The Water (Amendment) Bill, 2023
Status Timeline
Proposed
Active now
Public Review
Pending
Debate
Pending
Executive
Pending
Final
Pending
Transition from Accreditation to Licensing
The Bill replaces the system of 'accrediting' water services providers with a formal licensing regime. Under the new Section 68A, each water works development agency must be licensed by the Water Services Regulatory Board to operate water works and provide services.
New Framework for Public-Private Partnerships
Amends Sections 32, 68, and 93 to explicitly permit contracting authorities, the National Water Harvesting and Storage Authority, and water services providers to enter bulk water purchase agreements or PPPs with private investors under the Public Private Partnerships Act, 2021.
Regulation of Bulk Water Supply
Amends Section 100 to prohibit any person from supplying bulk water to a water services provider without a licence from the Regulatory Board. It also requires that bulk water services intended for inter-county supply must be managed by licensed water works development agencies.
Regulatory Control Over Water Tariffs
Empowers the Regulatory Board under Section 72 to evaluate and approve water, sewerage, and bulk water tariffs. It further authorizes the board to approve the imposition of these tariffs across domestic, commercial, and irrigation purposes in line with consumer protection standards.
Bill No.
No. 33 of 2023
Gazette No.
Supplement No. 108 of 2023
Sponsor
Kimani Ichung'wah
Background
The principal object of the Water (Amendment) Bill, 2023 is to amend the Water Act, 2016 (No. 43 of 2016) to facilitate and operationalise public-private partnership (PPP) arrangements within Kenya's water sector. This seeks to align the water sector's legal framework with the Public Private Partnerships Act, 2021 (No. 14 of 2021), allowing private sector investment, expertise, and efficiency to support water services delivery and water infrastructure development.
Key Amendments
Definitions and Roles (Section 2)
- Contracting Authority: Introduces a definition covering both national-level entities (state departments, agencies, state corporations) and county-level entities (county governments or corporations) that intend to have their functions undertaken by a private party.
- Water Services Provider: Redefined as an entity providing water services in accordance with a licence issued by the Regulatory Board, removing the concept of 'accreditation' in favor of 'licensing'.
Expanded Powers of Water Authorities (Sections 32 & 68)
- National Water Harvesting and Storage Authority: Granted power under Section 32 to enter into bulk water purchase agreements with investors (under the PPP Act, 2021) or with water works development agencies.
- Water Works Development Agencies: Permitted under Section 68 to operate water works and provide services by entering bulk water purchase agreements with investors or other water services providers. They may operate as a water services provider until county governments or county provider agencies assume responsibility. However, national public water works cannot be transferred to a county government.
Handover of Commissioned Works (Section 69)
- Following the commissioning of waterworks (excluding national public water works), waterworks development agencies must enter agreements with county governments or local water services providers to deliver services.
- Agreements must address the repayment of loans, liabilities, and outstanding debts incurred during development. If a county government or service provider defaults on loan repayments, the waterworks development agency can petition the Regulatory Board to declare a default and transfer service provider functions back to the agency.
New Obligations
Mandatory Licensing (Sections 68A, 75 & 100)
- Agency Licensing: Under Section 68A, all water works development agencies must be licensed by the Regulatory Board. The Regulatory Board is tasked with publishing licensing standards and conditions.
- Bulk Water Licence: Section 100 establishes that no person may supply bulk water to a water services provider without a valid licence from the Regulatory Board.
- Registry: The Regulatory Board is required to maintain a publicly accessible register of all licensed water services providers.
Tariff Approval (Section 72)
- The Regulatory Board gains sole authority to evaluate and approve water, sewerage, and bulk water tariffs. It must ensure tariff impositions comply with consumer protection standards across domestic, commercial, and irrigation use categories.
Transitional Provisions
- Ownership of waterworks and liabilities remains with the waterworks development agency until full repayment of loans and discharge of all outstanding liabilities by the assuming county government or service provider.
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