Typically, the process which results in the grant - or denial - by the government of a permit for the use of water is structured in the legislation as a sequence of steps, as follows:
The profile of applicants may be subject to qualifications which have the effect of narrowing down the range of prospective applicants. Corresponding pre-requisites of applicants are generally laid down in principal legislation, subordinate legislation providing the implementing details generally as a matter of documentary evidence in support of an application (see Supporting documents below). Occasionally, however, substantive pre-requisites are found in subordinate legislation. In the example given herebelow, the profile of applicants has been qualified by reference to nationality criteria. Furthermore, this example is a useful indication of how regulations can clarify a point which, however implied in the principal legislation, can be the source of controversy and confusion. It is generally implied in an Act of Legislature introducing for the first time a system of water use permits that government departments and agencies are subject to permit requirements like any user of the resource. However, deeply entrenched privileges, and the dimmed perception that powerful governmental or para-governmental water supply agencies tend to have of themselves as "users" of water, may leave in doubt as to whether the licensing requirements extend to the governmental and para-governmental sector. Unless the contrary is expressly stated in the principal legislation, the implied principle that the government and para-governmental sector is subject to the licensing requirements could be usefully clarified in the implementing regulations.
PHILIPPINES - Water Rules and Regulations 2. Only the following may file an application with the Council for permit/authority:
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While precise answers to this question are more a matter for the organization of labour internal to the government water administration than for legislation to provide for, subordinate legislation may provide useful guidance particularly where different government departments or agencies share the responsibility for administering a permit mechanism, as in the examples given.
I - PHILIPPINES - Water Rules and Regulations 3. Except for those on cloud seeding, any application for permit/authority in Section 1 shall be filed with the Office of the Public Works District Engineer, the NIA Provincial Irrigation Engineer, NPC Regional Managers or the LWUA Water District General Manager whichever is designated as agent by the Council in the province where the point of diversion is situated in the case of appropriation of waters or where the project is located in all other cases. II - VIET NAM - Decree No.179/1999 Stipulating the Implementation of the Law on Water Resources 9 - The granting of permits and the exploitation and use of water resources stipulated in Clause 1, Article 24 of the Law on Water Resources are specified as follows: ... (5) The competence to grant and withdraw permits:
(6) The Ministry of Agriculture and Rural Development shall prescribe the procedures for granting water resource exploitation and use permits. |
Formats of applications tend to be standardized and appended to subsidiary legislation as "Forms" for the convenience of the applicant. In the alternative, regulations may prescribe the content of applications, leaving the choice of the format to the applicant (VI). Practice in regard to the design of Forms varies considerably, with formats of varying complexity generally covering a variety of uses combined in one Form (I to III). In addition, different standard forms may be prescribed with respect to different categories of water - notably, surface water as opposed to groundwater (IV and V; forms for applications in respect of groundwater resources are presented in Chapter III on GROUNDWATER DEVELOPMENT AND CONSERVATION) - and with respect to different classes of applicants (see, in this particular respect, sub-chapter 8 below).
I - TANZANIA - Water Utilization (General) Regulations, 1975 First Schedule - Form A - Application for Water Right - See Appendix I, page 283. II - UNITED KINGDOM - Water Resources (Licences) Regulations, 1965 Model Form 1 - Application for a Licence (Other than a Licence of Right) to Abstract Water from an Inland Water - See Appendix I, page 285. III - MALAWI - Water Regulations, 1969 Form WRB.1 - Application for a Grant of Water Right/Certificate of Existing Water Rights (Surface Water Only) - See Appendix I, page 291. IV - JAMAICA - Water resources regulations, 1995 3. Application for abstraction licence. Form A. Schedule. (1) An application for a licence required pursuant to section 19 of the Act shall be made to the Authority in the form set out as Form A in the Schedule. (2) An application made under paragraph (1) shall be in duplicate and shall be accompanied by such maps, documents or information as the Authority may require and by the relevant fee. ... Schedule - Form A - Application for a licence to abstract and use water - See Appendix I, page 293. V - AUSTRALIA - NORTHERN TERRITORY - Water Regulations, 1999 8. Licence to take or use surface water (1) An application under section 45(1) of the Act for a licence to take or use water ("Licence to Take or Use Surface Water") shall be in accordance with Form 11 and shall be lodged with the Controller. Form 11 - Application for a licence to take or use surface water - See Appendix, page 294. VI - ETHIOPIA - A Proclamation to Provide for the Utilization of Water Resources, No. 92/1994 4. Application for a permit (1) An application to be submitted to the Appropriate Authority for a water use permit shall contain the following information:
(2) Where reasonably required by the Appropriate Authority, maps, plans and designs shall be submitted together with the application mentioned in sub-Article (1) of this Article. |
Documentary evidence supporting the application may be required to assist the decisionmakers in the appraisal of a proposed water utilization or project. Relevant requirements may feature as a matter of standardized practice in the forms provided for the filing of applications (see the preceding paragraph), or may be separately provided for (I to III and VI). Supporting evidence requirements can also be used to qualify the profile of prospective applicants. In the particular example given at IV herebelow, the basic qualification as to ownership or possession of riparian land is laid down in the principal legislation[2]. The Regulations clarify that the prescribed statutory requirement is also met if the circumstances described in the Regulations occur. Documentary evidence of the environmental impact of a project can also be required by subordinate legislation (V).
I - KENYA - Water (General) Rules 28. (1) Except as otherwise provided, any plan filed in accordance with these Rules shall be either:
Provided that no sensitized print which has been pasted or gummed on linen or other material shall be accepted by the Water Apportionment Board. (2) All plans shall be rolled and not folded. 29. (1) Every plan shall have a title, in which shall be incorporated the name of the applicant and the name of the body of water concerned in the application to which it relates. (2) A space not less than 1 1/2 inches wide by 8 inches long in the lower left-hand corner of the drawing shall, where practicable, be reserved for use by the Water Apportionment Board. 30. Except where otherwise specially provided in these Rules or at the discretion of the chairman, every longitudinal section shall be drawn to the same horizontal scale as the corresponding plan, and shall show the intended level of the proposed works, the height of every embankment, if any, and the depth of cutting, and shall likewise show a horizontal datum line. 31. Every plan shall be drawn to such a scale as will permit of all the details being legibly recorded, and where a scale has been prescribed shall not be drawn to any less scale: Provided that the chairman, at his sole discretion, may accept plans drawn to other scales. 32. (1) Every plan shall be signed and dated by the person making it, and, if it is made by any person other than the applicant to whom it relates, the applicant or his lawfully authorized agent shall also approve, sign and date it. (2) Every plan prepared by a qualified engineer shall have endorsed thereon a certificate in the following form: CERTIFICATE I/We.......................... of........................... hereby certify that this plan was made by me/us [or under my/our direction] and that it correctly represents the places, lands, areas and works shown thereon.
33. (1) Every plan on tracing cloth shall be drawn and lettered neatly with waterproof drawing ink, and shall be prepared so as to print clearly on sensitized paper. (2) Every plan, other than those on tracing cloth and unamended prints therefrom, shall be drawn on linen-backed material or other substantial material acceptable to the Water Apportionment Board, and shall be drawn and lettered neatly with waterproof drawing ink. 34. All reduced levels or elevations shown on any plan, or set of plans, longitudinal sections or cross sections of any work or works shall be to the same datum, and reference shall be made on at least one sheet of any set of plans, longitudinal sections or cross sections indicating the datum used, and also the positions of all bench marks, which shall be properly located and described on the general map (and of which bench marks one shall be in the immediate vicinity of the point of diversion, abstraction or storage), from which the datum may be gained. 35. Every plan shall have clearly marked thereon the scale or scales, and when the nature of the plan allows it shall have the north point, true or magnetic, or both, shown thereon. 36. Except where otherwise expressly provided, with every application for a permit the following plans shall be submitted in duplicate:
37. Every plan shall be given a registered number by the Water Apportionment Board, and shall thereafter be referred to by such number: Provided that when a plan is amended the amended plan may, if the chairman thinks fit, be given an amended number; and the date on which any plan is amended, together with the nature of the amendment, shall be marked on such plan. 38. Where in any project requiring a plan or plans to be submitted under these Rules:
the applicant shall submit such of the detail plans referred to in rules 39 to 48 of these Rules as are applicable, and such plans shall be prepared by a qualified engineer unless the Water Apportionment Board otherwise permits: Provided that, if in the opinion of the Water Apportionment Board the nature of the works is such as not to require the submission of detail plans, the chairman may in writing dispense with such requirements or part thereof. 42. (1) In every case where a canal is to be constructed, there shall be submitted, when so required by the Water Apportionment Board, a site plan drawn to a scale of not less than 1 in 5,000 and a longitudinal section of the canal with a sufficient number of typical cross sections to illustrate the forms which the canal, when constructed, will take. (2) The following particulars shall be shown on the longitudinal section:
(3) The cross section shall also show such of the above particulars as are relevant, and the position of each cross section shall be shown on the longitudinal section. 43. (1) Where a canal is to be constructed and the carrying capacity at full supply level is expected to exceed three cusecs for any purpose other than a power purpose, all plans shall be prepared by a qualified engineer, unless the Water Apportionment Board decides otherwise, and there shall be submitted, in addition to the plan required by rule 42 of these Rules, an accurate longitudinal section of the proposed canal, on which shall be recorded in addition to the information required under rule 42 of these Rules, the position of all structures in connection with the canal, the natural surface and proposed bed levels, full supply depths, proposed gradients and top level of embankments. (2) The scale of such longitudinal section shall not be less than 1 inch to every 500 feet horizontal and not less than 1 inch to every 10 feet vertical, or shall be such other scales as the chairman may in writing approve. 44. For all the structures, including regulators, escapes, spillways, drops, chutes, flumes, syphons, tunnels, outlets, bridges, railway crossings, canal crossings, culverts, overchutes, gauging devices, valves or any other apparatus, device or thing, in connection with canals or pressure conduits, there shall be submitted, when required by the Water Apportionment Board, plans showing plan views, elevations and general cross sections, drawn to a scale of not less than 16 feet to one inch, except where any structure is 200 feet or more in length, when the plan view and elevations may be shown to a scale of not less than one inch to 50 feet. 45. (1) Whenever the quantity of water to be diverted by means of a pipeline or other pressure conduit is less than 200,000 gallons per day, there shall be submitted, when required by the Water Apportionment Board, a sketch longitudinal section, on which shall be marked the low and normal water levels and the bed level of the body of water, at the intake from which the water is to be diverted or abstracted, the location of any works such as pumping plants, intake levels, pressure tanks and stand-pipes, and the internal diameter and material of the pipes, with the invert level of the pipe at which any changes in size or material occur, and the level of the pipe at the point of discharge; and the scales used shall not be less than 1 inch to 500 feet horizontally and 1 inch to 25 feet vertically, or such other scales as the Water Apportionment Board may approve. (2) Whenever the quantity of water to be conveyed by means of a pipeline or other pressure conduit is greater than 200,000 gallons per day, there shall be submitted, when required by the Water Apportionment Board, an accurate longitudinal section to a horizontal scale of not less than 1 inch to 500 feet and a vertical scale of not less than 1 inch to 25 feet, on which shall be shown the low, normal and high flood levels, and the bed level of the body of water at the proposed intake, the invert levels, the hydraulic gradients of the pipeline, the natural surface of the ground, the location of any works such as pumping plants, pump house, intake wells, stand-pipes, air valves, break pressure tanks and valves, and the internal diameter and material of the pipes, with the invert levels of the pipes at the points at which changes in size or material occur. (3) The provisions of this rule shall not apply to the distribution or reticulation of any water works for any community, public or urban project, or water undertaker. 46. If a permit is required for a power purpose for the development of more than 100 brake horse-power, there shall be submitted, when so required by the Water Apportionment Board, a contour plan, to a scale of not less than 1 inch to 100 feet, with a contour interval of not more than 5 feet, showing the proposed location of the power-house and other buildings and the point of return of the water, for each power-house site that will be a part of any project. 49. All designs of earth dams, except as hereinafter provided, shall be prepared in accordance with the following minimum conditions:
50. An applicant shall, when so required by the Water Apportionment Board, submit a specification, which shall include the following:
II - PHILIPPINES - Water Rules and Regulations 4. All applications shall be filed in the prescribed form, sworn to by the applicant and supported by the following: A. For a Water Permit for Agricultural Purposes: (1) Any document of ownership/possession of the land to be developed such as:
(2) Location Plan of Area showing:
B. For a Water Permit for Hydraulic Power Development and Industrial Purposes, or for a Permit to Dump Mine Tailings or Wastes: (1) Location and conceptual plans on convenient scale showing the source of water, layout of proposed works, and point of diversion determined graphically by its latitude and longitude; (2) Brief description of project including among others, how water will be used, amount of water needed for the purpose, power expected to be generated if applicable, amount of water to be discharged back to the source and measures to be taken to insure that such waters are not polluted, other relevant information; (3) Articles of Incorporation or Articles of Partnership in case applicant is a private corporation or partnership, or certificate of registration in case of cooperatives; and (4) When the application is for industrial use of ground water, the location and spacing of drilling well sites instead of diversion point should be indicated in the location plan. C. For a Water Permit for Municipal Purposes: (1) Location, topographic and layout map showing the relative position of source area to be supplied, and diversion point determined graphically by its latitude and longitude; (2) Brief description of the project, including nature and amount of water to be used, population (3) Articles of Incorporation or Articles of Partnership in case applicant is a private corporation or Partnership, or Certificate of Registration in case of cooperatives; (4) When the application is for industrial use of ground water, the location and spacing of drilling well sites determined graphically by latitude and longitude should be indicated in the location plan; and (5) When it involves the reuse of waste water for human consumption, the application should be accompanied by a clearance from the Department of Health allowing the reuse of said waste water and setting forth the conditions therefor. D. For a Water Permit for Recreational, Fisheries and Other Purposes: (1) Location and conceptual plan showing the relative location of the project with the body of water to be utilized for the purpose, determined graphically by its latitude and longitude; (2) Brief description of the project including among others, how the water is to be used, area of water surface needed for the purpose or amount of water to be appropriated and location of diversion canal if diversion is to be made, scheme of development, and other relevant information; and (3) Articles of Incorporation or Articles of Partnership in case applicant is a private corporation or partnership, or Certificate of Registration in case of cooperatives.... F. Such other documents that may be required by the Council. 5. In addition to the requirements under Section 4, the following are required in the specific instances indicated: ... D. For all Applications to Appropriate Water: Water permit applications filed for any purpose shall be accompanied by a Certificate of tree planting, survival, or completion as the case may be in the name of the applicant as provided under P.D. 1153. III - UNITED KINGDOM - Water Resources (Licences) Regulations, 1965 5.... (2) The application shall be accompanied by a map (as mentioned in regulation 4 (5)) for the purpose of showing the matters required so to be shown by whichever is appropriate of the three next following regulations and shall also be accompanied by such other documents (if any) as thereby required. 6.... (2) The matters required to be shown on the map accompanying the application are:
... (4) The application shall be accompanied by:
7.... (2) The matters required to be shown on the map accompanying the application (including any section 56(2) application) are the matters specified in paragraph (2) of the last preceding regulation (except the relevant land for the purposes of section 27 of the Act referred to in sub-paragraph (2)(b)) as required in the case of applications to which that regulation applies. (3) A section 33(1)(a) application, and a section 56(2) application, shall be accompanied:
(4) A section 33(1)(a) application, made in reliance on a statutory provision which does not specify or otherwise limit the quantity of water authorised to be abstracted, shall also be accompanied by evidence in writing for the purpose of proving to the reasonable satisfaction of the river authority any particulars included in the application with respect to quantities of water abstracted in the relevant period ending with 1st April 1965 and other matters, as mentioned in section 34 (3) to (5) of the Act. (5) A section 33(1)(b) application shall be accompanied by evidence in writing for the purpose of proving to the reasonable satisfaction of the river authority any particulars included in the application with respect to quantities of water abstracted in the relevant period ending with 1st April 1965 and other matters, as mentioned in section 35 (2) to (4) of the Act and a statement included in the application with respect to matters referred to in section 35(5) of the Act. (6) Where evidence in writing provided by an applicant in pursuance of paragraph (4) or paragraph (5) of this regulation relates to any quantity of water which is shown in the application to be an estimated quantity, that evidence shall include a statement explaining how the estimate in question was made. 8.... (3) In relation to any application in pursuance of section 37 (3) of the Act for a combined licence, the relevant provisions of this part of the regulation shall have effect, subject to the following provisions of this paragraph, as if the application comprised an application for a licence to impound and a separate application for a licence to abstract water; and:
IV - UNITED KINGDOM - Water Resources (Licences) Regulations, 1965 6.... (3) If the applicant is not a person who is entitled to make the application in accordance with section 27 of the Act by virtue of occupying relevant land for the purposes of that section, the application shall be accompanied by the evidence which the applicant tenders with a view to satisfying the river authority:
V - UNITED KINGDOM - The Water Resources (Environmental Impact Assessment) (England and Wales) Regulations, 2003 2. Interpretation In these Regulations, expressions which are used in the EIA Directive have the same meaning as in that Directive, and - "the 1991 Act" means the Water Resources Act 1991; "abstraction or impounding licence" means a licence under Chapter II of Part II of the 1991 Act; "authorisation" means -
3. Requirement for an environmental impact assessment (1) An environmental impact assessment shall be carried out in accordance with these Regulations in relation to a relevant project. (2) A project is a relevant project if -
(3) A project is not a relevant project if it involves -
5. Environmental statement to be provided in relation to an application for authorisation An environmental statement which complies with regulation 6 shall be provided in relation to an application made after 31st March 2003 for, or for the variation of, an authorisation in connection with a relevant project. 6. Environmental statement, and opinions of the Agency on the contents of an environmental statement (1) An environmental statement shall include such of the information set out in Schedule 2 as is relevant to the relevant project and at least the following -
(2) If a person so requests before making an application for, or for the variation of, an authorisation, the Agency shall, having consulted the person making the request and the consultation bodies, give an opinion on the information which should be contained in an environmental statement accompanying such an application. (3) The fact that the Agency has given an opinion under paragraph (2) shall not preclude it from subsequently requiring the person making the request to provide further information. (4) The Agency and the consultation bodies shall, if requested by a person proposing to make an application for which an environmental statement is required, enter into consultation with him to determine whether they have in their possession any information which may be relevant to the preparation of an environmental statement and, if they have, they shall make it available to him. (5) Paragraph (4) shall not require the disclosure of information which is capable of being treated as confidential or must be so treated under regulation 4 of the Environmental Information Regulations 1992. (6) Any body which provides information to a person under paragraph (4) may require him to pay a charge which reflects the cost of making that information available. (7) If the Agency considers that an environmental statement does not contain all the information required by paragraph (1), it shall by notice in writing -
Second schedule - Information about proposed project - See Appendix I, page 296. VI - UGANDA - Water Resources Regulations, 1998 3. Application for a water permit ... (3) The Director may,
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Payment of filing fees or charges is customarily required to help defray the administrative costs of processing applications. Practice in this regard - as reflected in subsidiary legislation - is fairly consistent, with requirements that applications be accompanied by evidence of payment of a given sum of money, complemented by exemptions (I, III, and IV) and refunds (II).
I - PHILIPPINES - Water Rules and Regulations 6 - There shall be imposed and collected a fee of One Hundred Pesos (P 100.00) from every applicant, except government agencies, water districts, and duly organized associations or cooperatives for irrigation or rural water supply which shall be paid to the Council in postal money order through the Office where the application is filed. II - TANZANIA - Water Utilization (General) Regulations, 1975 25. (1) The fees set out in the Second Schedule to these Regulations shall be payable to the Water Officer in respect of the matters specified in that Schedule. (2) Where an appellate authority allows an appeal under section 32 of the Act, it may, if it deems it fit, direct the Water Officer to refund any fee or any part thereof paid in respect of the appeal and the Water Officer shall give effect to the direction.... Second Schedule - Fees |
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Item |
Matter |
Fee Shs. |
1. |
Application for a water right to be made appurtenant to land (including an application for water right which comprises an application for the water right to be made appurtenant to land) |
100/- |
2. |
Application for a water right other than an application specified in item |
150/- |
... III - SOUTH AFRICA - Regulations on Registration of Water Use, 1999 12. Cost of registering a water use (1) No fee will be charged for an application to register a water use if the completed registration forms are submitted in compliance with regulation 3. (2) A fee may be charged for registration for any application not submitted within a stipulated period. (3) Replacement of a lost or damaged registration certificate will be subject to a charge to cover the costs of replacement. IV - UGANDA - Water Resources Regulations, 1998 Second Schedule - Fees and charges - See Appendix I, page 297. |
Subsidiary legislation may provide details which have the effect of clarifying matters left in doubt by principal legislation. The first example given herebelow concerns applications in connection with proposed uses contemplating multiple points of abstraction from one source of water or individual abstractions from a multiplicity of sources (I). The second example deals with joint licences, i.e. licences requested by multiple applicants having joint interests (II). The third example provides additional requirements of applications concerning a particular category of streams (III).
I - KENYA - Water (General) Rules 125. (1) A separate application shall be made for each point of diversion or abstraction or storage from a body of water or for each separate point of diversion from a reservoir or dam. (2) In the case of any works taking water from several bodies of water, a separate application shall, in all cases, be made for each source of supply. II - AUSTRALIA - NORTHERN TERRITORY - Water Regulations, 1999 18. Joint interests (1) Every joint application for a licence, permit or consent shall be in accordance with the appropriate form for such an application but shall be in the names of and signed by each joint applicant, or his or her agent, and shall bear the address of each such applicant. III - CANADA - BRITISH COLUMBIA - Sensitive Streams Designation and Licensing Regulation, 2000 2. Application of regulation This regulation applies to an application for a licence, an approval or an amendment to a licence or an approval, in respect of a sensitive stream. 3. Designated streams The streams listed in the Schedule[3] are designated as sensitive streams under section 6 (2) of the Act. 4. Qualifications of expert providing report If an applicant relies on a report of an expert or other form of evidence prepared by an expert and submitted with or in support of the application, the comptroller or regional water manager must be satisfied that the expert is qualified to provide that evidence. 5. Powers to require additional information for purposes of application For the purposes of considering an application, the comptroller or regional water manager may, at any time, require the applicant to provide further relevant information including, but not limited to, any of the following:
7. Mitigation strategies (1) In regard to an application for a water licence, approval or amendment to a licence or an approval, an applicant must provide information to the comptroller or regional water manager on mitigation strategies during project planning, design, construction and operation, which may include but are not limited to the following:
(2) For subsection (1) (f), "natural state" means as close as possible to the state that exists before the work is to begin as proposed by the application. (3) The comptroller or regional water manager may make it a condition of a licence, approval or amendment to a licence or an approval that the licensee provide on site monitoring of
(4) Any on site monitoring required under this regulation must be carried out by a person whose qualifications are acceptable to the comptroller or regional water manager. (5) Post construction monitoring may be discontinued only if
8. Compensation proposals (1) In this section, "in kind compensation" means fish habitat that is provided in place of or instead of fish habitat that would suffer a significant adverse impact under the proposal. (2) If an applicant proposes to provide in kind compensation for fish habitat that would suffer a significant adverse impact under the proposed use, the compensation proposal
(3) A proposal for in kind compensation for fish habitat must make full compensation for the significant adverse impact on the fish habitat by providing for in kind compensation in the following locations and in the following order of priority:
(4) If the in kind compensation at the first applicable location listed in subsection (3) is insufficient to fully compensate for the significant adverse impact on the fish habitat, the proposal must provide for the remainder of the compensation to be satisfied at the next applicable location in the list. (5) The applicant will be responsible for monitoring and maintenance of the in kind compensation for fish habitat until one of the following occurs:
(6) Subject to subsections (9), (10) and (11), if in kind compensation cannot be achieved as provided in subsections (2) to (4), the comptroller or regional water manager may approve financial compensation for the habitat that will suffer a significant adverse impact. (7) If financial compensation is approved by the comptroller or regional water manager, the applicant must employ a person whose qualifications are acceptable to the comptroller or regional water manager to determine the cost of recreating the habitat that will suffer a significant adverse impact, including the cost of developing and monitoring any plan. (8) In considering whether to accept financial or in kind compensation, the comptroller or the regional water manager must consider whether the approval of the federal Department of Fisheries and Oceans has been obtained in respect of that compensation. (9) The comptroller or regional manager must not accept compensation under section 6 of the Act in relation to a fish population if the fish population whose sustainability is at risk is a species of fish designated under the Wildlife Act as a threatened or endangered species. (10) The comptroller or regional manager may refuse to accept compensation under section 6 of the Act in relation to a fish population if the fish population whose sustainability is at risk is
(11) The comptroller or regional manager must not accept compensation under section 6 of the Act if the impact on fish habitat of implementing the proposal would critically reduce the sustainability of the fish population. |
This is a matter generally left to the internal organizational procedures and functioning of the government department or agency responsible for receiving and processing applications. However, special requirements may be laid down by legislation with a view to ensuring access by the general public to the information concerning applications made.
UNITED KINGDOM - Water Resources (Licences) Regulations, 1965 17. (1) The register which, by virtue of section 53 of the Act, is required to be kept by a river authority and to be available for inspection by the public at all reasonable hours shall contain the following information with respect to every application made to the river authority for the grant, revocation or variation of a licence under the Act, namely:
(5) Every entry in the register with respect to an application made after 30th June 1965, or to a decision on any application, shall be made, within 14 days from the date of receipt of the application or of the issue of the decision, and every such entry with respect to an application made before 1st July 1965 shall be made within 28 days from the date of receipt of the application. |
Subsidiary legislation evidences a fairly consistent practice of requiring the responsible government department or agency to elicit the views of users of water who may be affected by the proposals contained in the application. Relevant requirements are cast in the form of an obligation of either the applicant or the government to give prescribed publicity to an application, and to invite objections (I to IV, VI to VIII). While a well-informed government water resources administration will already have all the data concerning the rights and water entitlements of other potentially affected water users, seeking the views of such users may minimize the potential for conflict among water users in general, and, in particular, for confrontation and appeal against the government water administration at a later stage of the process. At any rate, the information provided by users in their own self-interest may be of great value in upgrading the water rights data base available to the government water administration. The views of the general public may also be elicited, particularly where the proposed utilization or project has or may have an appreciable environmental impact. Formal Environmental Impact Assessment requirements may be mandated by separate environment protection legislation, in which case water resources management regulations will ordinarily defer to it; or they can be mandated and regulated by the water resources legislation (see Step One, under the heading Supporting documents (V) above). Field investigations may also be required to determine whether the hydraulic structures proposed are adequate; whether the applicant could use all the water or facilities for which he applies, or whether the proposed use will adversely affect other water users or other related interests (V).
I - MALAWI - Water Regulations, 1969 6. (1) The Water Resources Board shall, on receipt of an application for a grant under section 10 and before making such grant, and may on receipt of any other application under the Act in respect of which in its opinion public notification should be given, cause to be published in the Gazette and in at least one newspaper circulating in Malawi in such manner as it may deem necessary a notice giving the purport of the application and inviting objections to be submitted within a period of 30 days from the date of publication. (2) Objections made in response to a notice under subsection (1) shall be submitted in writing to the Water Resources Board within the time specified and shall state:
(3) It shall be within the discretion of the Board to adjudicate upon any objection made without hearing any personal representations. (4) No application in respect of which a notice has been given under subregulation (1) shall be considered by the Water Resources Board until the expiration of 30 days after the publication of such notice. II - PHILIPPINES - Water Rules and Regulations 8. Upon receipt of an application for water permit, the Office concerned shall process the same to determine compliance with the requirements prescribed in Section 4 hereof. If found in order, and upon payment of the filing fee, notices of the application shall be posted in a conspicuous place in said office and shall remain posted for a period of Sixty (60) days. Notices of application shall, likewise, be sent by the said office to the following for posting in a conspicuous place for the same period.
Copies of the notice of application shall, likewise, be furnished to concerned Regional Offices of the Ministry of Public Works, National Irrigation Administration, National Power Corporation and Ministry of Natural Resources and Local Water District Office, if any. 9.... B. Any person who may be adversely affected by the proposed appropriation may file a verified protest with the Council or with any deputized agency investigating the application within sixty (60) days after posting of the Notice of Application in the office where the application was filed. Protests to an application for water permit shall be governed by the rules prescribed for resolving water use controversies. III - TANZANIA - Water Utilization (General) Regulations, 1975 3. Where an application is made in accordance with section 15 of the Act, the Water Officer shall prepare a notice setting out the particulars of the application and cause it to be:
5. (1) A Water Officer may refuse to consider any objection to an application for a water right, the apportionment of water right, or an easement if the objection reaches him forty days after the relevant date. (2) In this regulation the expression "relevant date" means:
IV - UNITED KINGDOM - Water Resources (Licences) Regulations, 1965 4.... (4) The forms numbered N1 to N4 in Schedule 2 to these regulations are the forms of notice prescribed for the purposes of section 28 of the Act (and for the purposes of that section as applied by sections 37 (5) and 42 (2) of the Act), by virtue of which applicants are required (with certain exceptions) to publish, and in some circumstances serve, notices with respect to their applications; and any reference in this part to the appropriate section 28 notice in relation to an application is a reference to a notice in that one of the forms mentioned above which is appropriate to the application, or in a form substantially to the like effect. ... 10.... (2) In the case of any application for a licence (other than a licence of right) in pursuance of which the applicant proposes either to abstract water, or to construct or alter impounding works (or to do both) in the area of a National Park:
... Form N1 - Notice of Application for Licence to Abstract Water - See Appendix I, page 298. Form N2 - Notice of Application for Licence to Obstruct or Impede the Flow of an Inland Water by Means of Impounding Works - See Appendix I, page 299. Form N3 - Notice of Application for a Combined Licence to Obstruct or Impede the Flow of an Inland Water by Means of Impounding Works and to Abstract Water - See Appendix I, page 301. V - PHILIPPINES - Water Rules and Regulations 9. A. Investigation and Studies After seven (7) days from the first day of posting of notice at the office where the application is filed, the office concerned shall determine:
VI - JAMAICA - Water resources regulations, 1995 24. Procedure on receipt of application for licence (1) On receipt of an application for a licence to abstract and use water the Authority hall cause a notice of the application - -
(2) The Authority shall also submit an application referred to in paragraph (1) to any agency or department of government exercising functions in relation to water and such agency or department of government may, within the specified period, make such recommendations as it thinks fit respecting the application. (3) A notice under paragraph (1) shall - -
(4) In this regulation "specified period" means a period of thirty days or such further period as the Authority may allow from the date on which a notice of the application was, pursuant to paragraph (1) (a), first published in such daily newspaper or, from the date of submission of the application to such department or agency, as the case may be. VII - AUSTRALIA - NORTHERN TERRITORY - Water Regulations, 1999 8. Licence to take or use surface water (1) An application ... for a licence to take or use water ("Licence to Take or Use Surface Water") ... shall be lodged with the Controller. (2) The Controller may publish in a newspaper circulating in the locality of land to which the application relates a notice, in accordance with Form 12, of the application having been made and if the Controller does so he or she shall forward a copy of the notice to the owners and occupiers of any land upstream or downstream of the proposed point of taking of the water which, in the Controller's opinion, may in any way be affected as the result of the granting of the licence. (3) The costs of publication of a notice under subregulation (2) shall be met by the applicant. ... Form 12 - Notice of application - See Appendix I, page 302. VIII - UGANDA - Water Resources Regulations, 1998 4. Advertisement of application (1) The Director may require an applicant for a water permit, at his cost, to advertise the application for a water permit in such manner as the Director may in writing specify. (2) The Director may request the applicant referred to in subregulation (1), in any notice advertised under that subregulation, to invite submissions on that publication within such period as the Director may in writing specify. 5. Director to consult public authorities on applications The Director shall, after receipt of any application referred to in regulation 3, refer such application to any public authority designated by the Committee for consideration and comments. |
Decisions as to whether to grant or refuse a permit or to grant it subject to terms and conditions departing from the applicant's requirements, are typically left to the discretion of the responsible government decisionmaker, with or without the prescription of a time-limit within which decisions on applications must be arrived at (I - III, and VI). Whilst the law cannot and should not prescribe specific decisions, it can nonetheless orientate the water permit decisionmaking by enumerating the kinds of uses for which a permit may be granted (XII), and by prescribing criteria and factors to be taken into account. Such criteria will, inter alia, provide useful ammunition for challenging a decision on its merits (IV and VII - XI). Also, subsidiary legislation may provide for decisions resulting in the grant of a "temporary" permit, pending further review of the application and a final decision on it (V).
I - KENYA - Water (General) Rules 25.... (5) The Water Apportionment Board shall consider such application, and may issue a permit on such terms and conditions as it thinks fit, or may refuse it.... II - PHILIPPINES - Water Rules and Regulations 11. The Council shall approve or disapprove applications for water permits, within sixty (60) days after receipt of recommendation of its deputized agent and other agencies requested to comment, unless a longer period is needed for the disposition of protests filed with the Council. In cases of application for industrial use or in cases of such other use where waters may become polluted, the Council shall refer the application to the National Pollution Control Commission for comment and recommendation. If deemed necessary, the Council shall refer the application to other agencies concerned as the case may be. III - UNITED KINGDOM - Water Resources (Licences) Regulations, 1965 10.... (4) The period within which the river authority shall give notice to an applicant for a licence of their decision on his application, or, as the case may be, of the reference of the application to the Minister in pursuance of directions given under section 38 of the Act, shall be the following period from the date of receipt of the application, namely:
IV - PHILIPPINES - Water Rules and Regulations 20. Except when otherwise justified by type of irrigation system, soil conditions, kind of crop, topography and other factors, water permits for agricultural use shall be granted on the basis of one litre per second per hectare of land to be irrigated. V - PHILIPPINES - Water Rules and Regulations 26. The Council may grant temporary permits for the appropriation and use of water in situations such as the following.
Temporary permits shall be granted by the Council on a case to case basis specifying the conditions and period under which the permit is valid. The Council may delegate the issuance of temporary permits for a period of not exceeding six (6) months and a quantity of not more than 200 litres per second. VI - UNITED KINGDOM - The Water Resources (Environmental Impact Assessment) (England and Wales) Regulations, 2003 8. Determination of application and notice of determination (1) The Agency shall not determine an application for, or for the variation of, an authorisation relating to a relevant project before the latest date allowed under these Regulations for making representations or concluding any consultation. (2) In determining the application the Agency shall take into consideration the environmental statement, any further information provided, and any representations relating to the environmental effects of the project made to the Agency in accordance with these Regulations. (3) Within twenty-eight days of the decision on the application, the Agency shall publish in those newspapers in which a notice was published under regulation 7 a notice stating that the Agency has granted or refused the application and stating a place and times where any person may inspect -
VII - JAMAICA - Water resources regulations, 1995 4. Matters to be considered by Authority In considering an application for a licence to abstract and use water the Authority shall have regard to - -
5. Authority may grant or refuse licence (1) On consideration of an application the Authority may grant or refuse to grant a licence. ... (3) If the Authority refuses to grant a licence, it shall state in writing the reasons for its decision and inform the applicant of his right under the Act to appeal against the decision. ... VIII - VIET NAM - Decree No. 179/1999 Stipulating the Implementation of the Law on Water Resources 9. The granting of permits and the exploitation and use of water resources stipulated in Clause 1, Article 24 of the Law on Water Resources are specified as follows: ... (2) Grounds for granting permits: The granting of permits for exploitation and use of water sources must be based on:
... IX - ETHIOPIA - A Proclamation to Provide for the Utilization of Water Resources, No. 92/1994 5. Issuance of Permit (1) The Appropriate Authority shall issue the requested permit within 60 days, where it is satisfied that the intended use of the water:
(2) Where the Appropriate Authority rejects the application, it shall notify the applicant, in writing, within the time limit specified in sub-Article (1) of this Article, stating the reason thereof. 11. Responsibilities of the Appropriate Authority The Appropriate Authority shall: (1) take the necessary cautionary measures during issuance of permits to avoid excessive allocation or depletion of a water resource; (2) ensure that water resources are utilized in sustainable and most beneficial manner. (3) take necessary measures so that the issuance of water use permit to investors does not adversely affect the interest of peasants in any manner whatsoever; ... X - UGANDA - Water Resources Regulations, 1998 6. Factors to be taken into account when considering an application The Director shall, when considering an application referred to under regulation 3 of these regulations, take into account the following factors;
XI - AUSTRALIA - NORTHERN TERRITORY - Water Regulations, 1999 18. Joint interests ... (2) The Controller, after considering the application, the objections, if any, and all replies to such objections made by one or more of the joint applicants, shall determine whether or not a licence, permit or consent -
XII - CANADA - ALBERTA - Water (Ministerial) Regulation, 1998 11. Licence purposes A licence may be issued for any or all of the following purposes:
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A decision to grant, in whole or only in part, a proposed water utilization or project results in a legal instrument variably styled permit, licence, authorization or concession - which terms, as already mentioned in the Introduction to this Chapter, will be collectively referred to as "permits". A permit is the instrument of the grant, and at the same time it constitutes and is evidence of, a right to use water, with the limitations specified in the grant. Standard formats of permits may be appended to subsidiary legislation as Forms for the convenience of the responsible government department or agency. Practice with respect to the design of Forms ranges from standard formats of varying complexity and of uniform applicability to all water uses (I and II) to different formats for different uses (VI - VIII) to separate formats for the construction of works instrumental to a use (III). Seldom if ever do permits grant the holder an unfettered privilege to take and utilize water or to implement a project unconditionally. To the contrary, the holder's rights will be qualified by the insertion in the instrument of the grant of terms and conditions. Whilst the framing of such terms and conditions is typically left to the discretion of the permit-granting government authority, standard clauses may be crystallized in the permit Forms (III) or they can be prescribed directly by legislation for express or implied incorporation in the permit (IV - VI, VIII and IX). In addition, permit holders will be subject to a number of obligations spelt out in the legislation as a matter of general applicability to all or particular classes of permit holders, regardless of such obligations being recorded in the permit (these obligations will be reviewed in sub-chapter 3 hereinbelow).
I - TANZANIA - Water Utilization (General) Regulations, 1975 Form E - Provisional/Final Grant of Water Right - See Appendix I, page 303. II - MALAWI - Water Regulations, 1969 Form WRB.3 - Grant/Certificate of Water Right - See Appendix I, page 303. III - KENYA - Water (General) Rules Form WAB.16 - Authorization to Construct Works for the Diversion, Abstraction, Storage or Use of Water - See Appendix I, page 305. IV - PHILIPPINES - Water Rules and Regulations 13. Water Permits issued by the Council shall be subject to such terms, restrictions and limitations as it may deem proper to impose, and to any, or all of the following conditions:
V - MALAWI - Water Regulations, 1969 3. (1) The following covenants on the part of the grantee shall, unless otherwise expressly stated therein, be implied in every grant:
(2) For the purposes of this regulation "temperature sensibly differing" shall mean a difference in temperature which can be appreciated by the senses without the use of a thermometer. 4. The following conditions shall, unless expressly excluded therefrom, be implied in every grant:
5. The following additional conditions shall, unless otherwise expressly stated in the grant, be implied in every grant for mining, industrial purposes or generation of power:
VI - JAMAICA - Water resources regulations, 1995 5. Authority may grant or refuse licence ... (4) A licence granted under this regulation - -
(5) In addition to the implied term specified in section 23 of the Act, a licence may contain such terms and conditions as the Authority thinks appropriate, including - -
(6) A licence to which paragraph (1) refers may contain different provisions relating to --
(7) Nothing in paragraph (6) shall be construed to preclude a grant by the Authority, if it thinks appropriate in any case, of two or more licences to the same person to be held concurrently in respect of the same source of supply, if the licences authorize the abstraction of water at different points of the source by different means. Schedule - Form B - Licence to abstract and use water - See Appendix I, page 306. VII - AUSTRALIA - NORTHERN TERRITORY - Water Regulations, 1999 Form 13 - Licence to take or use surface water - See Appendix I, page 307. VIII - UGANDA - Water Resources Regulations, 1998 7. Conditions attached to and transfer of water permits (1) The Director may grant a water permit in the forms specified in the Fourth Schedule except that
(2) In addition to the conditions specified in section 20 of the Statute the Director may attach any or all of the following conditions to a water permit
Fourth Schedule - Form C1 - Water permit (Surface water) - See Appendix I, page 308. IX - AUSTRALIA - NORTHERN TERRITORY - Water Regulations, 1999 18. Joint interests ... (3) It shall be a condition of every joint licence, permit or consent -
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Records of successful applications and of permits issued as a result are generally prescribed by the law, for the government's own future reference and for the information of the public. Records of water use permits are commonly styled "registers", and are made accessible to the public as directed by the law. Registers generally also contain a record of events concerning the permit after its grant (see in this regard sub-chapter 4 herebelow). In addition, the reasons for unsuccessful applications may be required to be recorded in writing, also for the benefit of the unsuccessful applicant should he contemplate appealing from the relevant decision (see in this regard Step Seven - Appealing from Adverse Decisions herebelow). Subsidiary legislation lays down, or simply clarifies the import of, recording requirements (I and II), and provides the details of formation and contents of, and access to, the prescribed registers (III, IV and V).
I - PHILIPPINES - Water Rules and Regulations 12. Approved applications shall be issued water permits subject to such conditions as the Council may impose. Such permit must bear the seal of the Council and the signature of the Executive Director. A copy of said permit shall be furnished the Office where the application was filed. Disapproved applications shall be returned to applicants through the office where the same was filed, within thirty (30) days of such disapproval, stating the reasons therefor. The Council shall, moreover, furnish periodically all PW Regional Directors, PW District Engineers, and NIA Regional Directors and Provincial Irrigation Engineers, a list of approved water permits granted within their respective areas of jurisdiction. II - UNITED KINGDOM - Water Resources (Licences) Regulations, 1965 10.... (5) Where the river authority decide to grant a licence subject to conditions or departing in a material respect from the proposals in the application, or to refuse a licence, they shall state their reasons in writing, and the river authority shall send with their decision a notification in (or substantially in) the terms of the relevant notification set out in Schedule 3 to these regulations.... III - UNITED KINGDOM - Water Resources (Licences) Regulations, 1965 17. (1) The register which, by virtue of section 53 of the Act, is required to be kept by a river authority and to be available for inspection by the public at all reasonable hours shall contain the following information with respect to every application made to the river authority for the grant, revocation or variation of a licence under the Act, namely:
IV - JAMAICA - Water resources regulations, 1995 25. Register (1) The Authority shall keep, in such manner as it thinks fit, a register or registers in which shall be kept a record of:
(2) Every register to which paragraph (1) refers shall be open for inspection by the public at the offices of the Authority at all reasonable hours, free of charge, and the Authority shall arrange for copies of any entry in any such register as aforesaid to be provided to any person on his request if he pays such fee as may be prescribed. V - UGANDA - Water Resources Regulations, 1998 27. Register (1) The Director shall keep a register of any works and uses of water registered under these regulations. (2) The register shall contain the information set out in the Seventh Schedule to these regulations and any other information which the Director may consider appropriate. (3) The Director may revise the register,
(4) Subject to this regulation, the Director may keep the register in such forms as the Director considers appropriate. Seventh schedule - Information to be included in Register of water works and uses - See Appendix I, page 309. |
Principal legislation may allow for administrative or judicial review of water allocation decisions, i.e. for a judge in court or for a government administrator ranking higher in the hierarchical ladder to the one who took the decision impugned to screen water allocation decisions for consistency with formal and substantive legal requirements. This review process constitutes an appeal. If water allocation decisions are appealable, subsidiary legislation generally provides the necessary procedural and substantive details as to the filing and disposal of an appeal (I - III and V). Forms for review applications may occasionally be provided (IV).
I - TANZANIA - Water Utilization (General) Regulations, 1975 19. (1) Any person wishing to appeal under section 32 of the Act shall give to the Water Officer and to the appellate authority a notice of his intention to appeal within thirty days of the notification to him of the decision of the Water Officer or the service upon him of the certificate or the grant in respect of which the appeal is to be made or, if he is not a person upon whom the Water Officer is required by the Act or by these Regulations to serve notice of such decision, within thirty days of the decision. (2) Notwithstanding paragraph (1), the appellate authority may, for good cause, extend the period within which notice of appeal may be given. 20. Upon receipt of a notice of intention to appeal and within twenty-one days of the receipt of the notice, the Water Officer shall cause to be prepared and transmitted to the appropriate appellate authority:
21. The appellant shall, within twenty-one days after giving notice of appeal, transmit to the appellate authority and the Water Officer three copies of his memorandum of appeal setting out concisely and under distinct and consecutively numbered heads the grounds of his objection to the decision of the Water Officer. 22. (1) Subject to paragraph (2), upon receipt of the memorandum of appeal, the appellate authority shall proceed to consider and determine the appeal. (2) The appellate authority may, if it thinks it desirable, give an opportunity to the appellant to be heard in support of his memorandum of appeal. (3) When the appellate authority decides to hear the appellant in support of his memorandum of appeal, it shall give an opportunity to be heard to
(4) In deciding on the appeal the appellant authority shall not confine its considerations to the grounds of appeal set out in the memorandum of appeal. 22A. (1) The Water Officer shall, in addition to each case where he is required by the Act to give notice, give notice of every decision from which an appeal lies under section 32 of the Act to-
(2) Notwithstanding paragraph (1), the Water Officer may not give notice under this regulation to any person on whom, as a result of the decision, he has already served a certificate or grant under the Act. II - UNITED KINGDOM - Water Resources (Licences) Regulations, 1965 12. (1) Any person who wishes to appeal in accordance with section 39 of the Act against the decision of a river authority on his application for a licence under the Act (or by reason of the failure of the river authority to give notice of their decision or of the reference of the application to the Minister) shall give notice of appeal in writing to the Minister within one month from the date of receipt of notice of the river authority's decision, or of the expiry of the appropriate period (or any agreed extension thereof) specified in regulation 10 (4) of these regulations, as the case may be, or within such longer period as the Minister may at any time allow. (2) Such a person shall provide the Minister with a copy of the following documents:
(3) On receipt of the copy of the notice of appeal which the applicant is required by section 39 (2) of the Act to serve on the river authority, that authority shall within a period of 14 days serve a copy of the notice:
(4) Any person or authority who is served with a copy of a notice of appeal under the preceding paragraph may make further representations to the Minister in writing within a period of 21 days from the date on which the copy of the notice is served on him, and the Minister shall take into account any further representations duly made to him by a National Park planning authority as well as any such representations made to him by a person referred to in sub-paragraph (a) of the last preceding paragraph. III - JAMAICA - Water resources regulations, 1995 28. Provisions relating to appeal. (1) Every appeal to the Minister pursuant to section 43 of the Act against a decision of the Authority -
(2) The notice of appeal may be in the form of a letter and shall set forth clearly the grounds of the appeal, and the date upon which the subject matter of the appeal arose, and there shall be attached to such notice copies of any correspondence or other documents or statements verified by statutory declaration of facts relating to the subject matter of the appeal. (3) The appellant shall send a copy of the notice of appeal to the Authority and shall also serve a copy thereof, together with copies of any documents attached thereto, upon the respondent within the same time as a notice of appeal is required under paragraph (1) to be served, and an affidavit verifying such service shall be delivered to the Permanent Secretary. (4) Within seven days of the receipt of such affidavit, the Permanent Secretary may request the Authority to furnish a statement in writing setting out the reasons for the decisions complained of, and the Authority shall comply therewith as soon as practicable after the request is made. (5) The Minister may order that any books, papers or other documents, relating to the subject matter of the appeal which are in the possession of either party shall be produced by the party in possession thereof. IV - AUSTRALIA - NORTHERN TERRITORY - Water Regulations, 1999 4. Review of action or decision of controller (1) An application under section 30 of the Act shall -
(2) Where a Review Panel is convened for the purpose of advising the Minister on a matter to be reviewed, the Chairman of the Panel shall, in accordance with Form 2, cause details of the date, time and place at which the Panel will meet to consider the matter to be advised to the applicant. (3) Where 2 or more applicants seek reviews on similar grounds in respect of matters concerning land in the same general locality, the Review Panel may consider the matters together. Schedule - Form 1 - Application for review of decision or action - See Appendix I, page 311. Form 2 - Notification of hearing of water resources review panel - See Appendix I, page 312. V - UGANDA - Water Resources Regulations, 1998 9. Appeal (1) A person who is dissatisfied or aggrieved by a decision of the Director in connection with the grant or renewal of a permit may, within one month from the date on which the Director's decision is communicated to him, appeal, in writing, to the Minister against the decision of the Director. (2) The Minister shall, within twenty one days of receipt of the appeal, consider and determine the appeal or refer the appeal to the Committee. (3) Where an appeal is referred to the Committee under subregulation (2) of this regulation, the Committee shall consider the appeal and make written recommendation to the Minister within one month from the day the matter is referred to it by the Minister. (4) The Minister shall, after receiving the recommendations of the Committee, consider and determine the matter within seven days from the date of receipt of the recommendations. (5) In the determination under subregulation (4) of this regulation, the Minister shall take into account the recommendations of the Committee. |
[2] I.e. section 27 of the
United Kingdom Water Act, 1963. [3] Omitted. [4] See under Step Three Review of applications (VIII) above. [5] See under Step Three Review of applications (VIII) above. |