South Africa has 22 water source areas spread across five provinces namely in KwaZulu-Natal, Mpumalanga, Western Cape, Eastern Cape and Limpopo. The greatest volume of recharge is generated by a concentrated area in the Southern Drakensberg, followed by the Eastern Cape Drakensberg and the Boland Mountains. Just 8% of the land generates 50% of the surface run-off (water in wetlands, streams and rivers) making the protection of the health of these natural systems crucial for water supply.

In September 2023, the Stockholm Resilience Centre published a co-authored scientific study which showed that humanity has crossed six out of nine critical planetary boundaries. The concept of planetary boundaries was introduced to define a safe operating space for humanity within Earth's ecological systems. Freshwater availability is one of the nine planetary boundaries identified by scientists which addresses both green water, which is invisible and held in soil and plants in farms, and forests as well as blue water which is visible water held in rivers and lakes. The study highlighted that both green water and blue water boundaries have been transgressed.

Changes in the availability and distribution of water resources have the potential to significantly disrupt ecosystems that depend on specific water conditions, with direct consequences for our societies. However, just like electricity, water is a key economic enabler and the significance of crossing the planetary boundary for freshwater has the potential to give rise to systemic financial risks. This can have direct consequences for agriculture, industry, energy and the extractives sectors. The breach of the planetary boundary for freshwater necessitates proactive and comprehensive strategies to mitigate potentially severe consequences.

One such mechanism to protect freshwater ecosystems is through regulation and legal prohibitions. Within this context, the draft National Water Amendment Bill 2023, ("the Bill") proposes the establishment and robust safeguarding of water source areas.

The Bill defines water source areas as, "all land and aquifers which form the original collection point, and provide above average amounts, of water to the rest of South Africa's water resources, and which meet significant social, economic and environmental water requirements."

The Bill also requires the Minister to publish a list of water source areas within one year and regulations for the management of activities within and around water source areas within three years of the commencement of the chapter regulating water source areas in the Bill.

Cultivation is the most prominent land use in water sources areas (15%), followed by plantations (13%). Although prospecting and mining rights coincide with less than 1% of our water source areas, there is a considerable overlap (70%) of mining activities in Mpumalanga water source areas. The Bill establishes broad prohibitions and imposes restrictions on development activities within water source areas by expressly regulating the mining, forestry, and agricultural sectors. For example, the Bill prohibits the following activities within threatened or vulnerable water source areas and further prohibits the future granting of water use licenses in terms of section 21 of the NWA for the following activities:

  • All open cast and underground mining that may lead to acid rock drainage or acid mine drainage;
  • Streamflow reduction activities within or adjacent to water source areas or forestry plantations where a 32m development setback has not been established; and
  • Agricultural activities particularly where a 32m development setback has not been established.

The impact on future development projects in the mining, agricultural and forestry sectors is potentially significant as there is an outright prohibition of water use activities within water source areas for these sectors.

The Minister will have the power to prescribe further prohibitions relating to threats that may be faced by water source areas if it is in the public interest and is considered necessary to do so.

The Bill does not detail the impact on existing developments within water sources areas, but it empowers the Minister to publish a notice prescribing the review of water use licenses granted for mining activities, afforestation activities and agricultural activities prior to the commencement of the relevant chapter relating to water source areas.

Considering the inherent scarcity and irreplaceable nature of water, it has become increasingly critical for the government and industry to prioritise the safeguarding of our water source areas. The legal landscape surrounding water use in South Africa is undergoing significant changes, prompted by a pressing need to address the transgression of planetary boundaries, particularly in the realm of freshwater resources. The Stockholm Resilience Centre's recent study underscores the global urgency to manage water sustainably, and South Africa's response is exemplified in the proposed amendments to the NWA.

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