3. GENERAL OBLIGATIONS OF PERMIT HOLDERS

In addition to being subject to the terms and conditions spelt out in the permit, permit holders may also be subject to obligations of general applicability to all of them. These obligations are generally laid down in subsidiary legislation, or, in the alternative, this may provide details of implementation of obligations laid down in the principal legislation. These obligations can either be immediately operational or be engaged by the government's act of requesting a given permit holder to comply with a given obligation. The following are matters typically covered by such obligations:

Status of existing works if permit or activities under a permit cease

When a permit ceases because of cancellation, expiry of the term of duration, or renunciation by the permit holder, this is generally placed under an obligation to dispose of existing works as directed by the responsible government agency.

I - KENYA - Water (General) Rules

59. The Water Apportionment Board may, within six months of the cancellation or determination of a licence, sanction or permit, serve upon the operator or former operator whose licence, sanction or permit has been cancelled or determined an order for the disposal of all or any portion of the works previously used under the authority of the licence, sanction or permit.

60. Any person who fails to comply with any order made under rule 59 of these Rules shall be guilty of an offence.

II - 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:

... (g) within six months after the expiration or prior termination of the grant and if requested by the Minister so to do, to remove the works and to restore the land on which the works were erected to the same or as good a state as it was immediately before the works were constructed or in default of so doing to repay to the Minister such costs and expenses as may be incurred by him in effecting such removal and restoration.

Taking of records of water intakes

Requirements in this regard may be in the form of a legal prescription or standardized in special forms.

III - KENYA - Water (General) Rules

88. If required by the Water Apportionment Board, a full and correct record, in such manner as the Board may from time to time require, shall be kept by the operator of all water abstracted, diverted or stored, giving the date, time and quantity and methods of such abstraction, diversion or storage, and the purpose or purposes for which such water was used, and such records shall be furnished to the Water Apportionment Board at such times as it may demand them.

IV - JAMAICA - Water resources regulations, 1995

22. Power to require installation of measuring devices, information.

(1) The Authority may, by notice in writing, require any person who - -

(a) is the holder of a licence issued under regulation 5 to abstract and use water; or

(b) is entitled to abstract and use water without a licence in pursuance of the provisions of section 19 (2) of the Act, to install and maintain such measuring devices, to keep such records, and to furnish in such form and manner and within such time as may be specified in the notice, such periodical or other returns or information as may be specified in the notice.

(2) Any person on whom a notice is served under paragraph (1) and who considers that the directions contained in the notice are unreasonable or unduly onerous may make representations to the Minister with respect to them; and the Minister after consultation with the Authority may, if he thinks fit, direct the Authority to revoke or modify them.

(3) Any person who fails to comply with a notice under this regulation shall be liable to the penalties specified in section 44 (2) of the Act.

Restraining the intake of water

A permit may be qualified by reference to the permit holder's ability to make a "beneficial" use of the water he is entitled to under a permit. An obligation of corresponding scope has the effect of constraining the permit holder's entitlement, however quantified.

V - KENYA - Water (General) Rules

82. Notwithstanding the quantity of water granted by his licence, sanction or permit, as the case may be, no operator shall divert more water from any body or bodies of water than can for the time being be beneficially used by him in accordance with the terms of his licence, sanction or permit, as the case may be.

83. Having due regard to the priority of the purpose for which the water is granted, an operator shall, on being so directed by the Water Apportionment Board or a water bailiff, divert the quantity of water which may be necessary for his purpose at such times and under such system of rotation with other operators on the same body of water, or other body of water, as may, in the opinion of the Water Apportionment Board or water bailiff, secure the most economical use of water.

Construction, operation and maintenance of works instrumental to a permit

The administrative regulation of the construction, operation and maintenance of works which are instrumental to the operation of a permit, ranging from a simple weir placed on the banks of a river to divert part of the flow, to structures damming the flow of a river, is attracted by the regulation of permits for water resources abstraction, impoundment and use reviewed earlier in this chapter, at 2. The granting of permits for the use of water (for the construction and operation of wells for the exploitation of groundwater resources, see Chapter III on GROUNDWATER DEVELOPMENT AND CONSERVATION). However, specific administrative requirements may be provided in relation to the timely completion of construction, inspection of completed works, and to the safety and repair of authorized works, as in the two examples given.

VI - KENYA - The Water Act, 2002

2. Interpretation

(1) In this Act, unless the context otherwise requires --

"works" means any structure, apparatus, contrivance, device or thing for carrying, conducting, providing or utilising water or liquid waste, but does not include hand utensils or such other contrivances as may be prescribed by rules made under this Act;

Second Schedule - Conditions Relating To Construction Of Works

1. Meaning of "authorised works"

In this Schedule, "authorised works" means works the construction of which is authorised by a permit.

2. Inspection of works during construction

Any authorised works may, if the Authority so determines, be inspected during construction by its officers.

3. Works to be made secure

(1) Upon any inspection made under this Schedule, the Authority may order the permit holder to make any addition or alteration which it considers necessary for the security of any authorised works, whether completed or in the course of construction.

(2) If such an order is not complied with to the satisfaction of the Authority within such period as it may specify, the permit authorising construction of the works may be cancelled or modified by the Authority.

...

5. Completion certificate and inspection

(1) Upon the expiration of the time limited by a permit for the construction of works authorised by the permit, or before the expiration of that time, if the construction be sooner completed, the permit holder shall submit a completion certificate in the prescribed form.

(2) Thereupon an inspection may be made, by an officer appointed for the purpose by the Authority, to ascertain that -

(a) the works have been completed in accordance with the permit;

(b) the easements, if any, for the works have been obtained;

(c) agreements, if any are necessary. have been entered into for the supply of water for utilization on lands which are not the property of the permit holder or for the drainage of lands; and

(d) the works as constructed are of the required capacity.

(3) If construction is not completed within the time limited by the permit. a progress report shall be submitted in lieu of a completion report, and the permit holder may apply for an extension of time.

(4) An extension of time under subparagraph (3) may be refused or may be sanctioned upon such terms as the Authority may specify.

6. Forfeiture of rights if works not completed within time allowed

Upon the expiration of the time limited by a permit for the construction of works authorised by the permit, or by any extension of that time, the rights granted to the permit holder under the permit shall cease and determine, and any works constructed, erected, fixed or acquired at the date of such determination may be taken over and operated, or disposed of, in such manner as the Authority may specify.

7. Works to be kept in repair

Every permit holder shall maintain and retain his works in a good, proper and workmanlike manner to the satisfaction of the Authority, so that -

(a) they are, at all times, of sufficient strength and capacity for the fulfilment of the purposes for which they were constructed; and

(b) no damage occurs to any road, property or work in their vicinity.

VII - JAMAICA - Water resources regulations, 1995

6. Provisions as to certain conditions in licence

(1) Where a licence is granted under regulation 5 subject to the condition that specified works should be constructed within a specified period, the Authority may, on the expiration of that period, extend the period for the construction of the works if the person to whom the licence was granted so requests.

(2) On the expiration of the specified period referred to in paragraph (1) or of such extended period as may be granted under that paragraph or on completion of the works, if that is earlier, the Authority shall cause the works to be inspected for the purpose of satisfying itself that the works have been properly constructed.

Return of excess and "return" flow

Return of after use water flow - as opposed to return of excess, unused water - has a dual connotation. On the one hand, the so-called "return flows" may have an impact on the water balance overall of the receiving river or other hydrological system, inasmuch as such flows replenish the quantities of water in the system they are returned to. On the other hand, return flows may have an impact also on the quality of the system waters they are returned to. In view of the distinctive traits of this latter aspect of return flows, its treatment in subsidiary legislation has been separately presented in Chapter II on CONTROL AND PREVENTION OF WATER POLLUTION. The examples which follow herebelow deal with the "quantitative" aspect of return flows and with excess, unused water (VIII and IX).

VIII - MALAWI - Water Regulations, 1969

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:

(a) the water used shall be returned, if reasonably practicable, to the stream or body of water from which it was taken or to such other stream or body of water as the Water Resources Board may direct; and

(b) the water used shall, insofar as the use to which it is to be put allows, be returned substantially undiminished in quantity.

IX - KENYA - Water (General) Rules

68. An operator shall, at his own expense, construct, secure and maintain to the satisfaction of the Water Apportionment Board, or of any person appointed by it for the purpose, all works necessary for the passage of waste and superfluous water flowing from any works constructed by him, and shall, unless anything to the contrary is endorsed on his licence, sanction or permit, as the case may be, return the said waters to the same body of water from which it was originally diverted or abstracted.

Other matters

X - ETHIOPIA - A Proclamation to Provide for the Utilization of Water Resources, No. 92/1994

9. Obligations of Permit Holders

Any permit holder has the obligation:

1. to use the water only for the authorized purpose;

2. to pay water charges on time;

3. to take due care, in accordance with the relevant directives, so that the water works constructed by him cause no harm to persons or property;

4. to take the necessary care, in accordance with the relevant directives, so that effluent discharged or flowing from the project cause no harm to persons or property or pollution to the environment.

5. to submit on time information required by the Appropriate Authority;

6. to observe laws, regulations and directives relating to water resources.