问 题
政府基于生态环境保护等需要，要求关停水电站，电站能否申请损失补偿？Can a hydropower station apply for compensation for losses when the government requires the shutdown of a hydropower station based on ecological protection and other needs?
2
结 论
政府基于生态环境保护等需要，要求关停水电站的行为属于对电站先前合法取得的行政许可的撤回，电站可以向政府申请损失补偿。The government request to shut down the hydropower station based on ecological environmental protection and other needs is a withdrawal of the administrative license previously legally obtained by the station, and the station can apply to the government for compensation for losses.
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分 析
（一）政府关停水电站行为的法律性质属于对先前行政许可的撤回
1. The legal nature of the government shutdown of hydropower stations is the withdrawal of the previous administrative license.
根据《行政许可法》第十二条的规定，可以设立行政许可的事项中包括“有限自然资源开发利用、公共资源配置以及直接关系公共利益的特定行业的市场准入等，需要赋予特定权利的事项。”《水法》第六、七条规定，“国家鼓励单位和个人依法开发、利用水资源，并保护其合法权益。”“国家对水资源依法实行取水许可制度和有偿使用制度。”水电站的建设其实质就是对于水资源的开发、利用，在其开发建设中对于《取水许可证》的取得属于行政许可。人民政府因生态环境保护等需要，要求永久关停合法建设的水电站，根据后述《行政许可法》第八条规定，实质上是对于先前合法取得的已经生效的行政许可的撤回行为。
According to the provisions of Article 12 of the Administrative License Law, the items that can be set up for administrative licensing include "matters relating to the development and utilization of limited natural resources, the allocation of public resources as well as access to the market of the specific trades that have a direct bearing on public interests, etc., to which special rights need to be granted." According to Articles 6 and 7 of the Water Law, "the state encourages units and individuals to develop and use water resources in accordance with law, and protects their legitimate rights and interests." "For water resources, the State applies, in accordance with law, the system of licensing for water-taking and the system of compensation for use of water." The essence of hydropower station construction is the development and utilization of water resources, and the acquisition of Water Intake License in its development and construction belongs to administrative license. The people's government requires the permanent shutdown of legally constructed hydropower stations due to the needs of ecological environment protection. According to Article 8 of the Administrative License Law, it is essentially a withdrawal of the previously legally obtained and effective administrative license.
（二）被要求关停的水电站有权申请损失补偿
2. The hydropower station required to be shut down has the right to apply for compensation for losses.
首先，《行政许可法》第八条规定，“公民、法人或者其他组织依法取得的行政许可受法律保护，行政机关不得擅自改变已经生效的行政许可。行政许可所依据的法律、法规、规章修改或者废止，或者准予行政许可所依据的客观情况发生重大变化的，为了公共利益的需要，行政机关可以依法变更或者撤回已经生效的行政许可。由此给公民、法人或者其他组织造成财产损失的，行政机关应当依法给予补偿。”司法实践中，根据中国法院网发布的典型案例苏耀华诉广东省博罗县人民政府划定禁养区范围通告案的典型意义所述：“人民法院在维护行政机关环境保护监管行为的同时，也注重利益的平衡，较好地诠释了环境行政管理活动中的信赖保护原则。在环境行政管理活动中，政府及环保部门需注重公共利益与私人利益的平衡，不能只考虑环境保护的需要，忽视合法经营者的信赖利益。尤其要防止为了逃避补偿责任，有意找各种理由将合法的生产经营活动认定为‘违法’的现象。”故人民政府为水质达标工作，要求永久关停水电站的行为，是对于先前合法取得的已经生效的行政许可的撤回，给电站造成的财产损失，应当依法给予补偿。
First of all, Article 8 of the Administrative License Law stipulates that, "Administrative permission obtained according to law by citizens, legal persons or other organizations shall be protected by law. No administrative departments shall, without authorization, change the administrative permission already in effect. Where the laws, regulations or rules, on the basis of which administrative permission is granted, have been revised or abolished, or major changes have occurred in the objective circumstances, on the basis of which administrative permission is approved, administrative departments may, for the need of public interests and in accordance with law, alter or revoke the administrative permission already in effect. Where, as a consequence, losses are caused to the property of citizens, legal persons or other organizations, administrative departments shall make them compensations according to law. " In judicial practice, According to the typical case of Su Yaohua v. People's Government of Boluo County, Guangdong Province, on the website of the Chinese court, the typical significance of the notification of the delimitation of the range of forbidden breeding areas is stated as follows: "The people's court, while maintaining the environmental protection supervision behavior of administrative organs, also pays attention to the balance of interests, which better explains the principle of trust protection in environmental administrative management activities. In environmental administrative management activities, the government and environmental protection departments need to pay attention to the balance between public interests and private interests, and should not neglect the trust interests of legal operators just because only consider the needs of environmental protection. In particular, it is necessary to prevent the deliberately identified as ‘illegal’ for various reasons in order to avoid compensation liability. " Therefore, the people's government request to permanently shut down the hydropower station in order to meet the water quality standards is the withdrawal of the previously legally obtained effective administrative license, and the property losses caused to the hydropower station should be compensated according to law.
其次，根据《环境保护部、国家林业局等十部委关于进一步加强涉及自然保护区开发建设活动监督管理的通知》规定，“对自然保护区内已设置的商业探矿权、采矿权和取水权，要限期退出；对自然保护区设立之前已存在的合法探矿权、采矿权和取水权，以及自然保护区设立之后各项手续完备且已征得保护区主管部门同意设立的探矿权、采矿权和取水权，要分类提出差别化的补偿和退出方案。”《云南省小水电清理整改实施方案》规定，“要逐站明确退出时间，制定退出方案，明确是否补偿以及补偿标准、补偿方式等，必要时应进行社会风险评估。”同时，云南省水利厅在《对云南省十三届人大三次会议第0151号建议的答复》中亦明确表明，“省水利厅会同有关部门合力推动解决包括自然保护区合法电站退出等的退出经费问题。一是做好经费测算及资金筹措方案。要求州（市）、县（市、区）在编制‘一站一策’整改方案时要全面测算退出费用，提出资金筹措方案，制定退出保障措施，将退出方案做实做细，为整改提供可靠依据。”
Secondly, according to the Notice of the Ministry of Environmental Protection, the State Forestry Administration and Other Eight Ministries and Commissions on Further Strengthening the Supervision and Management of Activities Involving the Development and Construction of Natural Reserves, "The commercial prospecting right, mining right and water intake right that have been set up in the nature reserve shall be withdrawn within a time limit; for the legal prospecting right, mining right and water intake right that existed before the establishment of the nature reserve, as well as the prospecting right, mining right and water intake right that have been set up after the establishment of the nature reserve and have been approved by the competent department of the nature reserve, differentiated compensation and withdrawal plans shall be proposed by category." According to the Implementation Plan for Cleaning and Rectification of Small Hydropower in Yunnan Province, "the exit time shall be determined station by station, the exit plan shall be formulated, whether to compensate, compensation standards, compensation methods, etc. shall be specified, and social risk assessment shall be conducted when necessary." At the same time, the Water Resources Department of Yunnan Province clearly stated in the Reply to the Third Session of the 13th National People's Congress of Yunnan Province No. 0151, "The Provincial Department of Water Resources, together with relevant departments, has worked together to promote the solution of exit funding issues, including the withdrawal of legal power stations in nature reserves. The first is to do a good job of cost estimation and fund raising plan. It requires states (cities) and counties (cities, districts) to comprehensively calculate exit costs when preparing the ‘one station, one policy’ rectification plan, propose funding plans, formulate exit safeguard measures, and make the exit plan practical and detailed, providing a reliable basis for rectification."
综上所述，无论是根据《行政许可法》第八条规定，还是相关政策文件中对合法建设的小水电项目退出补偿的表述都能够得出“政府要求关停依法取得行政许可的水电站，电站能够申请补偿”的结论。
To sum up, whether according to Article 8 of the Administrative License Law or the statement of withdrawal compensation for legally constructed small hydropower projects in relevant policy documents, we can draw the conclusion that "the government requires to shut down hydropower stations that have obtained administrative licenses according to law, and the hydropower stations can apply for compensation".
（三）关停水电站补偿标准按法定标准或按实际损失确定
3. Compensation standard for shutdown of hydropower station shall be determined according to legal standard or actual loss.
如相关法律法规或者政策性文件对于关停水电站补偿标准有具体规定的，按照规定执行。若无相关规定，则根据《最高人民法院关于审理行政许可案件若干问题的规定》第十五条规定，一般在实际损失范围内确定补偿数额。
文章观点如有不妥，敬请批评指正。
If relevant laws and regulations or policy documents have specific provisions on the compensation standard for shutting down hydropower stations, the provisions shall prevail. In the absence of relevant provisions, according to Article 15 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative License Cases, the amount of compensation is generally determined within the scope of actual losses.
If there is any inappropriate point in the article, please criticize and correct it.
本期撰稿：汪靖龙、许灿虎
本期译稿：张 川
本期编辑：尤 喆
