Legal framework and institutional arrangements for rainwater harvesting

By Water Research Commission

Domestic rainwater harvesting (RWH) is increasingly adopted in South Africa. Interest in the practice is growing and further driven by increases in water tariffs and increased climate variability across the country.

Laws and regulations, as well as institutional arrangements, are still lagging behind. The country’s government has three distinctive, interrelated, and interdependent spheres (national, provincial and local or municipal levels) that operate according to the constitution (Act 108 of 1996), laws, and policies made by the national parliament.

rainwaterIn terms of design and construction, RWH infrastructure must be consistent with the National Building Regulations’ (NBR) SANS 10400.
Image credit: Livestrong.com

LEGAL FRAMEWORK

The functions of government are not only exercised at the national level, but are also decentralised to levels closer to the people. The Water Services Act (Act 108 of 1997) provides a framework for the provision of water supply and sanitation services to households in South Africa. The Water Services Act transfers the responsibility for the provision and management of existing domestic water supply and sewerage disposal systems from national to local government.

Moreover, all spheres of government have a duty, within their physical and financial capabilities, to work towards this object. The National Water Act (Act 36 of 1998) deals with the management and protection of water resources in the country. The Department of Water and Sanitation (DWS) is in the process of reviewing and possibly amalgamating these pieces of legislation. In addition, the Municipal Systems Act (Act 32 of 2000) sets out legislation that enables municipalities to uplift their communities by ensuring access to essential services.

Water forms part of the “right to basic municipal services” outlined in the Act. The Water Services Act is aligned to the National Water Act since its interpretation is subject to it. The South African water-related legislations do not provide an unambiguous framework for the adoption of RWH, making it illegal by strict application of the law. This is especially so when one assesses local water services bylaws.

A bylaw is a legislation passed and enacted by a municipal council. Unlike a law, it is passed by a non-sovereign body, which derives its authority from another governing body. A municipal government gets its power to pass laws through a law of the state, which specifies what things the city may regulate through bylaws.

Each municipality must compile a municipal code — a list of all its bylaws — that is available to members of the public upon request. A bylaw gives effect to respective policies and is therefore the regulatory instrument through which a municipality exercises its authority. In theory, a bylaw must never conflict national or provincial legislation; where this happens, national and provincial legislation override it. Two avenues are used to ensure alignment between bylaws of municipalities and the Department of Water and Sanitation (the role of the Department of Water Affairs and Forestry, the custodian of the country’s water resources, is one of a regulator):

  • The minister responsible for local government may also pass what is called “standard draft bylaws” to guide municipalities. Municipalities may then make bylaws for any standard draft bylaw.
  • The relevant national government departments provide what are called “model bylaws” to guide municipalities. While these are comprehensive, municipalities use sections that suit their situation.

In terms of design and construction, RWH infrastructure must be consistent with the National Building Regulations (NBR) SANS 10400. The NBR fall under the National Building Regulations and Building Standards Act (Act 103 of 1977), which governs all building and construction work in South Africa.

Various updates have since been made. These regulations were originally produced as a set of functional guidelines for anybody building any type of structure. SANS 10400 establishes the level of performance (quantitative requirements) and deemed-to-satisfy provisions and the means by which the functional requirements established in the regulations may be satisfied.

Although not intended to be prescriptive in terms of what people should build — they stipulate important dos and don’ts — many are in fact mandatory. The NBR are divided into 23 chapters, but no chapter deals directly with water installations in buildings other than those pertaining to fire installations (SANS 10400 W).

The Water Services Act makes it illegal to install any plumbing component that does not comply with the relevant specifications listed in the latest versions of SANS 10106, 10252, and 10254. However, it does not make it mandatory for all components to bear the SABS mark.

Compliance and enforcement processes of the NBR of South Africa are administered by the National Regulator for Compulsory Specifications (NRCS) though building control officers. Those are appointed by local authorities in terms of section 5 of the National Building Regulations and Building Standards Act (Act 103 of 1977) to make recommendations regarding any plans, specifications, documents, and information submitted to such local authority in accordance with section 4 of the same Act.


The users have to understand that the water harvested cannot be used for domestic consumption without prior treatment.


While all building plans must be approved by the building control officer, there is no requirement to submit water drawings as that falls under SANS 10106, 10252, and 10254. Both SANS 10252 and SANS 10254 fall under the Water Services Act and, therefore, the Department of Water and Sanitation.

Their compliance and enforcement are therefore not administered by building control officers but by water inspectors under water services bylaws. Unlike the building control officers, the qualification of the water inspector is not specified. The municipality may authorise any person in its employment to be a designated water inspector.

The water inspector has the right, without access restriction, to enter with or without a written authorisation in any premise at any reasonable time. A legal framework can only be effective if it is enforced. Every municipality should have a trained group of people who inspect water services and plumbing installations to ensure that these comply with both national and local legislation. This is currently not the case, as municipalities do not have appointed water inspector.

SANS 10252 and SANS 10254 are not written in the format of SANS 10400. Both need to be rewritten into SANS 10400 in order to be part and parcel of the building regulation set. This will de facto provide building control officers with the mandate and platform to enforce it.

In one hand, it may not be a bad thing that South Africa has no direct language in the national building codes referring to RWH. This has enabled, over the past decades, local governments to regulate more freely. On the other hand, it faces serious challenges with respect to monitoring compliance with and enforcing contraventions of these bylaws due to the fact that they do not have the capacity to enforce them.

Nevertheless, it is evident that the enabling environment or the general legal framework of national, provincial and municipal policies, legislations and regulations; as well as the institutional arrangements of RWH are lacking behind. The question still remains of whether or not RWH has to be regulated and to which levels it should be regulated.

To permit the expansion of RWH in rural and remote areas that still rely on reservoirs, pools, stagnant waters, and rivers as their primary water source, the practice should remain largely unregulated. Largely, because both isolated and dual RWH systems, there must be compliance to the relevant chapters of SANS 10400.

The users have to understand that the water harvested cannot be used for domestic consumption without prior treatment, using the appropriate household’s water treatment technology. Dual-mode rainwater harvesting system, where the water harvested is to be integrated with an existing reticulated system to ensure the perennial supply for non-potable and potable uses, have to be regulated.

infographicInstitutional levels of policy-making and implementation of RWH.
Image credit: Water Research Commission

INSTITUTIONAL ARRANGEMENTS

Institutions are commonly defined as the ‘rules of the game’, including norms, beliefs, values, habits, and behaviour. They include both formal and informal arrangements, ranging from local to global level, and may give rise to compliance or resistance. The lack of a national umbrella body to coordinate RWH continues to hamper its expansion and makes the collaboration between the various players very difficult.

These comprise non-governmental organisation and government departments such as the departments of Agriculture Forestry and Fishery, Water and Sanitation, and Rural Development and Land Reform (DRDLR).

The DWS supports a national rainwater harvesting programme, which focuses on the construction of above and below-ground rainwater storage tanks by rural households for food gardens and other productive water uses. Clinics, schools, and hospitals have now been included as beneficiaries to some extent.

Of late, the provision of rainwater harvesting tanks is also driven through the Accelerated Community Infrastructure Programme. Several municipalities now use roof rainwater tanks for domestic purposes. These have been found to be particularly effective when used in conjunction with other water supply options.

DWS considers RWH as one of the practical water sources for schools. The potential of RWH to supply rural schools was further investigated by using the yield reliability analysis (YRA) model. The YRA model is a daily continuous simulation model based on the volumetric reliability approach that applies a daily continuous simulation modelling to obtain relationships between storage size, deficit, and its exceedance probability.

The Integrated Water Resource Management Systems directorate is funding the development of these resource guidelines for domestic RWH. The DRDLR works with its national, provincial, and local counterparts to facilitate the installation of rainwater harvesting tanks. The Department of Agriculture Forestry and Fishery is more concerned with RWH for agricultural use, especially in-field and ex-field RWH. Nevertheless, RWH is also used extensively for vegetable gardening. The Department of Basic Education promotes, in line with DWS, the use of RWH as a water supply source in rural schools.

The Department of Environmental Affairs, under its Climate Change Flagships directorate, identified a set of Near-term Priority Flagship Programmes for mitigating climate change and building climate resilience. One of which is the Water Conservation and Demand Management Flagship Programme, the coordination of which is based on the DWS’s budget level programming. This programme is made of water conservation and demand management (WCDM) measures and RWH.

Most departments appoint contractors for the supply and installation of rainwater harvesting tanks. Although it might be argued that it boosts the local economy by promoting entrepreneurial enterprises, more coordination is required in order to avoid unnecessary duplication and tease out dos and don’ts. The mainstreaming of RWH in the country’s water resources requires an institutional innovation that fosters the collaboration of several government departments.


Click below to read the January 2018 issue of Plumbing Africa

PA JAN2018


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