NEMA EIA regulations: draft guidelines, forms, transitional arrangements and capacity building workshops ...

NEMA EIA REGULATIONS: DRAFT GUIDELINES, FORMS, TRANSITIONAL ARRANGEMENTS AND CAPACITY BUILDING WORKSHOPS.

On 21 April 2006 the Minister of Environmental Affairs and Tourism promulgated regulations in terms of Chapter 5 of the National Environmental Management Act, 1998 (Act No. 107 of 1998) (“NEMA”) (Government Notice No. R. 385, R. 386, and R. 387 in Government Gazette No. 28753 of 21 April 2006 refer). The regulations replace the environmental impact assessment (“EIA”) regulations that were promulgated in terms of the Environment Conservation Act, 1989 (Act No. 73 of 1989) in 1997 and also introduces new provisions regarding environmental impact assessments. The NEMA EIA regulations came into effect on 3 July 2006 (Government Notice No. R. 612, R. 613, R. 614, R. 615, and R. 616 in Government Gazette No. 28938 of 23 June 2006 refer).

Availability of draft guidelines:

The Department has developed a series of guidelines and information documents (NEMA Environmental Impact Assessment Regulations Guideline and Information Document Series) that provides information and guidance for applicants, authorities and interested and affected parties (“I&APs”) on the procedures to be followed. The following guidelines are already available:

· Guideline on Transitional Arrangements
· Guideline on Alternatives
· Guideline on Public Participation
· Guideline on Alternatives
· Guideline on Appeals
· Guideline on Exemption Applications

These guidelines are intended to assist in the capacitating and understanding of all involved in the process and to facilitate the transition from procedures in terms of applications received by the Department under the Environment Conservation Act, 1989 (Act No. 73 of 1989) (“ECA”) to the procedures in terms of the NEMA EIA regulations. Included in the guideline and information series is a Guideline on Transitional Arrangements developed with respect to Chapter 9 of the NEMA EIA Regulations. This guideline specifically addresses the transitional arrangements for pending applications received by the Department under ECA and provides guidance on the procedures and consideration of such applications.

Although the Department is confident that the guidelines will provide guidance to all the different stakeholders, it however remains the task of applicants and their environmental assessment practitioners (“EAPs”) to familiarize themselves with the new procedures and requirements of the NEMA EIA regulations, and specifically the transitional arrangements. The Department therefore expects applicants (together with their consultants) to apply their own minds to the new requirements.

The lists of activities identified in terms of Sections 24 and 24D of the National Environmental Management Act, 1998 (Government Notice No. R. 386, and R. 387 in Government Gazette No. 28753 of 21 April 2006) requiring either a Basic Assessment process or a Scoping and EIA process are very prescriptive in their identification of which activities would require an environmental authorization. These lists when used in conjunction with the NEMA Environmental Impact Assessment Regulations Guideline and Information Document Series and the Department’s Application Forms and Templates (see below) should provide more than adequate assistance to those either intending to determine whether a potential development will require an environmental authorization or, intending to submit an application to the Department. For clarity purposes and based on the needs of environmental consultancies, EAPs and others, the Department is currently finalizing a detailed interpretation guideline on the lists of activities identified in Government Notice R. 386, and R. 387. The Department will make this guideline available shortly to provide further assistance in this regard.

Please note that all the draft guidelines are currently available for comment by all interested and affected parties. All the relevant draft guidelines are available and can be downloaded from the Department's website .

Notwithstanding this, the Department will entertain significant/noteworthy enquiries pertaining to the NEMA EIA Regulations and these must be directed to the Department’s NEMA EIA Helpdesk (contactable on: Tel. (021) 483 4098; email: EIAINFO@pgwc.gov.za ). However, it must be noted that the function of this service is not intended to ‘do the work’ for environmental consultancies nor replace the requirements of EAPs as determined by Regulation 18 of the NEMA EIA Regulations (General Requirements for EAPs) and should therefore not be abused.

Application forms and templates:

The Department has also developed a number of forms in terms of the NEMA EIA Regulations. The following forms are already available:

· Notice of Intent to Apply Form
· Application Form
· Basic Assessment Report Form
· Notice of Intent to Appeal Form
· Appeal Form

The above forms can be downloaded from the Department's website.

It is important to note that the application form is relevant for both the Basic Assessment and the Scoping/EIA process. It is also important to note that anyone who intends to submit a Basic Assessment Report, must submit the notice of intend to apply at least 14 days before initiating the Basic Assessment process. This is an essential step to provide this Department with information to advise the EAP or applicant on the relevant matters, as well as providing a departmental reference number that must be quoted on all information (by the EAP, applicant or interested and affected parties) submitted to this Department. Note that forms that contain inadequate information will be rejected. All documentation submitted to the Department that does not contain the departmental reference number, will be rejected or disregarded.

Transitional arrangements:

Seven different scenarios are discussed in the Department’s Guideline on Transitional Arrangements. Please however specifically take note of the following two scenarios:

· Where an application submitted in terms of the previous EIA regulations (in terms of the Environment Conservation Act, 1989) (an “ECA application”), is pending and the same components of the development (that were listed under ECA) also constitute a listed activity under the new NEMA EIA regulations, the following must be noted: According to the NEMA EIA Regulations an application for authorisation of an activity submitted in terms of the previous regulations and which is pending when the NEMA EIA Regulations take effect, will be dispensed with in terms of the previous regulations as if the previous regulations were not repealed (Regulation 84(1)). According to the NEMA EIA Regulations authorisations issued for applications that were pending in terms of the previous regulations when the NEMA EIA Regulations take effect, will be regarded to be environmental authorisations issued in terms of the NEMA EIA Regulations (Regulation 84(3)). In accordance with the Regulations anything done in terms of the previous regulations and which can be done in terms of a provision of the NEMA EIA Regulations will be regarded as having been done in terms of the provision of the NEMA EIA Regulations (Regulation 83(1)). Therefore where an ECA application is pending and the same components of the development that were listed under ECA are now also listed under the NEMA EIA regulations, and the impacts associated with the entire development (and therefore also the impacts associated with the activities in terms of the NEMA EIA Regulations) were considered in the EIA process undertaken in terms of the ECA, a new application in terms of NEMA will not be required.

· It must also be noted that in any instance where development activities that are regarded as a listed activity in terms of the NEMA EIA regulations, that have not commenced before 3 July 2006 (regardless if an application has been submitted to other relevant authorities in terms of other relevant legislation), will require written environmental authorisation in terms of the NEMA EIA Regulations from this Department before such activities can commence.

Capacity building workshops:

Also note that the Department will be holding six capacity building workshops at different venues within the Western Cape shortly. The purpose of this capacity building initiative is to familiarise external stakeholders with the provisions of the new regulations and its implications so that stakeholders can participate meaningfully in the new EIA process. It is also aimed at developing capacity amongst municipalities, provincial and national government departments in the Western Cape, environmental and planning consultants, NGO groups, business and industry, as well as members of the public. The dates and venues for these capacity building workshops will be advertised in the press and on the Department’s website shortly.