Environment Act (Environmental Significance Declaration) Regulations 2005

Environment Act (Permits and Consents) Regulations 2005

ENVIRONMENT (PERMITS AND CONSENTS) REGULATIONS 2011

Queen’s Representative

ORDER IN EXECUTIVE COUNCIL

At Avarua, Rarotonga, this day of 2011

Present:

HIS EXCELLENCY THE QUEEN’S REPRESENTATIVE

IN EXECUTIVE COUNCIL

PURSUANT to Section 70 of the Environment Act 2003 the Queen’s Representative, acting by and with the advice and consent of the Executive Council, makes the following regulations.

ANALYSIS

Environment Act (Permits and Consents) Regulations 2005

1. Title

2. Commencement

3. Interpretation

PART 1 – ADMINISTRATION

4. Compliance, Enforcement and Monitoring Division of the National Environment Service

5. Establishment of environment standards

6. Notices concerning environmental permits and consents

7. Approval of building permit subject to regulations

8. Approval of offensive trades licenses subject to regulations

9. Compliance with sewerage regulations

PART 2 –

ACTIVITIES THAT REQUIRE ENVIRONMENTAL PERMITS AND CONSENTS

10. Activity that causes significant environmental impacts

11. Activity that may be significantly affected by the environment

12. Change of use requires environmental permits and consents

13. Activities in foreshore or inland waters require environmental permits and consents

14. Activities on sloping lands require environmental permits and consents

15. Activities in wetlands require environmental permits and consents

PART 3 –

INITIAL ASSESSMENT

16. Completing environment significance declaration form

17. Registering environment significance declaration form

18. Site visit to confirm details of environment significance declaration form

19. Review of environment significance declaration form

20. Submission to Director

PART 4 –

ENVIRONMENTAL IMPACT ASSESSMENT

21. Requirement for environmental impact assessment

22. Projects that require environmental impact assessment

23. Precautionary principle

24. Letter of Advice.

25. Terms of Reference

PART 5 –

TECHNICAL (FOCUS) REPORT

26. Requirement for technical (focus) report

27. Projects that require technical (focus) report

28. Letter of Advice

29. Terms of Reference

PART 6 –

PREPARATION AND SUBMISSION OF EIA AND TECHNICAL (FOCUS) REPORT

30. Roster of accredited engineers or environmental specialists

31. Applicant to retain qualified engineer/environmental specialist

32. Information to be provided by the applicant

33. Applicant to submit report to the National Environment Service

PART 7 –

REVIEW OF EIA AND TECHNICAL (FOCUS) REPORT

34. Review of report

35. Additional information

36. Technical review

37. Public review of EIA

38. Memorandum for Environment Authority

PART 8 –

REVIEW BY ENVIRONMENT AUTHORITY

39. Consideration by Environment Authority

40. Notification to applicant

41. Certificate of Environmental permits and consents

42. Appeal

43. Deferral

44. Other enactments apply

PART 9 –

MANAGEMENT AND MONITORING

45. No work to be undertaken until environmental permit or consent received

46. Environmental management and monitoring

PART 10 –

ENFORCEMENT AND PENALTIES

47. Powers of inspectors

48. Inspections

49. Director may issue orders

50. Employee Protection

51. Liability of corporate directors and officers

52. Proof of offence

53. Offences and penalties

54. Conditions

SCHEDULES

Environment Act (Permits and Consents) Regulations 2005

REGULATIONS

1. Title - These Regulations are the Environment (Permits and Consents) Regulations 2011.

2. Commencement – These Regulations come into force on the 15th day after the date that the Queen’s Representative signs the Order in Executive Council making these Regulations.

3. Interpretation – In these Regulations, unless the context otherwise requires, -

“Act” means the Environment Act 2003;

“Accredited engineers or environmental specialists” means persons who are qualified to undertake an environmental impact assessment or technical (focus) report and are registered pursuant to regulation 29;

“Applicant” means any person or company that applies for any environmental permits and consents pursuant to the requirements of these Regulations, and includes the lawfully authorized agent of any such person or company;

“Authority’’ means the Environment Authority established under Section 11 of the Act;

“Climate change” means a change of climate that is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods;

“Climate change impacts” include:

(a) Increased frequency and intensity of rainfall and tropical storms;

(b) Higher risk of coastal erosion and flooding as a result of rising and extreme sea levels and changing wind patterns;

(d) Resurgence of dengue fever and other tropical and water-borne diseases;

(e) Reduced productivity of food crops and associated impacts on food security due to climate variability, soil degradation and increased salinity;

(f) Loss of local biodiversity from habitat changes, climate variability, extreme events, sea level rise, and ocean warming;

“Climate variability” refers to fluctuations in climate over a shorter term, namely the departures from long-term averages or trends, over seasons or a few years, such as those caused by the El Niño Southern Oscillation phenomenon;

“Coastal protection” includes any means used to protect foreshore from natural and harmful human-induced destructive forces and includes the use of –

(a) Hard engineering options including but not limited to seawalls, groynes, gabion baskets, drainage channels, rock and concrete walls, barrages and the excavation of corals, sand, rubble, pebble, cobbles and rock, and

(b) Soft engineering options including but not limited to beach replenishment, planting of vegetation and dredging of lagoons, waterways and canals;

“Commercial facility” means –

(a) any building, office or place in which two or more persons are engaged, or in which one or more persons are employed, directly or indirectly, in any handicraft, or in preparing or manufacturing goods for trade of sale, and includes any building, office, or place in which work such as is ordinarily performed in a commercial facility is performed for or on behalf of any Island Council whether for trade or sale or not, but does not include any building in the course of erection, nor any temporary workshop or shed for workmen engaged in the erection of such building;

(b) every tourism facility;

(d) every building or place in which steam or other mechanical power or appliance is used for the purpose of preparing or manufacturing goods for trade or sale, or packing such goods for transit;

(e) every building or place in which electrical energy is generated or transformed as an illuminant or a motive power for trade or sale;

(f) every commercial laundry, whether the persons engaged or employed therein receive payment or not;

(g) every building or place in which any noxious handicraft, process or employment is carried on; and

every building or place in which goods are stored or packed or otherwise kept for disposal whether by way of sale or otherwise but this shall not be interpreted to include any building or place used by any person for purposes not connected with any business or trade.

“Cook Islands waters” has the same meaning given in Section 2 of the Act;

“Director” means the Director of the National Environment Service or any person delegated to act on his behalf pursuant to the provisions of Section 8 of the Act;

“Discharge” includes, but is not limited to, spilling leaking, pumping, pouring, emitting, seeping, emptying, or dumping;

“EIA” means an Environmental Impact Assessment as provided under these Regulations;

"Environment" has the same meaning given in Section 2 of the Act;

“Environment Authority” means the Island Environment Authority established pursuant to Section 11 of the Act;

“Environmental Permits and Consents” means any approval given to applicants, as applicable, under Sections 36, 46, 50, 51, 57, or 58 of the Act;

“Environment Officer” means an Environment Officer appointed under the Act;

“ESD Form” means the Environmental Significance Declaration Form as provided under these Regulations;

“Extreme events” includes any flood, hurricane, drought, tropical storm, or abnormal temperature or precipitation event;

“Foreshore” has the same meaning given in section 2 of the Act;

“Gabions” means rock filled plastic wiring casing used mainly for stream bank, coastal or land protection;

“Inspector” means any environment officer;

“Inland waters” has the same meaning given in section 2 of the Act;

“Mean high water mark” has the same meaning given in section 2 of the Act;

“Motu” means any cay, isle or islet;

“National Environment Service” means the National Environment Service established under Section 5 of the Act;

“Protected species” has the same meaning given in section 2 of the Act;

“Rare, threatened or endangered species” means any species decl IUCN

“Significant Environmental Impacts” means an important, meaningful, or serious impact on or from the environment, either in the context of the setting or the proposed project or activity, or in the context of the magnitude of the proposed project or development activity's impact on the environment, or the effect of the environment on the proposed project or development activity. Criteria for determining significance include, but are not limited to:

(a) the degree to which public health and safety are affected;

(b) (ii) the degree to which the unique characteristics of the geographic area are affected;

(d) the degree to which unique or unknown risks are taken;

(e) the degree to which a precedent for future action is made;

(f) the potential for cumulative environmental impacts;

(g) the degree to which the natural functioning of the ecosystem is likely to be inhibited;

(h) the degree to which a cultural, natural, scientific or historic resource may be threatened;

(i) The degree to which the project will be affected by climate change impacts;

(j) the potential to threaten the existence of protected species or their critical habitat;

(k) the degree to which fish and wildlife resources of ecological, commercial, subsistence, and recreational importance are jeopardized; and

(l) the extent to which one use of a resource may be incompatible with another use of that resource;

“Sloping Land” means land with a gradient of more than 1:10;

“Tu’anga Taporoporo” means the body established by section 5 of the Act;

“Wetlands” has the same meaning given in section 2 of the Act;

“Wildlife” has the same meaning given in section 2 of the Act.

PART 1 – ADMINISTRATION

4. Advisory and Compliance Division of the National Environment Service - The National Environment Service shall maintain an Advisory and Compliance Division whose main functions and duties are to:

(a) Provide advice to Government, Islands Authorities and the general public on control of pollutions, physical development, and any human activities that may cause significant environmental impacts;

(b) Establish standards or requirements to protect the environment or manage human activities that may cause significant environmental impacts:

(c) Monitor and enforce compliance with any standards or requirements of any environmental permits and consents granted under the Act and these Regulations;

(d) Receive, assess and make recommendations to the Environment Authority (EA) on all applications for any environmental permits and consents as provided under the act and these Regulations;

(e) Respond to complaints on projects or activities that are subject to any environmental permits and consents granted under the Act and these Regulations;

5. Establishment of environment standards – (1) Within 18 months of this Regulation coming into force the Advisory and Compliance Division shall initiate a process through public consultation to develop standards and requirements for the management of discharges into the air, water, land and marine ecosystems.

(2) Any standard or requirement developed pursuant to subclause (1) shall be published in the Gazette and shall constitute a condition for any permit or consent issued under these regulations.

6. Notices concerning environmental permits and consents - The National Environment Service shall place regular notices in local media to inform the public of the requirement to:

(a) complete and submit, pursuant to the requirements of regulation 15 of these Regulations, an Environmental Significance Declaration Form;

(b) and obtain, pursuant to the requirements of regulation 40 of these Regulations, any environmental permits and consents,

for any proposed building or development activity that may have any significant environmental impacts.

7. Approval of building permit subject to regulations - The Ministry of Infrastructure and Planning will not approve a building permit under the provisions of the Building Control and Standards Act 1991 and Building Control and Standards Regulations 1991 until an Environmental Significance Declaration is made and any environmental permits and consents are obtained from the National Environment Service pursuant to the requirements of the Act and these Regulations.

8. Approval of offensive trades licenses subject to regulations – The Ministry of Health will not approve a license for an offensive trade under the provisions of section 52 of the Public Health Act 2004 until an Environmental Significance Declaration is made and any environmental permits and consents are obtained from National Environment Service pursuant to the requirements of the Act and these Regulations.

9. Compliance with sewage regulations – Notwithstanding any provision in these Regulations, any environmental permit or consent shall not be issued by the National Environment Service pursuant to these Regulations unless the project or activity complies with the requirements of the Public Health Act 2004 and Regulations.

PART 2 – ACTIVITIES THAT REQUIRE ENVIRONMENTAL PERMITS AND CONSENTS

10. Activity that causes or is likely to cause significant environmental impacts - No person shall erect any building, remove vegetation or undertake any activity which may have any significant environmental impacts except in accordance with any environmental permits and consents issued by the National Environment Service under these Regulations.

11. Activity that may be significantly impacted by the environment or changes in the environment – (1) Subject to the provision of subclause (2), no person shall undertake any activity which may be significantly impacted, or is likely to be significantly impacted, by the environment or changes in the environment, including, but not limited to impacts from:

(a) climate change or climate variability;

(b) hazards and disasters;