lead to extremely stringent outcomes (i.e. prohibited or non-complying activities) compared with management of those same activities in regional plans. In some cases, an effects-based justification for that outcome is difficult to discern.
MfE’s preferred option to resolve the issue is a very simple change to the relevant definitions to clarify that the NES-F wetland provisions no longer apply to natural wetlands in the CMA.
Feedback on the application of the NES-F to the CMA closes on 21 September 2022.
If you are interested in providing feedback, please do not hesitate to contact us to discuss.
Proposed NPS for Indigenous Biodiversity
Continuing the earlier (2017) work by the Biodiversity Collaborative Group to develop a draft NPS-IB, an exposure draft NPS-IB was released for targeted consultation in June-July 2022. ChanceryGreen assisted clients to provide feedback on the exposure draft, including around the effects management hierarchy and the inter-relationship between the NPS-IB and the New Zealand Coastal Policy Statement.
The feedback period on the exposure draft NPS-IB has now closed. Officials are analysing responses, and any policy change recommendations will be considered. Gazettal of the NPS-IB is anticipated in December 2022.
[1] [2021] NZHC 3113.