Legal considerations when using greywater

This is an overview of the regulatory and legislative framework in South Africa, particularly in the context of the regulation of the use of greywater.

By Water Research Commission

This section of the research discusses the relevant national legislation to provide the context for such regulation. The national legislation provides the framework of law that is to be applied throughout the country.
Municipalities have the constitutional competence to enact laws in respect of water and sanitation services, limited to potable water supply systems, and domestic wastewater and sewage disposal systems (Part B of Schedule 4 and Part B of Schedule 5 of the constitution).

National legislative framework overview

  • The most extensive content provided on the management and use of greywater is contained in the following regulations:
  • Revision of General Authorisations in terms of section 39: GN 665 of 6 September 2013: Government Gazette No. 36820
  • Regulations Relating to Compulsory National Standards and Measures to Conserve Water (GNR.509 of 8 June 2001)
  • National Sanitation Policy (GN 70 of 12 February 2016: Government Gazette No 39688)
  • National Environmental Health Norms and Standards for Premises and Acceptable Monitoring Standards for Environmental Health Practitioners (GN 1229 of 24 December 2015: Government Gazette No. 39561)
  • The Constitution of the Republic of South Africa, 1996, provides that everyone has a right of access to water. No equivalent right exists in the context of sanitation. The right of access to water is given effect through the enabling legislative framework, namely the National Water Act 36 of 1998. Together with the Water Services Act 108 of 1997, the powers and duties of the state in respect of the management of water and the provision of water services are set out.

The National Water Act (Act 36 of 1998)

The National Water Act acknowledges the scarcity and uncertainty of South Africa’s water supply in its preamble, as well as the importance of managing water in a sustainable and integrated manner. In addition, the preamble to the Act appropriately identifies that water occurs in many different forms, but all forms are part of the same unitary and interdependent cycle.

The Act does not provide definitions for different forms of water, though it does define different water sources, specifically aquifers, boreholes, catchments, estuaries, water courses, and wetlands. A water resource is defined as including a “watercourse, surface water, estuary, or aquifer”.

No definition is provided for greywater or black water. This notwithstanding, the National Water Act is still of relevance to the extent that it makes provision for the sustainable use of water resources and aims to provide for the management of all water resources. At the outset, it is clear that there is no explicit reference to ‘greywater’ contained in the National Water Act.

Despite this fact, the Minister still has the authority to regulate this form of water, particularly when the purposes of the Act are considered. The overarching guiding principles that inform the interpretation of the National Water Act include sustainability and equity. The objectives set out in the preamble are echoed by the purposes of the Act, set out in section 2, which provide, inter alia, that water must be used, protected, developed, conserved, controlled, and managed in such a way as to promote “the efficient, sustainable and beneficial use of water in the public interest”.

In accordance with the trusteeship model, the state is empowered to, and must ensure, the use, protection, development, conservation, management, and control of water resources. In terms of this trusteeship model, the legislative framework provides for the nature of authorisations that the state may grant. No license is required for domestic water use as it is generally authorised in terms of schedule 1 of the Act.

Greywater is defined as a wastewater generated through domestic activities and premises, including washing, bathing, and food preparation, but does not contain sewage. Image credit: Johannesburg WaterDomestic use of water includes the use of water in a household, for reasonable domestic use or gardening, the watering of animals (subject to the grazing capacity of the land, and excluding feedlots), the storage and use of roof runoff water, and the discharge of water containing waste and runoff. Such water use is subject to any limitation, prohibition or restriction in terms of the Act itself, or any other law. The water user is required to “return any seepage, runoff or water containing waste which emanates from that use, to the water resource from which the water was taken, unless the responsible authority directs otherwise”.

Relevant definitions in this context include the definition of conservation, pollution, protection of water resources, waste and waterwork, as follows:

  • Conservation is defined in the Act as “the efficient use and saving of water, achieved through measures such as water-saving devices, water-efficient processes, water demand management, and water rationing”.
  • Pollution is defined in the Act as meaning the “direct or indirect alteration of the physical, chemical, or biological properties of a water resource so as to make it (a) less fit for any beneficial purpose for which it may reasonably be expected to be used;
  • (b) harmful or potentially harmful (aa) to the welfare, health or safety of human beings; (bb) to any aquatic or nonaquatic organisms; (cc) to the resource quality; or (dd) to property”.
    Protection of water resources is defined in the Act as meaning the “(a) maintenance of the quality of the water resource to the extent that the water resource may be used in an ecologically sustainable way; (b) prevention of the degradation of the water resource; and (c) the rehabilitation of the water resource”.
  • Waste is defined in the Act as including “any solid material or material that is suspended, dissolved or transported in water (including sediment) and which is spilled or deposited on land or into a water resource in such volume, composition or manner as to cause, or to be reasonably likely to cause, the water resource to be polluted”.
  • Waterwork is defined as including “any borehole, structure, earthwork or equipment installed or used”.

The Act requires the establishment of a National Water Resource Strategy (NWRS), which sets out the “strategies, objectives, plans, guidelines and procedures of the Minister and institutional arrangements relating to the protection, use, development, conservation, management and control of water resources within the framework of existing relevant government policy”.

The NWRS must include information pertaining to “(iii) actions to be taken to meet projected future water needs; (iv) water use of strategic importance; (h) set out principles relating to water conservation and water demand management; (i) state the objectives in respect of water quality to be achieved through the classification system for water resources provided for in this Act”.

In terms of this strategy, a definition is provided for a ‘greywater footprint’, which is defined as “the volume of freshwater required to assimilate a pollution load to at least comply with acceptable water quality standards”. Greywater is also considered as part of the ‘water footprint’, and is defined in this respect as the “volume of polluted water, calculated as water that is required to dilute pollutants to such an extent that the quality of the water remains above agreed water quality standards”.

Beyond these definitions, no specific reference is made to the use, control or standards for greywater usage. Water re-use is referred to in the strategy, but only in the context of the provision of water treated by waterwork plants to potable standards for purposes of water provision services.

The National Water Act makes specific reference to the reuse of water for the purposes of irrigation of land, where such wastewater has been generated by industrial activities or a waterwork. This is listed as a specific controlled activity, for which a general authorisation or license is required. This provision in the Act does not extend to the use of greywater in the context of domestic uses of water.

However, the Minister does have the power to declare any use of water a ‘controlled activity’ for purposes of the Act, provided that such activity will impact the resource detrimentally. In such circumstances, the Minister is required to specify the waste treatment, pollution control and monitoring equipment, as well as the management practices to be followed to prevent pollution of any water resources.407489 PD1AV9 148

In terms of the authority to provide for general authorisations, the Minister published a notice revising general authorisations [Revision of General Authorisations in terms of section 39: GN 665 of 6 September 2013: Government Gazette No. 36820]. This notice makes specific reference to ‘greywater’. No explicit guidelines are provided in these regulations for the domestic use of greywater, save for the disposal to an on-site facility and the permission to reuse domestic wastewater.

In respect of this notice, a general authorisation has been granted in terms of section 38 of the Act to the lawful occupier of land, or person/s who have lawful access to the land, for the disposal of water. In terms of greywater, the general authorisation provides that the lawful owner or occupier of land, or person/s who have lawful access to land, may dispose of wastewater to an on-site disposal facility for greywater generated by a single household.

There are restrictions on this general authorisation insofar as the on-site disposal facility is located close to a watercourse, wetland, over an aquifer, or below the one in a hundred-year floodline. The notice provides the following relevant definitions:

  • Wastewater: water containing waste, or water that has been in contact with waste material.
  • Domestic wastewater: wastewater arising from domestic and commercial activities and premises, and may contain sewage.
  • Greywater: wastewater generated through domestic activities and premises, including washing, bathing and food preparation, but does not contain sewage.
  • On-site disposal: refers to the disposal of wastewater on individual properties not permanently linked to a central waste collection, treatment and disposal systems, such as septic tank systems, conservancy tank systems, soakaway systems, French drains, pit latrines, some package plants and related activities.

The general authorisation set out in this notice also extends to the storage of domestic wastewater for the purposes of reuse. Though specific reference is not made to greywater within the ambit of this provision, it is arguable that greywater falls within the wider definitions of wastewater and domestic wastewater.

Greywater is more narrowly defined, excluding sewage. Given that this general authorisation is in respect of domestic wastewater, which definition includes sewage, greywater is necessarily included within its scope. This authorisation provides that the owner, lawful occupier, or person/s lawfully entitled to access land, may store up to 5 000 cubic metres of domestic wastewater
for reuse.

This is subject to the requirement that the stored wastewater does not impact a water resource, any other person’s water use, property or land. In addition, the storage of wastewater must not be detrimental to the health and safety of the public near said storage.


 


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