Managing our wetlands in the coastal marine area

We have submitted on the is in our previous opportunities to provide feedback as one of the more serious issues with the current legislation. The following is taken from our July submission and is still valid:
52. We strongly disagree with ANY further increase of the FRESHWATER regulations applying to the coastal MARINE area. Instead of removing ‘in relation to a natural inland wetland’, all of the freshwater regulations should apply to ‘natural inland wetlands’, and only when in depth consideration and robust consultation of the effects of any new regulations have on coastal wetlands, should any new regulations apply and within the correct statutory document i.e. Coastal Policy Statement. – Please note that the RMA definition of a wetland technically collects all of coastal New Zealand, which totally undermines the reason / rhetoric for the high level of protection for wetlands i.e. “only 10% remaining” (maths is completely wrong if you include this coastal wetlands). As only one example, mangroves only grow from Tauranga north, and have a unique set of issues as to whether they are providing important ecological services (in most places) or are a rapidly increasing pest and bio-modificator (in many places). The three northern regional councils that specifically address mangroves and have well thought out and tested, permitted and consented activity status rules with regards to control or removal, and should be allowed to address these specific regional issues without a blanket coverage of this legislation (We are not just referring to this regulation, but the NES-regulations overall. Please refer to the additional comments at the end of this feedback document).
General Comment.
The inclusion of CMA wetlands under the National Policy Statement for Freshwater Management is the wrong statutory document. It is an oxymoron to have a Freshwater legislation covering the CMA. There is an excellent reason why the Ecological Impact Assessment Guidelines in New Zealand (Roper Lindsay et al, 2018) ONLY covers terrestrial and freshwater. This EIANZ document provides clear methodologies for assigning value, assignment of the magnitude of effect of an activity, and a matrix for then assigning the level of effect on an activity on an ecosystem. Marine was not included as it was too difficult to provide the assessment criteria, yet this legislation sweeps through with the “solution”. The freshwater regulations should be restricted to freshwater. The coastal regulations, after some actual thought of the ramifications, should apply to the coastal wetlands. Auckland Council has advised practitioners that “all harbours are wetlands” i.e. Waitemata Harbour, Manukau Harbour, Kaipara Harbour etc., under the freshwater legislation. This encompasses vast amounts of area, makes more than 25% of the Auckland Region a coastal wetland, and includes really tricky habitats.
If the intent of the freshwater legislation was to include all of the coastal areas in New Zealand why are these documents titled ‘freshwater’. If that was not the original intent then the regulations should be pulled back to that (i.e. freshwater) and only include natural inland wetlands, or at least to the mouth of the river, as in the Environment Court decision. The NZ Coastal Policy Statement has objectives and policies that protect these areas. The Regional Plans all separate out these two areas (marine and freshwater) under different rules yet this freshwater legislation covers it all, without consideration.
This would not be hard to do, mainly adding the word ‘inland’ in front of the word wetland in the appropriate places, and stating that these are freshwater regulations, not intended to collect all habitats in the CMA as well.
We are pleased that many of these comments align with the current discussion document and we very pleased that MFE has recognised that this particular application is causing serious problems in implementation and ‘unforeseen consequences’.
The interpretation Regional Councils have taken in the respect to the inclusion of coastal wetlands under the NES-F is out of context of the original purpose and scope in regards to protecting natural wetlands. While “earthworks” undertaken on the CMA bed (such as sand mining, dredging) has the potential to affect the extent of coastal wetlands, earthworks within 100 m of a coastal wetland undertaken on land does not have the potential to cause the drainage of a coastal wetland, and has arisen in numerous constraints and time delays in development and land use restricted to the terrestrial zone.

A. The CMA is a highly variable and complicated area. These areas require further discussion, debate and development of methodologies for assessment before rules such as these should apply. The ‘catch-all approach’, such as the current legislation is highly restrictive and providing for perverse outcomes. The inclusion negates all the previous hard work, consultation, debate and decisions to find solutions for complicated issues within the CMA that is contained within the regional statutory documentation – mangroves being an obvious example. None of the wetland assessment methodologies (Vegetation / Hydric soils / Hydrology) are applicable and methodologies for assessments in the CMA are highly variable (depending upon the habitat) are difficult and often involve numerous agencies and rules. As an example the EIANZ guidelines for Ecological Impact Assessments have specifically not included the CMA, because of this complexity. The reasoning was primarily that the environmental law, ecology and ecological knowledge of these two environments differ in many ways from the terrestrial and freshwater environments, and we felt that their inclusion needed further consideration.
B. The CMA should be covered by the NZCPS (or equivalent), preferably after a well thought out review (with the opportunity for submissions) if these areas are assessed as requiring greater protection.
C. The legislation names, National Policy Statement for Freshwater Management (NPS-FM), and National Environmental Standards for Freshwater (NES-F), would then be correct and not also cover marine.

Yes. Inland wetlands are defined in the NPS-FM as natural inland wetland means a natural wetland that is not in the coastal marine area. This is very clear and unequivocal. We have clear definitions in the RMA and in the Regional Plans for the CMA, and this would limit contentious areas to this CMA definition which has already been well argued.
The current regulations within the NES-F and their application to coastal wetlands is inappropriate. The main threats in regards to coastal wetland loss arises from climate change, erosion, coastal dredging, land reclamation and pollution. The NES-F does not adequately address these threats to coastal wetlands and the transfer of guidance documents (e.g. hydrology and hydric soils) from freshwater systems to coastal systems is not equivalent.

The only other option, which we worked with for a year, was the Environment Court Decision which stated:
NES-F regulations apply to the coastal marine area (CMA) only to the extent that they cover the area of CMA upstream of the "river mouth" as defined in the RMA 1991. In particular, they do not apply to the general CMA, open oceans, estuaries, bays and other areas not falling within the definition of "river or connected area".

We found this was a well-defined area and included the often more sensitive coastal wetlands. This declaration provided a workable solution.
We also recognise that this would require more work to implement and we like the simplicity of the proposed Option 2, allowing for further work to be carried out in more appropriate legislation to capture these areas.

These 5 questions did not ask for responses over Option 1 over Option 2. Option 1 will not solve the issues and perverse outcomes in the short term and will also open up more arguments about what is included and what is not. It is a solution, but not a good solution and a very complicated route. Option 2 is simple, clear and allows for coastal wetlands to be collected in more appropriate legislation.