The Government’s latest piece of RMA reform-related legislation (released on 23 May) aims to reduce the regulatory burden while more widespread amendments are prepared.

The primary beneficiaries of the amendments appear to be consent applicants, with some reduction in regulatory powers (and burden) for councils. Freshwater and SNAs will in practice have a slightly lower degree of protection.

Below we provide our initial observations about key elements of the Bill.

NPSFM 2020 hierarchy of obligations excluded from consideration in consent applications

The headline change is to remove the need (and ability) to consider the hierarchy of obligations (Te Mana o Te Wai) contained in the National Policy Statement for Freshwater Management 2020 (NPSFM 2020) in resource consent processes until the NPSFM 2020 is replaced.

It does this by excluding the hierarchy of obligations from consideration when consent authorities are deciding whether to grant consent under section 104, and also by preventing consent authorities from asking for information about, or commissioning a report on, that hierarchy.

Our comments

The change does not affect obligations to prepare regional plans in accordance with Te Mana o Te Wai, or obligations for consent applications to be assessed against those regional plans. Nor does it apply to consent applications lodged before commencement of the Bill. As a result:

• existing consent applications and plan preparation processes are not affected by this change; and
• regional plans that have already implemented the hierarchy will still need to be considered, although few have fully done so yet. 

The key beneficiaries of this change will be consent applicants whose proposed activities will take or discharge into water and may affect the health and well-being of water bodies and freshwater ecosystems (tier one) or the health needs of people (such as drinking water) (tier two). In practice it will temporarily remove the debate about whether such water takes or discharges cannot readily occur while the relevant freshwater body is in a degraded state. As a result it has the potential to result in more consent applications being granted for water takes or discharges into water.

Any consent applications that are granted in reliance on this change would still be subject to the regional council’s power of review under section 128 of the RMA in the event a plan review resulted in the imposition of stricter water quality or quantity standards. Consent applicants would therefore be wise to still take a long-term view to their activity before making significant investment decisions in reliance on this change. But equally applicants about to lodge applications for consent to take freshwater, or to discharge contaminants into freshwater, may wish to consider the potential benefits in delaying lodgement. This would mean that applications lodged after the Bill becomes law will no longer be subject to the hierarchy of obligations as currently expressed in the NPSFM 2020.

Alignment of consenting pathway for coal mining and other mineral extraction activities

The NPSFM 2020, National Policy Statement for Indigenous Biodiversity 2023 (NPSIB 2023) and the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (NES-F) all contain strong protections for wetlands and SNAs, while still enabling consent applications for mineral extraction (other than coal) to be considered on their merits, even if they would otherwise affect wetlands and SNAs.

Coal mining has not had the benefit of that consent pathway, and the Bill seeks to change that by amending the three pieces of national direction to treat all mineral extraction and ancillary activities (including coal mining) the same.

Our comments

We anticipate this change has its origins in concerns that preventing more local coal mining could mean continued or increased reliance on imported coal while it is still being used for some electricity generation and industrial processes. Whatever the position, this proposed amendment will likely generate significant debate.

Delaying the obligation for councils to identify and map new SNAs

Currently the NPSIB 2023 requires territorial authorities to identify SNAs using the method set out in the policy statement and notify plan changes including those SNAs by August 2028.

The Bill delays that until December 2030, as well as stating that several NPSIB 2023 provisions do not apply for three years after the Bill commences.

Our comments

The Bill does not affect existing SNAs or any other function or requirement under the RMA relating to biodiversity, including in relation to areas of significant indigenous vegetation or significant habitats of indigenous fauna. As a result, while the specific obligations under the NPSIB 2023 are suspended, councils will still need to ensure that their planning and consenting decisions appropriately protect areas of significant indigenous vegetation and significant habitats of indigenous fauna. Likewise, consent applicants will need to ensure that their proposed activities respond accordingly.

We also note that, while certain obligations are suspended for three years, the overall deadline for notifying relevant plan changes has only been extended by just over two and a half years. It is likely that this requirement will have been overtaken by further resource management reform by then, but it would be prudent to ensure appropriate resourcing is in place to get the work done in time.

Stock exclusion and intensive winter grazing relaxations

Currently, stock are required to be excluded from waterways on low slope land (below ten degrees in slope) under the Resource Management (Stock Exclusion) Regulations 2020, and the NES-F requires resource consent for intensive winter grazing that does not comply with particular conditions.

The Bill repeals those requirements, meaning that stock exclusion and intensive winter grazing will be regulated through regional plans and freshwater farm plans only.

Our comments

Farmers will be the key beneficiaries of these changes, while there will be concerns in other quarters that they could result in weaker protections against degradation of water quality.

An area of potential challenge arising from the Bill is that some regional plans have been prepared in reliance on the existence of the national stock exclusion regulations and/or the intensive winter grazing requirements of the NES-F. Accordingly, there is potential that the repeal of those requirements will mean consequential amendments are needed to regional plans. However, the Bill does not currently provide a mechanism for those changes. We consider there would be merit in such a mechanism being provided in order to reduce the prospect of unintended consequences.

Speeding up the process to prepare or amend national direction

The Bill seeks to create a more streamlined and efficient pathway to create or amend national direction under the RMA. The key changes are:

• Creating a single process for preparing national environmental standards and national policy statements, instead of having the option to use a board of inquiry process.
• Enabling the Minister to amend existing national direction without using the standard process if the amendment is for specified purposes, including implementing an international obligation, giving effect to an emissions reduction plan or national adaptation plan, changing timeframes, or making minor amendments.
• Creating a new bespoke, more flexible evaluation process for national direction instead of complying with section 32. The bespoke requirement is more general and focuses on effectiveness, impact on the environment and on the economy, and reasonably practicable alternative options. The evaluation report itself must be prepared and presented in a way that is cost-effective, proportionate, succinct and plainly expressed, and useful.

Our comments

The idea of a single and efficient process for preparing national direction has merit, as does the ability to make minor changes efficiently.

We also see merit in the refocusing of the evaluation report on matters that are of primary importance. We anticipate that evaluation reports will likely be much more streamlined and focused under the new section 32AB requirements, although the provision appears to leave considerable discretion about how to approach the evaluation, which is likely to lead to varying approaches being taken and potentially a degree of dissatisfaction about the level of analysis.

What’s next?

The Bill will be considered by the Primary Production Select Committee after its first reading next week.

The Government is still working on the development of new RMA national direction (focusing on consenting new infrastructure, building more houses and assisting the primary sector), as well as the eventual replacement of the RMA.

Please contact us if you would like to discuss anything related to this article.