Centre for Environmental Rights – Advancing Environmental Rights in South Africa

On 25 March 2022, the Minister of Forestry, Fisheries and the Environment published a draft National Biodiversity Offset Guideline . The deadline for the submission of comments was extended to 26 May 2022.

Interested parties are encouraged to submit comments on the draft Guideline via email to Ms Pamela Kershaw at [email protected].

The draft Guideline’s Introduction provides as follows:

The purpose of this guideline is to indicate when biodiversity offsets are likely to be required as mitigation by any competent authority (CA), to lay down basic principles for biodiversity offsetting and to guide offset practice in the environmental authorisation (EA) application context.

This guideline is an implementation guideline contemplated in section 24J of the National Environmental Management Act, 1998 (NEMA). Guidelines published in terms of that section give guidance on, inter alia, “the implementation, administration and institutional arrangements of [the Environmental Impact Assessment Regulations, 2014 (EIA Regulations) or subsequent regulations regarding the environmental impact assessment process].”

This guideline is therefore applicable to applications for EA in terms of section 24 of NEMA. However, it can also be used to inform other administrative processes that may involve biodiversity offsetting, including applications for EA in terms of section 24G of NEMA, emergency directives contemplated in section 30A of NEMA, applications for licences under the National Water Act, 1998, the National Forests Act, 1998 and the National Environmental Management: Waste Act, 2008, applications for development rights in terms of the Spatial Planning and Land Use Management Act, 2013 and requests for the de-proclamation, or the withdrawal of declarations, of protected areas in terms of provincial legislation or NEMPAA.

This guideline is applicable in the terrestrial and freshwater realms. It is therefore not applicable in the offshore marine realm and estuarine ecosystems. The guideline focuses on ecosystems as the primary unit for expressing ecosystem-based offset requirements, given the strong foundation that the EIA Regulations and EIA implementation already have in ecosystem concepts. However, some guidance on species and other biodiversity features are given, but to a lesser extent.

The guideline does not replace NEMA’s provisions regarding EA processes, or the EIA Regulations. It guides the implementation of NEMA and the EIA Regulations in the context of mitigation of biodiversity impacts and use of biodiversity offsets, and should therefore be read in conjunction with those laws.

Biodiversity offsetting is a mitigation measure that is potentially applicable in all EA application processes regardless of the identity of the applicant. This guideline is therefore applicable to EA applications made by private persons or entities, as well as organs of state.

The guideline is for CAs, environmental assessment practitioners (EAPs), specialists in environmental assessment processes, commenting authorities, statutory conservation authorities, interested and affected parties (I&APs), applicants for EA (or other authorisations or licences) and financial institutions funding proposed projects that require EA.