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Amended procedural necessities for water use licence functions have been drafted and revealed. Some proposals are constructive, though some will likely be onerous.
On 19 Could 2023, the Minister of Water and Sanitation revealed draft laws that may amend the procedural necessities for water use licence functions (WULA) and amendments beneath the Nationwide Water Act, 1998 (“NWA). The proposed modifications search to repeal and substitute the Water Use Licence Utility and Appeals Regulation, 2017 and suggest varied modifications to the executive regime. Some constructive and a few destructive impacts are envisaged.
Among the many most vital modifications, the proposed revised laws envisage:
A discount of the 300-day timeframe for processing WULAs to 90 days, allocating shorter timeframes to every of the appliance levels. Whereas it is a welcome change, the accountable authority is unlikely to stick to those decreased timeframes in follow. The proposed modifications expressly allow an extension of a prescribed timeframe whether it is affected by downtime of the e-WULAAS system (the extension may run indefinitely if the e-WULAAS stays down).
A brand new requirement in draft regulation 4(5), offering that the “[a]pplicant will need to have lawful entry to a property(ies) in respect to the appliance“. This new requirement will likely be onerous and could also be illegal because the NWA provides the State the fitting to grant rights to water, no matter possession.
A brand new draft regulation 4(6), offering that “[a] water use licence shall lapse if the holder fails to train the authorised actions inside three years after the issuance of the licence“. That is one other onerous provision, and no provision has been added to hunt the extension of this time restrict.
Draft regulation 5, which makes it a requirement to comply with an built-in WULA if the appliance requires authorisations when it comes to the Mineral and Petroleum Sources Growth Act, 2002 (MPRDA), Nationwide Environmental Administration Act, 1998 (NEMA) and or any particular Setting Administration Act (SEMA) to be obtained as properly. The WULA can thus solely be submitted after the opposite functions have been submitted. This proposal is, nevertheless, aligned with present processes.
Chapter 5 (Consideration of a Determination for WULAs to Promote Fairness and Redressing Previous Racial and Normal Discrimination) was added to deal with historic allocations of water (the place, in keeping with statistics drawn from WULs issued since 1998, 75.93% of water has been allotted to traditionally advantaged people, leaving solely 24.07% allotted to traditionally deprived people). Notable proposed modifications embrace (i) a requirement for the accountable authority to present desire to WULAs from black individuals (as outlined), adopted by girls; and (ii) for consumptive WULAs (i.e., NWA part s21(a), (b) and (d) water makes use of), candidates should show prescribed black shareholding necessities, topic to proposed permissible exemptions for mining and associated industries. Considerations have been raised that the B-BBEE shareholding necessities are onerous and past what’s required beneath different B-BBEE laws. It is usually unclear what mining-related actions / industries could be granted exemption in these circumstances.
Modification and renewal functions will likely be ruled by Chapters 6 (Utility for Early Renewal or Modification of a WUL) and seven (Processing of an Utility for Modification of a WUL), learn with Annexures B (Timeframes), G (Processing Charges) and J (Desk to be accomplished for amendments, with cowl letter and motivation). It is usually proposed that early renewal functions should be initiated not less than 250 days earlier than the WUL expires. That is the primary time there’s regulatory certainty across the process to be adopted for WUL amendments and renewals, and it’s a welcome change.
A brand new proposed draft regulation 19 (Safety by Applicant), which requires that sure candidates are required to supply safety for post-WUL rehabilitation. Such candidates will likely be required to signal a Deed of Suretyship, within the prescribed type, and it should be in place for not less than 5 years after the WUL actions have lapsed. Though the draft regulation proposes mining-related candidates must be exempt from this requirement, Annexure H II setting out the candidates which should adjust to this requirement expressly consists of mining-related actions in respect of NWA part 21(j) water makes use of.
A Chapter 10 (Public Participation) offering for the general public participation (PP) necessities for WULAs. The classes of functions for which PP should be carried out and the best way the PP should be carried out will likely be prescribed in Annexure C (Abstract of PPP required for various WULAs). These necessities should be carried out collectively with any necessities for authorisations when it comes to the MPRDA, NEMA and any SEMA. The brand new PP necessities are normal and will likely be achieved in any built-in allowing software. A notable proposed provision is that draft regulation 24 (Functions in properties beneath land declare) offers that, if there’s a gazetted land declare over a property, the applicant should acquire written feedback from the land claimants and Land Claims Commissioner, which should point out whether or not or not they object to the granting of the WULA.
Chapter 9 (Switch of water use authorisations) is launched to stipulate the method for the non permanent switch of a water use entitlement when it comes to part 25 of the NWA, following the Constitutional Courtroom judgment handed down in Minister of Water and Sanitation v Lotter N.O on 15 March 2023. The CC discovered that discovered that (i) within the context of part 41 WULAs, holders could, on request by the water administration establishment, switch their water use entitlements to 3rd events to permit use of some or all of that water on one other property in the identical neighborhood for a similar or comparable objective; (ii) a holder could give up half, or all, of that water use entitlement to facilitate a specific WULA for using water from the identical useful resource in respect of different land for a similar or comparable objective, with the situation of such a give up being that it solely turns into efficient when such WULA is granted by the authorities and switch could also be topic to an inserted situation within the WUL that, upon the success of a WULA by a 3rd get together (the brand new licensee), the brand new licensee will likely be liable to pay a charge to the previous licensee; and (iii) there isn’t any provision which expressly prohibits buying and selling in water use entitlements between personal people. Whereas the proposed new Chapter 9 within the draft laws clarifies the place to some extent, it’s notably transient within the context of the CC’s judgment and the acknowledged objective of the revised laws. In future, there could also be abuses of the broad ambit of part 25 as a result of transactional nature of this part, the place holders could use this interpretation to leverage a premium quantity when promoting their farms to make exorbitant earnings, thus additional entrenching inequality.
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