PRESENTATION ON REVISED NATIONAL ENVIRONMENTAL MANAGEMENT ACT: Environmental Impact Assessment Regulations By the Department of Environmental Affairs and Tourism April 2006

Environmental Quality Environmental quality is improved and protected via proactive and reactive measures: Proactive Prevention of degradation and conservation Tools – Strategic Planning, Environmental Impact Assessment. Reactive Rehabilitation of degraded areas, Reduction of emissions and effluent, clean-up Tools – NEMA sector Acts, Water legislation, Compliance and Enforcement.

Environmental Impact Assessment Systematic process to identify potential positive and negative impacts on the environment (biophysical, socio-economic, cultural) associated with proposed activity. Examine alternatives / management measures to minimise negative and optimise positive consequences. Prevent substantial detrimental to the environment

Environmental Impact Assessment Advantages of EIA To authorities: Informed decision making; Improvement / protection of environmental quality; Management to sustainable utilisation of resources; Understanding demands on bulk services, waste management services, urban forms, etc.

Environmental Impact Assessment Advantages of EIA (cont) To interested and affected parties An opportunity to be heard; Protecting environmental rights; Utilisation of local and indigenous knowledge; Increased knowledge and environmental awareness

Environmental Impact Assessment Advantages of EIA (cont) To developers of identified activities: Proactively asking the right questions Adequacy of natural resources Risks associated with environmental factors (geologic stability, hydrology regimes, fire, etc) Pollution potential and prevention thereof; Energy and water saving and associated financial savings Appropriateness of activity in terms of strategic planning for the area

Environmental Impact Assessment EIA in its design is aimed at informing project planning and design – unfortunately, often used to justify what is already planned instead.

South Africa’s EIA System

EIA in South Africa: September 1997 – April 2006 EIA became law in 1997, before then, voluntary use of EIA. Concurrent function between national and provincial government. Survey conducted amongst all provinces during March 2006 to establish status quo of SA EIA System

EIA in South Africa: Number of applications received and reviewed The provinces received a total of 43 423 applications for EIA authorisation between September 1997 and March 2006. Of these applications 35 536 have been finalised and 3 097 withdrawn. This means that at least 4 790 applications are still current These current applications fall into three categories: Dormant applications – where authorities await action from the applicant Applications awaiting authority action – still within reasonable time frames Backlog – applications awaiting action and being delayed by authorities

EIA in South Africa: Processing times Whilst approximately 50% of applications are finalised within 6 months from the application date and an additional 33% within a year, it is of concern that approximately 9% is only finalised within a period of 2 years or more Although often related to complexity, controversy and pollution potential, delay in review and decision making processes also in cases due to severe capacity constraints within provincial authorities

Review of South Africa’s EIA System

Review of the South Africa EIA system: The need for a review Lessons learnt through implementation of the 1997 EIA Regulations and evolution of Environmental Legislation since 1997 necessitated the review of the EIA System.

Review of the South Africa EIA system: The need for a review Inadequacies of 1997 Regulations include. Wide interpretation of activities resulting in inconsistent application by authorities To many small scale / insignificant activities made subject to EIA Lengthy and inflexible process, with to many “authority stops” / “decision points” Inadequate provisions for public consultation Not supported by strategic planning tools Enforcement measures generally weak The Review commenced in 2000 and resulted in the promulgation of new Regulations in terms of the NEMA during April 2006

The NEMA EIA Regulations

What has been retained but improved? …

Aspect ECA EIA Regulations NEMA EIA Regulations Activities To wide a spectrum, unclear, crucial activities omitted Narrowed the spectrum, more specific, include activities previously omitted EIA Process One cumbersome process, resulted in innovative interventions Differentiate between basic and thorough assessments

Aspect ECA EIA Regulations NEMA EIA Regulations Decision-making process Allowed for comprehensive process only Allow for upfront decision making (e.g. fatal flaws, emergency circumstances, clearly no impact situations) Prescribe time frames

Aspect ECA EIA Regulations NEMA EIA Regulations Roles & Responsibilities Prescribed for authorities and applicant only – no real consequences for not abiding by the rules Prescribed for ALL role players – consequences for non-compliance provided for.

Aspect ECA EIA Regulations NEMA EIA Regulations Public participation Included but poorly defined Well defined and minimum requirements prescribed Appeal process Appeal decision-making process not prescribed Process well defined and aligned with PAJA

What is new …

New additions Exclusions based on Policies and guidelines Environmental Management Frameworks Compliance and enforcement strengthened Regulation 6 allowing for cooperation agreements between authorities Site Environmental Management Plans structured Class applications

Environmental Management Frameworks

Environmental Management Framework Regulations prescribe process for compiling EMF and set minimum requirements for content Strategic tool where a geographical area is assessed: Status quo study in terms of inter alia biophysical environment, built environment and “planned” environment Desired state of environment defined Road map established to reach and maintain desired SOE

EMF consist of “environmental control zones”; environmental management plan and environmental management policy Certain pre-determined activities when aligned with control zones, EMP and EM Policy are then excluded from EIA requirements EMF also useful as environmental input into SDF’s, precinct plans, etc.

Sector guidelines

Sector guidelines Regulations prescribe process for compiling and publication of Sector guidelines Sector guidelines are given teeth – applicants have to take it into consideration Sector guidelines can also be used for exclusions

Class applications

Class applications One application and process for many different activities occurring in one geographical area OR One application and process for the same activity type proposed to take place in different locations

The processes and time frames associated with it

Basic Assessment Process

Basic Assessment Process Activities contained in Listing Notice 1 are subject to a basic assessment process Smaller scale activities Predicted impacts are generally known and can be easily managed Will be further limited through exclusions

Step Action Who Time Frame 1 Compile Basic Assessment Report and application form and submit to relevant authority Applicant / Consultant Not prescribed 2 Review application for completeness and accept or reject (if rejected – applicant can resubmit) Authority 14 days 3(a) Consider application and report and direct applicant to Scoping or request additional information (or 3(b)) 30 days from acceptance 3(aa) If applicable, amend reports / provide additional information 3(b) Review application and report and issue decision. Notify applicant of conditions and appeal provisions 30 days from acceptance or receipt of additional information (3(a)) 4 Notify interested and affected parties of decision and appeal provisions 5 days of decision 5 If applicable, consider and respond to appeals received Minister / MEC Up to 90 days

Scoping and EIA process (thorough process)

Scoping and EIA (Thorough Assessment Process) Activities contained in Listing Notice 2 are subject to a thorough assessment process Activities that due to nature and/or extent is likely to have significant impacts Associated with high levels of pollution / waste / environmental degradation Impacts cannot easily be predicted Higher risk activities

Step Action Who Time Frame 1 Submit application form and relevant prescribed documents to the authority Applicant / Consultant Not prescribed 2 After submission of Application form, conduct basic public participation and compile Scoping Report & Plan of study for EIA Consultant 3 Submit Scoping Report and plan of study for EIA to relevant authority 4(a) Consider Scoping Report and notify applicant of required amendments (or 4(b) Authority 30 days from receipt 4(b) Consider and accept Scoping Report and PoS for EIA (or revised scoping report/ POS if 4(a) is relevant 30 days from receipt of accepted reports 5 Conduct EIA in line with approved POS and compile EIA Report and draft EMP. Submit reports to authority for consideration

Step Action Who Time Frame 6 Consideration of reports followed and either accept it (see 7(a)) or refer parts of it for specialist review (see 7(b) and (c)) – notify applicant of outcome Authority 60 days from receipt 7(a) Issue decision with conditions and notification of appeal provisions or 7(b) 45 days from acceptance notice 7(b) Specialists conduct reviews of reports and submit review reports to authority Specialist Not specified 7(c) If 7(b) applies, issue decision with conditions and notification of appeal provisions Within 45 days of receipt of specialist reviews 8 Notify interested and affected parties of decision and appeal provisions Applicant / Consultant Within 5 days of decision 9 If applicable, consider and respond to appeals received Minister / MEC Up to 90 days

Implementation of the NEMA EIA Regulations

Mining related activities will come into effect on 1 April 2007 due to NEMA EIA Regulations will come into effect for all activities except for those related to mining permits, licenses and permission will come into effect on 1 July 2006 Mining related activities will come into effect on 1 April 2007 due to Required law reform Development of cooperation structures and systems System reform Transitional arrangements provided for EIA processes currently underway in terms of 1997 EIA Regulations

In conclusion…

After lengthy consultative process, NEMA EIA Regulations finally ready to come into force and start making a difference. All the benefits of the new Regulations will not be immediately evident. We must be more realistic about appropriateness of IEM Tools and urgently develop other tools to supplement, complement and in some cases, replace EIA. Where more strategic approaches can be used, this should be explored and good quality base information is essential for this.

Thank you