Water Rights: What To Do When Expanding An Operation

Adding to a farming operation or agribusiness is not simply a matter of obtaining more land. James Brand, senior associate in environmental affairs at law firm ENSafrica, discusses the legalities involved in securing water rights on additional land, and environmental authorisation for clearing indigenous vegetation.

Any South African farm or agribusiness that plans to expand has to consider a host of legal considerations. Two of these are often overlooked: securing a lawful supply of water for agri-processing and irrigation farming, and receiving environmental authorisation, where required, for irrigation farming.

A WATER-USE LICENCE: WHAT IT IS EXACTLY?

Many agribusinesses operate under the mistaken belief that a water-use registration is akin to a water-use right or entitlement. This is not the case.

Anything less than a water-use licence that specifies the property description, includes the expanded area, and authorises the use of sufficient water, is likely to be insufficient for the purposes of determining a lawful water supply.

Many agribusinesses do not have a water-use licence for their existing operations, let alone for future expansion.

A study carried out in 1994 estimated that approximately 65% of South Africa’s water use was acquired through land ownership as ‘existing lawful water uses’, and this type of water-use entitlement is common in the agribusiness sector.

Until they are verified and validated, it is permissible to continue with these existing lawful water uses, but the amount of water available for use will typically be limited to the water used for operations during the period 1996 to 1998.

FUTURE EXPANSION