What is the National Water Act? 

The intensifying drought conditions experienced over recent years, coupled with future climate change impacts, has put pressure on various industries to focus more intensely on groundwater abstraction. To ensure the sustainable utilisation and correct management of South Africa’s groundwater resources, this needs to include regularisation of this abstraction. It can be difficult to know when and what to apply for with regard to the authorisation of groundwater abstraction, and this article aims to shed some light on the process. 

The National Water Act (NWA) (No. 36 of 1998) stipulates that any water use requires authorisation from the Department of Water and Sanitation (DWS) or its appointed regulator (for example, a catchment management agency [CMA] such as the Breede-Gouritz CMA). The different types of water use that require authorisation are defined in Section 21 of the NWA, as highlighted in the box below. It is important to note that water use is linked to a defined property (e.g., a farm portion or an erf), and not an individual or company – this means that any authorised water use is required to be transferred when the linked property is sold or transferred, with the new water user’s details to be provided to the DWS for record updating. 

Authorising a new water use 

There are three ways to authorise new water use – these are (with increasing complexity) 1) Schedule 1 use (as defined under Schedule 1 of the NWA); 2) registration of water use under the General Authorisation (GA); and 3) the application for a water use licence (WUL). For the authorisation of existing water use, known as Existing Lawful Use (ELU), there is an additional validation and verification (V&V) process that needs to be followed. This V&V process is undertaken to determine if existing water use, occurring in the two year period prior to the NWA coming into effect in October 1998, can be considered as ELU. ELU will not be discussed in this article, but is outlined in detail by the Breede-Gouritz CMA and DWS. Any existing water use that is not considered ELU will need to go through one of the same three processes to authorise new water use, as listed above and described below. 

Schedule 1 use (whether surface or groundwater) is defined under the NWA as the taking of water for “reasonable” domestic use, small-scale gardening not for commercial purposes (e.g., domestic garden irrigation or subsistence farming), and livestock watering (excluding feedlots). Schedule 1 use is excluded from WUL and registration requirements, however, if groundwater abstraction of greater than 10 cubic metres per day (m³/day) occurs (averaged over the year), then the Schedule 1 water use must be registered with the DWS (or the relevant regulator). It is recommended, however, that even if Schedule 1 groundwater use is below 10 m³/day, it is still registered with the DWS to ensure sustainable management of relevant aquifers (and to take account of potential cumulative abstraction impacts, such as extensive Schedule 1 groundwater use in urban areas for domestic garden irrigation). 

To lower the administrative burden on the DWS for water use that is not classified as Schedule 1, the Minister can declare a GA for any water use (under Section 39 of the NWA), subject to limits and conditions. Using Section 21(a) groundwater abstraction as an example, the DWS published Notice 538 of 2016 “Revision of General Authorisation for the Taking and Storing of Water” in Government Gazette No. 40243 on the 2^nd September 2016. The Section 21(a) GA allows a certain volume of groundwater to be abstracted by a property without requiring a WUL: 

• The Section 21(a) GA groundwater abstraction volume is dependent on the size of the property where abstraction takes place (in hectares – ha) and the quaternary catchment the property occurs within, up to a maximum GA groundwater abstraction volume of 40 000 cubic metres per annum (m³/a) for any single property. 
• The following basic equation can be used: GA volume for a property (in m³/a) = GA of the quaternary catchment (in m³/ha/a) x property size (in ha). 
• For example, a property of 120 ha size in the greater Cape Town area (quaternary catchments G22A to G22K, which have a GA of 400 m³/ha/a) would result in a Section 21(a) GA groundwater abstraction volume for the property of 48 000 m³/a (i.e., 400 m³/ha/a x 120 ha). However, this would be reduced down to 40 000 m³/a, because of the maximum GA groundwater abstraction volume of 40 000 m³/a for any single property. Any groundwater abstraction above 40 000 m³/a would therefore require a WUL, whereas any groundwater abstraction below 40 000 m³/a would require a less intensive groundwater use registration under the GA. 

• Using a smaller sized property of say 5 ha in the Cape Town area would result in a Section 21(a) groundwater abstraction volume of 2 000 m³/a for the property (i.e., 400 m³/ha/a x 5 ha), therefore in this case any groundwater abstraction above 2 000 m³/a would require a WUL. This example is generally why industrial and commercial groundwater users in the greater Cape Town area almost always require a Section 21(a) WUL, due to the generally small property size of <5 ha resulting in any planned groundwater use in excess of 2 000 m³/a requiring a WUL. 

In addition, the following is excluded from the Section 21(a) GA for groundwater abstraction (meaning any non-Schedule 1 groundwater use would require a WUL application): 

• Alluvial (or primary/sand) aquifers directly connected to a stream/river. 
• Groundwater that is abstracted within 500 metres of the boundary of a wetland or estuary, within 500 metres of a state dam wall, within 500 metres from the high-water mark of the ocean, or within 100 metres of the delineated riparian edge of a water course or a state dam. 
• Certain quaternary catchments have a zero GA (e.g., G30B to G30G catchments covering the Sandveld region within the Berg-Olifants Water Management Area), and therefore compulsory Section 21(a) groundwater abstraction WUL applications are required for any non-Schedule 1 use, no matter what the abstraction volume. 

In summary, any Section 21(a) groundwater use that is not considered Schedule 1 and the abstraction volume exceeds the GA for the property portion, or falls within the parameters listed in the three points above, requires a WUL with the DWS. 

What are the specialist reports required for a Section 21(a) WULA? 

A Section 21(a) groundwater abstraction WUL application generally requires a detailed study and is more cost intensive than a Section 21(a) groundwater registration under the GA, and usually requires a range of specialist reports such as: 

• Hydrogeological Specialist Study – should include a desktop geological/hydrogeological assessment, desktop and field hydrocensus of surrounding existing groundwater users, description of borehole(s) drilling and test-pumping data and results, recommended yield analysis and operational pumping regime of the borehole(s), groundwater quality analysis, and groundwater monitoring and management recommendations. For very large abstraction volumes (in the order of millions of cubic metres per annum) with multiple boreholes (i.e., a wellfield), numerical groundwater modelling showing the sustainability of the proposed abstraction volume and/or potential abstraction impacts might also be required. 
• Section 27 Motivation Report – should address all considerations of Section 27 of the NWA e.g., the need to redress the results of past racial and gender discrimination (note that B-BBEE is becoming an important component of WUL applications), efficient and beneficial use of water in the public interest, the strategic importance of the water use to be authorised etc. 

• Water Balance Report – should describe how the abstracted groundwater is planned to be utilised (e.g., if in an industrial process or for agricultural irrigation), the groundwater volume required for each industrial process or crop to be irrigated, the volume and fate of any groundwater lost, or effluent produced during any treatment process etc. 

It should be noted that this is not a complete list of reports required for a Section 21(a) groundwater abstraction WUL application, and the DWS/regulator might request other specialist reports where required (e.g., a Freshwater Specialist Study if groundwater abstraction might impact on nearby groundwater-dependent ecosystems associated with wetlands or seeps). In addition to the various specialist reports required as part of a WUL application, a series of water use forms are also required to be filled out on the online/electronic Water Use Licence Application and Authorisation System (e-WULAAS). The various specialist reports are also submitted via the e-WULAAS. Public participation may also be deemed a requirement of the WUL application by the DWS, and this can include notification signs on property entrances/fences, newspaper adverts, or generation of an interested and affected parties (I&AP) list for comment on the WUL application (in the case of larger abstraction volume applications). 

Generally, a Section 21(a) groundwater registration under the GA does not require the types of specialist studies/reports and public participation process outlined above to be undertaken, with only the same water use forms as per WUL applications being required to be filled out on the e-WULAAS. The DWS/regulator might request that specialist studies are undertaken however (e.g., borehole test-pumping and a recommended yield analysis), if it is felt further information is required as part of the registration (e.g., for groundwater registrations at the upper limit of the Section 21(a) GA groundwater abstraction volume of 40 000 m³/a, or registrations in areas where there is already extensive groundwater use). 

Any individual or company applying for a WUL needs to take note that the entire application process, from an initial groundwater assessment, through developing the groundwater resource via drilling and testing, completion of other required specialist studies, public participation process, to the filling of water use forms and submission on the e-WULAAS can take at least 3-6 months (depending on the abstraction volume and complexity of the WUL application). The DWS allows for a maximum of 200 days (~6.5 months) for all specialist studies to be completed once a WUL application is initiated on the e-WULAAS prior to final submission of the application, after which the DWS is allowed a maximum of 90 days (~3 months) to decide on a WUL application (although depending on the regional DWS office the regulator is known to take longer than the allocated 90 days to make a decision). 

How long does a WULA take? 

The full WUL application procedure is therefore not a rapid process, and at best can take up to 6 months, and at worst potentially up to a year or more. Although at the applicant’s risk since there is no guarantee that a WUL application will be approved, it is recommended that all groundwater assessment and development, and any other likely specialist studies, are completed before the WUL application process is initiated on the e-WULAAS, in order to reduce the potential regulatory time as much as possible. It should also be noted that depending on where the property is situated, there might also be local municipal by-laws that need to be met as part of any groundwater development (which the DWS might also request be approved by the relevant municipality as part of the WUL application). For example, in the City of Cape Town (CCT) a commercial or industrial groundwater user would also be responsible for gaining approvals from the CCT for alternative water system plumbing and storage (as per the 2010 Water By-law and 2018 amendment), as well as effluent discharge (as per the 2013 Wastewater and Industrial Effluent By-law and 2015 amendment). 

Once a WUL application or groundwater registration is awarded, there are usually a range of general and specific conditions required to be undertaken by the water user as part of the licence/registration. This generally includes the monitoring of groundwater levels, abstraction volumes and groundwater quality, and the undertaking of internal/external WUL audits.  

Additionally, upon awarding of a WUL or groundwater registration, the water user will be charged a CMA annual charge of a few cents per cubic metre (based on the licenced/registered volume, regardless of whether the user abstracts the entire volume or not). For example, a farmer in the Berg-Olifants CMA will be charged 2.34 cents per cubic metre (2021/2022 CMA tariffs) for irrigation, meaning a registered/licenced volume of 100 000 m³/a would result in the farmer paying an annual charge of R2 340 to the DWS or CMA. A domestic or industrial user in the Breede-Gouritz CMA will be charged 5.48 cents per cubic metre (2021/2022 CMA tariffs) for domestic/industrial use, meaning a registered/licenced volume of 10 000 m³/a would result in the user paying an annual charge of R548 to the DWS or CMA. 

How can Umvoto help you with your WULA? 

Umvoto is highly experienced in undertaking successful Section 21(a) WUL applications and groundwater registrations over a wide range of abstraction volumes (from 5 000 m³/a registrations for small estates to WUL applications of millions of cubic metres for farms and municipalities) for a wide range of industries (municipal, commercial, industrial, pharmaceutical, agricultural, etc.). Umvoto can apply for a WUL or register groundwater use on behalf of the client via the DWS’s e-WULAAS, as well as undertake any required specialist studies as part of the application/registration. Umvoto can also undertake all groundwater monitoring and WUL auditing requirements as part of any conditions of awarded WULs. 

Using Section 21(a) groundwater abstraction as an example, the flow chart below can be followed to determine whether a groundwater registration under the GA or WUL application is required. Or download this free resource below: