Having a Water Use Registration Certificates in place does not mean that the registered water uses which are undertaken by your business are lawful.
Avoid exposing your business to the risk of prosecution, the payment of significant penalties and reputational damage by ensuring that your businesses water uses are appropriately registered and authorised in terms of the National Water Act, 1998 (NWA).
Supplied by Webber Wentzel
We recently almost saw a sale of shares transaction being scuppered as a result of a water use registration certificate issue.
Don’t get caught unaware!
The NWA requires all uses to be authorised in terms of a water use licence, unless the water use:
- constitutes a "Schedule 1 use", which includes uses which are undertaken for domestic purposes and general stock watering
- falls within the ambit of a General Authorisation which permits use subject to certain conditions without a licence; or
- constitutes an "existing lawful use", meaning that the use was lawfully undertaken any time during a period of two years before the NWA came into force i.e. from 1 October 1996. Many clients make the mistake of thinking that because their uses have been registered on the Department of Water and Sanitation (DWS)'s database (called WARMS), that these water uses are lawful and do not need to be licenced in terms of the NWA.
The registration of a water use license is not an entitlement to use it and does not mean that the use is being lawfully undertaken.
The requirement to register existing uses which were being undertaken when the NWA came into force was primarily imposed in terms of the Water Use Registration Regulations in 1999.
New users (i.e. those uses that were undertaken after the NWA was promulgated in 1999), are, however, also required to register their uses in terms of certain General Authorisations that have been published in terms of the NWA.
The registration of uses simply enables the DWS to better understand who is using it, where it is being used, what it is being used for, and how much of it is being used in South Africa.
This is purely an administrative process, it does not act as proof of the lawfulness of the registered water use.
In order to determine whether an existing water use license which has been registered with the DWS is lawful, a validation and verification exercise must be undertaken.
The DWS should issue a notice, under section 35(1) of the NWA to call on the registered existing waster user to verify the use.
In practice not many such notices have been issued and we believe that registered existing users should be taking more proactive steps to approach the DWS to request the validation and verification of their registered uses.
How is this done?
If you don’t have a permit, historical Water Court order or some other proof of lawfulness prior to the NWA coming into force, you will need to prove that you qualify as an 'existing lawful user'.
This can be a tricky process and it may require the submission of a part-technical, part-legal report to prove the lawfulness of your registered use.
Very often land surveying is required, detailed design drawings of dams and historic aerial photography is needed to prove that use was exercised after 1 October 1996.
The purpose of the report is to determine if the volume of water that was registered is accurate (validation) and that the volume that was registered was lawful under previous legislation (verification).
If the registered use is found to be unlawful, then the user will not be permitted to continue with that use without obtaining authorisation under the NWA.
The user will also have committed an offence in terms of the NWA and could be liable to a fine and/or period of imprisonment if successfully prosecuted.