Fafi Wetland Catchment Protection Order, Legal Notice no. 141 of 2024

L.N. 138-141 water services, kamatargui harvesting and storage fafi Kenya Subsidiary Legislation, 2024 2735 LEGAL NOTICE NO. 141 THE WATER ACT (Cap. 372) IN EXERCISE of the powers conferred by section 22 of the Water Act, the Water Resources Authority makes the following Order — THE FAFI WETLAND CATCHMENT PROTECTION ORDER, 2024 1. This Order may be cited as the Fafi Wetland Catchment Protection Order, 2024. Citation. 2. In this Order, except where the context otherwise requires— “Act” means the Water Act; “association” means a water resources users association registered by the Authority in accordance with the Act; “Authority” means the Water Resources Authority established under section 11 of the Act; “basin area” means the area designated by the Authority as a basin area under section 24 of the Act; “Plan” means the Fafi Wetland Catchment Management Plan set out in the Second Schedule; “Protected Area” means the area declared to be a Protected Area under paragraph 4 and is demarcated for protection and conservation within the Fafi Wetland Catchment Management Plan; “riparian reserve” means land in respect of which management obligations are imposed on users or owners by the Authority due to its proximity to the Protected Area; “soil and water conservation plan” means soil and water conservation plan as defined in regulations relating to water resources; and “sub-basin area” means the area designated by the Authority as a basin area under section 24(2) of the Act. Interpretation. Cap. 372. 3. This Order shall apply to the National Government, national government entities, county governments, county government entities and any other person being a user of water resources and the riparian reserve of the Protected Area. Application of the Order. 4. (1) The Fafi Wetland Catchment Protection Area is declared to be a protected area for purposes of the Act. (2) The Fafi Wetland Catchment Protection Area shall be as per the extent and description set out in the First Schedule and is demarcated for protection and conservation within the Fafi Wetland Catchment Management Plan. Declaration of protected area. 5. (1) The Plan set out in the Second Schedule shall, without prejudice to the provisions of the Regulations made pursuant to the Act, Fafi Wetland Catchment Kenya Subsidiary Legislation, 2024 2736 be the basis for protection, conservation and use of the water resources within the Protected Area. Management Plan. (2) The Authority shall place signboards and beacons in or near the Protected Area or in appropriate public places frequented by land and water users and at the Authority’s offices; displaying up-to-date information about the condition of the water resources of the Protected Area. (3) The public notices shall contain information regarding the action required of water and land users to conserve and protect the water resources of the Protected Area. 6. A person who contravenes this Order commits an offence and shall, on conviction, be liable to the penalty prescribed under section 147 of the Act. Offence. Kenya Subsidiary Legislation, 2024 2737 FIRST SCHEDULE THE FAFI WETLAND CATCHMENT PROTECTION AREA (p.4(2)) Figure 1: Fafi Wetland Catchment Protection Area Kenya Subsidiary Legislation, 2024 2738 SECOND SCHEDULE THE FAFI WETLAND CATCHMENT MANAGEMENT PLAN (p. 2,5(1)) PART I: INTRODUCTION 1.1 Citation This Plan may be cited as the Fafi Wetland Catchment Management Plan. 1.2 Acronyms The following acronyms shall have the meanings as assigned below: LVSBA Lake Victoria South Basin Area AG Attorney General Ha Hectares KFS Kenya Forest Service Km Kilometer Km2 Square Kilometer mm Millimeters NEMA National Environment Management Authority NGAO National Government Administration Officer oC Degrees Celsius WDC WRUA Development Cycle WRA Water Resources Authority WRUA Water Resources Users Association 1.3 General objectives The general objectives of this Management Plan are to ensure: (a) sustainable management and use of wetland resources; and (b) the conservation of the wetland and its catchment areas to improve on the water quantity and quality. 1.3.1 Specific Objectives The specific objectives of this Management Plan are to: (a) enhance implementation of existing regulations to protect the rights of all the wetland users; and (b) identify funding sources to implement water conservation programs that help to enhance the wetland’s water resources. 1.4 Background Information on catchment and wetland areas In the context of water resources, a catchment area is an area of land from which water naturally flows into a water course. A catchment area provides a natural water storage mechanism or facility. During rainfall, the vegetation cover allows the water ample time to infiltrate through the soil and form sub-surface flow that recharges the rivers, springs and groundwater aquifers. Often, sub-surface flow is a relatively slow process, which explains the existence of permanent (perennial) rivers in various areas. Kenya Subsidiary Legislation, 2024 2739 The environmental status and conditions of a catchment influences the quantity and quality as well as sustainability of its water resources; for instance, rivers in a well- maintained catchment often have higher base flows even during the dry season with boreholes in such areas recording good or high yields. However, in poorly maintained and degraded catchments, poor infiltration of rainwater results into rapid surface run-off flowing into the river courses. This often causes flash-floods and large volumes of suspended solids which may aggravate siltation of water infrastructure. Furthermore, rivers in degraded catchment have unsustainable base flows during the dry season, hence prevalence of seasonal rivers. From the foregoing, catchment areas are vital components in water resource management whose protection is imperative. Particularly, vulnerable catchment areas or water resources such as wetlands and those which serve critical purposes such as groundwater recharge areas require more targeted conservation and protection interventions. Such areas need to be formally and legally delineated and protected from encroachment, pollution, overexploitation and destruction to ensure sustainable management, exploitation and ecological integrity. 1.5 Legal and policy framework for wetland and catchment protection 1.5.1 The Constitution of Kenya, 2010 Article 66 of the Constitution provides that the State may regulate the use of any land, or any interest in or right over any land, in the public interest, or land use planning. Furthermore, Article 69 (1) obligates the state to, interalia, ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources, and equitable sharing of the accruing benefits; encourage public participation in the management, protection and conservation of the environment; and eliminate processes and activities that are likely to endanger the environment. Article 69 (2) on the other hand places responsibility on every person the duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. Further, Article 70 provides a legal framework through which any person may seek redress in case of violation of their environmental rights. 1.5.2 The Water Act (Cap. 372) The Water Act provides a framework for the regulation, management and development of water resources, water and sewerage services. The Act establishes the Water Resources Authority (WRA) to regulate the management and use of water resources. The Act defines Catchment Area as an area that is part of a basin designated as such under the Act. In particular, section 22 and 23 provides for protection of catchment areas and conservation of ground water. Regulations relating to water resources made pursuant to the Act addresses the management and use of water resources including the manner of identification and protection of vulnerable catchment areas. 1.5.3 The Environmental Management Coordination Act (Cap. 387) The Environmental Management Coordination Act generally provides for sustainable management and exploitation of wetlands. Specifically, section 42 of the EMCA proscribes certain activities from wetlands and empowers the Minister responsible for environment to declare wetlands as protected areas and issue specific orders and standards for sustainable management of wetlands. 1.5.4 The Sustainable Development Goals (SDGs) The Sustainable Development Goals (SDGs), were adopted by the United Nations in 2015 as a universal call to action to end poverty, protect the planet, and ensure that by Kenya Subsidiary Legislation, 2024 2740 2030 all people enjoy peace and prosperity. Different countries including Kenya have adopted the SDGs as part of its international obligation, prioritizing the SDG targets as integral part of its development agenda. With regard to water resources, SDG 6 which aims to ensure availability and sustainable management of water and sanitation for all is critical by 2030 in catchment protection agenda. 1.5.5 The Ramsar Convention on Wetlands The Ramsar Convention on Wetlands is the international Convention that focuses on development of the Wetlands Policy. Kenya ratified the Convention in 1990. Since then, six Kenyan wetlands have been listed as wetlands of international importance. The convention provides a framework for national action and international cooperation for the conservation and prudent use of wetlands and their resources. 1.5.6 National Policies The water and wetland resources management and use is also guided by various policies including: (a) The National Water Policy, 2021 (Sessional Paper No.1 of 2021) which provides a framework for sustainable management and financing of water resources; water harvesting and storage; and for equitable, efficient, and universal access to water supply and reasonable standards of sanitation, for domestic, economic use and ecosystem sustenance. (b) The National Wetlands Conservation and Management Policy, 2014 (Sessional Paper No.12 of 2014) whose goal is to ensure wise use and sustainable management of wetlands in order to enhance sustenance of their ecological and socio-economic functions for the present and future generations of Kenya. PART II: BACKGROUND INFORMATION ON FAFI WETLAND 2.1 Fafi Wetland The Fafi Wetland is located within the Fafi Sub-County which borders Ijara, Garissa and Dadaab sub counties as well as the Republic of Somalia. The Sub County headquarters is at Bura and it has 5 Wards namely Bura, Dekaharia, Jarajila, Fafi and Nanighi. The total population is 392,510 with a population density of 9 persons per square kilometre the lowest among the sub counties of Garissa County. This is attributed to its expansive nature and poor infrastructure. The main source of livelihood is nomadic pastoralism with cattle, camel and goats being the most commonly reared. The Wetland area experiences a myriad of water resource problems including siltation, drying of the wetland, high evaporation rates and encroachment. Fafi Wetland falls under the catchment area 4JA within the larger Tana River Basin Area. It is the only wetland within Garissa County and is located within the arid area with scattered shrubs. Increase in population has occasioned degradation of the wetland for human settlement. Degradation is further exacerbated by the large number of livestock in the area. 2.2 Rationale for Fafi Wetland Protection Fafi Wetland is a significant ground water recharge area and a source which falls within the Upper Athi River Basin Area. Over the years, the wetland has been degraded due to encroachment for various land uses e.g. livestock grazing, human settlements, harvesting of trees and shrubs for firewood. The impact of climate change has also negatively impacted on the wetland thus reducing its economic and ecological value. Kenya Subsidiary Legislation, 2024 2741 A management plan is therefore critical for the conservation and protection of Fafi Wetland. This will tackle poor land use practices and restoration of the destroyed wetland. This is anticipated to be achieved through the implementation of the following strategies: (a) Sensitization of the local community and stakeholders on the need to protect the wetland to ensure environmental sustainability. (b) development of an action plan to protect and rehabilitate the wetland. (c) Participatory mapping of the protection zones around the wetland with the community. (d) Enforcement of laws on catchment and riparian protection. 2.3 Location and size The area identified for Gazettement is spread within Fafi sub location of Garissa County. It is located about 75km to the west of Garissa town. The wetland covers an area of approximately 30km2 and is within the 4JA-sub basin of Tana Basin Area. 2.4 Wetland area The Wetland receives water from the surrounding higher grounds and does not have visible outlet. Therefore, apart from the water that is lost through evaporation the rest is assumed to go into recharging ground water aquifers. The area measures about 30km2 out of the 8,635.83 km2 catchment area of the whole 4JA sub basin in Tana Basin as shown in Figure 2 below. Kenya Subsidiary Legislation, 2024 2742 Wetland Area Figure 2. Location of Fafi Wetland within 4JA Sub Basin Kenya Subsidiary Legislation, 2024 2743 2.5 Physiography, climate and rainfall 2.5.1 Physiography Fafi Wetland is located within the northern part of Garissa County at low lying land on an elevation of about 115masl. The area is enclosed within gentle slopes of less than 10%. Figure 3. Google Earth image of mid-Tana basin showing position of Fafi Wetland Figure 4. Google Earth image of Fafi Wetland Kenya Subsidiary Legislation, 2024 2744 2.5.2 Climate The climate around Fafi Wetland is tropical with varying amount of rainfall during the year. Climatic conditions given the arid nature of the county, temperatures are generally high throughout the year and range from 200C to 390C. The average temperature is however 360C. The hottest months are January to May, while the months of June to August are relatively cooler as indicated in Figure 5. The humidity averages 60g/m3 in the morning and 55 g/m3 in the afternoon. An average of 9.5 hours of sunshine is received per day. Strong winds are also experienced between April and August with the rest of the months getting calm winds. Figure 5: Mean Monthly Temperatures at 4JA Sub Basin 2.5.3 Rainfall Most parts of Fafi area are hot and dry with rainfall varying between 200mm and 250mm per year, and monthly rainfall is less than 5mm throughout the year. Long rains are between March and May while the short rains are between October and December. The driest months coincide with the coldest periods (July to August); and September while the hottest months are February, March and April. Monthly rainfall over the 4JA sub basin is shown in Figure 6. Kenya Subsidiary Legislation, 2024 2745 Figure 6. Monthly Rainfall over 4JA Sub Basin 2.5.4 Runoff Fafi Wetland falls within the middle reach of Tana River basin in the arid region of Garissa County. There is no major river around the wetland, and therefore, the surface water monitoring network within the basin cannot be used to determine the hydrology of the wetland. Rainfall run-off modelling was therefore used to determine the runoff over the sub basin (NWMP 2030). Analysis of mean monthly runoff indicate that there is runoff over 4JA in only six months of the year as shown in Figure 7. The highest mean monthly runoff of 11.38m3/s is in the month of December. Mean monthly runoffs for January and May are 7.4m3/s and 6.99m3/s respectively. Figure 7: Monthly Runoff over 4JA Sub Basin Kenya Subsidiary Legislation, 2024 2746 PART III: SITUATIONAL ANALYSIS 3.1 The vulnerability of the water resource Fafi Wetland falls under sub basin 4JA in mid-Tana basin area and it is drained by several lagghas as shown in Figure 1 above. The wetland has attracted a lot of human activities including clearing of indigenous vegetation and livestock grazing which has resulted into reduced recharge into the ground, lowering of the water table and a decrease in the wetland hydrological water balance. This unsustainable use of the wetland is threatening its survival and potential as a ground water recharge area hence the urgent need to protect it. 3.2 Land uses and their potential impact on the water resources The area around Fafi Wetland is predominantly arid with the main land use being livestock rearing. The potential impacts on the water resources as a result of human activities include: (a) Encroachment: People have encroached water catchment areas within the wetland. (b) Overexploitation of available resources: The population in the area has been rapidly growing over the years. This has led to excessive pressure on available natural resources leading to potential water use conflicts. (c) Deforestation: The wetland vegetation, the immediate catchment areas as well as the wider catchment is being depleted due human activities. The shrubs are rapidly being cleared to give way for charcoal burning and firewood. (d) Water Pollution: Practices such as poor human waste disposal, washing of clothes directly in the pans, direct livestock watering in the pans are the main causes of pollution and siltation. (e) Land degradation: is occasioned by gypsum mining, firewood harvesting and charcoal burning. Bush clearing is a common practice that also contribute to degradation of the wetland. (f) Water Scarcity: This problem is more pronounced during the dry months when most water pans are dry and water levels in boreholes and wells are very low. Most boreholes also have high conductivity and hardness thus limiting the use. During rainy seasons, the laghas carry a lot of water but the water is very turbid whth a lot of silt. (g) Adverse Climate and Geological Conditions: The area is characterized by high temperatures as high as 380C, low rainfall amounts with an annual mean of 250mm. The area also experiences high wind speeds. PART IV: MEASURES FOR PROTECTION, CONSERVATION AND REHABILITATION OF THE WETLAND The area within and around the Fafi Wetland is community land. In order to ensure the protection and conservation of Fafi Wetland is achieved and sustained, several measures and strategies will be applied. These include the following: 4.1 Proscribed activities According to the applicable legal framework, protected areas can be used in a sustainable manner. The activities to be undertaken within the Protected Area are those Kenya Subsidiary Legislation, 2024 2747 with zero impact on its ecological status and integrity. Unless specifically approved in writing by the Authority following an application in the prescribed form, the following activities shall not be undertaken within the Protected Area: (a) Tillage or cultivation. (b) Clearing of indigenous trees or vegetation. (c) Building of permanent structures (especially boreholes and houses). (d) Disposal of any form of waste. (e) Excavation of soil or development of quarries. (f) Planting of exotic species that may have adverse effect to the water resource. 4.2 Catchment protection plan The objective of the protection plan is to protect Fafi Wetland by encouraging activities that enhance both water quality and quantity while promoting beneficial land and water management practices and discouraging activities that cause the catchment degradation. Actions (a) Sensitization on catchment management. (b) Revegetation of the catchment area including indigenous and water friendly tree propagation. (c) Regulating activities that may lead to pollution and destruction of the eco- system (Charcoal burning, grazing, cultivation). (d) Controlling abstraction limits and observing of safe yields. (e) Controlling encroachment. Table 1 : Catchment protection activities planned to be undertaken Activity Sub-activity Timeframe Cost (Ksh) Responsibility Gazettement of Fafi Wetland as a Protected Area Delineate & survey the wetland catchment area. 2024 800,000 WRA, WRUA, Garissa County Lands & Survey Team Develop the Part Development Plan for the wetland catchment. 2024 500,000 WRA, Physical Planning Dept., Garissa County Create awareness on the status of the wetland’s catchment area. Continuous 500,000 WRA, WRUA, NEMA, County Government of Garissa Kenya Subsidiary Legislation, 2024 2748 Activity Sub-activity Timeframe Cost (Ksh) Responsibility Develop guidelines and conservation/pro tection plan through stakeholders’ engagement. 2024 5,000,000 WRA with all stakeholders Submit gazettement instrument to the AG. 2024 100,000 WRA Enforcement of Fafi Wetland Catchment Management Plan and other legislations Enforce Fafi Wetland Catchment Management Plan and relevant legislations. continuous 5,000,000 WRA, County Govt, NEMA, KWS. Re-vegetation of the catchment area Establish indigenous vegetation Propagation. Continuous 3,000,000 WRUA, WRA, KFS Grow live fence on the boundary of the catchment. Continuous 3,000,000 WRA, KFS, WRUA Planting and growing of propagated seedlings (Watering and tending). Continuous 5,000,000 WRUA Exotic species control. Continuous 500,000 WRUA Restricting activities that may lead to pollution and destruction of the catchment. Public awareness creation. Annually 1,000,000 WRA, CGK, KFS, WRUA. Controls/restricti ons on charcoal burning, grazing, and farming near the wetland catchment area. Continuous 300,000 WRA, CGK, KFS, WRUA. Kenya Subsidiary Legislation, 2024 2749 Activity Sub-activity Timeframe Cost (Ksh) Responsibility Enforcement Quarterly 500,000 NGAO, WRA, KFS, NEMA, WRUA. Alternative livelihood activities Promote bee keeping, poultry farming and butterfly keeping, eco- tourism. Continuous 10,000,000 WRA, WRUA, Agriculture and Livestock TOTAL 35,200,000 4.3 Conservation Plan The objective of the conservation plan is to protect the long-term environmental sustainability of the catchment for enhanced water resources yield and maintain its ecological functions in terms of flora and fauna. In the development of the management programmes, care has been taken to ensure that there are explicit and logical links between the vision statement, management objectives, and the management strategies to achieve the objectives. Table 2: Catchment conservation activities planned to be undertaken Activity Sub-activity Timeframe Cost Responsibility Establish the wetland and sub basin water balance Assess demand and availability 2024 1,000,000 WRA, County Government, WRUA, KWS Enhance Water use efficiency (introduction of technologies) Sensitization and model water use units – irrigation, domestic Demonstration on efficient water use technology Continuous 8,000,000 WRA, WRUA, County Government Total 9,000,000 Kenya Subsidiary Legislation, 2024 2750 4.4 Catchment Monitoring Plan The objective of the monitoring plan is to collect water resources data and maintain a comprehensive database on the Fafi Wetland and its catchment that provides information on water levels and quality of the wetland. 4.4.1 Actions (a) Establish a water quality and pollution control plan. (b) Water sampling and analysis. (c) Establish a water resources database. Table 3 : Catchment Monitoring Plan activities Action Sub Activities Time frame Costs Responsibility Water sampling and analysis Collect water resources samples and conduct analysis for biological and physico-chemical parameters Quarterly 500,000 WRA Capacity Building Capacity building on data collection and monitoring Continuous 500,000 Stakeholders and WRA Water resources monitoring Establish flow (water level) monitoring gauges within the wetland and the feeding lagghas 1 year 2,500,000 WRA, WRUA Total 3,500,000 4.5 Establishment and operationalization of management structure for Fafi Wetland The objective of the management structure is to ensure that Fafi Wetland Catchment Protection Area is managed in a sustainable manner with the involvement of all stakeholders under the leadership and coordination of WRA - TBA. This will be achieved through: (a) Setting up the management structure with defined ToRs and mandates. (b) Development of resources mobilization strategies to raise funds for operations, maintenance and conservation of the Protected Area. Kenya Subsidiary Legislation, 2024 2751 Table 4: Activities related to establishment and operationalization of management structure Activity Sub-activity Timeframe Cost Responsibility Setting up the management structure Form a committee from each of the following stakeholders: 1. Kenya Forest Service 2. National Environment Management Authority 3. National Government Administration in Garissa County; 4. Kenya Wildlife Service; 5. Ministry of Agriculture; 6. Fafi WRUA; 3 months 0 WRA Terms of References (ToR) will include but not limited to: i To manage the catchment prudently on behalf of other stakeholders. ii To submit quarterly reports to WRA - TBA on all planned and implemented activities. iii To develop by - laws and submit a copy to WRA – TBA for approval before implementation. Continuous 0 WRA, WRUA Develop and implement resources mobilization strategies Mandate and responsibilities: iv Promote the conservation and protection of the catchment. v. Promote equitable distribution of the resources within the catchment. vi. Promote socio-economic and environmental sustainability of the catchment. 0 Management Committee Kenya Subsidiary Legislation, 2024 2752 Activity Sub-activity Timeframe Cost Responsibility The sources of funds for the committee may include: vii. Bee keeping viii. Tree Nursery; ix. Eco-tourism; x. Well-wishers/Donors xi. WRA/WRUA - (WDC) Continuous 5,000,000 WRA Sub Total 5,000,000 WRA as the agent of the National Government in the regulation of use and management of water resources, will be the co-ordinator of the committee. The members of the Management Committee will serve on honorary basis as this will be a non-profit and non-commercial venture. The Committee will be required to solicit for funding from well-wishers and other sources to supplement the income that may be derived from activities permitted in the Protected Area. Figure 8 shows the proposed linkages between various stakeholders. The arrows indicate the direction of flow of information. The dotted lines indicate WRUA can also communicate directly to communities and vice versa. 4.6 Catchment and Water Resources Monitoring The objective of the monitoring plan is to collect and analyse Fafi Wetland and water resources data to provide information on water discharge or recharge, water quality and catchment health as a response to human activities within the neighbourhood. The following are the proposed linkages between various stakeholders. The arrows indicate the direction of flow of information. The dotted lines indicate WRUA can also communicate directly to communities and vice versa. Kenya Subsidiary Legislation, 2024 2753 Figure 8: Reporting Linkages for the Management Committee 4.7 Catchment and Water Resources Monitoring The following matrix will be used for Monitoring and Evaluation to capture detail of the progress of implementation of the planned activities. Table 7: Monitoring and Evaluation matrix template Activities Implementation Schedule Status (% completion) Planned Cost KSh. Total expenditure to date Source of funds Output Comments Start date End date Made on the 12th August, 2024. MOHAMED M. SHURIE, Chief Executive Officer, Water Resources Authority. PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI STAKEHOLDERS WRA MANAGEMENT COMMITTEE COMMUNITY WRUA