Nghị định 149/2004/ND-CP

DECREE

ON THE ISSUANCE OF PERMITS FOR WATER RESOURCE EXPLORATION, EXPLOITATION AND USE, OR FOR DISCHARGE OF WASTEWATER INTO WATER SOURCE

THE GOVERNMENT

Pursuant to Resolution No. 02/2002/QH 11 of August 5, 2002 of the XI
Th National Assembly of the Socialist Republic of Vietnam at its 1
St session, prescribing the list of the ministries and ministerial - level agencies under the Government.
Pursuant to the May20, 1998 Law on Water Resource.
Pursuant to the Government's Decree No. 91/2002/ND-CP of November 11, 2002
defining the functions, tasks, powers and organizational structure of the Ministry of Natural Resourcesand Environment.

Chapter I

GENERAL PROVISIONS

Article 1 - Scope of regulation

This Decree provides for the issuance, extension, change, invalidation and withdrawal of permits for water resource exploration, exploitation and use, or discharge of wastewater into water source.

Article 2 - Objects of application

This Decree applies to all domestic and foreign organizations and individuals

(< p="">

< p="">In cases where an international agreement which the Socialist Republic of Vietnam has signed or acceded to contains provisions different from those of this Decree, the provisions of such international agreement shall apply.

Article 3 - Permits for water resource exploration, exploitation and use, or discharge of wastewater into water source.

Permits for water resource exploration, exploitation and sure, or discharge of

< p="">< p="">Article 4 - Permit - issuance principles

The issuance of permits for water resource exploration, exploitation and use, or

< p="">1. To issue permits according to the right competence, to the right subjects and in strict compliance with the law - prescribed order and procedures.

2. To ensure the State's interests; the legitimate rights and interests of concerned

< p="">3. To prioritize the issuance of permits for water resource exploration, exploitation and use in service of daily - life water supply.

4. Not to exhaust or pollute water sources when exploring, exploiting or using water resources, or discharging wastewater into water source.

5. To exploit underground water in an area not in exploitable water reserve; when

< p="">< p="">< p="">Article 5 - Permit - issuance ground

1. The issuance of permits for water resource exploration, exploitation and use, or for discharge of wastewater into water sources must be based on the following grounds:

a. The Law on Water Resource and relevant legal documents.

b. The national, branch, regions and local socio - economic development strategies.

c. The river - basis planning already approved by competent State agencies under law provisions; in cases where such plannings are not yet available, the permit issuance shall be based on the potentials of water source and must ensure that water source shall not be exhausted or polluted.

d. The competent State agencies' reports on the evaluation dossiers of application for permits for water resource exploration, exploitation and use, or discharge of

< p="">2. Apart from the ground defined in Clause 1 of this Article, the issuance of permits for discharge of wastewater into water sources must also be based on:

a. The wastewater standards; in cases where such standards are not yet available, the guidance of the Ministry of Natural Resource and Environment shall apply.

b. The water sources' capability of accommodating wastewater.

c. The sanitation - protection zone for the water - exploitation area, as defined by the competent State agency.

Chapter II

ISSUANCE, EXTENSION, CHANGE, INVALIDATION AND WITHDRAWAL OF PERMITS FOR WATER RESOURCE EXPLORATION, EXPLOITATION AND USE, OR DISCHARGE OF WASTEWATER INTO WATER SOURCES

Article 6 - Cases not subject to permit application

1. The exploration and exploitation of water resources are not subject to permit

a. Small - scale exploitation and use of surface water or underground water for daily - life familial activities.

b. Small - scale exploitation and use of surface water or underground water for

< p="">c. Small - scale exploitation and use of seawater for salt production and aquaculture by families.

d. Exploitation and use of rainwater, surface water or seawater within the assigned or leased land area according to the provisions of the Land Law, the Law on Water

< span="">e. Exploitation and use of water resources for non - business purposes, in service of forestry, waterway transport, aquaculture, salt production, sports, recreation, tourism, healthcare, sanatoriums and scientific research.

f. Underground water exploitation from substitute projects of smaller or equivalent

< p="">2. Discharge of wastewater into water sources on a small and familial scale.

3. The exploitation and use of underground water on a small and familial scale shall not be subject to permit application but must be registered in the following cases:

a. Exploitation and use of underground water for agricultural production, forestry,

< p="">< p="">< p="">4. The People's Committees of the provinces and centrally - run cities (hereinafter

referred collectively to as the provincial - level People's Committees) shall specify the scope of water resource exploitation and use, and the discharge of wastewater into water sources on the familial scale that is not subject to the permit application; the underground water exploitation areas which must be registered, and the depth of wells which must be registered according to the provisions of Clause 3, this Article.

Article 7 - Terms and extension of permits

1. The term of a surface water - exploitation and - use permit shall not exceed twenty (20) years and may be considered for extension but for not more than ten (10)< span="">.

2. The term of an underground water - exploration permit shall not exceed three (3)< span=""> and may be considered for extension but for not more than two (2) years.

3. The term of < span="">water - exploitation and - use permit shall not exceed fifteen (15) years and may be considered for extension but for not more than ten (10) years.

4. The term of a permit for discharge of wastewater into water sources shall not exceed ten (10) years and may be considered for extension but for not more than five (5) years.

5. The extension of permits for water resource exploration, exploration and use, or

a. By the time of extension application, the permit owner has fulfilled the obligations prescribed in Article18 of this Decrees.

b. The permit for water resource exploration, exploitation and use, or for discharge of

< p="">Article 8 - Change of terms and adjustment of contents of permits

The change of terms or adjustment of contents of permits shall be effected in the

< p="">1.

a. The ground conditions do not permit the construction of a number of items under the ratified exploration projects.

b. There are disparities between the actual geo - hydrological structures and expected geo-hydrological structures in the ratified exploration projects.

c. The volume of exploration items changes by over 10% compared to the

< p="">2. For water resource - exploitation and - use permits:

a. The water source cannot ensure normal water supply.

b. The water exploitation and use demand rises but not measures have been taken to handle or supplement water sources.

c. There appear particular circumstances requiring the restriction of the discharge of waste water into water source.

Article 9 - Invalidationof permits

1. A permit shall be invalidated in the following cases:

a. The organization or individual granted the permit (referred to collectively as the

< p="">b. The permit owner transfers the permit without permission.

c. The permit owner misuses the permit to organize operations not prescribed in the permit.

2. The permit - invalidation period shall be defined by the permit - issuing agency.

During the invalidation period, the permit owner shall not have the permit - related

Article 10 - Withdrawal of permits

1. A permit shall be withdrawn in the following cases:

a. The organization being the permit owner is dissolved or declared bankrupt by a

< p="">b. The permit has been granted but has not been used for twelve (12) consecutive

< p="">c. The permit owner violatesthe decision on invalidation of the permit.

d. The permit owner violates the provisions of the permit, thus exhausting or polluting water sources.

e. The permit has been issued ultra vires.

f. The competent State agency decides t withdraw the permit for national defense or security reasons or for national or public interests.

2. In cases where permits are withdrawn due to violation of the provision of Points b and c, Clause of this Article, permit owners shall only be considered for issuance of new permits after 3 years as from the permit - withdrawal date, provided that they have fulfilled the obligations related to the reasons for withdrawal of the old permits.

3. In cases where permits are withdrawn according to the provision of Points e and f, Clause 1 of this Article, the competent State agency in charge of water resources shall consider the issuance of new permits.

Article 11 - Return of permits

1. In cases where permit owners don't use permits, they may return their permits to the permit - issuing agencies and concurrently give the latter the written explanations thereon.

2. Organization and individuals that have returned their permits may only be

< p="">Article 12 - Termination of effect of permits

1. Permits shall cease to be effective in the following cases:

a. They are withdrawn.

b. They have expired.

c. They have been returned.

2. When permits cease to be effective, the permit - related rights shall also terminate.

Article 13 - Competence to issue, < p="">

< p="">1. The Ministry of Natural Resources and Environment shall issue, extend,

< p="">a. Exploiting, using water resources for important national projects already approved by the Prime Minister.

b. Exploring, exploiting underground water for projects with the flow of 3,000 m2/day and night or more.

c. Exploiting, using surface water for agricultural production with the flow of 2

< p="">d. Exploiting, using surface water for electricity generation with the capacity of 2,000 kW or more.

e. Exploiting, using surface water for other purposes with flow of 50,000 m3/day and night or more.

f. Discharging wastewater into water sources with the flow < span="">and nigh or more.

2. The provincial - level People's Committees shall issue, extend, change terms and adjust contents of, and invalidate and withdraw permits in cases not defined in Clause 1 of this Article.

Article 14 - Agencies receiving and managing dossiers and permits

1. The Department for Water Resources Management under the Ministry of Natural Resources and Environment shall be responsible for receiving and managing dossiers and permits issued by the Ministry of Natural Resources and Environment.

2. The provincial/municipal Services of Natural Resources and Environment shall be responsible for receiving and managing dossiers as well as permits issued by the provincial - level People's Committees.

Chapter III

RESPONSIBILITIES AND POWERS OF PERMIT - ISSUING AGENCIES AND PERMIT OWNERS

Article 15 - Responsibilities and powers of permit - issuing agencies.

Permit - issuing agencies shall have the following responsibilities and powers:

1. To issue, extend, change terms and modify contents of, invalidate, with draw permit strictly according to their competence defined in Article 13 of this Decree.

2. To notify writing the applying organizations and individuals of the refusal to issue, extend, change terms or adjust the contents of, permits, clearly stating the reasons therefor.

3. To inspect, examine permit owners in performance of their obligations prescribed in Article 18 this Decree.

Article 16 Responsibilities, powers of agencies receiving and managing dossiers and permits.

Agencies receiving and managing dossiers and permits shall have the following

1. To receive dossiers and guide the procedures and guide the procedures of application for permits.

2. To request organizations and individuals applying for permits to supplement their dossiers according to regulations.

3. To evaluate the permit - application dossiers and take responsibility for evaluation results.

4. To fill in the procedures for submission of dossiers to the competent State agencies for issuance of permits.

5. To archive dossiers related to the issuance of permits for water resource exploration, exploitation and use, and discharge of wastewater into water sources.

Article 17 - Rights of permits owners

Permit owners shall have the following rights:

1. To explore, exploit and use water resources, discharge wastewater into water sources according to the provision of their permits.

2. To have their legitimate rights and interests prescribed in their permits protected by the State.

3. To be compensated by the State in cases where their permits are withdrawn ahead of schedule for national defense of security reason or for national or public interest under law provisions.

4. To request organizations and individuals to pay compensations for damage to their legitimate right and interests regarding water resource exploration, exploitation and sue, and/or discharge of wastewater into water sources according to law provisions.

5. To propose the permit - issuing agencies to extend, change terms or adjust contents of, permits according to regulations.

6. To return permit according to regulations.

7. To lodge complaints or initiate lawsuits about acts of infringing upon their

< p="">8. To use data and information on water resources according to current regulations.

9. To transfer, lease, bequeath, mortgage or provide guaranty with, assets invested in water resource exploration, exploitation and use, and/or discharge of wastewater into water sources under law provisions.

Article 18 - Obligations of permit owners

Permit owners shall have the following obligations:

1. To observe law provisions on water resource and the provisions of their permits.

2. To pay fees for the issuance of permits for underground water exploration,

< p="">< p="">3. Not to obstruct or cause damage to, the lawful water resource exploration,

< p="">4. To protect water sources in the areas of water resource exploration, exploitation and use, or discharge of wastewater into water sources.

5. To provide complete and truthful data and information on water resources in the

< p="">6. To take measures to ensure safety, prevent and overcome incidents in the course of water resource exploration, exploitation and use, and discharge of wastewater into water sources; to promptly report thereon to the permit - issuing agencies for

< p="">7. To adopt measures to supervise the process of exploring, exploiting and using water resource, and discharging wastewater into water sources under the guidance of the competent State agencies.

8. Not to arbitrarily dismantle or destroy projects or equipment under the entire

< p="">9. To create conditions for organizations and individuals permitted by competent State agencies to conduct activities of scientific research, investigation and/or evaluation of water sources in their respective permitted areas.

10. To observe the regime of reporting on the result of water resource explorations, exploitation and use as well as discharge of wastewater into water sources to competent State agencies under law provisions.

Chapter IV

PROCEDURES TO ISSUE PERMITS FOR WATER RESOURCE EXPLORATION, EXPLOITATION AND USE, OR DISCHARGE OF WASTEWATER INTO WATER SOURCES

Article 19 - Order and procedures for issuance of underground water -

< p="">1. Organizations and individuals applying for underground water - exploration permits shall submit two (2) dossier sets at the dossier-receiving agencies defined in Article 14 of this Decree. Such a dossier includes:

a. The application for permit.

b. The underground water - exploration scheme, for projects with the flow of 200

< p="">c. The notarized copies of the certificate or valid papers on the right to use land at the exploration sites according to the Land Law's provisions, or the document issued by the competent - level People's Committee, permitting the use of land for exploration.

2. The permit - issuing order is provided for as follows:

a. Within five (5) working days after receiving dossiers, the dossier - receiving

< p="">b. As from the date of receiving complete and valid dossiers as prescribed in Clause 1 of this Article, within fifteen (15) working days for exploration projects with the flow of under 3,000 m3/day and night, and thirty (30) working days for exploration projects with the flow of 3,000 m3/day and night or more, the dossier - receiving agencies shall have to evaluate the dossiers, conduct field inspection when necessary and, if obtaining enough permit - issuance grounds, submit the dossiers to the competent agencies for issuance of permits; in cases where the permit - issuance conditions are not fully met, the dossier - receiving agencies shall return the dossiers to the applying organizations or individual and notify thelatter of the reasons for non-issuance of permits.

Article 20 - Order and procedures for issuance of underground water 0 exploitation and - use permits.

1. Organizations and individuals applying for underground water - exploitation and use permits shall submit two (2) dossier sets at the dossier - receiving agencies defined in Article 14 of this Decree. Such a dossier includes.

a. The application for permit.

b. The underground water - exploitation scheme.

c. The map of the area and position of the underground water - exploitation project, of 1/50,000 - 1/25< p="">

d. The report on the results of exploration and evaluation of underground water deposit, for projects with the flow of 200 m3/day and night; the report on the results of construction of exploitation wells, for projects with the flow of under 200 m3/day and night; the report on the current exploitation situation of operating underground water - exploitation projects.

e. The results of analysis of the quality of water sources of use purposes according to the State's regulations at the time of application for the permit.

f. The notarized copies of the certificate or valid papers on the right to use land where exploitation well (s) is (are) located, according to the Land Law's provisions. In cases where the exploitation well land falls beyond the land use right of the applying organizations or individual, there must be a written land - use agreement between the exploiting organization or individual and the organization or individual having the land use right, which must be certified by the competent People's Committee.

2. The permit - issuing order is provided for as follows:

a. Within five (5) working days after receiving dossiers, the dossier - receiving

< p="">< p="">b. In cases where exploitation wells are already available, within fifteen (15) working days after receiving complete and valid dossiers as prescribed in Clause 1 of this Article, the dossier - receiving agencies shall have to evaluate the dossiers, conduct field inspection when necessary and, if obtaining enough permit - issuance grounds, submit the dossiers to competent agencies for issuance of permits; in cases where the permit - issuance conditions are not fully met, the dossier - receiving agencies shall return the dossiers to the applying organizations or individuals and notify the latter of the reasons for non-issuance of permits.

c. In cases where exploitation wells are not yet available, within ten (10) working days after receiving complete and valid dossiers as prescribed in Clause 1 of this Article, the dossier - receiving agencies shall have to evaluate the dossiers and submit them to competent agencies for issuance of documents permitting the construction of exploitation wells. Within fifteen (15) working days after receiving complete documents on exploitation - well construction, the dossier - receiving agencies shall have to evaluate the dossiers, conduct field inspection when necessary and, if obtaining enough permit - issuance grounds, submit the dossiers to competent agencies of issuance of permits; in cases where the permit - issuance conditions are not fully met, the dossier - receiving agencies shall return the dossiers to the applying organizations or individuals and notify the latter of the reasons for non - issuance of permits.

Order and procedures for issuance of surface water exploitation - and use - permits.

1. Organizations and individuals applying for surface water - exploitation and – use permits shall submit two (2) dossier sets at the dossier - receiving agencies defined in Article 14 of this Decree. Such a dossier includes:

a. The application for permit.

b. The water - exploitation and - use scheme enclosed with the operation process, for cases where exploitation works are unavailable; the report on the current water - exploitation and - use situation, for cases where exploitation works already exist.

c. The results of analysis of the quality of water sources for use purposes according to the State's regulations at the time of application for the permit.

d. The map of the area and position of the exploitation project, of 1/50,000 - 1/25,000 scale.

e. The notarized copies of the certificate of, or valid papers on, the right to use land where the exploitation work is to be located, according to the Land Law's provisions.

In cases where the exploitation work land falls beyond the land use right of the

< p="">< p="">2. The permit - issuing order is