Late last month, the Resource Management (Freshwater and Other Matters) Amendment Act 2024 (Act) received royal assent and was enacted into law. The Act makes significant changes to the Resource Management Act 1991 (RMA) and affects the application of several national planning instruments, most notably the National Policy Statement for Freshwater Management 2020 (NPS-FM). 

The Government has criticised the NPS-FM as “extremely complex and expensive for farmers and councils to implement”. The Act, described by the Government as “about protecting the interests of the primary sector, resource users and ratepayers”, is a key first step in the Government's plan to dismantle the current NPS-FM and replace it with a more farming and business friendly document.

For our previous discussion of the Bill when it was first introduced to Parliament, see our insights here. For our insights on the Government’s RMA reform programme generally, see here.

Changes to freshwater planning

Through changes to section 80A of the RMA, the Act prohibits regional councils from notifying a freshwater planning instrument earlier than a new NPS-FM being published, or 31 December 2025, whichever comes first. The Government has stated that it wishes to ensure that the primary sector has clarity over future freshwater regulation, and that “councils do not waste time and resources developing plans that will soon be superseded” by the new NPS-FM.

The Act also stops Part 9A of the RMA from applying to any district, region or part of the country specified in the Resource Management (Application of Part 9A - Freshwater Farm Plans) Order 2023. It thereby removes national-level requirements to prepare freshwater farm plans in the Waikato, Manawatu-Whanganui, West Coast, Otago and Southland regions. Further, it nullifies freshwater farm plans that have already been certified or audited under Part 9A by stating that they no longer have any effect, although these changes will not affect regional plan provisions or farm plans that do not rely on Part 9A. 
Regional councils who were about to notify freshwater plan changes or require freshwater farm plans based on Part 9A will now need to reassess their work programmes, pending a significant change in national direction via the new NPS-FM issued next year.

Removing the NPS-FM’s hierarchy of obligations from the consenting process

The Act also makes important changes to section 104 of the RMA that prevent consent authorities from having regard to the hierarchy of obligations contained in the NPS-FM when considering resource consent applications. Te Mana o te Wai is the “fundamental concept” of the NPS-FM, and refers to the importance of water and recognises that protecting the health of freshwater protects the health and well-being of the wider environment. Within Te Mana o te Wai there are six principles and a hierarchy of obligations that prioritises:

1. first, the health and well-being of water bodies and freshwater ecosystems
2. second, the health needs of people (such as drinking water)
3. third, the ability of people and communities to provide for their social, economic and cultural well-being, now and in the future.

The hierarchy of obligations is reflected in the single objective of the NPS-FM.

As introduced, the Act’s changes to section 104 would only have affected applications for resource consent that were lodged after the Act had come into force. Reflecting the recommendations of the Select Committee, the changes to section 104 now apply to applications already lodged with a consent authority before the Act came into force, provided the consent authority has not yet served notice of its decision.

The Act also removes the ability of consent authorities to request further information under section 92 of the RMA in relation to the hierarchy of obligations in the NPS-FM.

Based on the overall direction of RMA reform under the present Government, the changes to section 104 appear intended to require consent authorities to give less weight to the health and well-being of water bodies and freshwater ecosystems, and greater weight to the social, economic and cultural well-being of people and communities. However, whether that is the impact in practice is uncertain, given the Act has excised the only part of clause 1.3 of the NPS-FM that referred to economic wellbeing, albeit as a third priority, while the balance of the provisions about Te Mana o Te Wai remain in force. The Act does not change the obligation for consent authorities to have regard to the remainder of the NPS-FM under section 104 of the RMA, including in particular its provisions other than the hierarchy of obligations, but clearly the impact of the NPS-FM on consent applications will now be different. 

Changes to section 107

Another change from the Bill as introduced is to amend section 107 of the RMA to address the High Court’s decision in Environmental Law Initiative v Canterbury Regional Council,^[1] which disallowed the granting of a discharge permit for an irrigation scheme under section 107. This was on the basis that the permit would give rise to a continuation of significant adverse effects on aquatic life, despite the effects on aquatic life reducing over time due to the discharge permit’s conditions. 

The Act amends section 107 to allow a consent authority to grant a discharge permit or coastal permit that would have significant adverse effects on aquatic life if the consent authority is satisfied there are already significant adverse effects on aquatic life in the receiving waters, imposes conditions on the permit, and is satisfied that those conditions will contribute to a reduction of effects on aquatic life over the duration of the permit. 

The Act does not, however, make any changes to address the effect of recent case law about section 70, which deals with the same subject matter as the changes to section 107, albeit in the context of permitted activity rules. The Government has signalled an intention to amend section 70 in an upcoming Resource Management Amendment Bill. 

The amendments to sections 92, 104 and 107 of the RMA can be seen as “stopgap” measures designed to make the consenting of applications that utilise freshwater resources easier, ahead of the overhaul of the NPS-FM next year. Because the amendments apply to applications already lodged with a consent authority, current as well as future applications stand to benefit from the less restrictive approach to resource consenting that affects freshwater resources.

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For further advice on the matters covered in this FYI, please contact one of our experts listed below. 

Special thanks to Liam Stevens for his assistance in writing this article.