2015 04 13 Draft WUL Procedure Regulations IAIAsa submission final

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International Association for Impact Assessment
South Africa
Comment on the Draft Water Use Licence Regulations, 2014
13 April 2015
The Director-General
Department of Water and Sanitation
Attention: Mr Anil Singh
DDG: Regulation Compliance Authorisation
Email: singha3@dwa.gov.za
Dear Sir,
The South African Affiliate of the International Association for Impact Assessment (IAIAsa) is
a voluntary association comprised of members active in the consulting, government, industry
and academic sectors of Integrated Environmental Management (IEM).
With reference to the Draft Water Use Licence Regulations, 2014 ("the draft
regulations") published under the National Water Act, 1998 (Act No. 36 of 1998) ("NWA")
that were gazetted on 12 February 2015, IAIAsa would like to comment as follows:
1. General comments
1.1. At the outset, we would like to state our support for these regulations which we hope will
provide greater certainty and efficiency to the water use licence application process.
1.2. Many of our members are environmental consultants and specialists with extensive
experience in the water sector, and who, through interaction with applicants, interested
and affected parties, licensing authorities and other organs of state, have an extremely
President: S George, Past President: P Sithole, Vice President: N Baloyi, Treasurer: J Mitchell,
Secretary: R Luyt. Members: D Michel, S O’Beirne, K Strachan, J Tooley. Branch Chairs: N Devenish,
S Makhudu, E Monyai, J Richardson, C Steenkamp, B Steytler, O Stotko, R Wilken.
good idea of the practicalities around the water use licensing process. We thus request
that you fully consider these comments from key role players regarding the
implementation of the WUL Regulations as to ignore them could very well result in
impracticable regulations.
1.3. The most prevalent concerns raised by our members pertain to the confusing
timeframes that are prescribed for the different steps in the application and lack of clarity
as to how these timeframes would synchronise with other licensing application
processes, for example, environmental authorisation or waste management licenses.
The other key concern is whether the Department currently has the administrative
capacity (systems and manpower) to meet these timeframes.
1.4. We also bring it to your attention that there are a number of grammatical errors in the
draft regulations which we trust will be identified and addressed prior to the regulations
coming into force, particularly where it compromises interpretation.
1.5. We trust that our comments set out here below will assist with the practical application of
these regulations once in effect. We also request that the Department consider, if it
hasn't done so already, a guideline document to assist applicants, consultants and
licensing officials with the practical implementation of the regulations once in force.
2. Specific provisions (in the order they appear in the draft regulations)
2.1. Explanatory note
2.1.1. We request that the third paragraph of this section be redrafted so as to remove any
impression that the application of these regulations is limited to mining.
2.2. Arrangement of regulations: Chapter
Commencement read with Chapter 11
11
Transitional
Arrangements
and
2.2.1. Although listed in the table of contents under Chapter 11, there are no transitional
arrangements provided for in the draft regulations. We request that provisions are
inserted to provide clarity on the application of these regulations to:
2.2.1.1.
applications pending at the time the regulations are published;
2.2.1.2.
the appeal process for decisions made after the regulations are published
but for applications submitted prior thereto.
2.3. Interpretations and definitions: Regulation 2
2.3.1. There are two definitions for "days", both of which appear to be incomplete and do
not necessarily make sense when read with the use of this word in subsequent
provisions. A further comment is that if there is intention to synchronise licensing
President: S George, Past President: P Sithole, Vice President: N Baloyi, Treasurer: J Mitchell,
Secretary: R Luyt. Members: D Michel, S O’Beirne, K Strachan, J Tooley. Branch Chairs: N Devenish,
S Makhudu, E Monyai, J Richardson, C Steenkamp, B Steytler, O Stotko, R Wilken.
timeframes, the excluded period in the 2014 EIA Regulations is 15 December to 05
January.
2.3.2. The comments in brackets "(Recommended for removal)" and "(enhance as per
the Act)" that respectively appear at the end of the definitions provided for "Record
of Recommendation" and "responsible authority" and seem to be remnant
commentary for drafting purposes.
2.3.3. Although a definition of "sector" has been included, this word does not appear
anywhere else in the draft regulations.
2.4. Compliance with formal requirements: Regulation 15
2.4.1.
Reading in context, it would appear that the word "applicant" in the latter half of the
sentence should read "application".
2.5. Timeframes for responsible authority: Regulation 23:
2.5.1. The first row in Table 1, particularly the wording "7 days for mining" is not clear in
meaning.
2.5.2. The number of days in Table 1 does not appear to tally with timeframes provided for
in other provisions, in particular, regulations 18 and 23(1).
2.5.3. In respect of regulation 23(4), there is potential for conflict of timeframes with the EIA
process if the timeframes are extended by 40 days.
2.6. Consideration of allocation schedules in the water use licence assessment
advisory committee: Regulation 31
2.6.1. There is a word missing in Regulation 31: "Before publishing the [?] in the
government gazette ……".
2.7. Period after which an amendment may be submitted: Regulation 32
2.7.1. It is offered that the used of "shall" in Regulation 32 should be changed to read "may",
as applications for amendments are not mandatory.
2.8. Timeframes for amendments: Regulation 34
2.8.1. It is not clear from Regulation 34 which steps and associated timeframes apply to an
application for an amendment of a water use licence.
President: S George, Past President: P Sithole, Vice President: N Baloyi, Treasurer: J Mitchell,
Secretary: R Luyt. Members: D Michel, S O’Beirne, K Strachan, J Tooley. Branch Chairs: N Devenish,
S Makhudu, E Monyai, J Richardson, C Steenkamp, B Steytler, O Stotko, R Wilken.
2.9. Timeframes for renewal: Regulation 37
2.9.1. It is not clear from Regulation 37 exactly which steps and associated timeframes
apply to an application for a renewal of a water use licence.
2.10. Registered interested and affected parties entitled to comment on submissions:
Regulation 40
2.10.1. Regulation 40(2) appears to be an incomplete provision.
3. Concluding remarks
3.1. We trust that these comments submitted by IAIAsa will be received in the spirit in which
they are intended, which is to improve practice and ultimately the protection and
management of our water resources.
3.2. Lastly, we would like to offer our assistance towards co-drafting or reviewing a guideline
document on the WUL regulations, including workshops with the Department, and
facilitating any workshops with our members that may assist the Department in the
implementation of the regulations.
Yours faithfully
Sue George
IAIAsa President 2014/2015
President: S George, Past President: P Sithole, Vice President: N Baloyi, Treasurer: J Mitchell,
Secretary: R Luyt. Members: D Michel, S O’Beirne, K Strachan, J Tooley. Branch Chairs: N Devenish,
S Makhudu, E Monyai, J Richardson, C Steenkamp, B Steytler, O Stotko, R Wilken.