Summary
Protection for Aotearoa New Zealand’s (NZ) drinking water sources will be alarmingly weak under the Government’s Resource Management Act (RMA) replacement, should its two proposed bills go ahead as written. The Bills signal further degradation of the country’s freshwater will be allowed, with serious implications for communities’ drinking water sources. Trade-offs between undefined “economic aspirations” and environmental limits that should protect human and ecosystem health mean neither are likely to be sufficiently protected.
The Government seems to be denying the work of the Inquiry into Havelock North’s outbreak, which recommended drinking water sources be written into resource management law as “a matter of national importance”. From public health and environmental protection perspectives, the proposed bills need to be sent back to the drawing board.
“A matter of national importance”?
In the wake of Havelock North’s water-borne outbreak of Campylobacter infection in 2016, a National-led government’s formal inquiry into the contamination of the town’s water supply was conducted. It concluded our country’s resource management law must “be amended to expressly recognise the protection and management of drinking water sources as a matter of national importance”.1 The Inquiry warned, “as time passes, knowledge of the circumstances of the August 2016 outbreak will fade and its immediate impact will be lost. The Inquiry views express recognition as essential so that the protection of drinking water sources remains front and centre and visible in future".1
The current National-led government’s resource management reforms are evidence of the fading of knowledge or denial of it. The proposed Resource Management Act 1991 (RMA) replacement bills fail to elevate drinking water source protection to “a matter of national importance”. Instead, they propose to provide close to no substantive protection at all.
Drinking water no longer a priority in proposed legislation
The government proposes to replace the RMA with two pieces of legislation, the Natural Environment Bill (NEB) and the Planning Bill (PB). The bills are intended to work in tandem. The Ministry for the Environment states the PB “establishes a framework for planning and regulating the use, development and enjoyment of land”, while the NEB “establishes a framework for the use, protection and enhancement of the natural environment.”2
Reforms would strip drinking water of the prioritisation it had only recently been given under the RMA through the National Policy Statement for Freshwater Management 2020 (NPS-FM 2020).
Box 1: What did the National Policy Statement for Freshwater Management 2020 require?
The NPS-FM 2020 finally recognised the critical importance of drinking water source protection, which has been frequently overlooked by the regulators.3 It established a hierarchy requiring regional councils to ensure ecosystem health and human health needs for drinking water were able to be met before other (commercial or otherwise) interests could be considered. The value of this was that it acknowledged two critical realities in the supply of drinking water; (1) the sources of drinking water (lakes, rivers, aquifers) must have a reasonable level of ecosystem health to be able to supply good quality water for drinking (treatment cannot remove all contaminants cheaply or easily) and (2) if not prioritised over activities that could degrade water, the health of waterways would continue to decline.4 This prioritisation is known as Te Mana o te Wai. The NPS-FM 2020 reads, “every regional council must give effect to Te Mana o te Wai”.5 It was supported by the majority of councils, freshwater scientists, iwi Māori organisations, public health experts and others.6
Proposed reforms would remove the priority of drinking water provision. Instead of “must give effect to Te Mana o te Wai”, the PB and NEB state,
“The consent authority must have regard to—
(a) the actual or potential effect of the proposed activity on the source of a drinking water supply…”. (Sections 140 and 157, respectively)7,8
To “have regard to” is considerably weaker than “give effect to”. To “give effect to” is a strong directive with legal precedence,9 while to “have regard to” means councils must give “those matters genuine attention and thought, but the decision maker is not necessarily required to accept them”.10 The new legislation will therefore downgrade the value of safe drinking water. That is not the only concerning defect in law that should be a safety net for protecting public health.
Pollution unlimited, more degradation of freshwater signalled
The Government states the NEB will result in “binding environmental limits”.2 However, reforms introduce a suite of provisions and exemptions that allow polluters and regulators to avoid responsibility for protecting and providing for communities’ access to safe drinking water. Far from binding, the sum of these provisions means pollution of drinking water sources would be essentially unlimited, or at the very least extremely difficult to restrict. Here we outline only some of these provisions; however, there are more. (For example, regulated restrictions on pollution can only be introduced if non-regulatory approaches have been demonstrated not to work first.)
The reforms propose to have the Minister set national level “limits” (maximum levels of contaminants in drinking water) for human health. These are likely to be based on existing drinking water standards established by Taumata Arowai (the national drinking water regulator). While Taumata Arowai regulates drinking water suppliers, it has stated it is not responsible for regulating protection of source water, which requires regulating land use and other sources of pollution in a catchment.11 Regional councils (or the agencies that replace them in local government reform), therefore, have been and are likely to be the main agencies with responsibility for protecting drinking water sources, alongside their responsibility for protecting the health of fresh waterways.
The Government intends to remove existing ecosystem health limits established in the NPS-FM 2020 (which set national grades and bottom lines for pollutants in waterways) and instead require councils to follow a methodology to establish local bottom lines. In setting these limits, the proposed NEB requires both the Minister and councils to consider the impact of the limit on economic “aspirations” (see Box 2).
Box 2: Natural Environment Bill, section 56.
56. Assessing impact of proposed environmental limit or methodology
A consideration of the impact of a proposed environmental limit or methodology requires an assessment of—
(a) the positive, adverse, actual, potential, and cumulative effects of the proposed limit or methodology on either of the following (as applicable):
(i) on the life-supporting capacity of the natural environment
(ii) human health:
(b) the needs or aspirations of communities for the economy, society, and the natural environment:(c) the magnitude and spatial extent of—
(i) any over-allocation of national resources; and
(ii) any natural resources likely to be available for allocation as a result of the proposed limit or methodology:
(d) the implications of the proposed limit for the current and future use of natural resources and the benefits associated with that use:
(e) the efficacy and cost of available methods to manage effects within the proposed limit:
(f) alternative ways of providing for natural resource use that are consistent with protecting or enhancing the natural environment, including any alternative locations for natural resource use if the proposed limit allows for environmental degradation.
By removing existing ecosystem health limits and mandating undefined trade-offs between health and economy, freshwater is unlikely to be protected sufficiently to provide for ecosystem health or human health. Limits for contaminants of drinking water and waterways must be based on science if they are to protect health. Human health limits may be less politically malleable than ecosystem health, but are also likely to be compromised by economic “needs or aspirations”.
It also means the already dire state of the country’s waterways is likely to worsen. This is further signalled by the last line in Box 2; “if the proposed limit allows for degradation”. Long-standing freshwater policy has required that the state of waterways is “maintained or improved” and does not allow for further degradation (in policy wording, at least, if not in action).5 The proposed reforms, however, signal the current Government intends the legislation to allow the quality of the nation's freshwater to deteriorate further.
Additionally, even if the Minister or councils do set responsible limits, these may be breached by councils producing a “justification report” (NEB, section 51).8 These reports would allow waterways to be polluted beyond the ecosystem health limits that councils have established. While these justification reports appear not apply to human health limits, in reality, polluting beyond ecosystem health limits has human health implications, as witnessed in many parts of NZ, particularly with nitrate pollution of water in Canterbury.3
What this Briefing adds
- Highlights the long-standing need for drinking water source protection to be elevated to a “matter of national importance” by policymakers and politicians.
- Describes the serious risk to the safety of drinking water sources under the proposed resource management reforms (eg, relevant to the risk of Campylobacter infection or nitrate pollution).
Implications for policy and practice
- Government’s proposed Planning and Natural Environment Bills must be sent back to the drawing board. They need to be amended to elevate the protection and management of drinking water sources to ‘a matter of national importance’ or returned to being a priority by reinstating Te Mana o te Wai.
- Human and ecosystem health limits required in the Bills need to be based on science and not be compromised by economic “aspirations”.
Authors details
Marnie Prickett, Research Fellow, Department of Public Health, Ōtākou Whakaihu Waka, Pōneke | University of Otago, Wellington
Dr Marie Doole, Adjunct Research Fellow, School of Geography, Environment and Earth Sciences, Victoria University of Wellington | Te Herenga Waka
Professor Simon Hales, Department of Public Health, Ōtākou Whakaihu Waka, Pōneke | University of Otago, Wellington
Disclosure statement
Marnie Prickett is a member of the NZ Freshwater Sciences Society, though she did not contribute to their submission quoted in one of the references in this article. She is also a part of a volunteer-run campaign group called Choose Clean Water.
