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

© 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 2009/10
AR 2010/11
AR 2011/12
AR 2012/13
AR 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
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
6

© Western Cape Government 2012 |
PERCEPTIONS ON ENVIRONMENTAL IMPACT ASSESSMENT (EIA)
7

THERE IS A BIG DIFFERENCE BETWEEN UNNECESSARY RED TAPE & DUE PROCESS
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.

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)
9

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)

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)

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

EXAMPLE: WATER - DEMAND EXCEEDING SUPPLY
18
Reconciliation Strategy for the Western Cape Water Supply System (Oct 2013)
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
…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
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.

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

EIA: ASSESSING THE IMPACT OF THE DEVELOPMENT ON THE ENVIRONMENT & THE IMPACTS OF THE ENVIRONMENT ON THE DEVELOPMENT
23
(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)
•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
26

2010: NEMA EIA Regulations (Government Notice No. R. 543 – R. 547) (came into effect on 3 July 2006)
•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.
•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)
(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 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.”

“IT’S LIKE A GAME OF TENNIS…”
33

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.

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 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

CURRENT CASE STUDY: BM SECTION OF KHAYELITSHA
38

FIRE IN BM SECTION OF KHAYELITSHA – 1 JANUARY 2013
39

BM SECTION AFTER 1 JANUARY 2013 FIRE
40
854 Shacks Lost & Approximately 4000 People Displaced

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

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.

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

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.
AQUACULTURE
OSTRICH FARMING
POULTRY FARMING

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

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

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
50

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)

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)

FROM RED TAPE TO RED CARPET
54

FROM RED TAPE TO GREEN CARPET
55

Tel:
Fax:
www.westerncape.gov.za
Thank You
Gerhard Gerber
Director Development Facilitation
+27 21 483 2787
+27 21 483 8311
Gerhard.Gerber@westerncape.gov.za

Gerhard gerber

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