Water Resources Act

This section gives the Act’s short title: the Water Resources Act.

This section defines many terms used in the Act, including Authority, authorized person, water, watercourse, water right, and domestic use.

The Minister may publish a notice in the Gazette to declare that part of the Act does not apply to a defined area.

This section states the Act’s objectives: to manage and use Malawi’s water resources rationally, support orderly development and use of water resources, and control pollution affecting water, the environment, and human health.

All water resources are vested in the State, but this is subject to any user rights granted by this Act or other written law.

The land around watercourses and lakes is public land, and people generally cannot cultivate or do activities there unless the Authority allows it.

The Minister has control over water resources, must promote investigation, conservation, and proper use of water resources throughout Malawi, and must ensure that authorities or persons under the Minister’s control carry out their water-related powers and duties. The Authority established under the Act assists the Minister.

This section creates the National Water Resources Authority and sets out its board, powers, meetings, quorum, and member appointment rules.

Members with a direct or indirect pecuniary interest must disclose it to the Authority as soon as possible, and the Authority must record disclosures in a book open for inspection.

The Authority has broad powers to manage water resources, including making guidelines, handling water-use permits, setting charges, gathering information, and advising the Minister.

The Authority may create committees, delegate functions to them, appoint their members, and let them set their own procedure unless the Authority directs otherwise.

The Authority may invite people to meetings, and the Minister may nominate public service officers to attend. Those attendees may take part in deliberations but cannot vote.

The Authority may establish regional offices in or near any catchment area.

The Authority appoints an Executive Director and may appoint other officers and staff.

The Minister may delegate powers or functions to the Authority in writing, except certain listed powers, and may revoke a delegation in writing.

The Authority must provide for water resources investigation activities, including data collection and analysis, rainfall and water gauging and recording, monitoring stations and boreholes, and sampling and analysis of water or waste.

The Authority may require people to keep records, maintain equipment, take or dispose of samples, or provide information, and the person required must bear the cost unless the Authority decides otherwise.

The Authority must provide a national monitoring and information system on water resources, and the public can access information from it by paying the prescribed fee.

The Authority’s funds come from appropriations, fees and other listed receipts, and it must keep proper accounts and comply with the Public Finance Management Act.

The Authority must keep water use charge revenue paid under permits in a fund it manages, and may use that money for costs of carrying out its functions.

The Authority may invest unused sums and may borrow money, but borrowing is subject to the Public Finance Management Act.

The Authority’s financial year starts on the Act’s commencement date and ends on 30 June; after that, each financial year runs for 12 months ending on 30 June.

The Authority must send an annual report to the Minister within six months after each financial year ends, and the report must later be laid before the National Assembly and published.

The Authority must produce a progress report on its activities at the end of each financial year and publish it.

The Authority may designate a defined area as a catchment area by Gazette notice, following the National Water Policy.

The Authority may establish a catchment management committee, including on its own initiative, and proposals for one must be developed after public consultation.

The Authority may establish or change a catchment management committee, but only after consulting the Minister and receiving the required proposal and any additional information.

A catchment management committee must be composed from specified categories of representatives and qualified persons.

A catchment management committee must advise the Authority’s regional officers on water resources and related licences, and may also carry out conservation activities and works if the strategy and funding conditions are met.

The Authority must call the first meeting of a catchment management committee and support the committee’s activities.

Catchment management committees can get funding from the Authority and other lawful sources, and must submit annual audited accounts.

The Authority must prepare and periodically review a catchment management strategy, with consultation and public participation, and Ministers and public authorities must follow it when using statutory powers or functions.

Catchment management committees must promote and sensitize users of watercourses and water bodies about protection, management, conservation, and sustainable use.

The Minister must publish the National Water Policy in the Gazette, review it periodically, and may publish revised versions. The Minister, the Authority, and public bodies must take the policy into account and give effect to it when using statutory powers or performing statutory functions.

The Minister may require the Authority to prepare and keep updated a national water resources master plan and recommend revisions, and the Minister must send the recommended plan to Cabinet within 21 days.

After Cabinet approval, the Minister must issue the National Water Resources Master Plan by notice in the Gazette.

The Minister may reserve part or all of certain water resources by Gazette notice, and public authorities must account for the reserve when acting on the resource.

People with lawful access may take water for domestic use without a licence, and they may harvest rainwater on their own or communal land for domestic purposes.

Water may only be abstracted and used if authorized under this Part; certain works and early water-taking without permission are offences.

To apply for a licence to abstract and use water, a person must apply to the Authority in the prescribed form and include required information; the Authority must publicize the application, handle objections, and may grant the licence.

The Authority must consider listed factors when deciding whether to issue a water licence. The Minister may issue more than one licence for the same water resource, and a licence lasts for the period stated in it and may be renewed on application.

A licence to abstract and use water must state specified details, including duration, location, uses, holder details, conditions, review frequency, and any applicable fees or review/suspension/amendment/cancellation terms.

A water abstraction licence is issued with conditions covering conservation, monitoring, discharge handling, and community requirements.

If the Authority plans to grant or amend a licence, it must send the proposal to the relevant public authority and consider any response before acting.

The Authority may exempt a public authority or a class of persons or works from section 39, subject to Minister-issued guidelines and any conditions the Authority sets.

The Authority may grant a temporary water licence in exceptional circumstances, without public consultation, and may attach conditions.

A licensee may not start operations under the licence until the relevant works have been inspected and cleared by the Authority.

A licensee must inform the Authority if the location where licensed water is used changes.

The Authority may vary a water licence if certain water-supply problems or impacts are shown, but it must first notify the licensee and give them a reasonable chance to object.

The Authority may cancel a licence if the licensee breaches licence conditions, takes or uses excess water, uses water for the wrong purpose, fails to comply with the Act, or does not make full beneficial use within two years.

The Authority may cancel or vary a licence for a public purpose, and must pay compensation to a licensee whose licence is cancelled. The Minister may declare a purpose to be a public purpose by Gazette notice.

If water flow drops or is likely to drop for reasons beyond the Authority’s control, the Authority must hold a public hearing and may then change water-diversion, storage, or use licences as it considers fair and equitable.

A licensee may apply for a licence variation, and the Authority may vary the licence or its conditions.

If a water abstraction licence expires, is not renewed, or is cancelled, the Minister may require the licensee to remove restrictions, restore the prior state, or make maintenance arrangements.

A licensee may lease a licence for up to six months after giving 30 days’ notice to the Authority; longer leases need Authority approval.

A water-abstracting licence may be passed to a named successor-in-title when the licensee dies or transfers it, but the licence term is not extended.

A licensee who stops using water under the licence must notify the Authority and abandon all or part of the licence; the Authority may then order removal of related works.

The Authority may require a licensee to surrender a licence by notice, and failure to comply is an offence.

The Authority must keep a register of all licences issued and in force, including licence details, terms and conditions, and monitoring and enforcement results. The public can access information in the register by paying the prescribed fee.

If a person needs both a water abstraction/use licence and an effluent discharge permit, the Authority must issue one combined licence.

A licence to abstract and use water must be granted for at least five years.

A water-use licence may be renewed if the licensee applies to the Authority at least three months before expiry.

A person who has saved water may transfer it to another person for payment or free of charge.

A licensee needing easements for works must get one before constructing or using the works, unless the works were already lawfully built.

The Minister may declare a drought or emergency and order water to be supplied in a shortage area; people directed by the order must comply, and interference or obstruction without lawful authority is an offence.

The Authority may declare an area to be a groundwater conservation area and may impose, regulate, or prohibit activities there when needed to protect groundwater.

Issuing a permit under this Part is not a guarantee of groundwater supply.

Drilling or changing a borehole for groundwater exploration requires a permit, and the applicant must apply to the Authority.

A borehole constructor or driller who must keep records under this Part must send specified records and testing details to the Authority within one month after construction stops.

The Authority may, by notice, require borehole tests and a report of the results when a borehole is being built within 800 metres of an existing borehole.

A contractor who drills or constructs a borehole on someone else’s land is treated as the borehole constructor for this Act and is jointly and severally liable with the landowner for section 69 obligations.

People involved in borehole construction may ask the Authority to treat certain borehole records and specimens as confidential.

No person may waste groundwater from a borehole, lose more than 20% of borehole water in transit, or use borehole water for domestic use or stock watering unless waste-preventing controls are in place. The Authority may allow waste by notice in particular cases.

People abstracting groundwater through a borehole must take steps to prevent contamination or pollution.

The Authority may order special measures for a borehole owner to prevent groundwater contamination or unwanted flow between aquifers.

Artesian and sub-artesian boreholes must be cased, capped, or fitted with equipment that prevents water from flowing or wasting away.

If a borehole hits salt water, its owner must securely case, plug, or seal it so the salt water stays in the same strata and cannot escape to other water-bearing strata or the ground surface.

A person must not interfere with a defective borehole or put dirt, rubbish, or other material into it unless the Authority gives written permission.

Before re-casing a defective borehole or removing plugs, the owner or an authorized representative must file an application with the Authority.

The Authority may request more data, investigate, and inspect remedial work. If a borehole is found to contain salt water, it must issue instructions to the applicant about the work needed and the time allowed.

The Authority may inspect a borehole suspected of containing salt water and may order instructions to cure defects in it.

After the works are completed, the contractor—or the borehole owner if there is no contractor—must file a sworn or affirmed statement with the Authority describing how the work was done.

The Authority must decide whether defective borehole work is satisfactory and, if not, order extra work and set a completion time. After the extra work is finished, a sworn or affirmed statement must be filed with the Authority.

A person may not drill or construct boreholes unless licensed as a borehole driller or borehole constructor.

The Authority may declare a protected area, with the Minister’s approval, and may impose or regulate/prohibit conduct in that area to protect it and its water resources.

The Minister may declare part of Malawi a controlled area and set up a management plan for land, water, and other natural resources when water is short or may become short.

Controlled activities generally require a permit, and the Minister must publish a Gazette notice and invite comments before declaring an activity controlled.

A person or public authority must not cause or allow effluent to touch water, be discharged into water, or pollute water unless authorized under this Part.

People responsible for land where an activity or process is causing, has caused, or may cause water pollution must take necessary steps to prevent the pollution. The Authority may order specific measures by set dates and may step in to fix the problem and recover costs if the order is ignored.

The Authority must prescribe a list of substances that cannot be discharged under this Part.

The Minister must prescribe effluent quality standards, after consulting competent authorities.

A person who wants to discharge effluent must apply to the Authority for a permit, and the Authority must publish notice of the application and consider listed factors before deciding whether to issue the permit.

A permit to discharge effluent must state specified details, including the permit holder’s details, discharge location, treatment facility location if any, discharge limits, facility waterproofing or covering requirements if any, duration, conditions, review frequency, and whether it may be periodically reviewed, suspended, amended, or revoked.

A discharge permit must include conditions set by the Authority to protect water resources and nearby facilities, manage effluent discharges, and protect public health.

If the Authority plans to grant or amend an effluent discharge permit, it must refer the proposal to relevant public authorities and consider their responses before deciding.

A permit to discharge effluent cannot last more than five years and expires at the end of its term, subject to sections 98 and 101.

A permit to discharge effluent may be renewed if the permit holder applies to the Authority in the prescribed manner at least three months before expiry.

The Authority may review and amend a discharge effluent permit during its life if it thinks it is in the public interest, and may invite the permit holder to make representations before amending it.

A permit holder may apply to transfer an effluent discharge permit, and the Authority may approve or deny it within 60 days.

A discharge-effluent permit may pass to a named successor-in-title when there is a death or transfer.

The Authority may suspend or cancel a permit to discharge effluent in specified cases, but it must first give the permit holder an opportunity to make representations within 30 days of notice.

If an effluent discharge permit expires without renewal or is cancelled early, the Authority may order restoration or make an arrangement for maintenance of the discharge works.

If a harmful substance spills into or may reach a water resource, certain people must report it quickly and help contain, clean up, remedy, and compensate for the damage.

The Authority may, subject to the Act and the National Water Resources Master Plan, carry out works and water-related actions for sustainable water resource development or its functions.

This section defines “community project” and “state scheme,” including when a water-related project or drainage scheme counts for the Act.

State schemes outrank other schemes for water use and land drainage; community projects outrank other schemes except state schemes. The Minister may direct certain works and may order aid from public money within parliamentary appropriation.

The Authority may build and maintain works on land for state schemes after giving reasonable notice to the landholder concerned. The Government must pay compensation on just terms to the landowner, and the Minister must consider benefits and adverse effects when setting that compensation.

The Authority may not issue a water-abstracting licence for a community project unless the project has the required local approval and provides an adequate alternative water supply for affected permit holders.

A person who the Minister believes will benefit from a scheme or project may be required to contribute to its cost in cash or in kind.

This section defines terms used in the Part, including approved professional person, dam, dam with a safety risk, owner of a dam, and task.

You cannot do construction work that blocks or slows a watercourse unless you have the required licence.

Owners of dams with safety risk must provide requested documents and allow access, and the Authority may order reports or repairs.

Approved professional persons must act with care, follow acceptable dam engineering practices, keep records, compile reports, and sometimes issue a completion certificate or submit a signed report to the dam owner.

Owners of dams with a safety risk must register the dam with the Authority, and applications must be made within 120 days of the relevant trigger. Successors-in-title must promptly tell the Authority about the succession.

When declaring a dam safety risk, the Authority must consider listed safety, harm, cost, and socio-economic factors.

The Minister may exempt certain dams from this Part or regulations, on the Authority’s recommendation and on conditions set by the Minister. The Minister may also withdraw an exemption or add conditions.

The Minister may make regulations about dam safety and flood-risk prevention, and must consult relevant professional categories and statutory bodies before doing so.

The Authority may take measures to prevent or reduce flood risk and flood damage, including prohibiting certain construction, altering or demolishing works that worsen runoff, restricting crops or structures in sensitive areas, and working with local authorities on floodplains and storm water rules.

The Minister may, with the Authority’s recommendation and by Gazette notice, set charges for certain water-related services, licences, and permits. Water abstraction charges must be based on a pricing strategy that considers fairness, efficient water allocation, water conservation, sound water management, and incentives for timely payment.

The Authority must collect prescribed water charges and fees, keep the proceeds in a separate account, share at least 20% with catchment management committees, use the balance for its statutory purposes, and send the Minister a yearly audited statement.

This section establishes the Water Resources Trust Fund and says trustees manage it and set principles for grants from it.

The Water Tribunal is established, and it may conduct hearings anywhere in Malawi.

The Minister appoints the Water Tribunal’s Chairperson and Deputy Chairperson on recommendation of the Judicial Service Commission, and sets members’ terms and conditions with the Minister of Finance’s input.

A Water Tribunal member’s office becomes vacant if the member dies, resigns, becomes bankrupt, is declared of unsound mind, is convicted of an imprisonable offence, or is terminated under subsection (2).

Officials of the Ministry responsible for water affairs must provide administrative support for the Water Tribunal, and the Tribunal’s expenses are to be paid from money appropriated by Parliament for that purpose.

The Water Tribunal and its members are not liable for acts or omissions made in good faith while carrying out their functions under this Act.

The Water Tribunal must hear appeals by affected aggrieved persons, and it can also hear disputes and exercise other powers given by law.

An appeal must generally be lodged within 30 days after written notice of the decision or order is served on the appellant.

The Water Tribunal has broad powers in cases before it, must decide disputes on the merits, may vary appeal decisions, and aggrieved persons may seek judicial review in the High Court.

The Water Tribunal must set its own procedures and rules for appeals and related matters before it.

Water users may form an association by simple majority agreement for listed water-management purposes.

Proposed members must prepare and submit a constitution to the Authority for approval, the Authority must help formulate it if asked, and the Minister may amend the schedule by regulation.

After the Authority approves the constitution, the association must be registered, water users in its area must join and follow the constitution, and the Authority must record membership details.

The Authority must keep a Register of registered associations of water users, may add more details to it, and the public may access the information by paying a prescribed fee.

The Authority may give directions to an association if it is not performing its functions satisfactorily.

The Minister may disestablish an association of water users, but only with the Authority’s recommendation and by Gazette notice.

If a water users association is disestablished, its affairs must be wound up, the winding-up costs are charged to its estate, and the Minister may require reimbursement of public funds before assets are distributed.

The Authority’s employees, agents, and authorized persons may enter land to inspect, monitor, and take measures for water resources, subject to section 152 in one case.

An authorized person entering land must cooperate, minimize time on the land, remove works-related items, and leave the land as nearly as possible as it was; notice is generally required before entry, with limited exceptions.

An inspector may enter land, including without warrant, to inspect water use, take samples or tests, and check for permit compliance or other contraventions.

The Minister may establish bodies, consult a SADC counterpart, and share water-related information, but the sharing power is limited by matters such as state security.

Some aggrieved persons may appeal to the Minister within one month, and a further appeal may go to the Water Tribunal if still aggrieved.

A person who does not comply with an order or requirement under the Act commits an offence.

This section makes it an offence to do several water-related acts without authorization, ignore Authority or Minister orders, block inspections or surveys, fail to provide required information, or undertake a controlled activity without a permit.

This section makes it an offence to obstruct water officials, damage or interfere with water-related equipment or permit holders’ works, waste or misuse water, misuse permit water, or interfere with hydrological stations.

The Minister or the Authority may, subject to section 148, start and continue criminal proceedings for offences under this Act or its rules and regulations, without affecting any person’s right to bring proceedings.

People convicted of offences under this Act, or certain related regulations or rules with no other penalty, face fines and imprisonment, with higher penalties for repeat offences and extra daily fines if the contravention continues.

The Authority may impose administrative penalties on a person if it has reasonable grounds to think the person contravened the Act, but it must give written notice and a chance to request a hearing first.

This section says a body corporate’s state of mind can be shown by proving a director, employee, or agent acted within actual or apparent authority and had the relevant state of mind.

If a body corporate commits an offence under the Act or regulations, each director is also guilty and liable to the same penalty unless they can show reasonable precautions and due diligence.

If a body corporate is convicted of an offence under the Act, the court may impose a pecuniary penalty up to five times the maximum penalty that could be imposed on an individual for the same offence.

If land is damaged through powers exercised under the Act, the Government must compensate everyone with an interest in that land.

The Minister may, on the Authority’s advice, prescribe guidelines for authorized persons or public authorities to follow when exercising powers under the Act.

When exercising powers or functions under this Act, the Minister, Authority, authorized person, or any other person must take the listed matters into account.

The Minister, the Authority, the catchment management committee, the Water Tribunal, and people acting under their direction are protected from personal liability for good-faith acts or omissions done to carry out the Act or its rules, regulations, or orders.

A designated person must give public notice, make application documents available, consider comments, and publish the written decision and reasons.

The Minister may make regulations, and the Authority may make rules, if they are not inconsistent with the Act.

At commencement, a person may not sink a borehole or use water under the Mines and Minerals Act without the required borehole permit and groundwater licence.

A person claiming an existing right must notify the Authority within 12 months after the Act comes into operation.

When the Authority gets a notification under section 159, it must investigate whether the right exists and, if satisfied, record the right and issue a licence.

If this Act conflicts with certain listed laws or any other written law, this Act applies.

The Water Resources Act is repealed, but existing subsidiary legislation under it continues in force unless it conflicts with this Act.