Boreholes and the legal know-how.

Boreholes and all the legal need-to-know

Do you need any authority or licence to drill a borehole? Chantelle Gladwin, Partner, and Nonhlanhla Ndhlovu, Candidate Attorney at Schindlers Attorneys, answer this question - and more - on boreholes.

When electing whether to use a borehole or a sink borehole, one should consult an expert in this regard and ensure that any legal requirements, as well as any practical requirements, are met before embarking on the drill.

Introduction

The recent water restrictions have brought into sharp focus how even ‘first world’ cities like Johannesburg are battling to manage their water resources in a sustainable manner. Johannesburg Water SOC Ltd and the City of Johannesburg Metropolitan Municipality (COJ) are accordingly promoting the use of borehole water as an alternative to the conventional municipal supply.

This is done in an effort to alleviate the pressure on municipalities to provide sustainable and quality municipal services to all residents within their jurisdictions.  The use of boreholes to supplement, or replace, the conventional municipal supply is thus becoming more common, especially in new developments outside of traditional city limits.

This article accordingly considers what authorisations and/or permits are necessary for the drilling of a borehole and the use of water from that borehole. 

This article will focus on the legal situation in Johannesburg, but the principles that are related below apply to all municipal jurisdictions.

Do I need any authority or license to drill a borehole?

In short, the answer depends on where your property is located. If it is in the jurisdiction of COJ, then you don’t need any permission, but if it is in the jurisdiction of Ekurhuleni Municipality, then you do need permission from the municipality before you drill in terms of section 85 of the Ekurhuleni Municipality’s Water Bylaws.  

You might also be required to give notice to your municipality that you are planning to drill a borehole. For example, section 41 of the COJ’s Public Health Bylaws provide that persons in Johannesburg need to give the municipality 14 days' written notice of their intention to sink a borehole.

If I have an existing borehole, do I need to register my borehole with anyone?

Although in most cases a municipality will not charge you anything for the water drawn from a borehole, there are considerable costs associated with the sinking of the borehole.

In short, the answer is ‘no’ in relation to boreholes in the Johannesburg area, but ‘yes’ within the Ekurhuleni Municipality jurisdiction. However, in both cases, you need to notify the municipality of the fact that you draw water from your borehole. Check with your municipality to be safe.

Do I need any authority or license to use water out of the borehole?

In short the answer is ‘yes’ - a person may only use water without a licence if it is lawfully permissible. There are three ‘levels’ of usage described in the National Water Act 36 of 1998. These ‘levels’ are based on the amounts of water drawn from the borehole. 

Schedule 1 water use

If your water use is limited to reasonable domestic (household) use, which can include small gardens not used for commercial purposes, and which also includes the use of water for grazing animals provided that you are not supplying a feedlot and provided further that the number of animals on the land do not exceed the land’s grazing capacity, then there is no need to register your water use.

There is no ‘maximum limit’ set for the amount of water that can be used for reasonable domestic purposes in terms of the National Water Act, but this Act does give the water catchment management agency that operates in the area the power to stipulate a maximum amount. You would thus need to check with the applicable catchment management agency whether it has set a limit for your area.

General Authorisation water use

A person who owns or is lawfully living on land and is using water from a groundwater source (i.e. a borehole) can use the amount of water specified in Table 1.2 of the General Authorisation published in Government Notice 399, published in Gazette 26187 on 26 March 2004 (which is still applicable today).

(If your water use is limited to reasonable domestic (household) use, which can include small gardens not used for commercial purposes, then there is no need to register your water use.)

The amount that you can use is measured in cubic metres per annum and is calculated based on which area (or ‘zone’) the property is located in, and the size of the property (measured in hectares), provided that the water use concerned does not impact on the water resource, or other people’s land or water use, is not excessive, and is not detrimental to other users and the health and safety of the public.

Essentially, if you are using water under this General Authorisation, you only need to register this water use with the Department of Water Affairs and Forestry if you use more than 10 cubic metres from a borehole on any one day, or you store more than 10 000 cubic metres of water per property. If your use or storage capacity is less than this, you don’t need to register.

Licensed use

For all types of uses, and all amounts of usage not covered by Schedule 1 and the General Authorisation, you need a water use licence. This is granted by the Department of Water Affairs and Forestry after a strict application process.

‘Existing lawful water use’

If you were using water from your borehole in the two years before the Water Act came into being, then (in the great majority of cases) you will be regarded as having an ‘existing lawful water use’ for as much water as you were using, provided that you were using it ‘responsibly’. 

There are exceptions to this, however, such as where the use of ground water in your area was subject to the control of any government authority, legislation, or water court or irrigation board or similar body. In this case, your ‘existing lawful water use’ is limited to the use that you were lawfully permitted by these bodies. 

The Water Act provides that if you have an ‘existing lawful water use’ you are deemed to be using water from your borehole lawfully under the Water Act, but only as an interim measure, until you can apply for a water use licence (if you need one).

If you fall into this category, be aware that the Water Act provides that an investigation can be carried out into whether your ‘existing use’ was indeed lawful or not. You can also apply for this investigation to be carried out if you want to validate your present use through the ‘existing lawful water use’ requirements in the Water Act.

Do I pay anything to the municipality for water if I have a borehole?

In COJ’s jurisdiction you won’t pay for the water drawn from the borehole, but you might be charged for sewer generated based on the water drawn from the borehole.

Ekurhuleni Municipality, however, reserves the right to install a meter to measure how much is drawn from the borehole, but doesn’t charge anything for water drawn or effluent generated as a result of the borehole at present.

However, Ekurhuleni’s bylaws give it the power to decide at a later stage that it can prescribe limits to the amount of water to be drawn from the borehole, and impose a cost for same. Check with your municipality. 

Who is responsible for the quality of the water that comes out of the borehole?

In short, you are, and the municipality cannot be held liable for the poor quality of the water in your borehole. You should have the quality of your borehole water tested regularly to ensure that it is safe to drink and to use for other households and/or commercial purposes.

Many municipalities (including COJ) empower themselves through their Health Bylaws to call for particulars of your water source (details of the borehole), proof that the water quality is sufficiently safe, and some (including COJ) even require that a certificate be submitted annually (or when requested by a Health Officer) as proof of same.

Danger to the public

You need to ensure that your borehole is properly covered so that no person or animal can fall into it and sustain injuries. In the event that any person or animal is injured in this manner, you may be held liable for damages.

You also need to ensure that your borehole is not being contaminated by any source, as this will lead to the groundwater source (from which your borehole draws water) being contaminated too. Most municipalities regulate this in their Health Bylaws.

Financial analysis

Although in most cases a municipality will not charge you anything for the water drawn from a borehole, there are considerable costs associated with the sinking of the borehole. These include the cost of drilling (which can be R 40 000 or more), the cost of the electricity to power the pump needed to pump the water from the borehole, the monthly insurance for the borehole pump, and the maintenance and replacement thereof when necessary.

There are also several other risks associated with a borehole, such as the risk of the borehole running dry, the risk of your neighbour sinking a deeper borehole and drawing all of the water out of the aquafer that you are boring into, and the risk that the water quality will not be or remain suitable for your purposes.

Conclusion

When making electing whether to use a borehole or a sink borehole, one should consult an expert in this regard and ensure that any legal requirements, as well as any practical requirements, are met before embarking on the drill. - Chantelle Gladwin Partner, and Nonhlanhla Ndhlovu, Candidate Attorney at Schindlers Attorneys