The Analysis on Laws and Policies Relating to Urban Water Management in China

Song Lanhe
(Urban Water Resources Center of MOC)

(ABSTRACT)

1. Classification of laws relating to urban water

As one part of environmental protection laws and natural resources protection laws, water-related laws are mostly distributed into the other types of laws except a few that are directed against water. Collected laws and regulations now accounted for 140 and their legal statuses and forces are different. The classification according to its legal status and force from high to low level status is as following:

l.1 The constitution
l.2 Laws
l.3 National administrative regulations made by the State Council
l.4 Regulations issued by the State Councils Minisries and Committees
l.5 Local regulations made by Provincial Power Body (the People‘s Representative Provincial Conference)
1.6 Resolutions Released by Provincial Local Govemment and its different departments
l.7 Local regulations made by the local People‘s Representative Conferences and its Standing Cormittees of the Provincial Capitals cities and the larger cities set up by the State Council‘s approval
l.8 Local regulations made by government and its departments at provincial capital city and the cities set up by the State Council‘s approval
l.9 The resolutions and determinations made by local power body and administrative body at different levels below the provincial level
1.10 Technicality regulations and standards with legal forces. It is a heary task to find out which one is related to water and valid after reading and analysis those laws and regulations mentioned above. The 140 legal documents are chosen from above more than 400 legal documents according to the authorization rules and general principles of giving priority new laws.

In China, there is no distinct line between national policy and law because national policies are the basis from that the law is made and the law is article and system made from national policies. When law does not make special regulations or the regulations are not clear, the national policy will take place of law or be supplementny to law.

2. Legal system relating to water

2.1. According to the water law of the People‘s Reoublic of China, there are 18 govemment organizations that have the authority to manage water and wastewater. They are the people‘s governments at different levels, the government‘s water resource administrative department, the government‘s environmental protection administrative departments, the government‘s urban construction administrative departments, the govemment‘ s health administrative departments, the shipping administrative departments, the government‘s land administrative departments, the government‘s price administrative departments, the government‘s financial administrative departments, the government‘s p1anning administrative departments, the government‘ s municipality administrative departments, the government‘s economic planning administrative denartments, the watershed management organs defined by the State for the management of important river, the urban supervision teams under the construction administrative departments of the government, the public security departments, water supply companies, the house management departments and the statistic departments .

2.2 The power limitation and responsibility of the water management organizations are regulated by related laws and regulations respectively.

2.3 Water management organization is responsible for development, usage and protection of water, and for wastewater discharge and protection of water, and for wastewater discharge and transaction.

2.4 Water management organization has authority to execute the administrative punish in accordance with laws and regulations.

2.5 Water management organization and its staffs undertake related legal responsibility if they infringe laws and regulations relating to water.

2.6 When water management organization and its staffs infringe upon other party‘s interest and right because of implementing their responsibility and power illegally, the injured party has the authority to demand compensation for losses or to bring a administrative lawsuit against them according to related laws and regulations.

3. Analysis of legal system relating to water

3.1 Laws and regulations relating to water are rich and entire and belong to different levels with the constitution of the People‘s Republic of China as the head. Bringing into full play the initiative and creative of the administrative organizations at different levels and its departments and local power bodies at different levels, the legislative mechanism and organization ensure, generally, that the legislative power be under the supreme power body. As a result, with Chinese characteristics, the legislative mechanism and organization embody different measures to manage water according to different local situations.

3.2 The Chinese laws and regulations relating to water make regulations and rules to such aspects as legal title to the water resources. The development and use of water resources, the urban water supply, the water recycle and saving, wastewater‘s discharge and transaction, the water environmental protection etc.

3.3 The Chinese laws and regulations relating to water cover nationwide planning, watershed planning and urban planning. They also cover from water distribution between different watersheds and between different administrative districts to management of residential water saving, water saving equipment and water plumbing fixtures.

3.4 Laws vest local people‘s governments at vary levels with great power so that local people‘s govemments could issue and modify laws and regulations according to the local actual situations and definite flexibly functions of working departrnents under them to implement relevant laws and regulations flexibly and effectively.

3.5 According to the laws and regulations on water, administrative department in charge of water under the State Council is responsible for the integrated management of water resources. Other departments such as administrative department in charge of environmental protection, administrative department in charge of geological mineral resources and administrative department in charge of sanitation and health should work in coordination with administrative department in charge of water within their functions and powers stipulated by relevant laws and regulations. The above-mentioned departments under the State Council direct and lead the local departments in charge of water in water management work. The position and relation between them are clear, so the water management system should be reasonable. But, in fact, responsibilities of water management departments are overlapped and definite too specifically, maybe because of following two aspects:
- The definition of responsibilities of departments under local governments is not very clear.
- The local departments are not only led by the local government but also directed and led by the higher department which they are responsible to. The higher departments also make decisions and issue orders which are dispatched to implement. So multi-level laws on water are cut apart into many blocks. When the laws and regulations issued by a local government have too much flexibility, it will not be avoidable that regulations and documents issued by the working departments, under the local government conflict with each other.

3.6 There are contradictions and potential contradictions between different types of laws and regulations, for example:

3.6.1 According to article 11, section 2 of Water Law of People‘s Republic‘s of China, " ….. water quality protection …… specialty planning, made by related administrative departments of people‘s government at above county level, should be reported to the people‘s government at the same level for approval". It contradicts against the article 10 of the law of People‘s Republic‘s of China on the Prevention Control of Water Pollution. The later writes "the prevention control of water pollution should be planned integratively according to watershed or administrative area.

The prevention planning of water pollution of important river‘s watershed defined by the State should be made by the environmental protection department of the State Council together with planning department … and related people‘s government of province, autonomous region and municipality directly under the State Council, and reported to the State Council for approval. The prevention planning of watershed‘s water pollution of other rivers that flow across province should be made by the environmental protection departments of government at above provincial level together with … and the related local people‘s government, and reported to the State Council or the people‘s government at provincial level approval…".

The former does not regulate the watershed‘s planning of rivers that flow across different administrative districts and the rivers that are defined by the State as important ones, and does not pay attention to the right and interest of the administrative districts to that the water quality protection planning of watershed of river that flow across administrative area will be related. It also does not pay attention to that the watershed‘s water quality protection planning of the river that was defined by the State as important one should be approved by the State Council.

3.6.2 A circular released by the Water Resources Ministry on related situation of " Regulation on Water Supply" writes "at present, the Water Resources Departments in some cities are responsible for from urban water supply to water cities are responsible for from urban water supply to water tape, so the Water Resources Departments at different levels should sttength their work and do their best to get the approval of the local city‘s government" Here it not only contradicts directly against the constitution of the People‘s Republic of China and laws and regulations, but also contradicts the regulations that made by ministries and committees of he State Council. This circular is a type of policy document made by the Water Resources Ministry that, being only a work department of the State Council, must promulgate policy document according to the Constitution of the People‘s Republic of China and laws and the administrative regulations made by the State Council. This circular does not make regulations according to laws and the administrative regulations made by the State Council on the setting up of urban water management agency and the right and limitation.

3.6.3 The article 18 of "implement rules on management of city‘s water use and water saving in Hebei Province‘‘ says that "the city construction department should, if there is one of the following actions, order correct or improve the equipment of the water use and water saving within a limited period, and can limit the water use amount ... the city‘s unit of water use makes use of water use makes of water equipment and appliances that are already obsolete ...," This article contradicts against the article 10 of "the Supervision and Management Rules on the Application of Toilet Water Box of Houses‘‘ made by the Ministry of Construction. The article 10 Writes" the city construction department or its authorized department should, if there is one of the flowing actions, order to correct within a limited period and charge from 3 to 5 times of step variable water tariff on the accumulated monthly, or penalty infringes 30-50 yuan per set of toilet water box …"

3.6.4 Article 56 of "Regulations on Urban Construction Management in Hebei Province‘‘ says that the administrative penal methods and penal quantity are specified by the people‘s government above country level. This article is not identical with from article 9 to article 14 of "Administrative penal law of the People‘s Republic of China‘‘. There exists potential conflicts between this article and such laws and regulations" Water Environmental Protection Law of the People‘s Republic of China‘‘, "Implementing Details for Water Environmental Protection Law of the People‘s Republic of China‘‘, "Regulations on the Management of Certificate of Urban Water Supply Company‘‘, "Administrative Methods on Sanetatary Supervision of Drinking Water‘‘, "Implementing Methods on the System of License for Water Developing‘‘, "Administrative Regulations on the Development and Utilization of Urban Ground Water" and other administrative laws and regulations issued by the State Council and ministries under the State Council.

3.7 There are undefined articles in laws and regulations, the following:

3.7.1 The article 10 of " the Implement Rules on the permission for water intake "write:"……the unit or individual‘s report should be checked, agreed and given some suggestions by the city‘s construction department before they pre-apply to water administrative department for water intake approval if they need to obtain ground water from urban planning area" and the article 11 of the Regulation writes"…unit or individual‘s report should be checked and permitted by water administrative department after checked, agreed and given suggestions by the city‘s construction administrative department if the unit or individual needs to obtain ground water from urban planning area,…" The two rules are not legal regulations, and can, in fact, not construct legal regulation in the Administrative Regulation. Because the two rules has only "assumption" and "transaction way‘‘ but no "result‘‘, that means: "if one need to obtain ground water from urban planning area,"--assumption, ‘‘ It must be agreed and given some suggestions by the city‘s construction department before pre-applying to water administrative department‘‘--transaction way, "else …" -- consequence. Here not only no body (applicant) undertakes legal consequence "else, the water administrative department will not accept and hear‘‘, but also no body (the water administrative department) undertakes the legal consequence "else, the water administrative department must not accept and hear(check and promise)".

3.7.2 The article 21 of "the Implement Rules on the Permission for Water Intake‘‘ writes:"…ground water is over-exploited seriously…‘‘, and the article 12 of "Management Regulation on Development and Protection of Urban Ground Water‘‘ writes:" ...the area where the ground water was over-exploited seriously and the land surface evidently sunk". The two rules do not define clearly the legal concepts "ground water is over- exploited seriously" and "ground water was over- exploited seriously". The future implement may face difficulty because of differences of understanding the meaning of the two legal concepts.

3.8 There are too many water management departments in China and it is not necessary to set up some departments, such as "Group for the reduction Management of Fittings of the Sanitary Utensil‘‘ set up jointly by the State Construction Material Industrial Bureau and Ministry of Construction.

3.9 The article 7 of "Regulation on Urban Water Supply‘‘ writes: ‘‘ the city‘s construction administrative department of the State Council is responsible for management of the nationwide urban water supply.

The city‘s construction administrative department under the people‘s government of province or the city‘s construction administrative department under the people‘s government of autonomous region is repressible for management of urban water supply in the area that is under the jurisdiction of the govemment at same level. The city‘s water supply administrative department determined by the local government at above country level (it is,below, simply called city‘s water supply administrative department) is responsible for management of the urban water supply in the area that is under the jurisdiction of government at the same level. "This article may break the sector management of the urban water supply as the whole which is under the management of the city‘s construction administrative department between the State Council, the govemment of province or government of autonomous region, and the local govemment at different levels. It does not benefit management organization to improve administrative works.

3.10 Because of historical reason, there are many organizations that are responsible for management of urban water. Too many organizations make water management work inefficient. In many laws and regulations relating to water, there are such rules as "some related department‘‘ exercises "some related authorities‘‘, and it, in fact, gives excuse that many administrative departments exercise the water management authority and new water administrative department be set up through unnecessary. It results in inefficient water management.

3.11 In many laws and regulations relating to water, there are no rules on permitted exploiting amount (permitted exploiting amount is related by article 17 of chapter 8.2, GBJ27--88, Hydrogeology
Exploitation Standard on Water Supply) and legal responsibility for over-exploiting action. It does not benefit environment protection.

3.12 The State has the responsibility for watet resources protection and making rational use of water resources under the terms of the Constitution of the People‘s Republic of China that writes "the State
assure the natural resources be used reasonally‘‘. But there no rules on the State‘s responsibility was made in laws and regulations relating to water. So the local official‘s will and intention took place of laws and regulations usually in a few of cities.

3.13 In laws and regulations relating to water, the rules on legal responsibility are mostly directed against civilian, legal persons or other social bodies. There are few rules that are directed against legal responsibility of water management organization and its work staffs. So it is easy for the action of the water management organization to be unhonest and for the work staffs of water management organization to abuse their authority and make interest for themselves.

4. Suggestions

4.1 It is suggested that same related national organizations collect and compile laws and regulations relating to water to make them to into an integrative Water Statute Book.

4.2 The water documents of laws and regulations promulgated by related national organizations should conform to the standard (including the unity of conception, the clear of the articles meaning and the standardization of the document title).

4.3 Through some trial practice and summing up experiences, simplification of water management organizations and improvement of management work should acquire legal force gradually.