Slide 1 1 ENVIRONMENTAL IMPACT ASSESSMENT: REVISED REGULATIONS IN TERMS OF THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998 (ACT NO. 107 OF 1998)

Slide 2 2 WYNAND FOURIE Director: Environmental Impact Management Presenter

Slide 3 3 Programme of information sessions DATEPROVINCETOWN/CITY 10 MayEastern CapeEast London 24 MayMpumalangaNelspruit 26 MayFree StateBloemfontein 31 MayWestern CapeCape Town 2 JuneKZNDurban 5 JuneOpen seminar: GautengPretoria 9 JuneGautengJohannesburg 15 JuneNorth WestRustenburg 19 JuneNorthern CapeKimberley 22 JuneLimpopoPolokwane

Slide 4 4 EIA is one of the key tools for enabling sustainable development in South Africa Predict environmental consequences of proposed activities for decision-making, to ensure that resources are soundly managed For many years, considered part of Integrated Environmental Management, but not legislated Legislated in 1997 in terms of Environment Conservation Act, 1989 Background

Slide 5 5 Sections 21, 22 & 26 of ECA enable EIA regulations EIA regulations (GN R 1182, 1183 & 1184) promulgated in September 1997 Various amendments made to EIA regulations, most recent in May 2002 NEMA promulgated in 1998 and to replace ECA Development of new EIA regulations commenced in 2000 Background cont..

Slide 6 6 Total EIAs to date 43,423 EIA processes between September 1997 & March 2006

Slide 7 7 Need for New Regulations Wide interpretation of activities could result in inconsistent application by authorities Too many small scale / insignificant activities made subject to EIA Lengthy and inflexible process, with too many “authority stops” / “decision points” Inadequate requirements for public participation Not supported by strategic planning tools Enforcement measures generally weak

Slide 8 8 The current process does not always ensure that the necessary information for decision-making is submitted The current list of activities requires amendment There are concerns that the current regulations cause unnecessary delays for development Need for New Regulations cont..

Slide 9 9 Improvements AspectECA EIA Regulations NEMA EIA Regulations ActivitiesToo wide a spectrum, unclear, crucial activities omitted Narrowed the spectrum, more specific, include activities previously omitted EIA ProcessOne cumbersome process, resulted in innovative interventions Differentiate between basic and comprehensive assessments

Slide Improvements cont.. AspectECA EIA Regulations NEMA EIA Regulations Decision- making process Allowed for comprehensive process only Allow for rapid decision making Prescribe time frames

Slide AspectECA 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, including I&APs – consequences for non-compliance provided for. Improvements cont..

Slide AspectECA 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 Improvements cont..

Slide Two categories of activities: Basic Assessment (Notice 1) and Environmental Assessment (Notice 2) Public participation can commence before applying (Basic Assessment) Specified requirements for amendment of authorisations Terms of reference for EIA included in Scoping Report, no longer separate plan of study Clarification of independence of EAP What’s new?

Slide Exclusions based on Environmental Management Frameworks Compliance and enforcement strengthened Cooperation agreements between authorities Draft Environmental Management Plans to be included in EIAs Report contents specified in detail Combination of applications Provision for amendment & withdrawal of authorisations What’s new? cont..

Slide Environmental Assessment Practitioners (S ) Compulsory for applicant to appoint EAP Independence & expertise required Must disclose all relevant information that could influence decision or objectivity of a document or report Disqualification: –If authority believes that EAP is not independent –EAP informed and has opportunity to make representations to authority –Authority can refuse to accept report or require independent review

Slide Determining assessment process (Regulations 20-21) EAP to determine relevant process Basic Assessment (Notice 1 Act) or Scoping & EIA (Notice 2 Act) Process chosen based on: –Listing notices 1 & 2 –If application is for 2 or more activities and at least one of these requires Scoping and EIA, then application must be subjected to Scoping & EIA

Slide 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 Basic Assessment (Regulations 22-26)

Slide Basic Assessment cont.. Public participation (R. 22) Basic assessment report (R. 23) Submit application (R. 24) Application form Assessment report Etc. 14 days Acknowledge receipt (R. 14) Check application (R. 14) 30 days Response (R. 25) Submit additional information Specialist studies Alternatives Rejection Scoping & EIA Grant / refuse authorisation (R. 26) 10 days Notify I&APs of decision (R. 10) Notify applicant of decision (R. 10) Competent authorities must strive to meet timeframes (R. 9)

Slide Activities contained in Listing Notice 2 are subject to a comprehensive assessment process Activities that due to nature and/or extent are likely to have significant impacts Associated with high levels of pollution / waste / environmental degradation Impacts cannot easily be predicted Higher risk activities Scoping & EIA (Regulation 27-36)

Slide Scoping & EIA cont.. Submit application (R. 27) Application form Landowner’s consent 14 days Check application (R. 14) 30 days Response (R. 31) Request amendments Reject because: insufficient information failure to consider guidelines Accept Decision (R. 36) 10 days Notify I&APs of decision (R. 10) Notify applicant of decision (R. 10) Acknowledge receipt (R. 14) Submit Scoping Report (R. 30) Scoping (R ) Public participation (incl. organs of state) Scoping Report Public comment on SR (R. 58) EIA (R.32) Prepare EIA report & draft EMP 60 days Response (R. 35) Reject Amend Specialist review Accept 45 days Competent authorities must strive to meet timeframes (R. 9)

Slide EIA Report includes: Activity description Site/area assessment Public participation Description of issues Description and assessment of alternatives (if any) Specialist studies (only if necessary) Specialized processes (only if necessary) Assessment of impacts Assessment of issues Environmental impact statement Draft environmental management plan Contents of EIA Reports (Regulation 32)

Slide Authority must: Make a decision (grant or refuse) Issue single authorization for more than one activity Authorization must include: Details of applicant Activity description Property description Conditions Authorization may require: Commencement only after certain conditions complied with Submission of compliance reports Submission of environmental audit report Any other condition Authorisations (Regulations 37-38)

Slide Amendment of authorisations (Regulation 39-46) Authority may amend an authorisation, on application: - by holder or - from authority On application by holder (Regulation 40-43): –Official form –Acknowledge receipt within 14 days –Consider whether likely to affect the environment or rights of other parties –Authority must promptly decide on non-substantive amendments: timeframe not specified

Slide Amendment of authorisations cont.. Application by authorisation holder – If substantive amendments: Public participation Investigation & assessment Public comment on reports Submit reports Amendment on initiative of authority to: –prevent deterioration or further deterioration of environment –achieve prescribed environmental standards –accommodate demands due to socio- economic circumstances & public interest

Slide Amendment of authorisations cont.. Amendment on initiative of authority: – Notify holder – Opportunity for representations – Public participation, if necessary On reaching a decision, the authority must (Regulation 46): – Notify the holder – Provide reasons – Inform of possibility of appeal – Issue amended authorisation

Slide Withdrawal of authorisations (Regulations 47-50) Withdrawal only under certain circumstances (Regulation 47): –Condition contravened –Fraud –Misrepresentation / non-disclosure –Activity discontinued Authority must (Regulation 48): –Notify holder –Opportunity for representations –Public participation, if necessary

Slide Withdrawal of authorisations cont.. Suspension allowed if (Regulation 49): –Contravention of condition is causing harm to the environment –Suspension necessary to prevent harm or further harm –Suspension possible before or after opportunity for representations by holder Decision (Regulation 50): –Notify holder in writing –Inform of possibility of appeal

Slide Exemptions (S ) Different from exemptions i.t.o. ECA Exemption can be considered from any provision of regulations Exemption from public participation only possible if rights or interests of other parties are not adversely affected

Slide Exemptions cont.. 14 days Submit application (R 52) Acknowledgement of receipt (R. 52(2)) Consideration (R. 53) May request additional information Advise application of any factors prejudicing the application No adverse effects on rights or interests of other parties Adverse effects on rights or interests of other parties 10 days Notify applicant of decision (R. 54) Written exemption notice Notify I&APs (R. 54(10(d))) Appeal Public participation (R 56) Register of I&APs Submit comments 10 days Competent authorities must strive to meet timeframes (R. 9)

Slide Public participation (S ) Public participation process (Regulation 56): –Site notice boards –Written notice to: Adjacent owners and occupiers Owners and occupiers within 100m of boundary of site Ward councillor Municipality Organs of state having jurisdiction –Adverts in one local newspaper or official gazette –Provincial or national newspaper (if activity may have impact beyond borders of municipality) –Requirements for content & size of notices –Exceptions for linear & ocean-based activities: to be agreed with authority

Slide Public participation cont.. Register of I&APs (Regulation 57): –Applicant or EAP must maintain register containing names & addresses of: Persons who submitted comments Persons who, after the PP process, submitted written requests for their names to be placed on the register All organs of state having jurisdiction –Register accessible to all who submit written request

Slide Public participation cont.. Registered I&APs entitled to comment (Regulation 58): –Must comply with timeframes –Must provide copy of comments sent to authority to EAP as well –Must declare business, personal, financial or other interests –I&APs must be given opportunity to comment on all reports before submission to authority (BA reports, scoping reports, EIRs & EMPs) I&AP comments to be recorded in reports (Regulation 59): –EAP must record I&AP comments in reports –Comments on final reports to be submitted to authority can be an attachment

Slide Appeals (R ) 10 days Notification of decision <= 30 days Notice of intention to appeal (R. 62) Notice on official form If applicant appeals, inform all other I&APs & organs of state If appellant is someone other than applicant, inform applicant Appeal must be accompanied by: (R. 63) Grounds for appeal Supporting documentation Statement by appellant that R. 63 has been complied with Appeal fee (not yet prescribed) Responding statements (R. 65) 30 days Submit appeal (R. 64) Answering statement to new information introduced (R. 65 (2)(b)) – when applicable 30 days Processing of appeal (R. 66) Issue direction i.t.o. R. 43(7) of NEMA Appoint appeal panel i.t.o. R. 43(5) of NEMA 10 days Appeal panel (R. 67) - optional Decision (R. 68) Notify appellant & each respondent Acknowledge receipt (R. 66(1))

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

Slide EMFs cont.. EMF consist of various “environmental control zones”, environmental management plan and environmental management policy Certain pre-determined activities can be excluded from EIA requirements if aligned with control zones, EMP and EM Policy EMF also useful as environmental input into SDF’s, precinct plans, etc.

Slide Guidelines – National and provincial – Drafts in gazette for comment – Not binding, but must be taken into account by EAPS & authorities Guidelines (Regulations 73-76)

Slide Anything done i.t.o. previous regs remains valid Authorisations issued i.t.o. previous regs regarded to be issued under new regs Applications and appeals pending under ECA to be completed i.t.o. ECA Existing guidelines that have been adopted before new regulations take effect regarded to be guidelines in terms new regulations Transitional arrangements (Chapter 9)

Slide Reckoning of days (S. 1(2)) –Reckoned from start of day following a particular day to end of last day of the period –If last day of the period falls on a Saturday, Sunday or public holiday, the period must be extended to the end of the next day which is not a Saturday, Sunday or public holiday –Submitted today, starts running tomorrow until day 30. If day 30 is Sa, Su, PH = next work day General provisions

Slide Lapsing of application or appeal (Regulation 77) –Appeal or application lapses if applicant or appellant fails to comply with a requirement of these regulations within 6 months of submitting application or appeal Resubmission of similar applications (Regulation 78) –Applicant may not resubmit application substantially similar to previous application that has been refused, unless: 3 years has lapsed since refusal of previous application New application contains new information General provisions cont..

Slide Compliance monitoring (Regulation 79): –Authority may request holder of authorisation or exemption to explain alleged contravention or non- compliance –Authority may request environmental audit report –Authority may request audit report to be prepared by independent person –Holder of authorisation or exemption is liable for all costs –Authority may appoint auditor and recover costs if holder of authorisation or exemption fails to do so General provisions cont..

Slide Assistance to people with special needs (Regulation 80): –Authorities, Minister and MECs must give reasonable assistance to person who is unable to comply with a requirement of the regulations due to: Lack of skills to read or write Disability Any other disadvantage General provisions cont..

Slide Offences (Regulation 81): –Supplying false / misleading information –Failure to disclose information –Failure to submit audit report –Failure to comply with conditions of exemption –Continuation with activity if authority has withdrawn authorisation Penalties in terms of NEMA section 24F General provisions cont..

Slide Implementation documents – DEAT has drafted four guidelines: Process flow (administrative) Assessment of impacts and alternatives Environmental Management Frameworks Public participation – EMF and PP published for comment – Expected completion date: July 2006 Application form and BA report: –To be made available in print and on DEAT website Way forward

Slide Implementation documents Various templates and guidelines have been drafted Official EIA gazette is planned –All EIA related publications –Discussions with GPW to be finalized Way forward

Slide Implementation documents (cont) Registration of EAPs –Not yet compulsory –Work in progress EIA regulations companion –Booklet format –EIA regulations in laymen’s terms Way forward

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