Developmental activities inevitably interact with the environment. Their potential environmental impact must be authorised subject to investigation, assessment, and consultation with interested and affected parties.
The law in South Africa requires an environmental authorisation where a “listed activity” is undertaken. These listed activities are contained in three different listing notices published under the National Environmental Management Act, 1998 (“NEMA”), and the NEMA Environmental Impact Assessment Regulations, 2014 (“EIA Regulations”).
What do you need to know to prepare, evaluate, submit and process your application? And what will form part of the considerations and decision applications for environmental authorisations for the commencement of developmental activities?
Sitef & Co. is a South African law firm with proficiency and experience in mining, environmental, energy, and corporate law. We provide deep expertise and a comprehensive understanding of the intricacies of the industries we serve. We want to help guide your business through the correct process when wading through the sometimes complex waters of environmental authorisation.
Integrated Procedures and Public Participation
The main objectives of an environmental authorisation is to integrate the management of impacts to the environment and to human life and to ensure sustainable development.
These objectives require the participation of, and consultation with, the variety of interested and affected parties who would feel the impact of the social, economic, and ecological effects of developmental activities.
The environmental authorisation process requires the applicant to provide a description of the location of the development footprint of the activity and a plan which locates the proposed activity or activities applied for at an appropriate scale, according to Regulation 16(1)(b)(vi) and (vii) of the EIA Regulations.
An application for environmental authorisation must comply with the following general steps:
#1 Screening
- Completion of the relevant application form obtained from the relevant competent authority (Regulation 16(1)(a) of the EIA Regulations). An electronic version of the relevant application form is obtainable from the official website of the Department of Forestry, Fisheries and the Environment;
- Identification of the developmental activity applied for in the abovementioned Listing Notices and competent authorities identified to determine the appropriate investigative, assessment and communication procedure in accordance with the EIA Regulations.
#2 Specialist Study
The appropriate procedure for a Listed Activity will either require the submission of a basic assessment report (“BAR”) or a scoping report as determined and classified by the EIA Regulations and further conducted or prepared by an environmental assessment practitioner (“EAP”).
The application form for an EA specifies that the EAP must decide and advise, in the EAP’s professional opinion, if the contemplated developmental activities require compiling a BAR or a scoping report.
If an activity requires a BAR, the submission must happen within 90 days of receipt of the application by the competent authority, in line with Regulation 19(1)(a) of the EIA Regulations.
The BAR must contain information set out in Appendix 1 of the EIA Regulations. This includes an Environmental Management Program (“EMPr”) containing information set out in Appendix 4 of the EIA Regulations, which may be combined with a closure plan in the case of a closure as contemplated in Appendix 5 of the EIA Regulations.
The BAR must also include a specialist report containing information set out in Appendix 6 of the EIA Regulations.
If the application is for a mining title, the BAR must be accompanied by plans, a repo. These have been subjected to a public participation process of at least 30 days reflecting comments received from the public and any competent authority.
The competent authority must, within 107 days of receipt of the BAR and the relevant documents, fully or partially grant, or refuse the EA application, according to Regulation 20(1) of the EIA Regulations.
If an activity requires a scoping report, the scoping report must be submitted within 44 days of the competent authority’s receipt of the application. It must contain information set out in Appendix 2 of the EIA Regulations, have been subjected to a public participation process of at least 30 days, and reflect comments received from the public and the competent authority, in line with Regulation 21(1) of the EIA Regulations.
The competent authority must accept a scoping report, with or without conditions, within 43 days of receipt and advise the applicant to proceed or continue with the tasks contemplated in the plan of study for the environmental impact assessment or refuse the environmental authorisation, in line with Regulation 22 of the EIA Regulations.
The applicant must, within 106 days of the acceptance of the scoping report, submit to the competent authority:
- An environmental impact assessment report inclusive of any specialist reports and an EMPr
- A closure plan in the case of a closure activity and where the application is a mining title application, the plans, report and calculations contemplated in the Financial Provisioning Regulations. These must have been subjected to a public participation process of at least 30 days, reflecting the incorporation of comments received, including any comments of the competent authority, according to Regulation 23(1) of the EIA Regulations.
The competent authority must, within 107 days of receipt of the environmental impact assessment report, grant the environmental authorisation in respect of all or part of the activity applied for; or refuse the environmental authorisation, under Regulation 24(1) of the EIA Regulations.
The appointed EAP and/or environmental specialist(s) must declare any conflicts of interest to ensure objectivity in their evaluations and must have the relevant expertise, including knowledge of the criteria of law and applicable guidelines published and utilised by the competent authority in evaluating EA applications.
The EAP must disclose to the proponent or applicant the registered potentially interested and affected parties. The information submitted or to be submitted for the purposes of the application must be true and correct.
#3 Competent Authority Review
The NEMA pricing schedule is based on the relevance of the facts surrounding an application. Thus, the pricing of an environmental authorisation application ranges from R2 000 to R20 000 and requires proof of payment.
In the instance of a mining title application, the relevant payment must be made along with the mining title application on the SAMRAD digital system.
The EIA Regulations draw attention to the mandatory requirements of sections 24(4), (O), and (J) of the NEMA regarding the criteria to be considered by competent authorities when considering applications and the consultation requirements.
#4 Competent Authority Decision Making
The purpose and aim of EIA evaluation require the proposed development(s) to be socially, environmentally, and economically sustainable.
The principle of sustainable development enables the competent authority to impose conditions and/or obligations on the applicant(s) that promote the duty of care to prevent detrimental impacts caused by the developmental activity.
Where the negative impact cannot be avoided altogether, the purpose and aim of EIA evaluation is to ensure that any adverse environmental impacts are identified, minimised and remedied. Any uncertainty on the nature and extent of a detrimental impact occurring will favour environmental protection.
Environmental authorisation procedures can also identify alternatives which are less limiting to competing interests. A grant of authorisation on an alternative site must be regarded as being applied for, consulted on, and its impacts investigated. These alternatives include the option not to implement the development.
Partner With the Experts at Sitef & Co.
Specialist legal expertise remains valuable in these procedures to coordinate the representation of your interests during a comprehensive compliance the different legislative requirements of environmental authorisation.
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