Cabinet has recently approved the drafting of a new National Environmental Standard for Marine Aquaculture. The NES will fundamentally change how replacement consent applications will be dealt with when ‘reconsenting’ existing aquaculture farms. For marine aquaculture operators, the NES will be of ‘fin-tastic’ assistance to their reconsenting processes. Other resource consent holders, such as infrastructure operators, who have to reconsent their own regional council consents, will be left be asking why not us too? For the public and those persons affected by marine farms (apart from tangata whenua), the NES will represent a further erosion to the public and participatory nature of the RMA.
There are currently 1149 marine farms in NZ, of which 602 will require reconsenting by the end of 2024. For many of these marine farms, this will be the first opportunity for consideration under the RMA given many were authorised prior to the RMA coming into force. In 2004, amendments to the RMA provided that such prior authorisations were deemed consents which included a 20-year term.
In their policy approval papers to Cabinet, the Ministers for the Environment and Fisheries identified what they considered to be problems/issues associated with reconsenting of marine farms (as outlined below). With respect, many of the issues identified are simply symptomatic with RMA reconsenting in general and are faced by those consent holders that hold many regional council consents (such as hydro-electric power scheme operators). The issues and challenges confronting marine aquaculture are not unique, although the NES will only apply to it.
Inconsistency
The Cabinet Paper asserts that in considering applications, regional councils refer to objectives, policies and rules contained in their regional coastal plans, and that each regional coastal plan will have different rules and requirements for “replacement consenting”, ecological assessment and biosecurity. The obvious point not addressed in the Cabinet Paper is that any replacement consenting is dealt with under s104 of the RMA, pursuant to which regional plans are but one matter to which regard must be had. Large consent holders often have to deal with different approaches to policy, and whilst a potential bugbear for some, it is hardly unique to the marine aquaculture sector. The Cabinet Paper suggests that if councils take different approaches or do not adopt best practice then there is potential for inconsistency.
Uncertainty and inefficiency
The Cabinet Paper asserts that there is uncertainty with activity status, notification and how requirements to consider outstanding areas under the NZCPS will affect existing marine farms given potentially different consent authorities. Any consent applicant with assets in various districts or regions will face similar uncertainties. Again, this is far from unique to the marine aquaculture sector.
Inflexibility to realign farms or change species
Although not articulated how small changes to the location of a marine farm or species is frustrated by a reconsenting process, the Cabinet Paper asserts that minor changes to the position of a farm and diversity of species should be encouraged. As a different reconsenting process is not specifically provided for under the RMA, there is nothing in the Act which would make those changes challenging provided they were acceptable. The NES however would explicitly provide for such changes.
So, what will the NES cover?
The NES will introduce the following substantial changes:
Replacement consents will be treated as restricted discretionary activities which will include the ability to make small-scale realignments and changes in approved species, provided the area within which the farm is located has not been identified as inappropriate for aquaculture in the regional coastal plan.
Matters of discretion are to be clearly specified (although the Cabinet Paper does not do so and it appears matters of discretion are limited to ecological effects “determined through extensive scientific literature review of effects” and appropriate seabed surveys to avoid effects on significant habitats). Surprisingly, matters relating to natural character, landscape, visual, lighting, and navigational safety appear to be no longer relevant considerations.
Public or limited notification is precluded (except of tangata whenua or where special circumstances exist).
Pre-application consultation with tangata whenua is ‘required’. Where this does not occur the matter of discretion is broadened to include tangata whenua values and limited notification to the iwi is not precluded. The Paper is silent as to whether something akin to approval of tangata whenua is required. Given tangata whenua values are not a matter of discretion (if consultation is undertaken), it may be something beyond consultation is envisaged.
“Clarification” that the effects of an existing marine farm on an outstanding area is limited to farms that are partially or fully within an outstanding area. This is not a matter of clarification but a substantive change and would be a matter other resource consent holders would welcome especially given a post King Salmon world.
Enabling as part of a replacement consent application, a change in location by up to one third of the farm area unless the farm is greater than 10 ha and uses supplementary feeding (i.e. finfish farms). This may be quite significant and there is no background provided as to why one third of a farm was selected or how it represents an effects-based approach.
Enabling a change in species to four recognised categorises.
Allow councils to set a lesser activity status, unless the council has after 1 January 2019 through the regional coastal plan determined aquaculture is inappropriate, where a discretionary activity status will be the default with the ability to apply a more stringent status. Clearly, the focus of affected persons will now turn to any such coastal plan changes.
Require councils to only grant a resource consent for new or existing marine farms where there is a biosecurity management plan that meets the criteria in a yet to be developed Fisheries NZ document.
For consents that do not expire before 31 January 2025, require councils to review the consent in order to implement a biosecurity management plan.
No further consultation on the NES is intended and Cabinet is expected to sign off on the final NES in early 2020. In the meantime, government has clearly picked a winner, and other sectors will be questioning why.