Mr. Vu Duc Khanh (Hanoi) company operates in the field of electricity production (hydroelectricity). During the operation of the hydroelectric power plant, the company violated regulations on exploitation and use of surface water.

Specifically, the act of exploiting and using surface water resources in excess of the volume specified in the License for exploitation and use of surface water resources, the maximum excess flow is 13.2 m3/s in 3,076 hours of 188 days from May 10, 2020 to September 12, 2022 for power generation with installed capacity from 2,000 kW to less than 5,000 kW at the construction site. hydropower plants specified in Clause 3, Article 10 of Decree No. 36/2020/ND-CP and be sanctioned according to the provisions of Point d, Clause 7, Article 9 of Decree No. 36/2020/ND-CP. This behavior has not caused pollution, reduced the quality and quantity of water sources.

Currently, the Inspector of the Ministry of Natural Resources and Environment is making a decision to sanction administrative violations, in which for violations of Mr.Khanh’s company, apart from fines as prescribed in Point d Clause 7 Article 9 of Decree No. 36/2020/ND-CP, remedial measures specified at Point a, Clause 16, Article 9 shall also be applied: "Forcing the return of illegal profits obtained from committing violations specified in this Article (Article 9)".

While the violation of Mr. Khanh's company is specified in Clause 3, Article 10 (exploitation and use of surface water in excess of the prescribed flow), not Article 9 (exploration, exploitation and use of natural resources). unregistered, unlicensed water resources).

Mr. Khanh asked, his company was administratively sanctioned for the act of "exploiting and using surface water in excess of the prescribed flow" specified in Clause 3, Article 10 of Decree No. 36/2020/ND-CP including fines specified at Point d Clause 7 Article 10 of Decree No. 36/2020/ND-CP and additional penalties for remedial consequences specified at Point a, Clause 16, Article 9 of Decree No. 36/2020/ND-CP, is it in compliance with current laws?

The Department of Water Resources Management, Ministry of Natural Resources and Environment responded to this issue as follows:

Water resources are public property owned by the entire people, uniformly managed by the State. The law stipulates that organizations and individuals using public property must have financial obligations to the State. Exploiting and using public property without fulfilling financial obligations is illegal.

For water resources, the lawful exploitation and use of water resources by organizations and individuals through permits and must comply with the provisions of the permit (except for the case of exploitation and use of water on a household scale). 

In case of violation of the provisions of the license, sanctions shall be imposed according to the provisions of Article 10 of Decree No. 36/2020/ND-CP dated March 24, 2020 of the Government on sanctioning of administrative violations in the field of water and mineral resources has been amended and supplemented a number of articles in the Decree No. 04/2022/ND-CP.

In case of exploitation in excess of the volume specified in the permit, the excess volume must be considered as exploitation and use of water resources without a license according to the excess scale and must be subject to administrative penalties as in the case of unlicensed.

According to the information Mr. Khanh presented, his company had an act of mining in excess of the traffic specified in the license. For this act, in Clause 3, Article 10 of Decree No. 36/2020/ND-CP, a number of articles have been amended and supplemented in Decree No. 04/2022/ND-CP stipulating:

"For acts of exploiting and using water resources in excess of the volume specified in the permit, the part of the flow exceeding the regulations will be subject to penalties as prescribed in Clauses 3, 4, 5, 6, 7, 7, 8, 9, 10, 11, 12, 13 and Clause 14, Article 9 of this Decree".

And when sanctioned according to regulations on acts without a license, the remedial measures specified in Clause 16, Article 9 of this Decree must be applied. In Clause 16, Article 9 stipulates:

"16. Remedial measures:

a) Forcible return of illegal profits obtained from committing violations specified in this Article;".

At the same time, at Point q, Clause 3, Article 4 stipulates:

"r) Forcible return of illegal profits obtained from committing violations, specifically as follows:

The amount of illegal profits obtained from committing violations in the field of water resources in the case of water exploitation for hydroelectric power production and clean water production and trading is the total amount of money collected by an organization or individual when committing a violation, minus (-) direct costs for exploiting and using water resources.

In case organizations and individuals exploit water for non-agricultural purposes other than hydroelectricity and production trading in clean water, the illegal profit earned from committing the violation is equal to (=) the total amount of exploited water multiplied by (x) the selling price of clean water for production and business in the province minus (-) direct costs for exploitation and use of water resources".

Therefore, when exploiting and using water in excess of the permitted volume, the excess volume shall be administratively sanctioned as in the case of not having a permit and must apply remedial measures to force the return of illegal profits obtained from committing violations in accordance with regulations.

According to Dang Khoi (Government Newspaper)