Comment to Article 384. Violation of the requirements of legislation in the field of protection, reproduction and use of fish resources and other aquatic animals of the Code of the Republic of Kazakhstan on Administrative Offenses
Violation of the requirements of legislation in the field of protection, reproduction and use of fish resources and other aquatic animals, if this action does not contain signs of a criminal offense committed in the form of:
1) admitting the discharge of harmful substances exceeding the established standards;
2) failure to provide new and reconstructed facilities with facilities and devices that prevent harmful effects, pollution and clogging of waters;
3) the use of livestock farms and other industrial complexes that do not have sewage treatment plants and sanitary protection zones;
4) the use of facilities and devices for the transportation and storage of petroleum, chemical and other products without equipping them with means to prevent water pollution;
5) the use of pesticides and fertilizers in the catchment area of water bodies;
6) dumping and burial of radioactive and toxic substances into water bodies;
7) discharge of wastewater from industrial and food facilities into water bodies that do not have treatment facilities and do not provide effective treatment in accordance with regulations;
8) the use of machinery and technology on water bodies and water management facilities that pose a threat to the environment;
9) discharge into water bodies and burial of solid, industrial, household and other waste in them;
10) clogging of catchment areas of water bodies, ice cover of water bodies, glaciers with solid, industrial, household and other waste, the flushing of which will lead to a deterioration in the quality of surface water bodies, –
entails a fine for individuals in the amount of ten, for officials, small business entities – in the amount of thirty, for medium–sized businesses – in the amount of fifty, for large businesses - in the amount of one hundred monthly calculation indices.
The object of the offense being commented on is the socio-legal relations that arise when meeting the requirements of legislation in the field of protection, reproduction and use of fish resources and other aquatic animals.
The objective side of the offense is manifested in actions (inaction) that violate the requirements of legislation in the field of protection, reproduction and use of fish resources and other aquatic animals, if this action does not contain signs of a criminal offense committed in the form of:
1) admitting the discharge of harmful substances exceeding the established standards;
2) failure to provide new and reconstructed facilities with facilities and devices that prevent harmful effects, pollution and clogging of waters;
3) the use of livestock farms and other industrial complexes that do not have sewage treatment plants and sanitary protection zones;
4) the use of facilities and devices for the transportation and storage of petroleum, chemical and other products without equipping them with means to prevent water pollution;
5) the use of pesticides and fertilizers in the catchment area of water bodies;
6) dumping and burial of radioactive and toxic substances into water bodies;
7) discharge of wastewater from industrial and food facilities into water bodies that do not have treatment facilities and do not provide effective treatment in accordance with regulations;
8) the use of machinery and technology on water bodies and water management facilities that pose a threat to the environment;
9) discharge into water bodies and burial of solid, industrial, household and other waste in them;
10) clogging of catchment areas of water bodies, ice cover of water bodies, glaciers with solid, industrial, household and other waste, the flushing of which will lead to a deterioration in the quality of surface water bodies.
In paragraphs 13-1) of Article 1 of the Water Code of the Republic of Kazakhstan dated July 9, 2003 No. 481, "permissible concentration of harmful substances" is understood to mean "the amount of the permissible content of harmful substances in the wastewater of a water consumer discharged into the wastewater disposal system".
In accordance with Part 1 of Article 84, the maintenance of surface and groundwater in a condition that meets environmental and sanitary-epidemiological requirements is ensured by compliance with the standards of maximum permissible harmful effects on water bodies established by the authorized body in coordination with the authorized state body in the field of environmental protection, the authorized body for the study of subsoil, the authorized body in the field of sanitary-epidemiological welfare of the population and the authorized body in the field of civil protection.
The standards of maximum permissible harmful effects on water bodies are established based on:
1) the maximum permissible value of anthropogenic load, the long-term impact of which will not lead to a change in the ecological system of a water body;
2) the maximum permissible mass and concentration of harmful substances that can enter a water body and its catchment area.
The procedure for the development and approval of standards for maximum permissible harmful effects on water bodies is established by the authorized body.
Paragraph 4 of the "Rules for the development and approval of standards for maximum permissible harmful effects on water bodies", approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated May 15, 2015 No. 19-1/441, states that standards for maximum permissible harmful effects on water bodies are established based on:
1) the maximum permissible value of anthropogenic load, the long-term impact of which will not lead to a change in the ecological system of the water body;
2) the maximum permissible mass and concentration of harmful substances that can enter a water body and its catchment area.
Taking into account the specified requirements, the standards of the maximum permissible concentration on water bodies in the course of economic activity are defined as:
1) maximum allowable withdrawal of a water resource is a value expressed by the maximum allowable volume of discharge from a water body per unit of time under anthropogenic influence without damage to the ecosystem;
2) the maximum permissible intake of chemicals into a water body is the value expressed by the maximum permissible mass and concentration of harmful chemicals entering a water body per unit of time.
According to paragraph 33) of Article 1 of the Water Code of the Republic of Kazakhstan, "harmful effects of waters" are understood to mean "flooding, flooding, flooding and other negative effects of waters that cause the onset or threat of natural and man-made emergencies."
88 of the Water Code of the Republic of Kazakhstan states that it is prohibited to put into operation:
1) new and reconstructed facilities that are not equipped with structures and devices that prevent harmful effects, pollution and clogging of water, as well as not equipped with metering devices for water consumption and wastewater discharge;
2) water intake and discharge facilities without fish protection devices;
3) livestock farms and other industrial complexes that do not have sewage treatment plants and sanitary protection zones;
4) irrigation, irrigation and drainage systems, reservoirs, dams, canals and other hydraulic structures before carrying out the measures provided for by the projects to prevent flooding, flooding, waterlogging and salinization of land and soil erosion;
5) water intake facilities related to the use of groundwater, without equipping them with water-regulating devices, measuring devices;
6) water intake and other hydraulic structures without establishing sanitary protection zones and monitoring points for indicators of the condition of water bodies and water management facilities;
7) structures and devices for the transportation and storage of petroleum, chemical and other products without equipping them with means to prevent water pollution.
It is not allowed to put wastewater irrigation facilities into operation without setting up monitoring points for the condition of water bodies. It is not allowed to commission water management facilities without completing land reclamation work, and reservoirs without taking measures to prepare their beds for flooding.
Decisions to prohibit the commissioning of enterprises and other structures affecting the condition of water bodies are made in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
In accordance with Article 113 of the Water Code of the Republic of Kazakhstan, the discharge or other entry into water bodies of objects or pollutants that worsen the quality condition and complicate the use of water bodies is recognized as pollution of water bodies.
Water bodies are protected from all types of pollution, including diffuse pollution (pollution through the earth's surface and air).
In order to protect water bodies from pollution, it is prohibited:
1) the use of pesticides and fertilizers in the catchment area of water bodies. Disinfection, disinfection and deratization measures in the catchment area and the zone of sanitary protection of water bodies are carried out in coordination with the authorized body in the field of sanitary and epidemiological welfare of the population.;
2) discharge and burial of radioactive and toxic substances into water bodies;
3) discharge of wastewater from industrial and food facilities into water bodies that do not have treatment facilities and do not provide effective treatment in accordance with standards;
4) carrying out blasting operations on water bodies, which use nuclear and other types of technologies, accompanied by the release of radioactive and toxic substances;
5) the use of machinery and technologies on water bodies and water management facilities that pose a threat to public health and the environment.
According to Article 125 of the Water Code of the Republic of Kazakhstan, it is prohibited to:
1) economic and other activities that worsen the qualitative and hydrological condition (pollution, clogging, depletion) of water bodies;
2) construction and operation of buildings and structures, with the exception of water management and water intake structures and their communications, bridges, bridge structures, berths, ports, piers and other transport infrastructure facilities related to the activities of water transport, facilities for the use of renewable energy sources (hydrodynamic energy of water), as well as recreational areas on a water body;
3) provision of land plots for gardening and cottage construction;
4) operation of existing facilities that are not provided with facilities and devices that prevent contamination of water-producing facilities and their water protection zones and strips;
5) carrying out works that violate the soil and grass cover (including plowing land, grazing livestock, mining), with the exception of land cultivation for tilling individual plots, sowing and planting forests;
6) construction of tent cities, permanent parking lots for vehicles, summer camps for livestock;
7) the use of all types of fertilizers.
It is prohibited within water protection zones.:
1) commissioning of new and reconstructed facilities that are not equipped with structures and devices that prevent pollution and clogging of water bodies and their water protection zones and strips;
2) reconstruction of buildings, structures, communications and other facilities, as well as construction, dredging and blasting, mining, laying cables, pipelines and other communications, drilling, land and other works without projects agreed in accordance with the established procedure with local executive bodies, an authorized body, an authorized state body in in the field of environmental protection, the central authorized body for land management, authorized bodies in the field of energy supply and sanitary and epidemiological welfare of the population and other interested bodies;
3) placement and construction of warehouses for the storage of fertilizers, pesticides, pesticides and petroleum products, maintenance points, washing of vehicles and agricultural machinery, mechanical workshops, construction of landfills for household and industrial waste, sites for refueling equipment with pesticides and pesticides, runways for carrying out aviation chemical works, as well as the placement of other objects that negatively affect water quality;
4) the location of livestock farms and complexes, wastewater storage facilities, sewage irrigation fields, cemeteries, animal burial grounds (biothermal pits), as well as other facilities that pose a risk of microbial contamination of surface and groundwater;
5) grazing of livestock with excess load, bathing and sanitary treatment of livestock and other types of economic activities that worsen the regime of reservoirs;
6) application of the method of aerial treatment with pesticides and aerial fertilization with mineral fertilizers of agricultural crops and forest plantations at a distance of less than two thousand meters from the water edge in a water source;
7) the use of pesticides for which no maximum permissible concentrations have been established, the application of fertilizers on snow cover, as well as the use of raw manure-containing wastewater and persistent organochlorine pesticides as fertilizers.
If it is necessary to carry out forced sanitation in the water protection zone, the use of low- and medium-toxic unstable pesticides is allowed.
Design, construction and placement of new facilities (buildings, structures, their complexes and communications) on water bodies and (or) water protection zones (except for water protection strips), as well as reconstruction (expansion, modernization, technical re-equipment, redevelopment) of existing facilities erected before the land plots occupied by them were classified as water protection zones and strips or other specially protected natural territories, are coordinated with the authorized body authorized by the state body in the field of environmental protection, the authorized body for the study of mineral resources, the central authorized body for land management, the authorized body in the field of sanitary and epidemiological welfare of the population, the authorized body in the field of veterinary medicine, local executive bodies of the region (cities of republican significance, the capital).
The approval procedure is determined by the rules for the organization of development and the passage of licensing procedures in the field of construction, approved in accordance with the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities.
The same activities on water bodies that pose a potential mudflow hazard are coordinated with the authorized body in the field of civil protection, and on navigable waterways - with the authorized body on water transport.
Projects for the construction of new or reconstruction (expansion, modernization, technical re-equipment, conversion) of existing facilities, the use of which may have a negative impact on the condition of water bodies, should provide for closed (drainless) technical water supply systems.
Conservation and liquidation (postutilization) of existing (under construction) facilities that may have a negative impact on the condition of water bodies are carried out in coordination with the authorized body, the authorized state body in the field of environmental protection, the authorized body in the field of sanitary and epidemiological welfare of the population, the authorized body for the study of subsurface resources and other state bodies in accordance with the procedure established by the laws of the Republic of Kazakhstan.
Projects for the construction of transport or engineering communications through the territory of water bodies should provide for measures to ensure the passage of flood waters, the mode of operation of water bodies, the prevention of pollution, clogging and depletion of waters, and the prevention of their harmful effects.
These projects are subject to coordination with the authorized body, the authorized state body in the field of environmental protection, the authorized body for the study of mineral resources, the authorized body in the field of sanitary and epidemiological welfare of the population, the authorized body in the field of energy supply.
In water protection zones and strips, construction (reconstruction, major repairs) of enterprises, buildings, structures and communications is prohibited without the availability of projects agreed in accordance with the procedure established by the legislation of the Republic of Kazakhstan and which have received a positive conclusion from a comprehensive non-departmental expert examination of construction projects (feasibility studies, design estimates), including the conclusions of industry expertise.
114 of the Water Code of the Republic of Kazakhstan states that contamination of water bodies is recognized as the ingress of solid, industrial, household and other waste, as well as suspended particles, resulting in deterioration of the hydrological condition of the water body and impeded water use.
Dumping into water bodies and burial of solid, industrial, household and other waste in them is prohibited. It is not allowed to clog the catchment areas of water bodies, ice cover of water bodies, glaciers with solid, industrial, household and other waste, the flushing of which will lead to a deterioration in the quality of surface and underground water bodies.
It should be borne in mind that the qualification condition under Article 384 of the Administrative Code is that these actions do not contain signs of a criminally punishable act.
The subjective side of the commented offense is characterized by the fact that the act can be committed both in the form of gross intent and negligence.
The general subject of the offense is individuals, officials, small business entities, medium-sized businesses, and large businesses.
In accordance with Article 709 of the Administrative Code, cases of administrative offenses are considered and administrative penalties are imposed under Article 384 of the Administrative Code by the authorized body in the field of forestry, fishing and hunting.
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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