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PART I – PRELIMINARY
| 1. |
Short title
This Act may be cited as the Environmental Management and Co-ordination Act.
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| 2. |
Interpretation
In this Act, unless the context otherwise requires—
"air quality" means the concentration prescribed under or pursuant to this Act of a pollutant in the atmosphere at the point of measurement;
"ambient air" means the atmosphere surrounding the earth but does not include the atmosphere within a structure or within any underground space;
"analysis" means the testing or examination of any matter, substance or process for the purpose of determining its composition or qualities or its effect (whether physical, chemical or biological) on any segment of the environment or examination of emissions or recording of noise or sub-sonic vibrations to determine the level or other characteristics of the noise or sub-sonic vibration or its effect on any segments of the environment;
"Analyst" means an analyst appointed or designated under section 119;
"annual report on the state of the environment" means the report prepared and issued under section 9;
"Authority" means the National Environment Management Authority established under section 7;
"beneficial use" means a use of the environment or any element or segment of the environment that is conducive to public health, welfare or safety and which requires protection from the effects of wastes, discharges, emissions and deposits;
"benefited environment" means that environment which has benefited through the imposition of one or more obligations on the burdened land;
"biological diversity" means the variability among living organisms from all sources including, terrestrial ecosystems, aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, among species and of ecosystems;
"biological resources" include genetic resources organisms or parts thereof, populations, or any other biotic component or ecosystems with actual or potential use or value for humanity;
"burdened land" means any land upon which an environmental easement has been imposed;
"Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matter relating to environment and natural resources;
"chemical" means a chemical substance in any form whether by itself or in a mixture or preparation, whether manufactured or derived from nature and for the purposes of this Act includes industrial chemicals, pesticides, fertilizers and drugs;
"coastal zone" means the geomorphologic area where the land interacts with the sea comprising terrestrial and marine areas made up of biotic and abiotic components or systems coexisting and interacting with each other and with socio-economic activities;
"Complaints Committee" means the National Environmental Complaints Committee established under section 31;
"Continental Shelf" has the meaning assigned to it by the United Nations Convention on the Law of the Sea;
"controlled area" means any area designated as such by the Cabinet Secretary under this Act;
"County Environment action plan" mean a County Environment action plan prepared under section 40;
"County Environment Committee" means a committee established under section 29;
"county government" has the meaning assigned to it in section 2 of the County Governments Act (Cap. 265);
"Deposit Bond" means a deposit bond paid under section 28;
"developer" means a person who is developing a project which is subject to an environmental impact assessment process under this Act;
"Director" means a Director appointed under section 10;
"Director-General" means the Director-General of the Authority appointed under section 10;
"District Environment Action Plan" deleted by Act No. 5 of 2015, s. 2(1)(c);
"District Environment Committee" deleted by Act No. 5 of 2015, s. 2(1)(b);
"ecosystem" means a dynamic complex of plant, animal, micro-organism communities and their non-living environment interacting as a functional unit;
"effluent" means gaseous waste, water or liquid or other fluid of domestic, agricultural, trade or industrial origin treated or untreated and discharged directly or indirectly into the aquatic environment;
"element" in relation to the environment mean any of the principal constituent parts of the environment including water, atmosphere, soil, vegetation, climate, sound, odour, aesthetics, fish and wildlife;
"environment" includes the physical factors of the surroundings of human beings including land, water, atmosphere, climate, sound, odour, taste, the biological factors of animals and plants and the social factor of aesthetics and includes both the natural and the built environment;
"environmental audit" means the systematic, documented, periodic and objective evaluation of how well environmental organisation, management and equipment are performing in conserving or preserving the environment;
"environmental easement" means an easement imposed under section 112;
"environmental education" includes the process of recognising values and clarifying concepts in order to develop skills and attitudes necessary to understand and appreciate the inter-relatedness among man, his culture and his biophysical surroundings;
"environmental impact assessment" means a systematic examination conducted to determine whether or not a programme, activity or project will have any adverse impacts on the environment;
"Environmental Inspector" means any environmental inspector appointed or designated under section 117;
"environmental management" includes the protection, conservation and sustainable use of the various elements or components of the environment;
"environmental monitoring" means the continuous or periodic determination of actual and potential effects of any activity or phenomenon on the environment whether short-term or long term;
"environmental organization" means a public benefits organization whose objective is to conserve the environment and natural resources and is duly registered as a community based organization, or a public benefits organization;
"environmental planning" means both long-term and short-term planning that takes into account environmental exigencies;
"environmental resources" includes the resources of the air, land, flora, fauna and water together with their aesthetical qualities;
"environmental restoration order" means an order issued under section 108;
"environmentally friendly" includes any phenomenon or activity that does not cause harm or degradation to the environment;
"ex-situ conservation" means conservation outside the natural ecosystem and habitat of the biological organism;
"exclusive economic zone" has the meaning assigned to it by the United Nations Convention on the Law of the Sea;
"financial year" means the period of twelve months ending on the thirtieth June in every year;
"General Fund" means the General Fund established under section 20;
"genetic resources" means genetic material of actual or potential value;
"good environmental practice" means practice that is in accordance with the provisions of this Act or any other relevant law;
"hazardous substance" means any chemical, waste, gas, medicine, drug, plant, animal or microrganism which is likely to be injurious to human health or the environment;
"hazardous waste" means any waste which has been determined by the Authority to be hazardous waste or to belong to any other category of waste provided for in section 91;
"indigenous knowledge" means any traditional knowledge of sources, components, capabilities, practices and uses of, and processes of preparation, use and storage of plant and animal species and their genetic resources;
"in-situ conservation" means conservation within the natural ecosystem and habitat of the biological organism;
"intergenerational equity" means that the present generation should ensure that in exercising its rights to beneficial use of the environment the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;
"intragenerational equity" means that all people within the present generation have the right to benefit equally from the exploitation of the environment, and that they have an equal entitlement to a clean and healthy environment;
"lead agency" means any Government ministry, department, parastatal, state corporation or local authority, in which any law vests functions of control or management or any element of the environment or natural resources;
"local authority" deleted by Act No. 5 of 2015, s. 2(1)(f);
"Ministry" means the Ministry for the time being responsible for matters relating to the environment;
"mixture containing oil" means a mixture of substances or liquids with such oil content as may be specified under this Act or, if such oil content is not specified, a mixture with an oil content of one hundred parts or more in one million parts of the mixture;
"National Council of Public benefit organizations" means the Council established by section 23 of the Public Benefit Organizations Co-ordination Act, 1990 (No. 19 of 1990);
"National Environment Action Plan" means the plan referred to in section 37;
"natural resources" has the meaning provided under Article 260 of the Constitution;
"natural resource agreements" means an agreement which involves the grant of a right or concession by or on behalf of any person, including the national government, to another person for the exploitation of any natural resource in Kenya;
"noise" means any undesirable sound that is intrinsically objectionable or that may cause adverse effects on human health or the environment;
"occupational air quality" means the concentration prescribed under or pursuant to this Act of a substance or energy in the atmosphere within a structure or under-ground space in which human activities take place;
"occupier" means a person in occupational or control of premises, and in relation to premises different parts of which are occupied by different persons, means the respective persons in occupation or control of each part;
"oil" includes—
| (a) |
crude oil, refined oil, diesel oil, fuel oil and lubricating oil; and
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| (b) |
any other description of oil which may be prescribed;
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"owner" in relation to any premises means—
| (a) |
the registered proprietor of the premises;
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| (b) |
the lessee, including a sub-lessee of the premises;
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| (c) |
the agent or trustee of any other owners described in paragraphs (a) and (b) of this interpretation section or where such owner as described in paragraphs (a) and (b) cannot be traced or has died, his legal personal representative;
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| (d) |
the person for the time being receiving the rent of the premises whether on his own account or as agent or trustee for any other person or as receiver or who would receive the rent if such premises were let to a tenant; and in relation to any ship means the person registered as the owner of the ship or in the absence of registration, the person owning the ship; except that in the case of a ship owned by any country and operated by a company which in that country is registered as the ship’s operator, "owner" shall include such country and the master of the ship;
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"ozone layer" means the layer of the atmospheric zone above the planetary boundary layer as defined in the Vienna Convention for the Protection of the Ozone Layer, 1985;
"person" means a legal person;
"pollutant" includes any substance whether liquid, solid or gaseous which—
| (a) |
may directly or indirectly alter the quality of any element of the receiving environment;
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| (b) |
is hazardous or potentially hazardous to human health or the environment; and includes objectionable odours, radio-activity, noise, temperature change or physical, chemical or biological change to any segment or element of the environment;
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"polluter-pays principle" means that the cost of cleaning up any element of the environment damaged by pollution, compensating victims of pollution, cost of beneficial uses lost as a result of an act of pollution and other costs that are connected with or incidental to the foregoing, is to be paid or borne by the person convicted of pollution under this Act or any other applicable law;
"pollution" means any direct or indirect alteration of the physical, thermal, chemical, biological, or radio-active properties of any part of the environment by discharging, emitting, or depositing wastes so as to affect any beneficial use adversely, to cause a condition which is hazardous or potentially hazardous to public health, safety or welfare, or to animals, birds, wildlife, fish or aquatic life, or to plants or to cause contravention of any condition, limitation, or restriction which is subject to a licence under this Act;
"practicable" means reasonably practicable having regard, among other things, to local conditions and knowledge and the term "practicable means" includes the provision and the efficient maintenance of plants and the proper use thereof, and the supervision by or on behalf of the occupier of any process or operation;
"precautionary principle" is the principle that where there are threats of damage to the environment, whether serious or irreversible, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation;
"premises" include messages, buildings, lands, and hereditaments in every tenure and machinery, plant or vehicle used in connection with any trade carried on at any premises;
"project" includes any project, programme or policy that leads to projects which may have an impact on the environment;
"project report" means a summary statement of the likely environmental effects of a proposed development referred to in section 58;
"proponent" means a person proposing or executing a project, program or an undertaking specified in the Second Schedule;
"proprietary information" means information relating to any manufacturing process, trade secret, trade mark, copyright, patent or formula protected by law in Kenya or by any international treaty to which Kenya is a party;
"Provincial Director of Environment" means the Provincial Director of Environment appointed under section 16;
"Provincial Environment Committee" deleted by Act No. 5 of 2015, s. 2(1)d);
"Public Department" deleted by Act No. 18 of 2018, Sch.;
"radiation" includes ionising radiation and any other radiation likely to have adverse effects on human health and the environment;
"regional development authority" means a regional development authority established by an Act of Parliament;
"regulations" mean regulations made under this Act;
"Restoration Fund" means the National Environment Restoration Fund established under section 25;
"segment" in relation to the environment means any portion or portions of the environment expressed in terms of volume, space, area, quantity, quality or time or any combination thereof;
"ship" includes every description of vessel or craft or floating structure;
"soil" includes earth, sand, rock, shales, minerals, vegetation, and the flora and fauna in the soil and derivatives thereof such as dust;
"standard" means the limits of discharge or emissions established under this Act or under regulations made pursuant to this Act or any other written law;
"strategic environmental assessment" means a formal and systematic process to analyse and address the environmental effects of policies, plans, programmes and other strategic initiatives;
"sustainable development" means development that meets the needs of the present generation without compromising the ability of future generations to meet their needs by maintaining the carrying capacity of the supporting ecosystems;
"sustainable use" means present use of the environment or natural resources which does not compromise the ability to use the same by future generations or degrade the carrying capacity of supporting ecosystems;
"territorial waters" means territorial waters provided for under section 3 of the Maritime Zones Act (Cap. 371);
"trade" means any trade, business or undertaking whether originally carried on at fixed premises or at varying places which may result in the discharge of substances and energy and includes any activity prescribed to be a trade, business or undertaking for the purposes of this Act;
"traditional knowledge" means such knowledge as may be socially and culturally acquired within or without the context of conventional education by Kenyans;
"Tribunal" means the National Environment Tribunal established under section 125;
"Trust Fund" means the National Environment Trust Fund established under section 24;
"voluntary environmental management" means the principle of encouraging voluntary compliance in conserving the environment and which is a cost-effective and efficient method of attaining compliance with environmental regulations and of encouraging innovative conservation practices;
"waste" includes any matter prescribed to be waste and any matter whether liquid, solid, gaseous or radioactive, which is discharged, emitted or deposited in the environment in such volume, composition or manner likely to cause an alteration of the environment;
"water" includes drinking water, river, stream, water-course, reservoir, well, dam, canal, channel, lake swamp, open drain, or underground water;
"wetland" means areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres;
"wildlife" has the meaning assigned to it in the Wildlife Conservation and Management Act (Cap. 376).
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PART II – GENERAL PRINCIPLES
| 3. |
Entitlement to a clean and healthy environment
| (1) |
Every person in Kenya is entitled to a clean and healthy environment in accordance with the Constitution and relevant laws and has the duty to safeguard and enhance the environment.
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| (2) |
The entitlement to a clean and healthy environment under subsection (1) includes the access by any person in Kenya to the various public elements or segments of the environment for recreational, educational, health, spiritual and cultural purposes.
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| (2A) |
Every person shall cooperate with state organs to protect and conserve the environment and to ensure the ecological sustainable development and use of natural resources.
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| (3) |
If a person alleges that the right to a clean and healthy environment has been, is being or is likely to be denied, violated, infringed or threatened, in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may on his behalf or on behalf of a group or class of persons, members of an association or in the public interest may apply to the Environment and Land Court for redress and the Environment and Land Court may make such orders, issue such writs or give such directions as it may deem appropriate to—
| (a) |
prevent, stop or discontinue any act or omission deleterious to the environment;
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| (b) |
compel any public officer to take measures to prevent or discontinue any act or omission deleterious to the environment;
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| (c) |
require that any on-going activity be subjected to an environment audit in accordance with the provisions of this Act;
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| (d) |
compel the persons responsible for the environmental degradation to restore the degraded environment as far as practicable to its immediate condition prior to the damage; and
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| (e) |
provide compensation for any victim of pollution and the cost of beneficial uses lost as a result of an act of pollution and other losses that are connected with or incidental to the foregoing.
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| (4) |
A person proceeding under subsection (3) of this section shall have the capacity to bring an action notwithstanding that such a person cannot show that the defendant’s act or omission has caused or is likely to cause him any personal loss or injury provided that such action—
| (a) |
is not frivolous or vexatious; or
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| (b) |
is not an abuse of the court process.
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| (5) |
In exercising the jurisdiction conferred upon it under subsection (3), the Environment and Land Court shall be guided by the following principles of sustainable development—
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the principle of public participation in the development of policies, plans and processes for the management of the environment;
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| (b) |
the cultural and social principles traditionally applied by any community in Kenya for the management of the environment or natural resources in so far as the same are relevant and are not repugnant to justice and morality or inconsistent with any written law;
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| (c) |
the principle of international co-operation in the management of environmental resources shared by two or more states;
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| (d) |
the principles of intergenerational and intragenerational equity;
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| (e) |
the polluter-pays principle; and
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| (f) |
the pre-cautionary principle.
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| 3A. |
Access to information
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Subject to the law relating to access to information, every person has the right to access any information that relates to the implementation of this Act that is in the possession of the Authority, lead agencies or any other person.
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| (2) |
A person desiring the information referred to in subsection (1) shall apply to the Authority or a lead agency and may be granted access to such information on payment of the prescribed fee.
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PART III – ADMINISTRATION
The National Environment Council
| 5. |
Functions of the Cabinet Secretary
The Cabinet Secretary shall—
| (a) |
be responsible for policy formulation and directions for purposes of this Act;
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| (b) |
set national goals and objectives and determine policies and priorities for the protection of the environment;
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| (c) |
promote co-operation among public departments, local authorities, private sector, Non-Governmental Organisations and such other organizations engaged in environmental protection programmes;
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| (ca) |
provide evidence of public participation in the formulation of the policy and the environmental action plan; and
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| (d) |
perform such other functions as are assigned under this Act.
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| 7. |
Establishment of the National Environment Management Authority
| (1) |
There is established an Authority to be known as the National Environment Management Authority.
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| (2) |
The Authority shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of—
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taking, purchasing, charging and disposing of movable and immovable property;
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| (d) |
entering into contracts; and
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| (e) |
doing or performing all such other things or acts for the proper administration of this Act, which may lawfully be performed by a body corporate.
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| 8. |
Headquarters
The headquarters of the Authority shall be in Nairobi but the Authority shall ensure its services are accessible in all parts of the Republic.
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| 9. |
Objects and functions of the Authority
| (1) |
The object and purpose for which the Authority is established is to exercise general supervision and co-ordination over all matters relating to the environment and to be the principal instrument of Government in the implementation of all policies relating to the environment.
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| (2) |
Without prejudice to the generality of the foregoing, the Authority shall—
| (a) |
co-ordinate the various environmental management activities being undertaken by the lead agencies and promote the integration of environmental considerations into development policies, plans, programmes and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable yield basis for the improvement of the quality of human life in Kenya;
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| (b) |
take stock of the natural resources in Kenya and their utilisation and conservation;
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| (bb) |
audit and determine the net worth or value of the natural resources in Kenya and their utilization and conservation;
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| (c) |
make recommendations to the relevant authorities with respect to land use planning;
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| (d) |
examine land use patterns to determine their impact on the quality and quantity of natural resources;
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| (f) |
advise the Government on legislative and other measures for the management of the environment or the implementation of relevant international conventions, treaties and agreements in the field of environment, as the case may be;
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| (g) |
advise the Government on regional and international environmental conventions, treaties and agreements to which Kenya should be a party and follow up the implementation of such agreements where Kenya is a party;
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| (h) |
undertake research, investigation and surveys in the field of environment and collect, collate and disseminate information about the findings of such research, investigation or survey;
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| (i) |
mobilise and monitor the use of financial and human resources for environmental management;
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| (j) |
identify projects and programmes or types of projects and programmes, plans and policies for which environmental audit or environmental monitoring must be conducted under this Act;
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| (k) |
initiate and evolve procedures and safeguards for the prevention of accidents which may cause environmental degradation and evolve remedial measures where accidents occur;
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| (l) |
monitor and assess activities, including activities being carried out by relevant lead agencies, in order to ensure that the environment is not degraded by such activities, environmental management objectives are adhered to and adequate early warning on impending environmental emergencies is given;
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| (m) |
undertake, in co-operation with relevant lead agencies, programmes intended to enhance environmental education, public awareness and public participation;
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| (n) |
develop, publish and disseminate manuals, codes or guidelines relating to environmental management and prevention or abatement of environmental degradation;
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| (o) |
render advice and technical support, where possible, to entities engaged in natural resources management and environmental protection;
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| (p) |
prepare and submit to the Cabinet Secretary every two years, and report on the state of the environment in Kenya and in this regard may direct any lead agency to prepare and submit to it a report on the state of the sector of the environment under the administration of that lead agency;
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| (q) |
encourage voluntary environmental conservation practices and natural resource conservancies, easements, leases, payments for ecosystem services and other such instruments and in this regard, develop guidelines;
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| (r) |
work with other lead agencies to issue guidelines and prescribe measures to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya;
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| (s) |
perform such other functions as the Government may assign to the Authority or as are incidental or conducive to the exercise by the Authority of any or all of the functions provided under this Act.
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| (3) |
The Cabinet Secretary shall lay every annual report on the state of the environment prepared under subsection (2)(p) before the National Assembly as soon as reasonably practicable after its publication where the National Assembly is in session, or where not in session, within twenty-one days of the day the National Assembly next sits after such publication.
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| 10. |
Board of the Authority
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The Authority shall be managed by a Board, which shall consist of—
| (a) |
a Chairperson appointed by the President;
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| (b) |
the Principal Secretary of the Ministry for the time being responsible for matters relating to the Authority or an officer of that Ministry designated in writing by the Principal Secretary;
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| (c) |
a Director-General who shall be the Secretary to the Board appointed by the Cabinet Secretary from amongst three persons selected by the Board through a competitive recruitment process;
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| (d) |
the Principal Secretary in charge of finance or his representative;
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| (e) |
six members, not being public officers, appointed by the Cabinet Secretary;
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| (f) |
the Attorney-General or his representative.
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| (2) |
No person shall be appointed under subsections (1)(a), (c), (d) or (e) unless such person holds at least a post-graduate degree from a recognized university in the fields of environmental law, environmental science, natural resource management or a relevant social science and in the case of the Director-General, has at least fifteen years’ working experience in the relevant field.
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| (3) |
The members referred to under subsection (1)(a) and (e) of subsection (1) shall be appointed at different times so that the respective expiry dates of their terms of office shall fall at different times.
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| (3A) |
Where the office of the Director-General falls vacant, the Board may, pending the appointment of a Director General, appoint a person to act in that capacity provided that such appointment shall not exceed a period of six months.
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| (4) |
The members appointed under paragraph (a), (c) and (e) of subsection (1) shall hold office for a term of four years and shall be eligible for reappointment for one further term of four years.
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| (5) |
The Board shall elect a vice-Chairperson from among the members appointed under paragraph (e) of subsection (1).
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| (6) |
The Board shall meet at least four times in every financial year.
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| (7) |
The Chairperson shall preside at every meeting of the Board at which he is present, but in his absence the vice-Chairperson shall preside, and in his absence, the members present shall elect one of their number who shall, with respect to that meeting and the business transacted thereat have all the powers of the Chairperson.
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| (8) |
Unless a unanimous decision is reached, a decision on any matter before the Board shall be by a majority of votes of the members present and in the case of an equality of votes, the Chairperson or person presiding shall have a casting vote.
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| (9) |
The quorum for the transaction of the business of the Board shall be seven members including the person presiding; and all acts, matters or things authorised or required to be done by the Board, shall be effected by a resolution passed by a majority of the members present and voting.
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| (10) |
The Secretary to the Board shall not be entitled to vote on any matter before the Board.
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| (11) |
The appointment of a member of the Board may be terminated by the appointing authority where the member—
| (a) |
is adjudged bankrupt or enters into a composition or scheme of arrangement with his creditors;
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| (b) |
is convicted of an offence and sentenced to imprisonment for a term of six months or more without the option of a fine;
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| (c) |
is incapacitated by prolonged physical or mental illness from performing his duties as a member of the Board; or
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| (d) |
becomes, for any reason, incapable or incompetent of properly performing the functions of his office.
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| (12) |
Where a member of the Board dies or resigns or otherwise vacates office before the expiry of his term of office, the appointing authority shall appoint another person in the place of such member.
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| (13) |
Where the Director-General is unable to perform the functions of his office due to any temporary incapacity which is likely to be prolonged, the President may appoint a substitute therefore to act with the full powers of the Director-General until such time as the President determines that the incapacity has ceased.
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| (14) |
| (a) |
The Director-General shall be the chief executive of the Authority and shall subject to this Act, be responsible for the day to day management of the affairs of the Authority;
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| (b) |
A Director shall perform such functions as are conferred by this Act and such additional duties as may be assigned by the Director-General;
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| (15) |
Subject to subsections (6), (7), (8) and (9) the Board shall regulate its own procedure.
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| 11. |
Powers of the Authority
The Authority shall have all powers necessary for the proper performance of its functions under this Act and in particular, but without prejudice to the generality of the foregoing, the Authority shall have powers to—
| (a) |
control, supervise and administer the assets of the Authority in such manner as best promotes the purpose for which the Authority is established;
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| (b) |
determine the provisions to be made for capital and recurrent expenditure and for reserves of the Authority;
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| (c) |
receive any grants, gifts, donations or endowments and make legitimate disbursements therefrom;
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| (d) |
enter into association with other bodies or organisations within or outside Kenya as the Authority may consider desirable or appropriate and in furtherance of the purpose for which the Authority is established;
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| (e) |
open a banking account or banking accounts for the funds of the Authority; and
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| (f) |
invest any funds of the Authority not immediately required for its purposes in the manner provided in section 26.
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| 12. |
Powers in respect of lead agencies
| (1) |
The Authority may after giving reasonable notice of its intention so to do, direct any lead agency to perform, within such time and in such manner as it shall specify, any of the duties imposed upon the lead agency by or under this Act or any other written law, in the field of environment and if the lead agency fails to comply with such directions, the Authority may itself perform or cause to be performed the duties in question, and the expense incurred by it in so doing shall be a civil debt recoverable by the Authority from the lead agency.
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| (2) |
Any person who fails to comply with subsection (1) commits an offence.
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| 13. |
Conduct of business and affairs of the Authority
Subject to this Act, the Authority shall regulate its own procedure.
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| 14. |
Remuneration of Director-General and Directors
The Director-General and the Directors of the Authority shall be paid such salaries and allowances, as may, from time to time, be determined by the Board on the advice of the Salaries and Remuneration Commission.
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| 15. |
Delegation by the Authority
Subject to this Act, the Authority may, by resolution either generally or in any particular case, delegate to any committee of the Authority or to any member, officer, employee or agent of the Authority, the exercise of any of the powers or the performance of any of the functions or duties of the Authority under this Act.
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| 16. |
Staff of the Authority
The Authority may appoint such officers or other staff of the Authority as are necessary for the proper discharge of its functions under this Act or any other written law, upon such terms and conditions of service as the Authority may determine.
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| 17. |
The common seal of the Authority
The common seal of the authority shall be kept in such custody as the Authority may direct and shall not be used except on the order of the Authority.
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| 18. |
Protection from personal liability
No matter or thing done by a member of the Authority or any officer, employee or agent of the Authority shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Authority, render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever.
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| 19. |
Liability of the Authority for damages
The provisions of section 18 shall not relieve the Authority of the liability to pay compensation or damages to any person for any injury to him, his property or any of his interests caused by the exercise of the powers conferred on the Authority by this Act or by any other written law or by the failure, whether wholly or partially, or any works.
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| 20. |
General fund
| (1) |
There shall be a general fund of the Authority which shall vest in the Authority.
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| (2) |
There shall be paid into the general fund—
| (a) |
such monies or assets as may accrue to or vest in the Authority in the course of the exercise of its powers or the performance of its functions under this Act;
|
| (b) |
such sums as may be granted to the Authority by the Cabinet Secretary pursuant to subsection (3); and
|
| (c) |
all monies from any other source provided for or donated or lent to the Authority.
|
|
| (3) |
There shall be made to the Authority out of monies provided by Parliament for that purpose, grants towards the expenditure incurred by the Authority in the exercise of its powers or the performance of its functions under this Act.
|
| (4) |
There shall be paid out of the general fund all sums required to defray the expenditure incurred by the Authority in the exercise, discharge and performance of its objectives, functions and duties.
|
|
| 21. |
Financial year
The financial year of the Authority shall be the period of twelve months ending on the thirteeth June in each year.
|
| 22. |
Annual estimates
| (1) |
At least three months before the commencement of each financial year, the Authority shall cause to be prepared estimates of the revenue and expenditure of the Annual Authority for that year.
|
| (2) |
The annual estimates shall make provisions for the estimated expenditure of the Authority for the financial year and in particular, the estimates shall provide for—
| (a) |
the payment of the salaries, allowances and other charges in respect of the staff of the Authority;
|
| (b) |
the payment of pensions, gratuities and other charges in respect of the staff of the Authority;
|
| (c) |
the proper maintenance of the buildings and grounds of the Authority;
|
| (d) |
the maintenance, repair and replacement of the equipment and other property of the Authority; and
|
| (e) |
the creation of such reserve funds to meet future contingent liabilities in respect of retirement benefits, insurance or replacement of buildings or equipment, or in respect of such other matter as the Authority may deem appropriate.
|
|
| (3) |
The annual estimates shall be approved by the Authority before the commencement of the financial year to which they relate and shall be submitted to the Cabinet Secretary for approval and after the Cabinet Secretary's approval, the Authority shall not increase the annual estimates without the consent of the Cabinet Secretary.
|
|
| 23. |
Accounts and audit
| (1) |
The Authority shall cause to be kept all proper books and records of accounts of the income, expenditure and assets of the Authority.
|
| (2) |
Within a period of three months from the end of each financial year, the Authority shall submit to the Auditor-General the accounts of the Authority together with—
| (a) |
a statement of the income and expenditure of the Authority during that year; and
|
| (b) |
a statement of the assets and liabilities of the Authority on the last day of that year.
|
|
| (3) |
The annual accounts of the Authority shall be prepared, audited and reported upon in accordance with the provisions of Articles 226 and 229 of the Constitution and the Public Financial Management Act (Cap. 412A).
|
|
| 24. |
National Environment Trust Fund
| (1) |
There is hereby established a fund to be known as the National Environment Trust Fund, (hereinafter referred to as the "Trust Fund").
|
| (2) |
The Trust Fund shall consist of—
| (a) |
such sums of money as may be received by the Trust Fund in the form of donations, endowments, grants and gifts from whatever source and specifically designated for the Trust Fund;
|
| (b) |
such sums of money or other assets as may be specifically designated to the Trust Fund by the Authority out of its general fund.
|
|
| (3) |
The Trust Fund shall be administered by a Board of five Trustees to be appointed by the Cabinet Secretary by a notice in the Gazette on such terms and conditions as the Cabinet Secretary may prescribe, upon the advice of the Salaries and Remuneration Commission. The trustees shall be persons holding at least post-graduate degree from a recognized university in the fields of environmental law, economics, environmental science or natural resource management and subject to chapter Six of the Constitution at the time of their appointment.
|
| (3A) |
The Board referred to in subsection (3) shall be known as the Board of Trustees of the Trust Fund and shall be a body corporate having perpetual succession and a common seal and may, in its corporate name, sue and be sued.
|
| (3B) |
The Trust Fund shall be administered in the manner provided for under a Trust Deed, and for the purposes of this Act, the Trust Deed shall be deemed to constitute the rules and regulations that govern the operations and functions of the Fund.
|
| (4) |
The object of the Trust Fund shall be to facilitate research intended to further the requirements of environmental management, capacity building, environmental awards, environmental publications, scholarships and grants.
|
| (5) |
The Board of Trustees may, on the recommendation of the Council, determine that certain donations to the Trust Fund shall be applied specifically and reserved only for prizes and awards for exemplary services to the environment.
Such prizes and awards shall be applied by the recipient exclusively to the management of the environment.
|
|
| 25. |
National Environment Restoration Fund
| (1) |
There is hereby established a fund to be known as the National Environment Restoration Fund, (hereinafter referred to as "The Restoration Fund").
|
| (2) |
The Restoration Fund shall consist of—
| (a) |
such proportion of fees or deposit bonds as may be determined by the Authority from time to time;
|
| (b) |
such sums as may be donated or levied from industries and other projects proponents as a contribution towards the Restoration Fund.
|
|
| (3) |
The Restoration Fund shall be vested in the Authority and, subject to this Act, shall be administered by the Director-General.
|
| (4) |
The object of the Restoration Fund shall be as supplementary insurance for the mitigation of environmental degradation where the perpetrator is not identifiable or where exceptional circumstances require the Authority to intervene towards the control or mitigation of environmental degradation.
|
| (5) |
The Cabinet Secretary may, by notice in the Gazette, issue orders for the levying of funds from project proponents towards the Restoration Fund.
|
|
| 26. |
Investment of funds and disposal of assets
| (1) |
Subject to this Act, the Authority may invest any of its funds in securities in which trustees may, for the time being, invest trust funds or in any other securities which the National Treasury may, from time to time, approve for that purpose.
|
| (2) |
Subject to this Act, the Authority may upon consultation with the National Treasury, place on deposit with such bank or banks as it may determine, any moneys not immediately required for its purposes.
|
| (3) |
The assets of the Authority may be disposed of—
| (a) |
if they are current assets, in the normal course of business carried on by the Authority;
|
| (b) |
where the disposal and the utilization of the proceeds have been taken into account in an annual estimate prepared and approved in accordance with section 22;
|
| (c) |
by way of sale or otherwise with the approval of the Cabinet Secretary and the National Treasury where such disposal has not been taken into account in the estimates.
|
|
|
| 27. |
Annual Financial Report
| (1) |
As soon as practicable and not later than three months after the expiry of the financial year, the Director-General shall submit to the Cabinet Secretary a financial report concerning the activities of the Authority during such financial year.
|
| (2) |
The report of the Director-General under subsection (1) shall include information on the financial affairs of the Authority and shall be appended to the report—
| (a) |
an audited statement of income and expenditure of the previous financial year;
|
| (b) |
estimates of income and expenditure of the Authority for the next ensuing financial year.
|
|
| (3) |
The Cabinet Secretary shall not later than fourteen days after the sitting of the National Assembly next after receipt of the report referred to in subsection (1) lay it before the National Assembly.
|
|
| 28. |
Deposit Bonds
| (1) |
The Authority shall create a register of those activities and industrial plants and undertakings which have or are most likely to have significant adverse effects on the environment when operated in a manner that is not in conformity with good environmental practices.
|
| (2) |
The Cabinet Secretary responsible for Finance may, on the recommendations of the Cabinet Secretary, prescribe that persons engaged in activities or operating industrial plants and other undertakings identified under subsection (1) pay such deposit bonds as may constitute appropriate security for good environmental practice.
|
| (3) |
The deposit bond determined in accordance with subsection (2) shall be refunded to the operator of the activity, industrial plant or any other undertaking by the Authority after such duration not exceeding six months without interest where the operator has observed good environmental practices to the satisfaction of the Authority.
|
| (4) |
The Authority may, after giving the operator an opportunity to be heard, confiscate a deposit bond where the operator is responsible for environmental practice that is in breach of the provisions of this Act, and the Authority may in addition cancel any licence issued to the operator under this Act if the Authority is satisfied that the operator has become a habitual offender.
|
| (5) |
Where an operator is dissatisfied with the confiscation of his deposit bond under this Act, he may refer the matter to a competent court of law.
|
| (6) |
The proceeds of every refundable deposit bond levied under this section shall be paid into the Restoration Fund and shall be treated as part of the Restoration Fund until refunded to the depositor subject to subjection (3) or confiscated by the Authority.
|
| (7) |
Any interest accruing from monies deposited into the Restoration Fund under this section shall be for the benefit of the Authority.
|
|
| 29. |
County Environment Committees
| (1) |
The Governor shall, by notice in the Gazette, constitute a County Environment Committee of the County.
|
| (2) |
Every County Environment Committee shall consist of—
| (a) |
the member of the county executive committee in charge of environmental matters who shall be the chairperson;
|
| (b) |
an officer of the Authority whose area of jurisdiction falls wholly or partially within the county who shall be the Secretary to the County Environmental Committee;
|
| (c) |
one representative for each of the Ministries responsible for the matters specified in the First Schedule at the county level;
|
| (d) |
two representatives of farmers or pastoralists within the county to be appointed by the Governor;
|
| (e) |
two representatives of the business community operating within the concerned county appointed by the Governor;
|
| (f) |
two representatives of the public benefits organizations engaged in environmental management programmes within the county appointed by the Governor in consultation with the National Federation of Public Benefit Organizations; and
|
| (g) |
a representative of every regional development authority whose area of jurisdiction falls wholly or partially within the county.
|
|
| (3) |
Appointments under this section shall be made in consultation with the relevant county organs that are representative of the nominees in the county.
|
| (4) |
The Governor, in making the appointments under this section, shall ensure—
| (a) |
equal opportunities for persons with disabilities and other marginalized groups; and
|
| (b) |
that not more than two-thirds of the members are of the same gender.
|
|
| (5) |
The members of the County Environment Committee appointed under paragraphs (d) to (f) of subsection (2) shall hold office for a period of three years and shall be eligible for re-appointment for one further term.
|
|
| 30. |
Functions of County Environment Committees
The County Environment Committees shall—
| (a) |
be responsible for the proper management of the environment within the county for which it is appointed;
|
| (b) |
develop a county strategic environmental action plan every five years; and
|
| (c) |
perform such additional functions as are prescribed by this Act or as may, from to time, be assigned by the Governor by notice in the Gazette.
|
|
| 31. |
National Environmental Complaints Committee
| (1) |
There is hereby established a committee of the Authority to be known as the Complaints Committee which shall consist of—
| (a) |
a Chairperson appointed by the Cabinet Secretary and who shall be a person qualified for appointment as a judge of the Environment and Land Court of Kenya;
|
| (b) |
a representative of the Attorney-General;
|
| (c) |
a representative of the Law Society of Kenya;
|
| (d) |
one person who has demonstrated competence in environmental matters, nominated by the Council of County Governors and who shall be secretary to the Complaints Committee;
|
| (e) |
a representative of the business community appointed by the Cabinet Secretary;
|
| (f) |
two members appointed by the Cabinet Secretary for their active role in environmental management.
|
|
| (2) |
The members of the Complaints Committee, other than the members appointed under subsection (1)(b), shall hold office for a period of three years but shall be eligible for reappointment:
Provided that no member shall hold office for more than two terms.
|
| (3) |
A member of the Complaints Committee other than the member appointed under subsection (1)(b) may—
| (a) |
at anytime resign from office by notice in writing to the Cabinet Secretary through the chairperson;
|
| (b) |
be removed from office by the Cabinet Secretary if the member—
| (i) |
has been absent from three consecutive meetings of the Committee without permission from the chairperson; |
| (ii) |
is convicted of a criminal offence and sentenced to imprisonment for a term exceeding six months or to a fine exceeding ten thousand shillings; |
| (iii) |
is incapacitated by prolonged physical or mental illness; or |
| (iv) |
is otherwise unable or unfit to discharge his functions. |
|
|
| (4) |
If a member of the Complaints Committee vacates office before the expiry of his term, the appointing authority shall appoint a suitable replacement therefor.
|
| (5) |
Where a member of the Complaints Committee is unable to perform the functions of his office due to any temporary incapacity which may be prolonged, the appointing authority may appoint a substitute for the member until such time as the Cabinet Secretary determines the incapacity has ceased.
|
| (6) |
Subject to this Act, the Complaints Committee shall regulate its own procedure.
|
|
| 32. |
Functions of the Complaints Committee
The functions of the Complaints Committee shall be—
| (a) |
| (i) |
any allegations or complaints against any person or against the Authority in relation to the condition of the environment in Kenya; |
| (ii) |
on its own motion, any suspected case of environmental degradation, and to make a report of its findings together with its recommendations thereon to the Cabinet Secretary; |
|
| (b) |
to prepare and submit to the Cabinet Secretary, periodic reports of its activities which report shall form part of the annual report on the state of the environment under section 9(3);
|
| (bb) |
undertake public interest litigation on behalf of the citizens in environmental matters; and
|
| (c) |
to perform such other functions and exercise such powers as may be assigned to it by the Cabinet Secretary.
|
|
| 33. |
Powers of the Complaints Committee
| (1) |
The Complaints Committee may, by notice in writing, require any person to—
| (a) |
give to the National Environmental Complaints Committee all reasonable assistance in connection with the investigation of any complaint under section 32; or
|
| (b) |
appear before the National Environmental Complaints Committee for examination concerning matters relevant to the investigation of any complaint under section 32.
|
|
| (2) |
| (a) |
refuses or fails to comply with the requirement of the National Environmental Complaints Committee which is applicable to him, to the extent to which he is able to comply with it; or
|
| (b) |
obstructs or hinders the National Environmental Department in the exercise of his powers under this Act; or
|
| (c) |
furnishes information or makes a statement to the National Environmental Complaints Committee which he knows to be false or misleading in any material particular; or
|
| (d) |
when appearing before the National Environmental Complaints Committee for examination, makes a statement which he knows to be false or misleading in any material particular, commits an offence.
|
|
| (3) |
A person convicted of an offence under subsection (2) shall be liable to a fine not exceeding fifty thousand shillings.
|
| (4) |
Where an offence under subsection (2) is a continuing offence, the person convicted shall, in addition to the penalty prescribed in subsection (3), be liable to a fine of one thousand shillings for each day during which the offence continues.
|
|
| 34. |
Proceedings of the Complaints Committee privileged
No proceedings shall lie against the Chairperson or any member of the Complaints Committee in respect of anything done bona fide in the performance of the duties of the Complaints Committee under this Act.
|
| 35. |
Disclosure of interest
| (1) |
If a member of the Complaints Committee is directly or indirectly interested in any matter before the Complaints Committee and is present at a meeting of the Complaints Committee at which the matter is the subject of investigation, he shall, at the meeting and as soon as reasonably practicable after the commencement thereof, disclose the fact and shall not take part in the consideration or discussion of, or vote on, any questions in respect of the matter, or be counted in the quorum of the meeting during the consideration of the matter.
|
| (2) |
A disclosure of interest made under subsection (1) shall be recorded in the minutes of the meeting at which it is made.
|
|
| 36. |
Remuneration and other expenses of the Complaints Committee
| (1) |
There shall be paid to the Chairperson and members of the Complaints Committee, such remuneration, fees or allowances for expenses as the Cabinet Secretary may determine.
|
| (2) |
The remuneration fees or allowances referred to in subsection (1) together with any other expenses incurred by the Complaints Committee in the execution of its functions under this Act shall be paid out of monies provided by Parliament for that purpose.
|
|
PART IV – ENVIRONMENTAL PLANNING
| 37. |
National Environment Action Plan
| (1) |
The Authority shall, within two years of the commencement of this Act and every six years thereafter, formulate the National Environmental Action Plan and shall ensure that it has undertaken public participation before the adoption of the Plan.
|
| (2) |
The Authority shall submit the Plan referred to in subsection (1) to the Cabinet Secretary for approval.
|
| (3) |
Upon the approval of the Plan, the Cabinet Secretary shall submit it to the National Land Commission and the Ministry of Lands.
|
| (4) |
The Cabinet Secretary shall publish the National Environment Action Plan in the Gazette.
|
| (5) |
The Authority shall review the National Action Plan every three years.
|
|
| 38. |
Provisions of the National Environment Action Plan
The national environment action plan shall—
| (a) |
contain an analysis of the natural resources of Kenya with an indication as to any pattern of change in their distribution and quantity over time;
|
| (b) |
contain an analytical profile of the various uses and value of the natural resources incorporating considerations of intragenerational equity;
|
| (c) |
recommend appropriate legal and fiscal incentives that may be used to encourage the business community to incorporate environmental requirements into their planning and operational processes;
|
| (d) |
recommend methods for building national awareness through environmental education on the importance of sustainable use of the environment and natural resources for national development;
|
| (e) |
set out operational guidelines for the planning and management of the environment and natural resources;
|
| (f) |
identify actual or likely problems as may affect the natural resources and the broader environment context in which they exist;
|
| (g) |
identify and appraise trends in the development of urban and rural settlements, their impacts on the environment, and strategies for the amelioration of their negative impacts;
|
| (h) |
propose guidelines for the integration of standards of environmental protection into development planning and management;
|
| (i) |
identify and recommend policy and legislative approaches for preventing, controlling or mitigating specific as well as general adverse impacts on the environment;
|
| (j) |
prioritise areas of environmental research and outline methods of using such research findings;
|
| (jj) |
take into account and record all monuments and protected areas declared or deemed to have been declared by the Cabinet Secretary under the National Museums and Heritage Act (Cap. 216);
|
| (k) |
without prejudice to the foregoing, be reviewed and modified from time to time to incorporate emerging knowledge and realities; and
|
| (l) |
be binding on all persons and all government departments, agencies, state corporations or other organs of Government upon adoption by the National Assembly.
|
|
| 40. |
County Environment Action Plan
| (1) |
Every County Environment Committee shall, within one year of the commencement of this Act and every five years thereafter, prepare a county environment action plan in respect of the county for consideration and adoption by the County Assembly.
|
| (2) |
Every County Environment Committee, in preparing a county environment plan, shall undertake public participation and take into consideration every other county environment action plan already adopted with a view to achieving consistency among such plans.
|
| (3) |
The respective County Executive Committee members of every county shall submit the county environment action plan referred to in subsection (1) to the Cabinet Secretary for incorporation into the national environment action plan referred to in section 37.
|
| (4) |
The Authority shall consider every county environment action plan and either recommend incorporation of such plan into the national environment action plan or specify changes to be incorporated into a respective county environmental plan.
|
| (5) |
The Cabinet Secretary shall, on the recommendation of the Authority, issue guidelines and prescribe measures for the preparation of environmental action plans.
|
|
| 41. |
Contents of County Environment Action Plans
Every county environment action plan prepared under section 40 shall contain provisions dealing with matters contained in section 38 (a) to (j) in relation to their respective county.
|
| 41A. |
Purpose of Environmental Action Plans
The purpose of environmental action plans is to co-ordinate and harmonise the environmental policies, plans, programmes and decisions of the national and county governments, as the case may be, in order to—
| (i) |
minimize the duplication of procedures and functions; and promote consistency in the exercise of functions that may affect the environment; and |
| (ii) |
secure the protection of the environment across the country; and |
| (iii) |
prevent unreasonable actions by any person, state organ or public entity in respect of the environment that are prejudicial to the economic or health interests of other counties or the country. |
|
| 41B. |
Monitoring compliance with Environmental Plans
| (1) |
The Authority shall monitor compliance with the national and county environmental action plans and may take any steps or make any inquiries that it may consider necessary in order to determine if the plans are being complied with.
|
| (2) |
If as a result of any action taken or inquiry made under subsection (1) the Authority is of the opinion that a plan is not substantially being complied with, the Authority shall serve a written notice to the organ concerned, calling on it to take such specified steps as the Authority may consider necessary to remedy noncompliance.
|
| (3) |
Within thirty days of the receipt of the notice referred to in subsection (2), the organ shall respond to the notice in writing setting out any—
| (a) |
objections to the notice, if any;
|
| (b) |
the action that will be taken to ensure compliance with the respective plan; or
|
| (c) |
other information that the organ considers relevant to the notice.
|
|
| (4) |
After considering the representations from the organ and any other relevant information, the Authority shall within thirty days of receiving the response referred to in subsection (3) issue a final notice—
| (a) |
to confirm amend or cancel the notice referred to in subsection (2);
|
| (b) |
to specify any action and a time period within which such action shall be taken to remedy non-compliance.
|
|
| (5) |
The Authority shall keep a record of all environmental action plans and ensure that such plans are available for inspection by the public.
|
|
PART V – PROTECTION AND CONSERVATION OF THE ENVIRONMENT
| 42. |
Protection of rivers, lakes, seas and wet lands
| (1) |
No person shall, without the prior written approval of the Authority given after an environmental impact assessment, in relation to a river, lake, sea or wetland in Kenya, carry out any of the following activities—
| (a) |
erect, reconstruct, place, alter, extend, remove or demolish any structure or part of any structure in, or under the river, lake, sea or wetland;
|
| (b) |
excavate, drill, tunnel or disturb the river, lake, sea or wetland;
|
| (c) |
introduce any animal, whether alien or indigenous, dead or alive, in any river, lake, sea or wetland;
|
| (d) |
introduce or plant any part of a plant specimen, whether alien or indigenous, dead or alive, in any river, lake, sea or wetland;
|
| (e) |
deposit any substance in a lake, river 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, sea or wetland;
|
| (f) |
direct or block any river, lake, sea or wetland from its natural and normal course;
|
| (g) |
drain any lake, river, sea or wetland; or
|
| (h) |
any other matter prescribed by the Cabinet Secretary on the advice of the Authority.
|
|
| (2) |
The Cabinet Secretary may, by notice in the Gazette, declare a lake shore, wetland, coastal zone or river bank to be a protected area and impose such restrictions as he considers necessary, to protect the lake shore, wetland, coastal zone and river bank from environmental degradation and shall, in doing so, take into consideration the following factors—
| (a) |
the geographical size of the lake shore, wetland, coastal zone or river bank; and
|
| (b) |
the interests of the communities resident around the lake shore, wetland, coastal zone or river bank concerned.
|
|
| (3) |
The Cabinet Secretary may, by notice in the Gazette, issue general and specific orders, regulations or standards for the management of river basins, lake basins, wetlands or coastal zones and such orders, regulations or standards may include management, protection, or conservation measures in respect of any area at risk of environmental degradation and shall provide for—
| (a) |
the development of an overall environmental management plan for a lake, river, wetland or coastal area, taking into account the relevant sectoral interest;
|
| (b) |
measures for the prevention or control of coastal erosion;
|
| (c) |
the conservation of mangrove and coral reef ecosystems;
|
| (d) |
plans for the harvesting of minerals within the coastal zone, including strategies for the restoration of mineral sites;
|
| (e) |
contingency plans for the prevention and control of all deliberate and accidental discharge of pollutions into the sea, lakes or rivers;
|
| (f) |
plans for the protection of wetlands;
|
| (g) |
the regulation of harvesting of aquatic living and non-living resources to ensure optimum sustainable yield;
|
| (h) |
special guidelines for access to and exploitation of living and non-living resources in the continental shelf, territorial sea and the Exclusive Economic Zone;
|
| (i) |
promotion of environmentally friendly tourism; and
|
| (j) |
the management of biological resources.
|
|
| (4) |
The Authority shall, in consultation with the relevant lead agencies, issue guidelines for the management of the environment of lakes and rivers.
|
| (4A) |
The Cabinet Secretary may make Regulations prescribing for any interest in or over land in the interests of defence, public safety, public order, public morality, public health, or land use planning.
|
| (5) |
Any person who contravenes or fails to comply with any orders, regulations or standards issued under this section shall be guilty of an offence.
|
|
| 43. |
Protection of traditional interests
| (1) |
The Cabinet Secretary may, by notice in the Gazette, declare the traditional interests of local communities customarily resident within or around a lake basin, wetland, coastal zone or river basin or forest to be protected interests.
|
| (2) |
The Authority shall, in consultation with the relevant lead agencies and stakeholders, issue guidelines and prescribe measures for co-management of critical habitats within or around a lake basin, wetland, forest or coastal zone and such measures shall take into account the interests of the local communities resident therein.
|
|
| 44. |
Protection of hill tops, hill sides, mountain areas and forests
The Authority shall, in consultation with the relevant lead agencies, develop, issue and implement regulations, procedures, guidelines and measures for the sustainable use of hill sides, hill tops, mountain areas and forests and such regulations, guidelines, procedures and measures shall control the harvesting of forests and any natural resources located in or on a hill side, hill top or mountain area so as to protect water catchment areas, prevent soil erosion and regulate human settlement.
|
| 45. |
Identification of hilly and mountainous areas
| (1) |
Every County Environment Committee shall identify the hilly and mountainous areas under their jurisdiction which are at risk from environmental degradation.
|
| (2) |
A hilly or mountainous area is at risk from environmental degradation if—
| (a) |
it is prone to soil erosion;
|
| (b) |
landslides have occurred in such an area;
|
| (c) |
vegetation cover has been removed or is likely to be removed from the area at a rate faster than it is being replaced; or
|
| (d) |
any other land use activity in such an area is likely to lead to environment degradation.
|
|
| (3) |
Each County Environment Committee shall notify the Authority of the hilly and mountainous areas it has identified as being at risk from environmental degradation under subsection (1).
|
| (4) |
The Authority shall maintain a register of hilly and mountainous area identified under subsection (1) to be at risk from environmental degradation.
|
|
| 46. |
Reforestation and afforestation of hill tops, hill slopes and mountainous areas
| (1) |
Every County Environment Committee shall specify which of the areas identified in accordance with section 45(1) are to be targeted for afforestation or reforestation.
|
| (2) |
Every County Environment Committee shall take measures, through encouraging voluntary self-help activities in their respective local community, to plant trees or other vegetation in any area specified under subsection (1) which are within the limits of its jurisdiction.
|
| (3) |
Where the areas specified under subsection (1) are subject to leasehold or any other interest in land including customary tenure, the holder of that interest shall implement measures required to be implemented by the County Environment Committee including measures to plant trees and other vegetation in those areas.
|
|
| 47. |
Other measures for management of hill tops, hill sides and mountainous areas
| (1) |
The Authority shall, in consultation with the relevant lead agencies, issue guidelines and prescribe measures for the sustainable use of hill tops, hill slides and mountainous areas.
|
| (2) |
The guidelines issued and measures prescribed by the Authority under subsection (1) shall be by way of Gazette Notice and shall include those relating to—
| (a) |
appropriate farming methods;
|
| (b) |
carrying capacity of the areas described in subsection (1) in relation to animal husbandry;
|
| (c) |
measures to curb soil erosion;
|
| (d) |
disaster preparedness in areas prone to landslides;
|
| (e) |
the protection of areas referred to in subsection (1) from human settlements;
|
| (f) |
the protection of water catchment areas; and
|
| (g) |
any other measures the Authority considers necessary.
|
|
| (3) |
The County Environment Committee shall be responsible for ensuring that the guidelines issued and measures prescribed under subsection (2) in respect of their counties are implemented.
|
| (4) |
Any person who contravenes any measure prescribed by the Authority under this section or who fails to comply with a lawful direction issued by a County Environment Committee under this section shall be guilty of an offence.
|
|
| 48. |
Protection of forests
| (1) |
Subject to subsection (2) and the Forest Conservation and Management Act (Cap. 285) the Authority may, after consultation with the Chief Conservator of Forests, enter into any contractual arrangement with private owner of any land on such terms and conditions as may be mutually agreed for purposes of registering such land as forest land.
|
| (2) |
The Director-General shall not take any action, in respect of any forest or mountain area, which is prejudicial to the traditional interests of the local communities customarily resident within or around such forest or mountain area.
|
| (3) |
Where a forested area is declared to be a protected area under section 54(1), the Cabinet Secretary may cause to be ascertained, any individual, community or government interests in the land and forests and shall provide incentives to promote community conservation.
|
| (4) |
A person who contravenes any conservation measure prescribed by the Authority, or fails to comply with a lawful conservation directive issued by the Authority or its Environment Committee at the counties commits an offence.
|
|
| 49. |
Conservation of energy and planting of trees or woodlots
| (1) |
The Authority shall, in consultation with the relevant lead agencies, promote the use of renewable sources of energy by—
| (a) |
promoting research in appropriate renewable sources of energy;
|
| (b) |
creating incentives for the promotion of renewable sources of energy;
|
| (c) |
promoting measures for the conservation of non-renewable sources of energy; and
|
| (d) |
taking measures to encourage the planting of trees and woodlots by individual land users, institutions and by community groups.
|
|
| (2) |
Any measures undertaken under subsection (1) shall comply with existing laws.
|
|
| 50. |
Conservation of biological diversity
The Cabinet Secretary shall, on the advice of the Authority, prescribe measures necessary to ensure the conservation of biological diversity in Kenya and in this respect the Authority shall—
| (a) |
identify, prepare and maintain an inventory of biological diversity of Kenya;
|
| (b) |
determine which components of biological diversity are endangered, rare or threatened with extinction;
|
| (c) |
identify potential threats to biological diversity and devise measures to remove or arrest their effects;
|
| (d) |
undertake measures intended to integrate the conservation and sustainable utilisation ethic in relation to biological diversity in existing government activities and activities by private persons;
|
| (e) |
specify national strategies, plans and government programmes for conservation and sustainable use of biological diversity;
|
| (f) |
protect indigenous property rights of local communities in respect of biological diversity; and
|
| (g) |
measure the value of unexploited natural resources in terms of watershed protection, influences on climate, cultural and aesthetic value, as well as actual and potential genetic value thereof.
|
|
| 51. |
Conservation of biological resources in situ
The Cabinet Secretary shall, on the recommendation of the Authority, prescribe measures adequate to ensure the conservation of biological resources in situ and in this regard shall issue guidelines for—
| (a) |
land use methods that are compatible with conservation of biological diversity;
|
| (b) |
the selection and management of protected areas so as to promote the conservation of the various terrestrial and aquatic ecosystems under the jurisdiction of Kenya;
|
| (c) |
selection and management of buffer zones near protected areas;
|
| (d) |
special arrangements for the protection of species, ecosystems and habitats threatened with extinction;
|
| (e) |
prohibiting and controlling the introduction of alien species into natural habitats; and
|
| (f) |
integrating traditional knowledge for the conservation of biological diversity with mainstream scientific knowledge.
|
|
| 52. |
Conservation of biological resources ex-situ
The Cabinet Secretary shall, on the recommendation of the Authority—
| (a) |
prescribe measures for the conservation of biological resources ex-situ especially for those species threatened with extinction;
|
| (b) |
issue guidelines for the management of—
| (iv) |
animal orphanages; and |
| (v) |
any other facilities recommended to the Authority by any of its Committees or considered necessary by the Authority; |
|
| (c) |
ensure that species threatened with extinction which are conserved ex-situ are re-introduced into their native habitats and ecosystems where—
| (i) |
the threat to the species has been terminated; or |
| (ii) |
a viable population of the threatened species has been achieved. |
|
|
| 53. |
Access to genetic resources of Kenya
| (1) |
The Cabinet Secretary shall, on the recommendation of the Authority, issue guidelines and prescribe measures for the sustainable management and utilisation of genetic resources of Kenya for the benefit of the people of Kenya.
|
| (2) |
Without prejudice to the general effect of subsection (1), the guidelines issued or measures prescribed under that subsection shall specify—
| (a) |
appropriate arrangements for access to biological resources, genetic resources and ecological services of Kenya by non-citizens, including the issue of licences and fees to be paid for that access;
|
| (b) |
measures for regulating the import or export of germplasm;
|
| (c) |
the sharing of benefits derived from genetic resources of Kenya;
|
| (d) |
biosafety measures necessary to regulate biotechnology;
|
| (e) |
measures necessary to regulate the development, access to and transfer of biotechnology;
|
| (f) |
measures necessary for the recognition, protection and enhancement of indigenous knowledge and associated practices in the conservation of the environment and natural resources;
|
| (g) |
measures necessary for the protection of indigenous knowledge of biodiversity and genetic resources of communities; and
|
| (h) |
any other matter that the Cabinet Secretary considers necessary for the better management of the genetic resources of Kenya.
|
|
|
| 54. |
Protection of environmentally significant areas
| (1) |
The Cabinet Secretary may, in consultation with the relevant lead agencies and in accordance with the Constitution, the Convention on Biological Diversity and other treaties, by notice in the Gazette, declare any area of land, sea, lake, forests or river to be a protected natural environment for the purpose of promoting and preserving specific ecological processes, natural environment systems, natural beauty or species of indigenous wildlife or the preservation of biological diversity in general.
|
| (2) |
Without prejudice to subsection (1), the Authority may, in consultation with the relevant lead agencies, issue guidelines and prescribe measures for the management and protection of any area of environmental significance declared to be a protected natural environment area under this section.
|
|
| 55. |
Protection of the coastal zone
| (1) |
The Cabinet Secretary may, by notice in the Gazette, declare an area to be a protected Zone.
|
| (2) |
The Cabinet Secretary shall conduct a survey of the coastal zone and prepare an integrated national coastal zone management plan based on the report of such survey.
|
| (3) |
The Cabinet Secretary shall, from time to time, not exceeding every four years, review the national coastal zone management plan prepared under subsection (2).
|
| (4) |
The report of the survey of the coastal zone shall contain—
| (a) |
an inventory of all structures, roads, excavations, harbours, outfalls, dumping sites and other works located in the coastal zone;
|
| (b) |
an inventory of the state of the coral reefs, mangroves and marshes found within the coastal zone;
|
| (c) |
an inventory of all areas within the coastal zone of scenic value or of value for recreational and cultural purposes;
|
| (d) |
an inventory of areas within the coastal zone of special value for research in respect of fisheries, erosion, littorals movement and such other similar subjects;
|
| (e) |
an estimate of the quantities of sand, coral sea shells and other substances being removed from the coastal zone;
|
| (f) |
an estimate of the impacts of erosion on the coastal zone; and
|
| (g) |
an estimate of the extent, nature, cause and sources of coastal pollution and degradation;
|
| (h) |
an estimate of freshwater resources available in the coastal zone; and
|
| (i) |
any other relevant data or information that may be deemed appropriate.
|
|
| (5) |
Any person who releases or causes to be released into the coastal zone any polluting or hazardous substances contrary to the provisions of this Act shall be guilty of an offence and liable upon conviction to a fine of not less than one million shillings or to imprisonment for a period not exceeding two years or to both such fine and imprisonment.
|
| (6) |
The Cabinet Secretary shall, in consultation with the relevant lead agencies, issue appropriate regulations to prevent, reduce and control pollution or other form of environmental damage in the coastal zone.
|
| (7) |
Notwithstanding the generality of subsection (6) of this section, the regulations made thereunder shall provide for the control and prevention of pollution—
| (a) |
of the marine environment from land based sources including rivers, estuaries, pipelines and outfall structures;
|
| (b) |
from vessels, aircrafts and other engines used in the coastal zone;
|
| (c) |
from installations and devices used in the exploration or exploitation of the natural resources of the seabed and subsoil of the exclusive economic zone; and
|
|
| (8) |
Where any polluting or hazardous substances are discharged, released or in any other way escape into the Coastal Zone, any person responsible for management of the polluting or hazardous substances shall be liable—
| (a) |
for any resultant damage; and
|
| (b) |
for the cost of any measures reasonably taken after the release or escape for the purpose of preventing, reversing or minimising any damage caused by such discharge, release or escape; and
|
| (c) |
for any damage caused by any measures so taken.
|
|
| (9) |
Where there arises a grave and imminent threat or danger of damage of discharge, release or escape of polluting or hazardous substances into the Coastal Zone, any person responsible for management of the polluting or hazardous substances shall be liable—
| (a) |
for the cost of any measures reasonably taken for the purpose of preventing, minimising or controlling any such damage; and
|
| (b) |
for any damage caused by any measures so taken.
|
|
|
| 56. |
Protection of the ozone layer
| (1) |
The Cabinet Secretary in consultation with the Authority, undertake or commission other persons to undertake national studies and give due recognition to developments in scientific knowledge relating to substances, activities and practices that deplete the ozone layer to the detriment of public health and the environment.
|
| (2) |
The Cabinet Secretary in consultation with the Authority, issue guidelines and institute programmes concerning the—
| (a) |
elimination of substances that deplete the stratospheric ozone layer;
|
| (b) |
controlling of activities and practices likely to lead to the degradation of the ozone layer and the stratosphere;
|
| (c) |
reduction and minimisation of risks to human health created by the degradation of the ozone layer and the stratosphere; and
|
| (d) |
formulate strategies, prepare and evaluate programmes for phasing out ozone depleting substances.
|
|
|
| 56A. |
Guidelines on climate change
The Cabinet Secretary shall, in consultation with relevant lead agencies, issue guidelines and prescribe measures on climate change.
|
| 57. |
Fiscal incentives
| (1) |
Notwithstanding the provisions of any relevant revenue Act, the Cabinet Secretary responsible for Finance may, on the recommendation of the Council, propose to Government tax and other fiscal incentives, disincentives or fees to induce or promote the proper management of the environment and natural resources or the prevention or abatement of environmental degradation.
|
| (2) |
Without prejudice to the generality of subsection (1) the tax and fiscal incentives, disincentives or fees may include—
| (a) |
customs and excise waiver in respect of imported capital goods which prevent or substantially reduce environmental degradation caused by an undertaking;
|
| (b) |
tax rebates to industries or other establishments that invest in plants, equipment and machinery for pollution control, re-cycling of wastes, water harvesting and conservation, prevention of floods and for using other energy resources as substitutes for hydrocarbons;
|
| (c) |
tax disincentives to deter bad environmental behaviour that leads to depletion of environmental resources or that cause pollution; or
|
| (d) |
user fees to ensure that those who use environmental resources pay proper value for the utilization of such resources.
|
|
|
PART VI – INTEGRATED ENVIRONMENTAL IMPACT ASSESSMENT
| 57A. |
Strategic Environmental Assessment
| (1) |
All Policies, Plans and Programmes for implementation shall be subject to Strategic Environmental Assessment.
|
| (2) |
For the avoidance of doubt, the plans, programmes and policies are those that are—
| (a) |
subject to preparation or adoption by an authority at regional, national, county or local level, or which are prepared by an authority for adoption through a legislative procedure by Parliament, Government or if regional, by agreements between the governments or regional authorities, as the case may be;
|
| (b) |
determined by the Authority as likely to have significant effects on the environment.
|
|
| (3) |
All entities shall undertake or cause to be undertaken the preparation of strategic environmental assessments at their own expense and shall submit such assessments to the Authority for approval.
|
| (4) |
The Authority shall, in consultation with lead agencies and relevant stakeholders, prescribe rules and guidelines in respect of Strategic Environmental Assessments.
|
|
| 58. |
Application for an Environmental Impact Assessment Licence
| (1) |
Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall before for an financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.
|
| (2) |
The proponent of any project specified in the Second Schedule shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority:
Provided that the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases.
|
| (3) |
The environmental impact assessment study report prepare under this subsection shall be submitted to the Authority in the prescribed form, giving the prescribed information and shall be accompanied by the prescribed fee.
|
| (4) |
The Cabinet Secretary may, on the advice of the Authority given after consultation with the relevant lead agencies, amend the Second Schedule to this Act by notice in the Gazette.
|
| (5) |
Environmental impact assessment studies and reports required under this Act shall be conducted or prepared respectively by individual experts or a firm of experts authorised in that behalf by the Authority. The Authority shall maintain a register of all individual experts or firms of all experts duly authorized by it to conduct or prepare environmental impact assessment studies and reports respectively. The register shall be a public document and may be inspected at reasonable hours by any person on the payment of a prescribed fee.
|
| (6) |
The Director-General may, approve any application by an expert wishing to be authorised to undertake environmental impact assessment. Such application shall be made in the prescribed manner and accompanied by any fees that may be required.
|
| (6A) |
The Cabinet Secretary in consultation with the Authority shall make regulations and formulate guidelines for the practice of Integrated Environmental Impact Assessments and Environmental Audits.
|
| (6B) |
The Cabinet Secretary shall make regulations for the accreditation of experts on environmental impact assessments.
|
| (7) |
Environmental impact assessment shall be conducted in accordance with the environmental impact assessment regulations, guidelines and procedures issued under this Act.
|
| (8) |
The Director-General shall respond to the applications for environmental impact assessment license within three months.
|
| (9) |
Any person who upon submitting his application does not receive any communication from the Director-General within the period stipulated under subsection (8) may start his undertaking.
|
| (10) |
A person who knowingly submits a report which contains information that is false or misleading commits an offence and is liable on conviction, to a term of imprisonment of not more than three years, or to a fine of not more than five million shillings, or to both such fine and imprisonment and in addition, his licence shall be revoked.
|
|
| 59. |
Publication of Environmental Impact Assessment
| (1) |
Upon receipt of an environmental impact assessment study report from any proponent under section 58(2), the Authority shall cause to be published in the Gazette, in at least two newspapers circulating in the area or proposed area of the project and over the radio a notice which shall state—
| (a) |
a summary description of the project;
|
| (b) |
the place where the project is to be carried out;
|
| (c) |
the place where the environmental impact assessment study, evaluation or review report may be inspected; and
|
| (d) |
a time limit of not exceeding sixty days for the submission of oral or written comments environmental impact assessment study, evaluation or review report.
|
|
| (2) |
The Authority may, on application by any person extend the period stipulated in subparagraph (d) so as to afford reasonable opportunity for such person to submit oral or written comments on the environmental impact assessment report.
|
| (3) |
The Authority shall ensure that its website contains a summary of the report referred to in subsection (1).
|
|
| 60. |
Comments on Environmental Impact Assessment report by Lead Agencies
A lead agency shall, upon the written request of the Director-General, submit written comments on an environmental impact assessment study, evaluation and review report within thirty days from the date of the written request.
|
| 61. |
Technical Advisory Committee on Environmental Impact Assessment
The Authority may set up a technical advisory committee to advise it on environmental impact assessment related reports and the Director-General shall prescribe the terms of reference and rules of procedure for the technical advisory committee appointed hereunder.
|
| 62. |
Further Environmental Impact Assessment
The Authority may require any proponent of a project to carry out at his own expense further evaluation or environmental impact assessment study, review or submit additional information for the purposes of ensuring that the environmental impact assessment study, review or evaluation report is as accurate and exhaustive as possible.
|
| 63. |
Environmental Impact Licence
The Authority may, after being satisfied as to the adequacy of an environmental impact assessment study, evaluation or review report, issue an environmental impact assessment licence on such terms and conditions as may be appropriate and necessary to facilitate sustainable development and sound environmental management.
|
| 64. |
Submission of fresh Environmental Impact assessment report after Environmental Impact Assessment License issued
| (1) |
The Authority may, at any time after the issue of an environmental impact assessment licence direct the holder of such licence to submit at his own expense a fresh environmental impact assessment study, evaluation or review report within such time as the Authority may specify where—
| (a) |
there is a substantial change or modification in the project or in the manner in which the project is being operated;
|
| (b) |
the project poses environmental threat which could not be reasonably foreseen at the time of the study, evaluation or review; or
|
| (c) |
it is established that the information or data given by the proponent in support of his application for an environmental impact assessment licence under section 58 was false, inaccurate or intended to mislead.
|
|
| (2) |
Any person who fails, neglects or refuses to comply with the directions of the Authority issued under subsection (1) shall be guilty of an offence.
|
| (3) |
Where the Authority has directed that a fresh environmental impact assessment be carried out, or that new information is necessary from the project proponent, any environmental impact assessment licence that has been issued may be cancelled, revoked or suspended by the Authority.
|
|
| 65. |
Transfer of Environmental Impact Assessment Licence
| (1) |
An environmental impact assessment licence may be transferred by the holder to another person only in respect of the project in relation to which such licence was issued.
|
| (2) |
Where an environmental impact assessment licence is transferred under this section, the person to whom it is transferred and the person transferring it shall jointly notify the Director-General in writing of the transfer, not later than thirty days after the transfer.
|
| (3) |
Where no joint notification of a transfer is given in accordance with subsection (2), the registered holder of the licence shall be deemed for the purposes of this Act to be the owner or the person having charge or management or control of the project as the case may be.
|
| (4) |
Any transfer of an environmental impact assessment licence, under this section shall take effect on the date the Director-General is notified of the transfer.
|
| (5) |
Any person who contravenes any provisions of this section, shall be guilty of an offence.
|
|
| 66. |
Protection in respect of an Environmental Impact Assessment Licence
| (1) |
No civil or criminal liability in respect of a project or consequences resulting from a project shall be incurred by the Government, the Authority or any impact assessment study, evaluation or review report or grant of an environmental impact assessment licence or by reason of any condition attached to such licence.
|
| (2) |
The issuance of an environmental impact assessment licence in respect of a project shall afford no defence to any civil action or to a prosecution that may be brought or preferred against a proponent in respect of the manner in which the project is executed, managed or operated.
|
|
| 67. |
Revocation, suspension or cancellation of Environmental Impact Assessment Licence
| (1) |
The Authority may, after the issuance of an environmental impact assessment licence—
| (a) |
cancel or revoke such licence; or
|
| (b) |
suspend such licence, for such time, not more than twenty four months, where the licensee contravenes the provisions of the licence.
|
|
| (1A) |
Where the Authority cancels, revokes or suspends a licence in accordance with this section, the reasons for such action shall be given to the licensee in writing.
|
| (2) |
Whenever an environmental impact assessment licence is revoked, suspended or cancelled, the holder thereof shall not proceed with the project which is the subject of the licence until a new licence is issued by the Authority.
|
| (3) |
The Authority shall maintain a register of all environmental impact assessment licences issued under this Act. The register shall be a public document and may be inspected at reasonable hours by any person on the payment of a prescribed fee.
|
|
PART VII – ENVIRONMENTAL AUDIT AND MONITORING
| 68. |
Environmental audit
| (1) |
The Authority or its designated agents shall be responsible for carrying out environmental audit of all activities that are likely to have significant effect on the environment.
|
| (2) |
An environmental inspector appointed under this Act may enter any land or premises for the purposes of determining how far the activities carried out on that land or premises conform with the statements made in the environmental impact assessment study report issued in respect of that land or those premises under section 58(2).
|
| (3) |
The owner of the premises or the operator of a project for which an environmental impact assessment study report has been made shall keep accurate records and make annual reports to the Authority describing how far the project conforms in operation with the statements made in the environmental impact assessment study report submitted under section 58(2).
|
| (4) |
The owner of premises or the operator of a project shall take all reasonable measures to mitigate any undesirable effects not contemplated in the environmental impact assessment study report submitted under section 58(2) and shall prepare and submit an environmental audit report on those measures to the Authority annually or as the Authority may, in writing, require.
|
|
| 69. |
Environmental monitoring
| (1) |
The Authority shall, in consultation with the relevant lead agencies, monitor—
| (a) |
all environmental phenomena with a view to making an assessment of any possible changes in the environment and their possible impacts; or
|
| (b) |
the operation of any industry, project or activity with a view of determining its immediate and long-term effects on the environment.
|
|
| (1A) |
Every lead agency shall establish an environmental unit to implement the provisions of this Act.
|
| (2) |
An environmental inspector appointed under this Act may enter upon any land or premises for the purposes of monitoring the effects upon the environment of any activities carried on that land or premises.
|
|
PART VIII – ENVIRONMENTAL QUALITY STANDARDS
| 71. |
Water quality standards
| (1) |
The Cabinet Secretary shall, on the recommendation of the Authority—
| (a) |
establish criteria and procedures for the measurement of water quality;
|
| (b) |
recommend to the Authority minimum water quality standards for all the waters of Kenya and for different uses, including—
| (ii) |
water for industrial purposes; |
| (iii) |
water for agricultural purposes; |
| (iv) |
water for recreational purposes; |
| (v) |
water for fisheries and wildlife; and |
| (vi) |
for any other prescribed water use; |
|
| (c) |
analyse conditions for the discharge of effluents;
|
| (d) |
issue guidelines regulations for or the preservation of fishing areas, aquatic areas, water sources and reservoirs and other areas, where water may need special protection;
|
| (e) |
recommend measures necessary for the treatment of effluents before being discharged into the sewerage system; and
|
| (f) |
make any other recommendation that may be necessary for the monitoring and control of water pollution.
|
|
| (2) |
The Authority shall consult and take into consideration the views of lead agencies before making the recommendations under subsection (1).
|
|
| 72. |
Water pollution prohibition
| (1) |
Any person, who upon the coming into force of this Act, discharges or applies any poison, toxic, noxious or obstructing matter, radioactive waste or other pollutants or permits any person to dump or discharge such matter into the aquatic environment in contravention of water pollution control standards established under this Part shall be guilty of an offence and liable to imprisonment for a term not exceeding two years or to a fine not exceeding one million shillings or to both such imprisonment and fine.
|
| (2) |
A person found guilty under subsection (1) shall, in addition to any sentence or fine imposed on him—
| (a) |
pay the cost of the removal of any poison, toxic, noxious or obstructing matter, radioactive waste or other pollutants, including the costs of restoration of the damaged environment, which may be incurred by a Government agency or organ in that respect;
|
| (b) |
pay third parties reparation, cost of restoration, restitution or compensation as may be determined by a court of law on application by such third parties.
|
|
|
| 73. |
Duty to supply plant information to the Authority
All owners or operators of irrigation project schemes, sewerage systems, industrial production workshops or any other undertaking which may discharge effluents or other pollutants shall within ninety days upon the coming into force of this Act or as may be demanded from time to time by the Authority, submit on demand, to the Authority accurate information about the quantity and quality of such effluent or other pollutant.
|
| 74. |
Effluents to be discharged only into sewerage system
| (1) |
Every owner or operator of a trade or industrial undertaking shall discharge any effluents or other pollutants originating from the trade or industrial undertaking only into existing sewerage systems and the relevant entity operating or supervising such sewerage system shall issue, at a prescribed fee, the necessary licence for discharge.
|
| (2) |
The proponent or owner of a trade or an industrial undertaking shall, prior to being granted a licence to discharge effluents into the environment, install an appropriate plant for the treatment of such effluents before they are discharged into the environment.
|
|
| 75. |
Licence to discharge effluents
| (1) |
No entity operating a sewerage system or owner or operator of any trade or industrial undertaking shall discharge any effluents or other pollutants into the environment without an effluent discharge licence issued by the Authority.
|
| (2) |
Every owner or operator of a trade or an industrial undertaking discharging any effluents or other pollutants into the environment before the commencement of this Act shall, within twelve months of such commencement apply to the Authority for an effluent discharge licence.
|
| (3) |
Every application for an effluent discharge licence shall be in the prescribed form and accompanied by the prescribed fee.
|
| (4) |
Before the issuance of a licence under subsections (1) and (2), the Authority shall—
| (a) |
solicit the comments of local authorities concerned and organizations and persons as he may deem fit;
|
| (b) |
take into consideration the possible effects of effluents or pollutants to be discharged on the quality of an affected water course or other source of water;
|
| (c) |
take into consideration the existing licences affecting the concerned water course or other source; and
|
| (d) |
take into consideration the water requirements of riparian residents and ecosystems, human settlements, and agricultural schemes which depend on the affected water course.
|
|
| (5) |
Where the Authority rejects an application for the grant of an effluent discharge licence it shall within twenty one days notify the applicant of its decision and state in writing its reasons for so rejecting the application.
|
| (6) |
An effluent discharge licence issued under this Act shall be in a prescribed form, be subject to such conditions as may be prescribed or as may be specified in the licence and shall remain valid for such period and may be renewed for such further periods as may be prescribed or specified in the licence.
|
|
| 76. |
Cancellation of effluent discharge licence
The Authority may in writing, cancel any effluent discharge licence—
| (a) |
if the holder of the licence contravenes any provision of this Act or any regulations made thereunder;
|
| (b) |
if the holder fails to comply with any condition specified in the licence; or
|
| (c) |
if the Authority considers it in the interest of the environment or in the public interest so to do.
|
|
| 77. |
Register of effluent discharge licences
The Authority shall maintain a register of all effluent discharge licences issued under this Act. The register shall be a public document and may be inspected at any reasonable hour by any person on the payment of the prescribed fee.
|
| 78. |
Air quality standards
| (1) |
The Cabinet Secretary shall, on the recommendation of the Authority—
| (a) |
establish criteria and procedures for the measurement of air quality;
|
| (b) |
| (i) |
ambient air quality standards; |
| (ii) |
occupational air quality standards, emission standards for various Sources; |
| (iii) |
criteria and guidelines for air pollution control for both mobile and stationary sources; and |
| (iv) |
any other air quality standards; |
|
| (c) |
determine measures necessary to reduce existing sources of air pollution by requiring the redesign of plants or the installation of new technology or both, to meet the requirements of standards established under this section;
|
| (d) |
issue guidelines to minimize emissions of greenhouse gases and identify suitable technologies to minimize air pollution; and
|
| (e) |
do all such things as appear necessary for the monitoring and controlling of air pollution.
|
|
| (2) |
The Authority shall consult and take into consideration the views of lead agencies before making the recommendations under subsection (1).
|
|
| 79. |
Controlled areas
| (1) |
The Cabinet Secretary, subject to the Constitution and any other relevant laws may on the advice of the Authority, by Gazette Notice, declare any area to be a controlled area for the purposes of this Part.
|
| (2) |
The Cabinet Secretary may, on the advice of the Authority, in regulations, prescribe the air emission standards in respect of any controlled areas.
|
|
| 80. |
Licensing emissions
| (1) |
An owner or operator of a trade, industrial undertaking or an establishment which after the commencement of this Act, is emitting a substance or energy which is causing or is likely to cause air pollution shall apply to the Authority for an emission licence.
|
| (2) |
In the case of any trade, industrial undertaking or establishment existing before the commencement of this Act, such application shall be made within twelve months after this Act has come into operation.
|
| (3) |
Every application for an emission licence shall be in the prescribed form and be accompanied by the prescribed fee.
|
|
| 81. |
Issue of emission licence
| (1) |
Before issuing a licence in respect of emissions, the Authority shall—
| (a) |
consider the possible effects of the emissions on the quality of ambient air;
|
| (b) |
consider existing licences affecting the same air resource;
|
| (c) |
give due regard to the requirements for the residents, human settlements and other industrial and commercial activities;
|
| (d) |
solicit the comments of relevant Local Authorities and concerned organisations;
|
| (e) |
where the information accompanying the application appears inadequate, require the applicant to furnish further information relating to the undertaking in question, its location, materials, technology design or other appropriate matters;
|
| (f) |
where it appears necessary to conduct an environmental impact study, require the applicant to conduct an environmental impact assessment study in respect of the undertaking in question in accordance with the provisions of Part VI.
|
|
| (2) |
An emission licence issued under this Act shall be in a prescribed form, be subject to such conditions as may be prescribed or as may be specified in the licence and shall remain valid for such period and may be renewed for such periods as may be prescribed or specified in the licence.
|
| (3) |
Where the Authority rejects an application for the grant of an emission licence, it shall within twenty one days of its decision, notify the applicant in writing of its reasons for such refusal.
|
|
| 82. |
Emissions by motor vehicles and other conveyances
No owner or operator of a motor-vehicle, train, ship, aircraft or other similar conveyance shall—
| (a) |
operate it in such a manner as to cause air pollution in contravention of the established emission standards; or
|
| (b) |
import any machinery, equipment, device or similar thing that will cause emissions into the ambient air in contravention of prescribed emission standards.
|
|
| 83. |
Additional licensing procedures
| (1) |
The Authority may establish additional procedures for the application and grant of any licence under this Act and impose such conditions as it may deem appropriate.
|
| (2) |
Subject to subsection (1), the Authority may allow electronic issuance of license to facilitate collaboration with the National Electronic Single Window System established under section 3 of the National Electronic Single Window System Act (Cap. 485D) and other agencies.
|
|
| 84. |
Cancellation of emission licence
The Authority may, in writing, cancel any emission licence—
| (a) |
if the holder of the licence contravenes any provisions of this Act or of any regulations made under it;
|
| (b) |
if the holder fails to comply with any condition specified in the licence; or
|
| (c) |
if the Authority considers it in the interest of the environment or in the public interest so to do.
|
|
| 85. |
Register of emission of licences
The Authority shall maintain a register of all emission licences issued under this Act. The register shall be a public document and may be inspected at reasonable hours by any person on the payment of a prescribed fee.
|
| 86. |
Standards for waste
The Cabinet Secretary shall, on the recommendation of the Authority—
| (a) |
identify materials and processes that are dangerous to human health and the environment;
|
| (b) |
issue guidelines and prescribe measures for the management of the materials and processes identified under paragraph (a);
|
| (c) |
prescribe standards for waste, their classification and analysis, and formulate and advise on standards of disposal methods and means for such wastes; or
|
| (d) |
issue regulations for the handling, storage, transportation, segregation and destruction of any waste.
|
|
| 87. |
Prohibition against dangerous handling and disposal of wastes
| (1) |
No person shall discharge or dispose of any wastes, whether generated within or outside Kenya, in such manner as to cause pollution to the environment or ill health to any person.
|
| (2) |
No person shall transport any waste other than—
| (a) |
in accordance with a valid licence to transport wastes issued by the Authority; and
|
| (b) |
to a wastes disposal site established in accordance with a licence issued by the Authority.
|
|
| (3) |
No person shall operate a wastes disposal site or plant without a licence issued by the Authority.
|
| (4) |
Every person whose activities generate wastes shall employ measures essential to minimize wastes through treatment, reclamation and recycling.
|
| (5) |
Any person who contravenes any provisions of this section shall be guilty of an offence and liable to imprisonment for a term of not more than two years or to a fine of not more than one million shillings or to both such imprisonment and fine.
|
|
| 88. |
Application for waste licence
| (1) |
Any person intending to transport wastes within Kenya, operate a wastes disposal site or plant or to generate hazardous waste, shall prior to transporting the wastes, commencing with the operation of a wastes disposal site or plant or generating hazardous wastes, as the case may be, apply to the Authority in writing for the grant of an appropriate licence.
|
| (2) |
A licence to operate a waste disposal site or plant may only be granted subject to the payment of the appropriate fee and any other licence that may be required by the relevant Local Authority.
|
| (3) |
Where the Authority rejects an application made under this section, it shall within twenty one days of its decision, notify the applicant of the decision specifying the reasons therefor.
|
|
| 89. |
Licences for existing wastes disposal sites and plants
Any person who, at the commencement of this Act, owns or operates a waste disposal site or plant or generated hazardous waste, shall apply to the Authority for a licence under this part, within six months after the commencement of this Act.
|
| 90. |
Court orders to cease operation
The Authority may apply to a competent court for orders compelling any person to immediately stop the generation, handling, transportation, storage or disposal of any wastes where such generation, handling, transportation, storage or disposal presents an imminent and substantial danger to public health, the environment or natural resources.
|
| 91. |
Hazardous wastes
| (1) |
The Cabinet Secretary shall, on the recommendation of the Authority determine standard criteria for the classification of hazardous wastes with regard to determining—
| (i) |
wastes, reactive otherwise than as described in the foregoing paragraphs of this subsection;
|
| (j) |
any other category of waste the Authority may consider necessary.
|
|
| (2) |
The Cabinet Secretary shall, on the recommendation of the Authority issue guidelines and regulations for the management of each category of hazardous wastes determined under subsection (1).
|
| (3) |
No person shall import into Kenya any hazardous waste falling under any category determined under subsection (1).
|
| (4) |
No hazardous waste shall be exported to any country from Kenya without a valid permit granted by the Authority and written consent given by a competent authority of the receiving country.
|
| (5) |
No hazardous waste shall be transported within or through Kenya without a valid permit granted by the Authority.
|
| (6) |
Any person who contravenes any provision of this section or who withholds, falsifies or otherwise tampers with information relating to trafficking in hazardous or other waste shall be guilty of an offence and liable to imprisonment for a term of not less than two years or to a fine of not less than one million shillings or to both such imprisonment and fine.
|
| (7) |
A person found guilty under subsection (6) shall be responsible for the removal of the waste from Kenya and for its safe disposal.
|
|
| 92. |
Regulations of toxic and hazardous materials etc
The Cabinet Secretary may, on the advice of the Authority make regulations prescribing the procedure and criteria for—
| (a) |
classification of toxic and hazardous chemicals and materials in accordance with their toxicity and the hazard they present to the human health and to the environment;
|
| (b) |
registration of chemicals and materials;
|
| (c) |
labelling of chemicals and materials;
|
| (d) |
packaging for chemicals and materials;
|
| (e) |
advertising of chemicals and materials;
|
| (f) |
control of imports and exports of toxic and hazardous chemicals and materials permitted to be so imported or exported;
|
| (g) |
distribution, storage, transportation and handling of chemicals and materials;
|
| (h) |
monitoring of the effect of chemicals and their residue on human health and the environment;
|
| (i) |
disposal of expired and surplus chemicals and materials; and
|
| (j) |
restriction and banning of toxic and hazardous substances and energy.
|
|
| 93. |
Prohibition of discharge of hazardous substances, chemicals and materials or oil into the environment and spiller’s liability
| (1) |
No person shall discharge any hazardous substance, chemical, oil or mixture containing oil into any waters or any other segments of the environment contrary to the provisions of this Act or any regulations thereunder.
|
| (2) |
A person who discharges a hazardous substance, chemical, oil or a mixture containing oil into any waters or other segments of the environment contrary to subsection (1) commits an offence.
|
| (3) |
A person convicted of an offence under subsection (2) shall, in addition to any other sentence imposed by the court—
| (a) |
pay the cost of the removal of the hazardous substance, chemical, oil or a mixture containing oil including any costs which may be incurred by any Government agency or organ in the restoration of the environment damaged or destroyed as a result of the discharge; and
|
| (b) |
the costs of third parties in the form of reparation, restoration, restitution or compensation as may be determined by a competent court on application by such third parties.
|
|
| (4) |
The owner or operator of a production or storage facility, motor vehicle or vessel from which a discharge occurs contrary to this section shall mitigate the impact of the discharge by—
| (a) |
giving immediate notice of the discharge to the Authority and other relevant Government officers;
|
| (b) |
immediately beginning clean-up operations using the best available clean-up methods;
|
| (c) |
complying with such directions as the Authority may, from time to time, prescribe.
|
|
| (5) |
Where the owner or operator of a production or storage facility, motor vehicle or vessel has refused, neglected and/or failed to take the mitigation measures prescribed in subsection (4), the Authority may seize the production or storage facility, motor vehicle or vessel.
|
| (6) |
Where the owner or operator fails to take the necessary measures under subsection (4) after the passage of a reasonable time not exceeding six months in all the circumstances, the Authority may, upon an order of court, dispose of the production or storage facility, motor vehicle or vessel to meet the costs of taking the necessary measures under subsection (4) and other remedial and restoration measures.
|
| (7) |
The Court in convicting a person of an offence under this section shall take into account the measures taken by that person to comply with subsection (4).
|
|
| 94. |
Standards of pesticides and toxic substances
The Cabinet Secretary shall, on the recommendation of the Authority—
| (a) |
determine standards for the concentration of pesticide residues in raw agricultural commodities. For the purposes of this paragraph, raw agricultural commodities—
| (i) |
include fresh or frozen fruit and vegetables in their raw state, grains, nuts, eggs, raw milk, meat and other agricultural produce; |
| (ii) |
do not include any agricultural produce or good which is processed, fabricated or manufactured by cooking, dehydrating, milling, or by any other similar means; |
|
| (b) |
establish standards to regulate the importation, exportation, manufacture, storage, distribution, sale, use, packaging, transportation, disposal and advertisement of pesticides and toxic substances in consultation with the relevant organizations;
|
| (c) |
establish procedures for the registration of pesticides and toxic substances;
|
| (d) |
determine measures to ensure proper labelling and packaging of pesticides and toxic substances;
|
| (e) |
determine measures for monitoring the effects of pesticides and toxic substances on the environment;
|
| (f) |
determine measures for the establishment and maintenance of laboratories to operate as standards laboratories for pesticides and toxic substances; and
|
| (g) |
determine measures for the establishment of enforcement procedures and regulations for the storage, packaging and transportation of pesticides and toxic substances.
|
|
| 97. |
Registration of pesticides and toxic substances
| (1) |
The Authority may, upon application, register a pesticide or toxic substance subject to such existing conditions and any other conditions that the Authority may determine.
|
| (2) |
Every pesticide or toxic substance shall be registered for ten years unless some other period is specified by the Authority, and may be renewed for a like period.
|
| (3) |
Where the Authority refuses to register any pesticide or toxic substance, the notice of refusal shall state the reasons for such refusal.
|
|
| 98. |
Offences relating to pesticides and toxic substances
| (1) |
| (a) |
detach, alter or destroy any labelling on a pesticide or toxic substance contrary to the provisions of this Act;
|
| (b) |
change the composition of a pesticide or toxic substance, contrary to the provisions of this Act; or
|
| (c) |
use or dispose into the environment a pesticide or toxic substance in contravention of the provisions of this Act.
|
|
| (2) |
No person shall distribute, sell, offer for sale, hold for sale, import, deliver for importation to, or receive from, deliver or offer to deliver to any other person any unregistered pesticide or toxic substance.
|
| (3) |
Any person who contravenes any of the provisions of this section shall be guilty of an offence and shall be liable upon conviction to a fine of not more than one million shillings or to imprisonment for a term of not more than two years or to both such fine and imprisonment.
|
|
| 99. |
Seizure of pesticides and toxic substances
| (1) |
Any pesticide or toxic substance which the Authority reasonably suspects to be the subject matter of an offence under this Act shall be liable to seizure by the Authority.
|
| (2) |
Whenever any pesticide or toxic substance is seized under subsection (1), the Authority shall serve a notice of seizure on the owner of the pesticide or toxic Substance as soon as practicable.
|
| (3) |
Where any pesticide or toxic substance is seized under this section, the pesticide or toxic substance shall be placed under the custody of the Authority.
|
| (4) |
Any pesticide or toxic substance placed under the custody of the Authority under subsection (3) shall be released, if after six months—
| (a) |
no prosecution under the Act has been instituted with regard to the pesticide or toxic substance;
|
| (b) |
no person is convicted of an offence under this Act.
|
|
|
| 100. |
Regulations regarding registration of pesticides and toxic substances
The Cabinet Secretary shall, in consultation with the relevant lead agencies, make regulations prescribing the contents of any application and the conditions for the registration of pesticides and toxic substances under this Act.
|
| 101. |
Standards for noise
The Cabinet Secretary shall, on the recommendation of the Authority—
| (a) |
recommend minimum standards for emissions of noise and vibration pollution into the environment as are necessary to preserve and maintain public health and the environment;
|
| (b) |
determine criteria and procedures for the measurement of noise and vibration pollution into the environment;
|
| (c) |
determine criteria and procedures for the measurement of sub-sonic vibrations;
|
| (d) |
determine standards for the emission of sub-sonic vibrations which are likely to have a significant impact on the environment:
|
| (e) |
issue guidelines for the minimization of sub-sonic vibrations, referred to in paragraph (d) from existing and future sources;
|
| (f) |
determine noise level and noise emission standards applicable to construction sites, plants, machinery, motor vehicles, aircraft including sonic bonus, industrial and commercial activities;
|
| (g) |
determine measures necessary to ensure the abatement and control of noise from sources referred to in paragraph (f); and
|
| (h) |
issue guidelines for the abatement of unreasonable noise and vibration pollution emitted into the environment from any source.
|
|
| 102. |
Noise in excess of established standards prohibited
Subject to the provisions of the Civil Aviation Act (Cap. 394), any person who emits noise in excess of the noise emission standards established under this Part commits an offence.
|
| 103. |
Exemptions in respect of noise standards
| (1) |
Notwithstanding the provisions of section 102, the Authority may on request grant a temporary permit not exceeding three months, allowing emission of noise in excess of established standards for such activities as fireworks, demolitions, firing ranges and specific heavy industry on such terms and conditions as the Authority may determine.
|
| (2) |
Where an exemption has been granted under subsection, (1), workers exposed to excessive levels of noise shall be adequately protected in accordance with the directives issued by the Authority.
|
|
| 104. |
Radiation Standards
| (1) |
Subject to the provisions of the Radiation Protection Act (Cap. 243) the Cabinet Secretary, on the recommendation of the Authority, shall—
| (a) |
establish the standards for the setting of acceptable levels of ionizing and other radiation in the environment; and
|
| (b) |
establish criteria and procedures for the measurement of ionizing and other radiation.
|
|
| (2) |
| (a) |
inspect and examine any area, place or premises or any vehicle, vessel, boat or any carrier of any description in or upon which the Authority has reasonable cause to believe that radioactive material or any source of ionizing radiation is stored, used, transported or disposed of;
|
| (b) |
examine any person with respect to matters under this Act, where there is reasonable cause to believe that that person is contaminated with radioactive material, or is in unlawful possession of an ionizing radiation source;
|
| (c) |
in collaboration with the Radiation Protection Board, conduct an ionizing radiation monitoring programme and advise on ionizing and radiation control and protection measures;
|
| (d) |
maintain records of release of radioactive contaminants into the environment;
|
| (e) |
keep records of baseline data on radiation in the environment;
|
| (f) |
maintain a register of all radioactive substances imported into Kenya; and
|
| (g) |
do all such things as may be necessary for the monitoring and control of pollution from radiation.
|
|
|
| 107. |
Standards for the control of noxious smells
The Authority shall, in accordance with the relevant lead agencies, establish—
| (a) |
procedures for the measurement and determination of noxious smells;
|
| (b) |
minimum standards for the control of pollution of the environment by noxious smells; or
|
| (c) |
guidelines for measures leading to the abatement of noxious smells, whether from human or from naturally occurring phenomena.
|
|
PART IX – ENVIRONMENTAL RESTORATION ORDERS, ENVIRONMENTAL CONSERVATION ORDERS AND ENVIRONMENTAL EASEMENTS
| 108. |
Issue of Environmental Restoration Orders
| (1) |
Subject to any other provisions of this Act, the Authority may issue and serve on any person in respect of any matter relating to the management of the environment an order in this Part referred to as an environmental restoration order.
|
| (2) |
An environmental restoration order issued under subsection (1) or section 111 shall be issued to—
| (a) |
require the person on whom it is served to restore the environment as near as it may be to the state in which it was before the taking of the action which is the subject of the order;
|
| (b) |
prevent the person on whom it is served from taking any action which would or is reasonably likely to cause harm to the environment;
|
| (c) |
award compensation to be paid by the person on whom it is served to other persons whose environment or livelihood has been harmed by the action which is the subject of the order;
|
| (d) |
levy a charge on the person on whom it is served which in the opinion of the Authority represents a reasonable estimate of the costs of any action taken by an authorised person or organisation to restore the environment to the state in which it was before the taking of the action which is the subject of the order.
|
|
| (3) |
An environmental restoration order may contain such terms and conditions and impose such obligations on the persons on whom it is served as will, in the opinion of the Authority, enable the order to achieve all or any of the purposes set out in subsection (2).
|
| (4) |
Without prejudice to the general effect of the purposes set out in subsection (2) an environmental restoration order may require a person on whom it is served to—
| (a) |
take such action as will prevent the commencement or continuation or cause of pollution;
|
| (b) |
restore land, including the replacement of soil, the replanting of trees and other flora and the restoration as far as may be, of outstanding geological, archaeological or historical features of the land or the area contiguous to the land or sea as may be specified in the particular order;
|
| (c) |
take such action to prevent the commencement or continuation or cause of environmental hazard;
|
| (d) |
cease to take any action which is causing or may contribute to causing pollution or an environmental hazard;
|
| (e) |
remove or alleviate any injury to land or the environment or to the amenities of the area;
|
| (f) |
prevent damage to the land or the environment, aquifers beneath the land and flora and fauna in, on or under or about the land or sea specified in the order or land or the environment contiguous to the land or sea specified in the order;
|
| (g) |
remove any waste or refuse deposited on the land or sea specified in the order and dispose of the same in accordance with the provisions of the order;
|
| (h) |
pay any compensation specified in the order.
|
|
| (5) |
In exercising the powers under this section, the Authority shall—
| (a) |
be guided by the principles of good environmental management in accordance with the provisions of this Act; and
|
| (b) |
explain the right of appeal of the persons against whom the order is issued to the Tribunal or if dissatisfied with the decision of the Tribunal, to superior courts.
|
|
|
| 109. |
Contents of environmental restoration orders
| (1) |
An environmental restoration order shall specify clearly and in a manner which may be easily understood—
| (a) |
the activity to which it relates;
|
| (b) |
the person or persons to whom it is addressed;
|
| (c) |
the time at which it comes into effect;
|
| (d) |
the action which must be taken to remedy the harm to the environment and the time, being not more than thirty days or such further period as may be prescribed in the order within which the action must be taken;
|
| (e) |
the powers of the Authority to enter any land and undertake the action specified in paragraph (d);
|
| (f) |
the penalties which may be imposed if the action specified in paragraph (d) is not undertaken;
|
| (g) |
the right of the person served with an environmental restoration order to appeal to the Tribunal against that order, except where the order is issued by a court of competent jurisdiction, in which case the right of appeal shall lie with superior courts.
|
|
| (2) |
An Environmental Inspector of the Authority may inspect or cause to be inspected any activity to determine whether that activity is harmful to the environment and may take into account the evidence obtained from that inspection in any decision on whether or not to serve an environmental restoration order.
|
| (3) |
The Authority may seek and take into account any technical, professional and scientific advice which it considers to be desirable for a satisfactory decision to be made on an environmental restoration order.
|
| (4) |
An environmental restoration order shall continue to apply to the activity in respect of which it was served notwithstanding that it has been complied with.
|
| (5) |
A person served with an environmental restoration order shall, subject to the provisions of this Act, comply with all the terms and conditions of the order that has been served on him.
|
| (6) |
It shall not be necessary for the Authority or its Inspectors in exercising the powers under subsection (2), to give any person conducting or involved in the activity which is the subject of the inspection or residing or working on or developing land on which the activity which is the subject of the inspection is taking place, an opportunity of being heard by or making representations to the person conducting the inspection.
|
|
| 110. |
Reconsideration of environmental restoration order
| (1) |
At any time within twenty-one days after the service of an environmental restoration order, a person upon whom the order has been served may, by giving reasons in writing, request the Authority to re-consider that order.
|
| (2) |
Where the Authority exercises the power under subsection (1), the expenses necessarily incurred by it in the exercise of that power shall be a civil debt recoverable summarily by it from the person referred to in subsection (1).
|
|
| 111. |
Issue of environmental restoration order by a court
| (1) |
Without prejudice to the powers of the Authority under this Act, a court of competent jurisdiction may, in proceedings brought by any person, issue an environmental restoration order against a person who has harmed, is harming or is reasonably likely to harm the environment.
|
| (2) |
For the avoidance of doubt, it shall not be necessary for a plaintiff under this under this section to show that he has a right or interest in the property, environment or land alleged to have been or likely to be harmed.
|
|
| 112. |
Environmental easements and environmental conservation orders
| (1) |
A court may, on an application made under this Part, grant an environmental easement or an environmental conservation order subject to the provisions of this Act and the Land Act (Cap. 280).
|
| (2) |
The object of an environmental easement is to further the principals of environmental management set out in this Act by facilitating the conservation and enhancement of the environment, in this Act referred to as the benefited environment, through the imposition of one or more obligations in respect of the use of land, in this Act referred to as the burdened land, being the land in the vicinity of the benefited environment.
|
| (3) |
An environmental easement may be imposed on and shall thereafter attach to the burdened land in perpetuity or for a term of years or for an equivalent interest under customary law as the court may determine.
|
| (4) |
Without prejudice to the general effect of subsection (2), an environmental conservation order may be imposed on burdened land so as to—
| (a) |
preserve flora and fauna;
|
| (b) |
preserve the quality and flow of water in a dam, lake, river or acquifer;
|
| (c) |
preserve any outstanding geological, physiographical, ecological, archeological or historical features of the burdened land;
|
| (f) |
permit persons to walk in a defined path across the burdened land;
|
| (g) |
preserve the natural contours and features of the burdened land;
|
| (h) |
prevent or restrict the scope of any activity on the burdened land which has as its object the mining and working of mineral aggregates;
|
| (i) |
prevent or restrict the scope of an agricultural activity on the burdened land;
|
| (j) |
create and maintain works on burdened land so as to limit or prevent harm to the environment; or
|
| (k) |
create or maintain migration corridors for wildlife.
|
|
| (5) |
Where an environmental easement is imposed on burdened land on which any person has at the time of the imposition of the easement, any existing right or interest to the land and that environmental easement will restrict that right or interest, there shall be paid to that person, by the applicant for the environmental easement such compensation as may be determined in accordance with section 116(5A) The principle of voluntary environment management shall be used to encourage land owners to grant an easement on their land and to encourage environmental conservation as a competitive land use option.
|
| (6) |
An environmental easement may exist in gross; that is to say, the validity and enforceability of the easement shall not be dependent on the existence of a plot of land in the vicinity of the burdened land which can be benefited or, of a person with an interest in that plot of land who can be benefited by the environmental easement.
|
|
| 113. |
Application to court for environmental easement
| (1) |
A person or a group of persons may make an application to the court for the grant of one or more environmental easements.
|
| (2) |
The court may impose such conditions on the grant of an environmental easement as it considers to be best calculated to advance the object of an environmental easement.
|
|
| 114. |
Enforcement of environmental easements
| (1) |
Proceedings to enforce an environmental easement may be commenced only by the person in whose name the environmental easement has been issued.
|
| (2) |
Proceedings to enforce an environmental easement may request the court to—
| (a) |
grant an environmental restoration order;
|
| (b) |
grant any remedy available under the law relating to easements in respect of land.
|
|
| (3) |
The court shall have a discretion to adapt and adjust, so far as seems necessary to it, the law and procedures relating to the enforcement of the requirements of an environmental easement.
|
|
| 115. |
Registration of environmental easements
| (1) |
Where an environmental easement is imposed on land, the title of which is registered under a particular system of land registration, the environmental easement shall be registered in accordance with the provisions of the Act applicable to that particular system of registration for easements.
|
| (2) |
Where an environmental easement is imposed on any land other than land referred to in subsection (1), the County Environment Committee of the area in which that land is situated shall register the environmental easement on a register maintained for that purpose in accordance with the provisions of this Act.
|
| (3) |
In addition to any matter which may be required by any law relating to the registration of easements in respect of land, the registration of an environmental easement shall include the name of the applicant for the environmental easement as the person in whose name the environmental easement is registered.
|
|
| 116. |
Compensation for environmental easements
| (1) |
Any person who has a legal interest in the land which is the subject of an environmental easement, shall, in accordance with the provisions of this Act, be entitled to compensation commensurate with the lost value of the use of the land.
|
| (2) |
A person described in subsection (1) may apply to the court that granted the environmental easement for compensation stating the nature of his legal interest in the burdened land and the compensation sought.
|
| (3) |
The court may require the applicant for the environmental easement to bear the cost of compensating the person described in subsection (1).
|
| (4) |
The court may, if satisfied that the environmental easement sought is of national importance, order that the Government compensates the person described in subsection (1).
|
| (5) |
The court in determining the compensation due under this section shall take into account the relevant provisions of the Constitution and any other laws relating to compulsory acquisition of land.
|
|
PART X – INSPECTION, ANALYSIS AND RECORDS
| 117. |
Appointment of Environmental Inspectors
| (1) |
The Director-General shall, by Gazette Notice, appoint duly qualified persons whether public officer or otherwise, whether by name or by title of office, to be environmental inspectors of the Authority for such jurisdiction units as shall be specified in the Gazette Notice appointing them.
|
| (2) |
An environmental inspector shall—
| (a) |
monitor compliance with the environmental standards established under this Act;
|
| (b) |
monitor the activities of other sector-specific environmental inspectorates;
|
| (c) |
monitor the pattern of use of environmental resources;
|
| (d) |
conduct environmental audits; and
|
| (e) |
perform such other functions as may be required under this Act or under the Gazette Notice appointing him.
|
|
| (3) |
An environmental inspector may, in the performance of his duties under this Act or any regulations made thereunder, at all reasonable times and without a warrant—
| (a) |
enter any land, premises, vessel, motor vehicle or ox-drawn trailer and make examinations and enquiries to determine whether the provisions of this Act are being complied with;
|
| (b) |
require the production of, inspect, examine and copy licences, registers, records and other documents relating to this Act or any other law relating to the environment and the management of natural resources;
|
| (c) |
take samples of any articles and substances to which this Act relates and, as may be prescribed, submit such samples for test and analysis;
|
| (d) |
carry out periodic inspections of all establishments and undertakings within their respective jurisdictional limits which manufacture, produce as by-products, import, export, store, sell, distribute or use any substances that are likely to have significant impact on the environment, to ensure that the provisions of this Act are complied with;
|
| (e) |
seize any article, vessel, motor vehicle, plant, equipment, substance or any other thing which he reasonably believes has been used in the commission of an offence under this Act or the regulations made thereunder;
|
| (f) |
with the written approval of the Director-General order the immediate closure of any manufacturing plant or other establishment or undertaking which pollutes or is likely to pollute the environment contrary to the provisions of this Act and to require the owner or operator of such establishment or undertaking to implement any remedial measures that the environmental inspector may direct in the notice closing down the establishment or undertaking. Any establishment or undertaking closed down under this paragraph may resume its operations only with the written approval of the Director- General;
|
| (g) |
with the approval of the Director-General or his designate issue an improvement notice requiring the owner or operator of any manufacturing plant, vessel, motor vehicle or other establishment or undertaking to cease any activities deleterious to the environment and to take appropriate remedial measures, including the installation of new plant and machinery if necessary, within such reasonable time as the Director-General or his designate may determine;
|
| (h) |
with an arrest warrant and the assistance of a police officer, arrest any person whom he reasonably believes has committed an offence under this Act; and
|
| (i) |
install any equipment on any land, premise, vessel or motor vehicle for purposes of monitoring compliance with the provisions of this Act, or the regulations made thereunder upon giving the owner or occupier of the land fourteen days written notice.
|
|
| (4) |
In exercising his powers under this Act, the environmental inspector shall suitably identify himself.
|
| (5) |
In effecting arrest, the Authority may request the Inspector- General for such number of officers as it may require.
|
|
| 118. |
Environmental Inspector’s powers to prosecute
Subject to the Constitution, section 29 of the Office of the Director of Public Prosecutions Act and the directions and control of the Director of Public Prosecutions, an environmental inspector may, in any case in which he considers it desirable so to do—
| (a) |
institute and undertake criminal proceedings against any person before a court of competent jurisdiction (other than a court martial) in respect of any offence alleged to have been committed by that person under this Act; and
|
| (b) |
discontinue at any stage with the approval of the Director of Public Prosecutions, before judgment is delivered any such proceedings instituted or undertaken by himself.
|
|
| 119. |
Procedures for laboratories analysis of samples
| (1) |
The Director-General may, by Notice in the Gazette, designate such number of laboratories as he may consider necessary, analytical or reference laboratories for the purpose of this Act.
|
| (2) |
A notice under subsection (1) shall state the specific functions of the laboratory, local limits or subject matter which the laboratory shall serve and the persons appointed as analysts in respect of that laboratory.
|
| (3) |
The Authority shall, prescribe the form and manner in which samples will be taken for analysis.
|
|
| 120. |
Certificate of analysis and its effect
| (1) |
A laboratory designated as an analytical or reference laboratory under section 119 shall issue a certificate of analysis of any substance submitted to it under this Act.
|
| (2) |
The certificate of analysis shall state the methods of analysis followed and shall be the analyst or the reference analyst, as the case may be.
|
| (3) |
A certificate issued under subsection (1) and complying with subsection (2) shall be sufficient evidence of the facts stated in the certificate for all purpose under this Act.
|
| (4) |
The results of any analysis made by the laboratory shall be open to inspection by all interested parties.
|
|
| 121. |
Records to be kept
| (1) |
The Director-General shall, by notice in the Gazette, prescribe the activities for which records shall be kept for the purposes of this Act, the contents of such records and the manner in which they shall be kept.
|
| (2) |
The records kept in accordance with subsection (1) of this section and any other records available at the site of an establishment or undertaking shall be made available at such reasonable time to any environmental inspector for the purpose of—
| (b) |
environmental monitoring and evaluation;
|
| (e) |
any other purpose that may be prescribed by the Director-General from time to time.
|
|
|
| 122. |
Transmission of records to the Authority
The records kept under section 121 shall be transmitted annually to the Authority or its designated representative to be received not later than one month after the end of each calendar year. The Authority shall keep all records transmitted hereunder and may maintain their confidentiality if the applicable circumstances so require.
|
| 123. |
Public Access to records transmitted to the Authority
| (1) |
Subject to the provisions of section 122, any person may have access to any records transmitted to the Authority under this Act.
|
| (2) |
A person desiring access to such records referred to in subsection (1) may on application to the Authority, be granted access to the said records on the payment of a fee prescribed by the Authority.
|
|
PART XI – INTERNATIONAL TREATIES, CONVENTIONS AND AGREEMENTS
| 124. |
Conventions, agreements and treaties on environment
| (1) |
Where Kenya is a party to an international treaty, convention or agreement, whether bilateral or multilateral, concerning the management of the environment, the Authority shall, subject to the Treaty Making and Ratification Act (Cap. 4D)—
| (a) |
initiate legislative proposals for consideration by the Attorney-General, for purposes of giving effect to such treaty, convention or agreement in Kenya or for enabling Kenya to perform her obligations or exercise her rights under such treaty, convention or agreement; and
|
| (b) |
identify other appropriate measures necessary for the national implementation of such treaty, convention or agreement.
|
|
| (3) |
The Authority shall keep a register of all international treaties, agreements or conventions in the field of the environment to which Kenya is a party.
|
|
| 124A. |
Transactions requiring Parliamentary ratification
| (1) |
The Cabinet Secretary shall, within six months from the commencement date of this Act, in consultation with the Authority and lead agencies, develop legislation requiring certain transactions involving environmental resources to be submitted to Parliament for ratification.
|
| (2) |
The acreage, quantity, quality, value, location and dimensions of natural resources whose agreements require Parliamentary approval shall be specified in an Act of Parliament.
|
| (3) |
Any transaction requiring ratification by Parliament as required in this Section shall include the grant of a right or concession by or on behalf of any person, including a local community, a county or the national government. to another person—
| (a) |
for the exploitation of wildlife resources and habitats; resources of gazetted forests, water resources, resources on community land and biodiversity resources; and
|
| (b) |
in the case of a foreign national or company, land owned by such person of more than three hectares.
|
|
| (4) |
The Cabinet Secretary may, by notice in the Gazette, specify additional environmental resources whose transactions require ratification by parliament.
|
| (5) |
Any agreements concluded before the promulgation of the Constitution and the coming into force of this Act may be reviewed within a period of two years.
|
|
PART XII – NATIONAL ENVIRONMENT TRIBUNAL
| 125. |
Establishment of the National Environment Tribunal
| (1) |
There is established a Tribunal to be known as the National Environment Tribunal which shall consist of the following members—
| (a) |
a person nominated by the Judicial Service Commission, who shall be a person qualified for appointment as a judge of the Environment and Land Court of Kenya;
|
| (b) |
an advocate of the High Court of Kenya nominated by the Law Society of Kenya;
|
| (c) |
a lawyer with professional qualifications in environmental law appointed by the Cabinet Secretary; and
|
| (d) |
three persons with demonstrated competence in environmental matters, including but not limited to land, energy, mining, water, forestry, wildlife and maritime affairs.
|
|
| (2) |
All appointments to the Tribunal shall be by name and by Gazette Notice issued by the Cabinet Secretary.
|
| (3) |
The members of the Tribunal shall be appointed at different times so that the respective expiry dates of their terms of office shall fall at different times.
|
| (4) |
The office of a member of the Tribunal shall become vacant—
| (a) |
at the expiration of three years from the date of his appointment;
|
| (b) |
if he accepts any office the holding of which, if he were not a member of the Tribunal, would make him ineligible for appointment to the office of a member of the Tribunal;
|
| (c) |
if he is removed from membership of the Tribunal by the Cabinet Secretary for failure to discharge the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour; and
|
| (d) |
if he resigns the office of member of the Tribunal.
|
|
| (5) |
The members of the Tribunal shall, in their first meeting, elect from amongst themselves a Chairperson to the Tribunal from amongst the persons appointed under paragraphs (a), (b) and (c) of subsection (1) and a vice-Chairperson to the Tribunal from amongst all members.
|
| (6) |
The Chairperson and vice-Chairperson shall be of opposite gender.
|
| (7) |
In the absence of the Chairperson, the vice-Chairperson shall serve as the acting Chairperson for the duration of the absence of the Chairperson and the acting Chairperson shall perform such functions and exercise such powers as if that person were the Chairperson.
|
| (8) |
In the absence of both the Chairperson and the vice-Chairperson, the members of the Tribunal present may nominate, from among themselves, a person to act as the Chairperson, which person shall have the training and qualifications in the field of law and such person, while acting as the Chairperson, shall perform such functions and exercise such powers as if that person were the Chairperson.
|
| (9) |
The Chairperson may designate the vice-Chairperson and two other members to constitute a separate sitting of the Tribunal.
|
|
| 126. |
Proceedings of the Tribunal
| (1) |
The Tribunal shall not be bound by the rules of evidence as set out in Evidence Act (Cap. 80).
|
| (2) |
The Tribunal shall, upon an appeal made to it in writing by any party or a referral made to it by the Authority on any matter relating to this Act, inquire into the matter and make an award, give directions, make orders or make decisions thereon, and every award, direction, order or decision made shall be notified by the Tribunal to the parties concerned, the Authority or any relevant committee thereof, as the case may be.
|
| (3) |
The Tribunal shall sit at such times and in such places as it may appoint.
|
| (4) |
The proceedings of the Tribunal shall be open to the public save where the Tribunal, for good cause, otherwise directs.
|
| (5) |
Except as expressly provided in this Act or any regulations made thereunder, the Tribunal shall regulate its proceedings as it deems fit.
|
| (6) |
Any person who is a party to the proceedings before the Tribunal may appear in person or be represented by an Advocate.
|
|
| 127. |
Awards of the Tribunal
| (1) |
| (a) |
make such orders for the purposes of securing the attendance of any person at any place where the Tribunal is sitting, discovery or production of any document concerning a matter before the Tribunal or the investigation of any contravention of this Act as it deems necessary or expedient;
|
| (b) |
take evidence on oath and may for that purpose administer oaths; or
|
| (c) |
on its own motion summon and hear any person as witness.
|
|
| (2) |
| (a) |
fails to attend the Tribunal after having been required to do so under subsection (1)(a);
|
| (b) |
refuses to take oath or affirmation before the Tribunal or being a public officer refuses to produce any article or document when lawfully required to do so by the Tribunal;
|
| (c) |
knowingly gives false evidence or information which he knows to be misleading before the Tribunal; or
|
| (d) |
at any sitting of the Tribunal—
| (i) |
wilfully insults any member or officer of the Tribunal; |
| (ii) |
wilfully interrupts the proceedings or commits any contempt of the Tribunal; |
|
| (e) |
fails or neglects to comply with a decision order, direction or notice confirmed by the Tribunal,
|
commits an offence under this Act.
|
|
| 128. |
Quorum for determination by Tribunal
| (1) |
Subject to section 125, the quorum for hearing or determining any cause or matter before the Tribunal under this Act shall be three members.
|
| (2) |
A member of the Tribunal who has a direct interest in any matter which is the subject of the proceedings before the Tribunal shall not take part in those proceedings.
|
|
| 129. |
Appeals to the Tribunal
| (1) |
Any person who is aggrieved by—
| (a) |
the grant of a licence or permit or a refusal to grant a licence or permit, or the transfer of a licence or permit, under this Act or its regulations;
|
| (b) |
the imposition of any condition, limitation or restriction on the persons licence under this Act or its regulations;
|
| (c) |
the revocation, suspension or variation of the person's licence under this Act or its regulations;
|
| (d) |
the amount of money required to paid as a fee under this Act or its regulations;
|
| (e) |
the imposition against the person of an environmental restoration order or environmental improvement order by the Authority under this Act or its Regulations, may within sixty days after the occurrence of the event against which the person is dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal.
|
|
| (2) |
Unless otherwise expressly provided in this Act, where this Act empowers the Director-General, the Authority or Committees of the Authority or its agents to make decisions, such decisions may be subject to an appeal to the Tribunal in accordance with such procedures as may be established by the Tribunal for that purpose.
|
| (3) |
Upon any appeal, the Tribunal may—
| (a) |
confirm, set aside or vary the order or decision in question;
|
| (b) |
exercise any of the powers which could have been exercised by the Authority in the proceedings in connection with which the appeal is brought; or
|
| (c) |
make such other order, including orders to enhance the principles of sustainable development and an order for costs, as it may deem just;
|
| (d) |
if satisfied upon application by any party, issue orders maintaining the status quo of any matter or activity which is the subject of the appeal until the appeal is determined;
|
| (e) |
if satisfied upon application by any party, review any orders made under paragraph (a).
|
|
| (4) |
Any status quo automatically maintained by virtue of the filing of any appeal prior to the commencement of subsection (3) shall lapse upon commencement of this section unless the Tribunal, upon application by a party to the appeal, issue fresh orders maintaining the status quo in accordance with subsection (3)(a).
|
|
| 130. |
Appeals to the Environment and Environment and Land Court
| (1) |
Any person aggrieved by a decision or order of the Tribunal may, within thirty days of such decision or order, appeal against such decision or order to the Environment and Land Court.
|
| (2) |
No decision or order of the Tribunal shall be enforced until the time for lodging an appeal has expired or, where the appeal has been commenced, until the appeal has been determined.
|
| (3) |
Notwithstanding the provisions of subsection (2), where the Director- General is satisfied that immediate action must be taken to avert serious injuries to the environment, the Director-General shall have the power to take such reasonable action to stop, alleviate or reduce such injury, including the powers to close down any undertaking, until the appeal is finalised or the time for appeal has expired.
|
| (4) |
Upon the hearing of an appeal under this section, the Environment and Land Court may—
| (a) |
confirm, set aside or vary the decision or order in question;
|
| (b) |
remit the proceedings to the Tribunal with such instructions for further consideration, report, proceedings or evidence as the court may deem fit to give;
|
| (c) |
exercise any of the powers which could have been exercised by the Tribunal in the proceedings in connection with which the appeal is brought; or
|
| (d) |
make such other order as it may deem just, including an order as to costs of the appeal or of earlier proceedings in the matter before the Tribunal.
|
|
| (5) |
The decision of the Environment and Land Court on any appeal under this section shall be final.
|
|
| 131. |
Power to appoint Environment Assessors
The Chairperson of the Tribunal may appoint any persons with special skills or knowledge on environmental issues which are the subject matter of any proceedings or inquiry before the Tribunal to act as assessors in an advisory capacity in any case where it appears to the Tribunal that such special skills or knowledge are required for proper determination of the matter.
|
| 132. |
Power to seek the directions of the Tribunal in complex matters, etc.
| (1) |
When any matter to be determined by the Authority under this Act appears to it to involve a point of law or to be of unusual importance or complexity, it may, after giving notice to the concerned parties, refer the matter to the Tribunal for direction.
|
| (2) |
Where any matter has been referred to the Tribunal under subsection (1), the Authority and the parties thereto shall be entitled to be heard by the Tribunal before any decision is made in respect of such matter and may appear personally or be represented by an Advocate.
|
| (3) |
Any person who is a party to proceedings before the Tribunal may appear in person or be represented by an Advocate before the Tribunal.
|
|
| 133. |
Immunity
| (1) |
The Chairperson or other members of the Tribunal shall not be liable to be sued in a civil court for an act done or omitted to be done or ordered to be done by them in the discharge of their duty as members of the Tribunal, whether or not within the limits of their jurisdiction, provided they, at the time, in good faith, believed themselves to have jurisdiction to do or order the act complained of; and no offer of the Tribunal or other person bound to execute the lawful warrants, orders or other process of the Tribunal shall be liable to be sued in any court for the execution of a warrant, order or process which he would have been bound to execute if within the jurisdiction of the Tribunal.
|
| (2) |
It shall be an offence for any person to engage in acts or make omissions amounting to contempt of the Tribunal and the Tribunal may punish such person for contempt in accordance with the provisions of this Act.
|
|
| 134. |
Remuneration of members of Tribunal
| (1) |
There shall be paid to the Chairperson and the members of the Tribunal such remuneration and allowances as the Cabinet Secretary on the recommendation of the Salaries and Remuneration Commission shall determine.
|
| (2) |
The remuneration and allowances referred to in subsection (1) and any other expenses incurred by the Tribunal in the execution of its functions under this Act shall be paid out of monies voted by Parliament for that purpose.
|
|
| 134A. |
Staff of the Tribunal
There shall be such other staff of the Tribunal as may be necessary for the performance of its functions.
|
| 135. |
Appointment of a Secretary to the Tribunal
The Cabinet Secretary shall appoint a public officer to be the secretary to the Tribunal who shall be paid such allowances as the Cabinet Secretary shall determine.
|
| 136. |
Powers to establish other Tribunals
| (1) |
The Ministry may establish such other Tribunals in any part of Kenya as he deems appropriate.
|
| (2) |
The provisions of sections 126-135 shall apply mutatis mutandis to any Tribunal established under subsection (1).
|
|
PART XIII – ENVIRONMENTAL OFFENCES
| 137. |
Offences relating to inspection Any person who—
| (a) |
hinders or obstructs an environmental inspector in the exercise of his duties under this Act or regulations made thereunder;
|
| (b) |
fails to comply with a lawful order or requirement made by an environmental inspector in accordance with this Act or regulations made thereunder;
|
| (c) |
refuses an environmental inspector entry upon any land or into any premises, vessel or motor vehicle which he is empowered to enter under this Act or regulations made thereunder;
|
| (d) |
impersonates an environmental inspector;
|
| (e) |
refuses an environmental inspector access to records or documents kept pursuant to the provisions of this Act or regulations made thereunder;
|
| (f) |
fails to state or wrongly states his name or address to an environmental inspector in the cause of his duties under this Act or regulations made thereunder;
|
| (g) |
misleads or gives wrongful information to an environmental inspector under this Act or regulations made thereunder;
|
| (h) |
fails, neglects or refuses to carry out an improvement order issued under this Act by an environmental inspector, commits an offence and shall, on conviction be liable to imprisonment for a term of not less than one year but not more than four years, or to a fine of not less than two million shillings but not more than four million shillings, or to both such fine and imprisonment.
|
|
| 138. |
Offences relating to Environmental Impact Assessment
| (a) |
fails to submit a project report contrary to the requirements of section 58 of this Act;
|
| (b) |
fails to prepare an environmental impact assessment report in accordance with the requirements of this Act or regulations made thereunder;
|
| (c) |
fraudulently makes false statements in an environmental impact assessment report submitted under this Act or regulations made thereunder, commits an offence and is liable on conviction to imprisonment for a term not exceeding twenty four months or to a fine of not more than two million shillings or to both such imprisonment and fine.
|
|
| 139. |
Offences relating to records Any person who—
| (a) |
fails to keep records required to be kept under this Act;
|
| (b) |
fraudulently alters any records required to be kept under this Act;
|
| (c) |
fraudulently makes false statements in any records required to be kept under this Act, commits an offence and is liable upon conviction to a fine of not less than one year but not more than four years, or to a fine of not less than two million shillings but not more than four million shillings, or to both such fine and imprisonment.
|
|
| 140. |
Offences relating to standards Any person who—
| (a) |
contravenes any environmental standard prescribed under this Act;
|
| (b) |
contravenes any measure prescribed under this Act;
|
| (c) |
uses the environment or natural resources in a wasteful and destructive manner contrary to measures prescribed under this Act, commits an offence and shall be liable upon conviction, to a fine of not less than one year but not more than four years or to a fine of not less than two million shillings but not more than four million shillings, or to both such fine and imprisonment.
|
|
| 141. |
Offences relating to hazardous wastes, materials, chemicals and radioactive substances Any person who—
| (a) |
fails to manage any hazardous waste and materials in accordance with this Act;
|
| (b) |
imports any hazardous waste contrary to this Act;
|
| (c) |
knowingly mislabels any waste, pesticide, chemical, toxic substance or radioactive matter;
|
| (d) |
fails to manage any chemical or radioactive substance in accordance with this Act;
|
| (e) |
aids or abets illegal trafficking in hazardous waste, chemicals, toxic substances and pesticides or hazardous substances;
|
| (f) |
disposes of any chemical contrary to this Act or hazardous waster within Kenya;
|
| (g) |
withholds information or provides false information about the management of hazardous wastes, chemicals or radioactive substances, commits an offence and shall, on conviction, be liable to a fine of not less than one million shillings, or to imprisonment for a term of not less than two years, or to both.
|
|
| 142. |
Offences relating to pollution
| (1) |
| (a) |
discharges any dangerous materials, substances, oil, oil mixtures into land, water, air, or aquatic environment contrary to the provisions of this Act;
|
| (b) |
pollutes the environment contrary to the provisions of this Act;
|
| (c) |
discharges any pollutant into the environment contrary to the provisions of this Act, commits an offence and shall on conviction, be liable to a fine not less than two million shillings but not more than five million shillings.
|
|
| (2) |
In addition to any sentence that the Court may impose upon a polluter under subsection (1) of this Section, the Court may direct that person to—
| (a) |
pay the full cost of cleaning up the polluted environment and of removing the pollution;
|
| (b) |
clean up the polluted environment and remove the effects of pollution to the satisfaction of the Authority.
|
|
| (3) |
Without prejudice to the provisions of subsections (1) and (2) of this section, the court may direct the polluter to meet the cost of the pollution to any third parties through adequate compensation, restoration or restitution.
|
|
| 143. |
Offences relating to Environmental restoration orders, orders of the Tribunal, easements, and conservation orders
| (1) |
| (a) |
fails, neglects or refuses to comply with an environmental restoration order made under this Act;
|
| (b) |
fails, neglects or refuses to comply with an environmental easement, issued under this Act;
|
| (c) |
fails, neglects or refuses to comply with an environmental conservation order made under this Act,
|
| (d) |
fails, neglects or refuses to comply with any order made by the Tribunal, commits an offence and shall on conviction, be liable to imprisonment for a term of not less than one year and not more than four years or to a fine of not less than two million shillings and not more than four million shillings or to both such fine and imprisonment.
|
|
| (2) |
Failure by a lead agency to comply with a directive of the Authority issued under section 12 of this Act shall constitute an offence.
|
|
| 144. |
General penalty
Any person who contravenes against any provision of this Act or of regulations made thereunder for which no other penalty is specifically provided is liable, upon conviction, to imprisonment for a term of not less than one year but not more than four years, or to a fine of not less than two million shillings but not more than four million shillings, or to both such fine and imprisonment, or to both such fine and imprisonment.
|
| 145. |
Offences by bodies corporate, Partnerships, Principals and Employers
| (1) |
When an offence against this Act, is committed by a body corporate, the body corporate and every director or officer of the body corporate who had knowledge of the commission of the offence and who did not exercise due diligence, efficiency and economy to ensure compliance with this Act, shall be guilty of an offence.
|
| (2) |
Where an offence is committed under this Act by a partnership, every partner or officer of the partnership who had knowledge of the commission of the offence and who did not exercise due diligence, efficiency and economy to ensure compliance with this Act, commits an offence.
|
| (3) |
A person shall be personally liable for an offence against this Act, whether committed by him on his own account or as an agent or servant of another person.
|
| (4) |
An employer or principal shall be liable for an offence committed by an employee or agent against this Act, unless the employer or principal proves that the offence was committed against his express or standing directions.
|
|
| 146. |
Forfeiture, cancellation and other orders
| (1) |
The Court before which a person is charged for an offence under this Act or any regulations made thereunder may, in addition to any other order—
| (a) |
upon the conviction of the accused; or
|
| (b) |
if it is satisfied that an offence was committed notwithstanding that no person has been convicted of the offence, order that the substance, motor vehicle, equipment and appliance or other thing by means whereof the offence concerned was committed or which was used in the commission of the offence be forfeited to the State and be disposed of as the court may direct.
|
|
| (2) |
In making the order to forfeit under subsection (1) the Court may also order that the cost of disposing of the substance, motor vehicle, equipment, appliance or any other thing provided for in that subsection be borne by the person convicted thereunder.
|
| (3) |
The Court may further order that any licence, permit or any authorisation given under this Act, and to which the offence relates, be cancelled.
|
| (4) |
The Court may further issue an order requiring that a convicted person restores at his own cost, the environment to as near as it may be to its original state prior to the offence.
|
| (5) |
The court may in addition issue an environmental restoration order against the person convicted in accordance with the provisions of this Act.
|
|
PART XIV – REGULATIONS
| 147. |
Power to make regulations
| (1) |
The Cabinet Secretary may, on the recommendation of the Authority and upon consultation with the relevant lead agencies, make regulations prescribing for matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for giving full effect to the provisions of this Act.
|
| (2) |
Regulations made under subsection (2) may—
| (a) |
make provisions for the issue, amendment and revocation of any licence;
|
| (b) |
provide for the charging of fees and levying of charges;
|
| (c) |
adopt wholly or in part or with modifications any rules, standards, guidelines, regulations, by laws, codes, instructions, specifications, or administrative procedures prescribed by any lead agency either in force at the time of prescription or publication or as amended from time to time.
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[Act. No. 5 of 2015, s. 2.]
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| 147A. |
County legislation
A County may make legislation in respect of all such matters as are necessary or desirable that are required or permitted under the Constitution and this Act.
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| 148. |
Effect of existing laws
Any written law by the national and county governments relating to the management of the environment in force immediately before the commencement of this Act shall have effect, subject to such modifications as may be necessary to give effect to this Act, and where the provisions of such law are in conflict with any provisions of this Act, the provisions of this Act shall prevail.
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FIRST SCHEDULE [s. 29(1)(c)]
MINISTRIES NOMINATING MEMBERS TO COUNTY ENVIRONMENTAL COMMITTEES
Agriculture.
Economic Planning and Development.
Education.
Energy.
Environment.
Finance.
Fisheries.
Foreign Affairs.
Health.
Industry.
Law or Law Enforcement.
Local Government.
Natural Resources.
Public Administration.
Public Works.
Research and Technology.
Tourism.
Water Resources.
SECOND SCHEDULE [s. 58]
PROJECTS REQUIRING SUBMISSION OF AN ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
| 1. |
| (a) |
establishment of places of worship including churches, mosques and temples;
|
| (b) |
community based and social projects including sport facilities, stadia, social halls;
|
| (c) |
community water projects including boreholes, water pans, sand dams and sub-surface dams;
|
| (d) |
dispensaries, health centers and clinics;
|
| (e) |
livestock holding grounds and cattle dips;
|
| (f) |
expansion or rehabilitation of markets;
|
| (h) |
local roads and facility access roads;
|
| (i) |
business premises including shops, stores, urban market sheds;
|
| (j) |
cottage industry, jua kali sector and garages;
|
| (k) |
small scale rehabilitation, maintenance and modernization of projects;
|
| (l) |
schools and related infrastructure for learners not exceeding one hundred; and
|
| (m) |
standard warehouses not exceeding one thousand four hundred square meters.
|
|
| (1) |
Urban Development including—
| (a) |
establishment of multi-dwelling housing developments of not exceeding one hundred units;
|
| (b) |
tourism and related infrastructure;
|
| (c) |
hotels with bed capacity not exceeding one hundred and fifty; and
|
| (d) |
shopping centers, commercial centers and complexes, business premises, shops and stores not exceeding ten thousand square meters.
|
|
| (2) |
Transportation including—
| (a) |
construction and rehabilitation of roads including collectors and access roads;
|
| (b) |
construction of a light rail transit;
|
| (c) |
construction of jetties, marinas, piers and pontoons;
|
| (d) |
rehabilitation works of airports and airstrips;
|
|
| (3) |
Water resources and infrastructure, including—
| (a) |
drilling for purposes of utilizing ground water resources and related infrastructure;
|
| (b) |
water abstraction works; and
|
| (c) |
water supply and distribution infrastructures.
|
|
| (4) |
Artisanal mining including quarrying of—
| (a) |
precious metals and gemstones;
|
| (c) |
harvesting of aggregate, sand, gravel, soil, clay, stone and slate;
|
| (g) |
ferrous and non-ferrous ores.
|
|
| (5) |
Forestry related activities, including—
| (a) |
timber harvesting in plantation forests;
|
| (b) |
reforestation and afforestation; and
|
| (c) |
wood preservation or treatment facilities.
|
|
| (6) |
Agriculture and related activities, including—
| (a) |
medium-scale agriculture not exceeding one hundred hectares;
|
| (b) |
medium size grain storage;
|
| (c) |
medium size agricultural and livestock produce storage facilities;
|
| (d) |
aquaculture not exceeding one hectare; and
|
| (e) |
medium scale irrigation projects.
|
|
| (7) |
Medium scale processing and manufacturing industries, including—
| (a) |
brick and earth-ware manufacture;
|
| (b) |
abattoirs and meat-processing plants;
|
| (d) |
plants for the construction or repair of aircrafts or railway equipment;
|
| (e) |
plants for the manufacture of tanks, reservoirs and sheet-metal containers;
|
| (f) |
plants for manufacturing or recycling of plastics or paper;
|
| (g) |
plants for manufacturing pharmaceuticals;
|
| (h) |
plants for the manufacture of coal briquettes;
|
| (j) |
any other food-processing plants or agro-based processing plants; and
|
| (k) |
go-downs for storage and warehouses.
|
|
| (8) |
Power and infrastructure projects, including—
| (a) |
hydropower development not exceeding ten megawatts;
|
| (e) |
low voltage power transmission lines; and
|
| (f) |
solar power farms or plants.
|
|
| (9) |
Hydrocarbons projects, including—
| (c) |
lubricant blending facilities.
|
|
| (10) |
Waste disposal, including—
| (a) |
waste transfer stations or storage facilities;
|
| (b) |
composting sites or plants;
|
| (c) |
removal and onsite disposal of asbestos.
|
|
| (11) |
Packaged treatment plants or onsite waste water treatment plants.
|
| (12) |
Biofuels processing plants.
|
| (13) |
Telecommunication infrastructures.
|
| (14) |
Expansion of tertiary institutions and related infrastructures.
|
| (1) |
| (a) |
an activity out of character with its surrounding; and
|
| (b) |
any structure of a scale not in keeping with its surrounding.
|
|
| (2) |
Changes in land use including—
| (a) |
major changes in land use; and
|
| (b) |
large scale resettlement schemes.
|
|
| (3) |
Urban Development including—
| (a) |
designation of new townships;
|
| (b) |
establishment or expansion of industrial estates;
|
| (c) |
establishment or expansion of recreational areas in National Parks, National reserves, forests, nature reserves and any areas designated as environmentally sensitive;
|
| (d) |
establishment of shopping centers, commercial centers and complexes;
|
| (e) |
establishment of hospitals;
|
| (f) |
hotels with a bed capacity exceeding one hundred and fifty;
|
| (g) |
establishment of new housing estate developments exceeding one hundred housing units;
|
| (h) |
establishment of schools and other learning institutions exceeding one hundred learners; and
|
| (i) |
other related urban developments.
|
|
| (4) |
Transportation and related infrastructure projects, including—
| (a) |
all new major roads including trunk roads;
|
| (f) |
construction of tunnels and channels;
|
| (g) |
metro transport facilities; and
|
| (h) |
underground transport works.
|
|
| (5) |
Water resources and related infrastructure including—
| (a) |
storage dams and barrages;
|
| (b) |
river diversions and water transfer between catchments;
|
|
| (6) |
Mining and other related activities including—
| (d) |
ferrous and non-ferrous ores;
|
| (h) |
quarrying of stone and slate;
|
| (i) |
harvesting of aggregate, sand, gravel, soil and clay; and exploration for the production of petroleum and minerals in any form.
|
|
| (7) |
Forestry related activities including—
| (a) |
clearance of forest areas;
|
| (b) |
reforestation and afforestation with alien species;
|
| (c) |
introduction of alien species;
|
| (d) |
excisions of gazette forests;
|
| (e) |
conversion of forests for whatever purposes; and
|
| (f) |
any projects located within forest reserves such as construction of dams or other control structures that flood large areas.
|
|
| (8) |
| (b) |
large-scale agriculture exceeding one hundred hectares;
|
| (c) |
introduction of new crops and animals;
|
| (d) |
large scale irrigation exceeding one hundred hectares;
|
| (e) |
major developments in biotechnology including the introduction and testing of genetically modified organisms; and
|
|
| (9) |
Processing and manufacturing industries, including—
| (a) |
mineral or ores refining and processing;
|
| (b) |
large scale brick and earth-ware manufacture;
|
| (c) |
cement manufacturing plants and lime processing;
|
| (e) |
fertilizer manufacture or processing;
|
| (h) |
abattoirs handling more than one hundred animals per day and meat-processing plants;
|
| (j) |
bulk grain processing and storage plants;
|
| (k) |
large scale fish-processing plants;
|
| (m) |
heavy manufacturing plants;
|
| (n) |
lead smelting and processing plants;
|
| (r) |
any other chemical works and processing plants.
|
|
| (10) |
Power and infrastructure projects, including—
| (a) |
thermal and hydropower development exceeding ten megawatts;
|
| (d) |
nuclear reactors and nuclear plants; and
|
| (e) |
high voltage electrical transmission lines.
|
|
| (11) |
Hydrocarbon projects, including—
| (a) |
depots and refinery facilities for hydrocarbons;
|
| (c) |
oil and gas fields development; and
|
| (d) |
oil refineries and petro-chemical works.
|
|
| (12) |
Waste disposal works, including—
| (a) |
sewerage works and waste water treatment plants;
|
| (b) |
installation for disposal of industrial wastes;
|
| (c) |
installation of incinerators;
|
| (e) |
hazardous waste treatment or disposal facilities;
|
| (f) |
facilities for disposal of solid or liquid hazardous waste;
|
| (g) |
sludge treatment facility;
|
| (h) |
e-waste recycling facilities;
|
| (i) |
waste oil recycling facilities;
|
| (j) |
waste tyre processing and recycling facilities; and
|
| (k) |
commercial asbestos disposal sites.
|
|
| (13) |
Activities in natural conservation areas, including—
| (a) |
establishment of protected areas, buffer zones and wilderness areas;
|
| (b) |
actions likely to affect endangered species of flora and fauna;
|
| (c) |
formulation or modification of water catchment management projects;
|
| (d) |
projects for the management of ecosystems especially by manipulating fire and water;
|
| (e) |
commercial exploitation of natural fauna and flora;
|
| (f) |
introduction of alien species of fauna and flora into ecosystems;
|
| (g) |
wetlands reclamation or any projects likely to affect wetlands;
|
| (h) |
projects located in indigenous forest including those outside of gazetted forests; and
|
| (i) |
any project in an environmentally sensitive area.
|
|
| (14) |
Marine resource exploitation and reclamation, including—
| (a) |
mineral exploitation of resources in the marine areas;
|
| (b) |
reclamation of marine areas; and
|
|
| (15) |
Any other project which poses high environmental risks.
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THIRD SCHEDULE [ss. 37(1)(d), 70(2)]
REPRESENTATIVES OF THE GOVERNMENT MINISTRIES AND INSTITUTIONS
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