NATIONAL ENVIRONMENTAL MANAGEMENT ACT (ACT NO 107, 1998)this is now outdated
The National Environmental Management Act of 1998 (NEMA), outlines measures that….”prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”
Of particular relevance are:
Chapter 1: National Environmental Management Principles:
4a) Sustainable development requires the consideration of all relevant factors including the following:
(i) That the disturbance of ecosystems and loss of biological diversity are avoided, or where they cannot be altogether avoided, are minimised and remedied:
(ii) That pollution and degradation of the environment are avoided, or where they cannot be altogether avoided, are minimised and remedied;
(iii) That the disturbance of landscapes and site that constitute the nation’s cultural heritage is avoided, or where it cannot be altogether avoided, is minimised and remedied;
(iv) That waste is avoided or where it cannot be altogether avoided, minimised and re-used or recycled where possible and otherwise disposed of in a responsible manner;
(v) That the use and exploitation of non-renewable natural resources is responsible and equitable, and takes into account the consequences of the depletion of the resource;
(vi) That the development, use and exploitation of renewable resources and the ecosystems o which they are part of not exceed the level beyond which their integrity is jeopardised;
(viii) That negative impact on the environment and on people’s environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimised and remedied.
4p) The cost of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimising further pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment.
4r) Sensitive, vulnerable, highly dynamic or stressed ecosystems, such as coastal shores, estuaries, wetlands, and similar systems require specific attention in management and planning procedures, especially where they are subject to significant human resource usage and development pressure.
Chapter 5: Integrated Environmental Management (IEM)
The principles of IEM must be followed through the assessment of the actual and potential impact on the environment and alternative options for mitigation against activities, with a view of minimising negative impacts, maximising benefits and promoting compliance with the principles of environmental management. The identification and assessment of actual or potential impacts of the proposed upgrade of the N1 and N2 on aquatic ecosystems within the study area are detailed in sections 5 and 6.
Chapter 7: Compliance, enforcement and protection, Part 1: Environmental Hazards:
Every person who causes, has caused or may cause, significant pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, or in so far as such harm to the environment is authorised by law or cannot be reasonably avoided or stopped, to minimise a rectify such pollution or degradation of the environment.
NATIONAL WATER ACT (ACT NO. 36, 1998)
Chapter 1: Interpretation and fundamental Principles:
Sustainability and equity are identified as central guiding principles in the protection, use, development, conservation, management and control of water resources.
Chapter 3: Protection of water resources:
“Part 4 deals with pollution prevention, and in particular the situation where pollution of a water resource occurs or might occur as a result of activities on land. The person who owns, controls, occupies or uses the land in question is responsible for taking measures to prevent pollution of water resources.”
“Part 5 deals with pollution of water resources following an emergency incident, such as an accident involving the spilling of a harmful substance that finds or may find its way into a water resource. The responsibility for remedying the situation rests with the person responsible for the incident or the substance involved.”
Chapter 4: Licensing
This chapter deals with water use and has particular relevance to the licensing of a new water use for construction purposes. In particular, section 21 indicates that water use includes:
- “taking water from a water resource” (section 21 (a) – This would apply to the proposed abstraction of water for construction. Appendix B1 includes comments for a similar situation provided by the Chief Director of Water use and Conservation, DWAF
- “impeding or diverting the flow of water in a watercourse” (Section 21 (c)) and “altering the bed, banks, course or characteristics of a watercourse” (Section 21 (I)). “ - Accordingly, any construction of bridges or culverts that impact on watercourses would legally require licensing of the water use. Comments regarding recent policy for dispensing with the requirement for a license for water use described in section 21 (c) and 21 (I) are provided in Appendix B2.
INTEGRATED METROPOLITAN ENVIRONMENTAL POLICY (IMEP)– OCTOBER 2001.
IMEP outlines …..”programmes and actions needed to ensure sustainable resource use and management of this (the City of Cape Town’s) unique environment for the benefit of all communities.”
Section 3.2 indicates …..“A commitment to an holistic approach to the environment and to protecting the City of Cape Town’s unique biodiversity. Further, a commitment to a special responsibility on behalf of the global community to ensure the conservation and protection of the CapeFloristicKingdom.”
Section 4.2 (Water Resources) is particularly relevant to this study because it highlights the City’s commitment to “ensuring that the quality of ….inland waters…. is suitable for the maintenance of biodiversity….”.
Section 4.4 (Fauna and flora) highlights the City’s commitment “the conservation of biodiversity….” Through a number of different avenues.
WATER QUALITY GUIDELINES
Interim national water quality guidelines for aquatic ecosystems have been developed for South Africa (DWAF 1996). These guidelines are used in water quality management as the primary source of reference information and decision support for the management and protection of aquatic ecosystems. Stringent water quality guidelines apply specifically to “Special Standards” Rivers. Special Standards Rivers relevant to this assessment include the Lourens, Eerste, Palmiet, Steenbras, Berg, Molenaars and HexRivers.
ENVIRONMENT CONSERVATION ACT (NO 73 OF 1989):
Section 16: Protected Natural Environments – the LourensRiver is a declared PNE and is therefore afforded protection accordingly.
Part V, Section 21 deals with the control of activities, which may have detrimental effects on the environment. Activities that may be identified in this regard and that are relevant to the development include: (b) water use and disposal
RAMSAR CONVENTION OF 1995.
South Africa became a signatory of the Convention on Wetlands in December 1975. The obligations of each signatory of the convention include the following:
To promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands, whether they are listed or not.
CONSERVATION OF AGRICULTURAL RESOURCES ACT (Act 43 of 1983)
Key aspects include legislation that allows for:
Section 6: Prescription of control measures relating to the utilisation and protection of vleis, marshes, water sponges and water courses. These measures are described in regulations promulgated in terms of the Act, as follows;
Regulation 7(1): Subject to the Water Act of 1956 (since amended to the Water Act 36 of 1998), no land user shall utilise the vegetation of a vlei, marsh or water sponge or within the flood area of a water course or within 10 m horizontally outside such flood area in a manner that causes or may cause the deterioration or damage to the natural agricultural resources.
Regulation 7(3) and (4): Unless written permission is obtained, no land user may drain or cultivate any vlei, marsh or water sponge or cultivate any land within the flood area or 10 m outside this area (unless already under cultivation).
Regulation 15B - Combating of category 2 plants(1):Category 2 plants may not occur on any land or inland water surface other than a demarcated area or a biological control reserve.
(8):A land user shall control any category 2 plants that occur on any land or inland water surface in contravention of the provisions of sub-regulation (1) by means of the methods prescribed in regulation 15E.
CapeNature Conservation Ordinance (Ordinance 19 of 1974; amended in 2000)
This ordinance provides measures to protect the natural of flora and fauna, as well as listing nature reserves in the Western Cape that are managed by the Western Cape Nature Conservation Board (WCNCB). This ordinance, with the Western Cape Nature Conservation Board Act of 1998 was amended in 2000 to become the Nature Conservation Laws Amendment Act. Lists of endangered flora and fauna can be found in this act. Chapter 5 refers to the protection of fish in inland waters.
Mountain Catchment Areas Act (Act 63 of 1970)
This Act makes provision for the conservation of water and soil resources in mountain catchment areas.
Forest Act (Act 122 of 1984)
Under this act, proclaimed demarcated State Forests are managed for the protection of biodiversity and the associated ecosystems. Withdrawal from demarcation has to be approved by cabinet. Both the Hottentots Holland Nature Reserve and a large portion of the "Core Zone" of the Kogelberg Biosphere Reserves are proclaimed StateForest, and the Department of Water Affairs and Forestry has tasked WCNCB with appropriate management of these areas.
International UNESCO “Man and the Biosphere” programme
Kogelberg Biosphere Reserve (KBR) was South Africa's first Biosphere Reserve proclaimed under the international UNESCO "Man and the Biosphere" programme.
Memorandum from the Chief Director of Water Use and Conservation (DWAF) providing relevant information for the use of water for road construction purposes
DWAF’s policy regarding water use licensing.
DIVISION OF WATER UTILISATION
(012) 336 8947J.J. WESSELS
(012) 336-8233
B2/1
B191/2
Chief Director: Water use and Conservation
POLICY FOR DISPENSING WITH THE REQUIREMENT FOR A LICENCE FOR:
(A)IMPEDING AND DIVERSION OF FLOW
(B)ALTERING THE BED, BANKS, COURSE OR CHARACTERISTICS OF A WATERCOURSE
INTRODUCTION
During July 1999 a draft General Authorisation regarding the impeding or diverting of flow and water quality aspects was circulated for comments and comprehensive inputs were made by the PITT and other stakeholders at that stage. It seems that up to date no further progress has been made to finalise this General Authorisation. The delay might be due to the fact that two different aspects i.e. water quality and impeding/diversion were lumped in one draft General Authorisation.
The Department is now receiving numerous enquiries and applications for licences for the impeding or diverting of flow. To be able to process these applications a preliminary Reserve has to be determined. In most cases this does not play any role in the management of the water resources. Most of these applications would not have been required if the General Authorisation were in place. The situation is also developing where local authorities, farmers, etc are continuing to build small diversion works, bridges or culverts that legally require licences. Due to ignorance or the fact that they do not consider these works to be of such significance that they require licences a large number of section 21(c) and (i) water users do not apply. It will be very difficult if not impossible to control this activity that does not have any valid influence on the water resources management purpose of the National Water Act, 1998(NWA). This of course makes mockery of the relevant portions of the NWA.
This matter was taken up with Director: Legal Services regarding a typical case of impeding of flow. Attached please find a copy of the answer on this matter. This memorandum has been drawn up to assist the Regions to deal with enquiries and applications regarding impeding of flow and the crossing of watercourses by pipelines and cables.
(A) IMPEDING OR DIVERTING OF THE FLOW
For the purposes of the NWA section 21(c), includes impeding or diverting of the flow of water in a watercourse[1] as a water use and therefore require registration for existing use or a licence for new use.
In a large number of cases it is doubtful if the small waterworks that might cause some impediment or diversion fall under the definition of “impeding flow” or “diverting flow” as was intended in the National Water Act, 1998. This is also the case in the requirement to register these works in the Registration process. There are thousands of bridges, culverts, small flood retention structures, embankments etc that should be registered if the relevant portion of the Act is literally interpreted that they probably fall within the definitions. Very few, if any, of these have yet been taken up in the WARMS. It is unlikely if it ever was the intention to register or regulate these works unless they could or would impact on quality or quantity of the water resources.
Seeing that the purpose of the NWA is to promote environmental values does not mean that this Act must encroach on the domain of the Environment Conservation Act, 1989 (ECA) and the National Environmental Management Act, 1998 (NEMA). All activities affecting the environment including the defined activities in section 21(c) are subject to the ECA and NEMA. The Agricultural Resources Protection Act also control activities in the wetlands and riparian zones. As any structure that impacts on the environment is dealt with under the ECA and NEMA this Department should only really deal with those matters that detrimentally impact on the availability and quality of water as this is the real intended purpose of the NWA.
In terms of section 22(3) of the NWA a responsible authority may dispense with the requirement for a licence for water use if it is satisfied that the purpose of this Act will be met by the grant of a licence, permit or other authorisation under any other law. It seems injudicious for this Department to venture into the expertise fields and controlling functions of other Departments under the pretext of managing the water resources and complying with the aims of the NWA where it is obvious that this Act is not the correct Act to reach the required goals.
RECOMMENDATION
It is recommended that under the powers delegated to the Chief Director: Water use and Conservation, you dispense with the requirement for a licence in terms of section 22(3) of the NWA if the following prerequisites are met.
(a)The diversion or impediment of flow does not impact detrimentally on any wetland or vlei or any other persons water use, property, land or water resource;
(b)the natural migration patterns of aquatic biota are not interfered with;
(c)the total or cumulative diversion of flow does not exceed 200 metres in length, measured from the beginning to the end of the diversion;
(d)the rate of flow is not reduced except for natural evaporation losses;
(e)during and after construction of the diversion structure no erosion or pollution due to the construction takes place;
(f)the water quality is not affected;
(g)all necessary measures are taken to stabilise the required structures and surrounding area.
(h)that the stream crossings, diversions or impediments comply with the requirements of the Environmental Conservation Act and the National Environmental Management Act;
(i)that the Regional Director is satisfied that the EIA complies with this Department’s requirements;
(B) ALTERING THE BED, BANKS, COURSE OR CHARACTERISTICS OF A WATERCOURSE
For the purposes of the NWA section 21(i), includes altering the bed, banks, course or characteristics of a watercourse as a water use.
Many crossings of streams and watercourses by electric cables, telephone cables, pipelines are undertaken daily by various local authorities, provincial authorities, mines, organisations and persons that temporally disturb the bed, banks, course or characteristics of a watercourse to lay the cables or pipelines. Most of these crossings take place by burying the cables or pipelines in cut and fill trenches. The cables or pipelines are placed so deep that they are not susceptible to erosion, water or flood damage. Most of the organisations etc undertaking these activities do have Environmental Management Plans to deal with the impact of such structures and most of them complies with the requirements of the Environmental Conservation Act and the National Environmental Management Act.
RECOMMENDATION
As these pipeline and cable crossing activities cannot be construed to affect the Reserve[2] or the water resources, in the above mentioned cases the altering of the bed, banks, course or characteristics of a watercourse can be dealt with in the same manner as suggested for the diversion etc. It is recommended that if the following prerequisites are met, you can dispense with the requirement for a licence[3].
(a)The altering the bed, banks, course or characteristics of a watercourse for pipeline and cable crossings does not impact detrimentally or any other persons water use, property, land or water resource;
(b)any altering the bed, banks, course or characteristics of a water course in any wetland or vlei will require a licence unless the works required are necessary to maintain or enhance the wetland ;
(c)the natural migration patterns of aquatic biota are not interfered with;
(d)the total or cumulative altering the bed, banks, course or characteristics of the watercourse for the crossing purposes does not exceed 10 metres in width over the watercourse, measured from the upstream to the downstream end of the construction in the watercourse[4];
(e)the rate of flow is not reduced except for natural evaporation losses;
(f)during and after construction of the crossing works no erosion or pollution due to the construction takes place;
(g)the water quality is not affected;
(h)all necessary measures are taken to restore the surrounding area and natural vegetation and all rubble is removed;
(i)that river crossings comply with the requirements of the Environmental Conservation Act and the National Environmental Management Act;
(j)that the Regional Director is satisfied that the EIA complies with this Department’s requirements;
(k)any peat, sand, gravel, stone, clay or other natural material removal, quarrying or mining within the 1:100 year floodline of any watercourse will be regarded as altering the bed, banks, course or characteristics of a water course and require a licence.