Water Management reconfigure permit systems into appropriate and pro-poor water use authorisation systems.
Why water permit systems? Permit systems, in general, have three main functions”:
• Management: To regulate and control water use, to ensure sustainable water use and to reduce and resolve conflict over limited water resources.
• Information: To provide information to the regulator on the nature and amount of water use, as well as hydrological and geo-hydrological information; and
• Money: To support the generation of revenue from water users.
But have permit systems achieved the policy intentions behind them? Lessons from the five countries indicate that few of these policy intentions have been fully realised, and that, in practice, permit systems fail to reach small-scale users in rural areas, leaving them, de factor, outside the law. Equally, however, examination of permitting practices across the five countries reveals several good practices that could well be drawn on by other countries.
Alternative approaches Across the five countries studied, there has been varied success in rolling out water permit systems, but nowhere has it been completely successful. In Kenya, by 2016, there were 4 194 water permits captured in the Permit Database( with many more surface water permits yet to be captured), up from 1 700 in 2013. In Malawi, by 2016, 2 042 licences had been issues, of which 1 881 were‘ sleeping licences’.
On the other hand, in Uganda, 1 320 permits had been issued by 2016 and 10 799 in Zimbabwe. South Africa has the largest number of authorisations under the existing lawful use clause of the National Water Act( around 80 000) while just under 6 000 new licences have been issued under the Act.
In all of the countries, the number of water users with permits is considerably lower than the number who should be permitted, including( but by no means limited to) large numbers of smallscale rural water users. All five countries report challenges in issuing permits and in enforcing permit conditions, not least due to limited state capacity. Some interesting options in relation to management, information, and money present themselves as possible solutions to these challenges.
Taking a different approach In Kenya, they have adopted an approach in which permit applications are categorised as A, B, C, or D, depending on the level of impact on the water resource. Different requirements and intensity of investigation are applied to permit applications, depending on the category. In Uganda, they have adopted a targeted approach focused on the large users that have the most significant impact on water resources – the so-called 80 / 20 principle.
In South Africa, general authorisations are used to enable small water users to legally use water without applying for a licence. In all of the countries, very small uses are exempted from the need for a permit. All of these approaches result in more streamlined systems, less administrative demands on the state, and less cost and time demands on smaller water users. They do not, however, sufficiently deal with the issue of small-scale water users in the rural areas. This is where the issue of customary law requires further examination.
A targeted approach will also make compliance monitoring and enforcement easier, focusing resources on the high impact users and those with a poor track record of compliance.
Role of customary law in protecting small-scale water uses for livelihoods Except for Malawi, the water law of the five countries does not recognise customary water law as part of the legal system, and yet, in all give countries, customary law is still active in large parts of the rural areas. This raises whether the recognition of customary law would not be a useful addition to the tools for water use authorisation, on condition that water allocated under customary law has the same or higher legal protection as permitted water. Moreover, a Reserve could, in principle, be defined as including human rights for basic domestic and basic productive uses. This links to the idea of group management and protection of water resources and forms of organisation that can also play a useful role in the compliance monitoring and enforcement of permit conditions.
Information Despite the intention that permit systems require users to provide hydrological, geo-hydrological and water use information to the state in order to support more effective management and development of water resources, in reality, they are a relatively weak tool in this regard in the five countries. This is due to several factors. Firstly, only a portion of water users have permits, so that any information received through this mechanism is also only partial, at best.
Secondly, as evidenced by the registration of water use in South Africa, information provided by water users, particularly information on water use, may be inaccurate and need verification. This begs the question as to how mechanisms such as remote sensing and aerial photography can be used to verify and complement the information provided by permitted users and through required hydrological and geo-hydrological assessments.
“ Despite the laudable policy intentions, in practice, water permit systems risk continuing to serve as tools of dispossession and exclusion for large numbers of small-scale water users in rural areas who cannot all be reached individually by under-resources government agencies.”
Africa Water, Sanitation & Hygiene • July- August 2017 21