Senate Committee on delegated legislation reviews key environmental regulations

Senate Committee on delegated legislation reviews key environmental regulations

Machakos County
Saturday, 17th May 2025

The Senate Committee on Delegated Legislation is considering various regulations published by the Ministry of Environment, Climate Change and Forestry. In a retreat session chaired by the Committee Vice-Chairperson, Senator Danson Mungatana (Tana River), the Committee deliberated on the regulations and made several recommendations.

Regulations on Environmental Assessments and Audits

The Environmental Management and Co-ordination (Strategic and Integrated Environmental Assessment and Environmental Audits) (No. 2) Regulations, 2025, were among the first to come under scrutiny. These regulations, crafted under Section 147 of the Environmental Management and Co-ordination Act (Cap. 387), are designed to comprehensively address the processes of conducting environmental assessments, licensing, auditing, and compliance monitoring for projects across the country.

The regulations mandate that any individual or institution intending to implement a project that might negatively affect the environment must first undertake an integrated environmental assessment. This is a prerequisite to receiving an environmental assessment licence from the National Environment Management Authority (NEMA). The requirement applies across both public and private sectors, encompassing ministries, county governments, departments, agencies and institutions. Before rolling out any policy, plan, or programme, these entities must submit their proposals to NEMA, which will determine whether a strategic environmental assessment is required.

To ensure competence and accountability, Part III of the regulations establishes a system for the registration and licensing of environmental assessment experts. Experts must obtain annual practising licences, and NEMA is expected to maintain a regularly updated list of all licensed practitioners. This list is to be published on NEMA’s website, and practitioners are bound by a code of conduct detailed in the Third Schedule of the regulations.

In terms of project risk categorisation, the regulations outline differentiated reporting requirements. For low-risk projects, a summary project report prepared by a licensed expert is sufficient. NEMA assesses these reports and may grant an environmental licence or, if unsatisfied, direct the proponent to prepare a comprehensive report.

For medium-risk undertakings, a comprehensive project report is required. These too must be prepared by licensed experts, and NEMA is obligated to respond within 30 days of submission.

Notably, if the Authority does not respond within 45 days, the project may proceed without formal approval, a provision that aims to prevent bureaucratic delays.

High-risk projects face more rigorous scrutiny under Part VI. They must be accompanied by an environmental assessment study report, and NEMA retains authority to issue, vary, suspend, revoke, or accept the surrender of environmental licences under this category.

The regulations also introduce structured environmental audits and monitoring programmes tailored to the risk level of each project. These audits are periodic and form part of an effort to ensure continued compliance post-licensing.

Strategic environmental assessments for policies and programmes receive special attention under Part VIII. Should NEMA determine that such an assessment is warranted, a fee of Kshs. 1,000,000 is levied. This step ensures that broader initiatives with potential national or regional environmental implications are reviewed to the highest standards.

Part XI concludes the regulations by addressing miscellaneous but crucial aspects such as access to information, protection of proprietary data, criminal offences, and the appellate process via the Tribunal. Significantly, these regulations repeal the 2003 Environmental (Impact Assessment and Audit) Regulations, marking a substantial shift in how Kenya approaches environmental governance.

Regulations on Access to Biological Resources and Benefit Sharing

Another set of regulations deliberated upon was the Environmental Management and Co-ordination (Access to Biological Resources and Benefit Sharing) (No. 2) Regulations, 2025. Also issued under the same legal framework, these regulations aim to operationalise the Nagoya Protocol and establish equitable systems for accessing biological resources while safeguarding the rights of local communities.

The regulations emphasise conservation. Any individual or institution seeking to access biological resources must first secure an Environmental Impact Assessment licence from NEMA. Additionally, the Authority is empowered to take conservation measures for threatened species and maintain a national inventory of biological and genetic resources. This inventory will be reviewed every five years to assess the status of such resources and identify threats to their sustainability.

Crucially, the regulations seek to embed traditional knowledge systems in the formal conservation framework. NEMA is mandated to facilitate recognition of indigenous knowledge and practices associated with genetic resources. This includes developing a community biodiversity register and requiring each County Environment Committee to submit community protocols outlining engagement rules with biological resource users.

Access to these resources, whether for commercial or non-commercial purposes, requires a permit from NEMA. The application process is comprehensive, requiring detailed project descriptions and justifications. Application fees vary depending on the applicant’s status. Kenyan individuals pay Kshs. 40,000, while foreigners are charged Kshs. 80,000 for non-commercial access. For corporations, fees are higher, with locals paying Kshs. 100,000 and foreign entities Kshs. 200,000. Academic research enjoys subsidised rates Kshs. 3,000 and Kshs. 10,000 for Master’s and PhD students, respectively. For commercial access, however, the rates rise significantly to Kshs. 500,000 for citizens and Kshs. 1,000,000 for foreigners.

An application must also be accompanied by Prior Informed Consent (PIC) and Mutually Agreed Terms (MAT) from the resource providers. These documents standardised in the Fourth and Fifth Schedules of the regulations, serve to protect community interests. However, the regulations prohibit the inclusion of details related to endemic, rare, or legally protected species in these applications, ensuring such sensitive biodiversity remains shielded.

NEMA’s process for issuing permits must be transparent, requiring publication of applications in at least one national newspaper. It is also time bound, with the Authority expected to make decisions within stipulated timelines. Permits come with clearly defined terms and conditions and may be revoked or suspended for non-compliance. According to the Regulations, NEMA must also maintain a comprehensive permit register for public scrutiny.

Where biological resources are to be exported, a Material Transfer Agreement (MTA) must be executed and presented at the point of departure. This legal instrument ensures that the movement of Kenya’s biodiversity is properly tracked and governed.

A major highlight of these Regulations is the detailed framework on benefit sharing. Permit holders must enter into benefit-sharing agreements with the resource providers, based on the earlier MATs. These benefits can be monetary, such as royalties, milestone payments, or up-front fees or non-monetary, including technology transfer, capacity building, or shared research findings.

To ensure fairness, all actors involved in the utilisation of biological resources prior to the enactment of the regulations are given six months to regularise their activities. Non-compliance attracts severe penalties, with offenders facing imprisonment of between one and four years, or fines ranging from Kshs. 2 million to Kshs. 4 million.

These regulations replace the previous 2025 version, which had been submitted to Parliament outside the statutory timeline, hence the necessity for republication.

Regulations on Environmental Deposit Bonds

The third set of regulations reviewed by the Committee were the Environmental Management and Co-ordination (Deposit Bonds) (No. 2) Regulations, 2025. These regulations introduce a different approach to environmental protection through financial assurance mechanisms.

Their primary objective is to manage environmental risks by requiring proponents of certain high-impact activities to deposit financial bonds with NEMA. The sectors covered under this regulation include extractive industries, large-scale horticulture (over 100 hectares), transportation of hazardous materials such as petroleum products, industrial plants, certain infrastructure projects, and refugee camps, all listed under the First Schedule.

Under Part II of the regulations, NEMA’s Director General is tasked with managing the entire deposit bonds process. A dedicated Deposit Bonds Register is to be established, documenting all undertakings likely to pose significant risks to public health and the environment.

Before a project commences, the proponent shall be required to prepare a Deposit Bonds Assessment Report as prescribed. This report is submitted to NEMA, which then consults relevant lead agencies to evaluate its adequacy. Once satisfied, NEMA will issue formal approval and serves a notice specifying the amount of the bond to be paid.

The proponent will have 30 days to pay the required bond into a Restoration Fund. NEMA retains the authority to periodically reassess the bond amount, especially if project risks escalate or change during implementation.

At the conclusion of the project or operational period, NEMA will be required to review the environmental performance of the proponent. If the project has adhered to sound environmental practices, the deposit bond is refunded. However, if violations have occurred, the bond or part of it may be confiscated and used for remediation.

Notably, the regulations clarify that payment of a deposit bond does not exempt a proponent from complying with the Act, nor does it serve as a legal defence in cases of prosecution for environmental offences.

To ensure fairness and continuity, existing operations falling within the scope of the regulations must comply within twelve months of their commencement.

Way Forward

The Committee, through robust deliberations during the retreat chaired by Senator Danson Mungatana, appreciated the effort to align Kenya’s environmental governance with global protocols such as the Nagoya Protocol and to introduce accountability mechanisms like deposit bonds and expert accreditation.

However, concerns were raised over the affordability and accessibility of some of the licensing and assessment fees, especially for small scale developers and local communities.

The Committee is expected to further engage the Ministry and other stakeholders before resolving whether to accede to or annul the regulations