The legislation surrounding wetlands and development is as opaque and swampy as the ecological features themselves. Proposed changes go some way to clearing the air, but environmental groups say wetlands lose their protections in the process.
Proponents for changes to the national freshwater standards say existing rules go too far, blocking common-sense development like some housing, landfill, quarrying and mining.
But environmental groups say the National Environmental Standards for Freshwater and the National Policy Statement for Freshwater Management finally gave wetlands the protections they deserved and winding those back is absurd.
Forest and Bird freshwater advocate Tom Kay said the Government, which is now consulting on changes, was caving to industry pressure.
“The huge thing for us that sticks out, and that we will fight, is the opening up of this pathway to destroy wetlands for quarrying, landfills, clean fills, urban development, and coal mining in particular, which is insane.”
"We've lost 90 percent of our wetlands across New Zealand… so we're well past the point of balancing those environmental losses or trade-offs with development wants or gains" – Tom Kay, freshwater advocate
In 2020 the government introduced the Essential Freshwater package, which included the National Policy Statement for Freshwater Management 2020 and National Environmental Standards for Freshwater. A particular focus of the package was protecting and restoring natural wetlands.
Kay said with 90 percent of the country's wetlands already gone, it was wrong to say the previous rules had been overly-prescriptive.
“My mind keeps going back to this idea of balance or trade-offs, and we often talk about balancing interests, right, that's the rhetoric, but we forget that there's this shifting baseline.
“We've lost 90 percent of our wetlands across New Zealand… so we're well past the point of balancing those environmental losses or trade-offs with development wants or gains.”
Lawyer Mike Doesburg, a partner at the firm Wynn Williams, disagreed, saying there were problems with the regulations and recommended changes would go some way to fixing them.
“No doubt there will be a number of quarry operators, landfill operators and people that are trying to get housing projects underway to try and help the housing crisis that will breathe a sigh of relief.”
He said it would not be as easy to get a consent for such activities as it was pre-2020, but it was good it was no longer completely prohibited.
“It's subject to meeting a threshold test that demonstrates there’s no practical alternative location for the activity and that the effects will be managed through what's called the effects management hierarchy which means basically, you avoid as many effects as you can, then you manage them as best you can.
“And then any effects on the environment that are left over you offset or compensate for so you improve a wetland somewhere else, for example. So it's certainly not a reversion to the status quo that existed before September 2020.”
However, Kay was not convinced the threshold tests would be effective.
“Our first reaction is those tests that have been put up, are not going to represent any serious impediment to these activities going ahead… the threshold is not high, you know to mine a wetland for coal you basically have to show that you've got some sort of regional or national benefit and that's not that hard.”
Aggregate and Quarry Association chief executive Wayne Scott said the industry did have concerns about how the tests would apply, but said it would not apply to quarries accepting clean fill or other approved fill materials.
“The sooner the consenting pathway is in place, the better, as quarries in Auckland and around the country needed to gear up production to meet the Government’s $60 billion plus infrastructure programme and the booming new home market.
“Quarries want to work with their councils on these issues. Often they enhance or create wetlands as part of their developments, so getting access to aggregate can be a positive for environmental outcomes.”
When is a wetland not a wetland?
Doesburg said another issue the proposed changes grappled with was the definition of a wetland, which had been controversial.
“They try and provide some clarity around how you can tell the difference between an area of wet pasture on a farm paddock and a wetland.”
The requirement that a piece of land may be considered a wetland if 50 percent of it was covered in a certain type of species remains, with Doesburg adding small-scale developers may still find it restrictive to get projects off the ground.
“For a person who wants to work out if they can go ahead with a project or if they're constrained by a wetland, realistically, they're probably still going to have to engage an expert ecologist and in some cases, a hydrologist and also a soil scientist to make the call as to whether they can go ahead or not.
“So, for mums and dads and, you know, normal people trying to apply these regulations, it’s still really hard.”
There used to be a requirement that the area had to be pasture at the date the regulations originally took effect, so in September 2020, which Doesburg said was a good move to scrap.
“You can imagine for applications that you might make now, you'd have to try and go back and get photographic evidence or some kind of other record of what was on the ground two years ago… so that is certainly an improvement but it still is going to require assessment on the ground of whether or not the area has more than 50 percent kind of pasture species.
"When it affects the right people and affects them badly enough, they take action… Unfortunately I don't think we've seen the end of the great wetland argument.” – Mike Doesburg, RMA lawyer
More tinkering to come
Doesburg said the current proposals would not be the end of tinkering with this legislation at a government level, nor through precedent in the courts.
“We're going to continue to see some litigation in that space… There are a lot of councils [that] are working their way through updating their planning rule books, and they need to update them to reflect these documents and that affects people.
“And when it affects the right people effects them badly enough, they take action… Unfortunately I don't think we've seen the end of the great wetland argument.”
This was played out in the Environment Court, where Greater Wellington Regional Council took a case claiming a land development in Upper Hutt, which had already been given the green light by the local council, was happening on a wetland.
The case was thrown out, with the judge calling the proposed restrictions that would have ensued “draconian” and telling the regional council it had failed to prove the area was a wetland.
“The proposed restrictions extended to a prohibition on building houses on two of the lots, limiting the area of other lots which might be built on and prohibiting the grazing of cattle, horses and pigs on some lots or part of them.
“The description ‘draconian’ understates the impact of the proposed enforcement orders on purchasers who had bought lots in good faith expecting to be able to undertake such activities on them.”
That case will be a taste of things to come, Doesburg said.
Kay said instead of teasing things out through the courts, a different mindset was needed.
"We've only got 10 percent left, so what happens when we've got 0 percent? When are we going to address the question of, what happens when there is nowhere else to go anymore?
"Why are we not having that conversation now?"
Environment Minister David Parker said the previous rules had "significantly constrained" some key industries, but assured the changes would not further the loss of wetlands.
"The intent is that except in very limited circumstances there will be no further loss of wetland extent and ideally a gain. Where loss does occur as a consequence of activities that can be consented, this will require offsetting elsewhere."
"The proposed amendments have strong provisions that manage the activities that can occur in and around wetlands. For all proposed consent pathways, the ability to obtain consent would be subject to ‘gateway’ tests that determine the significance and necessity of the activity and require the adverse effects of the activity to be mitigated," he said.
Consultation on the proposals remains open until July 10. Cabinet will consider a final draft of the regulations prior to their being enacted.
