NEMA: BIODIVERSITY ACT: PUBLICATION OF THE DRAFT BIODIVERSITY BILL FOR COMMENTS 

Title: National Environmental Management: Biodiversity Act, 10 of 2004 (“NEMBA”): Publication of the Draft National Environmental Management: Biodiversity Bill for Public Comment 

Gazette reference: GN 4887 in GG 50706 on 24 May 2024 

Deadline for public comments: 23 July 2024 

On 23 May 2024, the Minister of Forestry, Fisheries and the Environment published the draft National Environmental Management: Biodiversity Bill (“the Bill”) for public comments.  

The Bill will enable: 

  • More effective implementation of the NEMBA’s objectives; 
  • More flexible management of species and ecosystems; 
  • Greater protection for species and ecosystems through the implementation of international agreements and restrictions on wildlife trafficking; and 
  • More effective achievement of economic benefits in the biodiversity sector. 

The Bill’s primary purposes are, among others, to: 

  • Provide for the conservation and sustainable use of ecosystems and species; 
  • Provide for the duty of care towards all components of biodiversity and for the well-being of wild animals; 
  • Provide for the development and alignment of biodiversity planning tools; 
  • Provide for the management of invasive species; 
  • Address historical imbalances, enable and facilitate transformation, facilitate cultural practices and achieve equity within the biodiversity sector; 
  • Provide for appropriate measures in response to climate change. 

PROPOSED REGULATIONS FOR PRIORITY AREA AIR QUALITY MANAGEMENT PLANS  

Title: National Environmental Management: Air Quality Act 39 of 2004 (“NEMAQA”): Consultation on the Proposed Regulations for Implementing and Enforcing Priority Area Air Quality Management Plans 

Gazette reference: GN 4843 in GG 50668 of 17 May 2024 

Commencement date: 17 June 2024 

On 10 May 2024, the Minister of Forestry, Fisheries and the Environment under section 20 of the NEMAQA published the Regulations for implementing and enforcing priority area air quality management plans (“the Regulations”). 

The Regulations set out necessary requirements for implementing and enforcing any approved priority area air quality management plans. They provide for: 

  • Mandatory requirements for applications, such as the inclusion of measurable emission reduction targets; 
  • Mechanisms for the government to receive reporting and evaluate the effectiveness of plans; 
  • Transitional arrangements; 
  • Enforcement measures and penalties. 

The Regulations will apply to all key stakeholders identified to be significant contributors to poor air quality in the respective air quality management plans, including listed activities; contrlled emitters; mining operations and government stakeholders. 

NATIONAL ENVIRONMENTAL MANAGEMENT ACT: CONSULTATION ON THE INTENTION TO ADOPT A STANDARD FOR THE DEVELOPMENT AND EXPANSION OF ELECTRICITY TRANSMISSION 

Title: National Environmental Management Act, 1998 (Act No. 107 of 1998): Adoption of the Battery Storage Exclusion Norm and Exclusion of Identified Activities Associated with the Development and Expansion of Battery Storage Facilities from the Requirement to Obtain an Environmental Authorisation  

Gazette reference: GN 4557 in GG 50387 of 27 March 2024 

Commencement date: 27 March 2024 

On 27 March 2024, the Minister of Forestry, Fisheries and the Environment adopted the Norm for the Exclusion of Identified Activities Associated with the Development and Expansion of Battery Storage Facilities in Areas of Low or Medium Environmental Sensitivity (“the Norm”), and excluded certain activities identified in terms of section 24 of the NEMA from the requirement to obtain an environmental authorisation, based on compliance with the Norm. 

The exclusion will only apply to activities identified in terms of section 24(2)(a) and (b) of the NEMA, subject to compliance with the Norm, while the requirements of any other relevant legislation remain applicable.  

The activities which are subject to exclusion relate to the development or expansion of battery storage facilities associated with: 

  • Energy generation; and 
  • Electricity transmission and distribution infrastructure. 

The full list of excluded activities can be read in the Norm. 

NATIONAL ENVIRONMENTAL MANAGEMENT ACT: CONSULTATION ON THE INTENTION TO ADOPT A STANDARD FOR THE DEVELOPMENT AND EXPANSION OF ELECTRICITY TRANSMISSION 

Title: National Environmental Management Act, 1998 (Act No. 107 of 1998): Consultation on the Intention to Adopt a Standard for the Development and Expansion of Electricity Transmission and Distribution Power Line Infrastructure and to Exclude this Infrastructure from the Requirement to Obtain an Environmental Authorisation; as well as to Repeal the Standard for the Development and Expansion of Power Lines and Substations within Identified Geographical Areas and the Exclusion Based on this Standard, Published under Government Notice No. 2313 in Government Gazette No. 47095 of 27 July 2022 

Gazette reference: GN 4586 in GG 50417 of 28 March 2024 

Deadline for public comments: 29 April 2024 

On 28 March 2024, the Minister of Forestry, Fisheries and the Environment announced her intention to adopt the Standard for the Development and Expansion of Electricity Transmission and Distribution Power Line Infrastructure, 2024 and to exclude certain activities identified in terms of section 24(2)(a) and (b) of the NEMA from the requirement to obtain environmental authorisation, based on compliance with the Standard.  

The exclusion from the requirement to obtain environmental authorisation applies to the development and expansion of the following activities –  

  • Listing Notice 1 (the Environmental Impact Assessment Regulations Listing Notice 1 of 2014) 5.1.1 Activity 11; 5.12. Activity 47; or 5.2 
  • Listing Notice 2 (the Envrironmental Impact Assessment Regulations Listing Notice 2 of 2014): 5.2.1. Activity 9; and 
  • Any activity identified in Listing Notice 1, 2 or 3 necessary for the realisation of such infrastructure in areas identified by the screening tool as being of medium or low environmental sensitivity. 

NATIONAL ENVIRONMENTAL MANAGEMENT ACT: AMENDMENT TO REGULATIONS ON SPATIAL TOOLS AND ENVIRONMENTAL MANAGEMENT INSTRUMENTS 

Title: National Environmental Management Act, 1998 (Act No. 107 of 1998): Amendments to the Regulations laying down the Procedure to be Followed for the Adoption of Spatial Tools or Environmental Management Instruments 

Gazette reference: GN 4494 in GG 50289 of 13 March 2024 

Commencement date: 13 March 2024 

On 13 March 2024, the Minister of Forestry, Fisheries and the Environment published, in terms of section 24(5)(bA) of the National Environmental Management Act (“NEMA”), amendments to the Regulations laying down the procedure to be followed for the adoption of spatial tools or environmental management instruments (published on 5 April 2019 in GNR 542). 

The Regulations have been amended to delete any reference to spatial tools, among other minor amendments. 

INTENTION TO ADOPT ENVIRONMENTAL MANAGEMENT INSTRUMENTS TO EXCLUDE CERTAIN ACTIVITIES FROM ENVIRONMENTAL AUTHORISATION REQUIREMENT  

Title: National Environmental Management Act, 1998: Notice of the Intention to Adopt Environmental Management Instruments for the Purpose of Excluding In Terms of Section 24(c) and (e) of the National Environmental management Act, 1998, Identified Activities From the Requirement to Obtain Environmental Authorisation  

Gazette reference: GN 4386 in GG 50138 of 16 February 2024 

Commencement date: 17 March 2024  

On 16 February 2024, the Minister of Forestry, Fisheries and the Environment gave notice of her intention to adopt the Kruger National Park Management Plan 2018-2028 and the Generic Environmental Management Programme for the Kruger National Park as environmental management instruments.  

Based on this adoption, the Minister intends to exclude the South African National Parks from the requirement to obtain an environmental authorisation, prior to the commencement of certain activities, when undertaken in line with the zoning scheme in the Kruger National Park Management Plan. 

The exclusion is subject to compliance with the Generic Environmental Management Programme for the Kruger National Park and the Code of Conduct for the Kruger National Park. All documents related to this exclusion are available on this link on the departmental webpage:  

https://www.dffe.gov.za/projectprogrammes/environmental_management_instruments

The excluded activities are: 

  • All activities listed in the Annual Infrastructure Project Implementation Plan; 
  • All activities related to maintenance; and 
  • All activities related to conservation projects or rehabilitation.  

In the context of these activities, the following activities do not form part of the exclusion: 

  • All energy activities related projects for which an atmospheric emission license is required; and 
  • All waste management activities for which a waste management license is required.  

In these cases, an application for an environmental authorisation is required.  

NATIONAL ENVIRONMENTAL MANAGEMENT ACT: AMENDMENT OF THE TRANSITIONAL ARRANGEMENTS IN THE FINANCIAL PROVISIONING REGULATIONS 

Title: National Environmental Management Act: Amendment of the Transitional Arrangements in the Financial Provisioning Regulations 

Gazette reference: GN 4296 in GG 50059 of 1 February 2024 

Commencement date: 1 February 2024 

On 1 February 2024, the Minister of Forestry, Fisheries and the Environment extended the date for compliance holders of rights and permits obtained under the Mineral and Petroleum Resources Development Act, 2002 regime through an amendment of the transitional arrangements contained in the Financial Provisioning Regulations, 2015 (“the Regulations”). 

Regulation 17A of the Regulations has been amended so that the holder of an offshore exploration or production right, who applied for such right prior to 20 November 2015, regardless of when the right was obtained –  

  • Must comply with the Regulations; and 
  • shall be regarded as complying with the provisions of the Regulations if such holder complies with the provisions and arrangements regarding financial provisioning in terms of the Mineral and Petroleum Resources Development Act, 2002. 

Regulation 17B of the Regulations has also been substituted to reflect the same provisions as 17A, for any holder, or holder of a right or permit, who applied for such right or permit prior to 20 November 2015. 

NATIONAL ENVIRONMENTAL MANAGEMENT ACT: EXTENSION OF THE APPOINTMENT OF ENVIRONMENTAL ASSESSMENT PRACTITIONERS ASSOCIATION 

Title: National Environmental Management Act, 1998: Extension of the Appointment of the Environmental Assessment Practitioners Association of South Africa as the Single Registration Authority in terms of the National Environmental Management Act 

Gazette reference: GN 4292 in GG 50046 of 30 January 2024 

Commencement date: 30 January 2024 

On 30 January 2024, the Minister of Forestry, Fisheries and the Environment extended the appointment of the Environmental Assessment Practitioners Association of South Africa (EAPASA), as a single registration authority, in terms of section 24(H)(3), read with section 24(H)(6), of the National Environmental Management Act for a period of 24 months. 

The EAPASA was appointed as the single registration authority for five years, with effect from 8 February 2018 until 7 February 2023, whereby the appointment period was extended until 7 February 2024. This appointment is further extended until 7 February 2026 to enable the Minister to adequately consider what the most sustainable way forward will be for the long-term regulation of environmental assessment practitioners.  

NATIONAL ENVIRONMENTAL MANAGEMENT ACT: AMENDMENT TO THE FINANCIAL PROVISIONING REGULATIONS

Title: National Environmental Management Act, Act 107 of 1998: Amendment to the Transitional Arrangements in the Financial Provisioning Regulation, 2015

Gazette reference: GN 3841 in GG 49220 on 1 September 2023.

Commencement date: 1 September 2023

The Minister of Forestry, Fisheries and the Environment extended, by 5 months, the date of compliance for holders of rights and permits obtained under the Mineral and Petroleum Resources Development Act, 28 of 2002 (“MRPDA”).

The Regulations pertaining to the Financial Provision for Prospecting, Exploration, Mining or Production Operations (GNR.1147 of 20 November 2015, as amended) made under the National Environmental Management Act (“the Financial Provisioning Regulations, 2015”) contain transitional provisions that specify when these regulations must be complied with. Regulation 17A deals with when holders of offshore oil and gas exploration or production rights must comply with those Regulations, and regulation 17B deals with compliance by holders of other rights under the MPRDA (e.g. holders of prospecting or mining rights). The Minister has again extended the deadline by which such rights holders must comply with the Financial Provisioning Regulations, 2015 by amending Regulation 17B to read:

“Unless regulation 17A applies, a holder, or holder of a right or permit who applied for such right or permit prior to 20 November 2015, regardless of when the right or permit was obtained –

(a) must by no later than 19 February 2024 comply with these Regulations; and

(b) shall, until 18 February 2024, be regarded as having complied with the provisions of these Regulations, if such holder has complied with the provisions and arrangements regarding financial provisioning, approved as part of the right or permit issued in terms of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002).”

NATIONAL ENVIRONMENTAL MANAGEMENT ACT: DRAFT NATIONAL APPEAL REGULATIONS 

Title: National Environmental Management Act, 107 of 1998: Draft National Appeal Regulations, 2023. 

Gazette reference: GN 3815 in GG 49189 of 25 August 2023. 

Deadline for comments: 26 September 2023. 

On 25 August 2023, the Minister of Forestry, Fisheries and the Environment published the Draft Regulations Pertaining to the Processing, Consideration of, and Decision on Appeals, in terms of sections 43, 44(1)(b) and 47 of NEMA, for public comment. 

The Regulations are intended to regulate the procedure contemplated in section 43 of the Act relating to the submission, processing, consideration of, and decisions on appeals to the Minister in respect of the Act and any specific environmental management Act. 

Members of the public are invited to submit written comments and inputs on or before 26 September 2023. 

A full copy of the Notice can be accessed here. 

NATIONAL ENVIRONMENTAL MANAGEMENT ACT: INTENTION TO AMEND THE ENVIRONMENTAL IMPACT ASSESSMENT REGULATIONS 

Title: National Environmental Management Act: Consultation on the Intention to Amend the Environmental Impact Assessment Regulations, Listing Notice 1, Listing Notice 2 and Listing Notice 3 of the Environmental Impact Assessment Regulations, 2014 for Activities Identified in Terms of Section 24(2) and 24D of the Act. 

Gazette reference: GN 3773 in GG 49081 of 4 August 2023. 

Deadline for comments: 4 September 2023. 

On 4 August 2023, the Minister of Forestry, Fisheries and the Environment, in terms of section 24(2), 24(5) and 44, read with section 47 of the NEMA, announced that she intends to amend the Environmental Impact Assessment Regulations, 2014, as amended and Environmental Impact Assessment Regulations Listing Notice 1, 2 and 3 of 2014, as amended. 

These proposed amendments relate, among other things, to the inclusion of mining activities, including EMPr and closure plans.  

A copy of the Notice can be accessed here