Having a Water Use Registration Certificates in place does not mean that the registered water uses which are undertaken by your business are lawful. Avoid exposing your business to the risk of prosecution, the payment of significant penalties and reputational damage by ensuring that your businesses water uses are appropriately registered and authorised in terms of the National Water Act, 1998 (NWA). We recently almost saw a sale of shares transaction being scuppered as a result of a water use registration certificate issue. Don’t get caught unaware!
The NWA requires all water uses to be authorised in terms of a water use licence, unless the water use:
- constitutes a "Schedule 1 water use", which includes water uses which are undertaken for domestic purposes and general stock watering;
- falls within the ambit of a General Authorisation which permits the use of water subject to certain conditions without a licence; or
- constitutes an "existing lawful water use", meaning that the water use was lawfully undertaken any time during a period of two years before the NWA came into force i.e. from 1 October 1996. Many clients make the mistake of thinking that because their water uses have been registered on the Department of Water and Sanitation (DWS)'s database (called WARMS), that these water uses are lawful and do not need to be licenced in terms of the NWA.
The registration of a water use is not an entitlement to use water and does not mean that the use is being lawfully undertaken. The requirement to register existing water uses which were being undertaken when the NWA came into force was primarily imposed in terms of the Water Use Registration Regulations in 1999. New water users (i.e. those uses that were undertaken after the NWA was promulgated in 1999), are, however, also required to register their water uses in terms of certain General Authorisations that have been published in terms of the NWA.
The registration of water uses simply enables the DWS to better understand who is using water, where the water use being used, what the water is being used for, and how much water is being used in South Africa. This is purely an administrative process, it does not act as proof of the lawfulness of the registered water use.
In order to determine whether an existing water use which has been registered with the DWS is lawful, a validation and verification exercise must be undertaken. The DWS should issue a notice, under section 35(1) of the NWA to call on the registered existing waster user to verify the use. In practice not many such notices have been issued and we believe that registered existing water users should be taking more proactive steps to approach the DWS to request the validation and verification of their registered water uses.
How is this done?
If you don’t have a permit, historical Water Court order or some other proof of lawfulness prior to the NWA coming into force, you will need to prove that you qualify as an 'existing lawful water user'. This can be a tricky process and it may require the submission of a part-technical, part-legal report to prove the lawfulness of your registered water use. Very often land surveying is required, detailed design drawings of dams and historic aerial photography is needed to prove that the water use was exercised after 1 October 1996.
The purpose of the report is to determine if the volume of water that was registered is accurate (validation) and that the volume of water that was registered was lawful under previous legislation (verification).
If the registered water use is found to be unlawful, then the user will not be permitted to continue with that use without obtaining authorisation under the NWA. The user will also have committed an offence in terms of the NWA and could be liable to a fine and/or period of imprisonment if successfully prosecuted.
This alert was drafted by
Tamzyn Mc Clure (Associate) and signed-off by
Kirsty Kilner (Senior Associate).