Existing Marine Farming Rights

Leigh Marine Reserve (Credit: Raewyn Peart)

National Environmental Standards for Marine Aquaculture

The Resource Management (National Environmental Standards for Marine Aquaculture) Regulations 2020 (NESMA) came into force on 1 December 2020.  The drivers behind its preparation were:

  • Pending expiry of many existing marine farm consents around the country between 2020 and 2025
  • Increased regulatory certainty and consistency
  • Appropriate management of environmental effects
  • Increased industry confidence in order to promote investment

NESMA is focused on existing marine farms and provides a set of national rules that replace regional council rules for:

  • Replacement coastal permits
  • Farm realignment
  • Changing farmed species

It applies to both ‘inshore’ (within 500m of mean high-water springs or specifically identified areas) and ‘offshore’ marine farms (5 specifically identified farms and then other farms further than 500m from mean high-water springs and outside identified areas. 5261

Replacement coastal permits are:

  • A discretionary activity in areas identified in a regional policy statement or plan as being “inappropriate” for aquaculture, unless the council has elected to include more stringent rules in its plan for these areas (e.g. non-complying activity status or prohibited activity status). 5262
  • A restricted discretionary activity in other areas, unless the council has elected to include more lenient rules in its plan for these areas (e.g. controlled or permitted activity status).  The matters of discretion differ depending on whether the proposal: 5263
  1.        Includes a change to consented species
  2.        Includes a change to the surface and/or sub-surface structures used
  3.        Involves realignment of the farm
  4.        Includes fed aquaculture
  5.        Relates to inshore or offshore farm
  6.        Is in an outstanding area (being an outstanding natural feature,     outstanding natural landscape, or area of outstanding natural character). 5264

As a starting point, there is a preclusion against public and limited notification for applications for a replacement consent that involves not changes to the farm and farmed species, a change in species only (except fin-fish species),  of species (except fin-fish species) and subsurface structures.  An exception is provided for limitated notification which is available of the applicant has not undertake the tangata whenua engagement process specified within the 12months prior to lodging the application, or if it fails to include the report to council describing engagement, the effects of the proposal, and how those are proposed to be addressed. 5265

RMA protective provisions

Existing aquaculture consent holders have two key protections, which apply even if the consent holder is applying to establish a different aquaculture activity, although it must be within the same space.

  • When a resource consent is due to expire if the application for a new consent is made at least 6 months before the expiry of the existing consent and the activity is the same, then the consent holder can continue to operate under the existing consent until a new consent is either declined or granted and all appeals determined even if the existing consent expires during that time period.  There is also a chance that the consent holder will be able to continue to operate if it files its application between 6 and 3 months before the existing consent expires, if the consent authority decides this is acceptable. 5266

Interestingly, on its face it appears that a applications for replacement consents under NESMA that involve a change to species, structures, or alignment, may not receive this protection and be able to continue to operate, as the new consent would arguably be for a different activity.  the same

  • If a consent is due to expire and an application has been lodged for an aquaculture activity in the same place, the existing consent holder is notified and thus has an opportunity to lodge a competing application which is given priority in terms of processing.

It is important to note that these provisions do not amount to a right of renewal, or even a presumption that the existing consent will be renewed.

  1. Reg 4.

  2. Regs 12 and 13.

  3. Parts 3 and 4.

  4. Reg 5. 

  5. Reg 24, 44, Sch 6.

  6. S 124 RMA. 

Last updated at 1:07PM on August 24, 2021