Commentary to article 358. Violation of water protection rules The Code of the Republic of Kazakhstan on Administrative Offences
1. Commissioning of enterprises, utilities and other facilities without structures and devices that prevent pollution and clogging of waters or their harmful effects, –
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.
2. 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, –
entails a fine for individuals in the amount of ten, for officials, for small businesses or non–profit organizations – in the amount of seventeen, for medium–sized businesses - in the amount of fifty, for large businesses - in the amount of seventy monthly calculation indices.
Part 1. The object of the offense being commented on is the established procedure for commissioning enterprises, utilities and other facilities with structures and devices that prevent pollution and clogging of waters or their harmful effects.
In accordance with Article 88 of the Water Code of the Republic of Kazakhstan dated July 9, 2003 No. 481, commissioning is prohibited.:
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.
The objective side of the offense is expressed in actions to put into operation enterprises, utilities and other facilities without structures and devices that prevent pollution and clogging of waters or their harmful effects.
The Law of the Republic of Kazakhstan dated March 1, 2011 No. 413-IV "On State Property" stipulates that "a state-owned enterprise with the right of economic management" is "a commercial organization endowed by the state with property with the right of economic management and liable for its obligations with all property belonging to it" (paragraphs 37) of art. A "state-owned enterprise" is a "commercial organization endowed by the state with property on the right of operational management" (clause 10 of Article 1).
The subjective side of the offense is characterized by the fact that the offense can be committed either intentionally or negligently.
The subject of a special offense is an individual, an official, a small business entity or a non-profit organization, a medium-sized business entity, or a large business entity.
Part 2. The object of the offense being commented on is the procedure for carrying out hydraulic engineering, technological, forestry, sanitary and other measures to protect waters from pollution, clogging and depletion, as well as improving the condition of the water regime.
112 of the Water Code stipulates that water bodies are subject to protection from:
1) natural and man-made pollution by harmful dangerous chemical and toxic substances and their compounds, thermal, bacterial, radiation and other pollution;
2) clogging with solid, insoluble objects, industrial, household and other waste;
3) exhaustion.
Water bodies are subject to protection in order to prevent:
1) violations of the ecological stability of natural systems;
2) causing harm to the life and health of the population;
3) reduction of fish resources and other aquatic animals;
4) deterioration of water supply conditions;
5) reducing the ability of water bodies for natural reproduction and purification;
6) deterioration of the hydrological and hydrogeological regime of water bodies;
7) other adverse events that adversely affect the physical, chemical and biological properties of water bodies.
Protection of water bodies is carried out by:
1) the presentation of general requirements for the protection of water bodies to all water users engaged in any type of use of them;
2) the presentation of special requirements for certain types of economic activity;
3) improvement and application of water protection measures with the introduction of new equipment and environmentally and epidemiologically safe technologies;
4) establishment of water protection zones, protective strips of water bodies, zones of sanitary protection of drinking water supply sources;
5) conducting state and other forms of control over the use and protection of water bodies;
6) the application of liability measures for non-compliance with requirements for the protection of water bodies.
The central and local executive bodies of regions (cities of republican significance, the capital), in accordance with the legislation of the Republic of Kazakhstan, take measures consistent with the principle of sustainable development to conserve water bodies, prevent their pollution, clogging and depletion, as well as to eliminate the consequences of these phenomena.
Individuals and legal entities whose activities affect the condition of water bodies are required to comply with the environmental requirements established by the environmental legislation of the Republic of Kazakhstan and to carry out organizational, technological, forestry, agrotechnical, hydrotechnical, sanitary-epidemiological and other measures to protect water bodies from pollution, clogging and depletion.
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.
114 of the Water Code of the Republic of Kazakhstan recognizes the ingress of solid, industrial, household and other waste into them, as well as suspended particles, as a result of which the hydrological condition of the water body worsens and water use becomes difficult. 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.
In accordance with Article 115 of the Water Code of the Republic of Kazakhstan, depletion of water bodies is recognized as a decrease in the minimum allowable level of runoff, surface water reserves or a reduction in groundwater reserves.
In order to prevent depletion of water bodies, individuals and legal entities using water bodies are required to:
1) to prevent excess and irrevocable withdrawal of water from water bodies;
2) to prevent the plowing of land, the purchase and sanitary treatment of livestock, the construction of buildings and other types of economic activities leading to the depletion of water bodies on the territory of water protection zones and strips.;
3) to carry out water protection measures.
Water protection measures aimed at preventing water bodies from depletion, carried out by individuals and legal entities, are preliminarily coordinated with the authorized body, the authorized state body in the field of environmental protection and the authorized body for the study of the subsoil.
The objective side is characterized by inaction, which is expressed in the failure to carry out hydraulic engineering, technological, forestry, sanitary and other measures to protect waters from pollution, clogging and depletion, as well as improving the condition of the water regime.
The subjective side of the offense is manifested in direct intent or negligence.
The subject of a special offense is an individual, an official, a small business entity or a non–profit organization, a medium-sized business entity, or a large business entity.
In accordance with Part 1 of Article 697 of the Administrative Code, the authorized body in the field of environmental protection examines cases of administrative offenses provided for in Article 358 of the Administrative Code.
According to 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 358 of the Administrative Code.
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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