The Governor-General by Order in Council recently passed the Resource Management (National Environmental Standards for Freshwater) Amendment Regulations 2022 (the 2022 Regs), which contain some important changes to the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (the Principal Regs) relating to intensive winter grazing.

The most significant changes are around when the intensive grazing regulations kick in, the standards specifying the depth or amount of pugging, when you must replant after intensive winter grazing, and the introduction of new protections for critical source areas.

Intensive Winter Grazing regulations 26 and 27 effective 1 November 2022

The main regulations controlling intensive winter grazing (regulations 26 and 27 of the Principal Regs) were to come into force 1 May, but this has been pushed out to 1 November 2022. In the meantime, intensive winter grazing will continue to be controlled by the temporary conditions set out in regulation 29.

It appears that the decision to extend the date on which regulations 26 and 27 come into force is to allow the Ministry further time to finalise the regulations relating to freshwater farm plans - the main regulations controlling intensive winter grazing (regulations 26 and 27) contemplate the use of freshwater farm plans, but Part 9A of the RMA which sets out the statutory basis for freshwater farm plans has not yet been brought into effect.  If regulations 26 and 27 had come into force before freshwater farm plans can be relied on, all intensive winter grazing would be required to comply with the prescriptive conditions set out in regulation 26(4) (or apply for a resource consent.)

Pugging

Under the 2022 Regs, any person using land for intensive winter grazing must now take "all reasonably practicable steps" to minimise the adverse effects of pugging on freshwater. This new effects-based approach represents a significant departure from the very specific requirements that were previously in place for pugging. Under the Principal Regs, pugging deeper than 20 cm at any one point, other than in an area within 10cm of an entrance gate or a fixed water trough, or covering more than 50% of the paddock would have triggered a need for resource consent.

While this new effects-based approach allows farmers flexibility in the face of adverse conditions, the term "all reasonably practicable steps" in a permitted activity regulation introduces a layer of uncertainty for farmers, regulators, and other interested persons. It removes the absolute standard by which a person could be sure whether or not they complied with the standard, and instead raises the question whether the person has taken all the steps that were reasonably practicable in the circumstances.

Replanting

The 2022 Regs have also changed the requirements relating to replanting following intensive winter grazing. Rather than a set date by which the area must be replanted, the 2022 Regs instead require a person to ensure that the land is replanted as soon as practicable after livestock have finished grazing the crop. Much like the requirement to minimise the adverse effects of pugging, it will be interesting to see how this plays out in practice.

Critical source areas

The 2022 Regs also introduce requirements for critical source areas (CSAs). Under the 2022 Regs, CSAs within (or adjacent to) any area of land used for intensive winter grazing must not be grazed, and must be maintained with vegetative ground cover, through the period of 1 May to 30 September. Importantly, the regulations clarify that planting CSAs in forage crops does not count as maintaining vegetation. In practice, this will likely require all critical source areas to be identified prior to, and avoided during, cultivation/planting of forage crops, and for those areas to be fenced off during grazing of the crop.

The 2022 Regs also introduce a number of other changes to the Principal Regs, including changes to a number of definitions. The full amendment regulations can be found here. If you would like to discuss the changes in more detail, please contact a member of our Environmental & Planning team.