To implement the 2023 Water Resources Law, on May 16, 2024, the Government issued Decree 54/2024/ND-CP, which regulates the practice of groundwater drilling, declaration, registration, licensing, water resources services, and the fees for water resources exploitation rights ("Decree 54"). Below are some notable contents of Decree 54, as updated by ATA Legal Services, as follows:
1. Clarification of cases where surface water exploitation projects do not require declaration, licensing, and registration for water resources exploitation and usage:
1.1. Small-scale surface water exploitation projects:
a) Exploiting surface water for business, service, and non-agricultural production purposes (including exploitation for water use in cooling machines, equipment, steam generation, and heating), and construction projects with a scale not exceeding 100 m³/day and night;
b) Exploiting surface water for domestic purposes with a scale not exceeding 100 m³/day and night; exploiting surface water for domestic purposes with a scale not exceeding 200 m³/day and night in border areas, islands, economically disadvantaged areas, and specially disadvantaged economic areas;
c) Irrigation reservoirs and dams with a total volume of less than 0.01 million m³; other surface water exploitation projects for agricultural production and aquaculture with a scale not exceeding 0.1 m³/second;
d) Exploiting surface water for electricity generation with an installed capacity not exceeding 50 kW;
đ) Exploiting seawater for production, business, service, and aquaculture activities on islands and mainland areas with a scale not exceeding 10,000 m³/day and night.
1.2. Using river, stream, canal, ditch, and reservoir surface water for small-scale aquaculture, business, and service activities with a surface water usage area not exceeding 100 m² (except for water use in tourist areas and spots).
1.3. Digging small-scale ponds, lakes, canals, and ditches to create spaces for water collection, storage, and conveyance, and for landscaping, including:
a) Digging ponds and lakes with a surface water area not exceeding 500 m²;
b) Digging canals and ditches with a water conveyance flow not exceeding 0.1 m³/second or a bottom width not exceeding 0.5 m;
1.4. Projects that block rivers, streams, canals, and ditches for the purposes of saltwater prevention, water source creation, flood prevention, and landscaping (except for irrigation and hydropower reservoirs and dams), which are temporary and seasonal projects with a continuous usage period not exceeding 3 months.
1.5. Organizations and individuals exploiting water for domestic use in areas during periods of drought, water scarcity, saltwater intrusion, pollution incidents, or epidemics. For projects with an exploitation scale requiring registration and licensing, after the aforementioned period ends, the exploitation must be immediately stopped, and within no more than 30 days, the project must be reported to the Department of Natural Resources and Environment where the project is located.
2. Detailed regulations on conditions for organizations providing water resources services
Water resources services are one of the prominent new features of the 2023 Water Resources Law. According to Article 70 of the 2023 Water Resources Law, water resources services include:
- Services supporting decision-making for the regulation and distribution of water resources;
- Services supporting decision-making for the operation of reservoirs and interconnected reservoirs.
Guiding this content in detail, Decree 54 stipulates that organizations providing water resources services as specified in Clause 1, Article 70 of the Water Resources Law must meet the following conditions:
- Have a decision on the establishment of the organization from a competent state agency, or one of the following certificates issued by a competent state agency: business registration certificate, business registration and tax registration certificate, or enterprise registration certificate, with functions and tasks related to the provision of water resources services.
- Have the necessary technical infrastructure, facilities, equipment, and software to ensure the capability to provide services as prescribed.
- Have a team of professional staff participating in the provision of services supporting decision-making for the regulation and distribution of water resources and the operation of reservoirs and interconnected reservoirs, meeting the requirements on human resources and infrastructure of the water resources service provider, including the following conditions:
+ Be Vietnamese citizens or foreign nationals with work permits in Vietnam as per labor law regulations.
+ Hold a university degree or higher in a field relevant to the assigned tasks. These degrees must be granted by educational institutions in Vietnam or abroad in accordance with the law.
+ Have a recruitment decision or a labor contract with the organization as per the law. If the labor contract is of a definite term, at the time of preparing the dossier proving the service operation capacity in water resources, the contract must be valid for at least six months.
3. Expansion of subjects and detailed regulations on water resources exploitation rights fees
According to Decree 82/2017/ND-CP (amended and supplemented by Decree 41/2021/ND-CP), water resources exploitation rights fees are applied to users of water for production and business purposes, ranging from 0.1% to 2.0% based on the price of water resources exploitation rights.
The new regulations in Decree 54 expand the subjects for water resources exploitation rights fees to include (i) water resources exploited for domestic use with a fee rate of 0.1%, and (ii) surface water used for agriculture, aquaculture, and groundwater for irrigation of rice, crops, and other plants with a fee rate of 0.05%.
4. Community consultation on the impact of water exploitation projects before construction and not exceeding 12 months before submission of the application for a surface water exploitation license
Previously, Decree 02 only required community consultation during the investment project preparation phase, if applicable. However, Decree 54 specifies that the community consultation period must be before the construction of the project and not more than 12 months before submitting the application for a surface water exploitation license for projects including:
- Reservoirs and dams constructed on rivers, streams, canals, and ditches;
- Projects blocking rivers, streams, canals, and ditches for purposes such as creating water sources, preventing saltwater intrusion, flood control, and landscaping;
- Surface water exploitation projects with an extraction scale of 10 m³/second or more for agricultural production, aquaculture, and 300,000 m³/day and night or more for domestic use, business, services, and production (including exploitation for cooling machines, equipment, steam generation, and heating), and construction projects;
- Groundwater exploitation projects with an extraction scale of 12,000 m³/day and night or more.
This regulation is clarified to facilitate project investors in the community consultation process.
For projects that have already carried out or completed community consultation according to Decree 02, there is no need to re-consult as per Decree 54 and they can continue under Decree 02's regulations.
Decree 54 takes effect from July 1, 2024, and replaces Decree 02/2023/ND-CP, Decree 82/2017/ND-CP, Decree 41/2021/ND-CP, and Decree 54/2015/ND-CP.
Note: Decree 54 provides detailed guidance on cases where licenses, registrations, declarations, approvals for water resources exploitation rights fees, and payment of such fees have been completed under the old regulations before July 1, 2024. In these cases, organizations and individuals have the right to choose to continue under the old regulations or request to proceed under Decree 54.
Comment: