Disclaimer
The information in this publication is, according to the Ministry for the Environment’s best efforts, accurate at the time of publication. The Ministry will make every reasonable effort to keep it current and accurate. However, users of this publication are advised that:
•The information provided has no official status and so does not alter the laws of New Zealand, other official guidelines or requirements.
•It does not constitute legal advice, and users should take specific advice from qualified professionals before taking any action as a result of information obtained from this publication.
•The Ministry for the Environment does not accept any responsibility or liability whatsoever whether in contract, tort, equity or otherwise for any action taken as a result of reading, or reliance placed on this publication because of having read any part, or all, of the information in this publication or for any error, or inadequacy, deficiency, flaw in or omission from the information provided in this publication.
•All references to websites, organisations or people not within the Ministry for the Environment are provided for convenience only and should not be taken as endorsement of those websites or information contained in those websites nor of organisations or people referred to.
This documentmay be cited as
Ministry for the Environment.2018.A Draft Guide to Limits under the National Policy Statement for Freshwater Management 2014 (as amended in 2017). Wellington: Ministry for the Environment.
Published in March 2018by the
Ministry for the Environment
ManatūMōTeTaiao
PO Box 10362, Wellington 6143, New Zealand
ISBN: 978-1-98-852539-6
Publication number: ME 1345
© Crown copyright New Zealand 2018
This document is available on the Ministry for the Environment’s website:
Contents
1Introduction
What this document covers
Give us your feedback
2How limits fit into the Freshwater NPS framework
Principles for setting limits
Relationship between freshwater objectives and limits
Relationship between limits and methods
Allocation and avoiding over-allocation
3The NPS definition of a limit
‘Maximum amount’
‘Resource use available’
‘Allows a freshwater objective to be met’
4NPS provisions on setting limits
Other Freshwater NPS terms relating to limits
5What limits could look like
6Limits in the regional plan
7Considerations in limit-setting
How to determine the appropriate limit
Final decision-making on limits
A draft guide to limits1
1Introduction
The National Policy Statement for Freshwater Management 2014 (NPS or Freshwater NPS) provides direction to local authorities about managing fresh water under the Resource Management Act 1991 (RMA).[1] The preamble of the Freshwater NPS states that “setting enforceable quality and quantity limits is a key purpose of this national policy statement”.
This document provides guidance to helpregional councils, iwi/hapū, and other practitioners involved in the freshwater planning process give effect to the limit-setting requirements of the NPS.
Further guidance on the Freshwater NPS is available on the Ministry for the Environment website. Any future changes to the NPS will be reflected in updated guidance.
What this document covers
This guide explains the policy intent of limit setting, including:
•an explanation about the concept of limits, their definitions, what the NPS requires, and how limits relate to other elements of the NPS framework
•a discussion on allocation and over-allocation
•an understanding of what limits are intended to achieve
•key considerations in setting limits.
The NPS provides strong direction to regional councils, for example through use of the term ‘avoid’. This guide uses terms like ‘require’ (or related words) when explaining what the text of the NPS actually says. It uses ‘intend’ (or related words) when attempting to provide more insight into the policy intent of the NPS.
This document does not provide prescriptive instructions for how limits must be set.Further guidance on the limit setting requirements articulated in the ‘Note’ attached to the periphyton attribute table is being developed and will be available in 2018.
Give us your feedback
This guide is being released as a draft. We welcome your feedback or suggestions on the content. If you would like to provide feedback, please .A final guide will be published in August 2018.
A draft guide to limits1
2How limits fit into the Freshwater NPS framework
To manage fresh water the Freshwater NPS introduced a national objectives framework which can broadly be thought of as a Values – Freshwater Objectives – Limit setting– methodscascade.
The framework firstly requires councils to establish what values apply to the freshwater bodies in their region. This must include the two compulsory national values of ecosystem and human health, plus any other national or local values the community identifies.[2] Councils must then establish freshwater objectives for those values. Freshwater objectives should ensure that those aspects (attributes) of water quality relevant to the values are maintained or improved.
Freshwater objectives must be set using every attribute in Appendix 2 of the NPS (as they are all linked to the two compulsory values), and any other attributes which are appropriate for supporting the full range of values the community holds for waterbodies in their region[3]. Freshwater objectives describe the intended environmental state of fresh water that would provide for a value,conveyed by the attribute states A–D.
Limits must then be established that will achieve the freshwater objective. A limit is the maximum amount of ‘resource use’ that is possible, while still meeting the freshwater objective over time.
Methods (including rules)must also be established in the plan. Methods are the actions that will need to be taken to constrain resource use to the specified limits. Figure 1 summarises the framework concept and how limits fit in to it.
Figure 1: The Freshwater NPS framework from values to methods
Principles for setting limits
Although the Freshwater NPS provides flexibility to councils in how they approach limit-setting, the framework within the NPS for limit setting provides some principles that should inform decisions about the types of limits that would best meet the policy intent of the NPS.
•A limit is about the amount of resource use, rather than the state of the water (ie, the role of the freshwater objective).
•A limit should be a quantifiable amount that expresses the maximum available for use.
•A limit is only effective if it is articulated in a way which will manage the cumulative effects of resource users.
•A limit should be underpinned by information obtained through freshwater accounting.
•The limit must be clearly articulated in the plan, including the point at which further allocation will stop so that over allocation is avoided, using methods, including rules.
•A limit can be on any type of resource use – quantity is relatively self-explanatory, quality is more difficult, and different ways of thinking about resource use and how it is allocated may be needed.
Relationship between freshwater objectives and limits
Freshwater objectives and limits are two essential components of the Freshwater NPS. They are sometimes thought of as being interchangeable terms; however, the intent of the NPS is that they are about very different things. A freshwater objective is a description of the intended state of the water and is expressed in relation to specified attribute states (A-C). A limit is a description of the amount of resource use that will allow that state to be achieved; and which ideally can be definedfor individual resource users or at a catchment/freshwater management unit (FMU) scale(see discussion below on allocation).
In the NPS, freshwater objectives must be set using the attributes in Appendix 2 plus any other attributes a council considers appropriate to ensure values are maintained or improved over time.
In setting a limit to achieve freshwater objectives the key question is, ‘if my attribute is x and I want it to remain in B-state, what is needed to maintain it’? Periphyton is a useful example to illustrate thedifference between limits and objectives as the ‘limit’ is not on the attribute itself but on water quality aspects which contribute to the attribute state (i.e. the abundance or biomass of periphyton. There are many aspects that influence the abundance of periphyton (shade, temperature, flushing flows etc) but the nutrients nitrogen and phosphorus are usually involved. In order to control periphyton abundance, these nutrients will need to managed and this generally requires limits on the intensity of nutrient emitting land uses.
Recent changes to the freshwater NPS have made this explicit through a ‘Note’ attached to the periphyton attribute table. Specific guidance on this Note and how to give effect to it is in the process of being developed and will be available on the Ministry for the Environment website in the latter half of 2018.
The process of setting freshwater objectives and limits is not linear; a decision about one will affect the other. To set a limit you need to know what freshwater objective a community wants to aim for (current state or better). However, for the community to be able to make an informed decision about whether an aspirational freshwater objective is acceptable, they will need to know what limit(s) will be needed to achieve it, and the implications of those limits.
It follows that the process of setting freshwater objectives and limits will be an iterative one. This is recognised through Policy CA2(f)(iii) which requires councils, when identifying freshwater objectives, to consider the limits that would be required to meet them. Final decisions on the limits (plus the methods to achieve them) will involve consideration of whether they are the most appropriate and efficient way to meet freshwater objectives (see section 7of this guide for a further discussion on limit decision making).
Relationship between limits and methods
Policy A1 requires councils to (a) set freshwater objectives and limits and then (b) establish methods to avoid over-allocation, or in other words, restrict resource use to that specified by the limits. Methods and limits are therefore different but part of a complementary package.
The limit itself is of critical interest as it defines how much of the resource is available in total. Methods describe how that limit will be met. Methods can be regulatory (such as rules or consent conditions) or non-regulatory (such as flow augmentation, or significant catchment-level environmental enhancement initiatives such as major new wetlands or sediment basins).
Once the limit is set, the regulatory method which describes how that is to be allocated to users will quantify the impact on individual resource users. For example, to meet a total catchment load limit a council might allocate discharge allowances to individual users. It is this individual allocation, rather than the total catchment limit, that will have the most direct impact on land users.
Allocation and avoiding over-allocation
A different way of thinking about allocation
To date the term ‘allocation’has been used in a very specific way in water quantity management however, this guidance suggests a broader use of the term. In water quantity management allocation has meant a quantity of ‘resource use’ (a water take) that is, in principle, able to be exchanged. This idea has been extended into nitrogen limits,so anutrient discharge allowance is an individual allocation that is a quantity which, in principle, is also able to beexchanged.In short,allocationhas been used to describe the quantum given to a consent holder which is often an exchangeable (or transferable)amount. The intent of the NPS is that this broader meaning of allocation is used.The following explains the rationale for this.
Broadening the way we think about, and apply the term ‘allocation’willhelp to set effectivelimits. A broad interpretation of allocation provides for/allows:
- different options for what a limit can be (particularly for attributes such as E. coli and sediment)
- different ways of measuring/quantifying resource use so that it can be tracked over time thereby avoiding over-allocation (see below for a discussion on over-allocation)
The idea that all limits need to be allocable in some way is a key requirementof a limit under the Freshwater NPS. This is because the Freshwater NPS requires councils to avoid over-allocation by restricting resource use to that specified by the limits(see below). To do this it will be necessary to:
- firstly establish the maximum amount of resource use that is possible while still meeting a freshwater objective (Freshwater NPS definition of a limit)
- then quantify the current amount of resource use
- establish whether current resource use exceeds the limit (and requires claw-back) or, whether additional resource use is possible
- if additional resource use is possible – at what pointwill the cumulative impact of that additional use mean the limit threshold has been reached and any extra use will result in over-allocation and should be prohibited
- include in the plan rules and methods which provide resource users with the information and consenting officers with the means to issue/decline consents accordingly.
It is important to note that under thebroader use of the term ‘allocation’, a limit must be quantified but this does not necessarily mean it is able to be traded or allocated to individual users.Not all limits can be set up as exchangeable quanta, but they all need to be quantifiable in some way to be effective.
Examplesof limits that are able to be allocated
A stock exclusion rule is a limit as it restricts the ‘resource use’ which is stock access to water bodies for drinking/grazing. Stock exclusion rules allocate property owners the right to use land for grazing only outside the stream bed and/or maybe up to 3m from it. It is not an exchangeable allocation – it sits with the owner of that property– but it is quantifiable. If a stock exclusion rule is a constraint on stock access to water, and limiting that access will help achieveaE. coli objective,then it is a limit under the Freshwater NPS definition.
Another example would be a rule that prevents grazing on steep erodible gully heads and which even defines these areas on maps and requires them to be retired and planted (methods). This rule places a constraint on the amount of the resource (grazing land) that can be used –which has been allocated to individual property owners –to meet a freshwater objective for sediment. Thisis therefore, a limit under the NPS definition.
These examplesfit with the two-limbed definition of ‘over-allocation’ discussed in the section to follow.
Over-allocation
Afterlimit setting the NPS requires councils to establish methods, including rules[4], to avoid over-allocation.[5]The direction to ‘avoid’ in this context is very strong.Over-allocation is defined in the NPS as the situation where the resource:
a)has been allocated to users beyond a limit; or
b)is being used to a point where a freshwater objective is no longer being met.
The first part of the definition refers to a situation where the combined effect of permitted activities, water permits and discharge permits is more than an established limit. If these permits continue to be exercised, and activities continue to be allowed throughthe permitted activities, the total use will exceed the limit, and the resource would be over-allocated.
For example, the allocation limit might be expressed as a proportion of a hydrological index such as 7-day mean annual low flow (MALF) or the flow exceeded 95 per centof the time.So for locations within the catchment where the total upstream allocation exceeds the allocation limit (eg, 50 per centof MALF) the catchment would be considered over-allocated. Modelling has shown that ‘over-allocation’ is influenced by wherein the catchment water is taken from. The Ministry for the Environment has published a NIWA study titled Definition and calculation of freshwater quantity over-allocation (Booker 2016) which addresses this in detail.
The second part of the definition describes a situation where overuse of the resource prevents the achievement of water quality outcomes, regardless of whether a limit has been fully exercised. For example, anfreshwater management unit (FMU) may be at 80 per centof the full allocation quantum but monitoring shows the freshwater objective is not being met. In this case the limit should be reviewed and adjusted (allocation quantum reduced) so the objective can be met and over-allocation avoided.
Another example of the part b) of the definition is a situation where a clarity or ecological health objective is not being met in a river because there is too much sediment load going in. Essentially in this case land uses and activities that produce sediment areinsufficiently constrained. This would be considered a situation where over-allocation is occurring;not because a sediment load was set and then accounting shows that too many sediment discharge rights were issued, but purely because the objective is not being achieved. The limits that might be allocated to fix this problem could include stock exclusion and retirement/replanting constraints on land use in certain areas.
Setting limits, therefore, is also about avoiding over-allocation by identifying and managing the cumulative effects that people’s resource use has on the state of fresh water. When the limit is reached, full allocation is said to have been reached and the plan must direct (through policies and rules) that resource consents for further allocation (resource use) will not be granted.
A key requirementfor setting limits then is that they are quantifiable in some way, so it is possible to know when the limit threshold has been reached and no additional allocation (eg, consents) or use can occur (thereby avoiding over-allocation). Without a limit clearly set out in a plan, with methods (including rules) to achieve it, there is no clear signal or threshold which directs a consenting officer to decline an application for a consent and avoid over allocating the resource.
Defining the ‘allocable quantum’ is a challenging aspect of limit setting. Nevertheless, if a way to ‘allocate’ (in a broad sense) is not established – it will not be possible to know when the maximum amount of resource use possible (limit) has been reached and so avoid over-allocation. Without the aspect of ‘allocation’ being addressed, in some way, the limit cannot be effective. (See also section 5: What limitscould look like).