29 September 2006
Marthinus van Schalkwyk, Minister of Environmental Affairs and Tourism, has
considered the appeals lodged against the decision to grant authorisation in
terms of section 22 of the Environment Conservation Act (ECA), Act 73 of 1989,
for the development of the De Hoop Dam. The full text of the Minister's
decision relating to the appeals is appended below.
Appeal decision
1. Introduction
The project in question is a proposed dam in the Steelpoort River, between
Steelpoort and Roossenekal, a tributary of the Olifants River on the farm De
Hoop. The Steelpoort River flows into Mozambique where the Massingir Dam which
is in the process of being upgraded, has been constructed on the same stretch
of river.
The applicant in this project is the Department of Water Affairs and
Forestry. This is a project of the Limpopo regional office of the Department of
Water Affairs and Forestry (DWAF) and forms part of the Olifants River Water
Resources Development Project (ORWRDP).
In terms of the environmental impact assessment (EIA) regulations made under
the Environment Conservation Act, 1989 (Act 73 of 1989) and which Act still
governs this project, the construction of a dam affecting the flow of a river
is an activity which is subject to EIA and requires an environmental
authorisation.
A positive Record of Decision (ROD) was granted for the development of the
De Hoop Dam on 22 November 2005 by the department, but several appeals were
received by my office against the proposed development.
My decision regarding the administrative appeals lodged against the
department's decision to grant authorisation in terms of section 22 of the
Environment Conservation Act, Act 73 of 1989 on the proposed development is
indicated in paragraph three hereunder after a brief background and discussion
of what I consider to be pertinent to this matter.
2. Background
In reaching my decision, I have considered the following information:
* the content of the project file
* the appeal documentation related to this matter, the consultant's response
and the appellants' further responses thereto
* the department's response to the grounds of appeals contained in the appeal
submissions and the responses thereto
* the experts' specialist review
* other relevant documents.
The documents before me indicate:
2.1 The appeals:
After the record of decision in this matter was granted, my office received
five appeals from various parties both in their personal and representative
capacities namely:
* Mr Errol Pietersen, who lodged an appeal in his personal capacity as a
concerned conservationist
* Mr Philip Owen, Steering Committee Member - Environment, lodged an appeal on
behalf of the South African Water Caucus (SAWC)
* Mr Rupert Lorimer, Chairman of the National Parks Support Group Trust on
behalf of the trust
* Dr David Mabunda, Chief Executive Officer of South African National Parks
(SANParks) who lodged an appeal on behalf of SANParks;
* Dr Nicholas King, the Executive Director of the Endangered Wildlife Trust
(EWT) on behalf of the Trust.
An additional appeal was also received from an organisation in Mozambique
called Geasphere, but which appeal was only received a considerable time after
the deadline for the submission of appeals had closed. This notwithstanding,
the issues raised in that appeal are similar to and addressed for the most part
by the appeals indicated above and will not be responded to specifically.
Several grounds of appeal emerged from the above appeals that could broadly
be categorised, in my view, as follows:
a) Ecological sustainability (both aquatic and terrestrial) including:
* concerns were expressed around the adequacy of the ecological reserve of
the Steelpoort and Olifants Rivers and the associated potential impacts on the
Kruger National Park (KNP)
* flooding of areas where rare and endangered plant and animal species occur
and inadequate consideration of the threat to the biodiversity of the area of
the proposed development
* inadequate consideration of the cumulative impacts of this development
* inadequate consideration of eco-sustainable alternatives
* inadequate mitigation of risks to the ecosystems
* impacts on biodiversity of the Sekhukhune Centre of Endemism and Steelpoort
Sub-Centre.
b) Socio-economic inadequacies including:
* the need for the dam
* the contention that the dam will only benefit mining and industrial
activities and that potable water provision for communities that is used as
motivation for the dam will not necessarily materialise
* pollution from mines and industries and their potential impact on the
Olifants River system
* negative impacts on tourism due to the viability of the KNP
* financial viability of the project (adequate funding for the development and
implementation of management measures)
* the need for a Strategic Environmental Assessment (SEA) that would allow for
a broader view relating to the impacts of further development on the catchment
and the Kruger National Park.
c) Procedural aspects of the environmental impact assessment process and the
record of decision including:
* inadequate appeal period
* general perceived inadequacies
* unhappiness with the conditions attached to the record of decision
* inadequate public participation and consultation with regard to
community-based organisations (CBOs) and international stakeholders.
2.2. The experts and their recommendations
Based on an initial review of the appeals, I decided that this matter was
reasonably complex and that certain aspects of the appeal required specialist
knowledge. Consequently, I appointed external experts to review the
hydrological, ecological and procedural aspects of the EIA process and to
advise me on the matter. I agreed to the appointment of Professor MT Seaman,
Director of the Centre for Environmental Management at the University of the
Free State and associate professor in Water Environmental Management and Mr C
Bruwer, a registered environmental scientist with the consultancy
EnviroAfrica.
The external experts reviewed the contentions of:
* the appellants initially (the original appeals)
* the applicant's (DWAF's) consultants in reply to those grounds of
appeal
* the appellants countering the submissions made by DWAF's consultants and made
certain recommendations that included:
a) That in future, the Department of Environmental Affairs and Tourism
(DEAT) should either warn registered interested and affected parties when a ROD
is likely to stretch over December-January or ensure that the appeal period
does not run during these periods.
b) It is recommended that a section be included in an amended ROD that will
clearly indicate which 'essential aspects' must be achieved.
It is further recommended that a written commitment from DWAF be obtained,
indicating its acceptance of condition 3.3.19, i.e. that DWAF should be
responsible for all costs necessary to comply with the other conditions, unless
otherwise specified.
c) DWAF should also supply written agreement that it will ensure that the
domestic saleable portion will serve the disadvantaged communities as specified
by means of ensuring that the required water resources development plans and
water services development plans are approved for the respective local
authorities in whose areas these communities reside.
d) Additional strategic level investigations are required by DWAF including
assessment of cumulative effects to ensure cumulative impacts are identified,
assessed and managed and should be done within the adaptive management strategy
prior to dam construction in order to prevent a situation where after the dam
is constructed, a critical (cumulative) impact is identified that would negate
the construction of the dam.
An SEA study of the Lowveld / Kruger Park Ecosystem as a whole needs to be
carried out with a degree of urgency to determine cumulative impacts of
development on the area, which has increasing threats to its ecosystem
integrity and sustainable economic development. The Mozambique government
should be a party to this study.
e) A renewed concerted effort should be made as part of the EIA process to
solicit response from co-basin states and especially Mozambique. This should be
done through the official channels between the South African and the co-basin
state governments. Written confirmation must be obtained by DWAF from the
Mozambique government that it has given clearance for this dam to be built.
f) An Operational Phase Management Plan (OPMP) for the Steelpoort River
downstream of the De Hoop Dam and from the confluence of the Steelpoort and the
Olifants Rivers, to the eastern boundary of the KNP, with specific reference to
meeting the environmental water requirements of the mentioned sections of
rivers as determined for the current preliminary reserves needs to be drawn up
and implemented. This plan also needs to address operational constraints such
as dam outlet sizes availability of water for the environment capping flows in
river sections used as conduits, etc. This OPMP is necessary to determine
whether there are not currently deficits in the river section mentioned that
can only be met by larger environmental water releases from the De Hoop Dam.
This OPMP, before the De Hoop Dam is constructed, is essential because
otherwise it may lead to a situation where the already stressed river section
under discussion becomes even more stressed with regard to its environmental
water requirements. The implementation of the OPMP also needs to have a written
agreement from DWAF so that it is legal and will be implemented by DWAF which
has accountability under the National Water Act for the implementation of the
"reserve". Provision is made for this in the suite of management plans referred
to in the ROD.
g) An SEA is once again indicated and will have to be carried out with some
urgency on the Lowveld/KNP Ecosystem. As water and aquatic ecosystems are at
the heart of this issue, DWAF would have to take responsibility for the
SEA.
Via the suggested Adaptive Management Strategy, the Aquatic Reserve should
be re-determined and fine-tuned as DWAF proceeds to develop an operating
strategy for the dam. Compliance is critical.
h) It is recommended that DWAF identify replacement land by means of
specialist surveys that can replace the ecosystem lost that will be transferred
to the relevant nature conservation authorities for management as a nature
reserve. The deficit would be unacceptable if there is a reasonable certainty
that species could be lost and in such a case the impact of the "no
development" option should be critically reassessed to indicate the way forward
with the proposed De Hoop Dam.
i) To this end the evaluation consultants feel that the issues and
commitments made by the government reported in the environmental impact report
(EIR) in the section on co-operative governance as well as the ability of
government to meet its commitments should be specified in the ROD. This
specification should also include the commitments and ability to meet them by
all stakeholders involved in co-operative governance aspects related to the
proposed project.
2.3. Other issues of relevance:
In reaching my decision on the matter, I have, in addition to the above
considered the following relevant information:
a) the submission by the DWAF regarding the bilateral held between them and
SANPARKS and the recommendations emanating therefrom
b) the analysis of the ROD conducted by the Environmental Assessment
Practitioners (ACER Africa)
c) the notes of a meeting held between DWAF and appellants in June 2006
d) the department's response to the grounds of appeal.
3. Decision
Having considered the above information, I have decided as follows:
3.1 The need for the proposed dam has clearly been demonstrated and there is
no viable alternative to a supply-side solution for the envisaged demands on
the system.
3.2 The construction and operation of the dam will however have definite and
substantial detrimental impacts on the environment.
3.3 The substantial impacts cannot therefore be avoided but measures must be
put in place to mitigate the potential impacts to acceptable levels.
3.4 The current Record of Decision does not adequately mitigate and manage the
detrimental impacts and the grounds of appeals related to certain of the
conditions and certain substantive issues should be upheld.
3.5 The dam may have certain positive impacts both in terms of socio-economic
and ecological aspects, but the ROD fails to adequately highlight or address
these potential positive impacts.
3.6 An amendment of the record of decision and certain conditions thereof would
be required to address the identified inadequacies.
In so far as the issues raised with regard to the cumulative impacts to the
environment are concerned, I am satisfied that they have been adequately
assessed relative to the scope of this EIA. However, I share the concerns
raised by some appellants with regard to the cumulative impacts associated with
inter alia further development pressure and water demands on the catchment and
the Kruger National Park. I therefore direct the department to initiate a
process in partnership with Department of Water Affairs and Forestry and other
major authorities, to conduct a Strategic Environmental Assessment or related
process that would guide future development and inform levels of acceptable
change for the area in question.
I have decided therefore to partially uphold the appeals submitted in this
regard and my office will issue a revised Record of Decision on or before the
13 October 2006 that will take into account some of the concerns expressed by
the appellants and in so doing, ensure that adequate and proper mitigation of
the potential impacts of this development takes place.
Issued by: Ministry of Environmental Affairs and Tourism
29 September 2006
