Update on water law -- comments on 4th draft of Water Bill
The National Water Policy for South Africa was published in April of this year and contains a sound environmental basis for
the integrated management of South Africa's water resources. The fourth draft of the Water Bill was available for comment
until the end of October here follow the comments which I made on behalf of SASAQS and as a member of the Water Advisory
Council. (The 4th Draft of the Bill can be found on the net:
http://wn.apc.org/afwater/waterbill.htm.
The root of all these
pages is the Southern Africa Environment Page:
http://www.ru.ac.za/saep/saep.html).
The fifth draft will be completed by
the end of November and after very limited consultation will go through final checks and be submitted to the Portfolio
Committee in January where it will be open for debate. It is hoped that the bill will go through parliament in its last session
before the election in July next year.
Comments submitted to Judge Antonie Gildenhuys, chairman of the Drafting Teams, on
behalf of SASAQS:
General
1. One of the underlying precepts of the Bill is that water resources have to be used - for water supply (domestic use, recreation and economic development), waste disposal, product harvesting and recreation. But that since water resources are limited, both spatially and temporally, protection is necessary (to ensure both current and future use) (Section 6.3. White Paper on a National Water Policy)
This dual, and mutually dependent, aim: Protection and Use, should ring clearly through out the Bill, and many of my individual comments address this.
2. The structure of the Bill:
Water resource (the resource - rather than just the water) quality management (Ch 6) is completely separate from the section on protection (Ch 3).
I suggest a chapter on Resource Protection - which would include sections on Resource Management (Classification, the Reserve, Resource quality objectives), and a chapter on Resource Use - which would include sections on impact source controls (water quality, physical impacts, pollution ) and allocation.
If the current structure is left, the explanatory chapter introduction sections should be used more effectively to make the connection between quality management and the reserve etc. (drafts of possible Chapter introductions are included in detailed comments which follow).
3. The very useful Chapter introductions should be used to link aspects of the Bill. For example the section on Catchment Management should be linked to the section on Inter-basin transfers.
4. In the Policy White Paper 'beneficial' use was extended to 'optimum' use, and the concept of optimum use carefully explained (Section 4.2, White Paper) - this should be reflected in the Bill (at present there are frequent references to beneficial use, and little mention of optimum use).
5. I fully agree with the Bill treating surface and ground water as an integrated resource - but some way needs to be found to indicate critical groundwater issues (Section 6.2.4 - White Paper on a National Water Policy). I hope that somewhere there will be a prohibition on irrigation from ground water (which could be phased in).
6. Integrated Catchment Management is a difficult, complex, but important goal for water resource management. The new law should emphasise that in the interim period, during the establishment of Catchment Management Agencies, a high percentage of the effectiveness of good catchment management could be achieved by good riparian zone management -- the law should provide the tools for effective control over activities in this most sensitive zone. (See 19c in the Specific comments which follow.)
7. I have commented in most detail on Chapter 3, but Chapter 6 is also of great concern because at present it simply
presents the status quo in more accessible language rather than any new approach to resource quality management.
Specific
Initial introduction:
Sec. Comment
Intro The concept is that the law will govern water resource custodianship using the dual approach of
protection (so that use can be optimal, equitable and sustainable) and
use (all categories of use)
therefore the introduction could read:
To provide for changes in and a consolidation of existing legislation and the common law relating to the control and use of water; to provide for the protection of the nation's water resources and for the equitable, optimal and sustainable use of water resources; and therefore to provide for the development, conservation, management and control of water resources, together with the supply of water; ....
Add in:
Recognising that optimum and sustainable resource use depends on resource protection.
DIVISION I CHAPTER 1 -- INTRODUCTORY PROVISIONS
Section Comment
1a promote the efficient, sustainable optimum use of water....
2(1) v b replace with: does not change the classification status of the water resource.
2(1)v add definition of optimum use after that of beneficial use:
'Optimum resource use' is the preferred resource use where more than one 'beneficial' use of the water resource is possible, but the resource is limited. The use which best serves the integrated environmental social and economic benefit to society is the 'optimum resource use'.
2(1)ix 'Conservation' means all methods of reducing water use by demand management, including clearing aliens in catchments and applying value- related water tariffs.
2(1)xvii yes to alternative wording for groundwater
2(1)xxivb merge ii & iii because 'any other...life' includes plants etc
ii) animals, birds, wildlife, fish, plants, micro-organisms or any other aquatic or non-aquatic life-forms.
2(1)xxvi 'riverine environment' means the ecosystem of the river including its biota and physical structure.
2(1)xxxi yes
2(1)xxxv 'water resource' includes the quality and/or quantity of the whole or part of any water course, underground water, estuary, lake, wetland, dam, or the coastal marine environment; where 'part' includes a specific area or distance and/or the water, the sediments, adjacent vegetation and biota).
Additional definitions needed:
'aquatic ecosystem' includes natural and modified systems including lakes, dams, wetlands, rivers, estuaries and coastal marine waters where the water, sediments, adjacent vegetation and all included living organisms are part of the ecosystem.
'protection' means the management of an aquatic ecosystem with the aim of achieving a defined state of health with due recognition of the needs of future generations.
'Riparian zone' means that region where the vegetation which characterises the edge of watercourse and which affects hydrological and ecological processes in the water course is found.
'Habitat' means the physical characteristics which specific organisms require in order to thrive in aquatic ecosystems.
CHAPTER 2 -- FUNDAMENTAL PROVISIONS
Sec. Comment
3 This chapter confirms the Minister's role as custodian of the nation's water resources and places a duty on the Minister to take all action necessary to ensure the appropriate protection of water resources so as to be able to ensure their equitable, optimum and sustainable use through management activities such as the development, conservation, and control of water resources. Such actions should begin in areas designated as priorities, with the ultimate aim of national coverage.
Section Comment
4 Yes to alternative drafting, with following change:
4.(2)a iii secure equitable, efficient and environmentally sound water use, in the light of evolving information, technology and socio-economic values, through appropriate resource protection; and
5 (3) it is important to be consistent about managing and legislating for the resource not just the water:
All authority which a person may have to use a water resource derives from this act
5(3)c to affect the quality of any water resource
6 *This is the section on fundamental principles, so the Reserve applies to all water resources not just 'significant' ones, so the heading should be general, and the opening line indicate prioritisation. 'Significant' is not a good term at it indicates other resources are insignificant, 'designated' is the term used in Chapter 4 Section 39 - and any term should be used consistently, so I have used it in my suggested wording. 'Designated' is adequate, other possibilities are 'focus' and 'priority'.
*This is the first mention of the Reserve and it needs to be accurate and reasonably complete, this is particularly
important as the next section which deals with the Reserve, and which will be based on this, is the determination in Ch
3 (11).
Basic determinations in respect of water resources
The Minister must, as soon as reasonably practicable, starting with designated water resources in every management area, cause to be determined --
6 a the quality, quantity and reliability of water necessary for supplying basic human needs and for protecting ecosystems to secure ecologically sustainable use and development of water resources, to be known as 'the Reserve';
see note
6 c water available for allocation is for existing and potential users/uses: the water available for development and allocation
to water uses
DIVISION II: MANAGEMENT AND USE OF WATER RESOURCES
CHAPTER 3 -- CATCHMENT MANAGEMENT
Sec. Comment
8 Providing a logical set of steps and then to say they do not have to be sequential is confusing. This section contains many new concepts and it would be useful to show how they are linked. The introduction should also tackle the difficult question of governance:
Sec. Comment
8 Integrated catchment management fosters cooperative and consensual techniques to manage water, land and other interdependent attributes of every catchment. Management activities which will contribute to integrated catchment management, and which will also, concurrently, contribute to water resource management include the following: 1) the division of the Republic into management areas that follow as closely as possible catchment or sub-catchment boundaries; 2) the classification of water resources, starting with areas of greatest resource pressure which are defined as 'designated areas', where the aim of classification is to provide clear management goals for both water resource protection and use; 3) determination of the Reserve, with respect both to the water quantities and resource quality required for basic human use and the maintenance of aquatic ecosystems in the state of health determined by the classification procedure; 4) determination of relevant and appropriate resource quality objectives so as to have specific management goals which relate to the classification status and the Reserve for particular water resources or parts thereof; 5) preparation of water allocation plans in two phases, so that the need to make allocative arrangement s before classification procedures are complete and Reserve and resource quality objectives are in place is accommodated; and the need to review these as and when such information is available , are both taken into account; and 6) the development of strategies to guide future decisions about the appropriate protection of water resources so as to be able to ensure their equitable, optimum and sustainable use through management activities such as the development, conservation, and control of water resources. Catchment management will, of necessity take into account those provision made in this Act for Inter-basin Transfers.
10 Note ICM is based on the policy of 'an indivisible resource' and that existing structures such as local government, irrigation and water boards and water committees should form part of the governance.
11 This part requires the Minister to develop a system for classifying water resources, and to classify all, or part, of any
water resource, starting with water resources designated by the Minister. Once all or part of a designated water
resource is classified, various attributes of its class which influence, for example the Reserve, the purpose for which
adjacent land may be used, or the measures required to protect and improve water resource quality, become binding
on all authorities when exercising their statutory powers.
12 (2) b establish procedures to account for the water resource quality requirements of water uses, within the constraints of the Reserve;
13 Classification of designated water resources
14(3) what does 'formal' mean. ?
16(2) The Reserve must ensure the water quantity, pattern of flow, water resource quality and the physical structure of ecosystems -
16(2 ) The Minister must determine which water resources are designated for the purposes of this section.
19c this is not an appropriate place to specify 'riparian environment - especially as resource quality objectives will apply to all aquatic ecosystems rather than just rivers:
the character and condition of the riparian zone and instream habitats; and
20 Establishing resource quality objectives for a designated water resource
20(2)e) the characteristics of the riparian zone, and the instream habitats of the water resource
23 It is not easy to see how the determination of classification status, the Reserve and Resource quality objectives are catered for in this section:
This part sets out how water resources that require water allocation plans will accommodate the need for classification, the determination of the Reserve and of resource quality objectives. Provision is made for preliminary allocation plans to be made in the absence of classification, determination of the Reserve, or the setting of resource quality objectives, to be followed by a revised allocation plan once those determinations have been made. Thus the section sets out what must be included in water allocation plans, how they will be adopted, and when and under what circumstances they must be reviewed.
24 (3) if possible I would like to discuss this section with drafting team.
Part 6 yes 'integrated' should be part of this.
28 add in water allocation plans and inter-basin transfers are elements of this strategy.
CHAPTER 4 -- ABSTRACTION AND STORAGE CONTROL
34 Replace 'beneficial' with 'optimum' (End of Para 1)
CHAPTER 6 -- IMPACTS ON AND DISCHARGES TO WATER RESOURCES
This is a critical section of the Bill which does not yet reflect the most current thinking on water resource quality managements, rather it seems to be simply a more accessible form of the current system of general and special standards. Having completed comments mainly on Chapter 3, I spoke to Dr van Vliet, head of the resource quality task team. I understand he has offered the drafting team an alternative to the current Chapter 6 . I encourage the drafting team to consider this seriously, and if they do, I would very much like to comment on it.
Some key issues are: the inclusion of the precautionary principle, and the use of economic incentives and penalties (Principle 16 of the Water Resource Policy white paper.
It therefore makes sense that the new law should encompass the possibility of wide ranging quality management. Current Department capacity may be limited but rather than limiting future possibilities for better capacity, the law should set out the goals, with interim provision that take into account the limitations of current capacity. Therefore it makes sense to have all impacts governed by law, but initially to provide for the majority by general licence - which can be made more specific as and when necessary.
-- Tally Palmer