Upcoming Changes in Environmental Legislation

RMA – Phase II Reforms

Phase II of the RMA reforms builds on the Phase I reforms enacted in November 2009 and involves a more complex reform process focused on providing greater central government direction and closer alignment of legislation.  The reforms are based around ten related work streams, as follows:

• addressing barriers to sustainable and cost-effective aquaculture development
• alignment of consenting processes under the RMA and the Building Act 2004 
• alignment of consenting processes under the RMA and the Conservation Act 1987
• developing further the scope, functions and structure of the EPA 
• alignment of consenting processes under the RMA and the Forests Act 1949 and Forests Amendment Act 1993 
• investigating generic issues in the RMA that were too complex to be dealt with in Phase One
• alignment of consenting processes under the RMA and the Historic Places Act 1993 
• improving infrastructure provisions, including the application of the Public Works Act 1981
• exploring better approaches to urban planning
• establishing a fairer and more efficient water management system

There are seven sub-phases of the reforms to achieve the above.  These are as follows:

RM Phase II A - Aquaculture

The Government is committed to developing an effective and enabling regulatory regime for aquaculture, while recognising the environmental and public character of our marine areas, and the rights of iwi, fishers and other users of our coastal marine areas. The Minister of Fisheries, Minister for the Environment and Minister for Economic Development have released an independent report prepared by the Aquaculture Technical Advisory Group, and are inviting submissions on the proposals set out in the report. An amendment Bill is expected to be introduced in mid-2010.

RM Phase II E - Developing further the functions and structure of the EPA

This work area will focus on the further development of the Environment Protection Agency. 
Before making final decisions on the structure, scope and functions of the EPA, the following considerations will be taken into account: 

• the need for the government to control over-all policy direction in relation to environmental regulation
• the extent to which current implementation of regulation at a local level would benefit from centralisation 
• the extent to which functions and powers need to be under Ministerial control
• the potential breadth of functions and powers that could be included in the EPA.

Analysis of potential options will be undertaken by officials to clearly understand the implications and estimated costs and benefits of proposals.  

RM Phase II I - Infrastructure

Improving planning for infrastructure is another major focus for the Government. The Government’s programme for economic recovery is dependent on an ambitious programme of infrastructure investment covering roading, public transport, broadband, electricity grid upgrades, new renewable generation and water infrastructure. 
This work will comprise several components including:

• A review of the role of designations in facilitating infrastructure development and an examination of options for reviewing and streamlining the designation mechanism.
• An investigation of alternatives to designations for planning for and managing the effects of activities on network infrastructure.
• An investigation of whether compensation under the Public Works Act 1981 needs to be shorter but more generous to landowners.
• streamlining and integrating processes under the Public Works Act and other legislation.  

RM Phase II U - Urban Planning

The work will look at the effectiveness and efficiency of options and tools, including a national policy statement and metropolitan urban limits, to manage urban growth and achieve better urban planning and design outcomes.  It will examine ways of achieving better co-ordination between local authorities, government agencies and the private sector in the planning and design of our cities. 
It will also examine the relationship between land supply and housing affordability. It will align with other departmental work streams and will pay attention to the issues raised in the Report of the Royal Commission on Auckland.

RM Phase II W - Water

Cabinet has agreed work is needed to establish a fairer and more efficient water management system that provides for greater central government direction on resource management where appropriate. The Government is working on a Water Strategy that will engage key stakeholders – water users, recreational users, iwi and environmentalists – to help shape and deliver better options for water management.Existing work streams will continue, such as the development of a national policy statement for freshwater management. It is currently with a board of inquiry with hearings planned for mid-2009.  Work is continuing on the national environmental standard for on-site waste water systems, and also on the national environmental standard on ecological flows and water levels. A national environmental standard for the measurement of water takes is currently being prepared for drafting.

RM Phase II B – Building; RM Phase II C – Conservation; RM Phase II F – Forestry; RM Phase II H – Historic Places

These work streams investigate the potential of an aligning process for: 

• building consents under the Building Act and resource consents under the RMA, particularly for small-scale projects. This work will run in close coordination with work being done to review the Building Act being undertaken as part of the Regulatory Review. 
• concession process under the Conservation Act and resource consents under the RMA for projects on conservation land 
• situations particularly where archaeological authorities are required along with resource consents.  The work needs to align with a proposed review of the Historic Places Act.
• land subject to a registered Sustainable Forestry Management Plan under forestry legislation and resource consents required by a local authority.  

RM Phase II G - Generic matters under the RMA

This work will investigate a range of generic RMA issues that have been identified for Phase One of the RMA reforms by the Technical Advisory Group, officials and others.  These issues were generally too complex to be dealt with in Phase One of the reforms, but offer further improvements in regard to processes. Various suggestions have come to light from the submissions received for Phase One.  Officials will collate these, scope the merit of each one and report to the Minister in the next few months. 

Update on Phase I RMA Reforms:

As per the requirements of the Resource Management Amendment Act (2009), the centrally-set discount policy for late processing of consents will activate in June of 2010.  Early indications of the discount regulations from the Minister for the Environment are that councils must provide a discount of 25% for a consent one week late, with an additional 5% per week up to a maximum of 80%. The regulations will also set out procedures for determining fault, and definitions to ensure the incentives are workable. Given the poor performance of local authorities in the 2009 Ministry for the Environment survey, ASL will be keeping a close eye on statutory timeframes and looking to acquire discounts for our clients where consents are delayed at the fault of the Council.

Review of Schedule 4 of Crown Minerals Act 1991

The Government is currently undertaking a review of Schedule 4 of the Crown Minerals Act 1991. The review is being undertaken jointly by the Ministry of Economic Development and the Department of Conservation and is looking at removing some areas of Crown owned conservation land from Schedule 4 so that they can be mined. The Government has stated that mining on Crown land has the potential to “increase economic growth and create jobs”, and has estimated that approximately 70 percent of the nation’s $140 billion worth of untapped minerals is located in conservation estate. John Key has advised that a discussion paper, currently being prepared by the Government and due for public release in February 2010, will recommend that some land will be removed from the schedule and opened up to mining, whilst other areas will be added to offset this. Furthermore, the Government intends to setup a new ‘Conservation Fund’ that would be funded by revenue from mining operations on Crown land. The Conservation Fund would resource conservation projects and initiatives throughout the country, which the Government expects will result in overall benefits to conservation land nationwide.

In response to this Green Party co-leader Metiria Turei believes mining conservation land will severely damage New Zealand’s tourism industry, biodiversity values, and has questioned the economic value of such mining, stating that ‘most of our economic value in the conservation estate is in its natural resources, its forests, its clean waters, not in the mineral wealth’.At this stage, the discussion paper has not been released to the public, but should be available within the next couple of weeks. A six week consultation period will begin on release of the discussion paper, focusing on the proposed options put forward by the paper.

Infrastructure Bill

The purpose of this bill is to progress a broad suite of amendments, across several Acts, to facilitate infrastructure development by removing unnecessary barriers and improving the consistency of regulatory arrangements thereby improving the timeliness and reducing the cost of infrastructure provision. It is believed that New Zealand can improve economic growth and raise its standard of living through efficient access to and management of electricity, gas, telecommunication, water, wastewater and postal utilities.  Key to the Bill is developing a streamlined process in which utilities access road, rail and motorway corridors, and by developing a Code of Practice governing how utility operators and managers co-ordinate their activities. The Code of Practice shall enable access to transport corridors by utility operators in a manner that:

• maximises public benefit while ensuring fair treatment of all utility operators
• minimises disruption to transport corridors caused by utility operators, while ensuring public safety
• provides a nationally consistent approach to managing access to transport corridors
• provides a compulsory dispute resolution process.

The cost-benefit ratio of adopting the Bill into law has been estimated as high as 1:10, with an economic gain up to $30 million p.a.
Once enacted in law, the new statute will amend a number of existing Acts, including the Telecommunications Act (2001), the Electricity Act (1992) and the Gas Act (1992) with respect to clauses concerning access notice and setting reasonable conditions of access, for example.
The Bill is likely to become law early this year.

National Environmental Standards

National Environmental Standards are regulations issued under Sections 43 and 44 of the Resource Management Act and apply nationally.  They supersede district and regional plan rules and serve to provide a consistent standard throughout New Zealand. 
National Environmental Standards currently in effect:

• Air quality standard
• Sources of human drinking water standard
• Telecommunications facilities
• Electricity transmission

Click here to go to MfE website for details on these standards.

National Environmental Standards in development:

The following standards are at various stages of development, ranging from initial consultation to being legally drafted.

• Contaminants in soil:
  This proposed NES will require local authorities to control the use of land affected by contaminants and aims to assess health effects from exposure to contaminants in soil.  This will be achieved by ensuring that; district planning controls are appropriate and nationally consistent; councils gather and apply the information needed for efficient decision making on contaminated or potentially contaminated land and; the soil guideline values are appropriate and applied consistently.

Essentially, the proposal is a mix of allowing (permitting) and controlling (requiring resource consents) certain activities on land affected or potentially affected by soil contaminants.  The standard will require all 73 territorial authorities to give effect to and enforce its requirements.  NOTE: this standard will only impact on new decisions and resource consents.

The Standard is currently open for public submissions on the outlined proposal – submissions close at 5pm on 19 April 2010.  For further details on the proposal and how to make a submission, see the MfE Website. 

Ecological flows and water levels:

• The proposed NES on ecological flows and water levels is intended to complement and enhance the existing RMA process for establishing ecological flows and water levels through regional plans.   The proposed standard aims to promote consistency in the way we decide whether the variability and quantity of water flowing in rivers, ground water systems, lakes and wetlands is sufficient.  This would be achieved by:
  Setting interim limits on the alteration to flows and/or water levels for rivers, wetlands, and groundwater systems that do not have limits imposed through regional plans.
• Providing a process for selecting the appropriate technical methods for evaluating ecological flows and water levels in rivers, lakes, wetlands, and groundwater systems.
  Submissions have closed and are currently being analysed.  From here, a final proposal will be made to the Minister for the Environment before legal drafting of the standard.  

Future sea-level rise:

• The Ministry for the Environment is currently scoping the potential for the development of an NES on future sea-level rise to address associated issues for New Zealand.  The objectives of such a proposed NES are:
  a reduction in the time, and therefore cost, to local authorities spent identifying which future sea-level rise projection they should be planning for
• a reduction in the risk of re-litigation of the future sea-level rise projection selected, which will assist local authorities to undertake effective planning
• ensuring the future sea-level rise projection can be amended effectively and efficiently to reflect the best available information.

The option being scoped is to develop an NES that prescribes a base amount of future sea-level rise to plan for, along with requiring consideration of the consequences of higher sea-level rise values. It is proposed that the standard would be legally drafted based on the Ministry for the Environment guidance manual Coastal Hazards and Climate Change: A Guidance Manual for Local Government in New Zealand, page 20, as follows:

For planning and decision timeframes out to the 2090s (2090–2099): a base value sea-level rise of 0.5 m relative to the 1980–1999 average will be used, along with an assessment of the potential consequences from a range of possible higher sea-level rise values. At the very least, all assessments will consider the consequences of a mean sea-level rise of at least 0.8 m relative to the 1980–1999 average.For planning for the period beyond 2100, where future adaptation options may be limited, an allowance for sea-level rise of 10 mm per year beyond 2100 is required.

The proposal is currently the subject of a discussion document.  From here, the proposal will be publicly notified in 2010 and submissions received, before a decision is made on the Standard and legal drafting begins.  The standard is unlikely to come into effect until late 2010 at the earliest – watch this space!
For further information – see the MfE website.

Measurement of water takes

A proposed National Environmental Standard for Measurement of Water Takes is currently being drafted into regulation.
This will help improve the management of fresh water by ensuring accurate measuring of the extent of water takes. (“Water takes” means water taken from source, including rivers, lakes, dams and aquifers). The standard will set minimum requirements for the installation and operation of new water measuring and recording devices, and for the transfer of data to regional councils.
It will apply to all water takes that need resource consent, but it will not apply to household use of water.
The proposed standard is one of the tools developed under the Sustainable Water Programme of Action and will assist with elements of the programme’s implementation package which require users and regional councils to know how much water is actually taken. For example:

• Voluntary transfer of water take consents.
• Wider establishment of water-user groups.
• Management of environmental flows and over-allocated catchments.
  The report and recommendations on the proposed Standard has been released and legal drafting is currently underway.  The Standard will likely be in force early 2010.
  For further information – see the MfE website:  

On-site wastewater systems:

The aim of the proposed National Environmental Standard for On-site Wastewater Systems is to improve the management and environmental performance of domestic on-site wastewater systems. In essence, the proposal is that owners of properties with on-site wastewater systems in specific locations will be required to hold a current warrant of fitness that confirms their on-site system is functioning properly and is being maintained to an appropriate standard.The standard would authorise regional councils to require property owners with an on-site wastewater system to hold a current warrant of fitness (WOF) for their system. To obtain a WOF, a system would be required to pass an inspection every three years. Regional councils would identify the areas where the standard would apply.Submissions have been received and a summary of submissions report is being prepared for the minister.  From here, the legal drafting of the Standard will begin.

For more information on the proposed on-National Environmental Standard for On-Site Wastewater Systems, see the Ministry for the Environment Website: