By Phil Pennington of RNZ
A huge Auckland quarry's attempt to expand has been knocked back under new wetland rules that both industry and conservationists describe as a threat.
Quarry operators say the rules will have a chilling impact on their business, on miners and on the construction industry, especially in Auckland.
Conservationists and independent commissioners say the rules invite costly court battles.
The NPS problem for Flat Top Quarry
Winstone Aggregates' plan to open up more than 20 million tonnes of extra rock at its Flat Top Quarry at Kaukapakapa, north of Auckland, has run smack into the new National Policy Statement (NPS) for Freshwater Management.
The Auckland Council had rejected its resource consent application because of the NPS' broader definition of what constitutes a wetland, said Winstone general manager David Welsh.
"This land is not ecologically rich wetland," he said.
"The land is actually a paddock and currently used for cattle grazing, with some common [bull]rush.
"The unintended consequences of this definition change are massive and go beyond this one example.
"The roll-on effects will include supply shortages of rock, gravel and sand, which will put considerable stress on timelines for current and future construction projects, as well as increase the costs to supply aggregate."
The big picture
The industry and conservationists find themselves on the same side, both blaming the Environment Ministry for springing a late change to the NPS.
Independent commissioners who had been hearing an application to extend gold mining in Otago, labelled the new rules "ambiguous", and said they invite court battles and put consenting authorities in a bad position.
The problem is with the NPS' definition of what is or is not a natural wetland, according to how much exotic "improved" pasture is in it.
The Aggregate and Quarry Association said the definition was "extremely broad" - while Forest and Bird said it was "too vague".
The problem was compounded by a last-minute blanket prohibition on modifying land that was wet only temporarily "and had a bit of sedge in it", said the association's chief executive Wayne Scott.
"The three major players in the Auckland market all have quarry extensions that will be impacted by the new regulations.
"This locks up 150 million tonnes of rock resource at one quarry alone," said Scott, referring to Stevenson Aggregates' quarry at Drury in South Auckland.
Stevenson's application for consent to expand had yet to go to Auckland Council, he said.
Most Auckland quarries, and many hundreds more around the country, would shut early under the new regulations, he added.
Auckland uses about 12 million tonnes of aggregate a year.
The problem for environmentalists
Forest and Bird said the Ministry for the Environment had tried to clarify the wetlands definition with late additions to the NPS, but only made it worse.
"Having a vague definition for wetlands in this new NPS means that potentially we're going to keep losing more," said the lobby group's freshwater advocate Tom Kay.
"And potentially we're going to capture some wetlands under this definition that we don't want to capture, which becomes unworkable for landowners."
The definition could be read so it disqualifies land for natural wetland protected status if it has either at least half of it covered by exotic species, or at least half of the species in the area being exotic, Kay said.
"It's very unclear as to what it actually means."
The Environment Ministry said it was unable to provide a response until Friday because key people who worked on this were on leave.
Where to from here?
Four major quarry companies - Winstone, Fulton Hogan, J Swap Contractors and Kaipara Ltd (which owns the huge Brookby Quarry) - have written to the Government in protest.
They were suggesting a "simple modification" of the rules, Scott said.
He believes the NPS wording would "only reward lawyers".
Two commissioners who've been hearing an application to expand gold mining in Otago also warned about litigation over the wetlands rule.
"Whatever decision we reached would provide fertile ground for expert litigation in the Environment Court," the commissioners said in their ruling.
A rule like this, that was so hard to interpret for a council, and was linked to a prohibited activity, "has no place in a National Policy Statement", they added.
They had been hearing an Oceana Gold application to expand gold mining in Otago.
This was lodged before the freshwater NPS kicked in on September 3, and they approved it.
However, it was "highly problematic" trying to apply the wetlands definition around improved pasture to "ephemeral" wetland (area that is wet some of the time) on a nearby farm, the commissioners said.
"Fortunately, we do not have to reach any conclusion on this, as it is not critical to our decision," their ruling said.
"If it were critical it could have been a close call... This is a very unsatisfactory situation."
Commissioner Jim Hopkins referred RNZ's request for comment to chair Brent Cowie, who did not respond to calls.
The Government should make a "small change" to make the rules clearer, Kay said.
"A long litigation process to clarify the definition isn't in anyone's interest."
Both Winstone and the Quarry Association said they support regulations that allowed the industry to expand in a way that provided environmental gains.
The Auckland Council returned Winstone's application on September 15 because under the freshwater NPS no application for a resource consent may be made for a prohibited activity.
The application lodged on August 27 "included the removal of a natural wetland", and this was prohibited under clause 53 of the Resource Management (National Environmental Standards for Freshwater) Regulations 2020, the council told RNZ.