Comment to article 361. Violation of the rules of primary accounting of waters and their use The Code of the Republic of Kazakhstan on Administrative Offences
Violation of the rules of primary accounting of waters and their use – entails a fine for individuals in the amount of ten, for officials, small businesses or non–profit organizations – in the amount of twenty, for medium–sized businesses - in the amount of thirty-five, for large businesses - in the amount of seventy monthly calculation indices.
The general object of the offense is the procedure for ensuring environmental protection.
The generic object of the offense is the social and legal relations that arise when observing the order of water use.
The disposition of Article 361 of the Administrative Code is of a blank nature and refers to another normative legal act.
In subclause 1) of clause 2 of the "Rules of Primary Accounting of waters", approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated March 30, 2015 No. 19/1-274, "primary accounting of waters" (hereinafter referred to as PM) means "measurement, treatment and registration of volumes of intake of surface and groundwater and (or) their discharges (expenditure and input parts of the water balance), which are carried out by water users who have a permit for special water use."
According to clause 3 of the "Rules of primary accounting of waters", primary water users are required to maintain a water supply system.:
1) draw up a diagram of the location of water management facilities and technical devices, indicating the numbering of measuring points, water intake and discharge, through which water intake or discharge is carried out, as well as metering units for the transfer of such waters to secondary water users;
2) Keep PUV logs.
In accordance with paragraph 4 of the "Rules of Primary Water Accounting", water consumption is measured at each water intake and wastewater outlet.:
1) for structures carrying out the intake of surface and groundwater, with a frequency of at least once every ten calendar days;
2) for water-retaining structures, waterworks, channels (main, inter-farm, intra-farm) with a frequency of at least once a day;
3) for facilities discharging wastewater, with a frequency of at least once every ten calendar days.
Paragraphs 5-11 of the "Rules for Primary Accounting of Waters" indicate that standard weirs and trays, as well as measuring instruments and installations included in the register of the state system for ensuring the uniformity of measurements, are used to measure water flow in open unpressurized channels.
The water consumption, on which standard weirs and trays are installed, is determined in the following ways, depending on the type of water management facility:
1) according to the readings of the level gauge rail and flow tables;
2) according to the schedule of a calibrated water intake control and (or) discharge facility.
The results of the PUV are recorded:
1) for structures that carry out the intake of surface and groundwater in the register of water consumption (drainage) with water measuring devices in accordance with the established form;
2) for water-retaining structures, hydraulic installations, channels (main, inter-farm, intra-farm) in the register of water consumption (drainage) by water measuring devices in accordance with the established form;
3) for facilities that discharge wastewater in the quality register of discharged wastewater (drainage) waters in accordance with the established form.
The journal for the management of PUV must be laced, numbered, and also certified with the signature of the first head or the person replacing him and the seal (if any). The measurement start date is indicated in the log. The information obtained as a result of the survey is submitted to the basin water management authorities on paper or electronic (in Excel format) media quarterly, by the 10th day of the month following the reporting quarter, in accordance with Annex 4 to these Rules.
The choice of measuring instruments and measuring devices and installations is determined by the water user, taking into account the availability of a room for measuring instruments, minimum and maximum operating water consumption and the schedule of their fluctuations, overpressure or vacuum in pipelines in which flow meters are installed, types of pumping units (for pumping stations), the composition of wastewater, the degree of contamination and water temperature.
Measuring instruments used in the field of state metrological control are checked in accordance with the Law of the Republic of Kazakhstan dated June 7, 2000 "On Ensuring the Uniformity of Measurements" upon release from production or repair, operation and import after their type approval or metrological certification and registration in the register of the State system for Ensuring the Uniformity of Measurements.
In the event of a failure of the measuring instruments of a water intake (discharge) facility, water metering is performed from the moment the last reading is recorded until the day of installation of a serviceable measuring instrument at the average daily flow rate for the last ten calendar days.
Thus, the objective side of the offense is manifested in actions that violate the rules of primary accounting of waters and their use.
The subjective side of the offense is characterized by the fact that the act can be committed both in the form of direct intent and negligence.
The subject of a special offense is an individual, an official, a small business entity or a non-profit organization, or a medium-sized business entity.
53 of the Water Code of the Republic of Kazakhstan dated July 9, 2003 No. 481 stipulates that production control in the field of use and protection of water resources is carried out on the basis of the rules of primary accounting of waters.
Production control in the field of use and protection of water resources is provided by individuals and legal entities exercising the right of special water use.
Production control in the field of use and protection of the water fund is carried out on the basis of water metering devices that have passed type approval or metrological certification in accordance with the procedure established by the Law of the Republic of Kazakhstan "On Ensuring the Uniformity of Measurements".
Production control over the quality of drinking water and treated wastewater is carried out by certified laboratories of the organization for water supply and (or) sanitation, as well as other certified laboratories in accordance with concluded contracts.
In accordance with Part 1 of Article 708 of the Administrative Code, authorized bodies in the field of use and protection of the water fund consider cases of administrative offenses provided for in Article 361 of the Administrative Code.
According to Part 1 of Article 805 of the Administrative Code, the prosecutor issues a resolution on the initiation of cases of administrative offenses provided for in Article 361 of the Administrative Code.
Paragraph 30) of Article 1 of the Water Code of the Republic of Kazakhstan stipulates that the "authorized body in the field of use and protection of water resources, water supply, and sanitation" is a state body that performs management and control functions in the field of use and protection of water resources, water supply, and sanitation outside populated areas.
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.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
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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