Circular No. 03/2012/TT-BTNMT on the management and use of land in the partially submerged areas of hydropower and irrigation reservoirs

CIRCULAR

REGULATIONS ON THE MANAGEMENT AND USE OF LAND IN PARTIALLY FLOODED AREAS OF HYDROELECTRIC AND IRRIGATION RESERVOIRS
HYDROPOWER, IRRIGATION

Based on the Land Law dated November 26, 2003;

Pursuant to Decree No. 181/2004/NĐ-CP dated October 29, 2004 of the Government guiding the implementation of the Land Law;

Pursuant to Decree No. 25/2008/NĐ-CP dated March 4, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Natural Resources and Environment; and Decree No. 19/2010/NĐ-CP dated March 5, 2010 of the Government amending and supplementing Points c, d, g, h, and i Clause 5 Article 2 of Decree No. 25/2008/NĐ-CP dated March 4, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Natural Resources and Environment;

Pursuant to Decree No. 112/2008/NĐ-CP dated October 20, 2008 of the Government on management, protection, and comprehensive exploitation of resources and environment of hydroelectric and irrigation reservoirs;

At the proposal of the Director General of the Land Management Department and the Head of the Legal Department,

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation

These Circulars regulate the management and use of land in partially flooded areas of hydroelectric and irrigation reservoirs (hereinafter referred to as partially flooded land).

Article 2. Scope of Application

These Circulars apply to agencies, organizations, households, individuals within the country, and foreign organizations and individuals involved in activities related to the management and use of partially flooded land in hydroelectric and irrigation reservoirs.

Article 3. Explanation of Terms

In this Circular, the following terms are understood as follows:

1. The dam owner is an organization or individual owning the dam for the exploitation of benefits from water storage or being assigned by competent state authorities to manage and operate the water storage facility.

2. Partially flooded land refers to the area of land within the hydroelectric and irrigation reservoirs that is not permanently submerged but may be submerged for up to six (06) months annually, depending on the operation schedule of each reservoir.

Chapter II
MANAGEMENT AND USE OF PARTIALLY FLOODED LAND

Article 4. Setting Boundary Markers for Partially Flooded Land

The dam owner shall be responsible for:

1. Taking the lead and coordinating with the Department of Natural Resources and Environment, the People's Committee of districts, towns, and cities under provinces and centrally governed municipalities (collectively referred to as District People's Committees), and the People's Committee of communes, wards, and towns (collectively referred to as Commune People's Committees) where there is partially flooded land to develop a plan for setting boundary markers to define the partially flooded area and submit it to the People's Committee of provinces and centrally governed municipalities (collectively referred to as Provincial People's Committees) for review and approval.

2. Taking the lead and coordinating with the District People's Committee and the Commune People's Committee where there is partially flooded land to implement the setting of boundary markers on-site after the plan for setting boundary markers for the partially flooded area has been reviewed and approved.

3. Handing over the boundary markers to the Commune People's Committee where there is partially flooded land for management.

4. The boundary marker dossier for partially flooded land shall be kept at the Department of Natural Resources and Environment (original copy) and the Commune People's Committee, the Office of Natural Resources and Environment, and the dam owner (copies); if there is a digital version, the boundary marker dossier shall be stored in the land database of the Department of Natural Resources and Environment.

Article 5. Developing a Plan for Using Partially Flooded Land for Agricultural and Forestry Production

1. The plan for using partially flooded land must ensure the primary purpose is hydroelectricity and irrigation, combined with agricultural and forestry production as prescribed in Decree No. 112/2008/NĐ-CP dated October 20, 2008 of the Government on management, protection, and comprehensive exploitation of resources and environment of hydroelectric and irrigation reservoirs, including: developing forests, planting perennial trees, planting annual crops, and seasonal aquaculture.

2. The plan for using partially flooded land must clearly delineate the area of land allocated for each purpose: developing forests, planting perennial trees, planting annual crops, and seasonal aquaculture, and shall be developed by the Commune People's Committee where there is partially flooded land, in coordination with the dam owner, and submitted to the District People's Committee for review and approval.

3. The draft plan for using partially flooded land must be publicly displayed at the office of the Commune People's Committee where there is partially flooded land for thirty (30) days to solicit public opinions before submission to the District People's Committee for review and approval.

4. After the District People's Committee reviews and approves the plan for using partially flooded land, it must be publicly announced at the office of the Commune People's Committee where there is partially flooded land.

Article 6. Objects of Allocation and Subcontracting of Partially Flooded Land

1. The allocation and subcontracting of partially flooded land shall be within the jurisdiction of the People's Committee of the commune where the partially flooded land is located (hereinafter referred to as the allocating party).

2. The objects receiving the subcontracting of partially flooded land are organizations, households, and individuals (hereinafter referred to as the receiving party). The area of partially flooded land allocated for direct agricultural and forestry production by households and individuals residing legally within the commune, ward, or town with partially flooded land shall be prioritized for households and individuals whose agricultural and forestry production land was reclaimed for hydropower and irrigation purposes. In cases where there are no households or individuals willing to accept the allocation, consideration may be given to allocating it to organizations.

3. The price of subcontracting partially flooded land shall be determined by the People's Committee of the district based on the local agricultural land price. The funds from the subcontracting of partially flooded land shall be managed and utilized like the revenue from leasing communal public land of the commune, ward, or town.

Article 7. Forms of Allocation and Subcontracting of Partially Flooded Land

1. Allocation and subcontracting according to crop seasons for annual crop planting with a total duration of five years.

2. Stable allocation and subcontracting according to the crop cycle or business cycle for perennial crop planting or afforestation with a maximum total duration of fifty years.

3. Allocation and subcontracting according to the season or annually for land with water surfaces for aquaculture with a total duration of five years.

Article 8. Utilization of Partially Flooded Land

1. The utilization of partially flooded land must comply with the land use plan approved by the competent authority, ensuring that it does not affect the primary purpose of hydropower and irrigation; adhering to technical regulations of relevant sectors and environmental protection regulations; not affecting the technical characteristics of the reservoir, and not obstructing the flow into the reservoir.

2. The utilization of partially flooded land must be carried out in accordance with Article 5 and Clauses 4 and 5 of Article 8 of Decree No. 112/2008/NĐ-CP dated October 20, 2008 of the Government on management, protection, and comprehensive exploitation of resources and environment of hydropower and irrigation reservoirs.

3. The People's Committee of the commune shall organize and direct the implementation of the land use plan for partially flooded land in their locality, inspect, detect, and promptly prevent any violations. The People's Committee of the district shall be responsible for inspecting the implementation of the land use plan for partially flooded land that has been approved.

Chapter III
RESPONSIBILITIES AND LIMITATIONS OF THE ALLOCATING PARTY

RIGHTS AND OBLIGATIONS OF THE RECEIVING PARTY

Article 9. Responsibilities and Authorities of the Allocating Party of Partially Flooded Land

1. Responsibilities:

a) To bear responsibility before state agencies with authority regarding the management and use of partially flooded land according to the approved land use plan;

b) To accurately determine the area and boundary limits of the partially flooded land to be subcontracted on maps and in reality;

c) To develop and publicly announce the subcontracting plan democratically before implementing the subcontracting;

d) To consider reducing payments due from the receiving party under the contract when risks occur causing damage;

e) To compensate the receiving party for damages according to the law if the contract is violated.

2. Authorities:

a) To terminate the subcontracting contract when the receiving party violates the contract and demand compensation for damages according to the law;

b) To take measures and procedures to recover the allocated land area when illegal transfer of the allocated land is discovered, in accordance with the regulations;

c) To collect, manage, and utilize the subcontracting funds according to Clause 3 of Article 6 of this Circular;

d) To inspect and supervise the implementation of the subcontracting contract, ensuring compliance with current laws.

Article 10. Obligations and benefits of the party receiving the lease

1. Obligations:

a) Utilize submerged land areas in accordance with the land use plan approved by competent authorities and the provisions of the law;

b) Comply with regulations on disease prevention and control for crops and livestock; protect land and water resources in accordance with the law; improve and fertilize the leased land area without causing degradation or alteration of its structure and topography;

c) Pay the lease fee to the party granting the lease in accordance with the contract signed by both parties;

d) Return the leased submerged land area when it is reclaimed by state agencies in accordance with the law;

đ) Shall not transfer the lease contract under any form without the written consent of the party granting the lease. If unauthorized transfer is discovered, the contract must be terminated and the land returned;

e) Be subject to inspection and supervision by state agencies regarding the use of submerged land areas. Compensate the party granting the lease for any breach of contract; be subject to administrative penalties or criminal liability if violating the law in the use of submerged land areas;

2. Rights:

a) Actively produce on the leased land area, enjoying the fruits of investment on the leased land area according to the submerged land lease contract;

b) Be compensated for damages if the party granting the lease breaches the contract;

c) Be compensated and supported for assets attached to the land in accordance with the law when state agencies reclaim the leased land for other purposes;

d) Be exempted from certain payments to the party granting the lease in accordance with the law in cases of natural disasters or risks caused by reservoir operation;

Chapter IV
DOCUMENTATION AND PROCEDURES FOR LEASING

Article 11. The documentation for leasing submerged land areas shall be established based on the model issued along with this Circular, including:

1. Application for leasing submerged land areas (Model No. 01);

2. Sketch map of the submerged land parcel (Model No. 02);

3. Lease contract for submerged land areas (Model No. 03);

4. On-site record of transferring submerged land areas (Model No. 04).

Article 12. Procedures and formalities for leasing submerged land areas

1. The party receiving the lease submits an application for leasing submerged land areas to the party granting the lease;

2. The party granting the lease is responsible for reviewing the application for leasing submerged land areas, and if the conditions are met, notify the party receiving the lease and carry out the extraction of the map or cadastral survey of the area; prepare the lease contract for submerged land areas;

3. Both parties sign the lease contract for submerged land areas; organize the on-site transfer of submerged land areas and sign the on-site record of transferring submerged land areas;

4. The time to complete the tasks stipulated in Clauses 1, 2, and 3 of this Article shall not exceed fifty (50) working days from the date the party granting the lease receives all valid documents;

Chapter V
IMPLEMENTATION

Article 13. Effective Date

This Circular takes effect from May 26, 2012;

Article 14. Responsibility for implementation

1. The Director of the Land Management General Department is responsible for guiding, inspecting, and urging the implementation of this Circular and compiling reports to the Ministry of Natural Resources and Environment at the annual land statistics reporting time;

2. The Chairman of the Provincial People's Committee directs levels and sectors within the province to manage and utilize submerged land areas in accordance with this Circular;

3. The Director of the Department of Natural Resources and Environment is responsible for assisting the Provincial People's Committee; the Head of the Natural Resources and Environment Office is responsible for assisting the District People's Committee; cadres of the land administration office at the commune level are responsible for assisting the Commune People's Committee in organizing the implementation of this Circular;

4. The dam owner is responsible for coordinating with the Department of Natural Resources and Environment, the District People's Committee, and the Commune People's Committee to manage and utilize submerged land areas in accordance with this Circular;

During the implementation process, if there are any difficulties, relevant agencies, organizations, households, and individuals should promptly report to the Ministry of Natural Resources and Environment for consideration and decision;