Name of recommendations: Recommendation on determining the competence to approval for the report on environmental impacts assessment and legal validity of the guiding Official Letter of the Ministry of Natural Resources and Environment

Status: Has not been responded

Recommended by units: Bac Ha Energy Joint Stock Company

Official letter: 1389/PTM - VP, dated: 2017-06-13

Recommended contents:

Bac Ha Energy Joint Stock Company (hereinafter referred to as Bac Ha Company) is the investor of Nam Phang B hydroelectricity project with a installed capacity of 4.5 MW in Bac Ha District, Lao Cai Province. The total reservoir volume is 208,000 m3 and the useful volume is 71,000 m3. Bac Ha Company has implemented the procedures for approval of Environmental Impact Assessment (EIA) reports in the Department of Natural Resources and Environment as stipulated in Decree 18/2015 / ND-CP dated February 14 2015.of the Government on environmental protection planning, strategic environmental assessment, environmental impact assessment and environmental protection planning; However, they are instructed to carry out procedures at the Ministry of Natural Resources and Environment according to the content of the Official Letter No. 5657 / BTNMT-TCMT of the Ministry of Natural Resources and Environment.

Bac Ha Company believes that the guidelines of the Ministry of Natural Resources and Environment on the authority to approve the EIA report for a 4.5MW hydropower project with a total reservoir size of 208,000 m3 and useful capacity of 71,000 m3 is not correct, not in accordance with the spirit of Decree 18, because:

• According to the provisions of Point 3, Appendix III to Decree No.18, "the project on construction of a hydro-electric power plant ... with the capacity of a reservoir of 100,000,000 m3 of water or more", EIA report under the authority of the Ministry of Natural Resources and Environment. This means that the project of constructing a hydro-electric power plant with the capacity of 100,000,000 m3 or less, the EIA report will be approved by the Provincial People's Committee, for example, the EIA report of the project of Bac Ha Company will be approved by Provincial People's Committees;
• Meanwhile, according to the provisions of Point 6, Annex III of Decree No.18, "the water exploitation project falls under the licensing competence of the Ministry of Natural Resources and Environment", the EIA report will fall under the approval of the Ministry of Natural Resources and Environment. Ministry of Natural Resources and Environment. Point d, Clause 1, Article 28 of the Government's Decree No. 201/2013 / ND-CP of November 27, 2013 detailing the implementation of a number of articles of the Law on Water Resources, water exploitation and use projects for power generation with installed capacity of 2,000 kw or more under the licensing competence of the Ministry of Natural Resources and Environment. Thus, if the application of point 6 of Annex III of Decree 18, the EIA  report of the project of Bac Ha Company will be approved by the Ministry of Natural Resources and Environment.

It can be seen that Decree 28 is unclear to determine the authority to approve the EIA report for the case of a hydropower plant with an installed capacity of 2MW or more and use the reservoir volume is less than 100,000,000 m3.

With the lack of clarity as above, the Ministry of Natural Resources and Environment's Official Letter No. 5657 / BTNMT-TCMT - is not a legal document with the content of determining the approval authority of the EIA report and it is the nature of general application as a legal document, which seems to be incompatible with the Law on the Promulgation of Legal Documents.

The company proposes to determine the legal nature of the Official Letter No. 5657 / BTNMT-TCMT and propose amendments to the provisions of Decree 18 to resolve the above contradictions and stipulate specific and accurate competent agencies to approve the EIA report.