Commercial users of water must ensure that their water use is properly registered and validated in terms of the National Water Act No. 56 of 1998 (“the NWA”), which was enacted to ensure that the country’s water resources are protected, used, developed, conserved, managed and controlled in a manner that promotes equitability, efficiency and sustainability.
Existing lawful use:
People or organisations who were using raw water for commercial purposes, before the NWA came into effect in 1998, were permitted to continue using that water until such time as they were called upon to apply for a licence. The NWA authorises existing lawful water users to continue using water provided they were using the water lawfully during the two-year Qualifying Period (between 1996 and 1998) according to any laws that were in place at the time and complying with the requirements of the NWA. This includes registration of use, payment of water resource management charges and applying for verification of the entity’s existing lawful water use.
Water use registration:
One of the requirements of the NWA is that existing water users must register their water use/consumption with the Department of Water and Sanitation (“the DWS”). This requirement was published in the Government Gazette in terms of Section 26(1)c of the NWA. Users were made aware upon registration that the lawfulness of the water use is still to be determined during the validation and verification (“V&V”) process.
The registration process requires users to confirm the volume of water used in the Qualifying Period. Validation involves checking the correctness of registration forms submitted by users and ensuring that this information is entered onto the Water Authorisation and Registration Management System. This process also helps to link all water use to the specific property of the user.
The DWS makes use of the calculation (based on actual water use on the property) to draw up a water use table (validation table), which shows the area of forests or irrigation and the volume of water that was used in the Qualifying Period. The DWS makes use of this process for both the Qualifying Period and for actual current consumption by users. This information is also entered into the Water Use Tables.
The actual volume of water used in the Qualifying Period must comply with all laws applicable before 1996. Previous agreements/laws may have limited the use of water based on a fair share principle. The DWS uses the verification process to ensure that the actual volume of water used during the Qualifying Period is legitimate under the NWA or any other law applicable at the time. Any water used over and above the volume permitted during the Qualifying Period may be deemed as unlawful/illegitimate.
The verification process is an official procedure and has legal status. The objective of the verification process can therefore be summarised as the requirement to accomplish the finalisation of water use entitlement in order to allow for better management of the catchment.
Confirming your status as an Existing Lawful Water User:
The DWS makes use of the verification procedure to assist water users in registering for water use. Registration as a water user does not automatically confirm that the volume used by a water user is accurate, lawful and/or legitimate. Therefore, the DWS engages with water users to ascertain and certify the details of registered water use, through the process of verification.
Who runs the process?
The consulting engineers Aurecon were subcontracted to perform the V&V process. As part of the process, each water user was supposed to receive two documents; first a generic guideline on the process and second a set of forms relating to each specific property. The set of completed forms must be submitted to Aurecon, to take part in the V&V and to have the applicant’s water use declared legitimate. However, in March 2018 Aurecon ended their mandate. DWS has since been responsible for the V&V process.
Selling of a property:
If a property owner wants to sell its property, a certificate of verification is not required for transfer to take place. The water use will be transferred to the new owner of the property. The new owner can, if an application for validation and verification of water use has been received by the DWS, request a preliminary finding (if available) for the extent and lawfulness of the water use(s), to ensure that water use is lawful and to ascertain the extent of water use on the specific property. The new owner may also be subject to verification in future, and if some of the water use is unlawful, may be prohibited from using water at the property.
Must a seller notify the DWS?
The owner of a property must at all times inform the DWS of succession in title. As the V&V certificate will determine the water use cost on the property, it is of the utmost importance that the account is sent to the correct person as owner.
How to notify the DWS?
The DWS can only register a change of ownership once the change of ownership has been confirmed by the Deeds Office. If the new owner/user is an individual the requisite form to complete is DW756, for a company the forms DW758 and DW811 must be completed.
Is the Existing Lawful Use status of the property transferred to the new owner, or does the new owner have to re-apply for a verification certificate?
The Existing Lawful Use will be transferred upon succession in title, on receipt by the DWS of supporting information. A new document will be issued to the new owner.
Compulsory Licensing is the mechanism whereby the NWA allows the DWS to review all water use in a catchment area and to reallocate water if necessary. In time, Compulsory Licensing will be put in place in all catchment areas. The information gathered about water use for commercial purposes through the verification process is an essential foundation for the Compulsory Licensing process, as it will identify users. The information will also enable the DWS to terminate any unlawful use of water, and to identify opportunities for new, productive uses of water. It is important to recognise that certified Existing Lawful Use may be curtailed in a Compulsory Licensing process.
The DWS confirms that it is currently working through all applications submitted to it by Aurecon. All registered property owners/water users will be contacted and informed of the outcome once the application process has been finalised.