The Minister of Water Affairs has recently issued a notice of her intention to declare the exploration for and/or production of onshore unconventional oil or gas resources and any activities incidental thereto, including but not limited to, hydraulic fracturing ("fracking") a "controlled activity" under section 38(3) of the National Water Act 36 of 1998 (the "Declaration").  The Declaration was published for public comment in Government Notice R.863 under Government Gazette 36760 of 13 August 2013.

The consequence of the Declaration means that the Department of Water may proclaim fracking as an activity which specifically requires a water use licence before it can lawfully commence. The intention of the Declaration is clearly to allow for greater control and oversight during fracking operations by the Department of Water. 

Companies who wish to undertake fracking will be required to timeously apply to the Department of Water Affairs for a Water Use Licence before they can commence their operations.

The comment period ends 14 October 2013.

Written by Sandra Gore, Director,  and Gareth Howard, Candidate Attorney, Environmental Practice, Cliffe Dekker Hofmeyr