CHAPTER 331
WATER UTILISATION (CONTROL AND REGULATION) ACT

[PRINCIPAL LEGISLATION]

ARRANGEMENT OF SECTIONS

   Section

Title

PART I
PRELIMINARY PROVISIONS

   1.   Short title.

   2.   Interpretation.

   3.   Application of Act to the Government.

PART II
APPOINTMENT OF OFFICERS AND ESTABLISHMENT OF WATER ADVISORY BOARDS

   4.   Appointment of officers.

   5.   Establishment of Central Water Board.

   6.   Functions of Central Water Board.

   7.   Establishment, functions and proceedings of Basin Water Board.

PART III
OWNERSHIP OF AND INHERENT RIGHTS TO THE USE OF WATER

   8.   All water vested in the United Republic.

   9.   Declaration of national water supplies.

   10.   Right to water for domestic purposes.

   11.   Right to limited quantities of underground water and casual water.

   12.   Right to water for mining purposes.

   13.   Right to water for forestry purposes.

   14.   Prohibition of use of water except with lawful authority.

PART IV
GRANT OF WATER RIGHTS

   15.   Grant of water rights.

   16.   Consent for discharges.

   17.   Right may be made appurtenant to land.

   18.   Conditions implied in certain rights.

   19.   Rights conditional on construction of works.

   20.   Restriction on discharge into underground strata.

   21.   Declaration of standards.

PART V
REVISION, VARIATION, DETERMINATION AND
DIMINUTION OF WATER RIGHTS

   22.   Position when volume inadequate to satisfy all rights granted in respect thereof.

   23.   Suspension or variation of rights on account of drought.

   24.   Where quantity unspecified Water Officer may specify quantity.

   25.   Variation of water rights with consent.

   26.   Determination for breach of condition.

   27.   Determination or diminution for non-use.

   28.   Determination or diminution for public purposes.

   29.   Application of Part V to existing rights.

PART VI
MISCELLANEOUS POWERS

   30.   Power to create easements.

   31.   Right to call for information.

   32.   Power to inspect works.

   33.   Power to require demolition of unlawful works.

   34.   Power to establish hydrographic stations and make surveys.

PART VII
APPEALS

   35.   Appeals.

PART VIII
OFFENCES

   36.   Offences and penalties.

PART IX
MISCELLANEOUS PROVISIONS

   37.   Registration.

   38.   Service of notices.

   39.   Civil liability not affected.

   40.   Indemnity.

   41.   Power to make rules and regulations.

   42.   [Repeal of R.L. Cap. 410 and savings.]

SCHEDULES

CHAPTER 331
THE WATER UTILISATION (CONTROL
AND REGULATION) ACT 1

An Act to provide for water utilisation control and regulation.

[1st October, 1975]
[G.N. No. 241 of 1975]

Acts Nos.
42 of 1974
7 of 1981
10 of 1981
17 of 1989
8 of 1997
1 of 1999
20 of 2001

PART I
PRELIMINARY PROVISIONS (ss 1-3)

1.   Short title

   This Act may be cited as the Water Utilisation (Control and Regulation) Act.

2.   Interpretation Acts Nos. 10 of 1981 s. 3 (a); 7 of 1981 3rd Sch.; 8 of 1997 s. 24; 20 of 2001 s. 54">

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

   "appointing authority" means in the case of the Chairman of the Central Water Board, the President and in the case of other members of every Basin Water Board, the Minister;

   "Basin Water Board" means a Basin Water Board established under section 7 in relation to a water basin;

   "Central Water Board" means the Central Water Board established by section 5;

   "direct discharge" means the discharge of effluent into receiving water without prior treatment;

   "domestic purposes" includes the watering, spraying and dipping of stock;

   "easement" means a right to enter on the land of another for the purpose of constructing or maintaining works thereon or storing water thereon or carrying water under, through or over such land or for all or any of such purposes;

   "effluent" includes any flowing-out or fluid material discharged from domestic or industrial waste systems which, by reason of its quality, quantity or characteristics, is likely to impair the beneficial use of receiving waters by adversely affecting their natural state;

   "effluent treatment plant" means any device or structure designed for the treatment of effluent, removing matters in suspension, detoxicating or stabilising biodegradable organic impurities so as to prevent the occurrence of secondary decomposition upon the effluent mingling with water;

   "EWURA" means the Energy and Water Utilities Regulatory Authority established by section 4 of the Energy and Water Utilities Regulatory Authority Act *;

   "existing right" in relation to the use of water means a right, registered under the provisions of the Water Ordinance * hereby repealed and subsisting immediately prior to the date upon which this Act comes into operation, to divert, dam, store, abstract or use water;

   "indirect discharge" means the discharge of effluent into a sewer leading to a municipal treatment plant;

   "Minister" means the Minister responsible for water;

   "national water supply" means a water supply declared as such under the provisions of section 9;

   "Permanent Secretary" means the Permanent Secretary in the Ministry responsible for water;

   "pollutant" means any substance or characteristic, whether or not harmful, added or imposed onto natural or supplied water;

   "Principal Water Officer" means the Principal Water Officer appointed under the provisions of section 4;

   "Regional Water Officer" means a Regional Water Officer appointed under the provisions of section 4;

   "regional water supply" means a water supply other than a national water supply which is wholly or partly within a region;

   "specified town" means any town or other water supply area declared under section 11(1) of the Urban Water Supply Act *, to be an area in which the supply of water is the responsibility of the Urban Water Authority;

   "underground water" means water naturally stored or flowing below the surface of the ground;

   "Urban Water Authority" means the National Urban Water Authority established by section 3 of the Urban Water Supply Act;

   "water" means all water flowing over the surface of the ground or contained in or flowing in or from a spring or stream or natural lake or swamp or in or beneath a watercourse and all water made available from subterranean sources by means of works, but does not include any tidal water, nor water which is used solely for the purpose of extracting minerals therefrom;

   "water basin" means any area of land delimited and declared by the Minister under section 7 to be a water basin in relation to any river or other water source;

   "Water Officer" in relation to an application for, or an objection to, or a grant of, or refusal to grant, a water right in respect of a national water supply means the Principal Water Officer, and in relation to an application for, or an objection to, or a grant of, or refusal to grant, a water right in respect of a regional water supply, means the Regional Water Officer of the region in which such supply is situate;

   "works" include canals, channels, reservoirs, embankments, weirs, dams, wells, boreholes and other works constructed for or in connection with the diversion, damming, storage or abstraction of water or for drainage or for the generation of water power or the use of water for industrial or other purposes or for the conservation of rainfall.

   (2) [Repealed by Act No. 10 of 1981 s. 3(e).]

3.   Application of Act to Government Act No. 10 of 1981 s. 4">

   Without prejudice to the generality of the application of this Act, it is hereby declared that the provisions of this Act shall apply to and be carried into effect by departments of the Government, public and local authorities, and all Water Authorities appointed under the Water Works Act *.

PART II
APPOINTMENT OF OFFICERS AND ESTABLISHMENT OF WATER ADVISORY BOARDS (ss 4-7)

4.   Appointment of officers

   (1) There shall be a Principal Water Officer and also, for every region in Tanzania, a Regional Water Officer who shall be appointed by the Minister from among persons in the public service.

   (2) The Minister may appoint such other officers as, in his opinion, may be necessary for the purpose of the administration of this Act and the subsidiary legislation made hereunder.

   (3) Officers appointed under this section shall have such functions as are conferred upon them by or under this Act.

5.   Establishment of Central Water Board Acts Nos. 10 of 1981 s. 5; 8 of 1997 s. 26">

   (1) There is established a Central Water Board consisting of a Chairman who shall be appointed by the President, and not more than ten members who shall each be appointed by the Minister from public, private, non-governmental organisations and women organisations holding qualifications in scientific technical fields of learning or who has adequate knowledge and experience in the public affairs of Tanzania.

   (2) Every member shall hold office–

   (a)   in the case of a member appointed in his own name until such time as the appointing authority revokes his appointment and appoints another person in his place;

   (b)   in the case of a member who is appointed by virtue of his holding some other office, until such time as he ceases to hold that other office.

   (3) Where any member is, by reason of illness, infirmity or absence from the United Republic, unable to attend any meeting of the Central Water Board the appointing authority may appoint a temporary member in his place and the temporary member shall cease to hold office on the resumption of office of the substantive member.

   (4) The Central Water Board shall elect one of its members to be the Vice-Chairman who shall, subject to his continuing to be a member, hold the office of Vice-Chairman for a term of two years from the date of his election and shall be eligible for re-election.

   (5) The Central Water Board shall hold meetings on such occasions at such place as it may in its discretion determine.

   (6) The business of the Central Water Board shall be conducted in such manner as the Minister may, by order published in the Gazette, prescribe, but where no procedure, is prescribed the Central Water Board shall conduct its business in such manner as it shall determine.

6.   Functions of Central Water Board

   (1) The Central Water Board shall be the principal advisory organ in matters relating to the utilisation of water, and shall have and exercise functions in relation to the control and regulation of water pollution subject to the provisions of this Act.

   (2) In relation to the utilisation of water–

   (a)   the Central Water Board shall advise the Principal Water Officer on all matters concerning the appointment of national water supplies, the determination, diminution or modification of water rights, the measures to be taken in case of drought and the priorities to be given from time to time and in accordance with prevailing circumstances for the different purposes for which the water is required in any area of the United Republic;

   (b)   subject to paragraph (c), the Principal Water Officer shall consider the advice of the Central Water Board before granting or refusing any application for a water right, before determining revising, diminishing or modifying any water right or existing right and before specifying a quantity of water under section 24, but shall not be bound to follow that advice;

   (c)   nothing in paragraph (b) shall require the Principal Water Officer to make any reference to, or to consider the advice of the Central Water Board in respect of any suspension or variation of a right under section 23 or in respect of any modification, variation, determination or diminution of a right with the consent of its holder.

   (3) In relation to the control and regulation of water pollution, the Central Water Board shall have power–

   (a)   to carry out, and promote the carrying out of research and investigations into the causes and ways for the efficient prevention or control, of water pollution in the United Republic;

   (b)   to formulate and recommend to the Government comprehensive plans for the regulation of the discharge of effluents by industrial trade and other categories of users of water;

   (c)   to formulate, and recommend to the Minister the best ways of ensuring compliance with, uniform procedure for the sampling and examination of water, sewage and industrial effluents, designating units for expressing results;

   (d)   to advise and assist the Government, public authorities and other persons or bodies of persons measures for the more efficient control or prevention of water pollution;

   (e)   to recommend to the Minister legislative measures necessary or suitable for the effective control of water pollution;

   (f)   to formulate effluent and receiving water standards, and programmes for ensuring compliance with those standards by domestic, commercial, industrial and other users of water;

   (g)   subject to the provisions of this Act, and of any other written law relating to the extraction, supply or use of water, to any other act or thing which, in the opinion of the Central Water Board, is necessary or expedient for the more effective control of water pollution in the United Republic.

7.   Establishment, functions and proceedings of Basin Water Board

   (1) The Minister may, by order published in the Gazette, declare any area of land to be a water basin in relation to any river.

   (2) There shall be established a Basin Board in respect of each water basin declared under subsection (1) and the Minister shall in the order made under subsection (1), appoint not more than ten persons to be members of that Basin Board:

   Provided that the composition of Basin Board shall not be more than ten members for bigger basins and not more than seven members for smaller basins regard being had that such members are drawn from public, private, non-governmental organisations and women organisations:

   Provided further that the Basin Boards shall be financially and administratively autonomous.

   (3) The provisions of sections 5 and 6(1) and (2) shall apply mutatis mutandis in relation to a regional water supply as if references in those provisions to the Central Water Board and to the Principal Water Officer were references to a Basin Water Board and to a Regional Water Officer, subject to the preceding provisions of this section and to those of subsection (4).

   (4) All the functions provided for or referred to in subsections (1) and (2) shall, in the application of that section to a Basin Water Board and a Regional Water Officer, be performed in relation to a regional water source only in so far as it is within the water basin concerned.

PART III
OWNERSHIP OF AND INHERENT RIGHTS TO THE USE OF WATER (ss 8-14)

8.   All water vested in the United Republic

   All water in Tanzania is vested in the United Republic.

9.   Declaration of national water supplies

   Where the Minister is of the opinion that it is in the public interest to regulate the use of water from any source in any area of Tanzania on a national basis, he may by notice in the Gazette, declare such source to be a national water supply for the purpose of this Act.

10.   Right to water for domestic purposes

   Any person having lawful access to any water may abstract and use the same for domestic purposes:

   Provided that nothing in this section shall be construed as authorising the construction of any works.

11.   Right to limited quantities of underground water and to casual water

   (1) The owner or occupier of any land may–

   (a)   sink or enlarge any well or borehole thereon and abstract water therefrom, not exceeding 22,700 litres in any one day:

         Provided that this section shall not authorise the sinking of any well or borehole within 230 metres of any other well or borehole or within 90 metres of any body of surface water or enlargement of any well or borehole which is within those distances from any other well or borehole or body of surface water, as the case may be;

   (b)   construct any works thereon for the conservation of rainfall, otherwise than in a river or stream and abstract and use the water so conserved.

   (2) A Water Officer may determine for the purposes of paragraph (b) of subsection (1) whether any watercourse is a river or stream, and the determination of the Water Officer thereon shall be final and conclusive for the purposes of this Act.

12.   Right to water for mining purposes

   (1) The holder of a mining lease granted under the Mining Act * or of a lease granted under the Petroleum Exploration and Production Act * shall have in respect of the land comprised in his lease the same rights as are conferred by section 11 on the owner or occupier of any land and may also abstract and use any underground water encountered in any workings and construct any works required for or in connection with the use of such water.

   (2) The holder of a claim registered under the Mining Act * or of a disc claim shall have in respect of the land comprised in such claim the same rights as are conferred on the holder of a lease by subsection (1) and may in addition, in respect of water to which he has lawful access, abstract and use the same for prospecting and mining purposes, returning the same to the stream or body of water from which it was taken, substantially undiminished in quantity.

   (3) The holder of a prospecting right or of an exclusive prospecting licence granted under the Mining Act * or of a prospecting or exploration licence granted under the Petroleum Exploration and Production Act * may, within the area specified in such licence, subject to all other rights to the use of water–

   (a)   abstract and use for prospecting purposes any water to which he has lawful access, returning the same to the stream or body of water from which it was taken;

   (b)   sink or enlarge any well or borehole in any land on which he has the right to explore or prospect, and abstract water therefrom, not exceeding 22,700 litres in any one day; and

   (c)   abstract and use any underground water encountered in any workings and construct any works required for or in connection with the use of such water.

   (4) Any person abstracting underground water from any workings under the powers conferred by this section shall comply with any directions of the Water Officer regarding the disposal of such water as is not used.

   (5) Every person exercising the powers in this section shall, as regards the owners of any surface rights, exercise such powers and pay compensation in the same manner and to the same extent as if the powers exercised under this Act were exercisable under the Mining Act *.

13.   Right to water for forestry purposes

   The holder of an exclusive licence to take trees and timber granted under the Forests Act * may, within the area specified in such licence, subject to all other rights to the use of water–

   (a)   abstract and use any water to which he has lawful access–

      (i)   for logging or sawmilling operations of a temporary nature:

            Provided that no such operation shall be deemed to be of a temporary nature unless no substantial plant is maintained in any one place for more than one year nor is intended to be so maintained; or

      (ii)   for fighting forest fires; or

   (b)   sink or enlarge any well or borehole and abstract water therefrom not exceeding 22,700 litres in any one day.

14.   Prohibition of use of water except with lawful authority

   Subject to the provisions of this Part and to the provisions of section 53 of the Mining Act *, no person shall divert, dam, store, abstract or use water or for any such purpose construct or maintain any works, except in accordance with an existing right or with a water right granted under this Act.

PART IV
GRANT OF WATER RIGHTS (ss 15-21)

15.   Grant of water rights

   (1) A Water Officer may grant to any person the right to divert, dam, store, abstract and use water from such source, in such quantity, for such period, whether definite or indefinite, and for such purpose as may be specified in the water right, subject to such terms and conditions as he may deem fit.

   (2) Upon receipt of an application for the grant of a water right, the Water Officer shall give notice of the same in the prescribed manner. Any interested person may notify the Water Officer that he objects to the grant of a water right and may specify the grounds for such objection, and shall, if he so required, have a right to be heard thereon by the Basin Water Board.

   (3) The Water Officer–

   (a)   shall consider every application and any objections made to him in respect thereof, and shall refer the same to the Water Advisory Board; and

   (b)   may, after considering the advice of the Basin Water Board, grant such right as he may consider appropriate or may dismiss the application.

   (4) Nothing in any such water right shall be deemed to imply any guarantee that the quantity of water thereon referred to is or will be available.

16.   Consent for discharges Act No. 10 of 1981 s. 6">

   (1) No person may discharge effluent from any commercial, industrial or other trade wastes systems into receiving waters without a consent duly granted by a Water Officer under this section.

   (2) Upon receipt of an application for the grant of a consent to discharge, the Water Officer shall give notice of application in the prescribed manner. Any interested person may notify the Water Officer that he objects to the grant of a consent to discharge and may specify the grounds for such objection, and shall, if he so requires, have a right to be heard on the objection by the Central Water Board or the Basin Water Board concerned, as the case may be.

   (3) A consent to discharge granted under this section shall entitle the person to whom it is granted to discharge effluent into any underground stratum subject to the provisions of section 20.

   (4) The Minister may make provisions regulating the procedure for making and considering applications for the grant of consents to discharge, the making of objections to any such application, the making of appeals against refused applications or conditions imposed on consents granted, and any other matters related to or grant of consents to discharge.

[s. 15A]

17.   Right may be made appurtenant to land

   (1) A Water Officer may, either at the time of the grant or at any time after the grant of any water right, declare that such right shall be appurtenant to land described in the water right and may at any time declare an existing right to be appurtenant to land affected thereby.

   (2) Where a water right or existing right has been declared to be appurtenant to any land, the benefit of the right shall be enjoyed and the right may be enforced by the person who is for the time being entitled to the possession of the land.

   (3) Where in consequence of any transfer, lease or partition, any person becomes entitled to the possession of part of the land to which a water right or existing right has been declared appurtenant, he may abstract and use such proportion of the water the abstraction and use of which is permitted by the water right or existing right as may have been assigned to him in the transfer, lease or partition or as may be agreed between him and the persons entitled to the possession of the remainder of the land, or, in the absence of any such assignment or agreement, as may be determined by the Water Officer.

   (4) Where any apportionment of water has been made under the provisions of this subsection in respect of any partition of land, the several amounts of water so apportioned shall be deemed to be appurtenant to the several parcels of such land and the benefit thereof shall be enjoyed and all rights thereof may be enforced, in accordance with such apportionment by the persons who are for the time being entitled to the possession of such parcels, and such rights shall prevail until the parcels shall again become merged with each other.

   (5) Any person acquiring a right to abstract and use water by agreement in accordance with the provisions of subsection (3) of this section shall within thirty days give notice thereof in the prescribed form to the Water Officer.

[s. 16]

18.   Conditions implied in certain rights Act No. 10 of 1981 s. 7">

   The following conditions shall be implied in every water right granted for mining, forestry or industrial purposes or for the generation of power–

   (a)   that the water used thereunder–

      (i)   shall be returned to the stream or body of water from which it was taken or to such other stream or body of water as may be authorised by the Water Officer;

      (ii)   shall be substantially undiminished in quantity;

      (iii)   shall not be polluted with any matter derived from such use to such extent as to be likely to cause injury either directly or indirectly to public health, to livestock or fish, to crops, orchards or gardens which are irrigated by such water or to any product in the processing of which such water is used;

      (iv)   shall, before its direct discharge into receiving waters, be so treated or otherwise modified as to comply with prescribed effluent and receiving water standards;

   (b)   that precautions shall be taken to the satisfaction of the Water Officer to prevent accumulations in any river, stream or water-course of silt, sand, gravel, stones, sawdust refuse, sewage, sisal waste or any other substance likely to affect injuriously the use of such water;

   (c)   that the owner of the water right shall make periodical returns to the Water Officer in such form and at such intervals as the Minister may prescribe, setting out the nature of wastes or effluent produced by his use of the water; and

   (d)   that the owner of the water right shall install or facilitate the installation at the point of discharge all machinery and other facilities necessary for the taking of samples and the collection and treatment of effluent.

[s. 17]

19.   Rights conditional on construction of works

   (1) Where a Water Officer has granted a water right subject to the construction of works within a specified period, he may, from time to time at any time notwithstanding that the period previously allowed may have expired, extend the period for the construction of such works.

   (2) At the expiration of the period allowed for the construction of the works, the Water Officer shall cause the works to be inspected by such officer as the Permanent Secretary may approve who, if they have been constructed to his satisfaction, shall so certify in writing to the Water Officer.

   (3) No certificate issued under this section shall be deemed to imply any guarantee by the Government that the works are properly designed or constructed nor shall support justify any claim whatsoever against the Government or any Government officer in connection with such works.

[s. 18]

20.   Restriction on discharge into underground strata Acts Nos. 10 of 1981 s. 8; 1 of 1999 s. 14; 20 of 2001 s. 55">

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