Coal mining companies in Mpumalanga are required to pay for the water they use but a new study has found that businesses which are collectively using up to eight million cubic metres of water a year have had to ask for their invoices while the Department of Water and Sanitation, recently merged with the Department of Human Settlements, fails to charge or monitor their water use.

The details are contained in a new report from the Centre for Environmental Rights (CER), titled Full Disclosure: The Truth About Mpumalanga Coal Mines’ Failure to Comply with their Water Use Licences, released on Wednesday 3 July, which describes a scene of unchecked environmental damage and authorities allowing it to happen.

Abandoned and continuously producing coal mines for the Upper Olifants in Mpumalanga.

It may not come as a surprise that South Africa’s 1998 National Water Act was lauded as progressive and visionary, but 21 years later the vision hasn’t been realised as mining companies are let off the hook with their own versions of compliance, the departmental watchdog sleeps through its duties, and auditors turn a blind eye to their clients’ transgressions.

“It’s almost a deliberate design of a system to make it impossible to enforce,” said CER executive director Melissa Fourie on Wednesday in Johannesburg.

“Companies in South Africa are supposed to pay for the pollution that they cause and make sure they clean up their mess, but they don’t, and the government doesn’t care. In this case, there is clear non-compliance with water-use licences, threatening the water resources in entire catchment areas and no one is being held responsible,” said Vaal Environmental Justice Alliance coordinator Samson Mokoena.

The CER report looked at 13 coal operations in the Olifants and Wilge catchment areas, but only reported on the eight where researchers could access water-use licence audits. The companies involved include major players: Glencore, Tshedza Mining Resources, Exxaro, South32, Wescoal, Anglo American and Universal Coal Development.

“For these operations, it appears that the regulatory system – from issuance of a water-use licence to accountability for non-compliance – has effectively disintegrated. Moreover, instead of ensuring the protection of water resources, companies and independent auditors are complicit in taking advantage of the regulatory breakdown,” the report reads.

The report matters because the country has a water crisis. Remember Cape Town’s Day Zero?

The stark reality: 60% of South Africa’s river ecosystems are threatened and 23% are critically endangered; 98% of available reliable water has been allocated; 18% of the population relies on communal taps and 9% rely directly on springs.

It’s predicted the country will have a 17% shortfall between water supply and demand by 2030 and the climate crisis only makes the situation more precarious.

The government has said the Olifants catchment, a focus of the report, is one of the country’s most stressed catchment areas. Coal power generation accounts for 37% of water use in the Upper Olifants, a region with striking poverty in a country where the poor suffer greater consequences from pollution.

While water is scarce and communities rely on regulations meant to safeguard their access after the coal companies cash in on their profits, the report describes a complete breakdown in the regulatory system meant to protect the water systems.

The report found that it takes between two and eight years for the Department of Water and Sanitation, now the Department of Human Settlements, Water and Sanitation, to issue a water-use licence after a mining company submits an application.

The licence is outdated by the time it’s issued – mining companies’ water management systems are continually changing – and companies will often start operating before they even get the licence. Not one of those studied in the report has been penalised for operating without a licence.

After submitting their initial water licence application, companies can file amendments, which also take years to process and allow them to use water, almost unchecked, on their own terms, adjusting their own terms and conditions that never met the regulatory environmental standards in the first place.

While companies are meant to make financial provision for water treatment upfront, water and mineral resources departments fail to hold them to the commitment and wait until mines are closed and companies liquidated before looking for the funds.

The Department of Water and Sanitation has failed to monitor compliance or approve or reject mandatory water-use plans or even check water quality data, instead accepting reports from companies and auditors, even when non-compliance is reported.

“Because [the Department of Water and Sanitation] takes no action in response to violations reported for the companies assessed, licence-holders simply regard [the Department’s] silence as condonation of the reported non-compliance,” the report reads.

While coal companies often submit their changing water management plans, they act according to their own rules, as the department fails to check or enforce them. The companies interpret the laws as requiring a bare minimum and fail to test the pollution from water run-off under the right conditions.

The auditors mining companies hire to test their compliance with the relevant regulation are also to blame.

“The reality remains that the licensees pay the auditors and the latter can accordingly never be said to be fully independent,” reads the report.

It found that auditors fail to comply with minimum statutory requirements, report mining companies as compliant despite obvious violations, conduct walk-through rather than fact-based examinations and fail to assess whether mining companies have implemented their water plans meant to protect the environment.

“This report provides evidence of the shocking disregard with which both the state and industry treat our water resources and the way in which so-called independent professionals are propping up this broken system,” said CER corporate accountability programme head Leanne Govindsamy.

Sputnik Ratau from the Department of Human Settlements, Water and Sanitation on Wednesday told Daily Maverick the department was “appraising the report and will be preparing a comprehensive response in due course”.

The CER report said department leaders failed to meet with researchers despite multiple requests.

Some at the report launch on Wednesday described a system designed to protect coal companies that disregard the very owner of the water resources meant to be protected – citizens.

It recently emerged that South Africa appears to be the fourth largest subsidiser of coal within the G20 group.

In Mpumalanga, the heart of coal country, polluted water isn’t the only problem for communities. The industry is reported to contribute to thousands of deaths and chronic illnesses each year through air pollution. DM