South Africa: Water and Sanitation revise regulations on procedural requirement for water use licence applications

South Africa: Water and Sanitation revise regulations on procedural requirement for water use licence applications

South Africa: Water and Sanitation revise regulations on procedural requirement for water use licence applications

South Africa: Water and Sanitation revise regulations on procedural requirement for water use licence applications

The Department of Water and Sanitation published the Revision of the Regulations Regarding the Procedural Requirements for water use licence applications on 19 May 2023. The Regulations are promulgated in terms of Section 26 (1) (k) of the National Water Act, Act 36 of 1998. The public is invited to submit written comments on the proposed regulations within a period of 60 days.

The Regulations were last published by the Department on 24 March 2017. During the State of the Nation address in 2020 and 2021, President Cyril Ramaphosa announced the reduction of the 300 days turnaround times of processing licence applications to 90 days.  The announcement prompted the need to review the 2017 regulations to reflect the 90 days process. The amendments also include other aspects that were previously left out in the regulation.

The purpose of the amendments is to effect reforms in relation to equitable allocation of water use, as well as to amend the procedural requirements related to applications of new water use licences including reviewing of timeframes and fees linked to licence application processes. The review also seeks to address regulatory uncertainties in key aspects of water use licensing such as public participation and the provision of financial security for post licence rehabilitation. 

The National Water Act (NWA), no 36 of 1998 recognises that water is a natural resource that belongs to all people and should be allocated to all users equitably. Section 3 of the Act provides for the Minister of Water and Sanitation, as the public trustee of the country’s water resources, to ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its constitutional mandate. The Minister is responsible for ensuring that water is allocated equitably and used beneficially in the public interest, while promoting environmental values.

South Africa is amongst the 30 driest countries in the world with limited water resources, and the majority of the catchments are in deficit (water requirements exceed the yields). It is estimated that 98% of SA’s water resources were already allocated by 2004 (National Water Resource Strategy), of which the majority of allocations are through the recognition of old water use entitlements (what is termed Existing Lawful Water Use (ELWU)).

Comparative statistics drawn from issued water use licences to Historically Advantaged Individuals (HAI) and Historically Disadvantaged Individuals (HDIs) since 1998 indicates that a total of 412 million cubic metres (m3) of water has been allocated amongst the two groups. Of the 412 million m3, 313 million m3 (75.93 %) has been allocated to Historically Advantaged Individuals (HAI), whilst a modest 99 million m3 (24.07 %) has been allocated to Historically Disadvantaged Individuals (HDIs). The same analysis for water allocated by means of Existing Lawful Water Use (ELU) shows that a total of 5.83 bn m3 of water is allocated, where 5.74 bn m3 (98.54 %) is allocated to HAIs and only 90 million (1.46 %) to HDIs. These statistics indicate that water allocations remain highly skewed towards the HAI group. Hence the Department should make efforts to improve this situation.  

The revised regulations have introduced proposed thresholds of abstraction volumes of water against the level of black ownership in applications submitted for new water use allocations. This is done to ensure that there is transformation of water use allocations, to address the disparities in access to water use from Apartheid. Interested and affected stakeholders are encouraged to make constructive proposals on this critical mandate of the Department.

The draft regulations also include amendments to water use licencing fees. The proposed fees of different licences take into account the complexities associated with the administrative processing of these licences, resources required, and the accelerated approach in line with the reduced period.

The revised regulations also introduce minimum information requirements for unconventional gas licence applications. As the country is starting to explore other sources of energy / fuel and the Department anticipates receiving applications from this sector, the minimum information requirements will enable applicants to be well-versed prior to submitting applications to the Department.

Distributed by APO Group on behalf of Department of Water and Sanitation, Republic of South Africa.