National Water Resource Strategy: public hearings Day 5; National Environmental Management Laws Amendment Bill [B13-203]: proposed amendments & adoption; Briefing on Algiers Convention

Water and Sanitation

05 November 2012
Chairperson: Mr J De Lange (ANC)
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Meeting Summary

The Committee met to hear the final public submissions on the National Water Resource Strategy, 2012 (NWRS2).

The submission by EcoDoc and GeaSphere expressed concern that the water sector was largely silent on fracking, and provided a brief overview on the process of fracking and penetrating shale rock to extract gas, using tons of water and chemicals. The key concerns were around water requirements, fracking fluids, groundwater contamination, surface water and land contamination and wastewater management. The water requirements were, conservatively, 10 000 wells at 20m litres per well. She questioned how this water would be treated, where it would come from, and how it would be transported.  Groundwater contamination could occur from gas migration and well failures, resulting in tap water being able to be set alight.  There was a lack of capacity and skills to manage existing wastewater in SA.   The water sector needed to apply its mind, research the implications of fracking and guide South Africa, the Ministry, the Department, Parliament, the Water Research Commission and the National Water Research Strategy (NWRS).

The Federation for Environmental Sustainability (FES) looked at “peak water” and sustainable development, externalisation of the cost model, water use licences, the regional impact of mining and Acid Mine Drainage (AMD).   The national economy was based on a national hydrology and SA was at the transition point of peak water, which was the historic moment in time when the economy transitioned from a demand driven condition to a supply constrained condition.  Peak water implied a supply constrained economy with a limited capacity to create new jobs, resulting in social instability and job stagnation.   The issue of water use licences required complex decisions, and 11 factors, like scientific, social and economic, needed to be taken into account. The Water Tribunal was an important safeguard, but there were concerns that its approach to its appeal jurisdiction was unacceptably narrow.  If AMD was not treated to a level where the salt load was removed, the Upper Vaal would go into deficit, and if there was a drought – which was long overdue – either restrictions would be placed on consumers in the Upper Vaal, or the dilution standard at Vaal Barrage would be relaxed.  This would result in very poor quality water reaching the consumers in the middle and lower Vaal area, Free State goldmines and all the mining activity in the Northern Cape on the Vaal-Gamagara Scheme.  With the Upper Vaal in deficit, there would then be no possibility of transferring water into the Olifants catchment area, and mining activities in six provinces could be affected if water consumption was curtailed.

Mr Hendrik du Toit, making an individual presentation, said he had found that the NWRS2 was simply redefining the National Water Act (NWA). The Minister had enormous power and the powers that were supposed to be held by the provinces, were instead controlled by the Catchment Management Agencies (CMAs), which were under the control of the Minister.  There were many gaps in the NWA, covering such aspects as new water users, pollution and problems with the regulations. The protection of water resources had to be addressed. New data should be created to see where water was available according to scientific determination. The regulations around pollution also needed to be addressed.

After a miscommunication issue with a senior legal official of the Department of Environmental Affairs (DEA) had been settled, the Committee considered the provisions of the National Environmental Management Laws First Amendment Bill, after which it was approved unanimously.

The Chief Operating Officer of the DEA gave a progress report on the proposed amendments to NEMA Bill (NEMLA Second Amendment A/B), and was commended on the work done so far.

The Committee heard that the Algiers Convention Treaty had wide ranging implications, as confirmed by the legal opinion read out.  The concerns of the Committee regarding the damages and liabilities clause should be made known to DEA and the Department of International Relations and Cooperation (DIRCO).   The Committee should be included when these matters were discussed, to ensure all the implications were agreed to.  

Meeting report

The Chairperson advised the Committee it would consider the final public hearings on the NWRS2.  The DWA had requested that the discussion on the hearings, due to take place tomorrow, be delayed as Mr Muller, from the Department, was ill.  The Department had also requested that the COP18 briefing be moved from next Tuesday to next Wednesday, so the Committee would be hearing the COP18 and rhino briefings on the same day.  The Rules Committee, of which he was part, would be meeting tomorrow.  He asked for their consent for the meeting tomorrow to begin later, at 10h00.

Submission 1: EcoDoc and GeaSphere
Ms Laine Greef, from EcoDoc and GeaSphere, said the NWRS2 was set to provide the framework within which water was to be managed for the next 20 years, but she was concerned that there was no mention made of hydraulic fracturing.

She said the submission was based on a report she had written for the Environmental Monitoring Group (EMG) and the report was available online for anyone interested.  Everyone wanted clean water for income and sustainable development, and dirty or toxic water was not wanted.  She was not anti-fracking per se, but wanted to know if the practice led people to, or away from, clean water.

Ms Greef noted the water sector was largely silent on fracking, and gave a brief overview on the process of fracking and penetrating shale rock to extract gas, using tons of water and chemicals. The key concerns were around water requirements, fracking fluids, groundwater contamination, surface water and land contamination and wastewater management. The water requirements were, conservatively, 10 000 wells at 20m litres per well. She questioned how this water would be treated, where it would come from, and how it would be transported.

Groundwater contamination could occur from gas migration and well failures, resulting in tap water being able to be set alight.  She was concerned about surface, land contamination and transportation.
A Cornell professor had said there had been one serious environmental problem for every 150 wells drilled to date, and if one were talking of hundreds of thousands of wells, one could be experiencing hundreds or thousands of spills.

Looking at the fracking fluids, in the UK, there were 4 000 to 12 000 tons of chemicals per square kilometer.  Each well required the equivalent to 4 000 bags of chemicals at 50 kg each. She mentioned the health effects of the chemicals in fracking fluid.

Fracking could be worse than coal for climate change.  Groundwater contamination could occur from methane gas migrating, fracking fluids that returned up the well, and deep-water fracking fluids that produced water migration towards the surface along preferential pathways, such as dolerite dykes. It was proven that deep water gas would want to migrate upwards.

There was a lack of capacity and skills to manage existing wastewater in SA.  Ms Greef’s recommendations were that the water sector needed to apply its mind, research the implications of fracking and guide South Africa, the Ministry, the Department, Parliament, the Water Research Commission and the National Water Research Strategy (NWRS).

Discussion
The Chairperson noted that, as he had told other submissions on fracking, the Committee was urging the Department to undertake the necessary research so they could answer for themselves. If the issue arose, the Committee would carry out the necessary processes with integrity.  There was no need for speculation at this stage.  He asked Ms Greef to make herself available for other opportunities, when they arose, to discuss this issue.

Submission 2: The Federation for a Sustainable Environment
Ms Mariette Liefferink, CEO of the Federation for a Sustainable Environment (FSE) said legal representatives from Pilanesberg Platinum Mining would be in the audience to ensure her presentation did not misrepresent the situation. She proceeded to read the lawyers’ letter.
The Chairperson interrupted her and said the Committee would not be drawn into legal issues.  Parliament was not a court of law but a court of opinion, and she had the freedom of speech to say what she wanted without being censored in any way, as long as she dealt with the topic at hand.

Ms Liefferink said that the NWRS2 was an impressive document, but noted that many serious challenges remained and therefore suggested additional enabling actions critical to the successful implementation of the NWRS2.

Referring to peak water and sustainable development, she said the NWRS2 should define sustainable development in more detail.

The Chairperson said there was a policy in the Department dealing with this, so the NWRS2 would not deal with such issues.

Ms Liefferink said the national economy was based on a national hydrology and SA was at the transition point of “peak water.”   Peak water was the historic moment in time when the economy transitioned from a demand driven condition to a supply constrained condition.  Peak water implied a supply constrained economy with a limited capacity to create new jobs, resulting in social instability and job stagnation.  According to the NWRS2, all four international river basins would transcend into absolute water scarcity by 2025, which would imply economic stagnation and potential social decay (without taking into account global climate change). This suggested that the Transboundary River Basins would become the focal point of future hydropolitical risks and economic viability, with particular emphasis on the Limpopo, which was likely to be the epicentre of sub-national economic stagnation and social decay.  This area included the Western limb of the Bushveld Igneous complex where there were intense mining activities.

Ms Liefferink presented an externalisation of cost model, and was asked by the Chairperson what relevance this had to the NWRS2.   She said that in the case of licences, not only the cost implications should be looked at, but also the post-closure effects.

The Chairperson noted the mineral resources legislation made provision for these post-closure costs, and was not part of the NWRS.

Ms Liefferink said there should be cooperation between the different spheres of government.

The Chairperson said the Committee did bring the different departments together and agreed with cooperation.  The specific details were the reserve of the Department of Mineral Resources, however, and were something the Committee could not do anything about, and was not part of the NWRS. 

Ms Liefferink said the issue of water use licences required complex decisions, and 11 factors, like scientific, social and economic, needed to be taken into account. The Water Tribunal was an important safeguard, but she was concerned that its approach to its appeal jurisdiction was unacceptably narrow.  This had been illustrated in number of cases where it had avoided dealing with substantive merits of cases.

She mentioned the regional impacts of mining and wanted the NWRS to consider these effects. She highlighted all the new licences that had been issued.

If Acid Mine Drainage (AMD) was not treated to a level where the salt load was removed, the Upper Vaal would go into deficit, and if there was a drought – which was long overdue – either restrictions would be placed on consumers in the Upper Vaal, or the dilution standard at Vaal Barrage would be relaxed.  This would result in very poor quality water reaching the consumers in the middle and lower Vaal area, Free State goldmines and all the mining activity in the Northern Cape on the Vaal-Gamagara Scheme.  With the Upper Vaal in deficit, there would then be no possibility of transferring water into the Olifants catchment area, and mining activities in six provinces could be affected if water consumption was curtailed.

The Chairperson suggested she looked at the recommendations.

Ms Liefferink replied that the recommendations were included in what had been stated.

Discussion
The Chairperson asked what specific issues in the NWRS the FSE would like to draw attention to.

Ms Liefferink said the main issues were the Water Tribunal and the externalisation of costs.

The Chairperson was not convinced of this, because it was the responsibility of Mineral Resources. Ms Liefferrink had raised interesting issues and it was a pity there was not enough time, as it was clear she had deep knowledge of them.

Mr G Morgan (DA) was interested in an expansion on the factors to be taken into account when issuing licences. What was FSE’s experience of the water use licence process in relation to mining licences?  To what extent was the cumulative process of licences taken into account?  

Ms Liefferink noted that she would make a written submission on Mr Morgan’s first question, as the matter was cumbersome, technical and had many attached socio-economic factors.  In terms of water use licences, many mines began operations without this licence, and they were issued only when there was public outcry. She said there was not sufficient investigation done on the impact of these licences on the region, which was of the utmost importance.  Simulative processes were lacking and the needs of water by poor communities were of a primary concern. Many mines in the Mpumalanga region operated without water use licences in environmentally sensitive areas.

The Chairperson appreciated a written submission.  He felt the legal aspect of the factors to be taken into account when issuing water licences, needed to be considered. This should also be included in the written response, as such a process was open to huge manipulation. The principle was fine, but the legal side was worrying.  Ms Liefferink should not feel intimated by lawyers, as Parliament was the space for the public. People coming to check what she had to say would be wasting their time and if they wanted to control what she said, they should take out an interdict against her.

Submission 3: Individual Presentation
Mr Hendrik du Toit said he had found that the NWRS2 was simply redefining the National Water Act (NWA). The Minister had enormous power and the powers that were supposed to be held by the provinces, were instead controlled by the Catchment Management Agencies (CMAs), which were under the control of the Minister.

Mr Du Toit felt there were many gaps in the NWA, covering such aspects as new water users, pollution and problems with the regulations. The protection of water resources had to be addressed. New data should be created to see where water was available according to scientific determination. The regulations around pollution also needed to be addressed. He highlighted the issue of food production for small-scale farmers, and the regulated use of water from the Vaal Dam.

He mentioned the AMD dumped in sensitive wetlands, and suggested this water be reserved for industrial uses. Storm water was not sufficiently addressed in the NWRS2.

Discussion
It was noted that there were no senior officials present from DWA. The Chairperson found this surprising, as officials had been present for all the other hearings.  

Mr Vincent Manene, DWA Parliamentary Support, explained there had been miscommunication.
The Chairperson found the miscommunication staggering, even blaming his poor English. He noted the Minister had sent him an SMS the night before to say that Mr Muller (from DWA) was ill so the meeting scheduled for tomorrow should be postponed until next week.  It had nothing to do with today’s meeting.  He took it seriously that not even one senior official could be present. He wanted it in writing who, from the Department, had said they would not be attending.

The Chairperson said Ms Liefferink should make it known to the Committee which mines were operating without a licence. He would get the Department’s response.

The Chairperson appreciated the public submissions made. They were vital in keeping the Committee informed, and he encouraged the public to continue to make submissions. It was the forum for the public to state their case and participate in the process of democracy. It was a costly process, but the Committees would be in trouble were it not for these submissions, which were a valuable source of information.

National Environmental Management Laws First Amendment Bill [B13-2012]
The Chairperson brought a matter of concern to the attention of the Committee. He noted there had been a miscommunication, and the response from Ms Linda Garlipp, Chief Director, Law Reform and Appeals for the Department of Environmental Affairs, on the matter basically called the Committee liars, stating that she had not been invited to such a meeting. The Department was not doing anything about it and he did not have the standing to do anything about it. Ms Garlipp had now set the parameters of her relationship with the Department by the response she had given.   He asked Ms Garlipp if she had been in the meeting on the day when they had discussed the previous miscommunication.

Ms Garlipp said she had been.

The Chairperson asked if she had been in the meeting when he had asked the Committee to please give up their lunchtime to process the matter on the next day (Thursday), and they had agreed to it.

Ms Garlipp said she was, but she had understood differently.

The Chairperson said he wanted only a simple answer. He asked if she had heard him ask the Members to deal with the amendments to the Bill during their lunchtime.

Ms Garlipp said she was in the meeting and apologised for understanding it differently.

The Chairperson asked if she had been in the meeting where he had asked her to make the amendments immediately so the Committee could deal with it the next day at lunchtime. He asked if it was true that she had sent the amendments and not the memorandum.

Ms Garlipp said this was correct, but there was a reason for this.

The Chairperson said he did not want to hear her reasons but wanted simple answers. He would leave the matter at this, and the Committee had now heard for themselves. From now on, matters would be done in writing and people would sign to ensure things were clear.  It was unfortunate and had affected the relationship with certain of the DEA staff members. He did not want these staff members in his meetings without a senior official present to oversee their work and take responsibility.

The Chairperson hoped the Bill could be passed at the end of the meeting, and noted he had sent the resolutions to the Committee.

The Chairperson asked the Department to check the heading and the long title.

He began reading the changes marked in yellow.

The Committee agreed to the long title.

He asked if the Committee was happy with the un-amended clauses, in the original Bill, as he would only be going through the new amendments. The Department should make it known if he missed anything.

The “biodiversity sector” was the first amendment and “competent authority” was the second amendment. He questioned if there was a definition for MEC in the Act and if it was necessary to say “the relevant MEC”.

Ms Lize McCourt, DEA Chief Operating Officer, said the Act did say Member of the Executive Council responsible for environmental affairs.

The Chairperson said he would leave this for the time being and the Department could let him know what they had done in that regard.

Mr Ishaam Abader, DEA DDG for Legal, Authorisations and Empowerment, said it was already in the Act and proceeded to read the section out loud.

The Chairperson said he would think about this and come back to it later.

The Chairperson noted the next change was “organ of state”. He asked if it was in the original Act, or if it had been added.  

Ms Garlipp said it was in brackets, as it was meant to have been deleted in the original Act.

The Chairperson said this was fine.

The next definition was “delegation” and it was agreed to.

On the matter of the definition of “issuing authority” and whether to include the MEC, the Chairperson said the legal advisors had indicated “no.”  He asked for their explanation.

Ms Ngcobozi Vuyozaki, state law advisor, said she had looked into Section 125 of the Constitution.

The Chairperson said they should not be looking at this, but should be looking at the original Act and what the Department was adding to it.  He wanted to know what the Act said about permits and if it said that only the Minister should exercise this power. The law advisors needed to work together to come up with one answer. He would come back to this matter to be certain of the legal position.

The next amendment was on “self-administration”. He asked why it remained “exclude” when it  should be “excludes”.

Ms McCourt said it would be corrected.

The next new clause was the “objects” clause and it was agreed to.

It was noted a clause would be removed from clause five (b), and the Committee agreed.

Clause 20, subsection five, was re-written, and the Committee was happy with this.

The next amendment was section 24, “refusal of permits”. The Chairperson said he was not happy with this, but there was no alternative. He suggested additional wording to make sure the section was interpreted correctly.

Ms McCourt asked where in the sentence to include this wording.

The Chairperson said the Department should check the grammar.

Mr Abader said it should be “delegating authority” and not “issuing authority,” as the Minister was also an “issuing authority”.

The Chairperson said the Minister could also be bound by these directives. The Department should check to see if it should not be both.

The Committee agreed to the inclusion of “(d) the carrying out of the restricted activity has a detrimental impact on the species” under clause 25.

The next amendment was clause 30. The Committee agreed to all the new inclusions made under this clause. Within clause 30, under (s), the Chairperson questioned whether “and conditions” should be included after the word “circumstances”. This was agreed to. The catch-all clauses of the Committee were agreed to under clause 30.

The Committee agreed to the amendment of clauses 35, 38, 39 and 41.

The Chairperson asked when the Act would be sent to the President to be put into operation. Why was it not stated that the Act could come into operation on the signature of the President? He asked what the usual wording was.

Ms McCourt said this could be done.   The usual wording was “assented to by”.

The Chairperson noted that, according to section 81 of the Constitution, once it was signed by the President it became an Act of Parliament and it took effect from the date that it was published or a date determined in terms of the Act.  He suggested it should state it should come into effect on the date when published by the President in the Gazette. If there was any delay, the Department should approach the Committee. This was agreed to under clause 41.

The Chairperson returned to the “issuing authority” clause, and it was noted the MEC would have to be added. The law advisors agreed to this.

Ms Thea Carroll, DEA Director: Regulations, said this amendment had been proposed, as the Minister would like to fulfil the function of the issuing authority nationally – for instance, to issue all rhino permits nationally. If both the Minister and the MEC were the issuing authority, in terms of the Constitution, the power would fall to the province.

The Chairperson said if the Department wanted this, they would have to amend the Act. If the Act did not state that, it could not be done.

Ms McCourt said this was similar to what had been done in chapter five of the National Environmental Management Act (NEMA), which stipulated under what conditions the Minister must be identified as the issuing authority.

The Chairperson said the way to deal with this was for the Bill to be passed as it was stated, with the wording “issuing authority,” and for it then to go to the NCOP. If the Department wished, they could draft an amendment to this clause, and give it to the Chairperson for him to circulate to the Members to see if they were happy with it, to avoid conflict. The amendment could then be passed in the NCOP during the cycle so as not to hold the Bill up. The Department must be clear about what they wanted. Once a concurrent Bill was passed in Parliament, if powers were not taken away from the provinces, they would be fulfilled by the provinces.

Mr Morgan wanted a proper motivation for amending the “issuing authority” clause and for a discussion on the merits of this amendment to ensue. He was not convinced of a one-size-fits-all approach.

The Chairperson agreed to this, but suggested that if the Department first brought the proposed wording for an amendment, the Committee could then discuss it, as they would know what was being done or not being done.

The Chairperson said the Department should outline the amendments clearly and correctly, so that the Committee was not misled.

Ms McCourt said the Act constantly dealt with “non-detriment findings”.

The Chairperson asked what the correct spelling would be. It was noted that it was “non-detriment findings”. The Chairperson asked what this meant.

Mr Abader read the definition found in the Act.

The Chairperson said it should be left like that.

The Chairperson rapidly went through the amendments agreed to, and instructed the Department to amend the document and bring it back to him to approve the changes made before it went further. He instructed Ms McCourt to oversee this herself so there would be no problems.

He read through the Committee Report on the National Environmental Management Laws First Amendment Bill and noted the necessary changes to be made to this report.  It was discovered the Committee secretary had handed out an old version of the report. He noted the changes that needed to be made to the document were all technical.

The Committee formed a quorum and the report, with the amendments to the Bill, was unanimously passed.

The Chairperson made sure there were no misunderstandings. He appreciated the work of the law advisors, the Department and the Members.

Progress Report on proposed amendments to NEMA Bill (NEMLA Second Amendment A/B)
The Chairperson stressed this was a progress report to see how far the Committee was and what challenges had been experienced.

The Chairperson asked if the memorandum for the first Bill was correct. He noted the memorandum was not part of the Bill, so strictly speaking it did not get passed. He wanted to make sure the Department reflected what needed to be in the memorandum.

The Chairperson asked the law advisors to check the memorandum and for the Department to report that it had done this.

Ms McCourt said there had been a list of eight tasks given to the Department by the Committee at the clause by clause discussions held on the 18 September 2012. In terms of the “competent authority” and taking powers away from the provinces and relations with other Acts, the Department had done some research into this and the briefing document was busy being drafted.  They were looking into omitting some of the proposed amendments because of a lack of proper consultation on these matters.

Looking at the development of management tools set up under Chapter Five of NEMA, environmental impact assessment regulations had been developed as a tool, while the other tools were not yet formalised but would be included in the briefing document, to explain how far they were.

In terms of the implementation of Section 24C of NEMA (“competent authority” clause), the report on this was currently being prepared and the briefing document would include this.

The fourth area to be looked at related to the regulatory impacts assessment study. Not much progress had been made on this, and the implications were still currently being investigated.
The report on the environmental management plans had been finalised and would be provided. It looked at where provincial departments were in the publication of the Environmental Implementation Plans (EIPs) and the Environmental Management Plans (EMPs).  Emergency response situations under section 24G/30 were being looked into, but Ms McCourt noted difficulty was being experienced with environmental authorisations.   The review and redrafting of the proposed amendments to section 24G had already been made, but Committee needed to advise if they met expectations.

The Department was still investigating the exemptions clauses under section 24M and the specific issues of the feasibility of the Minister of Mineral Resources, and the work was still outstanding.
The Chairperson noted this was good progress made.  He suggested the Department compile an index when handing out a pile of documents to make it easier. Two days would be set aside next year to look at the work started on the Bill and the Department would then give the final report. This left the Department with a month and a half to finish the work.

He made it clear that this was work in progress, and not yet public.

Algiers Convention Treaty
The Chairperson noted the issues raised, but said the main problem was with the damages and liabilities clause.

The Chairperson highlighted an opinion on the Treaty from Ms Tanya Steenkamp (14 September).
Nothing could bind this country if the Treaty had not been ratified.    The Treaty had wide ranging implications, as confirmed by the legal opinion read out. He could not stop the Treaty and it should be ratified, but he thought the concerns of the Committee regarding this clause be made known to DEA and the Department of International Relations and Cooperation (DIRCO).   The Committee should be included when these matters were discussed to ensure all the implications were agreed to.  He asked Ms Shereen Dawood (Committee content advisor) to draft something on these lines, to be passed the following day.

Ms McCourt agreed with this, and noted there was a similar problem with a clause in the chemicals and hazardous waste treaties.

The Chairperson suggested someone from the Department should attend the meeting tomorrow with the information on these treaties, to brief the Committee. He asked who would be present. He hoped he was making himself very clear, so that there was no misunderstanding.

It was noted that Mr Abader would attend the meeting.

The Chairperson said that tomorrow’s meeting would cover the climate change report and resolutions on treaties in general.

The Chairperson said he had a lot of respect for the Department.  They had delivered good work and been an example to the country, but the standards in the area of this Bill were not up to the high standards he had expected. The Committee may at times not have explained itself as well as it should, and that may have been the reason for the standard slipping, but he had expected more. All communications would take place in writing between Ms McCourt, as the COO, and the Committee secretary, to ensure things ran smoothly.  He asked the Committee secretary to make sure things were done right from the Committee’s side.  He did not need these hassles when he did things on behalf of the Department. It was wrong and did not reflect well on the Department. He said the Department would now return to its high standard of work, and there would be no more glitches.

The meeting was adjourned. 
 

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