CHAPTER 65:07
ENVIRONMENTAL ASSESSMENT

 

ARRANGEMENT OF SECTIONS

 

   SECTION

 

 

 

PART I
Preliminary

 

   1.   Short title

 

   2.   Interpretation

 

   3.   Application of Act

 

   4.   Requirements to undertake an activity

 

   5.   Ensuring issuance of authorisation

 

 

 

PART II
Preparation of Environmental Impact Assessment Documentation

 

   6.   Requirements for authorisation

 

   7.   Public participation and scoping exercise

 

   8.   Terms of reference

 

   9.   Environmental assessment and statement

 

 

 

PART III
Review Process of Environmental Impact Statement

 

   10.   Public review of statement

 

   11.   Conduct of public hearing

 

   12.   Approval of statement

 

   13.   Appeals

 

 

 

PART IV
Authorisation of a Statement

 

   14.   Validity of an authorisation

 

   15.   Revocation or modification of authorisation

 

   16.   Transfer of authorisation

 

   17.   Decision making by competent authority

 

 

 

PART V
Post Environmental Impact Assessment of Implemented Activities

 

   18.   Monitoring programme and evaluation report

 

   19.   Environmental audit by competent authority

 

 

 

PART VI
Establishment, Management and Functions of Board

 

   20.   Establishment of Board

 

   21.   Seal of Board

 

   22.   Membership of Board

 

   23.   Association to elect members

 

   24.   Powers and functions of Board

 

   25.   Tenure of office of member

 

   26.   Minister's power to appoint members required to be elected

 

   27.   Disqualification, removal and resignation

 

   28.   Filling of vacancies

 

   29.   Committees of Board

 

   30.   Election of Chairperson and Vice Chairperson

 

   31.   Meeting of Board

 

   32.   Meetings of committees of Board

 

   33.   Disclosure of interest

 

   34.   Validity of decisions and acts of Board

 

   35.   Reports to the Minister

 

 

 

PART VII
Executive Secretary, Registration and Certification

 

   36.   Executive Secretary, etc.

 

   37.   Registration

 

   38.   Register

 

   39.   Procedures for registration

 

   40.   Certificate of practice

 

   41.   Registration of non-residents

 

   42.   Refusal to register

 

   43.   Suspension of registration

 

   44.   Removal from the register

 

   45.   Restoration of name to the register

 

   46.   Appeal against refusal to register, etc.

 

   47.   Return of practising certificate to Executive Secretary

 

   48.   Register to be prima facie evidence

 

   49.   Offences in connection with the register

 

 

 

PART VIII
Disciplinary and other Inquiry

 

   50.   Inquiries by Board

 

   51.   Disregard of summons, etc.

 

   52.   Powers of Board at inquiry

 

   53.   Disciplinary powers of Board

 

   54.   Practitioner becoming unfit to practise

 

   55.   Appeal against decision of Board at inquiry

 

   56.   Publication of outcome of proceedings

 

 

 

PART IX
Financial Provisions

 

   57.   Revenues of Board

 

   58.   Financial year

 

   59.   Accounts and audit

 

   60.   Annual report

 

 

 

PART X
Miscellaneous

 

   61.   Enforcement of provisions

 

   62.   Public documents and register

 

   63.   Confidentiality

 

   64.   Conflict of interest by practitioner

 

   65.   Protection from personal liability

 

   66.   Powers of entry

 

   67.   Powers to require information

 

   68.   Trans-boundary environmental impact

 

   69.   Effect of registration

 

   70.   Offence and penalty

 

   71.   Exemptions

 

   72.   General penalty

 

   73.   Regulations

 

   74.   Repeal of Cap. 65:07

 

   75.   Transitional provisions

 

   76.   Act to bind State

 

Act 6, 2005,
Act 10, 2011,
S.I. 57, 2012.

An Act to provide for environmental impact assessment to be used to assess the potential effects of planned developmental activities; to determine and to provide mitigation measures for effects of such activities as may have a significant adverse impact on the environment; to put in place a monitoring process and evaluation of the environmental impacts of implemented activities and to provide for matters incidental to the foregoing.

[Date of Commencement: 25th June, 2012]

PART I
Preliminary (ss 1-5)

 

1.   Short title

   This Act may be cited as the Environmental Assessment Act.

 

2.   Interpretation

   In this Act, unless the context otherwise requires -

   "activity" includes a project, programme, plan or policy;

   "Association" means a body registered under the Societies Act, which adequately demonstrates to the Minister that it is representative of the majority of Environmental Assessment Practitioners practising in Botswana at any given time;

   "Board" means the Environmental Assessment Practitioners Board established under section 20 of the Act;

   "Chairperson" means the Chairperson of the Board;

   "committee" means a committee of the Board;

   "competent authority", in relation to an activity under this Act, means the Department of Environmental Affairs;

   "developer" means a person intending or planning to undertake a new activity or repair or extend an existing activity;

   "Director" means the Director responsible for environmental affairs;

   "environment" includes the physical, ecological, archaeological, aesthetic, cultural, economic, institutional, human health and social aspects of the surroundings of a person;

   "environmental audit" means work done to identify and evaluate compliance of the statement and the residual environmental impact of an existing activity, the effectiveness of mitigation measures and the functioning of monitoring mechanisms;

   "environmental impact" means any positive or negative effects caused by an activity on the environment;

   "environmental impact assessment" means the process and procedure for evaluating and predicting the likely environmental impact of a proposed activity;

   "evaluation report" means a report on studies carried out to ensure that environmental considerations are taken into account when an activity is implemented;

   "local authority" includes a land board;

   "member" means a member of the Board elected, appointed or nominated under section 22;

   "mitigation measures" means the reduction or control of the adverse environmental impact of an activity and includes restitution for any damage to the environment caused by such activity through engineering works, technological improvements, management measures or compensation to ameliorate any loss suffered by a person;

   "practitioner" means an Environmental Assessment Practitioner registered under section 37;

   "project brief" means a description of the likely environmental impact of an activity provided by the applicant as part of the application;

   "register" means a register of practitioners established under section 38;

   "relevant technical department" means a government department or local authority responsible for monitoring an activity undertaken under this Act, by virtue of that department or local authority having the necessary technical expertise to do so;

   "scoping" means consultations with concerned government departments, local authorities, non-governmental organisations, members of the public and any other interested persons, to determine the extent of the likely environmental impact of a proposed activity;

   "statement" means a report of the environmental assessment study;

   "strategic environmental assessment" means a process for evaluating the environmental consequences of proposed policy, plan or programme initiatives in order to ensure that they are fully included and appropriately addressed at the earliest stage of decision making, on par with economic and social considerations;

   "threshold", in relation to an environmental impact assessment of an activity, means a measurable level or limit of an output resulting from the operation of a proposed activity indicative of the activity's environmental impact; and

"terms of reference" means a document which details the main environmental issues which must be addressed in an environmental impact study.

 

3.   Application of Act

   (1) This Act applies to the activities in respect of which the Minister may prescribe by regulations.

   (2) Regulations made pursuant to subsection (1) shall prescribe -

 

   (a)   a list of activities which are likely to cause significant adverse effects on the environment, or the locations that may be environmentally sensitive, in respect of which a statement shall be mandatory;

 

   (b)   threshold determinations of environmental impact assessment with respect to the activities prescribed under paragraph (a); and

 

   (c)   criteria which shall be used to determine the likely effects of a proposed activity in order to further determine whether or not a statement is required for the activity.

   (3) The Minister may, in writing, upon application for exemption by a person implementing an activity referred to under subsection (2), exempt the activity from the provisions of this Act.

 

4.   Requirements to undertake an activity

   (1) No person shall undertake or implement an activity prescribed under section 3 unless -

 

   (a)   such person has applied to a licensing authority for authorisation to undertake such activity and authorisation has been issued under section 12; and

 

   (b)   the environmental impact of the proposed activity is fully taken into account in accordance with the provisions of this Act.

   (2) Any person who undertakes or implements an activity in contravention of subsection (1) commits an offence and is liable to a fine not exceeding P100 000, or to a term of imprisonment not exceeding five years, or to both.

   (3) A person who contravenes subsection (1) shall rehabilitate the area affected by the adverse environmental impact of the implemented activity.

   (4) In this section, "rehabilitate" means the reinstatement or restoration to a normal or functional environmental state.

   (5) A person who fails to rehabilitate the area referred to under subsection (3) commits an offence and is liable to a fine not exceeding P1 000 000, or to a term of imprisonment not exceeding 15 years, or to both.

 

5.   Ensuring issuance of authorisation

   (1) A licensing authority shall, before issuing a permit, licence, consent or approval to any person who has applied to implement an activity prescribed under section 3, ensure that authorisation has been issued for the proposed activity in accordance with this Act.

   (2) In this section, "licensing authority" means any authority vested with the responsibility of issuing permits, licences, consent or approval for any of the activities prescribed under section 3.

PART II
Preparation of Environmental Impact Assessment Documentation (ss 6-9)

 

6.   Requirements for authorisation

   (1) Every -

 

   (a)   application made to obtain authorisation for a proposed activity shall contain or be accompanied by a project brief which shall include a description of the activity; and

 

   (b)   formulation of a policy, programme, legislation, physical plan, shall contain or be accompanied by an approved strategic environmental assessment, which strategic environmental assessment shall contain a description of a policy, programme, legislation, development plan or physical plan, as the case may be.

   (2) An application made under subsection (1) (a) shall be in the prescribed form and shall be accompanied by such fee as may be prescribed.

   (3) Where the competent authority is satisfied that all relevant information is available in the application and that the activity can be carried out without any adverse environmental impact, the competent authority shall authorise the implementation of the activity.

   (4) Where the competent authority finds that information provided in the application is insufficient, the competent authority shall require and specify to the applicant the additional information to be provided.

   (5) The competent authority may upon receipt of an application under subsection (1) or at its own discretion request the developer to submit an environmental management plan.

   (6) Where the competent authority requests for an environmental management plan under subsection (5) the competent authority may request the developer to consult stakeholders.

 

7.   Public participation and scoping exercise

   (1) An applicant shall before undertaking or implementing an activity engage a practitioner to do a scoping exercise.

   (2) The applicant shall during a scoping exercise -

 

   (a)   publicise once the intended activity, its effects and benefits in the mass media using the official languages for a period of not less than 21 days; and

 

   (b)   after the expiration of the period of 21 days, ensure that the practitioner referred to under subsection (1) holds meetings with the affected people or communities to explain the nature of the activity and its effects.

 

8.   Terms of reference

   (1) Where, upon a consideration of all the information submitted by the applicant, the competent authority decides that an environmental impact assessment is required, the authority shall inform the applicant, in writing, to prepare terms of reference for the environmental impact assessment, which terms of reference shall be in the prescribed form.

   (2) An applicant shall, after complying with section 7 and subsection (1) of this section, submit the terms of reference and the results of the scoping exercise to the competent authority.

   (3) In considering the terms of reference, the competent authority shall consult with relevant technical departments or local authorities, and may -

 

   (a)   conduct such investigation as it considers necessary to ascertain the validity of the scoping exercise; or

 

   (b)   request the applicant to provide additional information for a better understanding of the terms of reference.

   (4) Where the competent authority is satisfied that the terms of reference will adequately assist in guiding the environmental impact assessment of the proposed activity, the competent authority shall approve the terms of reference within 28 days of receipt of the terms of reference and the scoping report.

   (5) An applicant shall prepare the terms of reference for the detailed environmental impact assessment study after the scoping exercise has been undertaken.

   (6) Where an applicant requires the services of a practitioner to prepare the terms of reference required in terms of subsection (1), the applicant shall appoint the practitioner at the applicant's own expense.

 

9.   Environmental assessment and statement

   (1) Where the competent authority determines that the proposed activity is likely to have a significant adverse environmental impact, it shall require that such activity undergo an environmental impact assessment or a strategic environmental assessment, the costs of which shall be borne by the developer.

   (2) An environmental impact assessment shall identify and evaluate the environmental impact of an activity with particular reference to the -

 

   (a)   health, safety or quality of life of people;

 

   (b)   archaeological, aesthetic, cultural or sanitary conditions of the environment; and

 

   (c)   configuration, quality and diversity of natural resources.

   (3) Where the competent authority determines that an environmental impact assessment, environmental management plan or a strategic environmental assessment be made under subsection (1), upon being informed in writing about the decision, the developer shall, before undertaking or implementing the activity, engage a practitioner to prepare a statement which shall be submitted by the developer to the competent authority within the period of time prescribed in the approved terms of reference.

   (4) The statement prepared under subsection (3) shall be in a form prescribed by the Minister.

   (5) A person who contravenes subsection (3) commits an offence and is liable to a fine not exceeding P1 000 000, or to a term of imprisonment not exceeding 15 years, or to both.

PART III
Review Process of Environmental Impact Statement (ss 10-13)

 

10.   Public review of statement

   (1) The competent authority shall, within 60 days of receiving a statement from a developer, examine the statement to determine whether such statement complies with the requirements prescribed by the Minister.

   (2) Where the statement complies with the requirements prescribed by the Minister, the competent authority shall -

 

   (a)   place, at the developer's expense, a notification in the Gazette and in a newspaper circulating at least once weekly using the official languages, for four consecutive weeks, inviting comments or objections from those persons who are most likely to be affected by the proposed activity and other interested persons, stating the -

 

      (i)   nature and magnitude of the activity,

 

      (ii)   location of the activity,

 

      (iii)   anticipated environmental impact of the activity, and

 

      (iv)   proposed mitigation measures to respond to the negative environmental impact; and

 

   (b)   in its decision making, consider the comments or objections raised by persons who are likely to be affected by the proposed activity and other interested persons.

   (3) The competent authority shall carry out or cause to be carried out the review of environmental assessment statements at the compete

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