11

The NEMA EIA RegulationsThe NEMA EIA Regulations& the cultivation of virgin & the cultivation of virgin

soilsoil

Gerhard Gerber (DEA&DP)

Fynbos Forum – August 2006

22

• NEMA EIA RegulationsNEMA EIA Regulations– Basic AssessmentBasic Assessment– Scoping & EIAScoping & EIA– ExemptionsExemptions– NEMA EIA Regulations & the NEMA EIA Regulations & the

cultivation of virgin soilcultivation of virgin soil

• CARA & the cultivation of virgin CARA & the cultivation of virgin soilsoil

• ““Agri MOU” – Reg 6 Agreement Agri MOU” – Reg 6 Agreement

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LISTED ACTIVITIES & PROCEDURES LISTED ACTIVITIES & PROCEDURES TO BE FOLLOWEDTO BE FOLLOWED

• The Minister & MEC may identify The Minister & MEC may identify activities which may not commence activities which may not commence without environmental authorisation without environmental authorisation

- S24(2)(a)- S24(2)(a)

• The Minister & MEC may make The Minister & MEC may make regulations laying down the procedure regulations laying down the procedure to be followed in applying for & the to be followed in applying for & the issuing of environmental issuing of environmental authorisationsauthorisations

- S24(5)(a)- S24(5)(a)

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NEED FOR NEW EIA REGSNEED FOR NEW EIA REGS (national (national perspective)perspective)

• The ECA EIA Regulations did not The ECA EIA Regulations did not provide/accommodate:provide/accommodate:– quick processing;quick processing;– flexiblility to facilitate efficient flexiblility to facilitate efficient

administration;administration;– amendments of authorisations;amendments of authorisations;– transfer of authorisations;transfer of authorisations;– authorisation/refusal of all authorisation/refusal of all or part ofor part of

an activityan activity– timeframestimeframes– coordination with other authoritiescoordination with other authorities

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NEED FOR NEW EIA REGSNEED FOR NEW EIA REGS (Continue) (Continue)

The ECA EIA Regulations:The ECA EIA Regulations:

• placed a high administrative load on placed a high administrative load on officials;officials;

• did not always ensure quality did not always ensure quality information;information;

• contained too many small-scale contained too many small-scale applications;applications;

• some activities with significant impacts some activities with significant impacts excluded;excluded;

• focused on the type & scale of activities, focused on the type & scale of activities, without consideration for the receiving without consideration for the receiving environment.environment.

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NEMA EIA REGULATIONSNEMA EIA REGULATIONS

• Promulgated: 21 April 2006Promulgated: 21 April 2006– Identifying ActivitiesIdentifying Activities

(GN No. R. 386 & R. 387)(GN No. R. 386 & R. 387)

– Laying down the ProcedureLaying down the Procedure

(GN No. R. 385)(GN No. R. 385)

• Date of effect: 3 July 2006 Date of effect: 3 July 2006 (GN No. R. 612, R. 613, R. 614, R. 615 & R. 616(GN No. R. 612, R. 613, R. 614, R. 615 & R. 616))

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Basic Assessment or Scoping & Basic Assessment or Scoping & EIA?EIA?

• BASIC ASSESSMENT BASIC ASSESSMENT

– Activities identified ito GN No. R. 386Activities identified ito GN No. R. 386

• SCOPING & EIA SCOPING & EIA

– Activities indentified ito GN No. R. 387Activities indentified ito GN No. R. 387

– Advised by DEA&DPAdvised by DEA&DP

– Permission granted to follow Scoping & Permission granted to follow Scoping & EIAEIA

– application is for two or more activities application is for two or more activities and Scoping must be applied in respect and Scoping must be applied in respect of any of the activitiesof any of the activities

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Basic Assessment ProcessBasic Assessment Process

Public participation (R. 22 & R. 56)

Submit• Application form (R. 24)• Basic Assessment Report (R. 24)• Exemption application (R. 52)

14 days

Acknowledge receipt (R. 14)

Check application (R. 14)

30 days

• Submit additional information• Specialist studies• Alternatives (R. 25)

Grant / refuse authorisation (R. 26)

Competent authorities must strive to meet timeframes (R. 9)

Notify Authority (form) (R. 22)•Indicate if exemption will be applied for

Authority response and advice (R. 5)

Reject Basic Assessment Report (R. 25)

Scoping & EIA (R. 25)

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Scoping & EIA ProcessScoping & EIA Process

Submit application (R. 27)• Application form• Landowner’s consent• Indicate if exemption will be applied for (part of application from)

14 days

Check application (R. 14)

Request amendments (R. 31)

Grant / refuse authorisation (R. 36)

Acknowledge receipt (R. 14)

Submit (R. 30)• Scoping Report• Plan of Study for EIA

Scoping (R. 28-29)• Public participation • Scoping Report• Public comment on SR (R. 58)

EIA (R.32)• Prepare EIA report & draft EMP

60 days

Authority response (R. 35)• Reject• Amend• Specialist review• Accept

45 days

Competent authorities must strive to meet timeframes (R. 9)

Submit EIA Report & draft EMP

Accept SR & POSEIA

30 days

Reject SR & / or POSEIA (R. 31)

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EXEMPTIONSEXEMPTIONS

• Any person to whom a provision of these Any person to whom a provision of these Regulations applies may apply for an Regulations applies may apply for an exemption from such provision in respect exemption from such provision in respect of a specific activity… of a specific activity… - R. 51(1)- R. 51(1)

• A person A person may be exempted from a may be exempted from a provision of these Regulations requiring provision of these Regulations requiring or regulating a public participation or regulating a public participation process, only if the rights or interests of process, only if the rights or interests of other parties are not likely to be other parties are not likely to be adversely affected…adversely affected…

- R. 51(2)- R. 51(2)

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EXEMPTIONS (Continue)EXEMPTIONS (Continue)

• Cannot be exempted from having to Cannot be exempted from having to obtain environmental authorisationobtain environmental authorisation

• PP will always have to be undertakenPP will always have to be undertaken

• Exemption decisions:Exemption decisions:– No timeframesNo timeframes– Can be appealed: The MEC may direct Can be appealed: The MEC may direct

(ito S43(7)) that an appeal against an (ito S43(7)) that an appeal against an exemption will suspend an application exemption will suspend an application process until such time that a process until such time that a decision has been taken on the decision has been taken on the appeal.appeal.

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Exemption Application ProcessExemption Application Process

14 days

Submit a separate application for exemption (R. 52)

Acknowledgement of receipt (R. 52) & advises applicant (R. 5) on the

appropriateness of the exemption

Consideration (R. 53)• May request additional information• Advise application of any factors prejudicing the application

Issue separate Exemption Notice

Submit an application as part of: •Intent to apply (Basic Assessment)•Part of Application Form (Basic Assessment or Scoping & EIA)

Integrate public participation as part of Basic Assessment or Scoping & EIA PP process

No timeframe

Issue Exemption Notice as part of authorisation/refusal of Basic Assessment

or Scoping & EIA Application

Separate public participation process

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LISTED ACTIVITIESLISTED ACTIVITIES

• Basic Assessment (GN No. R. 386)Basic Assessment (GN No. R. 386)– 25 activities25 activities (55 activities in total) (55 activities in total)

• Scoping & EIA (GN No. R. 387)Scoping & EIA (GN No. R. 387)– 10 activities10 activities (29 activities in total) (29 activities in total)

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NEMA EIA REGULATIONS & NEMA EIA REGULATIONS & THE CULTIVATION OF VIRGIN SOILTHE CULTIVATION OF VIRGIN SOIL

• Basic Assessment (GN No. R. 386)Basic Assessment (GN No. R. 386)

– 12. 12. The transformation or removal of The transformation or removal of

indigenous vegetation of 3 hectares or indigenous vegetation of 3 hectares or

more or of any size where the more or of any size where the

transformation or removal would occur transformation or removal would occur

within a critically endangered or an within a critically endangered or an

endangered ecosystem listed in terms endangered ecosystem listed in terms

of section 52 of the National of section 52 of the National

Environmental Management: Environmental Management:

Biodiversity Act, 2004 (Act No. 10 of Biodiversity Act, 2004 (Act No. 10 of

2004).2004).

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NEMA EIA REGS & THE NEMA EIA REGS & THE CULTIVATION OF VIRGIN SOIL CULTIVATION OF VIRGIN SOIL

(Continue)(Continue)

• Basic Assessment (GN No. R. 386)Basic Assessment (GN No. R. 386)

– 17. Phased activities where any one 17. Phased activities where any one

phase of the activity may be below a phase of the activity may be below a

threshold specified in this Schedule threshold specified in this Schedule

but where a combination of the but where a combination of the

phases, including expansions or phases, including expansions or

extensions, will exceed a specified extensions, will exceed a specified

threshold.threshold.

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NEMA EIA REGS & THE NEMA EIA REGS & THE CULTIVATION OF VIRGIN SOIL CULTIVATION OF VIRGIN SOIL

(Continue)(Continue)

• Scoping & EIA (GN No. R. 387)Scoping & EIA (GN No. R. 387)

– 2. Any development activity, 2. Any development activity,

including associated structures and including associated structures and

infrastructure, where the total area infrastructure, where the total area

of the developed area is, or is of the developed area is, or is

intended to be, 20 hectares or more.intended to be, 20 hectares or more.

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CARA & THE CULTIVATION CARA & THE CULTIVATION OF VIRGIN SOILOF VIRGIN SOIL

• The Minister may prescribe control The Minister may prescribe control

measures that may relate to the measures that may relate to the

cultivation of virgin soilcultivation of virgin soil - S6(1) & (2)- S6(1) & (2)

• CARA Regulations (GN No. R. 1048)CARA Regulations (GN No. R. 1048)– Promulgated: 25 May 1984Promulgated: 25 May 1984– Date of effect: 1 June 1984Date of effect: 1 June 1984– Except on authority of a written Except on authority of a written

permission by the executive officer, no permission by the executive officer, no land user shall cultivate any virgin soilland user shall cultivate any virgin soil

- R. 2(1)- R. 2(1)

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CARA & THE CULTIVATION CARA & THE CULTIVATION OF VIRGIN SOIL (Continue)OF VIRGIN SOIL (Continue)

• CARA RegulationsCARA Regulations (GN No. R. 1048) (GN No. R. 1048)– Specific application formSpecific application form - R. 2(2)- R. 2(2)

– Application to be lodged at least 3 Application to be lodged at least 3 months prior to the intended date of months prior to the intended date of cultivationcultivation - R. - R. 2(3)2(3)

– An officer may, for the purposes of An officer may, for the purposes of an investigation deemed necessary an investigation deemed necessary to consider such application, direct a to consider such application, direct a land user to take such steps as that land user to take such steps as that officer may determine. officer may determine. - R. 2(4)- R. 2(4)

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STEPS TO BE TAKEN ito NEM STEPS TO BE TAKEN ito NEM PrinciplesPrinciples

• Anticipate, prevent, minimise & remedy:Anticipate, prevent, minimise & remedy:– disturbance of ecosystemdisturbance of ecosystem– loss of biological diversityloss of biological diversity– degradation of the environment degradation of the environment – negative impacts on the environment & negative impacts on the environment &

on people's environmental rights on people's environmental rights

• Do not exceed the level beyond which Do not exceed the level beyond which the integrity of renewable resources & the integrity of renewable resources & ecosystems are jeopardisedecosystems are jeopardised

• Apply a risk-averse & cautious approachApply a risk-averse & cautious approach

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NEMA EIA REGS & CARANEMA EIA REGS & CARA

• Overlap between NEMA EIA Regs & CARA Overlap between NEMA EIA Regs & CARA

• There must be intergovernmental co-There must be intergovernmental co-ordination & harmonisation of policies, ordination & harmonisation of policies, legislation & actions relating to the legislation & actions relating to the environment. environment. - S4(l) - S4(l)

• Actual or potential conflicts of interest Actual or potential conflicts of interest between organs of state should be between organs of state should be resolved through conflict resolution resolved through conflict resolution procedures.procedures.

- S4(m) - S4(m)

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REGULATION 6 AGREEMENTREGULATION 6 AGREEMENT

• Where an application must also be Where an application must also be made in terms of other legislation that made in terms of other legislation that require substantially similar require substantially similar information or procedure to be carried information or procedure to be carried out, the MEC must take steps to enter out, the MEC must take steps to enter into a written agreement with the other into a written agreement with the other authority to co-ordinate requirements authority to co-ordinate requirements & avoid duplication.& avoid duplication.

- R. 6- R. 6

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““Agri MOU”Agri MOU”

• improved communication & cooperationimproved communication & cooperation

• joint site visitsjoint site visits

• same informationsame information

• same procedure (PP)same procedure (PP)

• conflict avoidance & resolutionconflict avoidance & resolution

• integrated decision-makingintegrated decision-making

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GUIDELINES, WEBSITE & GUIDELINES, WEBSITE & HELPDESKHELPDESK

• DEA&DP Guidelines on:DEA&DP Guidelines on:– Transitional ArrangementsTransitional Arrangements– Public ParticipationPublic Participation– AlternativesAlternatives– ExemptionsExemptions– AppealsAppeals– Interpretation of the Listed ActivitiesInterpretation of the Listed Activities

• DEA&DP's websiteDEA&DP's websitehttp://www.capegateway.gov.za/eng/yourgovernment/gsc/406http://www.capegateway.gov.za/eng/yourgovernment/gsc/406

• DEA&DP NEMA EIA HelpdeskDEA&DP NEMA EIA Helpdesk – Tel. (021) 483 4098Tel. (021) 483 4098– Email: Email: EIAINFO@pgwc.gov.zaEIAINFO@pgwc.gov.za

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Thank you.Thank you.

Questions?Questions?