The Compliance, Monitoring and Enforcement division within the Department of Water and Sanitation (DWS) has the difficult task of curbing water transgressions and safeguarding all water resources while still encouraging development. Kirsten Kelly interviews Anet Muir, Chief Director: Water Use Compliance, Monitoring and Enforcement at DWS.

While water is an economic enabler, it can also be a victim of economic growth when industries and organs of state alike do not comply with laws and regulations. “As a water scarce country, we need laws and regulations to protect this resource. Our unit does not believe in over regulation, and we are working towards streamlining authorisation requirements. We need to preserve water for future generations and businesses,” says Muir.  

Policies and standards to deal with water pollution sectors are generally in place, the challenges facing South Africa is not due to policy gap, but rather non-compliance to existing policies and standards.

Compliance

The Compliance, Monitoring and Enforcement Division conducts regular inspections and audits to assess compliance against issued authorisations. If noncompliance is detected, that facility is notified of non-compliance issues and given a time frame to comply. Should the facility still fail to comply, they will be referred to the enforcement division for administrative processes, civil processes or criminal processes.

If there is a suspicion that there is unlawful activity, an investigator (and not an inspector) will go onsite. When dealing with illegal activity, there are three options available, depending on the severity of the situation:

1. Pre-compliance notice with a time frame to respond or comply which may be followed by a Directive
2. Civil enforcement if there is a threat to property or life
3. Criminal enforcement which may run in parallel with the two actions above

With criminal enforcement, a case is opened with the South African Police Service (SAPS). “Our officials are designated as environmental management officers that can conduct an investigation (carry the docket, collect evidence and statements and build a case). This docket   is then handed over to the National Prosecuting Authority (NPA). We work together with  the SAPS especially where there are other elements like commercial crimes together with the environmental crimes,” explains Muir.

The requirements for compliance for organs of state (other ministries, municipalities, water utilities and state-owned entities) remain the same. Administrative enforcement can be implemented. However, an inter-governmental process must be followed regarding civil and criminal litigation. This is because the Constitution states that organs of state must avoid legal proceedings against each other. Therefore, before instituting civil or criminal action against another organ of state, DWS must exhaust all measures before going to court.

Muir explains that DWS needs to both support and regulate local government. “For example, should we institute a criminal or civil enforcement against a municipality, the court will first ask for proof that DWS exhausted all manners of support.”

While criminal enforcement has its place, it is not always the best option. “Fining an already impoverished municipality millions of Rands will not restore or improve waters services .  The DWS will continue to encourage and assist companies, individuals and organs of state with compliance and will only involve enforcement as a last resort. Our division runs compliance promotion awareness activities around the legal requirements for compliance as well as the audit process. We are here to provide clarification around compliance,” she adds.

Blue Drop and Green Drop Programme

The Blue Drop Programme and Green Drop Programme falls within Muir’s Water Use Compliance, Monitoring and Enforcement unit. “I am proud of our Minister for releasing this data. There were a number of bad performing municipalities within the Green Drop Report, but at least we have a benchmark point after having a reporting gap. The report provides a clear indication of municipal performance. It is a full diagnostic of what a Water Service Authority (WSA) needs to perform its function. It assesses, for example, the WSA’s capacity to provide water services within required norms and standards. Do they have financial resources? Do they have qualified process engineers? Is the design of the works appropriate for the area serviced and with the wastewater generated?”

According to Muir, the department’s compliance monitoring, audits and inspections  for services are supplemented by comprehensive  Green Drop and Blue Drop Programme assessments. Compliance audits are focused on the works where the Blue Drop and Green Drop’s scope is broader, it has a holistic approach. Often problems are experienced outside the treatment works – at pump stations and pipelines and around the institutional aspects of managing systems.

“In response to the April 2022 Green Drop results, we have requested action plans from WSAs on how they plan to improve their performance. This will form part of the water services improvement programme. Requesting action plans is not a punishment, it is to assess what can be done by the WSA and what can be done by the DWS. The department cannot fix this situation by itself, everybody needs to play a role,” adds Muir.

“Municipalities receive support and financial aid from national government in the form of grants; specifically, from the Department who manages the regional bulk infrastructure grant, and water services  infrastructure grant. Local government receive a substantial amount of money to  upgrade its wastewater treatment works as well as the systems that feed those works. This cannot continue if there are no  visible improvements. When analysing the outcome from the recent Green Drop Report, it is clear that there is little benefit from the money transferred in some of the municipalities. The next option for poorly performing municipalities despite financial and other support, is for the DWS intervene in these municipalities as empowered by the Water Services Act and the Constitution. Some municipalities will receive further support from government while the Department is investigating the option of removing the water service authority status from other municipalities,” states Muir.

Blue scorpions, green scorpions and environmental management officers

The creation of Environmental Management Inspectors (EMIs) was enabled with the amendment of the National Environmental Management Act. EMIs within the Department form part of a greater Environmental Management Inspectorate Network including the Department of Environment, the Department of Mineral Resources, Provincial Environment Departments, Local Government (municipal inspectors), South African National Parks, and Provincial Parks.

The EMIs have specific powers relevant to their designated grades:

• Routine inspections: entering premises, sometimes without warrants, for specific purpose; seizing evidence (Grades 1-4 EMIs),
• Investigations: questioning witnesses; copying documents; inspect and remove articles or substances; taking photographs; taking samples; removing waste (Grades 1-3 EMIs),
• Enforcement: search, seizure, roadblocks, arrest (some powers from CPA) (Grades 1-2 EMIs), and
• Administrative powers: Compliance Notices (Grade 1 EMIs)

The green scorpions typically work with the Department of Forestry, Fishery and Environment , protecting biodiversity and the blue scorpions work with the DWS with water. There is also an overlap with the Department of Forestry, Fisheries and Environment, DWS and other ministries with regard to pollution prevention and management . Currently DWS has 87 of its compliance and Enforcement Officials trained and designated as EMIs.

“An anti-pollution task team – responsible for development and implementation of strategies to improve water quality in different regions – reports to me. The Minister has committed to improving water quality by 60% within the next 36 months. This is an enormous task and to achieve this, all components need to work together; monitoring needs to identify pollution hotspots, authorisations that have a detrimental effect on water quality cannot be granted, clean-ups and rehabilitation activities need to be coordinated with specific industries; wastewater treatment plants need to operate at the correct capacity within agreed upon discharge levels and quality parameters and blue scorpions need to take action against illegal activities,” states Muir.

Policies and regulation

There is a team within the Compliance, Monitoring and Enforcement Division that solely focuses on the development/updates of regulation around water resources. Here are some of their current projects:

• Cabinet has approved the mine water management policy. Developed in line with the National Water Act, the policy provides mechanisms to protect and conserve water usage. It balances the mine economic activities with the mandate to provide sustainable water usage for the country.
• Process controller regulations have been drafted and published for comment and once the Social Economic impact assessment is completed it will be routed for publication.
• A revised set of norms and standards are being drafted for water services that include standards for drinking water, sanitation, water demand management and conservation, operational maintenance of works, audits and water services delivery.
• GN704 that pertain to water use for mining activities will soon go out for comment
• Regulations are being developed to impose best practice on existing lawful use  which is water use recognised under the 1956 Water Act This will ensure uniform regulatory requirements between water use authorised by licences under the National Water Act and the uses authorised under the 1956 Act.
• The unconventional gas regulations for fracking have now been closed for comment, but the department is still consulting with some stakeholders prior to approaching Minister for final publication.

Digital resources

DWS uses the Integrated Regulator Information System (IRIS) which currently houses the Blue Drop and Green Drop components, the National  Compliance Information Management System (NCIMS) and the Enforcement Case Management System (ECMS). “Our long-term vision is to integrate all of these systems into one under IRIS, including authorisations. We are also looking at early warning systems where we will have access to real time data the moment there is any incident or threat to our water quality,” adds Muir.

The DWS is part of Operation Phakisa, where satellite navigation is used to observe and build  cases against perpetrators in the oceans economy,  DWS is partnering with Operation Phakisa to conduct surveillance against suspected illegal sand mining in our coastal rivers and estuaries. This is needed as the EMI unit if often met with violence and threats when investigating such activities. The South African Police Force, South African National Defence Force as well as the National Asset Forfeiture Unit are also working on these  cases to target the people that are funding such operations.

Challenges

Aging municipal  infrastructure and a lack of  maintenance is a key problem faced by the DWS in regulating the municipal sector. “The Green Drop audit process calculated a ‘very rough order of measurement (VROOM)’ where it has been estimated that it would cost over R8 billion to return wastewater infrastructure to a workable condition. The cost is broken down further to civil costs (R1,9billion), mechanical costs (R4,8billion) and electrical (R1.3 billion),” states Muir.

With a constrained fiscus, the DWS has limited resources, making partnerships important. “Partnerships that we have made with other ministries like the Department of Forestry, Fisheries and Environment (DFFE), the Department of Mineral Resources and Energy (DMRE) are invaluable to us. These partnerships have strengthened the DWS and has helped us react to issues more rapidly. We simply cannot safeguard our country’s water resources on our own,” states Muir.

“By improving performance levels and compliance to all authorisations, pollution decreases and water quality improves. My message to our water users is to do the right thing. We will work with you to improve your compliance.  But our unit will begin to shut down operations with no authorisations,” declares Muir.

The Water Use Compliance, Monitoring and Enforcement is one of four units in the Department’s Regulation Branch:

• Water Use Authorisation – issue water-use authorisations
• Water Use Compliance, Monitoring and Enforcement – drinking water regulation, wastewater regulation, water resource regulation, compliance monitoring and enforcement
• Economic and Social Regulation – the development of economic and social regulations norms and standards, management of pricing strategy, raw water, bulk water and municipal water and sanitation tariff regulation
• Dam Safety Office – implement and administer dam safety regulations

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