Comments on South Africa’s proposed Groundwater Regulations
On 2 March 2026, the Biodiversity Law Centre submitted detailed legal and scientific comments on South Africa’s proposed Regulations for the Protection and Management of Groundwater Resources, published by the Department of Water and Sanitation in Government Gazette 53828 on 10 December 2025.
Groundwater is a strategic national resource — central not only to water security and economic development, but to the integrity of aquatic and terrestrial ecosystems, climate resilience, and to the constitutional rights to water and to a healthy environment. It is also ecological infrastructure: It sustains wetlands, springs, and non-perennial rivers; it underpins Strategic Water Source Areas; and it supports rural communities and biodiversity across our water-stressed country. In a changing climate — with rainfall becoming less reliable and aquifer recharge rates declining — protecting groundwater is both a constitutional imperative and an urgent practical necessity.
South Africa is the third most biodiverse country in the world. Biodiversity underpins food security, clean water, climate resilience, and livelihoods. Groundwater-dependent ecosystems are among the most threatened in the country. Getting these Regulations right matters enormously.
While welcoming the Regulations as a necessary and positive step — South Africa has lacked dedicated groundwater-focused regulations until now — our submission identifies significant legal deficiencies that must be addressed before the Regulations can fulfil their purpose. As currently drafted, the Regulations do not comply with the National Water Act, NEMA, NEMBA, or the Climate Change Act, and do not give effect to the State’s constitutional obligations under section 24.
Our submission raises concerns across three interconnected themes:
- Absence of the Ecological Reserve
The Ecological Reserve is the legally mandated minimum quantity and quality of water required to maintain healthy aquatic ecosystems while meeting basic human needs. It is the foundational mechanism of the National Water Act. Yet the draft Regulations make no reference to it whatsoever. This is both a legal and an ecological gap that must be remedied. Where full Reserve determination is not feasible — as in some arid catchments — the Regulations must mandate risk-based alternatives such as vulnerability mapping and adaptive abstraction thresholds.
2. Climate, biodiversity, and ecosystem integrity
Groundwater serves as the primary buffer during droughts — a function that becomes increasingly critical as climate change reduces rainfall and increases demand. Yet the Regulations do not require climate-adjusted abstraction limits, periodic drought reassessments, or climate impact assessments as part of any authorisation process. In arid regions like the Karoo — with globally significant biodiversity, fragile ephemeral wetlands, and highly variable rainfall — these omissions are particularly concerning The Regulations acknowledge groundwater-dependent ecosystems in general terms but do not regulate for them in any substantive way: there are no ecological drawdown thresholds, no precautionary triggers, and no integration of biodiversity spatial planning instruments.
3. Implementation and enforceability challenges
The Regulations contain a number of critical gaps that risk undermining their effectiveness: Firstly, prohibited activities under Regulation 8 include caveats that appear to allow the authorisation of activities such as the injection of hazardous substances or chemicals into aquifers, without clear criteria or safeguards. Such activities should not be authorised under any circumstances. Secondly, the fixed 5km buffer zone around freshwater ecosystems and critical biodiversity areas is arbitrary and scientifically unsound. Buffer zones must be based on context-specific hydrogeological and ecological data, not uniform distances. Thirdly, significant responsibilities are placed on municipalities — including delineating protection zones and monitoring compliance — without acknowledging their well-documented capacity and resource constraints. This risks inconsistent implementation and raises constitutional concerns. Finally, offence provisions are broad and risk criminalising minor personal water users while failing to meaningfully hold large industrial users accountable.
While recognising positive elements — including improved monitoring requirements and the integration of data into the National Groundwater Archive — the submission ultimately calls for a stronger, precautionary, science-based, and legally coherent approach. One that gives meaningful effect to the Ecological Reserve, integrates climate and biodiversity safeguards, and ensures that groundwater governance fulfils the State’s duty to protect the environment for present and future generations.
Our comments can be found here: