Subject to the provisions of the Constitution and the Act, the county executive committee member shall be responsible for the development and provision of water and sewerage services within the county.

In every five year period, and following public consultation the county executive committee member shall formulate a county water and sewerage services strategy.

The county water and sewerage services strategy shall be formulated in compliance with Article 10 of the Constitution and it’s objective shall be to fulfill the fundamental human right to clean and safe water in adequate quantities and the right to reasonable standards of sanitation.

The strategy shall be published in the Gazette after approval by the county executive committee.

The county water services strategy shall be reviewed periodically and in any case not later than every five years.

Every county public officer and every county organ shall give effect to the gazetted county water and sewerage services strategy in the discharge of duties under this Regulation.

Every water services provider, including private water services providers and community water services providers operating in the county shall take account of the county water services strategy when executing plans and programmes.

The county executive committee member shall, on an annual basis, with the technical assistance of the county director and in consultation with the Regulatory Board, undertake monitoring and evaluation of the performance of each water services provider to ascertain the extent of compliance with the county water services strategy and performance targets.

The county executive committee member shall, on the basis of recommendations of the monitoring and evaluation report, take appropriate remedial measures to ensure the continuous improvement of the standard and quality of water and sewerage services provided by water services providers operating in the county.

The county government may, pursuant to section 77 of the Act and by notice in the Gazette, or through incorporation of a limited liability company, establish one or more county entities as a water and sanitation services provider or providers as the case may be.

The county executive committee member shall, in consultation with the Regulatory Board, assign to each county water services provider established under this regulation a water supply area which covers the whole or a portion of the area of geographical jurisdiction of the county government.

In determining the area of supply of a county water services provider, the county executive committee member shall take account of and give effect to the operation within the whole or part of the proposed supply area of community or private water services providers.

In accordance with the transfer plan published by the Cabinet Secretary pursuant to section 152(4) of the Act, the county water services provider shall succeed to and assume the functions, assets, contracts, liabilities and staff of the water services board used for the provision of water services within the area of supply of the county water services provider and such transfer shall be completed not later than twelve months following the establishment of the county water services provider or such longer period as the Cabinet Secretary, in consultation with the county government, may approve.

A county water and sewerage services provider established pursuant to section 77 of the Act shall be responsible for the provision of water and sewerage services, and for development and management of the related infrastructure and facilities, within its area of supply and for this purpose shall hold on behalf of the county government, county public waterworks.

Each county water services provider shall have a board of directors comprising between seven and nine members which shall guide and direct the performance of its functions.

The term of the members of the board of the county water and sewerage services provider shall be three years renewable once which term shall not be affected by the expiry of the term of office of the county government.

The business and affairs of the boards shall be conducted in accordance with the First Schedule.

A county water services provider shall employ a chief executive officer and other staff necessary for performing its functions as a licenced water services provider on terms and conditions of employment approved by its board of directors which terms and conditions shall comply with the water sector benchmark on personnel remuneration as set by the Regulatory Board in line with the guidelines issued by the Salaries and Remuneration Commission.

A person employed by a county water services provider shall be a public officer and subject to the laws governing the conduct of public officers.

Without prejudice to sub regulation (1), a chief executive officer of a water services provider shall serve for a term of three years which may be renewed twice subject to satisfactory performance.

Pursuant to regulation 12(1)(a), the county government may in appropriate cases provide financial assistance to enable a water services provider which satisfies the criteria stipulated in the county water services strategy meet a portion of its operation and maintenance costs.

The county government may additionally set up a Dedicated Fund into which the county government and others may place funds for supporting the provision of water services to underserved areas.

The Dedicated Fund may be available to a community water service provider that meets the criteria in rule 18.

The rules governing the operation of the Dedicated Fund shall be prescribed by the County Executive Committee in consultation with the Regulatory Board.

All funds of a county water services provider and all revenues arising from provision of water services by a county water services provider shall not form part of the general revenues of the county government but shall be retained by the water services provider for its purposes.

Any excess of revenue over expenditure at the end of the financial year shall not be paid over to the county government but shall be retained by the county water services provider to be used for the improvement of water services within the area of supply of the county water services provider.

Every water services provider shall establish and maintain a contingency fund into which it shall pay a portion of its revenues to be used to pay for emergency repairs and meet the costs arising from unforeseen occurrences which can disrupt the provision of water services.

A water service provider shall not make payments out of its revenues to the county government or otherwise provide other financial support that is inconsistent with its core mandate of water services provision unless as provided in these Regulations.

Not less than six months before commencement of each financial year, the board of a county water services provider shall cause to be prepared estimates of the revenue and expenditure for that year in line with the approved tariff.

The annual estimates shall make provision for all the estimated capital and recurrent expenditure of a county water services provider for the financial year concerned.

The annual estimates shall also make provision for such amounts as are required to pay any portion of the principal or interest of loans or advances if any secured by or on behalf of the water services provider to finance the capital costs of developing and or rehabilitating infrastructure or facilities and or acquiring equipment and other assets for the provision of water services.

The board shall submit the estimates to the county executive committee member for approval and inclusion in the annual budget of the county government.

No expenditure shall be incurred for the purposes of a county water services provider except in accordance with the annual estimates approved as provided under these Regulations.

The board of a county water services provider shall keep proper books of account of its income, expenditure, assets and liabilities.

The annual accounts of a county water services provider shall be prepared, audited and reported upon in accordance with Article 226 and 229 of the Constitution and applicable national and county government legislation.

Subject to compliance with the requirements of applicable national law a county water services provider may, in an appropriate case, engage in a public private partnership or other appropriate contractual arrangement for the development and operation of water services infrastructure or the provision of water, wastewater and fecal sludge disposal services.

Any assets, facilities and infrastructure developed under a public private partnership to be used for the provision of water or sewerage services shall be deemed to be public property and upon the expiry or other termination of the public private partnership agreement, shall be vested in and be owned by the county government or county water services provider.

The water services provider shall by the end of June of each calendar year, notify the county director of water and sanitation services and the Regulatory Board of material changes to the information provided in the previous year and the county director and the Regulatory Board shall as soon as practicable thereafter, update the register.

The register shall be posted on the website of the county and the Regulatory Board, and, additionally be open to inspection by members of the public at the offices of the county government and the Regulatory Board during normal working hours.

The county executive committee member shall facilitate the development and operation of community or private water service providers in rural areas within which the county water service providers do not provide adequate water services.

Where following viability studies, it is recommended that community water service providers should form associations in order to achieve their objectives, the county executive committee member shall put in place the appropriate measures to facilitate such associations.

For purposes of enhancing the efficiency and cost effectiveness of the water services provided by community water services, the county executive committee member may put in place measures to encourage community water service providers to consolidate and outsource to a common services provider, services including billing services, pump maintenance services and other similar services or engage the services of a contractor to provide professional management services.

A community water services provider which takes steps to enhance efficiency and cost effectiveness through clustering, outsourcing of services or engagement of professional management services among other measures shall be eligible to financial, technical and other support from the county government prior to achieving financial viability.

Within twelve months of the coming into force of these Regulations or such extended period as the Regulatory Board may allow, a person providing or intending to provide water services shall apply to the Regulatory Board for the issuance of a licence in accordance with section 74 of the Act.

The Regulatory Board in accordance with section 74 of the Act, shall invite the applicable county government to provide written submissions prior to making a determination on an application.

The Regulatory Board or the county government may convene a meeting to discuss the views of the county government before or after the written submissions in sub regulation (1) are made.

Where the Regulatory Board does not receive a written response from a county government, the Regulatory Board shall consequently request the county government to submit its views, make two reminders within three months and thereafter the Regulatory Board shall proceed to make a determination on the application.

For purposes of sub regulation (3), any written communication to a county government shall be addressed to thecounty executive member with a copy to the county secretary and shall be delivered physically and a return on delivery received by the person making the delivery

The Regulatory Board shall make a determination on an application for a licence within six months after the water service provider lodges a complete application.

The Regulatory Board shall prior to making a determination undertake public consultations with residents and stakeholders of the geographical area to be served by the applicant including at least one public meeting for oral submissions of views and invitation of written submissions.

The Regulatory Board shall issue public notices for the public consultation and ensure that the notices are widely disseminated to

residents and stakeholders through newspapers, radio, websites and other means of public dissemination.

The Regulatory Board shall take into consideration any written submissions by any person objecting to the application.

Upon conclusion of a public consultation exercise, and before making a determination on the application, the Regulatory Board shall provide feedback on how the submissions by the public, residents, stakeholders, county government, objectors and any other persons were taken into account in determining the application.

Where the Regulatory Board does not determine the application within six months of receipt of the application, any fee charged by the Regulatory Board under section 86(3) of the Act shall be refunded to the applicant.

Any applicant or person who objected to the application may, if aggrieved by the decision of the Regulatory Board, appeal to the Tribunal within thirty days of formal notification of the decision by the Regulatory Board.

Any person opposed to the grant of a licence may object in writing to the Regulatory Board.

The Regulatory Board shall notify the water service provider and the objector of its decision, and in the event of rejection of an application or objection, of the reasons for the decision.

A licence issued by the Regulatory Board shall be valid for such period as set by the Regulatory Board not exceeding ten years.

The restrictions in paragraph (j) may include such uses of potable water as the Regulatory Board may approve including construction of buildings, road construction, commercial and industrial activities, landscaping or similar non-domestic uses.

The register shall be a public document accessible for inspection at no charge and shall be publicized or posted on the website of the Regulatory Board and placed at such places as the Regulatory Board shall determine.

The maps shall be stored in digital and hard copy format and shall be available on the website of the Regulatory Board.

Without prejudice to sub paragraphs (i) and (ii), a county government and the national government may provide financial support to ensure continuity of service provision in urban, peri-urban and rural areas.

A water services provider shall establish, publicise and implement a schedule of water supply according to which it supplies water services.

Where there is a planned interruption to the schedule, a water services provider shall notify customers who are likely to be affected by the interruption not less than twenty hours prior to the planned interruption and shall indicate the expected duration of the interruption.

Where an unplanned interruption to water services occurs, the water services provider shall notify customers as soon as is reasonably practicable and not less than twelve hours after the discovery of the interruption and appraise customers on the progress made to address the cause of the interruption and the expected time or day of resumption of normal service.

Where an interruption in services extends for a period longer than seven days, the water services provider shall take remedial measures to the extent practicable to provide consumers with a basic supply of water through bowsers and other mobile means.

Where such interruptions arise from damage to pipes or other infrastructure by a contractor carrying out works, the contractor shall repair the damaged pipes or infrastructure within such time as the water service provider stipulates and pending the restoration of the water supply, the contractor shall meet the costs of providing an alternative water supply to the affected consumers.

A licensee shall include a suitable programme as prescribed by the Regulatory Board for sampling the quality of potable water provided by it to its customers in its business plan.

The water quality sampling programme shall specify the points at which potable water provided to customers will be sampled, the frequency of sampling and for which substances and determinants the water will be tested.

A licensee shall compare the results obtained from the testing of the samples with standards as established or approved from time to time by the Kenya Bureau of Standards.

A licensee who does not comply with this rule commits an offence and is liable on conviction to such penalties as are prescribed in these Regulations.

A licenced water service provider shall, within two years of the issue of its licence, or such extended period as the Regulatory Board may approve, formulate and submit to the Regulatory Board and the county government a plan for the progressive improvement of infrastructure and systems for effluent, faecal sludge and wastewater treatment and disposal in its area of service.

The plan shall propose a time frame for the development of the infrastructure, a budget and a resource mobilisation plan.

The plan shall also provide measures and procedures for private persons or community groups to establish, operate and charge a fee for the use of effluent or faecal sludge treatment plants established as a private or community enterprise under a contract with the licensee.

A person, other than a person discharging wastewater from premises used solely for residential purposes, who intends to discharge effluent or other wastewater from commercial, industrial, institutional or other premises shall obtain consent from the licenced water services provider to discharge any trade effluent into the sewers of the licensee.

A licensee shall only be obliged to accept the quality and quantity of trade effluent of any other substance into a sewerage system that the sewerage treatment plant of that system is capable of purifying or treating to ensure that any discharge to the ambient environment complies with any standards prescribed by the Authority and or the National Environmental Management Authority as the case may be.

For purposes of exercising its mandate to receive effluent into its sewerage system, a licensee may inspect pre-treatment facilities handling trade effluents.

Any person who contravenes the provisions of this regulation commits an offence and shall be subject to penalties under the Act.

A person aggrieved by the decision of the licensee on an application under this regulation, may within thirty days of the decision appeal to the Water Tribunal.

A licenced water service provider shall implement the tariff approved and gazetted by the Regulatory Board for the prescribed period.

A licenced water service provider shall be required to lodge a tariff review application not less than six months prior to expiry of the current tariff.

The Regulatory Board shall send written notification to each licenced water service provider, not less than nine months prior to expiry of the current tariff including a copy to the respective County Executive Committee member.

Not less than six months before the expiry of the regular tariff, the water services provider shall make an application to the Regulatory Board for a regular tariff review.

Before determining the application, the Regulatory Board shall, undertake consultations with the respective county government, the public and the residents and stakeholders within the area within which the licensee operates.

The Regulatory Board may approve the proposed tariff either as proposed or with amendments or conditions and upon approval, shall issue a notice in the Gazette setting a date from which the new tariff will apply.

The Regulatory Board shall undertake tariff implementation reviews during the life of a tariff.

At any time before the regular tariff review, a water services provider may, for good cause shown to the Regulatory Board, apply for an extraordinary tariff review.

An application for an extraordinary tariff review shall, in addition to meeting the requirements for a regular tariff review, satisfy the Regulatory Board that, due to a change in circumstances which could not have been foreseen during the last regular tariff review or for some other justifiable reason, a tariff review is necessary to ensure a sustainable water service.

An extraordinary tariff review, shall if approved by the Regulatory Board, be gazetted and apply only until the end of the regular tariff period.

The Regulatory Board may, at the request of the water services provider as part of the regular tariff review, and for good cause shown, permit the water services provider to implement price indexation by reference to the officially published annual inflation index.

Permission to implement price indexation may only be granted if has been subjected to stakeholder consultation and, if granted, shall be gazetted and apply only until the end of the tariff period.

The Regulatory Board’s decision on a tariff application may be appealed to the Water Tribunal by the water services provider, a consumer within the area of the water services provider or any other person likely to be affected by the decision.

The Regulatory Board may, for purposes of securing a commercially viable water service, require two or more water service providers to cluster for purposes of provision of the licenced water services.

Clustering shall be undertaken in accordance with the requirements of these Regulations and shall additionally comply with clustering guidelines issued from time to time by the Regulatory Board.

If, on the basis of the recommendations of the report of the feasibility study, the proposal to undertake clustering is approved by the county executive committee and the Regulatory Board, the clustering process shall be overseen by a joint committee comprising members of the board of directors of the water service providers participating in the clustering and three other persons appointed by the county executive committee member on the basis of their knowledge and experience of the water sector.

The joint committee shall continue as a transitional mechanism and upon conclusion of the clustering process and appointment of the new Board of Directors, shall stand dissolved.

Where the clustering involves a merger or a takeover of a licenced water services provider which is a corporate entity, upon conclusion of the clustering exercise, the water services provider ceasing to exist shall be dissolved by a resolution of an annual general meeting or extraordinary general meeting and compliance with the requirements under the Companies Act and other applicable laws.

A water services provider providing water services as a clustered service shall, within one year of the conclusion of the clustering exercise, apply for a new service provision area licence and a new tariff in accordance with the procedure for applying for a licence and tariff review under regulation 20 and 45.

If satisfied that the applicant meets the licensing requirements under section 86 of the Act and regulation 20 the Regulatory Board may issue the licence:

Provided that where the applicant has not met the licensing requirements under section 86 of the Act and regulation 20, the Regulatory Board may issue the applicant with a provisional licence conditional on the applicant satisfying any outstanding requirements within a defined timeframe not exceeding two years.

Where clustering involves the provision of water services in more than one county by a water services provider, the proposal to undertake clustering shall require the approval of the county executive committees of both or all counties within whose area of jurisdiction the water services are to be provided.

“Commercial viability” means, in respect to an urban water service, the ability to meet capital and operation and maintenance costs out of the water revenue and, in respect to a rural water service or a water service serving a low income urban area, the ability to meet operation and maintenance costs out of the water revenue year on year taking account of the input costs of providing the licenced service, the extent of non-revenue water, the consumer base, the efficiency of the service, applicable national and international benchmarks for sustainable water service and other relevant considerations.

Bulk water supply services which are primarily intended to supply water in bulk to a water services provider in a county or counties other than the county in which the bulk water abstraction works are located shall be undertaken by waterworks development agencies established under section 65 of the Act.

In accordance with the transfer plan published by the Cabinet Secretary pursuant to section 152(4) of the Act, waterworks development agencies shall succeed to and assume the functions, assets, contracts, liabilities and staff of the water services board used for the provision of cross-county bulk water supply within the area of jurisdiction of the waterworks development agency and such transfer shall be completed not later than twelve months following the establishment of the waterworks development agency or such longer period as the Cabinet Secretary, in consultation with the county governments within whose area of jurisdiction the cross- county bulk water services are to be provided, may approve.

A person desiring to supply water in bulk or operating an existing bulk water supply system shall make an application to the Regulatory Board for a bulk water supply licence.

A separate application shall be made for each bulk water supply system.

Following the receipt of the application under regulation 57, the Regulatory Board shall undertake public consultation in respect to the application.

In determining the application, the Regulatory Board shall provide feedback indicating how it has taken account of and addressed the representations made by stakeholders during the public consultations.

Within six months of receiving a complete application for a bulk water supply licence, the Regulatory Board shall determine the application and may approve, approve with conditions or reject the application.

The licence shall specify the bulk tariff which shall be subject to indexation, regular review and extraordinary review according to a schedule and on terms and conditions stipulated by the Regulatory Board.

A licensee shall pay to the Regulatory Board, as the case may be, on issue of the licence and at prescribed intervals thereafter, such licence fees as the Regulatory Board may following consultation with the Cabinet Secretary, determine.

The licence fee shall be determined by reference to a schedule of fees published in the Gazette from time to time by the Regulatory Board.

Pursuant to section 109 of the Act, the Regulatory Board may impose a sewerage services levy on all water services within the area of a licencee at a rate to be determined and gazetted from time to time following approval of tariffs.

The sewerage services levy shall be used to cover part of the capital costs of developing waste water and faecal sludge management, treatment and disposal infrastructure within the area of supply of the water services provider.

The water service provider shall maintain a separate account for funds collected from the sewerage services levy which shall be administered in accordance with Fund Administration Rules issued from time to time by the Regulatory Board.

Pursuant to section 117(2) of the Act, the Cabinet Secretary shall impose a levy of 3% of the monthly water consumption bill of each consumer as a water consumption levy to come into effect on a date to be notified by the Cabinet Secretary in the Gazette and which shall be payable into a Fund maintained by the Water Sector Trust Fund.

The proceeds of the water consumption levy shall be used in accordance with the objects of the Fund under section 114 of the Act and on the basis of funding principles and criteria formulated by the Water Sector Trust Fund in consultation with the Cabinet Secretary and county governments.

The Cabinet Secretary may, from time to time, following public consultation, review the water consumption levy in sub regulation (1) and notify any change through a notice published in the Gazette.

The levy imposed under section 117(2) of the Act shall be collected by licenced water service providers and maintained in a separate bank account established for the purpose.

A licenced water service provider shall keep books of account and other books and records in relation to its water consumption levy bank account and submit an annual audit of such books and records to the Regulatory Board.