Government seeks to clamp down on offshore ship refuelling operations
New draft regulations seek to tighten control over offshore bunkering, but comments to date warn that failing to mandate full Environmental Impact Assessments for bunkering will continue to leave endangered species and fragile marine ecosystems dangerously exposed.
The Department of Forestry, Fisheries and the Environment has published draft regulations for the environmental management of offshore bunkering, inviting public comment as South Africa seeks to tighten control over the growing practice of refuelling ships at sea.
Bunkering, the controversial practice of Ship-To-Ship (STS) refuelling at sea, has been linked to oil spills affecting seabirds in Algoa Bay, increased vessel noise and the catastrophic decline of endangered African penguin populations.
What has been at the centre of discussion is that STS bunkering is not specifically listed under the Environmental Impact Assessment (EIA) regulations of the National Environmental Management Act, 1998 (Nema).
This means it can be approved without a thorough assessment of its direct, indirect, and cumulative impacts, and without the involvement or input of affected stakeholders.
The practice in South African waters, especially off Algoa Bay in the Eastern Cape,has been widely debated with concerns raised about oil spills, marine noise and threats to wildlife and critical habitats.
As Kate Handley from the Biodiversity Law Centre (BLC) previously wrote in Daily Maverick, bringing bunkering and activities within the environmental regulatory framework is urgent and necessary.
This is particularly significant as St Croix Island in Algoa Bay used to host the world's largest breeding colony of African penguins, but the population has dropped by roughly 85% since 2016, with the sharp decline linked to STS bunkering in the area.
Handley noted that four significant oil spills linked to STS bunkering incidents have occurred since 2016, resulting in significant numbers of oiled seabirds.
The new draft regulations, published by Environment Minister Dion George, look to create a regulatory framework to ensure the actual impacts and potential impacts of offshore bunkering on the coastal environment are mitigated and avoided, or where avoidance is not possible, are minimised and remedied.
The regulations are out for comment until 5 May, and they detail prohibitions; noise mitigation; wildlife monitoring; weather conditions; requirements to avoid or mitigate oil spills; training requirements; and environmental management plan stipulations to be fulfilled by all bunkering operators.
The minister set out that these prohibitions are to limit where, when and how offshore bunkering can take place, to prioritise the protection of ecologically sensitive areas and endangered species such as the African penguin.
The restrictions reflect growing concern over the environmental risks of oil spills, noise and other impacts associated with ship-to-ship fuel transfers, especially in biodiversity hotspots like Algoa Bay.
While the regulations are out for public comment, groups such as the BLC are calling for them to include a total ban near sensitive marine habitats (like Algoa Bay) and require a full EIA process.
As it stands, the draft regulations call for environmental management plans, which can be fulfilled without public participation and can either be approved, referred back for amendments, or rejected by the Minister.
Environmental management plan
An independently developed and minister-approved environmental management plan (EMP) is now required for all offshore bunkering operations.
No bunkering is allowed without an EMP developed by an independent specialist and approved by the minister before operations begin. The minister may approve, refer back for amendments, or reject the EMP. The EMP must include:
Site-specific environmental and ecological risk identification by an independent specialist, along with environmental management and mitigation measures to avoid or minimise the identified risks;
A wildlife preparedness and response strategy based on international guidelines, with a wildlife response programme by an experienced organisation;
A comprehensive contingency plan that includes risk assessment of spills and expected consequences and operational protocols for spill response. In addition, details of oil spill response vessels and personnel must be on site;
Underwater noise mitigation and management measures;
Emergency response procedures for collisions or entanglements involving marine mammals, turtles, or seabirds; and
A monitoring programme to measure parameters such as surface currents, oil spills and noise, and to assess impacts on marine life, including oiled seabirds.
The BLC has submitted detailed comments on the draft regulations for offshore bunkering, raising several legal, environmental and procedural concerns.
While the draft regulations attempt to address underwater noise and wildlife monitoring, which the BLC welcomed, the organisation found these measures vague, difficult to enforce and not fully aligned with international best practice.
The requirement for EMPs is also seen as legally unfounded without first listing bunkering as an activity requiring environmental authorisation under Nema, according to the BLC.
It strongly recommends that offshore bunkering be a listed activity under the Nema EIA regulations. This would require a full EIA and public participation before any bunkering activity is authorised, a step the BLC says is currently missing, despite repeated calls for its inclusion.
Prohibitions
A series of strict prohibitions is introduced in an attempt to protect South Africa's sensitive coastal and marine environments from the risks associated with offshore bunkering operations.
This includes no-go zones where offshore bunkering is completely prohibited within:
Any marine protected area (MPA);
Five nautical miles of the boundary of an MPA;
Any critical biodiversity area;
Five nautical miles of an aquaculture development zone; and
Five nautical miles of the high-water mark.
The regulations also institute a night-time ban, where bunkering operations are not allowed between sunset and sunrise, effectively banning all night-time transfers.
No one involved in bunkering is allowed to release or discharge any substance from a vessel when transiting through an MPA, or within a 20km radius of St Croix Island and Bird Island, Algoa Bay.
The master of a vessel waiting to bunker may not traverse between Bird Island, in Algoa Bay and the mainland.
Vessel movement is also going to be limited with vessels waiting to bunker not allowed to traverse between Bird Island and the mainland, reducing disturbance to critical wildlife areas.
The regulations stipulate an Algoa Bay operator cap with a maximum of five bunker operators allowed to operate within Algoa Bay. Each bunker operator is only allowed to operate one vessel within the bay.
Noise mitigation
The regulations introduce measures to reduce underwater noise pollution from offshore bunkering operations, recognising its harmful impact on marine life, especially in sensitive coastal areas.
All bunkering vessels must comply with the International Maritime Organisation (IMO) guidelines for the reduction of underwater noise from commercial shipping. This means vessels must be designed or adapted to minimise the noise they generate beneath the water's surface.
Vessels already authorised at the time these regulations come into effect are given two years to achieve full compliance with the IMO noise reduction standards.
Masters of vessels intending to bunker must reduce their speed to 8 knots or less when within 10 nautical miles of the bunkering site, and must reduce the vessels' speed even further before anchoring.
Lower vessel speeds are proven to significantly reduce underwater noise, benefiting marine mammals and other sensitive species. This is evidenced in a paper by Russell Leaper, published in Frontiers in Marine Science in 2019.
The regulations further state that each bunker operator's EMP must include a dedicated underwater noise mitigation and management plan. This plan should outline a range of noise reduction and mitigation options, incorporate best practices for noise mitigation, and detail operating procedures for both acute and chronic noise-generating activities, including bunkering and vessel transit.
Wildlife monitoring and mitigation
The regulations call for continuous monitoring for marine mammals, penguins and turtles before and during bunkering, to minimise the impact on these species.
They also state that bunkering must stop if protected species are detected within 500m of the site. Where a marine mammal, penguin or turtle is in the path of a vessel, the master of that vessel must take the necessary steps to avoid contact with, or navigate the vessel over, the marine mammal, penguin or turtle.
Before beginning bunkering operations, all bunker operators must install a sono-buoy system, which alerts vessels to the presence of marine mammals
Any collisions or sightings of injured/oiled wildlife must be reported immediately, and operators are responsible for the rescue and transport of oiled seabirds.
The regulations also state that bunker operators are not permitted to undertake bunkering unless an oil spill response vessel is present at the bunkering area and is equipped with gas detection equipment to sound an alarm when the presence of flammable gas or vapour is detected.
Mitigating oil spills
The draft regulations further set out specific requirements that bunker operators must follow to avoid or mitigate oil spills:
The bunker operator must deploy a static towing or holdback tug to maintain heading control of the vessel throughout the entire bunkering operation;
Drip trays must be used to collect any fuel or runoff from equipment that is not in a bunded (contained) area, and the contents must be directed to a closed drainage system;
Suitable leak detection and repair programmes must be implemented to identify and address potential leaks promptly;
Only low-toxicity biodegradable detergents may be used for cleaning the deck and any spillages, reducing environmental harm from cleaning agents;
An inflatable curtain boom must be deployed before each bunkering operation to contain any potential spills. The boom must be regularly monitored during the operation to maintain its structural integrity; and
Secondary booms must be kept on standby and ready to reinforce the primary boom in case of boom failure.
What happens next?
Until now, bunkering outside harbours has operated in a regulatory grey area, with limited oversight and inconsistent standards for spill response, wildlife protection and noise mitigation.
If a person contravenes the regulations, they may be convicted of an offence and may be sentenced to a maximum fine of R2-million, imprisonment for a maximum period of five years, or both a fine and imprisonment. DM
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