New Zealand Journal of Environmental Law
Last Updated: 10 February 2023
The Resource Management Act and Protection of Water Quality — A Comparison With European Initiatives
Helle Tegner Anker*
Different approaches to protect water quality in New Zealand and Europe are analysed, in particular as regards agricultural pollution. Important elements in a water quality based integrated resource management are identified as the determination of environmental bottom-lines or water quality standards, the appropriate mix of measures to control activities, including non-point source pollution, and most importantly a river basin, watershed or catchment approach that links the measures of control to the water quality standards. The EC Water Framework Directive provides an example of how to establish a framework for the setting of environmental bottom-lines for water quality, whereas the New Zealand Resource Management Act demonstrates a potential to link measures of control to water quality through integrated (water) resource management. However, more precise directions to regional councils from national government appear warranted in New Zealand. On the other hand a too strong interventionist approach as in Denmark may fail to promote integration.
Water quality is a major concern within the European Union. This has been reflected by numerous legislative initiatives since the early days of European Community (EC) environmental law in the seventies and lately in the adoption of the 2000 Water Framework Directive (WFD).1 Water quality is also receiving attention in New Zealand and in the Resource Management Act 1991 (RMA).2 Yet, the actual and perceived water resource problems vary among countries and regions subject to eg hydrogeological and socio-economic conditions. Whether water resource problems are seen as primarily a matter of pollution, allocation or other matters, water quality is a common denominator that reflects the interrelated nature of both water quantity and quality. Water quality can be regarded as a basic assumption to the many interrelated uses of water — whether satisfying human needs (drinking, bathing, irrigation, fishery, navigation, energy production or otherwise), or satisfying ecological needs of species and ecosystems. Water quality parameters may even respond to cultural and spiritual values as it is the case in New Zealand although most likely in an indirect and not always sufficiently stringent way.3
The setting of water quality objectives and standards indicate priorities among such different needs or uses and provide directions for decision-making. Water quality objectives or standards are thus a key component in integrated water resource management. Another key component identified in this article is the measures of control available to achieve the objectives or standards set. Furthermore, a crucial point in a legal framework for integrated water resource management is, at which level of government these elements are to be decided. How to approach water resource management depends on inter alia existing institutional and decision-making structures related to water resources.4 Different approaches can also be explained by variations in legal traditions related to water, eg water rights. Another issue is the cultural and spiritual significance of certain water resources to the Maori in NZ.5
Despite the differences in the regulatory systems and in the perceived and actual water management problems this article attempts to point out strengths and weaknesses in different approaches to protect water quality. As a general legal and regulatory framework for integrated water resource management the New Zealand RMA and the EC WFD will be examined and some conclusions will be drawn on how to provide more precise directions for decision-making as regards water quality. As an example of a regulatory framework operating in practice certain water quality aspects of the Waikato Regional Plan will be analysed. Since the WFD has not yet been implemented in the Member States comparisons to the Waikato Regional Plan will be drawn from the existing regulatory framework for protection of water resources in Denmark. Both examples are particularly focused on the issue of pollution resulting primarily from agricultural sources. Agricultural pollution is a major water quality concern in several European countries, eg reflected in the 1991 EC Nitrates Directive, while it is probably a more regional problem in New Zealand. In the Waikato Region initiatives have been taken to regulate such matters.6
The New Zealand Resource Management Act was enacted with the express purpose of promoting sustainable management and integrated resource management. This includes what could be termed integrated water resource management. However, integrated resource management as a concept encompasses cross-media integration (air, water and land), cross-agency integration within and between different sectors and levels of government (horizontal and vertical) and integration within an array of different measures to deal with environmental problems (instrumental integration).7 The RMA lays down a comprehensive framework for environmental decision-making in general and more specifically as regards water resources. Dominant features are the effects-based approach and the indication of environmental bottom-lines in s 5(2). Thus environmental quality — or water quality — is likely to be a decisive criterion in decision-making. It has been questioned, however, whether the Act
provides sufficiently precise directions for decision-making and this might be illustrated as regards water quality.8
Water quality is the key theme of the WFD by the setting of environmental quality objectives and environmental quality standards as regards ecological water issues. The WFD promotes integrated water resource management and gradually replaces several — but not all — earlier water directives. Integrated water management includes the integration of water quantity and quality aspects and of the management of various water bodies (surface water, groundwater and coastal waters). Other elements of integration are cross agency integration (horizontal and vertical) through the elaboration of river basin management plans and instrumental integration or the “combined approach” linking measures of control, eg permit procedures, emission limit values etc. to environmental quality objectives and standards.
Water quality and integrated water resource management is a very broad theme and this article does not attempt to cover all legal aspects. One major aspect that is not dealt with in detail is public participation and consultation — an important component of integrated resource management to be kept in mind. Another resource aspect left out in this article is that of coastal waters to which a separate regime and additional legislation applies in most countries.
II. INTEGRATED WATER RESOURCE MANAGEMENT IN THE RMA
The general framework of the RMA provides a number of specific features relevant to the integrated management of water resources. A search for decision- making criteria or procedures that may reflect the protection of water quality as such reveals several relevant provisions. This includes the Part II provisions indicating the purpose of the RMA (s 5), matters of national importance (s 6) and other matters (s 7). The reference to the principles of the Treaty of Waitangi in
s. 8 is also relevant to the protection of water quality. Other important provisions to guide rule- and decision-making are s 104, s 107, s 108(8) and s 128. Part III of the RMA lays down basic measures to control activities more or less closely related to the protection of water resources, eg, ss 14 (water permits) and 15 (discharges). In the context of this article, more important are, however, the various procedures for setting water quality standards to actually determine what effects are acceptable in a certain area. These include ss 43–44 (national
environmental standards) and s 45 national environmental policy statements, ss 59–62 (regional policy statements) and ss 63–70 (regional plans). Water conservation orders are another interesting feature in this context holding a clear conservation purpose related to the quality of certain waters of unique value.
1. Sustainable Management of Water Resources
The concept of sustainable management governs the exercise of all functions related to rule- and decision-making according to the RMA, including water management.9 The definition of sustainable management in s 5 has been the subject of much debate primarily related to the subordinating or co-ordinating role of the word “while”.10
The wording of s 5(2) is:
In this Act “sustainable management” means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables peoples and communities to provide for their social, economic, and cultural well being and for their health and safety while —
a) Sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations, and
b) Safeguarding the life-supporting capacity of air, water, soil and ecosystems; and
c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment
Even if a subordinating interpretation giving priority to environmental interests is chosen it can be questioned whether s 5(2) provides sufficiently precise guidance on the acceptable level of any effects resulting from human activity on water resources. Section 5(2)(c) does not exclude adverse effects but rather indicates that they should be avoided, remedied or mitigated. Nor does s 5(2)(b) indicate what level of life-supporting capacity of a water body that should be safeguarded, and it has been argued that s 5(2)(b) is more a matter for the policy and plan making functions rather than for decisions on individual resource consents.11
Others have questioned the ability of the courts to deal with such abstract issues in view of the inconsistent approach to interpretation of s 5.12 The effects-based approach of the RMA, however, seems to indicate that decisions should not be based on an ordinary balancing of different interests, but rather on a more objective examination of whether the effects of a particular activity conflict with an acceptable level from an environmental or ecological point of view (the environmental bottom-lines). In order to make sustainable management operational to decision-makers there appears to be a need to define more precisely the acceptable level of effects or the environmental bottom-lines. The need for more precise standards has been advocated by several authors.13 As regards water resources it is possible to determine more precisely the acceptable level of effects through water quality objectives and/or standards. The possibilities of doing so will be analysed more in detail below.
2. Measures of Control
The RMA prohibits several general categories of activities likely to have adverse effects on water, eg ss 14 and 15 (eg, to take, use, dam or divert any water (s 14(1)(a)) or to discharge contaminants or water into water (s 15(1)). However, activities may be expressly allowed by a rule in a regional plan. Other allowed activities are stated in the Act and include to take or use water for reasonable domestic needs (s 14(3)(b) or use of geothermal water in accordance with Maori customary rules and values (tikanga Maori) in other specific circumstances (s 14(3)(c)). Section 15(1) also provides for the express allowance of discharges by regulations. Alternatively an individual resource consent is necessary. Rules in regional plans can distinguish between different categories of activities (controlled, discretionary, non-complying and prohibited) with implications on the decision-making: ie. controlled activities (shall be given a resource consent but conditions may be imposed); discretionary activities; non-complying activities (consent shall not be granted unless effects are minor or granting is not contrary to plan objectives and policies); and prohibited activities (consent cannot be granted) (s 105).
The intermediate level of rules in regional plans (or proposed regional plans) presupposes a determination of activities that may have adverse effects prior to the consideration of individual projects. The determination of permitted or non- permitted activities may on the one hand shifts the focus from effects to activities
indicating that certain categories of activities are unlikely to have adverse effects.14 The extent to which this approach is compatible with the consideration of cumulative or even synergistic effects of several projects is likely to be a challenge to the regional councils. On the other hand an exclusion of certain minor activities with no or insignificant environmental effects from demanding resource consent procedures is a feasible element for the functioning of the system, in particular combined with general requirements or standards to be met by such activities. The regional level also appears as the appropriate level to determine such issues considering the possibilities of achieving an integrated management of water resources. Yet, it must be noted that regional plans other than coastal plans and the drawing up of rules are not mandatory.
Criteria for decisions on individual water permits, discharge permits or other resource consents with implications on water resources must be found within the general purpose of the Act, in national environmental standards, regional policy statements, regional plans, district or local plans. The possibilities for setting water quality standards in these instruments are examined in more detail below.
The discretionary powers of local authorities are furthermore bound by s 104 that elaborates on the matters to be considered subject to Part II. The reformulation of s 104 in 1993 brought about a controlling effect of Part II considerations as opposed to the previous interpretation by the courts that Part II matters were not to be given any particular primacy.15 Section 104 does not make any reference to water quality itself, but it recalls the obligation to have regard to any actual or potential effects on the environment and to any relevant regulations, policy statements, plans etc. Consideration of water conservation orders is also required and effect is given to draft water conservation orders. More specifically related to water management s 104(2), (3) and (4) requires consideration of water issues in relation to resource consents, discharge permits and coastal permits respectively. Section 107 imposes certain constraints on the granting of discharge permits, eg that effects such as suspended material, conspicuous change in colour or visual clarity or significant adverse effects on aquatic life cannot be accepted unless in exceptional circumstances.
Furthermore s 108(8) expressly requires the authorities in their decision to grant a permit subject to conditions to have regard to the nature of the receiving environment and other alternatives, including the observance of minimum standards of quality of the receiving environment. Conditions set should be the most efficient
and effective means of preventing or minimising adverse effects on the environment (s 108(8)). Review of a water or discharge permit can be justified by the later adoption of e.g. water quality standards in regional plans (s 128(b)).
3. Setting Water Quality Standards At National, Regional Or Local Level
(a) National environmental standards and policy statements
The RMA provides several possibilities for the setting of water quality standards. At the national level s 43 authorises the Government to make national environmental standards in the form of regulations prescribing e.g. technical standards relating to water quality, level or flow (s 43(a)(iii). Methods of implementing such standards can also be prescribed in the regulations s 43(b). The public should be given adequate time and opportunity to comment on such regulations (s 44). Another opportunity at the national level is to issue a national policy statement with directions to local authorities on the management of eg, water quality (s 45). National policy statements should relate to matters of national rather than regional or district significance.16 In s 6 water quality is not defined as a matter of national importance, but the preservation of the natural character of the coastal environment, wetlands, lakes, rivers and their margins is.17 General objectives and directions for local authorities in managing water quality might appropriately be developed at national level. This should not entail technical environmental standards but rather objectives and policies of a broader nature. Local authorities would be obliged to act within the framework set by a national policy statement (s 55), ie to develop regional plans for water quality. The proposed amendments to the RMA suggest a more simplified process for preparing and promulgating national policy statements.18
It appears that on the national level very few initiatives have as yet been devoted to the issue of water quality. The Ministry for the Environment in 1992 and 1994 issued so-called Water Quality Guidelines (on the control of undesirable biological growths and on colour and clarity respectively).19 These guidelines
have not been issued according to the RMA and do not form statutory enactments. This means that the guidelines have no legally binding effect. More recently the New Zealand Government has together with the Australian Government drawn up a set of guidelines for water quality management.20 It appears that in New Zealand there is no legal status related to this joint initiative.21 Attempts to establish a vision for water management in New Zealand have identified six priority water management issues. These are:
Yet, no national policy statements on water quality or other water resource management issues apart from the mandatory National Coastal Policy Statement have been prepared. The latter deals primarily with the management and protection of coastal waters.
(b) Regional policy statements and regional plans
At the regional level two opportunities exist for dealing with water quality issues, namely in the mandatory regional policy statements and most explicitly in the regional plans. The latter are non-mandatory instruments, however, leaving room for considerable variations between the regions.
(i) REGIONAL POLICY STATEMENTS
A regional policy statement provides at a more strategic level an overview of resource management issues of the region and policies and methods to achieve integrated management of the natural and physical resources (s 59). Policies and methods to achieve integrated management of water resources clearly fall within the scope of regional policy statements albeit on a more strategic level. Part of
the functions of the regional councils are to control the use of land for the purpose of inter alia “the maintenance and enhancement of the quality of water in water bodies and coastal water” (s 30(c)(iii). Additionally the regional councils control the use of water resources (s 30(e)) and the discharge of contaminants (s 30(f)). Regional policy statements may deal with such matters accordingly (s 61). The content of regional policy statements is elaborated further in Part I of the Second Schedule (s 62). However, this Schedule mainly falls back to the topics listed in s 30 and provides little further guidance.23
(ii) REGIONAL PLANS
The most explicit reference to water quality in the RMA at regional level is found within the framework of regional plans. Regional plans provide the basis for rules that prohibit, regulate or allow activities with the effect of statutory regulations (s 68). Specific provision is made for rules on water quality in s 69 including a scheme of water quality classes in the Third Schedule. It is important to note that regional plans or rules on water quality are not mandatory under the RMA. This may, apart from the general structure of the planning hierarchy, be explained by the difficulties that surrounded the previous classification system of the now replaced Water and Soil Conservation Act 1967.24 Furthermore the obligation in s 32 to consider alternatives, assess benefits and costs before adopting any objective, policy or rule having regard to inter alia the necessity of a new rule may lead regional councils to adopt other approaches than the water quality classes specified in the Third Schedule. The proposed amendment to the RMA changes the wording of s 32 and introduces a precautionary approach by the requirement to take into account the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of the policies, rules or other methods.25
(iii) WATER QUALITY CLASSES
According to s 69 of the RMA the regional council may in a regional plan provide that certain waters are to be managed for specific purposes (water quality classes) and include rules on the quality of those waters. The water quality classes specified in the Third Schedule are related to specific purposes of water use, inter alia aquatic ecosystem purposes, fishery, fish spawning, shellfish cultivation, contact recreation, water supply, irrigation, industrial abstraction, natural state, aesthetic
or cultural purposes. To each water quality class more or less technical standards are attached, eg, on parameters such as temperature, pH, contaminants etc. but also on more qualitative variables such as “those characteristics which have a direct bearing upon the specified cultural or spiritual values”. The latter underlines the difficulties — but also the necessities of coping with more intangible values or interests within a framework of water quality standards. Interesting features in relation to a water quality regime are the duties and restrictions in setting quality standards and consequently in allowing deviations from the standards. These aspects have been quite clearly dealt with in the RMA. It follows from s 69(3) that standards shall not be set which result or may result in a reduction of the present quality of the water unless it is consistent with the purpose of the RMA to do so. If the regional council does not consider the standards specified in respect of the appropriate class or classes of water adequate they may state standards that are more stringent or specific (s 69(1)). The standards in the Third Schedule are thus minimum standards if the regional council decides to make rules on water quality standards. The classes are not exclusive as the regional council in a plan may state new classes and standards (s 69(2)). Apparently regional councils have been reluctant to adopt the Third Schedule approach.26 Other rules in a regional plan can more indirectly relate to water quality parameters. As regards rules about discharges the regional council must ensure that a number of specified effects, eg conspicuous oil or grease film or significant adverse effects on aquatic life, are not likely to arise (s 70(1)).
(c) Territorial authorities
At the district or city level the planning system of the RMA does not provide powers to establish water quality guidelines. But the territorial authorities must have regard to regional policy statements and regional plans when preparing district plans. Additionally, the territorial authorities control a number of activities which may affect water quality, eg the use of land according to s 31(a) including the deposit of any substance in, on or under the land (s 9(4)). Important is that land use as opposed to water use is permitted unless forbidden by a rule in a regional or district plan. In relation to the protection of water resources and water quality a certain overlap exists between the powers of the territorial authorities and the powers of the regional councils to control land use for the
maintenance of water quality and quantity (s 30(1)(c)).27 The territorial authorities also control the use of the surface of water in lakes and rivers in the form of entry onto or passing across (s 31(e)). In granting a resource consent territorial authorities must have regard to any relevant objectives, policies or rules of a plan or a proposed plan (s 104(1)(d)). According to s 68(2) rules in regional plans, eg, on water quality, are binding upon the territorial authorities.
(d) Water conservation orders
An interesting component of the RMA in relation to water quality is water conservation orders. The use of water conservation orders must be seen as an exceptional protection only afforded to few water bodies. A water conservation order is made by order on the recommendation of the Minister for the Environment. The number of water conservation orders issued has been limited. The most recent being the Buller River case where the application was lodged in 1987 and the order issued in June 2001.28 This case demonstrates the encumbered nature and history of water conservation orders.29
Water conservation orders have a separate position in the RMA not subject to Part II (and s 5), but have the specific purpose to recognise and sustain outstanding values afforded by waters (s 199(1)). Outstanding amenity or intrinsic values may relate to characteristics as a habitat, a fishery, for the wild, scenic or other natural characteristics, scientific or ecological values, or for recreational, historical, spiritual or cultural purposes (s 199(2)(b)). Several of these characteristics — if not all — can be associated with high water quality. Thus water conservation orders may be viewed as a means to protect water quality in water bodies of outstanding value. The extent to which this is really the case will depend on the contents of the conservation order. Restrictions or prohibitions related to the quantity, quality, rate of flow, or level of water body, the levels of flow, the maximum contaminant loading and the ranges of temperature can be contained in an order (s 200(a)–(d)). In the Buller River case restrictions on
alteration of water quality were included in the order by specifying the acceptable level for granting a resource consent, discharge permit etc. The water quality parameters included concentration of suspended solids or turbidity, visual clarity, the natural temperature, pH, undesirable biological growths, concentration of contaminants and saturation, while the level of flows was governed by separate rules.
A notable feature (in RMA s 69(3) and in the Buller River Order) is the adoption and definition of the concept to allow for reasonable mixing of a discharge with the receiving waters. This could be viewed as a means to dilute pollution. Alternatively it could be seen as making the longer-term effects decisive to decision-making. Whether one or the other it indicates that not even a water conservation order is an absolute prohibition on activities but rather an attempt to provide more precise (and fairly strict) environmental bottom-lines for a specific water body. A problem with water conservation orders such as the Buller River case is that it primarily addresses point source pollution problems readily identifiable in a resource consent procedure. This is reflected in s 217 additionally noting that a water conservation order does not affect or restrict resource consents granted or other lawful use established before the order is made.
A necessary supplement to a water conservation order to deal with other degrading activities must be a catchment approach. A catchment approach to water conservation orders has in earlier cases been rejected under the Water and Soil Conservation Act. In the Motu River case the tribunal concluded that a water conservation order must be confined to the water itself, although one should look at the river as a whole.30 Regional plans provide the platform for a catchment approach and regional plans shall not be inconsistent with water conservation orders (s 67(2)(b)). However, whether a regional plan and appropriate rules are adopted to support a water conservation order appears to be at the discretion of regional councils.
(e) Strengths and weaknesses in the RMA integrated water resource management
The RMA establishes a comprehensive framework for integrated resource management including water resources. The framework provides a general effects-based protection of water resources (Part II and III). The more precise determination of the level of acceptable effects is left to the discretion of the regional councils on a non-mandatory basis and thus depends on the (political) ability and willingness of the regional councils. The RMA seems to lack a uniform
basis for the setting of water quality objectives and standards. If an effects based integrated resource management strategy is to succeed an operational measure would be water quality objectives and standards. Water quality standards are likely to provide more precise environmental “bottom-lines” to decision-making. While initiatives are needed at national level to promote and streamline the setting of water quality standards the more exact determination of which quality standards should apply to which areas could very appropriately take place at the regional level. The RMA in fact provides the framework to do so — but on a non-mandatory basis.
The regional councils in New Zealand have the advantage of generally being watershed regions thus allowing an integrated approach to the management of the entire watershed.31 The regional councils also control a major part of activities with a direct effect on water resources (eg, water permits and discharge permits) and in granting permits should have regard to the effects on the receiving environment. As regards land use activities there is, however, a certain overlap between the functions of the regional councils (“control the use of land for the purpose of the maintenance and enhancement of the quality of water in water bodies and coastal water”: s 30(1)(c)(ii)) and the functions of the territorial authorities to control any actual or potential effects of the use of land: s 31(b).32 This might create problems for the control of land use activities such as farming being relevant to and part of regional functions primarily on a cumulative scale. Although cumulative effects clearly fall within the scope of the RMA (s 3) and should be taken into consideration the instrumental integration linking water quality standards to the regulation of non-point source pollution appears vague in the RMA with much more focus on traditional resource consent activities. This does not, however, exclude the regional councils from dealing with non-point source pollution in the regional plans. Regional plans thus have the potential to ensure an instrumental integration linking the regulation of activities to water quality standards and thereby to provide the basis for an effects-based management. However, this is almost entirely subject to the discretion of the regional councils.
III. WATER QUALITY MANAGEMENT IN THE WAIKATO REGIONAL PLAN
The Waikato Region covers an area of great natural and cultural variation and the Waikato River is the longest river in New Zealand. Water resource
management issues accordingly vary within the region. The 2000 Regional Policy Statement identifies the significant water resource management issues as: water quality affected by point and non-point source discharges and other activities, use of water bodies, wetlands, public access and matters of significance to Maori (mauri). In relation to water quality the Waikato Regional Policy Statement calls for the integrated management of land and water resources including the use of a catchment approach to be developed in liason with territorial authorities, iwi and other agencies especially with regard to non-point sources (3.4.5). The focus is, apart from the general framework for setting water quality standards, placed on the measures to control agricultural activities.
The 2001 Waikato Regional Plan33 represents a major effort to achieve integrated resource management within the RMA framework. It has taken more than five years of consultation, submissions and hearings from the initial steps to the final adoption in October 2001.34 The plan attempts to link the management of all activities using the Region’s land, water, air and geothermal resources. However, the plan does not address all resource management issues and is seen as an evolving document (188.8.131.52.). The plan establishes resource management objectives and environmental standards. Thus while setting environmental standards or bottom lines for the natural resources the plan also aims to reduce bureaucracy and to maximise certainty in decision-making processes (1.2.3). Reducing bureaucracy will be achieved by allowing a range of minor activities to go ahead without resource consents as long as certain standards are met. The objective of certainty is allegedly balanced by a risk-based approach that allows decision-makers to explicitly acknowledge scientific uncertainty as part of the process of managing environmental effects (1.2.3).
1. Water Quality Objectives and Standards
A number of general objectives are set for the management of water resources including the net improvement of water quality, the avoidance of significant adverse effects on aquatic ecosystems and that concentrations of contaminants leaching from land use activities and non-point source discharges do not reach levels that present significant risks to human health or aquatic ecosystems (3.1.2). For each of the three mentioned objectives water quality indicators and ecosystem health should be used to monitor performance. The general objectives in themselves provide little guidance for decision-making.
The Waikato Regional Plan applies its own set of water management classes in addition to the water quality classes for different uses and values set out in the RMA s 69 and the Third Schedule. The development of (new) water management classes and standards is seen as desirable to assist future resource use decision- making (3.2) The management classes defined in the plan are a general surface water class, a natural state water class, a contact recreation water class, and a fishery class with two subdivisions (significant indigenous fisheries and fish habitat or trout fisheries and trout spawning habitat). Each class is associated with a purpose, eg to maintain or protect existing quality and with specified water quality standards, eg as regards dissolved oxygen, pH, contaminants, visibility, flow etc. Standards for maximum and minimum flows and levels are set as well. Furthermore a set of suspended solid standards is applicable to permitted activities. The standards generally apply the concept of allowing a reasonable mixing of any contaminant with the receiving water. The plan sets out a policy to minimise the mixing zone as far as practicable on a case by case basis (3.2.3).
2. Measures of Control
The measures to achieve the water quality objectives and standards include a range of different instruments of a more or less regulatory nature. The plan refers to the distinction between point sources (eg, farm effluent discharges) and non-point sources (eg fertiliser application, surface run-off and leaching from agricultural land uses). The plan primarily addresses non-point sources in a non- regulatory way through a combination of education and encouragement and in some cases conditions on permitted activities. Yet, as regards lowland water quality the plan recognises that non-point sources and the accumulation of small discharges accounts for the major effect (70%) of summer load of nitrogen (N). The cumulative effects of non-point source discharges are identified as having a significant adverse effect on water quality of many water bodies (3.1.1).
In order to reduce bureaucracy the plan operates with a number of permitted activities, eg discharge of farm effluent — exluding pig farm effluent — onto land (184.108.40.206) with certain conditions to be met, eg no discharge to water, adequate storage facilities and maximum total loading (150 kg N/ha).35 Other activities are categorised as controlled activities, eg discharge of effluents from existing pig farms onto land with similar general conditions to be met and additional conditions to be set in a resource consent. The discharge of farm effluent onto land, which
does not meet the conditions for permitted or controlled activities is categorised as a discretionary activity in line with discharge of treated effluent to water. Discharge of untreated farm effluent to water is a prohibited activity and resource consent cannot be granted.
The Waikato Regional Plan addresses certain issues of non-point source pollution, eg fertiliser application, through a combination of non-regulatory methods
— eg, good practice guidance, education and research — and permitted activity rules. Fertiliser application is a permitted activity subject to certain conditions, eg, application in accordance with codes of good practice and from 2005 a nutrient budget model (220.127.116.11). The plan indicates that more stringent measures will be applied in the future if the current extent of adverse effects is not reduced significantly by 2005. These more stringent measures may apply to water bodies identified as particularly sensitive receiving environments such as Lake Taupo. The need for integrated management options at regional and district level is also addressed (18.104.22.168).
Monitoring is an important measure and requires differing methods depending on the character of the activities (point or non-point) and on the regulatory approach. The Waikato Regional Plan does not set up specific monitoring programmes for eg nitrates but relies on monitoring according to the general water quality objectives (3.1.4). This includes both compliance monitoring and regional trend monitoring.
3. Integrated Water Resource Management in Waikato?
The Waikato Regional Plan operates within the framework established by the RMA. It deals with the water resources in a cross-media integrated manner to the extent that different water resources are included in the plan. A vertical cross-agency integration as called for in the Regional Policy Statement, is also addressed in the regional plan. Attention is drawn to the overlapping competencies as regards regulating discharge of farm effluents by the notion that people should be aware of the rules that may be established in district plans. In relation to non- point sources the intention to promote integration of regional and district plans for land uses is put forward. The general rules in the regional plan relating to permitted, discretionary and non-complying discharges are only to a limited extent linked to the designated water quality classes. One example is that discharge into natural state water bodies is defined as a non-complying activity. A similar differentiation related to water quality classes is not seen for farm effluent discharges. In this case, however, discharge of untreated effluent to water is generally a prohibited activity. It is not clear how cumulative effects of farm effluent discharges should or may be dealt with in individual resource consent decision-making. Rather cumulative effects may be expressed in the general conditions set up, eg, the
maximum N-load. Certain non-point sources are dealt with in the plan, eg fertiliser application. The plan identifies fertiliser application as a permitted activity subject to certain conditions and relies on non-regulatory measures to be taken in this respect. Although the Waikato Regional Plan addresses many integrated water management aspects the full potential of the integrated resource management approach does not seem to come through. A stronger link between the measures used to manage water quality could have been established, eg, to clearly link the measures to control pollution and other activities to the sensitivity of receiving waters (water quality classes). The extent to which this has been done in relation to agricultural pollution appears limited. One may also question whether the measures of control of point and non-point sources are sufficiently stringent to actually maintain or even improve water quality in the region. This, however, may reflect a lack of political will or ability to deal with agricultural pollution problems in a restrictive manner.36
IV. INTEGRATED WATER RESOURCE MANAGEMENT IN A EUROPEAN CONTEXT
A new European framework for water management was set by the 2000 EC WFD with the explicit purpose to inter alia prevent further deterioration of aquatic ecosystems, to promote sustainable water use and to progressively reduce discharges and pollution (article 1).37 The WFD governs the ecological quality of water, whereas other directives such as the Drinking Water Directive and the Bathing Water Directive provide more human health related quality standards for specific uses of water. These directives will not be replaced by the WFD and neither will the two directives that deal with the specific problems of agricultural nitrates pollution (the 1991 Nitrates Directive) and urban sewage (the 1991 Urban Waste-water Directive) respectively.38 However, the water directives and other environmental directives are tied together by the WFD ensuring as a minimum the measures necessary to implement Community legislation for the protection of water (article 11(3)(a)).
The WFD focuses on water quality, as such, independent of various uses of water. The Directive sets minimum requirements for water quality that should be met whatever use the water is determined for. As mentioned the Directive in addition aims to meet the water quality standards set by other Directives for
more specific uses, eg, drinking water (article 7). Normally, meeting the drinking water standards is dependent on the water treatment regime applied and the quality of the resulting water is decisive. Yet, according to the WFD the necessary protection is to be ensured to avoid deterioration and to reduce the level of purification treatment required (article 7(3)).
1. Water Quality Objectives and Water Quality Standards
The WFD operates with two interrelated elements of water quality, namely water quality objectives (article 4) and more specific water quality standards referring to the maximum concentration of a particular pollutant or group of pollutants in the water.39 Water quality standards for so-called priority substances will be adopted at Community level to some extent on the basis of previous water directives.
Categories of water objectives, eg good ecological status, are defined on a general level in the Directive and more specific parameters are identified in Annex V.40 The water quality objectives are then linked to the setting and fulfillment of specific water quality standards for the parameters given. Interpretation of the relevant normative thresholds such as “only very minor anthropogenic alterations” (high ecological status) or “low levels of distortion” (good ecological status) and the setting of appropriate values is at first hand left to the Member States, although subject to some harmonization. A common minimum objective is set by the Directive that measures should be taken with the aim of achieving a good surface water and groundwater status respectively for all waters before December 2015 (article 4(1)). A less ambitious objective of good ecological potential and good chemical status is set for artificial and heavily modified bodies of water (article 4(1)). Such water bodies may be designated by the Member States on the basis of the criteria set in article 4(3)) which includes the consideration of significant adverse effects that the necessary measures to achieve good water status would bear on different human development activities.
An interesting aspect is to what extent the Member States can derogate from these minimum objectives. More stringent objectives can be set by the Member States, eg designation of protected areas, and there is a duty to do so if it is necessary to meet the requirements of other EC Directives. The possibility of setting less stringent objectives is, apart from the above mentioned artificial or heavily modified water bodies, limited to specific bodies of water that are so affected by human activity or by their natural conditions that the achievement of
the general objectives would not be feasible or would be disproportionately expensive (article 4(5)). Certain additional criteria, eg that no further deterioration occurs, are mandatory (article 4(5)(a–d)).
It can be questioned whether the water quality objectives of the WFD in themselves are sufficiently clear and precise and whether article 4(1) provides a sufficiently clear and enforceable obligation to actually achieve the objective of good water status.41 Generally, the Directive is based on a no-deterioration or stand-still42 principle (article 1 and 4(1)(a)) meaning that deterioration of the present water quality is not acceptable. No measures or activities that would conflict with the present water quality or with the objective set, can be allowed. Whether article 4(1) imposes a precise and enforceable “result obligation” meaning that there is an obligation on the Member States to take the necessary measures to achieve the water quality objectives is as indicated by Grimeaud not clear. Yet, the exemption rule in the Directive article 4(7) only accepts failures to achieve the set objectives or to prevent deterioration due to eg. modifications to the physical characteristics of surface waters or to new sustainable human development activities if certain specified conditions are met (eg reasons of overriding public interest or qualified benefits to human health, human safety and sustainable development). Also a duty is set in article 4(8) to ensure that when applying the exemption rules this process does not permanently exclude or compromise the achievement of the Directive in other bodies of water within the same river basin and that it is consistent with other Community legislation.
2. River Basin Management
(a) Measures of control
The WFD refers to a broad range of measures. The Directive explicitly refers to the combined approach for point and non-point pollution sources (article 10). This implies that establishment or implementation of emission controls according to the IPPC Directive, the Urban Waste-water Directive and the Nitrates Directive should be based on best available techniques, on relevant emission limit values or for diffuse impacts based on best environmental practices. But if these measures are not sufficient to meet the water quality objectives or standards more stringent emission controls shall be set accordingly. The WFD generally emphasises that the requirements of other directives should be ensured by the implementation of
the WFD (article 11(3)(a)). Another general measure referred to is the fairly weak requirement for Member States to ensure that water-pricing policies provide adequate incentives to efficient water resource use taking into account the principle of recovery of costs43 and the polluter pays principle (article 9).
Furthermore the Member States shall ensure the establishment of a programme of measures for each river basin or for measures applicable to all river basins within its territory. The programme of measures shall be based on analyses of the characteristics of the river basin, of the impact of human activity and of the economics of water use (article 5). Each programme of measures shall include certain “basic” measures and where needed “supplementary” measures (article 11(2)). The basic measures are identified in article 11(3) as minimum requirements including eg abstraction controls, prohibition or prior authorization of point source discharges and prevention and control of non-point sources. Supplementary measures are identified as measures designed and implemented with the aim of achieving the established objectives (article 11(4)). A number of different measures can be used here according to the choice of the Member State, but the necessary supplementary measures must be taken.
The level at which the necessary basic and supplementary measures are to be decided is not clearly stated in the Directive leaving a certain “room for manoeuvre” to the Member States. Although a preference is placed on a river basin district approach, general national measures are not excluded. This appears to be a weak point in the Directive if Member States fail to properly integrate the setting of water quality objectives with the necessary measures at the river basin management level. A regionally (watershed) differentiated management approach is likely to be appropriate in most countries.
(b) River basin management plans
The procedural framework for the management of water resources includes that a river basin management plan shall be produced for each river basin district (article 13) at the latest in 2009. A precondition is the setting up of appropriate administrative arrangements, eg the identification of the appropriate competent authority (article 3). These requirements for the administrative structure will be a challenge to the Member States not already equipped with river basin or watershed based administrative structures. The contents of a river basin management plan is specified in Annex VII and includes a mapping of the resources, a presentation of water status, a list of the water quality objectives and a summary on the adopted programmes of measures and supplementary measures identified as necessary.
River basin management plans shall be subject to public participation, including a consultation period of at least six months (article 14).
3. Strengths and Weaknesses in the WFD
As with the RMA, the WFD was to some extent driven by a need to simplify existing Community water legislation. Although the Directive reflects the subsidiarity principle44 and is a compromise among the Member States it appears as a Directive that goes quite far in setting a framework for water management in the Member States. The compromise nature is expressed in the not quite precise minimum water quality objectives and in the relatively long timeframes for actual implementation of these objectives. The setting of more precise quality standards for individual priority pollutants at Community level is a process that might be long and cumbersome as it has been in the past. The administrative arrangements of the Directive are quite unseen so far in EC environmental legislation. River basin management is identified as the appropriate level for integrated water management and for measures to be taken that are actually linked to the established water quality objectives.
One may question, however, whether the Directive ascribes in a sufficiently precise way the role of integrated water resource management to the drawing up of river basin management plans. These appear to be more informative in nature rather than prescriptive. A meaningful public participation should not take place at the stage where water quality objectives and the necessary measures have already been established but at the stage where these are determined. In this respect a clarification of the relationship between the programme of measures and the river basin management plans is needed.
V. WATER QUALITY MANAGEMENT IN DENMARK
Although the WFD has not yet been implemented, water quality management has been practiced in the Member States for several years on the basis of inter alia the Drinking Water Directive and the Nitrates Directive. The regulation of agricultural pollution forms a comparable background to the water quality issues of the Waikato Regional Plan discussed above. Agricultural pollution with nitrates is a major water quality concern in Denmark both as regards groundwater (drinking
water)45 and surface waters. The intensified farming practices — livestock and crop production — result in a significant loss of nitrogen (and phosphorus) to the aquatic environment. Agriculture in Denmark occupies about 62 % of the 43,000 km2 land area.
1. Setting Water Quality Objectives and Standards
(a) National policy strategies
Several regulatory initiatives have been taken to reduce the loss of nitrogen from agricultural lands with up to 50%. This reduction target was set up by the 1987 Aquatic Action Plan I including a similar reduction goal for waste-water management facilities. As regards municipal waste-water facilities the target has been met. For agriculture it has, however, proven difficult to fulfil the reduction target and a number of new and strengthened general restrictions on farming practices have been introduced over the years, the latest reinforced by the 1998 Aquatic Action Plan II and the 2000 evaluation of this. These restrictions have also aimed at implementing the EC Nitrates Directive in order to meet the quality standard set by this Directive (and the Drinking Water Directive) of max. 50 mg nitrates/l.46 The Nitrates Directive imposes an obligation to map all waters affected by or likely to be affected by pollution above 50 mg nitrates/l and to designate nitrate vulnerable zones accordingly.47 Denmark has chosen to implement the Nitrates Directive by designating the entire country as a nitrate vulnerable zone and has so far applied uniform measures across the whole country.
(b) Regional planning
Setting water quality objectives and standards is part of regional planning. A distinction is made between the water quality planning for surface waters (formerly known as recipient quality planning and until 1986 incorporated into the Environmental Protection Act (EPA)) and water resource planning for
groundwater resources (Planning Act s 6(3) litra 13 and 12 respectively).48 The latter was initiated in 1999 and was to be implemented in the 2001 regional plan revisions. Regional plans are produced on a mandatory basis according to the Planning Act (PA) where a list of mandatory planning issues is set up. Regional plans are adopted in the form of guidelines and are not binding in a traditional legal sense outside the hierarchical planning system. However, the regional and municipals councils have an obligation to have regard to and strive for achievement of the guidelines in the application of law (PA s 9), ie when deciding upon an application for a discharge permit. It should be noted that when EC water quality standards are used these are legally binding and only the exemption rules of the Directive in question are applicable.
Surface water quality planning (recipient quality planning) operates with three general (ecological) classifications; a stringent objective that does not allow negative impacts, a general objective that allows only for weak impacts and a less stringent objective that allows for significant impacts. More specific objectives can be set, eg special scientific interest (A-objective), so-called fish-water objectives based on EC law (B-objectives) or waters used for discharges (C- objectives). Different standards are then associated with the objectives. In addition a total allowable level of pollution shall be set for each recipient.
Groundwater quality planning (water resource planning) is based on the identification and designation of different categories of drinking water areas, eg drinking water areas of limited, general or specific interest, sensitive extraction areas and so-called focus areas for nitrates or pesticides. For each focus area, which shall be based on a detailed hydrogeological mapping, a specific management plan shall be drawn up (Water Supply Act (WSA), s 13). The management plan shall address the measures necessary to reduce pollution, eg low in-put farming practices. Changes in existing farming practices can be sought in accordance with a management plan through voluntary agreements or acquisition (WSA) or if such voluntary measures are not feasible by an order issued with full compensation (EPA s 26a). Furthermore the EPA (s 19(6)) establishes the basis for a specific authorization procedure for livestock installations within nitrate focus areas. However, this scheme has not yet been put into place.
2. Measures To Control Agricultural Pollution
General restrictions applicable to all agricultural activities include livestock density (max. animal units/hectare), storage facilities and spring spreading of manure, fertilizer bookkeeping, Nitrogen(N)-utilization norms, N-norms for various crops
<www.au.dk/cesam> (NorFA Conference: Water Resources — Legal Protection and Regulation).
and enforcement fines for exceeding the norms. A very complex and bureaucratic regulatory framework has emerged.49 Several proposals to deregulate and to introduce N-taxes or N-loss taxes on agriculture have failed. This body of restrictions has been launched without compensation to farmers as part of general environmental regulation. A 1992 amendment to the Watercourse Act requiring 2 metre cultivation-free zones along watercourses was challenged before the courts on a claim of compensation. The High Court and later the Supreme Court50 declared the rules as general compensation free regulation with regard to the low economic impact imposed by the rules.
The general restrictions on farming practices have so far not been linked to any form of water quality planning and apply across the whole country. The same is the case as regards the requirements of individual environmental permits for larger farms. Livestock installations above certain size limits are subject to individual permit procedures and EIA requirements. Initiatives have recently been taken to link such individual decisions more strongly to water quality planning and also to the sensitivity of nature areas. For the part of N-discharges from the installation itself (point source pollution) this appears feasible. For the part of N- discharges associated with land use practices, eg, crop rotation, it is more problematic to regulate at an individual farm level.
Specific measures have as mentioned been set up to control agricultural pollution within nitrate focus areas as part of the groundwater quality planning scheme. Here there is a direct link between new individual restrictions in agricultural practices and the groundwater quality planning. Other initiatives to promote wetland restoration for denitrification purposes (absorption of N) are in a similar manner linked to regional planning and to the designation of potential wetland restoration areas. These measures are premised on a more voluntary basis and on subsidy schemes or acquisition (Nature Protection Act).
3. Integrated Water Resource Management At Regional Level In Denmark
At first glance the provisions for water quality planning and environmental regulation of the agricultural sector in Denmark may appear very comprehensive. Surely, there is a highly detailed level of regulation and certain environmental outcomes have been achieved. Yet, from a legal or regulatory perspective the different measures are not integrated to any further extent and the result is
overlapping and unclear competencies. There is no watershed or river basin based planning system in place in Denmark impeding the adoption of a catchment approach. At the planning level the two categories of water quality planning are separated from each other with little integration between the different water resources. Furthermore they operate within two different settings as regards the measures to achieve the water quality objectives set. The measures of control are generally activities-based and not directly linked to effects-based planning. The surface water quality planning relies on a traditional reactive approach and the general obligation to strive for the realization of the planning guidelines in individual decision-making according to law. The groundwater quality planning has more explicit links to different measures of both a reactive type (environmental permits within nitrate focus areas) and a more proactive type (individual restrictions of existing farming practices through voluntary agreements, acquisition or orders) based on compensation. However, there is no link between the detailed national body of general restrictions on agricultural use of fertilizers etc. and the water quality planning at regional level. And finally the relationship between general restrictions, environmental permits and the new specific measures has not been clarified in any way. Although the Danish system may provide a high level of protection it also has a high level of complexity and fails to address the issue of instrumental integration as regards water resource management and the possibilities for the regional councils to take a comprehensive approach are limited.
This article demonstrates different approaches to promote integrated water resource management and to provide directions for decision-making on water quality. Water quality management includes at least two elements, namely the setting of water quality objectives and standards and the measures to control activities affecting water quality. To achieve integrated water resource or quality management a link (instrumental integration) must be established between these two elements and the measures applied must be co-ordinated. Furthermore a cross-agency integration of different sectors and of different levels of government and the public must be sought. Finally a cross-media integration between different water resources, eg surface, coastal and groundwaters, and other media, should be aimed at. A legal framework may support or constrain the possibilities to achieve integrated water resource management and to enhance water quality.
The New Zealand Resource Management Act was drawn up with the purpose to promote integrated resource management and an effects-based approach. This was believed to entail a less interventionist approach than in the previous legislation. The RMA thus sets a general framework for integrated management and regional and local rule-making based on more ideological considerations of efficiency and
decentralisation along with the central focus of “sustainable resource management”. The RMA favours regional and local rule-making whereas the EC Water Framework Directive promotes at least to some extent a uniform or harmonized approach to the setting of water quality objectives and standards. However, EC legislation also operates within the subsidiarity principle according to which the Community should take action only if the issues cannot be sufficiently addressed at the national level and the objectives are better achieved at Community level. This touches upon the central theme about how and at which level of government the acceptable levels of human interference with nature should be determined.
The RMA offers a very flexible framework within the overall purpose of the Act to achieve sustainable management and accordingly has the potential to meet demands for integrated water resource management. Yet, this depends almost entirely on the steps taken by the regional councils and the preparation of regional plans. Regional plans are not a mandatory element in the RMA and there has been no follow-up by national government in order to provide more precise binding directions or criteria for setting water quality objectives or standards. In this respect the WFD is an example of how to establish a framework for setting environmental bottom-lines for water quality, although some clarifications of the requirements in the Directive are desirable. On the other hand the RMA framework for regional plans provides a basis for cross-media integration and linking environmental objectives or standards to the necessary measures through regional rule-making. Even cross-agency co-operation between regional and district councils is foreseen in the RMA. Still the problem remains that without more specific directions it is entirely left to the regional councils to take action within the overall framework of the Act.
The potential of the RMA to ensure integrated water resource management is to some extent met in the Waikato Regional Plan. However, the extent to which the RMA effectively provides or prescribes environmental bottom-lines may be exemplified by the apparent difficulties in the Waikato Regional Plan to set sufficiently clear and stringent measures and to link those to the sensitivity or water quality objective of the receiving environment. This appears to be the case in relation to agricultural pollution where the plan furthermore favours a non- regulatory approach at least for the time being. Compared to water quality planning and regulation of agricultural pollution in Denmark this is a fairly weak solution. It should be kept in mind, however, that in Denmark environmental regulation of agriculture has evolved since the mid-eighties and reached a high level of complexity. Although a relatively high level of environmental protection may have been achieved in Denmark this has been in a rather strong interventionist approach with little integration between media, agencies or measures. In Denmark the regional level and the regional plans do not provide a clear platform for regional rule-making; and the councils are not river basin based authorities. The implementation of the WFD will require changes in the administrative structures
for water resource management in Denmark as well as in other European countries in order to establish a river basin management approach. Yet, the Directive is not clear as to what should be the legal status or legal effect of the river basin management plans the form of which appears to be more informative than prescriptive. In this respect the New Zealand experiences of regional rule-making in the RMA, as demonstrated in the Waikato Regional Plan, may be valuable to Member States such as Denmark.
This article is based on the assumption that although differences may exist between countries and regions, certain elements of an integrated water quality management system are likely to be of common interest. One such element is the need for a regionally (river basin, watershed or catchment) differentiated regime. This is supported by the river basin management approach of the EC WFD and also coincides with the administrative structure and organization in New Zealand. This does not mean that the certainty of more uniform national or supranational measures is lost. As can be seen in Denmark general national measures may fall short of actually promoting or achieving integrated management. Yet, river basin management needs to operate within a certain regulatory framework. The link between environmental or water quality objectives and standards and the measures necessary to achieve those objectives (instrumental integration) is essential. The WFD stresses this link through the combined approach and the RMA has the potential to achieve the same if the necessary directions are put into place. As it has been argued this would be a means to actually put into practice an effects-based approach. At the same time this might meet demands of simplified regulation and certainty provided more precise water quality objectives and standards are met.
The task is to find the appropriate mix or balance between instruments and institutions. More precisely what is appropriate in one country would depend upon a number of factors, including ecological and socio-economic conditions and legal and cultural traditions. Important elements in a water quality based integrated water resource management regime can, however, be identified as:
(a) determination of environmental bottom-lines reflecting the broad range of water quality parameters, eg ecosystem health, contaminants, cultural and spiritual values;
(b) measures to control activities based on the effects on the receiving environment, including consideration of cumulative and synergistic effects; and
(c) a river basin, watershed or catchment approach that links (a) and (b) and provides for cross-media and cross-agency integration and public participation.
The legal framework must provide clarity, certainty and flexibility for these elements to be elaborated on at the appropriate level of government. This necessarily entails a certain degree of uniform (national or supranational) directions to be established.