Sections 80 and 81 of the Environment Act 2000 preserve free access to water for basic needs, notwithstanding the vesting of the right to use, flow and control of water in the State under section 79.
Section 80 — the public right to take water
A person may take water without charge for:
(a) domestic purposes; or (b) watering stock; or (c) fire fighting,
from a watercourse or lake to which the public has free access by road, or from an area of land reserved for the use of the public.
Three purposes, and two kinds of place. The right is limited by access: it applies where the public has free access by road, or on land reserved for public use. It is not a right to cross private or customary land to reach water.
A person taking water under section 80(1) who places a permanent installation for taking water in, or on the land adjacent to, the watercourse or lake is guilty of an offence.
Penalty: a corporation up to K50,000.00; another person up to K25,000.00 or one year’s imprisonment, or both.
So the public right is a right to take water — by bucket, drum, tank or pump brought to the place — not a right to build a fixed intake. A permanent installation requires a water permit under Part VII, or the riparian right in section 81.
Section 81(1) — the rights of a riparian owner or occupier
(a) may take water without charge from it for:
— domestic purposes, and for watering the stock of himself, members of his family resident on the land, and his employees so resident; and
— fire fighting purposes; and
(b) shall have a right of access for himself, those family members and employees, and their stock, to the part of the bed and bank of the watercourse or lake adjoining his land.
The right of access in paragraph (b) is subject to any rights granted under this Act or any other law (s 81(6)) — so it can be affected by a water permit granted to someone else, or by rights under mining or other legislation.
Section 81(4) and (5) — installations, and obstructing the flow
A person taking water under section 81(1)(a)(i) may place a permanent installation for taking water in, or on the land adjacent to, the watercourse or lake — but must not build any works obstructing the flow of the watercourse or lake.
A corporation up to K100,000.00; another person up to K50,000.00 or two years’ imprisonment, or both.
That is double the section 80(2) penalty, and it reflects the difference between an unauthorised intake and works that alter the flow for everyone downstream. Damming or diverting requires a permit under section 78(a) and (b).
So a riparian owner may install a fixed pump or intake for domestic and stock use, but a weir, dam, wall or channel that obstructs the flow is a different matter entirely.
Section 81(2) and (3) — the Director may cap the quantity
The Director may, by written notice given to an owner or occupier, specify the maximum quantity of water that may be taken under section 81(1)(a) during a period specified in the notice.
Taking more than the specified quantity during the specified period is an offence: a corporation up to K50,000.00; another person up to K25,000.00 or one year’s imprisonment, or both. Default penalty K5,000.00.
This is the tool for managing a stressed catchment. It complements section 95, which deals with actions in case of drought.
Section 81(7) and (8) — access across another’s land
A person who has a right to pass over land abutting the bank that is owned or occupied by another person, for the purpose of access to the watercourse or lake, has the same rights as that other person for the purposes of this section — but must not place a permanent installation for taking water in or on the land adjacent to it.
Contravention is an offence: a corporation up to K50,000.00; another person up to K25,000.00 or one year, or both (s 81(8)).
Where a family or clan holds a customary right of way to a river across another group’s land, section 81(7) gives them the same taking and access rights as the landholder — but no right to install fixed works. Read it with section 79(2), which preserves customary rights to the use of water by citizens resident in the area where those rights are exercised.
The three positions compared
| Public (s 80) | Riparian owner or occupier (s 81) | Permit holder (ss 78, 82) | |
|---|---|---|---|
| Where | Watercourse or lake with free public access by road, or land reserved for public use | The watercourse or lake abutting their land | The area specified in the permit |
| Purposes | Domestic, stock, fire fighting | Domestic, stock of family and resident employees, fire fighting | The purposes for which the permit was granted |
| Charge | None | None | Fees and charges under Part VIII |
| Permanent installation | Offence — s 80(2) | Permitted, but must not obstruct the flow | Works per the approved plan and programme |
| Dam or divert | No | No | Yes, if the permit so provides |
| Quantity limit | — | May be capped by written notice from the Director | Maximum rate specified in the permit |
Practical points
- Domestic use needs no permit — section 79(3)(a) puts it outside the vesting.
- Check the access basis before relying on section 80 — free public access by road, or reserved public land.
- Riparian owners may install a fixed intake; they must not obstruct the flow.
- Anything commercial or industrial — taking at scale, damming, diverting, or discharging — needs a permit under Part VII.
- Keep any quantity notice from the Director, and monitor use against it.
- Record customary uses — who takes water, where, and for what — because section 79(2) protects them and evidence is what makes the protection real.
- If a permit holder’s works interfere with your use, see compensation under section 87.
Sources
- Environment Act 2000 — ss 5, 78–83, 87, 95, 96; Part VII
- Constitution — Preamble, Fourth National Goal; Schedule 1.2
- Land Act 1996
Before relying on anything here, read the current text of the Environment Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.