Illegal enlargement of West Coast farm dam condoned

The Namaquasfontein Skool Dam was illegally enlarged in 2017. Photo: Holland & Associates (fair use)

• The Western Cape has formally condoned the unlawful 50-fold enlargement of the Namaquasfontein Skool Dam in the Moutonshoek valley near Redelinghuys.
• An administrative fine of R625,000 has been issued for unlawful construction work undertaken before impact assessments and environmental authorisation were approved
• An application to further enlarge the dam has been refused.

The Western Cape environmental authorities have formally condoned the unlawful enlargement of a West Coast farm dam, approving an application to legally rectify building work that had already increased the size of the dam close to 50-fold.

In 2017, construction was undertaken to increase the storage capacity of the Namaquasfontein Skool Dam in the Moutonshoek valley near Redelinghuys from about 1,000m³ to 47,000m³, with a 6.2-metre embankment wall.

The project had been of sufficient size and potential environmental risk to trigger the legal requirement for an impact assessment process and formal environmental authorisation before any work started.

But this hadn’t been done by Piekenierskloof Vrugte (Pty) Ltd, the Piketberg-based agricultural co-operative that was leasing the farm and that was responsible for the illegal dam enlargement.

Initially claiming ignorance of its legal obligations for the project, it was only in April 2022 that the co-op submitted a Section 24G application to the Western Cape Department of Environmental Affairs and Development Planning.

Section 24G of the National Environmental Management Act of 1998 (NEMA) applies to the unlawful start of any “listed activities” -– such as clearing indigenous vegetation, altering water courses, or altering natural or cultural landscapes -– that would, or could, result in adverse environmental impacts, before obtaining environmental authorisation.

It provides for the effective ex post facto condonation and rectification of such illegal actions through a formal application process that includes a statutory “administrative fine” of up to R10-million.

In this instance, a fine of R625,000 was imposed on the dam builder as part of its Section 24G application, and in September last year, Western Cape environment MEC Anton Bredell refused its appeal to reduce this amount to R100,000.

The fine was then paid, and on 18 June all parties involved were informed of Bredell’s department’s decision to issue environmental authorisation for the project.

This authorisation is still subject to an appeal process — appeals to be submitted within 20 days — with Bredell himself being the appeal authority.

The dam

The dam is described as an “off-channel” dam with no catchment of its own. It is only filled from existing boreholes and via a 1.8km pipeline from the Krom Antonies River that flows through the Namaquasfontein property.

This river is one of four feeding Verlorenvlei to the west: the globally significant biodiversity wetland system with an estuary at Elands Bay that is also a crucial water source for several West Coast communities.

The department refused a second part of the co-op’s application: the proposed further expansion of the dam from the now existing capacity of 47,000m³ to 200,000m³ behind an 11.5-metre high embankment wall, as well as a river crossing with an upgraded slab and pipe culverts.

In a ten-page document summarising the issues and setting out the reasons for its approval, the provincial environmental authority refers to the national Department of Agriculture’s concerns that the project is located “within a water stressed area”, including the lower Krom Antonies River and Verlorenvlei.

The summary document quotes the response by the dam project’s environmental assessment practitioner, to the effect that the co-op was not proposing to increase abstraction beyond volumes allowable in terms of the Existing Lawful Water Use of the property.

“The proposed enlargement of the dam, which is entirely off-channel, would allow the proponent to abstract their surface water allocation in winter and store the water for use in summer,” the practitioner stated.

“The proposed additional storage would allow for most of the existing allocated water (97%) to be abstracted in winter to reduce the summer abstraction impact on the low flow in the river when the resource is most stressed.”

Also, operational rules had been developed to ensure that the proposed abstraction from the river to the dam during the winter period met the statutory Ecological Water Requirements of the river and that of downstream users.

Environmental concerns

Concerns by the Friends of Verlorenvlei conservation group are also outlined in the summary document. The group had pointed out in its objection that the dam development site was part of the Moutonshoek Protected Environment declared in 2018, and it disagreed strongly with the findings of the Section 24G impact assessments that the project would not have any unacceptable negative impacts on the biophysical and socio-economic environments.

The group was particularly concerned that the various environmental assessments had largely excluded the downstream environment of Verlorenvlei, “which is under severe ecological stress and impact”.

In response to the group’s concerns, the project’s environmental assessment practitioner had agreed that having to undertake a rectification process within this protected area was “unfortunate”.

“However, the concern about the project having long-term negative impacts for the area, is not borne out by the findings of the investigation and assessment that has been undertaken,” the practitioner argued.

This was primarily because the “vast majority” of the project’s physical footprint was classified as highly degraded as a result of historic agricultural use over several generations.

Also, the dam project was not premised on increased water abstraction over and above historic Existing Lawful Use levels.

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