EIA Law Matrix

EIA Law: Environmental Management Act, 2004

EIA Regulations: Environmental Management (Environmental Impact Assessment and Audit) Regulations, 2005, as amended 2018

Projects Requiring EIA: Government projects, Private projects

Abridged Assessments: Yes

Abridged Assessments Detail: For projects characterized as B1 (borderline), the project developer must submit a scoping report that functions as an abridged EIA. The Council will screen the project according to criteria in the Second Schedule and if the Council is satisfied that the project will not have significant negative impacts on the environment, it may recommend approval of the project. EIA Regulations, secs. 8, 9. If significant negative impacts may occur, a full EIA is required. For projects categorized B2 (non-mandatory), the project proponent must submit a project brief outlining, in relevant part, potential impacts, emergency preparedness, mitigation and monitoring plans, and the project budget. The project brief is reviewed by the Council, which may approve or disapprove the project. EIA Regulations, secs. 6, 7.

Best Practices in Lieu of EIA: No

Who Conducts Screening: Government

Who Conducts Screening Detail: Envtl. Mgmt. Act, sec. 81(1); EIA Regulations, sec. 9.

Criteria for Screening: List or appendix of project or activity types, Proposed project or activity may cause significant environmental impact, Possible impact to, or adjacent to, a protected area, Other

Criteria for Screening Detail: EIA Regulations, First Schedule: Categories of Projects; EIA Regulations, Second Schedule: Project Screening Criteria

Who Prepares EIA: Project Proponent (with or without contractor)

Who Prepares EIA Detail: Envtl. Mgmt. Act, sec. 81(1)

Who Pays for EIA: N/A

EIA Contractor Qualifications: Yes

EIA Contractor Qualifications Detail: EIAs "shall be conducted by experts or firms of experts whose names and qualifications are registered as such by the Council." Envtl. Mgmt. Act, sec. 83. In addition, the Minister shall prescribe the qualifications of a person who may conduct an EIA. Envtl. Mgmt. Act, sec. 83(2). See also EIA Regulations, sec. 14 ("Environmental Impact Assessments shall be conducted by experts or firms of experts whose names have been duly certified and registered in accordance with the provisions of the Environmental (Registration of Environmental Experts) Regulations, 2005.")

Conflict of Interest: Yes

Terms of Reference: Yes

Terms of Reference Detail: The project proponent submits a terms of reference with the scoping report. EIA Regulations, sec 10(3). See also EIA Regulations Sec. 11 (“The Council may prepare guidelines for Sector Specific Terms of References to guide the developer or the proponent in preparation of Terms of Reference for conducting EIA study.”)

Days for Decision Maker Review: 90

Automatic Approval: No

Written Decision: Yes

Written Decision Detail: Envtl. Mgmt. Act, sec. 92(2); EIA Regulations, sec. 31(2)

Authority to Impose Conditions: Yes

Authority to Impose Conditions Detail: The Minister may approve an EIS subject to such conditions as he may determine. Envtl. Mgmt Act, sec. 92(1)(c); see also EIA Regulations, sec. 33(2)(b) (more specificity on authority to impose conditions)

Expiry of Decision: 3 years

Expiry of Decision Detail: If no development has started within 3 yeas of issuance of the certificate, the project proponent must re-register intent to develop. EIA Regulations, sec. 41

Financial Assurances or Bond: No

Interdisciplinary Team: No

Range of Alternatives: Yes

Range of Alternatives Detail: The EIA must "identify and analyse alternatives to the proposed project." EIA Regulations, secs. 16(b); 18

No Action Alternative: No

No Action Alternative Detail: Consideration of a no action or "zero" alternative is not mentioned in the law or regulations.

Type(s) of Impact Analysis: Direct environmental impacts, Cumulative environmental impacts, Social impacts, Cultural impacts, Economic impacts

Mitigation: Yes

Mitigation Detail: The EIA must "propose mitigation measures to be taken during and after the implementation of the project." EIA Regulations, secs. 16(c), 18. In addition, the Environmental Impact Statement review process shall be based, in part, on "the possible mitigation alternatives or other remedial measures." Envtl. Mgmt. Act, sec. 88(2)(c).

Monitoring Plans: Yes

Monitoring Plans Detail: The EIA must "develop an environmental management plan with mechanisms for monitoring and evaluating the compliance and environmental performance . . . ." EIA Regulations, secs. 16(d), 18

Public Notice of Draft EIA: No

Draft EIA Available: No

Draft EIA Available Detail: The public does not have the opportunity to review or comment on a draft EIA.

Draft EIA Locations: Not available

Public Notice of Final EIA: Yes

Public Notice of Final EIA Detail: Upon receipt of the EIA, the Council shall notify the public "by any appropriate means of the place and time for reviewing the Environmental Impact Statement and submitting written comments in a prescribed manner." Envtl. Mgmt. Act, sec. 89(2)(b). See also EIA Regulations, sec. 23(2) (Council shall notify and invite the general public for comment within 14 days of receiving the EIS from the project developer).

Final EIA Available: Yes

Final EIA Available Detail: Environmental impact statements "shall be kept and maintained by the Council in a public registry and their contents may be searched upon payment of a prescribed fee." Envtl. Mgmt. Act, sec. 85(2). The Council shall grant any person who desires to consult an environmental impact statement or EIA access on such terms and conditions the Council considers necessary. EIA Regulations, sec. 39(2).

Final EIA Locations: Agency or ministry office

Fee to View EIA Documents: Yes

Availability of Reference Studies: Yes

Availability of Reference Studies Detail: If a public hearing is to be convened, the Council "shall display and make available for inspection and copying all relevant reports, documents and written submissions made during and after the period of review until the public hearing is finalized." Envtl. Mgmt. Act, sec. 90(3). This may be narrowed somewhat by the EIA Regulations, which state that only the project brief, EIS, terms of reference, public comments, public hearing report, and decision letter are considered "public" documents. EIA Regulations, sec. 39(1). There are also provisions regarding confidential information. See EIA Regulations, sec. 40

Public Notice of Final Decision: Yes

Public Notice of Final Decision Detail: Yes

Public Scopingtigation: Yes

Public Scoping Detail: A Scoping Report must be submitted to the Council. The report must identify stakeholder groups and describe how they were involved in the scoping exercise. EIA Regulations, sec. 10.

Public Review of TOR: Yes

Public Review of TOR Detail: The Council and the project proponent shall determine the scope of the environmental impact statement, including issues that must be addressed, persons that must be consulted, and methdologies for collecting and analyzing the required data. Envtl. Mgmt. Act, sec. 85. Although the public may be involved in scoping exercises, it does not appear that there is an opportunity to review or comment on the TOR before it is final.

Public Participation Opportunities: Scoping, Public Meetings and/or public hearings, Review of final EIA

Public Meetings: Sometimes

Public Meetings Detail: The review of the Environmental Impact Statement shall be conducted through public hearings. Envtl. Mgmt. Act, sec. 90(1). However, the Council has discretion to decide whether or not to convene a public hearing to collect submissions or comments. If a hearing is convened, the Council "shall display and make available for inspection and copying all relevant reports, documents and written submissions made during and after the period of review until the public hearing is finalized." Envtl. Mgmt. Act, sec. 90(3). See also EIA Regulations, secs. 26, 27 (The Council shall, upon receipt and consideration of oral and written comments, determine whether to hold or not to hold a public hearing).

Public Input at Meeting: Yes

Public Input at Meeting Detail: "Any person may attend in person or through a representative and make presentations…provided that the presiding officer shall have the right to disallow frivolous and vexatious presentations." EIA Regulations, sec. 29.

Criteria to Hold Public Meeting: Ministry or agency has discretion to decide whether to hold a meeting and/or hearing

Public Comments on Draft EIA: No

Public Comments on Final EIA: 14

Response to Public Comments: Yes

Response to Public Comments Detail: The Environmental Impact Statement review process shall be based in part on comments received during public hearings and other consultative processes. Envtl. Mgmt. Act, sec. 88(2)(d). Specifically, the Council shall consider all comments received on the EIS to determine whether a public hearing should be held. EIA Regulations, sec. 26(1). The Minister shall take the public hearing report into account when issuing a decision regarding an EIS. EIA Regulations, sec. 32(c).

Facilitation of Public Participation: Yes

Facilitation of Public Participation Detail: The accommodations are not extensive. The project proponent must provide a non-technical executive summary of the EIA in English and Kiswahili. EIA Regulations, sec. 19(2)

Citizen Administrative Review: Yes

Citizen Judicial Review: Yes

Citizen Judicial Review Detail: Decisions of the Environmental Appeals Tribunal may be appealed to the High Court within 30 days. EIA Regulations, sec. 61(2)

Project Monitoring: Yes

Project Monitoring Detail: The Council, shall in conjunction with the relevant sector Ministry, "monitor the operation of any project or undertaking with a view to determining its immediate and long term effects on the environment." Envtl. Mgmt. Act, sec. 99(1)(b). After giving notice, inspectors may enter land or facilities to conduct monitoring. Id. The Council is also required to conduct audits of for any project that is likely to have significant impact on the environment. Envtl. Mgmt. Act., sec. 101. There is further discussion of the audit and monitoring processes in the EIA Regulations, Parts X and XI.

Enforceability of EIA: No

Enforceability of Permit: No