Proposed Water Quality Plan Changes

We have prepared two plan changes addressing specific activities known to be, or likely to be contributing to water quality issues in parts of Otago, or addressing gaps in the rules and policy framework for managing contaminant discharges to water.

These plan changes, referred to as the Water Quality or Omnibus Plan Changes, are:

  • Proposed Plan Change 8 (Discharge Management) to the Regional Plan: Water for Otago (Water Plan) and
  • Proposed Plan Change 1 (Dust Suppressants and Landfills) to the Regional Plan: Waste for Otago (Waste Plan).

The proposed plan changes include new policies and rules that:

  • Strengthen policy direction for assessing resource consent applications for discharges of stormwater, wastewater and contaminants from rural land uses
  • Improve minimum standards for effluent storage systems and discharges of effluent to land
  • Promote good farming practice for high-risk practices, through:
    • introduction of controls on intensive winter grazing
    • exclusion of dairy cattle and pigs from lakes, rivers, streams and wetlands
  • Provide for the use of sediment traps in intermittently flowing rivers
  • Strengthen provisions for managing sediment loss from earthworks for residential development
  • Clarify policies relating to the establishment of regionally important infrastructure in wetlands
  • Introduce improved controls on the use of dust suppressants
  • Strengthen the policy direction for assessing resource consent applications for landfills

Click below for factsheets that detail how these proposed policies and rules may affect you.

Please note: these factsheets relate to ORC's proposed Water Quality Plan Changes (PC8 and PC1). There are new factsheets coming about the new national rules (the Freshwater NES) which will replace some of these.

Fact Sheet - Animal Waste Systems

Fact Sheet - Intensive Grazing

Fact Sheet - Stormwater Runoff

Fact Sheet - Important Infrastructure

Fact Sheet - Residential Earthworks

Fact Sheet - Regional Plan Waste

Fact Sheet - Stock Water Access

Relevant practice notes:

Practice note 21:Farm Dairy Effluent Ponds 

Practice note 27: Dairy Farm Infrastructure

 

Notification and submissions

ORC was advised on 8 April 2020 that the Minister for the Environment has “called in” Proposed Plan Change 8 to the Water Plan and Proposed Plan Change 1 to the Waste Plan.

Because the proposed plan changes have been “called in” by the Minister for the Environment, the Environmental Protection Authority (EPA) notified the plan changes, and submissions closed on 17 August, 2020. Read more at the EPA website here

On 17 September 2020, the EPA released a summary of submissions and a call-out for further submissions on these plan changes. Interested parties have 10 working days to support or oppose any of the initial submissions from 18 September until 2 October 2020.

Read the summary of submissions or make a further submission at www.epa.govt.nz/ORCplanchanges

Emma Spalding, the “Friend of the Submitter” engaged by ORC to assist people with submissions, is still available to help for further submissions. She can be contacted, free of charge, by emailing friend@orc.govt.nz

 

Q&A Session

  

FAQs

    

Process and timing

No, because the plan changes have not been notified by ORC and were called in by the Minister for the Environment. You can make a submission on the plan changes, but it needs to be made to the Environmental Protection Authority at www.epa.govt.nz/ORCplanchanges before 17 August, 2020.

As these plan changes are a “quick fix” to deal with deficiencies in the current Water Plan, the Minister "called them in" to speed up the process and to allow staff to focus on the development of the bigger picture – a revised Regional Policy Statement and a new Land and Water Regional Plan. 

ORC has engaged a “Friend of the Submitter” to help the community with how to lodge a submission to the EPA. Emma Spalding can be contacted, free of charge, at friend@orc.govt.nz or 027 696 1009 from 10am-12pm and 7-8.30pm on each working day during the notification period. She can help guide you through the submission process, give advice on how to capture your views, and explain what happens after your submission is lodged. She cannot help you with the content of your submission.

It is not known when the final decision on Plan Change 8 is likely to be released.

At present, the only dates that are known are the starting date (Monday 6 July 2020) and the closing date (Monday 17 August 2020) for the submission period. The timeframes for releasing the summary of submission and calling for further submissions is determined by the EPA but these timeframes are not known at this stage.

The Environment Court is responsible for setting a timetable for the exchange of evidence and hearing. This timetable is likely to be set and shared with the parties after all the information received by the EPA has been handed over to the Environment Court.

When the final decision on Plan Change 8 will be released is in the hands of the Environment Court. The Environment Court is not bound by any statutory timeframes for releasing its decision. (It should be noted the Environment Court Decision can be appealed on points of law.) 

Two main reasons:

1. ORC developed proposed Plan changes 8 and 1 well before the timeframe for the gazettal of the new National Policy Statement on Freshwater Management (NPS-FM), National Environmental Standards for Freshwater (NES-FW) and s360 stock exclusion regulations, was known and the specific content of these regulations was made public.

2. The plan changes seek to address a small number of high-risk activities. Any further deferment of the plan change is likely to have an adverse impact on the environment.

    

Alignment with NES

As a general principle, ORC believes that there is merit in aligning the rule and policy framework in its Water Plan with the approach outlined in national directions and regulations, as this helps reduce the complexity of the regulatory framework for both landholders and decision-makers.

ORC staff are currently considering whether it is appropriate to seek greater alignment between the proposed intensive grazing provisions and stock exclusion regulations in Plan Change 8 and those included in the NES-FW and the s360 stock exclusion regulations.

If staff consider that this is the case, they may prepare a submission on Plan Change 8 requesting that the proposed provisions be aligned with the NES-FW and the s360 stock exclusion regulations.

    

Legal effect of rules

While the rules have legal effect now, because they are new rules relating to new activities then people have a form of existing use rights under Section 20A of the Resource Management Act. This means that if something you or your client does on farm is covered by a new rule in Plan Change 8 as long as you are doing what you have always done and are not expanding your activity you will only need to apply for the consent within 6 months of the plan becoming operative. The plan only becomes operative once all appeals are sorted. This date is not known now and the EPA will provide advice on the process and timeframes for the different process steps.

If you are looking at the rules that apply today, then in a strict sense, they all do unless they have a specific future date. However, you have a window under s20A to apply for a resource consent. The Compliance Team is also taking an education first approach to the implementation of Plan Change 8.

    

Content of Plan Change 8 and Plan Change 1 - General

Affected parties for a resource consent application are determined on a case by case basis. You are not required to consult with anyone before lodging your application and you can wait for us to tell you if you need to get affected party approvals. If approvals are required, then we tell you why they are needed.

    

Content of Plan Change 8/Plan Change 1 - Specific provisions

Animal waste

If you are extending your activities or wanting to construct a new pond then you will need consent now. The flow chart in this factsheet will help you. 

If you are building a new animal waste system today, then the following rule applies:

  • Rule 14.7.2.1 – use of land for the construction use and maintenance of an animal waste system constructed after 25 March. In order to be a controlled activity (consent must be granted) you must meet the criteria listed. If not, it will be a discretionary activity and the consent does not have to be granted.

You will also need a discharge permit to cover the discharge of animal waste or water containing animal waste onto land. This would be under Rule 12.C.2.5.

If you are making changes on farm then you will need to apply for a consent as soon as you can. The triggers for this type of consent could be that you are increasing the discharge area or increasing cows and therefore increasing the volume of effluent you discharge to land. Any consent application then needs to be processed within 20 working days (unless it goes on hold).

In certain situations, yes. If this is for a land use consent for the construction, maintenance and use of an animal waste system then it is likely that there will be some form of monitoring in the consent that ensures that the storage is operating as intended. The frequency and type of testing required will depend on the material used for the pond and if it is a new system compared to the repair of an existing clay pond. It all depends on risk. Ultimately, we want to ensure that the conditions are practical but that we can monitor the effects of the activity.

A SQP for the purposes of the activities in Plan Change 8 will be someone who is assessed and approved as being qualified, experienced and competent. A process for this is being developed as part of the implementation of the plan change.

The total of each pond would be added together to contribute to the total volume of storage on site. The Massey Pond Calculator allows for multiple ponds to be added in and then contribute to the overall storage on site.

If you meet the permitted criteria under 14.7.1.1 then you do not need consent.

  • Can I go ahead, now,  and apply for a consent to discharge under Rule 12.C.2.5?

If you are permitted under 14.7.1.1 then you do not need a discharge consent if you meet all of the other criteria in Rule 12.C.1.4.

If you need consent you can apply under Rule 12.C.2.5 now, but you do not need to because of the existing use rights you have under s20A. You will only need consent under this rule straight away if you are adding in a new pond, which would trigger that rule as you are changing the scale of your discharge.

  • What is the process?

The normal resource consent process would be followed. Information on this can be found at:

https://www.orc.govt.nz/consents/the-consents-process

https://www.orc.govt.nz/consents/the-consents-process/resource-consent-holders-guide

  • What is the deadline for applying for a consent to discharge under Rule 12.C.2.5?

The main ‘deadline’ is for the dates for effluent storage under Schedule 19B. As well as having your effluent storage consent application in by these dates you would also need to have applied for your animal waste discharge consent.

This means that your discharge is not a permitted activity under Rule 12.C.1.4 and you will need consent under Rule 12.C.2.5. You will not need consent for the animal waste system itself.

Existing clay lined ponds are permitted provided they meet the following conditions:

  • The storage pond is sized in accordance with the Dairy Effluent Storage Calculator; and
  • The storage pond is certified by a Suitably Qualified Person within the last five years as:
    • Structurally sound and without any visual defects;
    • Meeting the relevant pond drop test criteria in Schedule 18;
  • A management plan for the animal waste system is prepared and implemented that requires:
    • Pond drop tests of the storage pond(s) every three years; and
    • Implementation of contingency measures to prevent the discharge of animal waste in the event of power outage or the failure of equipment.

All new storage ponds will require resource consent.

If you want to apply for a new storage pond under the controlled activity rule (this means that Council cannot decline a resource consent application but can set consent conditions on a limited number of matters) the new storage pond must be either

  1. Fully lined with an impermeable synthetic liner and an effective leak detection system; or
  2. Concrete construction; or
  3. Above-ground tank

If your existing effluent pond does not meet the permitted activity conditions of Rule 14.7.1.1 you will need to apply for resource consent within 6 months to three years, depending on the amount of effluent storage you have.

The framework proposed under Plan Change 8 seeks to align the timeframe within which you need to apply for resource consent to discharge effluent with the timeframe for applying for a consent for the effluent pond. This means that farmers that will need both consents will only need to apply once.

 

    

Intensive grazing

Yes. They could apply for, say, a 5-year consent and for all parts of the landholding they are likely to use for wintering over those 5 years. That way they do not need to come back to ORC every year and it also gives them flexibility within their operation.

Yes. They could apply for, say, a 5-year consent and for all parts of their landholding they are likely to use for wintering over those 5 years. That way they do not need to come back to us every year and it also gives them flexibility within their operation.

The Water Plan applies the following definition: Landholding

(1) For land subject to the Land Transfer Act 1952, land in:

(i) A single certificate of title; or

(ii) Two or more adjoining certificates of title, with a common occupier.

(2) For land not subject to the Land Transfer Act 1952, all contiguous land last acquired under one instrument of conveyance and occupied by a common occupier.

In a scenario where a farmer has three dairy farms all spread out across different catchments in Otago and:

  • Dairy farm A is a farm of 1200 ha with all the land held within the same certificate of title;
  • Dairy farm B is a farm comprised 1500 ha with the land held within two certificates of title (block BA 1000 ha and block BB 500 ha) that are adjoining each other;
  • Dairy farm C is a farm comprised 1750 ha with the land held within three certificates of title (Block CA 1000 ha, Block CB 250 ha and Block CC 500 ha) none of which are adjoining each other;

the following would apply

  • Dairy farm A can have 100 ha of intensive winter grazing;
  • Dairy farm B can have 100 ha of intensive winter grazing on Block BA and Block BB combined; and
  • Dairy farm C can have 100 ha of intensive winter grazing on Block CA, 25ha of intensive winter grazing Block CB and 50 ha of intensive winter grazing on Block CC.

Yes, we have developed some factsheets which will help with explaining the process and when you need to apply for a consent. You will only need consent now if you will be grazing more land next year than what you have grazed this year. Otherwise, you do not need to apply until six months after the rule is operative. It is a good idea to look at the criteria that you would need to meet in our rules when you are making on-farm decisions about where you will graze and how you will graze next year.

In the first instance the farmer needs to be able to do this themselves and if they are unsure they can ask ORC for advice.  Staff in the Rural Liaison and Compliance Teams should be able to help out with this. Staff in the consents team can explain the definition and what we would anticipate this to look like.

The term "critical source area" is defined in Plan Change 8. If you consider the proposed definition is not clear enough, you can ask for more clarification of this proposed definition in a submission to the plan change here.

The NES regulations come into force on 3 September 2020.

In general terms, the NES regulations will prevail over the proposed rules in Proposed Plan Change 8, except where the standard(s) set in the proposed plan change rules are more stringent than the NES regulations. In that case the relevant Plan Change 8 provision will apply.

Over the coming weeks ORC will provide additional information for landholders including greater guidance around which rules and regulations need to be considered when planning for next year’s winter grazing. In the interim we recommend that you seek advice from ORC staff in the consents, compliance and rural liaison teams by calling 0800 474 082 or email customerservices@orc.govt.nz

The plan change has been developed to give effect to the RMA and other subordinate planning regulations that seek to manage the health of our freshwater resources. Under these the primary objective is to provide for sustainable management of our waterways.

The 10m setback was based on analysis done for Southland’s Proposed Land and Water Plan.

This analysis looked at the predicted removal efficiency for sediment at different slopes and setbacks. It was concluded that 10m seemed to provide the best ‘value’ in comparison to 5m and 20m.

This figure was taken from Southland’s Proposed Land and Water Plan, where substantial analysis on hectare thresholds was completed. It also seemed reasonable to align given that there is stock movement between the two regions.

The proposed rule does not necessarily prevent intensive winter grazing in excess of the 100ha or 10% of the total landholding area threshold – you will just need to apply for consent to make sure that:

  • The appropriateness of the activity can be considered on a case-by-case basis
  • The effects of the activity, if granted, are appropriately managed.

The rule does not distinguish between intensive grazing during winter and intensive grazing during summer. Therefore, the thresholds (100 ha or 10% of total landholding, whichever is the lesser) capture both areas that are intensively grazed over winter and outside this period.

    

Sediment traps

TBC

     

Nitrogen discharges

In 2014, ORC introduced a new set of rules to manage discharges from land uses including conditions on nitrogen leaching, which were due to come into force on 1 April 2020.

However, ORC found these rules were ambiguous, unenforceable and uncertain and may have resulted in a large number of land users having to apply for discharge consents. In addition, the use of OVERSEER as a regulatory tool for managing nitrogen use has been questioned.

In 2019 ORC introduced Plan Change 6AA that resulted in the commencement date of relevant discharge and nitrogen leaching rules being extended to 1 April 2026. This means that people who cannot comply with the nitrogen leaching rate in Rule 12.C.1.3 do not need a resource consent before 2026.

Plan Change 8 does not reverse this, but introduces a new policy that seeks to guide decision-making if people who cannot comply with the nitrogen leaching rate in Rule 12.C.1.3  would like to apply for a resource consent prior to this rule coming into force.

In addition to these provisions, landholders will also need to consider new regulations for nitrogen discharges introduced under the new NES. The NES limits the rate of synthetic nitrogen application on land in pastoral land use in a contiguous landholding to no more than 190 kg/ha/yr. Where the discharge of synthetic nitrogen fertiliser exceeds this cap resource consent must be applied for as a non-complying activity..

    

Stock access

Not yet, but the rule will come in in 2022.

Yes. Those provisions will remain in the Water Plan because:

  • At present the Plan Change 8 provisions are only proposed. While they have legal effect, landholders still need to comply with the existing rules.
  • After the Plan Change 8 provisions have become fully operative and need to be complied with (2022) the existing stock access restrictions will continue to apply because the Plan Change 8 stock access restrictions only apply to some, but not all stock categories.

     

Earthworks for residential development

If the driveway is associated with residential activity i.e. access to the residential dwelling rule 14.5.1.1 applies (even when the property is in a rural area).

If the driveway is associated with the rural or farming activity on the site, the rule would not apply.

    

Waste oil

You will be able to use the following alternatives to waste oil:
• water
• new vegetable oil
• gravel/bitumen products such as Otta Seal or Gravel Lock

Dust suppressants may contain hazardous substances and these substances must have an approval from the Environmental Protection Authority for use. The hazardous substances team are happy to field any enquiries about dust suppressants from the public via email info@epa.govt.nz

    

Other topics

Farm plans

New freshwater modules as part of Farm Plans (FW-FPs) document the actions farmers and growers will need to take to reduce risks and mitigate the impacts their businesses have on freshwater environments. They enable risk-based, tailored mitigations for a farm, based on its unique environmental context. This approach provides more flexibility than traditional resource management regulations. The Government intends to amend the RMA to establish a regime for developing freshwater modules of farm plans. This would make the plans mandatory and enforceable for pastoral farms of 20 hectares or more, arable farms of 20 hectares or more and horticultural farms of 5 hectares for more.

Many farmers already have and use farm plans. Through an amendment to the RMA, the Government will make it mandatory to have a freshwater module in a farm plan. This is not required immediately, but over the next 12+ months, the Government will work with primary sector representatives, iwi/Māori, regional councils and other interested groups to develop new regulations which will set out the exact requirements for mandatory freshwater modules of farm plans. It is the intention to build on existing industry body or agribusiness farm plans. We will prioritise this work in catchments most in need of improvement or protection.

    

NES - Intensive winter grazing

The new NES regulations relating to intensive winter grazing includes a practice standard to require that bare ground in paddocks subject to winter grazing must be re-planted as soon as practicable after livestock have grazed the land’s annual forage crop, but no later than 1 October of the same year.

     

Consent processes

These are new consent requirements for activities that we have not consented in the past. Therefore we currently do not know what the cost will be for these consents. ORC will set up its systems to process these consent applications as quickly and as efficiently as possible, hence trying to limit the cost for applicants.

Once ORC has processed a number of these new consents we will have a better idea about the average processing cost of and we will share this information with the public.

The need to seek approval from affected parties will be determined on a case-by-case basis and will consider the impacts of the proposed activity on the environment or specific values.

    

Compliance assessments

Yes, advice will be available in this period of significant change. In the first instance, call 0800 474 082 or email customerservices@orc.govt.nz .

The current framework for managing the effects of rural discharges is at least in part based on a permitted activity approach. This is often challenging because ORC is often not aware that a discharge is occurring. As a result we are often reliant on members of the public signalling that a contaminant discharge is occurring.

The proposed new rules require resource consents for high-risk activities. This means that the consent holder must monitor the effects of the discharge and that ORC is in a better position to audit compliance with the consent conditions. Hence, ORC is becoming less reliant on complaints for monitoring or assessing the environmental performance of the activity.

    

Plan Change 6A

Yes. Those provisions will remain in the Water Plan and are complemented, but not being substituted by the provisions proposed under Plan Change 8. As such these provisions continue to apply, although the following should be noted:

  • Some of the existing policies – especially around management of discharges from reticulated stormwater and wastewater systems have been strengthened by proposed Plan Change 8.
  • Plan Change 8 has introduced a small number of new policies to guide decision-making around consent applications for nitrogen discharges and to encourage the implementation of good farm management practices.
  • Plan Change 8 has clarified the prohibited rules around certain discharges.
  • PC6AA has delayed the timeframe for meeting thresholds for specified contaminant discharges (Schedule 15) and N leaching rates and hence postponed the date by which you need to apply for a resource consent if you can’t meet these from 2020 to 2026
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