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Gerhard Gerber is the Director of Development Facilitation at the Department of Environmental Affairs and Development Planning.
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Red Tape Reduction Conference
Lagoon Beach Hotel, Milnerton, Cape Town 29 & 30 September 2014
EIA IN SOUTH AFRICA & THE WESTERN CAPE: FROM RED TAPE TO GREEN CARPET
Some EIA Application Stats
© Western Cape Government 2012 |
The number of applications received in terms of the ECA EIA
Regulations (i.e. between September 1997 & June 2006) by all
10 authorities totalled 49 795 with 7 632 received in the Western
Cape.
The number of applications received in terms of the NEMA EIA
Regulations (between July 2006 & July 2013) by all 10 authorities
totalled 23 836, with the 4 017 received in the Western Cape.
NUMBER OF EIAS UNDERTAKEN IN SA & WC
Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber 3
NUMBER OF EIA APPLICATIONS RECEIVED & FINALISED IN
THE WC (PAST 10 YEARS)
908
1758
1098
750 680
786
880
606 637 654 715
783
960
1569
1379
1013
1197
939
605 613
0
200
400
600
800
1000
1200
1400
1600
1800
2000
DbS
2004/05
DbS
2005/06
DbS
2006/07
DbS
2007/08
AR 2008/9 AR 2009/10AR 2010/11AR 2011/12AR 2012/13AR 2013/14
Received
Finalised
Avg Received
Avg Finalised
© Western Cape Government 2012 |
Across all 27 of the European Union’s member states:
• 34 000 screenings a year
• 16 000 EIAs a year
• Average cost per EIA is €62 000 (which equates to a range of
0.01% to 2.37% of the total project cost)
• Average duration of an EIA procedure is 11.3 months
(Collection of information and data to support the Impact Assessment
study of the review of the EIA Directive – Final Report, Sept 2010, Vanessa Foo)
EIAS IN OTHER COUNTRIES: EU
Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber 5
© Western Cape Government 2012 |
In the USA:
• Simpler Assessments usually has to be carried out within 3-months;
• More detailed Environmental Impact Statements usually has to be
completed with a maximum of 12 months.
In Canada:
• no timeframes for screenings or comprehensive studies.
• EA completion timelines are only set for Panel Reviews and for those
activities under Panel control. Timelines for Panels may extend up to 14.5
months.
(Quick Study of EIA Practices in some Asia‐Pacific Countries and Beyond Lessons for the
Philippines?, 2013, Peter King & Simon Olsen)
(Comparative Analysis of Impacts on Competitiveness of Environmental Assessment
Requirements, 2000, RIAS Inc. & Gartner Lee Limited)
EIAS IN OTHER COUNTRIES: USA & CANADA
Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber 6
© Western Cape Government 2012 |
PERCEPTIONS ON ENVIRONMENTAL IMPACT ASSESSMENT (EIA)
7 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
© Western Cape Government 2012 |
THERE IS A BIG DIFFERENCE BETWEEN UNNECESSARY
RED TAPE & DUE PROCESS
Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber 8
“None of us like to be regulated, but we all like the fact that our
neighbour is regulated.”
(Paul Farmer, CEO of the American Planning Association, 2014)
“…there are many situations in which regulations are very useful.
When we get back home from a day filled with red tape, we want to
be sure that the food on the dinner table is as safe as possible. We
look to government to enforce regulations so that we can be
confident that the products we buy, from cars to cough medicine,
are safe & meet essential quality standards.”(Counting the Cost of Red
Tape for business in South Africa, SBP Strategic partnerships for business
growth in Africa, June 2005)
Health & safety standards, property rights, contract laws, the right to
be heard (public participation), the right to a healthy environment,
etc. … these are all vital.
© Western Cape Government 2012 |
THERE IS A BIG DIFFERENCE BETWEEN UNNECESSARY
RED TAPE & DUE PROCESS (2)
“Regulations are made in an effort to solve social & political
problems or to achieve policy objectives that unregulated markets
or unregulated social structures may be unable to address.”
(Counting the Cost of Red Tape for business in South Africa, SBP Strategic
partnerships for business growth in Africa, June 2005)
What is “Red Tape”?
“An official rule, regulation or bureaucratic procedure/process/
system which is:
marked by excessive complexity & results in delays, inaction &
unnecessary cost, &
no longer effective in achieving the purpose for which it was
created, because the compliance burden exceeds the value of
its benefit.” (From Red Tape To Smart Tape: DTI Pilot Project in 12
Municipalities in SA & SMMEs, October 2011) Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber 9
© Western Cape Government 2012 |
EIA IS A MEANS TO AN END:
THE PURSUIT OF SUSTAINABLE DEVELOPMENT
10 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
“Environmental management must
place people and their needs at the
forefront of its concern, and serve their
physical, psychological,
developmental, cultural and social
interests equitably.”
(National Environmental Management Act)
(NEMA) (Act No. 107 of 1998)
© Western Cape Government 2012 |
EIA: INSTRUMENT TO PROGRESS FUNDAMENTAL RIGHTS
11 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
Section 24: Everyone has the right-
(a) to an environment that is not harmful to their
health or well-being; and
(b) to have the environment protected, for the
benefit of present and future generations, through
reasonable legislative and other measures that-
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development
and use of natural resources while promoting
justifiable economic and social development.
Environmental Right (SA Constitution 1996)
© Western Cape Government 2012 |
DESPITE OUR BEST EFFORTS
12 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
Unemployment remains high (2nd Q 2014 = 25.5%)
Poverty remains widespread & persists alongside affluent: Poverty headcount ratio = 50% (poverty line R3 864 per capita in 2000 Rand, i.e. R6 302 at time of survey)
WHILE
inequalities are growing (Gini Coefficient 0,74 in 2007) (WC = 0.69), &
SA’s life-supporting ecosystems continue to deteriorate at an alarming rate
After 20 yrs of democracy, 17 yrs of EIA’s & 13yrs of IDPs in SA
13
14
(2012)
© Western Cape Government 2012 |
EXAMPLE: WATER - DEMAND EXCEEDING SUPPLY
18 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber Reconciliation Strategy for the Western Cape Water Supply System (Oct 2013) 18
Water demand in the WC is growing
rapidly & the projections indicate that
by 2022 demand will exceed supply.
(Future Cape Contextual Report, May 2012)
© Western Cape Government 2012 |
SPATIAL & RESOURCE USE INEFFICIENCIES
HAVE SERIOUS IMPLICATIONS
20
Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
…spatial & resource inefficiencies have serious negative consequences for
the environment, but also for government finances (particularly municipal
finances), & for household livelihoods.
Municipalities battling to service
their increasing borrowing
Increasing Municipal Funding Gap
R 24 billion additional capital required over 10 years with major
funding shortfalls
Additional rates & tariff
increases of up to 4% p.a.
Low income households having
to pay up to 18% more for transport
33% average increase in CO2 emissions from transport
increased costs to households
contributing to poverty traps
(Municipal Financial Sustainability of Current Spatial Growth Patterns, 2013)
(Specialist Study to the PSDF 2014)
© Western Cape Government 2012 |
EIA: A MEANS TO AN END = SUSTAINABLE DEVELOPMENT
21 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
Great socio-economic needs
+
Limited resources
+
Degraded ecology
=
Need for responsible & well-informed decision making of how
to best use the limited resources for maximum socio-economic
benefit in the short & long term.
© Western Cape Government 2012 |
INTERNATIONAL EXAMPLE
USA: CATSKILL/DELAWARE WATERSHED
22 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
“By protecting the watershed at its source [original
costs = $1.5 billion], we avoid spending the
estimated $8 billion to $10 billion to build a filtration
plant & the $400 million in annual maintenance &
operation costs.”
Pete Grannis, Commissioner of the New York State Department
of Environmental Conservation
© Western Cape Government 2012 |
EIA: ASSESSING THE IMPACT OF THE DEVELOPMENT ON THE ENVIRONMENT
& THE IMPACTS OF THE ENVIRONMENT ON THE DEVELOPMENT
23 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
(De Doorns, A Louw) (Milnerton, G Oelofse)
(Betties Bay, Dr N Malan) (Wilderness, Dr N Malan)
1997: ECA EIA Regulations (Government Notice No. R. 1182 & R. 1183) (came into effect on 5 Sept 1997)
• 1 Listing Notice: 9 activities (1½ pages of listed activities)
• 1 process: Scoping & EIA (5½ pages of Regulations)
• Final decisions possible after Scoping.
• Exemptions from having to obtain environmental authorisation.
• Lack of clarity (flexibility) i.t.o. process & info requirements.
EIA REGULATIONS IN TERMS OF THE ENVIRONMENT
CONSERVATION ACT, 1989 (ACT NO. 73 OF 1989) (ECA)
2006: NEMA EIA Regulations (Government Notice No. R. 385 – R. 387) (came into effect on 3 July 2006)
• Listing Notice 1: 25 activities (16 pages) • Listing Notice 2: 10 activities (10 pages)
• 2 processes: Basic Assessment, & Scoping & EI Reporting (21 pages of Regulations)
• Thresholds • No final decisions possible mid-process. • No exemptions from having to obtain environmental authorisation. • Clarity i.t.o. process & info requirements, but lack of flexibility. • Timeframes prescribed for deciding on reports & application.
2006 EIA REGULATIONS IN TERMS OF THE NATIONAL
ENVIRONMENTAL MANAGEMENT ACT, 1998
(ACT NO. 107 OF 1998) (NEMA)
© Western Cape Government 2012 |
Regulation required.
Significant improvement in effectiveness &
efficiency of EIA from the ECA regulations
to the NEMA regulations.
Further improvements, however, required
in terms of effectiveness & efficiency.
Issues with poor quality of EIAs.
Monitoring & Enforcement not receiving
enough attention.
10 YEAR REVIEW OF THE EFFECTIVE & EFFICIENCY
OF EIA IN SA (DEAT, 2008): SOME KEY FINDINGS
Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber 26
2010: NEMA EIA Regulations (Government Notice No. R. 543 – R. 547) (came into effect on 3 July 2006)
• Listing Notice 1: 56 activities (25 pages) • Listing Notice 2: 26 activities (11 pages) • Listing Notice 3: 26 activities (72 pages)
(lower thresholds in sensitive areas)
• 2 processes: Basic Assessment, & Scoping & EI Reporting (77 + 7 pages of Regulations)
• Refined thresholds & identified specific geographical areas. • No final decisions possible mid-process. • No exemptions from having to obtain environmental authorisation. • Clarity i.t.o. process & info requirements, but too prescriptive. • Timeframes prescribed for deciding on reports & application.
2010 EIA REGULATIONS IN TERMS OF THE NATIONAL
ENVIRONMENTAL MANAGEMENT ACT, 1998
(ACT NO. 107 OF 1998) (NEMA)
2014: Proposed amendments to the NEMA EIA Regulations (Government Notices No. 142 of 28 Feb 2014, 709 of 22 Aug 2014, & 733-737 of 29 Aug 2014) (to came into effect in Dec 2014)
• Listing Notice 1: 65 activities (30 pages)
• Listing Notice 2: 29 activities (11 pages)
• Listing Notice 3: 23 activities (77 pages)
• Listing Notice 4: 2 activities (3 pages)
(activities in identified geographical areas that have been subjected to a pre-assessment process using a spatial development tool & which require environmental authorisation prior to commencement)
PROPOSED 2014 AMENDMENTS TO THE EIA REGULATIONS I.T.O.
THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998
(ACT NO. 107 OF 1998) (NEMA)
2014: Proposed amendments to the NEMA EIA Regulations
• 2 processes: Basic Assessment, & Scoping & EI Reporting (47 + 22 (7 Appendices) + 6 (exemptions) + 6 (appeal) pages of Regulations)
• Integration: NEMA EIA, Heritage Assessment, Water Use Licence
Application (WULA), & Mineral Resources Processes (MPRDA) • Refined thresholds & identified specific geographical areas. • Possible to do SEA for specific areas as framework for project-level EIAs • Refusal possible at the end of Scoping. • No exemptions from having to obtain environmental authorisation. • No longer possible to request additional information or reject a report,
but must comment on draft report. • Timeframe prescribed for submission of reports. • Timeframes prescribed for decide on reports & application.
PROPOSED 2014 AMENDMENTS TO THE EIA REGS I.T.O. NEMA
(2)
© Western Cape Government 2012 |
TIMEFRAMES: ECA & NEMA 2006: NEMA 2010 & 2014
Timeframes (days) for the different Stages of the
Basic Assessment Process
NEMA
2010
NEMA
2014
To acknowledge receipt & accept or reject the Application Form 14 7
To submit the Draft BAR N/A None
To submit the BAR N/A 90 (140)
To acknowledge receipt of the BAR 14 7
To review the BAR 30 None
To reach a decision 30 107
Total days to undertaken BA & reach decision N/A
(240) 197 (247)
Time (days) it took to undertake the EIA & reach decision
(From 10 Year Review)
ECA &
NEMA 2006
Average time it took to compile an EIA document 147
Average time it took authorities to review an EIA 158
© Western Cape Government 2012 |
TIMEFRAMES: ECA & NEMA 2006: NEMA 2010 & 2014 (2)
Timeframes (days) for the different Stages of the
Scoping & Environmental Impact Reporting Process
NEMA
2010
NEMA
2014
To acknowledge receipt & accept or reject the Application Form 14 7
To submit the Draft SR N/A None
To submit the SR N/A 44
To acknowledge receipt of the SR N/A 7
To review the SR 30 43
To submit the draft Environmental Impact Report N/A None
To submit the Environmental Impact Report N/A 106 (156)
To acknowledge receipt of the Environmental Impact Report N/A 7
To review the Environmental Impact Report 60 None
To reach a decision 45 107
Total days to undertaken S&EIR & reach decision N/A (450) 300 (350)
© Western Cape Government 2012 |
NATIONAL PROJECT: LEGISLATION
THAT IS IMPEDING SERVICE DELIVERY
32
From the Presidential Project on “Legislation that is Impeding
Service Delivery” (Interdepartmental Legislative Review
Committee, Progress Report, October 2010)
“At time, issues were raised that point towards human
agency rather than deficiencies in the law. The human
agency issue then relates to a lack of skills, unwillingness
or inability to apply legislation.”
“A substantial number of inputs ultimately pointed to
deficiencies in the implementation of laws, rather than to
deficiencies in the law itself. The problem thus related to
human agency in the form of attitude, skills.”
Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
© Western Cape Government 2012 |
“IT’S LIKE A GAME OF TENNIS…”
33 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
© Western Cape Government 2012 |
CHALLENGES EXPERIENCED WITH EIA’s - 1
34 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
Lack of integrated planning: Municipal Spatial Development
Framework, housing plan, & infrastructure planning often do not
speak to each other.
Some projects do not flow from the relevant Sector Plans (e.g. housing
projects being proposed, but it does not feature in the bigger Housing
Plan, nor is the services provided for in the Services Master Plan).
At project stage (EIA stage) questions are then asked about strategic
issues (location of urban edge, availability of services, etc.) which
were not addressed at the planning level, & are not easily addressed
at the project-level.
© Western Cape Government 2012 |
CHALLENGES EXPERIENCED WITH EIA’s - 2
35 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
Ad hoc projects, rather than a bigger programme rolled-out:
very few combined applications.
Regulatory processes often are not integrated or not run in parallel.
Failure to meet the legislative requirements.
Poor report writing.
Poor project management.
Result: Delays + conflicts + difficult & incremental decisions + waste of
time & resources = poor service delivery
Case Studies
© Western Cape Government 2012 |
CASE STUDY:
37 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
5 Temporary Relocation Areas approved in Cape Town in 2009…
• Erf ST 952/4, Mfuleni
• Erf 18370/3, Khayelitsha (Look-out Hill site)
• Erven 2143 & 2148, Khayelitsha (Khaya site)
• Erf 38552, Khayelitsha
• Erf ST 996, Eersterivier (Ithemba site)
DON’T BLAME THE EIA’s…
…but 5 years later no movement on 4 of the areas…
All “blocked” by communities
© Western Cape Government 2012 |
CURRENT CASE STUDY: BM SECTION OF KHAYELITSHA
38 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
© Western Cape Government 2012 |
FIRE IN BM SECTION OF KHAYELITSHA – 1 JANUARY 2013
39 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
© Western Cape Government 2012 |
BM SECTION AFTER 1 JANUARY 2013 FIRE
40 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
854 Shacks Lost & Approximately 4000 People Displaced
© Western Cape Government 2012 |
CASE STUDY
When Circumstances Call for Super-Efficient EIA
41 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
Coordination: CoCT, Dept. of Local Government, Dept. of Human Settlements,
DEA&DP, Heritage Western Cape, etc.
Integrated & Shortened Land Use & EIA process: 30 days
Improving EIA Practice in the Western Cape
© Western Cape Government 2012 |
IMPROVING EIA PRACTICE IN THE WESTERN CAPE
43 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
Make sure the Municipal Integrated Developments, Spatial
Development Frameworks, Infrastructure Master Plans & Housing Plans
are integrated, & that projects flow from the bigger plans.
Explore option to more strategically apply for approvals
(e.g. for next 5-10 years’ projects). (Note: split planning & EIA, from
construction.)
Do more combined applications.
Better project management & communication.
© Western Cape Government 2012 |
EXISTING MECHANISMS…
44 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
Adopting environmental Management
Frameworks (EMFs) (EMF Regs): does not
remove requirement for project level EIAs
but makes EIAs easier.
Identification of geographical areas in
which specified activities may not
commence without environmental
authorisation & other areas in which
specified activities will be excluded from
having to obtain authorisation (i.t.o. Sec
24(2)(b) & (c) of NEMA)
Provisions which Allow for Flexibility & Differentiation - 1
© Western Cape Government 2012 |
EXISTING MECHANISMS…
45 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
Development of standards (i.t.o Sec 24(2)(d) of NEMA): if adhere to standard then an EIA will
not be required.
Provisions which Allow for Flexibility & Differentiation - 2
AQUACULTURE OSTRICH FARMING POULTRY FARMING
© Western Cape Government 2012 |
EXISTING MECHANISMS…
46 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
Defining or adopting “urban areas” (EIA Regs): certain EIAs not required in “urban
areas”
Defining or adopting “development setback lines” (EIA Regs): EIAs not required
behind setback lines
Identification of areas for agriculture or afforestation (EIA Regs): EIAs only required
in very sensitive areas or if bigger then 100ha
Provisions which Allow for Flexibility & Differentiation - 3
© Western Cape Government 2012 |
EXISTING MECHANISMS…
47 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
Agreeing to “maintenance management plans” (MMP) i.t.o. of earth
moving activities along watercourses & the sea (EIA Regs): if work
undertaken in accordance with the MMP then an EIA will not be required.
Section 30 Emergency Incident Directives (& from Dec 2014 Section 30A
Emergency Situations Directives)
Provisions which Allow for Flexibility & Differentiation – 4
© Western Cape Government 2012 |
EXISTING MECHANISMS…
48 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
Enter into agreements other authorities in
terms of Section 24K of NEMA to follow an
integrated process:
the integrated process can then be
followed (that must meet the minimum
requirements i.t.o. Section 24(4) rather
than the normal process as set out in the
EIA Regs
An Less Formal Township Establishment Act-
NEMA agreement was signed in the WC in
Sept 2010.
Busy looking at a WC Land Use Planning
Act-NEMA Integrated Process.
Provisions which Allow for Flexibility & Differentiation – 5
A new Environmental Impact Assessment & Management Strategy (EIAMS) for SA
© Western Cape Government 2012 |
The findings of the 10 Yr Review was presented at a National Conference in 2008.
It was agreed that an Environmental Impact Assessment & Management Strategy (EIAMS) should be formulated for SA.
Purpose of the EIAMS:
• To compile a strategy that gives effect to the objectives of Integrated Environmental Management (IEM) contemplated in Chapter 5 of NEMA within the overarching context of the principle of sustainable development.
• To consider the desired environmental impact assessment & management system in SA & the means of achieving it within the context of the legislative mandate provided by Chapter 5 of NEMA.
New System:
• Screening process to inform the use of alternative instruments or a combination of instruments (e.g. SEA, feasibility assessment, risk assessment, management plan, etc.)
A NEW EIA & MANAGEMENT STRATEGY (EIAMS) FOR SA
Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber 50
EIA: A MEANS TO AN END
© Western Cape Government 2012 |
EIA IS A MEANS TO AN END:
THE PURSUIT OF SUSTAINABLE DEVELOPMENT
52 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
“Environmental management must
place people and their needs at the
forefront of its concern, and serve their
physical, psychological,
developmental, cultural and social
interests equitably.”
(National Environmental Management Act)
(NEMA) (Act No. 107 of 1998)
© Western Cape Government 2012 |
EIA: INSTRUMENT TO PROGRESS FUNDAMENTAL RIGHTS
53 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
Section 24: Everyone has the right-
(a) to an environment that is not harmful to their
health or well-being; and
(b) to have the environment protected, for the
benefit of present and future generations, through
reasonable legislative and other measures that-
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development
and use of natural resources while promoting
justifiable economic and social development.
Environmental Right (SA Constitution 1996)
© Western Cape Government 2012 |
FROM RED TAPE TO RED CARPET
54 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
© Western Cape Government 2012 |
FROM RED TAPE TO GREEN CARPET
55 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber
Tel: Fax:
www.westerncape.gov.za
Thank You
Gerhard Gerber
Director Development Facilitation
+27 21 483 2787 +27 21 483 8311