Comments on the National Environmental Management: Integrated Coastal Management Amendment Bill Adv Gary Birch 23 July 2013

S1 Definitions ‘Estuary’ The criteria listed in (a)-(c) of the definition are not necessarily mutually exclusive of one another. It is therefore suggested that “or” is more appropriate to use than “and”. ‘‘ ‘estuary’ means a body of surface water— (a) [that is part of a water course] that is permanently or periodically open to the sea; (b) in which a rise and fall of the water level as a result of the tides is measurable at spring tides when the [water course] body of surface water is open to the sea; [or] and (c) in respect of which the salinity is [measurably] higher than fresh water as a result of the influence of the sea, and where there is a salinity gradient between the tidal reach and the mouth of the body of surface water;’’;

‘high-water mark’ Disagree with proposed deletion, since it provides a reference for what is regarded as abnormal or exceptional. As such, the suggested wording should be used. ‘‘ ‘high-water mark’ means the highest line reached by coastal waters, but excluding any line reached as a result of — (a) exceptional or abnormal [floods or storms that occur no more than once in ten years]weather or sea conditions that occur no more than once in ten years; or (b) an estuary being closed to the sea;’’;

Section 7 Composition of coastal public property Is it the intention of the Bill to include the seashore of estuaries into coastal public property? This can be problematic as the property boundaries of many landowners who own properties adjacent to estuaries extend to the middle of the estuary. This would result in those landowners losing ownership of such property below the high water mark.

Section 13 Access to coastal public property “No fee may be charged for access to coastal public property without the approval of the Minister, unless otherwise provided for in this Act.” This is to allow for the proposed Public Launch Site and Off-road Vehicle regulations to permit fees to be charged.

Section 13 Section 13(3)(d) “The provisions of paragraph (a) shall not apply to fees for the use of facilities or activities which are located on or in coastal public property.’’; and The provisions of paragraph (a) shall not apply to fees for the use of facilities or activities that are not considered facilities or activities for the purpose of obtaining access to coastal public property[which are located on or in coastal public property].’’; and

Section 13(5)(a) The proposed amendment implies that fees, including fees higher than the prescribed maximum without making an application in terms of section 13(3)(c), can be charged by the manager of a site if a section 65 permit has been issued. Therefore, if the section 65 permit does not expressly state that no fees may be charged, then this would permit fees to be charged, including fees higher than the prescribed maximum.

Section 14 Position of high-water mark The proposed amendment has implications for the movement of the high-water mark and its effects on property rights, particularly with respect to erosion and accretion. In essence, the effect of the amendments are that when someone's property is eroded it immediately ceases to be their property and when accretion occurs they gain ownership of that portion. Our concern with regard to this amendment was that it becomes difficult to enforce. For this reason is was suggested that the reference point of a period of three years from which to determine when this provision may be enforced be retained.

Section 14(6)(a) The proposed amendment is not supported as it is not in line with sections 6A (Purpose of coastal public property) and 7 (Composition of coastal public property). Private property should not be extended as a result of accretion. Coastal public property is inalienable. As such, coastal public property cannot be lost or converted to any other designation.

Section 15 Measures affecting erosion and accretion ‘‘(2) No person may construct, maintain or extend any structure, or take other measures on coastal public property to prevent or promote erosion or accretion of the seashore except as provided for in this Act, or any other law.’’. ‘‘(2) No person may construct, maintain or extend any structure, or take other measures on coastal public property to prevent or promote erosion or accretion of the seashore except as provided for in this Act and any other law.’’. The word ‘or’ implies that if another law permits the construction of a structure on coastal public property (e.g. a municipal bylaw) then the NEM:ICM Act doesn’t need to be complied with.

Section 59 Coastal protection notice and coastal access notice Subsection (1) has been changed to include the MEC but this has not been similarly done for the rest of the section. Suggestion: make the necessary changes to the other subsections.

Section 63 (1)(f) Environmental authorisations for coastal activities The proposal to delete section 63(1)(f) is not supported. Section 63(1) provides that: “Where an environmental authorisation in terms of Chapter 5 of the National Environmental Management Act is required for coastal activities, the competent authority must take into account all relevant factors, including - (f) the likely impact of the proposed activity on the coastal environment, including the cumulative effect of its impact together with those of existing activities;” It is submitted that the cumulative effect of a proposed activity must be taken into account whilst deliberating whether Environmental Authorisation should be granted.

Section 63 Consider making section 63 applicable to all authorisations or decisions in the coastal zone and not only environmental authorisations under NEMA.

Section 66 Terms of coastal leases and coastal concessions Proposed amendment in the Bill: 66. [(1)] A coastal [lease or coastal concession] use permit— (a) must be awarded for a fixed period of time [of not more than 20 years], but may be renewed once, whereafter a new application must be made in terms of section 65(3) and (4); We are not in agreement with deleting the reference to the maximum time period. If the time period is problematic, rather consider increasing it to a more appropriate specified maximum time period.

Section 96 Unlawful structures on coastal public property There is no requirement for a person who unlawfully constructed a building or other structure on coastal public property to notify the relevant authorities thereof. “(1) Subject to the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act No. 19 of 1998), and subsection (4), a person who, before this Act took effect, had unlawfully constructed a building or other structure on coastal public property or who, when this Act took effect, occupied a building or other structure unlawfully built on coastal public property must, within 12 months of the commencement of this [Act] section, notify the Minister and relevant MEC thereof and either—”

Section 96(1)(b) There is no requirement for a person who unlawfully constructed a building or other structure on coastal public property to notify the authorities after rectification has taken place. “(b) demolish the building or structure and as far as reasonably possible, restore the site to its condition before the building or other structure was built and supply the relevant authorities with reasonable proof thereof.”

General comment Section 24L of NEMA states “A competent authority empowered under Chapter 5 to issue an environmental authorisation in respect of a listed activity or specified activity may regard such authorisation as a sufficient basis for the granting or refusing of an authorisation, a permit or a licence under a specific environmental management Act if that specific environmental management Act is also administered by that competent authority.” A similar clause – with the necessary changes – could be inserted in the ICM Act to allow e.g. a process followed for obtaining environmental authorisation to be used (even if not by the same competent authority) to base a decision for a coastal discharge permit.

Thank you