By Jodi Smook – GEOSS South Africa (Pty) Ltd
The National Water Act and the legal use of groundwater
Usually, the preparations made for groundwater exploration, drilling, and testing the yield and quality of boreholes culminates in the registration or authorisation of the use of new groundwater or a Water Use Licencence. While Section 21 of the National Water Act No. 36 of 1998 guides the groundwater user in terms of the authorization process, there are various aspects that should be taken into consideration.
The worlds need for groundwater
Tapping into groundwater, water contained in the rock and soil layers beneath the Earth’s surface, can have significant benefits to water users. Roughly 70 % of global groundwater sources are used for agricultural irrigation, with the rest being used for domestic and industrial/commercial use (NGWA). Usage of groundwater also depends on the climate of a region and, importantly, rainfall. Although groundwater infrastructure and studies are costly, there are many economic spin-offs for those opting to use groundwater, especially over the long-term. Important to note, is that registering or obtaining authorisation for a water use relates more to the groundwater use itself, not the borehole(s) in particular.
Borehole registration explained: When do you need to comply
Today, the National Water Act No. 36 of 1998 regulates the use of water across South Africa. As such, the National Government, and the Minister of Water and Sanitation, is the public trustee of South Africa’s water resources. Accordingly, since 1998, water is considered a national resource and, by implication, does not belong to any one person, such as the landowner, as it previously was under the old Water Act of 1956. Once a borehole has been drilled and a feasible water supply has been determined using scientific methodologies, a process of registration or authorisation ought to be followed, depending on the intended usage.
It is important to remember that it is the groundwater not the borehole that you are registering and that will guide whether or not you need to apply for a water use license.
In short, no registration/authorisation is required under Schedule 1 (small-scale use for reasonable domestic and non-commercial gardening and livestock requirements) and the user can continue use without permission;
Registration is required if the intended abstraction volume falls within the quaternary catchment’s General Authorisation limit (but is not a Schedule 1 type use); and, authorisation (water use licence) is required for volumes exceeding the quaternary catchment’s General Authorisation limit.
The General Authorisation (GA) volume for a property can be determined using this calculation:
GA (m3/a) = GA quaternary catchment (m3/ha/a) X property size (ha)
Submitting your Water Use License
The process of submitting a water use licence is lengthy and requires submission of technical documents and reports, as well as specialist studies as determined by the Department of Water and Sanitation (DWS) and depending on which water uses are triggered. Subsequent to the issuance of a water use licence, the licensee is bound by compliance conditions which need to be adhered to, with which GEOSS is always happy to assist.
Changing the way you use your water
If water uses change after the authorisation processes starts, it impacts the entire licensing process. This is based on the rule that there can only be one licence per property. For example, the authorisation one applies for to store water must also include water that is taken from surface water or groundwater sources. Already being in possession of one type of authorisation for one’s property, will mean applying to DWS for an amendment to include further water uses.
GEOSS is aware of an application, based in the Western Cape, that was rejected at the initial phase of assessment. This followed a two-year long process and the decision was communicated once the application had been submitted in full. The reason for the decision was due to changing of the intended water uses during the application process. This resulted in requests by the Catchment Management Agency for additional studies as supporting documentation, over and above the groundwater study that GEOSS conducted. As a result, the applicant was told to submit an entirely new application, which meant following the already-lengthy process again and incurring additional costs.
Be clear on the intentions of your water use
Catchment Management Agencies follow a particular process when assessing potential users and uses. Applicants are strongly encouraged to engage with Section 21 of the National Water Act (and other pieces of legislation regulating environmental practices), to clearly identify the water uses which apply to their intended use. These, as well as their future plans for expansion, should be disclosed and discussed with a consultant before the WULA-process commences. This ensures a smoother application process, where all parties are clear on the proposed activities and also assists in clarifying the use(s) for the Catchment Management Agency. In turn, this results in processing of applications to undergo phases of assessment more definitively and timeously, without muddying the waters.
How long does getting a Water Use Licence take?
Under normal circumstances, the submission of a WULA can take anything between three to six months but can take longer as determined by various factors. During the COVID-19 pandemic, timeframes and processes are severely disrupted. Post-submission, WULAs undergo a detailed process of assessment, at both the catchment and national levels. Following is a basic illustration detailing the assessment stages of WULAs. Subsequent to the final decision on an application, water uses are registered at the Department’s WARMS (Water Authorisation and Registration Management System) unit and, finally, a water use licence is issued to the applicant (now licensee). Talk of reducing the current 300-day licence application processing and finalization period to 90-days has yet to be captured in the National Government Gazette.
Compliance with your WULA
When all is said and done in terms of the authorisation application process, ensuring compliance with licence conditions is crucial. This includes the frequencies at which reports are to be compiled and submitted to DWS, and especially when internal and external audits are required. Oftentimes, these are required as soon as 3 months after issuance of a licence. A vital part of compliance with water use licences is the licensee conducting an internal audit. Second to this, is the requirement for the licensee to appoint an independent external auditor, who will conduct an external audit to verify compliance with licence conditions. Conducting external audits on compliance with water use licences is a service that GEOSS has been offering to clients, seeking to assist clients with ensuring that they meet all the requirements and comply with conditions set out by DWS. This makes managing and ensuring compliance that much easier and less overwhelming for groundwater dependent businesses.
Beyond the legalities that come with complying with the law, the monitoring and other licence conditions stipulated by DWS are important to maintain for the benefit of one’s authorized use. Taking care to ensure groundwater sustainability not only affects the aquifer and provides water security for one’s business and operations, but also increases the property value. This is particularly relevant in the cases of farms and agricultural holdings. Having sustainable boreholes and a reliable groundwater supply makes it much more attractive to potential buyers. After all, there are many regulations and requirements to adhere to simultaneously.
GEOSS can help you with your water use licence application
GEOSS is involved in all aspects of the licence application process, from site feasibility studies prior to licensing, to submitting applications, following up with DWS, as well as licence amendments and monitoring after a licence is issued. We’ve gained a wealth of knowledge over the years and through the rapid changes of late in a sometimes difficult to navigate environment. Because the law is open to interpretation, it serves you to work with people who understand it well and take you through it step by step.
What GEOSS can do to help you
The GEOSS team finds itself carrying the water of clients, so to speak. We do so by coming alongside clients in an impartial and supportive manner as they endeavour to register or obtain authorisation for their groundwater uses.
This typically starts with submitting registration documents and applications for water use licences to the DWS and continues with assisting clients and water users with their compliance. The usual life-span of a water use licence is a twenty-year period and knowing what to do and when to do it makes all the difference in ensuring the use remains legal throughout this period. A lot of time and effort goes into getting a sustainable groundwater supply set up and working – make sure you get your Water Act together and don’t lose your supply to legal red tape.
NGWA, 2021. The National Ground Water Association of the United States of America. Facts About Global Groundwater Usage. www.ngwa.org.