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Watercourses and project development in South Africa – General authorisations for certain water uses under the National Water Act, 1998

Tina Costas

Impeding or diverting the flow of water in and/or altering the bed, banks, course or characteristics of a “watercourse”[1] are section 21(c) and (i) water uses that normally require licensing in terms of the South African National Water Act, 1998 (the NWA).  The new general authorisation for section 21(c) and (i) water uses published in August 2016 (the New GA) replaces the need to obtain a water use licence for these water uses in certain circumstances.

The New GA applies where a section 21(c) and/or (i) water use will be undertaken within the “regulated area of a watercourse”[2].  Where the water use will occur outside of the regulated area of a watercourse, no authorisation is required.

Under the New GA, a risk assessment must be conducted before a section 21(c) and/or (i) water use activity may be undertaken.  If the activity achieves a “low risk” score, the activity can be undertaken without a water use license and in compliance with the requirements of the New GA.  “Medium” and “high” risk activities will require licensing.  Certain categories of persons undertaking specific activities are exempted from the requirement to conduct a risk assessment. 

The New GA sets out a number of detailed conditions and prescribes a range of precautionary and rehabilitation measures to ensure that water resource quality is not detrimentally affected.  Notably, a sufficient budget must be maintained for the implementation of management and rehabilitation measures.  Furthermore, the water use must be registered with the responsible authority.  Existing water users who use water under the previous general authorisation for section 21(c) and (i) water uses may continue to do so in accordance with the conditions of the New GA.  A failure to comply with the conditions of the New GA is an offence.

The New GA does not apply where the relevant section 21(c) and/or (i) water use is undertaken for the rehabilitation of a wetland for conservation purposes, falls within a medium or high risk class, takes place in conjunction with any other water uses that require licensing, results in the storage of water, and/or is associated with the construction, installation or maintenance of any pipeline carrying sewerage or hazardous material to a treatment works.  These activities must be licenced under the NWA.

This is a welcome legislative development for any person developing a project in an area where watercourses may be affected, because it may relieve them from the administrative burden of licensing. 

[1] A river or spring, a natural channel in which water flows regularly or intermittently, a wetland, lake or dam and any collection of water which the Minister may declare to be a watercourse, and a reference to a watercourse includes, where relevant, its bed and banks.

[2] The area within the outer edge of the 1:100 year flood line and/or delineated riparian habitat of a watercourse, whichever distance is the greatest, or in the absence thereof, the area within 100m from the edge of a watercourse, or the area within a 500m radius from the delineated boundary of any wetland or pan.

Inside Africa would like to thank Marais de Vaal, Trainee, for his contribution to this blog post.

 

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