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Involvement of local authorities in the protection of coastal areas
Mark
Policy 1994 IS (2) 199-208
Involvement of local authorities in the protection of coastal areas The city of Dakar
Rouchdy Kbaier
As in many developing countries, local authorities in Senegal are not as involved as they should be in the protection and development policies of coastal areas. Nonetheless, there are legislative and statutory supports which give the City and Urban Community of Dakar rights in certain sectors of the environment. However, their impact on global environmental protection policy is marginal. Land-based pollution accounts for 80-90% of the pollution in Senegal, particularly in the Dakar Bays zone. Pollution is generated by industry, household waste, agricultural waste, waste from coastal communities, and waste and refuse (individua1 and public) on the beach. The Bays of Harm, NGOR, and the Commercial Port zone covered by this study are the targets of such waste. Industrial development is increasing the volume of refuse directed at the sea, but the disorganized development of human communities is another source of pollution. The two combined place a heavy strain on the balance and ecosystem of the coast. In the Bay of Hann, various industries food farms, the fish processing industry, the textile, chemical and food industries - pour more than 15 000 cm’ of refuse and liquid waste a day into the coastal zone. These waters contain chemical pollution in the form of mineral and organic matter and toxic chemical products - heavy metals such as lead, mercury, chlorine, arsenic, caustic soda, etc. As well as pollution from industrial activities, pollution is also generDr R. Kbaier is a consultant. He can be contacted at 17 rue Mirabeau, 94300 Vincennes, France. Tel: +33 143 28 10 01. Fax: +33 143 28 21 57.
~308-597~94/02Ot99-IO
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ated by workshops and car repair shops which discharge machine oil into the gutters and conduits that discharge into the Bay. Household pollution from Dakar’s domestic liquid waste, which is full of pathogenic micro-organisms, is disposed of by canals VI and Via. These canals, meant for collecting rainwater from the Rufisque road, the Northern industrial zone, and areas between the highway and the Avenue de la Liberte (which begins in the Grand Dakar district), carry househoId liquid waste, refuse, discharges from the technicat services of the Societe Nationale d’Exploitation des Eaux du Senegal (SONEES), and the national laboratory for livestock breeding and veterinary research. All this unprocessed waste is poured into the Bay of Hann. Finally, waste emanates from coastal communities such as the village of Hann and the village of Ngor. In view of the industrial, food-farm and port activities, this paper takes a closer look at the commercial port because - like the Bay of Hann - it necessitates an individual particular approach. Numerous sources of land-based pollution pose a daily danger to the health and cleanliness of the port zone. One source of pollution, for instance, is the BP depot, which empties heavy oil waste from the lock chambers directly into a gutter that connects with the port’s water system. Another source of pollution stems from wastewater piping from town which passes by the soap factories on the Rufisque road. Yet another example is the fact that the ‘Wharf’ oil pipeworks for the disposal of rainwater are blocked, retaining heavy oils under the feeder pipes. At high tide, the mixture enters the water system, creating pollution. 199
Involvement of local authorities in the protection of coastal areas: R Kbaier
Positive law and its shortcomings Analysis of Senegal’s legal two major shortcomings:
instruments
highlights
(1) deficiencies
in three important areas of intervention concerning environmental protection: water protection and the management of installations classified as pollutants, water treatment, management and development of the coastal area; (2) a deficiency in the competencies of local authorities in these areas.
Competencies of local authorities In the Cap Vert region, these problems of developing and protecting the coastal zone are of concern to three local authorities: the commune of Dakar; the commune of Pikine; and the Urban Community of Dakar (UKD), created under the 18 February 1983 law on the administrative reorganization of the Cap Vert Region. Comp&encies of the UCD include: construction and maintenance of the sewerage system; street cleaning and sweeping; collection and destruction of household rubbish; management of municipal technical services; management of cemeteries; and liquidation of the former Dakar Commune’s debts. The UCD can also place its technical services at the disposal of authorities which so request and conclude any agreement with interested authorities on one or more projects within their respective competencies. The actions the UCD takes in the sphere of water treatment are not explicitly envisaged. The government felt that the costs of exercising these competencies would be too much of a burden on the finances of a local authority, but the UCD was prompted to intervene, partly because of the State’s own abstention, and partly because the exercise of technically related competencies (the construction and maintenance of the sewerage system, street cleaning and sweeping) compelled it to do so. Given its good relations with the UCD, within the limits of its budgetary possibilities, the SONEES has always strived to realize the urgent projects brought to its attention by the UCD. The UCD and its technical services intervene in numerous spheres that overstep the framework of its competencies and for which it does not have the corresponding resources. The UCD thus substitutes for the state, the SONEES and the communes, in performing the tasks that its partners pass on to it.
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Hence, in the sphere of water treatment, there is an obvious need to clarify the prerogatives, and to allocate financial resources equitably. In the area of water treatment, the SONEES is a simple provider of services.
Installations Classified as Pollutants Industrial waste, a major source of pollution in the Bays of Dakar, is the subject of separate legislation. Law No 83.05, of 28 January 1983 concerning the Environment Code, is important because it constitutes the foundation of Senegal’s Positive Law. It is worth noting that for a long time (not just before independence but until as late as 1983) French Law constituted the source of law. Classified facilities were registered under the 1917 French law, the basis for Decree No 61355 /MTPHU/MIG of 21 September 1961, which set the inspection fees and control of classified facilities, and for Decree No 62.297 of 27 July 1962 concerning the regulation of classified facilities. Senegal’s legislation of 1983 was intended to update this law, the aim of which is to draw up a classification of dangerous, unhealthy or impracticable facilities so as to overcome drawbacks by elaborating different classifications and subjecting them to a system of authorization or declaration.
Definition.
The first heading of the 1983 law concerning the Environment Code deals specifically with facilities classified as sources of pollutants: factories, workshops, depots, building sites and, generally, installations used or kept by any physical or moral, public or private entity, which presents or can present a hazard to health, safety and public sanitation, agriculture and the environment at large, or risks to neighbourhood comforts (Article 1). Facilities are divided into two classes, depending on the dangers or gravity of the hazards that their use could present. Any facility that includes at least one classified installation is subject to the provision of the law.
Authorization.
The authorization procedure depends on the class to which the facility belongs. Facilities in class 1 are subject to authorization but must meet the conditions connected with preventive measures against pollution hazards. This authorization can take into account the facility’s exogenous conditions: its distance from dwellings, the occupancy of buildings by third parties, its distance from a watercourse, from the sea, from a communication route, from water collection or from zones designated as living areas. Authorization to open a facility ranked under
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Involvement
classes 1 or 2 is given by the minister in charge of the environment and the minister in charge of industry. This permission must be obtained prior to any construction or use of a building. Any request for permission must be accompanied by a formal declaration of the substance, quantity and toxicity of the facility’s waste matter and the processing or elimination method envisaged. For class 1 facilities, a ‘commode’ and ‘incommodo’ investigation must accompany the application. This investigation derives its legal basis from a joint order by the Ministers of the Environment and of Industry. The authorization order envisages the terms of installation and use deemed to be indispensable for protecting the interests mentioned under article 1. Certain categories of facilities are subject to special technical rules. For class 2 facilities, the general prescriptions are stipulated in the form of orders. With regard to the risks deemed to be posed by Class 2 facilities, the Ministers of the Environment and of Industry shall, if necessary, adapt the orders to each given activity. Inspection and control. Classified facilities are inspected by certified personnel sworn to professional secrecy. In the event that classified facilities should no longer meet the objectives of environmental protection, the Minister of the Environment, after consulting the Minister of Industry, can issue an order to shut down such facilities temporarily. Moreover, and this is very important, there are many companies which opened near the bays prior to the introduction of the present law’s provisions, and which, before these clauses came into effect, were not subject to implementation of the law or decrees relating to dangerous, unhealthy or hazardous facilities. Yet, they continue to operate. In addition to the specific rules for classified facilities, there are also those relating to water pollution under heading II of the 28 January 1983 law. These provisions strengthen the management and control of classified facilities and punishment of offenders. Here again the 1983 law constitutes the underlying foundation of Senegal’s positive law. Heading II has a very broad field of application. The following are subject to the provisions of the present law: outpourings, outflows, discharges, direct or indirect deposits of all kinds, and, more generally speaking, anything capable of provoking or increasing the degradation of waters by altering their physical, chemical or bacteriological properties, be they surface waters, subterranean waters or seawater within the territorial limits of the sea.
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of local authorities
in the protection
of coastal areas: R Kbaier
However, legislative provisions cannot be truly operational without an enforcement decree, which has yet to be adopted. These provisions envisage (Article 34) that such a decree will determine the conditions under which one can regulate or prohibit outpourings, outflows, discharges, direct or indirect deposits of water or generally of anything capable of altering the quality of the water, especially that of the sea within the territorial limits. Furthermore, the terms of sale and distribution of certain products capable of leading to waste must be the subject of special regulation. In addition, controls are envisaged for the physical, chemical, biological and bacteriological parameters of the receiving waters and the outflows. Provisions regarding punitive sanctions (eg Article 36) are of two types. If the offender does not comply with the administration’s injunctions (for the realization of work or development) he is liable to a fine of from FCAlOO 000 to 1 500 000, with the possibility of daily penalties. With regard to the Civil Liability Law, the heads, directors or managers of enterprises can be declared jointly liable for payment of the offender’s fines and legal fees. Controlling the observance of provisions regarding the qualitative protection of waters is the job of certified agents or officers of the law. Statements made by these agents constitute irrefutable evidence. Other specific provisions of Senegal’s Positive Law include the law of 5 July 1983 concerning the Hygiene Code. Under Section 4, ‘water samples and analysis’, Article L 14 stipulates that ‘Surface waters from different watercourses (lakes, rivers, streams) used for domestic purposes are equally subject to protection against all, especially industrial pollution. They also constitute the subject of samples and periodic analysis with a view to forestalling any risk of contamination or poisoning for the population’. Article L XV extends its obligations (to public swimming pools) and to beaches. These two articles are of interest to the bays of Dakar, in terms of both industrial waste and direct waste into marine waters, and with regard to setting up facilities within the vicinity of waters. Finally, Chapter V specifically deals with hygiene rules for beaches, making it an offence to leave any object on the beach that might alter the cleanliness of the area. Heading II covers ‘the sanitation police’ and empowers agents of the national sanitation service, who are certified and competent to control, study and report violations of sanitary law. Their statements do not carry the weight of irrefutable
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Involvement of local authorities in the protection of coastal areas: R Kbaier
evidence. Fines are minor for sanitation violations, ranging from CFAl 800 to CFA3 000. This law was not followed up by an enforcement decree. Law No 93 of 3 March 1981, relating to the Water Code, applies to non-maritime waters and hydraulic works. Although this paper concerns maritime waters, these provisions govern the interaction between the maritime domain and the watercourses, river and conduits into which enterprises discharge their wastewater. This law is mainly entrusted to the Ministry of Rural Development and Hydraulics. Heading II, relating to the qualitative protection of waters, is virtually identical to heading II of the 1983 law on the environment code. Thus, Section I deals with provisions concerning discharges, waste, deposits of matter whose effects can alter the quality of surface and subterranean waters. Section II defines the norms to be observed with regard to their usage. Sections III and IV dwell on things that can pollute the water and on administrative ways of combating pollution. The regulation for operating the Autonomous Port of Dakar stems from Decree No 65642, approving and rendering enforceable, among other things, provisions on controlling conservation, health and circulation in the port zone. Regulations
regarding
water treatment
As with the overall management of classified facilities, in Senegal water treatment is not governed by a law or special regulation. There is no law relating to water treatment. On the other hand, a draft law regarding the Water Treatment Code is currently under discussion. Here the role of local authorities is marginal. The 1983 law concerning the Environment Code and the draft law are currently under discussion. These contain general provisions which affect water treatment. The Ministers of the Environment can issue orders introducing special protection zones responding to observed pollution levels. The draft law regarding the Environment Code is more explicit and envisages precise water treatment measures. Chapter II under heading II of the draft covers human establishments. The definition is very broad since human establishments constitute urban and rural areas, whatever their type and size, and the infrastructure they must have in order to ensure their inhabitants a healthy and decent life. The link with urban plans is explicit. These plans must take into account the imperatives of environmental protection regarding the choice, establishment and realization of commercial, residential and recreational zones.
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Article 67 of the draft stipulates the level of discharged wastewater permitted. The unloading of wastewater into the public water treatment system must not undermine the conservation of the works or the management of these networks. It is incumbent upon the system’s authorities to oversee the condition of the works. Within this context, the draft provides for the Minister of the Environment, in cooperation with the Ministers of Hydraulics and Health, to issue orders listing the substances that are capable of altering the environment and that need to be prohibited, or have received prior permission from the authorities in charge of water treatment and the environment. Enforcement decrees determine the conditions under which one can regulate or prohibit outpourings, the sale of certain products capable of altering the quality of the environment, and the scientific controls necessary for analysing the recipient waters. Law No 83.71 of 5 July 1971 concerns the Hygiene Code and includes specific regulations concerning water treatment. The code stipulates that liquid waste is to be eliminated by water treatment systems. It prohibits mixing faeces or urine with household rubbish, connecting sewers onto rainwater collectors, installations in non-standard urinals or latrines. It is prohibited to throw wastewater or to deposit urine or excrement on public roads. Law No 81.13 of 3 March 1981 concerns the Water Code. Heading II of the code is identical to heading II of the 1983 law relating to the Environment Code. It deals with the dumping, outflow, discharge, and direct deposit of all kinds of substances and, generally, with all matter capable of incurring or increasing the degradation of waters by altering their properties, be they surface or subterranean waters. Authorization comes from the Minister of Hydraulics. Law No 88.05 of 20 June 1988 concerns the Urban Planning Code. Articles 69 et seq, relating to building permissions, stem from a directive based on ‘valid legislative and regulatory provisions concerning security, health, hygiene and the environment’, but they are too general. Moreover, there is a draft Water Treatment Code (examined below). Article 13 states that, with regard to the discharge of home-generated outflows, the type, capacity, establishment and layout of a wastewater disposal system must meet the standards set by the minister in charge of water treatment and the other norms of the Urban Planning Code. Article lib of the code stipulates that detailed urban plans determine the sites reserved for public services, general interest facilities and open spaces.
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These will have to include a water treatment pilot study of the area. In order to find the rules governing water treatment, one must go back to Decree No 66.1076 of 31 December 1966 regarding the Urban Planning Code and its regulatory section.
Public water treatment. A number of provisions deal with public water treatment. Heading II regarding housing sites requires, in order to investigate a site, a plan showing the sewerage system, open spaces, parking areas, the water supply system and the drainage of wastewater and refuse. Permission is dependent on carrying out all the work necessary to make the site viable for the removal of wastewaters. This work can be authorized piecemeal. Permission becomes null and void if the work necessary for removing the wastewaters is not carried out. Moreover, there are explicit technical provisions concerning the site and servicing of the terrain. The supply of drinking water and water treatment of all dwelling constructions and of all premises which can be used for work either day or night, along with the removal, purification and discharge of industrial wastewater must be in compliance with water treatment regulations and provisions. Dispensations are possible provided protection against all risks of pollution is provided. As regards industrial and all other kinds of wastewater for purification, such water must not be mixed with rainwater or industrial wastewater that can be discharged, unprocessed, into the natural environment . The removal of industrial wastewater into the public water treatment system can be authorized provided it is properly pre-processed. Individual
water treatment. Numerous provisions deal with individual water treatment. They spell out the technical requirements for owners and occupants of residential buildings.
Regulations governing the coastal area. Local authorities play a minimal role here. The main provisions are contained in Law 64.46 of 17 June 1964 relating to national property which substitutes what is basically a system of customs with a system based on actual occupancy, setting the rules of organization and management. Law No 76.66 of 2 July 1976 and the enforcement decree of 21 May 1981 relating to the Code of the Property of the State draw a dividing line between public and private property. The definition of natu-
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ral public property, amended by the law of 25 December 1985, includes interior waters, the sea shores and a 100 metre zone starting from the upper reach of the strongest tides. The general rule consists of the inviolable principles of inalienability and imprescriptibility. There is also the main urban plan (1967) which is still in force and that of 1980, which still serves as a basis for the competent authorities. Legislative and institutional shortcomings include the following: There is no enforcement decreee for the law of 2 July 1976 relating to the Code of the Property of the State. l There is no enforcement decree for the law of 20 June 1988 relating to the Urban Planning Code. l The principle of priority stemming from the Environment Code and the Code of Properties is not honoured. This Maritime Public Domain (MPD) is given priority in theory, but, in the absence of advance control and proper sanctions, many human establishments and industrial enterprises now have ‘acquired rights’. l The regulation resulting from the Urban Planning Code, the Main Urban Plan and the Properties Code is insufficient. Zoning, the only criterion that has been retained, is insufficient in terms of development, especially regarding the right to build. It would be preferable to be more specific about the permissible types of occupancy and types of construction likely to be established. l Certain MPD zones (Hann, for instance) are not the subject of separate development plans, although their situation is particularly serious. o Permission for MPD occupancy, controls and sanctions is necessary even if the Ministry of the Economy and Finance issues an order conferring on the beneficiary occupancy rights on public property, This order of prerogative is the first stage towards obtaining a building permit. However, since this order does not clearly define the beneficiary’s obligations, it is the Ministry of Urban Planning that ultimately makes the decisions. l The regulations of the 1976 and 1988 laws need to be amended. A definition of public property is wanting and the concept of the maritime public domain (property) needs to integrate the coastal strip and coastline. The principle must be to protect the coast against all kinds of intrusions, save for those exceptions explicitly defined by decree. l In institutional terms, coordination of spatial development is poor. There is no catalysing body for l
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~nv#lvement of local authorities in the ~rotectjon of coastal areas: R Kbaier
l
l
spatial management and the coordination of various development activities - cadastre, water treatment, sewerage, housing sites, programming, etc. The Urban Planning Code is not adapted to a real development strategy. The MPD requires a whole body of directives in terms of specific guiding outlines that can be presented to third parties. The draft law concerning the orientation of decentralization policy has not taken into account the MPD as a specific entity, nor the competenties of the communes, the departments and the regions regarding the development, protection and management of the coastline and coastal areas.
Improving the legitimate involvement local authorities Cl~sification
of
of ~ns~a~laiions
The rapid adoption of enforcement decrees to put headings I and II of the 1983 law into effective operation is necessary, as is improving the content of legislation and/or regulation regarding ‘Installations Classified as Pollutants’. Definition of a classified installation
With a view to covering all sources of industrial pollution, it is proposed to amend the definition of a classified installation as follows: ‘An “Installation Classified as a Pollutant” includes, moreover, any activity, even if temporary, whose effects are likely to undermine the principles defined under article 1 herein [the principles defining environmental interests]’ . ~o~e~cla~ure. A decree or order should be adopted to update the nomenclature as defined in the annex of the 1977 decree, taking into account the new definition proposed above. Coordination with Urban Planning Rules. The terms of Article 69 of law No 88.05, 3 June 1988, relating to the Urban Planning Code, specify that Classified Facilities are subject to permission to build. The Environment Code should be amended as follows: ‘the granting of permission to build is not equivalent to permission under the law of 28th January 1983 (amended), especially as regards Classified Facilities’. Articles 32.4 to 32.6 of Chapter IV of the Draft Decree specifically refer to the law of 28 January 1983 relating to the Environment Code. It stipulates that permission to build is subject to prior permis-
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sion from the Ministers of the Environment and Industry. The application and attendant documents for obtaining building permission must indicate the nature of the facility or class in which it is to be ranked, a description of the materials used, the method and conditions of the disposal, utilization and processing of wastewaters and refuse. Moreover, it must indicate the layout of existing drains, the height of the chimneys, the safety measures against the effects of a possible disaster. Interaction between the ministerial departments and local authorities must be more efficient. The decree for enforcing the 1988 law must be quickly adopted. It takes into account the current gaps in the Urban Planning Law and sets the procedural rules for requesting building permission for ‘Installations Classified as Pollutants’. In addition, and with a view to dispelling any ambiguity, the amended Environment Code must include a clause that ‘permission to open a Classified Installation is not equivalent to permission to build’. This clause particularly applies to the heads of enterprises whose activities do not, initially, necessitate the construction of buildings but who, after permission, want to set up a building in the sense of Article 69 of the Urban Planning Code. Article 77 of the draft Environment Code is interesting in this respect because it stipulates that no exploitation, occupation, construction or installations can be carried out on the seashore or in the Maritime Public Domain without the authorization of the ministers in charge of Urban Planning and Facilities, taken on the advice of the Minister of the Environment. Free access to the MPD must be respected. The application of a building permit must be accompanied by proof of the request for permission to build a classified installation. In compliance with the obligation to produce an impact or hazard study, the application for permission to build must be accompanied by an impact study and, if necessary, a study of the dangers. There should be special clauses in the permission to build to cover particular cases. With regard to the dangerous nature of certain activities or the urban or developmental situation, it will be advisable to adopt special measures. Building permission can be annulled or have special conditions attached to safeguard the environment. Permission
to build. The speedy institution of an inventory of all of Senegal’s industrial fabric would be desirable, and could start with the Dakar Bays zone, accompanied by an evaluation of nonobservances, notably the non-classified facilities.
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of local authorities in the protection of coastal areas: R Kbaier
A joint order issued by the Minister of the Environment and the Minister of Industry should define the scope of an inventory of the facilities industry needs. Making public the findings of the public inquiry and the permission to build order. Current regulations must be enhanced by making public the findings of the public inquiry. This move would be aimed at local authorities (urban and rural communes) and at associations and users of public property. Findings would be made public via the press, national radio and public notices. Impact study. The regulations must be enhanced, by means of orders, by a definition of the impact study’s schedule of conditions. The basic clauses concerning protection of the coastal environment could include the following: the method and conditions of water supply; the precautions planned for the protection of subterranean, river and coastal waters; the purification and disposal of wastewaters; the elimination of refuse and waste; and if necessary, the human and material resources that the applicant can produce, as well as the organization and coordination of initial intervention measures. Prosecution and sanctions. The penalties and administrative sanctions for failing to obtain permission to open a classified installation should be updated. The powers of prosecution should be exercised by sworn agents in accordance with the provisions of the Environment Code. The arbitration of the President of the Republic should be considered. The absence of an updated impact or risks study should be penalized. Technical prescriptions. ‘Standard orders’ should be established by the Ministers of the Environment and Industry to list the drawbacks and problems of the classified installation which poses particular dangers to the environment. Improving legislation andlor regulation of water protection and hygiene in the port zone The following measures the form of orders. l
l
need urgently
to be taken
in
An order setting the conditions under which industrial flow and discharges can be authorized, especially in the Maritime Public Domain. An order setting quality standards, in cooperation
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with the governors (region) and prefects (department) and mayors, regarding the toxicity of the products that are discharged or dumped on the coastal belt and in the sea. Various parameters need to be taken into account, including: the flux of pollution (if possible before purification); a comparison between the flux of pollution and what would be generated by 500 real inhabitants or their equivalent;’ the nature of discharged substances; the acidity of the discharged outflow; the temperature; and the distance of the discharge from bathing or fishing zones and from marine cultures. An order totally prohibiting discharges in fishing zones or marine culture zones (part of the Bay of Hann) in cooperation with the town of Hann. An order regularly controlling bathing waters in cooperation with the local authority and the introduction of quality targets. Reinforcing the legislative and regulatory provisions of the Hygiene Code. There is no enforcement decree attached to this Code. The health of non-industrial fishing and coastal waters should be defined by means of analyses jointly carried out by the Hygiene Service, the Environment Department and the Ministers of Facilities, Transport and the Sea, notably the division of the Department of Oceanography and Maritime Fishing. Complete overhaul of the regulation of the autonomous port of Dakar, in particular the section devoted to the health of port waters, so as to coordinate it with the amended Environment Code. In this regard, and in view of pollution caused by protective paint on the hulls of ships, an order needs to be introduced that will ban some of these particularly noxious paints. Rationalization of laws and regulations: the participation of local authorities Proceeding from the amended Environment Code, which could be implemented by the Environment Department in conjunction with each of the interested parties, it would be desirable to create an ad hoc working group composed of the relevant ministerial departments, under the aegis of the Prime Minister, or the government’s Secretary-General, one of whose tasks is to work, ‘under the authority of the Prime Minister, towards coordinating the
‘The number of real or equivalent inhabitants is generally accepted as a valid parameter. An equivalent inhabitant produces pollution that is equal to 147 grammes per day of nonsoluble or oxydizable matter.
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Involvement of local authorities in the protection of coastal areas: R Kbaier
ministerial departments . . . and initiating, if there is cause, all meetings and necessary arbitrations’. This initiative would be carried out in cooperation with the services of the Presidency of the Republic, in particular the Secretariat General. Added to the concerned ministerial departments should be locally elected representatives. Starting from the amended Draft Environment Code this ad hoc working group could have the following brief: to analyse the most rapid procedure for adopting the law; to prepare jointly the enforcement decrees and to set the most urgent draft orders, such as those concerning the targeted quality of waters; and to analyse institutional dysfunctioning (it is proposed that there would be speedy adoption of an enforcement decree relating to installations classified as sources of pollution, with new arbitration, sought from the President of the Republic, geared to modifying the 1985 law). This proposal finishes by asking the President of the Republic again to entrust ‘global management’ of the Law on Installations Classified as Pollutants to the Minister of the Environment while giving the Minister of Industry the joint prerogative (in conjunction with the Minister of the Environment) to investigate, authorize and close classified facilities. The conventional technical prerogatives of analysing the process should be entrusted to the Ministry of Development, Industry and Agriculture (MDIA). This proposal would re-establish the balance between industrial development and environmental protection. A working subgroup composed of representatives of the two concerned ministries could analyse the feasibility of such a reform. It is further proposed to: remove from interministerial circulation the MDIA’s draft law on classified facilities; to remove from the draft Water Treatment Code the part devoted to classified installations, but to reinforce the draft Environment Code by referring to the complementary competencies of the Minister of Water Treatment; continue a trend towards decentralization by proposing regulations empowering governors, mayors and local elected officials in the regions, departments and communes (the Interior Ministry’s General Directorate of Local Authorities, as well as local elected officials, must play a prime role); provide for an appropriate budget to give certi-
206
fied agents the power to control, prosecute and punish offenders and establish a hierarchy of priorities before investing in installations, equipment and expertise, bearing in mind the country’s economic situation;2 to harmonize the law on classified installations with the rules of occupation and development of the Maritime Public Domain; and create an International Water Commission under the aegis of the Prime Minister and including elected local representatives, its first task will be to coordinate the activities and laws entrusted to various ministerial departments. Water treatment and water protection Within the scope of the ad hoc working group, it would be opportune to invite officials from the Ministry of Rural Development and Hydraulics and from the Ministry of the Environment to coordinate the laws and current projects. The texts of the draft Water Treatment Code and the Environment Code are complementary. It will suffice for the preamble of the draft law relating to the Water Treatment Code to refer expressly to the Environment Code (this also applies to other specific instruments such as water, hygiene and port aspects). Moreover, the preamble should emphasize the respective competencies of the two departments because the Urban Hydraulics and Water Treatment Services can have conflicting competencies in such sectors as hygiene, health and even hydraulics. Decree No 90.333 regarding the distribution of State Services does not strive to be precise. It appears that the remit of the Environment Directorate as defined under the (previously established) order of 30 March 1987 has never been contested. This decree should follow and coordinate the activities of the various services and bodies that are involved in the sphere of the environment. Amendment of Articles I and 2 of the Draft Water Treatment Code. Priority should be given to a clear definition of water treatment: water treatment is aimed at ensuring the disposal of waste and river waters and their discharge into natural outlets under methods compatible with public health requirements. All services of the State or local authorities in charge of the collection, transport or purification of wastewaters constitute a water treatment service.
‘Cost-benefit studies are insufficient. They must be accompanied by a study on the means of control and sanctions.
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Involvement of local authorities in the protection of coastal areas: R Kbaier
The creation of the interministerial water commission mentioned above would, in the field of water treatment, be aimed at the following: to specify, in terms of priority, the rights of each service directorate or bureau involved in the sphere of water treatment, to establish a constant coordination between the commissions at state level as well as with decentralized authorities (urban and rural communes); and to establish water treatment regulation for the Community of Dakar, integrating the Bays, as priority sectors.
development and urban planning law and would be aimed at integration within the Urban Planning Code. These provisions would be applicable to all public or private persons, for the execution of all works. Extractive industries should be limited or prohibited. Permission for temporary acceptance by the public domain can be granted as long as the nature of the works does not cause irreversible harm to the site. An inventory of the occupancy titles of the MPD should be drawn up in the Bays’ zones. Other provisions would include the following: l
any major change in the use of the MPD zones must be previously subjected to public investigation; the delimitation of the shore must be submitted to public investigation; and the undermining of the natural condition of the seashore must be prohibited, particularly as regards dyking and embankment draining, except for public-services-related works.
Coastal authorities. With regard to the fragility of the zones concerned, multilateral development agencies and the State must place the emphasis in coastal communes on setting up equipment for the disposal of the outflows of future constructions as well as of existing installations or activities.
l
Pilot sanitary investigation into the Bay of Hann. This pilot investigation should be undertaken in collaboration with the Urban Community of Dakar and the Commune of Hann. It is necessary in order to determine the impact of pollution on health, notably with regard to infants and children. If such an investigation shows that sanitary conditions cause an increase in the mortality rate or grave harm to the health and development of the population, it will be necessary in the very short term to undertake water treatment and hygiene works with a view to eradicating related diseases and infections.
Definition of the competencies of mayors
Management of the coastal area: proposals With a view to coordinating relevant provisions within the scope of State and urban planning the following legislative additions are proposed. First, the preparation of a draft law (aimed at enhancing the Urban Planning Code) in the Maritime Public Domain in order to equip Senegal with a true instrument of management. The prime objectives of such a law would be: the greatest possible involvement of local authorities; protecting the biological and ecological balance and public health; safeguarding and developing coastal economic activities; and preserving the coastal population and industrial activities and crafts. The general
provisions
would carry the weight of the
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l
The main objective should be harmonization with the communal Administration Code. The State would preserve its prerogatives regarding the MPD but an association with the local authorities (urban and rural communes), would be desirable, particularly for managing the coastal area and the MPD. Rights concerning the MPD must remain within the responsibilities of the State, while the management of certain activities must be conducted jointly between the central administration and local authorities. The draft law could, in this respect, and in harmony with the draft law regarding decentralization, give the communes new powers. The mayor could establish bathing sites and maritime activities controlled up to a fixed limit of 300 to 400 m from the water line. With a view to combating overpopulation of the MPD and bearing in mind the absence of a constraining urban planning document, especially regarding the Bays, the 1988 Law must be strictly applied regarding permission to build. Equally, a guiding outline must be drawn up for the Bays of Dakar. Economics:
charging third parties
Future urban planning zones will be restricted. The viability automatically make it open mayor has the right to impose communities that have dense
delimited by the UDP of a terrain does not to construction. The a tourist tax on coastal tourist populations.
207
Involvement of local authorities in the protection of coastal areas: R Kbaier
The linear development of constructions close to the shore is prohibited. A 100 m coastal band must be observed (in keeping with the definition of the 1986 law). If especially sensitive zones so require, this band can be enlarged, as mentioned in the section on ‘water treatment’; the objective is not to authorize construction until a water treatment system and plan is carried out. In this respect the objectives of the Urban Development Plan for 1993 are not ambitious enough, economic constraints notwithstanding. Outside urban zones, restrictions should include a ban on construction in natural preserved areas (which are important for aquaculture, fishing, the quality of the site and landscape, etc). Port operations should be restricted, especially for sailing harbours and dyking operations. There should be a pedestrian right of passage, along the lines of a ‘customs road’.
Establishment of a 'Conservatoire'
for coastal regions
A ‘Conservatoire’ could have the status of a public establishment and be geared to elaborating the guidelines to preserve the natural landscape of the territories and coastal belt. In striving to protect the natural landscape of the sea, river and lake shores, the Conservatoire could invite local authorities, which in Senegal have very limited powers for evolving their territories, to take part in the spatial management of the MPD. The Conservatoire could present to public groups any suggestion that corresponds with its own mission. It could propose measures to avoid any construction on lands contiguous with the MPD. It could provide guidance to municipal councils in the choices they are often obliged to make between the impoverishment of their own communes and acceptance of buildings and sailing harbour facilities. The protective mission entrusted to the Conservatoire should comply with nationally defined objectives, ie with national territorial development policy and environmental protection. It should work to preserve the shores of seas, rivers and lakes against all kinds of destruction, urbanization and private occupancy. The Conservatoire’s work cannot consist simply of conservation, it must also take into account the government’s economic commitments and not prevent job creation per se. The Conservatoire must take into account the legitimate aspirations of the involved constituencies. It will be important to work
208
together at this level so as to avoid any risk of unnecessary conflict. The Conservatoire could be a hybrid of the French and UK models. It is interesting to see how the two systems differ. Daily management of the UK National Trust is conducted by an administrative staff serving the head office in London and 16 regional offices in England, Wales and Northern Ireland. Its policy is defined by its Administration Council, half of whose 50 members are appointed by such national institutions as the British Museum, the National Gallery, the Ramblers’ Association and the Royal Horticultural Society, and the other half of whom are elected by Trust members at the annual General Assembly. The Council nominates an executive committee which, in turn, appoints members to a certain number of committees of volunteers in London and the regions. These committees include experts in the fields of housing and estate management, architecture, the arts, forests, horticulture, publicity and advertising, and anything that relates to the activities of the Trust. The majority of these men and women are extremely busy outside the Trust and volunteer their services. Hence in contrast to its French counterpart, this foundation envisages the participation of qualified people. It is the Conservatoire’s ambition to be an instrument at the disposal of and managed by the local authorities. Its administrative structure favours cooperation among elected officials. Thus collaboration between it and the authorities is anything but one-way and the latter can nominate representatives who give their advice on planned operations and activities. A true alliance must be formed between them, through the presence of a number of local figures at the heart of the Conservatoire, ie in the Administrative Council and the waterfront councils. Following the example of the UK system, Senegal’s Conservatoire could integrate environmental associations, and the professional organizations of non-industrial fishing interests, tourism and Chambers of Commerce. The French system, meanwhile, gives priority to the integration of local authorities. For Senegal it would be advisable to follow this example in setting up waterfront councils that can be decentralized, and original consultative bodies, distinguished by the fact that they are interregional organisms. This initiative could be placed within the framework of the law on decentralization.
Marine Policy 1994 Volume 18 Number 2
Policy 1994 IS (2) 199-208
Involvement of local authorities in the protection of coastal areas The city of Dakar
Rouchdy Kbaier
As in many developing countries, local authorities in Senegal are not as involved as they should be in the protection and development policies of coastal areas. Nonetheless, there are legislative and statutory supports which give the City and Urban Community of Dakar rights in certain sectors of the environment. However, their impact on global environmental protection policy is marginal. Land-based pollution accounts for 80-90% of the pollution in Senegal, particularly in the Dakar Bays zone. Pollution is generated by industry, household waste, agricultural waste, waste from coastal communities, and waste and refuse (individua1 and public) on the beach. The Bays of Harm, NGOR, and the Commercial Port zone covered by this study are the targets of such waste. Industrial development is increasing the volume of refuse directed at the sea, but the disorganized development of human communities is another source of pollution. The two combined place a heavy strain on the balance and ecosystem of the coast. In the Bay of Hann, various industries food farms, the fish processing industry, the textile, chemical and food industries - pour more than 15 000 cm’ of refuse and liquid waste a day into the coastal zone. These waters contain chemical pollution in the form of mineral and organic matter and toxic chemical products - heavy metals such as lead, mercury, chlorine, arsenic, caustic soda, etc. As well as pollution from industrial activities, pollution is also generDr R. Kbaier is a consultant. He can be contacted at 17 rue Mirabeau, 94300 Vincennes, France. Tel: +33 143 28 10 01. Fax: +33 143 28 21 57.
~308-597~94/02Ot99-IO
@ 1994 3utterworth-~~einemann
Ltd
ated by workshops and car repair shops which discharge machine oil into the gutters and conduits that discharge into the Bay. Household pollution from Dakar’s domestic liquid waste, which is full of pathogenic micro-organisms, is disposed of by canals VI and Via. These canals, meant for collecting rainwater from the Rufisque road, the Northern industrial zone, and areas between the highway and the Avenue de la Liberte (which begins in the Grand Dakar district), carry househoId liquid waste, refuse, discharges from the technicat services of the Societe Nationale d’Exploitation des Eaux du Senegal (SONEES), and the national laboratory for livestock breeding and veterinary research. All this unprocessed waste is poured into the Bay of Hann. Finally, waste emanates from coastal communities such as the village of Hann and the village of Ngor. In view of the industrial, food-farm and port activities, this paper takes a closer look at the commercial port because - like the Bay of Hann - it necessitates an individual particular approach. Numerous sources of land-based pollution pose a daily danger to the health and cleanliness of the port zone. One source of pollution, for instance, is the BP depot, which empties heavy oil waste from the lock chambers directly into a gutter that connects with the port’s water system. Another source of pollution stems from wastewater piping from town which passes by the soap factories on the Rufisque road. Yet another example is the fact that the ‘Wharf’ oil pipeworks for the disposal of rainwater are blocked, retaining heavy oils under the feeder pipes. At high tide, the mixture enters the water system, creating pollution. 199
Involvement of local authorities in the protection of coastal areas: R Kbaier
Positive law and its shortcomings Analysis of Senegal’s legal two major shortcomings:
instruments
highlights
(1) deficiencies
in three important areas of intervention concerning environmental protection: water protection and the management of installations classified as pollutants, water treatment, management and development of the coastal area; (2) a deficiency in the competencies of local authorities in these areas.
Competencies of local authorities In the Cap Vert region, these problems of developing and protecting the coastal zone are of concern to three local authorities: the commune of Dakar; the commune of Pikine; and the Urban Community of Dakar (UKD), created under the 18 February 1983 law on the administrative reorganization of the Cap Vert Region. Comp&encies of the UCD include: construction and maintenance of the sewerage system; street cleaning and sweeping; collection and destruction of household rubbish; management of municipal technical services; management of cemeteries; and liquidation of the former Dakar Commune’s debts. The UCD can also place its technical services at the disposal of authorities which so request and conclude any agreement with interested authorities on one or more projects within their respective competencies. The actions the UCD takes in the sphere of water treatment are not explicitly envisaged. The government felt that the costs of exercising these competencies would be too much of a burden on the finances of a local authority, but the UCD was prompted to intervene, partly because of the State’s own abstention, and partly because the exercise of technically related competencies (the construction and maintenance of the sewerage system, street cleaning and sweeping) compelled it to do so. Given its good relations with the UCD, within the limits of its budgetary possibilities, the SONEES has always strived to realize the urgent projects brought to its attention by the UCD. The UCD and its technical services intervene in numerous spheres that overstep the framework of its competencies and for which it does not have the corresponding resources. The UCD thus substitutes for the state, the SONEES and the communes, in performing the tasks that its partners pass on to it.
200
Hence, in the sphere of water treatment, there is an obvious need to clarify the prerogatives, and to allocate financial resources equitably. In the area of water treatment, the SONEES is a simple provider of services.
Installations Classified as Pollutants Industrial waste, a major source of pollution in the Bays of Dakar, is the subject of separate legislation. Law No 83.05, of 28 January 1983 concerning the Environment Code, is important because it constitutes the foundation of Senegal’s Positive Law. It is worth noting that for a long time (not just before independence but until as late as 1983) French Law constituted the source of law. Classified facilities were registered under the 1917 French law, the basis for Decree No 61355 /MTPHU/MIG of 21 September 1961, which set the inspection fees and control of classified facilities, and for Decree No 62.297 of 27 July 1962 concerning the regulation of classified facilities. Senegal’s legislation of 1983 was intended to update this law, the aim of which is to draw up a classification of dangerous, unhealthy or impracticable facilities so as to overcome drawbacks by elaborating different classifications and subjecting them to a system of authorization or declaration.
Definition.
The first heading of the 1983 law concerning the Environment Code deals specifically with facilities classified as sources of pollutants: factories, workshops, depots, building sites and, generally, installations used or kept by any physical or moral, public or private entity, which presents or can present a hazard to health, safety and public sanitation, agriculture and the environment at large, or risks to neighbourhood comforts (Article 1). Facilities are divided into two classes, depending on the dangers or gravity of the hazards that their use could present. Any facility that includes at least one classified installation is subject to the provision of the law.
Authorization.
The authorization procedure depends on the class to which the facility belongs. Facilities in class 1 are subject to authorization but must meet the conditions connected with preventive measures against pollution hazards. This authorization can take into account the facility’s exogenous conditions: its distance from dwellings, the occupancy of buildings by third parties, its distance from a watercourse, from the sea, from a communication route, from water collection or from zones designated as living areas. Authorization to open a facility ranked under
Marine Policy 1994 Volume 18 Number 2
Involvement
classes 1 or 2 is given by the minister in charge of the environment and the minister in charge of industry. This permission must be obtained prior to any construction or use of a building. Any request for permission must be accompanied by a formal declaration of the substance, quantity and toxicity of the facility’s waste matter and the processing or elimination method envisaged. For class 1 facilities, a ‘commode’ and ‘incommodo’ investigation must accompany the application. This investigation derives its legal basis from a joint order by the Ministers of the Environment and of Industry. The authorization order envisages the terms of installation and use deemed to be indispensable for protecting the interests mentioned under article 1. Certain categories of facilities are subject to special technical rules. For class 2 facilities, the general prescriptions are stipulated in the form of orders. With regard to the risks deemed to be posed by Class 2 facilities, the Ministers of the Environment and of Industry shall, if necessary, adapt the orders to each given activity. Inspection and control. Classified facilities are inspected by certified personnel sworn to professional secrecy. In the event that classified facilities should no longer meet the objectives of environmental protection, the Minister of the Environment, after consulting the Minister of Industry, can issue an order to shut down such facilities temporarily. Moreover, and this is very important, there are many companies which opened near the bays prior to the introduction of the present law’s provisions, and which, before these clauses came into effect, were not subject to implementation of the law or decrees relating to dangerous, unhealthy or hazardous facilities. Yet, they continue to operate. In addition to the specific rules for classified facilities, there are also those relating to water pollution under heading II of the 28 January 1983 law. These provisions strengthen the management and control of classified facilities and punishment of offenders. Here again the 1983 law constitutes the underlying foundation of Senegal’s positive law. Heading II has a very broad field of application. The following are subject to the provisions of the present law: outpourings, outflows, discharges, direct or indirect deposits of all kinds, and, more generally speaking, anything capable of provoking or increasing the degradation of waters by altering their physical, chemical or bacteriological properties, be they surface waters, subterranean waters or seawater within the territorial limits of the sea.
Marine Policy 1994 Volume
18 Number
2
of local authorities
in the protection
of coastal areas: R Kbaier
However, legislative provisions cannot be truly operational without an enforcement decree, which has yet to be adopted. These provisions envisage (Article 34) that such a decree will determine the conditions under which one can regulate or prohibit outpourings, outflows, discharges, direct or indirect deposits of water or generally of anything capable of altering the quality of the water, especially that of the sea within the territorial limits. Furthermore, the terms of sale and distribution of certain products capable of leading to waste must be the subject of special regulation. In addition, controls are envisaged for the physical, chemical, biological and bacteriological parameters of the receiving waters and the outflows. Provisions regarding punitive sanctions (eg Article 36) are of two types. If the offender does not comply with the administration’s injunctions (for the realization of work or development) he is liable to a fine of from FCAlOO 000 to 1 500 000, with the possibility of daily penalties. With regard to the Civil Liability Law, the heads, directors or managers of enterprises can be declared jointly liable for payment of the offender’s fines and legal fees. Controlling the observance of provisions regarding the qualitative protection of waters is the job of certified agents or officers of the law. Statements made by these agents constitute irrefutable evidence. Other specific provisions of Senegal’s Positive Law include the law of 5 July 1983 concerning the Hygiene Code. Under Section 4, ‘water samples and analysis’, Article L 14 stipulates that ‘Surface waters from different watercourses (lakes, rivers, streams) used for domestic purposes are equally subject to protection against all, especially industrial pollution. They also constitute the subject of samples and periodic analysis with a view to forestalling any risk of contamination or poisoning for the population’. Article L XV extends its obligations (to public swimming pools) and to beaches. These two articles are of interest to the bays of Dakar, in terms of both industrial waste and direct waste into marine waters, and with regard to setting up facilities within the vicinity of waters. Finally, Chapter V specifically deals with hygiene rules for beaches, making it an offence to leave any object on the beach that might alter the cleanliness of the area. Heading II covers ‘the sanitation police’ and empowers agents of the national sanitation service, who are certified and competent to control, study and report violations of sanitary law. Their statements do not carry the weight of irrefutable
201
Involvement of local authorities in the protection of coastal areas: R Kbaier
evidence. Fines are minor for sanitation violations, ranging from CFAl 800 to CFA3 000. This law was not followed up by an enforcement decree. Law No 93 of 3 March 1981, relating to the Water Code, applies to non-maritime waters and hydraulic works. Although this paper concerns maritime waters, these provisions govern the interaction between the maritime domain and the watercourses, river and conduits into which enterprises discharge their wastewater. This law is mainly entrusted to the Ministry of Rural Development and Hydraulics. Heading II, relating to the qualitative protection of waters, is virtually identical to heading II of the 1983 law on the environment code. Thus, Section I deals with provisions concerning discharges, waste, deposits of matter whose effects can alter the quality of surface and subterranean waters. Section II defines the norms to be observed with regard to their usage. Sections III and IV dwell on things that can pollute the water and on administrative ways of combating pollution. The regulation for operating the Autonomous Port of Dakar stems from Decree No 65642, approving and rendering enforceable, among other things, provisions on controlling conservation, health and circulation in the port zone. Regulations
regarding
water treatment
As with the overall management of classified facilities, in Senegal water treatment is not governed by a law or special regulation. There is no law relating to water treatment. On the other hand, a draft law regarding the Water Treatment Code is currently under discussion. Here the role of local authorities is marginal. The 1983 law concerning the Environment Code and the draft law are currently under discussion. These contain general provisions which affect water treatment. The Ministers of the Environment can issue orders introducing special protection zones responding to observed pollution levels. The draft law regarding the Environment Code is more explicit and envisages precise water treatment measures. Chapter II under heading II of the draft covers human establishments. The definition is very broad since human establishments constitute urban and rural areas, whatever their type and size, and the infrastructure they must have in order to ensure their inhabitants a healthy and decent life. The link with urban plans is explicit. These plans must take into account the imperatives of environmental protection regarding the choice, establishment and realization of commercial, residential and recreational zones.
202
Article 67 of the draft stipulates the level of discharged wastewater permitted. The unloading of wastewater into the public water treatment system must not undermine the conservation of the works or the management of these networks. It is incumbent upon the system’s authorities to oversee the condition of the works. Within this context, the draft provides for the Minister of the Environment, in cooperation with the Ministers of Hydraulics and Health, to issue orders listing the substances that are capable of altering the environment and that need to be prohibited, or have received prior permission from the authorities in charge of water treatment and the environment. Enforcement decrees determine the conditions under which one can regulate or prohibit outpourings, the sale of certain products capable of altering the quality of the environment, and the scientific controls necessary for analysing the recipient waters. Law No 83.71 of 5 July 1971 concerns the Hygiene Code and includes specific regulations concerning water treatment. The code stipulates that liquid waste is to be eliminated by water treatment systems. It prohibits mixing faeces or urine with household rubbish, connecting sewers onto rainwater collectors, installations in non-standard urinals or latrines. It is prohibited to throw wastewater or to deposit urine or excrement on public roads. Law No 81.13 of 3 March 1981 concerns the Water Code. Heading II of the code is identical to heading II of the 1983 law relating to the Environment Code. It deals with the dumping, outflow, discharge, and direct deposit of all kinds of substances and, generally, with all matter capable of incurring or increasing the degradation of waters by altering their properties, be they surface or subterranean waters. Authorization comes from the Minister of Hydraulics. Law No 88.05 of 20 June 1988 concerns the Urban Planning Code. Articles 69 et seq, relating to building permissions, stem from a directive based on ‘valid legislative and regulatory provisions concerning security, health, hygiene and the environment’, but they are too general. Moreover, there is a draft Water Treatment Code (examined below). Article 13 states that, with regard to the discharge of home-generated outflows, the type, capacity, establishment and layout of a wastewater disposal system must meet the standards set by the minister in charge of water treatment and the other norms of the Urban Planning Code. Article lib of the code stipulates that detailed urban plans determine the sites reserved for public services, general interest facilities and open spaces.
Marine Policy 1994 Volume 18 Number 2
These will have to include a water treatment pilot study of the area. In order to find the rules governing water treatment, one must go back to Decree No 66.1076 of 31 December 1966 regarding the Urban Planning Code and its regulatory section.
Public water treatment. A number of provisions deal with public water treatment. Heading II regarding housing sites requires, in order to investigate a site, a plan showing the sewerage system, open spaces, parking areas, the water supply system and the drainage of wastewater and refuse. Permission is dependent on carrying out all the work necessary to make the site viable for the removal of wastewaters. This work can be authorized piecemeal. Permission becomes null and void if the work necessary for removing the wastewaters is not carried out. Moreover, there are explicit technical provisions concerning the site and servicing of the terrain. The supply of drinking water and water treatment of all dwelling constructions and of all premises which can be used for work either day or night, along with the removal, purification and discharge of industrial wastewater must be in compliance with water treatment regulations and provisions. Dispensations are possible provided protection against all risks of pollution is provided. As regards industrial and all other kinds of wastewater for purification, such water must not be mixed with rainwater or industrial wastewater that can be discharged, unprocessed, into the natural environment . The removal of industrial wastewater into the public water treatment system can be authorized provided it is properly pre-processed. Individual
water treatment. Numerous provisions deal with individual water treatment. They spell out the technical requirements for owners and occupants of residential buildings.
Regulations governing the coastal area. Local authorities play a minimal role here. The main provisions are contained in Law 64.46 of 17 June 1964 relating to national property which substitutes what is basically a system of customs with a system based on actual occupancy, setting the rules of organization and management. Law No 76.66 of 2 July 1976 and the enforcement decree of 21 May 1981 relating to the Code of the Property of the State draw a dividing line between public and private property. The definition of natu-
Marine Policy 1994 Volume 18 Number 2
ral public property, amended by the law of 25 December 1985, includes interior waters, the sea shores and a 100 metre zone starting from the upper reach of the strongest tides. The general rule consists of the inviolable principles of inalienability and imprescriptibility. There is also the main urban plan (1967) which is still in force and that of 1980, which still serves as a basis for the competent authorities. Legislative and institutional shortcomings include the following: There is no enforcement decreee for the law of 2 July 1976 relating to the Code of the Property of the State. l There is no enforcement decree for the law of 20 June 1988 relating to the Urban Planning Code. l The principle of priority stemming from the Environment Code and the Code of Properties is not honoured. This Maritime Public Domain (MPD) is given priority in theory, but, in the absence of advance control and proper sanctions, many human establishments and industrial enterprises now have ‘acquired rights’. l The regulation resulting from the Urban Planning Code, the Main Urban Plan and the Properties Code is insufficient. Zoning, the only criterion that has been retained, is insufficient in terms of development, especially regarding the right to build. It would be preferable to be more specific about the permissible types of occupancy and types of construction likely to be established. l Certain MPD zones (Hann, for instance) are not the subject of separate development plans, although their situation is particularly serious. o Permission for MPD occupancy, controls and sanctions is necessary even if the Ministry of the Economy and Finance issues an order conferring on the beneficiary occupancy rights on public property, This order of prerogative is the first stage towards obtaining a building permit. However, since this order does not clearly define the beneficiary’s obligations, it is the Ministry of Urban Planning that ultimately makes the decisions. l The regulations of the 1976 and 1988 laws need to be amended. A definition of public property is wanting and the concept of the maritime public domain (property) needs to integrate the coastal strip and coastline. The principle must be to protect the coast against all kinds of intrusions, save for those exceptions explicitly defined by decree. l In institutional terms, coordination of spatial development is poor. There is no catalysing body for l
203
~nv#lvement of local authorities in the ~rotectjon of coastal areas: R Kbaier
l
l
spatial management and the coordination of various development activities - cadastre, water treatment, sewerage, housing sites, programming, etc. The Urban Planning Code is not adapted to a real development strategy. The MPD requires a whole body of directives in terms of specific guiding outlines that can be presented to third parties. The draft law concerning the orientation of decentralization policy has not taken into account the MPD as a specific entity, nor the competenties of the communes, the departments and the regions regarding the development, protection and management of the coastline and coastal areas.
Improving the legitimate involvement local authorities Cl~sification
of
of ~ns~a~laiions
The rapid adoption of enforcement decrees to put headings I and II of the 1983 law into effective operation is necessary, as is improving the content of legislation and/or regulation regarding ‘Installations Classified as Pollutants’. Definition of a classified installation
With a view to covering all sources of industrial pollution, it is proposed to amend the definition of a classified installation as follows: ‘An “Installation Classified as a Pollutant” includes, moreover, any activity, even if temporary, whose effects are likely to undermine the principles defined under article 1 herein [the principles defining environmental interests]’ . ~o~e~cla~ure. A decree or order should be adopted to update the nomenclature as defined in the annex of the 1977 decree, taking into account the new definition proposed above. Coordination with Urban Planning Rules. The terms of Article 69 of law No 88.05, 3 June 1988, relating to the Urban Planning Code, specify that Classified Facilities are subject to permission to build. The Environment Code should be amended as follows: ‘the granting of permission to build is not equivalent to permission under the law of 28th January 1983 (amended), especially as regards Classified Facilities’. Articles 32.4 to 32.6 of Chapter IV of the Draft Decree specifically refer to the law of 28 January 1983 relating to the Environment Code. It stipulates that permission to build is subject to prior permis-
204
sion from the Ministers of the Environment and Industry. The application and attendant documents for obtaining building permission must indicate the nature of the facility or class in which it is to be ranked, a description of the materials used, the method and conditions of the disposal, utilization and processing of wastewaters and refuse. Moreover, it must indicate the layout of existing drains, the height of the chimneys, the safety measures against the effects of a possible disaster. Interaction between the ministerial departments and local authorities must be more efficient. The decree for enforcing the 1988 law must be quickly adopted. It takes into account the current gaps in the Urban Planning Law and sets the procedural rules for requesting building permission for ‘Installations Classified as Pollutants’. In addition, and with a view to dispelling any ambiguity, the amended Environment Code must include a clause that ‘permission to open a Classified Installation is not equivalent to permission to build’. This clause particularly applies to the heads of enterprises whose activities do not, initially, necessitate the construction of buildings but who, after permission, want to set up a building in the sense of Article 69 of the Urban Planning Code. Article 77 of the draft Environment Code is interesting in this respect because it stipulates that no exploitation, occupation, construction or installations can be carried out on the seashore or in the Maritime Public Domain without the authorization of the ministers in charge of Urban Planning and Facilities, taken on the advice of the Minister of the Environment. Free access to the MPD must be respected. The application of a building permit must be accompanied by proof of the request for permission to build a classified installation. In compliance with the obligation to produce an impact or hazard study, the application for permission to build must be accompanied by an impact study and, if necessary, a study of the dangers. There should be special clauses in the permission to build to cover particular cases. With regard to the dangerous nature of certain activities or the urban or developmental situation, it will be advisable to adopt special measures. Building permission can be annulled or have special conditions attached to safeguard the environment. Permission
to build. The speedy institution of an inventory of all of Senegal’s industrial fabric would be desirable, and could start with the Dakar Bays zone, accompanied by an evaluation of nonobservances, notably the non-classified facilities.
Marine Policy 1994 Volume 18 Number 2
of local authorities in the protection of coastal areas: R Kbaier
A joint order issued by the Minister of the Environment and the Minister of Industry should define the scope of an inventory of the facilities industry needs. Making public the findings of the public inquiry and the permission to build order. Current regulations must be enhanced by making public the findings of the public inquiry. This move would be aimed at local authorities (urban and rural communes) and at associations and users of public property. Findings would be made public via the press, national radio and public notices. Impact study. The regulations must be enhanced, by means of orders, by a definition of the impact study’s schedule of conditions. The basic clauses concerning protection of the coastal environment could include the following: the method and conditions of water supply; the precautions planned for the protection of subterranean, river and coastal waters; the purification and disposal of wastewaters; the elimination of refuse and waste; and if necessary, the human and material resources that the applicant can produce, as well as the organization and coordination of initial intervention measures. Prosecution and sanctions. The penalties and administrative sanctions for failing to obtain permission to open a classified installation should be updated. The powers of prosecution should be exercised by sworn agents in accordance with the provisions of the Environment Code. The arbitration of the President of the Republic should be considered. The absence of an updated impact or risks study should be penalized. Technical prescriptions. ‘Standard orders’ should be established by the Ministers of the Environment and Industry to list the drawbacks and problems of the classified installation which poses particular dangers to the environment. Improving legislation andlor regulation of water protection and hygiene in the port zone The following measures the form of orders. l
l
need urgently
to be taken
in
An order setting the conditions under which industrial flow and discharges can be authorized, especially in the Maritime Public Domain. An order setting quality standards, in cooperation
Marine Policy 1994 Volume 18 Number 2
with the governors (region) and prefects (department) and mayors, regarding the toxicity of the products that are discharged or dumped on the coastal belt and in the sea. Various parameters need to be taken into account, including: the flux of pollution (if possible before purification); a comparison between the flux of pollution and what would be generated by 500 real inhabitants or their equivalent;’ the nature of discharged substances; the acidity of the discharged outflow; the temperature; and the distance of the discharge from bathing or fishing zones and from marine cultures. An order totally prohibiting discharges in fishing zones or marine culture zones (part of the Bay of Hann) in cooperation with the town of Hann. An order regularly controlling bathing waters in cooperation with the local authority and the introduction of quality targets. Reinforcing the legislative and regulatory provisions of the Hygiene Code. There is no enforcement decree attached to this Code. The health of non-industrial fishing and coastal waters should be defined by means of analyses jointly carried out by the Hygiene Service, the Environment Department and the Ministers of Facilities, Transport and the Sea, notably the division of the Department of Oceanography and Maritime Fishing. Complete overhaul of the regulation of the autonomous port of Dakar, in particular the section devoted to the health of port waters, so as to coordinate it with the amended Environment Code. In this regard, and in view of pollution caused by protective paint on the hulls of ships, an order needs to be introduced that will ban some of these particularly noxious paints. Rationalization of laws and regulations: the participation of local authorities Proceeding from the amended Environment Code, which could be implemented by the Environment Department in conjunction with each of the interested parties, it would be desirable to create an ad hoc working group composed of the relevant ministerial departments, under the aegis of the Prime Minister, or the government’s Secretary-General, one of whose tasks is to work, ‘under the authority of the Prime Minister, towards coordinating the
‘The number of real or equivalent inhabitants is generally accepted as a valid parameter. An equivalent inhabitant produces pollution that is equal to 147 grammes per day of nonsoluble or oxydizable matter.
205
Involvement of local authorities in the protection of coastal areas: R Kbaier
ministerial departments . . . and initiating, if there is cause, all meetings and necessary arbitrations’. This initiative would be carried out in cooperation with the services of the Presidency of the Republic, in particular the Secretariat General. Added to the concerned ministerial departments should be locally elected representatives. Starting from the amended Draft Environment Code this ad hoc working group could have the following brief: to analyse the most rapid procedure for adopting the law; to prepare jointly the enforcement decrees and to set the most urgent draft orders, such as those concerning the targeted quality of waters; and to analyse institutional dysfunctioning (it is proposed that there would be speedy adoption of an enforcement decree relating to installations classified as sources of pollution, with new arbitration, sought from the President of the Republic, geared to modifying the 1985 law). This proposal finishes by asking the President of the Republic again to entrust ‘global management’ of the Law on Installations Classified as Pollutants to the Minister of the Environment while giving the Minister of Industry the joint prerogative (in conjunction with the Minister of the Environment) to investigate, authorize and close classified facilities. The conventional technical prerogatives of analysing the process should be entrusted to the Ministry of Development, Industry and Agriculture (MDIA). This proposal would re-establish the balance between industrial development and environmental protection. A working subgroup composed of representatives of the two concerned ministries could analyse the feasibility of such a reform. It is further proposed to: remove from interministerial circulation the MDIA’s draft law on classified facilities; to remove from the draft Water Treatment Code the part devoted to classified installations, but to reinforce the draft Environment Code by referring to the complementary competencies of the Minister of Water Treatment; continue a trend towards decentralization by proposing regulations empowering governors, mayors and local elected officials in the regions, departments and communes (the Interior Ministry’s General Directorate of Local Authorities, as well as local elected officials, must play a prime role); provide for an appropriate budget to give certi-
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fied agents the power to control, prosecute and punish offenders and establish a hierarchy of priorities before investing in installations, equipment and expertise, bearing in mind the country’s economic situation;2 to harmonize the law on classified installations with the rules of occupation and development of the Maritime Public Domain; and create an International Water Commission under the aegis of the Prime Minister and including elected local representatives, its first task will be to coordinate the activities and laws entrusted to various ministerial departments. Water treatment and water protection Within the scope of the ad hoc working group, it would be opportune to invite officials from the Ministry of Rural Development and Hydraulics and from the Ministry of the Environment to coordinate the laws and current projects. The texts of the draft Water Treatment Code and the Environment Code are complementary. It will suffice for the preamble of the draft law relating to the Water Treatment Code to refer expressly to the Environment Code (this also applies to other specific instruments such as water, hygiene and port aspects). Moreover, the preamble should emphasize the respective competencies of the two departments because the Urban Hydraulics and Water Treatment Services can have conflicting competencies in such sectors as hygiene, health and even hydraulics. Decree No 90.333 regarding the distribution of State Services does not strive to be precise. It appears that the remit of the Environment Directorate as defined under the (previously established) order of 30 March 1987 has never been contested. This decree should follow and coordinate the activities of the various services and bodies that are involved in the sphere of the environment. Amendment of Articles I and 2 of the Draft Water Treatment Code. Priority should be given to a clear definition of water treatment: water treatment is aimed at ensuring the disposal of waste and river waters and their discharge into natural outlets under methods compatible with public health requirements. All services of the State or local authorities in charge of the collection, transport or purification of wastewaters constitute a water treatment service.
‘Cost-benefit studies are insufficient. They must be accompanied by a study on the means of control and sanctions.
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Involvement of local authorities in the protection of coastal areas: R Kbaier
The creation of the interministerial water commission mentioned above would, in the field of water treatment, be aimed at the following: to specify, in terms of priority, the rights of each service directorate or bureau involved in the sphere of water treatment, to establish a constant coordination between the commissions at state level as well as with decentralized authorities (urban and rural communes); and to establish water treatment regulation for the Community of Dakar, integrating the Bays, as priority sectors.
development and urban planning law and would be aimed at integration within the Urban Planning Code. These provisions would be applicable to all public or private persons, for the execution of all works. Extractive industries should be limited or prohibited. Permission for temporary acceptance by the public domain can be granted as long as the nature of the works does not cause irreversible harm to the site. An inventory of the occupancy titles of the MPD should be drawn up in the Bays’ zones. Other provisions would include the following: l
any major change in the use of the MPD zones must be previously subjected to public investigation; the delimitation of the shore must be submitted to public investigation; and the undermining of the natural condition of the seashore must be prohibited, particularly as regards dyking and embankment draining, except for public-services-related works.
Coastal authorities. With regard to the fragility of the zones concerned, multilateral development agencies and the State must place the emphasis in coastal communes on setting up equipment for the disposal of the outflows of future constructions as well as of existing installations or activities.
l
Pilot sanitary investigation into the Bay of Hann. This pilot investigation should be undertaken in collaboration with the Urban Community of Dakar and the Commune of Hann. It is necessary in order to determine the impact of pollution on health, notably with regard to infants and children. If such an investigation shows that sanitary conditions cause an increase in the mortality rate or grave harm to the health and development of the population, it will be necessary in the very short term to undertake water treatment and hygiene works with a view to eradicating related diseases and infections.
Definition of the competencies of mayors
Management of the coastal area: proposals With a view to coordinating relevant provisions within the scope of State and urban planning the following legislative additions are proposed. First, the preparation of a draft law (aimed at enhancing the Urban Planning Code) in the Maritime Public Domain in order to equip Senegal with a true instrument of management. The prime objectives of such a law would be: the greatest possible involvement of local authorities; protecting the biological and ecological balance and public health; safeguarding and developing coastal economic activities; and preserving the coastal population and industrial activities and crafts. The general
provisions
would carry the weight of the
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l
The main objective should be harmonization with the communal Administration Code. The State would preserve its prerogatives regarding the MPD but an association with the local authorities (urban and rural communes), would be desirable, particularly for managing the coastal area and the MPD. Rights concerning the MPD must remain within the responsibilities of the State, while the management of certain activities must be conducted jointly between the central administration and local authorities. The draft law could, in this respect, and in harmony with the draft law regarding decentralization, give the communes new powers. The mayor could establish bathing sites and maritime activities controlled up to a fixed limit of 300 to 400 m from the water line. With a view to combating overpopulation of the MPD and bearing in mind the absence of a constraining urban planning document, especially regarding the Bays, the 1988 Law must be strictly applied regarding permission to build. Equally, a guiding outline must be drawn up for the Bays of Dakar. Economics:
charging third parties
Future urban planning zones will be restricted. The viability automatically make it open mayor has the right to impose communities that have dense
delimited by the UDP of a terrain does not to construction. The a tourist tax on coastal tourist populations.
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Involvement of local authorities in the protection of coastal areas: R Kbaier
The linear development of constructions close to the shore is prohibited. A 100 m coastal band must be observed (in keeping with the definition of the 1986 law). If especially sensitive zones so require, this band can be enlarged, as mentioned in the section on ‘water treatment’; the objective is not to authorize construction until a water treatment system and plan is carried out. In this respect the objectives of the Urban Development Plan for 1993 are not ambitious enough, economic constraints notwithstanding. Outside urban zones, restrictions should include a ban on construction in natural preserved areas (which are important for aquaculture, fishing, the quality of the site and landscape, etc). Port operations should be restricted, especially for sailing harbours and dyking operations. There should be a pedestrian right of passage, along the lines of a ‘customs road’.
Establishment of a 'Conservatoire'
for coastal regions
A ‘Conservatoire’ could have the status of a public establishment and be geared to elaborating the guidelines to preserve the natural landscape of the territories and coastal belt. In striving to protect the natural landscape of the sea, river and lake shores, the Conservatoire could invite local authorities, which in Senegal have very limited powers for evolving their territories, to take part in the spatial management of the MPD. The Conservatoire could present to public groups any suggestion that corresponds with its own mission. It could propose measures to avoid any construction on lands contiguous with the MPD. It could provide guidance to municipal councils in the choices they are often obliged to make between the impoverishment of their own communes and acceptance of buildings and sailing harbour facilities. The protective mission entrusted to the Conservatoire should comply with nationally defined objectives, ie with national territorial development policy and environmental protection. It should work to preserve the shores of seas, rivers and lakes against all kinds of destruction, urbanization and private occupancy. The Conservatoire’s work cannot consist simply of conservation, it must also take into account the government’s economic commitments and not prevent job creation per se. The Conservatoire must take into account the legitimate aspirations of the involved constituencies. It will be important to work
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together at this level so as to avoid any risk of unnecessary conflict. The Conservatoire could be a hybrid of the French and UK models. It is interesting to see how the two systems differ. Daily management of the UK National Trust is conducted by an administrative staff serving the head office in London and 16 regional offices in England, Wales and Northern Ireland. Its policy is defined by its Administration Council, half of whose 50 members are appointed by such national institutions as the British Museum, the National Gallery, the Ramblers’ Association and the Royal Horticultural Society, and the other half of whom are elected by Trust members at the annual General Assembly. The Council nominates an executive committee which, in turn, appoints members to a certain number of committees of volunteers in London and the regions. These committees include experts in the fields of housing and estate management, architecture, the arts, forests, horticulture, publicity and advertising, and anything that relates to the activities of the Trust. The majority of these men and women are extremely busy outside the Trust and volunteer their services. Hence in contrast to its French counterpart, this foundation envisages the participation of qualified people. It is the Conservatoire’s ambition to be an instrument at the disposal of and managed by the local authorities. Its administrative structure favours cooperation among elected officials. Thus collaboration between it and the authorities is anything but one-way and the latter can nominate representatives who give their advice on planned operations and activities. A true alliance must be formed between them, through the presence of a number of local figures at the heart of the Conservatoire, ie in the Administrative Council and the waterfront councils. Following the example of the UK system, Senegal’s Conservatoire could integrate environmental associations, and the professional organizations of non-industrial fishing interests, tourism and Chambers of Commerce. The French system, meanwhile, gives priority to the integration of local authorities. For Senegal it would be advisable to follow this example in setting up waterfront councils that can be decentralized, and original consultative bodies, distinguished by the fact that they are interregional organisms. This initiative could be placed within the framework of the law on decentralization.
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