Ordinance No. 36-L/CTN dated September 10, 1994 of the Standing Committee of National Assembly on utilization and protection of water works

ORDINANCE

ON UTILIZATION AND PROTECTION OF WATER WORKS

With a view to strengthening the efficiency of State management, enhancing the responsibility of the State agencies, economic and social organizations, units of the people's armed forces and all individuals, in the utilization, maintenance and protection of the water works in order to serve production and socio-economic development, thus contributing to ensuring social safety and national security;

Pursuant to Articles 17 and 91 of the 1992 Constitution of the Socialist Republic of Vietnam;

This Ordinance provides for the utilization and protection of the water works.

Chapter I

GENERAL PROVISIONS

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

The utilization and protection of the water works which are related to the dike, typhoon and flood-control projects, hydro-electric power projects, and urban water supply and drainage systems must comply with the provisions of this Ordinance and the other legal provisions on the dike, typhoon and flood control, hydro-electric power projects, and urban water supply and drainage systems.

Article 2.- In this Ordinance, the following technical terms are understood as follows:

1. "Irrigation project" is an eco-technical unit of the infrastructure which aims to utilize water resources; provide prevention against the harm of water, and protection of the ecological system. Collectively, it includes reservoirs, dams, sluice gates, pumping stations, wells, penstocks, canals, works on canals, and water banks of all types;

2. "Irrigation project system" includes water works in a certain geographical area which are directly inter-linked in terms of utilization and protection;

3. "Water-consuming household" is an individual or organization that benefits from, or does business with, the water works in form of utilizing the direct service of the enterprise in charge, for irrigation and drainage, land transformation, power generation, aquaculture, transport and communication, tourism, scientific research, and water supply for industrial production and popular consumption;

4. "Irrigation fee" is part of the service fees on the utilization of water from the water works, and is used to cover part of the expenditure on maintenance, operation and protection of the water works.

Article 3.- A water works, which is built with capital from any sources, shall comply with the scheme, plan and eco-technical blueprint already approved by the competent State agency, in which responsibility in utilization and protection is clearly assigned to organizations or individuals.

Article 4.- The State has the policy to encourage and protect the lawful interests of organizations and individuals at home and abroad that invest capital in, conduct scientific research on, and apply scientific and technological advances to, the supplementary construction, maintenance, utilization and protection of the water works.

Article 5.- The People's Councils at all levels, within their tasks and jurisdiction, shall decide the policies for development, utilization and protection of the water work system; supervise the implementation of those tasks, and the observance of the law on utilization and protection of the water works in their localities.

The Vietnam Fatherland Front and its member organizations, within their jurisdiction, are responsible for taking part in the education of the people, reconciling disputes, and monitoring the implementation of the law on the utilization and protection of the water works.

Article 6.- The State agencies, social and economic organizations, units of the people's armed forces and all individuals are responsible for protecting and complying with the provisions of law on the utilization and protection of the water works.

Article 7.- The household, which consumes water from a water works, has the duty to pay the water fee in accordance with the provisions of law.

The State shall have policies to encourage the water-consuming households to contribute to the maintenance, protection and development of the water works systems.

Article 8.- All acts, which are harmful to the water works, or involving usurpation or misuse of the water fee, are banned.

Chapter II

UTILIZATION OF WATER WORKS

Article 9.- The utilization of the water works is to be conducted in accordance with the following principles:

1. Complying with the project design in the plan and eco-technical blueprint already approved by the competent authority for construction, and not with the administrative boundaries;

2. The organizations or individuals stipulated for in Article 3 of this Ordinance are responsible for organizing the utilization and protection.

Section I. STATE ENTERPRISES

Article 10.- The system of irrigation works, which are built with capital allocated or deriving from the State budget, shall be utilized and protected directly by State enterprises which are collectively referred to as the Irrigation Project Company.

The Minister of Water Resources shall issue the Regulation on organization and operation of the Irrigation Project Company.

Article 11.- The Irrigation Project Company is a specialized business enterprise which utilizes an establishment of eco-technical infrastructure to serve social development and people's life. It has the status of a juridical person and financial autonomy, and operates on the principle of using revenues to cover expenditures. It shall be given financial support by the State in the following cases:

- The project suffers damage or crop failure due to natural calamities;

- The project has to combat against flood, inundation or drought;

- The project has to go under maintenance, or operates in areas of ethnic minority groups or in border, island or new economic zones;

- The project has to go through overhaul, repair or upgrading.

The Government shall set the levels of financial support for the above-mentioned cases for each type of irrigation projects operating in different specific conditions.

Article 12.- Proceeding from Articles 2, 7 and 11 of this Ordinance, the Government shall make detailed provisions on the irrigation fees, suitable for each type of irrigation projects and the practical situation at each region of the country; these fees do not yet include the return on capital invested in the construction of the project.

Article 13.- The financial resources of the Irrigation Project Company include:

- Irrigation fee;

- Allocations from the State budget;

- Revenues from the overall utilization of the irrigation project.

Article 14.- The financial procedure, accounting mode, time for clearing irrigation fees between the water-consuming households and the Irrigation Project Company, and the time for clearing bills for electric power consumption between the Irrigation Project Company and the Electric Power Company, shall be set by the Government.

Article 15.- The Irrigation Project Company has the tasks:

1. To make equitable supply of water and ensure service for production; to preserve the lipid water resources and protect the ecology;

2. To comply with the schemes, plans and eco-technical blueprints of the irrigation project system, which have been approved by the competent State agency;

3. To be the investor in the repair, upgrading and perfection of the irrigation project system;

4. To maintain the capacity of the project, and ensure that the project is safe and ready for long-term use;

5. To complement and perfect the regulatory procedure for the reservoir, the operating procedure for each project; to design the operating procedure of the system, submit it to the competent State agency for approval, and implement it;

6. To monitor, detect and promptly solve incidents; to check and maintain the project before and after each flood season;

7. To sign and implement contracts on utilization and protection of the project; to compensate for losses incurred by water-consuming households in accordance with the provisions in Paragraph 5, Article 17, of this Ordinance; to comply with the State provisions on finance;

8. To observe, monitor and gather statistics as required; to make study to draw experience and apply scientific and technological advances to the utilization and protection of the irrigation project.

Article 16.- The Irrigation Project Company has the rights:

1. To operate the projects in the system in accordance with the technical procedure and standards; to make comprehensive utilization of the project;

2. To collect irrigation fees as contracted;

3. To make recommendations to the competent authority for financial support as provided for in Article 11 of this Ordinance, to ensure the operation and development of the system;

4. To make recommendations to the Managerial Council of the system on matters concerning the mobilization of labor from water-consuming households to maintain and repair the irrigation project as required by the provisions of law;

5. To request the People's Committee in the locality where the irrigation project system is located, to take necessary measures to ensure the safety of the project in cases of emergency;

6. To recommend the local People's Committee, or call on the People's Court, to settle problems arising from the deliberate delay by water-consuming households in the payment of the full irrigation fees.

Article 17.- The water-consuming household, which takes water from the irrigation project, has the following rights and obligations:

1. To have a plan for water consumption and sign a contract to this effect;

2. To conserve water and protect the water environment;

3. To pay irrigation fees as contracted;

4. To protect the irrigation project within its utilization scope, and contribute labor to maintain and repair the irrigation project in accordance with the provisions of law;

5. To be compensated for losses caused by the irresponsibility on the part of the Irrigation Project Company;

6. To make recommendations on the utilization and protection of the irrigation project; to have its representative in the Managerial Council of the system;

7. To be provided with technical guidance on the utilization and protection of the irrigation project.

Article 18.- At the irrigation project system which is related to many localities, a council for the management of the system may be set up.

The Managerial Council is composed of:

1. The investor;

2. The representative of the local administration in the service area of the irrigation project system;

3. The Head of the Irrigation Project Company;

4. The representative of the water-consuming households;

5. Representatives of the branches concerned.

The Managerial Council shall have to make decision and plan for exploitation of the system; supervise the activities of the Irrigation Project Company and water users; and regulate the interests of water users.

The Minister of Water Resources shall issue a decision, or assign lower levels to issue a decision, on the establishment of the Managerial Council, and direct its activities.

Section II. NON-STATE ENTERPRISES

Article 19.- The investors in irrigation projects built without State budget allocations or a source of capital from the State budget, shall decide to exploit and protect the project as one of a cooperative, a private enterprise, a limited liability company, or a joint stock company, as stipulated by law and under the guidance of the Ministry of Water Resources.

Article 20.- In the exploitation of irrigation works, non-State enterprises must strictly observe the plan, economic-technical feasibility study, process, norms and technical standards already ratified by the competent State agency, and ensure a safe, efficient operation of the irrigation works in service of production.

Article 21.- Non-State enterprises must operate on the principle of ensuring both their own interests and those of water users; those non-State enterprises, which rely on the State's system of irrigation works to provide services, must pay the Irrigation Project Company for the use of water, as stipulated by law and under the guidance of the Ministry of Water Resources.

Article 22.- Those non-State enterprises, which exploit a system of irrigation works concerning many localities, can establish the Managerial Council under the guidance of the Ministry of Water Resources.

Chapter III

PROTECTING IRRIGATION WORKS

Article 23.- Those organizations or individuals, that exploit an irrigation works, must directly protect it.

The People's Committee of the locality, where there is an irrigation works, must protect it and ensure its safe operation as stipulated by the Ministry of Water Resources.

Article 24.- The investors in irrigation projects must take the initiative in making plans to prevent and fight natural disasters and acts of sabotage to ensure safety for the projects.

The investors in irrigation works concerning many branches and localities must collaborate with the agencies concerned to draw up plans and organize forces to protect them under the guidance of the Ministry of Water Resources.

Article 25.- Whoever discovers that an irrigation project is being damaged or threatened by an accident, must report in immediately to the local administration, the project managing agency, or the nearest State agency for solution.

Article 26.- The activities concerning the protection of irrigation works are stipulated as follows:

1. Before building a new irrigation project to supplement the existing irrigation system, the investor must observe the general plan and the concrete plan, and its economic-technical feasibility study must be ratified by the competent State agency in charge of irrigation works;

2. Any activity undertaken within the protection area of irrigation works which may affect its safe and efficient operation, must have permission from the competent State agency in charge of irrigation works;

3. In making a comprehensive use of an irrigation work for the purpose of electricity generation, communications and transport, aquaculture, tourism and other purposes, the users must abide by the process, norms and stipulations on the protection of irrigation works.

Article 27.- The area for protection of irrigation works is stipulated by Vietnam's Standards No.5060-90 issued on the 1st of July 1990 as follows:

1. For dams, depending on the grades of projects, the protection area from the base of the dam is:

- Grade I: 300m

- Grade II: 200

- Grade III: 100m

- Grade IV: 50m

- Grade V: 20m

With regard to reservoirs, the area of protection is along the circumference which is on the same height as the top of the dam.

With regard to irrigation works of national import, the Government shall have separate regulations.

2. With regard to irrigation and drainage sluices under the dykes, and sluices to prevent sea water and retain fresh water at rivermounths, their protection must comply with the Ordinance on Dykes;

3. Pumping stations must be equipped with protection fence;

4. With regard to canals:

a/ For irrigation canals with a flow of 2m3 to 10m3 per second, the area of protection is 5m from the outer edge of the canals; those irrigation canals with a flow of 10m3 or more per second, the area of protection is 10m from the outer edge of the canals;

b/ For drainage canals with a flow of 10m3 to 20m3 per second, the area of protection is 20m from the outer edge of the canal; for drainage canals with a flow of more than 20m3 per second, the area of protection is 30m from the outer edge of the canal.

The users of land within the area of protection of irrigation works must abide by the stipulations in Items 2, Article 26, of this Ordinance.

Article 28.- The following acts are strictly prohibited:

1. The operator, or manager of a system of irrigation works or an irrigation work, operates or orders the operation of irrigation works at variance with the process and technical norms already ratified;

2. Forcing in any form the operator or manager of a system of irrigation works or an irrigation works, to operate it at variance with the process and technical norms already ratified;

3. Using the machinery and equipment of irrigation works contrary to the design function;

4. Encroaching on and using land within the area of protection for irrigation works to build houses, loading and unloading yards and storages; soaking logs, bamboo, palm leaves, casting nets, and other activities that may block the current;

5. Digging earth and rock, dismantling or destroying projects; moving landmarks and signs of various types concerning irrigation projects; using explosive to fish and causing damage to the projects.

6. Releasing toxic wastes beyond the permissible levels stipulated by the law on environmental protection into the water source of irrigation works;

7. Despoiling headwater forests, causing floods, and exhausting water sources;

8. Other acts doing harm to irrigation works.

Chapter IV

STATE MANAGEMENT OF THE EXPLOITATION AND PROTECTION OF IRRIGATION WORKS

Article 29.- The Government exercises unified State management of the exploitation and protection of irrigation works on a national scale.

The Ministry of Water Resources is responsible before the Government for exercising the function of State management of the exploitation and protection of irrigation works.

The ministries and branches concerned, in furtherance of their tasks and powers, shall have to collaborate with the Ministry of Water Resources in exercising the function of State management of the exploitation and protection of irrigation works.

The People's Committees of various levels shall exercise the function of State management of the exploitation and protection of irrigation works in their localities under the guidance of the Ministry of Water Resources, and shall have to supervise the payment of irrigation fees by the users of the water of irrigation works in their localities.

The local agencies in charge of the management of irrigation works must help the People's Committees of the same levels exercise the function of State management of the exploitation and protection of irrigation works.

Article 30.- The State management of the exploitation and protection of irrigation works consists of the following:

1. Managing the elaboration and consideration of the overall plan, plan and economic-technical feasibility study for building new systems of irrigation works to effectively and safely serve production; creating favorable conditions for the exploitation and protection of irrigation works, the protection of aquatic resources in the project; and ensuring that these new systems are not inconsistent with the existing ones;

2. Considering the elaboration of the general plan and plan; adjusting and supplementing the economic-technical feasibility study to renovate and upgrade the existing system of irrigation works, and submitting it to the authorized level for ratification; supervising the quality of construction; organizing the testing on completion and the hand-over of the project; checking and inspecting the implementation of the plan for exploiting and protecting irrigation works;

3. Issuing statutory documents on the exploitation and protection of irrigation works, guiding and organizing the implementation of those documents;

4. Granting or withdrawing licenses for the exploitation of irrigation works;

5. Taking preventive measures in case an irrigation work is threatened by an accident;

6. Studying and applying scientific and technological advances in exploiting and protecting irrigation works; organizing professional training courses for those involved in exploiting and protecting irrigation works;

7. Educating and encouraging the people in exploiting and protecting irrigation works;

8. Guiding, checking and inspecting the collection and payment of the irrigation fee;

9. Examining and inspecting the quality and safety of irrigation works; the observance of laws on the exploitation and protection of irrigation works;

10. Settling disputes, complaints and denunciations on violations in the exploitation and protection of irrigation works;

11. Seeking international cooperation in the exploitation and protection of irrigation works.

Article 31.- The competence in settling disputes in operating projects, regulating the irrigation and drainage of water, collecting irrigation fees, making a comprehensive exploitation and protection of irrigation works is stipulated as follows:

1. Disputes in a province:

a/ Disputes within communes shall be settled by the President of the People's Committee of that commune. If further complaint is made, it shall be settled by the President of the People's Committee of the immediately higher level.

b/ Disputes between communes, wards or townships shall be settled by the President of the People's Committee of the district, precinct, town or city in the province. If further complaint is made, it shall be settled by the President of the People's Committee of the province or city concerned under the Central Government.

c/ Disputes between districts, precincts, towns or cities in a province and a city under the Central Government shall be settled by the President of the People's Committee of the province or city concerned under the Central Government.

If one or more sides involved in the dispute do not agree with the conclusion of the settlement mentioned in Points a, be, and c of Item 1 of this Article, they can protest to the Minister of Water Resources. The decision made by the Minister of Water Resources is final.

2. Disputes between provinces and cities under the Central Government, between ministries, branches and provinces and cities under the Central Government, and between ministries or branches shall be settled by the Minister of Water Resources. If further complaint is made, the issue shall be decided by the Prime Minister;

3. Disputes between ministries, branches, provinces and cities under the Central Government and the Ministry of Water Resources shall be decided by the Prime Minister;

4. Disputes in carrying out contracts on the exploitation and protection of irrigation works shall be settled by the People's Court.

Chapter V

INSPECTION OF THE EXPLOITATION AND PROTECTION OF IRRIGATION WORKS

Article 32.- The State managing agency in charge of the exploitation and protection of irrigation works in furtherance of the specialized function of inspection in the exploitation and protection of irrigation works shall have to collaborate with the specialized inspectors of ministries, branches and the local administration concerned in carrying out its task in this field.

The organization, tasks, powers and activities of specialized inspectors in the exploitation and protection of irrigation works shall be stipulated by the Government.

Article 33.- The contents of specialized inspection in the exploitation and protection of irrigation works include:

1. Inspecting the observance of laws on the exploitation and protection of irrigation works;

2. Inspecting the implementation of the process and technical norms; the implementation of general planning, planning and economic-technical feasibility study.

Article 34.- In the process of inspection, the Inspectors' Group or Inspectors have the right:

1. To request the organizations and individuals concerned to supply documents and answer the necessary questions for the inspection;

2. To take measures for technical inspection on the spot;

3. To handle violations in accordance with their powers, or submit them to the competent State agency for settlement.

4. To decide temporary suspension in emergency cases when the activities risk damaging irrigation works and to take responsibility before the law for such decision, and at the same time, report it immediately to the authorized State agency for settlement.

Chapter VI

REWARD AND HANDLING OF VIOLATIONS

Article 35.- Those organizations and individuals, that have made achievements in exploiting and protecting irrigation works and in preventing acts of damaging irrigation works, shall be commended and rewarded according to the State's common regulations.

Those who fight law-breaking acts in the exploitation and protection of irrigation works and who suffer damage to their property or health or lose their life, shall get compensations according to law.

Article 36.- Anyone, who encroaches on the land within the area of protection for irrigation works, does harm to irrigation works, or commits law-breaking acts in the exploitation and protection of irrigation works, shall be liable to administrative fines or prosecuted for their penal liability, depending on the nature and seriousness of the violation and the consequences arising therefrom.

Article 37.- Anyone, who out of irresponsibility or who abuses his/her position and powers to shield those persons guilty of breaching the law on the exploitation and protection of irrigation work, or decides to handle them contrary to law, shall be disciplined or prosecuted for their penal liability, depending on the nature and seriousness of the violation and the consequences arising therefrom.

Article 38.- Anyone, who misappropriates irrigation fees or misuses irrigation fees, shall be disciplined or prosecuted for their penal liability, depending on the nature and seriousness of the violation and the consequences arising therefrom.

Article 39.- Anyone who breaks the law on the exploitation and protection of irrigation works, causes damage to organizations or individuals, shall have to compensate for the damage as stipulated by law in addition to being penalized under Article 36, 37 and 38 of this Ordinance.

Chapter VII

IMPLEMENTATION PROVISIONS

Article 40.- All stipulations made earlier, which are contrary to this Ordinance, are now annulled.

Article 41.- This Ordinance takes effect as from the date of its promulgation.

The Government shall provide detailed guidance on the implementation of this Ordinance.