Scope and procedure for issuing a water shortage direction
Under s329 of the RMA, regional councils and unitary authorities can issue water shortage directions at any time there is a serious temporary shortage of water in its region or any part of its region. The direction may apportion, restrict, or suspend:
- the taking, use, damming, or diversion of water, and/or
- the discharge of any contaminant into water.
The direction should set out the extent and manner of the apportionment, restriction or suspension associated with water shortage direction. Newspapers should be used to notify the direction in accordance with s329(6) of the RMA. Where practicable, as a matter of good public relations, a copy of the notice should be personally delivered by council staff to each affected household.
As good practice, the following information should be included in a water shortage direction:
- clear identification of the area to which the notice applies
- the reasons for the notice
- a clear statement of the extent and manner of the apportionment, restriction or suspension
- the period during which the direction applies, including the number of days and the dates involved.
Duration of direction
Section 329(3) of the RMA provides that a direction may not last for more than 14 days but may be amended, revoked or renewed by subsequent direction. If the direction is required for more than 14 days, the council must therefore renew the direction by giving a subsequent direction.
Failure to comply with a water shortage direction
Section 338(1)(d) of the RMA provides that it is an offence to contravene a water shortage direction. In the case of a natural person the maximum penalty is two years imprisonment or a fine not exceeding $300,000. For other persons, the maximum penalty is a fine not exceeding $600,000. The maximum fine for a continuing offence is $10,000 per day or part of a day during which the offence continues.
Contravention of a water shortage direction is not a strict liability offence. This means that it is necessary to prove beyond reasonable doubt that the defendant intended to commit the offence. Proving knowledge of the direction will usually be sufficient but it important that the direction is clear to reduce the potential for confusion, which is a relevant consideration in proving beyond reasonable doubt.