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Legal Toolbox

National Water Act

WATER AND SANITATION DRAFT BILL

The National Water Act currently does not have a tool that allows the Minister of Water & Sanitation to protect an area that is important for water security and supply. The Department of Water and Sanitation is in the process of preparing a draft bill for water and sanitation in South Africa. If the draft bill is passed by Parliament, it will replace the National Water Act. This presents an opportunity for law-makers to create legal provisions for the protection of water source areas There are 3 options available for legal reform under the National Water Act, particularly:

  1. A declaration provision which gives the Minister the power to restrict or prohibit certain water use activities within a water source area to be defined in the declaration, through prohibiting or restricting the issuing of water use licences in that area. In this option, the exact prohibition or restriction for that area would be prescribed in the declaration for each water source areas;
  2. An expansion of the definition of a “watercourse” to include water source areas, and the regulation of activities within water source areas by declaring water use activities in a water source area as “controlled activities”; or
  3. An introduction of a new Chapter in the amended National Water Act dedicated to water source area protection, which defines water source areas, and with immediate effect, provides certain general prohibitions and restrictions with regard to the main threatening activities within them.

There would be much value to commencing a process of amending the National Water Act to empower the Minister of Water & Sanitation to identify geographical areas in which no water use may be authorised, by way of general authorisation, water use licence, or otherwise, subject to conditions. This would be particularly necessary if section 26(1)(g) National Water Act regulations do not provide adequate legal protection for water source areas. Such an amendment can also include an express provision that requires other organs of state to consider implications for water source areas in decisions made under other statutes.