INTRODUCTION
According to the Environment Policy 2013, a wetland means areas of marsh, fen, peatland or water whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed 6 metres.
According to the National Wetlands Conservation and Management Policy 2015, wetlands occupy about 3-4% of the land surface and fluctuates up to 6% during the rainy seasons. Although this is a relatively small geographic extent, wetlands provide a great range of ecological and socio-economic benefits and are indispensable to the very survival, health and welfare of human beings and biodiversity. Despite the critical functions wetlands provide, they are constantly under threat and many continue to be degraded and lost at an alarming pace.
The Environmental Management and Co-ordination (Wetlands, Riverbanks, Lake Shores and Sea Shore Management) Regulations, 2009 provide guidance on the use of wetlands and the activities that can be carried out in these areas. However, these Regulations are outdated and due for review. The 2009 regulations provided riparian setback lines that were difficult to enforce and in conflict with other sectoral provisions and land uses. Restoration of riparian reserves was not adequately anchored within the regulations and there was no provision for the sharing of responsibilities the national and the county governments as introduced by the 2010 Constitution. Inadequate enforcement compromises the ecological integrity of wetland ecosystems and continues to impede the sustainable management of these vital but fragile ecosystems.
In view of these issues and challenges, the National Environment Management Authority (NEMA) initiated a process of reviewing the Regulations in accordance with the legal requirements and the need to address the emerging issues and challenges. This review process was supported by the Government of Kenya and was based on the experience of environmental policy, legislative and regulatory processes, including the provisions of the National Environmental Policy, 2013 and the National Wetlands Conservation and Management Policy, 2015.
It is against this background that the Authority has developed the Environmental Management and Coordination (Conservation and Management of Wetlands) Regulations, 2025.
A. OBJECTIVES OF THE PROPOSED REGULATIONS
- To provide for conservation of wetlands and their resources in Kenya;
- To promote the integration of wise-use of resources in wetlands into local, county, and national planning for, ecological, aesthetic, cultural and socio-economic development;
- To ensure the protection of the diversity of wetland habitats, flora and fauna;
- To promote awareness creation, education, research, indigenous knowledge and partnerships with other relevant institutions in the management of wetland ecosystems;
- To prepare and maintain an up to date inventory and database of wetlands and wetland resources, for prioritisation of relevant interventions, and;
- To protect wetlands within river basins, lake basins and coastal zones from pollution including siltation, agricultural and infrastructural developments, over exploitation, alien and invasive species, and other activities likely to degrade the wetland ecosystem.
B. EFFECTS OF THE PROPOSED REGULATIONS
The effects of the proposed regulations can be categorised as follows;
i. Economic Effects
The regulation presents a number of benefits and opportunities to the public which include
- Enhanced ecosystem goods and services.
- Ecotourism
- Acquisition of carbon credits
There would be no additional financial burden to the Kenyan citizens either by imposition of new fees or otherwise in respect to the regulation.
ii. Social Effects
- By promoting sound environmental practices and therefore sustainable development, the community would be guaranteed to have a clean and healthy environment since there would be more efforts geared towards the protection and conservation of our wetlands.
- By promoting good environmental practises, the regulation will enhance social acceptability that will mitigate against conflicts and social unrests in respect to use of wetlands.
- Promotes meaningful and inclusive public participation, and transparency in management, conservation and protection of wetlands.
iii. Environmental Effects
- Ensures the right to a clean and healthy environment while promoting sustainable development.
- Conservation of the environment and sustainable utilization of the wetlands.
- Puts in place preventive measures against degradation of our wetlands.
- It enhances synergy building and inter-agency coordination among County Governments, Ministries, Departments and Agencies (MDAs) in conservation and protection of wetlands.
C. STATEMENT OF OTHER PRACTICABLE MEANS OF ACHIEVING THE OBJECTIVES OF THE PROPOSED REGULATION
Regulatory Options
- Enforcement by the relevant County Governments, Ministries, Departments and Agencies (MDAs) on sectoral issues under their jurisdiction through National Policy and County legislation.
Non-Regulatory options
- Awareness creation on best environmental practices.
- Negotiated compliance arrangements.
- Compliance assistance programmes.
- Community policing.
- Self-regulation.
D. ASSESSMENT OF THE COSTS AND BENEFITS OF THE REGULATIONS
- Cost of the Regulations
- Need for increased technical personnel
- Enhanced Mobility (vehicles, motorbikes and water vessels)
- Equipments (Water quality monitoring equipment, computers, GPS equipment etc)
- Capacity enhancement
- Environmental Education, public awareness and public participation
- Enforcement and monitoring
E. REASONS WHY OTHER MEASURES ARE NOT APPROPRIATE
- Article 69 of the Constitution of Kenya mandates the Government to establish systems of protecting the environment.
- EMCA Cap 387 provides for the development of regulations for its implementation.
F. ANY OTHER MATTERS SPECIFIED BY THE REGULATIONS
- Preparation and maintenance of an inventory of all wetlands.
- Development and implementation of Integrated Wetlands Management Plan.
- A protocol for undertaking a Rapid Assessment on the ecological status of wetlands.
G. ADEQUACY OF THE REGULATORY IMPACT STATEMENT - INDEPENDENT ADVICE
To undertake the regulatory impact assessment and to guide on the review of the Regulations, the Director General NEMA constituted a technical committee with membership drawn from officers of varied expertise within the Authority.
The Terms of Reference for the technical committee were;
- Conduct and consolidate a gap analysis upon review of the Environmental Management and Co-ordination Act (Conservation and Management of Wetlands) Regulations, 2009;
- Conduct a desk review of all sectoral laws and legislation and best practices;
- Ensure that all staff members are consulted and their input incorporated in the review process;
- Ensure that the County Governments and Lead Agencies are consulted and their input considered in the review process;
- Ensure that public participation is effected in the process of reviewing the Regulations;
- Co-ordinate the finalization and gazettement of the Regulations to reflect the identified gaps and stakeholders’ views.
- Prepare the Regulatory Impact Statement for the Regulation.
- Coordinate the finalization of the instrument and the Gazette notice.
- Prepare the Draft Explanatory Memorandum.
- Perform any other task related to the amendment of the Regulations until finalization.
In order to effectively execute the above mentioned TORs, the technical committee was tasked with undertaking the following activities;
- Comprehensive literature review and identification of gaps in the Wetlands Regulations 2009.
- Technical review committee meetings.
- Rigorous stakeholders’ consultations done in line with the Statutory Instrument Act, 2013.
- Drafting sessions.
This was undertaken by the Technical Committee on behalf of Director General, NEMA.
H. CONCLUSION
The review of the Conservation and Management of Wetlands Regulations 2009 could not have come at a better time considering the global shift towards climate change mitigation through Carbon sequestration. Rapid population growth, impacts of climate change, technological advancements and the socio-economic development activities in the country have affected the effectiveness of the existing regulations on wetlands management. To this end, the Authority has taken all these factors into consideration and it is thus expected that the reviewed Regulations will not only improve the conservation and management of Wetlands in the Country but will also be key in assisting the Country achieve Sustainable Development Goals. The reviewed regulations are therefore aligned to the Constitution of Kenya, EMCA and International best practices in environmental management.
The Director-General
National Environment Management Authority
Popo Road, South C
P.O.BOX 67839-00200,
NAIROBI
E-Mail: info@nema.go.ke