Gerhard gerber

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


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



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



PERCEPTIONS ON ENVIRONMENTAL IMPACT ASSESSMENT (EIA)

7 Red Tape Reduction Conference (29-30 Sept 2014): EIA - G.Gerber


THERE IS A BIG DIFFERENCE BETWEEN UNNECESSARY

RED TAPE & DUE PROCESS


“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.


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


EIA IS A MEANS TO AN END:

THE PURSUIT OF SUSTAINABLE DEVELOPMENT


“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)


EIA: INSTRUMENT TO PROGRESS FUNDAMENTAL RIGHTS


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)


DESPITE OUR BEST EFFORTS


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)


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)


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)


EIA: A MEANS TO AN END = SUSTAINABLE DEVELOPMENT


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.


INTERNATIONAL EXAMPLE

USA: CATSKILL/DELAWARE WATERSHED


“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


EIA: ASSESSING THE IMPACT OF THE DEVELOPMENT ON THE ENVIRONMENT

& THE IMPACTS OF THE ENVIRONMENT ON THE DEVELOPMENT


(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)


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


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)




(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)


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


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)


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


“IT’S LIKE A GAME OF TENNIS…”



CHALLENGES EXPERIENCED WITH EIA’s - 1


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.


CHALLENGES EXPERIENCED WITH EIA’s - 2


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


CASE STUDY:


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


CURRENT CASE STUDY: BM SECTION OF KHAYELITSHA



FIRE IN BM SECTION OF KHAYELITSHA – 1 JANUARY 2013



BM SECTION AFTER 1 JANUARY 2013 FIRE


854 Shacks Lost & Approximately 4000 People Displaced


CASE STUDY

When Circumstances Call for Super-Efficient EIA


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


IMPROVING EIA PRACTICE IN THE WESTERN CAPE


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.


EXISTING MECHANISMS…


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




Development of standards (i.t.o Sec 24(2)(d) of NEMA): if adhere to standard then an EIA will

not be required.


AQUACULTURE OSTRICH FARMING POULTRY FARMING




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





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




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


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


EIA: A MEANS TO AN END


EIA IS A MEANS TO AN END:

THE PURSUIT OF SUSTAINABLE DEVELOPMENT


“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)


EIA: INSTRUMENT TO PROGRESS FUNDAMENTAL RIGHTS


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)


FROM RED TAPE TO RED CARPET



FROM RED TAPE TO GREEN CARPET


Tel: Fax:

www.westerncape.gov.za

Thank You

Gerhard Gerber

Director Development Facilitation

+27 21 483 2787 +27 21 483 8311

[email protected]

Government & Nonprofit

Gerhard gerber