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1 GOVERNMENT NOTICE DEPARTMENT OF ENVIRONMENTAL AFFAIRS No. R. 2012 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 ALIEN AND INVASIVE SPECIES REGULATIONS I, Bomo Edith Edna Molewa, Minister responsible for Water and Environmental Affairs, hereby make the regulations pertaining to Alien and Invasive Species under section 97(1) of the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004), in the Schedule hereto. BOMO EDITH EDNA MOLEWA MINISTER FOR WATER AND ENVIRONMENTAL AFFAIRS 2 SCHEDULE TABLE OF CONTENTS CHAPTER 1 INTERPRETATION 1. Definitions CHAPTER 2 DESIGNATION OF AUTHORITIES 2. Designation of issuing authorities 3. Designation of competent authorities CHAPTER 3 NATIONAL FRAMEWORK DOCUMENTS 4. Species management programmes 5. Species monitoring, control and eradication plans 6. National register of alien and listed invasive species 7. Invasive species research 8. National status reports CHAPTER 4 REGISTERS AND NOTIFICATION 9. Register of permits 10. Register of notifications and directives 11. Mandatory notification CHAPTER 5 RESTRICTIONS 12. Categories of listed invasive species 3 13. Restricted activities 14. Prohibited alien species 15. Listed Invasive species requiring compulsory control 16. Listed Invasive species controlled as part of an invasive species management programme CHAPTER 6 RISK ASSESSMENT 17. Risk assessment framework 18. Risk assessment facilitator 19. Risk assessment procedure 20. Risk assessment report 21. Alien species with invasive potential CHAPTER 7 ISSUING, AMENDMENT AND CANCELLATION OF PERMITS 22. Nature of permit 23. Form and content of application for permit 24. Consideration of application 25. Decision 26. Permit conditions 27. Special provisions for research and biological control permits 28. Form and content of permits 29. Period of validity of permits 30. Amendment of permits 31. Return of cancelled permits 32. Renewal of permits CHAPTER 8 ADDITIONAL CONTROL MEASURES 33. Emergency suspension of permits 34. Emergency interventions 4 CHAPTER 9 COMPLIANCE AND ENFORCEMENT 35. Prohibited alien and listed invasive species directives 36. Inspections and additional powers of compliance 37. Request for directives 38. Withdrawal of directives 39. Offences and penalties 40. Short title and commencement date LIST OF ANNEXURES Annexure A - Prohibited Alien Species Notification Form Annexure B - Listed Invasive Species Notification Form Annexure C - Permit application form Annexure D - Fees Annexure E - Permit Annexure F - Directives issued in terms of section 69(2) or 73(3) of the Act Annexure G - Request to issue a directive in terms of regulation 37 5 CHAPTER 1 INTERPRETATION Definitions 1. In these Regulations any word or expression to which a meaning has been assigned in the Act shall have the meaning so assigned and, unless the contents otherwise indicates- applicant means a person applying for a permit, the amendment of a permit or the renewal of a permit, as the case may be; biological control means the use of specimens of one species for the purpose of preying on, parasitizing on, damaging, killing or controlling a specimen of another species;"category 1a listed invasive species' means invasive species listed in terms of section 70(1)(a) as invasive species that require compulsory control;"category 1b listed invasive species' means invasive species listed in terms of section 70(1)(a) as invasive species that require control by means of an invasive species management programme; escape means the unintentional loss of physical control over a specimen of a species; exempted alien species means an alien species listed in the notice contemplated in section 66(1) of the Act; invasion means the establishment and subsequent spread of a species outside its distribution range in a manner or to the extent that it constitutes a threat to biodiversity; listed invasive species means an invasive species listed in the notice contemplated in section 70(1)(a) of the Act; MEC means the Member of the Executive Council of a province who is responsible for the conservation of biodiversity in that province; newly introduced alien species means an alien species that was first introduced into the Republic after the date on which these Regulations came into effect; 6 pathway means the route by which a specimen of an alien or listed invasive species is transported, introduced into, dispersed or spread within the Republic, whether by natural, unnatural, deliberate or inadvertent means or acts of omissions; peat means renewable, natural, organic material of botanical origin and includes an accumulation of partially decayed vegetation material that formed in waterlogged, sterile, acidic and anaerobic and low oxygen conditions; prohibited alien species means an alien species listed in the notice contemplated in section 67(1) of the Act; provincial authority means the provincial organ of state responsible for conservation of biodiversity in that province; release means the intentional or negligent loss of physical control over a specimen of a species; risk assessment means a scientific evaluation of the threat or potential threat to ecosystems, habitats, other species, the economy, the environment or human health or well-being posed by a restricted activity involving a specimen of an alien or listed invasive species in terms of Chapter 6 of these Regulations; scientific institution means an organ of state that is- (a) involved in research; (b) a registered research unit of a tertiary institution; or (c) a museum or herbarium; species management programme means a programme contemplated in regulation 4 for the control or eradication of a specimen of a listed invasive species; species monitoring, control and eradication plan means a plan contemplated in regulation 5 for the monitoring or control of a specimen of a listed invasive species; the Act means the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004); vector means any object by, with or on which a specimen of an alien or listed invasive species is inadvertently or deliberately transported, dispersed or spread. 7 CHAPTER 2 DESIGNATION OF AUTHORITIES Designation of issuing authorities 2.(1) The Minister is the issuing authority for a permit authorizing the carrying out of a restricted activity involving a specimen of an alien or a listed invasive species. (2) The Minister must consult the MEC of the province where the restricted activity will be carried out, prior to the issuance of a permit. Designation of competent authorities 3. The Minister is the competent authority for the control of a specimen of an alien or listed invasive species anywhere in the Republic. CHAPTER 3 NATIONAL FRAMEWORK DOCUMENTS Species management programmes 4.(1) The competent authority must develop and coordinate the species management programmes for Category 1b listed invasive species in order to assist landowners to control or eradicate these listed invasive species. (2) A species management programme contemplated in subregulation (1) must stipulate- (a) the listed invasive species to which it relates; (b) the measures to eradicate or control the listed invasive species specified in paragraph (a); (c) the areas in which the measures referred to in paragraph (b) are to be applied; and (d) the schemes to fund the measures, if applicable. Species monitoring, control and eradication plans 5.(1) The competent authority must- (a) within one year of the date on which these regulations come into effect, develop guidelines for the development of monitoring, control and eradication plans for listed invasive species; (b) publish the guidelines contemplated in paragraph (a) on its website; and (c) review, at least every five years and, if necessary, amend the guidelines contemplated in paragraph (a). (2) Management authorities of protected areas and organs of state in all spheres of government must submit their monitoring, control and eradication plans contemplated in section 76 of the Act and based on priorities identified through the guidelines to the competent authority within one year of the publication of the guidelines contemplated in subregulation (1). Comment [M1]: Considering the opinion of the CSLA (July 2012), will the Minister be issuing all the permits? 8 (3) The competent authority must provide the Institute with copies of monitoring, control and eradication plans submitted by organs of state and management authorities of protected areas. National register of alien and listed invasive species 6. (1) The Institute must establish and maintain a national register of- (a) the following species: (i) All newly introduced alien species; and (ii) all alien and listed invasive species in relation to which a permit has been issued and the conditions subject to which the permit has been issued; (b) all species monitoring, control and eradication plans submitted to the competent authority in terms of regulation 5(2); (c) all species management programmes developed in terms of regulation 4(1); and (d) all research being carried out relating to any aspect of the invasiveness of an alien or listed invasive species or the prevention, eradication or control of such invasiveness. (2) The Institute must make the national register available for publication on the Department’s website. Invasive species research 7.(1) A proposal on any research relating to any aspect of the invasiveness or potential invasiveness of an alien species or a listed invasive species or the prevention, eradication or control of such invasive or potentially invasive species must be lodged with the Institute or a body designated by the Institute, by- (a) any organ of state or organisation conducting or funding such research; (b) any person in the Republic conducting such research where the research is wholly or partially funded by an organ of state; or (c) any person to whom a permit is issued in terms of section 65(1) or 71(1) of the Act to carry out restricted activities for the purpose of research involving an alien or listed invasive species. (2) A proposal in terms of subregulation (1) must- (a) be lodged prior to commencing the research; (b) be lodged in writing; (c) contain the following information: (i) The name of the researcher, his or her institution and contact details; (ii) the species, pathway or vector being researched; (iii) the hypothesis being tested; (iv) the source of funding for the research; and (v) the anticipated period of the research. 9 (3) Any information provided in terms of subregulation (2)(c)(ii), (iii) or (iv) is confidential. (4) A copy of any findings of research referred to in subregulation (1) must, upon completion, be lodged with the Institute. National status reports 8.(1) The Institute must, for the purpose of reporting as contemplated in section 11(1)(a)(iii) of the Act, submit a report on the status of listed invasive species to the Minister within three years of the date on which these Regulations came into effect, and at least every two years thereafter. (2) A status report contemplated in subregulation (1) must- (a) contain a summary and assessment of- (i) the status of listed invasive species and other species that have been subject to risk assessment; and (ii) the effectiveness of regulations and control measures based on information from- (aa) notifications received from owners of land regarding listed invasive species occurring on that land; (bb) permits issued for listed invasive species; (cc) species monitoring, control and eradication plans received from organs of state and management authorities of protected areas; and (dd) emergency interventions and directives involving listed invasive species issued by the competent authority. (b) identify- (i) listed invasive species that need to be prioritized for prevention, or compulsory eradication or control; (ii) listed invasive species that require species management programmes; (iii) geographic areas that need to be prioritized for the management interventions contemplated in paragraph (b)(i) and (ii); (c) recommend- (i) species management programmes that need to be implemented to facilitate the control and eradication of listed invasive species contemplated in paragraph (b)(ii); (ii) measures for the compulsory eradication or control of listed invasive species; (iii) identify measures to rehabilitate invaded areas; and (iv) amendments to these Regulations or the lists of invasive species published in terms of section 70(1)(a) of the Act. (3) In preparing a report contemplated in subregulation (1), the Institute must carry out the research and monitoring necessary to identify the matters contemplated in subregulation (2)(b). 10 CHAPTER 4 REGISTERS AND NOTIFICATION Register of permits 9.(1) The issuing authority must- (a) establish and maintain a register of- (i) all permits, including integrated permits, issued by that issuing authority; (ii) all permits that were refused; (iii) all permits issued by that issuing authority that were subsequently cancelled; and (iv) all risk assessments that have been carried out in terms of sections 65(2) and 71(2) of the Act; (b) record in the register contemplated in paragraph(a)- (i) in the case of applications that were granted, the distinct number assigned to each permit; (ii) the scientific and common name of the species for which the permit was issued, refused or cancelled; (iii) whether the species lawfully occurred in the Republic prior to the date on which these Regulations came into effect and whether the species was first introduced less than five years prior to these Regulations coming into effect; (iv) whether the species was subjected to a risk assessment; (v) the restricted activity for which the permit was issued; (vi) any conditions under which the permit was issued; (vii) the date on which the permit was issued; (viii) the period of validity of the permit; and (ix) the location where the restricted activity is to be carried out; and (c) provide the Institute with a copy of the register. Register of notifications and directives 10.(1) A competent authority must- (a) establish and maintain a register of- (i) All notifications received in terms of section 73(2)(a) of the Act; (ii) the directives issued in terms of section 69(2) or 73(3) of the Act; and (iii) all invasive species monitoring, control and eradication plans contemplated in regulation 5(2) and referred to the competent authority by the Department. 11 (b) provide the Department and the Institute with a copy of the register. Mandatory notification 11. (1) A notification contemplated in section 73(2)(a) of the Act must- (a) be in the form set out in Annexure A; and (b) contain- (i) the full names of the owner of the land; (ii) the address and contact details of the owner of the land; (iii) the name and contact details of the person in control of the land; (iv) the cadastral description or the title deed number of the land; (v) a detailed list of the listed invasive species occurring on the land; (vi) the extent of the infestation and densities of the listed invasive species occurring on the land or a detailed description; (vii) a map of the land indicating the location of the listed invasive species on the land; (viii) a description of measures adopted to monitor, control and eradicate such listed invasive species; and (ix) measurable indicators of progress and indications of when control measures are likely to be completed. (2) A competent authority receiving a notification contemplated in subregulation (1) must - (a) confirm receipt of the notification in writing; and (b) capture the information provided in subregulation (1)(b). CHAPTER 5 RESTRICTIONS Categories of listed invasive species 12. Listed invasive species consist of the following categories: (a) Invasive species requiring compulsory control and which are identified as Category 1a listed invasive species; and (b) invasive species controlled by an invasive species management programme and which are identified as Category 1b listed invasive species. Restricted activities 13. In addition to those activities defined in terms of section 1 of the Act as restricted activities, the following activities are hereby prescribed as restricted activities: 12 (a) Spreading or allowing the spread of any specimen of a listed invasive species; (b) releasing any specimen of a listed invasive species; (c) the interbasin transfer of specimens of alien and listed invasive species; (d) discharging of or disposing into any waterway or the ocean water from an aquarium, tank or other receptacle that has been used to keep a prohibited alien species or a listed invasive species; and (e) importing into the Republic, including introduction from the sea, any peat or peat products. Prohibited alien species 14.(1) A person who has under his or her control a specimen of a prohibited alien species must, within three months after the promulgation of these Regulations, notify a competent authority with jurisdiction in that area of this occurrence. (2) Notification in terms of subregulation (1) must be in writing and contain the information required in Annexure A. (3) A person who has under his or her control a specimen of a prohibited alien species must control or eradicate the species as directed by the competent authority. Listed invasive species requiring Compulsory Control 15. A person who has under his or her control a specimen of a category 1a listed invasive species must immediately– (a) notify the competent authority in writing on a form that corresponds substantially with Annexure B; (b) take steps to prevent it from spreading; (c) control and eradicate the listed invasive species in compliance with– (i) section 75 of the Act; (ii) any monitoring, control and eradication plan prepared in terms of regulation 5; and (iii) any directive issued in terms of section 73(3) of the Act. Listed invasive species controlled as part of an invasive species management programme 16. A person who has under his or her control a category 1b listed invasive species must immediately- (a) notify the competent authority in writing on a form that corresponds substantially with Annexure B; (b) take steps to manage the listed invasive species in compliance with- (i) section 75 of the Act; (ii) the relevant invasive species management programme developed in terms of regulation 4; and (iii) any directive issued in terms of section 73(3) of the Act. 13 CHAPTER 6 RISK ASSESSMENT Risk assessment framework 17. (1) A risk assessment must consider- (a) information regarding the relevant species, including- (i) the taxonomy of the species, including its class, order, family, scientific name (if known), genus, scientific synonyms and common names of the species; (ii) the originating environment of the species, including climate, extent of geographic range and trends; (iii) persistence attributes of the species, including reproductive potential, mode of reproduction, dispersal mechanisms and undesirable traits; (iv) invasive tendencies of the species elsewhere and taxonomic predisposition; (v) the history of domestic propagation or cultivation of the species, introductions and the extent of naturalization; (vi) nutritional or dietary requirements of the species and, where applicable, whether it has a specialist or generalist diet; (vii) the ability of the species to create significant change in the ecosystem; and (viii) the potential to hybridize with other species and to produce fertile hybrids; and (b) information regarding the restricted activity in respect of which the permit is sought, including- (i) the nature of the restricted activity; (ii) the reason for the restricted activity; (iii) the location where the restricted activity is to be carried out; (iv) the number and, where applicable, the gender of the specimens of the species involved; and (v) the intended destination of the specimens, if they are to be translocated; and (c) information regarding the receiving environment, including- (i) climate match; (ii) habitat; (iii) the presence of natural enemies, predators and competitors; and (iv) the presence of potentially reproductive compatible species. (2) A risk assessment carried out in terms of subregulation (1) must identify- 14 (a) the probability that the species will naturalize in the area in which the restricted activity is to be carried out or in any other area elsewhere in the Republic; (b) the possible impact of the species on the biodiversity and sustainable use of natural resources of- (i) the area in which the restricted activity is to be carried out; and (ii) in any other area elsewhere in the Republic; (c) the risks and potential impacts on biodiversity by the species to which the application relates; (d) the risks of the specimen serving as a vector through which specimens of other alien species may be introduced; (e) the risks of the method by which a specimen is to be introduced or the restricted activity carried out serving as a pathway through which specimens of other alien species may be introduced; and (f) any measures proposed in order to manage the risks. (3) Based on the information in subregulations (1) and 2), a risk assessment must consider- (a) the likelihood of the risks being realized; (b) the severity of the risks and consequences of the realization of the risks for other species, habitats and ecosystems; (c) the potential costs associated with the control of the species to minimize harm to biodiversity; (d) options for minimizing the potential risks; and (e) management of the potential risks. (4) Notwithstanding the provisions of subregulation (2), an assessment of the risks and potential impacts on biodiversity of the importation into the Republic or the introduction into a province of a specimen of an alien species or listed invasive species introduced into the Republic more than five years prior to the date upon which these Regulations come into effect, need only consider the matters contemplated in subregulations (2)(d), (e) and (f) and (3). (5) Notwithstanding the provisions of subregulation (1), (2) and (3), the issuing authority can determine the information to be considered in the risk assessment. (6) Notwithstanding the provisions of subregulation (1), (2) and (3), the issuing authority can request the applicant to provide additional information. Risk assessment facilitator 18.(1) A risk assessment contemplated in sections 65(2) and 71(1) of the Act must be undertaken by an environmental assessment practitioner. (2) Notwithstanding subregulation (1), the Institute or the issuing authority may undertake the risk assessment. (3) An environmental assessment practitioner contemplated in subregulation (1) must- (a) be independent; 15 (b) have knowledge of the Act, these Regulations and any guidelines that have relevance to the proposed application; (c) have expertise in biodiversity matters; (d) have expertise in conducting risk assessments; and (e) consult at least one relevant expert. (4) The applicant must take all reasonable steps to verify whether the environmental assessment practitioner complies with subregulation (3). Risk assessment procedure 19.(1) A risk assessment must be undertaken in accordance with the provisions of regulation 17. (2) The applicant must provide the person undertaking the assessment of risks with access to all information at the disposal of the applicant regarding the application, whether or not such information is favorable to the applicant. (3) The risk assessment report must be submitted, with the application, to the issuing authority. Risk assessment report 20.(1) A risk assessment report must contain the following details: (a) The personal details and qualifications of the risk assessment practitioner carrying out the risk assessment; (b) the personal details and qualifications of the expert consulted as required in regulation 18(3)(d); (c) the risk of invasion as a result of the issuing of the permit; (d) key economic, social and ecological considerations that will guide a decision on whether to issue a permit; (e) any risk management measures that must be applied; (f) a recommendation on whether or not a permit should be issued; and (g) any conditions or control measures that should apply if a permit is to be issued. (2) A risk assessment report prepared in terms of subregulation (1) must be submitted by the issuing authority to the Institute for scientific review, if required by the issuing authority. (3) The applicant will be responsible for the cost associated with the review. 16 Alien species with invasive potential 21.(1) The Institute or the issuing authority may from time to time identify any alien species that is already in the Republic and that has or may become invasive. (2) The Institute must subject the species identified in terms of subregulation (1) to an initial risk assessment. (3) The initial risk assessment contemplated in subregulation (2) must determine whether that species has- (a) a known tendency to invade in other parts of the world with similar geophysical conditions to parts of the Republic; (b) a scientific record of invasive tendencies in the Republic; or (c) any other property that may make the species invasive. (4) Should the initial risk assessment indicate that the species has invasive potential, the Institute must undertake a comprehensive assessment to determine whether the species should be listed as a prohibited alien or listed invasive species in terms of the Act, and advise the Minister accordingly. CHAPTER 7 ISSUING, AMENDMENT AND CANCELLATION OF PERMITS Nature of a permit 22.(1) A permit to authorize the carrying out of restricted activities, may be issued for- (a) multiple restricted activities; (b) multiple specimens of a species; (c) multiple species; or (d) multiple instances of the same restricted activity. (2) Notwithstanding the provision of subregulation (1)(d), a permit for the import into the Republic, including introduction from the sea, of an alien or listed invasive species is valid for one consignment unless otherwise stipulated. Form and content of application for permit 23.(1) An application for a permit contemplated in section 65(1) or 71(1) of the Act must be made on a form that corresponds substantially with Annexure C. (2) An application referred to in subregulation (1) must- (a) be submitted by the person to whom the permit must be issued or by such person’s duly authorized representative; (b) be accompanied by the applicable application fee specified in Annexure D; (c) be accompanied by the details of the risk assessment facilitator; (d) be accompanied by the risk assessment report contemplated in regulation 20; (e) include any other additional information as may be required by the issuing authority; and 17 (f) be lodged- (i) with the issuing authority together with such additional copies as may be required by the issuing authority; (ii) in a manner as required by the issuing authority; and (iii) with the original or certified documentation in support of the application, if required by the issuing authority. (3) Notwithstanding the provisions of subregulation (2)(b), payment of the applicable application fee as set out in Annexure D to these regulations does not apply to organs of state. Consideration of application 24. The issuing authority must, upon receipt of an application for a permit- (a) request, within 30 working days of receipt of the application and the risk assessment report, such further information as the issuing authority may require; (b) notify any province that may be adversely affected by the proposed activity, of the application; (c) have regard to the contents of the risk assessment report accompanying the application; (d) consider the application and any objections that have been lodged with regard thereto by a provincial authority; (e) conduct such inspections as may be appropriate, and (f) reach a decision in accordance with regulation 25. Decision 25.(1) A decision on an application for a permit must be made within 60 working days of receiving the risk assessment report or, where further information has been requested in terms of regulation 23(2)(e) or 24(a), within 30 working days of receiving such information. (2) The issuing authority must- (a) notify the applicant and any objectors to the application of the decision in writing; and (b) if the application has been approved, issue a permit in the name of the person authorised to carry out the restricted activity. (3) The notification contemplated in subregulation (2)(a) must stipulate- (a) the alien species or listed invasive species to which the application relates; (b) whether the decision relates to a single specimen or to multiple specimens of the same alien species or listed invasive species; (c) the restricted activities involving the alien species or listed invasive species that may take place; (d) the period for which the permit will be valid; and 18 (e) the conditions to which the permit is subject. Permit conditions 26.(1) A permit must be issued subject to the following conditions: (a) The permit may not be transferred to any other person; (b) the permit automatically lapses if the species to which it relates is subsequently listed as a prohibited alien species in terms of section 67(1) of the Act; and (c) the holder of the permit must prevent the escape and spread of the species, including the growth or spread of seeds or any other specimens of the species, outside the area for which the permit is issued, and must take all necessary steps to control any specimen that escapes or spreads. (2) The issuing authority may issue a permit to carry out a restricted activity involving a specimen of an alien or listed invasive species subject to conditions, including but not limited to, control methods determined by the issuing authority, including the use of sterile varieties or the concurrent introduction of biological control agents. Special provisions for research and biological control permits 27.(1) A permit issued to a scientific institution to carry out a restricted activity involving a specimen of an alien or listed invasive, must be issued under the following conditions- (a) The specimen must- (i) be kept for identification or research purposes only; (ii) form part of a preliminary study into biological control methods; or (iii) form part of an effective biological control programme; or (b) the restricted activity must form part of a national initiative to eradicate a listed invasive species. (2) When issuing a permit for the specimens contemplated in subregulation (1)(b), the issuing authority must determine- (a) restrictions and conditions, including quarantine conditions and conditions for the prevention of escape, for the importation or the carrying out of other restricted activities involving the specimen; (b) mechanisms for ensuring compliance with conditions determined in terms of paragraph (a); (c) procedures to be followed in the event of a specimen contemplated in paragraph (b) escaping or failure to comply with the conditions determined in terms of paragraph (a); and (d) determine restrictions and conditions for the research and the release of the specimen into the wild. 19 Form and content of permits 28.(1) A permit contemplated in regulation 25(2)(b) must be in a form that corresponds substantially with Annexure E. (2) A permit contemplated in subregulation (1) must- (a) contain a sequential unique permit number; (b) specify- (i) the name and identity number of the permit holder; (ii) the species to which the restricted activities relate; (iii) the restricted activities for which the permit is issued; (iv) the period for which the permit remains valid; (v) the conditions subject to which the permit is issued; and (c) contain the signature of the issuing authority which must be certified by means of an official stamp. Period of validity of permits 29.(1) A permit authorizing- (a) the possession of an alien species or listed invasive species may not be valid for a period exceeding five years from the date of issue or renewal thereof, as the case may be; and (b) the carrying out of any other restricted activity involving an alien species or list