Applicability of Decree 11/2021

It is likely that an offshore wind power project (Offshore WPP) will need to follow the procedures under Decree 11/2021 in order to be allocated with the necessary sea area for development and operation of the Offshore WPP. This is because:

• Under the current wind power development regime of Vietnam, an Offshore WPP is defined as a grid-connected wind power project with wind power turbines constructed and operated “from the average lowest seawater line over several years off the coast” (nằm ngoài đường mép nước biển thấp nhất trung bình trong nhiều năm ra ngoài khơi);

• Decree 11/2021 applies to the allocation of certain sea area “from the average lowest seawater line over several years off the coast” for exploitation and use of “sea resource” (tài nguyên biển); and

• Sea resource is defined to include biological and non-biological resource of the water mass, the [sea] bed and the soil beneath the seabed.

The procedures for allocation of sea area under Decree 11/2021 are discussed below.

Requirements for allocation

• The Offshore WPP developer is issued with an approval for use and exploitation of sea resource by competent state authority. This document could be (1) permit for exploitation and use of sea resource; (2) investment registration certificate; or (3) other document permitting the Offshore WPP developer to exploit and use sea resource in accordance with law. In the context of an Offshore WPP, it is not clear which documents could be covered by (1) or (3).

• The location, boundary, and area of the proposed sea area comply the approved master plan for national sea area. If there is no approved master plan national sea area or the master plan national sea area does not cover the proposed area for the Offshore WPP, then an ad-hoc approval is required.  

Application for allocation of sea area of an Offshore WPP

• A request for allocation of sea area in standard form;

• Investment registration certificate;

• Environment Impact Assessment Report (or similar documents under the new Environment Law 2020); and

• The layout of the proposed sea area.

Competent state authorities

There are three main types of state authorities who are directly involved in the process of allocating sea area, which are: authority who is competent of deciding to allocate sea area (Allocating Authority), authority who is competent of receiving sea area allocation application (Application Receipt Authority), and authority who is competent of appraising the application (Application Appraisal Authority).

Depending on each Offshore WPP, the Allocating Authority may be the Prime Minister, Ministry of Natural Resource and Environment (MONRE), or provincial People’s Committee (PC). The corresponding Application Receipt Authority and Application Appraisal Authority for each of these Allocating Authorities would be as follow:

Process for appraisal of sea area allocation application

• The Offshore WPP developer should submit one application file for allocation of sea area to the Application Receipt Authority.

• The Application Receipt Authority would check the application file for completeness and compliance with regulations within 3 business days from the date of receipt.

• If the application file is complete, the Application Receipt Authority would transfer the application to the Application Appraisal Authority for their review.

• After the Application Appraisal Authority completes their review, the Application Appraisal Authority must submit the application to the Allocating Authority to decide to allocate the sea area to the Offshore WPP developer or not.

• After the Allocating Authority makes the decision, the Application Receipt Authority must notify the Offshore WPP developer of the result.

At law, the whole process could take up to 83 business days to complete. In practice, this could be much longer since the process involves many authorities and steps.

This post is written by Le Thanh Nhat and edited by Nguyen Quang Vu.