The Water Act defines Water Resource to mean any lake, pond, swamp, marsh, stream, watercourse, estuary, aquifer, artesian basin or other body of flowing or standing water whether above or below the ground. Under Section 3 of the Act, every water resource is vested in the State. Section 5 provides that the right to use the water from any water resource is vested in the Minister. The Minister shall have and may exercise control over every water resource in accordance with the Act. Section 6 provides that no conveyance or lease shall convey transfer or vest in any person any property or right or interest or privilege in respect of any water resource. Property rights, interests or privileges in water resources shall be acquired only under the Act. Under Section 25 a permit is required for any use of water from a water resource, any drainage of any swamp. The discharge of a pollutant into any water resource or any other purposes prescribed by rules made under the Act. It shall be an offence to use water from a water resource without a permit except in 3 cases set out in Section 26.
A permit is not required
1. For the abstraction of the use of water without the employment of works from any water resource for domestic purposes by any person having logged for access for water. Works are defined as any structure, apparatus, device or thing for carrying, conducting or utilising water but it does not include hand utensils. This means that a person who has lawful access to the water i.e. a riparian owner or a person with easement may use water without a permit in two situations one that he is not using equipment and two that the purpose is domestic.
2. A permit is not required for any development of ground water where none of the works necessary for the development are situated within a 100 meters of any body of service water. It is being assumed that one is using equipment not if one is just using hand utensils. So long as the works are not situated near a groundwater conservation area. Groundwater conservation is defined in Section 44 as any area in which special measures for the conservation of groundwater are necessary in the public interest. Special measures may be necessary to protect water for public supplies or for supplies for use in industry or agriculture. The whole of Nairobi has been declared as a groundwater area so to construct a borehole, one would need a permit.
3. A permit is not required for the storage of water or the abstraction of water from a dam which is constructed in a channel or depression which does not constitute a watercourse.
Under Section 27 any person who is not the holder of the permit but construct or employs works to use water commits an offence. The holder of the permit which authorises the construction of works which will be situated on another person’s land shall acquire an easement.
The conditions of the permit
The permit may provide for charging for the use of the water which basically means that there may be a charge whereas before water was for free the government may decide there is a charge. In determining an application for a permit the govt takes into account
1. Existing lawful uses of the water;
2. Efficient and beneficial use of water in the public interest;
3. The likely effect of the proposed use on the water resource and on other users;
4. The strategic importance of the proposed use;
5. The quality of the water in the water resource and the probable duration of the activity.
Section 32 provides that the use of water for domestic purposes shall take precedence over the use of water for any other purpose. Under Section 36 the Act creates a provision which allows the cancellation of all existing permits in an area experiencing water stress followed by fresh applications and a re-allocation of the resource.
Under Section 40 a permit may be varied and under Section 37 it may be cancelled. The variation or cancellation of the permit may be taken if the permit holder contravenes the conditions of the permit.
Section 7 of the Act establishes an authority known as the Water Resources Management Authority. The task of the Authority is to allocate water resources and to regulate and protect the quality of water resources. Applications for permits for water use are made to the Authority and not to the Minister. The Authority is created as a parastatal body to allocate water resources. The Authority is required to establish regional offices which are to be established within catchment areas. Under Section 14 the Authority is empowered to designate a defined area from which rain water flows into a watercourse to be a catchment area. The country has been divided into 7 catchment area. The reason for managing water on the basis of catchment areas is self-evident. The idea is to manage the resource on the basis of the whole catchment not on the basis of administrative districts.
Section 11 requires the Minister to formulate a National water resources management strategy spelling out how the water resources of Kenya shall be managed, used, developed and conserved. The water resources management authority is required to formulate catchment area management strategies. The catchment area management strategies shall be consistent with the National Water Resources Management strategies.
The Minister if also required to determine for each water resource a reserve. A water reserve is defined in the Act as the quantity and quality of water which is required to satisfy basic human needs for all people who are or maybe supplied from the water resource and secondly the quantity and quality of water required to protect aquatic ecosystems in order to secure ecologically sustainable development and use of the water resource. Having determined the reserve the Minister is required to classify each water resource and specify for each water resource the quality objectives and the dates from which those objectives will apply. Resource quality objectives is defined by the Act to mean the level to be achieved and maintained.