REVIEW AND REVISION OF THE
ENVIRONMENTAL IMPACT ASSESSMENT SYSTEM OF
1
SUMMARY
1.1
Environmental Impact Assessment (EIA) as tool to
regulate environmental impacts associated with activities that could
potentially harm the environment was first introduce into South African
legislation by means of the provision for such EIA Regulations in the
Environment Conservation Act of 1989. The EIA Regulations developed in terms of
this Act followed in 1997.
1.2
Although acknowledging the important role that these
1997 Regulations played in introducing Environmental Impact Assessment as a
valuable tool towards sustainable development,
inadequacies identified during the implementation of these regulations
and the post 1994 evolution in Environmental legislation rendered these
Regulations outdated and inadequate.
1.3
The National Environmental Management Act (NEMA) of
1998 (as amended) made provision for the development of Regulations to replace
the 1997 EIA Regulations. During 2000 the Department of Environmental Affairs
and Tourism (DEAT) and relevant provincial environmental authorities commenced
with a process to review the Environmental Impact Assessment system of
2
DISCUSSION
2.1
Since the promulgation of the EIA Regulations
in 1997 in the order of 44,000 applications have been received by environmental
authorities nationally. Figures received from environmental authorities related
to the administration of the EIA system in South Africa revealed that up to 50%
of all EIA applications received by authorities are finalised within 6 months
of first receiving an application, a further 33% are finalised within 1 year.
It is unfortunately also true that 7% of applications took more than 2 years to
finalise. The statistics further revealed inter
alia the following:
o
80%
of all applications were finalised after an exemption or mini-EIA process have
been followed whilst only 20% is made subject to a comprehensive EIA process;
o
Less
than 3% of applications resulted in the application been refused by the
environmental authority;
o
In
the order of 7% of all decisions were appealed by either the applicant or other
interested and affected parties;
o
Up to
80% of reports submitted by
applicants or the Environmental Assessment Practitioners acting on their behalf
were considered by the environmental authority to be substandard or inadequate;
2.2
The
processing of the above mentioned applications and feedback received from
interested and affected parties during the extensive consultation process
followed in the review of the 1997 EIA Regulations and drafting of the NEMA EIA
Regualtions revealed a number of
inadequacies in the 1997 Regulations and the general EIA system of South
Africa. These inadequacies include the following:
o
Lack
of legislative clarity result in inconsistent interpretation and application of
the Regulations amongst different authorities;
o
The
wide definition of activities included in the schedules to the Regulations
resulted in to many unnecessary EIA processes. This in turn overloads administrative
systems creating bottlenecks. It also resulted in delays in development that is
unlikely to have substantial negative impacts on the environment and should not
have been subject to an assessment process in the first place;
o
Inflexibility
in procedural requirements resulted in cumbersome processes that did not
necessarily add any value;
o
Public
participation requirements were inadequately defined resulting in the abusing
of the system by both applicants (steamrolling communities) and interested
affected parties (stalling development due to “NIMBY” issues);
o
The
absence of a mechanism to regulate Environmental Assessment Practitioners
resulted in poor / inadequate information often produced at exuberant costs;
and
o
Lack
of adequate capacity and resources in some environmental authorities resulting
in delays, questionable decisions and vulnerability to legal challenges. The
table below provide an indication of the varying capacity and financial
resources of the provincial environmental authorities responsible for EIA.
2.3
The
EIA system brought into being through the 1997 EIA Regulations however also
have many positive consequences. It has for example resulted in more
sustainable human settlement. Through the EIA process many low cost housing
developments were improved as environmental hazards such as the presence of
wetlands, high levels of pollution, unsafe geotechnical conditions,
floodplains, etc. have been pro-actively identified and accommodated in design
and lay-out alternatives. The EIA process also resulted in an increased
awareness of environmental rights and obligations; the impact of activities on
the environment and the collective responsibility to ensure environmental
sustainability. Through the EIA process the voice of affected communities is
heard and taken into consideration in developmental processes, project design
and decision-making. It is also due to the EIA process undertaken for both
industrial developments and social infrastructure, that adverse impacts on
human health and well-being due to environmental degradation or unsafe
environmental conditions have been proactively identified and prevented or
managed. Not only does EIA assist governments in making informed decisions on
the acceptability of environmental impacts associated with development
activities, but it also assist the developers or undertakers of these
activities to ask the “right questions” up front. In following the systematic
and pro-active EIA process, developers are able to enhance their activities,
foresee and prevent adverse impacts on the environment, and often save money.
2.4
In
reviewing the EIA system the DEAT concluded that a revised EIA system is
required. Such a system would need to address the inadequacies of the system
established as result of the 1997 EIA Regulations whilst building on the
positive achievements and consequences of EIA. The new EIA system envisaged for
o
Development,
promulgation and implementation of EIA Regulations that are appropriate to the
context of
o
Building
and maintaining adequate capacity within Environmental Authorities to implement
the revised Regulations efficiently and effectively;
o
Establishing
a regulated Environmental Assessment Practitioners industry; and
o
Development
and implementation of a framework of tools and systems to supplement and
compliment an EIA system.
2.5
Development,
promulgation and implementation of the NEMA EIA Regulations:
2.5.1
After
extensive consultation and thorough national and international research, the
NEMA EIA Regulations have been developed. These regulations are designed to
result in a quicker, simpler and cheaper EIA process without compromising
authorities abilities to make informed decisions and also without compromising
environmental quality. The NEMA EIA Regulations were promulgated on 21 April
2006 and came into effect on 3 July 2006. Attached as Annexure A is a table
summarising the contents of the NEMA EIA Regulations (new Regulations) and
comparing it with the 1997 EIA Regulations.
2.5.2
A
year’s implementation of the 2006 Regulations revealed areas that can still be
improved further. This includes areas in the enabling legislation (NEMA) as
well as amendments to the 2006 Regulations.
2.6
Building
and maintaining adequate capacity within Environmental Authorities to implement
the revised Regulations efficiently and effectively:
2.6.1
The
DEAT and provincial environmental authorities have embarked on various
initiatives and interventions aimed at creating and maintaining capacity and
systems to ensure efficient and effective implementation and administration.
These initiatives vary in nature and extent, are aimed at the short, medium and
long term and include:
o
Provincial
implementation and supplementation projects;
o
Financial
and technical assistance in dealing with EIA backlogs;
o
Development
of decision-support tools such as Environmental Management Frameworks, sector
policies and guidelines; and
o
Identification
and mapping of sensitive areas.
2.7
Establishing
a regulated Environmental Assessment Practitioners industry
2.7.1
In response
to an ultimatum by Minister Van Schalkwyk during April 2005, the Environmental
Assessment Practitioners’ (EAPs) industry organised itself in order to form an
association that will apply to the Minister to be appointed as Registration
Authority in terms of the enabling provisions in the NEMA. It is the intent
that through self-regulated registration of EAPs and the consequent code of
conduct, incentives and penalties, quality of Environmental reports and
accountability of EAPs will be improved. It is also the DEAT’s intent to as
soon as a Registration Authority has been established amend the NEMA EIA
Regulations to make the use of a Registered EAP compulsory.
2.7.2
The
process of establishing a representative umbrella body of EAPs, designing a
registration system and agreeing on a code of conduct is estimated to be
completed when the industry submit their application to the Minister in October
2008
2.8
Development
and implementation of a framework of tools and systems to supplement and
compliment an EIA system
2.8.1
One
of the major shortcomings of the previous EIA regime is the application of EIA
in isolation. There is an acknowledged need to compliment EIA with other tools
and systems from the Integrated Environmental Management (IEM) toolkit. The
DEAT has to date develop EIM Information booklets covering 21 topics ranging
from Ecological Risk Assessments to issues such as public participation and the
assessment of alternatives. These booklets are widely used by tertiary
institutions, EAPs and environmental authorities and can be obtained in paper
and electronic format from the DEAT.
2.8.2
The
DEAT has also developed guidelines on the use of Environmental Cooperation
Agreements, the use of Strategic Environmental Assessments and is currently in
the process to finalise the following guidelines:
·
Environmental
Management Frameworks;
·
Public
participation in the EIA process
·
A
companion to the 2006 EIA Regulations
·
Sector
specific guidelines (large scale property development, electricity generation
and supply; social infrastructure; agriculture; port development &
transport)
2.8.3
These
systems and tools and future additions and revisions form a framework of
alternative measures to be utilised to compliment, supplement and in some
instances even replace EIA.
2.9
Although
some benefits of the new EIA Regulations are likely to become evident towards
the middle of the next financial year already, other interventions will take
longer to bare fruit.
2.10
DEAT’s five point plan
towards more efficient and effective EIA administration in South Africa
2.10.1
The interventions and
programmes of implementation mentioned above have been incorporated in a
comprehensive plan aimed at ensuring efficiency and effectiveness of EIA
administration in
2.10.2
This five point plan towards
more efficient and effective EIA administration focuses on the following areas:
Ø
Expedite the processing of
pending applications submitted in terms of the 1997 EIA Regulations;
Ø
Development and
implementation of strategic spatial systems to compliment EIA in environmental
impact management;
Ø
Building and maintenance of
human resource capacity in EIA authorities;
Ø
Development and
implementation of decision-support systems and tools; and
Ø
Development and
implementation of province specific and generic capacity and support strategies
and plans.
2.10.3
More details on the five
point plan is included in a document titled “ DEAT’s five point plan towards
more efficient and effective EIA administration in
2.11
Progress made to date with
the implementation of the 2006 EIA system and the above mentioned 5 point plan
2.11.1
Phasing out the 1997 EIA
Regime and implementation of the 2006 Regulations
·
DEAT
and provincial authorities report quarterly to the Environment MINMEC on
implementation of the new Regulations. The latest available report is for the
quarter ending 31 December 2007.
·
The above mentioned report indicates excellent
progress with the phasing out of the 1997 EIA Regulations (79% reduction in
pending applications). The report also paints a positive picture with regard to
the implementation of the new (2006) EIA Regulations (95% of all applications
processed within prescribed time frames).
·
The report is attached as
Annexure C for ease of reference.
2.11.2
Strategic Spatial system to
supplement & compliment EIA
·
DEAT is providing technical
and financial support for the development of 6 Environmental Management
Frameworks in provinces.
·
DEAT is also together with
DWAF, Mpumalnga and
·
DEAT is developing an EMF for
the
·
In addition to the above
mentioned EMF’s that DEAT is involved with, provinces have embarked on 13 EMFs
for identified municipal areas
·
·
DEAT has embarked on a
similar exercise to identify and map areas considered of national importance.
·
These EMFs and Sensitive
areas provide opportunities for exclusions form the need to undergo EIA
processes in certain none sensitive areas, and will guide decision-making
process. It provide certainty to developers and authorities alike on what is
likely to be supported and what not.
2.11.3
Human resource capacity
·
Interventions here have a
short terms and a medium term outlook.
·
In terms of the short term,
DEAT appointed consultants in 7 provinces to assist with the eradication of the
backlog. A total of R11,000,000 has been availed for ths purpose and as
indicated above, this resulted in 60% reduction of the backlog
·
In the medium term, DEAT
coordinated a process with the DPSA where work was done to standardise job
evaluation and numeration dispensation amongst environmental authorities.
·
In terms of the longer terms,
there has been recognition that EIA administration is a critical scarce skill
and staff turn-over is of grave concern. DPSA has earmarked the sector for
transition into the occupation specific dispensation in 2009. In the meantime
the working groups of MINMEC proposed the development of a “attraction and
retention’ strategy for the sector.
2.11.4
Decision support tools
·
Phase 2 of the National
Environmental Authorisations System (NEAS) has been finalised and is currently
being rolled out to provinces. This is a web based system where applications
are registered and progress tracked. The system provide various reports that
enable authorities to analyze and assess the efficiency of EIA administration.
Phase 3 that will be finalised at the end of 2008-2009 entails inter alia a link
to the DEAT website where applicants can track the progress of their
application.
·
Various guidelines and
standard operating procedures have been developed
2.11.5
Strategies for capacity
development
·
The department is currently
finalising the capacity audit and needs analysis work that commenced last year.
This process will inform the strategies to be developed for capacity development for each province
·
The department will also in
2008-2009 develop a strategy and action plan to built capacity and raise
awareness around EIA of stakeholders.
3
CONCLUSION AND WAY FORWARD
3.1
Although great strides have
been made in improving the efficiency and effectiveness of the EIA system, a
lot of work still needs to be done to improve the system.
3.2
Streamlining targets already
met (based on 18 month implementation) include:
·
Faster processes
·
Reduction in number of
applications
·
Improved public participation
·
Improved coordination between
environmental authorities
·
Greater clarity in
application of legislation
·
Improved systems to respond
to queries and complaints.
3.3
In addition to continuing
with the interventions already underway, two areas are targeted in additional
work, namely to further rationalise the need for EIA and secondly to improve
governance coordination and cooperation.
3.4
This work is greatly dependent
on the law reform process.
3.5
The law reform process
include amendments both to the enabling legislation (NEMA) and amendments to
the 2006 EIA Regulations
3.5.1
Amendments to the National
Environmental Management Act (B36 of 2006)
3.5.1.1
Amendments have been
introduced into cabinet July 2007. The amendments aim inter alia at:
3.5.1.2
The Bill is currently being
debated at the Portfolio Committee whereafter it will be introduced for
decision-making at the select committee
3.5.2
Amendments to the 2006 EIA
Regulations
3.5.2.1
Amendments are required to:
·
Correct technical
inaccuracies and correct editorial mistakes
·
Give effect to some of the
new enabling provisions (e.g. exemptions, exclusions)
·
Further reduce the list of
activities
·
Include time frames for the
appeal provisions
3.5.2.2
Finalisation of the amendment
is dependant on the Bill and will follow as soon as the Bill is enacted.
ANNEXURE A: COMPARISON BETWEEN THE 1997
AND THE 2006 EIA REGULATIONS
|
|
ECA
EIA Regulations |
NEMA
EIA Regulations |
Comments |
|
1 |
Identify activities to be subject to an EIA
process: Activity description is very general, open for
interpretation and not linked to thresholds, nature and location. |
Identify activities to be subject to an EIA
process: Activities defined in detail, linked to thresholds
(based on nature and location). |
Through the refinement of the activities, the list
may seem longer but in real terms the numbers of EIAs are drastically
reduced. Examples of activities that would no longer require an EIA
authorisation include: ·
Small
scale and upgrading of telecommunication infrastructure ·
Small
scale property development inside of urban areas ·
Infrastructure
development inside urban areas ·
Upgrades
of existing infrastructure |
|
2 |
Prescribe the process to be followed in conducting
an EIA process: A single, lengthy and inflexible process is
prescribed. There is no allowance for rapid processes and early indication of
fatal flaws. This resulted in the Exemption clause being abused in order to
be more reasonable and provide a streamlined alternative to a “6 stop”
process. |
Prescribe the process to be followed in conducting
an EIA process: There is provision for a rapid and a thorough
process and it is clear when which of these processes apply. There is also
more flexibility to within these processes streamline requirements further.
“Submissions” and “decision- points” are substantially reduced |
The refinements of the process with the built in flexibilities
are regarded as a major improvement on the ECA Regulations |
|
3 |
Prescribe the decision making process: Decision
making only allowed after comprehensive process. No time frames for authority
review prescribed |
Prescribe the decision making process: Upfront
decision making allowed for. Time frames for authority review prescribed |
The time frames in the NEMA EIA Regulations are
quite tight and capacity constraints in some provinces are of grave concern |
|
4 |
Assign roles and responsibilities: Responsibilities
only assigned to applicant and authority with no consequences for not
complying with these responsibilities |
Assign roles and responsibilities: Responsibilities
expanded to also include the Environmental Assessment Practitioner (EAP) and
the Interested and Affected Parties (IAP). Consequences for not complying
with responsibilities included |
In the current version of the NEMA Regulations it
is not required that a EAP be registered / certified. This is due to the fact
that self-regulation of the industry is not yet finalised. Once a
registration body is authorised by the Minister the intention would be to
amend the Regulations to make the use of a Registered / certified EAP as
oppose to the current requirement to use an independent EAP |
|
5 |
Public participation inadequately provided for |
More comprehensively providing for public
participation and aligning requirements in this regard with the Promotion of
Administrative Justice Act (PAJA) |
These requirements are further complimented by the
guideline currently being developed as part of the implementation project. |
|
6 |
Prescribe an Appeal process: The appeal process was
however not aligned with PAJA |
Prescribe an Appeal process: Appeal process aligned
with PAJA. Provision for appeal panels and other advisory structures |
The appeal process in the NEMA Regulations is
lengthier than the ECA process. This was however necessary in order to comply
with PAJA and other legal requirements in this regard. |
|
7 |
No provision is made for exclusion from EIA
requirements. |
Provision is made for exclusion from EIA
Requirements for certain defined activities based on: Environmental Management Frameworks (EMFs) and Sector Policies and Guidelines |
This is considered an important element for future
rationailisation |
|
8 |
Procedures for development and publication of
sector and procedural guidelines not provided for. Guidelines and policies
not “protected” |
Procedures for development and publication of
sector and procedural guidelines provided for. Guidelines and policies
“protected” |
The use of procedural and sector guidelines have
been endorsed by rulings of the high court. These policies and guidelines do
not only provide for certainty up front, it also assist in consistent and
well-informed decision-making. Policies and guidelines are alos very important
for future rationalisation of EIA requirements. |
|
9 |
No provision for strategic tools to compliment and
streamline EIA. |
Environmental Management Frameworks provided for.
Process for development, content requirements and approval procedures for
EMFs |
EMFs are not
only useful for rationalisation of EIAs and following a more strategic
approach, it is also a useful tools for providing integrated environmental
management input into spatial planning initiatives. DEAT is planning to fund
development of EMFs in provinces which are experiencing budget and capacity
constraints. |
|
10 |
Compliance and enforcement provisions very weak and
in some instances not enforceable. Certain pertinent aspects not defined as
an offence |
Compliance and Enforcement provisions include
stipulation of offences and link to the Environmental Management Inspectorate
(EMI) provisions in NEMA |
|
|
11 |
No provision for agreements (apart from limited
delegation provisions) with other Departments that have processes that are
substantially similar |
Agreements with other authorities to minimise
duplication of similar processes provided for |
|
|
12 |
Mining not included resulting in two EIA systems
for the country. Duplication of requirements where mining operations and
related activities also include other activities that require EIA
authorisations (such as river diversions, wetland reclamation, etc.) |
Inclusion of mining |
The agreement with DME in this regard is an
important mile-stone. |
|
13 |
Provision for application fee but this was never
implemented |
Application fees, fines and penalties provided for. |
DEAT and provinces to develop fee structure. This
will only be implemented once capacity in provinces and DEAT is of such a
nature that service standards can be met. |
|
14 |
No guidance and requirements included for
Environmental Management Plans (EMP) |
Content and procedural requirements for EMP
provided for |
|
ANNEXURE B
DEAT’s five point plan
towards more efficient and effective EIA administration in South Africa
The DEAT together with the provincial environmental departments derived
at and are implementing a 5 point plan to improve the efficiency and
effectiveness of South Africa’s EIA system. This plan focuses on the following
areas:
More detail on each of these interventions follow:
During February and March of 2006 and to inform strategies for
implementation of the new EIA Regulations (National Environment Management Act
EIA Regulations of 2006 – NEMA EIA in short), the DEAT conducted a survey to
establish the status quo of EIA in South Africa. This survey and follow up
provincial visits during June to September 2006 revealed the following:
i.
Long
period of inactivity on behalf of the applicant
ii.
Complexity
of the application – especially where external and often international experts
need to be consulted to ensure an informed decision;
iii.
Public
objection and controversy
iv.
Poor
quality of reports submitted
v.
Design
or technology changes in the duration of the EIA
vi.
Capacity
constraints at EIA authorities
i.
Applications
that have been dormant for lengthy periods and where the current action
required is with the applicant
ii.
Applications
that are awaiting authority action but that are still within what can be
considered “reasonable” time frames; and
iii.
Applications
that are awaiting authority action and are overdue. This category would
constitute the backlog and is estimated at 30% of the total number of pending
applications.
In order to expedite the finalisation of these pending applications, the
DEAT availed R10M to appoint service providers and contract workers to assist
provinces with the processing of these pending ECA EIA applications. Provinces
were requested to submit business plans to facilitate this assistance and
requests and business plans were received from 8 provinces.
In these business plans provinces were requested to categorise all
pending applications according to the nature thereof in 3 categories, namely:
From the business plans received and reviewed it is clear that 45 to 50%
of pending applications fall in the first category, 35 to 40% in the second,
and the remainder in the last category. Many provinces will concentrate the use
of service providers on the first two categories in order to avail own
resources to address the last category.
The business plans submitted have
been reviewed and allocations made according to the number of pending
applications, the nature of these applications, the approach adopted by the
province and the in-house resources available in each province. Service
providers have been appointed in September 2006.
It is the environmental authorities’ view that EIA should increasingly
be supplemented and even replaced with more strategic decision making tools. In
order to move in this direction, two instruments have been provided for in the
revised legislation, namely the development and implementation of Environmental
Management Frameworks and the identification and publication of sensitive
areas.
This tool, provided for in the NEMA EIA regulations allow for the
conducting of an assessment for a geographical area under development pressure,
preferably a municipality. Spatial information layers (such as biodiversity,
eco-systems, hydrology, pollution hot spots, geology, soil capability,
conservation areas, land cover, infrastructure, etc.) of key attributes (such
as biodiversity, eco-systems, hydrology, pollution hot spots, geology, soil
capability, conservation areas, land cover, infrastructure, etc.) are then
consolidated to arrive at environmental control zones or management zones. In terms
of the Regulations, these EMFs can then be used for certain identified
activities to be excluded from the requirements of the Regulations. EMFs are
also used to provide baseline information to applicants and decision-makers and
help developers to assess the appropriateness of their development proposals
upfront.
EMFs also provide useful environmental information for inclusion in
other spatial plans such as Spatial Development Frameworks and Precinct plans.
Apart from numerous EMFs compiled with own resources, the DEAT will
provide financial and technical assistance to 5 provinces in development of
EMFs. Business plans have been received and service providers will be appointed
towards December 2006.
In addition to the DEAT funded EMFs, the DEAT has also facilitated donor
funding for 3 additional EMFs – these will be conducted in Gauteng and KwaZulu
Natal.
NEMA makes provision for the identification and publication of sensitive
areas where stricter requirements can be imposed or where certain activities
can be excluded. This differ from EMFs as it constitute the mapping of a
certain or a few attributes (such as biodiversity hot-spots, wetlands,
pollution hot spots, areas of geological instability, etc) for the entire area
under an authorities jurisdiction.
Gauteng, the Western Cape and to a lesser degree Mpulanga, has embarked
on such identification of sensitive areas. The DEAT is also providing financial
assistance to KZN for this purpose.
In order to build HR capacity it is important to not only consider the
adequacy of number and level of staff but also skills and expertise. The
interventions in this regard therefore include the following:
The first module will be rolled out in
2007 and will be fully sponsored by the DEAT.
As indicated above, provinces differ vastly in terms of the availability
and utilisation of decision support and administrative systems and tools. In
this regard the interventions are as follow:
In addition to the 4 guidelines developed by the DEAT (available on the
DEAT website) , guidelines developed by more capacitated provinces such as
Gauteng and the Western Cape have been availed to all provinces.
This document, currently being compiled, will include inter alia the
following:
The NEMA EIA Regulations make provision for the utilisation of Sector
guidelines to guide EIA processes and contents of EIA document. The following
sector guidelines are earmarked for completion by the end of the next financial
year:
o
Linear
development
o
Electricity
generation and supply
o
Large
scale property development
o
Social
development
o
Agriculture
and agri-industry
o
Ports
o
Marine
Aqua-culture
Forms have been developed for all applications and notices envisaged in
the regulations and availed to all provinces. In addition, templates and
pro-forma letters developed by Gauteng and the Western Cape have been availed
to all provinces for customisation and utilisation.
The DEAT is currently investigating means of assisting provinces that do
not have a GIS system in the development of GIS systems.
NEAS is a web-based information management system that registers and
track applications. It also includes useful information to assist provinces
with decision-making. This system is currently being updated to meet the
process requirements of the new Regulations and will be implemented by all
participating provinces by October 2007.
In addition to the initial status quo survey and the provincial visits
mentioned above, the DEAT is in the process of procuring the services of a
service provider to conduct a thorough capacity assessment and needs analysis
in terms of the EIA function in all provinces. This work, together with the
information already known will be utilised to:
Closing remarks:
In addition to the above, the following should be noted:
ANNEXURE C
REPORT
ON PROGRESS WITH IMPLEMENTATION OF THE NEMA EIA REGULATIONS (2006) AND THE
PHASING OUT OF THE ECA EIA REGULATIONS FOR THE PERIOD 1 JULY 2006 TO 31
December 2008
1. PURPOSE
To provide tMINMEC with a progress report
on the implementation of the 2006 EIA Regulations and the phasing out of the
1997 EIA Regulations.
2. BACKGROUND
This document provides a progress report
on the following:
·
Phasing
out of the 1997 EIA Regulations
·
Efficient
and effective implementation of the 2006 EIA Regulations, focusing on:
o
Coordination
of implementation
o
Development
of procedural guidelines and the Companion
o
Development
of sector guidelines
o
Development
of Environmental Management Frameworks
o
Identification
and publication of sensitive areas
o
Training
o
Capacity
Audit and Needs Analysis
o
Regulation
6 Agreements
o
Cooperation
with Department of Public Service and Administration in developing a guideline
for optimum Human Resources Capacity and Structure for efficient EIA
administration
o
ASGISA
and EIA
·
Amendment
of NEMA and the 2006 EIA Regulations
1.
DISCUSSION
2.1.
Phasing
out of the EIA applications submitted in terms of the Environment Conservation
Act (1997 Regulations)
A quarterly reporting systems has been
introduced whereby provincial authorities and DEAT submit statistics on EIA
applications on the 15th of the month following the conclusion of a
quarter (that is, July, October, January and April). Although some problems are
still being experienced with the accuracy of information submitted and with
obtaining reports from provincial authorities on time, these reports have been
very useful in establishing not only the progress in terms of phasing out ECA
EIA applications but also the pace at which the new Regulations are being
adopted and complied with.
The December 2007 report revealed that the
number of pending ECA EIA applications have been reduced from 5,955 at the end
of June 2006 to 1205 applications at the end of December 2007 (79% reduction).
In terms of the deployment of service
providers to assist provincial authorities with expedient phasing out of ECA
EIA applications, contracts to the amount of R11,3 Million have been awarded
and work will be concluded by the end of March 2008.
It is our estimation, based on the
progress rate reported above and the business plans of the appointed service
providers, that the number of pending ECA EIA applications will be reduced by
approximately 85% at the end of March 2008. The remainder of applications will
still be in due process and there will accordingly not be any backlog at this
stage.
2.2.
Efficient
and effective implementation of the 2006 EIA Regulations (promulgated in terms
of the National Environmental Management Act)
i. Statistics
According to the quarterly reports
referred to above, a total of 5300 applications in terms of the 2006 EIA
Regulations have been submitted to provinces and DEAT in the period 3 July 2006
(coming into effect of the 2006 EIA Regulations) to 31 December 2007. It has
also been reported that for 95% of these applications, relevant steps concluded
thus far have been concluded within the prescribed time frames.
ii. Coordination of implementation
As agreed in August 2006, implementation
workshops are held quarterly. 7 Such workshops were held in the period July 2006
to December 2007. At these workshops issues related to the interpretation and
consistent application of the Regulations are discussed and agreed to. Problems
experienced with the implementation are identified and best practice solutions
shared. These workshops are also utilized to discuss guidelines, templates,
standard operating procedures, etc. It was also through the work of these
workshops that the required amendments to NEMA and the Regulations have been
identified (see 3.3 below)
In addition to the workshops and valuable
e-mail interaction between members of the implementation task team (workshop
delegates), DEAT also continuously, as agreed with MINMEC in August 2006,
provide responses to provincial authorities and other stakeholders on
interpretation questions. More than 600 responses have been dispatched to date.
DEAT also obtain legal opinions where required. Both responses to
interpretation questions and the legal opinions obtained are, as agreed,
circulated to all EIA authorities to promote uniform and consistent implementation
of the Regulations.
The Western Cape (DEADP) and Gauteng
(GDACE) have embarked on implementation and supplementation projects for their
respective provinces. Both these projects are nearing completion and will in
the near future be presented to the Minister in order to obtain his
concurrence. The valuable lessons learnt through these projects are shared at
the MINTEC Working Group.
iii. Development of procedural guidelines and
the Companion
The NEMA EIA Regulations make provision
for the development of national (Regulation 73) and provincial (Regulation 74)
guidelines on activities and/or procedures regulated through the EIA
Regulations. Regulation 75 then stipulates that although not legally binding,
these guidelines MUST be taken into consideration by ALL role players in the
EIA process. Guidelines developed in terms of these provisions accordingly can
play a vital role in providing clarity upfront, streamline processes, etc.
Four procedural and general guidelines
have been developed and published for public comment (in terms of Regulation 76
of the 2006 EIA Regulations). DEAT has considered the comments received and the
guidelines have been finalised, however publication is held back in case
amendments are required based on the NEMA and EIA Regs amendment process. The
guidelines in question are:
·
General
guideline on the 2006 EIA Regulations;
·
Public
Participation; and
·
Environmental
Management Frameworks
·
Consideration
of alternatives
The “Companion to the EIA Regulations” have
been finalised but as is the case above, publications is withheld to allow for
edits to reflect amendments to the legislation.
Some provincial authorities have also
developed procedural manuals, standing operating procedures and guidelines.
These have been availed to all provinces for customization and use.
iv. Development of sector guidelines
During 2006-2007, 5 sectors for which
national guidelines in terms of Regulation 73 must be developed have been
identified, namely:
·
Electricity
generation and supply (renewable and non-renewable generation);
·
Linear
structures;
·
Large
Scale property developments (including life style estates);
·
Agriculture
and agri-industry; and
·
“Social”
infrastructure (including housing, sanitation, water and waste facilities)
Two additional sectors have subsequently
been added, namely Marine Aquaculture and Ports and associated infrastructure.
The tender for the development of the
initial five sectors have been awarded and work has commenced. Reference groups
have been established to advise the consultants on these sector guidelines.
It is envisaged that the first 5
guidelines will be finalised towards the end of June 2008.
The DEAT is currently awaiting tender
proposals for the additional sectors mentioned above.
It is further envisaged that the work being
done in cooperation with the Department of Public Enterprises (see xi. Below)
around Strategically Important Development will also result in a Regulation 73
guideline aimed at assisting ASGISA initiatives.
v. Development of Environmental Management
Frameworks
As reported previously, 6 provincial
authorities are being financially assisted by DEAT to develop EMFs for
identified municipal areas. The provinces being assisted are:
·
Northern
Cape
·
Eastern
Cape
·
Mpumalanga
·
North
west
·
Free
State; and
·
Kwa
Zulu Natal
Tender processes have been concluded and
consultants appointed for all these projects.
DEAT has further facilitated donor support
for the development of an EMF for the Sedibeng district municipality in
Gauteng. This project is co-managed between DEAT, GDACE and the municipality.
Various provinces are also busy with the
development and/or finalization of self-funded EMFs. In terms of the 2006 EIA
Regulations, these EMFs must be developed in concurrence with the Minister. The
Minister has recently gave provinces in principle and conditional concurrence
for such projects and Gauteng and the Western Cape already informed the
Minister of projects that have been initiated.
The DEAT plan to include a complete list
of EMFs that are being developed and a map depicting their locations in the
Companion. This information will also be updated on the DEAT website in coming
financial years.
vi. Identification and publication of
sensitive areas
NEMA provide for the identification of
sensitive areas either through geographical mapping or description of
environmental attributes. Stricter requirements, additional activities or
exclusions can then be determined for such identified areas.
During the implementation workshops in
2006, provinces were invited to apply to DEAT for financial assistance in this
regard. As limited funding was available and development of EMFs was preferred
above identification of sensitive areas, none of the provinces applied for
assistance in this regard. Self-funded initiatives are however underway in
Gauteng, the Western Cape and Mpumalanga. The Gauteng and Western Cape projects
are nearing completion and will be finalised during the first six months of
2007. These provinces have also already approached the Minister with a request
to obtain concurrence for the publication of these sensitive areas and
associated EIA inclusions and exclusions.
The DEAT also initiated two projects in
this regard, namely mapping of sensitive areas that are of national importance
and the identification of areas that are considered as sensitive to impacts
caused by recreational off-road driving. These projects are however at their
very initial stages and completion is only envisaged towards the second half of
2008-2009.
vii. Training
Due to capacity constraints and an urgent
need to repeat basic training on the new EIA Regulations, work in the
development and roll out of accredited training on selected EIA administration
related modules have not progressed as far as we would have liked. Work has
however commenced and the terms of reference for this project have been
finalised and the tender advertised. A service provider was appointed in
November 2008. The training will commence in February 2008 with the alst group
writing their exams in May 2008. The course is fully accredited and credits
towards a honours degree can be obtained by successfully completing the course.
DEAT has however rolled out 8 additional
training seminars on the new EIA Regulations. Two sessions were held during
October and November 2006 and a further 6 during February, March, May 2007.
June, August and September 2007
viii.
Capacity
Audit and Needs Analysis
As was decided in 2006 and on instruction
of cabinet (based on the Governance and Administration cluster input to the
June 2006 Cabinet Lekgotla) DEAT embarked on a Capacity audit and needs
analysis exercise. This project aim to do a detail analysis of the EIA capacity
in all nine provinces and at DEAT. It will further establish what the status of
systems, tools, etc. in provinces are and what the support needs in provinces
are. This study will then inform province specific and generic capacity and
support strategies and initiatives. It would further inform guidelines to be
developed by DEAT and the DPSA (see x. below) on required Human Resource
Capacity to ensure optimum efficiency in EIA administration in South Africa.
The tender process for this project has
been completed and a service provider appointed. Work commenced in April 2007
and a draft findings report was circulated to provinces for verification in January
2008..
ix. Regulation 6 Agreements
The NEMA EIA Regulations make provision
for the Minister to enter into agreements with other authorities with the aim
to streamline processes and to minimize duplication in regulatory requirements.
A proposal in this regard has been tabled and approved at MINMEC in August
2006.
Thus far, cooperation agreements have been
initiated with the National Nuclear Regulator (NNR); the Department of Minerals
and Energy (DME); The South African National Roads Agency Limited (SANRAL), the
Department of Water Affairs and Forestry (DWAF); South Africa’s National Parks
and the National Energy Regulator of South Africa (NERSA).
Not all of these agreements would be based
on Regulation 6 however. The Regulation 6 agreements envisaged for completion
in 2007 are those between DEAT and DME and DWAF respectively. The cooperation
agreement with NNR has been completed and we are implementing it.
The Regulation 6 agreement with DME
however remains a difficult matter. Slow progress with law reform (The Minerals
and Petroleum Resources Development Amendment Bill) and difficult negotiation
with DME are hampering this process and it is unlikely that mining related EIA
activities will come into effect in the near future as originally envisaged.
x. Cooperation with Department of Public
Service and Administration in developing a guideline for optimum Human
Resources Capacity and Structure for efficient EIA administration.
In light of concerns raised in cabinet
during 2006 on the potential impact that EIA backlogs might have on the
economic growth targets of South Africa, cabinet tasked DEAT and the Department
of Public Service and Administration to inter
alia conduct an audit into the EIA administration capacity and to further
provide guidance to provincial authorities and the relevant national
departments on optimum Human Resources structures for efficient EIA
administration.
Based on the status quo survey conducted
in 2006 as well as information obtained from provinces subsequently on inter alia work processes, work-process
review and re-engineering initiatives, organograms, application load, relations
between regional and head offices, etc., DEAT has commenced with a desktop
“volumetrix” exercise which will result in a draft guideline. This draft guideline
will then be refined through the Capacity Audit process prior to it being
submitted to the DPSA for finalization and incorporation of the work being done
by them on reviewing the Environmental sector as a “scarce skill”. The draft
guideline will be completed by the end of July 2008.
xi. ASGISA and EIA
As one of the main contributing sectors to
ASGISA, the Department of Public Enterprises commissioned a study to identify
all the potential obstacles and constraints in reaching ASGISA related targets.
In terms of Environmental Impact Management the study identified a need for
State Owned Enterprises to improve on their environmental performance but also
for EIM related legislation to be efficiently and effectively administered.
In order to meet these objectives, the
report on the study made a number of recommendations ranging from inclusion of
environmental objectives in strategic planning of the SOE’s to very specific
mechanisms to improve the efficiency of EIA without compromising its
effectiveness.
One of the proposed interventions related
to more efficient and effective EIA administration of ASGISA related projects
involve the identification and flagging of Strategically Important Developments
(SIDs). The intention is to, once criteria for what would constitute such SIDs
are agreed to; develop a sector and procedural guideline in terms of Regulation
73 of the 2006 EIA Regulations dealing specifically with this category of
activities. Such guideline would focus on ensuring high quality EIA products (Reports)
but also efficient processing of EIAs for the identified SIDs.
It is DEAT’s strong view that the focus
should not only be on developments that are of strategic importance due to
economic considerations, but also include those that are important from the
perspective of meeting social needs such as housing, basic services, etc.
In order to take this work forward, DEAT
and the DPE embarked on a joint project to develop criteria for SIDs and to
develop the guidelines mentioned above. Dr Dave Philips has been appointed by
the DPE and work is nearing completion with the drat strategy and action plan
going out for public consultation in March 2008.
2.3.
Amendment
of Environmental Impact Management provisions in NEMA and of the 2006 EIA
Regulations
Since the promulgation of the NEMA EIA
Regulations in April 2006 and more specifically since the implementation
thereof in July 2006, a number of problems have been identified by the
authorities and numerous stakeholders. These problems were discussed in detail
during the implementation workshops and amendments to address these problems
have been identified.
The amendment Bill was introduced in parliament
during July 2007 and is currently being debated in the Portfolio Committee.