Water

Country Water Action: People's Republic of China
Drafting the Law, Saving the Yellow River
October 2005

Once a ferocious river infamous for its great floods that brought devastation to land and people, the People’s Republic of China’s(PRC) Yellow River is slowly dying, prompting the government to come up with conservation measures.

In an effort to save the Yellow River, the PRC’s National People’s Congress (NPC) is drafting its first ever river protection law.

The Yellow River Law (YRL) is envisioned to be the overarching law that would save the Yellow River from pollution and excessive water use, and is expected to

• Complement and coordinate current laws, and provide implementation instructions where these are lacking in current laws
• Create modern river basin legislative procedures based on current world’s best practices for river basin management
• Establish a modern Yellow River Basin institutional framework that clarifies current administrative and institutional relationships
• Identify and clarify links between the different areas of administration and law relevant to the Yellow River Basin
• Establish standards where these do not exist, and monitoring procedures to ensure implementation of standards, plans, and actions carried out under the YRL
• Provide the authority for the development of procedures by the Yellow River basin administration
• Provide for dispute settlement
• Provide for stakeholder participation, transparency of administrative actions, and accountability of public officials to the public and to higher levels of government
• Provide a framework for financial assistance and incentives for water and land resource management
• Provide for orderly, efficient and equitable sharing of water from all water sources
• Encourage best practice in the management and use of water and land
• Apply the principles of sustainability, environmental protection, minimization of environmental harm, and protection of ecological integrity for land and water
• Honor the principles of international conventions and protocols to which the PRC is signatory
• Promote the use of sound scientific knowledge

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The Yellow River, or Huang He, is also called “ Mother River.” The second longest river in the People’s Republic of China, it is considered as the cradle of Chinese civilization. Centuries of floods causing deaths to millions over the millennia, however, also earned for the river the title “ River of Sorrow.”

The enormity of the Yellow River and its large sediment concentration, which causes the floods, make the Yellow River the world’s most difficult river to manage, says Chief Engineer Xue Songgui of the Yellow River Conservancy Commission (YRCC). The following legal issues and institutional problems also complicate the management of the Yellow River Basin:

• Lack of authority in Water Law for full, integrated water resources management at the basin level
• Lack of integration of the four main laws
• Conflicts between the SEPA and the MWR, especially for water pollution and planning, management, monitoring, and reporting, at the basin level
• Lack of integrated, basin-level planning and operational mechanisms (except for flood control and some hydraulic works)
• Lack of basin-level accountability of provinces in exercising their role in water and pollution management
• Lack of appropriate and defined role of the basin agency and accountability to other ministries, to the public, and to basin constituencies
• Lack of authority for the basin agency to exercise sufficient authority for integrated basin management, including dam operations, financing, permitting, etc.

The YRL provides a legal framework that would coordinate the provisions of four existing laws:

• Water Law
• Water Pollution Prevention and Control Law
• Flood Control Law
• Water and Soil Conservation Law

These laws conflict and cause jurisdictional problems among ministries and government agencies such as the Ministry of Water Resources (MWR) and its implementing agency, the YRCC, and the State Environmental Protection Administration (SEPA).

ith the YRL, the roles and relationships of these institutions will be clarified and a more efficient integrated river basin management will be put into place.

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A Strategic Planning Study for the preparation of the YRL was conducted through the initiatives of ADB and the YRCC. The study aimed to

• Conduct strategic studies relating to integrated water resources management of the yellow River basin and to search for legal countermeasures for outstanding problems in the Yellow River basin
• Provide the National People’s Congress (NPC) with data and recommendations in formulating the YRL.

The study yielded four legal options:

Complete Legislative System. This option requires a new overarching River Basin Law and the amendment of the other primary laws.

Regional Legislative System. This option requires the creation of a system of rules and administrative procedures for Upper, Middle and Lower parts of the Yellow River Basin.

These two options were deemed complicated and unnecessary to achieve the objective of an integrated river basin management for the Yellow River.

Water Law-Based System. This option requires amending the Water Law to provide for integrated river basin management. However, the Water Law lacks jurisdiction in critical areas and clashes with some other laws.

Four-Law Approach. This is the preferred option because it allows the four laws to be implemented within an integrated planning and management framework for the Yellow River Basin.

As a framework law, the YRL supersedes where there is conflict between YRL and the four laws, or among the four laws.

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Even when the YRL is passed by the NPC, the following next steps are necessary:

• Harmonization of provincial laws to YRL
• Additional schedules and annexes to YRL as needed
• Amendments to national laws if necessary
• Planning policies and procedures
• Institutional capacity audits and strengthening of the YRCC and related agencies

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Read Yellow River Flood Management Sector Project.

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