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  • Interpretation
  • No.628
  • Date
  • 2007/06/22
  • Issue
    • Do the Taiwan Province Irrigation Associations have the authority under law to levy and collect surplus water tolls?
  • Holding
    •        An irrigation association, which is a local self-governing body in charge of water conservancy, is a public legal person established by law.  To the extent authorized by law, it has self-governing powers and authorities.  An irrigation association may, by law, levy a surplus water toll (see Articles 10 (i) and 28 of the Organic Act of the Irrigation Associations).  Therefore, as far as the management of surplus water is concerned, the Organic Act of the Irrigation Associations has empowered irrigation associations to formulate self-governing regulations to impose restrictions on the people’s freedoms and rights.  According to Article 29 of said Act (enacted and promulgated on July 2, 1965), the provincial (city) government is empowered to formulate the criteria and rules for the levy of a surplus water toll.  In fact, the Taiwan Provincial Government has prescribed certain criteria and procedures for the levy of a surplus water toll.  Nevertheless, if an irrigation association formulates self-governing regulations to supplement any relevant matter that is not covered by such criteria or procedures and submits them to the competent authority for approval and record, it is still in line with the intent of Article 29 of said Act.  Clause 4 of the Guidelines for the Use of Irrigation Reservoirs in Respect of the Taiwan Province Shimen Irrigation Association (submitted for the approval and record of the Water Conservancy Administration of the Department of Reconstruction, Taiwan Provincial Government on May 7, 1998 as per Letter No. 87-S.N.-A875017476) is a part of the self-governing regulations formulated by the said Irrigation Association through due process based on its self-governing authority to levy a surplus water toll to the extent authorized by law.  Said clause has set forth specific rules in respect of persons upon whom the surplus water toll should be levied based on the differing situations under which the surplus water is used.  As such, it is not only consistent with the legislative purposes of effective use of water resources and “user pays,” but is also rational and necessary.  Therefore, it does not go beyond the authority granted by the Taiwan Provincial Government to the irrigation associations in respect of the formulation of regulations regarding the levy of a surplus water toll, nor is it contrary to the aforesaid law and its enabling provisions.  There is no violation of the property right guaranteed under Article 15 of the Constitution, nor is there any violation of the principle of legal reservation or proportionality embodied in Article 23 thereof.
  • Reasoning
    •        An irrigation association is a public legal person established by the state according to law for the purpose of promoting farmland irrigation operations.  The irrigation association is a local self-governing body in charge of water conservancy (see Article 3-II and –III of the Water Resource Act as amended and promulgated on January 19, 1955).  To the extent authorized by law, it has self-governing powers and authorities (see J.Y. Interpretation No. 518).  According to Article 10 of the Organic Act of the Irrigation Associations, the missions of the irrigation associations include the initiation, improvement, maintenance, and management of farmland irrigation operations, precautionary and rescue measures in the event of disasters and threats, raising of expenditure and institution of funds for farmland irrigation operations, and research and development projects for the interests of farmland irrigation operations.  The foregoing are self-governing matters entrusted to the irrigation associations by law.  To the extent consistent with and authorized by law, an irrigation association certainly may formulate self-governing regulations to achieve its missions.  However, where the self-governing regulations formulated by the irrigation association may impose restrictions on the people’s rights, it cannot do so except as prescribed or authorized by law so as to comply with the principle of legal reservation embodied in Article 23 of the Constitution.  Furthermore, under the democratic principle of the Constitution, not only should the formation of the internal opinion of a group follow the majority rule (see J.Y. Interpretation No. 518), but the contents thereof should also be consistent with the principle of proportionality and the formulation and implementation thereof should adhere to the due process if it involves any restriction on the people’s rights (see J.Y. Interpretation No. 563).  In formulating its self-governing regulations that may restrict the people’s freedoms and rights, an irrigation association should, of course, abide by said principles.
      
    •        According to Article 10 (i) of the Organic Act of the Irrigation Associations, the missions of the irrigation associations include, among other things, the initiation, improvement, maintenance, and management of farmland irrigation operations.  In respect of the surplus water conserved by the irrigation association’s improvement of the existing irrigation and water distribution facilities, reduction of the loss in water transportation, and enhancement of water usage efficiency, the irrigation association may not only re-distribute it to its members for the purpose of irrigating farmland, but also for other purposes so as to effectively utilize the water resources to the fullest extent as long as the operation of farmland irrigation is not affected.  As such, the management of the surplus water relating to farmland irrigation operations should fall within the scope of self-governing matters of the irrigation association, which may adjust the priority of water supply based on the actual volume of on-site surplus water and the level of difficulty of the operation.  Furthermore, according to Article 25 (as amended and promulgated on December 17, 1980), Article 26 (as amended and promulgated on February 9, 1970), Article 27 (as amended and promulgated on July 2, 1965) and Article 28 of the Organic Act of the Irrigation Associations, an irrigation association has the authority to collect membership dues, surplus water tolls and other fees.  In light of the above, the law has empowered the irrigation association to formulate self-governing regulations in respect of the collection of a surplus water toll to impose restrictions on the people’s rights and freedoms.  A user of the surplus water has an obligation under the public law to pay a toll, and hence such user has a burden under the public law (see Reasoning of J.Y. Interpretation No. 518).  Furthermore, since the surplus water toll is collected from a user, it will not make any difference whether he or she is a member.  Based on the authorization of the aforesaid law, an irrigation association, in collecting a surplus water toll, may set forth reasonable and necessary self-governing regulations under the due process.
      
    •        However, since the irrigation association is a public legal person established by law, its power to formulate self-governing regulations should be subject to the legislators’ discretion.  Article 29 of the Organic Act of the Irrigation Associations, which remains unchanged despite the numerous amendments made to the law between July 2, 1965-when it was first enacted-and November 8, 1995, provides, “In respect of the criteria and measures for the collection of various fees by the irrigation associations according to the four preceding articles, the competent provincial (or municipal ) authorities shall establish such criteria and measures, and notify the central competent authorities for the record.”  Hence the competent authorities are authorized to formulate the criteria and measures for the collection of membership dues, construction fees, user fees for buildings and surplus water tolls (see Articles 25 to 28 of said Act).  Pursuant to the authorization of Article 29 of said Act, the Taiwan Provincial Government amended and issued the Organic Regulation of the Irrigation Associations of the Taiwan Province on May 27, 1995.  Article 41 (i) thereof provides, “The criteria for the collection of surplus water tolls or construction fees shall be as follows: (i) the surplus water toll shall be no less than the maximum membership rate for the area concerned.”  The said provision is meant to impose the minimum for the collection of surplus water tolls.  Furthermore, the Taiwan Provincial Government amended and issued the Guidelines for the Collection of Fees Imposed by the Taiwan Province Irrigation Associations on March 24, 1989, setting forth the operation procedure, settlement of unpaid fees, bookkeeping and audit and control for the collection of various fees by the irrigation associations.  Other than the foregoing, the competent authorities were silent as to the persons from whom the surplus water toll should be collected and the specific amounts thereof.  Where an irrigation association formulated self-governing regulations to supplement such matters that were not addressed based on its self-governing authority to levy a surplus water toll and submitted them to the competent authority for approval and record, it is still in line with the intent of Article 29 of said Act.
      
    •        Clause 4-I of the Guidelines for the Use of Irrigation Reservoirs in Respect of the Taiwan Province Shimen Irrigation Association (submitted for the approval and  record of the Water Conservancy Administration of the Department of Reconstruction, Taiwan Provincial Government on May 7, 1998 as per Letter No. 87-S.N.-A875017476) provides, “A water toll shall be collected from the person who enters into the letter of consent.  Where there is any use of water in the absence of a letter of consent entered into pursuant to the foregoing clause, the water toll shall be collected in accordance with the following: (i) where the landowner of the reservoir or all of the co-owners jointly use the water, it shall be collected from the landowner; (ii) where the reservoir is leased to or used by another person who refused or failed to enter into a letter of consent with this Association, the landowner or all of the co-owners may produce the lease or letter of consent or other papers, whereupon this Association will forthwith collect it from the lessee or user; and (iii) where the reservoir is occupied by another person or other co-owners (i.e., no letter of consent is available), it shall be collected from the occupant.”  The foregoing provision is a part of the self-governing regulations formulated by the said Irrigation Association through due process based on its self-governing authority to levy a surplus water toll to the extent authorized by law.  Said clause has set forth specific rules in respect of persons upon whom the surplus water toll should be levied based on the differing situations under which the surplus water is used.  As such, it is not only consistent with the legislative purposes of effective use of water resources and “user pays,” but is also rational and necessary.  The aforesaid Guidelines were not only passed by the Governing Board of the Taiwan Province Shimen Irrigation Association (see Clause 24 of said Guidelines), but also approved by the Water Conservancy Administration of the Department of Reconstruction, Taiwan Provincial Government for the record, hence satisfying the due process requirement.  Therefore, they do not go beyond the authority granted by the Organic Regulation of the Irrigation Associations of the Taiwan Province and the Guidelines for the Collection of Fees Imposed by the Taiwan Province Irrigation Associations, nor are they contrary to the aforesaid law and its enabling provisions.  There is no violation of the property right guaranteed under Article 15 of the Constitution, nor is there any violation of the principle of legal reservation or proportionality embodied in Article 23 thereof.  As for the dispute between the people and an irrigation association arising out of the imposition of a surplus water toll, it should be a dispute under public law.  With regard to a dispute for which an action has been legally brought and a final and conclusive judgment rendered prior to the amendments made to the Administrative Litigation Act on July 1, 2000, the validity thereof should remain unaffected.  It should be noted, however, that remedies for such disputes should be sought through the administrative litigation procedures after the enforcement of the Administrative Litigation Act as amended.
      
    • *Translated by Vincent C. Kuan.
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