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Islamic Republic of Afghanistan
Environment Law
Unofficial English Translation
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Official Gazette No. 912, dated 25 January 2007
As Approved By The National Assembly
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TABLE OF CONTENTS
CHAPTER ONE: GENERAL PROVISIONS
Article 1
Rationale
Article 2
Purpose
Article 3
Implementing agency
Article 4
Definitions
Article 5
Fundamental Principles
Article 6
Rights and duties of the State
Article 7
Rights and duties of persons
Article 8
Duty of care
CHAPTER TWO: FUNCTIONS AND POWERS
Article 9
Functions
Article 10
Committee for Environmental Coordination
Article 11
National Environmental Advisory Council
Article 12
Subnational Environmental Advisory Councils
CHAPTER THREE: MANAGEMENT OF ACTIVITIES AFFECTING THE
ENVIRONMENT
Article 13
Prohibited activities
Article 14
Preliminary
Assessment
Article 15
Comprehensive mitigation plan
Article 16
Approval procedure
Article 17
Appeal procedure
Article 18
Costs borne by proponent
Article 19
Public participation
Article 20
EIA Board of Experts
Article 21
Interim environmental impact assessment measures
Article 22
Regulations
Article 23
Integrating environmental issues into
development planning
Article 24
Economic incentives and disincentives
Article 25
Valuation of natural resources
Article 26
Allocation of financial resources
CHAPTER FOUR: INTEGRATED POLLUTION CONTROL
Article 27
Prohibition against discharges
Article 28
Pollution
control licences
Article 29
Reporting and containing discharges
Article 30
General prohibition and duty of care in relation to waste management
Article 31
Waste management licences
Article 32
Hazardous waste management licences
Article 33
Import, export and trade in waste
CHAPTER FIVE: ENVIRONMENTAL CONSIDERATIONS
RELEVANT TO WATER RESOURCE CONSERVATION AND MANAGEMENT
Article 34
Management of water resources
Article 35
Preventing and remedying effects of pollution of water
resources
CHAPTER SIX: BIODIVERSITY AND NATURAL
RESOURCE CONSERVATION AND MANAGEMENT
National biodiversity strategy
Article 36
National biodiversity strategy
Article 37
Planning
Protected areas management
Article 38
National protected areas system
Article 39
Planning
Article 40
Categories of protected areas
Article 41
Habitats of protected species
Article 42
Designating protected areas
Article 43
Declassifying protected areas
Management of natural resources outside of
protected areas
Article 44
Restoration of indigenous vegetation
Article 45
Rangeland management
Sustainable use and conservation of species
Article 46
Planning
Article 47
Listing of species
Article 48
Taking of harvestable species
Article 49
Taking of protected species
Article 50
Recovery plans
Article 51
Alien species and living modified organisms
Article 52
Re-introductions of indigenous species
Article 53
Ex-situ conservation of species
Species trade
Article 54
International trade
Article 55
Import
Article 56
Export
Article 57
Domestic possession and trade
Access to genetic resources
Article 58
Scope
Article 59
Permitting requirements
Article 60
Application for access
Article 61
Consent to access
Article 62
Access permit
Article 63
Certificate of origin
CHAPTER SEVEN: ENVIRONMENTAL
INFORMATION, EDUCATION AND TRAINING, AND RESEARCH
Article 64. Information
Article 65. Education and training
Article 66. Research
CHAPTER EIGHT: COMPLIANCE AND ENFORCEMENT
Article 67
Appointment of inspectors
Article 68
Abatement order
Article 69
Compliance order
Article 70
Offences and penalties
Article 71
Legal action
Article 72
Personal liability
Article 73
Immunity
Article 74
Administrative appeal
CHAPTER NINE: MISCELLANEOUS ORDERS
Article 75
Incorporating environmental issues into the
legislation of other sectors.
Article 76
Supremacy of the Act
Article 77
Authorisations relating to mineral exploitation and exploration
Article 78
Commencement
CHAPTER ONE: GENERAL PROVISIONS
Article 1. Rationale
This Act has been promulgated to give effect to Article 15 of the
Constitution of Afghanistan and provide for the management of issues
relating to rehabilitation of the environment and the conservation and
sustainable use of natural resources, living organisms and non-living
organisms.
Article 2. Purpose
The primary purposes of this Act are to:
(1)
improve livelihoods and protect the health of humans, fauna and flora;
(2)
maintain ecological functions and evolutionary processes;
(3)
secure the needs and interests of present and future generations;
(4)
conserve natural and cultural heritage;
(5)
facilitate the reconstruction and sustainable development of the
national economy.
Article 3. Implementing agency
The National Environmental Protection Agency, as an independent
institutional entity, is responsible for coordinating and monitoring
conservation and rehabilitation of the environment, and for implementing
this Act.
Article 4. Definitions
The following expressions shall have the meanings hereby assigned to
them.
—adverse effect“ means any actual or potential effect on the
environment that may in the present or in the future harm the environment
or human health or that may lead to an impairment of the ability of people
and communities to provide for their health, safety, and cultural and
economic well-being.
—affected persons“ means any natural or legal person who may be
impacted positively or negatively by the implementation of a project,
plan, policy or activity.
—alien species“ means a species that does not occur naturally in
Afghanistan.
—best practicable environmental option“ means the best method for
preventing or minimising adverse effects on the environment, having regard
to, among other things:
the nature of the discharge and the sensitivity of the receiving
environment to adverse effects;
comparison of financial and environmental implications of one option
compared with other options;
the current state of technical knowledge and the likelihood that the
option can be successfully applied.
—biological diversity“ means the variability among living organisms
from all sources including terrestrial and aquatic ecosystems and the
ecological complexes of which they are a part, which includes diversity
within species and between plants, trees and living organisms within
ecosystems.
—clinical waste“ means any waste produced by hospitals, clinics,
nursing homes, doctor's offices, medical laboratories, medical research
facilities and veterinarians which is infectious or potentially
infectious.
—discharge“ means the emission, deposit, disposal or introduction into
the environment of a pollutant directly or indirectly from any point or
non-point source, whether stationary or mobile and whether caused or
permitted intentionally or unintentionally.
—ecosystem“ means a dynamic complex of plant, fungi, animal and
micro-organism communities and their non-living environment interacting as
a functional unit.
—endemic species“ means a species which occurs naturally in the wild
only in Afghanistan, or a species which only breeds in the wild in
Afghanistan.
—environment“ means natural resources, interactions between the
components of natural resources and between those components and humans or
animals, and physical, aesthetic and cultural qualities that may affect
the health and well-being of humans.
—ex-situ conservation of ecosystems“ means the conservation of
components of biological diversity outside their natural habitats.
12. —favourable conservation status“ means that:
the species is maintaining itself on a long-term basis as a viable
component of its ecosystem;
the distribution of the species is neither currently being reduced, nor
is likely to be reduced, on a long-term basis;
availability exists of sufficient habitat to maintain the population of
the species at present and in the future;
the distribution and abundance of the species to the extent consistent
with wise standards of wildlife management;
—unfavourable conservation status“ means that any of these conditions
set forth in paragraph 12 of this sub-article are not met.
—genetic resource“ means any material of plant, animal, microbial or
other origin containing functional units of heredity of actual or
potential value.
—harvestable species“ means a species that may be taken for commercial,
sport, hunting or subsistence purposes.
—hazardous substance“ includes any pesticide, herbicide or other
biocide, radioactive substance, chemical or other substance that alone or
in combination with any other thing, is harmful to the health of living
organisms.
—hazardous waste“ means clinical waste and waste containing hazardous
substances.
—in-situ conservation“ means the conservation of ecosystems and natural
habitats and the maintenance and recovery of species in their natural
surroundings.
—living organism“ means any biological entity capable of transferring
or replicating genetic material, including sterile organisms, viruses and
viroids.
—living modified organism“ means any living organism that possesses a
novel combination of genetic material obtained through the use of modern
technology.
—natural resource“ means all components of ecosystems including land,
water and atmosphere and includes all the populations, parts and genetic
resources of flora, fauna and other living organisms as well as mineral
and other non-living components that occur in them.
—pollutant“ includes any substance, solid, liquid, gas, micro-organism,
noise, vibration, heat, radiation, light or other energy, or thing, or
combination of them that has or has the potential to have an adverse
effect, and any thing deemed to be a pollutant under the provisions of
this Act.
—pollution“ means any direct or indirect alteration of the physical,
thermal, chemical or biological properties of the environment caused by
the discharge of hazardous substances or pollutants and which adversely
affects any beneficial use or causes a contravention of any condition,
limitation, or restriction to which an authorisation under this Act is
subject.
—protected area“ means a geographically defined area which is
designated and regulated to achieve specific conservation objectives.
—sustainable management“ means management of the use of natural
resources taking into account the following:
safeguarding the life-supporting capacity of natural resources and
ecosystems;
ensuring the maintenance of the life-supporting capacity and quality of
natural resources and ecosystems to meet the reasonably foreseeable needs
of future generations;
avoiding the creation of adverse effects and, where adverse effects
cannot be avoided, mitigates and remedies adverse effects.
—taking“ means the hunting, killing, injuring, capturing, collecting,
picking, uprooting, digging up, cutting, destruction or removal of any
species of fauna or flora.
—waste“ means any substance or thing that the holder discards or
disposes of, or intends or is required to discard or dispose of,
irrespective of its value to any person, and any substance or thing
discarded in a public place or on vacant land not designated for such
purposes.
—water resource“ includes surface water, an aquifer, a river or spring,
a natural channel in which water flows regularly or intermittently, and a
wetland, lake or dam into which, or from which, water flows.
—wildlife“ means plant, fungi, and animal species occurring within
natural ecosystems and habitats with no, or only limited, human influence
in their existence and reproduction.
—person“ includes and natural and legal persons.
—public body“ means an organisation that exercises public functions and
includes the United Nations, the World Bank, the Asian Development Bank
and bilateral donor agencies.
—integrated environmental management“ means the application of tools
that ensure the identification of likely adverse effects of human activity
on the environment, identification of options for mitigating such effects,
and strengthening the fundamental principles set out in Article 5 of this
Act.
—environmental impact assessment“ means the procedures used for
evaluating the likely adverse or positive environmental and social impacts
of proposed projects, plans, policies or activities in order to improve
the quality and development impact of such projects by identifying ways of
improving project selection, siting, planning, design and implementation.
—integrated pollution control“ means the holistic system aimed at
pollution prevention and minimisation at source, managing the impact of
pollution and waste on the receiving environment and remediation of
damaged and polluted environments.
—specimen“ means any living or non-living specimen of flora or fauna.
—trade“ means sale and purchase for commercial benefit through export,
re-export or import.
—licence“ means a formal written document issued to applicants by the
National Environmental Protection Agency in relation to pollution control,
waste management, hazardous wastes and other similar such activities
regulated by this Act.
—permit“ means a formal written document issued for the implementation
of a project, plan or activity, the taking of a species mentioned in
Article 47, the export of alien species, the re-introduction of indigenous
species, the export of endangered species, and access to genetic resources
granted to applicants in accordance with the provisions of this Act.
—strict nature reserve“ means a natural area without permanent or
significant habitation managed to conserve the natural condition of
outstanding or representative ecosystems, geological or physiological
features or species, retaining their main features, natural character and
influence, and available primarily for scientific research or
environmental monitoring, or large areas of unmodified or slightly
modified land.
—national park“ means a natural area managed mainly for ecosystem
conservation and recreation purposes.
—natural monument“ means an area managed mainly for conservation of
specific features, and contains one or more specific natural or natural/
cultural features which are of outstanding or unique value because of
their inherent rarity, representative or aesthetic qualities or cultural
significance.
—habitat/ species management area“ means an area managed mainly for
conservation through management intervention designed to ensure the
maintenance of habitats and to meet the requirements of specific species.
—protected landscape“ means an area of land managed mainly for
landscape conservation and recreation where the interaction of people and
nature over time has produced an area of distinct character with
significant aesthetic, cultural or ecological value, and often with high
biological diversity, the integrity of which needs to be protected and
maintained in order to allow it to continue to evolve.
—managed resource protected area“ means an area containing
predominantly unmodified natural systems managed mainly for the
sustainable use of natural ecosystems and to ensure long-term protection
and maintenance of biological diversity, while providing at the same time
a sustainable flow of natural products and services to meet community
needs.
Article 5. Fundamental Principles
In achieving the purpose of this Act, the following fundamental
principles shall be applied.
Nature as a whole warrants value and respect. The integrity of the
Earth‘s ecological systems shall be maintained and restored. All forms of
life are unique and are to be safeguarded independent of their value to
humanity.
All elements of the environment must be regulated, taking into account
the principles of international law, the dictates of the public conscience
and the fundamental values of humanity.
Peace, sustainable development, environmental protection, conservation,
and respect for human rights and fundamental freedoms are interdependent.
The right to development must be fulfilled in a sustainable manner so
as to meet developmental and environmental needs of present and future
generations.
Adverse effects should be prevented and minimised through long-term
integrated cross-sectoral planning and the coordination of government and
non-government bodies.
Taking preventative measures to maintain and protect the environment is
better than endeavouring to remedy or compensate for such harm.
Where irreversible adverse effects are likely to occur, a lack of
scientific certainty shall not prevent or impair the implementation of
precautionary measures to protect the environment.
Persons who cause adverse effects, especially pollution, must bear the
social and environmental costs of avoiding, mitigating and/ or remedying
those adverse effects.
Local communities should be involved in decision-making processes
regarding sustainable natural resource management.
Where there are environmental issues of a regional or transboundary
nature, the Islamic Republic of Afghanistan shall cooperate with other
States to resolve these issues.
The following persons shall be bound by the principles listed in
sub-article 1:
any person exercising powers or functions or making decisions under
this Act;
any person exploiting natural resources for material gain;
any person exercising a public function or any other persons required
to create or implement a policy, plan, guideline, procedure or legislation
that is likely to affect the management of the natural resources of
Afghanistan or the conservation and rehabilitation of its environment.
(4) The present generation should ensure that the health, diversity and
productivity of the environment is maintained for the benefit of future
generations.
Article 6. Rights and duties of the State
The Islamic Republic of Afghanistan:
(1)
has sovereign rights over all biological and other natural resources in
areas within the limits of its national jurisdiction;
(2)
is responsible for conserving the natural resources of the country and
for using those resources in a sustainable manner, pursuant to the
provisions of this Act;
(3)
has the duty, for the welfare of people, both present and future, to
adopt and implement programmes aimed at maintaining and re-establishing
essential ecological processes and natural resources, conserving and
rehabilitating the environment, preventing and controlling pollution and
ensuring that the benefits of the use of genetic resources are shared
equitably;
(4)
has the duty to provide the public with information and opportunities
to participate in making decisions affecting human health, the
environment, and natural resources.
Article 7. Rights and duties of persons
Every person, pursuant to this Act, shall have the following rights and
duties:
(1)
legally use natural resources in accordance with customary traditions
and practices which encourage community-based sustainable natural resource
management;
(2)
create and legally register civil society organizations which advocate
sustainable management of natural resources and conservation and
rehabilitation of the environment;
(3)
have access to information held by the State, provided that:
the request is not unreasonable or formulated in too general a manner;
the information sought is not commercially confidential;
the granting of the information sought would not further endanger the
protection of the environment;
the granting of the information would not endanger a person‘s right to
personal privacy;
(4)
participate in meetings, demonstrations, protests, marches and
referenda relating to sustainable use of natural resources and
conservation and rehabilitation of the environment pursuant to this Act;
(5)
address for consideration to the Government and public bodies letters,
complaints, declarations and proposals concerning sustainable use of
natural resources and conservation and rehabilitation of the environment;
(6)
participate in environmental impact assessment processes;
(7)
refuse to undertake any work that would result in an imminent and
serious threat to the environment or to human health;
(8)
demand written justification in regard to a particular decision;
(9)
appeal any decision made under this Act in terms of Articles 19 and 77
of this Act;
(10)
comply with this law and any other laws encouraging sustainable use of
natural resources and conservation and rehabilitation of the environment.
Article 8. Duty of care
No person shall cause pollution of the environment; if such harm to the
environment is authorised by law or cannot reasonably be avoided, such
person must take measures to minimise such pollution of the environment.
The scope of polluting activities shall be specified by legislative
procedure.
Observance of the duty of care referred to in sub-article 1 does not
automatically absolve any person who commits an offence in terms of any
other Article of this Act from liability for that offence.
CHAPTER TWO: FUNCTIONS AND POWERS
Article 9. Functions
The National Environmental Protection Agency shall carry out the
following functions and powers:
(1)
maintain environmental integrity and promote the sustainable use of
natural resources;
(2)
promote conservation and rehabilitation of the environment;
(3)
coordinate environmental affairs at the local, national and
international levels;
(4)
develop and implement national environmental policies and strategies in
order to integrate environmental issues and sustainable development
approaches into the legal and regulatory frameworks;
(5)
provide environmental management services in the areas of environmental
impact assessment, air and water quality management, waste management,
pollution control, and permitting of related activities;
(6)
establish communication and outreach for environmental information to
ensure improved awareness of environmental issues;
(7)
implement bilateral or multilateral environmental agreements to which
Afghanistan is a Party;
(8)
implement the Convention on the International Trade in Endangered
Species of Fauna and Flora (CITES);
(9)
sign on behalf of the government agreements regarding the protection
and rehabilitation of the environment;
(10)
promote and manage the Islamic Republic of Afghanistan‘s accession to
and ratification of bilateral and multilateral environmental agreements;
(11)
coordinate the preparation and implementation of a national programme
for environmental monitoring and effectively utilise the data provided by
that programme;
(12)
prepare every two years in relation to urban areas and every five years
in relation to rural areas a State of the Environment report for the
Islamic Republic of Afghanistan for submission to the President‘s Office;
(13)
prepare an interim State of the Environment report on emerging issues
relevant to the environment in Afghanistan not less than every two years;
(14)
within a period of three years of promulgation of this Act, develop a
national environmental action plan, which assesses the urgency and
importance of actions that should be taken in the short, medium and
long-term in order to prevent, eliminate and reduce adverse effects as
described in the most recent State of the Environment report, and, in
consultation with relevant ministries and institutions, determines a
coordinated strategy and schedule for the implementation of those actions;
(15)
periodically compile and publish reports on significant environmental
indicators;
(16)
on an annual basis, compile and publish a report that details the
authorisations granted and activities undertaken by the National
Environmental Protection Agency;
(17)
assess the effectiveness of the implementation of the Act and any
regulations made under it in improving the sustainability of the use and
management of natural resources and conservation and rehabilitation of the
environment;
(18)
develop and implement plans for environmental training, environmental
education and environmental awareness-raising in cooperation with relevant
ministries and public bodies;
(19)
actively coordinate and cooperate with ministries, Provincial Councils
and District and Village Councils, public bodies and the private sector on
all issues related to sustainable use of natural resources and
conservation and rehabilitation of the environment;
(20)
monitor the implementation of the objectives and provisions of this
law;
(21)
fulfil any other functions that may be assigned by the Council of
Ministers.
Article 10. Committee for Environmental Coordination
The Committee for Environmental Coordination is hereby established in
order to promote the integration and coordination of environmental issues
and the fundamental principles set out in this Act. The Committee will be
composed of representatives of all relevant ministries, national
institutions, Provincial Councils and District and Village Councils, and
civil society organisations.
The members of the Committee shall be appointed by the President on the
recommendation of the Director-General of the National Environmental
Protection Agency.
The functions of the Committee shall include the following:
mainstreaming environmental issues into the framework of the
Government‘s policies for national development;
coordinating existing and new activities in the environment sector;
investigating and making recommendations regarding the assignment and
delegation of functions between relevant government institutions under
this Act or any other law affecting the environment and regarding the
practical working arrangements, including memoranda of understanding,
between the relevant government institutions represented by members, and
also between the government and non-governmental institutions;
investigating and recommending the establishment of mechanisms for
coordination of applications for permits, licences and similar
authorisations required for activities under legal provisions concerned
with the protection of the environment;
making recommendations regarding the harmonisation of the environmental
functions of all relevant ministries, Provincial Councils and District and
Village Councils, national institutions and non-governmental organisations;
making recommendations to coordinate environmental activities including
cooperation on environmental impact assessment procedures;
making recommendations aimed at securing compliance with the
fundamental principles set out in Article 5 of this Act and national
environmental norms and standards.
The meeting procedures for the Committee shall be determined in
regulations.
Article 11. National Environmental Advisory Council
The National Environmental Advisory Council is hereby established in
order to advise the National Environmental Protection Agency on financial
matters (including budgets and annual accounts), regulatory matters
(including the development of policy, procedures and legislation) and
environmental matters that are of national public importance.
The composition of the Council, which shall meet once a year, will be
determined by the Director-General and may include governors, chairpersons
of Provincial Councils and District and Village Councils, Islamic scholars
and tribal elders.
The Committee members shall be appointed by the President on the
recommendation of the National Environmental Protection Agency‘s
Director-General.
Article 12. Subnational Environmental Advisory Councils
Subnational Environmental Advisory Councils are hereby established in
every province to make recommendations regarding financial matters,
including budgets and annual accounts, and environmental issues that are
of local public importance.
The Subnational Environmental Advisory Councils shall be composed of
the provincial chairpersons, district chairpersons, sub-governors, NEPA‘s
provincial officers, civil society members, farmers, nomads, Islamic
scholars and tribal elders in each respective province and shall meet at
least every six months under the chairpersonship of the governor of the
relevant province.
The Councils shall report to the National Environmental Protection
Agency on their activities.
The Subnational Environmental Advisory Councils may decide on the
formation of District Environmental Advisory Councils, if necessary.
CHAPTER THREE: MANAGEMENT OF ACTIVITIES AFFECTING THE ENVIRONMENT
Article 13. Prohibited activities
No person may undertake an activity or implement a project, plan or
policy that is likely to have a significant adverse effect on the
environment unless the provisions of Article 16 of this Act have been
complied with.
No ministry or national authority may grant an authorisation for the
execution of an activity or implementation of a project, plan or policy
that is likely to have a significant adverse effect on the environment
unless the provisions of Article 16 of this Act have been complied with.
Article 14. Preliminary Assessment
A person proposing to undertake a project, plan, policy or activity
shall submit to the National Environmental Protection Agency accurate
information to allow the National Environmental Protection Agency to
determine the potential adverse effects and positive impacts of the
project, plan, policy or activity.
After reviewing the brief and acting on the advice of the EIA Board of
Experts established in terms of Article 20, the National Environmental
Protection Agency may authorise the project, plan, policy or activity,
with or without conditions, provided that the potential adverse effects of
the project, plan, policy or activity on the environment are unlikely to
be significant. If the National Environmental Protection Agency considers
that the potential adverse effects on the environment are likely to be
significant, it may require the proponent to submit to the National
Environmental Protection Agency as prescribed an environmental impact
statement or a comprehensive mitigation plan in accordance with this Act.
Article 15. Comprehensive mitigation plan
A comprehensive mitigation plan shall include:
(1)
a description of the mitigation measures that will be implemented in
order to prevent, reduce or otherwise manage the environmental impacts of
a project, plan, policy or activity;
(2)
how these measures will be implemented;
(3)
any other information prescribed by the National Environmental
Protection Agency.
Article 16. Approval procedure
If the National Environmental Protection Agency, acting on the advice
of the EIA Board of Experts, considers that all the environmental impacts
and concerns are adequately addressed by the environmental impact
statement in accordance with Article 14(1) of this Act, it shall grant a
permit for the project, plan, policy or activity subject to Article 20(1)
of this Act.
The National Environmental Protection Agency shall refuse to grant a
permit in respect of a project, plan, policy or activity if the National
Environmental Protection Agency, acting on the advice of the EIA Board of
Experts, considers that the implementation of the project would bring
about unacceptable significant adverse effects or that the mitigation
measures may be inadequate to satisfactorily mitigate the significant
adverse effects of the proposed project, plan, policy or activity,
provided that the National Environmental Protection Agency must provide
written reasons for the refusal.
The National Environmental Protection Agency may withdraw a permit
granted if the proponent fails to comply with any of the terms and
conditions to which the permit is subject.
A permit granted will lapse in the event that the proponent fails to
undertake the activity or implement the project, plan or policy for which
the permit was granted within three years of the date of which the permit
was granted.
Article 17. Appeal procedure
Any person may within thirty (30) days of the granting or refusal of a
permit, appeal the decision to the Director-General of the National
Environmental Protection Agency.
The Director-General of the National Environmental Protection Agency
shall review the appeal application submitted in terms of sub-article 1
and thereafter make an appropriate decision. Should the appellant wish to
appeal the Director-General‘s final decision, the matter shall be referred
to the relevant court.
Article 18. Costs borne by proponent
The costs incurred in preparing a preliminary assessment, an
environmental impact statement, a final record of opinion or a
comprehensive mitigation plan shall be borne by the proponent of the
project, plan, policy or activity.
The limits and the method of the costs referred to in sub-article 1
shall be regulated in a separate regulation.
Article 19. Public participation
Affected persons may express their opinion on the proposed project,
plan, policy or activity, the preliminary assessment, the environmental
impact statement, the final record of opinion and the comprehensive
mitigation plan, before the approval of the project, plan, policy or
activity, and the proponent must demonstrate to the National Environmental
Protection Agency that affected persons have had meaningful opportunities,
through independent consultation and participation in public hearings, to
express their opinions on these matters on a timely basis.
In regard to a proposed project, plan, policy or activity that is
likely to have highly significant adverse effects on the environment,
affected persons must be allowed the opportunity to participate at each of
the phases referred to in sub-article 1 by the National Environmental
Protection Agency and relevant institutions.
The National Environmental Protection Agency shall not reach a decision
on any application for a permit until such time that the proponent has
demonstrated to the satisfaction of the National Environmental Protection
Agency that the proponent has distributed copies of the document to
affected persons, informed the public that the document is being made
available for public review by advertising the document and displaying a
copy of it for inspection, and convened and recorded the proceedings of a
public hearing.
After the National Environmental Protection Agency has reviewed the
conditions set forth in sub-article 3, the National Environmental
Protection Agency shall reach a decision and inform the public of that
decision and make available any relevant documentation or information for
public review.
Article 20. EIA Board of Experts
The National Environmental Protection Agency shall appoint an EIA Board
of Experts to review, assess and consider applications and documents
submitted by proponents for obtaining permits and make technical
recommendations in regard to whether to issue permits, as well as the
conditions that should be attached to any permit that is granted.
The EIA Board of Experts shall be composed of not more than eight
appropriately technically qualified members with expertise in
environmental science. The members shall be appointed by the National
Environmental Protection Agency‘s Director-General.
On the recommendation of the relevant division, the Director-General of
the National Environmental Protection Agency may appoint where necessary
four additional temporary members to the EIA Board of Experts.
Article 21. Interim environmental impact assessment measures
A proponent of any project, plan, policy or activity that is likely to
have a significant adverse effect on the environment shall apply
international best environmental impact assessment practices in regard to
such activities, in coordination with the National Environmental
Protection Agency.
Article 22. Regulations
The National Environmental Protection Agency may prepare regulations
and make procedures and guidelines to promote the implementation of this
Act.
Article 23. Integrating environmental issues into development planning
Planning for sustainable use, rehabilitation and conservation of
biological diversity, forests, rangeland and other natural resources,
prevention and control of pollution, and conservation and rehabilitation
of the environment from adverse effects shall be an obligatory element of
all national and local land use plans and natural resource management
plans developed by all relevant ministries and national institutions.
Article 24. Economic incentives and disincentives
The National Environmental Protection Agency, in cooperation with the
Ministry of Finance, relevant institutions and Provincial Councils and
District and Village Councils, shall develop and implement measures
providing for:
(1)
appropriate economic incentives to encourage prevention and control of
pollution, and protection of the environment from adverse effects;
(2)
appropriate economic disincentives for engaging in activities which do
not encourage sustainable use of natural resources, conservation of
biological diversity, prevention and control of pollution, and protection
of the
environment from adverse effects, or leads to the use of technologies
that are not environmentally sound;
(3)
the identification and amendment of policies and other measures which
encourage unsustainable use of natural resources.
Article 25. Valuation of natural resources
(1) The Ministry of Finance shall, in consultation and coordination
with relevant ministries, specify in regulations the principles and
methods to be used in assessing the value of natural resources, which
principles and methods must take account of both market and non-market
natural resource goods and services. The results of valuation of natural
resources and biological diversity shall be used to determine:
(1)
penalties and fines to be levied for unsustainable use of natural
resources or other violations of this Act;
(3)
requirements and levels for environmental deposits and bonds, and
performance-related deposits and bonds to prevent adverse effects;
(4)
compensation;
(5)
other cases as may be specified by the Ministry of Finance in
consultation with the National Environmental Protection Agency and
relevant ministries.
(2) estimates of the costs and benefit associated with natural
resources to be
included in economic and development planning, appraisals and
environmental impact assessments;
Article 26. Allocation of financial resources
Ministries and national institutions shall request the allocation of
appropriate financial resources for implementation and enforcement of the
provisions of this Act from the development and operational budgets, which
requests shall be processed in accordance with relevant financial laws and
regulations.
CHAPTER FOUR: INTEGRATED POLLUTION CONTROL
Article 27. Prohibition against discharges
Unless in possession of and in compliance with a valid pollution
control licence issued in terms of Article 28, no person may discharge or
cause or permit the discharge of a pollutant into the environment, whether
land, air or water, if that discharge causes, or is likely to cause, a
significant adverse effect on the environment or human health.
The granting of a licence in terms of Article 28 of this Act does not
affect the applicant‘s duty to obtain any other authorisation required in
order to undertake the activity or implement the project concerned,
whether in terms of this Act or any other legislation
A person who discharges pollutants shall take all reasonable measures
to ensure that the best practicable environmental option is adopted in
relation to the discharge or emission and conservation of the environment.
Article 28. Pollution control licences
The National Environmental Protection Agency shall evaluate each
application for a pollution control licence and shall do the following:
grant a licence, with or without conditions, provided that the
discharge of the pollutant that is the subject of the licence will not
have significant adverse effects or that the likely significant adverse
effects have been adequately mitigated; or
refuse to grant a licence giving reasons for the refusal in writing to
the applicant.
Provided that all necessary and relevant information required to make a
decision was furnished at the time the application was lodged, the
National Environmental Protection Agency must reach a decision in regard
to sub-article 1 within thirty (30) days of the date of lodging of the
application for a licence with the National Environmental Protection
Agency.
Provided that reasonable grounds exist to do so, the National
Environmental Protection Agency may amend, revoke or impose new conditions
in a pollution control licence.
The period of validity of a pollution control licence may not exceed
five years.
Article 29. Reporting and containing discharges
A person who discharges or causes or permits the discharge of a
pollutant into the environment in a manner or amount that is unlawful or
is likely to cause a significant adverse effect must immediately notify
the National Environmental Protection Agency and at that person‘s own
cost, take all practicable steps to contain the discharge and to avoid,
mitigate and remedy the adverse effects resulting from the discharge to
the reasonable satisfaction of the National Environmental Protection
Agency.
Any other person who becomes aware of a discharge referred to in
sub-article 1 must also immediately notify the National Environmental
Protection Agency of that discharge.
Article 30. General prohibition and duty of care in relation to waste
management
No person may collect, transport, sort, recover, store, dispose of or
otherwise manage waste in a manner that results in a significant adverse
effect.
Every person who imports, produces, collects, recovers, transports,
keeps, treats or disposes of waste shall take all reasonable measures to
prevent a significant adverse effect on the environment from occurring.
The owner or occupier of every premises upon which hazardous waste is
produced shall ensure that all hazardous waste is separated from other
waste, and is stored in separate containers pending disposal, in
accordance with the requirements of the National Environmental Protection
Agency as set out in regulations, published guidelines or licence
conditions.
A person shall not dispose of waste in such a manner that it becomes
litter or is likely to become litter.
Article 31. Waste management licences
Unless in possession of a valid waste management licence issued by the
National Environmental Protection Agency, no person may construct, own or
operate a landfill site, incinerator or other facility at which waste is
permanently disposed of or is stored indefinitely.
The National Environmental Protection Agency shall evaluate each
application for a licence and shall do the following:
grant a licence if the National Environmental Protection Agency is
satisfied that the applicant has sufficient expertise to undertake the
activity in question in accordance with the law and in a manner that will
not have significant adverse effects; or
refuse to grant a licence giving reasons for the refusal in writing to
the applicant.
The National Environmental Protection Agency shall reach a decision in
regard to sub-article 2 within thirty (30) days of the date of lodging of
the application for a licence with the National Environmental Protection
Agency.
If there are reasonable grounds to do so, and those grounds are
communicated to the licence holder in writing, the National Environmental
Protection Agency may amend, revoke or impose new conditions in an
existing waste management licence.
Article 32. Hazardous waste management licences
Every owner or occupier of any land or premises on which hazardous
waste is kept, treated or disposed of shall make a written application to
the National Environmental Protection Agency for a hazardous waste
management licence, which shall at least include details of:
the chemical composition, nature and volume of the waste which is
being, or will be, produced;
the industrial process, trade or activity giving rise to the waste;
the way in which the applicant proposes to keep, treat or dispose of
the hazardous waste, including storage and handling procedures;
the precautions which will be taken to avoid any adverse effects on the
environment being caused by the hazardous waste.
The National Environmental Protection Agency shall evaluate each
application for a licence under this Article in the following manner:
grant a hazardous waste management licence, with or without conditions,
if satisfied that the proposed method of keeping, treating and disposing
of the hazardous waste will not cause any adverse effects; or
refuse to grant a licence giving reasons for the refusal in writing to
the applicant.
The National Environmental Protection Agency must reach a decision in
regard to sub-article 2 within thirty (30) days of the date of lodging of
the application for a licence.
The National Environmental Protection Agency may amend, alter or revoke
a hazardous waste management licence or impose additional conditions if
the National Environmental Protection Agency considers that the amendments
are necessary to avoid or mitigate any adverse effects.
A hazardous waste management licence shall remain in effect for a
maximum period of five years, provided that the holder of the licence
shall notify the National Environmental Protection Agency of any
significant change in the volume or nature of the waste during the licence
period and upon such notification the National Environmental Protection
Agency may alter the licence as necessary to ensure that the waste is
kept, treated, and disposed of without causing any adverse effects.
Article 33. Import, export and trade in waste
No person shall import, export, transit or trade in waste without the
written authorisation of the National Environmental Protection Agency.
CHAPTER FIVE: ENVIRONMENTAL CONSIDERATIONS RELEVANT TO WATER RESOURCE
CONSERVATION AND MANAGEMENT
Article 34. Management of water resources
All persons, for the purpose of protection, conservation, development,
use, control and management of water resources, must take into account the
following:
protecting aquatic and associated ecosystems and their biological
diversity;
reducing and preventing pollution and degradation of water resources.
When preparing water resource management plans, ministries and other
national institutions shall at least take the following into account:
provisions for integrated watershed management;
regulation of sustainable abstraction of groundwater;
regulation of the use of surface water for agricultural, industrial,
mining, and urban purposes;
measures to protect human health and ecosystems;
measures to protect wetlands and their associated ecosystems;
any other provision necessary for the sustainable use and management of
water resources.
Article 35. Preventing and remedying effects of pollution of water
resources
An owner of land, a person in control of land or a person who occupies
or uses the land on which any activity or process is performed or
undertaken which causes or is likely to cause significant pollution of a
water resource, must take the following measures to prevent any such
pollution from occurring:
(1)
cease, modify or control any act or process causing the pollution;
(2)
comply with any prescribed waste standard or pollution management
practice;
(3)
contain or prevent the movement of pollutants;
(4)
eliminate any source of the pollution;
(5)
remedy the effects of the pollution;
(6)
remedy the effects of any disturbance to the bed and banks of a
watercourse.
CHAPTER SIX: BIODIVERSITY AND NATURAL RESOURCE CONSERVATION
AND MANAGEMENT
National biodiversity strategy
Article 36. National biodiversity strategy
The National Environmental Protection Agency, in consultation with
relevant ministries, shall prepare a national biodiversity strategy and
action plan, that addresses both in-situ and ex-situ conservation, within
two years of the entry into force of this Act.
The National Environmental Protection Agency shall ensure that measures
identified in the national biodiversity strategy and action plan are
included in national development planning, and the national biodiversity
strategy and action plan is updated not less than every five years.
Article 37. Planning
Natural resources, whether inside or outside protected areas, shall be
managed to ensure their sustainable use and conservation.
The National Environmental Protection Agency, in coordination with
relevant ministries, shall develop rehabilitation plans for degraded
ecosystems identified through the planning process established by this
Chapter, which plans shall be incorporated into natural resource
management plans and protected area management plans.
Activities which may result in unsustainable use of natural resources
must not be undertaken without the prior written authorisation of the
National Environmental Protection Agency, relevant ministries or
Provincial Councils and District and Village Councils, as appropriate.
Protected areas management
Article 38. National protected areas system
The national protected areas system of the Islamic Republic of
Afghanistan is hereby established for the following objectives:
(1)
conserve the natural and cultural heritage;
(2)
preserve present and future sustainable development options by
conserving, and where necessary restoring, representative ecosystems,
habitats, and natural and cultural features and integrating their
management into local and national land use plans;
(3)
ensure sustainable use of natural resources by involving local
communities in all activities related to protected areas, including
designating and delimiting
areas, developing integrated management plans, and managing protected
areas.
Article 39. Planning
The National Environmental Protection Agency shall develop a
comprehensive plan for the national protected areas system which shall, at
a minimum, include:
the objectives of the system plan;
the contribution of each existing protected area towards achieving the
objectives provided for in sub-article 1;
an identification of gaps in coverage of representative ecosystems and
habitats in the system;
provision of procedures for implementing and further developing the
system.
The National Environmental Protection Agency shall cooperate with
relevant ministries, Provincial Councils and District and Village Councils
and local communities to develop a management plan for each protected area
which shall, at a minimum, include:
management objectives for the protected area;
management authority, including coordination mechanisms for planning
processes;
identification of activities permitted within the protected area;
identification of activities appropriate for surrounding areas;
identification of provisions for controlling tourism and related
services;
identification of provisions for maintaining traditional natural
resource rights;
identification of provisions for sharing benefits from management of
the area;
identification of any other provisions specific to the area in
question.
Within a protected area and in accordance with the provisions of the
management plan for that area, any activity may be restricted or
prohibited by the National Environmental Protection Agency, provided that
any such restriction and prohibition shall be made known in an appropriate
manner to local communities and other stakeholders.
The National Environmental Protection Agency shall include in its
annual budget the funds required for the administration of the national
protected areas system as required in terms of this Article.
Article 40. Categories of protected areas
The following categories of protected areas are established:
strict nature reserve;
national park;
natural monument;
habitat/ species management area;
protected landscape;
managed resource protected area.
The categories set out in sub-article 1 shall apply equally to
terrestrial and aquatic ecosystems, and to areas that include both
terrestrial and aquatic components.
The National Environmental Protection Agency shall, in consultation
with relevant ministries and Provincial Councils and District and Village
Councils, prepare guidelines for the management of each category of
protected area.
Existing protected areas shall be re-categorised in terms of this
Article, and re-designated in terms of this Act.
Article 41. Habitats of protected species
Habitats of protected species listed in accordance with Article 50 of
this Act shall be designated as species management areas as provided for
in Article 43 of this Act.
The National Environmental Protection Agency shall prepare management
plans for species management areas in conjunction with species recovery
plans, as provided for in Article 53 of this Act.
Destruction of habitats of protected species by any person, including
the State, is prohibited, and offenders shall be duly prosecuted.
Article 42. Designating protected areas
Protected areas shall be selected and delimited in consultation with
the local communities involved.
The National Environmental Protection Agency shall, in coordination
with relevant ministries and Provincial Councils and District and Village
Councils, conduct all surveys and studies required to prepare a proposal
for designating a protected area, which proposal shall include at least
the following:
justification for establishment of the area and the category of
protection proposed, which takes into account the objectives for the
national protected areas system and includes an evaluation of the
advantages and disadvantages of establishing the protected area;
a physical survey of the proposed protected area;
a socio-economic impact survey of the local human population with a
description of traditional uses of natural resources in the area proposed
for designation and the potential effect of each category of protection
provided in Article 43 of this Act;
a report on collaboration with Provincial Councils and District and
Village Councils and local communities in determining the boundaries and
category of the area proposed for designation;
comments received from Provincial Councils and District and Village
Councils and local communities concerning the proposed designation of the
protected area and the category of protection to be declared;
a description of any compensatory measures that may need to be taken as
a result of establishment of the area.
Nationally protected areas shall be established by law.
Article 43. Declassifying protected areas
Any proposal for declassifying a protected area shall be prepared by
the ministry or Provincial Council or District and Village Council
proposing declassification, in consultation with the National
Environmental Protection Agency, and shall include at least the following:
justification for declassifying the protected area;
an environmental impact assessment which describes the impact of
declassifying the protected area on the ecosystems, species and human
communities affected by the area;
a description of any mitigation measures that may need to be taken as a
result of declassifying the protected area; and
a compilation of comments from Provincial Councils and District and
Village Councils and local communities.
Nationally protected areas may be declassified only by law.
Any proposal for declassifying a protected area shall be accompanied by
a proposal for classifying a compensating new area similar to the one
proposed for declassification in terms of its representative ecosystems,
habitats, and/or natural and cultural features. Such a proposal shall
include all of the elements set out in Article 42 of this Act.
Management of natural resources outside of protected areas
Article 44. Restoration of indigenous vegetation
In order to control and prevent desertification, indigenous vegetation
shall be restored by the Ministry of Agriculture, Animal Husbandry and
Food, in cooperation with the National Environmental Protection Agency and
Provincial Councils and District and Village Councils, by means of
programmes of reforestation, afforestation and revegetation and the
adoption of measures to provide for its sustainable use, which programmes
shall take into account the following criteria:
(1)
giving priority to indigenous species for reforestation, afforestation
and revegetation;
(2)
prohibiting burning of vegetation cover, unless fire is required for
the maintenance of particular ecosystems or species;
(3)
prohibiting grazing in areas that are undergoing restoration of
indigenous vegetation or other vegetation, until such time that the
vegetation can withstand grazing pressures;
(4)
giving priority to conservation of riverine vegetation.
Article 45. Rangeland management
Grazing of livestock shall be managed and controlled by the Ministry of
Agriculture, Animal Husbandry and Food in cooperation with the National
Environmental Protection Agency and Provincial Councils and District and
Village Councils to minimise impact on, and optimise use of, vegetation
cover by means of:
identifying, delimiting and including in land use and natural resource
management plans, as provided for in Article 23 of this Act, areas
appropriate for use by pastoralists;
designating corridors for nomadic pastoralists, along traditional
routes as far as possible, and integrating such corridors into land use
and natural resource management plans as provided for in Article 23 of
this Act;
improving and establishing wells and related services at both ends of
corridors designated for nomadic pastoralists.
Affected local communities and nomadic pastoralists shall be consulted
in relation to any decisions made under sub-article 1, which decisions
must also take account of customary traditions and practices that are not
inconsistent with this Act.
Sustainable use and conservation of species
Article 46. Planning
Species management shall be an integral part of land use planning and
natural resource management planning, and of management plans for
protected areas and habitats.
Article 47. Listing of species
The National Environmental Protection Agency, with the assistance of
academic institutions and relevant ministries, shall prepare lists of
harvestable and protected species occurring in the country, and update
such lists as appropriate.
A species must be listed as a protected species if it has an
unfavourable conservation status or is a species whose occurrence in the
country has been newly discovered.
Protected species shall remain so listed until such time as their
conservation status has been proven to be favourable.
The lists described in sub-article 1 shall include species information
compiled in the process of preparing the natural resource management plan
provided for in Article 23 of this Act, which lists shall be made
available for comment by Provincial Councils and District and Village
Councils and local communities.
Article 48. Taking of harvestable species
Taking into account the principles of unit management, rational
management and ecological management, the National Environmental
Protection Agency shall prepare management plans for harvestable species
listed pursuant to Article 47 of this Act, which plans shall include
provisions for conservation of the habitats of the species.
Taking of harvestable species shall be allowed on the basis of permits
or management agreements conditioned upon maintaining favourable
conservation status of the species.
Article 49. Taking of protected species
Taking of all species listed as protected as provided in Article 47 of
this Act is prohibited, except by prior authorisation in the form of a
permit issued by the National Environmental Protection Agency in terms of
sub-article 2.
Permits to take protected species may be granted only for the following
purposes and provided that the taking of a protected species will not be
detrimental to the survival of the species concerned:
captive breeding;
artificial propagation; or
(3) scientific or educational purposes.
Article 50. Recovery plans
The National Environmental Protection Agency, in coordination with
relevant ministries and Provincial Councils and District and Village
Councils, shall develop recovery plans for species listed as protected as
provided in Article 47 of this Act.
Recovery plans for protected species shall be prepared together with
the management plans for their habitats, as provided in Article 41 of this
Act.
Species recovery plans shall apply to the entire population of the
protected species.
Article 51. Alien species and living modified organisms
The import into Afghanistan of alien species and of living modified
organisms is prohibited without a permit issued by the National
Environmental Protection Agency or the Ministry of Agriculture, Animal
Husbandry and Food.
No permit for the introduction of an alien species or of a living
modified organism shall be issued unless the environmental impact
statement indicates that there is a reasonable certainty that no harm to
indigenous natural resources or human health will result from the proposed
introduction.
Sub-articles 1 and 2 of this Article shall apply equally to
introductions of alien species and living modified organisms into the
country and to introductions from one ecosystem to another within the
country.
The introduction of alien species and living modified organisms into
protected areas is prohibited.
The National Environmental Protection Agency, in cooperation with
academic institutions and relevant ministries, shall prepare a list of
species known to create negative environmental impacts whose introduction
may be strictly prohibited.
Applicable quarantine and phytosanitary provisions shall govern
introductions of domestic animals and domestic plants.
The National Environmental Protection Agency, in coordination with
national universities, relevant ministries and Provincial Councils and
District and Village Councils, shall prepare eradication plans for the
removal of harmful or potentially harmful alien species which have already
been introduced or which may be introduced accidentally in violation of
this Act.
Article 52. Re-introductions of indigenous species
Re-introductions of indigenous species shall be subject to a permit
issued by the Director-General of the National Environmental Protection
Agency and provided that the reintroduction of an indigenous species into
an ecosystem, including into a protected area, will not be detrimental to
the receiving ecosystem.
Article 53. Ex-situ conservation of species
The National Environmental Protection Agency, in coordination with
academic institutions, relevant ministries and international institutions,
shall devise appropriate plans to establish facilities for ex-situ
conservation of natural resources, on the basis of the requirements
identified in the national biodiversity strategy to be prepared in
accordance with Article 36 of this Act.
Priority shall be given to ex-situ conservation of endemic species and
to genetic resources for which Afghanistan is the country of origin.
Species trade
Article 54. International trade
All trade in specimens of species listed in Appendices I, II, and III
of the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) shall be carried out in accordance with the
provisions of that Convention.
The State shall confiscate any specimens, containers, equipment or
vehicles involved in international trade of species listed in Appendix I
of CITES.
Article 55. Import
No person shall import any specimen of any species of fauna or flora
listed under Article 50 of this Act without prior authorisation in the
form of a valid permit.
The National Environmental Protection Agency may, on written
application, on payment of any prescribed fees and presentation of a valid
export permit or re-export certificate, issue an import permit provided
that:
import will be for purposes which are not detrimental to the survival
of the species involved or any indigenous species;
the recipient of a living specimen is suitably equipped to house and
care for it;
The species in question is not listed in Appendix I of the Convention
on International Trade in Endangered Species of Fauna and Flora (CITES).
Article 56. Export
No person shall export or re-export any specimen of any species of
fauna or flora listed under Article 47 without prior authorisation in the
form of a valid permit or certificate issued
by the management authority established in terms of the Convention on
International Trade in Endangered Species of Illegal Fauna and Flora
(CITES).
The National Environmental Protection Agency may, on written
application and payment of prescribed fees, issue an export permit or
re-export certificate in terms of this Act provided that:
the scientific authority has advised that such export will not be
detrimental to the survival of the species;
the exporter holds a valid permit proving that the specimen was
lawfully obtained or imported into the country;
any living specimen will be so prepared and shipped as to minimise the
risk of injury, damage to health.
Article 57. Domestic possession and trade
No person shall possess, transport, sell, offer for sale or purchase
any specimen of any species listed under Article 47 or product made from
any specimen of any species listed under Article 47 which has been
illegally imported, taken from the wild, or otherwise not lawfully
acquired without a valid permit.
An authorisation referred to in sub-article 1 shall not be granted with
respect to any species whose trade is prohibited pursuant to any
international conventions.
A possessor or trader shall hold a valid permit proving that a specimen
was lawfully obtained or imported into the country.
Access to genetic resources
Article 58. Scope
The provisions set out in Article 58 to Article 63 of this Act shall
apply to all genetic resources of all living organisms, except for human
beings, whether in in-situ or ex-situ conditions, and to the traditional
knowledge associated with those resources.
Exchanges of genetic resources among local communities or groups for
traditional, noncommercial purposes are exempt from the provisions of
Article 58 to Article 63 of this Act .
Article 59. Permitting requirements
Access to genetic resources shall be subject to prior authorisation in
the form of an access permit granted by the National Environmental
Protection Agency.
On written application in accordance with Article 60 and payment of any
prescribed fee, the National Environmental Protection Agency may issue an
access permit, provided that the
National Environmental Protection Agency has determined that such
access will not be detrimental to the survival of the species or the
ecosystem to which access is sought.
Access to genetic resources in in-situ conditions shall be subject to
the environmental impact assessment processes set out in Chapter 3 of this
Act.
Article 60. Application for access
The application for access to genetic resources shall contain the
following information:
identification of and background information on the applicant;
description of the species or organisms to which access is sought;
description of intended use of genetic resources for which access is
sought.
For access to genetic resources in in-situ conditions, the following
information in addition to that set out in sub-article 1 shall be
required:
identification of the site(s) in question;
description of proposed activities, including collection methods and
volume of samples required; and
results of the environmental impact assessment, including conservation
status of the species or organisms to which access is sought;
For access to genetic resources in ex-situ conditions, the following
information in addition to that set out in sub-article 1 shall be
required:
identification of the institution(s) in question;
attachment of a material transfer agreement.
The National Environmental Protection Agency may request any other
information which may be required for the National Environmental
Protection Agency to make an informed decision on authorising access.
Article 61. Consent to access
Where access is sought to resources located on privately-owned land,
the following shall be taken into account:
the consent of the owner to such access shall be required;
the conditions attached to the access permit issued in terms of Article
59 of this Act shall include provisions for equitable sharing of benefits
with the owner.
Where access is sought to resources located on land used by nomadic
pastoralists or other communities or groups with traditional interests in
that land:
the consent of the group or community to such access shall be required;
the conditions attached to the access permit issued in terms of Article
59 of this Act shall include provisions for sharing of benefits with the
group or community.
Where access is sought to resources located in a protected area, all
prohibitions and restrictions on activities as established in the
management plan for that protected area shall apply.
The National Environmental Protection Agency shall not issue an access
permit in relation to resources located on land referred to in this
Article unless the National Environmental Protection Agency is satisfied
that the applicant has made full disclosure of all material information
relating to the project to the person or persons involved, and on the
basis of that information has obtained the consent of the person or
persons involved, and that a fair and equitable benefit-sharing agreement
has been signed between the applicant and relevant person or persons.
Article 62. Access permit
The access permit referred to in Article 59 shall reflect the terms
mutually agreed between the applicant and the National Environmental
Protection Agency and shall contain at least the following:
description of the species or organisms, including their sex and
developmental stage;
description of the sites where collection is permitted;
the number and volume of samples which may be collected;
the time period for which access is granted;
consent of any group or community involved;
restrictions on future use of the genetic resources subject to the
permit;
restrictions on third party use of the genetic resources subject to the
permit;
requirements for sharing of benefits resulting from use of the genetic
resources subject to the permit;
provisions guaranteeing the participation of Afghan nationals and
national institutions in any research carried out with the genetic
resources;
requirements for technology transfer;
reporting requirements;
any other conditions which the National Environmental Protection Agency
may consider appropriate.
The access permit shall constitute the authorisation to collect the
natural resources containing the genetic resources to which the permit
applies, in the locations and quantities specified in the permit.
Article 63. Certificate of origin
The National Environmental Protection Agency, in cooperation with line
ministries and national institutions and Provincial Councils and Village
and District Councils, shall monitor compliance with the terms of each
access permit.
When the National Environmental Protection Agency is satisfied that
permit terms embodying the conditions established in Article 62 of this
Act have been satisfied, the National Environmental Protection Agency
shall issue a certificate of origin for the genetic resource to which
access is granted.
A certificate of origin shall be required for export from Afghanistan
of any genetic resource.
A certificate of origin, or equivalent proof of origin, shall be
required for import of any genetic resource into Afghanistan.
CHAPTER SEVEN: ENVIRONMENTAL INFORMATION, EDUCATION AND TRAINING, AND
RESEARCH
Article 64. Information
Data on the status of natural resources, the environment and
environmental health in Afghanistan shall be compiled and synthesised by
the National Environmental Protection Agency in consultation with relevant
ministries and national institutions.
In order to manage data on discharges to the environment, the National
Environmental Protection Agency shall establish a database that, subject
to Article 7(3) of this Act, may be accessed by members of the public and
which shall be used to educate the public and encourage pollution
prevention and control.
The National Environmental Protection Agency shall coordinate with
relevant ministries and Provincial Councils and District and Village
Councils to prepare and carry out public awareness campaigns to inform and
educate the public about the value of natural resources, and means to
sustainably use and conserve them, and on environmental health, including
pollution prevention and control, and on the means to promote them.
The National Environmental Protection Agency shall coordinate
international exchange of information on natural resources in Afghanistan
and their sustainable use and conservation, on the environment and on
environmental health, including pollution prevention and control, and on
the means to promote them.
Article 65. Education and training
The National Environmental Protection Agency shall coordinate with
relevant ministries, national authorities and national academic and
technical institutions to:
(1)
incorporate principles of natural resource management and conservation
and of promotion of environmental health, including pollution prevention
and control, into school and university curricula;
(2)
establish training programmes for professionals and technical experts
in natural resource-related disciplines in the natural and social science
fields, giving priority to needs identified in the national biodiversity
strategy and action plan to be prepared as provided for in Article 36 of
this Act;
(3)
establish training programmes for professionals and technical experts
in environmental conservation disciplines in the natural and social
science fields;
(4)
create awareness and conduct training programmes regarding
implementation of this Act and regulations made under it.
Article 66. Research
The National Environmental Protection Agency shall promote national
research programmes that contribute to environmental sustainability and
the sustainable use and conservation of natural resources and promote
environmental health and shall cooperate in international programmes to
conduct research and develop methods for sustainably using and conserving
such resources.
The National Environmental Protection Agency shall coordinate with
national academic institutions and relevant ministries, to ensure that
research programmes are relevant to the purposes of this Act and to those
identified in the national biodiversity strategy and action plan and in
national and local land use and natural resource management plans.
CHAPTER EIGHT: COMPLIANCE AND ENFORCEMENT
Article 67. Appointment of inspectors
In accordance with relevant regulations and procedures, the National
Environmental Protection Agency may appoint as inspectors such number of
appropriately qualified persons for the purposes of ensuring compliance
with the Act and its regulations.
Inspectors referred to in sub-article 1 shall have the following
powers:
to enter a premises, after showing identification and except in
relation to a dwelling;
to stop any vehicle that the inspector reasonably believes is being
operated in contravention of this Act or discharging or has discharged a
pollutant in contravention of this Act.
to take samples, photographs and record or copy any information in
order to carry out the tests and inspections required;
to require the production of any document, record or other thing that
is required to be kept under this Act and remove it for the purpose of
making copies, provided that a receipt is provided before removal;
to seize and take copies of any documents which may constitute evidence
of the commission of an offence under this Act;
to make reasonable enquiries of any person, whether orally or in
writing;
to require any person to afford the inspector such facilities and
assistance to enable the inspector to exercise any of the powers conferred
on the inspector under this Act.
Article 68. Abatement order
Where an activity that is not authorised in terms of this Act and may
result in a significant adverse effect, the National Environmental
Protection Agency may order the abatement of that activity by serving a
signed abatement order on the person causing or permitting the activity.
An abatement order referred to in sub-article 1 must address at least
the following:
the nature of the condition, practice or activity in question;
the date by which abatement must occur;
the remedial and environmental restoration action required.
Article 69. Compliance order
Where the National Environmental Protection Agency has reasonable
grounds to believe that any condition of a licence, permit or
authorisation issued under this Act has been breached, the National
Environmental Protection Agency may serve a compliance order on the holder
of the authorisation in question:
requiring that person to remedy the breach within the specified period;
or
suspending the licence with immediate effect if this is considered
necessary to prevent or mitigate an immediate risk of significant adverse
effects to the environment or to human health occurring.
Where the measures set out in sub-article 1 are not complied with, the
National Environmental Protection Agency may:
take the necessary steps to remedy the breach and recover the cost from
the licence, permit or authorisation holder;
alter the conditions of the licence, permit or authorisation;
revoke the licence, permit or authorisation; or
refer the matter to the relevant authority for prosecution.
Article 70. Offences and penalties
1. The holder of a licence, permit or authorisation shall be tried by a
court of law if he or she commits any of the following offences:
(1)
breach of the conditions of a licence, permit, authorisation or order
issued or made under this Act; the offender shall be sentenced to a
mid-term imprisonment, or a fine payment, or both, as appropriate;
(2)
failure to comply with an abatement or compliance order; the offender
shall be sentenced to a six month imprisonment, or payment of a cash fine
equivalent to the damage caused;
(3)
making a statement that is false or misleading in one of the following
instances:
• for the purposes of obtaining an authorisation under this Act; or
• obstructing an inspector in the exercise or performance of powers or
duties under this Act
the offender shall be sentenced to a three month imprisonment, or
payment of a cash fine of 10,000 Afghanis, or both, as appropriate.
2. The National Environmental Protection Agency may require offenders
under this Act to pay cash fine payments, the conditions and procedures of
which shall be determined in regulations.
Article 71. Legal action
Legal action may be initiated by any person affected by damage or
threatened by potential harm to natural resources or the environment or by
violations of this Act and any regulations
adopted pursuant to it, on that person‘s own behalf or on behalf of
that person and other affected persons having similar or common interests
in the proceedings.
Any person who intentionally or negligently commits any act or is
responsible for an omission which damages, degrades, or threatens natural
resources or the environment shall be liable for the costs of restoration
and remediation.
Article 72. Personal liability
If any of the offences set out in Article 73 are committed by a
corporation, the corporation and every director or officer of the
corporation shall be liable; and shall be sentenced to midterm
imprisonment, payment of a fine or both, as appropriate.
Article 73. Immunity
If a recognised official of the State exercises his or her duties and
causes adverse effects on a person, no legal action or criminal
prosecution or civil action or proceeding may be initiated against him or
her. The relevant agency shall be liable for paying the appropriate
compensation.
Article 74. Administrative appeal
A person who has an interest that is or may be adversely affected by
any decision made or direction given under this Act may appeal that
decision or direction by delivering an appeal application in the manner
prescribed by regulation to the Director-General of the National
Environmental Protection Agency.
An appeal application must at least contain the following:
name, address and, if appropriate, telephone number and email address
of the applicant;
set out or adequately identify the decision or direction that is being
appealed;
set out the grounds for appeal and state briefly the facts on which the
applicant relies.
The Director-General of the National Environmental Protection Agency
must consider the application, reach a final decision and communicate that
decision to the applicant within thirty (30) days of the date on which the
appeal was validly lodged.
CHAPTER NINE: MISCELLANEOUS ORDERS
Article 75. Incorporating environmental issues into the legislation of
other sectors
Relevant line ministries and institutions, in cooperation with the
National Environmental Protection Agency, shall take appropriate measures
for the management of environmental issues in relevant sub-sectors,
including forestry, rangelands, biodiversity, protected areas, national
parks, public health and other sectors in accordance with relevant laws
and regulations.
If legislation is yet to be developed in the sub-sectors referred to in
sub-article 1, the relevant line ministries shall incorporate
environmental considerations into their legislation.
Article 76. Supremacy of the Act
Where there is an inconsistency between the provisions of this Act and
any other law that affects the environment, other than the Constitution of
Afghanistan, 1382, this Act shall prevail.
Article 77. Authorisations relating to mineral exploitation and
exploration
Holders of permits and authorisations and related documents authorising
mineral exploitation and exploration that may affect the environment,
shall not initiate activities prior to receiving written authorisation
from the National Environmental Protection Agency.
Article 78. Commencement
This Act will come into operation on the date of signature by the
President, after which it will be published in the Official Gazette. With
the commencement of this Act, the Law for the Protection of Nature,
published in the Official Gazette No. 795 dated 12 Shawal, 1421 shall be
repealed. |
