Introduction

Groundwater governance arrangements in South Africa are discussed in this paper and, in particular, those pertinent to governing the complex socially and ecologically significant implications of exploiting unconventional oil and gas (UOG) are addressed, as this exploitation is increasingly being proposed and promoted within policy and business communities. It is speculated that South Africa has potentially significant shale gas reserves, but has not yet moved to substantially exploit these through regular or other means of unconventional production. If it does, groundwater needs to be effectively governed, but how fit for purpose the current governance arrangements are, in the face of this challenge, is a matter of some debate. In order to consider the perspectives of those with expertise on the potential interaction between UOG and groundwater governance in South Africa, a set of interviews with relevant actors was carried out, comprising hydrogeologists, lawyers, engineers, and governance specialists. The interviews followed a structure informed by a review of recent groundwater governance research and were used to establish where expert consensus exists and identify areas of critique and dispute. While there has been some research focused on the potential interaction between groundwater governance and UOG in South Africa (Pietersen et al. 2021), these have primarily been limited to a small number of studies specifically focusing on the regulatory framework in South Africa (see Esterhuyse et al. 2022, 2019; Pietersen et al. 2021). The contribution of this paper is to broaden the scope of this area of study, to build more substantially and systematically on existing knowledge and experience, and thereby to inform decision-makers involved in protecting and managing groundwater resources in cases where they might be subject to disruptive and potentially detrimental activities, such as those outlined in section ‘Hydraulic fracturing and groundwater’.

The paper begins by providing an overview of UOG in South Africa, followed by an in-depth literature review of groundwater governance. It then provides a methodological outline of how these approaches will be applied. The paper concludes with a narrative outlining the findings of the research and provides some recommendations that could help improve the effectiveness of groundwater governance prior to, and during, UOG production processes, both in South Africa and more widely.

Study area

Unconventional oil and gas in South Africa: a brief overview

For the purpose of this paper, and to ensure consistent application of terminology, the definition, which includes extraction processes applied to unconventional oil and gas, is that used by the South African Department of Water and Sanitation (DWS), that is:

“unconventional in relation to oil or natural gas means oil and natural gas that is produced by means that do not meet the criteria for conventional production and requires stimulation including shale gas extraction, coalbed methane and underground coal gasification” (Government Gazette 44545 of 7th May 2021, p. 46).

Between 2009 and 2011, the United States Geological Survey (USGS) conducted a geology-based assessment of 171 (global) geological provinces to summarise the potential for undiscovered oil and gas resources. From this study, and follow-up research, it was estimated that there was a “technically recoverable mean resource of 44.5 trillion cubic feet of shale gas in the Karoo Province of South Africa and Lesotho”—Brownfield et al. 2016 p. 1; 44.5 trillion cubic feet (tcf)/1,260 billion cubic meters (bcm). Using known geological characterisations in South Africa, including carbonaceous marine shale persistence and thickness, burial depths, and vitrinite reflectance (Pietersen et al. 2021) a “sweet spot” (Fig. 1) was identified in the southwestern Karoo Basin as the most prospective target for profitable UOG production. Since then, Petroleum Agency South Africa (PASA) has further refined the target area to reflect ongoing geological data collection.

Fig. 1
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The South-western Karoo Basin, South Africa, including: (1) the extent of the outcropping Whitehill Formation and its eastern limit; (2) the SOEKOR boreholes and two KARIN boreholes; (3) the “sweet spot”, an area of high potential for shale gas exploration; (4) further delineation of the sweet spot by Mowzer and Adams (2015). (Source: Pietersen et al. 2021)

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The potential economic benefits of these reserves triggered global interest from multinational petroleum companies such as Royal Dutch Shell, and a series of exploration licences were submitted to the Department of Mineral Resources and Energy (DMRE), but, following significant public backlash against the proposed developments from both civic and agricultural lobby groups (e.g. Treasure the Karoo Action Group and Agri SA) that resulted in legislative action, a moratorium was imposed by the South African government on the production of UOG in 2011 (and subsequently lifted in 2012). In 2019, South Africa promulgated its Integrated Resource Plan (IRP 2019), which confirmed its commitment to using conventional natural gas as part of its future energy mix, and, although not explicitly confirming its commitment to UOG, left the door open to including indigenous, unconventional oil and gas resources in this mix by stating:

“indigenous gas like coal-bed methane and ultimately shale gas, could form a central part of our strategy for regional economic integration within SADC [Southern African Development Community]” (DMRE-IRP 2019 p. 13).

Given this policy uncertainty, and the potentially significant socio-ecological ramifications should UOG exploitation occur, it is proposed that a detailed assessment of groundwater governance arrangements in South Africa could provide valuable insight for policy-makers and those involved in groundwater management.

Water scarcity and energy in South Africa

South Africa is currently facing both an energy and water crisis; rolling blackouts, or “loadshedding”, are recurrent owing to the over-reliance on an aging, coal-powered electricity grid (Esterhuyse et al. 2022), and are the source of significant economic and socio-political concern; and the country has only recently emerged from a scenario that nearly became the first instance of a modern-day city running out of water, the 2016–2018 Cape Town drought (Gittins et al. 2021). The Karoo Basin is particularly water-scarce; it is characterised as semiarid, has low annual rainfall (100–450 mm year−1) and very little surface water, and as such, its residents and businesses are heavily reliant on groundwater (Esterhuyse et al. 2022; Le Maitre et al. 2009). More broadly, South Africa faces several other water-related challenges: climatic changes are delaying the onset of annual rainfall, exacerbating drought conditions, and population growth is adding significant pressure to an already stressed supply system (Le Maitre et al. 2009; Molobela and Sinha 2011). Further, historically underregulated and mismanaged mineral extraction has degraded water resources, as demonstrated by, e.g. the instances of acid mine drainage that have contaminated both groundwater and surface-water resources (McCarthy 2011; McCarthy and Humphries 2013; Polisi et al. 2021).

It is necessary therefore, to carefully consider how, if UOG production proceeds, groundwater resources can be effectively managed alongside these activities. To this end, an in-depth, global literature review on groundwater governance was conducted, the findings of which were used as a framework for a series of expert interviews, intended to appraise and inform the future direction of groundwater governance in South Africa.

Literature review

Hydraulic fracturing and groundwater

Unconventional oil and gas production has been a controversial development in global energy policy, not least because of the application of the technique of high-volume hydraulic fracturing (HVHF hereafter) or “fracking” to stimulate new fractures and thereby increase the productivity of low-permeability rocks such as shale, coal beds, and sandstone (USGS 2021).

An in-depth review of the scientific and technical details of UOG and hydrogeology is beyond the scope of this paper, but certain considerations must be outlined owing to their fundamental importance to groundwater governance. Briefly, UOG exploration and production can potentially pose many threats to groundwater resources; UOG production is often a very water intensive process (see e.g. Kondash and Vengosh 2015; Kondash et al. 2018), and concerns have been raised about the potential of UOG production to damage groundwater resources by: (1) overabstraction of groundwater; (2) HVHF operations affecting the integrity of an aquifer by altering its geological structure or contaminating an aquifer via the upward migration of fracturing fluids; (3) poor wastewater management of both the flowback and produced water which may contain chemicals used in the HVHF process, including radioactive materials and heavy metals; (4) poor well design and poor decommissioning practices allowing the migration of flowback or produced waters into the aquifer (Esterhuyse et al. 2019; McIntosh et al. 2018; Pietersen et al. 2021; Vengosh et al. 2014; Whyte et al. 2021).

Groundwater governance

Groundwater has a number of unique qualities as a common-pool resource that make effective governance difficult: it is invisible, it often has a slow rate of flow, and it is widely distributed—what Villholth and Conti (2018) describe as its “invisible, slow, and distributed” (ISD) signature. Moreover, its management requires both significant expertise and funding. These elements, alongside the rapid increase in demand for groundwater in recent decades, have often resulted in weak or fractured governance (GEF-GD 2016; Villholth and Conti 2018). Given the significant social, economic, and environmental functions groundwater provides, its effective governance is therefore essential.

Groundwater governance: key themes, and lessons learned

Groundwater governance is a relatively new discipline, but recent years have seen several key developments. Perhaps the most notable among these is the Global Environment Facility (GEF) Groundwater Governance Project, a comprehensive review of global groundwater governance issues (see Table 1), and the publication Advances in Groundwater Governance (Villholth et al. 2018), a four-part book, bringing together expert opinion and analysis of the various elements that comprise groundwater governance, both in its theoretical background and practical application.

Table 1 Table summarising the Groundwater Governance (GWG) Project
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These two works provide the most authoritative and comprehensive existing studies of groundwater governance, and their findings are used as a framework for the review of literature that follows.

Defining groundwater governance

The definition of groundwater governance has evolved over time (see Villholth et al. 2018, pp. 9–11) in part due to the relatively recent development of the subject, but also reflecting the shifting priorities of influential stakeholders, (e.g. the GEF). For the purpose of this paper, the definition used is that proposed by Villholth and Conti (2018, p. 14):

…the framework encompassing the processes, interactions, and institutions, in which actors (i.e. government, private sector, civil society, academia, etc.) participate and decide on management of groundwater within and across multiple geographic (i.e. subnational, national, transboundary, and global) and institutional/sectoral levels, as applicable.

Groundwater governance project: key themes

Throughout the course of the Groundwater Governance Project, the findings of which have been widely reported (e.g. de Chaisemartin et al. 2017; Mechlem 2016; Rica et al. 2018; Varady et al. 2016; van der Gun and Custodio 2018) a number of elements emerged as fundamental. These were in broad terms: (1) actors; (2) regulatory, legal and institutional frameworks; (3) policies; and, (4) knowledge, information and science (see Table 2). The following subsections will outline what they each consist of, and what challenges and opportunities they face and present, thereby identifying connections between groundwater governance components, which will in turn provide the framework to address the challenge of UOG development in South Africa.

Table 2 An overview of key themes identified in the Groundwater Governance Project
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Actors and modes of governance

There are numerous and diverse actors involved in the abstraction, management and governance of groundwater. These include the private, public, and third sectors, all operating at a number of different scales of governance, from local to global (GEF-GD 2016). The actors can be broadly categorised into three groups: first, those that abstract groundwater; second, those that are in charge of groundwater policy development and management; and, third, professionals that facilitate the implementation of groundwater policies (van der Gun and Custodio 2018). However, in addition, there are other actors with the ability to impact groundwater such as those involved in mining, industrial, or agricultural activities. Effective governance requires the coordination of these actors, and although there is no one-size-fits-all approach, or “panacea” to governance (Ostrom 1991), certain methods have proven to be more successful than others. Typically, governance structures fall into one of three categories: (1) a top-down “command and control” strategy; (2) a bottom-up, community-driven approach; or, (3) a combination of the two that involves a centrally coordinated strategy, but includes some degree of stakeholder participation. A breakdown of the different approaches and their strengths and weaknesses is provided in Table 3.

Table 3 An overview of typical approaches to groundwater governance, and their relative strengths and weaknesses
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Governance challenges involving actors and different approaches to governance are numerous and varied, including (1) problems of awareness resulting from groundwater’s ISD signature (see e.g. Eden et al. 2016; Foster and Garduño, 2012; Jacobs and Bujis 2011; Megdal et al. 2017; Villholth and Conti 2018) (2) stakeholder engagement challenges, e.g. historic mistrust between actors, and over/under-representation of certain groups, and difficulties in initially engaging with stakeholders, and then embedding and maintaining their participation into the governance process (GEF-GD 2016; Jacobs and Buijs 2011; Mott Lacroix and Megdal 2016), and (3) governmental challenges, e.g. insufficient resource-allocation and lack of clear mandates and transparency (GEF-GD 2016). Many of these challenges have no easy or definitive solution, and will therefore be ongoing. However, continuing efforts to raise the profile of groundwater should improve awareness and in turn, encourage investment and participation. Furthermore, addressing these challenges can provide a platform for wider societal benefits, e.g. institutional reforms, greater accountability and transparency and improved trust between actors (GEF- GD 2016; Villholth and Conti 2018).

Legal, regulatory and institutional frameworks

Legal, regulatory and institutional frameworks are crucial for effective groundwater governance. They define the rights and obligations of both users and of administrative authorities, and form the basis of more refined policy development (Burchi 2018; Chaisemartin et al. 2017; Mechlem 2012). Legislation must be designed in accordance with existing institutional capacity, so that it can be effectively implemented, regulated, and where necessary, enforced. Furthermore, its design and implementation must consider existing water use and customary water rights (GEF-GD 2016).

Groundwater legislation has in recent years come to reflect a shift in perceptions including the acknowledgement that groundwater is a finite resource, and that groundwater resources, although common-pool, need to be treated not as open-access resources, but as a public good, which inevitably means some degree of state intervention in its regulation (García et al. 2018; GEF-GD 2016; Mechlem 2012). Legislation, therefore, typically addresses the following—groundwater abstraction, e.g. drilling permits and setting volumetric abstraction limits and rates; environmental protection, e.g. pollution prevention and ecosystem protection measures; and, social policies and human rights, including improving access to clean water.

Establishing workable legislation provides a framework for policy, but its application presents many challenges. Administration, implementation, and enforcement of legislation are fundamental aspects of groundwater governance, and are areas which have been identified as often weak or unsatisfactory (GEF-GD 2016). Several reasons have been identified as the underlying causes of these failures, including laws contravening customary law or existing water rights (Burchi 2018; Llamas et al. 2015; Mechlem 2016; Roth et al. 2015), prohibitive costs associated with compliance (GEF-GD 2016), a social culture of noncompliance (GEF-GD 2016; Zubari 2013) and a lack of human, financial and technical capacity to implement and enforce legislation (Foster and Garduño 2012).

If legal reform is necessary, it is not an instantaneous process, but if it is done correctly, it has the capacity to be beneficial by discarding outdated regulations, ensuring that new legislation minimises policy fragmentation, and introducing enforceable laws that incorporate modern socio-ecological goals and aspirations, and which adopt the current best technological practice to achieve these ends (Villholth and Conti 2018; Foster and Garduño 2012).

Groundwater policy and management

Although necessarily interconnected, there is in practice a distinction between legal, regulatory and institutional frameworks, and policies and management. Legislation provides a framework within which policies must be developed, but developing and enacting laws is a slow process, and once in place, they are difficult to amend. Management strategies on the other hand are location-specific, and are the tools and activities that are used to achieve policy. Policies are the link between the two. Policies set goals, they represent societal preferences (e.g. means of energy or food production), and reflect societal structures, such as top-down or bottom-up approaches to governance. They incorporate principles (e.g. the polluter pays the principle and the precautionary principle), and establish the processes to achieve these ends—e.g. through Integrated Water Resource Management (IWRM; GEF-GD 2016; Varady et al. 2012a, b). As with most aspects of groundwater governance already discussed, the approach policymakers adopt is influenced by local realities. Determining factors include the relative role of the state and private sector in policy formulation (GEF-GD 2016), the likelihood of compliance, and whether to rely on hard instruments, such as legislation, or to adopt a softer approach such as applying incentives or disincentive schemes. There is an ever-increasing body of academic literature comparing groundwater governance policy—see part 4 in Advances in Groundwater Governance (Villholth et al 2018); Ross and Martinez-Santos (2009); Ross (2017); and Varady et al. (2012a), and common challenges can be drawn out of this work.

Knowledge, information and science

In principle, there is an abundance of knowledge, information and science that can facilitate groundwater governance. This ranges from detailed groundwater assessments to the socio-economic data of regional groundwater users, information coming from multiple disciplines and a range of sectors, therefore outlining all such potentially useful data, is beyond the scope of this paper. Key conclusions from the literature on this theme are as follows:

  • Groundwater assessments. Robust groundwater assessments are fundamental to effective groundwater governance. As a minimum, these should include: (1) a hydrogeological characterisation (an assessment of the interaction between groundwater and ecosystems); (2) an assessment of the groundwater-food-energy nexus; and, (3) the economic services provided by the groundwater resource (IGRAC 2020). Consideration of the temporally variable aspects of these factors, e.g. variable recharge, changing agricultural practices, population growth, and climate change is also needed (GEF-GD 2016; Villholth and Conti 2018).

  • Data sharing. The GEF found data sharing of information relevant to groundwater governance to be limited, and often not suited to different actors (GEF-GD 2016). It was therefore recommended that policymakers foster cooperation with the private sector, create structural provisions to facilitate data collection, and data and information distribution, and encourage the tailoring of information to specific groups (GEF-GD 2016; Villholth and Conti 2018).

  • Quantitative indicators. Defined baseline measurements for water quality and quantity, alongside monitoring systems that can provide advanced warning, are advisable to improve disaster-preparedness and increase system resilience (Pietersen et al. 2016; Varady et al. 2016).

  • Knowledge production. Citizen science, or the co-production of knowledge, has been proposed as a means of addressing many of the challenges addressed so far, by creating and reinforcing stakeholder participation and by promoting awareness (Mott Lacroix and Megdal 2016; Varady et al. 2016).

Addressing all these aspects of groundwater governance is costly, time-consuming, and requires skilled personnel, which, depending on socio-economic realities, may make them difficult to achieve. Improved remote-sensing and technological advancements are improving the ability to collect, store, manage, analyse and distribute data, and reducing the need for in situ fieldwork (GEF-GD 2016; Varady et al. 2016), but there are still significant barriers associated with this aspect of groundwater governance. That said, although access to good data, science and information is obviously beneficial, gold-standard knowledge information and science is not essential, so its absence should not be used as an excuse for inaction (Varady et al. 2016).

The findings from this literature review provide valuable insight into common challenges that can impact effective groundwater governance. It is therefore proposed, that by recognising this existing knowledge and global experience, it will be possible to apply this information to ongoing or developing groundwater governance scenarios, to help mitigate potentially deleterious socio-ecological impacts, and facilitate effective management of groundwater resources.

Methods

The objective of this research is to use existing groundwater governance research to provide a framework for data collection of expert perspectives on current groundwater governance arrangements in South Africa. Data collection included both expert interviews, involving relevant actors, and participant observation of a number of significant events regarding decision-making processes pertinent to groundwater governance and UOG development in South Africa.

The research focussed on the four areas of groundwater governance that were identified in the literature review as fundamental to effective groundwater governance: (1) actors; (2) regulatory, legal and institutional frameworks; (3) policies; and, (4) knowledge, information and science. Interviewees were therefore identified owing to their relative expertise in these areas of research in South Africa, both in the fields of groundwater and UOG, and also in environmental governance more broadly. Sixteen interviews (and several follow-up interviews) were carried out between 2020 and 2023, both online and in-person; all interviews were semistructured, thereby not only enabling the research to adhere to the broad governance framework established in the literature review, but also allowing participants the freedom to provide detailed responses according to their areas of expertise. The questions posed to participants were relevant to their expertise. Participants were approached throughout the course of undertaking the literature review and chosen according to the relevance of recently published works, with further participants contacted by recommendation or introduction of existing participants. The participants were largely based in South Africa, although there was some international input to mitigate knowledge gaps that may have arisen owing to UOG development in South Africa still being in its early stages. There was a high positive response rate from people approached, with stakeholders from many of the sectors identified in the literature review agreeing to take part (see Table 4).

Table 4 Profiles of interview participants
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In addition to one-on-one interviews, the research included a participant observation element, where several relevant events were attended, including events organised by SADC-GMI (Groundwater Management Institute; events in 2019, 2021 and 2022), DWS (event in 2021, Council for Geoscience (CGS; event in 2022), South African Oil and Gas Alliance (SAOGA; event in 2021), alongside visits to academic institutions, and other private sector actors involved in UOG and groundwater governance research. This enabled the research to have a “live” aspect to it, as it provided an opportunity to directly observe key governance operations, such as policy drafting, lobbying, and feedback from stakeholders. Further, it provided a platform for the research to pose questions to a wider audience, i.e. delegates or speakers, and participate in group discussions.

All interviews were transcribed, and all events attended were recorded where permitted and practicable, or if not, field notes were taken. Transcripts were then subject to qualitative analysis and coding, using F4 Transcript software. Transcripts were coded according to the predetermined research framework (see the aforementioned), and were further subcoded into subject groups as they occurred. In this process, there emerged a picture of where consensus exists, identified areas frequently cited as of concern, and also highlighted areas of ongoing debate and discussion.

Qualitative narrative and discussion

The following discussion is an analysis of the findings of the interview and stakeholder engagement processes. Using the framework drawn from the literature review. It provides an in-depth analysis of a range of expert opinions, which will in turn be used to draw conclusions and provide a series of recommendations. All quotes are derived directly from primary data collection, i.e. interviews or participatory events, and are reproduced with the permission of interviewees.

Actors

When the potential for large-scale UOG exploitation was identified in South Africa in the early 2010s, scientists and academics quickly identified the need to begin meaningful and representative stakeholder engagement processes to ensure that all relevant stakeholders would have a platform to convey their knowledge and expertise, and also to voice their concerns and reservations. To this end, in 2015, staff at the national research institute, the Council for Scientific and Industrial Research (CSIR), approached the South African government to propose a systematic scientific assessment be carried out, to address what they perceived as the ad hoc approach that different stakeholders had been using up until then, and to provide a means of addressing the problems that were already beginning to emerge:

“the shale gas thing was developing in a very unhealthy way. It got very polarised very early, and people on either side of the divide weren’t listening to each other, just throwing rocks at each other” (participant 5)

From these early discussions, it was concluded there was a need for an open scientific assessment, that brought together experts and representation that covered all pertinent aspects of the complex social and ecological practice of UOG exploration, and to create a multi-author team that represented “a diversity in the different disciplinary approaches, but also genders, ages [and] origin[s]” (participant 5). It was suggested that by adopting this approach—one similar to those already employed by, e.g. the Intergovernmental Panel on Climate Change (IPCC) and the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES)—it would be possible to gain an understanding of the spread of legitimate tested opinion. The outcome of this process was the publication of the 2016 strategic environmental assessment Shale Gas Development in the Central Karoo: A Scientific Assessment of the Opportunities and Risks (SGDCK hereafter; Scholes et al. 2016), a comprehensive assessment that addressed 18 questions over 1,400 pages.

The SGDCK provided a meaningful framework for stakeholder participation, and was broadly well-received, from “both the petroleum industry side, and the environmental non-governmental organization (NGO) side” (participant 5). It was credited with bringing together factions that had up until that point refused to engage:

“People said “You’d never ever get these people to sit in the same room”, but we did, and they all learned something about it. It didn’t necessarily mean that they radically changed their positions, but they understood what the constraints were” (participant 5)

The SGDCK specifically addressed water resources in the publication (Scholes et al. 2016, Chap. 5), and concluded with a section identifying the key knowledge gaps (Scholes et al. 2016, Chap. 5, pp. 111–115); alongside several technical and hydrogeological unknowns, the need for the DWS to develop effective regulation to manage water resources alongside UOG production was also identified:

“it is necessary that the DWS develops its own regulations to govern the exploration and development of petroleum resources as soon as possible” (Scholes et al. 2016, Chap 5, p. 113).

The DWS have begun developing regulations to manage onshore UOG exploration and production (Government Gazette Notice 44545, 07 May 2021), which has triggered multiple stakeholder engagement meetings aimed at bringing together different legal, technical and academic experts. The stakeholder engagement process was generally well received by interviewees involved in the process, although the length of time the process has taken has come under scrutiny, leading to a reduction in engagement, with the chair of the latest meeting: “DWS Stakeholder Engagement on Unconventional Gas—Research, Knowledge and Academic 23 November 2021” conceding the event was poorly attended. This research has found no evidence of stakeholders being actively excluded. It therefore seems likely that the engagement process for the current version of regulations is complete, and, as one interviewee concluded, until the paucity of detail within the regulations is addressed (e.g. conflicting definitions; baseline monitoring; penalties for noncompliance; borehole closure; Pietersen et al. 2021), the focus should not be on further engagement, but addressing identified shortcomings within the current draft.

The effectiveness of the top-down, centralised mode of governance adopted by the South African government has come under scrutiny. It was suggested by interviewees that this approach led to delays in the initial scientific assessments, and raised questions of transparency of the process:

“It took a long time to get government to agree [to the SGDCK], because their natural instinct is not to hold open processes, it is to hold… [the] kind of process, where they control information and determine who does the studies” (participant 5)

South Africa also has a significant NGO and third sector that play an important part in the development of policy, and have been influential in the ongoing UOG debate:

“NGO sector is very valuable, coupled with an active citizenry, and an active free media. That’s been one on the forces that have actually maintained a lot of accountability” (participant 9)

They also seek to sustain effective communication channels between and within government departments. One example of this is the relationship between the powerful federation of agricultural organisations, Agri SA, who have regular meetings with government ministers, and have been an influential lobby group regarding UOG policy:

“there’s a very strong relationship between [Agri SA, and] all government departments, the DMRE maybe not so much, I think for a variety of reasons, and they obviously know we are often complaining and fighting about things with them, so it’s not as cordial a relationship. But it’s certainly something we strive for, to engage with different government departments at all times” (participant 9)

Further, research organisations such as the Water Research Commission (WRC), who are mandated to promote coordination and cooperation in water research, are involved in both technical aspects of water research and policy development, and can therefore be effective conduits of information between technical staff and ministers:

“they are reporting directly to the Minister of Water and Sanitation, so the minister is using them as a soundboard for guidance as well. So with their research they are providing input into where the minister is going […]. We [in] the Department are actually providing the Water Research Commission information that [then] feeds back to the minister” (participant 4)

Regulatory, legal and institutional frameworks

Legal framework

The legal framework in South Africa is widely well regarded, and the Constitution of South Africa, established following the country’s first free and fair elections in 1994, is internationally lauded for its progressive and inclusive legislation, its extensive Bill of Rights, and commitment to environmental protections—e.g. Constitution of the Republic of South Africa, 1996, Sects. 1; 38; 24 (Cameron 2018). The main pieces of legislation that cover groundwater governance and UOG exploration are described by one of the interviewees as:

“very good laws, particularly our NWA [National Water Act] and NEMA [National Environmental Management Act], our MPRA [Mineral and Petroleum Resource Development Act] is a well-drafted piece of legislation” (participant 9)

Furthermore, this interviewee goes on to argue that under the constitution, environmental protections should be prioritised over economic activities such as UOG exploration and production, and although it should be noted that this is an individual legal interpretation, and not an established precedent, this reading could in practice be beneficial to effective groundwater governance, as:

“[the] constitution of the RSA, which holds as a fundamental human right, the right to an environment that is not harmful to the health or wellbeing of its citizens, there’s no equivalent provision in the bill of rights of the constitution, that should give precedence to mining. Water, and the requirement for housing and water, these very social rights is supported in the constitution, are also contained in that, so from a legal point of view, I would probably say that you have very strong grounds legally, from a constitutional point of view, read together with NEMA to make one think that the environmental consideration should have precedence” (participant 9)

Further interrogation of the relative precedence of legislation is beyond the scope of this research; however, future legislative decisions will inevitably have an impact on groundwater governance, and therefore this aspect of governance will require continuing attention and revision.

This effectiveness of the legal framework and its appeals process was tested in 2019 in a series of legal cases (Minister of Mineral Resources v Stern and Others; Treasure the Karoo Action Group and Another v Department of Mineral Resources and Others (4 July 2019) in which it was successfully argued that the Minister for Mineral Affairs was not authorised in terms of the MPRA to implement the Regulations for Petroleum Exploration and Production, 2015, and that activities relating to petroleum exploration and production should instead come under the control of the Environment Minister and NEMA, thereby creating a more transparent and accountable process in which there was interdepartmental scrutiny of policy decisions (CER 2019; EGSA 2019).

Regulatory framework

The regulatory framework for water management as well as UOG extraction in South Africa is a work in progress as highlighted in the legal case Minister of Mineral Resources v Stern and Others, so whilst resolving responsibility for granting exploration rights is a welcome development, there remains a whole suite of regulations that need to be developed and enacted if groundwater resources, and other socio-ecological concerns, are going to be managed effectively during the exploitation of UOG reserves (see Esterhuyse et al. 2019 for a detailed examination of regulatory approaches).

As the SGDCK acknowledged in 2016, it is imperative that the DWS has its own regulations governing the exploration and development of UOG. To date, the regulations “the draft Water Fracking Regulations” (DWS 2021) covering planning and assessments, water-quality monitoring, site selection, establishment and containment, well management, and hydraulic fracturing remain in draft form. Developing the regulations has involved an ongoing stakeholder engagement process, and participants in this have consistently identified two significant issues with the process: first, the length of time it is taking, and, second, the lack of substance, particularly granular regulatory detail, in the draft.

The slow process in drafting regulations is in part because it is essential that they are well designed, and that once implemented they will be fit for purpose, so there was a general agreement amongst participants that the process is inevitably time-consuming. In addition, there is a creditable procedural protocol in South Africa that requires regulation to be presented to the public for comment, which allows stakeholders the opportunity to engage with regulation development, which in turn allows government to amend regulations accordingly. Nevertheless, the development of these regulations has been protracted, and a source of huge frustration to those involved, as one interviewee noted:

“Nothing is working soon in South Africa, so everything is going to take some time, so I presume that we will only get this regulation in let’s say three to five years from now. It’s taking a very, very long time to get regulations into place” (participant 4)

There have been a number of explanations for this delay. These include institutional capacity (see section ‘Legal, regulatory and institutional frameworks’), unclear government policies, and unwillingness to commit to regulation for fear of public backlash. There have also been procedural factors cited for the delay, notably the exclusion of experts from involvement in writing the regulations, so that all drafting was done internally, which has restricted both capacity and expertise:

“[the DWS] wasn’t willing to invite anybody from outside, from academia, or industry, and [it] just closed up the whole thing. So it’s only the department internally writing those regulations, and up to now nothing has come out because they just don’t know what they are doing” (participant 2)

It was alleged by a number of interviewees that in-depth amendments submitted to government by external parties for review have been ignored, and that technical considerations essential for the effective protection of groundwater resources have either been overlooked or lack the necessary detail. Outstanding issues include the sealing of abandoned wells, vertical separation distances between HVHF activities and overlaying aquifers, the progress of baseline water assessments, and penalties for noncompliance (see Pietersen et al. 2021). There appears to be, however, a promising consensus among all concerned that the identified shortcomings of the draft version must be addressed, and the process be expedited as a matter of urgency, to ensure the regulations are in place and effective before any further UOG development activities begin.

In addition to regulation directly relating to UOG extraction processes, it is also widely recognised, both outside and within government, that there needs to be regulation for downstream activities associated with any UOG extraction (also known as “fractivities”) that have the potential to damage groundwater resources. These include, though not limited to, technical regulation determining best practice for wastewater transport and disposal, and the effective regulation, monitoring, and accountability framework for subcontracted works, because all these activities have proven to be a significant problem for regulators in the United States (McGranahan and Kirkman 2019, 2021). There is a further consideration, although it is outside the scope of this research, that social and infrastructural regulations cover additional costs incurred for policing, road maintenance, and other factors associated with developing large industries in rural locations such as the Karoo.

It is clear therefore that although UOG extraction is still unconfirmed in South Africa, it is vital to establish an effective regulatory framework irrespective of ongoing policy uncertainty, to forestall entirely predictable negative externalities that could occur should UOG production proceed, and that policy-makers and regulators draw on the knowledge of the more developed industry in the United States to create a suite of regulations (McGranahan and Kirkman 2019, 2021), as one interviewee concluded:

“ If people […] would at least take that precautionary principle, if there’s a one-percent chance that this could happen, they should have some robust guidelines for how it’s going to work ” (participant 7)

Having established consensus on the types of regulation that are necessary, there remains the need to determine by whom they will be enforced. The public stance of the DWS (as expressed in their academic stakeholder engagement meetings) is that there is existing departmental capacity to manage the extra workload associated with the regulations, a view not shared by any of the research interviewees. An example of these reservations is the already ineffective enforcement of the existing water use licences:

“the regulations are there, but the actual implementation on ground level, it’s non-existent” (participant 4)

This had led to the general agreement that the DWS will need to build capacity within the department, particularly in human and physical resources, or outsource the work to private companies, or more probably, both. As the SGDCK concluded:

“The likelihood of environmental non-compliance is increased by poorly capacitated regulators, largely reliant on information supplied by the industry (Scholes et al. 2016 p. 31).

Institutional framework

Given the complex nature of exploiting UOG, it is unsurprising that there is a need for a range of institutions, including, e.g. institutions involved in research and development, policy-making, and civil engineering, alongside their relevant regulatory bodies, which in turn will necessitate some degree of lateral, polycentric governance to ensure the process is coordinated effectively, as one interviewee with extensive expertise in systems thinking said:

“You don’t just need one institution, it’s no use saying “what we’re going to do is create the shale gas regulatory agency, okay, job done!” You need a whole ecosystem of institutions” (participant 1)

Owing to South Africa’s rich mining history, many of these institutions are already in place, notably in the areas of geological exploration and impact determination. However, as has already been argued, there are significant institutional gaps, particularly when it comes to regulatory institutional capacity. Furthermore, there is also consensus among interviewees that there is a paucity of skills, human resources, and funding, especially at the local and municipal level.

This distinction between national and regional capacity is a product of the top-down nature of South African governance, which has over time become increasingly centralised. One example of this was evident in an interviewee’s descriptions of the water use licensing capacity:

“we’ve taken that whole exercise away from the regional office, and we’re going to centralise in head office. So […] you don’t have a lot of capacity, don’t have a lot of skill sitting in the regional office, so now you’ve taken it to head office, where you’re sitting with a few experts” (participant 2)

There was also criticism of the historical disbanding of the groundwater department, and dispersing groundwater experts across the DWS, with one interviewee commenting:

“they separated all of these departmental functions to manage and protect groundwater resources, that must actually be done together, and placed groundwater experts in separate subdivisions of the DWS. So they broke up all that groundwater expertise and now there isn’t any critical mass to perform the required tasks and also not a proper centralised knowledge base on groundwater within the DWS” (Participant 2)

What emerges from these findings is a picture of disjointed institutional management, underfunding, and human resource shortages. This combination of factors has had a compounding effect that skilled professionals, frustrated with the institutional barriers to effectively discharging their duties, or the “uphill battle”, of working within government, are seeking alternative employment in the private sector or academia. In addition, a perception of government department mismanagement may also be deterring young professionals from seeking government jobs:

“young people who might be interested in groundwater are not interested in going into government because it’s all a shambles, they would rather go work at a consultancy company and get some proper experience” (participant 2)

Finally, there is a perception of endemic corruption at both national and local levels of government, identified by all participants interviewed, which creates an environment of mistrust among stakeholders, and appears to be a significant barrier to effective groundwater governance. The concern therefore is that should UOG extraction works proceed and contracts begin to be allocated, the misappropriation and misallocation of funds will compound existing institutional gaps:

“they [the SGDCK] flagged that the regulatory institutional capacity was not only missing, but there were real reasons to suspect it wouldn’t function particularly well” (participant 1)

There exists within South Africa significant expertise to effectively manage groundwater resources should UOG production proceed, both within government, government-led institutions, and in the private sector. There is also a substantial body of academic research being carried out concerning groundwater and UOG production. However, given the existing top-down governance structure, it is imperative that central government provides the necessary resources to enable subsidiaries to act effectively. This means, among other things, adequately funding government departments, mandating them to delegate duties at the appropriate governance level, and continuing to root out corruption and cronyism throughout the supply chain. It also seems advisable that the government should utilise the extensive private sector, and encourage public-private partnerships, in order to maximise the skills and resources available.

Policies

South African energy policy is currently in a transitionary state. The country has been subject to rolling black-outs or “loadshedding” since 2008, and is in urgent need of additional energy sources (Esterhuyse et al. 2022). The Integrated Energy Plan (IEP) is the umbrella policy outlining how the country will meet its energy requirements, yet a formalised IEP has not been released since 2003, despite a requirement in the 2008 National Energy Act that it be reviewed and published on an annual basis (Akom et al. 2021; Yelland 2021). The Integrated Resource Plan (IRP) is a component of the IEP that considers future energy requirements and how these will be met, last published in 2019, and as already mentioned, includes only a brief statement on UOG (see section ‘Hydraulic fracturing and groundwater’). Further policies relating to gas, unconventional or otherwise, need also to be included in the Gas Utilisation Master Plan (GUMP) drafted in 2016, but again, yet to be finalised and released (Yelland 2021). So South Africa still has no formal policy concerning UOG, although there is an anticipated revised version of the IRP expected in 2023. In the absence of any coherent long-term energy policy, an energy policy “vacuum” has occurred (SANEA-ERP 2021, p. 29), which has had negative consequences, and which include the stifling of investment in the sector, and stakeholders competing to promote individual and local interest (SANEA-ERP 2021). It has been suggested that a lack of leadership and burdensome bureaucratic processes have created a policy environment that is focussed merely on crisis management, and has meant UOG policy remains “uncoordinated and haphazard” (Yelland 2021 p. 3).

“we just flip-flop between policy decisions. Some are formalised, some are unformalised, and it all just creates an unhealthy environment” (participant 10)

In addition, this uncertainty creates an unnecessary institutional burden, whereby scant resources are distributed across several areas of the energy sector, limiting any significant action on specific policies, and enabling only insignificant progress on the numerous varied initiatives proposed in the IRP (SANEA-ERP 2021). This has a knock-on effect for effective groundwater governance, as it creates institutional inertia, hampering financial and human-resources investment in groundwater science and policy research, as one stakeholder noted, when discussing working on UOG and groundwater policy: “there was no progress […] those initiatives all lost momentum” (participant 7).

There is research evidence that identifies significant doubt among groundwater experts that South Africa has the necessary policies to deal with UOG exploitation (Esterhuyse et al. 2022), but given current inaction on any disruptive activities, there is time to rectify this. There exists a national Groundwater Strategy, that aims to ensure groundwater is recognised and protected as part of the broader water policies, notably the National Water and Sanitation Master Plan, but it is further proposed policies must be updated to include data-driven adaptive management strategies to accommodate the development of simultaneous policy pathways involving both groundwater and energy (Pietersen et al. 2021). Policies need therefore to be developed based on existing knowledge about water resources in the country (e.g. lessons learned from the SGDCK), and policymakers need to closely examine policies already adopted in other countries regarding UOG and groundwater, and use these as a framework to build an effective, bespoke policy framework for groundwater governance during UOG exploitation in South Africa (Pietersen et al. 2021).

Finally, policy development will also need to avoid conflict with existing water and environmental policies. There is significant pressure to reduce carbon emissions; to this end, South Africa has established a multistakeholder vehicle, the Presidential Climate Commission (PCC), to facilitate a just energy transition. This approach is designed to assist both interdepartmental coherence, thereby avoiding fractured governance scenarios, and ensure community and stakeholder involvement in the decision-making processes. Forming policies that balance lower carbon emissions, alongside developing new gas resources, and managing groundwater, will inevitably be a challenging undertaking, reiterating the need for a data-driven policy approach.

Knowledge, information and science

As already highlighted, South Africa has significant existing geological and hydrogeological scientific and technical expertise. There remains, however, key knowledge gaps that need to be addressed before any invasive work commences. As a preliminary, it is worth noting that there is still significant uncertainty regarding the presence and volumes of technically recoverable UOG resources in South Africa. This is at least in part because of the country’s geological history, and the extensive igneous dolerite intrusions present throughout the region, that it is speculated will have diminished the volume of gas in the shales (Scholes et al. 2016). This is one area in which the research identified quite stark differences of opinion among interviewees; although none of the participants were adamant that economically viable technically recoverable volumes of gas exist, some participants believed the possibility of their existence, and the potentially positive economic benefit they could yield, meaning they were in favour of extensive (and expensive) exploration, whereas others believed it is too unlikely to be worth the expense and social and environmental risk.

The CGS is continuing work on the Deep Drilling Project, a geo-environmental baseline programme designed to further characterise the geological and hydrogeological profile of the southwestern Karoo basin, which it is hoped will in time resolve this uncertainty, but to date, no conclusive evidence has been provided. There was also criticism from interviewees regarding the transparency of the project, frustrating attempts to engage in meaningful collaborative work:

“they’re [the CGS] not very forthcoming with information, they keep their cards close to their chest, and they want to charge you for everything” (participant 13)

This ongoing work does, however, provide invaluable insights into the hydro-litho-structural domains of the southwestern Karoo (GGS – Deep Drilling Project; Pietersen et al. 2021).

The southwestern Karoo is characterised by a complex and varied hydrogeological system, containing extensive discrete structural features which could provide preferential hydrogeological flow pathways (Pietersen et al. 2021). This has been identified as a key knowledge gap:

“There is […] a gap in our identification, understanding and mitigating hydrogeological risk pathways in the context of shale gas exploration in the Karoo basin” (Pietersen et al. 2021 p. 2).

It is therefore necessary to have detailed maps identifying the relative locations of aquifers, target formations, and discrete structural features, information which can then be used to inform a data-driven regulatory approach outlining minimum vertical and horizontal separation distances between aquifers and the HVHF target zone, which can be adapted according to the presence of preferential pathways (Esterhuyse et al. 2019; Pietersen et al. 2021). This adaptive approach would mitigate risk to groundwater resources, and avoid the potential pitfalls of having a prescribed regulatory policy that could prove to be inadequate to protect groundwater resources, or be unnecessarily restrictive to industry.

The SGDCK identified the need for a comprehensive baseline groundwater monitoring network to be in place prior to the commencement of any works, an approach routinely adopted within command-and-control regulations (Esterhuyse et al. 2019; Scholes et al. 2016). Baseline surveys determine water availability and existing water use, thereby guiding policymakers on resource allocation decisions, and can help ensure equitable and sustainable practices. They enable future comparisons to determine changes in groundwater quality, identifying any contamination, and diagnosing potential contaminant sources. They therefore can be important in establishing the basis for any legal claims of contamination, and as such, may be carried out by industry regardless of regulatory obligation to enable companies to refute such claims (Esterhuyse et al. 2019, 2021). A baseline programme has been established, appointed by PASA, and is being designed and conducted with hydrogeological experts from the Institute for Groundwater Studies (IGS) at the University of the Free State (UFS). This has been a complex and challenging project, but well received within the groundwater community:

“[the] monitoring data set that they’re going to put in place, or monitoring network, will then cover the whole area and cover everything […] that will make a very good network” (participant 4)

Information sharing is a key component of groundwater governance, and an invaluable tool for protecting groundwater resources during UOG extraction processes (Esterhuyse et al. 2019). It is therefore necessary to ensure structural provisions regarding data-collection and dissemination are in place prior to invasive activities. These should include the reporting of all permits issued, details of all planned and existing wells, baseline and monitoring data, and any instances of noncompliance and resulting penalties (Becklumb et al. 2015; Esterhuyse et al. 2019). In addition, detailed water use data must also be provided, including volumes of water used on individual wells, the precise chemical composition of fracturing fluids used on individual wells, and corresponding data of all water volumes and water chemistry returned to surface (Esterhuyse et al. 2019). Energy companies in the United States have objected to this on the basis that disclosure of precise chemical composition of its fracturing fluid formula is a violation of their proprietary trade secrets, but its exclusion from public disclosure causes significant barriers to effective groundwater management. Policymakers in South Africa therefore need to have a clear policy position on information disclosure and exemptions to avoid the legal stalemate that has arisen in many states in the US, and to enable the effective regulation and monitoring of industrial practices in South Africa (Esterhuyse et al. 2019, 2022; Johnson 2021).

Effective communication of data and regulatory transparency is also necessary. To this end Villholth and Conti (2018) propose that provisions for public participation in regulatory and licensing processes are in place, to ensure communications can be tailored to particular audiences, and are readily understood by the public. Having a clear communications strategy and transparency policy is needed to ensure all information can be independently assessed, providing industry social license to operate (Esterhuyse et al. 2019; Villholth and Conti 2018).

Communication between government departments and stakeholders outside government was also questioned,

“Unfortunately it feels like If you’re a scientist on the outside, you’re doing all this work, and all the scientists and academics and consultants […] we share the information with each other and publish it […] Although the publications on groundwater research in South Africa are often publicly available, government always seems to be unaware of the research and they will ask […] did you do any work on this and this? We would reply ‘yes!’ and would supply them with studies and articles […] and then afterwards you don’t hear anything from them again” (participant 2)

This lack of communication creates unnecessary barriers to effective groundwater management, policy and regulation development. It is proposed by a number of interview participants that more transparent communication from government would facilitate both more effective management practices, and also improve trust among stakeholders and the public (GEF-GD 2016; Villholth and Conti 2018). It can also help prevent the misuse of information (Esterhuyse et al. 2022), and promote more robust scientific debate:

“the public debate has been overwhelmed by sectional interests unfortunately, so I think in the public realm a lot of scientific debate got lost” (participant 8)

There are existing data-sharing platforms present in South Africa that facilitate groundwater management, such as the government-run National Groundwater Archive and the open-access groundwater vulnerability map for UOG extraction, but interviewees considered that more needs to be done to ensure that data are routinely collected and uploaded to these sites so that they can be utilised effectively:

“what’s happening on [the] databases, information is not coming back” (participant 2)

Finally, the role of the media in communicating government policy must be considered. Despite recent serious allegations of state capture of the newsroom (Krige 2019), press freedom is generally respected, and has been credited with holding government to account:

“free and unfettered media has had an enormous contribution exposing the problems and deficiencies of government” (participant 9)

Conclusions

The purpose of this research was to apply a systematic approach to assessing expert perspectives on groundwater governance in South Africa. To that end, the key findings from recent, comprehensive, groundwater governance studies were amalgamated and used as a framework for a series of interviews with groundwater and governance experts, in order to establish where consensus exists, and areas of ongoing debate. There emerged from this process several consentient conclusions. It was agreed that the initial UOG stakeholder engagement process was extremely effective, and its resultant SGDCK was an excellent publication, built on the experience of internationally acclaimed assessment processes such as the IPCC and the IPBES. All interviewees agreed that the process benefited from effective leadership, and approached the process in an inclusive manner, with only limited criticism of the overall methodology. Further, the legal framework within which policy decisions and processes are to be enacted was also held in high regard by all participants of this research. However, several recurrent criticisms emerged, particularly regarding governmental inaction, the slow development of policy, limited institutional and technical capacity, and transparency of the governance process.

Although some of these problems have no quick-fixes, particularly problems arising from budgetary constraints, this research found agreement that there exists the realistic possibility of significant governance improvement. First, there needs to be a commitment to the precautionary principal, and prior to industrial mobilisation, there must be a confirmed suite of robust guidelines and regulations that covers both primary activities, and secondary fractivities. Second, given the government’s economic and technical limitations, government departments should further foster cooperation with the private sector and academic institutions, thereby maximising available expertise, that should be used to foster a data-driven approach to managing groundwater resources. Further, this approach would also go some way to addressing the identified mistrust. Finally, a commitment to information and data sharing is needed. There has already been a large body of work produced, and further information and science will inevitably emerge from this process, the findings of which should be used for the public good.