Comment to article 141. Violation of the right of state ownership of water The Code of the Republic of Kazakhstan on Administrative Offences
1. Illegal seizure of water bodies, including the discharge of wastewater and other waters, illegal water use, assignment of water use rights, as well as other transactions that directly or indirectly violate the right of state ownership of water, –
A fine of thirty is imposed on individuals, forty on officials, small businesses or non–profit organizations, sixty on medium–sized businesses, and two hundred and sixty monthly calculation indices on large businesses.
2. Water intake in violation of limits, exceeding permitted volumes, non-compliance with established water use regimes, illegal production of hydraulic engineering works, irrational, inappropriate use of groundwater and surface waters extracted or diverted from water bodies, –
they impose a fine on individuals in the amount of ten, on officials, small business entities or non–profit organizations – in the amount of twenty, on medium–sized businesses - in the amount of thirty, on large businesses - in the amount of one hundred and seventy monthly calculation indices.
The public danger of an administrative offense under Article 141 of the Administrative Code lies in the fact that the perpetrator, by committing illegal actions to seize water bodies, including the discharge of wastewater and other waters, illegal water use, assignment of water use rights, as well as by making transactions, directly or indirectly, violates the right of state ownership of water, causes damage to the environment and the owner of the property.
Article 6 of the Constitution of the Republic of Kazakhstan states: "The land and its subsoil, waters, flora and fauna, and other natural resources are state-owned.
In accordance with the Water Code of the Republic of Kazakhstan, the water fund of the Republic of Kazakhstan is in exclusive state ownership. The right of ownership, use and disposal of the water fund is exercised by the Government of the Republic of Kazakhstan. Therefore, the management of the water fund in the Republic of Kazakhstan is the activity of the bodies of the Republic of Kazakhstan to carry out functions arising from the authority of the state as a subject of property rights, as well as their territorial supremacy as an element of state sovereignty.
The establishment of State ownership rights is also explained by the need to exclude cases of inept, irrational use of available water resources, their premature depletion and excessive pollution.
The main legislative act regulating water relations is the Water Code of the Republic of Kazakhstan. In accordance with the water legislation, the Water Fund of the Republic of Kazakhstan includes the totality of all water bodies within the territory of the Republic of Kazakhstan included or subject to inclusion in the state water cadastre.
However, the State grants individuals and legal entities the right to use water bodies in accordance with the procedure of special, separate or shared use established by the water legislation of the Republic of Kazakhstan.
The object of the offense is public relations regulated by the current legislation on the use of natural resources in the form of water bodies, water management facilities and land of the water fund, ensuring the right of state ownership of water bodies and their protection.
Water bodies are concentrations of water in the land surface and subsurface of the earth, having boundaries, volume and water regime. They are: seas, rivers, channels equated to them, lakes, glaciers and other surface and underground water bodies.
Water management facilities are artificially created hydraulic structures and devices for the purpose of regulating the use and protection of water resources, water supply, sanitation and elimination of harmful effects of water.
The lands of the water fund include the lands:
- occupied by water bodies (rivers and equivalent channels, lakes, reservoirs, ponds and other inland bodies of water, territorial waters, glaciers, swamps) and water management facilities for regulating runoff located at water sources;
- designated water protection strips of water bodies;
- designated areas for sanitary protection of drinking water intake systems.
Protection of water bodies is an activity aimed at preserving, restoring and reproducing water bodies, as well as preventing harmful effects of water.
The subject of the considered composition of an administrative offense is water bodies, water management facilities and lands of the water fund.
The objective side of the offense consists in actions in the form of:
- illegal seizure of water bodies,
- discharge of sewage and other waters,
- illegal water use,
- assignment of water use rights,
- making other transactions that directly or indirectly violate the right of state ownership of water.
Illegal seizure of water bodies is expressed in the use of water bodies without the permission of an authorized state body.
The State grants individuals and legal entities the right to use water bodies in accordance with the procedure of special, separate or shared use established by the water legislation of the Republic of Kazakhstan.
Special water use includes the use of surface and underground water resources directly from a water body, with or without withdrawal, to meet the drinking and economic needs of the population, the water needs of agriculture, industry, energy, fish farming and transport, as well as for the discharge of industrial, domestic, drainage and other wastewater using the following facilities and technical devices:
1) stationary, mobile and floating structures for mechanical and gravity extraction of water from surface and marine waters;
2) drainage structures intended for discharge into surface and sea waters of industrial, domestic, collector-drainage, stormwater and other wastewater;
3) facilities for the discharge of wastewater into artificial water bodies intended for natural biological wastewater treatment, and to the terrain;
4) dams and other water-retaining and water-regulating structures (including temporary blocking structures);
5) Hydraulic power plants;
6) water management facilities of thermal and nuclear power plants intended for water supply, waste water discharge, as well as for water cooling;
7) irrigation, irrigation, irrigation-irrigation and drainage systems;
8) water intake facilities equipped with pumping units and other water-lifting facilities for the extraction of groundwater and other purposes, including the production of drainage, water-lowering and environmental protection measures that affect the state of groundwater;
9) spillway structures (wells, wells, mines) intended for the discharge of wastewater and other waters into the subsurface;
10) drainage structures of exploited mine workings intended for extraction from mines, quarries, tunnels, sections;
11) self-draining wells, shaft wells, captages of springs and other small structures for extracting groundwater, operating without forced lowering of the water level;
12) absorbing wells and wells for the discharge of industrial, domestic, drainage and other wastewater, technological solutions into underground aquifers and rock voids;
13) injection wells to maintain reservoir pressure during the development of hydrocarbon raw materials and underground leaching during the extraction of solid mineral deposits;
14) other technical devices affecting the state of waters.
Special water use is carried out by individuals and legal entities on the basis of a permit solely for the purposes defined therein and must not violate the rights and legitimate interests of others or harm the environment.
The legislator provides for cases of special water use that do not require a permit, as stipulated in art. 66 of the Water Code.
Permits for special water use are not required when:
1) the use of the following water intake facilities: shaft and tubular filter wells, as well as captcha structures operating without forced lowering of the level with the withdrawal of water in all cases not more than fifty cubic meters per day from the first aquifer from the surface, not used for centralized water supply;
2) abstraction of water by sea vessels from water bodies to ensure the operation of the vessel and its technological equipment;
3) the intake (pumping) of groundwater (mine, quarry, mine), simultaneously withdrawn during the exploration and (or) extraction of solid minerals.
Permits for special water use are issued by the regional authorities of the authorized body.
Permits are issued for the following types of special water use:
1) discharge of groundwater (mine, quarry, mine), simultaneously withdrawn during exploration and (or) extraction of solid minerals, industrial, household, drainage, sewage and other waters into surface water bodies, subsoil, water management facilities or terrain;
2) extraction and (or) use of groundwater using structures or technical devices specified in paragraph 1 of this Article, with withdrawal limits of fifty cubic meters per day;
3) abstraction and (or) use of surface waters using structures or technical devices specified in paragraph 1 of this Article (hereinafter referred to as abstraction and (or) use of surface waters) (art. 66 of the Water Code).
The right of separate water use arises when water bodies or parts of them are provided for use by one individual or legal entity. On water bodies provided for separate water use, general water use is allowed under the conditions established by local representative bodies of regions (cities of republican significance, the capital) (art. 67 of the Water Code).
The right of joint water use arises when water bodies or parts of them are provided for use by several individuals and (or) legal entities. In case of joint water use, the interests of water users engaged in drinking water supply to the population, as well as the interests of downstream water users, are primarily satisfied (art. 68 of the Water Code).
Water bodies are provided to individuals and legal entities on the right:
1) short-term use for up to five years;
2) long-term use for a period of five to forty-nine years.
Discharge of sewage and other waters. Wastewater is water formed as a result of human economic activity or in a polluted territory, discharged into natural or artificial water bodies or onto the terrain.;
Wastewater discharge into surface water bodies is allowed if there is a permit for special water use, subject to their purification to the limits established by the authorized state body in the field of environmental protection and the authorized body in the field of sanitary and epidemiological welfare of the population.
The discharge of wastewater from industrial and food facilities that do not have treatment facilities and do not provide effective treatment in accordance with regulations, or otherwise enter water bodies with objects or pollutants that worsen the quality condition and complicate the use of water bodies, leads to contamination of water bodies. If these processes are not controlled by the authorized bodies, these actions may cause irreparable damage to the environment and the issuance of a permit is one of the ways of such control (art. 89 of the Water Code)
Illegal water use means the use of water resources in violation of the procedure established by the legislation of the Republic of Kazakhstan to meet their own needs and (or) commercial interests of individuals and legal entities.
Assignment of the right of water use is the voluntary transfer by individuals and legal entities of the right of water use in favor of third parties. Assignment of water use rights under the legislation of the Republic of Kazakhstan is not allowed.
Other transactions, directly or indirectly violating the right of state ownership of water, include actions related to the sale, pledge, and execution of other transactions that entail or may entail the alienation of water bodies. This is due to the fact that the waters are the exclusive property of the Republic of Kazakhstan.
The offense is considered completed from the moment of committing any action that violates the rights of state ownership of the land.
The subjects of the offense may be individuals who have reached the age of 16, as well as legal entities.
The subjective side of this offense is characterized by an intentional form of guilt.
Part 2 of the article in question provides for liability for the commission of an administrative offense, the objective side of which is expressed in the following actions::
- violation of water intake limits,
- excess of the allowed volume of water during water intake,
- non-compliance with established water use regimes,
- illegal production of hydraulic engineering works,
- irrational, inappropriate use of groundwater and surface waters extracted or diverted from water bodies
Violation of water intake limits involves the intake of water in an amount exceeding the permitted limit established by the legislation of the Republic of Kazakhstan.
Exceeding the permitted volumes of water during water intake implies exceeding the actual volumes of water intake above the limits of water use established by the legislation of the Republic of Kazakhstan.
Non-compliance with the established water use regimes is expressed in the use of water bodies without taking into account, or incorrect accounting of the volume of water resources specified in the permit for special water use.
The regime for the use of water bodies is approved in order to regulate changes over time in the volume of water intake, as well as levels and expenditures of water bodies and sources of drinking water supply, carried out to provide water for the needs of economic sectors and the environment.
The limits of water use in the context of basins and regions (cities of republican significance and the capital), the permissible volumes of water intake and modes of use of water bodies are approved by the Government of the Republic of Kazakhstan (by Order of the Prime Minister or his deputy) for a specific period of time.
Illegal production of hydraulic engineering works is the carrying out of works related to the construction and maintenance of hydraulic structures without permits to engage in this type of activity.
Irrational, inappropriate use of groundwater and surface water extracted or diverted from water bodies implies increased water consumption, a decrease in the efficiency of wastewater treatment, a change in the intended use of water, which leads to waste of resources and violation of the rules of its protection.
I would like to note that the objective side of the administrative offense provided for in Article 141 of the Administrative Code is broader in nature.
Due to the fact that the norms of administrative law are of a blank nature and the legal relations we are considering are regulated by the Water Code of the Republic of Kazakhstan, when analyzing the norms of which, it must be assumed that violations in the field of use and protection of the water fund are:
1) unauthorized seizure of water bodies, unauthorized water use, assignment of water use rights, water intake in violation of limits, unauthorized production of hydraulic engineering works, mismanagement of underground and surface waters extracted or diverted from water bodies, destruction of water protection and water management signs;
2) pollution, clogging and depletion of surface and groundwater, sources of drinking water supply, violation of the water protection regime in catchments, causing their pollution, water erosion of soils and other harmful phenomena;
3) commissioning of enterprises, utilities and other facilities without structures and devices that prevent pollution and clogging of waters or their harmful effects;
4) failure to carry out hydraulic engineering, technological, forestry, sanitary and other measures to protect waters from pollution, clogging and depletion, as well as to improve the condition of the water regime;
5) damage to water facilities and devices, as well as fire-fighting water supply systems;
6) violation of the rules of operation of water facilities and devices;
7) unauthorized construction of buildings, structures and other objects affecting the condition of rivers and other bodies of water;
8) unauthorized drilling of water wells and construction of groundwater intakes;
9) violation of the rules of primary accounting of waters and their use;
10) distortion of accounting and reporting data of the state water cadastre, schemes of integrated use and protection of water resources;
11) obstruction of the regulation of water resources in the interests of their integrated use, ecology and water allocation.
When committing one of the listed actions or their combination, the actions of the subject of the right of water use must be qualified under Article 141 of the Administrative Code.
According to Article 708 of the Administrative Code, cases of administrative offenses provided for in Article 141 of the Administrative Code are considered by the authorized body in the field of use and protection of the water fund.
The Court has the right to consider cases of administrative offenses and impose administrative penalties.:
1) the chief state Inspector for the regulation of the use and protection of waters and his deputies, the chief state basin (territorial) inspectors for the regulation of the use and protection of waters and their deputies;
2) senior state inspectors for the regulation of the use and protection of waters;
3) state inspectors for the regulation of the use and protection of waters.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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