By now the question of ‘may I sell my borehole water / river water / spring water or give it away for free, after all, it runs into the sea…?’ has come up many, many times. While most at least agree that the selling of water is illegal without a license, many still maintain that giving water away for free (and charging a generous fee for transport) is OK. But is it?
To find the answer – let us dissect the National Water Act of 1998. This is the guru on anything water related in SA.
WHAT DOES THE ACT SAY ON THE USE OF WATER?
In Part 1 the Act states: “In general a water use must be licensed unless it is [1.] listed in Schedule I, [2.] is an existing lawful use, [3.] is permissible under a general authorisation, or [4.] if a responsible authority waives the need for a licence.
Now, let us pull the above apart.
What is meant by Water Use?
Water use includes – 1) taking water from a water resource; 2) storing water; 3) impeding or diverting the flow of water in a watercourse; 4) engaging in a stream flow reduction activity contemplated in section 36; 5) engaging in a controlled activity identified as such in section 37(1) or declared under section 38(1); 6) discharging waste or water containing waste into a water resource through a pipe, canal, sewer, sea outfall or other conduit; 7) disposing of waste in a manner which may detrimentally impact on a water resource; 8) disposing in any manner of water which contains waste from, or which has been heated in, any industrial or power generation process; 9) altering the bed, banks, course or characteristics of a watercourse; 10) removing, discharging or disposing of water found underground if it is necessary for the efficient continuation of an activity or for the safety of people; and using water for recreational purposes.
Summary: A mouthful is it not? For this post, we will only focus on 1), ‘taking water from a water resource’, as that is what is required in order to sell it or give it away.
What is meant by Schedule 1 Usage?
According to Schedule 1 of the Act, a person (you and I) may 1) take water for reasonable domestic use in that person’s household, directly from any water resource to which that person has lawful access; 2) take water for use on land owned or occupied by that person, for –
- reasonable domestic use;
- small gardening not for commercial purposes; and
- the watering of animals (excluding feedlots) which graze on that land within the grazing capacity of that land, from any water resource which is situated on or forms a boundary of that land, if the use is not excessive in relation to the capacity of the water resource and the needs of other users.
A person may also 3) store and use run-off water from a roof; 4) in emergency situations, take water from any water resource for human consumption or firefighting; 5) for recreational purposes –
- use the water or the water surface of a water resource to which that person has lawful access; and
- portage any boat or canoe on any land adjacent to a watercourse to continue boating on that watercourse.
A person may 6) discharge –
- waste or water containing waste; or
- run-off water, including storm water from any residential, recreational, commercial or industrial site, into a canal, sea outfall or other conduit controlled by another person authorised to undertake the purification, treatment or disposal of waste or water containing waste, subject to the approval of the person controlling the canal, sea outfall or other conduit.
Summary: Again, this is a mouthful, but what is important for this post is that Schedule 1 means a person (we) may only use water for reasonable domestic use, including watering of animals (on small domestic scale) and keeping our gardens or veggie patches going (again, domestic gardening only). We may also store rainwater from our roofs in Tanks and use that as we like. So, if we do only this, ie, use water for our personal domestic use on our household premises, we do NOT need a licence.
WHAT IS MEANT BY A WATER RESOURCE?
A water resource includes a watercourse, surface water, estuary, or aquifer (groundwater). A Watercourse is a river or spring; a natural channel in which water flows regularly or intermittently; wetland, lake or dam into which, or from which, water flows; and any collection of water which the Minister may, by notice in the Gazette, declare to be a watercourse.
Summary: The Act thus covers all water in the land, being surface water and ground water. Interesting, this Act makes no mention of seawater – which is dealt with in our Environmental Acts (Seawater also fall outside the scope of this post).
Now we can start rewriting what the act states in plain language:
“In general [taking water from a water resource – being ANY surface or groundwater] must be licensed unless it is listed in Schedule I [used for domestic use in that person’s household only], is an existing lawful use, is permissible under a general authorisation, or if a responsible authority waives the need for a licence.
In even more plain language – Taking water from ANY surface or ground source must be licenced unless is it used for domestic use in that person’s household only.
Anything else requires a licence from the DWS.
WHAT THE ACT DOES NOT SAY
I could not find any reference in the Act regarding the selling of water. It concerns it itself with the ‘taking of water’, of which selling is just one aspect (selling is no doubt covered in other applicable legislation). So, we should not concern ourselves with whether it is legal to sell water, we should concern ourselves with the fact that any TAKING of water from a resource, whether to resell or to give away or doing anything else with it, IS ILLEGAL if it falls outside domestic use at the TAKER’S household.
That friends, is the crux of the Act.
If anyone without authority (licenced), removes ANY water from ANYWHERE with the intention of NOT using it for domestic purposes on his/her household premises, then that person is in contravention of the Act. It is illegal.
Why? Water belongs to all and the State is the custodian on our behalf. Who gives anyone the right to remove bulk amounts of water without authority?
If you are offered water for sale or water for free, you are obliged to ask for the person’s licence. If you accept any bulk water without doing due diligence, you are as guilty as the person that took the water from our precious resources.