NEMA Approval in Kenya: 20 Things You’d Love to Know

Do you have a project and are required by the National Environment Management Authority (NEMA) to submit an Environmental Impact Assessment (EIA) report?  

Here are 20 things to know about NEMA approval in Kenya, according to the Environmental Management and Coordination Act No. 8 of 1999, Environmental (Impact Assessment And Audit) Regulations 2003, the Environmental Management and Coordination Act (Amendment) Act 2015, and Environmental (Impact Assessment and Audit) (Amendment) Regulations 2019.

1. Environmental Impact Assessment (EIA) should only be carried out by a licensed Environmental Impact Assessment (EIA)/Environmental Audit (EA) expert or a firm of experts licensed and duly registered by NEMA. (EMCA 1999 Section 58 subsection 5).
2. The register of EIA/EA experts and all issued EIA licenses are public documents. You can inspect a register after paying Ksh.200. (EMCA 1999 section 58 subsection 5)
3. The EIA consultant should give the proponent one duly signed copy of the report.
4. All projects that require an EIA license MUST undergo the NEMA approval process. An EIA is done only once, before the start/financing of a project, while an Environmental Audit (EA) is done annually. (EMCA 1999 Section 58 subsection 1)
5. An EIA is carried out at the proponent’s expense. (EMCA section 58 subsection 2)
6. Important documents and information to give to your consultant include:
   1. Title deed or duly signed lease agreement if you don’t own the land
   2. Information on the existence of a court case regarding the land
   3. An approved change of user from the County Department of Physical Planning, if needed
   4. Certified Bill of Quantities (BQ)
   5. Approved architectural plans
   6. Approved structural plans
7. Legal Notice 31 of 2019 categorizes projects as low, medium, or high risk. Legal notice 32 of 2019 details information and the type of report required for the different project risk types. Low-risk projects need a Summary Project Report (SPR) submitted online. It’s processed within five days. Medium-risk projects require a Comprehensive Project Report (CPR) submitted to relevant NEMA county offices. It’s processed within 45 days. High-risk projects require a Study Report (SR) submitted at NEMA headquarters in Nairobi. The SR is processed within 90 days.
8. The public participation process is standard for all reports. Project Affected Persons (PAPs) and key stakeholders within the project location are consulted. The consultant must show proof via attendance lists, filled questionnaires, and meeting minutes. High-risk projects have an extra public participation step. NEMA must publish details of the Study Report (SR) in the following media after the consultant submits it:
   1. The Kenya Gazette
   2. At least two newspapers circulating in the area or proposed project location (This is usually done once per newspaper, all in the same week)
   3. Radio
   4. NEMA website
   5. In some cases, the report is subjected to public hearing. (EMCA amendment 2015 section 59)
9. NEMA charges EIA processing fees. It costs 0.1% of the project cost, derived from the certified Bill of Quantities (BQ). The minimum fee is Ksh. 10,000. There’s no cap on the maximum fees.

   

10. The Authority charges Ksh. 1,000,000 to process and monitor a Strategic Environmental Assessment (SEA) report.
11. You may be required to submit a fresh EIA after an EIA license is issued, at the proponent’s cost, for three reasons:
    1. There’s a significant change or modification of the project or how the project is operated.
    2. An environmental threat couldn’t be reasonably foreseen during the preparation, evaluation, and review of the EIA report.
    3. The information or data given by the proponent (the person proposing or executing the project) is found to be false, inaccurate, or intended to mislead.

Failure to comply with NEMA’s request for a fresh EIA constitutes an offense (EMCA 1999 section 64). Additionally, the license issued before this discovery may be canceled, revoked, or suspended by the Authority. (2015 Amendment added to section 64 of the 1999 Act)

12. You can transfer an EIA license to another person, only for a similar project. Both parties, the one transferring the license and the recipient, must jointly notify the Director General (DG) of the transfer in writing within thirty days after the transfer. The transfer takes effect on the date the DG is notified.

Failure to notify the Director General means the registered license holder is assumed to be in charge of the project. Violating these regulations amounts to an offense. (EMCA 1999 section 65)

13. Surrender, transfer, or variation of environmental impact assessment license costs Ksh. 5,000.
14. An EIA license is no defense against civil action or prosecution concerning how the project is executed, managed, or operated. (EMCA 1999 section 66 subsection II)
15. The consultant risks imprisonment of not more than three years, a fine not exceeding five million Kenya shillings, or both when they knowingly submit a false or misleading report. In such a case, the practicing license is revoked. (2015 Amendment adds subsection 10 to section 58 of No. 8 of 1999)
16. NEMA grants an EIA license with conditions. You risk license suspension when you contravene these conditions. The Authority may suspend the license for up to 24 months. Additionally, The Authority could cancel or revoke the license. The Authority communicates reasons for cancellation, revocation, or suspension in writing. (2015 Amendment section 67)
17. A proponent can appeal following at the National Environment Tribunal within 60 days of event occurrence.
    1. The grant of a license or permit
    2. The refusal to grant a license or permit
    3. The transfer of a license or permit
    4. The revocation, suspension, or variation of the EIA license
    5. The amount of money required to pay as EIA/SEA processing and monitoring fee
    6. Imposition of environmental restoration order or environmental improvement order

The existing state of affairs is maintained until the Tribunal reaches a verdict. (EMCA 1999 section 129, amended 2015)

18. A proponent can appeal to the High Court if aggrieved by the Tribunal’s decision. (EMCA 1999 section 130)
19. Information or documents submitted concerning an EIA, including the application outcome and reasons, are available to the public. However, a proponent can apply to exclude proprietary information or part of it from the public if it’s commercially confidential or affects national security. If it rejects the application, the Authority communicates within 14 days with reasons. (Environmental (Impact Assessment and Audit) Regulations 2003, sections 29 and 30)
20. After receiving an EIA license, a proponent MUST get NEMA’s written approval to conduct the following activities in rivers, lakes, seas, and wetlands.
    1. Erect, reconstruct, place, alter, extend, remove, or demolish any structure or part of any structure in or under the river, lake, sea, or wetland.
    2. Excavate, drill, tunnel, or disturb the river, lake, sea, or wetland.
    3. Introduce any animal, whether alien or indigenous, dead or alive, in any river, lake, sea, or wetland.
    4. Introduce or plant any part of a plant specimen, whether alien or indigenous, dead or alive, in any river, lake, sea, or wetland.
    5. Deposit any substance in a lake, river, sea, or wetland or in, on, or under its bed if that substance would or is likely to have adverse environmental effects on the river, lake, or wetland.
    6. Direct or block any river, lake, or wetland from its natural and normal course
    7. Drain any lake, river, or wetland (EMCA 1999 section 42, amended 2015)
    8. Any other matter prescribed by the Cabinet Secretary on the advice of the Authority.

Contact us for your NEMA approval needs.