Forestry, Fisheries and the Environment Minister Barbara Creecy has extended the public consultation period for comment on the proposed amendment to the Section 24H Registration Authority Regulations to February 21.

She has also granted a six-month extension to the compulsory deadline for the registration of Environmental Assessment Practitioners (EAPs) in terms of the amended Section 24H Regulations, until August 8.

The extension to the compulsory registration deadline for the registration of EAPs was published in Government Gazette 45883 on February 7 in terms of the National Environmental Management Act (Nema).

Proposed amendments to the Section 24H Regulations, including the proposed six-month extension, were published for public consultation on December 31, 2021.

Owing to the late gazetting of the proposed amendments, the EAP registration deadline of February 8 has been extended to allow the consideration of comments emanating from the public consultation process that ensued at the end of December 2021.

At the same time, the extension will allow non-registered EAPs to submit applications for registration to the Environmental Assessment Practitioners Association of South Africa (Eapasa), which has 120 days to process applications. 

As of mid-February, 435 EAPs and 73 candidate EAPs had been registered. A total of 2 972 applications are pending.

EAPs are strongly encouraged by the department to continue to submit their applications for registration to Eapasa in the interim.

The amendments to the Section 24H Regulations are required to provide contextual clarity and certainty on who is required to be registered as an EAP and by when. The proposed amendment also addresses potential implementation challenges.

Registration of EAPs will be done in a phased manner. Practitioners performing tasks linked to Environmental Impact Assessments (EIAs) in terms of the Environmental Impact Assessment Regulations, the Section 24G of Nema and dealing with waste management licences (WMLs) in terms of the National Environmental Management: Waste Act are required to register by August 8.

EAPs performing tasks other than these, including appeals, will be registered on dates to be announced.

Certain role-players in the EIA, Nema Section 24G and WML application processes are explicitly excluded from the requirement to be registered based on reasons of rationality and practicality.

These are final decision-makers, such as the Minister, Members of the Executive Council (MECs), heads of departments (HODs) and delegated decision-makers; persons who prepare and submit comment on documents; and persons who investigate, assess, prepare and submit specialist reports.

The intention of the inclusion of appeals in the Regulations is to ensure that officials administering appeals within the respective appeal authorities are registered EAPs.

This is because they are often required to review technical documents, such as scoping reports, EIA reports and specialist reports, the department notes.

It says that the intention of the registration requirement is to professionalise the EAP sector.

Moreover, it would ensure the submission of quality and reliable reports as part of the application processes and ensure that the recommendations are from technically qualified officials and consultants who advise the official acting under a delegated authority, the Minister, MECs or HODs on applications and appeals.

“The Minister recognises that there is a right in law for affected parties to both request the reasons for administrative actions and decisions and to appeal those actions and decisions. It is also recognised that systems regulating appeal processes should be designed in such a way that they are accessible and affordable to all and particularly the poor.

“Given this, it is important that stakeholders who are of the view that the current amendments curtail the above rights, ensure their views are heard by raising their concerns through the public comment process,” the department highlights.

Commenting on the extension to August 8, law firm Webber Wentzel said the proposed amendments have proven to be extremely controversial as a result of what it believes to be an unintended limitation on the involvement of practitioners, other than registered EAPs, in a range of tasks under Nema and other environmental laws.

After August 8, unregistered EAPs will not be permitted to hold primary responsibility for the planning, management, coordination or review of EIAs and environmental management programmes.

If, however, the proposed amendments to the regulations are promulgated in final form as currently worded, then unregistered EAPs will also not be able to perform a range of additional tasks in connection with, among other things, Section 24G rectification applications and appeals contemplated under Section 43 of Nema, the firm explains.

“Clients are advised to ensure that their appointed EAPs register within the extended time period, as the legitimacy of EIA processes (and potentially of a range of additional tasks) that are run by unregistered EAPs after August 8 could be called into question. 

“Unregistered EAPs who continue to hold primary responsibility for EIA processes after this deadline could also be prosecuted under the Regulations,” the firm emphasises.