Developing water sensitive cities (II): Is there support in SA’s regulatory framework?
31 October 2019
Traditionally, South Africa’s water delivery system has been based on a standard linear design model: water is sourced, treated, transported, distributed, collected, treated and disposed with little consumer involvement. For health and safety reasons, infrastructure is designed to transport water in and out of cities as quickly and easily as possible. Spatial planning and the broader regulatory environment are designed to implement this centralised approach to urban water management. This approach often has the effect of weakening sustainability. Rainwater, for example, accumulates polluted material before being directed back to major watercourses. With greater pressure on water resources, increased urbanisation and population growth, municipalities in South Africa must consider alternative approaches to implementing services in a manner that enhances sustainability and secures a water sensitive future. This brief explores South Africa’s regulatory framework to determine the extent to which it gives effect to the concept of water sensitive cities more generally, and water sensitive urban design (“WSUD”) tools in particular.
DEFINING INSTITUTIONAL ROLES
The Constitution places the responsibility on local government to regulate water and sanitation services, storm water management systems in built up areas, and municipal planning. Given the fact that water sensitive designs engage all three functions, municipalities are the primary actors in the implementation of water sensitive settlements. But the Constitution also requires national and provincial governments to support and strengthen local government to manage their affairs and perform their functions. Beyond that, it requires governments to cooperate. As the custodian of water resources, therefore, national government must ensure that water is managed, protected and used in a sustainable and equitable way. National government together with provincial departments must also ensure that environmental concerns are addressed. And even though the environment is not a local government function, municipal councils are also entitled to promote environmental protection and conservation in their municipal planning by-laws.
Therefore, each municipality has the ability to implement aspects of water sensitive design according to their respective means and circumstances, with the support of and in cooperation with national and provincial departments.
WATER AND ENVIRONMENTAL REGULATION AS A TOOL TO PROMOTE WSUD
Using the water and environmental regulatory framework on its own will not promote the mainstream adoption or implementation of WSUD. Adoption of water sensitive designs is specifically encouraged because it extends beyond the idea of simply using storm water runoff as an additional water resource, for example. Simply put, it assesses “whether other municipal functions, such as urban design and planning, wetland conservation, water demand management and wastewater re-use could augment water security in the face of increasing and multiple demands through enhanced co-ordination and integration.” But because water and environmental concerns are major drivers for transitioning to WSUD in South Africa, assessing these frameworks is important.
First, the National Water Act (“NWA”) aims to ensure South Africa’s water resources are used, managed and protected in a sustainable and equitable manner and for the benefit of all. It establishes the primary strategic tool guiding water resources management – the National Water Resource Strategy (“NWRS II”). The NWRS II acknowledges that water security for future development in cities and towns is a priority and develops a water re-use strategy to guide the implementation of water reuse projects in local government. It broadly reflects water conservation and water demand management goals to promote water use efficiency across water services, agriculture and industry sectors. Promotion of water conservation and water demand management in local government is primarily targeted at consumer behaviour. Generally, therefore, the NWRS II touches on the sustainable management and use of water in urban areas but it does not address urban design and its relationship to urban water management. Nor does it provide focused strategic direction to urban water resource management, perhaps because water resource management is often (narrowly) seen as separate from urban paradigm.
The NWA also ensures the protection of water resources by requiring land owners and others to implement measures to prevent water pollution. WSUD mechanisms, particularly relating to storm water management, are designed to reduce the level of polluted storm water flowing back into rivers. This may guide local government in requiring developers to implement WSUD mechanisms to prevent polluted storm water.
Secondly, developing mechanisms to adapt to climate-related impacts on water resources strengthens South Africa’s climate change response outlook and promotes water security. The Climate Change Response White Paper directly supports WSUD by providing that “urban infrastructure planning must account for water supply constraints and impacts of extreme weather related events”. The latest version of the Climate Change Bill is less direct, but broad enough to encompass urban designs that promote a water sensitive approach. The Bill, if enacted in its current form, places an obligation on the MEC for environmental affairs in a province, or a mayor of a municipality, to adopt a climate change response implementation plan to address needs and responses related to climate change in the area. Given its focus on sustainable water management, WSUD is well placed to act as an effective adaptive response to climate change and water security concerns. What is more, transition to a water sensitive design falls within the objectives set out in the Draft National Climate Change Adaptation Strategy, particularly as it relates to integrating the impacts of climate change on water in development planning.
Lastly, obligations found in the National Environmental Management Act (“NEMA”) are largely directed at national and provincial governments given their authority over environmental affairs. As South Africa’s framework environmental legislation, NEMA has little direct influence on the development of water sensitive settlements. However, it establishes important principles that guide the protection and management of environmental resources, including water.
SPATIAL AND MUNICIPAL PLANNING AS A TOOL TO PROMOTE WSUD
The National Development Plan (“NDP”) and Integrated Urban Development Framework (“IUDF”) together provide South Africa’s policy position for transforming urban areas to guide future growth. The IUDF offers general support for transitioning to water sensitive urban settlements by recognising the need to provide integrated urban planning and management, sustainable human settlements and urban infrastructure. It proposes short and longer term policy priorities which, if developed and implemented, may further support urban water management practices that are more sustainable, particularly if drafted within a WSUD lens.
This policy agenda is supported by the Spatial Planning and Land Use Management Act (“SPLUMA”), which provides the framework for directing a uniform, effective and comprehensive spatial planning system in South Africa. It requires national, provincial and municipal governments each to develop a spatial development framework (“SDF”) that collectively determines the direction of development in an area, having regard to five developmental principles. Aligned to the principles established in the NDP, these include spatial justice, spatial sustainability, efficiency, spatial resilience and good administration. Importantly, SDFs at all spheres of government must guide planning and development decisions and provide direction for strategic development, infrastructure investment and promote efficient, sustainable and planned investments. SDFs have the potential to drive decisions on urban and rural spatial designs in a direction that directly impacts water sensitivity.
The draft National SDF recognises the dynamics of urbanisation, water security and climate change implications and how these trends shape our developmental goals at a high level. It accepts that urban areas will play a more important role in the development of a shared and sustainable South Africa, requiring an integrated urban network (including infrastructure). It requires municipal, provincial and regional SDFs to propose measures that will effectively protect and manage natural resources, like water. The draft National SDF therefore provides general support for water sensitive principles but it is not clear or direct enough to facilitate mainstream adoption of water sensitive settlements or WSUD.
On the municipal front, local government is required to undertake developmentally-oriented planning. Municipalities must each adopt an integrated development plan (“IDP”) which:
Integrates and coordinates plans for municipal development;
Aligns the resources and capacity of the municipality with implementing the plan; and
Forms the policy framework and general basis on which an annual budget is based.
Therefore, the IDP is intended to be an extensive strategic plan that compels a municipality to plan for development holistically and is binding on all executive authority within the municipality. As local government is the primary actor for implementing WSUD, a municipality’s IDP – together with its SDF and water services development plan – provides the structural framework necessary to integrate water sensitive planning and designs into local government’s strategic vision for development.
In addition, the national climate change strategy urges local government to integrate climate change impacts into developmental planning. Given local government’s responsibility to take into account alternative ways of providing access to water services, WSUD is well placed to give effect to these obligations.
DOES THE REGULATORY FRAMEWORK SUFFICIENTLY SUPPORT WSUD ADOPTION?
South Africa’s regulatory framework has been developed to address water servicing needs through conventional planning mechanisms and infrastructure designs. Given the need to develop sustainable water management practices, there has been some movement towards incorporating alternative approaches, like WSUD, into urban water management. From an environmental policy perspective, national government’s climate change approach provides the strongest support for integrating water sensitive designs into development planning. This is because WSUD remains an attractive adaptive mechanism available to cities in response to the adverse effects of climate change on water resources. From a planning policy perspective, the NDP, IUDF and SPLUMA recognise the need for integrated urban planning and management, which also generally aligns to the WSUD ethos.
However, experience abroad has shown that creating an enabling environment to support local government has been an essential component for ensuring that WSUD principles are adopted and implemented locally. South Africa’s regulatory instruments do not provide sufficient support to guide local government action in particular (as primary implementers of WSUD). And while general support may be inferred from national policy and legislative frameworks, it remains too distant to offer a sustained defence of WSUD as a viable approach to urban water management. Enhanced uptake of water sensitive designs will require national government to endorse it by developing guidelines to support implementation.
At a local level, municipal IDPs and SDFs offer the optimal means of ensuring water sensitive designs are promoted in medium-term strategic planning. The last brief in this series will examine the approach taken by two metropolitan municipalities in South Africa to illustrate that they have the discretion to promote and implement WSUD (or not) according to their needs, resources and capacity.
By Michelle Toxopeüs, Legal Researcher, HSF, 31 October 2019
 Armitage N. et al. (2014) “Water Sensitive Urban Design (WSUD) for South Africa: Framework and Guidelines Framework”, WRC Report No. TT 588/14 (“WSUD Framework”), accessed at https://www.greencape.co.za/assets/Water-Sector-Desk-Content/WRC-Water-sensitive-urban-design-WSUD-for-South-Africa-framework-and-guidelines-2014.pdf.
 Schedule 4B of the Constitution.
 Section 154(1) of the Constitution.
 Chapter 3 of the Constitution.
 Section 3 of the National Water Act 36 of 1998 (“NWA”).
 The environment is a functional area of concurrent national and provincial legislative competence in terms of Schedule 4A of the Constitution.
Le Sueur v eThekwini Municipality  ZAKZPHC 6.
 WSUD Framework, p. 40.
 36 of 1998.
 Section 2 of the NWA.
 National Water Resource Strategy, 2013 (“NWRS II”), accessed at http://www.dwa.gov.za/documents/Other/Strategic%20Plan/NWRS2-Final-email-version.pdf.
 NWRS II, p. 29.
 Section 19 of the NWA.
 Section 9 of the Climate Change Bill.
 Intervention 7 in the Draft National Climate Change Adaptation Strategy, 2019, accessed at https://cer.org.za/wp-content/uploads/2019/05/DEA-Draft-climate-change-adaptation-strategy.pdf.
 108 of 1998.
 See, in particular, section 2 of NEMA.
 National Development Plan 2030, August 2012. See in particular chapter 8 which deals with transforming human settlements.
 COGTA, Integrated Urban Development Framework: A new deal for South African cities and towns, 2016 (“IUDF”), accessed at http://www.sacities.net/wp-content/uploads/2017/10/IUDF%202016_WEB-min.pdf.
 Policy levers 1, 3 and 4 of the IUDF.
 16 of 2013.
 Chapter 5 of the Local Government: Municipal Systems Act 32 of 2000.
It must incorporate the municipal SDF; its vision for long-term development, the existing level of development and development priorities and objectives; operational strategies; disaster management plans; financial plans and budgets; and performance indicators and targets.
 As part of the IDP process, a municipality which is defined as a water services authority in terms of the Water Services Act 108 of 1997 (“WSA”) must adopt a water services development plan which, amongst other things, must include measures for water conservation, recycling and environmental protection. Once adopted, a municipality cannot deviate from the water plan unless embodied in a duly adopted new plan and must publish a report on its implementation annually.
 Draft National Climate Change Adaptation Strategy, 2019.
 Section 11(3)(a) of the WSA.
 Tjandraatmatja G. (2019) “The Role of Policy and Implementation in WSUD implementation” in Sharma A. et al. (eds) Approaches to Water Sensitive Urban Design: Potential, Design, Ecological Health, Urban Greening, Economics and Community Perceptions, p. 111-2.