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The utilization of the mitigation hierarchy during an Environmental Impact Assessment (EIA) process, whether it be a Basic Assessment Report or a Specialist Assessment is a requirement in terms of the National Environmental Management Act (Act 107 of 1998) (NEMA) and the EIA Regulations (GN 326 of 2017). In terms of Chapter 1 of the EIA regulations, the purpose thereof ‘is to regulate the procedure and criteria as contemplated in Chapter 5 of the Act [NEMA] relating to the preparation, evaluation, submission, processing and consideration of, and decision on, applications for environmental authorisations for the commencement of activities, subjected to environmental impact assessment, in order to avoid or mitigate detrimental impacts on the environment….’. Further to this, GN 891 of 2014, which provides guidance on the ‘need and desirability’ of a proposed project in terms of the EIA regulations, stipulates that it is essential that the tiers in the hierarchy are followed in the identification of mitigation measures. For instance, it is not acceptable to not explore alternatives relating to potential avoidance of impacts and only considering mitigation measures which minimise, mitigate, or rehabilitate. In this regard, the Environmental Assessment Practitioner (EAP) or specialist must provide a comprehensive assessment of potential impacts to the receiving environment. Subsequently, the EAP or specialist must provide mitigation measures which align with the hierarchy which firstly aim to avoid environmental impacts. Where mitigation measures relating to avoidance are not feasible or possible, the EAP or specialist must provide mitigation measures which minimise impacts. Where these are not possible, the EAP or specialist must provide rehabilitation measures. However, it is imperative that the EAP or specialist provides evidence within the project specific report that cognisance has been given to mitigation measures in terms of each tier of the mitigation hierarchy. The competent authority reviewing the project specific report will scrutinise whether each tier of the mitigation hierarchy has been considered. Following the implementation of each tier, if the EAP or specialist determines that there are residual negative impacts, then an offset may be applicable, However, this is a complex process and is guided by the newly gazetted National Biodiversity Guidelines (GN 3569 of 2023).

According to the National Biodiversity Guidelines, a biodiversity offset is required when a proposed activity is likely to have a residual negative impact of a medium or high significance. The guidelines indicate that potential offset sites would need to be identified and protected in perpetuity. This essentially means that a developer or applicant would either need to purchase the identified offset site or enter into a biodiversity stewardship agreement with the owners of the land (Department of Forestry, Fisheries and the Environment, 2023). It is therefore essential that EAP or specialist rigorously applies the mitigation hierarchy during the EIA process prior to concluding that an offset may be required. However, the final decision in this regard remains with the case officer from the relevant competent authority.

References
Department of Environmental Affairs (South Africa). 2014. Integrated Environmental Management Guideline Series 9 Guideline on Need and Desirability in terms of the Environmental Impact Assessment Regulations. (Notice 891). Government Gazette, 38108: 3, 20 October 2014.

Department of Environmental Affairs (South Africa). 2017. National Environmental Management Act, 1998 (Act No. 107 of 1998) Amendments to the Environmental Impact Assessment Regulations, 2014. (Notice 362). Government Gazette, 40772: 211, 07 April 2017.

Department of Forestry, Fisheries and the Environment (South Africa). 2023. National Environmental Management Act, 1998 (Act No. 107 of 1998) The National Biodiversity Guidelines. (Notice 3569). Government Gazette, 48841: 77, 23 June 2023.

Republic of South Africa. 1998. National Environmental Management Act 1998. (Notice 19519). Government Gazette, 19519: 2, 27 November 1998.