The following is a response to the City of Cape Town's call for comments on its proposal to extend permits for effluent outfalls at Camps Bay, Green Point, and Hout Bay. This is an extended version of comments submitted to the City.
The City of Cape Town’s proposal to continue piping minimally treated urban wastewater into the open ocean does not meet the requirements of the law and undermines local and national efforts to protect public health and Cape Town’s highly valued coastal ecosystems. The City’s own documentation refutes the City’s assertion in the application that impacts are “minimal” and “insignificant,” and instead suggests both significant impacts to public health and the environment as well as serious gaps in the City’s understanding of the full effect of these impacts. It is therefore incumbent upon the Minister of Forestry, Fisheries and the Environment to deny the City’s renewed application for coastal waters discharge permits related to three existing marine effluent outfalls located in Camps Bay, Green Point, and Hout Bay.
The law is clear regarding the government’s duty to protect the public from the environmental and health effects of discharging harmful materials into the open ocean. The Integrated Coastal Management Act, No. 24 of 2008 (“Act”) was passed in order to “preserve, protect, extend and enhance the status of coastal public property as being held in trust by the State on behalf of all South Africans, including future generations.” Act s2(c). Likewise, the National Environmental Management Act, No. 107 of 1998 (“NEMA”), provides that the environment “is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage.” NEMA s2(o). Moreover, NEMA expressly notes that “sensitive, vulnerable, highly dynamic or stressed ecosystems, such as coastal shores . . . require specific attention in management and planning procedures, especially where they are subject to significant human resource usage and development pressure.” NEMA s2(r).
To ensure its goals are achieved, the Act requires a permit to be approved in order to allow for discharge of effluent from land into coastal waters. Act s69(1). In approving an application, the Minister must take into account all relevant factors, including the interests of the community as a whole, coastal management programmes applicable to the areas, and the cumulative effect of the proposed disposal together with other discharges. Act s69(7). The Minister may not grant an application where the discharge is likely: (a) to cause irreversible or long-lasting adverse effects that cannot be satisfactorily be mitigated; (b) to prejudice significantly the achievement of any coastal management objective contained in a coastal management program; or (c) to be contrary to the interests of the whole community. Act s69(8).
The evidence reflects that impacts of effluent discharge from the outfalls at Camps Bay, Green Point, and Hout Bay is contrary to the interests of Capetonians because the City’s own evidence shows it is causing significant and long-lasting impacts without any foreseeable plan or means for mitigation. The discharges also appear to significantly hinder achievement of a coastal management objective contained in the City’s Coastal Management Programme.
While the City’s application characterizes the impacts of the discharges as “minimal” and “insignificant” based on a 2015/2016 CSIR study (“Study”), these characterizations are contradicted by the Study itself, which unequivocally concluded that (1) the outfalls do negatively affect the environment and public health, and (2) that these impacts contribute to conditions that posed a significant risk to people and the environment. Study pp. 224-25. For example, the Study calculates that toxic amounts of ammonia and suspended solids exist within the direct plume of the outfalls, affecting those ecosystems. Study p. 224. The Study also found that outfall areas were contaminated by polychlorinated biphenyls (“PCB”), a highly carcinogenic chemical compound that the Study indicates are attributable to effluent discharge. Study p. 225. The Study also determined that counts of faecal indicator bacteria were “high enough to suggest a significant periodic risk to humans recreationally using nearshore and shoreline waters.” Study p. 225. See also Study p. 126. While the Study could not determine the outfalls as the sole source for these bacteria, it does not refute the outfalls role as a cumulative impact on Cape Town’s shores. See Act s69(7).
Notably, the Study does not conclude that the overall impacts of the outfalls are insignificant or minimal as claimed by the City, and in fact the Study’s conclusion suggests that these impacts are in fact significant. The Study concludes that “based on the findings of the surveys documented in this report these scientists are of the opinion no immediate ecological disaster is imminent as a result of effluent discharge through the Cape Town outfalls.” Study p. 224 (emphasis added). An impact does not need to imminently result in immediate ecological disaster in order to be considered significant warranting cessation or prohibition (take, for instance, the banning of carcinogenic BCPs). Study p. 224. In short, the Study’s statement admits the impacts’ significance by omission.
Indeed, the Study’s avoidance of making any pronouncement regarding the significance of the impacts is itself a major red flag. The Study’s states “[i]t is not the prerogative or the responsibility of the scientists that prepared this report to decide on what constitute major ecological impacts and human health risks in the context of effluent discharge since this may differ from one person to another.” Study p. 224. Yet this is precisely what the Study’s findings are used by the City to represent. Presumably, if there were no significant impacts, the Study would have no problem stating as such even in a qualified manner.
Similarly, the Study’s repeated disclaimers regarding the lack of sufficient information with which to make definitive determinations is deeply troubling and, following the precautionary principle, suggests that environmental and health impacts should be considered significant until proven otherwise. See, e.g., Study pp. 125-26 (discussing inability to disassociating the sources of faecal indicator bacteria counts).
Even with the uncertainty indicated, the Study’s findings raise conflicts with existing management plans and programmes for the area, which the City leaves unaddressed. For example, the Study notes that “[t]he analysis of long-term trends in faecal indicator bacteria colony forming unit counts in seawater samples collected at 40 shoreline sites in Table Bay and on the Atlantic seaboard of the Cape Peninsula revealed that colony forming unit counts of E. coli and faecal streptococci exceeded guidelines for the Blue Flag programme at all sites.” Study p. 125. The Blue Flag programme refers to a voluntary international eco-certification programme managed by the Danish-based Foundation for Environmental Education. The programme awards municipalities with Blue Flag designation for beaches and marinas that meet strict criteria addressing water quality and environmental management and safety. Compliance with Blue Flag requirements in order to achieve Blue Flag status is one of the aims of Cape Town’s Coastal Management Programme (see Chapter 18). The discharges from the outfalls impede achievement of this element of Cape Town’s Coastal Management Programme, thereby barring permit approval under Section 69(10) of the Act. Continuation of the outfalls also appears to contradict SANPark’s Cape Town Marine Protected Area. Table Mountain National Park Park Management Plan p. 86 (citing sewage effluent dispersal systems as a “major risk” to the Marine Protected Area).
Even with qualifications, hedging, and lack of sufficient data to make fully informed conclusions, the Study attached to the application is clear that it is unacceptable to continue the status quo in perpetuity: “It is nevertheless clear the world cannot use the marine environment as a waste receptacle in perpetuity and opportunities for improved and economically and environmentally feasible wastewater treatment, and the feasibility of using alternative strategies for disposing of wastewater to the marine environment should be investigated by the City of Cape Town.” Study p. 225. Yet there are no conditions or commitments attached to the permit application whatsoever. Given the authority provided under the Act to approve permits “subject to any condition contained in the relevant authorization,” Act s 69(6)(c), (10), it would be irresponsible and contrary to law to grant the permit without, at the very least, conditions in line with the Study’s conclusion. Conditions would, at a minimum, provide for enhanced monitoring and a concrete, workable plan to transition towards treating the outfall effluent.
Contrary to what the City’s Study states, the pollution that the City discharges from the effluent outfalls at Sea Point, Camps Bay and Hout Bay are not “a price that must be acknowledged for the privilege of using the sea . . . as a receptacle for wastewater.” Study p. 224. Instead, such discharges are an unacceptable degradation of the environment held in trust by the government for the people of South Africa. As the City’s own experts note, this situation cannot be perpetuated, and the City must take steps towards treating the outfall effluent. Short of such action, the City’s application permitting continued pollution must be rejected.
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