Framework for land access and right of use for water supply structures

Introduction

This framework sets out the procedures to be followed to ensure that access and right of use to land on which water supply construction is built is durably secured.

These are designed in accordance with relevant Ethiopian legislation, fair social rights and environmental protection. Fair social rights are defined as ensuring that no individual faces a restriction or reduction in access to important livelihood resources.

There are two scenarios for the transfer of land use right:

i) Transfer of land holding

ii) Transfer of land use right without change of land holder

The process is then presented for different components of wash supply structures.

Applicable Ethiopian regulations and definitions

This framework refers to the following applicable regulations:

- Proclamation No.1161/2019: “Expropriation of Land holdings for public purposes, payments of compensation and resettlement of displace people”

- Proclamation No.110/2007: “The Southern Nations, Nationalities and Peoples Regional state Rural Land Administration and Utilization Proclamation”

- Regulation No.135/2007: “Council of Ministers Regulation on the Payment of Compensation for Property situated on landholdings expropriated for public purposes”

- Regulation No.197/2000: “Ethiopian Water Resources Management Proclamation”

- Regulation No.102/2012: “Rural Potable Water and Sanitation Association Establishment Regulation”

Definitions:

- WUA: Water User Association

- WUAF: Water User Association Federation

- WWO: Woreda Water Office

Scenarios for the transfer of land use right

3.1 Water resource ownership

3.1.1 All the water resources of the country are the common property of the Ethiopian people and state, as set out in Article 5 of Regulation No.197/2000.

3.1.2 Domestic use shall have priority over and above any other water use (Article 7.1 of Regulation No.197/2000).

3.1.3 Pre-allocation of water resource shall not give it priority over and above any other use (Article 7.2 of Regulation No.197/2000).

3.1.4 In the context of the use of spring water for water supply works, it means that the community (representing the people) has legal ownership of the water and therefore has the right to decide the usage of this water, prioritising domestic use, regardless of the current actual usage.

3.2 Transfer of land holding right

3.2.1 If reasonably feasible, the preferred option is land substitution as per Article 13 of Proclamation No.1161;

- The existing holder of the land will be offered an equivalent substitute land.

- Equivalent substitute land is defined in Article 15 of Regulation No 135/2007 as “a plot of land capable of serving a similar purpose”, which is interpreted to mean as being at least as productive in terms of crop production.

- They will also receive compensation for one harvest, using the calculation mechanism as set out in Article 5 and 6 of Regulation No 135/2007.

3.2.2 If not possible, financial compensation will be arranged as referred to in Article 12 of Proclamation No.1161.

- The amount of financial compensation will be ten times the price of the average yield of crops obtained from the land (Article 16.2 of Regulation No.135/2007).

- The valuation of the average yield will be calculated using the formula set out in Article 13 of Regulation No.135/2007.

3.2.3 If the land is communal a landholding transfer to the WUA will be established and the Kebele chairman will represent the landholders

3.3 Transfer of land use right without change of landholder

3.3.1 The landholder is obliged to allow the construction of public network utility lines, such as water pipelines, to cross over his/her landholding, as per Article 10.2 of Proclamation No.110/2007.

3.3.2 Article 13.1 of Proclamation No.110/2007 states that any landholder may lose his/her land use right when the land is found to be more useful for public use, as determined by the local community.

3.3.3 The landholder is obliged to accept the transfer of the right of use (servitude) required for the implementation of water works, as per Article 23.1 of Regulation No.197/2000.

3.3.4 In the context of water supply networks, the landholder is obliged to allow the construction of pipelines and water supply infrastructure on his/her land, and to allow required right of use (such as the right of way) to water users or to water service providers.

3.3.5 In the event that the landholder loses his/her existing land use right because of water infrastructure, he/she is entitled to claim financial compensation as stated in Article 13 and 16.2 of Regulation No.135/2007.

Spring, spring catchment or other water sources

4.1 Definitions

4.1.1 The inner protection perimeter of the spring catchment is the area that is kept free of any contamination and tampering. This perimeter is strictly protected (fenced off) with no access other than authorised water service providers. The recommended radius of this perimeter above the spring is 5 metres, with an absolute minimum of 2 metres.

4.1.2 The outer protection perimeter of the spring catchment is the area in which strong attention is paid to potential contamination. Use of latrines, agricultural chemicals and plantations with high water requirements (e.g. eucalyptus) are forbidden. All water diverting structures must be preserved and no changes made to the intended water flow. All vegetative cover must be preserved. The recommended radius of this perimeter above the spring is 50 metres, with an absolute minimum of 30 metres.

4.1.3 The catchment area is the entire area which drains water towards the spring. Activities should be conducted to increase the water infiltration in this area, such as afforestation and soil and water conservation activities.

4.1.4 These perimeters will be determined by the water engineer prior to the start of construction.

4.2 Options

4.2.1 Case A: Landholding right transfer of both the inner and outer protection perimeter is the preferred option, as the best way to ensure proper land use in the long term.

4.2.2 Case B: Landholding right transfer of the inner protection perimeter, and transfer of land use right for the outer perimeter. This is the best alternative where the landholding right transfer of the outer protection perimeter is not feasible. However this option cannot be used for networks with more than ten water points.

4.2.3 Case C: No landholding right transfer is possible for either inner and outer protection perimeter, and so both perimeters have a transfer of land use right only. However, this option cannot be used for networks with more than six water points.

4.3 Transfer of landholding right

4.3.1 The landholding right of potable water schemes shall be transferred to the water user association responsible for the spring, as per Article 29.1. of Regulation No.102/2012.

4.3.2 The transfer of landholding right is completed as set out in clause 3.2.1. if the land is privately owned, and per clause 3.2.3. if the land is communal.

4.3.3 In the event that the spring dries completely, the water user association retains the right to propose an alternative use for the land.

4.3.4 The documments required include:

- landholding certificate (see example in Annex B), prepared by the Rural Land Administration, including a geo-referenced map, (see example in Annex C); and

- fandholding right transfer agreement, signed by the landholder and the WUA, endorsed by Kebele Chairman (representative of the state), the Kebele Agricultural Head (representative of the Rural Land Administration) and the WWO representative.

4.4 Transfer of land use right without change of landholdher

4.4.1 An agreement (see template in Annex A) will be signed between the landholder and the WUA, endorsed by the Kebele Chairman (representative of the state), the Kebele Agricultural Head (representative of the Rural Land Administration) and the WWO representative.

4.4.2 The agreement will define the rights and obligations relating to the two protection perimeters, as defined in section 4.1.

4.4.3 The agreement is effective from the date of signature and remains in force until the spring catchment is officially decommissioned. The WWO is responsible for the decision to decommission.

Pipeline

5.1 Definitions

5.1.1 The pipeline includes all pipes and their protection, crossing structures, air vents, wash outs, and valve chambers.

5.1.2 The right of use for pipelines includes allowing unrestricted access for installation and maintenance to the water service providers, and a responsibility of care to avoid any damage to the pipeline, during and after installation.

5.2 Land use right

5.2.1 The transfer of the right of use (servitude) is a legal obligation and extra-contractual liability (legally binding responsibility without agreement). This is effective from the date of installation of the pipeline.

5.2.2 The landholder is responsible for reporting any instances of damage/defects to the WUA or nearest water service provider.

5.2.3 If the landholder incurs a loss of crop production directly related to the installation, he/she is entitled to claim financial compensation as stated in Article 13 and 16.2 of Regulation No.135/2007.

Water points

6.1 Definitions

6.1.1 The water point includes the fountain (tapstand), wash table, cattle trough and washout or drainage system, and all pipelines connecting these infrastructures together.

6.1.2 The right of use for land on which the water point is built (delineated by the full area covered by the infrastructures mentioned above) includes allowing:

- unrestricted access for installation and maintenance to the water service providers;

- unrestricted access for the users to the fountain and wash table; and

- unrestricted and adequate access for livestock to the cattle trough.

6.2 Transfer of land use right without change of landholder

6.2.1 An agreement (see template in Annex A) will be signed between the landholder and the WUA, endorsed by the Kebele Chairman (representative of the state), the Kebele Agricultural Head (representative of the Rural Land Administration) and the WWO representative.

6.2.2 The agreement will define the rights and obligations relating to the land use as defined in clause 6.1.2.

6.2.3 The agreement is effective from the date of signature and remains in force until the infrastructure is officially decommissioned. The WWO is responsible for the decision to decommission.

6.2.4 If the landholder incurs a loss of crop production directly related to the installation, he/she is entitled to claim financial compensation as stated in Article 13 and 16.2 of Regulation No.135/2007.

Other water supply infrastructure

7.1 Definitions

7.1.1 Other water supply infrastructure includes all permanent infrastructure which are not classified in the sections above, for example reservoirs, distribution boxes etc.

7.1.2 The right of use for land on which other water supply infrastructure is built (delineated by a fenced area, or by the infrastructure itself) includes allowing unrestricted access for installation and maintenance to the water service providers, and a responsibility of care to avoid any damage to the infrastructure.

7.2 Transfer of land use right without change of landholder

7.2.1 An agreement (see template in Annex A) will be signed between the landholder and the WUA, endorsed by the Kebele Chairman (representative of the state), the Kebele Agricultural Head (representative of the Rural Land Administration) and the WWO representative.

7.2.2 The agreement will define the rights and obligations relating to the land use as defined in clause 7.1.2.

7.2.3 The agreement is effective from the date of signature and remains in force until the infrastructure is officially decommissioned. The WWO is responsible for the decision to decommission.

7.2.4 If the landholder incurs a loss of crop production directly related to the installation, he/she is entitled to claim financial compensation as stated in Article 13 and 16.2 of Regulation No.135/2007.

Annexes

Agreement template

Land certificate example

Geo-referenced map example