Borehole by-law does not hold water

GEORGE NEWS - The legality of the sinking of a borehole on a stand in Heatherlands, has left officials of the George Municipality and Department of Water and Sanitation with a hot potato.

The borehole owner maintains it is completely legal and that he does not need permission in terms of either national legislation or the municipal by-law to drill for water on his urban property. But once you dig deeper into the issue, it may not be that simple.

The confusing legislation surrounding boreholes came to the fore when a borehole was sunk on the Langenhoven property, but drilling was brought to an abrupt end when the builder on the neighbouring property where a health care complex is under construction, suspected the drilling was causing cracks in the walls.

The George by-law relating to boreholes states: "No person may sink a borehole on any property in the George Municipal area if prior approval [from] the Department of Water Affairs and Forestry has not been obtained."

It then goes on to say that no person may sink a borehole on premises situated in a dolomite area and that the onus is on the property owner to determine if the site for the proposed borehole is dolomite free.

It also states that "the owner or occupier ... notify it [the municipality] on the prescribed form of its intention to do so before any work in connection [to] sinking it is commenced".

By-law passes the buck
According to John Roberts of the Western Cape Department of Water and Sanitation, this by-law dating from 2010 "passes the buck". "It may be interpreted that this intended George by-law was not discussed with the department to confirm the right approach. You will also pick up the reference to dolomite in the by-law applies in other municipalities in South Africa, meaning that the current by-law was drafted from another." One such dolomite rich area is Ekurhuleni, which governs the west rand in Gauteng.

According to Roberts the proposed guidelines for groundwater by-laws stipulates that certain conditions prior to drilling must be authorised by the local council, but the new legislation still needs to be "unpacked".

He says only in some cases where groundwater is to be extracted from a sensitive aquifer, will the delegated authority prescribe conditions prior to drilling.

George Municipal Deputy Director of Civil Engineering Henry Jansen confirmed that the the by-law does not require property owners to get a municipal permit to sink a borehole, but that they are referred to the department of water and sanitation.

"The George Municipality is consulting with the Catchment Management Agency (CMA) regarding the matter." The municipality also confirmed that it does not have the "prescribed form" that the by-law refers to.

Extraction regulated
Water Use Specialist Carlo Abrahams of the Breede-Gouritz CMA says that the National Water Act regulates the extraction of ground water, not the drilling of the borehole.

An article on the website of the Borehole Water Association of South Africa by water specialist Ernst Bertram dated 5 July 2016, agrees with Abrahams that it is the groundwater use you're registering, not the borehole. It reads: "It’s important to point out that a person does not need any permission to drill any borehole nor to register a borehole. However, once the borehole has been drilled and water found, the registration of the water use, which in this case is groundwater, must be done depending on the ultimate usage."

Meanwhile, building activities at the property where the cracks appeared continue, and it is believed the ground, if not the dust, has settled. Neither the geo-hydrologist who inspected the site, nor the other role players were willing to comment regarding the extent (if any) of the damage as it may impact potential future civil action.

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