Transcript Slide 1

BCB 341: Principles of
Conservation Biology
NEMA, CARA, AND EIA’S IN AGRICULTURE
Gerhard Gerber (DEA&DP) and Jay Reeler
ENVIRONMENTAL LEGISLATION
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South Africa has a number of different sets of legislation that
are designed to protect the environment
There is a certain amount of overlap between these different
pieces of legislation
In any development outside of particular zoned areas these
laws regulate the process of development
Can be rather complicated to navigate especially for nonprofessionals
They are enforced to varying degrees, and have different
punishments for transgression
We will consider these acts in light of their impact on
development, and in particular agriculture, because they are
far too complicated to review in their entirety
CARA
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The conservation of Agricultural Resources Act (1983)
Enacted by Dept of Agriculture to conserve agricultural resources through:
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Maintaining production potential of the land
Combating & preventing erosion
Preventing the weakening/destruction of water sources
Protecting vegetation
Combating weeds & invader plants
Clearly has a large remit, and is a large piece of legislation
Originally had 14 regulations covering issues ranging from maximum slope
for cultivation and proximity to rivers to maximum stocking rates and
obligations for restoration of farm-damaged land
Regulations 15 & 16 added in 2001 to cover the problems of invasive
species in more detail, and to regulate reduction in bush encroachment
from non-invasive indigenous bush
Penalty for non-compliance: R5000 or imprisonment of up to 2 years (or
both) for first conviction; doubled on second and subsequent convictions
ENVIRONMENT CONSERVATION ACT
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Promulgated in 1989 to cover non-agricultural aspects of
environment.
Amended in 1997 to include regulations for Environmental
Impact Assessments (EIA) for certain activities
Like CARA, regulates against the cultivation of virgin soil
Complicated process, and very long
EIA regulations now superseded by EIA qualification of NEMA
Fine structure varies, depending on offense, but again is not
really large enough to engender fear of real prosecution
NEMA
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National Environment Management Act
Promulgated in 1998, amended in 2002 and again in
2006 to include updated EIA regulations, which placed
the ECT EIA regulations
Much more specific about what is required of all parties
Recent legislation dictates timetables for government
responses in order to streamline the process
Large fines and possible imprisonment for transgression
NEED FOR NEW EIA REGS (NATIONALLY)
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The ECA EIA Regulations did not provide/accommodate:
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quick processing;
flexibility to facilitate efficient administration;
amendments of authorisations;
transfer of authorisations;
authorisation/refusal of all or part of an activity
timeframes
coordination with other authorities
Old regs also:
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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
NEMA PRINCIPLES
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Anticipate, prevent, minimise & remedy:
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disturbance of ecosystem
loss of biological diversity
degradation of the environment
negative impacts on the environment & on
people's environmental rights
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Do not exceed the level beyond which the
integrity of renewable resources & ecosystems
are jeopardised
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Apply a risk-averse & cautious approach
BASIC ASSESSMENT OR SCOPING & EIA?
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BASIC ASSESSMENT
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Activities identified ito GN No. R. 386
SCOPING & EIA
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Activities indentified ito GN No. R. 387
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Advised by DEA&DP
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Permission granted to follow Scoping & EIA
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application is for two or more activities and Scoping
must be applied in respect of any of the activities
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NEMA EIA REGULATIONS &
THE CULTIVATION OF VIRGIN SOIL
Basic Assessment (GN No. R. 386)
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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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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.
Scoping & EIA (GN No. R. 387)
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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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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)
Check application (R. 14)
14 days
Reject Basic Assessment Report
(R. 25)
• Submit additional information
• Specialist studies
• Alternatives
(R. 25)
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
• Landowner’s consent
• Indicate if exemption will be applied
for (part of application from)
Check application (R. 14)
14 days
Acknowledge receipt (R. 14)
Scoping (R. 28-29)
• Public participation
• Scoping Report
• Public comment on SR (R. 58)
Submit (R. 30)
• Scoping Report
• Plan of Study for EIA
Reject SR & / or
POSEIA (R. 31)
Request amendments (R. 31)
Accept SR & POSEIA
EIA (R.32)
• Prepare EIA report & draft EMP
Submit EIA Report & draft EMP
60 days
Authority response (R. 35)
• Reject
• Amend
• Specialist review
• Accept
45 days
30 days
45 days
Grant / refuse authorisation (R. 36)
Competent authorities must strive to meet timeframes (R. 9)
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CARA & THE CULTIVATION
OF VIRGIN SOIL
NEMA:
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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)
The Minister may prescribe control measures that may relate to the
cultivation of virgin soil
- S6(1) & (2)
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CARA Regulations (GN No. R. 1048)
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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)
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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NEMA EIA REGS & CARA
Overlap between NEMA EIA Regs & CARA
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There must be intergovernmental co-ordination &
harmonisation of policies, legislation & actions relating to
the environment.
- S2(4)(l)
Actual or potential conflicts of interest between organs of
state should be resolved through conflict resolution
procedures. - S2(4)(m)
CARA Regulation 6:
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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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“AGRICULTURAL MOU”
New MOU for coordinating procedural & information requirements
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Notice to all the authorities at the same time
Submit applications at the same time
Joint site visit
Authorities agree on the procedure to be followed (e.g. public participation)
Authorities agree on the information to be submitted (e.g. botanical study)
Conflict avoidance & resolution
Integrated decision-making
Amendments to NEMA & EIA Regs (Sept’07)
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Amendments to listed activities
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“cultivation of virgin soil where the total area to be transformed is
bigger than 5 hectares”
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“virgin soil means land which has at no time during the
preceding ten years been cultivated”
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Additional provisions ito Regulation 6 Agreements
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“may consider any aspect of the authorization process
undertaken by any other organ of state”
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IMPACTS OF THE NEW EIA REGULATIONS
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One year on, some interesting things have been observed
Drop in the number of applications for EIA applications under CARA
for cultivation of new soil
Are people no longer ploughing new areas?
More likely that the process has become too complicated for them,
and so they are going ahead without planning permission
Only 5 officers monitoring the Western Cape, so no complete picture
of new cultivations has been seen
Project being undertaken to compare satellite imagery year on year in
order to identify new cultivation
Fine for unlicensed cultivation: up to R5 million/ ten years in jail or
BOTH
Despite education process and MOU signed with farmers, there is
probably no understanding of the risks, as well as of the process
OTHER ISSUES
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Possible conflicts of interest:
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EIA consultants are contracted by the developer – can’t be dictated to
regarding finding, but they may not be hired the next time if they find
against development
EIA consultants are often the only restoration experts – in their interests
for offsets to be considered as alternatives
If the developer is local government there can be pressure for approval
If alternatives are not specified there is increased pressure to find in
favour of the development rather than provide a “no-go” option
Poor understanding in local planning depts and DEA&DP of the
environmental principles – town planners, not environmentalists
Few EAP (Env. Assessment Practitioners) with a focus on agriculture
– much more focussed on urban development
.... And golfing estates!
SUMMARY
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Environmental legislation is essential for managing the environment
NEMA governs all new developments of virgin areas, or within
sensitive or unzoned habitats, as well as general laws for protection
of land
Two assessment processes: basic assessment, and full EIA and
scoping
Alternatives for development on a specific site need to be submitted,
and exemptions must be submitted separately depending on the
process undertaken
CARA governs protection and management of agricultural land
Meshing legislation is complicated, and often it is landowners that
are left to deal with the consequences
Conflicts of interest and loopholes are readily exploited and need to
be guarded against