The Minister of Water and Sanitation (“the Minister”) has recently declared the following activity to be a controlled activity in terms of section 38(1) of the National Water Act 36 of 1998 (“NWA”):

“The exploitation and or producing of onshore naturally occurring hydrocarbons that requires stimulation, including but not limited to hydraulic fracturing and or underground gasification, to extract, and any activity incidental thereto that may impact detrimentally on the water resource”.

By declaring a specific activity as controlled, the Minister is able to regulate activities that have a detrimental impact on water resources. Once an activity is declared as a controlled activity, any person who undertakes a declared controlled activity must obtain a water use licence in terms of section 21(e) for that particular category of activity.

The schedule containing all declared controlled activities has now been updated to include the declaration of the above activity (which is commonly referred to as “fracking”) as a controlled activity. The following activities are included in the schedule of controlled activities:

  • irrigation of any land with waste or water containing waste generated through any industrial activity or by a waterwork;
  • an activity aimed at the modification of atmospheric precipitation;
  • a power generation activity which alters the flow regime of a water resource; and
  • intentional recharging of an aquifer with any waste or water containing waste.

In summary, the declaration of fracking as a controlled activity in terms of the NWA means that a water use licence will be required for conducting the activity and activities associated with fracking.