When is a wetland not a wetland? Proposed changes to freshwater national direction

Changes to the national freshwater planning regime in 2020 significantly restricted development in wetlands.  The National Policy Statement on Freshwater Management 2020 (NPS-FM) includes policies to avoid the loss of natural wetlands, and the National Environmental Standards on Freshwater (NES-F) set standards, including prohibiting activities likely to result in drainage of a wetland.

The combined effect has been a lack of clarity about the definition of a ‘natural wetland’ (which expands on the definition of ‘wetland’ in the Resource Management Act 1991 (RMA)) and highly constrained development in or in proximity to land which could potentially be a natural wetland.

The Ministry for the Environment recently published a discussion document proposing changes to wetlands regulation in the NPS-FM and NES-F:  Managing our wetlands: A discussion document on proposed changes to the wetland regulations (Discussion Document).  The Ministry is seeking feedback on the following three proposals:

  • changing the definition of a natural wetland;
  • better enabling restoration, maintenance and biosecurity activities in natural wetlands; and
  • providing consenting pathways for urban development, quarrying, landfills, and mining.

We expand on the proposed changes below, the practical implications, and matters that could be addressed in a submission.

Changing the definition of ‘natural wetland’ may clarify what is a wetland

The RMA defines ‘wetland’ as “permanently or intermittently wet areas, shallow water, and land water margins that support a natural ecosystem of plants and animals that are adapted to wet conditions”.  However, this definition is expanded in the national freshwater planning regime.

Under the NPS-FM, a ‘natural wetland’ is a wetland that is not:

  • constructed by artificial means (unless it was constructed to offset impacts on, or restore, an existing or former natural wetland); or
  • a geothermal wetland; or
  • any area of improved pasture that, at the commencement date, is dominated by (that is more than 50% of) exotic pasture species and is subject to temporary rain-derived water pooling.

The language in (c) has led to confusion over whether wetlands that have been converted into pasture and highly modified are still ‘natural wetlands’, as these areas no longer have the biodiversity values that the NPS-FM seeks to protect.  The Discussion Document proposes changing (c) of the NPS-FM definition to state “any area of pasture that has more than 50 percent ground cover comprising exotic pasture species or exotic species associated with pasture.”

However, there have been instances of other land being caught by the definition of ‘wetland’ or ‘natural wetland’ such as by having species which also occur in wetlands or temporary pooling, which also do not have the values than the NPS-FM seeks to protect.  The proposed change to (c) indicates that the Ministry is considering changes to clarify the definition of wetland, and other issues with the definition should be raised through consultation.

The Discussion Document proposes providing for development of wetlands

The Discussion Document proposes providing for ‘plan-enabled’ urban development in wetlands as a discretionary activity, provided a ‘gateway test’ in the NES-F is met.  Plan-enabled urban development is defined in the National Policy Statement on Urban Development 2020, and includes development on land zoned for housing or business use.

This is a significant change from the current framework, and would better enable development in a wetland as:

  • The current framework is very restrictive of development in a wetland.  Currently, earthworks within a natural wetland are a prohibited activity where they are likely to result in the drainage of the wetland, or otherwise are a non-complying activity.  Further, earthworks within 100m of a natural wetland are non-complying activity where they are likely to result in the drainage of the wetland.  Consent cannot be granted for prohibited activities, and it can be difficult to obtain consents for non-complying activities because the activity must be consistent with the objectives and policies of the plan or have minor effects on the environment.
  • If plan-enabled development was a discretionary activity, this means that a consent authority would have discretion whether to grant consent, subject to the gateway test in the NES-F.  The gateway test requires that the activity must be of significant national or regional benefit; there must be a functional need for that activity in that location; and adverse effects must be managed through an ‘effects management hierarchy’ set out in the NPS-FM.  While this is still a higher threshold than a standard discretionary activity, it is likely to more enabling of development in and near wetlands than the status quo.

Given that currently the definition of ‘natural wetland’ is broad and the NES-F and NPS-FM are highly constraining of development in a wetland, the proposed consenting pathways could be helpful for any person or business considering developing land that may be a wetland.  The consenting pathways represent an opportunity to balance the benefits of (and need for) urban development in appropriate locations, with the protection of indigenous biodiversity.

The same consenting pathway – a discretionary activity status, subject to the gateway test in the NES-F – is also being proposed for quarrying; landfills, cleanfills and managed fills; and mining of minerals.

Making a submission

Consultation is open until 27 October 2021.

Please reach out if you would like to discuss the implications of the regulation of wetlands for your property or development proposal, or would like assistance to make a submission on the Discussion Document.

This article was co-authored by Amy Dresser, a solicitor in our Environment team.

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