Detail of the regulations
What’s in the Action for Healthy Waterways package?
The ‘Action for Healthy Waterway package’, previously known as the ‘Essential Freshwater package’, includes several policy documents:
- National Environmental Standards for Freshwater (NES): sets out rules that apply to farming and freshwater that apply across the country. The rules are set by central government, and regional councils are charged with implementing these rules. These cover intensive winter grazing, a cap on application of synthetic nitrogen fertiliser, intensification of land use, stock holding facilities and protection of wetlands. They also cover fish passage and river reclamation standards.
- Section 360 Regulation for Stock Exclusion: sets out requirements for stock exclusion such as stock type, land slope and deadlines for meeting the requirements.
- The National Policy Statement for Freshwater Management 2020 (NPS-FM): a new NPS-FM has been developed, introducing additional compulsory values and attributes (for example for sediment and nitrate concentration) that must be met to maintain or improve the state of freshwater.
Regional Councils must work with their communities to review and update their regional plans by the end of 2024 to ensure they achieve these new limits – and set the timeframe for this. DairyNZ will be engaging closely with regional councils over the coming years as they address this and we encourage farmers to take part in community discussions also.
- Measurement and reporting of water takes regulations: these have been amended to include requirements for water permit holders to provide electronic records of water takes to regional councils.
DairyNZ held two online events for Canterbury and Southland farmers in August 2020 which provide answers to some of your more common questions:
What does the discussion about ‘existing use rights’ mean?
Activities that require a National Environmental Standards (NES) may be able to continue temporarily under section 20A(2) of the Resource Management Act if:
- the activity was lawfully established; and
- the activity could have occurred without consent before the rule in the regulations came into force; and
- the effects of the activity are the same or similar in character, intensity and scale of effects to those that existed before the rule took legal effect; and
- you apply for a resource consent for the activity once the rule comes into force and by the following dates:
- 2 March 2021 – for all activities other than intensive winter grazing, applications of synthetic nitrogen fertiliser, and stockholding areas other than feedlots.
- 31 October 2021 – for intensive winter grazing activities.
- 31 December 2021 – for applications of synthetic nitrogen fertiliser and stockholding areas other than feedlots.
What is the definition of a creek/stream/river?
For stock exclusion purposes, it is a water body which is continually or intermittently flowing and at least 1 meter wide as measured as the bed width bank-to-bank. It does not include artificial watercourses such as irrigation canals, water supply races, electricity generation canals or farm drains.
For winter grazing purposes, it is a water body which is continually or intermittently flowing - including drains (regardless of whether there is any water in it at the time).
Synthetic nitrogen fertiliser input limit
How is a farm defined, does the limit to application of synthetic N fertiliser apply over my runoff as well?
The nitrogen cap applies to a ‘contiguous land holding’. This is ‘one or more parcels of land within a farm’. So, if the run-off is contiguous (joined) with the milking platform, it is all subject to the same N-cap. If the run-off is separate, they must separately meet the N-cap.
Example from the NES: A farm is managed as a single operation on 50ha of land, comprising two parts: 20ha of contiguous parcels and a separate 30ha of contiguous parcels. Each of those parts is a contiguous landholding.
If synthetic nitrogen is applied above 190kg N/ha, can this be averaged or offset by other parts of the farm. Where and how is this stipulated in the NES provisions?
The NES defines the nitrogen cap, “for the land in pastoral land use in a contiguous landholding, means the application of nitrogen at a rate of no more than 190kg/ha/year— (a) to all of that land, as averaged over that land; and (b) to each hectare of that land that is not used to grow annual forage crops.”
Pastoral land use means the use of land for the grazing of livestock but doesn’t include the grazing on the stubble of a crop that has been harvested after arable land use.
Thus, there is a strict maximum of 190kg N/ha/year on any hectare of pasture. It is possible to put more than 190kg N/ha/year on forage crops but only if offset by applying lower amounts on pasture.
How do I farm under 190kg N/ha cap?
The new cap on synthetic nitrogen (N) fertiliser will represent a challenge for many farmers who have been using N boosted grass as a price competitive feed source. The impact for your farm will depend on the amount of N you currently apply (affecting the size of the reduction required), its current use efficiency and how the transition period to low N fertiliser use is managed.
Working alongside farmers who have been reducing N fertiliser on their properties we have observed that: a) many farmers managed to reduce N fertiliser with very little impact on pasture harvested (and profit) by improving N fertiliser use efficiency, b) others have made good farm systems decisions and re-adjusted feed supply and demand in a way that has little impact on profit c) some made changes too quickly or at the wrong time generating significant pasture deficits that were filled with more expensive supplements, reducing profit.
Successful transition requires planning and time. It is best to do it gradually, rather than in one big step (especially if the reduction is bigger than 50-60kg N/ha/yr). It is important that clover has time to re-establish and it is actively fixing N to compensate for the lower N from fertiliser. Time is also required to ensure management systems are in place to accommodate the changes. If you are using more than 190kg N/ha/yr you need to act now to minimise any impacts on your system.
For more information, please see Reducing fertiliser use.
The regulation: National N-Cap requirements under National Freshwater Regulations
The amount of synthetic nitrogen fertiliser applied to land in pastoral land use will be limited to the maximum of 190kgN/ha/year from 1 July 2021.
All dairy farmers will need to record the tonnages of all synthetic nitrogen fertiliser applied on farm and the area it was applied to. You will then have to report to your regional council on the amount used each year.
This allows for application of a maximum application of 190kg N/ha/year averaged across grazed (pastoral) land on a farm, and no more than 190kg N/ha/year on any hectare of pasture (i.e. it is possible to put more than 190kg N/ha/year on forage crops but only if offset by applying lower amounts on pasture).
Farmers that exceed the cap will need to apply for a resource consent. Two options are available:
1) Consent for a non-complying activity requiring a synthetic nitrogen reduction plan that demonstrates how the farm will reduce their use of synthetic nitrogen each year so that from the 1 July 2023 their application does not exceed 190kg N/ha/year.
2) Consent for a non-complying activity requiring the farm to ensure that the rate at which nitrogen may enter water as a result of their application of synthetic nitrogen fertiliser does not exceed the rate that would enter water if 190kg N/ha/year was applied. This will be granted for a maximum term of 5 years.
Intensive wintering grazing
When do winter grazing rules come into effect?
New winter grazing rules come into effect on 31 May 2021. However, the Ministry for the Environment has advised that farmers with existing wintering do not have to apply for a consent until 31 October 2021.
- This means that crops going in now for next winter will not be affected by the new rules, and existing regional council rules will apply until the new consent is granted.
- This is only the case, so long as farmers do not make changes to their previous winter grazing.
- If you are planning on changing something with respect to your winter grazing in 2021, then you need to get in contact with your regional council.
DairyNZ is seeking improvements to winter grazing rules and consenting processes.
How will the area limitations be decided for intensive winter grazing? If a farm has two or more support blocks, does this apply across the board or per location?
The intensive winter grazing limits apply to a 'farm', which is defined as one or more parcels of land (that may or may not be contiguous) that are managed as a single operation. Thus, if a run-off and milking platform are managed as a single operation, they can be considered together to determine compliance with the requirements for intensive winter grazing.
Both the maximum area winter grazed during the reference period, and the 50ha or 10 percent (whichever is the greater) permitted activity criteria apply.
How do I know if I need a consent?
Use the winter grazing decision tree to help you understand next steps.
Do I need a consent for my feedpad?
If you have a feedpad, standoff pad, wintering pad and loafing pad (wintering pads and calf sheds are excluded) it must meet minimum standards (impermeable base, effluent capture and disposal and siting away from water bodies) or a consent must be applied for.
Consent must be applied for by mid-2021 unless the criteria for existing use rights applies (in which case there is a 6-month extension to the date by which a consent must be applied for). For 2020 and 2021 this means:
- Holding cattle in feedlots and other stockholding areas can continue without a consent indefinitely if carried out in accordance with the relevant permitted activity rules in the new regulations.
- Holding cattle in feedlots and other stockholding areas can also continue without a consent temporarily if all the conditions in section 20A(2) apply.
− For feedlots, consent applications must be made no later than 2 March 2021.
− For other stockholding areas, consent applications must be made no later than 31 December 2021.
Note: a consent will not be required if there is a certified freshwater farm plan that addresses any adverse effects generated by the stock holding areas. However, this requires that certified freshwater farm plans are enabled through new regulations.
Nitrate toxicity and dissolved inorganic nitrogen (DIN)
What happened to the dissolved inorganic nitrogen limit that was proposed?
The dissolved organic nitrogen bottom line concentration in streams will be reassessed in 12 months [Sept 2021].
However the focus hasn’t come off nitrogen. DIN is comprised of more than 99% of nitrate, and the NPS-FM does set a bottom line for nitrate toxicity at 95% (the concentration of nitrate that provides protection for 95% of species) or 2.4g/m3. This will be problematic in some regions, but the total number of impacted farmers is significantly less than the 1g/m3 limit initially proposed.
The timeframes for meeting this nitrate level (and all the other 22 attributes the NPS-FM sets) can occur over time, as determined by regional planning processes.
What is the difference between DIN and nitrate toxicity - and what do they mean?
There is effectively no difference between these two measures: DIN (dissolved inorganic nitrogen) is comprised of 99% of nitrate.
So, what is ‘nitrate toxicity’ and the 95% level? At very high concentrations nitrate can be toxic to aquatic organisms – the organisms living in the stream will be impacted and eventually die. Different organisms are impacted at different concentrations. The 95% level is where 5% of species in the stream will start to be impacted. (it does not mean that 5% of organisms will die.)
In the DairyNZ submission to central government about the proposals we suggested that a 90% nitrate toxicity level should be set as being appropriate for streams that are already highly modified due to centuries of land use. The government considered that a 95% level was more appropriate. This means that a nitrate toxicity bottom line of 2.4 g/m3 was set as minimum standard.
And finally, this is a long-term target. Regional Councils, together with the community, have to set a plan in place by December 2024 to say how this will be achieved within a generation.
Stock exclusion regulations
What are the dates and details I need to know around stock exclusion?
Any person who owns or controls stock must follow these rules.
Waterways (lakes and 'wide' rivers):
Stock must be excluded and kept at least 3 meters from the edge of the bed of a lake or a river with a bed greater than 1 m wide at any point on the parcel of land – includes intermittent streams but excludes drains.
NB: Buffer width doesn’t apply to a lake or river with a permanent fence already in place.
Stock (except deer) must use a bridge or culvert if they cross the waterway more than twice a month.
Any NEWLY developed farm
3 Sept 2020 Dairy cattle (and pigs)
1 July 2023
Dairy support cattle
Any terrain 1 July 2025
Beef cattle and deer intensively grazing (break-fed, fed on annual forage crops or irrigated pasture)
Any terrain 1 July 2023 Beef cattle and deer Low slope land (as identified on MfE website - generally up to 10 degree slope) MFE site 1 July 2025
All stock must be excluded from natural wetlands.
All cattle, deer and pigs Any natural wetland on a newly developed farm 3 Sept 2020 Any natural wetland identified in the regional or district plan as of 3 September 2020 1 July 2023 Any wetland greater than 0.05ha on low slope land or with a population of threatened species 1 July 2025
Exception: A bridge or culvert is not required if the river has a highly mobile bed, and stock are supervised and actively driven across the river.
For definition: Dairy cattle = cattle farmed for producing milk (including bulls and unweaned calves, but not dairy support cattle). Dairy support cattle = cattle farmed for producing milk, but not being milked (eg young stock or dried off), and grazed on land that is not grazed by dairy cattle.