Due to the length of this document, only the initial MEMORANDUM is published here on the African Water Page. A full version is available in Word format in a zip file containing the following items: Please email Stefan Helming at gtz-rws@harare.iafrica.com to request the files. Draft for Discussion only [Comments should be sent to the Ministry of Rural Resources and Water Development, care of Stefan Helming at gtz-rws@harare.iafrica.com ] MEMORANDUM This Bill, which repeals and replaces the Water Act [Chapter 20:22], introduces a number of new features in the management and use of the water resources of Zimbabwe. The essential features include:- firstly, the vesting of all water in the President, thus removing the concept of private ownership of water; secondly, removing the concept of water rights being real rights issued in perpetuity and attaching to the land in respect of which they are granted and in place of this will be introduced a permit system under which permits for the use of water will be valid for a specified period of time and will be subject to review as circumstances may demand; thirdly, the removal of much of the differentiation in approach to the management of water between surface water and ground water; fourthly, the removal of the preferential rights to water currently held by riparian owners; fifthly, the conferring on catchment councils set up to manage the use of water in the catchment areas under their jurisdiction, the power to issue the permits required for certain uses of water thus decentralizing and removing this function from the Administrative Court to which appeals will now be made in certain circumstances; sixthly, ensuring that catchment councils set up to manage river systems in their catchment areas are representative of all water users in the area concerned, the intention being that people in Communal and resettlement areas be involved in water management; seventhly, introducing the Zimbabwe National Water Authority established by the Zimbabwe National Water Authority Act, 1997, as a tool of Government in performing certain functions hitherto the responsibility of the Secretary through the Department of Water Development; and eighthly, extending beyond irrigation to other commercial purposes, the purpose for which combined water schemes may be established. The Bill also introduces fees for applications for permits to use water and for the commercial use of water, the moneys from which will be used for the development of water resources. There will also be charges for the permission to discharge any effluent into streams or water bodies and the revenue will be channelled into matters relating to water quality control. Economic penalties will be introduced in respect of contraventions of the Act and where an order prohibiting a person from doing something has been made, the order will stand despite the fact that an appeal may have been noted against the order. In more detail, the Bill provides as follows:— Part I This Part which deals with preliminary matters provides for the title, date of commencement and the interpretation of terms used in the Bill in clauses 1 and 2. Of significance in clause 2 of the Bill is the simple definition of water and there is no longer any reference to “flood water”, “storm water”, “public water” or “private water” as is the situation in the present Act. Under clause 3, all water is vested in the President and clause 4 serves to place the matter beyond any doubt that no person shall claim private ownership of any water. The rights of holders of mining locations or prospectors to use water conferred in terms of the Mines and Minerals Act [Chapter 21:05] will not be affected by the provisions of this Bill (clause 5). Clause 6 sets out in detail the general functions of the Minister in respect of water. He will be responsible for defining guiding policies aimed at planning the optimum development, utilization and protection of the water resources of Zimbabwe; ensuring the availability of water to all citizens and its equitable and efficient allocation; and setting national standards to be maintained in the exploitation, utilization, conservation and management of water resources. Clause 7 provides for the appointment of officers whose responsibility it will be to implement the provisions of the Bill. In addition, the Zimbabwe National Water Authority will be required to perform, subject to the directions and orders of the Minister, any function imposed upon it in terms of the Bill and the Zimbabwe National Water Authority Act, 1997. Under clause 8, the Minister is authorized to delegate any of his functions under the Act to the Secretary and to the National Water Authority and the Secretary in turn is authorized, subject to the consent of the Minister, to delegate his functions to officers or to the National Water Authority. The powers of officers are, in terms of clause 9, set out in the Schedule. Clause 10 provides for the compensation of persons whose land has been used for the construction or maintenance of hydrological stations. Part II This Part deals with the planning and development of water resources. This involves first the declaration by the Minister of river systems which are areas which may be made up of one or more catchment areas, including any aquifers in the area and a river system will be under the control of a catchment council (clause 11). An outline plan for the development and utilization of water in a river system must be prepared by the National Water Authority in consultation with the catchment council (clause 12). An outline plan should indicate the major water uses within the river system, having regard to the available resources and, subject to prescribed quality standards, the maximum permissible levels of pollution within the area. The outline plan should also indicate potential dam sites and the priorities for the area concerned in the utilization and allocation of water, taking into account the policy guidelines provided by the Minister for the setting of priorities in the allocation and utilization of water nationally or within a specified river system as dictated from time to time by considerations such as the availability of water, social or economic priorities or policy changes. Clause 14 to 17 set out the procedures to be followed after the preparation of the outline plan, from its submission to the Secretary, consideration by the Minister, publication in the Gazette to allow representations to be made dealing with objections and the effecting of changes to an approved outline plan. Under clause 18, once an outline plan has been approved, any person, including the State, wishing to undertake any development within the area must have regard to the outline plan. Clause 19 provides for the review of outline plans within a period of 10 years. Part III This Part provides for the establishment, functions and procedures of catchment councils. A catchment council is established by the Minister in consultation with the National Water Authority (clause 20). Clause 21 sets out the functions of catchment councils which include assisting in the preparation of outline plans; determining applications and granting permits for use of water; regulating and supervising the use of water by permit holders; and ensuring compliance with the Act. Clause 22 sets out the powers of catchment councils which include the granting of permits required in terms of the Act, revising existing permits and investigating and making orders in any disputes concerning the use of water or any matter which the Minister may require it to investigate. Clause 23 sets out the principles to be observed by a catchment council in considering applications for permits for the use of water. In addition to taking account of the priorities in the utilization of water set out in an outline plan, a catchment council shall also have regard to equity considerations, the needs of each applicant and the likely economic or social benefits of the proposed use. If the water is required for agricultural purposes, the nature and size of the land concerned, its suitability for irrigation and the efficiency of the methods to be employed in using the water must be considered. If the use will result in effluent, the manner of treatment and disposal thereof must be specified. The Minister may prescribe the matters which must be taken into account in considering the priority rating into which a specified use of water shall fall. The Minister is also authorized to prescribe the methods in accordance to which water may be allocated. Any regulations as to priority rating or method of allocation may differ in respect of different river systems. Under clause 24, in the performance of its functions, a catchment council may be assisted by subcatchment councils which may be established by the Minister for any part of a river system. A subcatchment council will be a body corporate and will have power to levy rates upon permit holders in the areas for which they are responsible for the purpose of meeting the expenses of the subcatchment council. The powers of officers set out in the Schedule may be conferred by the Minister in writing on a subcatchment council or any of its members. Under clause 25, persons who have an interest in any matter under consideration by a catchment council are entitled to be notified and to attend the relevant proceedings for the purpose of presenting their case. Orders of a catchment council shall be reduced to writing, be binding on each party to which it relates and shall have the same effect as an order of the High Court. The day-to-day management of the affairs of a catchment council shall be carried out by a catchment manager who, under clause 28, shall be an employee of the National Water Authority. He shall act on the advice of the catchment council but under the supervision of the National Water Authority. The powers of a catchment manager are set out in clause 29. Members of a catchment council are authorized to carry out inspections in order to ensure that the Act is being complied with (clause 31). Secretarial services for catchment councils and subcatchment councils will be provided by the National Water Authority (clause 30). Part VI This Part provides for the use of water for primary purposes and under permits. Under clause 32, any person is entitled to use water for primary purposes and the term “primary purposes” is defined as reasonable use for domestic needs and for the support of animal life, other than fish farms, animals or poultry in feedlots. However a catchment council may specify the maximum number of livestock an individual owner may water for the purposes of the definition of “primary purposes” to ensure the equitable use of water. Water for bricks for the private use of an individual and dip tanks fall within the definition of primary purposes. Persons may also construct water storage works for primary purposes provided that the works do not store more than five thousand cubic metres of water. A catchment council may notify restrictions on the use of water for primary purposes (clauses 33). Where water is required for purposes other than primary purposes, a permit for the use of the water shall be required and may be obtained on application to the catchment council (clauses 34 and 35). Permits will be required for both surface and ground water. Permits may be issued subject to conditions which the catchment council may fix. Under clause 36, a permit will be valid for a period of 20 years or such shorter or longer period as the catchment council may fix. Permits will be renewable. Where a person fails to make use of a permit for a period of three years, the permit may be cancelled or where only partial use of a permit has been made, the permit may be amended. Permits will pass on to the new owner of land on the transfer of the land to which they relate but permits may otherwise not be ceded or sold except with the consent of the catchment council. Under clause 39, the Minister may direct the National Water Authority to apply for a permit to enable the Authority to conserve water, to construct any water works or to acquire any water works or a right to the use of water which has been granted to someone else by virtue of a permit issued in terms of this Act. Where the National Water Authority acquires a permit under this clause, it will have the sole right to allocate water from any water works constructed or acquired by it. Rights granted in terms of this clause may be ceded to the Agricultural and Rural Development Authority or to any other person and any conditions of the permit shall apply to the cessionary. A person who has been granted a permit may abstract water necessary for the construction of works required for the enjoyment of the right granted under the permit (clause 40) and the holder may, on application to the catchment council, seek amendments to his permit (clause 41). A catchment council may require persons to notify it of any existing storage works, boreholes and wells. Persons may also be required to install meters or other measuring devices and to submit returns on the amount of water abstracted (clauses 42 and 43). Clause 44 imposes restrictions on the cession of the right to use water or on the sale of water. Clause 45 allows persons to apply to a catchment council, where a public stream has changed its course, to fix new points from which water from the stream may be abstracted or to be allowed to construct works to restore the public stream to its former course. In considering applications in terms of this clause, a catchment council must take into account the extent to which existing permits may be affected by its decision. Clause 46 requires any person wishing to conduct operations which will interfere with the banks, bed or course of a public stream or with any marshes, vleis, springs, swamps, etc., to apply for a permit to conduct the operations. Permits for the construction of water works capable of storing in excess of five thousand cubic metres of water or abstracting more than one hundred litres of water per second may not be granted without the written consent of the Minister first being obtained (clause 47). In exercising any powers conferred on him by the Bill, the Minister is required to have due regard to the interests of residents of Communal Land (clause 48) and where a decision of a catchment council is likely to affect the supply of water for primary purposes to residents of Communal Land, the decision shall not take effect until the approval of the Minister responsible for Communal Land has given his approval (clause 49). Under clause 50, provision is made for the circumstances in which provisional or temporary permits may be issued and when they may become final permits. Under clause 51, permits granted to a local authority for primary purposes shall take precedence over any other right to water. Clause 52 requires water which has been abstracted and used for certain purposes to be returned to the bed of the public stream from which it was abstracted. Where land in respect of which a permit for the use of water has been issued is to be consolidated with another piece of land or is to be subdivided, an application shall be made to the catchment council first for the apportionment or revision of the permit (clause 53). The revision, reallocation or reapportionment of permits can also be done when the volume of water in any river system has become insufficient to meet the demands of permit holders (clause 54). Under clause 55, a holder of a permit which involves water works is required to maintain the water works in efficient repair Where the Minister considers that it is in the public interest to do so, he may reserve any area as a potential dam site against subdivision, the construction of improvements or interference with the area. The clause sets out in detail the procedures in connection with reservation of dam sites. Clause 57 also authorizes the Minister to reserve any specified quantity of water in any catchment area. Under clause 58, the Minister may, if it appears that the use of water in any catchment area is approaching the limit of the potential of the catchment area, declare the area to be a water development restriction area thus preventing the granting of any permits unless he otherwise authorizes. The National Water Authority is empowered under clause 59 to investigate the uses of water in any catchment area and under clause 60, the Minister may confer on local authorities powers of a catchment council under Part IV of the Bill. Part V Under this Part of the Bill empowers the Minister, acting on the recommendation of the National Water Authority and the catchment council concerned, to declare any area to be a water shortage area if he is of the opinion that the continued abstraction of water from any public stream, water storage works or from underground is reducing or likely to reduce the water resources to unacceptable levels (clause 61). Clauses 62 to 66 regulate the abstraction of water in water shortage areas. Part VI Under this Part of the Bill is concerned with the control of water pollution and generally the protection of the environment. In clauses 67 to 71 of the Bill, provision is made for ensuring that water resources management under the Bill is consistent with the broader national environmental approaches. The discharge of effluent or waste water into any water body will be regulated by permits to which conditions will be attached, subject to prescribed standards, and for which fees will be payable. The fees will be paid into the Water Levy Fund and will be applied to the cleaning up of any pollution and to research relating to water pollution. Holders of permits for the discharge or disposal of effluent or waste water into water bodies may be required to take such measures as are aimed at controlling and monitoring the quality and quantity of discharges. Contraventions of these provisions will attract penalties, orders for remedial action to be taken and damages for any injury caused. Powers relating to the control of pollution may be delegated to local authorities. Part VII This Part provides in clauses 72 to 85 for servitudes in respect of water. Servitudes may be claimed by any person who holds a permit to use water, or a person entitled to control or supervise the use of any water or any person supplied with water by the Minister, the National Water Authority or by the Agricultural and Rural Development Authority. The procedure for claiming servitudes is set out in clause 75. Interested parties are entitled to appear before the Administrative Court, with which claims are lodged, on the hearing of the claim. Clause 77 sets out the powers of the Administrative Court when dealing with claims relating to servitudes and clauses 78 and 79 sets out the rights of owners of land subject to servitudes of passage and servitudes of storage. Included in every servitude are the rights to take gravel, rock, sand, soil, stone or wood without the permission of the owner provided they are not taken within 500 metres of any afforested or cultivated lands, premises or other structures or from forest land. Holders of servitudes are required to maintain them in good repair and also to have them registered against the title deeds of the land against and in favour of which they have been awarded (clauses 82 to 85). Part VIII This Part of the Bill provides for the petitioning of a catchment council for the establishment by two or more owners of land of a combined water scheme for the benefit of their agricultural or commercial activities and clauses 87 to 95 deal with the procedures in applying for, considering and granting, a petition for the establishment of a combined water scheme and the conditions subject to which the petition may be granted. Part IX In clauses 96 to 111, the Bill deals with the construction of small dams and large dams. Work in connection with the construction of dams must be done and overseen by approved civil engineers or approved civil engineering technicians. This Part lays down the procedures to be followed before, during and after the construction of a dam; the specifications pertaining to small dams and those relating to large dams; the safety measures to be observed; the notifications to be given and the information to be made available. Dams are required to undergo periodical inspections and on completion of the construction of a dam to the satisfaction of the Secretary, the dam must be registered and a registration certificate issued by the Secretary. The Bill also outlines the procedure to be followed in cases of emergencies, such as the occurrence of unexpectedunprecedented floods, whether during the execution of dam works or after the completion of the dam. Part X This Part deals with appeals against the decisions of the Minister, the Secretary, a catchment council or the National Water Authority. All appeals will go to Administrative Court which will be specifically constituted for purposes of this Bill. Part XI This Part deals with general matters. Part XII This Part deals with the repeal of the Water Act [Chapter 20:22] and with transitional and savings provisions. Of significance is clause 124 which will cancel all endorsements on title deeds of pieces of land in respect of water rights. However, rights to use water granted under the present Water Act will be valid until they are revised in terms of the new Act. Any application for a water permit in an area where a Catchment Council has not yet been established shall be heard by the Administrative Court. PSM/WATERBILL 1st October, 1997.
