Decision of the Standing Committee of the National People’s Congress on Amending the Law on Water Pollution Prevention and Control (2017)(Mainland China)

Yenchu Chen

The 28th meeting of the Standing Committee of the 12th National People’s Congress of the People’s Republic of China adopted a decision on June 27, 2017 to amend the Law on Water Pollution Prevention and Control that was promulgated in 2008. The new law will go into effect on January 1, 2018.
These amendments cover 56 articles and contain a complete and systemic overhaul from the “General Provisions” to “Legal Responsibilities.” Compared with the old law, the new law has the following main features:
1. Expansion of legislative objectives and elevation of legal importance
The new law amends Article 1 by adding three legislative objectives of “protecting water ecology, safeguarding public health and promoting ecological developments of civilization” to the existing foundation of “preventing and controlling water pollution, protecting and improving the environment, ensuring the safety of drinking water and promoting comprehensive coordination and sustainable development of the economy and society” to connect water pollution prevention with safeguarding of public health and preservation of ecological balance.” It is foreseeable that “impact on public health and ecological balance” will likely be among the primary considerations of the law, and the resultant attention to the public interest will also increase the importance of the law.
2. Enhanced government responsibilities and proactive establishment of water pollution prevention and management
The new law made changes to several provisions such as Articles 4, 5, 17 and 18 and delegates the previous responsibility of governments above county level for the local water quality to all levels of people’s governments and sets up a “river chief” system to entrust tasks such as water resource protection in local rivers and lakes, shoreline protection and management, water pollution prevention, and the governance of waterfront environment to specific responsible persons. The local governments are also required to set specific water quality improvement targets and prepare and announce a plan to achieve them within a stated period. In addition, the relevant governments are required to publicly report to their corresponding level of the people’s congress on their status in meeting the above targets. The above measures show that the new law seeks to impose more responsibilities on local governments and set up more specific governance targets so that all levels of the people’s governments can more proactively fulfill their governance functions as opposed to passive after-the-fact supervision in the past so as to enable the thorough implementation of the water pollution policies.
3. A systematic pollution discharge permission system to balance economic development with environmental protection
Article 21 of the new law changes the pollution discharge permission system under Article 20 of the old law by expanding the entities that are required to obtain a pollution discharge permit, as well as require other production and operation units are to obtain discharge permits like enterprises. This means that regardless of the type of organization, a discharge permit is needed if pollutants would be discharged, and no discharge of any form is allowed without a discharge permit. This shows that the new law seeks to expand the pollution discharge permission system to the entire society to ensure that all pollution discharges may be under the scope of supervision. This not only facilitates the collective administration of water pollution prevention and enhances the efficacy of governance but also transforms the previous uniform restrictions into proactive management and governance to ensure coordinated development of production and environmental protection.
4. Enhanced supervision and greater penalties
The newly added Article 24 stipulates that enterprises and other production and operation units shall be responsible for the authenticity of the monitoring data they provide. In addition, Article 45 is added to require enterprises discharging industrial effluent to take effective measures to collect and process all effluent for preventing environmental pollution. Meanwhile, in the amendment to Article 25, the state will organize a monitoring network for sharing monitoring data to enhance the administration of monitoring of water environment. A new Article 32 requires enterprises that discharge substances in the list of toxic and hazardous water pollutants announced by the state to monitor discharge outlets and the neighboring environment to assess environmental risks and take effective measures to prevent those risks. The new laws also greatly increase the penalties for legal violations.
Articles 70 through 76, 80 and 83 of the old law are amended, and Articles 88 and 92 are newly added, which stipulate that failure to comply with the monitoring requirements, failure to properly set up discharge outlets, failure to obtain a discharge permit, or the discharge of water with non-complaint quality will be penalized. In addition, most violations with maximum fines of RMB100,000 are changed to RMB200,000, and violations with maximum fines of RMB500,000 are changed to RMB1,000,000. If environmental impact assessment is not conducted for a construction project pursuant to law, if pollutants are discharged without a discharge permit, if pollutants are illegally discharged through hidden pipelines, diffusion wells, seepage pits, injection; or if there is falsification of monitoring data or otherwise abnormal operation of pollution prevention facilities to evade supervision; or if banned pesticides are being produced or used and a demand for rectification is ignored, the relevant responsible persons of an enterprise may face a maximum penalty of a 15-day detention if the circumstances do not yet constitute a criminal offense.
In general, the new law demonstrates that state’s determination to address water pollution and contains more stringent requirements for an enterprise’s compliance management. The governance model with local governments at the helm is likely to result in enhanced law enforcement. Enterprises with discharge needs may need to conduct a self-inspection as soon as possible to prevent their operation from being hampered by penalties.