Legal regulation of the use and protection of waters

General Provisions

The legal regulation of the use and protection of water objects in the Russian Federation covers a system of measures for preserving and restoring water bodies and groundwater, preventing pollution, clogging, and depletion.

The rights and obligations of owners and water users are considered, including the rational use of water resources, compliance with water protection zones, and maintenance of hydraulic structures.

Special attention is given to legal mechanisms for water use: water use agreements, decisions on granting water objects for use, and cases that do not require permits.

The state supervision, monitoring, and maintenance of the state water register are analyzed as tools for controlling the quality and quantity of water, preventing environmental damage, and restoring damaged water objects, forming a comprehensive legal mechanism for sustainable use and protection of water resources.

Under the protection of water objects is understood a system of measures aimed at preserving and restoring water objects (article 1 of the Water Code of the Russian Federation). As noted in the state report «On the State and Protection of the Environment of the Russian Federation in 2010»¹, on the territory of Russia, 6206 contaminated groundwater sites have been identified. Contamination of 2260 sites (36% of the total number) is related to the activities of industrial enterprises, 975 sites (16%) - with agricultural activity, 796 sites (13%) - with communal services, 444 sites (7%) - as a result of drawing in substandard natural waters due to violation of their operation regime, 677 sites (11%) are caused by the joint activities of industrial, communal and agricultural facilities, and for 1054 sites (17%) source of groundwater contamination has not been established. The current legislation establishes the priority of water object protection over their use, according to which, use of water objects should not cause negative impact on the environment (paragraph 2 of Article 3 of the Water Code of the Russian Federation).

Objects of environmental protection include, among others, surface and groundwater (article 4 of the Federal Law "On Environmental Protection"). The main objectives of protecting water objects are: 1) prevention of pollution, clogging, depletion, and other negative (harmful) impacts of economic activities; 2) ensuring improvement and restoration of water objects that have been subjected to pollution, clogging, depletion, and other negative (harmful) impacts of economic activities.

Software According to M.M. Brinchuk, the term "pollution" covers not only the discharge of wastewater containing chemical substances in amounts exceeding permissible norms, but also so-called thermal pollution, as well as the appearance of microorganisms in water at unacceptable concentrations. The criterion for water pollution is the deterioration of its quality due to changes in physical (increase in temperature), chemical, biological, and organoleptic properties (taste, odor, color intensity, transparency) and the presence of harmful substances for humans, animals, and plant life.

Unlike pollution, which affects water quality in water bodies, siltation refers to the introduction into a water body of foreign insoluble objects (such as wood, slag, scrap metal, construction waste, etc.), which do not alter water quality. Legal criteria for determining water siltation are not established by legislation, thereby allowing PO bodies responsible for regulating the use and protection of water to address the issue of siltation of water objects on a case-by-case basis, taking into account local conditions.

Then, water depletion is understood as a reduction in the amount of water in a body of water occurring under the influence of human activity and having a lasting character. It does not refer to seasonal variations in river flow or natural changes in water reserves in seas and lakes, etc.²

In part 2 of Article 55 of the Water Code of the Russian Federation a list is established [/enc/3420/ "Definition of the term 'List' in the legal encyclopedia"] of water management activities and activities for the protection of water objects, which physical and legal entities [/enc/33534/ "Definition of the term 'physical and legal entities' in the legal encyclopedia"] are obliged to carry out in accordance with the Water Code of the Russian Federation and other federal laws when using water objects. In the list of such activities, the following are included: 1) protection of water objects from pollution and contamination; 2) protection of wetlands from pollution and contamination; 3) protection of glaciers and snowfields from pollution and contamination; 4) protection of groundwater objects; 5) protection of water objects during design, construction, reconstruction, commissioning, operation of a water management system; 6) protection of water objects during work activities; 7) protection of water objects when they are used for the purposes of electricity generation.

Water objects are used for the purposes of drinking and domestic water supply, discharge of wastewater and drainage water, production of electric energy, water and air transport, wood floating, and other purposes provided by the Water Code of the Russian Federation (article 37 of the Water Code of the Russian Federation).

According to paragraph 1 of article 38 of the Water Code of the Russian Federation, depending on the conditions for granting water objects for use, water usage is divided into: 1) joint water usage; 2) separate water usage³. Depending on the method of using water objects, water usage is divided into: 1) water usage with withdrawal (removal) of water resources from water objects under the condition of returning water to water objects; 2) water usage with withdrawal (removal) of water resources from water objects without returning water to water objects; 3) water usage without withdrawal (removal) of water resources from water objects (paragraph 3 of article 38 of the Water Code of the Russian Federation).

As noted by D.O. Sivakov, in the Water Code of the Russian Federation (WCRF), the previously customary licensing of water use in the water management sector is being abolished, on the basis of which water use agreements were previously concluded. There is a reduction in state administration in this area. In the WCRF, the importance and scope of application of water use agreements are increasing, transforming them from a secondary legal institution into a primary one⁴.

Use of water objects is carried out: 1) on the basis of water use agreements; 2) on the basis of decisions to provide water objects for use; 3) without concluding a water use agreement and without adopting a decision to provide a water object for use.

On the basis of water use agreements, unless otherwise provided by the Water Code of the Russian Federation (WCRF), water objects that are in federal ownership, the ownership of subjects of the Russian Federation, or the ownership of municipal formations are granted for use for: 1) abstraction (withdrawal) of water resources from surface water bodies; 2) use of the aquatic area of water bodies, including for recreational purposes; 3) use of water bodies without abstraction (withdrawal) of water resources for the purpose of generating electric power (paragraph 1 Article 11 of the WCRF).

According to D.O. Sivakov, the reduction of administrative regulation provided for by the Water Code of the Russian Federation should not break all permit-based methods and mechanisms of water use regulation. Providing water objects for use based on an administrative act is a widely used method of regulation both in countries of [CIS](/enc/32589/ "Definition of the term 'CIS' in the legal encyclopedia), as well as in Western Europe, and in several Asian states (for example, Japan). A complete abandonment of permit-based mechanisms in water use would be premature⁵.

According to paragraph 2 of Article 11 of the Water Code of the Russian Federation, based on decisions regarding the provision of water objects for use, unless otherwise provided by the Water Code of the Russian Federation, water objects belonging to federal ownership, the ownership of subjects of the Russian Federation, and municipal formations are provided for use for: 1) ensuring national defense and state security; 2) discharging wastewater, including drainage water; 3) construction of piers, ship lifting and ship repair facilities; 4) creation of stationary and (or) floating platforms, artificial islands on lands covered by surface waters; 5) construction of hydraulic engineering structures, bridges, as well as underwater and underground crossings, pipelines, underwater communication lines, other linear objects, if such construction is associated with changes to the bottom and shores of water objects; 6) exploration and extraction of minerals; 7) conducting dredging, blasting, drilling, and other works related to changes to the bottom and shores of water bodies; 8) raising of sunken vessels; 9) floating timber in rafts and using baskets; 10) abstraction (removal) of water resources for irrigation of agricultural land (including meadows and pastures); 11) organized recreation of children, as well as organized recreation of veterans, elderly citizens, and persons with disabilities; 12) abstraction (removal) of water resources from surface water bodies and their discharge when carrying out aquaculture (fish farming).

It is not required to conclude a water use agreement or to adopt a decision on granting a water object for use in cases where the water object is used for: 1) navigation (including maritime navigation), sailing of small vessels; 2) conducting a single takeoff or landing of aircraft; 3) withdrawal (extraction) of water resources from an underground water object, including water resources containing mineral resources and/or being natural therapeutic resources, as well as thermal waters; 4) withdrawal (extraction) of water resources for fire safety purposes, as well as for preventing emergencies and eliminating their consequences; 5) withdrawal (extraction) of water resources for sanitary, ecological and/or navigational releases (discharges of water); 6) withdrawal (extraction) of water resources by vessels for the purpose of ensuring the operation of ship mechanisms, equipment and technical means; 7) carrying out aquaculture (fish farming) and acclimatization of aquatic biological resources; 8) conducting state monitoring of water bodies and other natural resources; 9) performing geological surveys, as well as geophysical, geodetic, cartographic, topographic, hydrographic, diving works; 10) fishing, hunting; 11) carrying out traditional nature use in the areas of traditional settlement of indigenous small-numbered peoples of the North, Siberia and the Far East of the Russian Federation; 12) sanitary, quarantine and other control; 13) protection of the environment, including water bodies; 14) scientific and educational purposes; 15) exploration and extraction of minerals, construction of pipelines, roads and power transmission lines on peatlands, except for peatlands classified as wetlands, as well as peatlands located in river floodplains; 16) irrigation of garden, vegetable, dacha land plots, keeping of personal subsidiary farms, as well as watering livestock and performing works related to the care of agricultural animals; 17) swimming and the satisfaction of other personal and household needs of citizens in accordance with Article 6 of the Federal Law on Water Management; 18) carrying out dredging and other works within the waters of a sea or river port, as well as works for the maintenance of inland waterways of the Russian Federation; 19) creation of artificial land plots (paragraph 3 Article 11 of the Federal Law on Water Management).

Owners of water bodies and water users when using water bodies have the right: 1) to independently carry out use of water bodies; 2) to carry out construction of hydraulic and other structures on water bodies; 3) to use other rights provided for by this Code and other federal laws (paragraph 1 of Article 39 of the Water Code of the Russian Federation).

Then, according to paragraph 2 of Article 39 of the Water Code of the Russian Federation, owners of water bodies and water users, when using water bodies, are obliged: 1) not to allow violation of the rights of other owners of water bodies, water users, as well as to cause harm to the environment; 2) maintain in good condition the facilities operated by them and hydraulic and other facilities located on water bodies; 3) inform authorized executive state authority organs and local self-government organs about accidents and other emergency situations on water bodies ; 4) timely carry out measures to prevent and eliminate emergency situations on water objects; 5) keep records in accordance with the established procedure of the volume of water withdrawal (extraction) from water objects and the volume of discharge of wastewater, including drainage water, their quality, conduct regular observations of water objects and their water protection zones, and free of charge and within the prescribed timeframes submit the results of such records and these regular observations to the federal executive body authorized by the Government of the Russian Federation; 6) perform other obligations provided for by the Water Code of the Russian Federation and other federal laws.

1. State Report "On the State and Protection of the Environment of the Russian Federation in 2010" // Official Website of the Ministry of Natural Resources and Ecology of Russia. [Electronic resource]. URL: http://www.mnr.gov.ru/regulatory/detail.php?ID=128153. ↩
2. Brinchuk M.M. Environmental Law: textbook. Moscow, 2010. P. 431. ↩
3. According to paragraph 2 of Article 38 of the Water Code of the Russian Federation, separate water use may be carried out on water objects or their parts owned by individuals, legal entities, water objects or their parts owned by the state or municipal property and allocated for ensuring national defense and state security, other state or municipal needs, the provision of which excludes the use of water objects or their parts by other individuals, legal entities, as well as for carrying out aquaculture (fish farming). ↩
4. Sivakov D.O. Legal Regulation of Water Use: A Scientific and Practical Guide. Moscow, 2010. P. 23. ↩
5. Sivakov D.O. Legal Regulation of Water Use: A Scientific and Practical Guide. Moscow, 2010. P. 30. ↩