The Act provides for regulation, management and development of water resources, water and sewerage services.
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路 Under section 8, it is the responsibility of the national government to set up national public water works which are water works designated by the Cabinet Secretary based on the fact that: - the water resources on which they depend are cross-county in nature; are financed out of the national government鈥檚 share of national revenue; is intended to serve a function of the national government or a function transferred to the national government with the concurrence of county governments. These national public water works include water storage, water works for bulk distribution and provision of water services, inter-basin water transfer facilities, and reservoirs for impounding surface run-off. The national public water works take precedence over all other water works for the use of water or drainage of land
路 Section 10 requires the Cabinet Secretary to prepare a National Water Resource Strategy to provide the Government's plans and programs for the protection, conservation, control and management of water resources. Some of the details of such a Strategy include existing water resources and their defined riparian areas; and measures for the protection, conservation, control and management of water resources and approved land use for the riparian area. This is particularly important given the recent cases of buildings and houses being pulled down for having been erected on riparian areas and other water resource areas.
路 Section 11 establishes the Water Resources Authority (the precursor to Water Resources Management Authority/WARMA) whose functions under section 12 include: receiving water permit applications for water abstraction, water use and recharge and determining, issuing, and varying water permits as well as enforcing the conditions of those permits; collecting water permit fees and water use charges; determining and setting permit and water use fees. Property developers are therefore likely to interact and deal with Water Resources Authority (WRA) by both applying for permits and paying the set fees and charges where they must abstract for groundwater such as boreholes in order to provide water to a residential housing development.
路 Relatedly, section 23 of the Act allows the WRA to take measures for the conservation of groundwater including imposing such requirements or prohibiting such conduct and activities in relation to groundwater conservation areas as it may consider necessary. This may have implications on whether a permit for the abstraction of groundwater is granted or not.
路 The Fourth Schedule to the Act concerns the abstraction of groundwater. Section 2 provides that a person shall not construct or begin to construct a borehole or well without having first given to the Authority notice of his or her intention to do so. Such a person is required to allow the Authority to examine the well at any time and submit records within one month after the construction of such well
路 Section 36 of the Act provides that a water permit is required for any use of water from a water resource. However, section 37 provides exemptions (where a water permit is not necessary). These exemptions are relevant to affordable housing as they include: the abstraction or use of water, without employment of works, from any water resource for domestic purposes by any person having lawful access to the water resource; for abstraction of water in a spring which is situated wholly within the boundaries of the land owned by any one landholder and does not naturally discharge into a watercourse abutting on or extending beyond the boundaries of that land; or for the storage of water in, or the abstraction of water from a reservoir constructed for the purpose of such storage and which does not constitute a water course for the purposes of the Act. This provision appears to exempt most property developers from seeking water permits so long as they seek abstraction of water for domestic purposes and within the land they have lawful ownership. Section 37(3) envisages the development of regulations to provide clarity on uses of water from a water resource for which a permit is not required.
Section 38 requires any person seeking to construct water works to obtain a permit from the Authority.
路 Under section 40, an application for any permit to the WRA shall be determined within six months of application with any person opposed to the issuance of a permit allowed to challenge the decision at the Water Tribunal within 30 days of such issuance.
路 Section 43(2) provides that the use of water for domestic purposes shall take precedence over other uses when the Authority is considering issuance of permits, with the Authority expected to reserve such part of the quantity of water in a water resource that in its opinion is required for domestic purposes.
路 Section 94 of the Act provides that even rural areas that are not commercially viable to be supplied with water must be so supplied, and imposes an obligation on county governments to put in place measures to enable this including the development of point sources, small-scale piped systems and standpipes.
路 Section 108 allows the Water Services Regulatory Board to impose a sewerage services levy on all water services within the area of a licensee, to cover a reasonable part of the cost of disposing of the water supplied within those limits.
路 The Cabinet Secretary has since promulgated Regulations to give further effect to the statutory provisions. These are: Water Services Regulations 2021 which revoked the 2012 Regulations; Water Harvesting and Storage Regulations 2021; and Water Resources Regulations 2021 which provides for application and issuance of permits for abstracting from water resources.
