Decree 41/2021/ND-CP amending Decree 82/2017/ND-CP on charge for granting water resource exploitation rights

DECREE

Amending and supplementing a number of articles of the Government's Decree No. 82/2017/ND-CP dated July 17, 2017, prescribing the method of calculation and rates of the charge for granting water resource exploitation rights

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Pursuant to the Law on Organization of the Government dated June 19, 2015; the Law Amending and Supplementing a Number of Articles of the Law on Organization of the Government and the Law on Organization of Local Administration dated November 22, 2019;

Pursuant to the Law on Water Resources dated June 21, 2012;

Pursuant to the Resolution No. 101/2019/QH14 dated November 27, 2019, of the 14^th National Assembly at its 8^th session;

At the request of the Minister of Natural Resources and Environment;

The Government hereby promulgates the Decree on amending and supplementing a number of articles of the Government's Decree No. 82/2017/ND-CP dated July 17, 2017, prescribing the method of calculation and rates of the charge for granting water resource exploitation right.

Article 1. To amend and supplement a number of articles of the Government's Decree No. 82/2017/ND-CP dated July 17, 2017, prescribing the method of calculation and rates of the charge for water resource exploitation right

1. To amend and supplement Article 3 as follows:

“Article 3. Cases of having to pay the charge for granting water resource exploitation right

Organizations and individuals that are granted the license to exploit and use surface water, groundwater (hereinafter referred to as the license holder) have to pay the charge for granting water resource exploitation right in the following cases:

1. For exploitation of surface water:

a) Exploiting surface water for power generation;

b) Exploiting surface water to serve for non-agricultural business, service or production activities, including water for cooling machinery and equipment, or generating steam, heating.

2. For exploitation of groundwater:

a) Exploiting groundwater to serve for non-agricultural business, service or production activities, including water for cooling machinery and equipment, or generating steam, heating;

b) Exploiting groundwater (except brackish water and saline water) for aquaculture, cattle farming, watering coffee, rubber, cashew or pepper plants and other perennial industrial plants with a scale from 20 m³/day or more.”.

2. To amend and supplement Article 4 as follows:

“Article 4. Bases for calculation of the charge for granting water resource exploitation right

1. Water use purposes including:

a) Exploiting water for hydroelectric generation;

b) Exploiting water to serve business and services;

c) Exploiting water to serve non-agricultural production, including water for cooling machinery and equipment, or generating steam, heating;

d) Exploiting groundwater for watering coffee, rubber, cashew or pepper plants and other perennial industrial plants;

dd) Exploiting groundwater for aquaculture, cattle farming.

2. Water resource quality shall be determined based on water quality zoning or water resource function zoning in master plans on water resources or master plans on water resources under the law on planning or approved regional master plans, provincial master plans; in case the water resource master plan is unavailable, or the master plan does not include water zoning contents, the water resource quality shall be based on the actual quality of exploited water resource.

3. Type of exploited water resources including: Surface water, groundwater.

4. Exploitation conditions:

a) For surface water, exploitation conditions shall be determined based on the area where surface water resources are exploited;

b) For groundwater, exploitation conditions shall be determined based on type of exploitation works (drilled wells, dug wells, pits, corridors, veins and caves); in case the groundwater exploitation works are drilled wells, conditions shall be determined based on exploited depth.

5. Scope of exploitation:

a) For exploitation of water for hydroelectric generation, the scope of exploitation shall be determined based on design dossiers;

b) For the case of exploitation and use of water for other purposes other than those specified at Point a of this Clause, the scope of exploitation shall be determined based on the water resource exploitation and use licenses and rate of water supply for the use purposes.

6. Exploiting duration shall be determined based on the operation date of works, the effective date of the license and time specified in the water resource exploitation and use license.”.

3. To amend and supplement Clauses 4, 5, 6 of Article 7 as follows:

“4. The period to calculate the charge for granting water resource exploitation right shall be calculated in days and determined as follows:

a) In case works have been operated before September 01, 2017, this period starting from September 01, 2017, to the expiry date of the license;

b) In case works have been operated after September 01, 2017, this period starting from the operation date of works to the expiry date of the license;

The operation date of works is the time the water exploitation works are completed and operated officially;

c) In case works have been operated and granted the licenses, and the charge for granting water resource exploitation right is approved and the license holders submit the dossiers of request for granting or extending licenses to continue exploiting water, this period shall be calculated from the expiry date of the previous license to the expiry date of the new license;

d) In case the water exploitation works have been guaranteed by Vietnamese Government under government guarantee before the effective date of this Decree, the period to calculate the charge for granting water resource exploitation right shall comply with the law on government guarantee issuance and management and the law on investment.

5. In case of water resource exploitation and use works for several purposes, the exploited output used for calculating the charge for granting water resource exploitation right shall be separately calculated for each purpose under this Decree and determined as follow:

a) The license holder must determine and declare the exploited water output for each use purpose and explain the grounds for determining the exploited water output for such purposes. The use purpose with the highest collection rate in the license shall be applied to the part of the output whose use purpose cannot be clearly determined;

b) In case many water exploitation works supply to a concentrated water supply system (including newly built water exploitation works), the exploited water output used for calculating the charge for granting water resource exploitation right for each purpose of each exploitation work shall be determined based on the water supply rate for purposes of such concentrated water supply system. The water supply rate of concentrated water supply systems shall be determined at the time of appraisal of the dossier for calculating the charge for granting rights based on:

For concentrated water supply systems that have been operated, the water supply rate for use water purposes shall be calculated under the latest settled annual water supply output data of the system;

For concentrated water supply systems that have not been operated or have been operated for less than 01 (one) year and have not had enough settlement dossiers of water output, the water supply rate for use water purposes shall be calculated under the design dossiers approved by competent agencies.

Water distribution and business units (without water exploitation works) shall be responsible for providing and taking responsibility for the accuracy of water supply information and data that serve the determination of the water supply rate for the use water purposes of concentrated water supply systems;

c) In case water exploitation works supply to several concentrated water supply systems, the exploited water output used for calculating the charge for granting water resource exploitation right shall be determined under the water supply rate for each system and each use purpose of such system;

d) In case production, business or service establishments use water to serve domestic and other purposes within that establishments, the entire amount of used water shall be calculated for those establishments' production, business, and services purpose. In case of supplying water to residential, health, education, defense and security establishments and public purposes without serving non-agricultural business, service, production activities outside such establishments, the water output shall be considered as domestic water and such establishments are not required to pay the charge for granting water resource exploitation right.

6. For concentrated water supply systems that have been operated, the license that has been granted, extended, adjusted or re-issued after the effective date of this Decree must clearly state the use purposes and the effective date of the license to determine the period for calculating the charge for granting water resource exploitation right.”.

4. To amend and supplement Article 8 as follows:

“1. The price for calculating the charge for granting water resource exploitation rights used for hydroelectric generation shall be 70% of the electricity price for calculating of water resource royalty used for hydroelectric generation.

2. The price for calculating the charge for granting water resource exploitation right for cases other than those under Clause 1 of this Article shall be water resource royalty issued by the People’s Committees of provinces and central-affiliated cities (hereinafter referred to as the Provincial-level People’s Committee) where works exploiting and using water resources are located, conforming to the frame of royalty-liable prices for natural water prescribed by the Ministry of Finance:

a) The price for calculating the charge for granting water resource exploitation rights for clean water production establishments supplying water to urban and rural areas is the price for calculating of natural water resource royalty used for clean water production and business;

b) The price for calculating the charge for granting water resource exploitation rights for purified water, wine, beer, beverage, ice exploitation and production establishments:

The price for calculating the charge for granting water resource exploitation rights on water exploitation output used for bottled, canned (directly without treating) is the price for calculating of the bottled and canned, purified natural water resource royalty.

The price for calculating the charge for granting water resource exploitation rights on exploited water that must be treated to bottled, canned is the price for calculating of the bottled and canned, purified natural water resource royalty.

The price for calculating the charge for granting water resource exploitation rights on water exploitation output that used for the production of wine, beer, beverage, ice is the price for calculating of natural water resource royalty used for the production of wine, beer, beverage, ice.

The price for calculating the charge for granting water resource exploitation rights on water exploitation that serve for other purposes is the price for calculating of natural water resource royalty for other purposes;

c) The price for calculating the charge for granting water resource exploitation rights on water exploitation for mineral exploitation and processing, rock sawing establishments is the price for calculating of natural water resource royalty for other purposes for mineral mining;

d) The price for calculating the charge for granting water resource exploitation rights on clean water production establishments supply to industrial parks, business service establishments, non-agricultural production establishments except case under Points a, b, c of this Clause is the price for calculating of natural water resource royalty used for other purposes.

3. For groundwater exploitation works for watering coffee, rubber, cashew or pepper plants and other perennial industrial plants, aquaculture, cattle farming, the price for calculation of natural water resource royalty used for other purposes, that is approved by provincial-level People’s Committee shall be applied.

4. The price for calculating the charge for granting water resource exploitation right shall be applied once for the entire term of the license, unless the charge for granting water resource exploitation right is adjusted under this Decree. The time to apply the charge for granting water resource exploitation right shall be determined at the time the competent agency receives a complete and valid dossier of calculation of charge for granting of water resource exploitation right.”.

5. To amend and supplement Article 11 as follows:

“Article 11. Order and procedures for calculating the charge for granting water resource exploitation right

1. Procedures for receiving, appraising and approving the charge for granting water resource exploitation right for works that have been operated:

a) The dossiers for calculating the charge for granting water resource exploitation right, including the Declaration on information for calculating the charge for granting water resource exploitation right under Appendix III attached to this Decree shall comprise the following main contents: Quality of water source; type of water source, conditions of exploitation, scale of exploitation, duration of exploitation, the period to calculate charge, the exploited water output for each use purpose; price to calculate charge, collection rate of charge for each use purpose; calculation of charge for each use purpose, total amount of charges for granting right, payment plans for granting right and attached proof documents.

b) The receipt and appraisal of charge for granting water resource exploitation rights shall be performed concurrently with the receipt and appraisal of dossiers of request for the grant, extension, adjustment and re-issuance of water resource licenses.

c) When submitting a dossier of request for granting the license to exploit and use water resources, the agency receiving and appraising dossiers shall be responsible for submitting the draft decision on approval of the charge for granting water resource exploitation right under Appendix V attached to this Decree.

2. Procedures for receiving, appraising and approving the charge for granting water resource exploitation right for work that has not been operated:

a) Within 05 (five) working days from the starting operation date of the work, the license holder must submit the dossier for calculation of the charge for granting water resource exploitation right;

b) The dossier for calculation of charge for granting water resource exploitation right includes: Declaration on information for calculating the charge for granting water resource exploitation right under Point a, Clause 1 of this Article; the copy of the license to exploit and use water resources;

c) The license holder shall submit 02 (two) dossier sets to dossier-receiving agency by post, online or directly; the dossier-receiving agency shall be responsible for considering and checking the dossier. In case the dossier is invalid, within 05 (five) working days, the dossier-receiving agency shall return that dossier and attach an explanation document thereof;

d) Within 15 (fifteen) working days from the date of receiving the valid dossier under Point b of this Clause, the dossier-receiving agency shall be responsible for appraising dossier and establishing an appraisal council in case of necessity. Expenses for appraisal shall be covered by the proceeds from collecting charges for appraisal of dossiers of request for granting the licenses to exploit and use water resources.

If the dossier is eligible, the dossier receiving-appraising agency shall submit it to the competent agencies for approval; if the dossier is ineligible, the dossier receiving-appraising agency shall return the dossier to the license holder and clearly notify the reason. In case the dossier needs to be supplemented or revised, the dossier receiving-appraising agency shall send a written notice stating the contents to be supplemented and completed, the time for supplementing and completing the dossier shall not be included in the dossier appraising time.

3. In case the charge for granting water resource exploitation right of the work has been approved, if the license has only a change in the name of the license holder (re-issuance) and no change in the grounds for calculating the granting right charge under the decision approving the granting right charge as approved before, it is not required to adjust the decision approving the granting right charge. The content of the re-issued license must clearly state that the new license holder must perform the financial obligations, including the charge for granting water resource exploitation right as approved in the decision approving the granting right charge.

6. To amend and supplement Article 12 as follows:

“Article 12. Adjustment, retrospective collection and refund of the charge for granting water resource exploitation right

1. The charge for granting water resource exploitation rights shall be adjusted in one of the following cases:

a) The content of the license to exploit and use water resources has been adjusted that leading to change in the grounds for calculating the charge for granting exploitation right under this Decree or change in the approved contents on the charge for granting right;

b) The average annual electricity (E₀) has been adjusted compared to the design dossiers of hydroelectric works, which is certified in writing by the competent state agency;

c) The work is damaged due to a force majeure event, so it cannot continue to be operated or must be stopped under the request of the competent state agency. The reduction adjustment level shall be calculated based on the number of days that the work has to stop operating;

d) Adjustment shall be only applicable to the remaining period of the license. The adjustment level shall not increase more than 20% of the remaining amount payable as approved, except the case prescribed at Point b of this Clause.

2. Procedures for adjusting the charge for granting water resource exploitation right:

a) For the case prescribed at Point a, Clause 1 of this Article, the organization or individual must submit the Declaration on information for calculating the charge for granting water resource exploitation right under Appendix III attached to this Decree. The receipt and appraisal of dossiers shall be performed concurrently with the receipt and appraisal of the dossiers of request for adjustment of the water resources license;

b) For the cases prescribed at Points b and c, Clause 1 of this Article, the license holder shall submit a written request for adjustment enclosed with the proof documents to the dossier-receiving agencies prescribed in Article 10 of this Decree. In the case specified at Point c, Clause 1 of this Article, the dossier-appraising agency shall send a written request for confirmation from the Department of Natural Resources and Environment of the locality where the work is located (for works licensed by the Ministry of Natural Resources and Environment); receive the confirmation of the Division of Natural Resources and Environment (for works licensed by the provincial-level People’s Committees) of the time when the works have to stop being exploited;

Within no more than 15 (fifteen) working days, the dossier-receiving agency shall be responsible for examining the dossier and submitting it to the competent agency under Article 10 of this Decree for consideration and decision on the adjustment; in case the dossier needs to be supplemented or amended, the dossier-receiving and appraising agency shall send a written notice specifying the contents to be supplemented and completed to the license holder; the time for supplementing, completing the dossier and the period of collecting opinions of confirmation on the time for which the work’s exploitation is stopped shall not be included in the time of dossier appraisal;

c) The adjustment of the charge for granting water resource exploitation right must be based on the price for calculating the charge for granting water resource exploitation right when the competent agency receives the complete and valid dossier for adjustment of the charge for granting water resource exploitation right. In the case specified at Point c, Clause 1 of this Article, the price for calculating the charge for granting water resource exploitation right is the price for calculating the charge for granting the right under the previous decision approving the charge for granting rights.

3. The charge for granting water resource exploitation right shall be retrospectively collected in one of the following cases:

a) The actual operating date of the work is earlier than the date of approval of the charge for granting water resource exploitation right. The amount of retrospective collection shall be calculated based on the number of exploitation days before the date of approval of the charge for granting the right;

b) There are arising purposes of water exploitation and use which must be charged, but the competent state agencies have not adjusted the licenses;

c) The actual scale and output of exploited water are higher than those stated in granted license;

d) Fraudulent in declaring, calculating for granting water resource exploitation right or making dishonest declarations leading to decrease in the payable amount;

dd) The retrospective collection of the charge for granting water resource exploitation right must be based on the price for calculation the charge for granting water resource exploitation right at the previous time of deciding on approving the price for calculation the charge for granting water resource exploitation right.

4. In case the competent state agency decides to revoke the license or the license holder returns the granted license, the charge for granting water resource exploitation right shall be refunded. The amount of refund shall be calculated based on the remaining days of the granted license at the time of revoking, the amount paid, and the price for calculation the charge for granting water resource exploitation right in the decision approving the charge for granting water resource exploitation right.

5. Procedures for retrospectively collecting and refunding the charge for granting water resource exploitation right:

a) In case of retrospective collection the charge for granting water resource exploitation right, when the competent agency that approves the charge for granting water resource exploitation right detects the cases specified in Clause 3 of this Article or receives a written request from the license holder on the retrospective collection of the charge for granting water resource exploitation right in the cases specified in Clause 3 of this Article, the competent agency shall be responsible for considering deciding on retrospective collection within 15 (fifteen) working days from the date of detecting;

b) In case of refunding the charge for granting the right, when the competent state agency issues a decision on revocation of the license or a decision on approval of the return of the license, the agency competent to approve the charge for granting water resource exploitation right shall consider and issue a decision on refund of the charge for granting water resource exploitation right within 10 (ten) working days;

c) During the appraisal of the retrospective collection and refund of the charge for granting water resource exploitation right, the agency competent to appraise the charge for granting water resource exploitation right shall consider requesting the license holder to provide specific proof documents serving as the grounds for determining the amount to be collected and refunded (if necessary) no more than 01 (one) time.

6. The agency competent to approve the charge for granting water resource exploitation right shall decide on adjustment of the charge for granting water resource exploitation right and send a written notice of the retrospectively collected or refunded charge amount to the license holder and the Tax Department of locality where the water exploitation work is located and provide reasons for collection and return provide reasons for retrospectively collection and return. Duration for paying such retrospectively collected charge amount is no later than 90 days from the date of issuance of the notice of the tax agency.”.

7. To amend and supplement Article 14 as follows:

“Article 14. Methods of collection, payment, management, and use of the charge for granting water resource exploitation right

1. The charge for granting water resource exploitation right shall be annually paid according to the amount specified in the decision on approval for the charge for granting water resource exploitation right. The license holder shall choose to pay once a year, twice a year, or once for the whole approved period based on their ability. The lump-sum payment for the whole approved period of the charge for granting shall be decided based on the proposal of the license holder by the agency competent to approve the charge for granting right and specified in the decision approving the charge for granting the right.

2. The collection, payment and refund of the charge for granting water resource exploitation right must comply with the law on tax administration and this Decree.

3. The charge for granting water resource exploitation rights shall be collected and remitted to localities where water exploitation works are located. For exploiting water resource works that are reservoirs located in ​​02 (two) provinces or more, the charge for granting water resource exploitation right shall be divided to each province based on the ratio (%) of the water resource royalty payment.

4. The management, use, and refund of the charge for granting water resource exploitation right shall be performed under the law on state budget; the arrangement of the annual state budget shall be considered and prioritized to ensure the protection of water resource, to set up landmarks on the water source protection corridor, to supervise water exploitation and to prevent, respond to incidents of water pollution based on the total amount of the charge for granting water resource exploitation right collected.

5. The charge for granting water resource exploitation right is a type of expenditure that is included in the production cost of the license holder.”.

Article 2. Transitional provisions

1. For works whose charge for granting water resource exploitation right is approved before the effective day of this Decree, the charge for granting water resource exploitation right shall continue to be paid under approved decision. In case the extension or adjustment of the license leads to an adjustment of the charge for granting water resource exploitation right to exploit water resource, the provisions of this Decree shall be applied.

2. For the non-operated works whose charge for granting water resource exploitation right is approved under the Government’s Decree No. 82/2017/ND-CP dated July 17, 2017,  prescribing the method of calculation and rates of the charge for granting water resource exploitation right, the charge for granting water resource exploitation right are adjusted due to a change in the time of operation compared to the expected time of operation as stated in the decision on approving the charge for granting the right, the adjustment procedures shall be performed under Clause 6, Article 1 of this Decree and the price in the previous decision on approving the charge for granting water resource exploitation right shall be applied.

3. In case organizations and individuals have submitted complete and valid the dossiers of calculation of the charge for granting water resource exploitation right to competent state agencies before the effective date of this Decree, the appraisal and approval of the charge for granting shall comply with the Government's Decree No. 82/2017/ND-CP dated July 17, 2017, prescribing the method of calculation and rates of the charge for granting water resource exploitation right.

Article 3. Implementation responsibility

1. The Ministry of Natural Resources and Environment shall guide and organize the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, Chairpersons of People’s Committees of provinces and central affiliated cities, and other related organizations and individuals shall implement this Decree.

Article 4. Effect

1. This Decree takes effect on May 15, 2021.

2. This Decree annuls Appendix IV attached to the Government's Decree No. 82/2017/ND-CP dated July 17, 2017, prescribing the method of calculation and rates of the charge for granting water resource exploitation right.

For the Government

The Prime Minister

Nguyen Xuan Phuc

* All Appendices are not translated herein.