Farm Forestry New Zealand

New environmental rules - the National Environmental Standards for Plantation Forestry

Chris Fowler, New Zealand Tree Grower May 2018.

Whether you are an owner of a small forest or a land owner interested in planting trees under the government’s billion trees initiative, you need to be aware of the new environmental rules that govern plantation forestry and what you should do in response. The National Environmental Standards for Plantation Forestry published by the Ministry for Primary Industries came into force at the beginning of May.

The new rules affect all aspects of plantation forestry activities. Owners of large forests and forestry management companies have the resources to establish internal policies and procedures to comply with the new rules. But how should owners of smaller forests and other land owners interested in afforestation respond?

The first step is to get familiar with the new regulations. Then you need to make sure that all forestry operations in your forest or on your property are undertaken in a manner which complies with the new regulations, irrespective of whether they are carried out by a contractor or by you.

What the NES-PF is all about

The NES-PF, the acronym often used instead of the full title the National Environmental Standards for Plantation Forestry, establishes a nationally consistent set of rules which address the environmental risks of forestry.

The rules provide certainty for those involved in the establishment and management of plantation forests. At the same time, they allow local authorities to be more stringent where variation is necessary to protect sensitive environments.

The scope of the NES-PF is broad. The regulations apply to any forest larger than one hectare which has been planted specifically for harvest – an important point to note as some of you may plant trees which you do not intend to harvest. The regulations cover eight core plantation forestry activities −

• Afforestation
• Pruning and thinning-to-waste
• Earthworks
• Stream crossings
• Quarrying for road metal
• Harvesting
• Mechanical land preparation
• Replanting.

Most activities are permitted as long as foresters meet specific conditions to prevent significant adverse environmental effects. If you are unable to meet those conditions, you will need to apply for a resource consent. If you fail or do not comply you could be prosecuted under the Resource Management Act.

Most prosecutions under the Resource Management Act succeed because it is not necessary for the relevant council to prove that the offending was intentional.

In addition, land owners, consent holders and land developers can be prosecuted for mistakes made by others working on site. This means that you can be liable for the acts and omissions of employees, contractors or sub-contractors even though you were not the person responsible for the breach.

Who will undertake the forestry operations?

You need to decide who will undertake the forestry operations. Will you complete the work yourself, or get a contractor to do the job for you?

If you decide to use a contractor, then there are several actions you should take to ensure, as best you can, that all forestry operations are compliant with the NES-PF and that you are protected as far as possible from any enforcement action, should things go wrong on site. First, assess your contractor with appropriate due diligence. Check their reputation and track record and ask questions such as –

• Do they understand the NES-PF?
• Do they have processes and procedures in place to secure operational compliance within the forest?
• Are they aware that some local rules may still be relevant?

Second is to make sure you have a forest services agreement with the contractor which contains appropriate provisions regarding environmental performance. This should include the requirement that they comply with the NES-PF and all other environmental protection laws and local authority planning rules.

The environmental protection requirements in the agreement should also require that the contractor −

• Avoids any significant adverse effects on the environment and, in particular, damage to any watercourse
• Notifies you immediately of any breach or potential breach of requirements
• Ceases work at your request in the event of significant non-compliance
• Remedies any breach or mitigates an anticipated breach at their own cost
• Indemnifies you against costs, losses, liability and damage arising from failure by the contractor to comply with the requirements.

Third, you should make reasonable efforts to understand what is happening on site and respond to any problems identified by −

• Active and regular site supervision
• Identification and recording of any problems
• Timely intervention to address those problems before they breach the requirements
• Escalation of the problem if those problems are not adequately solved.

Completion of these steps will help you and your contractor achieve operational compliance with the NES-PF, reduce the likelihood of significant adverse effects occurring during site works, and reduce the risk of enforcement action or prosecution in the event of non-compliance.

If you plan to do the work yourself then it is essential that you know what the rules are. You will need to understand and comply with the permitted activity standards which apply to the particular forestry activity you intend to undertake. If you cannot comply for any reason, you will need to apply for the appropriate resource consent from the relevant district or regional council.

Summary and more information

Owners of smaller forests and land owners interested in planting new forests need to understand the significant change in the environmental regulation of activities.

You need to choose a contractor who you trust will achieve operational compliance with the NES-PF and have a forest services agreement which records the responsibilities of the contractor regarding environmental compliance. If you choose to do the work yourself then make sure you are completely up to speed with the new rules and how to comply with them.

You can download a copy of the NES-PF from the Ministry for Primary Industries website at mpi.govt.nz. However, the published document is long and complex and not easy to understand. MPI are planning a mail-out, with a simpler explanatory leaflet, to all owners of small forests followed by a more comprehensive insert in the August Tree Grower. In addition, the NZ Forest Owners Association are producing a range of best practice guides explaining a lot more about the contents of the NES-PF. These guides are planned to be available on their website within the next few weeks.

Chris Fowler is an environmental law specialist.

National Environmental Standards for Plantation Forestry

Ministry for Primary Industries

The National Environmental Standards for Plantation Forestry took effect at the beginning of May to maintain the environmental values and increase the efficiency and certainty in the management of plantation forestry. The NES-PF provides a set of nationally consistent rules and conditions for plantation forestry which as mentioned, took effect on 1 May. Before this, regional councils were responsible for developing their own separate policies to guide plantation forestry activities and they varied from region to region.

The NES-PF was developed over an eight-year period following consultation with a wide range of stakeholders. The standards reflect the considerable feedback and technical input received by MPI during that process. It is also based on up-to-date science and good management practices.

It permits plantation forestry activities, subject to certain conditions, where it is appropriate to do so and there is unlikely to be any significant adverse effects on the environment. Greater certainty about the rules should encourage more investment in forestry, provide a boost for regional economies and reduce costs for councils and foresters.

MPI is working with the plantation forestry industry to inform owners, operators and managers about their responsibilities under the NES-PF. There has been a range of workshops in different parts of the country run jointly by the relevant regional council staff and MPI. They are well worth attending. Some simpler guidance leaflets have been produced and more are on the way

MPI will be reviewing the NES-PF after a year to ensure it is being successfully implemented. After three and five years there will be an assessment to determine how well it is achieving its objectives.