Pháp lệnh khai thác và bảo vệ công trình thuỷ lợi năm 2001

ORDINANCE

ON THE EXPLOITATION AND PROTECTION OF IRRIGATION WORKS

In order to enhance the State management effectiveness, raising the responsibility of State agencies, economic organizations, political organizations, socio-political organizations, social organizations, socio-professional organizations, peoples armed force units and all individuals in the exploitation and protection of irrigation works aimed at serving production and socio-economic development, contributing to the maintenance of social safety and national security;

Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam;

Pursuant to the Law on Water Resources;

Pursuant to the Resolution of the Xth National Assembly, 8th session, on the 2001 law- and ordinance-making program;

This Ordinance provides for the exploitation and protection of irrigation works.

Chapter I

GENERAL PROVISIONS

Article 1.-This Ordinance applies to irrigation works which have been built and put into operation.

The exploitation and protection of irrigation works related to dikes, flood and storm prevention works, hydro-electric works as well as water supply and drainage works for urban areas shall have to comply with the provisions of this Ordinance, the legislation on dikes, flood and storm prevention and fight, hydro-electric works, urban water supply and drainage and the legislation on water resources.

Article 2.-In this Ordinance the following terms shall be construed as follows:

1. "Irrigation works" mean infrastructure works built to tap the water’s usefulness; to prevent and combat harms caused by water, protect the environment and balance the ecology, which include: reservoirs, dams, sluices, pumping stations, wells, penstocks, canals, works on canals and embankments of all types.

2. "Irrigation work system" includes irrigation works which are directly interrelated in terms of exploitation and protection in a certain geographical area.

3. "Irrigation charge" mean the water service charge collected from organizations and individuals using water or providing services from irrigation works for agricultural production in order to contribute to covering part of expenses for management, maintenance and protection of irrigation works.

4. "Water-consuming money" means the sum of money inscribed in the water service contracts, collected from organizations and individuals consuming water or providing services from irrigation works for purposes other than agricultural production.

5. "Waste water-discharging fee" means the fee collected from organizations and individuals discharging waste water into irrigation works to cover part of expenditure on the protection of water quality.

6. "Cooperative organization for water consumption" is a form of cooperation between people sharing benefits from irrigation works, performing the task of exploiting and protecting works in service of production and peoples life.

Article 3.-

1. The exploitation and protection of irrigation works must ensure the systematism of the works, which must not be divided according to administrative boundaries.

2. The exploitation and protection of irrigation works built with capital of any source must comply with the planning, plans, procedures, regulations, technical standards and investment projects already ratified by competent State bodies.

3. The exploitation and protection of each irrigation work system or each irrigation work must be directly managed by an organization or individual under decision of a competent State management body.

4. Organizations and individuals benefiting from irrigation works shall be responsible for participating in the elaboration of plans for the exploitation and protection thereof.

5. Irrigation works shall be fully exploited and used in service of the national economic branches.

6. The exploitation and protection of irrigation works must meet the requirements for preventing and combating the degradation, depletion and pollution of water resources as well as other harms caused by water, thus ensuring the works safety.

7. Based on the size, socio-economic, defense and security significance of irrigation works, the Government shall prescribe criteria for irrigation works and irrigation work systems of national importance.

Article 4.-The State shall adopt policies to:

1. Prioritize investment in and support the exploitation and protection of irrigation works;

2. Encourage domestic and foreign organizations and individuals to invest capital in, conduct scientific research into, and apply scientific and technological advances to, the exploitation and protection of irrigation works, and protect their legitimate rights and interests.

3. Encourage organizations and individuals benefiting from irrigation works to take part in the exploitation and protection thereof.

Article 5.-The Peoples Councils and Peoples Committees of all levels shall, within the ambit of their tasks and powers, apply measures to exploit and protect irrigation works; supervise and inspect the observance of the legislation on exploitation and protection of irrigation works in their respective localities.

The Vietnam Fatherland Front and its member organizations shall, within their tasks and powers, have to propagate the legislation on exploitation and protection of irrigation works, mobilize people to observe it and supervise the observance thereof.

Article 6.-The State agencies, economic organizations, political organizations, socio-political organizations, social organizations, socio-professional organizations, peoples armed force units and all individuals shall have to abide by the provisions of the legislation on exploitation and protection of irrigation works.

Article 7.-

1. Organizations and individuals consuming water or providing services with water from irrigation works or discharging waste water into irrigation works shall have to pay irrigation charge, water-consuming money and waste water-discharging fee to organizations and individuals directly managing the exploitation and protection of irrigation works according to the provisions of law.

2. The Peoples Committees of all levels shall have to direct and inspect the collection and payment of irrigation charge, water-consuming money and waste water-discharging fee in their respective localities.

Article 8.-To strictly prohibit acts of encroaching on irrigation works; appropriating or illegally using irrigation charge, water-consuming money and waste water-discharging fee.

Chapter II

EXPLOITATION OF IRRIGATION WORKS

Article 9.-

1. The exploitation and protection of irrigation works built with the State budget capital or capital originating from the State budget shall be managed by State enterprises, except for cases prescribed in Article 10 of this Ordinance.

2. The exploitation and protection of irrigation works built with support sources from the State budget and capital contributed by water-consuming organizations and individuals shall be managed by cooperative organizations for water consumption.

3. The exploitation and protection of irrigation works built with capital of organizations and/or individuals shall be managed by such organizations and/or individuals under the provisions of law.

The competent State management bodies shall decide the establishment of organizations managing the exploitation and protection of irrigation works prescribed in Clauses 1 and 2 of this Article.

Article 10.-Based on the size and characteristics of irrigation works as well as the practical conditions of each locality, the Government shall stipulate the assignment of irrigation works built with the State budget capital to organizations and/or individuals for management of the exploitation and protection thereof.

Article 11.-Based on this Ordinance and relevant legislation, the Government shall prescribe the regime and policies for, as well as rights and obligations of, organizations and individuals managing the exploitation and protection of irrigation works specified in Clause 3 of Article 9 and Article 10 of this Ordinance.

Article 12.-

1. State enterprises exploiting irrigation works and cooperative organizations for water consumption shall operate according to the public utility regime in case of serving the agricultural production.

2. The State shall adopt policy on priority allocation of funding for renovation and upgrading of irrigation works in geographical areas meeting with socio-economic difficulties or exceptional difficulties.

Article 13.-State enterprises exploiting irrigation works and cooperative organizations for water consumption that undertake water irrigation and drainage in service of agricultural production shall be allocated funding by the State in the following cases:

1. Pumping water to fight waterlogging by pumping stations that have been built according to planning and operate according to processes already approved by the competent State bodies;

2. Pumping water to fight draught in excess of the prescribed norms;

3. Overhaul, upgrading of irrigation works under the capital construction investment projects already approved by the competent State bodies;

4. Loss of irrigation charge revenue due to crop failure caused by natural calamities;

5. Restoration of irrigation works, which have been destroyed by natural calamities, under the capital construction investment projects already ratified by the competent State bodies.

The Government shall stipulate in detail the allocation of funding for cases prescribed in this Article.

Article 14.-

1. Organizations and individuals consuming water or providing services with water from irrigation works for agricultural production shall have to pay irrigation charge.

2. Organizations and individuals consuming water or providing services with water from irrigation works for purposes other than agricultural production shall have to pay water-consuming money.

3. Organizations and individuals discharging waste water into irrigation works shall have to pay waste water-discharging fee.

4. State enterprises exploiting irrigation works or cooperative organizations for water consumption shall collect irrigation charge, water-consuming money and waste water-discharging fee according to law provisions.

The Government shall prescribe the bracket of irrigation charge, water-consuming money and waste water- discharging fee for each kind of irrigation works, each type of water-consuming subjects and each type of subjects providing services from irrigation works, based on the practical conditions of each region in the country.

The Ministry of Agriculture and Rural Development shall specify levels of irrigation charge, water-consuming money and waste water-discharging fee for State enterprises exploiting irrigation works under its management.

The Peoples Committees of the provinces and centrally-run cities shall specify levels of irrigation charge, water-consuming money and waste water-discharging fee for State enterprises exploiting irrigation works and cooperative organizations for water consumption under their respective management.

Article 15.-Financial sources of State enterprises exploiting irrigation works or cooperative organizations for water consumption shall include:

1. Irrigation charge, water-consuming money and waste water-discharging fee;

2. State budget allocations as provided for in Article 13 of this Ordinance;

3. Revenues from the full exploitation of irrigation works.

Article 16.-The Government shall stipulate:

1. The mode and time of payment of irrigation charge, water-consuming money and waste water-discharging fee by organizations and individuals benefiting from irrigation works to State enterprises exploiting them and cooperative organizations for water consumption;

2. The time for payment of electricity charges by State enterprises exploiting irrigation works and cooperative organizations for water consumption to electricity trading enterprises.

Article17.-Stateenterprises exploiting irrigation works and cooperative organizations for water consumption shall have the following tasks:

1. To regulate and distribute water fairly and rationally in service of production and peoples life with priority given to water for daily life; to perform contracts with organizations and individuals consuming water or providing services from irrigation works; to pay compensation for damage as provided for in Clause 6, Article 19 of this Ordinance;

2. To abide by the planning, plans, procedures, regulations, technical standards and investment projects of the irrigation work systems already approved by competent State bodies;

3. To monitor, detect and promptly deal with incidents; to maintain, operate works and ensure their safety; to inspect and repair the works before and after the rain and flood seasons;

4. To act as investors in the maintenance, repair and upgrading of irrigation works; to maintain and develop the works capacity, ensuring their safety and long-term usability.

5. To map out or take part in mapping out the works-operating process, the reservoir water-regulating process and the system-operating process, and submit them to the competent agencies for ratification and organization of implementation;

6. To observe, monitor and collect data as prescribed; to study, synthesize and apply scientific and technological advances to the exploitation and protection of irrigation works; to archive dossiers on the exploitation of irrigation works;

7. To protect water quality; to prevent and fight the degradation and depletion of water resources; to prevent and fight floods, salinization and other harms caused by water.

8. To organize the peoples participation in the elaboration of plans on the exploitation and protection of irrigation works;

9. Other tasks as prescribed by law.

Article18.-Stateenterprises exploiting irrigation works and cooperative organizations for water consumption shall have the rights:

1. To be allocated with funding by the State according to the provisions in Article 13 of this Ordinance and other provisions of law;

2. To sign contracts with organizations and individuals consuming water or providing services from irrigation works they exploit;

3. To collect irrigation charge, water-consuming money and waste water-discharging fee according to contracts;

4. To propose the local Peoples Committees to mobilize public labor for the renovation, repair, upgrading of irrigation works and handle incidents thereto according to the provisions of law;

5. To propose the Peoples Committees of the localities where locate irrigation works to take necessary measures to ensure the works safety in cases where they are encroached upon or in danger of being hit by incidents;

6. To propose the local Peoples Committees or request the Peoples Courts to settle cases where organizations and/or individuals benefiting from irrigation works deliberately delay the full payment of irrigation charge, and disputes over water-consumption contracts;

7. To fully exploit irrigation works according to investment projects and technical designs already ratified by competent State bodies;

8. Other rights as prescribed by law.

Article 19.-Organizations and individuals consuming water or providing services from irrigation works shall have the following rights and obligations:

1. To take part in the elaboration of plans on the exploitation and protection of irrigation works;

2. To work out plans for consuming water and discharging waste water; to sign and perform contracts with State enterprises exploiting irrigation works and cooperative organizations for water consumption;

3. To rationally and economically consume water and protect the water environment;

4. To pay irrigation charge, water-consuming money and waste water-discharging fee according to contracts;

5. To protect irrigation works within their exploitation scope;

6. To be compensated for any damage caused by the failure to strictly comply with contracts by State enterprises exploiting irrigation works or cooperative organizations for water consumption, except otherwise prescribed by law;

7. Other rights and obligations as provided for by law.

Article 20.-

1. For an irrigation work system involving many localities, a system management council may be set up, comprising:

a/ Representatives of the State bodies managing the exploitation and protection of irrigation works;

b/ Representatives of administrations of the localities involved in the irrigation work system;

c/ Leaders of State enterprises exploiting irrigation works or cooperative organizations for water consumption;

d/ Representatives of organizations and/or individuals benefiting from the irrigation work system;

e/ Representatives of the concerned branches.

2. The system management council shall have to decide on undertakings and plans to exploit the system; supervise operations of State enterprises exploiting irrigation works and cooperative organizations for water consumption; and harmonize the interests of organizations and/or individuals benefiting from the irrigation work system.

The Minister of Agriculture and Rural Development shall decide or assign the responsibility to decide on the establishment of system management councils and guide the councils operations.

Chapter III

PROTECTION OF IRRIGATION WORKS

Article 21.-

1. Organizations and/or individuals directly managing the exploitation and protection of irrigation works shall have to work out plans for the protection thereof and submit them to the competent State management bodies for approval.

2. The competent State management body managing an irrigation work shall have to approve plan on the protection of that irrigation work.

The Ministry of Agriculture and Rural Development shall guide the elaboration and approval of plans on the protection of irrigation works.

Article 22.-

1. Organizations and/or individuals managing the exploitation of any irrigation works shall be responsible for directly protecting such irrigation works.

2. The Peoples Committees of all levels shall organize the implementation of protection plans already approved for irrigation works according to the following stipulations:

a/ The implementation of protection plan for irrigation works serving a commune, ward or district town shall be organized by the Peoples Committee of such commune, ward or district town;

b/ The implementation of protection plan for an irrigation work system serving many communes, wards or district towns within an urban/rural district, provincial capital or provincial town shall be organized by the Peoples Committee of that urban/rural district, provincial capital or provincial town, or may be assigned to the Peoples Committees of communes, wards and district towns where locate such irrigation works.

c/ The implementation of protection plan for an irrigation work system serving many urban/rural districts, provincial capitals or provincial towns within a province or centrally-run city shall be organized by the Peoples Committee of that province or centrally-run city, or may be assigned to the Peoples Committees of the urban/rural districts, provincial capitals or provincial towns where locate such irrigation works;

d/ The implementation of protection plan for an irrigation work system serving many provinces or centrally-run cities shall be organized by the Ministry of Agriculture and Rural Development, or may be assigned to the Peoples Committees of the provinces and centrally-run cities where locate such irrigation works.

3. For irrigation work systems and irrigation works of national importance, the ministry(ies) assigned to manage them shall assume the prime responsibility and coordinate with the Ministry of Public Security, the Ministry of Defense and the concerned ministries in elaborating the protection plans to be submitted to the Prime Minister for decision and shall direct the implementation thereof after they are approved.

Article 23.-

1. Upon detecting that irrigation works are encroached upon or in danger of being hit by incidents, the detector shall have to prevent and overcome them, if possible, and immediately notify such to the Peoples Committees, organizations and/or individuals managing the exploitation and protection of irrigation works or to the nearest State agency for handling.

2. Organizations and individuals benefiting from irrigation works shall have to take part in the elaboration of the works protection plans; in cases where irrigation works are hit by incidents or in such danger, they must take part in rescue activities to protect the works according to the mobilization of the presidents of the local Peoples Committees.

Article 24.-The change of criteria, size or use purposes of the existing irrigation works, the building of new irrigation projects to supplement an irrigation work system must comply with the planning and plans and there must be investment projects and works protection plans, ratified by the competent State management bodies.

Article 25.-

1. The protection scope of irrigation works shall cover the works and their vicinities. The determination of vicinities must be based on the designing criteria, technical processes and regulations so as to ensure the safety for irrigation works and facilitate the exploitation and protection thereof.

2. The use of land in the vicinities must not obstruct the operation of irrigation works and must ensure their safety; there must be passages for observation, inspection, monitoring and management as well as grounds for renovation and repair of the works and handling of any incidents thereto.

3. The vicinities of irrigation works are stipulated as follows:

a/ For dams of reservoirs, the vicinity for dam protection shall be defined from the dam base as follows:

- At least 300 m, for grade I-dams, with 100m from the dam base for non-encroachment area and the rest for purposes, which do not affect the dams safety;

- At least 200m, for grade II-dams, with 50m from the dam base for non-encroachment area and the rest for purposes, which do not affect the dams safety;

- At least 100m, for grade III-dams, with 40m from the dam base for non-encroachment area and the rest for purposes, which do not affect the dams safety;

- At least 50m, for grade IV-dams, with 20m from the dam base for non-encroachment area and the rest for purposes, which do not affect the dams safety;

- At least 20m, for grade V-dams, with 5m from the dam base for non-encroachment area and the rest for purposes, which do not affect the dams safety;

b/ For above-ground canals with a flow of from 2m3/second to 10m3/second, the protection area shall be 2 to 3 meters from the outer talus base; for canals with a flow of over 10m3/second, the protection area shall be 3 to 5 meters from the outer talus base;

c/ For sluices to prevent brine and retain fresh water at river mouths, the protection thereof must comply with the provisions of the legislation on dikes;

d/ For reservoir bed area, the works protection vicinities shall be calculated from the borderline with spot height equal to the dam crest level downward the reservoir bed.

4. The protection of pumping stations and underground or solidified canals shall comply with the following provisions:

a/ For pumping stations, there must be protection fences;

b/ For underground canals, there must be place used as mud and sand sediment tank in service of dredging;

c/ For solidified canals, there must be passages for management.

5. For irrigation works with criteria, size or use purposes having been changed or which have been improved to higher standards, their vicinities may be adjusted to suit to reality, which, however, must ensure the works safety and be approved by competent State bodies.

6. The Government shall stipulate the protection area for irrigation works of national importance.

The Peoples Committees of the provinces and centrally-run cities shall specify the vicinity for each kind of irrigation works in their respective localities.

Article 26.-Within the protection area of irrigation works, the following activities may be conducted only with permits:

1. Building of new projects within the irrigation works protection area;

2. Discharge of waste water into irrigation works;

3. Other activities related to irrigation works safety according to the Governments stipulations.

The Ministry of Agriculture and Rural Development shall define the permit-granting competence and procedures.

Article 27.-

1. The flood prevention and fight for reservoir must be carried out regularly and prompt salvation must be conducted when the reservoirs are threatened with eminent incidents or floods.

2. The salvation of reservoir projects must comply with the provisions of this Ordinance and other provisions of law.

Organizations and individuals managing the exploitation and protection of reservoirs shall have to elaborate plans to ensure the reservoirs safety in compliance with the plans to ensure safety for upstream and downstream terraced reservoirs; the salvation plans shall be submitted to the competent State bodies prescribed in Articles 21 and 22 of this Ordinance for approval.

3. The Peoples Committees of all levels shall, according to their tasks and powers, have to organize the salvation of reservoirs in their respective localities as well as the participation in the salvation of reservoirs for other localities according to the provisions of law.

Article 28.-The following acts are strictly forbidden:

1. Encroaching upon and illegally using land within the irrigation work protection areas; obstructing the management or repair of the works and handling of incidents thereto.

2. Illegal acts which cause unsafety to irrigation works within their protection area, including:

a/ Drilling, digging earth and rock or illegally conducting construction activities within the irrigation work protection area, which cause unsafety to the works;

b/ Damaging with explosives or arbitrarily dismantling or filling up irrigation works in service of public /or waste water, which have not yet been treated or have been treated below standards, into irrigation works;

4. Operating irrigation works in contravention of the prescribed technical processes and regulations;

5. Other acts which cause unsafety to irrigation works.

Chapter IV

STATE MANAGEMENT OVER THE EXPLOITATION AND PROTECTION OF IRRIGATION WORKS

Article 29.-Contents of State management over the exploitation and protection of irrigation works shall include:

1. Elaborating strategy, planning, plans and policies on the exploitation and protection of irrigation works and directing the implementation thereof;

2. Promulgating and organizing the implementation of legal documents, processes, regulations and criteria on the exploitation and protection of irrigation works;

3. Deciding on the adjustment of the planning on irrigation work systems, investment projects on the repair and upgrading of irrigation works and financial plans for State enterprises exploiting irrigation works and cooperative organizations for water consumption; supervising the construction quality; organizing the pre-acceptance test and hand-over of projects;

4. Issuing, withdrawing permits for activities that must be permitted within the irrigation work protection area;

5. Approving plans on the protection of irrigation works; deciding handling measures in case of incident danger; directing the regulation and distribution of water of irrigation works in case of draught with priority given to water for daily life;

6. Organizing researches and application of scientific and technological progresses to the exploitation and protection of irrigation works; organizing an apparatus for propagation and popularization of the legislation on exploitation and protection of irrigation works; training and fostering professional skills for persons managing the exploitation and protection of irrigation works;

7. Inspecting, examining, settling disputes, complaints and denunciations and handling violations of the legislation on exploitation and protection of irrigation works;

8. Organizing the realization of international cooperation in the field of exploitation and protection of irrigation works.

Article 30.-

1. The Government shall exercise the unified State management over the exploitation and protection of irrigation works.

2. The Ministry of Agriculture and Rural Development shall take responsibility before the Government for the State management over the exploitation and protection of irrigation works.

3. The ministries, the ministerial-level agencies and the agencies attached to the Government shall have to coordinate with the Ministry of Agriculture and Rural Development in exercising the State management over the exploitation and protection of irrigation works as assigned by the Government.

4. The Peoples Committees of all levels shall exercise the State management over the exploitation and protection of irrigation works in localities as assigned by the Government.

Article 31.-

1. The State encourages the reconciliation of disputes over the exploitation and protection of irrigation works.

The commune/ward/district town Peoples Committees shall have to coordinate with the Vietnam Fatherland Fronts Committees in localities, agencies, organizations and individuals in conciliating disputes over the exploitation and protection of irrigation works in accordance with the provisions of law.

2. The State bodies competent to grant permits shall have to settle complaints arising from activities carried out under such permits. In cases where the complainants disagree with the complaint-settling decisions, they may further complain or initiate lawsuits according to law provisions.

3. Other disputes over exploitation and protection of irrigation works shall be settled according to the provisions of law.

Article 32.-The water resource specialized inspectorate shall perform the function of specialized inspection of the exploitation and protection of irrigation works, having the following tasks:

1. To examine and inspect the observance of the legislation on the exploitation and protection of irrigation works;

2. To settle complaints and denunciations about the exploitation and protection of irrigation works according to law provisions.

Chapter V

COMMENDATION AND HANDLING OF VIOLATIONS

Article 33.-Organizations and individuals making achievements in the exploitation and protection of irrigation works as well as in the fight against acts of breaching the legislation on the exploitation and protection of irrigation works shall be commended and/or rewarded according to the provisions of law.

Article 34.-Any persons who encroach on land within the irrigation work protection areas, fail to abide by the mobilization of the competent State bodies in case of incidents to irrigation works; destroy or cause unsafety to irrigation works; fail to perform financial obligations or violate other provisions of this Ordinance shall, depending on the nature and seriousness of their violations, be administratively sanctioned or examined for penal liability; and, if causing damage, pay compensation therefor according to law provisions.

Article 35.-Any persons who are irresponsible, abuse their positions and powers to illegally use revenues from irrigation charge, water-consuming money and water-discharging fee, cover up violators of the legislation on exploitation and protection of irrigation works or commit other violations shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability; and, if causing damage, pay compensation therefor as prescribed by law.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 36.-Organizations and individuals who are granted permits for activities that must be permitted within the irrigation work protection area or permits for discharging waste water into water resources of irrigation works before the effective date of this Ordinance, if the permits are still valid and not contrary to the provisions of this Ordinance and other law provisions, may comply with the provisions of such permits, except where such organizations or individuals voluntarily apply for new permits under the provisions of this Ordinance and other provisions of law.

Article 37.-This Ordinance shall apply to foreign organizations and individuals activities of exploiting and protecting irrigation works on the Vietnamese territory; in cases where international agreements which the Socialist Republic of Vietnam has signed or acceded to otherwise prescribe, such international agreements shall apply.

Article 38.-This Ordinance takes effect as from July 1, 2001.

This Ordinance shall replace the Ordinance on the Exploitation and Protection of Irrigation Works, which was adopted by the National Assembly Standing Committee on August 31, 1994.

The earlier provisions contrary to this Ordinance are all now annulled.

Article 39.-The Government shall stipulate in detail and guide the implementation of this Ordinance.