Machakos County Water and Sanitation Act, 2014 (No. 1 of 2014))

SPECIAL ISSUE Machakos County Gazette Supplement No.17 (Acts No. 1) REPUBLIC OF KENYA MACHAKOS COU NTY GAZETTE SUPPLEMENT ACTS, 2014 NAIROBI, L9th November, 2014 CONTENT Act The Machakos County Water and Sanitation Act,2014 PncB .... I PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI 2074 I ll'ater and Sanitation THE MACHAKOS COUNTY WATER AND SANITATION ACT, 2014 (No. I of 2014) Date of-Assent: lSth November, 2014 Comntencement Date: By Notice ARRANGEMENT OF SECTIONS Section PART I-PRELIMINARY l-Short title and commencement. 2-Interpretation. PART II-OWNERSHIP USE AND MANAGEMENT OF WATER RESOURCES 3-Ownership of water resources. 4-Right to water. 5-Responsibility of the County Executive Committee Member. PART III-ESTABLISHMENT, POWERS AND FUNCTIONS OF THE MACHAKOS COUNTY WATER BOARD 6-Establishment of the Board. 7-Composition of the Board. 8-Functions of the Board. 9-Appointment of Water Inspectors. l0-Power to enter, I l-Chief Executive Officer of the Board. l2-Removal of the Chief Executive Officer. 13-Staff of the Board. PART IV-WATER AND SANITATION SERVICES 1 4-Water Service Providers. 15-Development of water works. 1 6-Community water proj ects. 17-Water tariffs. No.l 2 No. I Water and Sanitation 2014 I 8-Water service providers. I 9-Prohibited activ ities. 20-Permit for water works. 21 Application for a permit. 22 Conditions for water works. 23-Requirement for a licence for water services. 24-W ater service provi sion agreements. 25-Application for a licence. 26-D etermination o f an application. 27 Nature of water service licence. 28-License fees. 29-Conditions of a licence. 30 Duty to provide water services. 3 I Public private partnerships. 32-Special provisions with respect unviable rural areas. 33 Areas of water service. 34-Clustering of areas of water service provision. 35 Variation of areas of service. 36 Provision of water service outside the area of supply. 37-Default by licencee. 38 Transfer of functions by licencee. 39-Agreements to protect sources of water. 40-Power of licensee to prohibit or restrict use of water. 4l-Responsibilities of a water services provider. 42-Execution of works for water protection. 43-Control of trade effluent. 44-Sewage service levy. 45-Supply of water in bulk. 46-Supervision, monitoring and coordination of water provision. 2014 a J Water and Sanitcttion PART V-COUNTY WATER WORKSAND STORM WATER MANAGEMENT 47-Public works by the Board. 48-Storm water management plan. 49-Reduction of runoff water. 50-Riparian buffers. PART VI- SANITATION SERVICES AND POLLUTION CONTROL 5l-Measures for control of pollution. 52- Provision of sanitation services. 53-Compliance with effluent standards. 54-Discharge of contaminated water or effluent. 55- Interference with sewerage system. 56-Sewerage tariffs. 57-Sector wide forum. PART VII-GENERAL PROVISIONS 58-Power to make Regulations. 59-Offences. No.l No. 1 4 Water and Sanitation THE MACHAKOS COUNTY WATER AND 2014 Short trtle and commencement lnterpretatlon SANITATION ACT, 2014 AN ACT of Machakos County Assembly to make provision for water and sanitation services, creation of the Machakos County Water Board and water service providers, water works, storm water management systems, water conservation and for related purposes ENACTED by the County Assembly of Machakos as follows PART I-PRELIMINARY 1. This Act may be cited as the Machakos County Water and Sanitation Act, 2014 and shall come into operation on such date as the Executive Cornmittee Member may, by notice in the Gazette, appoint and different days may be appointed for the coming into operation of different provisions. 2. In this Act, unless the context otherwise requires "Board" means the Machakos County Water and Sanitation Board established under section 6; "County" means the County Government of Machakos; "County Executive Committee Member" means the County Executive Member for Water, Irrigation and Sanitation; "Government" means the Government of Machakos County; "inspector" means a person appointed by the County executive committee member under section 9; "licencee" means any person who has been issued with a licence under this Act, "limits of supply" in relation to a water services provider means the limits within which a water services provider is for the tirne being is authorized to supply water; "pollution" in relation to a water resource, means any direct or indirect alteration of physical, thermal, chemical or biological properties of the water resource so as to make it 5 2014 Water and Sunitation PART II-OWNERSHIP, USE AND MANAGEMENT OF WATER RESOURCES (a) less fit for any beneficial purpose for which it is or may 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, "sanitation" means the provision of on-site sanitation services including latrines, septic tanks and conservancies including the associated exhauster services; "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; "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 ground; "water service" means any service of or incidental to the supply of water or the provision of sewerage; "water services provider" means a company, non governmental organization or other person or body licensed to provide water services under and in accordance with an agreement as stipulated under section l8 "watercourse" means any natural channel or depression in which water flows regularly or intermittently; "water works" means any construction, excavation, piping, drainage of any land, supply or transportation of water, water abstraction works, management of storm water and floods or storage, impounding of water for supply to the public or for private purposes, drainage of any swamp or other land. No.1 No. 1 3. Every water national and county Kenya. 6 Water and Sanitation resource is vested in and held by the ownershtp of watet government in trust for the people of 20t4 Right to water. Responsibilrty ofthe County Executive Commrttee Member 4. (1) Every person has the right to clean and safe water in adequate quantities and to reasonable standards of sanitation as stipulated in Article 43 of the Constitution. (2) Upon the commencement of this Act, no instrument shall be effectual to convey, transfer or vest in any person any right or interest in respect of any water resource, and no interest in such property shall be acquired otherwise than under this Act and any other written law. 5. (1) The County Executive Committee Member shall (a) formulate and publish in the gazette a county water and sanitation policy; (b) ensure effective exercise and performance by any person of powers and duties granted or imposed under this Act; (c) coordinate all water institutions in the county; (d) undertake county water sectoral planning; (e) establish a county water data base and information system which shall be provided by the water institutions and any other relevant institution; (f) formulate cross-sectoral co-ordination plans with departments in the county and in the national government; (g) prepare an annual water sector report on water services provision and sanitation; (h) in consultation with the relevant water institutions in the national government put in measures to prevent unlawful abstraction of water resources and watercourses in the county; and (i) formulate a comprehensive inter-sectoral program on sewerage and sludge treatment for decentr alized sanitation facilitie s. (2) The water policy referred under subsection (1) shall outline the government's objectives, strategies and plans for management of water and sanitation services. 2014 7 14ater and Sanitation No.l PART III-ESTABLISHMENT, POWERS AND FUNCTIONS OF THE MACHAKOS COUNTY WATER BOARD 6. ( I ) There is established the Machakos County Establ,shment orthe Water and Sanitation Board. " Board (2) The Board shall be the successor to the water and sanitation companies and other institutions established under the Water Act, 2002 operating in the county immediately before the enactment of this Act. 7. ( I ) The Board shall consist of- composrtion of the (a) a non executive chairperson appointed by the Governor with the approval of County Assembly; (b) the chief officer in the department responsible for water; (c) the chief officer in the department responsible for finance; (d) five other persons appointed by the county committee executive member through a competitive process (D one being a representative of water users in the county; (ii) one being a representative of water service providers; (iii) three being representatives of sub-counties appointed by virtue of their knowledge, expertise and experience in water and sanitation management matters one of whom must be of either gender; and (e) the Chief Executive Officer who shall be the secretary of the Board. (2) A person shall be qualified for appointment as chairperson under subsection (1) (a) ifthe person (a) holds a relevant degree from a recognized university; (b) has knowledge and experience of at least five No. I 8 Water and Sanitatiort years in matters relating to water and sanitation services management or other related field; (c) meets the requirements of Chapter Six of the Constitution; and (d) has had a distinguished career in their respective fields. 2014 (3) A person shall be qualified for appointment as a member under subsection (2) (d) if the person (a) holds a degree from a recognized university; (b) has knowledge and experience of at least three years in matters relating to water resources management, water and sanitation services management or any other related field; (c) meets the requirements of Chapter Six of the Constitution; and (d) has had a distinguished career in their respective fields. 8. The Board shall be responsible for- Functrons of the Board (a) provision and management of water and sanitation services; (b) development of county water and sanitation services infrastructure, including water works and public works; (c) ensuring adequate water supply system for domestic, industrial, livestock, wildlife and agricultural purposes; (d) developing and managing works for water conservation; (e) promotion of water harvesting and water recycling systems; (f) promotion of efficient water use and management for sustainable development; (g) identification, initiation and promotion of water conservation systems, strategies and programs; (h) development and management of public infrastructure for storm water control; 2014 9 Water and Sanitation No.l maintenance of database and dissemination of information on water and sanitation services; and maintenance of collaboration and cooperation with other government agencies other county governments in carrying out its functions. (i) 0) 9. (l) The County Executive Committee member may, in consultation with the County Service Board appoint water inspectors for purposes of enforcing and ensuring compliance of the provisions of this Act and all relevant laws. (2) Despite subsection (l), County Executive Committee Member may designate any other officer of the department to perform the functions of an inspector. 10. (1) An inspector or other authorized person appointed by the Executive Committee Member may enter without a warrant on to any land and inspect any water resource located within or accessible from the land concerned, in order to take any measures authorised under this Act for the purpose of (a) conserving or regulating the water resource, or preventing it from pollution or protecting the bed over which it lies or flows; or (b) removing any obstruction from, or clearing and deepening, a river bed; or (c) preventing the illegal diversion, pollution of the water resource or interference with any water source. (2) An inspector or authorized person shall not enter into the land or premises without f,rrst giving reasonable notice, whether written or verbal, to the landholder or an employee or agent in charge of the land, and such entry shall bc at reasonable hours: Provided that an inspc-ctor may c-ntcr without gir,'ing noticc ifi Appolntment of water lnspcctors. Power of entry No. I (3) If so requested by the owner or occupier of the land or premises, the Inspector or other authorised person shall produce evidence of the right or permission, as the case may be, to enter on to the land. (4) It shall be the duty of any person exercising any powers under this section to do so with reasonable care and diligence. 11. (1) There shall be a Chief Executive Off,rcer of the Board. (2) The Chief Executive Officer shall be appointed by the executive member on recommendation of the Board and recruited through a competitive process. (3) To qualify for appointment as a Chief Executive Officer, a person must (a) possess a degree in a relevant field from a recognized university; (b) have had experience in management for a period of not less than five years. (4) The Chief Executive Officer shall hold office for a period of three years, on such terms and conditions of employment as the Board may determine, and shall be eligible for re-appointment for a further and final term of three years. (5) The Chief Executive Officer shall be an ex-fficio member of the Board but shall have no right to vote at any meeting of the Board. (6) The Chief Executive Officer shall be responsible for l0 Water and Sanitation 2014 (a) there is reason to believe that a provision of this Act or other law has been or is about to be contravened; (b) the inspector unable to give notice within a reasonable time having regard to all the circumstances; or (c) there are other reasonable grounds for not giving notice. Chref Executrl'e OfFrcer of the Board (a) the day to day management of the affairs of the 2014 il ll'ater and Sanitation No.l Board; (b) the staff of the Board in the performance of the functions and duties; (c) the general administration of the Corporation; and (d) carry out any other function as may from time to time be assigned by the Board. 12. The Chief Executive Officer may- Removal of the chief Executive Off,rcer. (a) at any time resign from office by issuing notice in writing to the chairperson of the Board; (b) be removed from office by the executive member on recommendation of the Board, for (i) serious violation of the Constitution or any other written law; (ii) gross misconduct, whether in the performance of the functions of the office or otherwise; (iii) physical or mental incapacity to perform the functions of office' (iv) incompetence; (") bankruptcy. 13. The Board may, in consultation with the County starrortheBoard Service Board, appoint such officers and other staff as are necessary for proper discharge of its functions under this Act, on such terms and conditions of service as the Board may determine. PART IV-WATER AND SANITATION SERVICES 14. (1) The Board shall progressively ensure that- Supplv orwater (a) every person in the county has access to safe and clean water for domestic use within reasonable distance; (b) there is accessible water for agricultural, livestock, wildlife and industrial use; (c) equitable distribution of water between t2 No. 1 Water and Sanitation consumers in urban and rural areas. (2) The Board may enter into service performance agreements with any entity in carrying out its functions. 15. (1) The Board may erect or develop waterworks and other public works on a public or private property. (2) Notwithstanding provisions of subsection (1), the Board shall seek consent of the owner of private land or the relevant government agency occupying or in whose custody the public land falls where it seeks to erect any water works or public works and shall provide the prescribed compensat ion. (3) The Board shall in collaboration with the department of roads identify and establish specific areas on any road where public works under this Act may be carried out. (4) The Board shall seek easements from owner or occupier of any land for construction of water works or public works to be undertaken on such land. 16. A community may initiate project for water services with the approval of the Board. 17. (1) The Board may ler.y tariffs and any appropriate user charges for the purposes of supplying efficient water services. (2) The tariffs and user charges levied under this section shall be established in accordance with the principles set out under the County Governments Act, 2012 and arry other written law. (3) The tariffs and user charges collected under this section shall not form part of the County Revenue Fund and may be utilized for defraying expenditures of the Board and providing efficient and quality services under this Act. (4) The tariffs and user charges imposed or levied under this section shall be subject to approval by the county executive committce. 2014 Development of water works Communrty projects Water tariffs 2014 l3 Water ancl Sanitation No.1 18. ( I ) Water services in the County shall be water servlce provrders' provided (a) by water services providers licensed in accordance with this Act; and (b) on the basis of an agreement between the water services providers and the government pursuant to section 12. (2) A water service provider licensed under this section shall be a company established under the Companies Act, cap 486' or other person or agency providing water services as shall be approved by the government. (3) Every County water services provider shall comply with standards of commercial viability set by the relevant national regulatory agency. (4) Any Company wishing to be licensed as a water service provider shall submit its Memorandum and Articles of Associations that conform to the model developed and approved by the relevant national regulatory agency. 19. (1)A person shall not- Prohrbrted actrvrtres (a) interfere with any meter or equipment installed under the authority of the Board; (b) install illegal or un authorized water connections; (c) install a pipe or connection which does not comply with the approved standards. (2) A person who contravenes this section commits an offence and shall be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding one year or to both. No. I t4 Water and Sanitation 20. (1) A person intending to carry out or maintain any water works shall apply for a permit to the Board. (2) A person who prior to the commencement of this Act was carrying out water works, managing or maintaining any water works shall within sixty days apply for a permit. (3) A person who contravenes this section commits an offence and shall be liable to a fine not exceeding one hundred thousand or to imprisonment for a term not exceeding one year or to both. 21. (1) An application for a permit under section 20 shall, where applicable be accompanied by an environmental impact assessment report in accordance with the Environmental Management and Coordination Act, 1999 and shall specifz among others (a) the purpose and nature of the works to be undertaken; (b) the nature of works to be carried out; (c) the duration within which the works are expected to be completed. (2) The Board shall, where the construction of works are to be undertaken on public property or where the works will affect a cross section of the residents, issue a public notice within fourteen days after such an application and invite any person to make comments or object to such an application. (3) A person may lodge an objection to application for a permit. (4) Every objection to an application shall be made in writing to the Secretary of the Board setting out the grounds for such an objection. (5) The Board shall, upon receiving the application send a notice the objection received to the applicant for a permit. (6) The Board may, where appropriate conduct public hearings on the objection. (7) An objector or an applicant for a permit may appear personally or by an advocate at the hearing of an application. (8) The Board shall consider the application within 2014 Permrt for water wdfks Application for a permit. 2014 15 Water and Sanitation thirty days of such an application and may where it is satisfied that the applicant has fulfilled all the requirements of this Act or any other written law grant a permit in the prescribed form subject to any such conditions as may be prescribed and upon the applicant paying the prescribed fees. (9) Where the Board is not satisfied with the application, it may (a) reject the application giving reasons and notify the applicant accordingly within thirty days of the decision to reject; or (b) make comments and recommendations thereon and return it to the applicant within thirty days. (10) An applicant to whom the application is returned under subsection (9) (b) may re-submit the application within sixty days. (11) On receipt of any revised application under subsection (10), the Board shall, within thirty days determine the application in accordance with this Act and upon such determination, if satisfied, issue a permit. 22. Notwithstanding section 21, the Board shall prescribe the appropriate conditions related to equipment and technology, design, construction, operation and maintenance or waterworks. 23. (1) No person shall provide water services except under the authority of a license issued by the Board. (2) A person who provides water services in contravention of this section shall be guilty of an offence. (3) Nothing in this section prohibits the provision of water services by a person to employees; on the premises of an institution including a hospital, factory, school, hotel, research station or business where the source of supply of the water is lawfully under the control of the institution or is supplied to it in bulk by a licensee; to a local community through an arrangement No.1 ('ondrtrons for watcr works Requrrement for a Lcence for u ater sen'ices (a) (b) (c) No. I 16 Water and Sanitation of members of that community; and (d) in circumstances which are prescribed by rules made by the executive committee member to be exempt from the requirement for a license. 24. (l) A water service provider shall enter into a written agreement with the Board for purposes of exercise and performance of its powers and functions under the licence. (2) An agreement entered into under subsection ( l) shall specify the powers and functions under the licence which shall be performed by the water service provider. (3) A water provision agreement shallmake provisions for 2014 (a) the indemnif,, by the water service provider of any liability to the government arising from performance or non-performance of functions conferred by the licence; and (b) the maintenance, rehabilitation and development, by the water service provider of water and sewerage infrastrucfure and facilities in the County. 25. (l) An application for a licence shall be made to the Applicatronforahcence. Board in the prescribed form. (2) The applicant shall furnish the following particulars (a) evidence of compliance with the national standards set by the national government regulatory agency; (b) the technical and financial capability of the applicant to provide the services and perform functions authorized by the license; (c) evidence that the water services to be provided shall be commercially viable; (d) the applicant's business plans for the provision of efficient, affordable and sustainable water services; (e) performance targets; Water seruice provrsion agreements. 2014 I7 Water and Sanitation (f) details of planned financial and infrastructural improvements; (g) a proposed tariff structure; and (h) any other information required by the relevant national water regulatory agency. (3) The application shall be made by completing and lodging the prescribed form together with the supporting documentation and the prescribed fee. (4) The application shall not be granted unless the Board is satisfied that the conditions set out under subsection (2) have been met. 26. (l) An application for a licence shall be the subject of public consultation. (2) Any person opposed to the grant of licence may object in writing to the Board. (3) The Board shall notify the applicant and any objector of its decision and, in the event of the rejection of an application or objection, as the case may be, of the reasons therefore, and an applicant or objector may, if aggrieved by the decision within thirty days after the date of the notification, appeal to the court. (a) The Board to determine an application for a licence as soon practicable after filing of the application but in any case not later than forty-five days. 27. (I) A licence shall authorize and. provided therein, require, the provision by water services specified in the licence. tO the eXtent Nature of water servrce the licensee of license' No.l Determinatron of an apphcatron (2) There is no property in a licence, and except provided by this Act, a licence shall not be capable being sold, leased, mortgaged, transferred, attached otherwise assigned, demised or encumbered. (3) The Board may require the applicant to deposit a guarantee or other acceptable security for the purpose of securing payment by the applicant of any expenses recoverable from the person, as a licencee, for or towards the costs incurred in discharging the functions of the licencee in cases of default. (4) Every licencee shall, within twelve months of receipt No. I l8 Water and Sanitation of the licence, or such longer period as the Board may determine, formulate and present to the Board, a development plan for extending services to un-served persons within its area, a time frame for the implementation of the plan and a resource mobilization strategy. 28. (1) A licencee shall pay to the government, on issue of the licence and at prescribed intervals thereafter, such licence fees as the Executive Committee member may determine. (2) The fee shall be determined by reference to a schedule of fees published in the Gazette from time to time by the Executive Committee member following public consultation. 29. (I) A licence shall be subject to (a) such conditions as may be prescribed by or under this Act in relation to the license; and (b) such other conditions, not inconsistent with the conditions prescribed, as the national water regulatory agency may impose by endorsement on, or instrument in writing annexed to, the licence; (2) Rules made under this Act may make provision for imposing conditions on, or with respect to the conditions which are or shall be imposed on licenses generally or any class or description of licenses. (3) Without prejudice to the generality of subsection (2), such rules may (a) require the imposition of prescribed conditions in prescribed circumstances; (b) require the licencee to maintain, in the prescribed manner, a contingency fund for the purpose of renewal, repair, enlargement or improvement of any plant, equipment, facilities or works used for the purposes of the licence or for meeting any other prescribed contingency. (c) provide that a contravention of any, or of any specified, conditions prescribed under this Act as conditions of licences shall constitute an offence punishable by a penalty specified in the licence. 2014 Lrcense fees Condrtrons ofa hcense 2014 t9 Water and Sanitation No.1 Public private partnershrps. Specral provrsrons wrth respect unviable rural areas (4) The imposition of a penalty by a regulation made in accordance with subsection (3) (c) shall not prejudice any remedy for the recovery of damages for any loss, damage or injury sustained by any person by reason of the contravention in respect of which the penalty is imposed. 30. (1) A water services provider shall be responsible Dutvtoprovrdewater for the efficient and economic provision of water services to the extent authorized by the licence. (2) For the purpose of the provision of water services, a water services provider, may (a) purchase, lease or otherwise acquire, premises, plant, equipment and facilities; (b) purchase or lease land in accordance with the applicable law; (3) Every water services provider shall establish a mechanism for handling consumer complaints which meets the standard set by the relevant national water regulatory agency. 31. (1) The Board may enter into a public private partnership 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. (2) A public private partnership shall be in writing. (3) Where the person entering into a public private agreement with the Board 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. 32. (l) The Board shall to put in place measures for the provision of water services to rural and other areas which are unviable for the provision of water services on a commercial basis. (2) The measures taken by the government under subsection (l) shall include developing point sources, small No. 1 20 Water ttnd Sanitation scale piped systems and stand pipes which meet the standards set by the national water regulatory agency and which may be managed by the communities, agencies or private persons based on written contract with the government. (3) In order to implement its obligation under this section the Board shall formulate an up to date five-year development plan incorporating an investment and financing plan for the provision of water services in unviable rural areas within its area ofjurisdiction. 33. (1) The area of a water service shall be prescribed by the licence and shall not be less than the area required for a commercially viable water service. (2) The area so prescribed may, subject to the relevant County Governments Act traverse the boundaries of the county. 34. (1) The Government may, in consultation with any other County Government (a) permit the joint provision by two or more licencees of water services on such terms as it may approve; or (b) permit the transfer of a water service, or part thereof, of one licensee to another licensee. (2) Where it appears to the Government to be necessary for the pu{pose of securing a commercially viable water service, the Executive Committee Member may, by notice in the Gazette, order such a joint provision of water services or such a transfer of water service and vary the relevant licenses accordingly. (3) An order made under this section may make incidental and supplementary provisions as the Executive Committee member deems necessary or expedient for the purpose of carrying out the order. (4) A licencee aggrieved by the provisions of the order may apply for review to the court. 35. (l) The Executive Committee member may vary the areas of water service (a) on the application of a licencee whose area of water service is to be varied and with the 2014 Arcas of water servrce Varration ofareas of servlce. 2014 21 lfater and Sanitatiort consent ofany other licencees affected; or (b) if is satisfied that the licencee is unable to meet the demands for water or is otherwise unable to provide a commercially viable service. (2) An order made under this section may make such consequential and supplementary provisions as the Executive Committee Member deems necessary or expedient for the purpose of carrying out the order. (3) A licencee aggrieved by the provisions of an order made under this section may appeal to the court. 36. (l) With the consent of the Executive Committee member, and subject to any rules made under this Act and to such conditions as the Executive Committee Member may impose, a licencee may provide water services outside its area of water service. (2) Where under this section a licensee (in this section called "the supplying licensee") is providing water services to premises outside its area, any other licencee within whose area those premises are situated may, in the absence of any agreement to the contrary, at any time give not less than three months' notice to the supplying licencee that the licencee is able and intends to provide water services to the premises: Provided that a notice given under this section shall not be valid unless it relates to all the premises to which water services are being provided by the supplying licencee in accordance with this section. (3) If, at the end of a period of three months notified under subsection (2), the licencee giving the notice commences to supply water to the premises covered by the notice, the supplying licensee shall, except for the purpose of recovering water rates or other charges or expenses lawfully recoverable by licencee, and of removing any pipes, plant or apparatus belonging to licensee, cease to have any rights or duties in respect of providing water services to the premises concerned: Provided that the supplying licensee shall not remove any pipes, plant or apparatus which licensee is required by the licencee giving the notice to leave in position, and any such pipes, plant or apparatus shall vest in the licensec No.1 Provision ofwater service outsrde the area of supply No. I 22 Water and Sanitation 20r4 giving the notice. (4) The licencee giving notice shall pay to the supplying licencee (a) such portion of any expenses reasonably incurred by it for the purpose of providing water services to the premises referred to in the notice; (b) such sum in respect of any pipes, plant or apparatus vested in the licensee giving the notice as may be agreed or, in default of agreement, as may be determined by the Executive Committee member. (5) While the supplying licensee is in accordance with this section authorized to provide water services outside its area of service, any regulations relating to its water service shall have effect as if the area to which those services were provided were within those limits. 37. (1) If, following a complaint made to or information Defaultbvltcencee received by the Executive Committee Member, it appears to a licencee (a) has failed to discharge any duty imposed upon him by a licence or otherwise under this Act; or (b) has failed to give an adequate supply water, as respects either quantity or quality to any area or any person which it is supplying, or has failed to give any supply which he is lawfully required to give; or (c) having been notified by the Executive Committee member to take such steps as are reasonably practicable in order to remedy any such failure as is mentioned in paragraph (a) or (b), has failed to do so, the Executive Committee member may inquire into the matter. (2)If, after inquiry, the Executive Commiffee member is satisfied that there has been any such failure on the part of the licencee in question, it may impose a special regulatory regime on the water services provider for the purpose of remedying the default. 2014 23 LVater and Sanitation (3) A licencee declared to be in default who is dissatisfied with an order of the Executive Committee member under this section may, within thirty days after receipt ofthe order, appeal to the court. (4) A licencee declared to be in default by order under this section who fails to comply with any requirement of the order within the time specified for compliance with the requirement shall be guilty of an offence. 38. (l) If the Executive Committee Member is satisfied that, notwithstanding the imposition of measures under a special regulatory regime, the default has not been remedied and is not likely to be remedied by the licensee, shall, by notice in the Gazette, order the transfer to another licensee of the water services in question. (2) The order of transfer shall make such provision as appears to the Executive Committee Member to be desirable or necessary with respect to any properly or assets being used by the by the defaulting licencee for the purposes of providing the water services. 39. (l) A licencee may enter into an agreement with any person with respect to the execution and maintenance, of such works as the licencee may require for the purpose of protecting the catchment areas, drainage of land, carrying out soil conservation measures or preserving the purity and quantity of water which the licencee is for the time being authorised to take. (2) An agreement under this section may be registered against any land of the person with whom it is made, and shall be binding upon and enforceable against such land or such person or his successor in title. 40. (l) A licencee who is of the opinion that there is a serious deficiency of water available for distribution or that such a deficiency is threatened may, with the approval of the Executive Committee member, for such period as is necessary prohibit or restrict as respects the whole or any part of its limits of supply, the use for any specified purpose of water supplied by him. (2) Before prohibition or restriction comes into force, public notice shall be given by the licencee, in one or more newspapers circulating within the affected area or by such No.1 Transfer of funchons by licencee Agreements to protect sources ofwater Power of licencee to prohibit or restrict use of water, No. I 24 Water and Sanitation other means as the Executive Committee Member may approve, of the proposed prohibition or restriction and of the date when it will come into force. 41. A water services provider shall be responsible for the following 2014 Responsrbrhhes of a water servlces provrder (a) provision of water services within the area specified in the licence; (b) to ensuring that water services and related works are provided, maintained and upgraded in the area specified; (c) collection, treatment and management of storm and wastewater; (d) collection, treatment and management of sludge regardless of its origin. 42. A licencee may construct and maintain drains, Exccutionofworksfor sewers and other works for preventing water from being waterprotectron polluted: Provided that before constructing any works the licensee shall, if the proposed works are likely to affect any water resource, obtain the approval of the County Executive Committee Member. 43. ( I ) A licencee receiving trade effluent into its control of trade effluent sewerage system shall ensure that it has in place measures for the receipt and handling of the effluent without causing pollution of the environment, harm to human health, damage to the sewerage system, a contravention of applicable laws or contravention of standards set by the Executive Committee member. (2) No person shall discharge any trade effluent from any trade premises into the sewers of a licencee without the consent of the licensee. (3) An application for consent shall be made to the licencee and shall state (a) the nature or composition of the trade effluent; the maximum quantity of the effluent which it is proposed to discharge on any one day; the highest rate at which it is proposed to (br (c) 2014 25 Water and Sanitation discharge the effluent; and (d) any other information required by the licencee. (a) The licencee's consent may be given subject to conditions, including conditions requiring pre-treatment and payments to the licencee of charges for the discharge. (5) Any person who is dissatisfied with the decision of the licensee on an application under this section may, within thirty days of the decision, appeal to the Executive Committee Member. (6) A person who contravenes the provisions of this section shall be guilty of an offence. (7) In this section, "trade effluent" means any liquid, whether with or without suspended particles, produced as a by-product in the course of any trade or industry. 44. (l) The Executive Committee Member may impose a sewerage services levy on all water services within the area of water service of a licencee, to cover a reasonable part of the cost of disposing of the water supplied within those limits. (2) A portion of the levy may, with the approval of the Executive Committee Member, be set aside by the licencee for use in the expansion of the sewerage system within the area of service of the licencee. 45. (1) A water service provider may enter into an agreement with any other person, for supply of water in bulk either within or outside the limits of supply of that water service provider. (2) Where it appears to the Executive Committee Member that (a) it is expedient that (D any water service provider should give a supply of water in bulk to another water service provider; and (ii) the other water service provider should take such a supply; and (b) the giving and taking of such a supply cannot be secured by agreement, the Executive Commiffee member may, by order served on No.1 Sewerage services lely Supply of water in bulk No. 1 2014 46. (1) The Executive Committee Member shall in Supervtstonand consultation with the relevant national water instifutions coordtnattonofwater oversee provision of water by water service providers. provrsron' (2) The Executive Committee Member may (a) regulate and coordinate water service providers; (b) ensure compliance to licensing conditions; (c) establish a mechanism for handling complaints from consumers regarding the quality or nature or water services; and (d) maintain a county data base or information system on water services. PART V-COUNTY WATER WORKSAND STORM WATER MANAGEMENT 47. The Board shall in addition to works by the water Publrc works bv thc service providers carry out public works in the County for Board the following purpose (a) the supply, distribution or apportionment of water for use in the County; (b) protection of any water resource, its source or catchment in collaboration the relevant bodies for that particular purpose; (c) water resource development in form of boreholes, dams among others; (d) storm water management; (e) drainage or reclamation of lands; (0 irrigation schemes and related works in collaboration with the National Irrigation Board and other relevant bodies; (g) construction of water storage systems; (h) rehabilitation and restoration of water storage facilities including conservation of wetlands and forests, water saving technologies, and 26 Water and Sanitation them, require the water service providers concerned to give and take such supply for such period and on such terms as it may specifu. 2014 48. (1) For the purposes of this section, a water catchment area means an area of land that water can drain across, over, or under to a common point on a stream, river, lake or wetland. (2) There shall be for each town or urban area, a watershed storm water management plan in accordance with the prescribed standards. (3) The town administrator or an officer responsible for managing an urban area shall ensure that the storm water management plan is development is developed and implemented through a consultative process. (4) The storm water management plan shall among others (a) identify, survey and inventory existing conditions that affect storm water runoff; (b) address issues of peak flows, flooding, ground water recharge, stream erosion and water quality. (5) A person or entity engaged in land development activity, construction of a building or any physical infrastructure that is exposed to water precipitation or an owner of such constructed infrastructure shall develop and implement a storm water management plan on a sub catchment basis in accordance with the prescribed standards. (6) Any person constructing a road shall ensure that there is a built in storm water management plan and system for that road. (7) Any construction of a building, physical infrastructure or a road shall not be approved unless the construction has a storm water management plan to be implemented. (8) A person who contravenes this section commits an 27 Water and Sanitation No.l ground aquifer re-charging; (i) recycling treated effluent water; 0) conservation of water and improvement of water quality; and (k) any other form of water works. Storm water managcmenl plan No. I 28 Wuter and Sanitation 2014 offence and shall (a) if a corporate body be liable to a fine of five hundred thousand shillings; or (b) if an individual to a fine not exceeding fifty thousand shillings or imprisonment for a term not exceeding three months or to both. 49. (1) The owner of a house, property or building Reductionorrunofr shall (a) install rain barrels with sufflcient capacity to store water from the building; (b) where applicable not permit storm water to become runoff; (c) reuse or recycle storm water collected for other purposes in the premises. (2) A person who contravenes this section commits an offence and shall be liable to a fine not exceeding shillings twenty thousand or to imprisonment for a term not exceeding one month. 50. (1) For the purposes of this section, a riparian buffer Riparianbuffers is an area around or situated next to bodies of water that act as buffers or cushions to that water body. (2) The Board in collaboration with other government agencies and local residents shall develop or restore riparian buffers along rivers, waterways or any water body. (3) No person will interfere with a restored riparian buffer in a way that exposes it to run off water. (4) A person who contravenes subsection (2) commits an offence and shall (a) if a corporate body be liable to a fine not exceeding shillings five hundred thousand shillings; and (b) if an individual be liable to a fine of fifty thousand or to imprisonment for a term not exceeding two months. 2014 29 Water and Sanitation PART VI-SANITATION SERVICES AND POLLUTION CONTROL 51. The Board shall in collaboration with the relevanl Measuresrorcontrolof bodies in the national and county government- pollution (a) set up a cost-effective pollution monitoring program; (b) enforce regulations through polluter-pays principle, and other legal and administrative actions set out under this Act, the No 8 or leee Environmental Management and Coordination Act and any other law; (c) ensure untreated effluent water is not released in to water resources; (d) treat effluent water and re-use or recycle it for irrigation and other purposes in the County; and cap'242 (e) put in place any other lawful measure to control of pollution. 52. The Board shall either directly or through public :Jl"#::orsanitation private partnership (a) provide necessary sanitation facilities and services; (b) construct, operate and maintain extensive system of sewers and treatment facilities to meet applicable discharge requirements. 53. (1) A person or entity shall, when disposing final complancewrtheffluenr effluent .o*piy with the grid.lir", prescribed by kenya standards Bureau of Standards. (2) A person who contravenes subsection (2) commits an oflence and shall (a) if a corporate body be liable to a fine not exceeding shillings five hundred thousand shillings; and (b) if an individual be liable to a fine of fifty thousand or to imprisonment for a tenn not exceeding two months. 54. (l) A person shall not discharge or dispose any .T:*:?il:wateror contaminated water or effluent unless in accordance with crlluent. No.1 30 No. 1 Water and Sanitation 2014 the prescribed guidelines and standards. (2) A person who contravenes subsection (1) commits an offence and shall upon conviction (a) if a corporate body, be liable to a fine not exceeding shillings five hundred thousand shillings; and (b) if an individual, be liable to a fine of f,rfty thousand or to imprisonment for a term not exceeding two months or both. 55. (l) A person shall not interfere with any sewerage facility or system unless with a written consent of the Corporation for the purposes of carrying out works within the area of the facility or system. (2) A person who contravenes this section commits an offence and shall be liable to a fine not exceeding shillings five hundred thousand or to imprisonment for a term not exceeding three years. 56. (l) Subject to the County Governments Act and any written law, the Corporation may impose tariffs or levy sewerage services ler,y on water or sanitation services for the purposes of disposal of water or sewage. (2) The tariffs imposed or levied under this section shall be subject to approval by the county executive commiffee. 57. (1) The Board shall constitute and convene the water and sanitation services sector wide forum. (2) The sector wide forum shall consist of all stakeholders in the water and sanitation sector as shall be prescribed. (3) The roles of the sector wide forum shall be (a) review and deliberate on water resources management and sanitation services; (b) propose policy or legislative interventions for effective implementation of this Act; (c) participate in development of measures, plans and strategies for implementing this Act. (a) The sector wide forum shall meet at least once every three months. Interference with sewerage system. Sewerage tanffs Sector wlde forum 2014 31 Water and Sanitatiort PART VII-GENERAL PROVISIONS 58. (1) The Executive Committee Member may make Regulations on any matter which is necessary or expedient to be prescribed for carrying out or giving effect to this Act. (2) Without prejudice to the generality of subsection (1) the Executive Committee Member may make Regulations No.1 Power to make Regulahons. (a) prescribe guidelines for developing watershed storm management plans; (b) prescribe guidelines for sanitation system and standards; (c) declare certain areas to be water protected areas; (d) prescribe the amount of fees payable under this Act generally or in particular cases; (e) prescribe circumstances under which licences and agreements may be applied for, granted, varied, refused or cancelled; (0 prescribe forms to be used under this Act; or (g) prescribe requirements to be met by providers of bottled or mineral water in the county. 59. (1) A person who knowingly- orrences (a) obstructs, interferes with, or diverts water from any watercourse or water resource, or negligently allows any such obstruction, interference, or diversion; (b) pollutes or causes to be polluted any water resource; (c) carries on agricultural activities within the ten metre mark along the banks of any water resource; (d) defaces, alters, removes or interferes with any county works, commits and offence and shall, upon conviction be liable to a fine not exceeding one hundred thousand shillings or to 32 No. 1 Water and Sanitatiort 2014 imprisonment of a term not exceeding twelve months or to both. (2) A person who commits an offence under this Act for which no other penalty is provided shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for term not exceeding twelve months or to both.