This legal update analyses and highlights key provisions of four recently enacted Environmental Management Regulations.
The Environmental Management Regulations came into force on 17 May 2024;
(a) The Environmental Management (Integrated Coastal Zone Management) Regulations, Government Notice No. 366 of 2024 (the Coastal Zone Management Regulations);
(b) The Environmental Management (Right to Compensation) Regulations, Government Notice No. 367 of 2024 (the Right to Compensation Regulations);
(c) The Environment Management (Access and Benefit Sharing of Genetic Resources) Regulations, Government Notice No. 368 of 2024 (the Genetic Resources Regulations); and
(d) The Environmental Management (Environmental Performance Bond) Regulations, Government Notice No. 369 of 2024 (the Performance Bond Regulations).
These regulations are designed to protect environmental integrity and public health, affecting a wide range of stakeholders, including business owners, developers, local government authorities, and individuals involved in activities that impact the environment.
Key Definitions
The following are key terms and definitions set out in the aforementioned laws and applied in this updater:
“compensation” means payment of damages or any other act that a court or other authority orders to be paid or done by owner or operator whose act or omission has caused –
i. loss of life or personal injury;
ii. loss of or damage to property other than to the installation itself or property held under the control of the operator, at the site of the hazardous activity;
iii. loss or damage to the environment which is not considered to be damage within the meaning of paragraphs (i) or (ii) and shall be limited to the costs of measures of reinstatement undertaken or to be undertaken; or
iv. any person to incur cost of preventive measures against injury or damage;
“competent authority” means the government office, ministry, department, regulatory authority, research institution, local government authority or agency responsible for management of any aspect of genetic resources or associated resource;
“detailed decommissioning plan” means an updated conceptual decommissioning plan or that developed during project construction, operation, and post-operation phases;
“environmental damage” means undesirable change, impairment, or disturbance to the environment as a result of discharge, emission, escape or migration of hazardous substances and hazardous wastes above threshold limits, that has potential adverse effects to human health, property, and environmental integrity; and
“environmental performance bond” or “bond” means security in form of cash or bank, or insurance guarantee deposited by a developer for the purpose of ensuring safe decommissioning of a project, site rehabilitation and ecosystem restoration.
PART A : Right to Compensation Regulations
- Liability for compensation: Owners or operators whose actions or omissions cause environmental damage are liable for compensating affected persons or properties. Liability is joint and several if control changes during continuous incidents and the burden of proof of non-occurrence of damage alleged lies on the owner or operator. Exemptions from liability include acts of war, compliance with public authority orders, and lawful hazardous activities. Compensation may be denied or reduced if the claimant is at fault.
- Eligibility: A person is eligible for compensation if they suffered damage while protecting the environment, suffered damage as a result of environmental damage, or had their property damaged due to environmental damage.
- Actions for compensation and other claims: Any claims must be filed within three (3) years from when the damage was known or reasonably should have been known. Applications for compensation are lodged by way of letter to the National Environment Management Council (NEMC), including necessary documentation such as an examination report from a medical doctor or public health officer and a report from an environmental expert. NEMC will mediate the dispute within twenty-eight (28) days and if successful, the mediation agreements are binding and enforceable. Where mediation fails, claims may proceed to civil court.
PART B: The Coastal Zone Management Regulations
- Integrated coastal zone management plan: Each local government authority must prepare an Integrated Coastal Zone Management Plan for its jurisdiction. The plan must align with the National Vision for coastal zone management, the National Integrated Coastal Environmental Management Strategy, the National Environmental Master Plan for Strategic Interventions, and any other related environmental instruments. The plan must include objectives, strategies, key performance indicators, environmental challenges, and measures for sustainable utilisation of coastal resources.
- Regulation and protection of coastal zone resources: Local government authorities are responsible for regulating and ensuring the sustainable use and conservation of coastal resources within their areas. They must enforce by-laws, create awareness, and build community capacity regarding the management and protection of environmentally sensitive or protected areas. Utilisation of flora and fauna in these areas is prohibited unless specifically allowed during the declaration of such areas.
- Easement in environmental sensitive or protected areas: Easement through these areas may be allowed for public interest, but a person granted an easement must not conduct certain activities including cutting vegetation, introducing alien species, waste disposal of any kind, build or erect any structures, or mine.
PART C: The Genetic Resources Regulations
- Access to genetic resources: It is prohibited to access, develop, or utilise genetic resources or associated traditional knowledge of Tanzania without obtaining a permit from an appropriate Competent Authority. The application must be done in accordance with the laws governing specific genetic resources or associated traditional knowledge and must have, among others, a written prior informed consent to be obtained from the local community or respective local government authority.
- Exportation of genetic resources: It is prohibited to export genetic resources without obtaining an export clearance certificate. The application must be made through a prescribed form in the Third Schedule of the Genetic Resources Regulations accompanied by relevant documentation including but not limited to, a written prior informed consent from a local community managing genetic resources or associated traditional knowledge, and access permit or research permit issued by a competent authority.
- Importation or transit of genetic resources: A person who imports or transits genetic resources through Tanzania must declare the genetic resources in his possession or under his control to customs at the point of entry or exit and prove lawful acquisition of such genetic resources from the country of origin.
PART D: The Performance Bond Regulations
- Decommissioning plan: Developers are required to prepare detailed decommissioning plans (DDP) prepared by a registered environmental expert, within a set timeframe under the First Schedule of the Performance Bond Regulations that is dependent on the type of project. The DDP must be reviewed and approved by NEMC within ninety (90) days from date of receipt. Upon approval, NEMC must submit it to the Director of Environment (the Director) for determination of the form of environmental performance bond (EPD) to be deposited by the developers.
- Deposit of bond: Upon determination of the EPD, the Director must notify NEMC to inform the developer through a notice, to deposit the EPD in the form determined. The developer must deposit the EPD within thirty (30) days of receipt of the notice. Upon payment, the Minister of Environment (the Minister) will issue an EPD Certificate.
- Project decommissioning: A developer is required to notify NEMC of any intention to cease operation of a project by submitting a compliance report on a DDP and thereafter, NEMC will notify the Minister and within ninety (90) days, NEMC must inspect the project to confirm compliance with the conditions, specifications and standards set out in that DDP. After NEMC establishes that a developer has observed safe decommissioning to the required standards, they must recommend the discharge of the EPD to the Director who upon satisfaction of the recommendation, can then discharge the EPD.
- Confiscated bond: In the event a developer fails to meet conditions set for safe decommissioning and rehabilitation obligations, the confiscated EPD must be used to rehabilitate the affected environment. NEMC must notify the Director on its intention to use the confiscated EPD to undertake rehabilitation at a respective ceased or abandoned project site.
- Exemptions: The Performance Bond Regulations do not apply to projects undertaken by the Government of Tanzania (GoT) for service purposes i.e. projects conducted by the GoT to provide services to the public. Moreover, the EPD deposited to the Director by a developer is not an exemption for non-compliance to applicable laws and regulations nor is it a defence to any civil action or prosecution that may be brought against a developer.
Conclusion
Understanding and complying with Tanzania's environmental regulations is crucial for businesses and individuals engaged in activities that impact the environment. These regulations ensure that environmental damage is addressed, coastal resources are managed sustainably, genetic resources are protected, and projects are decommissioned responsibly. Adherence to these rules not only safeguards the environment but also mitigates legal risks and enhances community and stakeholder trust. Stakeholders must stay informed and proactive in meeting these regulatory requirements to promote sustainable and responsible development in Tanzania.
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