The Water (Amendment) Bill (National Assembly Bills No. 33 of 2023)

REPUBLICOFKENYA

PARLIAMENT

NATIONAL ASSEMBLY BILLS

(Bill No. 33 of 2023)

THE WATER (AMENDMENT) BILL, 2023

(A Bill published in the Kenya Gazette Supplement No. 108 of 4u July 2023 and passed by the National Assembly,with amendments,on 23rdAugust 2023.)

THEWATER(AMENDMENT)BILL,2023

A-Bill-for

ANACTofParliamenttoamend theWaterAct,2016 toprovide for Public Private Partnerships arrangements and for connected purposes ENACTEDbytheParliamentofKenyaas follows--

• 1.This Act may be cited as the Water (Amendment) Act,2023.
• 2.Section 2 of the Water Act,2016 (hereinafter referred to as "the principal Act'") is amended—
• (a) by inserting the following new definition in proper alphabetical sequence—

"contracting authority"means-

• (a) at the national government level, a state department, agency or state corporation which intends to have itsfunctionsundertaken bya private party; or
• (b) at the county government level, the county government or county corporation which intends tohave its functions undertaken by a private party; and
• (b)by deleting the definition of"bulk water"and substituting therefor with the following new definition——

"bulk water" means supply of water in bulk by a water works development agency or the Water StorageAuthority towater serviceprovidersfor retail;

• (c) by deleting the definition of "water services provider"and substituting therefor.with the followingnewdefinition-

"water services provider" means a company, agency,authority,state corporation,publicbenefit organization or anyotherpersonprovidingwater Short title.

Amendmentof section2of No. 43 of 2016.

servicesinaccordancewithalicenceissuedbythe RegulatoryBoardfor the service areas specified in thelicence.

3.Section 32-of the-principal Act is amended in-Amendmentof subsection(1)by inserting thefollowingnewparagraphs section 32 of No. immediately after paragraph (f)— 43 of2016.

No.14 of2021.

• (g) enter into a bulk water purchase agreement withaninvestorin accordance with theprovisions of the Public Private Partnerships Act;
• (h)enterintoabulkwater purchase agreementwithawaterworks development agency.
• 4.Section 68of theprincipalAct is amended by inserting the following new paragraph immediately after paragraph (b)—
• (ba)operate water works and provide waterservices-—

No.14 of 2021.

• i by entering into abulk water purchaseagreementwithan investorin accordancewiththe provisionsof the Public PrivatePartnershipsAct,2021;
• (iii)asawaterservicesprovider untilsuchtimeasthewater worksdevelopmentagency transfers responsibility for the operation and management of waterworkstoacounty governmentorwaterservices provider in whose area of jurisdiction thewater worksis located:
• (ii) byenteringintoabulkwater purchaseagreementwitha water servicesprovider;or

Provided thatanationalpublic waterworksshallnotbetransferable toacountygovernment.

Amendment of section68of No. 43of2016.

5. The principal Act is amended by inserting the following new section immediately after section 68—-

68A. (1) Each water works devetopment agency shall be licensed by the RegulatoryBoardwithrespecttothe functions under section68(ba)of thisAct.

works development Licensingofwater agencies.

• (2) The Regulatory Board shall, upon commencementof this Act and asmaybe necessary thereafter,and with the approval of the Cabinet Secretary,publish in the Gazetteandonitswebsitethestandardsand conditions for licensing of water works development agencies under this section.

6. Section 69 of the principal Act is amended 3. (a)by deleting subsection(1) and substituting therefor thefollowing new subsection—

• (1) As soon as possible, following the commissioningofwaterworksotherthan nationalpublicwaterworks,thewaterworks development agency shall enter into an agreementwithanycountygovernmentor waterservicesprovidertoprovidewater serviceswithinwhoseareaofjurisdiction theservices arelocated.

5. (b) in subsection (2), by deleting the words ",the joint committee,authority"; 6. (c) in subsection (3), by deleting the words "the joint committee, the authority". 7. Section 72 of the principal Act is amended in sub section (1)— 8. (a) by inserting a new paragraph immediately after paragraph (b)—— 9. (ba)evaluate and approve water and sewerage tariffs,bulk water tariffs andapprovetheimpositionof such tariffsinline with consumer protectionstandards foruseof

Insertion of anew section68Ain No.43 of 2016.

Amendmentof section 69 of No. 43 of 2016.

Amendment of section72ofNo. 43 of 2016.

water for domestic,commercial and irrigation purposes;

• (b) by deleting paragraph (c) and substituting therefor the-followingnew-paragraph-
• (c) issue and set conditions for licensing of waterservices providers.

8. Section 75 of the principal Act is amended in subsection (1)—

• (a) by deleting paragraph (a)and substituting therefor the following new paragraph-

(a)their names, telephone numbers, electronic mail and postal addresses;

• (b) in paragraph (c)by deleting theword "accredited" and substituting therefor the word "licensed".
• 9.Section 93 of theprincipal Act is amended by-

Amendmentof section93of No. 43of2016.

• (a) deleting subsection (1) and substituting therefor the following new subsection—
• (1)A contracting authority may enter intoapublicprivatepartnershiporpublic partnerships for the exercise and performance by another person as alicensee, ofsome or all of itsfunctions withrespect to a part or the whole of its area of water serviceprovision.
• (b) deletingsubsection (3) and substituting therefor the following new subsection—
• (3)Where the person entering into an agreementwith the contracting authority ownsorpossesses assetsorinfrastructure usedfor theprovision ofwater services,the agreement shall set out the terms and conditions under which the assets may

Amendmentof section75ofNo. 43of2016

continue tobe used.

• (c)Inserting the following new subsections immediately aftersubsection(3)

(3A)Where a person entering into an agreement with the contracting authority fails to complete the project,the contracting authorityshall takeuptheremainingworks and complete the project.

• (3B)Where a party toanagreement andthecontractingauthorityjointlyor concurrently participate in undertaking the project works, the party and the contracting authorityshallundertake mutual coordination,integration and consultation in the implementation of the whole project.

(3C) Subject to subsection (3B) each party toanagreement shallselect identifiablecomponentsof theprojectand set out specificfinancial andnon-financial responsibilities attachedtoeachpartyon each ofthe components of theproject.

10.Section100of theprincipalActisamendedby inserting thefollowingnewsubsectionsimmediatelyafter subsection (3)—

• (4) Notwithstanding any provision in this Act, all bulk water supply services which are primarily intended to supply water inbulktoawaterservicesproviderina county or counties other than the county in which thebulkwaterabstractionworksare located shall beundertakenbywaterworks development agencies establishedunder section65ofthisActandlicensedunderthis section.

(5)The Cabinet Secretary may make regulations prescribing the manner in which Amendmentof section100of No. 43of2016.

an applicationfor a licencefor bulkwater supplyshallbemade.

• 11.Section 114of the principal Act is amended in the works developmentagency"immediately after the word "counties".

12.The principal Act is amended by deleting section 119 andsubstituting therefor thefollowingnew section—

Establishment of 119.(1) There is established a Water theWater Tribunal.Tribunal.

(2)TheWater Tribunal shall consist of thefollowingmembersappointedbythe Judicial ServiceCommission—

• (a)a Chairperson who shall be an advocateof theHighCourtof Kenya with not less than ten years' post qualification experience;
• (c) two persons who possessa degree university recognizedinKenya andat least five years'experience in a relevantfield.
• (b) two persons one of whom shall be a registered civil engineer and theother aregisteredwater engineer,withatleasttenyears' experience; and

(3)The Chairperson and members of theWater Tribunal shall beappointedfora term of threeyears andshall beeligiblefor reappointmentfor onefurther termofthree years.

(4)The Chairperson and members of theWater Tribunalshallbe paidsuch remunerationandallowancesastheJudicial Service Commission may,in consultation withtheSalaries sandRemuneration

• Amendmentof scetion-114-ofNo.43of2016.

Repeal and replacementof section119of No.43 of 2016.

Commission, determine.

Section2ofNo.43of2016whichit isproposed toamend—

2.Interpretation

In this Act,unless the context otherwise requires-

"Authority"means theWaterResources Authority established under section 11;

"aquifer" means an underground geological formation able to store and yield water;

"basin area"means an area designated as such under section 24;

"basin water resources committee"means a water basin organization establishedunder section25;

"bulk water" means water supplied to·a water services provider by the water services provider making the supply;

"Cabinet Secretary" means the Cabinet Secretary responsible for mattersrelatingtowater;

"catchment area" means an area that is part of a basin designated as such under

section 22;

"charges" in relation to the use of water from a water resource, includes fees, levies and premiums of any kind;

"county government" means a county government as provided for under Chapter 11 of the Constitution Kenya;

"county government executive" means the county executive committee member responsible for matters relating to water;

"cross-county water services provider" means a water services

"easement" means the right to occupy so much of the land of another asmaybenecessaryfororincidentaltotheconstructionormaintenanceof works authorised,or the exercise of rights conferredby a permit;

"Equalisation Fund"means the Equalisation Fund provided for in Article 204 of the Constitution;

"Fund"means the Water Sector Trust Fund established in section 113;

"ground water"means the water of underground streams, channels,artesianbasins,reservoirs,lakesandotherbodiesofwaterinthe ground, and includes water in interstices below the water table;

Authority,a water basin resources committee,or theRegulatoryBoard,to exercise the powers of an inspector under this Act;

"in-stream habitat" includes the physical structure of a water resource and the associatedvegetationin relation to thebed of thewatercourse;

"international waters" means the ocean water beyond territorial waters;"Land and Environment Court"means the Land and Environment Court asestablishedunder article162(2)of theConstitution;

"landholder"in relation to land,means the registered owner of the land or the person inwhom the land is otherwise vested bylaw,and includes--

• (a) any person who by any established right, custom or estate is entitledtobetheholderorpossessorofland;
• (b) anyperson lawfully holding or occupyingland in accordance with theprovisionsofanylawempoweringthe allotmentofland upon thepromiseof title,subject to thefulfilmentby theallottee ofprescribed conditions;and
• granted under the Mining Act, 2016 (No. 12 of 2016);

"licence"means a licence in force under this Act;

"licensee"means a water service provider licensed by the Regulatory Board under this Act;

• "limits of supply", in relation to a water undertaking, means the limits withinwhich the licenseeisfor the timebeing authorised to supplywater;

"Management Board" means the Board of the Authority established under section14;

• "management of water resources" means the development, augmentation, conservation or protection of a water resource;

"peri-urban water services"means services provided in peri-urban

"permit"means a permit for the time being in force under this Act;

"person"includes a company,association or other body of persons whether incorporated or unincorporated;

"pollution",in relation to a water resource,means any direct or indirect alteration of the physical, thermal, chemical or biological properties of thewater resource so as tomake it—

• (a) less fit for any beneficial purpose for which it is oris reasonably be expected to be used;or
• (b) harmful or potentially harmful to——
• (i) the welfare, health or safety of human beings;
• (ii)any aquatic or non-aquatic life or property; or
• (iii) the environment;

"public consultation", in relation to any application made, or action proposed to be taken under this Act, has the meaning assigned to it in section139;

"reasonable water use" means the use of water without wastage; establishedundersection70;

"reserve" in relation to a water resource, means that quantity and qualityofwaterrequired

• (a)tosatisfybasichuman needsfor allpeoplewho areor maybe suppliedfrom thewaterresource; and
• (b) to protect aquatic ecosystems in order to secure ecologically sustainable development and use of thewater resource;

"resource quality", in relation to a water resource, means the quality of all the aspects of a water resource including--

• (a)thewaterquality stipulatedforthereserve;
• (b) the quantity, pattern, timing, water level and assurance of instream flow;
• (c)thephysical,chemical and biological characteristics of the water:
• (d) the character and condition of the in-stream and riparian habitat; and
• (e) the characteristics, condition and distribution of the aquatic biota;

"resource quality objectives",in relation to a water resource,means forthewaterresource;

"riparian habitat" means the dynamic complex of plant, animal andmicro-organism communitiesandtheir non-living environment adjacent to and associated with a watercourse;

"rural water services"means services provided in rural areas as shall bedefined by theRegulatoryBoard;

"Salaries and Remuneration Commission"means the Salaries and RemunerationCommissionestablishedunderArticle230ofthe Constitution;

"sanitation" means the provision of on-site sanitation services includinglatrines,septic tanks and conservanciesincluding the associated exhausterservices;

"sector wide approach" means coordinated development in the sector toachieve nationalgoals,effectiveness of funds and ownership of government institutions including sector wide planning and coordination, nationalmonitoring and information and nationalimplementation concepts;

infrastructure for transport, storage, treatment waste water originating fromcentralizedand decentralizedsystemsbutshallnotinclude household sanitationfacilities;

"spring" means water emerging from beneath the surface of the ground other than as a result of drilling or excavation operations;

"state organ" has the meaning assigned in Article 260 of the Constitution;"stream"means the water contained in a watercourse,and includes a river;

"supply of water in bulk" means a supply of water to a licensee for distribution by oron behalf of the licensee taking the supply;

"swamp"means any shallow depression in which water collects either intermittentlyorpermanentlyandwherethereis asmall depthof surfacewater orashallowdepthofgroundwater and aslightrangeof fluctuation eitherin thesurfacelevelof thewaterorof thegroundwater level so as to permit the growth of aquatic vegetation;

"transboundary waters"meanswaterresources shared betweenKenya and another State;

shall be defined by the RegulatoryBoard from time to time;

"use of water", in relation to a water resource includes, without any limitation to—

• (a) abstraction,obstruction,impoundment or diversion of water forming part of a water resource;
• (b) the discharge ofmaterialsor substancesinto awaterresource or
• (c) any activity of a kind prescribed by Regulations under this Act,in relationtoawaterresource;

"watercourse" means any natural channel or depression in which water flows regularly or intermittently,unless declared not to be a watercourseunderthisAct;

"water resource" means any lake, pond, swamp, marsh, stream, watercourse,estuary,aquifer,artesianbasin or other body of flowing or standing water,whether above or below the ground,and includes sea water andtransboundarywaterswithin theterritorialjurisdiction of Kenya;

"water right" means the right to have access to water through a water permit;

"water resource management" means the conservation, including soil and water conservation, protection, development and utilization of water resources;and

"water services" means any services of or incidental to the supply or storageofwater andincludes theprovisionofsewerageservices;

organization or other personprovidingwater services under and in accordancewith alicenceissuedbytheRegulatoryBoardfor theservice areas defined by the licence;

"water storage" means a location or structure where water is stored for future use;

"Water Storage Authority" means the National Water Harvesting and StorageAuthorityestablishedinsection30;

"Water Storage Board" means the Board of the National Water Harvesting andStorageAuthority established under section31;

"Water Strategy" means the Integrated National Water Services Strategyformulated by the CabinetSecretaryin section64;

"water table"means—

• (a)imperviousgranular or detrital material, the upper surface of the bodyoffreewaterwhich fills all openings inmaterial that is sufficientlypervious topermitpercolation;and

(b)in fractured impervious rocks and in solution openings, the surface at the contact between thewaterbodyin the openings and the overlying ground air;

"water user" means a person using water from a water resource; "water works development agencies" means the agencies of the national government established under section65;

"works" means any structure, apparatus, contrivance, device or thing for storing, recharging, treating, carrying, conducting, providing or utilizingwater orliquidwaste,but doesnotincludehand utensils or such other contrivances asmaybeprescribed byRegulationsmadeunder this Act.

Section32 of No.43of2016which it isproposed to amend

32.Powers and functionsof theWaterStorageAuthority

• (1) Thefunctions and powers of theWater StorageAuthorityshall be to—

2. (a)undertakeonbehalfof thenationalgovernment,the development ofnationalpublicwaterworksfor water resourcesstorage and flood control; 3. (b)maintain and manage national public water worksinfrastructure forwaterresourcesstorage; 4. (c) collect andprovideinformation for theformulation bythe CabinetSecretaryof thenationalwaterresourcesstorage and flood control strategies; 5. (d) develop a water harvesting policy and enforce water harvesting strategies; 6. (e) undertake on behalf of the national government strategic water emergencyinterventions during drought;and 7. (f)advise the CabinetSecretary on anymatter concerningnational publicwaterworksforwaterstorageandfloodcontrol.

(2) The Water Storage Authority may appoint agents for the operation, management, maintenance and safety of any storage infrastructure that it has developed.

(3)TheWaterStorageAuthorityshall have suchotherpowers and

Section68of No.43of2016which it isproposed toamend

68.Powers and functions of the water works development agency The powersandfunctionsof the water worksdevelopment agency shall be to ——

• (a)undertake the development,maintenance and management of the nationalpublicwaterworkswithinitsareaofjurisdiction;
• (b)operatethewaterworks andprovidewater servicesasawater service provider,until such a time as responsibility for the operation andmanagementof thewaterworksarehandedover to a county government,joint committee,authority of county governments orwater servicesprovider within whose area of jurisdiction orsupply thewaterworksislocated;
• (c)providereserve capacityforpurposes ofprovidingwater services wherepursuant to section 103,theRegulatoryBoard orders the transferofwater services functionsfromadefaultingwater servicesproviderto anotherlicensee;
• (d) provide technical services and capacity building to such county governments and water services providers within its area as may be requested;and
• (e) provide to theCabinet Secretarytechnicalsupport in the dischargeofhisorherfunctionsundertheConstitutionand this Act.

Section69ofNo.43of2016which it isproposed toamend

69.Handoverofcompletedworks

(1)As soon as possible,following the commissioning of the waterworks,the waterworks development agency shall enter into an agreement with the county government, the joint committee or authority of the countygovernmentswithinwhose area ofjurisdiction thewaterworks is located,jointlywith the water service provider within whose area of supply the water works are located for the use by the joint committee, authority or water services provider,as the case maybe,of the water works toprovide water services.

(2)The agreement shall makeprovision for the assumption by the county government, the joint committee,authority or water services provider of the responsibility for the repayment of any loans or liabilities of thewaterworks and untilfull repayment of the loans and discharge of any outstanding liabilities,ownership of thewaterworks shall remain in thewaterworksdevelopment agency.

(3) In the event that the county government, the joint committee, the authorityor water servicesprovider defaults in therepaymentof any outstanding loans arising from the development,rehabilitation or maintenance of the works, the waterworks development agency may petitiontheRegulatoryBoardtodeclareadefaultandorderthetransferof the-water-services-provider's-functionsto-the waterworksdevelopment agency, to exercise such functions until full repayment of the loan.

Section72ofNo.43of2016which it isproposed toamend

72.Powers and functions of the Regulatory Board

• (1) Thepowers andfunctions of theRegulatoryBoard shall be to-

2. (a)( determineandprescribenationalstandardsfor theprovision of waterservicesandassetdevelopmentforwaterservices providers; 3. (b) evaluateandrecommendwaterandsewerage tariffstothe countywater servicesproviders and approve theimposition of such tariffs in line with consumerprotection standards; 4. (C) set licence conditions and accredit water services providers; 5. (d) monitor and regulate licensees and enforce licence conditions; 6. (e) developamodelmemorandumandarticlesofassociationtobe Regulatory Board to operate as water services providers; 7. ( monitor compliance with standards including the design, construction,operation and maintenance of facilities for the provision of water services by the water works development bodiesandthewaterservicesproviders; 8. g advise the Cabinet Secretary on the nature,extent and conditions offinancial support tobe accorded towater servicesproviders for providing water services; 9. (h) monitor progress in the implementation of the Water Strategy and make appropriaterecommendations; 10. (i) maintain anationaldatabase andinformation system onwater services; 11. (j) establishamechanismforhandlingcomplaintsfromconsumers regarding the quality or nature of water services; 12. (k) developguidelineson the establishment of consumer groups and facilitate theirestablishment; 13. inspectwater works andwater services toensure that such works andservicesmeettheprescribedstandards;

• (m)report annually to the public on issues of water supply and sewerage services and theperformance ofrelevantsectors and publish thereportsin theGazette;
• (n) make Regulationsonwater servicesandasset development which shall include business,investment and financingplans in order toensureefficient andeffectivewater services and progressiverealization of theright towater services;
• advise the CabinetSecretary on anymatter in connection with waterservices;and
• (P) makerecommendationsonhowtoprovidebasicwaterservices tomarginalised areas.

(2)The RegulatoryBoard shall have such powers and functions as maybe conferred on it by this or any otherAct,or as maybereasonably incidental to the exerciseorperformance of anypower or function so conferred.

Section75ofNo.43of2016whichit isproposedtoamend

75.Register of licensedwater services providers

(1)The RegulatoryBoard shall maintain theregister of all licensed water services providers containing——

(a) their names and addresses;

• (b) in the case of a registered association, or public benefit organization, the nature of the association or organization and the particulars of its registration;
• (c)thenature of servicesinrespectof which thewater services providers are accredited;
• (d) the conditions,if any,attaching to their license; and
• (e) any other matter prescribed in Regulations.

(2) The register of thelicensedperson shall be a public document accessibleforinspection at no charge and shall bepublicized,placed or posted in accessible formats at such places as the Regulatory Board shall determine.

(3) The register referred toin this section shall bepublishedfrom time to time by the Authority.

(4) TheRegulatoryBoard shall develop andpublish guidelines to regulate the conduct of licensed water services providers.

Section93of No.43of2016which it is proposed toamend

93.PublicPrivatePartnerships

(1)A water servicesprovider may enter into apublicprivate partnershiporpublicpartnershipsfor theexercise andperformanceby anotherpersonofsomeor all ofitsfunctionsasalicenseewithrespect to apartor thewholeofitsarea ofwaterserviceprovision.

(2) The partnership shall be in writing subject to the approval of the Regulatory Board.

(3)Where theperson enteringintoan agreementwith thewater servicesprovider owns orpossesses assets orinfrastructure usedfor the provision of water services, the agreement shall set out the terms and conditions underwhich the assetsmay continue tobe so used.

(4)Apowerorfunctionconferredbyalicenceorotherwiseconferred underanagreementwiththelicenseeandshallbedeemed,whenexercised thelicensee.

Section100 of No.43 of 2016which it is proposed to amend

100.Supplyofbulkwater

(1)A person shall not supply water in bulk to a water services provider without a licence issued by the Regulatory Board.

(2)Awater serviceprovidermay enter into an agreementwith any otherlicenseeorwaterservicesproviderontermsandconditionstobe approved bytheRegulatoryBoard—

• (a)for the supply of water in bulk for a specific period; or
• (b) where the supply is to be given by a water services provider, eitherwithinoroutsidetheareaofserviceofthatwaterservices provider.
• (3) Where it appears to the Regulatory Board that —
• (a) it is expedient for—-
• (ii) the other licenseeor water servicesprovider totake such supply; and
• (b) giving and taking of such a supply cannot be secured by agreement,the Regulatory Board may,by order served on the parties,require thelicensees concerned to give and take the supplyofwater inbulkfor such a period and onsuch terms asthe RegulatoryBoard may specify.

TheWater(Amendment)Bill,2023

National Assembly on the 23rd August, 2022.

Endorsed for presentation to the Senatein accordance with the provisions of StandingOrder144oftheNationalAssemblyStandingOrders.

ulaun

SpeakeroftheNationalAssembly

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