Legal Regime of Waters

General Provisions

The legal regime of water in the Russian Federation establishes a set of norms and mechanisms aimed at protecting, rational use and restoration of water bodies.

Legislation covers regulation of water relations, including ownership, use, and management of water resources, establishes the priority of water protection over their use, and enshrines principles of protecting aquatic biological resources and the environment as a whole.

The Water Code of the Russian Federation, federal laws, government acts, and normative acts of subjects of the Russian Federation define the rights and obligations of water users, types of water objects (surface and groundwater), water fund, and water resources.

Special attention is given to preventing water pollution and depletion, monitoring of 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 water use, and ecosystem preservation.

Software 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 projected that by 2020 use of water will increase by 40 percent, and by 2025 two out of three people will face water shortages¹.

In 2011 by comparison with 2010, the situation regarding the condition of both underground and surface sources of centralized drinking water supply and the quality of water at points of water abstraction has not changed significantly and continues to remain unsatisfactory. Overall by the Russian Federation, 35.7% of surface sources of drinking water supply (in 2010 – 36.8%) and 15.8% of underground sources (in 2010 – 16.4%)² did not comply with sanitary and epidemiological rules and regulations.

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 (ВК РФ). In particular, Article 2 of the Water Code of the Russian Federation stipulates that water legislation consists of the Water Code of the Russian Federation (ВК РФ), other federal laws, and adopted by

In accordance with them, the laws of the subjects of the Russian Federation. Norms regulating relations regarding the use and protection of water objects (water relations), contained in other federal laws, laws of the subjects of the Russian Federation, must comply with the Water Code of the Russian Federation.

Water relations may also be regulated by decrees of the President of the Russian Federation, which must not contradict the Water Code of the Russian Federation (VKK RF), other federal laws. Government of the Russian Federation issues normative legal acts regulating water relations within the scope of powers defined by the Water Code of the Russian Federation, 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 water relations in cases and within the limits provided for by the Water Code of the Russian Federation (ВК РФ), other federal laws, as well as decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation.

On the basis of and in accordance with the Constitution of the Russian Federation (ВК РФ), other federal laws, and other normative legal acts of the Russian Federation, as well as laws of the subjects of the Russian Federation executive authorities of the subjects of the Russian Federation within their authority may issue regulatory legal acts governing water relations.

On the basis of and in implementation of the Federal Constitutional Law 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 (ВК РФ), the main federal laws defining the legal regime of water include: Federal Law «On Environmental Protection», which defines the legal regime for all components of the natural environment, including water); Federal law «On Internal Waters, Territorial Sea and Adjacent Zone of the Russian Federation»⁵; Federal Law «О

safety of hydraulic structures»⁶; 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, for conducting economic and other activities, and simultaneously as an object of property rights and other rights (paragraph 1 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, where 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 objects](/enc/28925/

"Definition of the term 'Surface Water Objects' in the legal encyclopedia")⁸; and 2) underground water objects⁹. Surface water objects include: 1) seas or their separate parts (straits, bays, including inlets, lagoons and others); 2) watercourses (rivers, streams, canals); 3) water bodies (lakes, ponds, flooded quarries, reservoirs); 4) marshes; 5) natural outlets of groundwater (springs, geysers); 6) glaciers, snowfields. Underground water objects include: 1) groundwater basins; 2) aquifers

horizons.

Water regime (Water Regime) refers to changes over time in water levels, flow rate, and volume within a water body. The water fund is recognized as the collection of water bodies within the territory of the Russian Federation. Water resources (Water Resources) are surface and groundwater located within water bodies that are used or may be used.

Judicial Practice

Storage and warehousing of chemical, explosive, toxic, poisonous, and venomous substances within the boundaries of a water protection zone are not allowed regardless of the duration of such storage and the presence of a license issued to the respondent for the right to conduct activities related to the operation of chemically hazardous industrial waste.

Prosecutor filed a claim requesting a ban on the placement of chemical, explosive, and toxic substances that person stored within the water protection zone of the Gorky Reservoir.

The decision of the first instance [court](/enc/32702/ "Definition of the term «Court» in the legal encyclopedia), upheld without change by the appellate and cassation courts, denied the claim's requirements.

The court has established that the respondent 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, based on a license. High-toxicity substances and substances posing a risk to the environment are used in its production activities. [Activities](/enc/32150/ "Definition

The concept of "Activity" in the legal encyclopedia is carried out on a leased land plot that is entirely within the boundaries of the water protection zone and the shoreline 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 a water protection zone.

Denying the satisfaction of the claim, the courts relied on the fact that defendant is not an entity responsible for placing the aforementioned substances, but merely performs their temporary storage and warehousing as part of the technological process, which forms part of the activities carried out by it on the basis of a license obtained in accordance with the law.

By overturning the judicial acts that had taken place in the case, the Judicial Collegium of the Supreme Court of the Russian Federation stated the following.

In accordance with Article 3 of the Law on Environmental Protection, economic and other activity, which has an [impact on the environment](/enc/13462/ "Definition of the term 'Impact on the Environment' in the legal encyclopedia), should be carried out based on, among other things, the principles of permissible impact of economic and other activities on the natural environment, taking into account requirements in the field of environmental protection; prohibition of economic and other activities whose impact consequences are unpredictable for the environment, as well as implementation of projects,

which may lead to degradation of natural ecological systems, alteration and (or) destruction of the genetic foundation of plants, animals, and other organisms, depletion of natural resources, and other negative changes in the environment; responsibility for violation of legislation in the field of environmental protection.

According to paragraph 1 of Article 65 of the Water Code of the Russian Federation water protection zones are territories, which adjoin the shoreline (boundaries of a water body) of seas, rivers, streams, canals, lakes, reservoirs and on which a special regime for economic and other activities is established with the aim of preventing pollution, littering, siltation of the aforementioned water bodies, depletion of their waters, as well as preserving the habitat of aquatic biological resources and other objects of fauna and flora.

Pursuant to paragraph 2 of part 15 of this article, within the boundaries of water protection zones it is prohibited placement of cemeteries, livestock burial sites, facilities for the placement of production and consumption waste, chemical, explosive, toxic, poisonous and hazardous substances, as well as facilities for the disposal of radioactive waste.

From a literal interpretation of the aforementioned legal provision, it follows that there is a direct prohibition on placement of chemical, explosive, toxic, poisonous, and hazardous substances within water protection zones. In this regard, it has no legal significance whether this placement is long-term or temporary, as well as whether the chemical, explosive, toxic, poisonous, or hazardous substances are production waste, raw materials, or intermediate products.

Citing the presence of a license for the type of activity conducted by the person causing harm, judicial authorities did not provide a legal basis for the assertion that having a license allows non-compliance with the aforementioned norms of environmental legislation.

Upon reconsideration of the case, as decided by court, left unchanged by the appellate court, the prosecutor's claims were satisfied, prohibiting the placement of chemical, explosive, toxic, and poisonous substances within the boundaries of the water protection zone of the reservoir.

Source: Overview of judicial practice on issues of applying environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation June 24, 2022)

Establishing the fact of exceeding permissible discharge standards in wastewater indicates harm to a water body regardless of background sample indicators.

The Management of Rospridnadzor filed a lawsuit with the court for compensation of damage caused to a water body as a result of discharging harmful (polluting) substances in wastewater.

Courts of first instance, with which the appellate court agreed, refused to satisfy the claim, stating that exceeding the normative discharge limits (hereinafter - NDL) for wastewater by itself cannot be considered evidence of harm caused. A mandatory characteristic of causing harm to the environment is the presence of consequences in the form of degradation of natural ecological systems and exhaustion of natural resources.

The cassation court overturned the adopted judicial decisions 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.

Pursuant to paragraphs 1 and 2 Article 35 of the Water Code of the Russian Federation the maintenance of surface and groundwater in a condition corresponding to legislative requirements is ensured through the establishment and observance of permissible impact norms on water objects, which are developed based on maximum allowable concentrations of chemical substances, radioactive substances, microorganisms, and other water quality indicators in water objects.

Quantity of substances and microorganisms contained in discharges of wastewater, including drainage water, into water bodies must not exceed the established normative limits of permissible impact on water bodies (part 4 Article 35 of the Water Code of the Russian Federation).

In the event that legal entities or individual entrepreneurs exceed the established permissible impact standards, it is presumed that harm is caused as a result of their actions (article 3, paragraph 3 of article 22, paragraph 2 of article 34 of the Law on Environmental Protection, paragraph 2 of point 7 of Resolution No. 49 of the Plenum).

Exceeding the permissible impact norms on water objects is a standalone violation of water legislation (Part 4 Article 35 of the Water Code of the Russian Federation), for which property liability is determined based on the Methodology for Calculating the Amount of Damage Caused to Water Objects Due to Violations of Water Legislation, approved by Order No. 87 of the Ministry of Natural Resources and Environment of Russia dated April 13, 2009 (hereinafter - Methodology No. 87).

Since exceeding permissible maximum concentrations (hereinafter - PDK) of pollutants in a water body, recorded during the collection of a background sample above the control cross-section, by itself indicates pollution of the environment, degradation of natural ecological systems, then discharge of wastewater by the user causing an increase in pollutant concentrations leads to further deterioration of water quality parameters in the water body and causes harm to the environment. Such harm

is considered to occur if the difference in concentrations of pollutants recorded in the control section and at the background sample point does not exceed the permissible concentration levels (ПДК).

Source: Overview of judicial practice on issues of applying environmental legislation (approved by the Presidium of the Supreme Court of the Russian Federation June 24, 2022)

In order to establish the boundaries of water protection zones and coastal protective strips of rivers, when there is no data in the Unified State Fund regarding the state of the environment, its pollution, or necessary information on the long-term average water level of a specific water body during the period when it is not covered by ice, as well as the location of the shoreline, such information is determined based on data relating to analogous rivers.

By the order of the regional ministry of natural resources, the boundaries of the water protection zone and the shoreline protective strip of the Tsuskhvaj River have been approved (hereinafter referred to as the Order).

The owner of land plots falling within the boundaries of such territories filed an administrative lawsuit with the court requesting recognition of the Order as invalid in part concerning the inclusion of the aforementioned land plots into the boundaries of the water protection zone and shoreline protective strip of the Tskhovadzhi River. He stated that data boundaries do not correspond to reality, having been established relative to the shoreline of the Tskhovadzhi 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 defining the location of the coastline), since they were not used due to their absence data on water levels contained in the Unified State Environmental Data Fund regarding the state of the environment and its pollution. The challenged regulatory act significantly limits its economic and other activities.

The decision of the first-instance court satisfied the submitted claims; the order was declared invalid on the grounds that, when determining the location of the river Tsuskhvadz's shoreline, violation of the requirements of the Water Code of the Russian Federation and the Rules for Determining the Location of the Shoreline was not taken into account, as average long-term water levels were not considered.

The appellate court did not agree with this conclusion and overturned the decision, stating the following.

Pursuant to part 4 of Article 5 of the Water Code of the Russian Federation coastal line (boundary of a water object) 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 coastal line (boundary of a water object), circumstances and periodicity of its determination are established by the Government of the Russian Federation (part 4.1 of Article 5 of the Water Code of the Russian Federation).

According to the Rules for Determining the Location of the Coastline, for establishing the location of the coastline (boundary of a water body), the cartometric method of determining the coordinates of the coastline (boundary of a water body) is applied using current cartographic materials of the largest scale, as well as data from remote sensing of earth, available for the relevant territory in federal or departmental cartographic and geodetic funds; establishment

The determination of the location of the shoreline (boundaries of the 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 and Its Pollution (point 9).

Thus, for determining the location of the 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 is not subject to determination.

Other conclusions would indicate the exclusion of surface water bodies for which such data are absent from the state-established system of measures for their protection, which does not comply with the principle of environmental preservation.

At the same time, when applying basic methods and calculation schemes for determining elevation marks of the highest water levels of rivers contained in the "Code of Rules SP 33-101-2003. Determination of Main Calculated Hydrological Characteristics," approved and recommended for use as a normative document of the system of normative documents in construction by the decree of the State Committee of the Russian Federation for Construction and Housing and Communal Services dated December 26, 2003 No. 218 (hereinafter - Code of Rules), there is an opportunity to use data from analog rivers.

River Tsuskhvadzh has no hydrological posts, which is why the determination of boundaries of its water protection zone and coastal protective strip, as well as establishment of the location of the shoreline were carried out using cartometric (photogrammetric) methods based on data about water levels of a similar river in accordance with the Code of Regulations.

Defining in this way (relative to river analogs) the multi-year average water level, the regional ministry of natural resources did not change the criteria for the shoreline (boundary of the water body) established by paragraph 4 of article 5 of the Russian Water Code. 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 contested order does not contradict normative legal acts having higher legal force.

Source: Overview of judicial practice on issues related to the application of environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on June 24, 2022)

Conclusion of a state contract for carrying out activities to protect a water body in order to implement the program for protecting this body by itself does not exempt the authorized body from taking all necessary and exhaustive measures aimed at achieving the expected result established by this program.

Prosecutor filed a claim with the court against the regional ministry of natural resources (hereinafter - ministry) requesting to recognize as unlawful the inaction manifested in failure to take measures for organizing the elimination of underground accumulation of petroleum products, preventing their entry into the Selenga River, which is a tributary of Lake Baikal, and imposing an obligation to organize the conduct of appropriate measures.

The decision of the first-instance court, the resolutory part of which was partially amended by the appellate court, the requirement requirement filed by the prosecutor has been satisfied.

The cassation court overturned the judicial acts issued in the case, adopted a new decision to refuse satisfaction of the prosecutor's claims, noting that the ministry did not commit inaction in implementing measures for eliminating subsurface accumulation of petroleum products provided for by the Program, as it concluded corresponding state contracts for their implementation.

The Judicial Collegium of the Supreme Court of the Russian Federation did not agree with such conclusion for the following reasons.

Measures for eliminating subsurface accumulation of petroleum products are provided for by the Federal Target Program "Protection of Lake Baikal and socio-economic development of the Baikal Natural Territory for 2012–2020", approved by Government Decree of the Russian Federation dated August 21, 2012 No. 847 (hereinafter - Program). The expected result of implementing these measures was the exclusion of inflow of contaminated

The Regulation on the Ministry of Natural Resources of a Subject of the Russian Federation provides that protective measures in relation to a water object located within federal ownership and situated on the territory of this subject are carried out by this ministry.

In order to implement activities specified by the Program between the ministry and the business entity, state contracts have been concluded, providing for the execution of all measures for the elimination of underground accumulation of petroleum products polluting the waters of the Selenga River. The business entity performed all works in accordance with the technical specification, which is an appendix to the state contract, and transmitted the relevant documents to the customer. At the same time, the expected result from

conducted activities, specified Program indicators were not achieved, oil products continued to enter the river, there was a threat of their entering the lake Baikal.

Due to the provisions of Article 1, paragraphs 2, 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 works for the elimination of accumulated environmental damage conduct an assessment of objects of accumulated environmental damage, including determining the volume or mass of pollutants, areas of territories and water areas where the object of accumulated environmental damage is located

in terms of the environment, level, and extent of adverse effects on the environment.

Meanwhile, as established by the court, the ministry improperly formulated the task when placing an order for determining the parameters of the oil product accumulation, and research aimed at establishing the volume of the oil product accumulation, total area, and other parameters were not conducted in full.

Thus, the ministry did not take necessary and comprehensive measures to organize the liquidation of the subsurface accumulation of oil products, to prevent and eliminate the consequences of environmental damage. Accordingly, the incomplete implementation of such measures constitutes inaction by the ministry.

Overview of judicial practice on

Authority, authorized to make a decision on granting a water body for use to carry out wastewater discharge, is obliged to verify the information provided by the applicant regarding the water body (including information regarding the location of the proposed wastewater discharge point, coordinates of the part of the water body declared for use) as to their accuracy.

The Prosecutor (Prosecutor) filed a lawsuit with the court requesting that the decision by the regional ministry of natural resources granting a water object to an individual entrepreneur for wastewater discharge be declared unlawful, and to compel the water management department of the Federal Water Resources Agency to exclude from the state water register (information) regarding the state registration of the decision granting this water object.

In support of this, it was noted that based on the decision of the regional ministry of natural resources, an individual entrepreneur was granted permission to discharge wastewater into a water object. However, the graphic coordinate point specified in the contested decision for discharging wastewater is actually located 400 meters away from the water object. The discharge occurs within a forest stand, which has resulted in peatification and pollution of the [soil](/enc/15996/ "Definition of the term

"Pollution of soils (as defined in the legal encyclopedia) by untreated wastewater, damage to growing trees and shrubs to the extent of cessation of growth."

The first-instance court adopted a decision, left unchanged by the appellate court, on the satisfaction of this claim based on the following grounds.

Pursuant to the provisions of the Water Code of the Russian Federation (ВК РФ) physical and legal entities acquire the right to use surface water objects, which are in federal property, property of subjects of the Russian Federation, property of municipal formations, including for the purpose of discharging wastewater (Part 1 of Article 9, paragraph 2 of Part 3 of Article 11).

According to the Rules for Preparation and Adoption of a Decision on Allocation of a Water Object for Use, approved by the Government Decree of the Russian Federation dated December 30, 2006 No. 844 (hereinafter - Rules), in effect during the period when the disputed legal relations arose, [person](/enc/31670/ "Definition of the term 'Person' in the legal encyclopedia) interested in allocating a water object for use in the purposes of wastewater discharge requests from the territorial office of the Federal Agency for Water Resources information on the water object contained in the state water

in the registry, based on which an application is subsequently submitted for the allocation of a water object in use with the attachment of the relevant documents to executive body of state authority or body of local self-government at the location of the water object (points 2, 7–11 of the Rules).

As of January 21, 2022, these legal relations are regulated by paragraphs 2, 7-10, and 14 of the Rules for Preparation and Adoption of a Decision on Granting a Water Object for Use, approved by the decree of the Government of the Russian Federation dated January 19, 2022 No. 18.

Executive body of state authority or body of local self-government considers documents submitted by the applicant, including with regard to their compliance with the requirements established by the Rules, assessing their completeness and reliability, as well as compliance of conditions for implementing the proposed water management measures and measures for protection of a water object with the requirements of water legislation (subparagraph "a" of paragraph 20 of the Rules). In particular, checks the reliability of the provided

by the applicant, information regarding the location of the proposed discharge of wastewater, coordinates of the portion of the water body declared for use, adjacent to the shoreline (boundary of the water body).

Subparagraph (a) of paragraph 23 of the Rules for Preparation and Adoption of a Decision on Granting a Water Object for Use, approved by the Decree of the Government of the Russian Federation dated January 19, 2022, No. 18.

The specialist of the regional ministry of natural resources did not verify the coordinates provided by the applicant for determining the wastewater discharge point for their accuracy, as a result of which discharge of wastewater was carried out not into a water body, but into a forested stand.

Accordingly, the decision of the regional ministry of natural resources to grant a water object to an individual entrepreneur for wastewater discharge was unlawful.

Source: Overview of Judicial Practice on Issues of Applying Environmental Protection Legislation (approved by the Presidium of the Supreme Court of the Russian Federation on June 24, 2022)

1. Part I of the Federal Target Program “Clean Water” for 2011–2017 (approved by Government Decree of the Russian Federation dated December 22, 2010 No. 1092 // RSZ RF. 2011. No. 4. Art. 603). ↩
2. State Report “On the State and Protection of the Environment of the Russian Federation in 2011” p. 14 // Official Website of the Ministry of Natural Resources and Ecology of Russia. [Electronic resource]. URL: http://www.mnr.gov.ru/regulatory/list.php?part=1392. ↩
3. Point “k” of Part 1 of Article 72 of the Constitution of the Russian Federation. ↩
4. Point “v” of Part 1 of Article 72 of the Constitution of the Russian Federation. ↩
5. Federal Law

"law» in the legal encyclopedia") of July 31, 1998 No. 155-FZ «On Internal Waters, Territorial Sea and Adjacent Zone of the Russian Federation» // Official Gazette of the Russian Federation. 1998. No. 31. Art. 3833. ↩
6. Federal law of July 21, 1997 No. 117-FZ «On Safety of Hydraulic Structures» // Official Gazette of the Russian Federation. 1997. No. 30. Art. 3589. ↩
7. Federal law of May 1, 1999 No. 94-FZ «On Protection of Lake Baikal» // Official Gazette of the Russian Federation. 1999. No. 18. Art. 2220. ↩
8. Surface water objects consist of

surface waters and lands covered by them within the shoreline (paragraph 3 Article 5 of the Water Code of the Russian Federation). In this regard, shoreline (boundary of a water body) is determined as follows: 1) for the sea - according to the permanent water level, and in case of periodic changes in 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, reservoirs - according to the normal floodwater level; 4)

wetlands - along the boundary of peat deposits at zero depth (paragraph 4 Article 5 of the Water Code of the Russian Federation). ↩
9. Boundaries of underground water objects are determined in accordance with the legislation on mineral resources (paragraph 6 Article 5 of the Water Code of the Russian Federation). ↩