REPUBLIC OF KENYA 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 4t% July 2023 and passed by the National Assembly, with amendments, on 23 August 2023.)
1040 The Water (Amendment) Bill, 2023 THE WATER (AMENDMENT) BILL, 2023 : A Bill-for— SS AN ACT of Parliament to amend the Water Act, 2016 to provide for Public Private Partnerships arrangements and for connected purposes ENACTED by the Parliament of Kenya as 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 its functions undertaken by a private party; or (b) at the county government level, the county government or county corporation which intends to have 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 Storage Authority to water service providers for retail; (c) by deleting the definition of "water services provider" and substituting therefor. with the following new definition— "water services provider' means a company, agency, authority, state corporation, public benefit organization or any other person providing water Short title. Amendment of section 2 of No. 43 of 2016.
1042 The Water (Amendment) Bill, 2023 5. The principal Act is amended by inserting the following new section immediately after section 68— Licensing of water works development agencies. 68A. (1) Each water works development agency shalt be ticensed by the Regulatory Board with respect to the functions under section 68 (ba) of this Act. (2) The Regulatory Board shall, upon commencement of this Act and as may be necessary thereafter, and with the approval of the Cabinet Secretary, publish in the Gazette and on its website the standards and conditions for licensing of water works development agencies under this section. 6. Section 69 of the principal Act is amended— (a) by deleting subsection (1) and substituting therefor the following new subsection— (1) As soon as possible, following the commissioning of waterworks other than national public water works, the waterworks development agency shall enter into an agreement with any county government or water services provider to provide water services within whose area of jurisdiction the services are located. (b) in subsection (2), by deleting the words ",the joint committee, authority"; (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)— (a) by inserting a new paragraph immediately after paragraph (b)— (ba) evaluate and approve water and sewerage tariffs, bulk water tariffs and approve the imposition of such tariffs in line with consumer protection standards for use of Insertion of a new section 68A in No. 43 of 2016. Amendment of section 69 of No. 43 of 2016. Amendment of section 72 of No. 43 of 2016.
1046 The Water (Amendment) Bill, 2023 Commission, determine.
1050 The Water (Amendment) Bill, 2023 "riparian habitat" means the dynamic complex of plant, animal and micro-organism communities and_ their non-living environment adjacent to and associated with a watercourse; ~ "rural water services" means services provided in rural areas as shall be defined by the Regulatory Board; "Salaries and Remuneration Commission" means the Salaries and Remuneration Commission established under Article 230 of the Constitution; "sanitation" means the provision of on-site sanitation services including latrines, septic tanks and conservancies including the associated exhauster services; "sector wide approach" means coordinated development in the sector to achieve national goals, effectiveness of funds and ownership of government institutions including sector wide planning and coordination, national monitoring and information and national implementation concepts; "sewerage services" means the development and management of infrastructure for transport, storage, treatment waste water originating from centralized and decentralized systems but shall not include household sanitation facilities; "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 or on behalf of the licensee taking the supply; "swamp" means any shallow depression in which water collects either intermittently or permanently and where there is a small depth of surface water or a shallow depth of ground water and a slight range of fluctuation either in the surface level of the water or of the ground water level so as to permit the growth of aquatic vegetation; "tansboundary waters" means water resources shared between Kenya and another State; : "urban water services" means services provided in urban areas as shall be defined by the Regulatory Board from time to time; "use of water", in relation to a water resource includes, without any limitation to—
The Water (Amendment) Bill, 2023 1051 (a) abstraction, obstruction, impoundment or diversion of water forming part of a water resource; (b) the discharge of materials or substances into a water resource or (c) any activity of a kind prescribed by Regulations under this Act, in relation to a water resource; "watercourse" means any natural channel or depression in which water flows regularly or intermittently, unless declared not to be a watercourse under this Act; "water resource" means 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, and includes sea water and transboundary waters within the territorial jurisdiction 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 Storage of water and includes the provision of sewerage services; "water services provider" means a company, public benefits organization or other person providing water services under and in accordance with a licence issued by the Regulatory Board for the service 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 Storage Authority established in section 30; "Water Storage Board" means the Board of the National Water Harvesting and Storage Authority established under section 3 1; "Water Strategy" means the Integrated National Water Services Strategy formulated by the Cabinet Secretary in section 64; "water table" means — (a) impervious granular or detrital material, the upper surface of the body of free water which fills all openings in material that is sufficiently pervious to permit percolation; and
1052 The Water (Amendment) Bill, 2023 (b) in fractured impervious rocks and in solution openings, the surface at the contact between the water body in 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 section 65; "works" means any structure, apparatus, contrivance, device or thing for storing, recharging, treating, carrying, conducting, providing or utilizing water or liquid waste, but does not include hand utensils or such other contrivances as may be prescribed by Regulations made under this Act. Section 32 of No. 43 of 2016 which it is proposed to amend— 32. Powers and functions of the Water Storage Authority (1) The functions and powers of the Water Storage Authority shall be to— (a) undertake on behalf of the national government, the development of national public water works for water resources storage and flood control; (b) maintain and manage national public water works infrastructure for water resources storage; (c) collect and provide information for the formulation by the Cabinet Secretary of the national water resources Storage and flood control strategies; (d) develop a water harvesting policy and enforce water harvesting strategies; (e) undertake on behalf of the national government Strategic water emergency interventions during drought; and (f) advise the Cabinet Secretary on any matter concerning national public water works for water storage and flood control. (2) The Water Storage Authority may appoint agents for the operation, management, maintenance and safety of any storage infrastructure that it has developed. (3) The Water Storage Authority shall have such other powers and functions as may be conferred or imposed on it by this or any other Act. Section 68 of No. 43 of 2016 which it is proposed to amend— 68. Powers and functions of the water works development agency The powers and functions of the water works development agency shall be to —
The Water (Amendment) Bill, 2023 1053 (a) undertake the development, maintenance and management of the ~ National public water works within its area of jurisdiction; (b) operate the waterworks and provide water services as a water service provider, until such a time as responsibility for the operation and management of the waterworks are handed over to a county government, joint committee, authority of county governments or water services provider within whose area of jurisdiction or supply the waterworks is located; (c) provide reserve capacity for purposes of providing water services where pursuant to section 103, the Regulatory Board orders the transfer of water services functions from a defaulting water services provider to another licensee; (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 the Cabinet Secretary technical support in the discharge of his or her functions under the Constitution and this Act. Section 69 of No. 43 of 2016 which it is Proposed to amend— 69. Handover of completed works (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 county governments within whose area of jurisdiction the water works is located, jointly with 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 may be, of the water works to provide water services. (2) The agreement shall make provision 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 the waterworks and until full repayment of the loans and discharge of any outstanding liabilities, ownership of the waterworks shall remain in the waterworks development agency. (3) In the event that the county government, the joint committee, the authority or water services provider defaults in the repayment of any -
1056 The Water (Amendment) Bill, 2023 (1) A water services provider may enter into a public private partnership or public partnerships for the exercise and performance by another person of some or all of its functions as a licensee with respect to a part or the whole of its area of water service provision. (2) The partnership shall be in writing subject to the approval of the Regulatory Board. (3) Where the person entering into an agreement with the water services provider owns or possesses assets or infrastructure used for the provision of water services, the agreement shall set out the terms and conditions under which the assets may continue to be so used. (4) A power or function conferred by a licence or otherwise conferred under this Act may be exercised or performed by another person acting under an agreement with the licensee and shall be deemed, when exercised or performed by that other person, to have been exercised or performed by the licensee. Section 100 of No. 43 of 2016 which it is proposed to amend— 100. Supply of bulk water (1) A person shall not supply water in bulk to a water services provider without a licence issued by the Regulatory Board. (2) A water service provider may enter into an agreement with any other licensee or water services provider on terms and conditions to be approved by the Regulatory Board — (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, either within or outside the area of service of that water services provider. (3) Where it appears to the Regulatory Board that — (a) it is expedient for— (i) any licensee or water services provider to give the supply of water in bulk to another licensee or water service provider; (ii) the other licensee or water services provider to take 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 the licensees concerned to give and take the supply of water in bulk for such a period and on such terms as the Regulatory Board may specify.