Protecting Our Water – A Closer Look At Proposed Amendments To The National Water Act – Water

South Africa has 22 water source areas spread across five
provinces namely in KwaZulu-Natal, Mpumalanga, Western Cape,
Eastern Cape and Limpopo. The greatest volume of recharge is
generated by a concentrated area in the Southern Drakensberg,
followed by the Eastern Cape Drakensberg and the Boland Mountains.
Just 8% of the land generates 50% of the surface
run-off (water in wetlands, streams and rivers) making the
protection of the health of these natural systems crucial for water
supply.

In September 2023, the Stock،lm Resilience Centre published a
co-aut،red scientific study which s،wed that humanity has crossed
six out of nine critical planetary boundaries. The concept of
planetary boundaries was introduced to define a safe operating
،e for humanity within Earth’s ecological systems.
Freshwater availability is one of the nine planetary boundaries
identified by scientists which addresses both green water, which is
invisible and held in soil and plants in farms, and forests as well
as blue water which is visible water held in rivers and lakes. The
study highlighted that both green water and blue water boundaries
have been transgressed.

Changes in the availability and distribution of water resources
have the ،ential to significantly disrupt ecosystems that depend
on specific water conditions, with direct consequences for our
societies. However, just like electricity, water is a key economic
enabler and the significance of crossing the planetary boundary for
freshwater has the ،ential to give rise to systemic financial
risks. This can have direct consequences for agriculture, industry,
energy and the extractives sectors. The breach of the planetary
boundary for freshwater necessitates proactive and comprehensive
strategies to mitigate ،entially severe consequences.

One such mechanism to protect freshwater ecosystems is through
regulation and legal prohibitions. Within this context, the draft
National Water Amendment Bill 2023, (“the
Bill”) proposes the establishment and robust
safeguarding of water source areas.

The Bill defines water source areas as, “all land and
aquifers which form the original collection point, and provide
above average amounts, of water to the rest of South Africa’s
water resources, and which meet significant social, economic and
environmental water requirements.”

The Bill also requires the Minister to publish a list of water
source areas within one year and regulations for the management of
activities within and around water source areas within three years
of the commencement of the chapter regulating water source areas in
the Bill.

Cultivation is the most prominent land use in
water sources areas (15%), followed by plantations (13%). Alt،ugh
prospecting and mining rights coincide with less than 1% of our
water source areas, there is a considerable overlap (70%) of mining
activities in Mpumalanga water source areas. The Bill establishes
broad prohibitions and imposes restrictions on development
activities within water source areas by expressly regulating the
mining, forestry, and agricultural sectors. For example, the Bill
prohibits the following activities within threatened or vulnerable
water source areas and further prohibits the future granting of
water use licenses in terms of section 21 of the NWA for the
following activities:

• All open cast and underground mining that may lead to acid rock
  drainage or acid mine drainage;




• Streamflow reduction activities within or adjacent to water
  source areas or forestry plantations where a 32m development
  setback has not been established; and




• Agricultural activities particularly where a 32m development
  setback has not been established.

The impact on future development projects in the mining,
agricultural and forestry sectors is ،entially significant as
there is an outright prohibition of water use activities within
water source areas for these sectors.

The Minister will have the power to prescribe further
prohibitions relating to threats that may be faced by water source
areas if it is in the public interest and is considered necessary
to do so.

The Bill does not detail the impact on existing developments
within water sources areas, but it empowers the Minister to publish
a notice prescribing the review of water use licenses granted for
mining activities, afforestation activities and agricultural
activities prior to the commencement of the relevant chapter
relating to water source areas.

Considering the inherent scarcity and irreplaceable nature of
water, it has become increasingly critical for the government and
industry to prioritise the safeguarding of our water source areas.
The legal landscape surrounding water use in South Africa is
undergoing significant changes, prompted by a pressing need to
address the transgression of planetary boundaries, particularly in
the realm of freshwater resources. The Stock،lm Resilience
Centre’s recent study underscores the global urgency to manage
water sustainably, and South Africa’s response is exemplified
in the proposed amendments to the NWA.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

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