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（六）允许所有者、经营者或者管理者对其他人使用其淤地坝中的水收取一定数量的金钱。
建设、管理和维护淤地坝都需要人力、财力、物力的投入。因此，如果不允许所有者、经营者或者管理者对其他人使用其淤地坝中的水收取一定的金钱，是对其财产权利的不当和非法剥夺，不利于淤地坝的建设，不利于保护和改善黄土高原的生态环境，危及可持续发展。就收取的金钱的性质上讲，笔者认为属于使用水利工程的服务费用。当然，对于他人用于满足水人权的用水，价格不宜过高。但是，对于用于满足其他需求的用水，则应当允许双方自由协商确定价格。
【作者简介】
胡德胜，郑州大学法学院，河南郑州。
【注释】 黄河上中游管理局. 淤地坝概论. 北京：中国计划出版社, 2005.
姚芃. 我国水土流失形势严峻 “项目保护伞”比较强硬 . 法制日报2007-6-29.
中央农村工作领导小组办公室、水利部水土保持司、水利部水土保持监测中心、水利部发展研究中心、水利部黄河水利委员会. 黄土高原区淤地坝专题调研报告（2002年12月20日）.
胡德胜. 水资源的法律界定——我国与南澳大利亚州、南非的比较研究. 水利发展研究，2004，
UNESCO, et al., The United Nations World Water Development Report: Water for People, Water for Life, UNESCO Publishing/Berghahn Books, Paris, 2003.
UNESCO, et al., The United Nations World Water Development Report: Water, A Shared Responsibility, UNESCO Publishing/Berghahn Books, Paris, 2006.
Hu, D., Water Rights: An International and Comparative Study, IWA Publishing, London, 2006.
Solanes, M. and Gonzalez-Villarreal, F., The Dublin Principles for Water as Reflected in a Comparative Assessment of Institutional and Legal Arrangements for Integrated
【参考文献】 1. An Introduction to Geologies in the Loess Plateau
The Loess Plateau in northwestern China is the largest continuous loess deposit area in the world. With the altitudes of 1,000-1,500 m and an area of 640,000 km2 and being located in the central Yellow River Basin, it covers the whole Shanxi Province, most of Shaanxi Province and Gunshu Province as well Ningxia Autonomous Region, and some parts of Qinghai Province and Henan Province as well as Inner Mongolia Autonomous Region. Although existing rocky hills in a few regions, the Plateau is covered with a very thick layer of loess, the thickness of which is in general from 50 to 80 m although in some area from 150 to 180 m. Loess Plateau belongs to arid or semi-arid region with an average annual precipitation from 200 to 700 mm, which mainly comes in storm in summer. Due to over reclamation over centuries which has led to little coverage of plants together with (a) the characteristics of loess soil, i.e., retaining water effectively, easily sink, and (b) concentrating summer storm, the Plateau has been under severe soil erosion, and now is largely covered with more than 270,000 gullies (usually dry ) and many fragile loess slopes. This situation has caused many further issues, such as poverty, destruction of ecosystems and well-known soil sediment in Yellow River.
2. Silt Dam and Its Functions
A silt dam is a barrier that is built across a gully, usually dry, in order to stop the silty water from intense rainwater flowing, to allow silt being settled at the bottom, and to let silt farmland be formed in the most natural way. The earliest historical written record of man-made silt dams can be found in the History of Fenxi County (which is located in Shanxi Province). It reveals that, during the Wanli Period (1573-1619) of Ming Dynasty, diligent villagers built silt dams for obtaining silt land. Although the silt dam is built initially for getting plain and fertile farmland, silt dams can play, at least, the following functions in the Loess Plateau,
(a) stopping silt and preventing silt from flowing into the Yellow River, and naturally decreasing sediment of the river, slowing down the increase of the bed of the River, and further lessening the flood danger caused by the river;
(b) stopping silt and forming silt land which has good fertility, and further enhancing the crop yield, thereby increasing the income of the villagers;
(c) harvesting water in wet seasons and making the rational and effective utilisation of water resources possible;
(d) using the water collected by the silt dam to resolve the difficulty of access to drinking water for people and livestock, for irrigating cultivated land, or for planting trees or grass;
(e) supplying water for ground aquifers and making the utilisation of groundwater sustainable;
(f) creating good quality ecosystems in the surrounding areas or improving the ecosystems of the silt dams, and further improving the ecosystem in the middle stream of the Yellow River, and,
(g) using them as bridge roads by connecting each side of the gullies, and further improving the communication in the region.
Due to the benefits above, the Chinese government has been paying special attention to the construction of silt dams since 1949, particularly since 2001. According to an official report, by 2002, 112,045 silt dams (36,816 in Shaanxi, 37,820 in Shanxi, 6,630 in Gansu, 17,819 in Inner Mongolia, 4,936 in Ningxia and 3,877 in Qinghai, accounting for 96.3% of the total) had been built, and 4.5 million mu (about 300,000 hectares) of silt farmland had been formed, so 21 billion m3 of silt had be stopped.
3. Problems in Utilising of Water in the Silt Dam
3.1. Problems coming from Rural Land Contractual Farming Law and Property Law
According to article 3(2) of Rural Land Contractual Farming Law of the PRC 2002 and article 124(2) of Property Law of the PRC 2007, individuals, families, rural collective economic organisation or other groups may construct silt dams in the land (including cultivated land, forestland, grassland and other lands, such as barren mountains, waste ditches, barren hills and waste beaches, etc.) that they have rights to utilise under the land contracts to which they are a party.
Article 16(1) of Rural Land Contractual Farming Law provides that, the contract-undertaking party shall enjoy the right to the use of, and profits and interests from the contracted land, and to the circulation of the operation of the contracted land; enjoying the decision-making power to organize production operation and dispose his products. Regarding Property Law, article 125 stipulates that, a holder of the contract-undertaking right is entitled to occupy, use and benefit from the land (including cultivated land, forest land, grassland, etc.) , and to be engaged in agriculture such as crop planting, afforestation, animal husbandry etc.
However, according to article 8(1) of Rural Land Contracting Law, “[t]he contracting of rural land shall be conducted in accordance with the laws, rules and regulations, and in conformity with the protection of rational development and sustainable utility of land resources. The contracted rural land shall not be used for non-agricultural construction without through lawful approval”. Further, article 17 reads as follows,
The contract-undertaking party shall bear the following obligations:
(1) Sustaining the agricultural purpose of use of the contracted land rather than utilizing such land for the purpose of non-agricultural construction;
(2) Protecting and rationally using the contracted land according to laws, rather than imposing perpetual damage to such land; and,
(3) Other obligations as stipulated by laws, or administrative rules or regulations.
Also, article 46(2) requires that, “[c]ontracting for barren mountains, waste ditches, barren hills and waste beaches shall be undertaken in accordance with relevant laws, administrative regulations, and shall be in conformity with the prevention of soil erosion and protection of ecological environment”.
The problems with the water in the silt dam are: whether or not the water in the silt dam belongs to the products of the contract-undertaking party? If yes, whether the contract-undertaking party may dispose it freely?
3.2. Problems coming from Water Law
The following articles of Water Law of the PRC 2002 may affect the utilisation of water in the silt dam,
Article 2(2) The water resource referred to in this Law includes surface water and groundwater.
Article 3 Water resources shall be owned by the State. The ownership of water resources shall be exercised by the State Council on behalf of the State. The water of a pond owned by or of a reservoir built and managed by a rural collective economic organisation shall be utilised by the organisation.
Article 7 The State shall implement a water-drawing license system and a paid use system on water resources in accordance with the law, with the exception of the water of ponds or reservoirs belonging to rural collective economic organisations utilised by these organisations or their members. The competent department of water administration under the State Council shall be in charge of the organisation and implementation of these two systems in the country.
Article 25(2) When rural collective economic organisations and/or their members, in accordance with the law, invest in the construction of waterworks on the corresponding land owned by the rural collective economic organisations and/or on contracted land, the waterworks and/or the water stored in these waterworks shall be managed and reasonably utilised according to the principle of “the investor manages and benefits from the waterworks”.
Article 48(1) Any unit or individual who draws water directly from rivers, lakes or ground aquifers shall, in accordance with the State provisions relating to the water-drawing license system and the paid use system on water resources, apply to the relevant competent department of water administration or basin administrative authority for a water-drawing license, pay the water resources fee regulated, and then obtain a water-drawing right. However, the drawing of water for a household or for livestock, a small quantity for poultry drinking or other small quantity water drawings, are exempted.
After analysing these above provisions, the following problems could be identified,
(a) Whether or not the owner, operator or manager of a silt dam being a rural collective economic organisation or its member has impact on their right to the water in the silt dam.
(b) Whether or not a gully across which a silt dam is built belongs to river? If yes, the silt dam is a reservoir; if not, then a pond. They are subjected to different regulations.
(c) Further, if a silt dam is defined as a pond, then, (i) whether or not the water in it belongs to surface water? There is no definition for surface water in Water Law 2002. (ii) if yes, although there are provisions on the water of a pond owned by a rural collective economic organisation, there is no provision on the water of a pond owned by individuals or units other than rural collective economic organisations.
(d) Also, if a silt dam is defined as a reservoir, although there are provisions on the water of a reservoir built and managed by a rural collective economic organisation, there is no provision on the water of a reservoir built and managed by individuals or units other than rural collective economic organisations.
(e) What is reasonable utilisation? There is not a clear delimitation, and the issues are, (i) whether or not the owner, operator or manager of a silt dam is entitled to allow others to draw water from the silt dam? (ii) if yes, whether or not he/she/it is entitled to charge the others for water that is drawn? (iii) whether or not is reasonable for he/she/it to charge the others for water that is drawn under a water-drawing license?
4. Recommendation on Problems
It is well recognised that the water crises or water shortage has mainly caused by unreasonable management, and water law and policy should play a vital role in the development, utilisation and protection of water resources. In the Loess Plateau, such a region with a severe shortage of water and the popular poverty existing, the mechanism on the water in silt dams should be improved.
(a) Scientific development or sustainable development should be taken as base in dealing with the above questions, and the human right to water, the environmental right to water (the environmental water needs) and the water for development should be taken into consideration.
(b) Equal principle, in general, should be applied to all owners, operators or managers of silt dams.
(c) Property rights on the water in silt dams should be clearly delimited.
(d) The silt dams with storage capacity to some extent should be defined as reservoirs and are subjected to regulations on reservoirs.
(e) The water in the silt dams should be allocated in a appropriate order, i.e., giving the human right to water and the environmental right to water priority.
(f) The owner, operator or manager of a silt dam should be allowed to charge others for drawing water from the silt dam in due process.
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