ACWA Power Khanyisa Thermal Power Station (RF) Pty Ltd - Water Use Licence Application

ACWA Power Khanyisa Thermal Power Station (RF) Pty Ltd applied for an integrated water use licence in terms of sections 21(c), 21(e), 21(g), 21(h), and 21(i) of the National Water Act, 1998 (Act 36 of 1998). The application covered multiple water uses including: a 5 km bulk water supply pipeline crossing Noupoort River and hillslope wetlands; road re-alignment crossing hillslope seepage wetlands; power station construction affecting wetlands; eleven dirty stormwater ponds; ash disposal facilities within 500m of wetlands; irrigation of gardens with sewer effluent; evaporation ponds; water recovery facilities; and septic tanks. The activities would take place on various portions of farms Groenfontein 331 JS, Klippan 332 JS, Klipfontein 322 JS, and Naauwpoort 335 JS, all owned by Anglo Operations Ltd and others. The power station would generate 579,096.045 tons of ash annually for disposal on a 140 hectare site.

• Whether the Director-General (Acting) has authority under delegated powers from the Minister of Water and Sanitation to grant water use licences under Chapter 4 of the National Water Act
• Whether the proposed water uses under sections 21(c), 21(e), 21(g), 21(h), and 21(i) meet the requirements for licensing under the National Water Act
• What conditions should be imposed to protect water resources from impeding/diverting water flow, controlled activities (irrigation with waste), waste disposal impacting water resources, disposal of heated water, and alteration of watercourses
• Whether adequate environmental safeguards, monitoring, and rehabilitation measures are in place to protect wetlands, watercourses, and water quality
• What reporting, auditing, and compliance requirements should apply to the licence

The Director-General (Acting) granted the water use licence subject to extensive conditions set out in Appendices I-IV. The licence is valid for 20 years from 22 February 2017 and may be reviewed at intervals not exceeding 5 years. The licensee must: (1) comply with all construction, operation, and maintenance specifications for water infrastructure; (2) implement comprehensive monitoring programs for surface water (monthly) and groundwater (quarterly); (3) adhere to specified water quality limits for various waste streams; (4) maintain minimum freeboard of 0.8 metres above full supply level; (5) conduct annual internal audits and external audits (first within 3 months of licence issuance); (6) submit an Integrated Water and Waste Management Plan within one year; (7) report monitoring results quarterly; (8) notify the Provincial Head within 24 hours of any pollution incidents; and (9) ensure all structures can withstand 1:100 year flood events. The licence authorizes specific water uses on properties owned by Anglo Operations Ltd and others, including ash disposal (579,096.045 tons/annum on 140 ha), irrigation with treated sewage (16,790 m³/annum on 23 ha), and operation of multiple waste management facilities.

The binding legal principles established are: (1) The Director-General (Acting) of the Department of Water and Sanitation, when properly delegated authority by the Minister, has power under Chapter 4 of the National Water Act, 1998 to grant integrated water use licences authorizing multiple water uses under section 21; (2) Water use licences for industrial facilities impacting wetlands and watercourses must impose conditions ensuring: protection of the ecological Reserve, prevention of water pollution, sustainable stormwater management, maintenance of downstream water flows, and rehabilitation of disturbed areas; (3) Licences must include comprehensive monitoring requirements for both surface water and groundwater to determine environmental impacts; (4) Infrastructure affecting watercourses must be designed to withstand 1:100 year flood events and not impede natural drainage or aquatic species migration; (5) Licensees bear responsibility for compliance, including through mandatory internal and external auditing; (6) Disposal of waste (including ash) and heated water near water resources requires detailed quality standards, containment specifications (including liner systems), and ongoing monitoring; (7) Controlled activities such as irrigation with wastewater require quantity and quality limits based on protective standards; and (8) Major water users must prepare Integrated Water and Waste Management Plans and make financial provision for potential remediation measures.

The licence includes several non-binding observations and precautionary measures: (1) The observation that where a desktop determination of the Reserve has been used, a comprehensive determination when finalized shall be given effect to, indicating the provisional nature of some Reserve assessments; (2) The statement that when compulsory licensing is implemented for the water resource, authorized water uses could be subject to appropriate reduction, suggesting possible future restrictions; (3) The encouragement for the licensee to participate in initiatives such as Direct Estimation of Ecological Effect Potential (DEEEP) to determine ash dump toxicity, indicating emerging best practices; (4) The suggestion that stable isotopes be monitored "on ad hoc basis" rather than mandatorily, showing flexibility in monitoring approaches; (5) The requirement to make "full financial provision" for potential future water treatment plants, indicating recognition that current measures may prove insufficient; (6) Various specifications about international best practices for signage, barrier systems, and environmental management that go beyond minimum legal requirements; and (7) The detailed technical specifications in Tables 5-13 regarding water quality parameters, which represent current scientific understanding but may be subject to future revision as knowledge evolves.

This licence decision is significant in South African water and environmental law as it demonstrates the comprehensive regulatory framework for licensing complex industrial water uses under the National Water Act, 1998. It illustrates how the Department of Water and Sanitation applies the Act's provisions to balance industrial development (thermal power generation) with water resource protection. The decision is notable for: (1) integrating multiple water use categories (sections 21(c), (e), (g), (h), and (i)) into a single licence; (2) imposing detailed, science-based conditions for protecting wetlands and watercourses; (3) requiring extensive monitoring and reporting to ensure compliance with water quality objectives; (4) mandating integrated water and waste management planning; (5) establishing clear accountability through internal and external auditing requirements; and (6) applying the precautionary principle through requirements for contingency planning, financial provisions, and adaptive management. The licence exemplifies best practices in environmental licensing for major infrastructure projects, particularly regarding protection of sensitive wetland ecosystems and prevention of water pollution from ash disposal and industrial effluents.