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To: Department of Water Affairs

Contact persons:

Marie Brisley, brisleym@dwa.gov.za

Fred van Zyl, vanzylf@dwa.gov.za

CC: Parliamentary portfolio committee on water and environmental affairs

Chair: Adv. Johnny de Lange, c/o Ms Tyhileka Madubela, tmadubela@parliament.gov.za

From: South African Water Caucus (SAWC)

Contact persons:

Samson Mokoena, samson.mokoena@gmail.com , tel: 016 -933 9079

Jessica Wilson, jessica@emg.org.za, tel: 021-4482881

Re: SAWC submission on the National Water Resources Strategy 2 (NWRS-2)

Submission date: 28 January 2013

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Contents

INTRODUCTION ..................................................................................................................... 3

The SA Water Caucus ............................................................................................................ 3

GENERAL COMMENTS ON THE NWRS-2 .......................................................................... 3

A view on the NWRS-2 ......................................................................................................... 3

How “Pro-poor” is the NWRS-2? .......................................................................................... 4

The NWRS-2 wrongly assumes that there is currently a “balance” between economy and

ecology. .................................................................................................................................. 5

SPECIFIC COMMENTS ON THE NWRS-2 ........................................................................... 5

1. Water conservation and demand management ............................................................... 5

Specific recommendations on WC/WDM: ........................................................................ 6

2. Strengthening the role of local catchment forums in protecting and allocating water

resources ................................................................................................................................ 6

Specific recommendations on catchment forums: ............................................................. 8

3. Participation .................................................................................................................... 9

4. Water quality ................................................................................................................... 9

5. Access to productive water for small farmers; food security; communities without

water who live next to dams and pipelines .......................................................................... 11

5.1 Communities affected by dams .................................................................................. 11

5.2 More equitable water allocations (water for productive use). ................................... 13

5.3 Questions the NWRS-2 should raise.......................................................................... 14

5.4 Rainwater Harvesting (RWH).................................................................................... 15

5.5 Summary of key recommendations ........................................................................... 15

6. Access to information, licensing, monitoring and enforcement ................................... 16

7. Impacts of Industrial Timber Plantations and timber processing on water resources .. 16

Recommendations on industrial timber plantations ......................................................... 20

8. Climate change.............................................................................................................. 20

Specific recommendations on climate change: ................................................................ 21

Specific recommendations on desalination and water reuse: .......................................... 22

9. The water business and institutional restructuring........................................................ 22

10. Equal voice for civil society and the role of big water users .................................... 23

11. SAWC proposes to continue with Provincial engagements in support of the NWRS-

2 and its implementation ...................................................................................................... 23

Appendix A: participation.................................................................................................... 24

Appendix B: CER submission to DWA on NWRS-2 (elaboration on section 6) ................ 26

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INTRODUCTION

The SA Water Caucus

The SA Water Caucus (SAWC) is a network of more than 20 community-based organisations, non-

government organisations and trade-unions active in promoting the wise, equitable and just use,

protection and provision of water. The Water Caucus was formed in the lead up to the 2002 World

Summit on Sustainable Development.

Since then the Water Caucus has met regularly, and is recognised by the Department of Water

Affairs as a critical voice to engage with in policy and implementation processes. Issues and

processes the SAWC has worked with include: large dams, national water resources strategy,

regulation, water pricing, water quality, pre-paid metres, tricklers and cut-offs, NEPAD, and The

Water Dialogues. Water Caucus members in various parts of the country have set up provincial

caucus groups to include community groups and to engage with local-level water issues. Provincial

caucuses exist in Mpumalanga, Western Cape, KwaZulu-Natal, Free State, Limpopo, Gauteng, and

Eastern Cape.

The SA Water Caucus is intimately concerned with water resources issues, and welcomes the

revision of the NWRS, and the opportunities to engage in public conversation around it. The SA

Water Caucus met on 16 and 17 August 2012 to consider the NWRS revision, was given background

and entered discussions with DWA officials. We consulted in provincial caucuses, and shared our

thoughts in the Water Sector Leadership Group meeting on 16 and 17 October 2012, made

parliamentary presentations on 24 October 2012, participated in provincial discussions and met with

DWA on 3 December 2012.

We welcome the opportunity to give comment on the NWRS-2.

GENERAL COMMENTS ON THE NWRS-2

A view on the NWRS-2

The emphasis in the NWRS-2 on a democratic developmental state, and the progressive thinking

behind it, should be welcomed. The water sector in particular needs citizens’ participation. Legally

and politically, South Africa’s water resources belong to its people, and are only held in

custodianship by the state. Active citizens shape a democratic developmental state, as much as such

a state shapes its citizens. These sentiments should find practical expression also in the process of

consultation towards the finalisation of the NWRS-2.

The NWRS-2 is an important and potentially powerful document. It sets out the strategic direction

for water resources management in the country over the next 20 years, with a particular focus on

priorities and objectives for the period 2013 – 2017. It provides the framework for the protection,

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use, development, conservation, management and control of water resources for South Africa, as

well as the framework within which water must be managed at catchment level, in defined water

management areas. It is binding on all authorities and institutions exercising powers or performing

duties under the National Water Act, 1998.

Its predecessor, the NWRS-1 (2004) carried the same power. However, according to DWA officials,

there was no real ownership of the previous NWRS. Fewer than 4% of DWA officials knew about it

and less than 2% had it on their tables. In 2012, officials are keen that the same should not happen

with this version of the strategy.

One of the core drivers of this strategy, indeed, is that water issues should be communicated to

other sectors, and that water issues should be taken into account in the early changes of the

planning of other sectors. The reason for this is that our water resources are now fully subscribed,

and that any misuse or abuse – such as water pollution – adds to the constraint that water places on

the national economy.

However, the process of arriving at this NWRS-2 already sets off warning lights. The process to date

has been difficult and confusing. It has been delayed by 4 years, since it should have been completed

in 2009. A number of teams worked on drafts, and undertook consultations with privileged major

water users, for example members of the Water Resources Group. They should not be making policy

on behalf of people.

The difficult genesis of NWRS-2 communicates, to observers, a lack of focus and co-operation within

the department, which raises the question whether its strategies will be implemented, and

questions about the department’s capacity to deal with management of water resources.

How “Pro-poor” is the NWRS-2?

The NWRS-2 is written in development friendly language, but this is approach is not carried through

everywhere in the text. For example, saying that people will benefit either directly or indirectly (e.g.

p. 56) leaves the door open to diminish people's right to water in favour of other interests.

The technical strategies in the NWRS-2 should accord with the pro-poor and participatory

sentiments expressed in the NWRS-2.

In our view it is necessary to insert two principles into this revision of the NWRS, namely:

1. The ecological and human reserves remain the first priority in water resource allocation

2. The polluter pays principle remains in force, and the NWRS-2 specifies exactly what the

country’s expectations are from mining, agriculture, industry, and different spheres of

government in this regard. This should include the long overdue implementation of the

wastewater discharge charge.

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The NWRS-2 wrongly assumes that there is currently a “balance” between

economy and ecology.

Currently, the economy takes precedence over ecology. This needs to change so that the economy

operates within the limits of the earth’s natural laws. Any economic “benefits” derived from

ecological destruction are short-term, and will be paid for by near-by communities or future

generations. One example is the acid mine drainage problems on the goldbelt, that will soon come

to public notice as a reality on the Mpumalanga and other coalfields as well. We expect that fracking

in the Karoo will have a similar impact – the public will have to pick up the bill of the damage done.

It is telling that core strategy 3: Ensuring water for equitable growth and development and core

strategy 4: Contributing to a just and equitable South Africa, are treated as separate. They should be

closely integrated.

We welcome the statement in the NWRS-2 that “Economic growth has to be planned in context of

sector specific water footprints, which include the water use footprints, the various water and

environmental impact footprints, as well as the relevant socio-economic impacts and contributions.”

A logical way to put this into practice is for the NWRS-2 to include a clear commitment to specify “no

go areas” for development, e.g. wetlands and places significant to biodiversity and cultural history,

such as Mapungubwe, or indeed the Freshwater Ecosystems Priority Areas (FEPAs).

SPECIFIC COMMENTS ON THE NWRS-2

1. Water conservation and demand management

The SAWC agrees that water demand management and water conservation is absolutely necessary

in the context of real water scarcity and welcomes its inclusion in core strategy 6 (p71-73) and

detailed core strategy 2 (p123-128). However, currently at a municipal scale, water demand

management often conflates saving water with saving money (for the municipality) because non-

payment for water threatens municipal income. Therefore domestic water users are treated as

customers: those who can pay are allowed to use as much water as they want, and those who

cannot pay are restricted, often to the free basic minimum. This means that even where people have

taps and toilets, their access to water is compromised by punitive water demand management. The

SAWC does not support this inequitable form of WDM.

Here are three examples of unfair WDM/WC:

• Water management devices (amafudo) in Cape Town: a policy of conditional leak fixing

means that the City will only fix household leaks and consider writing off people’s debt if

they accept amafudo, which are very problematic. They allow 350 litres per day, but due to

recurrent leaks, technical failures and many people sharing a tap, people are often left

without water.

• In MacGregor (Langebaan DM), and in many other towns, water bills are linked to electricity

bills so that if a household is in arrears for water, they cannot buy more electricity until they

have managed to clear their water account.

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• Msunduzi Municipality’s (Pietermaritzburg) shocking tariffs, where the typical bill for a low

income, low consuming household is R859. The majority of this bill is made up of fixed

charges, so that even if poor households cut back their water and electricity consumption to

the absolute minimum they are still left with extremely unaffordable bills, and are hounded

by aggressive debt collectors if they default on a payment

Specific recommendations on WC/WDM: · P72, 4

th paragraph, add sentence: “In view of water scarcity, it is essential that economic

sectors using large quantities of water are evaluated for the contribution to the public good

and if necessary restricted or banned, for example the production and use of bottled water.”

· P72 add bullet: “for water savings, target those using excessive water and water for luxury

purposes (rather than those who are already using modest amounts of water which they are

struggling to pay for)”

· P123 :the situation analysis in the detailed core strategy should recognise the following:

o Technical fixes to the complex social reality of leaks, high water consumption and

non-payment for services is inappropriate and misguided

o Limiting people’s access to water through prepaid meters, flow restricting devices,

tricklers, high bills and other methods amounts to a denial of the right to water, and

as such deepens poverty, inequality and social injustice.

o A radical shift to put people’s health, dignity, livelihoods and creativity at the centre

is needed – rather than putting cost recovery at the centre.

o A holistic approach to fixing household leaks is needed (for example once-off leaks

fixing, given the poor quality of housing and infrastructure is ineffective at best)

o Community-based monitoring of leaks, leak-fixing training for local artisanal

plumbers, meaningful education on water services, understanding your water bill,

identifying leaks etc. is necessary

· P126, we support the bullet “comprehensive leak detection and repair programmes for

households at a nominal charge or for free for low income households” and recommend a

related bullet:

o Develop a programme of leak fixing skills training for local empowerment and job

creation

· P128, Targeting the public: add bullet: “first target those using excessive water and water for

luxury purposes (rather than those who are already using modest amounts of water which

they are struggling to pay for)”

2. Strengthening the role of local catchment forums in protecting and

allocating water resources

Background

Local catchment forums are structures that will be empowered to make water decisions at

catchment levels. It is important that civil society keeps involved and actively participating, but

looking at the size of the nine new catchments, participation in particular by civil society will be a

real challenge. Thus there is an urgent need to consider sub-catchments so as to enable participation

by local people and stakeholders in the water decision making processes at this level. It is also

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important that capacities of the local communities are enhanced so that their participation is

meaningful. Logistical support should be adequately provided as well as refreshments in meetings,

as local people travel long distances sometimes without having eaten anything. Information must be

presented in the language understood by the local people and participation should not equal rent a

crowd or window dressing.

Catchment Management Forums have the potential to bring water resources management close to

the people, to use local knowledge and local monitoring as a strength to protect water resources,

and to build local understanding and co-operation around water allocation and care of the

catchment. Local catchment management forums operate within the terms of the NWA (1998) and

the NWRS (2004), currently under revision. The first version of the NWRS acknowledged the forums

as “useful”. It stated that “in the Department’s experience such voluntary bodies have proved to be

of great value in initiatives leading to the creating of catchment management agencies, and in

addressing local water management issues. They have provided a focus for public consultation and

for integrating the water-related activities of other non-governmental and community-based

organisations” (2004: 91).

However, there is a need to develop this further, including support for the better function of the

forums, capacity building etc. This is particularly important in the light of the new demarcation of

only 9 CMAs, which removes catchment management further from local communities.

In the current draft version of the NWRS-2, forums are considered in Core strategy 11, “Engaging the

private and water use sectors”. There are two mentions of catchment forums. One falls under “Key

strategic actions”:

57. DWA and CMAs will ensure transparent and inclusive stakeholder participation in water

governance through catchment forums and other appropriate consultative forums and

processes; (p. 91)

Another is part of “Revisiting the boundaries of Water Management Areas”:

“A critical implication of these new boundaries is the issue of facilitating sector involvement

and community participation (participatory management). Increasing the size of the water

management areas has an impact on the ability to engage effectively with stakeholders on

the ground. Key objectives of the CMAs are the promotion of equity through more effective

water resource management, greater responsiveness to the needs of poor and marginalized

communities, and closer links with stakeholder groups in the water management area. The

proposed CMA model will facilitate the involvement and empowerment of stakeholders and

communities through structures such as catchment committees, catchment forums and

water user associations (p. 95)”.

The SA Water Caucus agrees with these sentiments, but do not believe that they go far enough

and will therefore not reach the objectives of involving people in water resources governance.

Under the enabling strategy of “Capacity building” it is remarked that:

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“The Masibambane Civil Society Support Programme has funded courses which include the

following areas: advocacy, water resource protection, WC/WDM, water services regulation

and sustainable livelihoods. Replication of these activities remains a challenge due to

inadequate knowledge management, knowledge transfer and related capacity building

mechanisms. Improvements in these areas can contribute significantly to water literacy and

knowledge equity, as well as empower stakeholder groupings to participate in effective

governance, protection and socio-economic aspects of the NWRS.” (p. 173)

This remark presents no vision into the future, and should be replaced by a commitment to provide

capacity building to communities, civil society and other stakeholders, or to support the self-

provision of such capacity building.

In discussing “establishing partnerships with key role-players and ensuring effective involvement of

relevant stakeholders in the implementation of the Water Allocation Reform” (p. 188) there is no

mention of partnerships with civil society. Instead, it should point out the important role that

organized civil society can play in supporting effective involvement of community groups in

accessing and using water.

Further, the regulation strategy as set out in the NWRS-2 is completely centred on DWA and its

actions. While DWA is acknowledged as sector leader and water regulator, the key issue that there

is:

“Inadequate awareness of water users and the general public of the importance of

compliance with water regulations and their roles and responsibilities” (p. 191)

… will not be addressed without building the capacity and institutions for citizens to effectively

participate in and therefore support regulation.

In the light of this, the following recommendations are made, focusing on the institution of local

catchment forums.

Specific recommendations on catchment forums: It is recommended that the role, status and DWA support to Local Catchment Forums, should be

spelled out in a dedicated chapter of the NWRS-2. The chapter should contain the following.

1. Citizens’ energy drives both participation in forums and public or media discussion of water

quality issues and needs to encouraged. Fundamentally citizens and DWA as the regulator

share the same goal: sustainable use and therefore protection of water resources.

2. Forums need to be legitimate and representative. DWA should support forums in recruiting

participants, and in strategies to retain participants, including communication with

communities in the catchment. This could happen via schools, NGOs and CSOs, local radio

stations, adopt-a-river and adopt-a-catchment programmes, water week celebrations etc.

3. Water Use License applications should be presented to the local forum for discussion. The

forum should be included in monitoring whether license holders are complying with the

conditions in the water use licenses.

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4. Attendance of and reporting to local catchment forums should be included as a condition in

the award of WULs.

5. Citizens’ monitoring is feasible, provides cheaper than normal monitoring, and extends the

regulator’s ability to cover a larger area. DWA needs to develop and support citizens’

monitoring, including making it easy for citizens to report spills and incidents.

6. Issues brought to the forums need to be taken up by DWA regional offices, and have

consequences, which are reported back to the forums.

7. Forums need to be effective in terms of their inner workings such as communication,

minutes and working groups. DWA needs to provide appropriate administrative support to

forums.

8. Forums need to be spaces in which participants feel welcome, are able to participate, and be

convinced that the time they invest is worth it.

9. Information in forums needs to be presented and discussed in an accessible manner and

language, using maps, graphs and with explanations of technical terms.

10. DWA should support forums with budgets to make transport available to participants who

cannot afford it.

11. Forums should be recognised in the National Water Act and the National Water Resources

Strategy as an intrinsic and acknowledged part of the catchment management system, with

authority to protect water resources. This can be done by inserting a section specifically on

CMFs in section “Governance Strategy 3: Water Sector /institutional Arrangements” (p. 193).

This legal form (which should be worked out by institutional experts) should both enable the

forum to be heard and taken seriously (and receive state support), AND preserve the

autonomy of the forum as an invented space or citizens’ space. Local catchment forums

should be able to hold CMAs accountable for the services they provide and the complaints

they resolve.

12. Forums should be supported to learn from each other. An annual or biannual meeting or

conference bringing together participants in local forums within a catchment, should be

supported by DWA.

3. Participation

We welcome the emphasis on participation and active citizenship in the NWRS-2. However our

experience of consultation around this document, as well as our engagement over the past few

years with the DWA and Ministry has been poor. Practical changes need to take place to turn the

nice language into meaningful participation. Appendix 1 outlines our recommendations for this at an

operational level. We understand that DWA has existing guidelines for participation and recommend

that these are reviewed and revised with us in order to reach a more beneficial partnership.

4. Water quality

South Africa’s water resources belong to all people who live here, with the Department as the

custodian of water resources. In its role as custodian DWA has the important role of making sure

that water is used equitably and sustainably, of protecting water resources, and of protecting the

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quality of water that impacts on people and ecosystems. Yet the Department, by its own admission,

is failing in that role.

The NWRS-2 states clearly that water quality is an issue of major concern in terms of pollution, river

health, wetlands, estuaries and ecosystems:

“The situation regarding acid mine drainage and municipal wastewater pollution has

reached unacceptable levels. In terms of river health, almost 60% of river ecosystem types

are threatened, with 25% of these critically endangered. Wetland ecosystem types are of

even more concern with a 65% identified as threatened, including a staggering 48% critically

endangered. This situation demands drastic intervention” (p. 10).

There are additional concerns about high levels of nutrients, such as phosphate, where non-

compliance at national scale stands at 88% (p. 11). Acid Mine Drainage affects not only the gold belt,

but also the coal fields in Mpumalanga and KZN. A bigger threat than acidity is the salinity resulting

from Acid Mine Drainage.

The NWRS-2 must be commended for its honesty in describing the situation. But the question must

be asked why these concerns have not yet been addressed. A first explanation lies in factors that are

under control of the Department. The NWRS-2 reports that there are serious problems in the

monitoring system, which has deteriorated since 2004:

“The 2004 NWRS already recognised that resources (staff, skills, funding and equipment) for

monitoring were inadequate, and that there is a particular need for training of water

resources managers. To date, however, there has been a pronounced decline in technical

skills and the number of staff supporting the national and regional monitoring programmes.

Funding for these programmes has also shown a dramatic decline, although some funds

were made available to alleviate the most critical problems on an ad hoc basis.” (p. 178)

It also reports that there are problems in regulation, as well as in the development of inclusive

governance (see pp. 190 and 191). The abuse of our water resources will continue when the

department is not able to monitor or regulate the situation.

As civil society, we support the intentions expressed in the NWRS-2 to deal with these problems, as

detailed in core strategy 5, Protecting Water Ecosystems (p. 68). We support the rigorous

implementation of the Freshwater ecosystems priority areas (FEPAs) and the protection of riparian

and wetland buffer zones and critical groundwater recharge areas, although we argue that such

protection needs to beyond agricultural areas and apply to mining and industrial activities as well,

which pose extensive threats to groundwater resources.

We support the intentions expressed in Enabling Strategy 3, on drastically improving monitoring,

and similarly in regulation. We offer our help as citizens and civil society to improve monitoring and

regulation through active participation (pp. 190 and 192).

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However, and very fundamentally, DWA needs to take on its role as custodian of our water

resources with more resolve.

It is shocking to see that the plans for fracking do not get a single mention in the document. At the

very least, the department should be participating in the debate from the perspective of custodian

of our water resources, studying the risks of fracking (there is extensive international evidence of the

dangers of fracking and widespread opposition to it), and developing a regulatory framework which

should aid in government decision making whether fracking should be contemplated at all.

Similarly, DWA does not act as the custodian of water resources in the gold mine based acid mine

drainage debates, or show foresight in the developing acid mine drainage problems on the

coalfields. It needs to show more political courage and foresight about the effects of polluting

industries on our water resources.

While DWA’s blue drop and green drop schemes are innovative and commendable, they need to

move beyond incentive schemes. There should be consequences for individuals and organisations,

such as local government, who pollute our water resources. It is people and their livestock who rely

directly on river water, who currently suffer the consequences.

It is disturbing that the wastewater discharge charge system has not yet been implemented. This

makes a mockery of the “polluter pays principle”. Equally disturbing is to see that the very

companies who have polluted our water, now stand to gain from cleaning it.

While in the NWRS-2 DWA seems to understand the severity of water quality problems, and

proposes strategies to deal with it, there seems to be an unspoken lack of political will. In this

situation, the only alternative will be for civil society to raise the level of public awareness, public

debate and public pressure on DWA to properly perform its role as custodian of the nation’s water

resources for present and future generations.

5. Access to productive water for small farmers; food security;

communities without water who live next to dams and pipelines

5.1 Communities affected by dams At the time of the drafting of the NWRS-1 the South African review of the World Commission on

Dams (WCD) was in progress and the NWRS-1 noted the WCD. A key outcome of the WCD was that

communities affected by dams needed to be better off after the dam’s construction. In the period

post the SA Initiative on the WCD the DWA undertook several projects:

1. Resettlement and Social issues

2. Social Audit of 9 existing dams

3. Establishment of fora to resolve outstanding issues at existing dams

Of these issues only the document outlining the resettlement and social contracts has been

completed by DWA. The social audit was initiated in 2004 and consultants were appointed by DWA.

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The consultants only started working in late 2005 and produced background documents, identified

communities and outstanding issues.

DWA held a meeting in May 2006 to bring together the nine communities from the dams, namely

Gariep and Van der Kloof (treated as one community), Sandile, Kat River, Loskop, Thapani,

Woodstock, Quedisisi, Inanda and Pongola. This meeting was the first and last meeting of the

process and seven years later communities are still waiting for the outcome.

Here are more details on two of the dams:

Loskop:

This dam was built in the 1930s and there are no records of dam affected communities from that

time. The dam was built for irrigation and is on the border of Mpumalanga and Limpopo. As a result

of the apartheid policies of the day people were relocated or restricted to deep rural areas without

access to water.

In 2006 DWAF contracted BKS and Bohlweki Consulting Company to carry out an audit of all the

families that were relocated to other areas as a result of the construction of the dam. The DWAF

official who was overseeing the process was Mr Mashishi Methula. Numerous workshops were held

in Pretoria of which SAWC member John Mathebe was part. Mr Mathebe relates:

“Thereafter they convened community meetings and they visited our area. People were

made to fill some forms with the promise that they were going to be compensated for the

losses they incurred when they were removed from the perimeters of the dam. From that

time until today, DWA and the consultants have disappeared and the communities have

been asking questions and we don’t have answers as community leaders. This is unfair

because they have raised the expectations and treated our people with contempt.

“Our community is almost 15km from the wall of the dam but there is no clean running

water in this area. The village was built in 1903 but up to date our people are dying of thirst

and no one cares. There are two parallel bulk water pipes coming from Weltevrede Water

Treatment plant in the former KwaNdebele Bantustan that were constructed in order to

solve the water crisis in our area but nothing happened , which to me , was misuse of our

taxes and the funds used were intended to benefit the tenderpreneurs and corrupt

municipal officials. The water canal runs 86km from Loskop Dam to that Water Treatment

Plant and the pipe lines also runs 86km back to our area. This does not make sense – why

can’t they just build a purification plant next to the dam and give us clean water?

“The Sekhukhune District Municipality is presently constructing another bulk water pipeline

from Groblersdal town almost 38km away from our area, to our area with the intention of

giving us clean water but I doubt we will indeed get that water. Poor planning is the order of

the day from our government.

“In 2009 (if I am not mistaken) the then Minister of Water Affairs Mrs Buyelwa Sonjica came

to our area where she announced in that Imbizo that the government had set aside a budget

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of R380m to build a new purification plant in our area because it is about 15km from Loskop

Dam and we would get clean water. She further said there is R20m for the engineers to start

with feasibility studies and the drawings for the bulk line from the dam and the plant. During

the IDP meetings in our area this year, I raised the matter of the purification plant but the

municipal officials responded by saying that the project has been cancelled. When I further

pursued the matter with DWA, they said the project is still on. Who is fooling who here? I

would like the DWA to come up with clear answers regarding this project. Should we go to

the High Court to force the government to give us clean water which is our right? We have

already approached a Section 27 organisation to assist us in this regard and I would like to

put it loud and clear to our government that we are not fighting them but we just want them

to deal with the Sekhukhune District Municipality, to please, do their work and give us

services.”

Pongolapoort

In 1969 construction started on the dam. The dam basin was mainly white owned farms but the wall

and part of the dam fell within what was to become the KwaZulu homeland government area.

Large-scale irrigation of the Makatini flats failed to materialise and to this day has not met to

potential. The natural flood regime has been interfered with and communities living downstream

have had their traditional livelihoods impacted on.

The dam is managed primarily as a conservation area with the dam surrounded by game reserves

and game lodges as well as a DWA flood control dam. In the Social audit, one of the issues that was

raised by communities was access to water for both domestic and productive use. At several

provincial water summits the issue of access has been raised not only by communities but also by

local and provincial political leadership from as high up as the Premier. In the interim a commercial

farmer has been granted an extraction permit provided he supplies some water to communities, but

to date some 43 years later the bulk of the water is still underutilised in the dam and the majority of

communities do not have access to water.

The issues of water for domestic use have been brought to the attention of DWA on numerous

occasions, but what is needed is a follow up on the social audit of the 9 dams to see what progress

has been made and a report back on this.

5.2 More equitable water allocations (water for productive use). While there has been a process of water allocation reform our understanding is that this still has a

long way to go. This was illustrated by communities in the Western Cape who, at the meeting of 16th

August 2012 in Cape Town, highlighted the issue of lack of water permits for land reform projects. In

some instances small-scale emerging farmers and people with food-gardens are using municipal

water and therefore being charged on a step-tariff basis that was designed to penalise wasteful (not

productive) water use.

In Water Summits and water reconciliation processes in KZN NAFU has regularly raised the issue of

water for emerging farmers. This is often overlooked because it is raised in the context of water

service processes and therefore not taken up by DWA. During NWRS-2 parliamentary hearings,

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AgriSA stated that it does not foresee the loss of water rights to commercial farmers (the

parliamentary portfolio committee Chair suggested that they review their position on this). This

position of AgrsSA is not helpful, given that commercial agriculture is the biggest user of water in

South Africa. NWRS-2 needs to look at how commercial farmers can use less water, and use it more

smartly, for example through changes in technology from conventional irrigation systems to

technologies such as drip and controlled irrigation. There is also a need to ensure that technology is

transferred from resource rich farmers to emerging farmers that are willing to embrace technology,

and that appropriate capacity is built to maintain this technology.

The situation alongside dams designed to support the rural poor is that smallholder irrigation

schemes in former homelands, which have largely collapsed and are increasingly encroached on by

‘strategic partners’, who mine the soils and create intra-community conflict. There is an urgent need

for a national transparent debate on how to learn from these failures of the past. If not, the

National Development Plan’s intention to expand irrigation with 500 000 ha will remain an empty

intention for smallholders, but just another alibi for large-scale irrigators to take up more water

without creating jobs because of the highly mechanised nature of their farming.

We support the NWRS-2 strategy to reinvigorate the Water Allocation Reform (WAR), and build the

power of representative Water Users Associations to claim a fair share of productive water.

However, we note with concern that in the detailed discussions of water balances in Part 3 of the

NWRS-2 (Spatial Perspectives on WMAs), in some cases the availability of water for small scale

farmers is ruled out, whereas in others there are allocations for emerging farmers. There must be

more creative and equitable ways of dealing with this question in the Spatial Perspectives (see p.

214; 223; 252). This underlines the need for the transformation of irrigation boards and the creation

of new WUAs.

5.3 Questions the NWRS-2 should raise NWRS-2 needs to address the following questions for people living in rural areas where there are

dams, but much more often where there are not even any dams:

1. What support is provided for homestead RWH as well as for groundwater irrigation, river lift

irrigation / diversions?

2. How do smallholders get access to inputs and markets – the two factors consistently

ignored for smallholder agriculture?

3. How do people get access to storage and conveyance infrastructure for other productive

water uses (food processing for sale, crafts, small-scale enterprise, and ceremonial

functions)?

4. Levels of water provision need to be significantly higher than the prescribed free-basic

water minimum to accommodate such small-scale productive uses.

5. More urgent attention should be given to the transformation of irrigation boards into water

user associations. Even when the transformation has happened, they are often still referred

to as irrigations boards and continue with a business as usual approach.

15

5.4 Rainwater Harvesting (RWH) Rainwater harvesting needs to be integrated into water supply not just for supplementary water

supply but also for domestic water supply and for productive use. In some parts of the country this is

the only source of clean potable water.

RWH is largely absent in the NWRS-2 and more attention needs to be given to prioritising this supply

as an alternative to other expensive options such as desalination, and transfer schemes. Climate

Change predictions are clear, that in some of the coastal and eastern sections of the country we are

seeing a year round in change in rainfall. This opens the door for the scaling up of RWH in these

areas. We feel that it should be mandatory in all new developments both public and private and a

process of retrofitting implemented those areas where it is not in use.

We also believe that harvesting of rainwater should not be limited to roof-tops but use holistic

methods such as those used by the Tshepo Kumbane Women for Water which is based on

permaculture principles.

5.5 Summary of key recommendations Dam affected communities

· That the 2006 Social Audit process be reviewed and that the communities are included in

projects that will assist in the access to water for both domestic and productive use.

· That DWA works with Civil Society to establish a database of communities that live next to

dams or irrigation schemes that do not have access to water and that this process is

reported to the parliamentary portfolio committee on water and environment on an annual

basis.

Technology Transfer

· That DWA looks at a sector approach that includes civil society to ensure that where

technology is used for smarter water use, that rural communities are also given opportunity

to benefit from these technologies.

Rainwater Harvesting

· That RWH is given the space that it deserves in the strategy and that roll out is scaled up in

the regions where rainfall patterns are changing and rainfall may increase.

· That DWA provides the enabling environment for RWH to take place on an equal footing

with technologies such as desalination and water transfer schemes. That the model bylaws

be revised to make RWH mandatory in all developments both private and public in areas

that have the potential for RWH.

Water reallocation and rural water

· Launch a multistakeholder process to develop a legal framework to ensure that clean and

affordable water is available for productive use for small-scale and emerging farmers, as

well as small, low-impact businesses

16

6. Access to information, licensing, monitoring and enforcement

Comprehensive, regular, adequate compliance monitoring of all water use in South Africa is a large-

scale endeavour that cannot be addressed with current DWA resources. To support the DWA, the

power of citizen monitoring and reporting must be harnessed through improved access to

information, support for citizen monitoring activities and protection for whistleblowing.

With regards to licensing, compliance monitoring and enforcement, we submit the following:

1. There are both procedural and substantive challenges in water use authorisation,

particularly quality of decision-making, and timeframes for processing of IWUL applications

(IWULAs).

2. Compliance monitoring and enforcement activity is not optimal or effective as a result of too

few dedicated and adequately skilled compliance and enforcement officials, and the absence

of a strategic compliance monitoring and enforcement programme.

3. Existing enforcement tools do not provide adequate deterrence for violations.

4. The potential of the Water Tribunal, which has become dysfunctional, is not realised.

In addition, water resources and geographical areas of significant hydrological sensitivity and

importance are threatened by authorised and unauthorised water use and without adequate legal

protection.

The SA Water Caucus supports the submission made by Centre for Environmental Rights on these

issues, see Appendix B. These contain detailed recommendations for changes to the text of the

NWRS-2, as well as proposals for implementation and consideration of budget and other

implications.

7. Impacts of Industrial Timber Plantations and timber processing on

water resources

Government has historically considered industrial timber production and processing as two separate

exercises, but in order to appreciate the full extent of timber industry water pollution and

consumption in South Africa, it is necessary to include the full range of impacts, from the initial

stages where plantations of invasive alien trees are established in catchments, thereby also

destroying biologically diverse and agriculturally important grassland habitat, to the final point

where pulp mill effluent and used paper and cellulose products are dumped into / disposed of in

water bodies from where they eventually end up polluting estuaries and oceans.

17

Effluent from the Sappi paper mill at Stanger in KwaZulu-Natal ends up in the Mvoti River

During the timber production process, water is polluted by fuel and exhaust emissions from

industrial plantation equipment and poisoned by chemical pesticides. Disturbance caused by new

plantation establishment, clear-cutting and slash-burning also causes top soil loss which in turn leads

to increased erosion and drainage line scouring which then increases sedimentation in wetlands and

estuaries, with resultant water quality reduction and impacts on aquatic habitat.

The invasive alien Eucalyptus, Pine and Wattle tree species primarily used in industrial timber

plantations include an estimated 3,2 million hectares comprising 1,5 million ha. of managed

plantations and 1,7 million ha. abandoned plantations and feral tree invasions, which cover much of

South Africa’s high rainfall ‘mist-belt’ area, but also affect large parts of the coastal belt in KwaZulu-

Natal as well as fynbos areas in the southern and Western Cape that lie within critical water

production catchments.

18

The ‘mist belt’ zone starts in Limpopo province, in the vicinity of the town of Tzaneen, extending

down through Mpumalanga, Swaziland, KwaZulu-Natal to the Eastern Cape inland of Mthatha. The

high rainfall and fertile soils in these areas provide ideal growing conditions for the alien tree species

used in timber plantations, as they need to consume vast quantities of water to support the high

evapo-transpiration rates that accompany their rapid growth.

Timber plantations in South Africa have mostly been established in the grassland, fynbos and

savannah biomes. Grasslands are especially valuable because of their high biodiversity values and

water retention capacity. Their sponge-like function slows down runoff when it rains in the

catchments and allows greater seepage into aquifers. This also helps prevent ‘flash flooding’ and soil

erosion. After grassland is destroyed through conversion to plantations, these valuable services are

lost.

Considerable research has been undertaken into the water consumption of timber plantations and

there is ample evidence to show that their impacts on South Africa’s water catchments is

substantial, to the extent that they can consume the equivalent of all the rainwater that falls directly

onto the plantation footprint, i.e. in excess of 1000mm per annum in some cases.

Plantations of evergreen trees such as those used in South Africa consume water throughout the

year and this means that even during dry periods the trees draw water from the aquifer with

resultant seasonal loss of flow in rivers and streams that would normally flow perennially.

Increasing demand for low-quality timber for the wood-chip exports is driving the expansion of

illegal plantations into areas with marginal rainfall with devastating consequences for local

communities whose subsistence is dependent on already limited water and soil resources.

19

Eucalyptus plantation near the Sappi Ngodwana pulp mill in Mpumalanga province

Excessive use of water by industrial timber plantations directly affects the livelihoods of rural

communities that depend upon rivers and streams for basic needs and subsistence farming. Local

traditions and cultures are also affected, i.e. certain rituals need to be performed utilising waters of

the rivers, which are compromised by over-abstraction in the upper catchments.

The graph below depicts the impact of large scale timber plantations establishment:

The Klaserie River rises at Mariepskop, Limpopo Province, South Africa. Water flow was measured

beneath the mountain where the road between Tzaneen and Nelspruit crosses the river. All that has

changed between 1935 and 1964 was the progressive establishment of monoculture tree

plantations in the Klaserie River catchment.

20

Recommendations on industrial timber plantations

1. The NWRS-2 should recommend that the DWA implement a moratorium on the issuing of

any new water-use licenses for timber plantations. This is critical in the Eastern Cape, where

100 000 ha has been earmarked for new timber plantation establishment.

2. All existing water use licences must be reviewed and either withdrawn where appropriate or

steps taken to enforce the conditions of water licences that are not withdrawn. This should

apply to both stream flow reduction licences and effluent discharge licences.

3. Meaningful water use tariffs/ licence fees need to be introduced in order to ensure that the

true cost of water used by timber plantations is paid so that adequate funds will be available

to cover the costs of providing alternative supplies where communities have been deprived

of access to water by plantations.

4. The NWRS-2 should recommend that the DWA as water regulator should revise and update

water use models to get a clearer understanding of the water use of alien plantation trees.

New scientific methods involving testing isotopes for information about impacts on

groundwater, which is still little understood, are available.

5. There should be a greater focus on research, and the ‘paired catchments experiments’ in

Jonkershoek in the Western Cape should be continued and funded by the DWA. Valuable

data and information has been gathered over almost 80 years, providing world leading

opportunities for understanding plantation land use models and their impacts.

6. The Working for Water Project is valuable and should receive greater support for enhanced

operations, better oversight and greater efficacy in follow-up exercises.

7. The NWRS-2 should include extensive restoration and rehabilitation of the grassland biome,

that is vital to water conservation in southern Africa, and wherever possible, existing

unviable plantations should be removed. Such an opportunity exists with state owned

plantations in the Mariepskop area. In the 1990’s the then Minister of the Department of

Water Affairs and Forestry proclaimed that these plantations should be removed to free up

water for residents of Bushbuck Ridge. Contrary to this decision, a government report has

been produced which recommends that 4500ha should now be re-planted and brought back

into production. These plantations should rather be removed as per the ministerial decision,

and the land rehabilitated and put to productive use – by providing a range of ‘natural’ (but

managed) services, such as medicinal plant cultivation, cattle / sheep grazing, etc. that will

not undermine the water yield of the catchment.

8. Please review the following comprehensive report regarding plantation trees and water use:

http://www.geasphere.co.za/articles/thirstytreesnowater.htm

9. Please review this video documentary about the paired catchments experiments at

Jonkershoek in the Western Cape: http://www.youtube.com/watch?v=FRnVkrDepsw

10. Please visit www.timberwatch.org for additional information on the negative impacts of

timber plantations and pulp mills on water resources.

8. Climate change

The NWRS-2 recognises the added impact climate change will have on existing challenges. However

it does not sufficiently integrate the fundamental challenge that climate change presents to us, of a

21

new and radically different economy, which focuses not on growth, but on producing and

distributing what each person needs for their health and well-being in a way that does not harm the

integrity of natural systems.

Technical strategy 2: climate change (p136-138) presents some important issues and principles. It

refers also to a “more detailed operational strategy” that we have not seen, nor do we know if it

even exists. In light of this, we request better dissemination of DWA’s climate change response

strategies and initiatives, as well as a well-considered public participation for the development and

finalisation of the Water Sector Climate change response strategy, which is a requirement of the

National Climate Change Response White Paper.

Specific recommendations on climate change: · P137 under “key issues” add bullets:

o Current adaptation measures to water scarcity (which can be seen as a proxy for

climate change) exacerbate social inequality

o The impact of climate change on the cost of water provision needs to be better

understood and mechanisms put in place to ensure the polluter pays, i.e. the cost is

paid by greenhouse gas emitters, not poor households

· P138 add to bullet “reducing the vulnerability…risk;” the following phrase: “this includes

those at risk from inappropriate municipal responses and other false solutions”

· P138 Strategic actions”

o bullet 2: insert: “publically consulted and” before the last word “finalised” (we

support the finalisation of the water sector cc response strategy, however this needs

to be done in a consultative manner)

o Add bullet: “integrate climate change mitigation into the water sector through

prioritising the installation of waste-water treatment works that minimise

greenhouse gas emissions, such as the Advanced Integrated Ponding System (AIPS):

o Add bullet: “invest in infrastructure and maintenance that is energy efficient, uses

renewable energy, reduces distance that water travels and is resistant to storms, sea

surges, sea-level rise, etc.”

o Add bullet: “specify a process to consider water, energy and climate change

implications of each of the proposed plans for desalinisation, coal mining and use,

and fracking. The full cost (social, environmental, economic etc.) of “new water

resources” exploitation will be measured, from use of groundwater, water reuse and

supply augmentation across catchments.”

Technical strategy 6: desalination (p153-158) and technical strategy 7: water re-use (p158-166) are

also considered key to get right in an appropriate response to climate change.

We are concerned that desalination is presented as a solution to climate change in that it diversifies

water supply, yet no mention is made of its contribution to climate change through high energy

inputs. We are also concerned that the promotion of the private sector in desalination, for example

to clean mining-polluted water, will mean that those who have profited from polluting water

resources will also profit from cleaning them up! This perverts the polluter pays principle. Finally we

22

are concerned that one of the key rationales presented for desalination is to provide water for

nuclear power, an expensive and risky technology that we do not support.

We support the inclusion of a technical strategy on water re-use and concur that its success is highly

dependent on municipalities and industry meeting existing waste-water discharge standards. As with

desalination, we are concerned with the dual role of industry as ‘polluter’ and ‘cleaner’ of water,

with the potential to profit from both activities.

Specific recommendations on desalination and water reuse: · P153: delete heading: “successful implementation of desalination is critical to our water

future”

· P153, first paragraph, insert underlined words into final sentence: “…taking into account the

benefits of the diversity of water supply as well as the costs of increased energy use and

greenhouse gas emissions in the context of increased climate change risk.”

· P153, 2nd

paragraph, integrating energy and water planning: delete second sentence (the

purpose of integration is not to find the water to support a harmful energy strategy, but to

plan for both water and energy production in a way that takes into account South Africa’s

dryness, climate change and the limits of ecosystems to adapt – a much more strategic

discussion on this is needed)

· P155 financing desalination projects: delete middle paragraph or rewrite to ensure the

following concerns are addressed. The ‘public good’ nature of domestic water provision

means that it does NOT lend itself to private financing. Furthermore, while producing extra-

water through desalination might be financially viable (there might be industries or

developments that are willing to pay a high price for water) it is not necessarily in the long-

term public interest as it could lead to higher domestic tariffs, ecological degradation,

increased climate change, and so on.

· P156, 3rd

paragraph, add sentence: “In this instance, the mining sector will pay the full cost

of cleaning up (desalinating) contaminated water.”

· P157, increasing public awareness and acceptance:

o replace heading with “public consultation”

o add bullet: “run public consultation process that listens to concerns on desalination

and integrates them into the desalination strategy”

· P160, last list of bullets: add bullet: “simple for the public to read and understand”

9. The water business and institutional restructuring

We recognise that the consolidation of wall-to-wall water boards, other institutional restructuring,

and the position of infrastructure agency are of critical importance and could have wide-reaching

implications. Currently the SAWC is not in a position to comment on these and we request that the

DWA runs a consultation process to bring to our attention and understanding the key issues and

intentions so that we can engage in an informed and meaningful manner.

23

10. Equal voice for civil society and the role of big water users

As expressed in numerous interactions with DWA, including letters to the Minister and Director

General, we are concerned that DWA’s cosy relationship with big water users and private companies

undermines the management of South Africa’s water for the public good. We do not support the

proposals submitted by groups such as Eskom, Sasol, Chamber of Mines, Agri-SA, and so on to use

market mechanisms to manage water allocation and improve water quality. On the contrary,

mechanisms such as water trading, are likely to exacerbate social water scarcity and provide

disincentives for industry to stop polluting water resources.

11. SAWC proposes to continue with Provincial engagements in

support of the NWRS-2 and its implementation

The SAWC has engaged at Provincial level in the NWRS-2 process and plans to take this into the

process of implementation and monitoring. We will do this through engagement with the Regional

offices of DWA as well as through the CMAs, in particular in the three priority areas.

24

Appendix A: participation

Participation by South African Civil Society in the Policy and Implementation processes of the

Department of Water Affairs:

“Informed participation is a condition for effective participation”

Water Sector Leadership Group

Clarity is needed on who represents the South African Water Caucus (SAWC) and broader water

sector that is not part of the South African Water Caucus.

The SAWC participation should be sufficiently supported by the DWA by providing minutes of

previous meetings, agendas and other documents of scheduled meetings in sufficient time so that

the SAWC can engage internally with these documents in order to make appropriate

recommendations and interventions.

Logistical support should be given, for example airport transfers if needs be must be provided on

both legs.

The WSLG remains an important platform so Civil Society participation should be taken seriously and

provided with adequate support by the DWA so that it can better participate in the water decision

making process. Our participation should be outcome orientated, if it’s not equals wasted time.

Meetings with the Minister

As stated before that the SAWC used to meet with the sitting minister of the department one or two

times a year to share and exchange on matters facing the water sector and the country and that now

no longer happen.

These meetings should be revived and should take place at least two times a year. Tthey should be

measuring yardsticks of what issues are addressed based in the previous meeting, how these issues

were addressed and what still needs to be addressed.

Such meetings should be supported financially by the department so that better relations between

the minister and the Civil Society in the water sector are fostered. Iif done properly, this could help

both government and CS to achieve their goals.

Catchment Management Forums

These are structures that will be empowered to make water decisions at catchment levels. It is

important that the CS keeps involved and actively participating, but looking at the size of the nine

new catchments, participation in particular by Civil Society will be a real challenge. Thus the need to

consider sub-catchments as to enable participation by local people and stakeholders in the water

decision making processes at this level. It is also important that capacities of the local communities

are enhanced so that their participation is meaningful. Logistical support should be adequately

provided as well as refreshments in meetings, as local people travel long distances sometimes

without having eaten anything. Information must be presented in the language understood by the

local people and participation should not equal rent a crowd or window dressing.

25

Provincial and Regional levels

Regular meetings between the regional director, provincial government and CS at provincial levels

are necessary to take place to facilitate information sharing on implementation, monitoring and

evaluation and partner of specific areas common interests where it’s possible. Here too, Civil Society

would require adequate information in time and logistical support.

Local Government

This is the most crucial level of government when it comes to water delivery and this is where most

of the contestation by local communities tends to be directed. At the same time it is the most

difficult and challenging level of government to work with. Regular meetings need to take place

between communities and the local authorities to look at water issues at each local level, say at a

ward, sub council, local, district and metro levels and these should be supported by local

government in terms of both information prior to the meetings and logistical support.

Other participating constraints

Travel cost incurred by Civil Society, in particular community people, must be reimbursed before

delegates or participants return home as they are mostly unemployed activists who sometimes have

to use their last family money or borrowed money to come to meetings.

Sometimes delegates come from deep rural areas where public transport is non-existent and areas

where it’s dangerous to travel at night. It is even worse when you have women exposed to such

conditions.

It is therefore important for the department to relook are their internal control and procurement

process as to accommodate these challenges. It will be a blunder for the department to employ a

one size fits all approach here as these are not the same people as their employees or consultants

who have better means of dealing with these conditions.

Terms of Reference

All processes must, at the start, set up terms of reference and these ToR must specify and address all

the expectations from all the role players or stakeholders in a fair and just way. These should be

subjected to period review agreed as part of the ToR, and be used as the basis for process evaluation

at the end of the process. That will help minimise misunderstanding and better manage conflict and

disputes.

“Nothing about us without us”

26

Appendix B: CER submission to DWA on NWRS-2 (elaboration on section 6)

ACCESS TO INFORMATION, CITIZEN MONITORING AND REPORTING, AND WHISTLEBLOWING

The issue: Comprehensive, regular, adequate compliance monitoring of all water use in South Africa

is a large-scale endeavour that cannot be addressed with current DWA resources. To support the

DWA, the power of citizen monitoring and reporting must be harnessed through improved access to

information, support for citizen monitoring activities and protection for whistleblowing.

Principles, policy and legislation to be applied:

· Constitution of the Republic of South Africa, 1996: s.10 (human dignity), s.24 (environment),

s.27 (health care, food, water and social security, s.32 (access to information) and s.33

(administrative justice)

· Promotion of Access to Information Act, 2000 (PAIA), as read with DWA PAIA Manual

· National Environmental Management Act, 1998 (NEMA): s.2 (environmental management

principles), s.31 (protection of whistleblowers)

· National Water Act, 1998 (NWA): preamble and s.139 (National Information System) and

particularly s.139(2)(d) (register of water use authorisations)

· National Government Outcome 12: An efficient, effective and development oriented public

service and an empowered, fair and inclusive citizenship

Existing commitments in the draft NWRS-2:

· Recognition of citizen participation as a “critical approach underpinning and supported in the

NWRS-2” (p.24): “We must empower citizens to participate in water governance. Our

institutional framework provides the basis for this, but without structured activities and

forums, the ability of civil society to engage in water management issues is weak. This will

also require capacity building initiatives that will be driven through the various institutions

such as CMAs and WUAs.” (p.65)

· Commitment to compliance information systems in Enabling Strategy 2

· Commitment to the implementation of an electronic on-line IWUL application system and to

involving the public and civil society as partners for regulation (strategic actions for

Governance Strategy 2).

Proposals for implementation Needed to implement

1. The DWA will implement an electronic on-line

IWUL application system with a public access

portal which will allow citizens to access the

applications (including all supporting

documents lodged or relied on, such as the

Reserve determination) as well as all

authorisations issued, monitoring reports

filed and enforcement action taken.

Budget allocation to establish electronic on-line

IWUL application system with a public access

portal (potentially expanding functionality of the

Water Use Authorisation Registration

Management System (WARMS).

2. All integrated water use licences (IWULs) will

contain a provision that requires the licensee

Amendment to DWA IWUL templates. No

budget implications. Negligible cost to licence

27

to provide a copy of the IWUL:

a. to all registered interested and affected

parties on issuing of the IWUL;

b. to any person who requests such IWUL,

without requiring a formal request under

PAIA; and

c. on the licence holder’s website, if they

have a website.

holders.

3. All subcatchment forums will be given a

certain number of opportunities per annum

to send water samples to the DWA

laboratories (or a nominated accredited

laboratory) for quality testing, and receive

test reports.

Small budget allocation or reallocation for

laboratory costs.

4. The DWA will, on a regular basis, invite

members of subcatchment forums and local

communities to accompany DWA officials on

site inspections.

Change in practice – internal directive to staff.

Develop short, practical guideline for conduct on

site inspections. Limited budget implications.

5. The DWA will support a 24 hour toll-free

water crimes and incidents telephone, SMS,

email and website hotline for citizen reporting

of violations, independently monitored and

tracked with reference numbers for follow-

up, and guaranteed feedback from DWA.

Acquiring additional toll-free number and

service from external service provider. Minimal

budget allocation required.

Significant budget allocation required for

additional, adequately trained compliance

monitoring staff at DWA that can respond to

reports of crimes and incidents and give

feedback to complainants (see Topic 2 below).

6. The DWA recognises and supports the

protection for whistleblowers provided in s.31

of NEMA.

No budget allocation required – just statement

to be included in NWRS-2.

7. The DWA will improve its implementation of

and compliance with PAIA, including

publishing its updated PAIA Manual

Additional budget allocation can be limited

through strategic use of ss.14 and 15 in PAIA in

relation to wider automatic disclosure of

documents, through the public access portal

under proposal 1 above, and on the DWA

website.

Additional information and resources:

· Stop Treading Water: What civil society can do to get water governance in South Africa back

on track. March 2011. Centre for Environmental Rights.

· Unlock the Doors: How greater transparency by public and private bodies can improve the

realisation of environmental rights. April 2012. Centre for Environmental Rights.

· Consolidated Report: The Potential of Civil Society Organisations in monitoring and improving

water quality. October 2011. Mvula Trust.

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LICENSING, COMPLIANCE MONITORING AND ENFORCEMENT

The issues:

5. There are both procedural and substantive challenges in water use authorisation,

particularly quality of decision-making, and timeframes for processing of IWUL applications

(IWULAs).

6. Compliance monitoring and enforcement activity is not optimal or effective as a result of too

few dedicated and adequately skilled compliance and enforcement officials, and the absence

of a strategic compliance monitoring and enforcement programme.

7. Existing enforcement tools do not provide adequate deterrence for violations.

8. The potential of the Water Tribunal, which has become dysfunctional, is not realised.

Principles, policy and legislation to be applied:

· Constitution of the Republic of South Africa, 1996: s.24 (environment), s.33 (administrative

justice), s.41 (principles of cooperative government)

· Promotion of Administrative Justice Act, 2000 (PAJA)

· National Environmental Management Act, 1998 (NEMA): s.1 (definition of “specific

environmental management Act”, which includes the NWA), s.2 (environmental

management principles), s.24L (alignment of environmental authorisations); Chapter 7 Part

2 (application and enforcement of NEMA and any specific environmental management Act),

s.34 (criminal proceedings) as read with Schedule 3 Part (a)

· National Water Act, 1998 (NWA): Chapter 3 (protection of water resources), Chapter 4 (use

of water), including s.30 (security by applicant), Chapter 13 Part 1 (entry and inspection),

Chapter 15 (appeals and dispute resolution, including the Water Tribunal) and Chapter 16

(offences and penalties).

· National Government Outcome 10: Environmental assets and natural resources that are well

protected and continually enhanced

Existing commitments in the draft NWRS-2:

· The draft NWRS-2 recognises that water use authorisation has become a critical business risk

which has to be managed. It is no longer a routine matter and, given the recognition of the

human right to water, water stewardship is a key aspect of business strategy, governance

and operations for both direct and indirect water use.1

· Commitments in Core Strategy 8 include strengthening DWA’s capacity, extending the water

governance model to support stronger leadership and regulation, allocation of adequate

resources to build competence for the regulation of water use, and supporting inclusive

stakeholder participation in water governance. Key strategic actions include:

o clearing the backlog in IWULs by 2016;

o putting in place streamlined processes to ensure that licence applications are dealt

with in a reasonable time;

o making greater use of General Authorisations to reduce the burden of licence

applications on the DWA;

1 At 21

29

o fast-tracking Reserve determinations, so that this does not become a bottleneck in

the water use authorisation process; and

o delegating water use licensing to at least 4 CMAs over the next 3 years.

· Commitments in Governance Strategy 22 include the following strategic actions:

o the development of a dedicated water use authorisation process in DWA;

o acceleration and streamlining the issuing of licences, and the improvement of the

IWULA system so that all applications are dealt with within 3 months;

o the implementation of an electronic on-line system;

o strengthening co-operation between DWA and DEA in the implementation of

regulations to optimise use of limited capacity.

· Commitments included in Key Strategic Actions include:

o that DWA will intensify its CME activities to reduce illegal activities that impact on

water quality and the health of aquatic ecosystems. It will be focused on high

impact activities in order to achieve the optimal use of limited state resources; 3

o DWA and CMAs will put in place improved regulation of water abstraction, including

through increasing capacity for CME, and will work in close partnership with the DEA

“Green Scorpions”;4

o DWA, DEA and CMAs will work together to improve regulation and enforce

compliance,5 and the establishing of integrated compliance and enforcement

between DEA and DWA;6

o DWA and CMAs will develop and implement a targeted regulatory strategy focused

on ensuring compliance from high impact water users as a priority;7

o enhanced capacity for institutions that are responsible for water quality

management and compliance enforcement;8

o ensuring that the largest possible collection of high quality data and information for

supporting, inter alia, regulation, monitoring and compliance enforcement are

identified and made accessible to public and private institutions;9

o effective utilisation of mobile technology and satellite imagery in resource

monitoring, compliance monitoring and enforcement activities;10

o raising the credibility of DWA as regulator by: immediate action against

transgressors; making key rulings public; being objective; and through short turn-

around times.11

Proposals for implementation Needed to implement

Licensing

1. DWA will position decision-making powers Internal reorganisation – limited budget

2 4.2 at 190 , Chapter Improved Governance Strategies

3 Key Strategic Actions s.28 at 88

4 51 at 90

5 36 at 89

6 Strategic Action at 121

7 56 at 91

8 Detailed Core Strategy 1: Protection of Water Resources – at 108

9 Enabling Strategy 3: Monitoring and Information at 179

10 Enabling Strategy 4: Research and Innovation at 185

11 Governance Strategy 2 – Strategic Actions at 192

30

on authorisation with DWA and CMAs more

appropriately, including ensuring

appropriate delegation to CMAs.

implications.

Delegation to CMAs by the Minister (while roll-

out of CMAs will have their own budget

implications, putting in place the delegations will

not).

2. DWA will implement urgent training and

ongoing capacity-building for DWA and CMA

officials on process and substance of

authorisations.

Engage external service providers in

collaboration with DWA staff to roll-out training

programme.

3. DWA will provide for outright refusal and

referral back of substantially deficient

applications for IWULs (instead of keeping

deficient IWULAs “alive” through ongoing

requests for further information).

Change in practice - process flow chart

amendment and internal directive to staff.

4. DWA will ensuring improved and meticulous

record-keeping of all aspects of the IWULA

process, including decisions taken at various

stages, and make the IWULA publicly

available through an electronic on-line IWUL

application system with a public access

portal (see separate proposal).

Change in practice - internal directive to staff.

Budget allocation to establish electronic on-line

IWUL application system with a public access

portal (potentially expanding functionality of the

Water Use Authorisation Registration

Management System (WARMS).

5. DWA will coordinate with DEA and other

permitting authorities on the streamlining of

environmental licensing processes.

This process is already underway.

6. DWA will regularly require the use of peer

review to ensure integrity of IWULs.

Change in practice - internal directive to staff.

Limited budget implications for DWA; some

budget implications for IWUL applicants.

7. DWA will require security for obligations

arising from the IWUL under s.30 of the NWA

in all IWULs.

Amendment to DWA IWUL templates. Limited

budget implications. Budget implications for

licence holders, similar to financial provision

provided to the DMR.

8. DWA will revise, expand and re-publish of

generation authorisations.

Limited budget implications.

9. Proposals to ensure that public participation

in IWULAs and amendments of IWULs

comply with the requirements of PAJA will

be taken to the legislature.

To be included in proposed amendments to

NWA.

10. DWA will embark on a structured review of

existing IWULs to improve consistency and

quality.

Budget implications depend on whether such a

review can be undertaken externally, or whether

external service providers need to be engaged.

Compliance monitoring and enforcement (CME)

11. DWA will elevate the profile of CME within

the department through the appointment of

a champion with experience in rolling out an

New organogram and job evaluation. Sector

research and recruitment. Some budget

implications.

31

effective CME programme in an

appropriately senior position.

12. DWA will expand its staff complement of

dedicated CME officials and appoint staff

with appropriate specialised skills and

experience (including criminal investigation

experience).

New organogram and job evaluation. Sector

research and recruitment. Significant budget

implications.

13. DWA will join the Environmental

Management Inspectorate established under

NEMA and increase the powers available to

its CME officials.

DWA CME officials must complete EMI Training

(some budget implications).

Minister must designate trained DWA CME

officials as Environmental Management

Inspectors (EMIs) under NEMA, who will then be

DWA EMIs.

14. DWA EMIs will participate in all EMI

initiatives, including training, branding,

standard operating procedures, partnerships

with other law enforcement agencies and

providing statistics for the annual National

Environmental (and Water) Compliance and

Enforcement Report.

DWA EMIs to work closely with EMIs in DEA and

other departments and implement agreed

branding and procedures. Some budget

implications.

DWA EMIs to collect statistics and report for the

annual National Environmental (and Water)

Compliance and Enforcement Report. Limited

budget implications.

15. DWA will develop and publish an appropriate

water CME strategy for DWA EMIs that

incorporates prioritisation, compliance

promotion, a media strategy to publicise

results, recommending to National Treasury

that violators be banned from competing for

government tenders, and providing feedback

to decision-makers on licensing.

External service provider to be engaged. Limited

budget implications.

Liaison with National Treasury.

Improving and expanding enforcement tools, and realising the potential of the Water Tribunal

16. Proposals to bring criminal penalties for

offences under the NWA in line with other

environmental legislation will be taken to the

legislature.

To be included in proposed amendments to

NWA.

17. The DWA will develop a policy framework for

the incorporation of civil and administrative

penalties, akin to those provided for in the

Competition Act, 1998, in the water

regulatory framework (potentially utilising

the existing Water Tribunal).

External service provider to be engaged. Limited

budget implications.

18. Proposals to improve the functionality of the

Water Tribunal will be taken to the

legislature, including revised requirements

for the appointment of members of the

To be included in proposed amendments to

NWA.

32

Tribunal; amendment of the legal standing

provisions before the Water Tribunal to be in

line with PAJA; clarification and expansion of

substantive mandate of Water Tribunal

(including expanded appeal grounds);

specifying circumstances under which

Minister can exercise her discretion to lift

suspension in terms of s.148(2)(b).

19. The DWA will propose revised and improved

rules of procedure for the Water Tribunal

(particularly to include timeframes).

External service provider to be engaged. Limited

budget implications.

Additional information and resources:

· Stop Treading Water: What civil society can do to get water governance in South Africa back

on track. March 2011. Centre for Environmental Rights.

· National Environmental Compliance and Enforcement Reports 2007-8, 2008-9, 2009-10,

2010-11, 2011-12

· Fourie, M. “How civil and administrative penalties can change the face of environmental

compliance in South Africa.” South African Journal of Environmental Law and Policy, 2009.

Vol. 16, No. 2, 93-127.

· Pejan, R. and Sefatsa, D. “A critical assessment of the South African Water Tribunal.” WRC

Project K5/1920.

· Rapson, G. “A Critical Analysis of The South African Water Tribunal Rules” submitted as an

LLM dissertation to the University of the Witwatersrand in 2012.

NO-GO AREAS, WATER PROTECTION ZONES AND GROUNDWATER RECHARGE ZONES

The issue: Water resources and geographical areas of significant hydrological sensitivity and

importance are threatened by authorised and unauthorised water use and without adequate legal

protection.

Principles, policy and legislation to be applied:

· Constitution of the Republic of South Africa, 1996: s.24 (environment) and s.33

(administrative justice)

· National Environmental Management Act, 1998 (NEMA): s.2 (environmental management

principles)

· National Water Act, 1998 (NWA): preamble, s.2 (purpose of act), s.3 (public trusteeship of

nation’s water resources), Chapter 4 Part 8 (compulsory licensing), though note that there

are no existing provisions for declaration of no-go areas, water protection zones or

groundwater recharge zones in the NWA

· National Government Outcome 10: Environmental assets and natural resources that are well

protected and continually enhanced

· The Ramsar Convention on Wetlands (http://www.ramsar.org)

33

Existing commitments in the draft NWRS-2:

· A commitment to the integration of freshwater ecosystem priority areas (FEPAs) into water

resource planning and decision-making at national and regional levels, as well as within CMAs

within 5 years.12

· A commitment to ensure implementation of CARA to protect riparian and wetland buffer zones,

critical groundwater recharge areas and estuaries.13

Proposals for implementation Needed to implement

1. Proposals to empower the Minister to declare

certain areas of significant hydrological sensitivity

and importance (both in relation to water quality

and quantity) as surface and groundwater

protection zones and groundwater recharge zones,

together with associated prohibitions and

limitations on authorisation of water use in these

areas, will be taken to the legislature.

To be included in proposed amendments

to NWA.

2. The DWA will embark on a process of identifying

appropriate areas for declaration based on a

transparent methodology that will include public

participation, with reference to, inter alia:

a. areas or subcatchments where limits on use

have been reached, with reference to the

ecological reserve for surface and groundwater;

b. the National Freshwater Ecosystem Priority

Areas;

c. Ramsar Sites, or sites recognised under the

Ramsar Convention on Wetlands, 1971;

d. mountain catchment areas declared in terms of

the Mountain Catchment Areas Act, 1970; and

e. geographical areas proposed for restrictions in

the joint civil society application to the Minster

of Mineral Resources under s.49 of the Mineral

and Petroleum Resource Development Act,

2002, dated 1 February 2011.

Much of this identification process has

already been completed through projects

like NFEPA.

3. Once empowered by statute, the Minister will

exercise her rights to declare such areas as

identified and prohibit and limit authorisation of

water use in those areas.

Proposal to be Gazetted for comment,

thereafter formal declaration

undertaken. Limited budget implications.

Internal directives to be put in place to

ensure implementation of prohibitions

and limitations in water use licensing

decisions.

12

Milestone indicator at 115 13

Key strategic action 31 at 88

34

Additional information and resources:

· Stop Treading Water: What civil society can do to get water governance in South Africa back

on track. March 2011. Centre for Environmental Rights.

· Joint civil society request to the Minister of Mineral Resources to exercise her discretion

under s.49 of the Minerals and Petroleum Resources Development Act to prohibit and

restrict prospecting and mining in areas of critical biodiversity and hydrological value and

sensitivity, available at http://cer.org.za/prohibitions-and-restrictions-on-prospecting-and-

mining-in-environmentally-sensitive-areas-in-terms-of-s-49-of-the-mprda/

· National Freshwater Ecosystem Priority Areas Project website at

http://bgis.sanbi.org/nfepa/project.asp

· National list of threatened terrestrial ecosystems for South Africa (2011) at

http://bgis.sanbi.org/ecosystems/project.asp