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The legal regime of waters in the Russian Federation establishes a set of norms and mechanisms aimed at protecting, rational use, and restoration of water objects.
Laws regulate water relations, including ownership, use, and management of water resources, establish the priority of water protection over their use, and also enshrine principles of protection of aquatic biological resources and the environment as a whole.
The Water Code of the Russian Federation (WCRF), federal laws, acts of the Government, and normative acts of subjects of the Russian Federation define the rights and obligations of water users, types of water objects (surface and groundwater), the water fund, and water resources.
Special attention is given to preventing pollution and depletion of water, control over water management systems, maintaining the state water register, and monitoring the condition of waters. Such a legal regime ensures a balance between the needs of economic activities, household use of water, and preservation of ecosystems.
According to estimates by the United Nations, 1.1 billion people on Earth do not have sufficient access to clean drinking water, and 2.6 billion people do not have sufficient access to water for hygiene purposes. It is predicted that by 2020, water use will increase by 40 percent and by 2025 two out of three people will experience a shortage of water1.
In 2011 compared to 2010, the situation regarding the condition of both underground and surface sources of centralized drinking water supply and the quality of water at water intake points has not changed significantly and continues to remain unsatisfactory. Overall in the Russian Federation, 35.7% of surface water sources for drinking water (36.8% in 2010) and 15.8% of underground sources (16.4% in 2010) did not meet sanitary and epidemiological rules and standards2.
According to the Constitution of the Russian Federation, water legislation3, as well as issues of ownership, use and disposal of water resources4 are within the joint jurisdiction of the Russian Federation and the subjects of the Russian Federation. The above provisions of the Constitution of the Russian Federation are detailed in the Water Code of the Russian Federation. In particular, Article 2 of the Water Code of the Russian Federation provides that water legislation consists of the Water Code of the Russian Federation, other federal laws, and laws adopted by the subjects of the Russian Federation in accordance with them. Norms regulating relations concerning the use and protection of water objects (water relations) contained in other federal laws and laws of the subjects of the Russian Federation must conform to the Water Code of the Russian Federation.
Aquatic relations may also be regulated by the decrees of the President of the Russian Federation, which must not contradict the Water Code of the Russian Federation (WCRF), other federal laws. The Government of the Russian Federation issues normative legal acts regulating aquatic relations within the powers defined by the WCRF, other federal laws, as well as decrees of the President of the Russian Federation.
Federal executive authorities authorized by the Government of the Russian Federation issue normative legal acts regulating aquatic relations in cases and within the limits provided for by the WCRF, other federal laws, as well as decrees of the President of the Russian Federation and government resolutions.
On the basis of and in implementation of the WCRF, other federal laws, other normative legal acts of the Russian Federation, and laws of the subjects of the Russian Federation, executive authorities of the subjects of the Russian Federation may issue normative legal acts regulating aquatic relations within their powers.
On the basis and in accordance with the Water Code of the Russian Federation, other federal laws, and other normative legal acts of the Russian Federation, as well as laws and other normative legal acts of the subjects of the Russian Federation, local self-government bodies within their authority may issue normative legal acts regulating water relations.
Alongside the Water Code of the Russian Federation, the main federal laws defining the legal regime of waters include: the Federal Law "On Environmental Protection," which defines the legal regime for all components of the natural environment, including water; the Federal Law "On Internal Waters, Territorial Sea and Contiguous Zone of the Russian Federation"5; the Federal Law "On the Safety of Hydraulic Engineering Structures"6; the Federal Law "On the Protection of Lake Baikal"7.
At the same time, regulation of water relations is carried out based on the concept of a water object as an essential component of the environment, habitat for animal and plant world objects, including aquatic biological resources, as a natural resource used by humans for personal and household needs, carrying out economic and other activities, and at the same time as an object of property rights and other rights (paragraph 1 of article 3 of the Water Code of the Russian Federation).
According to paragraph 4 of Article 1 of the Water Code of the Russian Federation, a water object should be understood as a natural or artificial reservoir, watercourse, or any other object in which a permanent or temporary concentration of water has characteristic forms and features of the hydrological regime. Depending on the characteristics of their regime, physico-geographical, morphometric, and other features, water objects are divided into: 1) surface water objects8; and 2) groundwater objects9. Surface water objects include: 1) seas or their separate parts (straits, bays, including inlets, lagoons, and others); 2) watercourses (rivers, streams, canals); 3) reservoirs (lakes, ponds, flooded quarries, reservoirs); 4) wetlands; 5) natural outlets of groundwater (springs, geysers); 6) glaciers, snowfields. Groundwater objects include: 1) groundwater basins; 2) aquifers.
The water regime refers to the changes over time in the levels, flow rate, and volume of water in a water body. The water fund is considered to be the collection of water bodies within the territory of the Russian Federation. Water resources are surface and groundwater located in water bodies and used or that can be used.
The prosecutor filed a claim requesting a ban on placing chemical, explosive, and toxic substances that the person was storing within the boundaries of the Gorky Reservoir water protection zone.
The decision of the first instance court, which remained unchanged by the appellate and cassation courts, denied the plaintiff's claims.
The court has established that the respondent, based on a license, carries out activities related to the operation of chemically hazardous industrial waste, production of plastics and synthetic resins in primary forms, production of other basic organic chemical substances, paints and varnishes based on polymers and other chemical products. Highly toxic substances and substances posing a risk to the environment are used in its production activities. The activity is carried out on a leased land plot that is entirely within the boundaries of the water protection zone and the shore protective strip of the reservoir.
During the prosecutorial inspection, it was established that containers with phenol and formaldehyde were placed on the production site located within the boundaries of the water protection zone.
When denying the satisfaction of the claim, the courts relied on the fact that the respondent is not a subject responsible for placing the aforementioned substances, but merely performs their temporary storage and warehousing as part of the technological process, which is part of the activities carried out by them based on a license obtained in accordance with the law.
Reversing the judicial decisions rendered in the case, the Judicial Panel of the Supreme Court of the Russian Federation noted the following.
In accordance with Article 3 of the Environmental Protection Law, economic and other activities that have an impact on the environment should be carried out based on principles including the admissibility of the impact of economic and other activities on the natural environment, taking into account environmental protection requirements; prohibition of economic and other activities whose effects on the environment are unpredictable, as well as implementation of projects that may lead to degradation of natural ecological systems, changes and (or) destruction of the genetic fund of plants, animals and other organisms, exhaustion of natural resources, and other negative changes in the environment; and liability for violations of environmental protection legislation.
In accordance with paragraph 1 of Article 65 of the Water Code of the Russian Federation, water protection zones are territories adjacent to the shoreline (boundaries of a water body) of seas, rivers, streams, canals, lakes, reservoirs, and on which a special regime for carrying out economic and other activities is established in order to prevent pollution, clogging, silting of the aforementioned water bodies, depletion of their waters, as well as preservation of the habitat of aquatic biological resources and other objects of animal and plant life.
According to paragraph 2 of part 15 of this article, within the boundaries of water protection zones it is prohibited to locate cemeteries, livestock burial grounds, waste disposal facilities for production and consumption wastes, chemical, explosive, toxic, poisonous and hazardous substances, and radioactive waste disposal sites.
A literal interpretation of the above legal provision directly prohibits the placement of chemical, explosive, toxic, poisonous, and harmful substances within water protection zones. It is irrelevant from a legal standpoint whether this placement is long-term or temporary, and whether the chemical, explosive, toxic, poisonous, or harmful substances are production waste, raw materials, or intermediate products.
Citing the presence of a license for the activity carried out by the person causing harm, judicial authorities did not provide a legal basis for the claim that having a license allows non-compliance with the above-mentioned environmental protection legislation norms.
Upon reconsideration of the case, with the court decision left unchanged by the appellate court, the prosecutor's claims were satisfied, and the placement of chemical, explosive, toxic, and harmful substances within the boundaries of the reservoir's water protection zone has been prohibited.
Source: Overview of judicial practice on the application of environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
The Federal Service for Supervision of Natural Resources (Rosprirodnadzor) filed a lawsuit seeking compensation for damage caused to a water body as a result of the discharge of harmful (polluting) substances in wastewater.
The court of first instance, with which the appellate court agreed, denied the claim, stating that exceeding permissible discharge norms (hereinafter - PDS) of wastewater by itself cannot be considered evidence of damage. An essential characteristic of environmental harm is the presence of consequences such as degradation of natural ecological systems and depletion of natural resources.
The cassation court annulled the judicial decisions adopted and satisfied the claim, stating the following.
According to the provisions of paragraph 2 of article 16 of the Law on Environmental Protection, discharges of pollutants, other substances and microorganisms into surface water bodies are one of the types of negative impact on the environment.
In accordance with paragraphs 1 and 2 of article 35 of the Water Code of the Russian Federation, maintaining surface and groundwater in a condition corresponding to legal requirements is ensured by establishing and observing norms of permissible impact on water bodies, which are developed based on maximum allowable concentrations of chemical substances, radioactive substances, microorganisms and other water quality indicators in water bodies.
The amount of substances and microorganisms contained in discharges of wastewater, including drainage waters, into water bodies must not exceed the established norms of permissible impact on water bodies (paragraph 4 of article 35 of the Water Code of the Russian Federation).
In the event that legal entities and individual entrepreneurs exceed the permissible impact standards, it is assumed that their actions cause harm (Article 3, paragraph 3 of Article 22, paragraph 2 of Article 34 of the Environmental Protection Law, second sentence of paragraph 7 of Resolution No. 49).
Exceeding permissible impact standards on water bodies constitutes an independent violation of water legislation (paragraph 4 of Article 35 of the Water Code of the Russian Federation), and the property liability for which is determined based on the Methodology for Calculating the Amount of Damage Caused to Water Bodies as a Result of Violations of Water Legislation, approved by the order of the Ministry of Natural Resources of Russia dated April 13, 2009 No. 87 (hereinafter - Methodology No. 87).
According to paragraph 11 of Methodology No. 87, the basis for calculating the amount of damage caused to a water body is the mass of the pollutant, which is determined as the difference between the concentration of the pollutant found in wastewater samples and the permissible discharge limit (PDL).
Since the exceedance of permissible maximum concentrations (hereinafter - PDK) of pollutants in a water body, recorded during the collection of a background sample upstream of the control section, by itself indicates pollution of the environment and degradation of natural ecological systems, the discharge of wastewater by the user leading to an increase in the concentration of pollutants results in further deterioration of the quality parameters of water in the water body and causes harm to the environment. This harm is also caused in cases where the difference between the concentrations of pollutants recorded at the control section and at the point of background sample collection does not exceed the PDK.
Source: Overview of judicial practice on issues relating to the application of environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
The boundaries of the water protection zone and the coastal protective strip of the Tsuskhvadzhi River have been approved by an order of the regional ministry of natural resources (hereinafter - Order).
The owner of land plots falling within the boundaries of such territories filed a lawsuit with the court, seeking administrative relief to declare the Order invalid in part relating to the inclusion of the aforementioned land plots into the boundaries of the water protection zone and the riparian protective strip of the Tsuskhvadz River. He stated that these boundaries do not correspond to reality, as they were established relative to the shoreline of the Tsuskhvadz River in violation of the Rules for Determining the Location of the Shoreline (Boundary of a Water Object), Cases and Periodicity of Its Determination, approved by the Government Decree of the Russian Federation dated April 29, 2016 No. 377 (hereinafter - Rules for Determining the Location of the Shoreline), since data on water levels contained in the Unified State Fund of Data on the State of the Environment and Its Pollution were not used due to their absence. The contested normative legal act significantly restricts his economic and other activities.
The requirements stated in the lawsuit have been satisfied by the decision of the first instance court. The order has been deemed invalid on the grounds that, when determining the location of the river Tsuskhvadz's shoreline, the average multi-year water levels were not taken into account, which violates the requirements of the Water Code of the Russian Federation and the Rules for Determining the Location of the Shoreline.
The appellate court did not agree with this conclusion and overturned the decision, stating the following.
According to paragraph 4 of Article 5 of the Water Code of the Russian Federation, the shoreline (boundary of a water body) is determined, among other things, for rivers based on the average multi-year water level during the period when it is not covered by ice.
The procedure for determining the location of the shoreline (boundary of a water body), as well as the cases and periodicity of its determination, are established by the Government of the Russian Federation (paragraph 4.1 of Article 5 of the Water Code of the Russian Federation).
According to the Rules for Determining the Location of the Shoreline, in order to establish the location of the shoreline (boundary of a water body), the cartometric method of determining the coordinates of the shoreline (boundary of a water body) is applied using up-to-date cartographic materials of the largest scale, as well as data from remote sensing of the Earth available for the relevant territory in federal or departmental cartographic and geodetic funds; the establishment of the location of the shoreline (boundary of a water body) of rivers is carried out by the cartometric (photogrammetric) method using data on water levels contained in the Unified State Fund of Data on the State of the Environment, its Pollution (paragraph 9).
Thus, for determining the location of a river's shoreline, data contained in the Unified State Fund of Data on the State of the Environment and Its Pollution are applied. However, this does not mean that in the absence of such data regarding a specific water body, the location of the shoreline cannot be determined.
Other conclusions would imply excluding surface water bodies for which such data are absent from the state-established system of protective measures, which is inconsistent with the principle of environmental preservation.
At the same time, when applying the main methods and schemes for calculating the levels of highest water marks of rivers contained in the "Code of Practice SP 33-101-2003. Determination of Main Hydrological Calculation Characteristics", approved and recommended for use as a normative document within the system of normative documents in construction by the decision of the State Committee of the Russian Federation on Construction and Housing and Utilities Complex dated December 26, 2003 No. 218 (hereinafter - Code of Practice), there is an opportunity to use data from analogous rivers.
The Tskhvardzha River does not have hydrological stations, therefore the determination of boundaries of its water protection zone and coastal protective strip, as well as the establishment of the location of the shoreline were carried out by cartometric (photogrammetric) methods using data on river levels of an analogous river in accordance with the Code of Practice.
Thus determining (with respect to river analogs) the long-term average water level, the regional ministry of natural resources did not change the criteria for the shoreline (boundaries of the water body) established by paragraph 4 of article 5 of the Water Code of the Russian Federation. Accordingly, the boundaries of the water protection zone and the coastal protective strip of the Tsuskhvadzhi River were approved in accordance with the established procedure, and the challenged order does not contradict normative legal acts having greater legal force.
Source: Overview of judicial practice on issues of applying environmental legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
The prosecutor filed a claim with the court against the regional ministry of natural resources (hereinafter - the ministry) requesting that the court declare unlawful the inaction manifested by failure to take measures to organize the elimination of subsurface accumulation of petroleum products, preventing their entry into the Selenga River, which is a tributary of Lake Baikal, and also imposing an obligation to organize the conduct of appropriate activities.
The decision of the first instance court, part of whose resolutory portion was partially amended by the appellate court, satisfied the prosecutor's claim.
The cassation court overturned the judicial acts issued in the case and adopted a new decision refusing to satisfy the prosecutor's claims, stating that the ministry did not commit inaction in carrying out activities for the elimination of subsurface accumulation of petroleum products provided for in the Program, since appropriate state contracts have been concluded by it for their implementation.
The judicial panel of the Supreme Court of the Russian Federation did not agree with this conclusion for the following reasons.
Measures to eliminate the subsurface accumulation of petroleum products are provided for in the Federal Target Program "Protection of Lake Baikal and socio-economic development of the Baikal Natural Territory for 2012-2020 years," approved by the Government of the Russian Federation on August 21, 2012, No. 847 (hereinafter - the Program). The expected result of implementing these measures was to prevent the inflow of petroleum-contaminated groundwater into the Selenga River.
The charter of the ministry of natural resources of the subject of the Russian Federation where the disputed water object is located provides that protective measures in relation to a water object belonging to federal ownership and located on the territory of this subject are carried out by this ministry.
In order to implement the activities specified by the Program between the ministry and the economic entity, state contracts were concluded, providing for the execution of all measures for the elimination of subsurface accumulation of petroleum products polluting the waters of the Selenga River. The economic entity performed all works in accordance with the technical specification, which is an appendix to the state contract, and submitted the relevant documents to the customer. However, the expected results from the activities, as well as the indicators defined by the Program, were not achieved; petroleum products continued to enter the river, posing a threat of their entry into Lake Baikal.
In accordance with the provisions of Article 1, paragraphs 2 and 3 of Article 80.1, and Article 80.2 of the Law on Environmental Protection, state authorities of the subjects of the Russian Federation, when organizing work to eliminate accumulated environmental damage, conduct an assessment of objects of accumulated environmental harm, including determining the volume or mass of pollutants, the area of territories and water areas where the object of accumulated environmental damage is located, as well as the level and extent of negative impact on the environment.
At the same time, as established by the court, the ministry improperly prepared the task when placing an order for determining the parameters of the accumulation of petroleum products; research aimed at establishing the volume of the accumulation of petroleum products, total area and other parameters were not carried out in full.
Thus, the ministry has not taken the necessary and comprehensive measures to organize the elimination of the subsurface accumulation of petroleum products, to prevent and eliminate the consequences of environmental damage. Accordingly, the non-fulfillment of such activities in full is considered inaction by the ministry.
Source: Overview of judicial practice on issues of applying legislation on environmental protection (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
The prosecutor filed a lawsuit with the court requesting that the decision of the regional ministry of natural resources to provide a water object to an individual entrepreneur for discharging wastewater be declared unlawful, and to oblige the water management body of the Federal Water Resources Agency to remove from the state water register information regarding the state registration of the decision to provide this water object.
In support of his argument, he noted that according to the decision of the regional ministry of natural resources, an individual entrepreneur was granted a water object for discharging wastewater. However, the graphical coordinates specified in the contested decision for discharging wastewater are actually located 400 meters away from the water object. The discharge is taking place within a forested area, which has led to peat formation and soil contamination with untreated effluent, as well as damage to growing trees and shrubs to the extent that their growth has ceased.
The first instance court upheld the decision left unchanged by the appellate court, granting the request based on the following grounds.
Pursuant to the provisions of the Water Code of the Russian Federation, physical and legal entities, based on decisions regarding the allocation of water objects for use, acquire the right to use surface water objects owned by the federal government, the governments of the subjects of the Russian Federation, and municipal formations, including for the purpose of discharging wastewater (paragraph 1 of Article 9, paragraph 2 of part 3 of Article 11).
According to the Rules for Preparation and Adoption of a Decision on the Allocation of a Water Object for Use, approved by the Government of the Russian Federation Decree dated December 30, 2006 No. 844 (hereinafter - the Rules), in force during the period when the disputed legal relations arose, an interested party seeking allocation of a water object for use in the purpose of discharging wastewater requests information about the water object contained in the state water register from the territorial body of the Federal Agency for Water Resources, on the basis of which it subsequently submits an application for allocation of the water object for use with the attachment of relevant documents to the executive body of state authority or local self-government body at the location of the water object (paragraphs 2, 7 - 11 of the Rules) <1>.
Part I of the Federal Target Program "Clean Water" for 2011 - 2017 (approved by the Government Decree of the Russian Federation dated 22.12.2010 No. 1092 // RSZ RF. 2011. No. 4. Art. 603). ↩
State Report "On the State and on the Protection of the Environment in the Russian Federation in 2011" [Electronic resource]. 2011. URL: http://www.mnr.gov.ru/regulatory/list.php?part=1392. ↩
Constitution of the Russian Federation. Art. 72. ↩
Constitution of the Russian Federation. Art. 72. ↩
Federal Law of July 31, 1998 No. 155-FZ "On Internal Waters, Territorial Sea and Adjacent Zone of the Russian Federation" // RSZ RF. 1998. No. 31. Art. 3833. ↩
Federal Law of July 21, 1997 No. 117-FZ "On Safety of Hydraulic Engineering Structures" // RSZ RF. 1997. No. 30. Art. 3589. ↩
Federal Law of May 1, 1999 No. 94-FZ "On Protection of Lake Baikal" // RSZ RF. 1999. No. 18. Art. 2220. ↩
Surface water objects consist of surface waters and the land covered by them within the shoreline (paragraph 3 of Article 5 of the Water Code of the Russian Federation). The shoreline (boundary of a water object) is determined as follows: 1) for the sea - according to the permanent level of water, and in case of periodic changes in the water level - according to the line of maximum ebb; 2) for rivers, streams, canals, lakes, flooded quarries - according to the average multi-year water level during the period when they are not covered by ice; 3) for ponds and reservoirs - according to the normal regulated water level; 4) for swamps - according to the boundary of peat deposits at zero depth (paragraph 4 of Article 5 of the Water Code of the Russian Federation). ↩
The boundaries of groundwater objects are determined in accordance with the legislation on mineral resources (paragraph 6 of Article 5 of the Water Code of the Russian Federation). ↩
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