The Efficacy of South Africa’s EIA Regime Parliamentary Public Hearing 31 July 2013 Terry Calmeyer: President These comments have been prepared by the appointed representatives of the South African Affiliate of the International Association for Impact Assessment (IAIAsa) in response to a call for comment by Parliament on ‘The Efficacy of South Africa’s Environmental Impact Assessment Regime: A call for responses to Government’s legislative and policy framework to strengthen environmental governance and the sustainability of our development growth path’.  

Background Significant Infrastructure development Potential significant impact on Environment Challenge and responsibility to contribute constructively to these processes EIA can save R billions and contribute to sustainability goals South Africa’s response to the economic and social challenges, as presented in the National Development Plan, includes significant infrastructure development over the next few years. These activities have the potential to have significant impacts on our environment. Failure to address our economic and social problems will, however, also result in a scenario where resources are not effectively used and environmental quality is compromised. The environmental sector therefore has a challenge and responsibility to contribute constructively to these processes. If our contribution is not timeous and cost effective it will either be side-lined or not meet the objective of acceptable environmental protection.   IAIAsa believes that in order to be effective the EIA regime needs to provide the mechanisms that ensure that all relevant issues are identified in every EIA and that comprehensive assessments are undertaken to provide the authorities with the best possible information for decision-making, and that in South Africa we do have the required expertise to achieve this. A professional, well performed EIA process can save billions of rands in the short term and on future pollution disasters and help South Africa reach its sustainability goals. The past 15 years have seen a mixed bag in the efficacy of EIAs in South Africa. IAIAsa recognizes that the introduction of the legal requirement for EIAs has played a major role in moulding the environmental landscape of our country, providing a mechanism for the considered protection of our resources and environment for benefit of our current and future citizens. However, just like any new system, teething challenges have been encountered along the way, and our submission is that the following issues need to be addressed in order to enable the EIA Regime to optimally play the role that it can and should.

Recommendations Registration Authority Independence One EIA for all sectors (mining) Integrated Authorisations Independent Review Screening, Guidelines, Norms and Standards IAIAsa firmly believes that the efficacy of an EIA Regime is reliant on the quality and ethical values of the professionals that work in the field of Environmental Impact Management. The successful implementation of Integrated Environmental Management is dependent on the competence and ethical values of Environmental Assessment Practitioners (EAPs) in the private sector as well as officials responsible for review and decision-making within government. IAIAsa therefore recognised the critical need for a registration authority for Environmental Assessment Practitioners, and has played a key role in supporting the creation of the Environmental Assessment Practitioners Association of South Africa (EAPASA), which was finally launched on 7 April 2011. However to date, the Minister of Water and Environmental Affairs has still not recognised EAPASA as a Registration Authority (RA) in terms of Section 24H of the National Environmental Management Amendment Act (NEMA), Act 107 of 1998. IAIAsa holds the view that until such time that EAPASA is recognised as a RA, South Africa’s EIA Regime, current or amended, cannot achieve efficacy. Continued unregulated poor environmental practice within the sector will simply continue to undermine any intentions to improve the current EIA Regime.   IAIAsa does acknowledge that EAPASA is just the first step in addressing challenges within the current EIA Regime, and that the context within which EIA is practiced requires improvement. 4. Independence IAIAsa recognises that the provision of “independence” in the EIA Regulations is an attempt to ensure the ethical value of EAPs undertaking EIAs. Independence, however, in many cases militates against the integration of Best Practical Environmental Options into project processes from the earliest phases of project implementation. Once a Registration body, such as EAPASA, is constituted, the quality or work and ethical conduct of EAPs will be able to be managed by provisions of this authority. The requirement for Independence should therefore be removed from the EIA requirements as soon as EAPASA is in effect. 5. One EIA Regime for all sectors While mining remains a critical sector of South Africa’s economy it also remains the sector that has the most significant impact on our environment. The mining sector’s environmental protection obligations are limited by the fact that the Department of Mineral Resources (DMR) retains the authority to make decisions on environmental acceptability for mining activities. IAIAsa believes that mining needs to be under the jurisdiction of NEMA. This will establish one process standard that applies without ambiguity to all development projects and ensure that there is an independent 3rd party such as the DEA making the decisions regarding environmental acceptability in the mining sector. As long as the two standards exist in South Africa, the quality of environmental assessment will always be under threat. 6. Independent Review The current EIA regime does make provision for the elective use of various types of review in the EIA process, and this is used to different degrees and with different levels of effectiveness across the sector. IAIAsa proposes that strengthening the role of Independent Review, as long as it is in a manner that does not significantly impact on the time and cost of EIAs, will contribute significantly to effectiveness of the EIA regime. 7. Screening, guidelines norms and standards An increased use of screening and the implementation of Norms and Standards where applicable, could improve the effectiveness of the EIA regime in South Africa. The development and release of Geographic Information System (GIS) Tools for EAPs to facilitate the assessment of need and desirability and accumulative impacts is recommended. Good scientifically based guidelines for assessing impacts in a repeatable manner will also add value.

Recommendations (2) Follow-up Compliance Monitoring and Reporting Strategic tools Consistency Administrative burden 8. Strengthening the EIA follow-up regime The only way to establish the efficacy of EIA's is to follow up after the activity has taken place to see if the predictions of the EIA held true and whether the proposed mitigation achieved the objectives of minimising impacts and enhancing benefits. No mechanism to achieve this currently exists in South Africa. 9. Compliance Monitoring and Reporting One of the most significant challenges facing the South African EIA system is compliance monitoring and enforcement of EMPs and EA conditions of the thousands of approved EIA applications per year. Although not mandatory unless stipulated in the EA, this is done by the appointment of Environmental Control Officers (ECOs) who monitor compliance and report their findings to the relevant authority. Inadequate monitoring and reporting or failure of the responsible authorities to review, interpret and take action when required, undermines the EIA process. (Reference: South African Journal of Environmental Law and Policy (2011) (18) (1) pages 27-48 entitled "Defining the Role of the Independent Environmental Control Officer in Compliance Monitoring and Enforcement")   10. Integrated authorisations The EIA regime currently involves a multitude of environmental authorisations that could potentially be required for one activity. These include Environmental Authorisations in terms of NEMA, Water Use Licences, Waste Management Licences, permits in terms of the National Forest Act, and authorisation and permits in terms of the Heritage Resources Development Act, as well as local authorisations, each from a different authority. This complex institutional environment can result in the duplication and waste of resources and can be an obstacle to effective decision making and management implementation. 11. EIA is not a planning tool EIA is designed to assess the impacts of a proposal at a project level. While the current EIA Regime, when applied with integrity, can be effective to a certain extent in achieving sustainability, sustainable development cannot be guaranteed unless the current planning legislative framework provides the context within which the EIA should be applied. An effective EIA regime is reliant on the use of strategic planning in the form of EMFs, bioregional plans and SEAs. Clear strategic and enforceable plans will need to inform project level EIA processes in order to achieve an effective EIA Regime. 12. Administrative burden The current EIA process is burdened by procedural and administrative requirements, and the focus on sustainability issues is lost. A tick-box approach to EIA provides little assistance to decision-makers in assessing the sustainability of a development proposal. IAIAsa believes that while the requirement for legal certainty is recognised the EIA regime requires an increase in flexibility in the system in order to allow a focus on key projects and issues in order to contribute optimally to the sustainable development of our country.