Division 5 of Part VII of the Environment Act 2000 contains a single section, and it is the Act’s answer to water scarcity.
Section 95(1) — the declaration
Where, after receiving a report from the Council, the Director considers that there has been or is likely to be drought conditions resulting in:
(a) a reduction or alteration in the flow or supply of water in a water source which is having, or is likely to have, a detrimental effect on the environment; or
(b) a significant alteration of a watercourse having, or likely to have, such an effect,
he may, by notice in the National Gazette, declare that this Division applies in respect of the period and the water source or part of it specified, or until earlier revoked by a further gazetted notice.
- A report from the Council must have been received first. The Director cannot declare on his own initiative.
- The test is anticipatory — conditions that have been or are likely to be drought conditions, having or likely to have a detrimental effect.
- The declaration is specific — to a period, and to a water source or part of one. It is not a general emergency power.
Under section 19(1)(c)(iv) the Council’s functions include reporting to the Minister on the management of water resources, which is where such a report originates.
Section 95(2) — what the Director may then do
(a) require the holder to operate water works, or allow contaminants to be released into water, for a reduced period; or
(b) suspend the operation of conditions in the permit relating to the taking of, or release into, water,
during the period of, and subject to the conditions endorsed on, the notice.
Paragraph (b) works in both directions. Suspending a condition may relax a requirement that has become impossible in drought — a minimum release, for instance — or remove an entitlement to take at a stated rate. What replaces it is the set of conditions endorsed on the drought notice.
The power to suspend or cancel a permit under section 72 does not affect the operation of section 95. The drought power is separate, and it does not require a show-cause process or any default by the holder.
Section 95(3) — the order of priority
(a) domestic purposes;
(b) watering stock;
(c) irrigation;
(d) industrial purposes or generation of hydro-electric power.
| Priority | Use | Comment |
|---|---|---|
| 1 | Domestic purposes | Also outside the vesting altogether under s 79(3)(a), and free to take under ss 80 and 81 |
| 2 | Watering stock | Also a free-taking purpose under ss 80(1)(b) and 81(1)(a) |
| 3 | Irrigation | Agricultural production ranks above industry |
| 4 | Industrial purposes or hydro-electric generation | The first to be cut, and the last to be restored |
The restriction may go only to the extent of ensuring water for the minimum essential need of users. It is not a power to reallocate water generally, or to prefer one commercial user over another.
And the order of priority is mandatory — “shall restrict… in the following descending order”. A notice that cut domestic supply while leaving an industrial take intact would not comply.
The priority also sits with section 5(b), which makes the maintenance of sources of clean water and subsistence food sources a matter of national importance that every decision-maker shall recognise and provide for, and with the preservation of customary rights to the use of water in section 79(2).
Section 95(4) — contravening a drought notice
A person who acts in contravention of a notice under this section is guilty of an offence.
Penalty: a corporation — a fine not exceeding K50,000.00; a person other than a corporation — a fine not exceeding K25,000.00 or imprisonment for up to one year, or both. Default penalty: K5,000.00.
The default penalty should be read with section 116 on continuing offences — continuing to take water in breach of a drought notice is not a one-off.
The Director’s other levers in a water shortage
- Section 81(2) — a written notice to a riparian owner or occupier specifying the maximum quantity of water that may be taken during a specified period. See rights to take and use water.
- Section 88 — official investigations, including measures for conserving water and regulating the flow, and removing obstructions from a bed or bank.
- Section 101 — an Environment Protection Order.
- Section 106 — an Emergency Direction.
- Section 76 — emergency authorisations, which can make otherwise unlawful conduct lawful under section 10(1)(f).
If a drought is declared
- Read the National Gazette notice — the water source or part covered, and the period.
- Read the written notice served on you, and the conditions endorsed on it. They replace the suspended permit conditions.
- Check the priority order — restriction may only go so far as securing minimum essential needs, domestic first.
- Adjust operations immediately; the offence and the default penalty both bite.
- Keep records of takings and releases during the period.
- Communities should tell the Director, in writing, if a declared restriction is not in fact protecting domestic supply or stock water — the priority order is mandatory.
- Watch for the revocation notice; the declaration runs until the specified period ends or it is revoked by gazettal.
Sources
- Environment Act 2000 — ss 5, 10, 19, 72, 76, 79–81, 88, 95, 101, 106, 116; Part VII Division 5
- Constitution — Preamble, Fourth National Goal
Before relying on anything here, read the current text of the Environment Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.