The NEMA EIA Regulations

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The NEMA EIA Regulations the cultivation of
virgin soil
Gerhard Gerber (DEADP) Fynbos Forum August 2006
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• NEMA EIA Regulations
• Basic Assessment
• Scoping EIA
• Exemptions
• NEMA EIA Regulations the cultivation of virgin
  soil
• CARA the cultivation of virgin soil
• Agri MOU Reg 6 Agreement

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LISTED ACTIVITIES PROCEDURES TO BE FOLLOWED

• The Minister MEC may identify activities which
  may not commence without environmental
  authorisation
• - S24(2)(a)
• The Minister MEC may make regulations laying
  down the procedure to be followed in applying for
  the issuing of environmental authorisations
• - S24(5)(a)

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NEED FOR NEW EIA REGS (national perspective)

• The ECA EIA Regulations did not
  provide/accommodate
• quick processing
• flexiblility to facilitate efficient
  administration
• amendments of authorisations
• transfer of authorisations
• authorisation/refusal of all or part of an
  activity
• timeframes
• coordination with other authorities

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NEED FOR NEW EIA REGS (Continue)

• The ECA EIA Regulations
• placed a high administrative load on officials
• did not always ensure quality information
• contained too many small-scale applications
• some activities with significant impacts
  excluded
• focused on the type scale of activities,
  without consideration for the receiving
  environment.

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NEMA EIA REGULATIONS

• Promulgated 21 April 2006
• Identifying Activities
• (GN No. R. 386 R. 387)
• Laying down the Procedure
• (GN No. R. 385)
• Date of effect 3 July 2006
• (GN No. R. 612, R. 613, R. 614, R. 615 R. 616)

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Basic Assessment or Scoping EIA?

• BASIC ASSESSMENT
• Activities identified ito GN No. R. 386
• SCOPING EIA
• Activities indentified ito GN No. R. 387
• Advised by DEADP
• Permission granted to follow Scoping EIA
• application is for two or more activities and
  Scoping must be applied in respect of any of the
  activities

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Basic Assessment Process

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

Authority response and advice (R. 5)
Public participation (R. 22 R. 56)

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

Reject Basic Assessment Report (R. 25)

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

Check application (R. 14)
14 days
Acknowledge receipt (R. 14)
30 days
Grant / refuse authorisation (R. 26)
Scoping EIA (R. 25)
Competent authorities must strive to meet
timeframes (R. 9)
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Scoping EIA Process

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

Reject SR / or POSEIA (R. 31)
Request amendments (R. 31)
Accept SR POSEIA
Check application (R. 14)
14 days

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

Acknowledge receipt (R. 14)

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

Submit EIA Report draft EMP
60 days

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

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

45 days
Grant / refuse authorisation (R. 36)
30 days
Competent authorities must strive to meet
timeframes (R. 9)
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EXEMPTIONS

• Any person to whom a provision of these
  Regulations applies may apply for an exemption
  from such provision in respect of a specific
  activity - R. 51(1)
• A person may be exempted from a provision of
  these Regulations requiring or regulating a
  public participation process, only if the rights
  or interests of other parties are not likely to
  be adversely affected
• - R. 51(2)

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EXEMPTIONS (Continue)

• Cannot be exempted from having to obtain
  environmental authorisation
• PP will always have to be undertaken
• Exemption decisions
• No timeframes
• Can be appealed The MEC may direct (ito S43(7))
  that an appeal against an exemption will suspend
  an application process until such time that a
  decision has been taken on the appeal.

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Exemption Application Process
Submit a separate application for exemption (R.
52)

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

14 days
Acknowledgement of receipt (R. 52) advises
applicant (R. 5) on the appropriateness of the
exemption
Integrate public participation as part of Basic
Assessment or Scoping EIA PP process
Separate public participation process

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

No timeframe
Issue Exemption Notice as part of
authorisation/refusal of Basic Assessment or
Scoping EIA Application
Issue separate Exemption Notice
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LISTED ACTIVITIES

• Basic Assessment (GN No. R. 386)
• 25 activities (55 activities in total)
• Scoping EIA (GN No. R. 387)
• 10 activities (29 activities in total)

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NEMA EIA REGULATIONS THE CULTIVATION OF VIRGIN
SOIL

• Basic Assessment (GN No. R. 386)
• 12. The transformation or removal of indigenous
  vegetation of 3 hectares or more or of any size
  where the transformation or removal would occur
  within a critically endangered or an endangered
  ecosystem listed in terms of section 52 of the
  National Environmental Management Biodiversity
  Act, 2004 (Act No. 10 of 2004).

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NEMA EIA REGS THE CULTIVATION OF VIRGIN SOIL
(Continue)

• Basic Assessment (GN No. R. 386)
• 17. Phased activities where any one phase of the
  activity may be below a threshold specified in
  this Schedule but where a combination of the
  phases, including expansions or extensions, will
  exceed a specified threshold.

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NEMA EIA REGS THE CULTIVATION OF VIRGIN SOIL
(Continue)

• Scoping EIA (GN No. R. 387)
• 2. Any development activity, including associated
  structures and infrastructure, where the total
  area of the developed area is, or is intended to
  be, 20 hectares or more.

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CARA THE CULTIVATION OF VIRGIN SOIL

• The Minister may prescribe control measures that
  may relate to the cultivation of virgin soil -
  S6(1) (2)
• CARA Regulations (GN No. R. 1048)
• Promulgated 25 May 1984
• Date of effect 1 June 1984
• Except on authority of a written permission by
  the executive officer, no land user shall
  cultivate any virgin soil - R. 2(1)

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CARA THE CULTIVATION OF VIRGIN SOIL (Continue)

• CARA Regulations (GN No. R. 1048)
• Specific application form - R. 2(2)
• Application to be lodged at least 3 months prior
  to the intended date of cultivation - R.
  2(3)
• An officer may, for the purposes of an
  investigation deemed necessary to consider such
  application, direct a land user to take such
  steps as that officer may determine. - R. 2(4)

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STEPS TO BE TAKEN ito NEM Principles

• Anticipate, prevent, minimise remedy
• disturbance of ecosystem
• loss of biological diversity
• degradation of the environment
• negative impacts on the environment on people's
  environmental rights
• Do not exceed the level beyond which the
  integrity of renewable resources ecosystems are
  jeopardised
• Apply a risk-averse cautious approach

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NEMA EIA REGS CARA

• Overlap between NEMA EIA Regs CARA
• There must be intergovernmental co-ordination
  harmonisation of policies, legislation actions
  relating to the environment. - S4(l)
• Actual or potential conflicts of interest between
  organs of state should be resolved through
  conflict resolution procedures.
• - S4(m)

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REGULATION 6 AGREEMENT

• Where an application must also be made in terms
  of other legislation that require substantially
  similar information or procedure to be carried
  out, the MEC must take steps to enter into a
  written agreement with the other authority to
  co-ordinate requirements avoid duplication.
• - R. 6

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Agri MOU

• improved communication cooperation
• joint site visits
• same information
• same procedure (PP)
• conflict avoidance resolution
• integrated decision-making

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GUIDELINES, WEBSITE HELPDESK

• DEADP Guidelines on
• Transitional Arrangements
• Public Participation
• Alternatives
• Exemptions
• Appeals
• Interpretation of the Listed Activities
• DEADP's website
• http//www.capegateway.gov.za/eng/yourgovernment/g
  sc/406
• DEADP NEMA EIA Helpdesk
• Tel. [phone]
• Email EIAINFO_at_pgwc.gov.za

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• Thank you.
• Questions?