Water Resources Act 1978 (No. 22 of 1978)

WATER RESOURCES ACT 1978 Arrangement of sections 1. Short title and Commencement 2. Interpretation 3. Water Uses 4. Acquisition and Termination of Water Use Permits 5. Water Administration 6. Water Disputes 7. Compensation 8. Wells and Bore holes 9. Servitudes 10. Pollution 11. Failure to Prevent Polluti on 12. Offences and Penalties 13. Regulations LN 18 of 1979 Short tltle and Corn mencement Interpreta tion WATER RESOURCES ACT 1978 ACT No. 22 OF 1978 [Date of A ssent : 11.12.78] [Commencement: 1-4-79] ACT To provide for the use and control, the protection and con servation of water resources, and for connected purposes. Enacted by the Assembly 1. This Act may be cited as the Water Resources Act 197H and shall come into operation on a date to be fixed by the Minister by noti ce in the Gazette . 2. In this Act ; "domestic uses" means water for personal and household needs, for the wate r ing of domestic animals, for agricul tural production on a householder' s res identia l land not exceeding an area of 2 hectares ; "Minister" means the Minister for th e time being responsible for th e administration of this Act; "person" includes any company or association or body of persons, corporate or un incorporate, a development project and any wate r associations whether constituted under this Act or not ; "pollution" means any alteration of the physical, chemical or biological properties of the waters, including change of temperature, taste, or odour of th e waters, or the addition of any liquid, solid, radioactive, gaseous or other substance to the wate r or th e removal of such substances from the waters which will render, or is likely to render the waters harmful to the public hea lth, safety, or welfare, or harmfull or substanti ally le ss useful or domestic, municipal, industrial, agricultural, recreational or other lawful uses, or for animals, birds Or aquatic life; "water" means the surface water flowing in channels and ground water, percolating ground water, flood, sewage and drainage waters, pluvial wate r and diffused surface water (which means water occurring generally upon the surface of the earth and not flowing in chann els) springs and mineral water includ ing th erm al waters, atmospheric water, snowfall and glaciers, and wate r artificially con tained in reservoirs, canals, pipelines, tanks, wells and boreholes, as well as the ar tificial recha rge of underground aquifers ; "water offi cer" means an officer appointed in terms of sect ion 5 (4) ; "well or borehole" means every water well or borehole or test hole for mineral or seismic exploration or other purposes, whether or not it reaches or produces ground water. 3. (1) Subject to subsection (4) water uses, other than Water Ulel domestic uses, shall require a permit. (2) Any person having lawful access to water may abstract and use such water for domestic purposes. (3) Domestic uses and the supply of population centres shall have priority over all other uses. (4) Water uses existing at the commencement of this Act may continue without a permit for three years in the same manner and amount as at the commencement of this Act. (5) The conditions of water uses including the purpose and amount abst racted under permit may be varied by the water officer in accordance with the public interest. 4. (1) Any person requiring a water use permit in accord-Acquisition ance with section.3 (1) shall ~pply in the presc ribed form to the~~a\'i~;, of water officer having jurisdict ion. water use (2) Upon receipt of an application under subsection (1) permits the water officer shall give notice thereof in the presc ribed manner and any interested person may thereupon object to the grant of a permit st ating fully the grounds for such objection and shall, if he so req uires, have a r ight to be heard in support of his objection. (3) Whenever two or more applications are re ceived for one and the same water use and the resource is insufficient to justify the grant of any or all, the appli cations shall be judged on merit with priority being given in accordance with public interest. (4) Water use permits shall be in the pr escribed form and shall state the quantity grante d and the purpose for which the water is to be used. (5) A wate r use permit shall not be transferable or assign able except that a water use shall pass with an approved change in the occupancy of land and be subject to the conditions gover ning the permit. (6) Whenever a water use requires the constru ction of water works the water officer shall grant the wate r use permit subject to the construction of such waterworks within a specified time under specified conditions: Provided that any time specified for the completion of the construct ion of waterwork s may be extended by th e water offi cer. (7) A wate r use permit shall not be granted for a period exceeding five years and may be renewed for periods not exceed ing three years. (8) The water officer shall include in a water use permit such terms and conditions as he may deem necessary in the public interest. (9) A water officer may. subject to the right of compensation, grant a water use permit which will have the effect of transfer rin g th e use of wate r from one person to another. (10) A wate r use perm it shall not contain or imply any guarantee that the wate r referred to in the permit is or will be available and a water officer shall not be liable for any loss or damage sustained by reason of unavailability of water. (11) A water use permit may be revoked in whole or in part for (a) any statement in an application or in any report or statement of fact required to be furnished in terms of this Act which is false in a material respect; (b) contravening any of th e provisions of this Act; (c) violating any of its terms or conditions ; (d) non-use for one year. (12) Whenever a water officer decides to revoke a water use permit in whole or in part he shall serve a notice, setting out the facts or the conduct alleged, on the permit holder and shall afford him an opportunity of being heard. Water adml- 5. (1) The ownership of all wate r withi n Lesotho is vested nlstrallon in the Basotho Nation. (2) The power to control and reg ulat e the use of water shall be exercised by the Minister. (3) The Minister shall participate in the administration of Lesotho's water resources when by virtue of a trea ty or agree ment these become international resources . (4) SUbject to the laws govern ing the public service the Minister shall appoint water officers to carry out the duties and fun ctions imposed by this Act. (5) Whenever it is necessary to set aside land for the pro tection. conservation or distribution of water, the provisions of any applicable law relating to the setting aside of land for public purposes shall apply . (6) Whenever water from any source is insufficient or likely to become insufficient through drought or other causes the Mini ster may by notice to users of water vary or suspend the amount of wate r used for any period he may deem necessary. (7) Whenever a serious shortage of water for domestic purposes exists or is threate ned in any area, the Minister may by notice in the Gazette , declare that a water emergency exist! in that area and dire ct that any person who has a supply of water in excess of his domestic purposes shall make such quantity available as the Minister may specify . 6. (1 ) It shall be the duty of a water officer in the first Water instance to hear and detennine any dispute as to water uses . disputes (2) Any person aggrieved by a decision of the wate r officer given in terms of subsection (1) may appeal to the Minister whose decision shall be final. 7. (1) Compensation und er this Act, other than compen- Compensa sation as between wate r users und er section 8 (8) or compensation tlon ar ising from the setting aside of land under section 5 (5), shall be determ ined by agreement between the Minister and the holde r of the water use permit. (2) Failing an agreement under subsection (1) compensa tion shall be determined by a single arbitrator agre ed upon be tween them or , in the absence of agreement , appointed by the Chief J ustice. (3) Appeal shall lie to the High Cour t fr om the decision 01 an arbitrator under subsection (2) and the procedu re on such appeal shall follow that of an appeal from a Subord inate Court. (4) The decision of the High Court on appeal under subsec tion (3) sha ll be final. (5) If within a period of one year from the date of the Mini ster's offer of compensation arbitration proceedings have not been insti tuted, the holder of the water use shall be deemed to have accepted the offer. 8. (1 ) No person shall construct or cause to be constructed Wells and a well or borehole requiring the use of mechanical drilling equip- borehol.. ment without the prior consent of the Minister. (2) No person shall abstract wate r from a well or borehole (except for domesti c purposes and for the purpose of testing) without a permit issued by a water offi cer . (3) A wate r officer may for good cause determine the volume of water which may be extracted for domestic purposes from a well or borehole . (4) Every person engaged in the activity of drilling bore holes or digging wells or in any other manner concerned with the abstraction of ground water is required to register with the water officer responsible. (5) Users of wells or boreholes shall allow the water officer or any person authorized by the Minister , at all reasonable time (a ) to have fre e access to any well or borehole in order to inspect such well or borehole and the material excavat ed therefrom; and (b) to mea sure or to obtain information as to the water used . (6) No permit for const ru ction of a well or borehole or use of water in a well or borehole shall 1;le granted when such con struction or use would interfere substantially with the use of other wells or boreholes . (7) If in the drilling or use of a well or borehole, the water of which is used exclusively for domestic purposes, adjacent wells or boreholes are SUbstantially depleted, th e water officer may prevent its drilling or reduce the amount of water used or close down the well or borehole as the case may be. (S) Whenever, due to constru ction or use of a well or bore hole, the water of adjacent wells or boreholes are depleted, the concerned users may agree, in consultation with the water officer, to arrange for the settlement of the dispute including, if neces sary, provision for compensation. (9) Users of wells or boreholes which are subj ect to natural overflow or wastage shall be required to install well covers and taps or other waste control devices . Servit udes 9. (1) Anyone who applies for a wate r permit which if granted, would require the use of land occupied by another , shall apply at the time for a servitude over tha t land. (2 ) The occupier of the land over which the serv itude is sought shall be notified of the applica tion for a permit in tel'llls of sub-section (I) and he shall be entitled to be heard as to the terms and conditions of th e proposed servitude. (3) Any permit to which this section applies shall state the terms and conditions of the servitude. (4) The holder of the servitude shall be liable for damage to the land over which the servitude is held and shall take the necessary measures to avoid occurrence of damage. (5) Where the consent of the Minister of Interior is required tor the creation of a servitude over land no servitude shall be granted under this section or . if granted, shall have effect, unless such consent has first been obtained. Pollution Failure to preve nt pollution 10. (1) Any person who wilfully or through negligence pollutes or fouls any water so as to render it harmful to man, beast, fish or vegetation is guilty of an offence and liable (a) in the case of first conviction to a fine of 100 rand and to six months' imprisonment. (b) in the case of a second or subsequent conviction, to a fine of 500 rand and to two years' imprisonment. (2) This section shall not apply to pollution resulting from the injection into water by a water officer or persons authorized by him of chemical or radio-a ctive tracers for purposes of mea surement. 11. (1) Whenever a water officer is satisfied that water is being fouled or polluted, he shall, in the prescribed form, cal! upon the person responsible therefor to take adequate measures to prevent such fouling or pollution within a specified period: Provided that on good cause being shown, th e water officer may, on application, extend the period specified. (2) Any person who when called upon to take ste ps in accor dance with subsection (1) , fails within the specified time to take such adequate steps to prevent the fouling or pollution of water, shall, in addition to any penalti es to which he may be liable under section 10, be liable on conviction to a penalty not exceeding twenty rand a day until the matter is rectifi ed. 12. Any person, who, without lawful right or authori ty (a ) alters, enlarges, obstruc ts or tampers with any works, or destroys, defaces or moves any level marks, beacons or other structure or appliance e rected or made in conjunction with such works; (b) uses water without a permit where such permit is re quired under section 3; (c) contravenes section 8 (1) or 8 (3) , or fails to register in compliance with section 8 (4 ) ; (d ) takes water for purposes other than those authorised under this Act; (e) interferes with or alters the flow of the wate r or of a stream or any works, or interferes with the dist ribution of such water, or, after notice to refrain from doing so, takes more water than he is enti tled to or use it in a man ner contrary to this Act or any regulations mad e thereunder; (f) while using or being liable for th e maintenan ce of any works, to the prejudice of others, wastes or does not take due precaution to prevent the waste of water from such works , or fails properly to maintain the works ana keep them in repair; (g) wastes water; (h ) aids or abets or knowingly permits any such act or default in contraventio n of parag raphs (a) to (g) , is guilty of an offence and liable: (i) in the case of a first offence, to a fine of 50 rand and to six months' impris onment. (ii) in the case of a second or subseq uen t offence, to a fine of 200 rand and one year 's imprisonment. 13. The Minister may make regulations generally for the better carrying out and giving effect to the provisions of this Act, and, without prejudice to the gene rality of th e foregoi ng, such regulat ions may (a) determine the duties and responsibilit ies of wate r of ficers; (b ) prescribe the forms and permits to be used; (c) declare certain areas to be protected areas for the pur poses of protection and development of wate r resources projects and provide for the conditions of use or entry or for restriction of use or entry in such areas; (d) provide for the formation of Water Users' Associations , their powers, functions and duties ; Offences and penalties Regulations (e) pr ovide for establishing and maintaining hydrographic stations on any private land, erect ing gauging weirs, staff gauges or any other devices for the measurement of wate r, obtaining and recording observations made at such hydrographic stations; (f) provide for inspecting any works on the course of any stream and ord ering any person to do such acts and execute such repairs with respect to his works as may be deemed necessary in the public interest and, in default of compliance withi n the time specified in such order, executin g the same and recover ing the cost of such execution from the person making such default; (g) prov ide for the exercising of general supervision over all streams and aquifers in Lesotho, protecting the source of suppl y of any stream or spring, and, if he deems it necessary or expedient , causing the channels of such stream to be cleaned, deepened, widened or otherwise improved ; preventing the leakage or fl ow of any stream from the surface into aquifers; prevent ing any wast e or any unlawful diversion, abstraction, storage or use of water; causing to be removed any obstruction unlawfully placed in a stream, and prevent ing any unlawful act calculated to diminish the quanti ty of water in any part of a st rea m; (h ) for the purpose of protecting any sour ce of supply or any stream or spring by notice in the Gazette, define the ar ea of such source and prohibit or restrict entry into the area; (I) require persons to whom the right to use water has been granted under th is Act to erect adequate diver sion sluices at their own expense, and to record and furn ish measurements as to th e volume of the water abstracted or allowed to pass at or near the point of abstraction by the use of instruments specified or supplied for the purpose. ( j) provide for the division of Lesotho into areas for the purposes of water administration and for the assign ment to water office rs of responsibility over the areas.