RE – AUTHORISATION REQUIREMENTS FOR AQUACULTURISTS
On 11 October 2013 the Department of Agriculture, Forestry and Fisheries (DAFF) published the “National Aquaculture Policy Framework for South Africa 2013”. This policy acknowledges the importance of the aquaculture industry and the potential opportunities presented for food security, job and wealth creation, reduction of imports and transformation. A clear commitment by DAFF to provide support for aquaculture sector development is evident in this policy. DAFF commits itself to facilitating and supporting the optimal growth of the aquaculture sector, the promotion of on-site research and the provision of support services. A critical aspect of this policy is the recognition that this sector is currently characterised by overregulation when compared with other food production sectors and by fragmented policies and strategies from various tiers of government departments.
DAFF’s policy is therefore the first step in an attempt to address this fragmentation and overregulation. However, it is clear from this policy that the goals are long-term and that it will take many years before we see regulatory change. In the meantime, aquaculturists are required to apply the existing legislation, as fragmented and voluminous as it may be. There are also hefty criminal penalties for non-compliance, which include fines of up to R10 million and imprisonment for up to 10 years.
In order to assist the aquaculture industry and government officials tasked with compliance and enforcement, the Department of Environmental Affairs (DEA) published the “Environmental Impact Assessment Guideline for Aquaculture in South Africa” on 3 October 2013. This guide deals with the existing legislation applicable to aquaculture in South Africa. Contained in this 72 page guide is an Authorisation Checklist which sets out the various types of authorisations that are required by aquaculturists.
THE AUTHORISATION CHECKLIST INCLUDES THE FOLLOWING:
1. ENVIRONMENTAL AUTHORISATION
Authorisation in terms of the National Environmental Management Act (NEMA) and the EIA Regulations published in terms thereof.
This environmental authorisation is required by all aquaculture types that trigger activities listed in the EIA listing notices.
Some activities, if triggered, require prospective aquaculturists to submit a basic assessment, whilst other activities are subject to full scoping and environmental impact reporting.
2. THREATENED AND PROTECTED SPECIES
Authorisation for the use of threatened or protected species in terms of the National Environmental Management: Biodiversity Act, Threatened and Protected Species Regulations and Provincial Ordinances.
This authorisation is required if the proposed aquaculture activity concerns any species listed as threatened or protected, such as abalone, white steenbras or nile crocodile.
3. ALIEN AND INVASIVE SPECIES
Authorisation for the use of alien or invasive species in terms of the National Environmental Management: Biodiversity Act, the Alien and Invasive Species Regulations and Provincial Ordinances.
This authorisation is required if the proposed aquaculture activity concerns any alien or invasive species (the species lists are currently being amended).
4. PROTECTED AREAS
Authorisation for aquaculture activities in or adjacent to protected areas in terms of the National Environmental Management: Protected Areas Act.
5. WASTE LICENCING
Waste licencing in terms of the National Environmental Management: Waste Act if the aquaculture activity triggers any of the listed waste management activities.
6. COASTAL ZONE OPERATIONS
Authorisation in terms of the National Environmental Management: Integrated Coastal Management Act if aquaculture activities are to be conducted in the coastal zone, specifically if there is to be discharge of aquaculture effluent into the coastal zone.
Marine aquaculture is often wholly or at least partially practised within this zone.
7. WATER USE
Water use authorisation in terms of the National Water Act.
As the primary resource on which aquaculture depends, the lawful use of water is of the utmost importance.
8. MARINE AQUACULTURE RIGHT
A marine aquaculture right in terms of the Marine Living Resources Act.
In addition to a right, which is valid for up to 15 years, annual permits are required in order to utlise the right. There is a vast array of permits, depending on the marine aquaculture activity to be carried out.
Given the above, it is important that existing and prospective aquaculturists ensure that the correct authorisations have been or will be obtained. The consequences for commencing activities without obtaining the correct authorisations are harsh. For instance, in terms of the National Environmental Management Act (NEMA), it is a criminal offence to commence a listed activity without the required environmental authorisation. A person convicted of such an offence is liable to a fine not exceeding R5 million or to imprisonment for a period not exceeding 10 years, or to both such fine and imprisonment. There is however a provision in NEMA which allows a person who has committed such an offence to apply for the rectification of unlawful commencement of an activity. This rectification application requires the applicant to compile a number of reports and is also accompanied by an administrative fine.
Many of the above authorisations, including the rectification application under NEMA, require the submission of an Environmental Impact Assessment (EIA). The EIA could comprise of a Basic Assessment (BA) process or full Scoping and Environmental Impact Reporting (S&EIR) processes, depending on the nature of the activities undertaken. A suitably qualified Environmental Assessment Practitioner (EAP) is required to perform the tasks associated with the EIA processes.
We strongly recommend that all companies with existing aquaculture operations and companies planning to commence operations acquaint themselves with their obligations in terms of the above legislation and ensure that they comply therewith. ALL OPERATIONS ARE SUBJECT TO INSPECTION BY ENVIRONMENTAL MANAGEMENT INSPECTORS AND THE PENALTIES FOR NON-COMPLIANCE ARE CRIMINAL (FINES AND/OR IMPRISONMENT). When carrying out inspections, environmental management inspectors may also seize anything that may be used as evidence in the prosecution of any person for an offence in terms of NEMA or any other specific environmental management Act. This means that goods such as computers, records and farm equipment could be seized. Having been seized, these goods could later be forfeited to the State by court order. The Marine Living Resources Act similarly contains seizure and forfeiture provisions for non-compliance.
Should you require assistance with the identification of authorisations required for your venture or with the rectification of non-compliance, please feel free to contact us. Assistance can also be provided in respect of sourcing a suitably qualified EAP to perform the tasks associated with the EIA processes.