The Biodiversity Law Centre has lodged an appeal against the environmental authorisation (EA) granted to the Karpowership project in Richards Bay.

Submitted on Wednesday, November 22, 2023, the appeal invokes an automatic suspension of the EA until the appeal process is concluded. This development introduces further delays to a project that has encountered significant challenges over the past three years.

At the heart of the Centre's appeal is the contentious agreement between Karpowership and Ezemvelo KZN Wildlife (Ezemvelo), involving the alleged purchase of Madaka game farm. The acquisition was intended to serve as an environmental offset for the biodiversity loss expected from the Karpowership project in the sensitive estuarine environment near Richards Bay.

According to a statement from the Centre, the environmental authorisation encompasses both a "like-for-like" estuarine offset and an "out-of-kind" offset in the form of Madaka game farm. The Centre contends that these offsets lack clarity, as the EA fails to provide satisfactory explanations regarding the specific residual impacts they aim to address.

The absence of a comprehensive offset report during the EA assessment also raises concerns about the competence of the authority overseeing the process. One key issue raised in the appeal is the uncertainty surrounding the feasibility of the proposed offsets, prompting the EA to mandate an offset design as part of the implementation process.

The compensatory value of purchasing Madaka, with biodiversity targets related to elephants and black and white rhino populations, raises questions about its effectiveness in mitigating estuarine environmental impacts.

The offset mechanism outlined in the EA sets a potentially problematic precedent for holding developers accountable for biodiversity impacts resulting from delays in the functionality of offsets. The Centre expressed doubts about the legality of the offset arrangement, which seems to exist outside the statutory and policy provisions governing such compensatory measures.

The appeal also highlights other grounds, including concerns about inadequate public participation in the proposed offsets and the failure to adopt a risk-averse approach, considering Richards Bay's status as a sensitive and vulnerable ecosystem. The competent authority's issuance of a conditional EA, beyond its legal mandate, is also a focal point in the appeal.

If the appeal is dismissed, the Biodiversity Law Centre retains the option to escalate the matter to the High Court through a review application, signalling a continued legal battle over the contentious Karpowership project.

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