The important role of environmental assessment practitioners

As a developer, engineer, or property manager, you might not know about the environmental requirements associated with your project until you are either approached by an enforcement officer (in South Africa small cases are handled by the provincial Department of Environmental Affairs, and for high profile cases the Green scorpions are approached – these are reserved for the serious offenders) or instructed to comply with the Country’s environmental laws by the Municipality as part of the planning regime. If you have dealt with the environmental side of project management, you are probably more cautious in your approach. You understand the importance of approaching an environmental assessment practitioner from the early stages of your project, as ultimately, the results of the impact assessment could cause countless redesigns and other hindrances toward the eventual execution of the project if sensitivities have not been incorporated from the early stages of the project.

Although environmental assessment practitioners carry a multi-faceted role, for the purpose of this post, the following subjects will be covered to provide you, as either a developer, engineer, or prospective practitioner, with an understanding of what this role entails:

1. What is an Environmental Assessment Practitioner?
2. Which tasks can solely be performed by registered Environmental Assessment Practitioners?
3. When should you consider approaching an Environmental Assessment Practitioner for your project?
4. What does a typical Impact Assessment Process look like?
5. What happens if you do not appoint or work with your Environmental Assessment Practitioner?

What is an Environmental Assessment Practitioner?

By definition, an Environmental Assessment Practitioner (hereafter referred to as an EAP) is an individual responsible for the planning, management, coordination, or review of environmental impact assessments, strategic environmental assessments, environmental management programmes, or any other appropriate environmental instruments introduced through regulations.

In layman’s terms, an EAP assesses the impact of and the aspects associated with a specific activity. Whether it is the environmental impact associated with the development of a piece of land (undeveloped), the expansion of an existing structure, or the aspects associated with strategic planning for an area, an EAP is consulted to evaluate the risks associated with any one particular aspect.

Which tasks can solely be performed by Registered Environmental Assessment Practitioners?

According to the Environmental Impact Assessment Regulations of 2014, as amended (hereafter referred to as the EIA Regulations, as amended), only a registered EAP may perform duties in terms of the actions identified in terms of the EIA Regulations, as amended.

So, your next question would be, ‘What constitutes a registered EAP?’ In terms of the definition presented in the EIA Regulations of 2014, as amended, a registered EAP is an individual registered with an appointed registration authority contemplated in Section 24H of the National Environmental Management Act, 1998, as amended (Act No. 107 of 1998, NEMA). The Environmental Assessment Practitioner Association of South Africa has been duly appointed by the Minister in terms of Section 24H of the NEMA to act as the registration body for EAPs. Therefore, legally speaking, no consultant may provide the governing services prescribed in the EIA Regulations of 2014, as amended, should they not be registered with EAPASA.

It should be noted that transitional arrangements exist for the appointment of EAPASA. These arrangements do not apply to any appointments made after 8 August 2022. The application of the transitional arrangement also varies on a provincial basis. Therefore, if you, as a developer or engineer, appointed an EAP before this date, you are advised to request confirmation from the relevant environmental department (national or provincial) whether this appointment would still fall within the ambit of the transitional arrangements (National makes further provisions for such appointments, however, Provincial Government evaluates the scenarios on a case by case bases).

Strictly speaking, an EAP oversees any process identified in the EIA Regulations of 2014, as amended. These processes include Basic Assessment Processes, Scoping and Environmental Impact Assessment Processes, Amendments, and Environmental Auditing. Other processes include Section 24G (in terms of the NEMA), Section 30A (in terms of the NEMA), waste licenses and registrations, and norms and standard registration processes (some duties of the latter can be performed by an Environmental Scientist, depending on the requirement of the specifications in the Gazette). Environmental Assessment Processes pertaining to mining activities are also governed by the EIA Regulations of 2014, however, they are scrutinized by the Department of Mineral Resources and Energy (DMRE).

When do you need to consider approaching an Environmental Assessment Practitioner?

First and foremost, we need to consider the driving force behind when environmental authorization is required in terms of the NEMA. As part of the 2014 EIA Regulations, the Department of Environmental Affairs identified several listed activities potentially triggerable by a proposed development. These activities rely on the nature of the proposed development and the sensitive recipients of the receiving environments. Should activities from Listing Notice 1 and 3 of 2014, as amended, be triggered by a proposed development, a Basic Assessment Process would be followed. Should any activity from Listing Notice 2 of 2014, as amended, be triggered, a Scoping and Environmental Impact Assessment process would be followed.

Activities identified in terms of Listing Notice 3 of 2014, as amended, are typically for smaller development-related triggers (extent and proposed works), however, they do rely on the geographic sensitivities associated with an area (National Protected Areas, Protected Ecosystems types, Critical Biodiversity Areas, etc). Listing Notice 1 of 2014, as amended, relates to larger developments and does not rely on geographic sensitivities to inform whether an activity is triggered. Listing Notice 2 of 2014, as amended has an inventory of activities with a potential to have significant impacts on the environment (due to their extent and nature).

Potential triggers are roadworks, services provision (water, sewer, stormwater, and electrical structures), accommodation, the transformation of land (from Indigenous, agriculture, etc.), both renewable and non-renewable energy ventures, work within watercourses, commercial real estate, storage, and handling of hazardous substances (petrol, diesel, etc), and mining-related activities (amongst many others). You are urged to confirm with a registered EAP whether a project will trigger any listed activities in terms of the EIA Regulations.

What does a typical Impact Assessment Process look like?

The answer to this question varies greatly, depending on the process to be followed. However, for the purposes of this post, the focus will be resting on the two main environmental impact assessment processes discussed in the EIA Regulations of 2014, as amended: 1) the Basic Assessment Process, and 2) the Scoping and Environmental Impact Assessment Process.

Please note: For the purpose of this post, processes adopted by the Western Cape Department of Environmental Affairs and Development Planning will be used to guide the discussion. Their processes are considered the most comprehensive among the provinces.

The following process flow is typically followed:

a. Submission of an Applicability Checklist (not always submitted) – The Applicability Checklist is usually compiled to obtain written confirmation from the Competent Authority (CA) should it be suspected that a project would potentially not require environmental authorization.

b. Submission of a Notice of Intent to Lodge an Application for Environmental Authorization (Best Practice in the Western Cape Province) – This is typically a form designed to provide the CA with background information on a potential project before the submission of an Application for environmental authorization. This provides the CA with the opportunity to raise comments, concerns, and additional points of interest, which may or may not have been considered by the EAP. The Notice of Intent is typically accompanied by a Site Sensitivity Verification Report. We briefly touched on Site Sensitivity Verification in this post, but I would like to elaborate further on the subject.

Site Sensitivity Verification forms part of the pre-application phase. During this phase, the EAP and specifically identified specialists go to the proposed development area to do a verification of the sensitivities of the site. In South Africa, these specialists are informed by the results of the National Screening Tool. During this phase of the environmental process, the site sensitivities are delineated, and the EAP is informed of the site sensitivity from a specialist perspective, which, in turn, informs the type of specialist assessment to be undertaken (either a compliance statement or an impact assessment study). The findings of this Site Sensitivity Verification are consolidated into a report. This report is submitted as an appendix to the NOI and any Impact Assessment Report compiled by the EAP.

c) Pre-Application Public Participation (Best Practice approach) – Following the submission of the NOI and the receipt of comments thereon from the Department, one of two courses is taken. The draft reports are distributed to the Public (in compliance with Regulations 39 to 44 of the EIA Regulations of 2014, as amended) for pre-application public participation, or the EAP may opt to submit the Application without running pre-application public participation. This is at the discretion of the EAP, based on the consideration of how contentious a project would be. For example, if you are planning a filling station development (known to be contentious), should town-planning public engagement not have concluded as yet, your EAP may opt to undertake pre-application public participation, as this would allow both the developer and the EAP to identify public concerns and address them accordingly. This could potentially contribute to a much smoother application process experience for both the EAP and the developer. The downfall of this approach is that it requires an additional 30-day time commitment for the project. It should also be noted that many projects do not need pre-application public participation to be undertaken (for example,e the expansion activities related to a culvert on the outskirts of town).

You have gotten through the pre-Application phases of your development, so what’s next.

The decision-making phase varies depending on the process followed. For the Basic Assessment Process, at this time, the CA will be deciding whether to grant the Applicant Environmental Authorization for the project. However, for the Scoping and EIA Process, the CA will be deciding whether to allow the Application to proceed into the impact assessment phase.

Although the impact assessment phase for the Basic Assessment Process has now concluded, the processing for the Scoping and Environmental Impact Assessment Process continues.

Scoping and EIA Reports

106 days

Following receipt of the acceptance letter of the Plan of Study for the Environmental Impact Assessment, the EAP has 106 days to commission the specialist studies committed to incorporating in the Scoping Report, draft the Environmental Impact Assessment Report, and circulate the report to the public.

The Draft Environmental Impact Assessment Report and Appendices must be distributed for a 30-day Public Participation Process.

Should no significant comments or changes to the project or reporting be required, update and finalize the Environmental Impact Assessment Report and submit it to the CA for decision-making purposes. As mentioned above, the final Environmental Impact Assessment Report must be submitted to the CA within 106 days from the receipt of the Acceptance of the Scoping Report.

Following the submission of the Final Environmental Impact Assessment Report and Environmental Management Programme, the CA has 107 days to decide on whether to grant the Environmental Authorisation.

Following the 107 days, the CA has 5 days to notify the Applicant of the decision made by the Competent Authority.

Please note there is an appeal process after the receipt of the decision on the project.

Appeal Process (Applicable to all environmental authorization applications)

Concludes after a maximum of 34 days (if no appeals are received) after the stamped date on a decision

Once a decision has been made regarding an application, the applicant/holder of the environmental authorization has 14 days to notify all registered interested and affected parties of the decision made by the CA. These parties then have 20 days to appeal the decision (if they so desire) of the CA. Should an Applicant not be satisfied with the outcome of a decision, the Applicant must submit an Appeal to the Appeals Administration within 20 days of receipt of the decision.

Please note that should an appeal be received for a project, the appeal essentially freezes the authorization, and no activities may commence until the appeal has been resolved.

What happens if you do not appoint or work with your Environmental Assessment Practitioner?

So, you might be wondering what the consequences are of 1) not heeding the advice of your EAP or 2) not approaching an EAP before construction commences.

The EAP provides consultation services to you as the developer. Although best practice would be for you to work with the EAP and the specialists appointed, as a developer, you can request for an EAP and specialists to evaluate an alternative not necessarily favored by the independent consultants. In those instances, the project alternative will be weighed against at least 2 other alternatives (excluding all no-go areas identified and not developing the project at all. The latter is a standard for inclusion in the process. Weighing the project against the status quo) and based on the impact assessment matrix, the EAP will make a recommendation accordingly. Working with your EAP and Specialists ensures the best-practicable outcome whilst ensuring that the impact on the various environmental realms is also minimised. This way, the EAP and the specialists can evaluate interventions, compromises, and mitigations to be incorporated for the project to lower impacts on a specific aspect to be favourable not only to the developer and/or the engineer but also to the EAP and the appointed specialists.

Further to this, working with your EAP and the appointed specialists ensures that all potential impacts are considered and addressed as part of the processing for the project. Thereby making the public consultation process a little bit easier for contentious projects. Therefore, the chances of receiving an appeal once a decision has been reached are limited.

Furthermore, not considering the EAP’s expertise and experience in the field may also lead to time delays on a project. As seen above, the regulated timeframe (the pre-application process is not time-bound and may take upward of 6 months for some practitioners to execute) for a Basic Assessment Process for a project is 202 days (excluding appeals), and for a Scoping and Environmental Impact Assessment, it is 310 days (excluding appeals). From the EAP’s perspective, this timeframe can be expedited should everyone on the project team work together. The decision-making timeframe can also be expedited should the Department have all the information to make an informed decision.

2) Considered not undergoing an Environmental Authorisation process? Should a developer or engineer be caught doing so by the Department, the individual/company will be issued with a pre-compliance notice or a directive. In this letter, they will be instructed on the way forward to rectify the indiscresion. If an activity listed in terms of the EIA Regulations of 2014, as amended, has been triggered by a project, a 24G application will be required (therefore, an impact assessment to evaluate the potential harm caused and the potential environmental harm to be caused by the project) to be submitted. Following this, the relevant department will issue a fine, require time in jail by the representative of the proponent, or both.