2016 was the driest year in South Africa since rainfall records began in 1904‚ with the current drought predicted to continue well into 2017. Climate variables resulting in such devastating droughts are giving rise to increased competition for dwindling water resources in parts of South Africa. When water is critical to the ongoing operation of a business, it is important to establish precisely what right a business has to water and how to protect this right.
The Department of Water and Sanitation (“DWS”) recently published regulations requiring that the taking of water for irrigation purposes be measured, recorded and reported to the authorities. This obligation became effective from 17 February 2017 and a failure to comply with these regulations is an offence. It can be expected that the amount of water used in the agricultural sector will be under increasing scrutiny in years to come. For any agribusiness, knowing the precise nature of its water-use needs, its water-use rights and its current water-use are fundamental first steps to securing ongoing viability.
Many established agribusinesses in South Africa that are reliant on water in its raw form, from rivers, streams, dams and boreholes, have been accessing this water for their business operations for generations. Fortunately, the drafters of the National Water Act, 1998, which regulates the off-take and use of raw water, gave recognition to what is defined as “existing lawful water use”. This means that water use that falls within the ambit of this definition entitles the user to continue using that water as it and its predecessors have done for generations, subject to the provisions of the National Water Act.
The difficulty is that there is often more than one person or entity that has been abstracting water for generations from the same water resource, which may not have given rise to problems in generations gone by when there was an abundance of water. However, when water is scarce, disputes often arise as competing claims for the same water resource ensue.
Establishing a right to use water is one matter, but establishing precisely how much water one is entitled to is another. Existing lawful water users often do not appreciate that the lawfulness of that use is limited to the extent of actual use in the past. To establish the extent of existing lawful water use, one would typically need to have regard to historical water court orders, historical aerial imagery, the title deeds of the relevant property and the area under irrigation at the time the existing lawful water use was historically established. Once a user’s existing lawful water use is verified, this right to water can be protected against competing claims by upstream or downstream water users.
In these situations, there is often a competing claim to existing lawful water use and challenging this requires determining precisely what the competing water user’s rights may be. However, equally often, parties have done something to sever the continuation of their existing lawful water use, thereby negating their ability to argue for a water-use right. In instances where both parties have an existing lawful water use, it is very probable that, based on riparian principles of water use, both parties would have to endure a proportionate decrease in the use of water. In practice, however, reaching an agreement between competing parties on how water supply is to be limited in times of water scarcity is difficult to achieve without legal and technical facilitation.
As an additional overlay to what is an already potentially contentious situation, the DWS is rolling out its verification and validation process of existing lawful water uses in various parts of the country, as it is entitled to do in terms of the National Water Act. For those who have not already had their water use verified with legal and technical consultants in the context of asserting their right to water, this will be required when engaging with the DWS to verify the amount of water they are entitled to. The stakes are high – if users do not correctly motivate for what they are entitled to, section 35(4) of the National Water Act provides that the authority may determine the extent and lawfulness of water use pursuant to an application for verification, and such determination may limit the extent of any existing lawful water use. If verification is refused, the applicant may not exercise that water use and it is possible that a decision could be made that allocates less water than is required to operate sustainably.
There is an old Irish proverb that says “you never miss the water until the well runs dry”. In these dry times, it is wise for businesses to allocate time and energy from their day-to-day operations to independently and proactively verify their water-use rights. This will enable them to challenge any competing claims from neighbouring water users, and to accurately verify their water entitlement should the DWS request verification of existing lawful water use.