Thursday, 10 August 2017 12:15

Unpacking the Government’s freshwater reforms

Written by  Marija Batistich, Special Counsel and Jessica Orsman, solicitor, at Kensington Swan
Marija Batistich. Marija Batistich.

Environment Minister Nick Smith made waves earlier this year when he announced the Clean Water package in February, a series of initiatives which the Government claims will improve freshwater management in New Zealand.

The initiatives are the first set of detailed proposals recommended by the Government, following consultation in 2016 on wide sweeping fresh water reforms contained in the Next Steps for Freshwater consultation document, published by the Ministry for the Environment.

Reforms to freshwater management come on the tail of heated debate about the declining water quality of New Zealand’s lakes and rivers, with a key public concern being that many are no longer fit for swimming. In releasing the Clean Water package the Government grasped onto this concern to gain public support, by promoting a 90% “swimmable” target as the key component of the initiatives. However, the proposed changes to the “swimmable” standard seem to have back fired, with strong arguments from the science community that the standards do not actually represent an improvement from the status quo.

Essentially, the new “swimmable” standard will grade rivers and lakes on how often they meet the “swimmable” water quality standard (based on E.coli levels). A lake/river which meets the standard at least 80% of the time is considered “swimmable” (based on a minimum of 100 samples over a maximum 10-year sample period). The target set is 90% of rivers “swimmable” by 2040, and an interim target of 80% by 2030.

Possibly the biggest criticism leveled against the new standard is that statistically there will now be a greater chance of people getting sick in a “swimmable” river than under the current standards contained in the National Policy Statement on Freshwater (NPS) (based on the E. coli. standards). Further, the standards mean a “swimmable” river may be “un-swimmable” for up to 20 percent of the time, which will likely include time over summer when people want to swim in rivers.

Along with the target, a series of interactive maps showing water quality information for swimming will be made publicly available and updated annually – although the usefulness of these is limited if the goal is to provide up to date information on whether a river is “swimmable”.

With most of the focus on the short comings of the “swimmable” target, other proposed changes to the NPS, which arguably have more of an impact on freshwater quality, have been glossed over. For example, the Government proposes to change the requirement that freshwater quality must be ‘maintained or improved’ within a region, so that: “the overall quality of fresh water within a freshwater management unit is maintained or improved…” A freshwater management unit is usually a group of catchments or parts of catchments. This change supports case law that held there is no flexibility for councils to allow water quality degradation in some catchments in the context of maintenance across the whole region (an “overs and unders” approach).

Other notable changes to the NPS include requiring councils to establish objectives for in-stream concentrations of dissolved inorganic nitrogen (DIN) and dissolved reactive phosphorous (DRP) and requiring monitoring of macroinvertebrates in appropriate rivers and streams. These freshwater attributes and indicators are important for assessing/managing the health of ecosystems in rivers and lakes.

The amendments to the NPS around maintaining/improving water quality and setting objectives for nitrogen and phosphorous could well mean that more regional councils impose tighter water quality standards for catchments, even if the “swimmable target” itself does not seem to demand much improvement in water quality. Tighter water quality standards already introduced to some regions have impacted many water users in the agricultural sector renewing/applying for water-take and discharge consents– such as in Canterbury under the Canterbury Land and Water Regional Plan.

On the other hand, another proposed change to the NPS requires councils to consider the “economic well-being” of the community when making decisions about water quantity, the level and pace of water quality improvements, and setting freshwater objectives. This seems to encourage activities/developments using water who can show they are generating economic opportunities, even though many such water users such as dairy farmers, adversely affect water quality. It will be interesting to see how this policy change is applied in practice, and whether it supports allocation to applicants within economically important industries to New Zealand such as viticulture.

Overall the Clean Water package does not propose any wide-sweeping changes to the water allocation system or rethinking the efficient use of water in New Zealand.

The Government has said that changes to water allocation will come at a later stage.


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