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WATER SERVICES ACT AND NATIONAL WATER ACT

- 1 - Norman Brauteseth & AssociatesATTORNEYS

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NOTES ON THE WATER SERVICES ACT, 108 OF 1997, AND

THE NATIONAL WATER ACT, 36 OF 1998

  1. Introduction
    The National Water Act forms a duet with the Water Services Act in regard to the water management regime in the Republic. The Water Services Act provides the mechanisms for ensuring that all South Africans have access to a basic water supply and sanitation. That right is re-inforced by the duty which the Act places upon every municipality to realise those rights and to provide the conditions under which water services are provided to the affected communities. All municipalities (water services authorities in terms of the Act) are obliged to comply with the National Water Act in abstracting and using water, or disposing of effluent, by way of authorisations under the Act. The Minister is empowered to set standards and tariffs for the provision of water services across the Republic and if municipalities fail to plan for and provide extensions to their water services, both the national and provincial governments are empowered to step in and to make such provision ultimately at the cost of the municipality.
    The Act also governs the activities of water boards, water services providers (those providing water services to consumers) and water services intermediaries (those contracted to provide water services). Part of the supply-side of the water equation is specifically provided under the Water Services Act, in that municipalities are required to prepare water services development plans (for the future provision of water services) and water boards are required to prepare policy statements and business plans covering their proposed tariffs and forecasts of capital expenditure. Both sets of institutions are required to report regularly on their performance in terms of their plans.
  1. Understanding the approach to Water Services provision in the Water Services Act
  2. The primary objective of the Act is to ensure that everyone has access to the basic water supply and sanitation services necessary for human health and well-being (s.2). This is enshrined as a right in section 3, and a duty is imposed upon every water services institution to take “reasonable measures” to realise those rights. As a consequence, section 4 sets out a number of conditions by which a service provider must provide water services. They revolve around accessibility to the public, the promulgation of by-laws at local government level, technical specifications of supply, tariff structuring, conditions for payment, conditions under which services may be limited or discontinued, due process for discontinuing water services, and measures to promote water conservation and demand management. This is a key section for understanding the broad framework under which local government and other water services institutionsmust meet their obligations under the Act.
  3. Key Role of nominated water services provider
    Section 6 provides that no person may use water services from a source other than a water services provider nominated by the water services authority having jurisdiction in the area in question, without the approval of that water services authority. Water services are defined as “water supply services” and “sanitation services”. Water supply services are in turn defined as the “abstraction, conveyance, treatment and distribution of potable water, water intended to be converted to potable water or water for commercial use but not water for industrial use”.
    There is a savings clause (s. 6(2)) which allows a person who at the commencement of the Act was using water services from a source other than a nominated authority, to do so for a period of 60 days after the water services authority has requested it to apply for approval and if it has applied for approval for 60 days after the application has been decided upon.
  4. Industrial use of water
    Section 7 provides that no person may obtain water for industrial use from any source other than the distribution system of a water services provider nominated by the water services authority having jurisdiction in the area in question, without the approval of that water services authority. Equally critical is the provision in section 7(2) that no person may dispose of industrial effluent in any manner other than that approved by the nominated water services provider. That stipulation is however subject to a savings clause similar to that referred to in respect of potable water: 60 days after being notified to apply for approval, and then a reasonable period after the application is refused. Importantly, no approval given under section 7 relieves the user from having to comply with any other law (e.g. the National Water Act). Section 8 stipulates that the water services authority must act reasonably in considering an application for approval, and there is a right of appeal. Very importantly, a person seeking approval may be required to provide water service to other people on “reasonable terms” including terms relating to “the payment of services” and “compensation for the cost of reticulation and any other costs in providing the water service” (s. 8(2)).
  5. Standards and Tariffs
    The Minister has power under section 9(1) to prescribe compulsory national standards relating to the provision of water services. These relate also to the quality of water, and the standards may differentiate geographically and between different users. In prescribing standards the Minister must have regard to eight overriding principles (s. 9(3)).
    In terms of section 10, the Minister may set norms and standards in respect of tariffs for water services. Importantly, these may differentiate “on an equitable basis” between different users, different types of water services and between different geographical areas. The Minister may place limitations on surplus or profit, on the use of income generated by the recovery of charges and may provide tariffs to be used to promote or achieve water conservation. Once again, the Minister is obliged to take certain factors into account in prescribing norms and standards including social equity, financial sustainability of the water services, the recovery of costs reasonably associated with providing the water services, the “redemption period of any loans” and the “need for a return on capital invested”. Furthermore, he must consider as one of the factors the need to provide for “drought and excess water availability”.
  6. Duties of water services authorities
    Chapter III sets out the duties of water services authorities (s. 11) including the preparation of water services development plans (s. 12 – 18).
  7. Contract with the water services providers
    Section 19 of the Act provides a means by which a water services authority, if it does not wish to perform the functions of a water services provider itself, may enter into a written contract with the water services provider, or form a joint venture with another water services institution, or contract with a private sector water services provider. However it may only do the latter once it has “considered all known public sector water services providers which are willing and able to perform the relevant functions”. All of this must be done by way of a public exercise, with full disclosure of any private interests.
  8. Duties
    Chapters IV and V deal with the responsibilities of water services providers and water services intermediaries.
  9. Water Boards
    Sections 28 to 50 deal very comprehensively with the roles and functions of Water Boards. The most salient points are the following :
  10. It is the Minister that establishes a Water Board;
  11. The primary activity of a Water Board is to provide water services to other water services institutions within its service area;
  12. The Water Board may perform an activity other than its primary activity only in defined circumstances;
  13. A Water Board may set and enforce general conditions including tariffs for the provision of water services;
  14. A Water Board may enter into contracts with any person in terms of which that person undertakes and is authorised to exercise any of the powers or to perform any of the duties of the Water Board (except setting general conditions and tariffs);
  15. A Water Board may set conditions for the provisions of services which are either set generally or agreed specifically;
  16. Before setting general conditions a Water Board must invite comment from other institutions, consumers and users;
  17. Every person who then uses services provided by a Water Board does so subject to any applicable general conditions set by that Board unless specifically agreed otherwise;
  18. A Water Board must prepare and adopt a policy statement and a business plan;
  19. The Minister may issue directives to a Water Board and a Water Board must strictly account and report in accordance with the provisions of the Act.
  20. Water Services Committees
    These committees are established under Chapter VII of the Act. The Minister establishes them by gazette, after consultation (s. 51). No water services committee may be established if the water services authority concerned is able to provide water services effectively in the proposed service area. The function of the water services committee is to provide water services to consumers within its service area.
  21. Monitoring and intervention
    As already stated, both the National Minister and the Provincial MEC have the power to intervene and take over the functions of a water services authority if it has not effectively performed any function imposed on it under the Act. This is obviously only done in defined circumstances, and section 63 sets those out. The Minister’s other powers are established under Chapter XI of the Act.

3.An Understanding of the Definitions in the National Water Act

It is important, before embarking on the Act, to understand the terminology utilised in the Act (s. 1).

Water is itself not defined. Many of the environments in which water is found are, however, defined, in particular an acquifer, a borehole, an estuary, a water course, and a wetland. These definitions are not particularly problematic except that it must be noted that in regard to the water course, it may include :

“any collection of water which the Minister may, by notice in the Gazette, declare to be a water course, and a reference to a water course includes, where relevant, its bed and banks”.

Also defined are the terms catchment, instream habitat and riparian habitat. Those familiar with the 1956 Water Act will immediately discern that this Act is concerned not just with water as a resource, but with the habitat in which it is found, and with which it has an intimate relationship.

Perhaps the most important definition is that of water resource, which, as you will see includes a water course, surface water, estuary or acquifer.

Two final notes must be made in regard to the definitions. The first is that, in terms of sub-section 1(3), the Act is required to be interpreted in a way which is consistent with the purpose of the Act as stated in section 2.

4.A summary of the provisions of the National Water Act

As just observed, the purpose of the Act is set out in section 2. You will note that the Act has a clear socio-political objective which includes the promotion of equitable access to water, redressing the results of past racial and gender discrimination and facilitating social and economic development. However it also has an environmental aim which is to protect equatic and associated ecosystems and their biological diversity, and to reduce and prevent pollution and the degradation of water resources.

5.The Trust Concept

The single biggest paradigm shift from the 1956 Act, is the concept of the National Trust.

Section 3 provides quite explicitly that the national Government is the public trustee of the nation’s water resources. As such it is responsible, through the Minister, for all aspects of water management and water use including water allocation, and the national Government furthermore has the power to :

“regulate the use, flow and control of all water in the Republic”.

The primary distinction therefore, between private water and public water, enshrined in the 1956 Act, has been abolished and no person can claim “ownership” of any water, wherever it may arise or be found.

6.The Water Management Regime

Water management is effected by way of management strategies, firstly at the national level by way of national water resource strategies (s.5), and secondly at the catchment level by way of catchment management strategies (s.8). The first, the national water resource strategy, is prepared by the Minister through a public consultation process. The contents of the national water resource strategy are set out in section 6 of the Act, and it will be noted that -

(i)they are primarily planning documents (ss (1)(a));

(ii)they incorporate compulsory national standards under the Water Services Act as well as water quality objectives;

(iii)provide for broad “reservations” of water in various resources (ss (1)(b));

(iv)establish water management areas, lay down the framework objectives for water resource management institutions.

Catchment management strategies are determined by Catchment Management Agencies and apply within particular water management areas (s.8). They can only be established with the written consent of the Minister, after a public consultation process. The requirements for a catchment management strategy are set out in section 9, and include -

(i)harmonisation with the national water resource strategy including the requirements for the class of water resources (s.12) and resource quality objectives;

(ii)the strategies and objectives for all aspects of water management in the area;

(iii)water allocation plans including the principles for water allocation;

(iv)the requirement that they take cognisance of the needs and expectations of “existing and potential water users” for the institutions which are to be established.

Not only must a catchment management strategy obtain the written consent of the Minister, but in terms of section 10, the Minister can establish guidelines for the preparation of the CM strategies.

These strategies are not merely policy documents. In terms of sections 7 and 11, these strategies have binding force, although different in extent.

7.Protection of Water Resources

Chapter 3 of the Act contains a series of measures intended to protect all water resources. Those measures consist of three management measures, and two reactive measures. The management measures consist of a classification system for water resources, the determination of resource quality objectives and the determination of the Reserve. The reactive measures consist of a pollution prevention or remediation regime.

7.1Classification System

The Minister is required to prescribe a system for classifying water resources (s.12). The national system so established must provide guidelines and procedures for determining different classes of water resources as well as ancillary procedures such as determining the Reserve, satisfying water quality requirements of water users, and, importantly, setting water uses for instream and land-based activities.

7.2Resource Quality Objectives

Once the classification system has been established by the Minister he is required to classify every significant water resource and set resource quality objectives for it in accordance with its class (s.13). That determination is achieved by publication of a notice in the Gazette which must state the geographical area in respect of which the resource quality objectives will apply and the requirements for achieving the objectives.

Note that the objectives may relate to a number of issues including the Reserve, instream flow, water level, the presence and concentration of particular substances, the instream and riparian habitat, acquatic biota and the “regulation or prohibition of instream or land-based activities which may affect the quantity of water in or quality of the water resource”.

These objectives are only gazetted after a public consultation process.

7.3Determination of the Reserve

Once the Minister has classified a water resource (not just a “significant” water resource”), he may determine the Reserve for all or part of that water resource. That is done in accordance with its class, and making adequate allowance for each component of the Reserve. This determination is also done by public notice.

There are two particular notes on these three measures. The first is the explicit control which can be exercised over land-based activities. This has a bearing on the vexed question of agricultural “land zoning”.

The second is the concept of the Reserve. It will be noted from the definitions of the Reserve (an element brought in to water management thinking for the first time in this Act), that it is that quantity and quality of water which is firstly required to satisfy basic human needs and secondly protect acquatic ecosystems. In terms of section 18, the determination of the reserve is binding on all organs of the state, and may not be allocated to third parties. Where any person has a claim for compensation arising from a reduction in authorised water use (s. 22(6)), such compensation must ignore the amount of the reduction caused by providing for the Reserve.