The National Water Act 36 of 1998

The National Water Act 36 of 1998

According to The National Water Act 36 of 1998, owning land with any type of water resource does not give an automatic right to use the water. All water use is approved by the Department of Water and Sanitation by general authorization (meaning that the Department recognizes water rights before the Act became law) or by issuance of a licence to use the water which has been applied for by the person wanting to use the water.  A water resource includes, rivers, streams, groundwater and surface water.

Domestic use of water (under 2000 cm3/per annum) is exempt from the requirements of the Act.

What does the Act consider to be water use?

There are eleven water use activities identified by the Act, and a water use licence is required for each one. These are,

• taking water from a water resource, for example a borehole or taking water from a river

• storing water, e.g: Construction of a dam

• impeding or diverting the flow of water in a water course

• engaging in a stream flow activity reduction activity, for example, planting of pine trees

• engaging in a controlled activity like irrigation with waste water generated through an industrial activity

• discharging of waste or water containing waste into a water resource

• disposing of waste in a manner that may detrimentally impact on a water resource

• disposing in any manner of water which contains waste which has been heated in any industrial process

• altering the beds, banks course or characteristics of a watercourse

• removing, discharging or disposing of water found underground if necessary for the continuance of an activity or for the safety of people

• using water for recreational purposes

Who is affected?

This Act impacts homeowners, property developers, farmers and major industries. However it is important to bear in mind that, Being a legal water user has advantages,  for example it would  increase the value of a property should one wish to sell a business that depends on the utilization of water.

New water applicants should be aware that there is a requirement that the person applying for water rights comply with the requirements of BBBEE and Employment Equity, as the act requires what is called a Section 27 motivation, that as the question, "How has the applicant redressed the past results of gender and racial discrimination?"

How much does it cost? 

The cost of applying for a licence can be anything between R 30 000 and R100 000 or more depending on the complexity of the licence specifically the costs of hydrogeologists and other specialists needed to compile a report in support of the application.

Katika offers an in-house service of lawyers who compile these water rights applications including the Section 27 motivation.