The Water Page – SA Policy – Environment and Water

[Note: Please contact the authors for referencing information.] Ralph Hamann, Department of Environmental and Geographical Science, University of Cape Town, tel: (021) 462 5598, email: Tim O’Riordan, School of Environmental Sciences, University of East Anglia. Sustainability is a moral ideal, much like democracy and justice. There is no single strategy or game plan for its attainment. It is a process, rather than an objective, so local pathways to sustainability will need to heed local contexts and peculiarities. Hence, there will be many different initiatives and processes that relate to sustainability, just as long as certain key criteria are met. This paper will discuss key South African policy initiatives in the light of these criteria: the National Environmental Management Act and the National Water Act. The paper will then assess the challenges that will confront implementation of these policies.The underlying conclusion is that key requirements for sustainability are indeed met by South Africa’s policy transition, but that these are not sufficiently linked up in terms of institutional implementation at national, provincial and local levels. Environmental professionals and non-governmental organisations have a significant role to play in this regard, also with respect to the monitoring of the state’s implementation efforts. Much is to be learnt from efforts to manifest the far-reaching aims of South Africa’s new policies.The much-vaunted concept of ‘sustainable development’ is particularly problematic in the South African context. With its extreme variations in economic income and social living standards, South Africa experiences widely disparate interpretations of what is ‘sustainable’. The fact that north-south disputes related to sustainable development (see, e.g., Dodds, 1997) manifest themselves within towns and communities presents a particularly daunting – and challenging – task. However, within this juxtaposition lie the seeds of truly innovative efforts at creating sustainable pathways. The problem with ‘sustainable development’ is that all too often it has focused purely on those life-sustaining services that are rendered by the natural environment. Accordingly, for a development to be deemed sustainable, essential bio-physical functions should not be harmed beyond acceptable limits. Hence, these functions are the object of extensive studies and assessments, whereas social issues are considered primarily where they are seen as important for environmental stewardship. In South Africa, particularly, an overly conservation focused approach to sustainable development is problematic, given that for many South Africans in the past “conservation meant dispossession” (Ngobese and Cock, 1997, 258).Sustainability requires an acknowledgement that, in addition to bio-physical services such as fertility and waste absorption, societies rely on socio-cultural processes, norms, and expectations for survival. It is these processes related to networks of communication and trust that allow communities to engage with their local environment, as well as institutional structures in government and private economy, in order to enhance their livelihoods.Protection and enhancement of ‘natural capital’, then, requires an engagement with ‘social capital’ (the origin of this term has been ascribed to Putnam; see, for instance, Putnam, 1993; Bebbington, 1997). The pertinence to sustainability arises because natural and social capital interact in a degrading and debilitating coupled relationship. As social systems loose capacity to adapt and engage, bio-physical systems are exploited and degraded, leading to further threats to communities.Acknowledging the significance of social capital confronts prospects for sustainable development with the stark realities of South Africa’s threatening breakdown of social order. Seen in this light, crime is a prime threat to sustainability. So is the high unemployment, and the many young and undereducated South Africans, for whom the promise of a better life after the transition to democracy has not fulfilled itself.At the national and local level, then, South African initiatives embracing sustainability may be captured by the ‘triple helix’ of economic growth and redistribution, democratic empowerment, and environmental protection (see Figure 1). In this sense, South Africa’s transition to sustainability is enmeshed with the government’s programme for post-apartheid reform and reconstruction. We shall see below that this combination is proving extraordinarily difficult to co-ordinate.The National Environmental Management Act (NEMA) (Republic of South Africa, 1998a) is of the utmost importance in providing a launch pad between equitable development and environmental protection. It is framed in terms of key provisions of the Constitution and aims to implement the constitutional concept of co-operative governance for environmental matters. Of note is the insistence on spreading the responsibility for the interconnection between social well-being and environmental protection across state departments and spheres of government. It also forms the basis for citizens’ rights to be granted opportunities for effective democratic and economic involvement in the future development process in South Africa. By means of its principles, institutions, and parameters for environmental decision-making, the Act functions as a sort of ‘mother-law’, creating a framework for a wide-reaching reform of South Africa’s environmental legislation (DuBois, pers. comm.).The NEMA’s role in sustainable developmentOne of the most contentious issues during the deliberations of the Parliamentary Portfolio Committee while drafting the Bill was the definition of ‘environment’. In the light of the Environment Conservation Act’s broad and inclusive definition and the problems related thereto, the drafters of the NEMA opted to explicitly exclude humans from the definition in order to provide a more concise scope for the legislation. However, there were repeated criticisms of this exclusion (e.g. from the metropolitan councils of Durban and Cape Town and the National Monuments Council).The deliberations on the ‘environment’ definition crept up wherever the ultimate goals of the Bill were in question. That is, should it focus on the protection of the bio-physical environment or should it aim to provide a basis for South Africa’s path towards sustainable development? For instance, how explicitly should the Bill consider issues such as environmental health or workers’ rights to a safe working environment? In the final compromise, the NEMA sees itself as an ‘environmental’ piece of legislation, with a definition of ‘environment’ that focuses on the natural environment. Yet it contains certain key provisions that require the Department of Environmental Affairs and Tourism, as well as the government in general, to embark on institutionalising the concept of sustainable development.One of these provisions requires an “Annual Performance Report on Sustainable Development” (section 26), which is to audit the “government’s performance in respect of Agenda 21”. The first of these reports is to be prepared by January 2000 (Beaumont, pers. comm.), so there needs to be some significant effort if the report is to fulfil its ambitions of linking government on a broad level with civil society.The NEMA’s principles aim to substantiate the environmental right in the Constitution. They create a basic framework in which the Act can be interpreted in its application, and through which any action can be tested for administrative justice or arbitrariness.Many of the principles demonstrate the crucial significance of the Constitutional right to equality in the environmental arena. Hence, there are principles for “environmental justice” and “equitable access to environmental resources, benefits and services” (section 2). Similarly, the public participation principle requires that “all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation” (section 2). The incentive to pro-actively seek representation by the disadvantaged is closely related to the notion of community empowerment, for which a principle was added to the Bill to promote “community wellbeing”. The implementation of these principles is as important as it is difficult. We will return to this issue below.The last principle maintains that the “environment is held in public trust for the people” and “the beneficial use of environmental resources must serve the public interest”. We shall see below that this public trust notion is central to the new thinking over natural resources management in South Africa. Of particular importance here is the huge shift in the basis of property rights to renewable resources and the linking of private use and ecological responsibility.The NEMA and co-operative governanceThe NEMA provides for two new national government institutions. The first is the National Environmental Advisory Forum, which is to inform the Minister of “the views of stakeholders regarding the application of the principles” (section 3) in the implementation of the Act and other environmental legislation. The second institution is the Committee for Environmental Co-ordination, tasked to “promote the integration and co-ordination of environmental functions by the relevant organs of state” (section 7). Convened by the Department of Environmental Affairs and Tourism (required by the White Paper to be ‘lead agent’), it consists of the Directors-General of a number of key national departments, the provincial environment ministers, and a representative of local government.One of the main functions of the Committee is the appraisal of Environmental Implementation Plans (EIPs) and Environmental Management Plans (EMPs). These need to be drawn up by state departments and provinces, depending on whether their responsibilities affect or manage the environment (as listed in schedules 1 and 2). The purpose of EIPs and EMPs is to co-ordinate and harmonise environmental policies, plans, programs and decisions of the various national departments listed in the schedules, as well as the provincial and local spheres of government. These plans also crucially help to broaden the responsibility for proactive environmental management across government institutions. Should this objective actually be met, it would be a matter of profound significance for the promotion of sustainable development in South AfricaThe NEMA provides for an important set of options in the event of an environment related dispute, including conciliation, arbitration, and the appointment of a Commission of Inquiry. However, compared with earlier versions of the Bill, these provisions are ‘watered down’ in terms of their requirements for allowing public input. The main reason for these changes is the concern that protracted decision-making procedures will frustrate much-needed developments, such as housing schemes. Here is another arena where the spirit of the guiding principles discussed earlier will be put to the test. This relates particularly to the participation and empowerment principles, which require administrators and judges to ensure that provisions are made to enable groups to be identified and assisted to participate. Much will depend on the surveillance process of the Department of Environmental Affairs and Tourism and NGOs generally.Chapter 5 deals with “Integrated environmental management” (IEM). Interestingly, this section explicitly goes beyond the ‘environment’ definition in the beginning of the Act, insisting that IEM should consider “the potential impacts on the environment; socio-economic conditions; and the cultural heritage” (section 24).The NEMA does not seek to replace those provisions relating to the appraisal of activities that have been promulgated under the Environment Conservation Act. Rather, it allows for the Minister or provincial MEC to promulgate new regulations that incorporate the NEMA’s principles, thereby heralding the development of “second generation IEM regulations” (Laidler, pers. comm.). Some have seen in this provision the potential for a plethora of fragmented and duplicated regulations (e.g. Durban Metropolitan Council, 1998). However, obligatory consideration by the Committee for Environmental Co-ordination should guard against duplication. Further, the possibility for MECs to define particular procedures should allow for IEM to be brought into gear with provincial planning procedures, hence allowing for more co-ordinated and streamlined development authorisation procedures (e.g. Wiseman, pers. comm.; Glazewski, pers. comm.; Laidler, pers. comm.). In the preparation and appraisal of such regulations, the relevant departments and the Committee for Environmental Co-ordination will need to engage with existing and pending policy at national level (e.g. the Planning Green Paper) and provincial level (e.g. the Western Cape Planning and Development Act).There are a number of provisions that enhance citizens’ abilities to engage in environmental protection. These include the workers’ right to refuse environmentally harmful work, the ‘whistle-blower’ protection, and expanded rights to information and locus standi in environmental matters.The NEMA allows any person acting in the public interest or in the interest of protecting the environment to institute and conduct a private prosecution (section 33). Again, this option greatly increases the leverage of environmental interest groups and, like the ‘duty of care’ provision (section 28), relieves some of the pressure on the state’s implementation capacities.However, interest groups in disadvantaged communities, which are not supported by funded and well-connected organisations, are unlikely to find much use with the right to private prosecution. The gap between local level capacity and the knowledge and networking necessary for effective institutional engagement, let alone legal challenges, is just too great (see, e.g., Khan, 1998). In this respect, DuBois (pers. comm.) notes that the private prosecution provision should act as an incentive for citizen groups to develop the capacity to access legal recourse. This capacity should consist of establishing channels of communication and interaction that link scientific and legal skills to the community level. NGOs and academic institutions have an important role to play in this regard.In a country where water is a scarce and unevenly distributed resource, access to water is of fundamental importance to the living conditions of people. Hence, the provision of improved and more equitable access to water is the essential, underlying incentive for South Africa’s new water policy, coupled with the need for prudent and co-ordinated management and conservation of the limited water resource.One of the most notable features of South African water resources is the hugely variable availability of surface and groundwater due to climate and geography. But water scarcity is also socially constructed. White South Africans use as much as they need, and more. About 14 million black South Africans still do not have access to running water and 20 million have no adequate sanitation (Department of Water Affairs and Forestry, 1997; see also Abrams, 1996). The per capita consumption is less than a twentieth of the typical white. Water is unavailable to many black South Africans simply because there are no pipes and taps in many villages and townships.Water supply schemes are hence a fundamental aspect of South African water policy (see Abrams, 1998; Wellman, 1999; Dreyer, 1998). But efforts to improve water access and concomitantly ensure the ecological health of water bodies were fundamentally constrained by the inherited system of water rights (e.g. O’Keeffe et al, 1992; Abrams, 1996; Uys, 1996). Hence, a shift in the country’s water resource entitlement regime was needed.The fundamental principle that guides the National Water Act (NWA) (Republic of South Africa, 1998b) is that water is a national resource, owned by the people of South Africa and held in custodianship by the state (section 3). This principle allows the state to have total control over the utilisation of the resource. It allows for mechanisms to be put in place to manage water resources using a more holistic, ecologically based approach, taking into account the entire water cycle.The Act provides for catchment management agencies to be created in 19 (initially 18) catchment management areas (Figure 2). Each agency must draw up a management strategy for the catchment and will have to perform vital functions for the implementation of the Act, including the crucial process of issuing licences (see below).In fulfilling their functions, the agencies are required to actively promote community participation. However, such facilitation will prove difficult considering the large size of most of the catchment management areas. This issue points to the tensions existing between close interaction with water users, on the one hand, and financial viability, holistic management of the whole catchment, and the potential for cross-subsidisation, on the other. The degree to which the agencies will allow for responsive management will depend on the establishment of effective subsidiary measures. These should include the creation of sub-committees for specific uses or geographic areas (Rowlston, pers. comm.).Most significantly, however, the effectiveness of stakeholder involvement will depend on the interactions between the agencies and voluntary associations of water users. The Act provides for such associations to be formalised as “water user associations” (chapter 8). This clause is an important attempt to regulate the relationship between users and agencies and to provide voluntary associations with statutory functions to allocate and manage the water resource amongst its members. In this respect, there are interesting parallels between this provision and those allowing for community forestry agreements in the National Forests Act and, to a lesser degree, environmental management co-operation agreements in the NEMA. An extra, specific motivation for th creation of the water user associations was to provide a framework for converting the old irrigation boards into more transparent and accountable user groups.There are existing groups of stakeholders that have created forums for water allocation and management in smaller catchments or parts of larger ones. These forums, in some instances, hold great promise to lay the foundations for effective stakeholder participation in the new management areas. One way to support these forums is to formalise them as “advisory committees” (Rowlston, pers. comm.; Pillay, pers. comm.). Section 99 of the Act allows the creation of such committees in a variety of forms and at a variety of scales.The “Reserve” (section 16) is probably the most significant innovation of the Act. With this measure, the Act seeks to implement two of its most important aims: the allocation of adequate water – in terms of quantity and quality – for the country’s population, as well as its ecosystems. Consequently, the Reserve consists of two parts: the “basic human needs reserve” and the “ecological reserve”, which need to be proclaimed for each “significant water resource” (commonly interpreted as each of the 1950 quaternary level catchments).The human rights reserve relates to the basic right for all persons to have access to a minimum amount and quality of water for living and daily tasks; e.g. for drinking, food preparation and personal hygiene. This quantity is commonly put at 25 litres per person per day, accessible within a cartage distance of no more than 200 metres.The ecological reserve refers to the minimum quantity and quality of water necessary for ecosystem health. Methods have been developed for four different levels of reserve definition, thereby allowing for a phased implementation (Rowlston, pers. comm.). However, much like the definition of the human needs reserve, and assessment methodologies notwithstanding, the allocation of water to the ecological reserve is problematical and just as socially framed. This is a fine example of an interdisciplinary concept, where a natural ‘right’ is framed in patterns of power and history, but will increasingly be influenced by the political structure and stakeholder effectiveness of the catchment management agencies. So the Reserve is institutionally framed: it will be a product of allocation politics, not geohydrology.This is especially pertinent in terms of the Reserve’s significance for the allocation of water rights and potential compensation payments. Section 22 provides that the amount of compensation must disregard any reduction made, inter alia, “in order to provide for the Reserve”. This provision, by which individual economic loss is to be justified by the determination of the Reserve, which in itself is not a clearly defined and static notion, is sure to represent a nexus of the Act’s implementation challenges in the coming years. Much will depend on the actual institutions and process that have facilitated the determination of the Reserve and the allocation schedule.With the entitlement to water vested in the state, the allocation of water use rights is, of course, a crucial aspect of the Act. Considering the state’s limited implementation capacity, and the far-reaching changes envisaged by the Act, there is allowance for a staged and gradual implementation of water rights allocation. By means of providing for “existing lawful water uses” and “general authorisations”, the state can allow water use to continue in areas where the resource is not threatened or where water use is “reasonable” and equitable (Sokutu, pers. comm.). Hence, implementation can focus on those areas most in need of change or regulation, by means of, inter alia, compulsory licence applications.The Act thus balances the practicable elements of allowing existing water abstraction and management to continue in a period of creating the new catchment agencies and consensus-seeking procedures amongst interested parties. What remains to be demonstrated is how inclusive and fair to all parties these processes of consultation and deliberation will turn out to be. South Africa has a good tradition of facilitation over disputes. But it remains to be proven that it can instigate deliberative and inclusive processes designed to circumvent disputes even before they arise. It is already evident that much preparatory work is going into this process.Water use licences will need to be paid for. This is in line with the White Paper, which defines the intention to charge “users the full financial costs of providing access to water” (Department of Water Affairs and Forestry, 1997, p.4). Charges are meant to improve the financial sustainability of water supply services, and they are also deemed necessary to encourage prudent exploitation of the resource.One of the challenges in this respect is the Act’s requirement that revenues generated through water use charges will feed directly into water service provision and management (Rowlston, pers. comm.). The Department of Finance, on the other hand, would like to see revenues go to the central fiscus. Much depends on these infra-governmental deliberations, as it could be argued that the success of water charges, and the active participation of stakeholders at the catchment level, will depend on the degree to which water charges will feed directly into local water resource management.Improving government capacityOne of the biggest problems facing the implementation of the NEMA and the National Water Act is the immense difficulty of effective execution and enforcement, especially given severe staff and financial shortages. The institutional capacity issue has significant ramifications for the policies themselves. For instance, some argue that provincial environment departments should not have a veto right in the development authorisation process as this compromises much needed socio-economic development (e.g. Association of Consulting Town and Regional Planners, 1998). This is because the limits in staffing and resources create backlogs and greatly extend the development authorisation process, which impedes investment in land and construction markets. The fear is that ambitious attempts at institutionalising environmental controls without the concomitant provision of adequate institutional resources will erode public and political support for environmental protection, in that the environmental agenda is seen as an obstruction to wealth creation and poverty eradication. In this sense, the incapacity of government to comply with its own rules might make far-reaching provisions for environmental protection counter-productive.With respect to the National Water Act, a key criticism has been that it is too ambitious and complex in the light of limited administrative implementation facilities. The fear is that it creates a regime so full of bureaucracy and government co-ordination, that it results in delays and systemic breakdown, thereby further eroding the crucial support of large water users.However, the relevant state departments are aware of these constraints and there are some positive signs that corresponding strategies are in place. Firstly, the implementation of these acts will be gradual and phased, with provisions being made for institutional capacity building and effective planning. The staged promulgation of the National Water Act is a case in point (Sokutu, pers. comm.), as is the phased implementation of concepts such as the Reserve, as described above.Secondly, there have been efforts to increase governmental capacity. The Department of Environmental Affairs and Tourism, for instance, has been undergoing a “radical and all-encompassing restructuring process” (Jordan, 1999). In recent months, there have been many staff appointments, also at senior levels, and internal working arrangements are being overhauled. For instance, a cross-cutting “task team” has been appointed to co-ordinate a coherent organisational response to the demands made by the NEMA (Beaumont, pers. comm.; Coetzee, pers. comm.). However, high hopes for speedy restructuring and policy implementation should be tempered by the realisation that a co-ordinated institutional response to such dramatic and interconnected policy changes as are described in this article will take time to develop. Having the policy in place, meanwhile, will create a clear incentive and provide strategic guidelines as to where and how capacity needs to be enhanced (Weaver, pers. comm.).Thirdly, the acts themselves contain numerous provisions that are aimed at creating more efficient and co-ordinated government linkages and administrative procedures. In this respect, there are reasons to expect that the Committee for Environmental Co-ordination will play a crucially important role. One of these is that the Committee enjoys the respect and commitment of many of the important high-level officials, also because they were wholeheartedly involved in the drafting of the Act (DuBois, pers. comm.; Coetzee, pers. comm.).Another capacity building measure is the insistence in the National Water Act for revenues generated by water use charges to feed directly into local management efforts. These funds should provide a boost to the financial viability of the water supply system and contribute significantly to institutional capacity building. They could also be put to good effect by means of community education initiatives for water conservation or stakeholder support.The NEMA and the National Water Act share as a vital feature the engagement of civil society groups for purposes of policy implementation. In this respect, an arena that should demand much attention is the relationship between representative mandates and multi-stakeholder, participatory approaches. Superficially speaking, the challenge lies in finding a context-specific balance between participatory processes and the decision-making responsibility of elected representatives. If the relationship between these two instances is not clarified and agreed upon at the outset, deliberative forums are bound for disagreement and tokenism.Part of the problem faced by participatory forums or interest groups – especially in disadvantaged communities – may be described as an administrative and professional approach that is dominated by a technocentric and hierarchical style. As Ngobese and Cock (1997, 265) put it:Public participation procedures are commonly ill equipped to deal with diverse local contexts or the inability of large sections of the community to partake in the process. There is a danger that, given the disjunctive social identities prevalent at the South African local level, the environmental agenda is enacted along narrowly defined socio-political lines, to the detriment of community empowerment and environmental protection (Hamann, 1999). This issue will need to be actively engaged with by the environmental professionals that facilitate EIAs and the provincial departments that review them. Particularly the latter are in many cases dominated by natural scientists, who will themselves admit to having insufficient expertise for social impact assessment (e.g. Laidler, pers.comm.).If a socially sensitive and sophisticated approach on behalf of the state and facilitators is one aspect of participatory management, then another is a committed and reconciliatory civil society. In this respect, perceptions prevalent amongst some politicians and officials, which see environmental groups as commonly representing elitist and NIMBY-oriented agendas are detrimental to any attempt at creating participatory structures (Hamann, 1999). Hence, existing efforts, such as in the form of the Environmental Justice Networking Forum, to widen the representative base and motivational agenda of environmental NGOs should be strengthened.Both the NEMA and the National Water Act go a long way to empower community groups to gain extra leverage in their relationship with industry and the state. Part of the implementation process must surely be a far-reaching information campaign, to inform civil society groups about their position with regard to these acts. Positive steps have been taken in this direction, including, for instance, a NEMA “user guide” that explains the NEMA’s enhanced citizen rights and contains guidelines for NGOs and CBOs.One of the most important policy developments in the wake of the NEMA will be the move towards more strategic environmental plans and assessments. This move relates primarily to the appraisal of policies and plans, and the preparation of “Environmental Management Frameworks” (Department of Environmental Affairs and Tourism, 1998), which allow for strategic, region-based planning. Section 24 of the NEMA is sensitive to such ideas and provides for “compilations of information and maps” that need to be considered when making management decisions. This move is of course also apparent in the National Water Act’s foundations for catchment based water management.Crucially, for these strategic and participatory planning initiatives to provide sustainable pathways, there need to be effective linkages between different levels and sectors of decision-making, all within the framework of inclusive and empowering community participation. In terms of linking different levels, for example, the National Water Act’s catchment management strategies will need to take heed of the third tier water service development plans required by the Water Services Act. In terms of sectoral linkage, those same catchment management strategies will need to feed into, and be responsive to municipal IDPs (e.g. Department of Constitutional Development, 1999). For instance, for the ecological reserve to have impact on strategic planning, it will need to be manifested in the spatial planning for the area.IDPs, with their procedural commitment to inclusiveness and fairness, and their ambit to holistically consider community interests, allow for potentially significant social learning events that should feed into spatial and water resource planning (Hamann, 1999). However, the degree to which environmental concerns are incorporated in the preparation of IDPs will depend largely on the engagement of environmental professionals, author