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Chapter 2: The context of environmental analysis
Institutional framework and EIA
Legal framework for EIA
Building institutional capacity
Increasingly, at the national level, new environmental policies are being introduced, perhaps including a National Environmental Action Plan or National Plan for Sustainable Development. Such policies are often supported by legislation. Government policies in areas such as water, land distribution and food production, especially if supported by legislation, are likely to be highly significant for irrigation and drainage projects. An EIA should outline the policy environment relevant to the study in question. Results are also likely to be most easily understood if they are interpreted in the light of prevailing policies.
Policies and regulations are sometimes conflicting and can contribute to degradation. It is within the scope of an EIA to highlight such conflicts and detail their consequences in relation to the irrigation and drainage proposal under study. An example of conflicting policies would be an agricultural policy to subsidize agro-chemicals to increase production and an environmental policy to limit the availability of persistent chemicals. A totally laissez-faire policy will result in unsustainable development, for example through uncontrolled pollution and distortions in wealth. This creates problems which future generations have to resolve. On the other hand, excessive government control of market forces may also have negative environmental impacts. For example, free irrigation water leads to the inefficient use of this scarce and expensive resource, inequities between head and tail users and waterlogging and salinity problems.
Legal and policy issues have far-reaching consequences for the environment and are included here to illustrate the complex nature of environmental issues. The FAO Legislative Study 38, "The environmental impact of economic incentives for agricultural production: a comparative law study", is a useful reference. A forthcoming FAO/World Bank/UNDP publication, "Water Sector Policy Review and Strategy Formulation: A General Framework", will address the need for environmental issues to be integrated into water policy. If a regional, sector or basin-wide EIA is needed, such issues will form an important part.
A project or programme and its environmental impacts exist within a social framework. The context in which an EIA is carried out will be unique and stereotype solutions to environmental assessments are therefore not possible. Cultural practices, institutional structures and legal arrangements, which form the basis of social structure, vary from country to country and sometimes, within a country, from one region to another. It is a fundamental requirement to understand the social structure of the area under study as it will have a direct impact on the project and the EIA.
Local, regional and national regulations, laws and organizations are interlinked. The way in which they are interlinked needs to be explicitly understood as part of the EIA. An understanding of the institutional and legal framework concerning the environment and irrigation and drainage development is critical to the success of any project or programme. Indeed, it is likely that recommendations arising from the EIA will include restructuring or strengthening institutions, particularly at a local level, for example, ensuring adequate maintenance or effective monitoring of drain water quality. Recommendations for new legal controls or limits may also form part of the EIA output; for example, stipulating a particular flow regime in order to maintain a wetland.
At a local or regional level there may be particular regulations and customary practices which will influence environmental aspects of any project and these must be understood. The participation of local groups and the direct beneficiaries, mainly farmers, is essential to successful EIA. This may best be achieved by involving district councils. At the district level there is more interaction between sectors. Consultation with local interest groups, including non-governmental organizations (NGOs), will enable local views to be taken into account and their concerns addressed. An awareness of social and cultural problems may enable solutions to be found and conflicts to be averted before project implementation commences. Ignorance of a problem will prevent a satisfactory solution being found.
If land acquisition, economic rehabilitation (providing an alternative source of income) or resettlement of displaced people are factors in any proposed development, special care will be needed in carrying out the EIA. In most countries such issues are socially and politically sensitive and legally complex and must be identified early, during screening. They should be highlighted so that they are adequately studied by experts early in project preparation.
Poor people often find themselves in a vicious circle. They are forced by their poverty to exploit natural resources in an unsustainable manner and suffer from increasing poverty because of environmental degradation. They often inhabit fragile, marginal eco-zones in rural and, increasingly, semi-urban areas. High population growth is linked to poverty and further contributes to the dynamics of the vicious circle as ever increasing demands are made on finite natural resources. Therefore, the needs of the poor, their influence on the project and the project's impact on vulnerable groups all require particular attention in an EIA.
Institutional framework and EIA
Environmental, water and land issues involve many disciplines and many government bodies. Data will therefore have to be collected and collated from a wide range of technical ministries, other government authorities and parastatals. The interests of some bodies may not initially appear to be relevant to irrigation and drainage. However, they may hold important information about the project and surrounding area on such topics as land tenure, health, ecology and demography.
The link between different ministries and departments within ministries are often complex and the hierarchy for decision making unclear. There is a tendency for each ministry to guard "its project" and not consult or seek information from other government bodies unless forced to. This is directly contrary to the needs of an EIA. Even if formal structures exist there may be a lack of coordination between different organizations. Informal links may have been established in practice in order to overcome awkward bureaucratic structures. These issues must be understood and not oversimplified.
There may be conflict between government organizations, particularly between the institution promoting the development and that given the mandate for environmental protection. In countries where some planning processes are undertaken at the regional or district level, the regional or district councils make it easier for affected communities to put forward their views, which may differ from those of the central authorities. They will have different agendas and approaches. The EIA process must be interactive and be sympathetic to the differing views; not biased towards a particular organization.
One of the main conflicts arising from irrigation and drainage projects is between those responsible for agriculture and those for water. In some countries, there are several key ministries with differing responsibility, such as agriculture, public works and irrigation, plus several parastatal organizations and special authorities or commissions, some perhaps directly under the Office of the President. The institutional aspects are complex; for example in Thailand, over 15 institutions have responsibility for various aspects of soil conservation work.
Increasingly, at the national level, new institutions are being created, or existing institutions reorganized, to address environmental issues. Often a Ministry of the Environment will be created with a mandate to prepare legislation, set standards and provide a "policing" role. In addition, an Environmental Protection Agency may also be created to coordinate environmental assessment activities and to monitor follow up actions. As well as specific environmental agencies, new units or departments concerned with environmental issues are being created in technical ministries. Such units may have narrow duties related to the responsibilities of the institution. For example, several units could be concerned with various aspects of monitoring water pollution levels and setting acceptable quality standards. The responsibilities of all the relevant institutions needs to be clearly understood.
Institutional weakness is one of the major reasons for environmentally unsound development. The multiplicity of institutions may also mitigate against effective enforcement of environmental control measures. The EIA must cover such issues in depth and highlight contradictions, weak or impractical legislation and institutional conflicts. To overcome such problems an EIA should propose appropriate solutions. This should include institutional strengthening.
Legal framework for EIA
Environmental policy without appropriate legislation will be ineffective as, in turn, will be legislation without enforcement. Economic and financial pressures will tend to dominate other concerns. In many developing countries legislation on environmental issues has been in existence for many years. For example, laws exist in most countries for the prevention of water pollution, the protection of cultural heritage and for minimum compensation flows. Much of the existing legislation or regulations have not been considered "environmental". Recently, much specific new environmental legislation has been enacted. This may be as a response to major disasters, or may result from government policy, public pressure or the general increased international awareness of the environmental dangers that now exist in the world. Relevant water and land law as well as environmental protection legislation needs stating, understanding and analysing as part of an EIA.
New legislation may include a statutory requirement for an EIA to be done in a prescribed manner for specific development activities. When carrying out an EIA it is thus essential to be fully aware of the statutory requirements and the legal responsibilities of the concerned institutions. These are best given as an annex to the terms of reference. The legal requirements of the country must be satisfied. New laws can impose an enormous burden on the responsible agencies. The statutory requirement to carry out an EIA for specific projects will, for example, require expert staff to carry out the study, as well as officials to review the EIA and approve the project.
Laws designating what projects require EIA should, ideally, limit the statutory requirements to prevent EIA merely becoming a hurdle in the approval process. This will prevent large volumes of work being carried out for little purpose. Most legislation lists projects for which EIA is a discretionary requirement. The discretionary authority is usually the same body that approves an EIA. This arrangement allows limited resources to be allocated most effectively. However, it is essential that the discretionary authority is publicly accountable.
When external financial support is required it will also be necessary to satisfy the obligations of the donor organization. Most major donors now require an EIA for projects relating to irrigation and drainage. Chapter 6 gives details of publications outlining the requirements of the main donors.
The function of environmental legislation can vary. It is not easy to give a precise definition of when an EIA is needed. Therefore the statutory requirement for an EIA is not particularly well suited to law. On the other hand many of the most important environmental hazards are easily addressed by law. For example, it is straightforward to set legal limits for pollution, flow levels, compensation etc: here the problem is one of enforcement. It is normal for an EIA to assess the acceptability or severity of impacts in relation to legal limits and standards. However, it is important to highlight cases where existing standards are insufficiently stringent to prevent adverse impacts and to recommend acceptable standards. Enforcement problems can be partially addressed by changing institutional structures.
Laws relating to irrigated lands are complex and according to an FAO study of five African countries they are not generally applied (FAO, 1992). There are conflicts between modern and customary laws: the former tend to be given prominence although the latter are usually strong locally. Traditional and customary rights have often developed in very different historical and political contexts and can vary greatly over a short distance. They may also be mainly oral and imprecise. Local participation in the preparation of the EIA will help to understand important customary rights and highlight possible weaknesses in any proposed development.
Building institutional capacity
To carry out an EIA
To implement the recommendations of an EIA
To carry out an EIA
It may be desirable to have both a Ministry of the Environment (which will have responsibility for setting norms and new legislation) and an Environmental Protection Agency, EPA, (as a coordinating authority to orchestrate the cross-sectoral EIA activity). Whatever the institutional structure, the ministry promoting the development will usually be required to carry out an EIA or to commission others to carry it out on their behalf. The EIA will then be approved or otherwise by the central regulating authorities. To enable this process to function satisfactorily trained staff will be required in:
the environmental authority for commissioning and effective review and approval of EIAs;
the technical authority for carrying out EIAs or preparing terms of reference or guidelines for others to do the work; and,
Universities and the private sector, should the work be put out to contract.
There is thus a clear need for skilled professional staff in a variety of organizations who are familiar and competent with EIAs.
To achieve the required skills, training should cover all educational levels. Environmental studies should be introduced in schools and universities so that future expertise is nurtured. In-service training for both professional staff and technicians is important. Senior planners and decision makers also need to attend short environmental awareness programmes so that they appreciate the issues raised in EIA reports and can make enlightened decisions.
If environmental assessment is a statutory requirement, local expertise will be needed to carry out the work that this will impose. For large projects, with external financial support, foreign expertise may be used but this would not be viable for most projects. Foreign consultants, because they are outsiders, are at a disadvantage in making recommendations that are realistic and implementable. Local expertise, for both the public and private sectors, must be developed through adequately funded training and technology transfer programmes. Training should focus on the skills needed for an intersectoral decision making process at the crucial points in the project cycle. It should not aim to make pseudo EIA specialists out of other technical specialists.
In those countries where there is no central environmental authority and no statutory regulations for EIA the need for skilled staff will be equally important but less obvious. The pressure to carry out an EIA may come from external donors, the general public or specific pressure groups. In this case those who carry out the work may come from a small pool of academics or from external consultants. Part of their remit should be to train counterparts in government service. This situation is unsatisfactory in the long-term and will tend to restrict EIA to only the largest and most controversial projects. Governments must address this problem by appropriate policies for environmental protection and adequate resources to train skilled staff to carry out the work.
EIA is not a subject in itself but a procedure which relies on expertise from many disciplines. Training should not therefore be solely targeted to environmental scientists or ecologists. It is important that training is provided for specialists in all disciplines involved in an EIA, from scientists to sociologists and engineers to economists, so that they can contribute to meaningful EIAs. An important, but highly specialized area of training is in the health aspects of irrigation development. The PEEM Secretariat organizes an intersectoral course on health opportunities in water resources development which is held in developing countries.
Data are essential to an EIA and the organizations responsible for data collection and analysis, for meteorology, hydrology, water quality etc. should be strengthened (or established if not already existing). The organizations must be well funded so that the data collected are reliable and complete and the staff well trained and motivated. Inadequate and unreliable data will result in poor studies based purely on qualitative analysis which can be subjective and easily refuted.
To implement the recommendations of an EIA
As part of an EIA, it may be necessary to consider how existing organizations will need to be changed or new laws promulgated in order to ensure environmentally sustainable development. The implementation of mitigating measures or monitoring will often have an impact on the work of one or several institutions. It will therefore be necessary to recommend precisely the structure and role of new units within an organization or the restructuring of existing units, so that the proposed measures can be implemented effectively.
The EIA should also give recommendations on local capacity building. Definition of such local needs may involve several national and local government authorities, NGOs or other participatory groups such as Water Users Associations and academic institutions. It is crucial that local and not just central government institutional capacity is strengthened. This will help to overcome the feeling that environmental issues are imposed from a remote central authority and are a diversion from more important development activities. It will also build into project planning the importance of environmental management.
Once a project has been approved, responsibility for ensuring that EIA recommendations are implemented may fall to a weak unit within the executing agency. This institutional weakness can considerably devalue an EIA and render it a mere hurdle on the path to implementation to be discarded once a project starts. When preparing an EIA it is essential that the environmental authorities are identified and strengthened to ensure they are not toothless. The authority responsible for project implementation should be accountable to "watchdog" environmental agencies. One way of ensuring this would be to link budget allocations from the Ministry of Finance/Planning to satisfactory performance.
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