Obligations on water suppliers to keep drinking water safe

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Campylobacter outbreak in Havelock North

The recent water crisis in Havelock North is the biggest outbreak of waterborne disease ever recorded in New Zealand. According to the Hawke’s Bay District Health Board, approximately 5200 people, one third of the town’s population, were struck by the campylobacter disease, which contaminated the town’s water supply.

Along with the widespread sickness, the outbreak has been linked to the deaths of two elderly residents, hospitalised 22, caused closures to schools and has brought about significant commercial implications.

A sense of unease and distrust among the community will continue to linger until such time as the Hastings District Council (HDC) has proven itself to be a responsible and reliable supplier of safe drinking water.

The cause of the outbreak is still unknown. Whether this was caused by an unpreventable natural occurrence, a careless council breaching their statutory obligations, or, whether the regulatory and statutory framework for drinking water are inadequate in protecting against the effects of waterborne diseases, these are all claims that will need to be investigated.

New Zealand’s drinking water management framework

New Zealand’s drinking water management structure, which supports the provision of clean and safe drinking water to communities, includes several acts, regulations and National standards.

The Ministry of Health’s Drinking Water Standards for New Zealand (DWSNZ) set maximum acceptable values for organic, inorganic and bacterial elements in water for public use. The values are at a level that requires the water supplier to act before water quality can cause adverse health effects. However, until 2007, compliance with these standards was a voluntary mechanism with no legal standing.

Yet, the obligations on suppliers of drinking water to provide safe drinking water was strengthened when the Health (Drinking Water) Amendment Act 2007 amended the Health Act 1956 in 2008 (HDWAA2007), requiring water suppliers to ensure clean drinking water supplies. The amendment meant water suppliers would need to take all practicable steps to comply with the DWSNZ which would be achieved by implementing Water Safety Plans (WSP), which must plan to reduce the likelihood of contaminants entering supplies.

Drinking Water Suppliers, whether they are district councils, schools, or maraes, are all monitored by the District Health Board (DHB). The regional DHB’s employ Drinking Water Assessors who ensure the suppliers’ compliance with the HDWAA2007, the DWSNZ and the supplier’s WSP. The Assessors are also tasked with notifying any suspected non-compliance, approving WSPs, and reporting any complaints and providing information to the Ministry.

In addition to the obligations on drinking water suppliers under the DWSNZ and enforced by the HDAWAA2007, the Ministry for the Environment introduced a National Environmental Standard for Sources of Human Drinking Water in 2008. The NES for Drinking Water is a regulation made under the Resource Management Act 1991, which requires regional councils to ensure that effects on drinking water sources are considered in decisions on resource consents and regional plans.

This regional level regulation plays a major role in the protection of safe drinking water as the consent holder, in this case the Hastings District Council, must comply with the consent conditions handed down by Regional Councils, such as ensuring that water bores are safe and correctly sealed.

This water management framework seems to be a well-integrated system, which involves many different stakeholders from the water suppliers through to central government. Despite drinking water being safeguarded by regulatory bodies at all levels and from all angles, the Havelock North water crisis has been the tragic catalyst for a re-examination of the current system.

Drinking water standards New Zealand

In the context of any water contamination incident, the water supplier needs to show they have been testing and reporting at the correct frequencies and that they have communicated the outcomes of the test results within a reasonable amount of time, as per their WSP.

Testing frequency requirements

Looking at the testing requirement, under the DWSNZ guidelines the number of samples and the required frequency of collection is determined by several factors: the size of the population served by each water source, whether the water is chlorinated and the depth of the groundwater (the deeper the water is, the more secure it is).

Hastings District Council tests the water twice a week, which is the minimum frequency to comply with the DWSNZ. Under section 69H inserted by the HDAWAA2007, compliance with the DWSNZ means to take all steps that the water supplier is reasonably able to do in the circumstances to meet the standards, having particular regard to their availability and affordability, and also with regard to the nature and severity of harm that would result if the standards are not met; and what is known about that harm.

Accordingly, water suppliers will be allowed to supply water that does not meet the standards if they have demonstrated that they have taken all the steps they could have to mitigate the possible risks and that they understand the risks.

Contingency plans

Water suppliers are required to introduce and implement WSPs. The Ministry of Health has a guide on how to prepare a WSP and specific guidance on the actions to take to protect public health should water contamination happen. Examples of the suggested actions to be taken are to notify the Ministry of Health and to warn consumers not to draw water from the contaminated source.

It was a matter of hours between the HDC receiving the indicator results confirming the possible e-coli present, their communication of these results and their actions undertaken to mitigate the effects of the possible campylobacter outbreak.

However, the way HDC handled the situation is being heavily scrutinised. Media and residents are saying that the large number of the community becoming ill very quickly warranted a state of emergency type protocol being activated with the message to avoid the drinking source completely and this message to be broadcasted everywhere.

A state of emergency wasn’t called, it is questionable whether council informed people in a timely manner, they continued to supply water under a boil water notice and the chlorination of the water occurred 8 hours after the positive E.coli test result came to be known. It is likely that the response by HDC will be a key factor in whether they will be seen as acting reasonably to mitigate the effects of the contaminated water.

Compliance with the Water Management framework

Compliance with DWSNZ is incentivised through a water grading system used by the Ministry of Health. Non-compliance with the DWSNZ leads to demerit points being imposed on drinking water suppliers which affects their overall water quality grade.

The HDAWAA2007 inserted section 69ZZQ to 69ZZX of the Health Act, which set out the offences and the applicable penalties for non-compliance of the DWSNZ and negligent management of drinking water, punishable by a maximum fine of $200,000. The offences relating to the failure to protect the source of the drinking water are strict liability offences, however if it can be shown that there was lack of intention and that all reasonable steps were taken to prevent the commission of the offence, this will still amount to a good defence.

Waterborne illness in New Zealand is alarmingly common with an estimated 18,000 cases every year. 3500 people in Queenstown in 1984 had gastroenteritis after the town’s water supply was contaminated by raw sewage, 170 people in the Waikato in 1997 had cryptosporidium and again in Hawke’s Bay in 137 students at Te Aute College were hit with campylobacter in 2001.

The amendments to the Health Act in 2008 increased the penalties for negligent management of drinking water significantly. However, looking at the statistics of waterborne disease in a country which prides itself on being ‘100 per cent pure’, the legislation may be ineffectual in deterring contamination to drinking water.

The independent inquiry

A state-initiated independent inquiry into the contamination of Havelock North’s water supply was launched mid-September and the report will be released in March of 2017.

The inquiry will focus on how the water supply became contaminated, the response of both local and central government and how to stop similar outbreaks in the future. The inquiry will not be considering any matters of civil, criminal or disciplinary liability, structural arrangements of local government, or any issues about water, aquifer and catchment management unrelated to the Havelock North contamination. If the inquiry finds that the Hastings District Council failed to manage its assets to such a degree that it was negligent, then proceedings from individuals or the Regional Council may follow.

The inquiry provides for an opportunity to look into the overall effectiveness of the water management framework in order to prevent this happening again. The water crisis in Havelock North is not unprecedented in New Zealand. It reminds us how reliant we are on safe drinking water.