Local Government, Environmental Affairs and Development Planning

8. (1) (a) 
The National Water Act (Act No. 36 of 1998) is founded on the principle that National Government has overall responsibility for and authority over water resource management, including the equitable allocation and beneficial use of water in the public interest, a person can only be entitled to use water if the use is  permissible/authorised under the Act.  Water use is defined broadly, and includes taking and storing water, activities which reduce stream flow, waste discharges and disposals, controlled activities (activities which impact detrimentally on a water resource), altering a watercourse, removing water found underground for certain purposes, and recreation. In terms of authorisation, a water use must be licensed unless it is listed in Schedule 1, is an existing lawful use, is permissible under a general authorisation, or if a responsible authority waives the need for a licence. Under Section 21(c), any activity that impedes or diverts the flow of water in a watercourse is considered a water use and would therefore require authorisation in terms of the NWA.  

In addition to the above, the construction of a weir that exceeds 100m2 (including the water surface area) will require an environmental authorisation in terms of the National Environmental Management Act, 1998 (Act No. 107 of 1998) (“NEMA”),  Environmental Impact Assessment (“EIA”) Regulations, 2014 (as amended) from the relevant competent authority (Activity 12 of Listing Notice 1 where the basic assessment process if followed), unless the exclusionary criteria are met e.g. where the weir is within an urban area or is of a temporary nature.   The Western Cape Department of Environmental Affairs and Development Planning is responsible for administering EIA applications in the Western Cape. However, if a proposed weir will be constructed within a national proclaimed protected area or conservation area; a RAMSAR site; if the construction will be undertaken by National Department, a Provincial Department responsible for Environmental Affairs or any other organ of state performing a regulatory function and reporting to the MEC (such as CapeNature); or a parastatal, the National Department of Forestry, Fisheries and the Environment will be the competent authority, and will need to be contacted.  The development of the weir may also trigger other listed activities in terms of the EIA regulations e.g. where indigenous vegetation is to be cleared.  

8. (1) (b) 
In terms of the design, the proponent will propose the design of the weir in the NWA and NEMA authorisation processes, and this design will be subject to review by the stakeholders involved in these authorisation processes (e.g. commenting authorities, interested and affected parties, and the competent authority).  Under Section 26(1)(e) of the NWA, the DWS may make regulations regarding the design, construction, operation, installation and maintenance of any waterwork which includes “any … structure … used for or in connection with water use”.  

8. (1) (c) 
During the EIA application process, the applicant must allow for public participation with potential interested and affected parties in terms of Section 40 and 41 of the EIA Regulations, 2014.  This includes advertising the application in a local newspaper or official gazette, fixing a notice board at a conspicuous place on the site, as well as allowing 30 days for comment on the relevant reports produced during the process.  The EIA Regulations, 2014 allow for a combined public participation process for an authorisation, permit or licence under another Specific Environmental Management Act (such as the NWA).

8(2)(a) 
There are two laws/Acts that speak directly to the control of alien invasive vegetation in South Africa;  the Conservation of Agricultural Resources Act (CARA, Act 43 of 1983) and the National Environmental Management: Biodiversity Act (NEM:BA, Act No 10 of 2004).  Both Acts list prohibited activities associated with identified invasive alien species.  Both Acts identify water hyacinth as a problematic invasive species (Category 1 in CARA - specifically the CARA Regulations GNR. 1048 of 25 May 1984  and Category 1b in NEMBA - specifically the Alien and Invasive Species Regulations, 2014 – GNR. 598 of 1 August 2014).  These Acts ensure that any entity (public or private) or individual who has control over these species is responsible for their proper management as outlined in the aforementioned Acts and subordinate legislation.  

From a governance perspective, the National Department of Agriculture, Land Reform and Rural Development is responsible for administering the provisions of CARA, while the National Department of Forestry, Fisheries and the Environment (DFFE) is responsible for the provisions in the NEMBA which relate to invasive alien species and its regulations (R. 598 of 1 August 2014). The Biosecurity Branch within DFFE is responsible for the enforcement of the provisions of the Act and the regulations of invasive species. The power to enforce these regulations has not been delegated to the provinces.

8(2)(b) 
The DFFE have provided (and continue to provide) the Western Cape Province with considerable support over the years specifically around invasive alien species in a myriad of ways including the establishment of a related policy and legislative framework.  Most notably, DFFE support the Western Cape through the Working for Water programme, which invests considerable funds into the control and management of alien invasive species (including water hyacinth) that undermine the water resources of the province.  A useful portal associated with the Working for Water programme, reflecting the location of projects throughout South Africa can be found at https://sites.google.com/site/wfwplanning