11. ENSURING COMPLIANCE WITH THE LAW

Permit holders are subject to obligations stemming from the permit, and to obligations of general import laid down in the legislation. In addition, the general public is also subject to certain fundamental obligations, most notably, the obligation to refrain from utilizing water resources unless a permit is first obtained from the concerned government department or agency. While spontaneous compliance with these obligations is to be expected of the majority of the citizenry in general and of permit holders in particular, it is standard practice for legislation - including, in particular, subordinate legislation - to deter non-compliance by declaring generic or specific violations an offence (I, II, V and VIII), and subjecting these to penalties. These typically include fines and imprisonment, and, under the appropriate circumstances, non-conventional measures such as suspension or cancellation of permits (II), or a reduction in the amount of water allowed to be taken under a permit upon its renewal (III), or the demolition of illegal water abstraction works (IV).

Offences and penalties can be regarded as an integral part of law enforcement, i.e. of mechanisms and processes aimed at ensuring compliance with the law in general. In addition to offences and penalties, law enforcement involves certain powers for the government to do things which impinge on the individual's personal freedom, privacy and property. In addition to the general-purpose power of arresting offenders under the appropriate circumstances, law enforcement authority in relation to water permits generally includes the powers of entering and inspecting private property, and taking samples (VI), and the appointment of dedicated inspection officials (VII). However, in view of the constraining effect on some of the individual's basic liberties which the exercise of these powers has, an express grant of the required authority is generally found in principal legislation.

I - KENYA - Water (General) Rules

21. An operator who interferes with, or who knowingly permits any person to interfere with, any controlling or measuring device so that the quantity of water abstracted, diverted or stored is not in accordance with the terms of his licence, sanction or permit, or not in accordance with the terms of an order of the Water Apportionment Board or a water bailiff, shall be guilty of an offence.

24. Any person who without authority opens, or permits any person to open, any controlling device or work closed by order of the Water Apportionment Board, the chairman or a water bailiff in the execution of its or his duty shall be guilty of an offence.

25.... (6) Any person who, not being in possession of a permit granted for that purpose, diverts water in the manner described in this rule shall be guilty of an offence.

II - PHILIPPINES - Water Rules and Regulations

77. A fine of not more than Two Hundred (P200.00) Pesos and/or suspension of the permit/grant for a period of not more than sixty (60) days shall be imposed for any of the following violations:

a. illegal taking or diversion of water in an open canal or reservoir;...

d. failure of the appropriator to keep a record of water withdrawal when required by the Council or by the rules and regulations of other water oriented agencies such as Water Districts created pursuant to Presidential Decree No. 198, as amended, provided that such rules and regulations have been approved by the Council;

e. repair without permission of hydraulic works or structures involving alteration of its hydraulic or structural features as originally approved; and

f. such other infractions as the Council may determine.

78. A fine of more than Two Hundred (P200.00) Pesos but not exceeding Five Hundred (P500.000) Pesos and/or suspension of the water permit/grant for a period of one hundred twenty (120) days shall be imposed for the following violations:

a. unauthorized sale, lease or transfer of water permits and/or water rights;

b. failure to install a regulating and measuring device for the control of the volume of water appropriated when required;

c. non-payment of water charges; and

d. violation of or non-compliance with any order, rule or regulation of the Council.

79. A fine of more than Five Hundred (P500.00) Pesos but not exceeding One Thousand (P1,000) Pesos and/or revocation of the water permit/grant of any other right to the use of water shall be imposed for any of the following violations:

... a. failure to provide adequate facilities to prevent or control disease whenever required in the construction of any work for the storage, diversion, distribution and utilization of water; ...

c. construction of any hydraulic work or structure without duly approved plans and specifications;

d. failure to comply with any of the terms of conditions in a water permit or water rights grant not covered by the preceding sections;

e. non-observance of any standard for the beneficial use of water and/or schedule of water distribution;

f. use of water for a purpose other than that for which a right or permit was granted;

g. malicious destructions of hydraulic works or structure valued at not exceeding Five Thousand (P5,000.00) Pesos;

h. unauthorized sale of water in violation of the permit; and

i. such other serious violations as the Council may determine.

III- AUSTRALIA- SOUTH AUSTRALIA - Control of Waters Regulations, 1971

13.... (3) If any licensee diverts excess water in any year the Minister, in addition to recovering the rates therefor, may if issuing a licence for the succeeding year reduce the licensee's water allocation for such succeeding year by the amount of excess diverted.

IV - PHILIPPINES - Water Rules and Regulations

82. In cases where the violator is not a permittee or grantee or has no right to use the water whatsoever, the Council through its deputies or authorized representatives shall cause the stoppage of the use of the water either by plugging or sealing of the well if the same involves ground water appropriation or demolition of the dam or hydraulic structures if the same involves surface water, without prejudice to the institution of a criminal/civil action as the facts and circumstances may warrant.

V - SOUTH AFRICA - Regulations on Registration of Water Use, 1999

13. Offence

Any person who contravenes or fails to comply with any provision of these regulations is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years.

VI - JAMAICA - Water resources regulations, 1995

23. Powers of entry, inspection, taking of samples.

(1) Any person duly authorized in writing by the Authority may at any reasonable time enter upon any land for the purpose of --

(a) Monitoring compliance with the provisions of the Act or these Regulations, or with any of the terms or conditions subject to which a licence, easement or consent has been granted;

(b) Inspecting and investigating conditions relating to the occurrence and quality of surface and underground waters, including, in particular - -

(i) Installing, maintaining and reading equipment and apparatus for the recording of hydrological and hydro-geological data; and

(ii) Searching for the purpose of ascertaining the occurrence and quality of underground water;
(c) Reading or testing any meter or other measuring device installed for the purpose of ascertaining the amount or rate of water abstracted in pursuance of a licence granted under these Regulations;

(d) Taking measures to ascertain the quantity of water abstracted or capable of being abstracted by means of any works; and

(e) Examining records which are required to be kept under the Act or these Regulations.

(2) A person authorized under this regulation to enter upon any land shall, if so required, produce evidence of his authority before entering.

(3) Any person who wilfully obstructs a person acting in the exercise of his powers under this regulation shall be liable to the penalties specified in section 44 (2) of the Act.

(4) If a person discloses any information obtained by him in the exercise of powers conferred on him by this regulation as to any manufacturing process or trade secret he shall, unless the disclosure is made in the course of performing his duty, be liable to the penalties specified in section 44 (2) of the Act.

(5) The Authority shall, on demand being made by the owner or any other person having an interest over any land, live or dead stock, crops, trees, buildings or works that are damaged by the Authority in the exercise of any functions under the Act or these Regulations, pay to the owner or other person fair and reasonable compensation in respect of such damage.

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

11. Responsibilities of the Appropriate Authority

The Appropriate Authority shall:

... 5. assign supervisors to ensure that permit holders utilize the water in conformity with the condition of the permit. ...

VIII - UGANDA - Water Resources Regulations, 1998

28. Offences and penalty

(1) A person who contravenes the provisions of regulation 22, 23, 24, 26 and 28 of these regulations commits an offence and is liable, on conviction to the penalty specified in section 40 or 104 of the Statute.

(2) No person shall,

(a) contravene any condition attached to a water permit issued under regulation 3 or 10 of these regulations:

(b) construct a borehole or fit a motorised pump on a borehole except in accordance with a drilling permit;

(c) contravene any condition attached to a drilling permit;

(d) carry out any construction works except in accordance with the construction permit;

(e) contravene any condition attached to a construction permit;

(f) if his or her drilling permit has been cancelled under these regulations, construct a borehole or fit any pump to a borehole except in accordance with a new drilling permit;

(g) if his or her construction permit has been cancelled under these regulations, construct any works or fit any motorised pump, except in accordance with a new construction permit.

(3) A person who contravenes any provision of subregulation (2) of this regulation commits an offence and is liable, on conviction, to the penalty specified in section 40 or 104 of the Statute.