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Why is there a delay in the processing of Water Use License Applications (WULAs) in South Africa??
Water uses as described in section 21 of the National water Act 36 of 1998 (NWA) require authorisation by means of a Water Use License (WUL), if it is not authorised under a General Authorisation, as and Existing Lawful Use, or as a Schedule 1 water use. People who have submitted Water Use License Applications (WULAs), often complain about the delay experienced in the processing of these WULAs. There are many possible reasons for this delay, and it is often ascribed to a lack of capacity in the Department of Water and Sanitation (DWS), as a result of both a lack of experience and of available resources.
This is however not the only reason, and certainly not the main reason. The Mpumalanga Region of the DWS asked CBSS to assist with addressing the backlog of WULAs to be processed, and we collected some interesting statistics during the processing of the WULAs, as illustrated below:
These statistics indicate that the primary reason why a WULA had to be returned to the applicant, was because it seriously lacked critical information. Seventy-two percent (72%) of the WULAs could not be processed as a result of poor preparation of the application.
This reason for the delay in the processing of the WULAs lies squarely on the shoulders of the consultants who prepare these applications on behalf of their clients: While assisting the Region, working through the documents as a team, we could be almost 100% certain that if the name of “X” or “Y” consultants were on the cover of a WULA report, the application forms will not be signed, and that the incorrect water uses (or water uses that do not even require authorisation by means of a Water Use License!!) would have been included in the application, while water uses which SHOULD have been included, were nowhere to be seen..
Incorrect identification of water uses requiring authorisation by means of a WUL delays the processing of the WULA
Apart from not addressing the procedural aspects such as completing the correct forms, having the forms signed, paying the application fee and ensuring that Title Deed information accompanied the application, the primary substantive problem with most of these applications was that the consultants acting on behalf of the applicants didnot properly identify the water uses associated with the activity that requires authorisation under a WUL.
For example, a mine removes water found underground to safely continue with the activity, stores this water in a Pollution Control Dam, and then uses this water in the wash plant, before disposing thereof in a slurry dam. This entails a water use as described in section 21(j) of the NWA for the removal of water, a section 21(a) water use for the use of the water in the wash plant (only if the water in the put intercepted a water table), and two section 21 (g) water uses for the storage of the wastewater in the Pollution Control Dam and the slurry dam. However, the WULA as submitted to the DWS, would only address the section 21(j) and maybe one of the section 21 (g) water uses.
Another problematic substantive issue was the fact that even if the water use was properly identified, the type of water use authorisation was not correctly determined. More than 10% of the applications were returned to the applicants, informing them that they did not have to apply in the first place, as their water use is covered by the General Authorisations promulgated under section 39 of the NWA. This implies that the lack of knowledge about the water use authorisation process by some consultants resulted in unnecessary cost to applicants, because the applicant has spent a large amount of money on something that was not even necessary or required to begin with, and contributes to the lack of confidence in consultants in general.
Incomplete and insufficient information on socio-economic and bio-physical aspects associated with the water use delays the processing of the WULA
The third third main problematic substantive issue relates to how consultants think that the DWS evaluates the WULAs. Section 27(1) of the NWA lists eleven factors that the DWS should consider in evaluating a WULA, which range from socio-economic aspects to bio-physical and technical considerations, and which are aimed at ensuring that a water use is “beneficial and efficient in the public interest“. This implies that the WULA must clearly and unequivocally demonstrate that the water use will be beneficial and efficient in the public interest, which implies that these socio-economic, biophysical and technical aspects that relate to the application should be properly described, making used of up-to-date data and information.
Originally, the DWS placed a biased emphasis on only one of these factors, namely section 27(1)(b), “redressing the results of past racial and gender discrimination” (finding made in research done by Professor Michael Kidd from the University of KwaZulu-Natal). After losing a number of High Court cases (Goede Wellington Boerdery vs the Department of Water Affairs(Case number WT W23/02/2009, decision delivered on 24 May 2010). and Guguletto Family Trust v Department of Water Affairs and Forestry(Case number WT 16/07/2009, decision delivered on 31 May 2010)), the DWS realised that the so-called “B-BBEE-scorecard” (which was based on the PFMA procurement code), that they previously had used to facilitate decision-making on WULAs, did not favour small scale previously disadvantaged WUL-applicants, and they have adjusted their previous incorrect interpretation of these factors.
Unfortunately, consultants preparing WULAs still think that if they “just fill in the B-BBEE-scorecard”, their client will get a WUL issued to them without delay. This is most certainly not the case.
Conclusion
We can conclude with confidence that the poor quality of WULAs, compiled by consultants who think that a WULA is the same as an EIA, and who fail to correctly identify the proper water uses to include in the WULA, are the primary contributing factors in the delay of the processing of WULAs.
This is the reason why we have started our Water Governance Training Courses, which are aimed at building the capacity of consultants, so that they can compile procedurally and substantively complete and correct WULAs, which can be processed much quicker than incorrect WULAs, and which will not get “stuck” in the system.
In addition, CBSS pride ourselves on the fact that, once we have submitted a WULA, it is complete, and addresses all the section 27 factors appropriately, and that there will not be a “request for additional information” from the DWS. This is the reason why WULAs submitted by us takes less than 12 months to be processed, and one was issued in a record time of two-and-a-half months (60 working days). You can read more on our approach to applications for WULs here.
Let us assist you in obtaining a WUL that is applicable to your site-specific conditions, that can help you make decisions towards a sustainable future, and that will reduce your environmental risks and liabilities.
Summary
Article Name
Why is there a delay in the processing of water use license applications (WULAs)??
Description
There are many reasons for the delay in the processing of WULAs. The lack of capacity in the DWS is certainly not the main reason for the delays experienced in the processing of WULAs. The poor quality of WULAs, compiled by consultants who think that a WULA is the same as an EIA, who fail to correctly identify the proper water uses to include in the WULA, are the primary contributing factors in the delay of the processing of WULAs. To fix this, the first step is to properly understand what a "water use" that requires a WUL really is.
