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ENVIRONMENTAL IMPACT ASSESSMENT: REVISED REGULATIONS IN TERMS OF

ENVIRONMENTAL IMPACT ASSESSMENT: REVISED REGULATIONS IN TERMS OF THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998 (ACT NO. 107 OF 1998). Presenter. WYNAND FOURIE Director: Environmental Impact Management. Programme of information sessions. Background.

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ENVIRONMENTAL IMPACT ASSESSMENT: REVISED REGULATIONS IN TERMS OF

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

  2. Presenter WYNAND FOURIE Director: Environmental Impact Management

  3. Programme of information sessions

  4. Background 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

  5. Background cont.. 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

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

  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

  8. Need for New Regulations cont.. • 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

  9. Improvements

  10. Improvements cont..

  11. Improvements cont..

  12. Improvements cont..

  13. What’s new? 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

  14. What’s new? cont.. 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

  15. 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 Environmental Assessment Practitioners (S. 17-19)

  16. 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 Determining assessment process (Regulations 20-21)

  17. Basic Assessment (Regulations 22-26) • 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

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

  19. Scoping & EIA (Regulation 27-36) 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

  20. Scoping & EIA cont.. • Response (R. 31) • Request amendments • Reject because: • insufficient information • failure to consider guidelines • Accept • Submit application (R. 27) • Application form • Landowner’s consent Check application (R. 14) 14 days • EIA (R.32) • Prepare EIA report & draft EMP Acknowledge receipt (R. 14) 60 days • Scoping (R. 28-29) • Public participation (incl. organs of state) • Scoping Report • Public comment on SR (R. 58) • Response (R. 35) • Reject • Amend • Specialist review • Accept 45 days 45 days Submit Scoping Report (R. 30) Decision (R. 36) 10 days 30 days Notify applicant of decision (R. 10) Competent authorities must strive to meet timeframes (R. 9) Notify I&APs of decision (R. 10)

  21. Contents of EIA Reports (Regulation 32) • 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

  22. Authorisations (Regulations 37-38) • 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

  23. 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

  24. 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

  25. 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 (Regulation46): Notify the holder Provide reasons Inform of possibility of appeal Issue amended authorisation

  26. 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

  27. 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

  28. Exemptions (S. 51-55) 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

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

  30. Public participation (S. 56-59) 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

  31. 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

  32. 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

  33. Appeals (R. 60-68) Notification of decision 10 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) <= 30 days Submit appeal (R. 64) • 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 30 days Responding statements (R. 65) 30 days Appeal panel (R. 67) - optional Answering statement to new information introduced (R. 65 (2)(b)) – when applicable 10 days • Decision (R. 68) • Notify appellant & each respondent Acknowledge receipt (R. 66(1))

  34. 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 Environmental Management Frameworks (R. 69-72)

  35. 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.

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

  37. Transitional arrangements (Chapter 9) 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

  38. General provisions 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

  39. General provisions cont.. 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

  40. General provisions cont.. 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

  41. General provisions cont.. 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

  42. General provisions cont.. 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

  43. Way forward 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

  44. 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

  45. 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

  46. www.deat.gov.za Website

  47. Thank you

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