Processes for Environmental Impact Assessments (EIA) and Basic Assessments (BA)

South Africa is a developing country with the goal of improving economic growth and infrastructure. The 1996 Constitution of South Africa presented a new approach to governance, management, and environmental law by giving the right to an environment (provided for in Section 24) that is harmless to the well-being or health (King et al., 2018:4) of citizens. The Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) places people at the focal point of environmental management (DEA, 2014b:65).

 

The National Environmental Management Act, 107 of 1998 (NEMA) is the key legislation in South Africa governing environmental authorisation which is managed by the Department of Environmental Affairs at local, provincial and national levels of the government (Jikijela, 2013). NEMA is an environmental legislation framework that creates an assisting environment for the promulgation and adoption of a variety of environmental laws which concentrate the regulatory efforts on a particular environmental sector or medium (King et al., 2018:38).

 

The listed activities in Section 24 of NEMA are associated with the regulations published in Government Notices R327, R325 and R324 (as amended) in Government Gazette 40772. The 2014 EIA Regulations were amended on 7 April 2017, when the GNR 326 NEMA EIA Regulations came into effect. There are two categories of prescribed processes namely the Scoping & Environmental Impact Report process together with the Basic Assessment process (Jikijela, 2013:22).

The applicable Government Notices include the listed activities of the NEMA EIA Regulations that instruct if a Basic Assessment (BA) or Scoping and Environmental Impact Assessment (S&EIA) process should be carried out. There are three Listing Notices that list activities regarding Section 24 (2) (a) of NEMA.

The NEMA, 2014 regulations specify clear timeframes for the EAP, public and the Competent Authority. Both the S&EIA and BA have different timeframes linked to the process (Botha, 2017:41).

 

Environmental Impact Assessments (EIAs)

 

The National Environmental Management Act (Act 107 of 1998) and Therivel et al., (2005) define Environmental Impact Assessment (EIA) as a systematic process that recognises and analyses the environmental concerns and impacts due to development activities and evaluate the impacts before an authorisation is considered. The main function of an EIA is to inform the decision-making process by clearly presenting adequate information (DEAT, 2004:10). It is agreed in the literature that the substantive purpose of EIA is sustainable development (Morrison-Saunders & Retief, 2012; Therivel, Glasson, & Chadwick, 2005:9). The objective of an EIA is to minimise or if possible avoid negative environmental impacts rather than mitigate them from the beginning of a project (DEA, 2015:7; Madlome, 2016:6).

 

This process would take 300 days, but if the report needs to be corrected and re-distributed, 50 days will be provided additionally to do so, making the duration of the process 350 days (Botha, 2017:24). The final S&EIR must be presented between 44 days and 106 days regardless (Botha, 2017:26).

 

There are detailed provisions for steps and different phases in an EIA procedure including scoping, screening of important concerns which must be addressed, the preparation and research of environmental impact statements, review processes and public consultation, decision-making along with implementation (Morrison-Saunders and Retief, 2012:37).

 

EIA is regarded as a Command and Control tool as it implements regulations and legislation that must be met by an EIA process.

 

Sections 23 and 24 of the EIA regulations gives form to the framework in which the procedures are implemented. The aim of NEMA is providing co-operative governance by creating principles for decision-making on matters which affect the environment.

 

According to section 23 of the EIA regulations there are considerations of environmental impact assessment report and environmental management program.

 

23 (1) The applicant must within 106 days of the acceptance of the scoping report submit to the competent authority—

 

(a) an environmental impact assessment report inclusive of any specialist reports, and an EMPr, which must have been subjected to a public participation process of at least 30 days and which reflects the incorporation of comments received, including any comments of the competent authority; or

 

(b) a notification in writing that the reports, and an EMPr, will be submitted within 156 days of receipt of the application by the competent authority, as significant changes have been made or significant new information has been added to the environmental impact assessment report or EMPr, which changes or information was not contained in the reports consulted on during the initial public participation process contemplated in sub-regulation (1)(a), and that the revised environmental impact assessment report or EMPr will be subjected to another public participation process of at least 30 days.

 

(2) In the event where sub-regulation (1)(b) applies, the environmental impact assessment report inclusive of specialist reports, and EMPr, which reflects the incorporation of comments received, including any comments of the competent authority, must be submitted to the competent authority within 156 days of  the acceptance of the scoping report by the competent authority.

 

(3) An environmental impact assessment report must contain all information set out in Appendix 3 to these Regulations or comply with a protocol or minimum information requirements relevant to the application as identified and by the Minister in a government notice and, where the application is for an environmental authorisation for prospecting, exploration, extraction of a mineral or petroleum resource, including primary processing or activities directly related thereto, the environmental impact assessment report must contain attachments that address the requirements as determined in the regulations, pertaining to the financial provision for the rehabilitation, closure and post closure of prospecting, exploration, mining or production operations, made in terms of the Act.

 

(4) An EMPr must contain all information set out in Appendix 4 to these Regulations or must be a generic EMPr relevant to the application as identified and by the Minister in a government notice and, where the application  +'( for an environmental authorisation is for prospecting, exploration, or extraction of a mineral or petroleum resource, including primary processing or activities directly related thereto, the EMPr must contain attachments that address the requirements as determined in the regulations, pertaining to the financial provision for the rehabilitation, closure and post closure of prospecting, exploration, mining or production operations, made in terms of the Act.

 

(5) A specialist report must contain all information set out in Appendix 6 to these Regulations or comply with a protocol or minimum information requirements relevant to the application as identified and by the Minister in a government notice.

 

The Environmental Impact Assessment Process (EIA Process)

 

The mandatory steps for conformity are defined in detail below.

 

Step 1: Initiation of a project

 

An applicant must appoint an EAP conforming to Regulation 12 of GN No R. 326 to conduct the application procedure for the EA (Botha, 2017:75; South Africa, 2017:224). As stated by Regulation 6 of GN No R. 326 the application should be accepted by the applicable CA for authorisation (South Africa, 2017:222).

 

An applicant must appoint an EAP conforming to Regulation 12 of GN No R. 326 to conduct the application procedure for the Environmental Authorisation (Botha, 2017:75; South Africa, 2017:224).

 

Step 2: Application submission to the CA

 

The EAP must complete and submit the form for application as stated in Regulation 16(1) (b) of GN No R. 326 with valid information to the CA before operating and managing a Scoping and EIA process (Botha, 2017:79; South Africa, 2017:227-228).

 

Step 3: Deliberation of the application

 

The CA needs to review the application according to Regulation 17 of GN No R. 326 together with a declaration of the receiving application in less than 10 days by acknowledging if the application is permitted and if it is rejected or accepted (South Africa, 2017:228-229).

 

Step 4: Conditions following the submission of an application

 

The Scoping report is composed, after the acknowledgment and submission of the application by the EAP and then passed on to ensure that the PP fulfilled the requirements as specified in Regulation 41 – 44 (Botha, 2017:79; South Africa, 2017:244-247). This report should consist of information specified in Appendix 2 of GN No R. 326 (South Africa, 2017:260-263).

 

Step 5: Submission of Scoping report to the CA

 

The Scoping report must be submitted to the CA after it was distributed for PP within 44 days following the submission of the application form (Botha, 2017:79). The report must contain the information specified in Appendix 2 of GN No R. 326 (Botha, 2017:79; South Africa, 2017:260-263).

 

Step 6: Contemplation of the Scoping report

 

According to Regulation 22 of GN No R. 326 the CA has 43 days after receipt of the report to review the content of the report to accept or decline the report in writing (Botha, 2017:79).  The process may move forward provided that the report is accepted or pursue with the responsibilities set out in the Plan of Study permitted, but a new application must be submitted if the report is rejected (Botha, 2017:79; South Africa, 2017:231-232).

 

Step 7: Environmental Impact Assessment Report

 

An Environmental Impact Report (EIR) should be arranged shortly after the approval of the scoping report (Botha, 2017:80). The EIA report should have the information specified in Appendix 3 of GN No R. 326. (Botha, 2017:80). According to Regulation 3 (8) and 41 to 44 of the GN No R. 326, the EIA report must be issued for PP no less than 30 days (South Africa, 2017:244-247). An Environmental Management Plan must be linked with an EIA report and must contain the necessary documentation that is required by Appendix 4 of GN. No. R. 326 (Botha, 2017:80; South Africa, 2017:269-270).

 

Step 8: EIA report submission to the CA

 

As stated by Regulation 23 (1), the final report must be issued to the CA after receiving the Scoping Report in under 106 days after the distribution for PP (South Africa, 2017:232-233).

 

Step 9: Contemplation and conclusion of the EIA report

 

The CA must contemplate, reject or accept the report after it has been issued within 107 days (Botha, 2017:80). The CA must recognise the receipt of the report in less than 10 days by written notification as set out in Regulation 3(6) (Botha, 2017:80; South Africa, 2017:220).

 

Step 10: Announcement of the decision

 

Regulation 25 and 4 (1) of GN No R. 326 requires written motives for the decision on the application after the CA has reached a conclusion within 5 days and inform the applicant of the result and notify the applicant of an appeal opposed to the outcome regarding the National Appeal Regulations, amended in 2017 (Botha, 2017:80; South Africa, 2017:233).

 

Step 11: I&APs informed by the applicant of a decision

 

Within 14 days of the decision, I&APs need to be informed about the decision through the application thereafter. The notification must contain the outcomes of the application, the motives regarding the decision and that “an appeal may be filed against the decision in terms of the National Appeal Regulations, amended in 2017” (Botha, 2017:81; South Africa, 2017:220-221).

 

The 2014 regulations (as amended in 2017) specifies timeframes for the CA and the EAP (Botha, 2017:22). The stipulated timeframes consist of maximum days for the submitting of the final reports to steer clear of lapsing of the application, maximum days for the recognition of reports and applications through the CA, prohibition of public holidays as well as the period between 15 December and 5 January, contemplation on the notification as well as the application of the conclusion by the applicant to I&APS (Botha, 2017:22). Specified timeframes were given by NEMA, 2014 Regulations for the CA as well as the submission of applications and reports by the EAP on the applicant’s behalf.

The EIA Process Timeframes

 

The Basic Assessment Process (BA Process)

 

The first applicable route is the Basic Assessment process as defined in Regulation 19 to 20 of GN No. R982, as revised by GN. No. R326 (Botha, 2017:75; South Africa, 2017:229-231). The BA process is used for smaller project activities and the impacts which are caused by these activities are mostly known and can usually be easily managed or mitigated. The BA process is typically shorter than and not as complicated as the S&EIR process (DEA, 2013).

 

The Basic Assessment process would take 197 days, but if the report needs to be corrected and re-distributed, 50 days will be given extra to do so, making the duration of the process 247 days (Botha, 2017:22).

 

Process

The mandatory steps for compliance are defined in detail below:

 

Step 1: Initiation of a project

 

An applicant must appoint an EAP conforming to Regulation 12 of GN No R. 326 to conduct the application procedure for the Environmental Authorisation (EA) (Botha, 2017:75; South Africa, 2017:224). As stated by Regulation 6 of GN No R. 326 the application should be accepted by the applicable CA for authorisation (South Africa, 2017:222).

 

Step 2: Application submission to the CA

 

As set out in Regulation 19(1)(b) of GN No R. 326 the EAP must complete and submit the form of the application with the applicable information before a basic assessment is submitted to the CA (South Africa, 2017:229).

 

Step 3: Consideration and checking of application

 

Regulation 17 and 18 of GN No R. 326 require the CA to review the application and declare the acknowledgment of the application in 10 days affirming if the application is permitted and if it is rejected or accepted (Botha, 2017:75; South Africa, 2017:228-229). 

 

Step 4: The Basic Assessment process

 

After the submission of the application, the Basic Assessment process will continue according to Regulation 19 (South Africa, 2017:229). Appendix 1 should be considered for the report which outlines the scope and objective or capacity of the Basic Assessment report (South Africa, 2017:259-259). According to Regulation 41 to 44 of GN No R. 326, the report should be issued as part of a public participation process (PPP) (South Africa, 2017:244-247). The PPP must be managed over a duration of at least 30 days (South Africa, 2017:220).

 

Step 5: Submitting the BAR to the CA

 

The final report must be submitted after confirming the PPP as directed in Regulations 41 to 44 (Botha, 2017:76). The CA must receive the final report within a timeframe of 90 days and must include the reports from the specialists, EMPR and the closure plan where applicable as specified in Regulation 19 (1) (Botha, 2017:76; South Africa, 2017:229). Written notice may be given if any significant changes were made which indicates that the final report will be submitted within 140 days of the receipt (Botha, 2017:76). In very special circumstances 50 days are added by the 90 days if substantive changes were made to the draft report. The reviewed report must have an additional PPP of 30 days, which leave 20 extra days if substantive changes were made (South Africa, 2017:229).

 

The BAR final report must be submitted after 90 days to avoid invalidate of the application under NEMA, 2017 Regulations (South Africa, 2017).

 

Step 6: Contemplation and conclusion of the application

 

The CA has to contemplate the application and BAR as stated in Regulation 20. The CA must then announce the result in 107 days of acknowledgment of the final BAR (Botha, 2017:76; South Africa, 2017:230).

 

Step 7: Announcement of the decision

 

Regulation 4 (1) of GN No R. 326 requires written reasons for the decision on the application after the CA has reached a conclusion within 5 days and notify the applicant of their choice that an appeal may be filed averse to the verdict concerning the National Appeal Regulations, amended in 2017 (Botha, 2017:76; South Africa, 2017:220). Regulation 3 of GN No. R. 326 provides set timeframes (South Africa, 2017:220).

 

Step 8: I&APs informed by the applicant of a decision

 

Within 14 days of the decision, the I&APs need to be informed of the decision after the submission of the report. The notification must contain the outcomes of the application, any motives regarding the result as well as an appeal that may be filed in disagreement with the conclusion regarding the National Appeal Regulations (Botha, 2017:76; South Africa, 2017:220-221).

 

The 90-day timeframe for submission of the final Basic Assessment report under the NEMA, 2017 Regulations, needs the project team to plan ahead before to the submission of the application. The application will lapse “if the final report is not submitted in the 90 days” timeframe which will lead to the proposal of a new application (Botha, 2017:77). Most works from the PPP, specialist studies and the drafting of reports are finalised preceding the application submission due to the restricted time available (Botha, 2017:77). The report is often issued before the official application process for a pre-application PPP to collect comments and anticipate any delays.

 

Before the submission of the application, the consultants must review the report to ensure that most of the concerns are addressed to reduce the possibility of the application being lapsed. This requires more time, resources and effort from the consultants before the application is submitted (Botha, 2017:22).

The BA Process Timeframes

The EIA and BA process have a crucial role in the conservation and protection of our national resources with the growing stress on economic development while allowing much-needed and responsible development (Sampson, 2007; Steenkamp, 2009).

 

Registered EAPs from Environmental Assurance (Pty) Ltd. (ENVASS) create detailed proposals for EIA and BA processes. If you require assistance please do not hesitate to contact Environmental Assurance (Pty) Ltd. (ENVASS) at info@envass.co.za or call us on 012 460 9768.