1. 1 The NEMA EIA Regulations & the cultivation of virgin soil Gerhard Gerber (DEA&DP) Fynbos Forum – August 2006

2. 2 NEMA EIA Regulations NEMA EIA Regulations –Basic Assessment –Scoping & EIA –Exemptions –NEMA EIA Regulations & the cultivation of virgin soil CARA & the cultivation of virgin soil CARA & the cultivation of virgin soil “Agri MOU” – Reg 6 Agreement “Agri MOU” – Reg 6 Agreement

3. 3 LISTED ACTIVITIES & PROCEDURES TO BE FOLLOWED The Minister & MEC may identify activities which may not commence without environmental authorisation 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 The Minister & MEC may make regulations laying down the procedure to be followed in applying for & the issuing of environmental authorisations - S24(5)(a)

4. 4 NEED FOR NEW EIA REGS (national perspective) The ECA EIA Regulations did not provide/accommodate: 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

5. 5 NEED FOR NEW EIA REGS (Continue) The ECA EIA Regulations: placed a high administrative load on officials; placed a high administrative load on officials; did not always ensure quality information; did not always ensure quality information; contained too many small-scale applications; contained too many small-scale applications; some activities with significant impacts excluded; some activities with significant impacts excluded; focused on the type & scale of activities, without consideration for the receiving environment. focused on the type & scale of activities, without consideration for the receiving environment.

6. 6 NEMA EIA REGULATIONS Promulgated: 21 April 2006 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 Date of effect: 3 July 2006 (GN No. R. 612, R. 613, R. 614, R. 615 & R. 616)

7. 7 Basic Assessment or Scoping & EIA? BASIC ASSESSMENT BASIC ASSESSMENT –Activities identified ito GN No. R. 386 SCOPING & EIA SCOPING & EIA –Activities indentified ito GN No. R. 387 –Advised by DEA&DP –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

8. 8 Basic 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)

9. 9 Scoping & 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)

10. 10EXEMPTIONS 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) 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… 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)

11. 11 EXEMPTIONS (Continue) Cannot be exempted from having to obtain environmental authorisation Cannot be exempted from having to obtain environmental authorisation PP will always have to be undertaken PP will always have to be undertaken Exemption decisions: 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.

12. 12 Exemption 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

13. 13 LISTED ACTIVITIES Basic Assessment (GN No. R. 386) Basic Assessment (GN No. R. 386) – 25 activities (55 activities in total) Scoping & EIA (GN No. R. 387) Scoping & EIA (GN No. R. 387) – 10 activities (29 activities in total)

14. 14 NEMA EIA REGULATIONS & THE CULTIVATION OF VIRGIN SOIL Basic Assessment (GN No. R. 386) 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).

15. 15 NEMA EIA REGS & THE CULTIVATION OF VIRGIN SOIL (Continue) Basic Assessment (GN No. R. 386) 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.

16. 16 NEMA EIA REGS & THE CULTIVATION OF VIRGIN SOIL (Continue) Scoping & EIA (GN No. R. 387) 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.

17. 17 CARA & THE CULTIVATION OF VIRGIN SOIL The Minister may prescribe control measures that may relate to the cultivation of virgin soil - S6(1) & (2) The Minister may prescribe control measures that may relate to the cultivation of virgin soil - S6(1) & (2) CARA Regulations (GN No. R. 1048) 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)

18. 18 CARA & THE CULTIVATION OF VIRGIN SOIL (Continue) CARA Regulations (GN No. R. 1048) 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)

19. 19 STEPS TO BE TAKEN ito NEM Principles Anticipate, prevent, minimise & remedy: 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 Do not exceed the level beyond which the integrity of renewable resources & ecosystems are jeopardised Apply a risk-averse & cautious approach Apply a risk-averse & cautious approach

20. 20 NEMA EIA REGS & CARA Overlap between 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) 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. Actual or potential conflicts of interest between organs of state should be resolved through conflict resolution procedures. - S4(m)

21. 21 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. 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

22. 22 “Agri MOU” improved communication & cooperation improved communication & cooperation joint site visits joint site visits same information same information same procedure (PP) same procedure (PP) conflict avoidance & resolution conflict avoidance & resolution integrated decision-making integrated decision-making

23. 23 GUIDELINES, WEBSITE & HELPDESK DEA&DP Guidelines on: DEA&DP Guidelines on: –Transitional Arrangements –Public Participation –Alternatives –Exemptions –Appeals –Interpretation of the Listed Activities DEA&DP's website DEA&DP's website http://www.capegateway.gov.za/eng/yourgovernment/gsc/406 DEA&DP NEMA EIA Helpdesk DEA&DP NEMA EIA Helpdesk –Tel. (021) 483 4098 –Email: EIAINFO@pgwc.gov.za EIAINFO@pgwc.gov.za

24. 24 Thank you. Questions?