I attended the Department of Environmental Affairs (“DEA”) public open day on the proposed “One Environmental System” on 17 November 2014. The One Environmental System (“OES”) is essentially the new regime for obtaining environmental authorisation and associated licences in South Africa. It represents a fundamental change in the way that environmental authorisation is to be obtained going forward.
The OES is entrenched in the proposed Environmental Impact Assessment Regulations (the “Regulations”) published on 29 August 2014 which, according to the DEA, are due to come into force on 8 December 2014. It should be noted, however that these Regulations are still being worked on and that the final Regulations will look different to the proposed version currently in the public domain.
A deserved criticism of the existing environmental authorisation regime is that it is too lengthy and convoluted to obtain the suite of environmental authorisations required for a development which has a potentially prohibitive effect on economic investment in development in South Africa.
With this in mind, the OES represents an agreement reached between the Minister of Environmental Affairs, Minister of Water Affairs and Minister of Mineral Resources to streamline the environmental authorisation process and make it more efficient.
Part of this agreement is that:
- All environmental authorisation provisions are to be dealt with in the National Environmental Management Act, 108 of 1997 (“NEMA”). The related environmental provisions relating to mining activities have therefore been repealed from the Mineral and Petroleum Resources Development Act, 28 of 2002 (“MPRDA”).
- The Minister of Environmental Affairs is responsible therefore for setting the regulatory framework for all environmental authorisations.
- For mining operations, the Minister of Mineral Resources will; however, issue environmental authorisations. The Minister of Environmental Affairs will be the appeal authority.
- For all other developments, the Minister of Environmental Affairs will issue environmental authorisations.
- The Ministers have aligned the timeframes for issuing of their respective authorisations:
– Environmental authorisation: DEA / Department of Mineral Resources (“DMR”)
– Water Use Licence: Department of Water Affairs (“DWA”)
– Waste Management Licence: DEA
– Air Quality Licence: Local Authority / DEA
- This means that all the respective licence applications must be submitted to the respective authorities at the same time. In theory the applicant will then receive all their licences at the same time.
- However, for mining activities, the application for environmental authorisation may only be submitted after acceptance of an application for a mining right or permit in terms of the MPRDA.
Having worked in the environmental field overseas, I would have to agree that the existing environmental regime in South Africa is too convoluted and lengthy. I therefore commend the Departments for seeking to consolidate the process. Personally the reduction in the amount of Public Participation gets a thumbs up from me (Previously both the draft and final versions of environmental reports would need to undergo a lengthy period of public comment. In the new regime only the draft report needs to go out for public comment). This doesn’t however relate to a reduction in the accessibility of information to the general public. Rather, the DEA highlighted that in terms of the new Regulations, the public will have easier accessibility to the environmental authorisation documents due to the environmental authorisation documents having to now be hosted on the company’s website, as well as at the physical site where the development is being constructed or operated.
Another big tick is the new requirement to audit environmental authorisations, EMPrs and closure plans to ensure compliance. The holder of the authorisation must appoint an external auditor and submit an environmental audit report to the competent authority. The frequency of the audits will be at the discretion of the competent authority depending on the nature of the development and sensitivity of the receiving environment. The ELC already undertakes audits of environmental permits (e.g. Water Use Licences) and is therefore well positioned to be able to assist clients with undertaking audits of their environmental authorisations, EMPrs and closure plans.
However, I am disappointed to see that what is already a very regulated procedure is becoming even more so and am concerned that the Departments are putting too much focus on the administrative side of the process rather than focussing on the real issue of ensuring sustainable development. Whilst one would think that the streamlining of the environmental authorisation process would be a win situation for developers, this may not be necessarily the case.
Why do I say this? A result of this streamlining and efficiency endeavour is that very stringent timeframes have been placed on the applicant and environmental consultant (Environmental Assessment Practitioner or “EAP”) preparing the applications for authorisation. The overall feeling from environmental consultants at the open day was that these timeframes were “unrealistic”. For example a Scoping Report must be submitted within 44 days of the competent authority having received the application. This must include addressing all comments received from a 30 day public participation process. And, if these timeframes are not met by the applicant and environmental consultant then the application lapses and the applicant will need to reapply and pay the application fee again! The consensus amongst the environmental consultants was that a lot of work would therefore need to be done prior to the application being submitted, including informal public participation (formal public participation needs an application reference number obtained upon submission of the application for authorisation). The timing of seasonal specialist studies will also need to be considered. Therefore, developers should be aware that, in reality, the process may not have been shortened by as much as it would appear on paper.
Another big concern raised was the capacity of the various departments, and in particular, the DWA to meet their timeframes in the OES. Apparently the DWA are still to draft regulations to address the OES. However, it is not long until the 8th of December 2014 and not even draft regulations have been seen.
A final interesting amendment, and one that may please developers, is that previously one could only reapply for an application which had been refused if 3 years had passed or there had been a material change to the proposals. Under the new regime once the appeal opportunity has been finalised, one can reapply with a substantially similar application. If scoping was accepted, there is also now no need to redo scoping.
In conclusion, the overall message from the DEA and Western Cape DEA&DP was that the OES is the new regime for issuing environmental authorisation. Yes, there will be teething problems but the OES is here to stay and we will need to work together to establish the best was forward. The Western Cape DEA&DP did promise to publish a guideline document once the Regulations have been finalised on 8 December 2014. I think it is going to be very interesting to see where this new road leads us…..so watch this space!
How can The Environmental Consultancy assist you with the new OES requirements and associated Regulations?:
- Availability of the consolidated version of the new Regulations on the Standards and Legal Register together with plain English summaries of the important sections;
- Assistance with any queries regarding the interpretation of these new Regulations;
- Audits of environmental authorisations, EMPrs and closure plans; and
- Hosting of authorisation documents on your Legal Register free of charge.