Presentation to the Portfolio Presentation to the Portfolio Committee: Water & Environmental Committee: Water & Environmental

Affairs Affairs

Presentation by Mbangiseni Nepfumbada

Acting DDG: P&R11 August 2010

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Briefing on Regulation, Compliance Briefing on Regulation, Compliance Monitoring and Enforcement in the water Monitoring and Enforcement in the water

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PRESENTATION OUTLINEPRESENTATION OUTLINE• Background and overview of the regulation

function in DWA• Current functions of regulations • Purpose & setting up of CME unit• Transgressions & interventions

– Statistics, legal instruments, illegal use• Strategic focus, challenges and solutions

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BACKGROUND (1)BACKGROUND (1)• Regulation is a key function of the Department of Water

Affairs (DWA) involving regulating all aspects of the water business

• It has been identified as a risk areas in respect of implementation of the National Water Policy and legislation

• Requires dedicated attention – thus identified as critical and stand alone Programme since 2009 - implemented 2010

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BACKGROUND (2)BACKGROUND (2)• Regulation as a programme covers the

following key areas of operation:–Economic & Social Regulation – economic and

social implications of water, esp. iro institutions under DWA

–Water Use Authorisation - authorisation through use of regulatory instruments like licensing & allocation reform)

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BACKGROUND (3)BACKGROUND (3)– Compliance Monitoring - coordination and

monitoring of compliance to standards, licence conditions & regulations across the full water value chain (includes, water resources, dam safety, water hazards and water services)

– Compliance Enforcement - ensures that appropriate legal or corrective action is taken against all unlawful water use and other regulatory transgressions or requirements.

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BACKGROUND (4)BACKGROUND (4)• The remaining functional areas as currently proposed are

to form part of Policy & Planning, representing Water Management Programme

• The establishment of the regulatory function (CD structure & programme) was effected on 01 March 2010 through consolidating a number of functions into one unit.

• Process is underway to develop a fully fledged branch Regulation

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REGULATION OVERVIEW (1)REGULATION OVERVIEW (1)

REGULATION

Compliance

Conformity

Penalise / Enforce

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REGULATION OVERVIEW (2)• In a developing state it is difficult to time regulation and

compliance enforcement. But a phased process can be followed over time

Dev Policy & legislation

Oversee / support / correct

Regulate / Ensure compliance

Time frames / Conditions

Time frames / ConditionsDevelop regulations

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CURRENT REGULATION FUNCTIONS

• Current functions covered under the Regulation function are – water allocation; – resource protection and waste; – Abstraction and In-stream use, – water services regulation and – compliance monitoring and enforcement.

• This presentation focuses on progress with setting up a compliance monitoring and enforcement unit and efforts to curb water transgressions

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PURPOSE OF THE CME UNIT• To ensure the protection of all water resources in the

country

• To ensure compliance with water legislation (National Water Act, Water Services Act and related legislative provisions)

• To ensure enforcement where non- compliance is identified

• Enforcement is not an end, but a means to an end. It can be used as a DETERRENT

PROGRESS WITH SETTING UP THE PROGRESS WITH SETTING UP THE CME UNITCME UNIT

• The CME unit has been relocated to the new Programme Regulation

• It is currently comprised of 20 staff with

– 30% located in the National Office focusing on Enforcement and

– 70% to be deployed in the Regional Offices across the country focusing on Compliance Monitoring

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CHALLENGES IN SETTING UP THE CHALLENGES IN SETTING UP THE CME UNITCME UNIT

• Aligning regional and national functions as well as role clarification

• Requisite capability requirements

• Change management – especially moving from fragmented regulatory functions to consolidation

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INTERVENTIONSINTERVENTIONS• Refinement of Regulatory functions from

National to Regional Offices (including redeployment & change management)

• Focussed training and competence development for effective enforcement

• Collaboration with Departments like Environment, Justice and SAPS

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INTERVENTIONS (2)INTERVENTIONS (2)

• Additional budget request as part of strengthening the Regulation Programme

• Focus on key areas of improvement:

–quality of information and reporting

–Effectiveness and efficiency in dealing with cases and follow through

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STATISTICS ON STATISTICS ON TRANSGRESSION TRANSGRESSION

ANDAND INTERVENTIONS INTERVENTIONS

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Statistics on Legal Instruments per Sector Statistics on Legal Instruments per Sector (June 2010)(June 2010)

LEGALINSTRUMENT

SECTOR

TOTALMines Agric. WSA Industry Other (SO)

Pre-directives 32 127 86 10 9 264

Directives 16 48 23 8 2 97

Water Tribunal Cases

- 6 1 - - 7

Criminal Cases 3 13 6 1 - 23

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Stats on Pre-directives, Directives & Cases per Stats on Pre-directives, Directives & Cases per ProvinceProvince

PROVINCE PRE-DIRECTIVES DIRECTIVES CRIMINAL CASES

Limpopo 5 8 0

Mpumalanga 131 23 14

Gauteng 33 26 2

North West 8 10 1

Northern Cape 21 10 0

Western Cape 6 0 0

Eastern Cape 17 3 1

Free State 12 13 4

KwaZulu Natal 31 4 1

TOTAL 264 97 23

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TRANSGRESSIONS TRANSGRESSIONS ANDAND

INTERVENTIONS INTERVENTIONS

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ILLEGAL WATER USE: IRRIGATION (1)ILLEGAL WATER USE: IRRIGATION (1)

• It is estimated that 180 million cubic metres of water is used illegally in the Upper Vaal catchment per year.

• These farmers are using water that is supplied through expensive water transfer infrastructure built and paid for by the domestic and industrial users of the Vaal River system.

• A process has started to rectify this situation but it is costly, complex and time consuming.

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ILLEGAL WATER USE: IRRIGATION (2)ILLEGAL WATER USE: IRRIGATION (2)

• Validation and verification completed (44% of users).• It’s only after verification process on a property has

been completed (section 35 NWA) that a final decision can be made on the legality of the water use.

• No legal action or any enforcement action can be taken against a property owner before the verification process has been completed on that property.

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ACTIONS AGAINST MINES (1)ACTIONS AGAINST MINES (1)• Many mines currently operating without licenses• In many cases of existing mines- Regulation is

restricted where mines are waiting for licenses and therefore success of project Letsema is critical.

• Stronger cooperation needed with Department of Mineral Resources (DMR)

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ACTIONS AGAINST MINES (2)ACTIONS AGAINST MINES (2)

• Typical case is where issuing of mining license is on condition there is a water use license

• Tough stance by CME includes instituting legal action against mines.

• Problems persist where mines are derelict, bankrupt and abandoned

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ENFORCEMENT ON ORGANS OF ENFORCEMENT ON ORGANS OF STATE (1) STATE (1)

• Enforcement protocol compiled and approved.• Follows the Promotion of Administrative Justice Act

as well as Intergovernmental Relations Framework Act

• Firstly look at suggestions and support development of action plans such as Blue Drop and Green Drop process

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ENFORCEMENT ON ORGANS OF STATE ENFORCEMENT ON ORGANS OF STATE (2)(2)

• If commitments and undertakings by municipalities are not honoured DWA moves to next step

• Issuance of “Notice of intention to issue a Directive”, also referred to as a Pre-Directives;

• Issuance of Directives in terms of specific sections of the NWA

• No response or action to rectify after a directive was issued then.

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ENFORCEMENT ON ORGANS OF ENFORCEMENT ON ORGANS OF STATE (3)STATE (3)

• Criminal Prosecution:– Where the State Organ has willfully failed to co-operate

without a valid reason, failed to implement the agreed solution then the State Organ is held criminally liable;

– Legislation including criminal liability of the stateSection 156 of the NWA: “This Act binds all organs of state”

The said section does not provide any exclusions in discharging this mandate and therefore all the State Organs, like any other user of the water resources, are subject to the all the provisions of the NWA

STRATEGIC FOCUS, STRATEGIC FOCUS, CHALLENGES AND CHALLENGES AND

SOLUTIONSSOLUTIONS

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STRATEGIC FOCUS AREAS FOR STRATEGIC FOCUS AREAS FOR REGULATIONREGULATION

• Further improve drinking water quality• Eradication of Unlawful Water use in the Vaal River system

(irrigation) • Waste Water Treatment Works compliance• Compliance by Industry and Mines • Implementation of the Enforcement Protocol against

Organs of State• Quality of directives reporting and follow-up• Recruit and Build capacity of Staff.

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CHALLENGES AND SOLUTIONS (1)CHALLENGES AND SOLUTIONS (1)

• Licences backlog - success of project Letsema will help

• Legal process slow-dedicated courts

• Capacity in unit- Staff recruitment and training

• Directive follow ups- better investigations

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CHALLENGES AND SOLUTIONS (2)CHALLENGES AND SOLUTIONS (2)

• Decrease of illegal irrigation depends on verification and validation process- complex- service provider on board and special project started

• Legal actions not final solution-weigh other options and strategies to solve the problem

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THANK YOUTHANK YOU