NIVEL DE EMPLEO
3.4 RIESGOS DE LAS REFORMAS ADMINISTRATIVAS UNA MIRADA DESDE SU MARCO JURÍDICO.
3.4.3 LAS DEMANDAS DE PERSONAL CON CAPACITACIÓN ESPECIALIZADA.
of state management in respect of water resources.”
Article 60 (para.3):
“3. The Ministry of Agriculture and Rural Development shall integrate and manage the results of a basic survey, inventory and evaluation of water resources and establish a database on water resources.”
Article 59 (para.3)
“3. The Ministry of Agriculture and Rural Development shall approve river basin plans and hydraulic works system plans as authorized by the Government.”
Environment is a governmental agency, performing the state management of land, water resources, mineral resources and geology, the environment; meteorology and hydrology, metrology and cartography, sea and islands…”
Article 2, para. 6 (f)
“6. Tasks and powers of the Ministry of Natural Resources and the Environment regarding water resources:
f. To build, manage and exploit water source
observation networks, to organize basin surveys
on, and inventory and assessment of water resources nationwide; to notify branches and localities of water source potential so that they can adopt master plans and plans to use water rationally, economically and efficiently.”
Government’s Decree No. 120/2008/ND- CP
Article 9, para.2:
“The Ministry of Natural Resources and Environment
Article 17, para. 1a:
shall assume the prime responsibility for, and coordinate with, other ministries, branches and People’s Committees (provincial level); organizing basic surveys of the river basin environment and water resources; guiding the making plans on distribution of river basin environment-water resources data directories”
“The Ministry of Natural Resources and Environment
following secondary regulations:
shall formulate planning tasks and draft for river basins on the list of big river
Government’s Decree No. 01/2008/ND-CP on stipulating functions, duties, authorities and organizational structure of the Ministry of Agriculture and Rural Development;
Government’s Decree No. 25/2008/ND-CP on specifying the functions, tasks, authority and organizational structure of The Ministry of Natural Resources and the Environment;
Government’s Decree No. 120/2008/ND-CP on River Basin Management.
Whereas, the Ministry of Agriculture and Rural Development based on the Law on Water
Resources, shall be responsible to the Government to implement the function of state management in respect of water resources.
In contrast, as regulated by Decree No.
25/2008/ND-CP issued in March 04, 2008 and the Government’s Decree No.120/2008/ND-CP of December 01, 2008; the Ministry of Natural Resources and Environment is the governmental agency that performs the state management of water resources nationwide. In practice, this leads to conflicts over resource allocation and
responsibilities, and the reluctance of agencies to fulfill their tasks.
Problems:
Violation against the Law on Water Resources; Consequences:
Violation against the Law on the Promulgation of Legal Documents 2008.
69
basins or the list of inter-provincial river basins”.
Article 19, para. 6:
“The Ministry of Natural Resources and Environment
Content of the Law on Water Resources
shall inspect and annually report to the Prime Minister on the implementation of river basin planning throughout the country.
1. Regarding the discharge of wastewater into water sources;
Article 18:
“Organizations and individuals using water in production, business and other activities wishing to discharge wastewater into water sources must apply for permission
Government’s Decree No. 149/2004/ND- CP
from a competent state authority.”
Article 6, para. 2:
“Article 6: Exemption from licensing: …
2. Domestic wastewater discharge into water sources at small household scale”.
Circular of MONRE No. 02/2005/TT- BTNMT
Part I, 3
“Exploitation and use of water resources and discharge of wastewater into water sources within the family scale” shall be understood as the exploitation and use of water resources and discharge of wastewater into water sources with a volume or a capacity not exceeding:
a. 0.02m3/s, for surface water exploitation and use for agricultural production; b. The installed machine capacity of 50 kW,
for surface water exploitation and use for power generation without diverting water sources;
c. 100 m³/day for surface water exploitation and use for other purposes;
d. 20m³/day for exploitation and use of
Regarding the discharge of wastewater into water sources, as regulated by Article 18 of the Law on Water Resources, organizations and individuals using water in production, business and other activities wishing to discharge wastewater into water sources must apply for permission from the competent state authority.
Problems
In contrast, Government’s Decree No. 149/2004/ND-CP issued on July 27, 2004, providing regulation on the licensing of water resources exploitation, extraction and use; as well as discharging of wastewater into water sources, “extended” an exception where “domestic wastewater discharge into water sources at small household scale” does not need any permission.
:
Further, based on Circular No. 02/2005/TT- BTNMT, still the definition of the “domestic wastewater discharge into water sources at small household scale” is not clear. Circular No. 02/2005/TT-BTNMT only specifies “10m³/day for the discharge of wastewater”
Questions
1. How can the concept “small household” be understood?
:
2. Can domestic “untreated” wastewater also be discharged into water sources? In the case of no, how can it be proved whether wastewater has been
underground water.
e. 10m³/day for discharge of wastewater.
treated or not?
3. Can domestic wastewater be discharged into water sources for any purposes?
Regulations of secondary legal documents are unclear. It can be misunderstood, causing confusion.
Consequences:
Violation against the Law on Water Resources.
Violation against the Law on the Promulgation of Legal Documents 2008.
Content of the Law on Water Resources
2. Regarding the right tocomplain, denunciate, and initiate lawsuits against acts/ decisions issued by
administrative agencies;
Article 22, para. 4:
“Organizations and individuals exploiting and using water resources shall have the right to file claims and initiate lawsuits to a competent state authority against acts of infringement upon their rights of exploitation and utilization of water resources and other legitimate interests.” Article 69
(provides regulation on the right to file claims and denunciations and initiate lawsuits)
“1. Organizations and individuals subjected to inspection shall have the right to file claims or initiate legal action against the decision or sanction measures given by the Inspection Team or Inspector in accordance with the provisions of law.
2. Individuals shall have the responsibility to denunciate to the competent state authority acts of violating the Law on Water Resources;
3. The agency receiving the claims,
denunciation and legal actions shall have the
Decision of MONRE No. 05/2003/QD-BTNMT
Article 13:
Responsibilities and rights of organizations and individuals licensed to explore groundwater: 1. To conduct exploration according to the schemes already approved by competent state agencies;
2. To comply with the provisions of this regulations and other relevant law provisions;
3. To supply truthful information on the exploration situation upon inspection by the water resource management agency; 4. To pay compensation for damage caused
by groundwater exploration;
5. To pay a fee for groundwater exploration licensing, according to law provisions. Article 14:
Responsibilities and rights of organizations and individuals licensed to exploit groundwater:
Regarding the right tocomplain, denunciate, and initiate lawsuits against acts/ decisions issued by administrative agencies
Based on the Law on Water Resources (Article 22, para.4, Article 69), organizations and individuals have the rights to complain, denunciate, and initiate lawsuits against acts/ decisions issued by administrative agencies infringing upon their rights of exploitation and utilization of water resources and other legitimate interests. As regulated by the Government’s Decree No. 67/2003/NC-CP, amended by Decree No. 04/2007/ND-CP, regarding collection, remittance, management and use of the environmental protection charges for wastewater, the
“organizations and individuals” shall only have the right to complain and denunciate only. How’s about the right to initiate lawsuits to the courts? It might have been “forgotten” to be mentioned. Problems
This important right is not guaranteed by many water-related secondary regulations.
:
For instance, the Decision of MONRE No. 05/2003/QD-BTNMT of September 04, 2003 promulgating the regulations on licensing of
71
responsibility to examine and settle them promptly in accordance with the provisions of the legislation on claims and
denunciations and other provisions of the law.”
(1) To exploit water according to the provisions of their licenses;
(2) To comply with the provisions of this regulation and other relevant law provisions;
(3) To supply truthful information on the exploitation situation upon inspection by the water resource management agency; (4) To report in a timely manner to the
licensing agencies when detecting big changes in the volume and quality of groundwater and the surrounding environment;
(5) To pay a fee for groundwater exploitation licensing and natural resource tax, according to law provisions. (6) To be considered for compensation
according to the law’s provisions when competent state agencies suspend the validly of their licenses for defence or security reasons, or when in the public interest.
Government’s Decree No. 67/2003/NC-CP (amended by Decree No. 04/2007/ND-CP)
Article 14:
“Complaints and denunciations about the collection, remittance, management and use of environmental protection charges for
wastewater prescribed in this Decree – and the settlement thereof – shall be made in
compliance with the provisions of the
legislation on complaints and denunciations, as well as the legislation on fees and charges.”
groundwater exploration, exploitation and drilling practice mentions about the “responsibilities and rights of organizations and individuals licensed to explore groundwater” (Article 13) and the “responsibilities and rights of organizations and individuals licensed to exploit groundwater” (Article 14), but the right to complain and initiate lawsuits against acts/ decisions issued by
administrative agencies has not been specified.
Questions
1. How the rights of “organizations and
individuals” exploiting and using water resources can be guaranteed, when there is a lack of the participation by judicial organizations?
:
2. Do “organizations and individuals” exploiting and using water resources still have the right to initiate lawsuits to the courts against
acts/decisions issued by administrative agencies, when the regulations are unclear, or not
specifically provided?
3. Who should be responsible for such cases where the regulations of secondary legal documents are unclear?
Regulations of secondary legal documents are unclear. It can be misunderstood, causing confusion.
Consequences:
Violation against the Law on Water Resources.
Violation against the Law on the Promulgation of Legal Documents 2008.