Proposed amendments to the National Environmental Management Act, 1998 (NEMA)

1. Proposed amendments to the National Environmental Management Act, 1998 (NEMA) Presentation by Joanne Yawitch DDG EQP

2. Acronyms used in presentation • DEAT – Department of Environmental Affairs and Tourism • DME – Department of Minerals and Energy • EAP – Environmental Assessment Practitioner • EIA – Environmental Impact Assessment • EMF – Environmental Management Framework • NEMA – National Environmental Management Act • SEMA – Specific Environmental Management Act • PAJA – Promotion of Administrative Justice Act

3. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Introduction • The introduction of NEMA EIA regulations in 2006 was linked to an approach to rationalise EIA by : • Streamlining processes • Introducing strategic tools • Introducing integration of processes • NEMA as enabling law needs to be amended to fully include this approach • Enabling provisions of chapter 5 of NEMA to move away from focus on EIA as only tool that ensures proper environmental management of development activities required to further improve efficiency and effectiveness of EIM system • 24 July 2007 - Cabinet approved the introduction of the amendment Bill into parliament

4. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Introduction (2) • In order to improve efficiency and effectiveness of environmental impact management system, main areas targeted in amendment are: • Increased clarity through amendments of and additions to definitions of terminology (section 1 of NEMA) • Provision for tools other than EIA • Improved provisions for cooperative governance • New provisions for integration and alignment of regulatory (authorisation) processes

5. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Introduction (3) • Strengthening provisions to use spatial tools in environmental impact management • New provisions for management, including exclusions, based on norms or standards. And provisions on the development of new or adoption of existing norms or standard • Exemption provisions and “checks and balances” in this regard • Alignment with PAJA • As NEMA is enabling for the EIA Regulations, these amendments are necessary before similar provisions in regulations can come into force.

6. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 1 of Principal Act • Section 1 of the Principal Act contain the definition of terminology used in the Act and therefore also define the scope of the Act • Amendments to Section 1 are necessary for the following reasons: • Clarification of terminology used (“commence”) • Widening scope of the Act for tools other than EIA to manage environmental impacts (“activity”; “environmental authorisation”; “norms or standards” and “spatial development tool”) • Providing for alignment and integration of licensing processes and improved inter-departmental coordination (“competent authority”; “integrated environmental authorisation”) • Link to Promotion of Administrative Justice Act in order to prevent court reviews prior to exhausting appeal process

7. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 24 of Principal Act • Section 23 and 24 (Chapter 5) of the Principal Act contain the objectives and enabling provisions for regulatory processes in terms of Integrated Environmental Authorisations – in other words investigation processes and the permitting / licensing / authorisations that this investigation result in • Amendments to Section 24 are necessary for the following reasons (detailed for sub-sections provided in following slides): • Improved efficiency and effectiveness of the system • Allow for tools other than EIA • Allow for improved cooperation and coordination between government departments • Allow for integration and alignment of permitting processes

8. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 24.2 of Principal Act • Section 24.2 of the Principal Act enable the Minister to identify activities and geographical areas where investigation and authorisation requirements will apply. • Amendments to Section 24.2 are necessary for the following reasons: • Allow for exclusions from the need to undergo investigation and obtain authorisation based on: • Wide range of spatial tools • Norms or standards • Allow for the management of activities through norms or standards

9. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 24.4 of Principal Act • Section 24.4 of the Principal Act prescribes the minimum requirements for investigation of environmental impacts and consequences associated with listed activities. • Amendments to Section 24.4 are necessary for the following reasons: • The requirements restrict the use of tools other than EIA • By making all the requirements compulsory, process is very rigid and flexibility and variation to meet circumstances not possible • It is not possible to exempt an applicant from any aspect of a compulsory minimum requirement • Amendment accordingly split minimum requirements to “musts” and “may’s” • Exemptions are limited to “may” provisions

10. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 24.5 of Principal Act • Section 24.5 of the Principal Act allow the Minister or MEC to make regulations regarding procedures and content of related to administration of environmental authorisations and identification of sensitive areas • Amendments to Section 24.5 are necessary for the following reasons: • The current provision only provides for EIA as tool for issuing environmental authorisations • Amendment accordingly provide for regulations on other tools, and prescribing of procedures to adopt norms or standards

11. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 24.8 of Principal Act • Section 24.8 of the Principal Act state that authorisation in terms of NEMA is always still required even if the activity is authorised in terms of other legislation. • Amendments to Section 24.8 are necessary for the following reasons: • To allow for authorisations issued in terms of other legislation to be deemed as an environmental authorisation under certain circumstances • These circumstances are provided for in new provisions (24K & 24L)

12. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 24C of Principal Act • Section 24C of the Principal Act prescribe when the Minister must be the competent authority in terms of Environmental Authorisations. • The amendments to Section 24C are necessary for the following reasons: • Confusion exists in terms of whether the Minister or MEC would be the competent authority in relation to activities taking place in: • The sea • Buffer zones of protected areas • Buffer and Transitional Zones of heritage sites

13. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 24C of Principal Act (continue) • Clarity was also required in terms of activities affecting more than one province • Integration and alignment of permitting processes are hindered where the Minister is the competent authority for licensing in terms of a specific environmental management act (such as the Air Quality Act) and the MEC the competent authority for environmental authorisations for the same activity • The amendments stipulate in detail when the Minister will be the competent authority and clarify cross boundary activities, • A new provision included in S24C stipulates that where the Minister is the competent authority for issuing a licence or permit in terms of a SEMA, he/she will also be the competent authority to issue an environmental authorisation

14. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 24F of Principal Act • Section 24F of the Principal Act deals with offences – it stipulates when action related to integrated environmental management would constitute an offence • Amendments to Section 24F are necessary for the following reasons: • To provide for non-compliance with prescribed norms or standards to be an offence • To provide for non-compliance with conditions of exemptions issued to be an offence

15. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 24Gof Principal Act • Section 24G of the Principal Act provides for the rectification of unlawful activities • Amendments to Section 24G are necessary for the following reasons: • The process prescribed in 24G stipulates that the Minister / MEC may only consider an application after a fine has been paid. This is not logical as the consideration of the application and information submitted in this regard, inform what fine should be issued • Requirements for contents of reports to be submitted to the Minister was very rigid. • The section has been amended to: • change the chronology of events to a more logical order • Make contents of reports more flexible to suit specific circumstances

16. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 24J of Principal Act • Section 24J is a new provision enabling the development and use of guidelines in the administration of environmental authorisation applications • The insertion of Section 24J is necessary for the following reasons: • It provides enabling provision for activity related and procedural guidelines to inform applications and decision-makers - these provisions in the 2006 EIA Regulations are currently not anchored in the Act.

17. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 24K of Principal Act • Section 24K is a new provision enabling cooperation and coordination between organs of state in the implementation and administration of environmental authorisation applications • The insertion of Section 24K is necessary for the following reasons: • It provides enabling provision for agreements between departments on implementation of EIAs and other tools • It enables the Minister / MEC to in part or in full rely on other regulatory processes in reaching decisions on environmental authorisation applications (this prevent duplication in regulatory requirements) – examples would be: tolling of roads (rely on “intent to toll” process), radiation and radiological safety (rely on National Nuclear Regulator’s Nuclear Safety Licensing process); etc.

18. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 24L of Principal Act • Section 24L is a new provision enabling alignment and integration of different types of environmental authorisations and authorisations issued in terms of other legislation for activities that also require environmental authorisation • The insertion of Section 24K is necessary for the following reasons: • It provides enabling provision integrated environmental authorisations (that is, one process is followed that result in one authorisation that include conditions etc of other environmental legislation)

19. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 24L of Principal Act (continue) • It provides enabling provisions for sequential authorisations (that is where one authorisation informs another – in other words one process is followed but more than one authorisation is issued but in a specific sequence – example: Environmental Authorisation informs the Emission Licence issued in terms of NEMAQA • It provides enabling provisions so that one process can lead to multiple authorisations in terms of different legislation • It provides for an authorisation issued in terms of other legislation to be deemed an environmental authorisation • It provides for an environmental authorisation to be deemed as an authorisation issued in terms of other legislation

20. Proposed amendments to the National Environmental Management Act, 1998 (NEMA): Section 24M of the Principal Act • Section 24M is a new provision enabling exemptions from provisions that are discretionary (minimum requirements discussed in 24(4)). • The insertion of Section 24M is necessary for the following reasons: • Section 24(5) of principal Act state that Minister may make regulations regarding process to follow for exemptions but does not enable the Minister / MEC to grant exemptions from provisions contained in the Act. The exemption provisions in the EIA Regulations are thus limited to requirements of the regulations not stemming from minimum requirements in the Act. • The new provision provides enabling provision for the competent authority to grant exemptions from meeting some requirements of the Act, whilst providing checks and balances to ensure that this provision is not abused • It does not allow for “blanket” exemptions – just exemptions from some procedural or content requirements

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