Decree No. 11/2021/ND-CP issued by the Government on 10 February 2021 takes effect from 30 March 2021 (“Decree 11”) and replaces Decree No. 51/2014/ND-CP dated 21 May 2014 taking effect from 15 July 2014 (“Decree 51”) on the allocation of sea areas to organizations and individuals on the exploitation and use of marine resources.
Decree 11 stipulates the allocation of sea area to offshore wind power projects for the measurement, monitoring, investigation, survey and assessment of marine resources with the following key takeaways:
- For Vietnamese organizations and individuals. Vietnamese organizations and individuals are allowed to carry out the measurement, monitoring, investigation, survey and assessment of marine resources without being allocated the sea area according to Article 9.4 of Decree 11. The competent authorities according to Article 8 of Decree 11 consider and approve the position, boundary, area, coordinates, depth, and term of use of the sea area where Vietnamese organizations and individuals carry out the above-mentioned activities.
- For foreign organizations and individuals. Currently, Article 9.4 of Decree 11 is not specific and clear on whether foreign organizations and individuals are allowed to carry out the measurement, monitoring, investigation, survey and assessment without being allocated sea area. Therefore, in case the foreign organizations and individuals shall follow the procedures of sea area allocation for the measurement, monitoring, investigation, survey and assessment of marine resources, the foreign organizations and individuals shall comply with Article 8 and Article 9 of Decree 11.
- Authority to allocate sea area of the Prime Minister. The Prime Minister decides to allocate sea area for the implementation of the investment projects on the exploitation and use of marine resources subject to approval for or decision on the investment policies by the National Assembly, the Government, except for sea area allocation for sea dumping, aquaculture according to Article 8.1 of Decree 11.
- Authority to allocate sea area of the Ministry of Natural Resources and Environment. The Ministry of Natural Resources and Environment decides to allocate: (i) the sea area for the implementation of the investment projects on the exploitation and use of marine resources subject to approval for or decision on the investment policies by the Prime Minister; (ii) inter-regional sea area; the sea area beyond the 06 nautical miles from the lowest mean sea level in many years of the mainland and islands as prescribed in Article 3.3 of Decree 11; and (iii) the sea area proposed by a foreign investor or foreign-invested entities for the implementation of investment projects on the exploitation and use of marine resources, except for cases under the authority of the Prime Minister according to Article 8.2 of Decree 11.
- Authority to allocate sea area of the People’s Committee of the province. The People’s Committee of the coastal province decides to allocate the sea area within 06 nautical miles from the lowest mean sea level in many years of the mainland and islands according to Article 3.3 of Decree 11, except for cases under the authority of the Prime Minister, the Ministry of Natural Resources and Environment and the district-level People’s Committees according to Article 8.3 of Decree 11.
- Authority to allocate sea area of district-level People’s Committee. The People’s Committees of coastal districts may decide to allocate sea area to Vietnamese individuals for aquaculture according to Article 44.2 (a) of the Law on Fisheries, within 03 nautical miles from the lowest mean sea level in many years of the mainland and islands as prescribed in Article 3.3 of this Decree. The quota for allocating sea area for aquaculture according to this provision must not exceed 01 ha.
Currently, the Ministry of Natural Resources and Environment has developed a draft Decree amending and supplementing a number of articles of the Government’s Decree No. 40/2016/ND-CP dated 15 May 2016 detailing the implementation of a number of articles of the Law on natural resources and environment of sea and islands and Decree No. 11/2021/ND-CP dated 10 February 2021 of the Government stipulating the allocation of sea areas to organizations and individuals for the exploitation and use of marine resources. The Ministry of Natural Resources and Environment has also completed collecting comments for the above draft.
Reported by Pham Tran Bao Khanh/Nguyen Tuan Phat (Legal Department of PECC3)
