Law & Regulation
National Water Act 36 of 1998
Treats national government as public trustee of the nation's water resources and regulates protection, use, development, conservation, management and control of those resources. Defines categories of "water use," establishes limited statutory entitlements and existing lawful use, enables General Authorisations, and creates the water-use licensing system, alongside pollution prevention/remediation and enforcement. The correct project question is not whether a development "uses water" generally, but whether it conducts a statutory water use and, if so, whether that use is lawfully authorised without an individual licence or requires one.
Legal Significance
What This Instrument Does
Treats national government as public trustee of water resources and regulates their protection, use, development, conservation, management and control; defines "water use," establishes Schedule 1 uses and existing lawful use, enables General Authorisations, and creates the water-use licensing system; regulates pollution prevention and remediation, licence conditions, transfers in defined circumstances, monitoring, directives, enforcement and appeals. Instrument boundary: does not mean every infrastructure project requires a Water Use Licence, and does not itself grant zoning, environmental authorisation, waste-management licensing, a municipal water-supply contract or land rights.
Why It Matters
Power plants, mines, factories, wastewater works, roads, railways, ports and pipelines may abstract, store or discharge water, alter watercourses or dispose of substances in ways that affect water resources, influencing site feasibility, technology, construction method and operating capacity. Water availability and legal entitlement must be distinguished — a supply agreement does not necessarily authorise abstraction or discharge, and historic unauthorised use or pollution may create remediation and enforcement exposure.
Key Provisions
- Section 3 — Public trusteeship
Makes national government public trustee of water resources and assigns protective and allocative responsibilities. Practical consequence: owning riparian or project land does not itself confer unrestricted water-use rights.
- Section 4 and Schedule 1 — Entitlement to water use
Identifies lawful routes including Schedule 1 uses, continuation of existing lawful use, General Authorisation and licence. Practical consequence: classify the use first; not every use needs an individual licence.
- Section 19 — Prevention and remedying effects of pollution
Requires an owner, controller, occupier or relevant person to take reasonable measures to prevent pollution and authorises directives and recovery. Practical consequence: environmental diligence should identify control and historic causation regardless of contractual allocation.
- Section 20 — Emergency incidents
Requires reporting and response to incidents that pollute or may pollute water resources. Practical consequence: emergency plans should include DWS notification, containment, remediation and cost tracking.
- Section 21 — Water uses
Defines regulated uses, including taking, storing, impeding/diverting flow, stream-flow reduction, controlled activities, discharges, disposal affecting water resources and alteration of watercourses. Practical consequence: map each construction and operating activity separately — dewatering or crossings can trigger analysis even without long-term abstraction.
- Section 22 — Permissible water use
Provides when a person may lawfully use water without committing an offence, including Schedule 1, continuation, General Authorisation or licence. Practical consequence: "no licence" does not mean unregulated use — keep documentary evidence of the entitlement and its limits.
- Sections 32–35 — Existing lawful water use
Defines and regulates qualifying historic uses and verification or validation. Practical consequence: do not assume historic physical use is legally protected — test qualifying period, lawfulness and verification status.
- Sections 36–38 — Stream-flow reduction and controlled activities
Identifies specified activities capable of special regulation. Practical consequence: sector characterisation can change the water-authorisation route.
- Section 27 — Considerations for licence decisions
Lists factors relevant to issuing general authorisations and licences, including existing uses, redress, efficiency, socio-economic effects, resource strategy and likely impact. Practical consequence: submissions should address statutory allocation and impact factors, not only technical viability.
- Sections 40–42 — Licence applications and procedure
Regulates applications, information, assessment, public participation and related procedural matters. Practical consequence: build studies, consultation and authority information requests into the development programme and CP timetable.
- Section 29 — Licence conditions
Allows detailed conditions concerning quantity, quality, monitoring, management, works, security and other matters. Practical consequence: financial models and EPC/O&M requirements should reflect licence constraints.
- Sections 49–52 — Review, amendment, renewal and transfer interface
Provides statutory mechanisms affecting licence duration, review and succession/transfer in defined circumstances. Practical consequence: a project sale or restructuring should not assume automatic transfer.
- Sections 53–55 — Rectification and enforcement directions
Authorises directives and remedial action for contraventions and unlawful water use. Practical consequence: pre-acquisition diligence should identify unauthorised works and outstanding directives.
- Chapter 15 / section 148 — Appeals and dispute routes
Provides appeals to the Water Tribunal for specified decisions and access to further legal process. Practical consequence: identify whether the decision is appealable and whether implementation is suspended.
InfraLex Relevance
The independent water-resource authorisation layer within South African infrastructure permitting — operating alongside, but not substituting for, NEMA environmental authorisation and land-use approval.
Legal Framework Position
- Environmental / PermittingPrimary / Framework Instrument
Instrument Overview
- Official Citation
- 36 of 1998; Government Gazette 19182, Government Notice 1091, 26 August 1998
- Instrument Type
- Law / Act
- Source Language
- English
- Enactment Date
- 26 August 1998
- Effective Date
- 1 October 1998
- Last Verified
- 6 September 2026