Circular No. 40/2014/TT-BTNMT on the practice of drilling underground water

CIRCULAR

Regulations on the practice of drilling underground water

________________

Based on the Law on Water Resources No. 17/2012/QH13 dated June 21, 2012;

Pursuant to Decree No. 21/2013/NĐ-CP dated March 4, 2013, promulgated by the Government, stipulating the functions, tasks, powers, and organizational structure of the Ministry of Natural Resources and Environment;

Based on Decree No. 201/2013/NĐ-CP dated November 27, 2013 of the Government detailing the implementation of certain provisions of the Water Resources Law;

At the proposal of the Director of the National Water Resources Management Department and the Head of the Legal Department;

The Minister of Natural Resources and Environment promulgates regulations on the practice of drilling underground water.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular stipulates the issuance, extension, modification of contents, reissuance, suspension of effect, revocation of drilling underground water practice licenses; responsibilities and authorities of licensing agencies and agencies receiving, examining, managing application files; rights and obligations of organizations and individuals granted licenses; sample application files and drilling underground water practice licenses.

Article 2. Applicability

This Circular applies to domestic organizations and individuals and foreign organizations and individuals (hereinafter referred to as organizations and individuals) practicing drilling investigation, surveying, exploration, exploitation of underground water (hereinafter referred to as drilling underground water practice) within the territory of the Socialist Republic of Vietnam.

Article 3. Responsibilities and authorities of licensing agencies and agencies receiving, examining, managing application files

1. Licensing agencies have the following responsibilities and authorities:

a) Issuing, extending, modifying contents, reissuing, suspending effect, revoking licenses according to the authority prescribed in Article 11 of this Circular;

b) Directing inspections and checks on the fulfillment of obligations by license holders as prescribed in Clause 2, Article 4 of this Circular.

2. Agencies receiving, examining, managing application files (hereinafter collectively referred to as application file handling agencies) have the following responsibilities and authorities:

a) Guiding licensing procedures; receiving, checking, examining application files for issuance, extension, modification of contents, reissuance of licenses as prescribed in Articles 13, 14, and 15 of this Circular;

b) Requesting organizations and individuals applying for licenses to supplement and complete application files when they are incomplete or not in compliance with regulations;

c) Notifying in writing organizations and individuals applying for licenses of the reasons why their application files do not meet the conditions for issuance, extension, modification of contents, reissuance of licenses;

d) Submitting to competent authorities for issuing licenses and being responsible for the results of examination of licensing application files;

đ) Organizing training and instruction on technical protection of underground water resources for organizations and individuals who need such training and instruction;

e) Publishing lists of organizations and individuals engaged in licensed practices and those violating the provisions of licenses on the Ministry of Natural Resources and Environment's electronic information website for cases within the licensing authority prescribed in Clause 1, Article 11 of this Circular or on local electronic information websites for cases within the licensing authority prescribed in Clause 2, Article 11 of this Circular;

g) Managing and storing application files and licenses.

Article 4. Rights and obligations of license holders

1. License holders have the following rights:

a) Engaging in drilling underground water practices nationwide according to customer requirements;

b) Participating in bidding for construction of drilling investigation, surveying, exploration, exploitation of underground water projects (hereinafter collectively referred to as drilling underground water projects) in accordance with the law;

c) Being protected by the State in terms of rights and legitimate interests specified in the license;

d) Requesting licensing agencies to extend, modify contents, reissue licenses in accordance with regulations;

đ) Filing complaints and initiating lawsuits against violations of rights and legitimate interests in drilling underground water practices in accordance with the law.

2. License holders have the following obligations:

a) Engaging in drilling underground water practices in accordance with the contents recorded in the license and relevant laws on water resources;

b) Fulfilling all obligations prescribed in Clause 3, Article 14 of Decree No. 201/2013/NĐ-CP dated November 27, 2013 of the Government detailing implementation of certain provisions of the Law on Water Resources;

c) Adhering to drilling technical procedures and regulations on protecting underground water; ensuring that the person primarily responsible for technology is present at the site to direct during drilling construction and well installation periods; in case of subsidence or other abnormal incidents affecting construction works and people's lives in the construction area, immediately stopping work and promptly addressing and remedying the situation while bearing full responsibility for compensation for all losses caused by the incident, and reporting immediately to local authorities, the provincial Department of Natural Resources and Environment, and the licensing agency;

d) Notifying in writing the location, scale of drilling underground water projects, and the planned construction period to the District Environmental Resources Office where the project is located at least seven (07) working days before construction begins;

đ) Paying examination fees and licensing fees;

e) Providing complete and truthful data and information about completed drilling underground water projects when requested by competent authorities;

g) Notifying in writing the licensing agency and application file handling agency of any changes in the person primarily responsible for technology, business activity registration content, or assigned tasks as decided by competent authorities compared to the application for licensing. Notification time shall be no later than thirty (30) days from the date of change. In case of changing the person primarily responsible for technology, the notification must be accompanied by proof of the new person's qualifications as prescribed in Clause 2, Article 6 of this Circular;

h) Returning the license to the licensing agency if it is not used. A license holder who has returned the license may only be considered for a new license (if needed) one (01) year after returning the license;

i) Annually, before November 15, compiling a list of drilling underground water projects (according to Form No. 08 issued together with this Circular) and reporting to the application file handling agency.

Chapter II

SPECIFIC PROVISIONS

Article 5. Scale of Groundwater Drilling Profession

1. The scale of groundwater drilling profession is defined as follows:

a) Small-scale groundwater drilling profession is the drilling and installation of groundwater wells with pipe casing or well wall diameter less than 110 millimeters and belongs to projects with flow rate less than 200m/day-night.³/day-night;

b) Medium-scale groundwater drilling profession is the drilling and installation of groundwater wells with pipe casing or well wall diameter less than 250 millimeters and belongs to projects with flow rate from 200m/day-night up to under 3000m/day-night.³/day and night up to 3000 meters³/day-night;

c) Large-scale groundwater drilling profession includes cases not specified in Point a and Point b of Clause 1 of this Article.

2. The project specified in Clause 1 of this Article is a system consisting of one or more wells located within a groundwater exploration and exploitation area where the distance between them does not exceed 1000 meters, owned by an organization or individual; the flow rate of a project is the total flow rate of the wells belonging to that project.

3. An organization or individual granted a license for groundwater drilling profession at a certain scale may operate at that scale and smaller scales; they may drill and install boreholes, exploration and survey wells for research, evaluation, monitoring of groundwater and other purposes, with diameters equivalent to those specified in Clause 1 of this Article.

Article 6. Conditions for Issuance of Groundwater Drilling Profession License

Organizations and individuals engaged in groundwater drilling must meet the following conditions:

1. Having a decision on establishment of the organization issued by the competent authority or one of the types of business registration certificates, business registration certificate and tax registration, enterprise registration certificate for organizations, business household registration certificate for groups of individuals or households issued by the competent authority (hereinafter referred to collectively as business registration certificate), which includes activities related to the groundwater drilling profession.

2. The head of the organization or the person primarily responsible for technical matters of the organization or individual engaged in the profession (hereinafter collectively referred to as the person primarily responsible for technical matters) must be familiar with legal regulations on groundwater protection and meet the following conditions:

a) For small-scale underground water drilling operations:

Have a professional qualification of at least a college graduate in geology (exploration geology, hydrogeology, engineering geology, geotechnology), drilling, and have at least two (02) years of experience in the profession or a drilling worker with skill level 3/7 or higher and at least four (04) consecutive years of experience in the profession; directly participated in designing, preparing reports or drilling construction of at least five (05) groundwater drilling projects.

In case there is no one of the above-mentioned certificates, they must have at least five (05) consecutive years of experience in the profession, directly carried out construction of at least ten (10) groundwater drilling projects, and must have a certificate of having completed training courses on groundwater resource protection techniques in drilling operations organized by the National Water Resources Management Agency or the Department of Natural Resources and Environment.

b) For medium-scale underground water drilling operations:

Have a professional qualification of at least a bachelor's degree in geology (exploration geology, hydrogeology, engineering geology, geotechnology), drilling, and have at least three (03) years of experience in the profession or a college graduate in geology (exploration geology, hydrogeology, engineering geology, geotechnology), drilling, and have at least five (05) years of experience in the profession; directly participated in preparing feasibility studies, exploration reports, designing extraction well systems or directing construction of at least five (05) groundwater drilling projects with flow rate from 200m/day-night.³/day-night or more.

c) For large-scale underground water drilling operations:

Have a professional qualification of at least a bachelor's degree in geology (exploration geology, hydrogeology, engineering geology, geotechnology), drilling, and have at least seven (07) years of experience in the profession; directly participated in preparing feasibility studies, exploration reports, designing extraction well systems or directing construction of at least three (03) groundwater drilling projects with flow rate from 3000m/day-night.³/day-night or more.

d) The person primarily responsible for technical matters must be an employee of the organization or individual engaged in the profession or have a labor contract with the organization or individual engaged in the profession in accordance with the Labor Law. In case the labor contract is a fixed-term contract, at the time of submitting the application, the validity period of the labor contract must still be at least twelve (12) months.

3. Drilling machines and construction equipment must ensure appropriate technical capabilities, meeting requirements for the scale of the profession and labor safety according to current regulations.

Article 7. Term of the Permit

The term of the underground water drilling business permit is five (05) years and may be extended multiple times, with each extension being three (03) years.

Article 8. Extension of the Permit

1. The extension of the underground water drilling business permit shall be based on the conditions stipulated in Article 6 of this Circular and the following specific conditions:

a) During the course of business, the organization or individual granted the permit (hereinafter referred to collectively as the permit holder) fulfills all obligations prescribed in Clause 2, Article 4 of this Circular;

b) At the time of submitting the application for permit extension, the issued permit must still be valid for at least thirty (30) days.

2. Within the period specified in Point b, Clause 1 of this Article, if the permit holder has submitted the application for permit extension, the permit holder may continue to operate from the date when the old permit expires until they receive the extended permit or a notice of non-extension of the permit from the licensing authority.

3. Applications for permit extension submitted after the deadline specified in Point b, Clause 1 of this Article will not be accepted. In such cases, the permit holder must submit an application for a new permit and will only be considered for issuance of a new permit three (03) months after submission of the application if the old permit is still valid at the time of submission, or six (06) months after submission of the application if the old permit has expired at that time.

The submission date of the application is calculated according to the postmark date of the sending location or the date of receipt if the application is directly submitted to the licensing authority.

Article 9. Amendment of the Content of the Permit

1. Cases for amending the content of the permit:

a) The permit holder changes the main office address (for organizations), or the place of permanent residence (for individuals);

b) The permit holder requests to change the scale of operation;

c) The issuing authority decides to change the scale of operation due to the permit holder no longer meeting the conditions for operation as stipulated in the issued permit.

2. If the issuing authority decides to amend the content of the permit as provided in Point c, Clause 1 of this Article, the issuing authority must notify the permit holder in advance thirty (30) days.

3. The consideration of amending the content of the underground water drilling business permit shall be based on the conditions stipulated in Article 6 and Clause 1, Article 8 of this Circular.

Article 10. Suspension of Effectiveness, Revocation of the Permit

1. The suspension of effectiveness of the permit shall be carried out as follows:

a) The permit is suspended when the permit holder violates the provisions of the permit causing land subsidence, deformation of structures, or serious pollution and depletion of water resources;

b) The term of suspension of the permit does not exceed three (03) months;

c) During the period of suspension of the permit, the permit holder does not have rights related to the permit and must take measures to remedy consequences and compensate for damages (if any) in accordance with the law;

d) When the suspension period ends and the issuing authority does not issue another decision, the permit holder may continue to exercise their rights and obligations.

2. The revocation of the permit shall be carried out in the following cases:

a) The permit holder is found to have falsified documents, made false declarations about the contents in the application file for the permit or altered the contents of the permit;

b) An organization as the permit holder is dissolved or declared bankrupt by a court;

c) The permit holder violates the decision suspending the effectiveness of the permit, repeats the violation, or repeatedly violates the provisions of the permit;

d) The permit was issued beyond the authority;

đ) The permit has been issued but the permit holder fails to fulfill financial obligations and does not accept the permit.

3. In the case where the permit is revoked as provided in Points a and c, Clause 2 of this Article, the permit holder may only be considered for issuance of a new permit three (03) years after the date of revocation after fulfilling all obligations related to the revocation of the old permit.

4. In the case where the permit is revoked as provided in Point đ, Clause 2 of this Article, the competent authority issuing the permit shall consider issuing a new permit.

5. The competent authority issuing the permit as stipulated in Article 11 of this Circular shall decide on the revocation of the permit.

Article 11. Competence to issue, extend, amend the content, reissue, suspend the effect, and revoke underground water drilling permits

1. The Ministry of Natural Resources and Environment shall issue, extend, amend the content, reissue, suspend the effect, and revoke underground water drilling permits for large-scale operations as specified in Point c Clause 1 Article 5 of this Circular.

2. Provincial People's Committees (hereinafter referred to collectively as provincial-level People's Committees) shall issue, extend, amend the content, reissue, suspend the effect, and revoke underground water drilling permits for medium and small-scale operations as specified in Points a and b Clause 1 Article 5 of this Circular for organizations and individuals with their permanent residence addresses within their respective jurisdictions.

Article 12. Authorities handling permit application files

1. The Water Resources Management Department under the Ministry of Natural Resources and Environment shall be the authority handling permit application files for cases within the Ministry of Natural Resources and Environment’s competence to issue permits.

2. Departments of Natural Resources and Environment shall be the authorities handling permit application files for cases within the provincial-level People's Committee’s competence to issue permits.

Article 13. Licensing Procedure and Formalities

1. The application file for obtaining a permit for drilling underground water includes:

a) Application form for underground water drilling permit (Form No. 01 issued together with this Circular);

b) Certified copy or photocopied copy confirmed by the issuing authority of the decision on establishment of the organization or business registration certificate of the organization or individual applying for the permit; if only a photocopied copy is available, the original must be provided for verification;

c) Certified copy or photocopied copy confirmed by the issuing authority of the qualification certificates of the person primarily responsible for technical matters as stipulated in Clause 2 Article 6 of this Circular and labor contracts for organizations or individuals applying for the permit who have contracted labor with the person primarily responsible for technical matters; if only a photocopied copy is available, the original must be provided for verification;

d) Declaration of professional experience in underground water drilling activities of the person primarily responsible for technical matters of the organization or individual applying for the permit (Form No. 02 issued together with this Circular).

2. Submission of Application File:

Organizations and individuals applying for the permit shall submit one (01) set of application files directly (or send via postal service) to the authority handling permit application files. In cases where the authority handling permit application files is the Water Resources Management Department, organizations and individuals applying for the permit must also send an additional one (01) set of application files to the local Department of Natural Resources and Environment where the organization or individual has registered their permanent address.

3. Receipt of application files:

Within no more than three (03) working days from the date of receiving the application file, the authority handling permit application files shall be responsible for reviewing and checking the completeness and validity of the application file. If the application file is incomplete or invalid, the authority handling permit application files shall return the file and notify in writing the organization or individual applying for the permit to supplement and complete the application file according to regulations.

4. Examination of Application Files:

a) Within no more than fifteen (15) working days from the date of receiving a complete and valid application file, the authority handling permit application files shall be responsible for assessing and submitting the application file to the competent authority for decision-making on issuance of the permit; if the application file does not meet the conditions for issuance of the permit, it shall return the file and notify in writing the organization or individual applying for the permit, specifying the reasons for non-issuance of the permit;

b) The examination of application files includes:

- Legal basis for the application for issuance of the permit; compliance with the conditions for practice as prescribed in Article 6 of this Circular;

- In case of necessity, the authority handling permit application files may request the organization or individual applying for the permit to provide explanations and supplements to clarify the contents of the application file; organize on-site inspections of the conditions for practice and professional technical capabilities of the organization or individual applying for the permit, or request the local Department of Natural Resources and Environment where the organization or individual has registered their permanent address to conduct on-site inspections. The inspected authority shall be responsible for inspecting and replying in writing to the authority handling permit application files within no more than seven (07) working days from the date of receipt of the inspection request;

c) Within no more than seven (07) working days from the date of receiving the application file for issuance of the permit for cases handled by the Water Resources Management Department, the Department of Natural Resources and Environment shall be responsible for notifying its opinion (if any) on the application file for issuance of the permit. Beyond that period, it shall be deemed that the Department of Natural Resources and Environment has no opinion on the application file for issuance of the permit and the organization or individual applying for the permit.

5. Decision on Granting a Permit:

a) Within no more than three (03) working days from the date of receiving the application file submitted for issuance of the permit, the competent authority for issuance of the permit shall decide to issue the underground water drilling permit (Form No. 03 issued together with this Circular). In case of refusal to issue the permit, the authority handling the application file must notify in writing the organization or individual applying for the permit, specifying the reasons for non-issuance of the permit;

b) The issued permit shall be handed over directly to the organization or individual applying for the permit at the authority handling the permit application file or sent via postal service after the permit holder has paid all fees and charges as prescribed.

Article 14. Procedures and formalities for extending and amending the content of permits

1. The dossier for requesting an extension or amendment of the content of a permit for underground water drilling includes:

a) Application for extension and adjustment of the content of the groundwater drilling operation permit (according to Model No. 04 issued together with this Circular);

b) A copy of the previously issued license;

c) A summary table of underground water drilling projects carried out by organizations and individuals during the period of using the previously issued permit (in accordance with Model No. 05 issued together with this Circular);

d) In cases where an extension of the permit is requested and there has been a change in the person responsible for technical matters, in addition to the documents specified in Points a, b, and c of this Clause, the dossier for requesting an extension of the permit shall also include:

- A certified copy or a photocopied copy confirmed by the issuing authority of the qualification certificate of the person responsible for technical matters as stipulated in Clause 2, Article 6 of this Circular and the labor contract in cases where organizations and individuals request a labor contract with the person responsible for technical matters; if only a photocopied copy is available, it must be accompanied by the original for verification;

- A declaration of professional experience in underground water drilling activities of the person responsible for technical matters (in accordance with Model No. 02 issued together with this Circular).

đ) In cases where an amendment of the content of the permit is requested, in addition to the documents specified in Points a, b, and c of this Clause, the dossier for requesting an amendment of the content of the permit shall also include documents proving the change of permanent residence address (for cases where the main office address of the organization or the permanent residence address of the individual household practicing drilling changes) or documents proving the capacity conditions meeting the scale of drilling activities as stipulated in Clauses 2 and 3, Article 6 of this Circular (for cases where an amendment of the scale of drilling activities is requested).

2. Submission of Application File:

The submission of the dossier for requesting an extension or amendment of the content of a permit for underground water drilling shall be carried out in accordance with the provisions of Clause 2, Article 13 of this Circular.

3. The procedures for receiving, examining the dossier, deciding on the extension or amendment of the content of the permit, and the form of returning the permit shall be implemented in accordance with the provisions of Clauses 3, 4, and 5, Article 13 of this Circular; specifically, the examination period and the time limit for granting the permit shall not exceed ten (10) working days from the date of receipt of a complete and valid dossier. The extended or amended permit shall be implemented in accordance with Model No. 06 issued together with this Circular.

Article 15. Reissuing Permits

1. Permits shall be reissued in the following cases and under the following conditions:

a) Lost;

b) Damaged or deteriorated to the point of being unusable;

c) At the time of submitting the application for reissuing the permit, the issued permit still has at least forty-five (45) days remaining validity.

2. The dossier for requesting the reissue of a permit for underground water drilling includes:

a) An application for reissuing a permit for underground water drilling (in accordance with Model No. 07 issued together with this Circular);

b) Documents proving the reason for requesting the reissue of the permit.

3. Submission of the dossier:

The submission of the dossier for requesting the reissue of a permit for underground water drilling shall be carried out in accordance with the provisions of Clause 2, Article 13 of this Circular.

4. The procedures and formalities for reissuing permits are as follows:

a) Within no more than five (05) working days from the date of receipt of a complete and valid dossier, the agency handling the permit application shall be responsible for examining the dossier; if the conditions are met, it shall submit to the competent authority for reissuing a new permit to the permit holder. If the conditions are not met, the agency shall return the dossier to the organization or individual and notify the reasons.

b) The validity period recorded in the reissued permit shall be the remaining period according to the previously issued permit (the reissued permit shall be implemented in accordance with Model No. 06 issued together with this Circular);

c) The decision to reissue the permit and the form of returning the permit shall be carried out as stipulated in Clause 5, Article 13 of this Circular.

Chapter III

IMPLEMENTATION

Article 16. Effective Date

1. This Circular takes effect from August 26, 2014.

2. This Circular replaces Decision No. 17/2006/QĐ-BTNMT dated October 12, 2006, of the Minister of Natural Resources and Environment promulgating regulations on issuing permits for underground water drilling and Circular No. 36/2011/TT-BTNMT dated September 15, 2011, of the Ministry of Natural Resources and Environment amending and supplementing the regulations on issuing permits for underground water drilling issued together with Decision No. 17/2006/QĐ-BTNMT dated October 12, 2006, of the Minister of Natural Resources and Environment.

3. Permits for underground water drilling that have been issued by competent authorities in accordance with the law before the effective date of this Circular and which still have validity periods shall continue to be valid until their expiration dates. In cases where the permit is still valid but organizations or individuals require a new permit, they shall submit the application dossier in accordance with Article 13 of this Circular.

4. Application dossiers for underground water drilling permits that have been received by competent authorities before the effective date of this Circular shall still be examined and considered for issuance in accordance with the models prescribed in Decision No. 17/2006/QĐ-BTNMT dated October 12, 2006, of the Minister of Natural Resources and Environment and Circular No. 36/2011/TT-BTNMT dated September 15, 2011, of the Ministry of Natural Resources and Environment regarding amendments and supplements to the regulations on issuing permits for underground water drilling.

Article 17. Responsibilities for Implementation

1. The People's Committee of the province shall be responsible for directing the implementation of this Circular at the local level.

2. Provincial Departments of Natural Resources and Environment shall be responsible for advising and assisting provincial People's Committees in managing the issuance of permits for small and medium-scale underground water drilling within their jurisdictions; annually compiling and reporting to provincial People's Committees and the National Water Resources Management Agency on the situation of permit issuance for organizations and individuals within their jurisdictions (in accordance with Model No. 09 issued together with this Circular) before December 15 each year.

3. The National Water Resources Management Agency shall be responsible for advising and assisting the Ministry of Natural Resources and Environment in managing the issuance of large-scale underground water drilling permits; compiling the situation of permit issuance nationwide.

4. During the process of implementing this Circular, if there are difficulties or obstacles, organizations and individuals are requested to report them to the Ministry of Natural Resources and Environment for consideration and resolution./.