Water licence no guarantee to SA miners

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[miningmx.com] – HOLDING an Integrated Water Use Licence (IWUL) doesn’t mean that mining firms can operate with impunity during periods of drought.

Persisting low levels of rain, and drought, will have an impact on all water users. Those industries which require high volumes of water will be particularly affected because water users may be required to reduce their water consumption, or find more efficient ways to use water or reuse water within their facilities.

When South Africa’s National Water Act was promulgated, the Department of Water Affairs and Sanitation (DWAS) was required to class all water resources in the country and quantify the available water reserves.

In assessing how much of the water reserves can be consumed, the DWAS was required to determine the ecological sustainability of the water resource. In other words, it sought to quantify how much of the water resource can be used while ensuring that the ecological viability of the water resource is maintained.

With these levels in mind, the DWAS regulates the amount of water consumed in terms of the National Water Act. The act states that water can only be used in terms of a water use licence, a general authorisation or a prior existing lawful use.

Persons using water in terms of a general authorisation or prior exiting lawful use are required to register this water use with the DWAS so that the DWAS knows exactly what volumes of water are being consumed. Companies that do not fall within the scope of a a general authorization or a prior lawful use (which is the case for most mining companies) must apply to the DWAS for a water use licence which will set out the precise volume of water that the mining company is permitted to use.

The mining company will be required to report on its compliance with this condition to the DWAS so that the it can monitor water consumed and impacts on the viability of the water reserves.

Failure to comply with these obligations may result in directives being issued against the water user as well as penalties.

There have been cases where companies are consistently withdrawing in excess of the allocated amount which will put strain on an ordinarily strained resource. In cases of droughts this water resource, and its ecological viability, these companies will come under significant pressure.

In these instances, it is up to the DWAS, as the custodian of water resources, to make sure that water resources are not significantly compromised.

It can do this by decreasing the water allocation permitted by water users. It may also clamp down on those companies that have consistently failed to comply with the volume of water they allowed to consume.

Although a water use licence permits a water user to consume a certain quantity of water, the licence does not guarantee that that quantity of water will be available and generally permits the DWAS to reduce the amount of water available to the water user.

Although this can be seen a worrying factor to the mining industry, it does encourage mining companies to look at more sustainable water use practices within their operation which will have a lesser impact on the water resource and will – in the long run – reduce their water consumption costs.

Burnell is a partner at Fasken Martineau, a legal services firm

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