D. Permitting Licenses for the use of Natural Resources and the Control and Monitoring

D. Permitting Licenses for the use of Natural Resources and the Control and Monitoring

Russia:

The purpose of licences or permits to use natural resources is to ensure the rational use of them. It has to be regulated by law what activities need a permission. This is regulated either by the Law on the Protection of Nature or by framework laws. No license is needed for general use of water, but enterprises always need a licence for using water in enterprise activity. According to the Law on the Protection of Nature the requirements of the contents of the licence are regulated by law. However, there still are not such regulations on the level of laws, but the licence requirements are regulated by a Decree of the Government  (On Licensing Activity of 24 December 1994, On the Procedure for Permitting Licences on the Use of Below Ground Resources from 15 June 1992, On the Procedure for Permitting Licences for Industrial Fishery 26 September 1995, for Sporting and Non-professional Fishing of Valuable Fishes, Hunting Water Animals and Collecting Plants 26 September 1995, On Collecting and Using the Ingredients of Rare Medical Plants 8 December 1996, On the Exchange of Rare Wild Animals included in the Red Book of the Russian Federation 19 February1996, On Different Areas of the Environment 26 February 1996, on Activity Connected with Transmitting Human Infection Diseases 3 April 1996).

A licence for use is given by a federal ministry and its regional organs. The procedure starts with an application. The terms of the licenses for using natural resources are decided on  federal ministerial level (the Ministry of Natural Resources and the Protection of the Environment). Along with the licence the user also concludes a contract with the subject of the federation on the use of the resource. The terms of the use and payment rules are included in the contract.  For water and forest use 40 % of the income goes to the federation and 60 % to the subject.

Usually the application has to be decided within 30 days, but the period for considering can be prolonged till 90 days. Often the decision requires an inspection on the spot. A refusal to award a permission needs to be reasoned. A refusal can be submitted to a court of arbitration for appeal. Municipalities, citizens and organizations can appeal to a court for permitting a licence for an enterprise, but only if legal rules have been broken in the procedure.

All the licences are registered in the ministry or other authority which has permitted it. The permission is valid only after the registration. For using below ground resources the permission is given for 20 – 25 years, for using water objects 3 – 25 years. It is also possible to found a private servitude on a water object (bridge, quay). General use of water (not enterprise use) can be registered in the water cadastre according to a decision of local authorities.

Water use for municipal purposes (drinking water, waste water) is handled with a petition of the municipal authorities according to the water legislation. Local authorities also specify the sites for recreation, tourism and sports as well as for sports fishery with the consent of the territorial organs of the federal organs. The municipal level also has important functions in water policy:

- They administer the small areas belonging to municipal property,

- they prepare the local programs which have to be co-ordinated with the regional and the federal programs,

- they also set rational terms for rational water use and protection from pollution,

- they are responsible for information to the local citizens,

- they also keep the records of water management monitoring and evaluation.

For using forests there are several forms of use: rent, use without payment, permission to use, logging ticket, order or wood ticket. In the new Land Code buying land for housing, industrial, agricultural and recreation purposes is permitted. Leasing land is, however, the ordinary form for using land in practice. For using land for industrial or agricultural purposes there is rent which can be 99 years or a shorter period.

For industrial activity permissions for polluting discharges to the air are given for three years or a shorter period. Getting a permission requires an inspection on the chemicals emitted to the air and ecological auditing of the company.

Strict quality standards, ecological standards and regulation of damaging activity are typical in Russia. Both ISO standards as well as Comecon- and Gost-standards are used. The latter are own standards which sometimes can be even stricter than European quality standards. There is one law level regulation on this branch - The Federal Law on Standardization from 10 July 1993. The rules on limiting the use of water in connection with giving permissions is regulated by a government decree from 3 April 1997. High standards are strengthened with strict control and high penalty fees for breaking the standards or terms of licences.  Inspection and control is taken care on municipal level, regional level and federal level. All these levels can order fines for deviations from their standards. In practice the requirements of different authorities can be contradicting (Kotova 2001).

There has, however, been a tendency to coordinate and simplify environmental administration. Joining several ministries and state committees under one ministry of natural resources and environment is one attempt to rationalize the complicated environmental administration (by a presidential decree from 2001). In the Ministry of Natural Resources there are different departments for different natural resources and a department for the protection of nature. The regional organs of the ministry are divided in an identical manner. The inspections of the federal ministry can be regular (planned) or irregular. Regular inspections (twice a year) are done also in cooperation with the Sanitary-Epidemological Control (a federal organ), with the State Committee of Fishery or the State Land Control. Regional and municipal authorities participate in the control for implementing the terms of licences.

Irregular inspection is started on the initiative of either the Ministry or other federal organ, the Procuracy, a complaint of a citizen or NGO, regional organs or municipal organs.

Inspection of enterprises and other entities was earlier regulated only by internal orders. Now there is a Federal Law on Ecological Inspection from 23 November 1995 which sets the general principles for inspection: the legality requirement, independence requirement etc. More detailed instructions are regulated in several instructions of the ministry and the procedure itself with a decree of the government (from 11 June 1996). A protocol is written on the inspection describing the offence, the damage and its reparations. The inspection authority also sets the fines, which the ministry confirmed already in the terms of the licence. The inspection and the fine can be appealed to a court. There is a new draft on the Code for Administrative Offences which would set framework sums for fines on the legislative level.

Ukraine:

In Ukraine the Water Code defines general use and special use of water. General use does not need a permit and is mostly for recreation: swimming, boating, fishing, watering animals, drawing water without technical equipment and without blocking water from others. Local authorities can define sites where general use of water for some reason is prohibited and has to inform people clearly about it.

Special use of water (with the help of technical equipment) is allowed with a permit. The Cabinet of Ministers has given a Decision on the Procedure on Giving Permits for Special Water Use (13 of March 2002). For waters which are of general state importance (90%) the licence is given by republican committees on ecological and natural resources on the regions. For waters of local importance regional authorities (the Parliament of Crimea, the Council of Kiev, or the corresponding elected decision-making organ of the region) give the permission. Application for a licence has to be submitted to state water management organs on questions of surface water use, to the state organs of geology on ground water issues, to the state organs of health on waste water issues.

There are special instructions on agreeing and permitting special water use. The permits are given either for short term (3 years) or longer terms (3-25 years). The limits of use have to be set. For waste water there are special instructions. The discharge limits are defined by the Ministry of Ecological Security.

There are special water protection areas which have been defined with special projects. Local authorities are responsible for informing on the boundaries of such areas. Unfortunately this process has not been completed in Ukraine and  the projects for protected areas are not implemented.

Like in Russia the limits for using drinking water for industrial purposes are set by municipal authorities.

Giving a permit requires a complex search from the point of view of nature protection, health protection, water management and complex expertise. Building permits are taken care by state authorities. Permits for mining are given either for a short term (5 years) or a long term (up to 20 years) by the state organs of geology and using below ground resources. The permits have to be agreed by the Ministry of Ecological Resources and there has to be a preliminary agreement with the corresponding local council for using land for such purposes.

The Cabinet of Ministers has issued a list of polluting ingredients (11 September 1996 No 1160). The waste is examined and the controlling authority makes the decision.

The permissions are registered in the (regional) authorities which have given them. Sanitary and health  authorities are given copies. The procedure for giving permits and their registration is regulated by a decree of the Cabinet of Ministers from 2002.

The user of water has a responsibility to control the amounts of use and discharge of waste water. Water quality is examined regularly on special controlling sites which have been defined in  the instructions on controlling and permitting waste. Deviations from the limits and standards of licences can have administrative, civil and criminal effects. The fines which inspecting authorities can set, are regulated in the Code of Administrative Offences.

Byelorussia:

Like in Russia and Ukraine general use of water (without special technical equipment) is free and municipal authorities can define sites where general use is forbidden or restricted and are liable to inform about it. The Ministry of Natural Resources and Nature Protection has issued on Order on the Rules for Fishery for Recreation (29 May1998, No 158).

Permits have to be applied for special use of water. The application is sent to the Ministry of Natural resources. A rent agreement is also connected with the water use issue.

Usually there is only one permit for all water use. The procedure for giving the permit is regulated by the Council of Ministers (7 May 1999 No 669). Before giving the permission, several state organs have to agree with the issuing of it. In every case the state sanitary inspection has to give its evaluation and statement. When fishery is concerned the fish protection authorities are involved. Veterinary authorities may have to be consulted when the permission concerns animal husbandry. When hydroelectric power is concerned the state inspection for dangerous activities in industry and atomic energy have to be involved. There is also a special state administration unit for the problems caused by the Chernobyl Accident. It has to be consulted when the permission concerns water use in areas which were radioactively polluted and evacuated because of the accident. For ground water use there is a special organ called Belgeologia which has to be consulted.

For waste water discharge there are special norms: The Rules for Protecting Surface Water stemming from the Soviet period 1991, as well as Sanitary Rules for Protecting Surface Water from Pollution from 1988. The Ministry of Natural Resources and Nature Protection is planning to replace these rules with one new set of rules for protecting surface water.

According to the Water Code water use can only be temporary either for a short term (up till 5 years) or a longer term (5- 25 years).

The control for protection of nature is divided into state control, administrative sector control, productional control and general control. The state control ranges from controlling natural resources owned by the state to ecological protection of the environment. State control is taken care by the President, the Parliament, the Deputies of the Parliament and the organs of the Ministry. Controlling of environmental legislation is due to the Procuracy. Administrative sector control means that each ministry or other authority is responsible also for environmental control within its own branch. Productional control refers to the own control of the enterprises and other units of economic activity. The general control refers to control of societal organizations and working collectives.

The division of sectors of control reflects the control of the previous soviet type society. Enterprises are still mostly not privatised yet and function as parts of state administration. Procuracy is a legality control organ stemming from the Russian imperial period before the October Revolution. Procurator's office can intervene when legislation or other legal norms are not implemented. Except legality control, the procurator's office also includes the system of prosecution. This control system is familiar to the citizens. During socialism the members of parliament were chosen to represent certain interest groups of the  population (e.g. miners, factory workers, teachers etc..). They used to keep contact with their interest group and take their petitions and try to solve problems in the state bureaucracy based on  initiatives of the citizens. It seems that these forms of control still exist and function. On the other hand the control forms of a market economy, especially non-governmental civil society organizations have had difficulties to get accepted as  democratic channels for criticism towards state policy and state authorities. Especially Byelorussia seems to be still mostly relying on governmental and governmentally controlled systems of control and monitoring. In spite of official recognition and support, the idea of civil society control still causes confusion among politicians and state authorities.

Systematic control for following the implementation of the terms of licences is arranged under the Ministry of Natural Resources and Nature Protection and according to a decree of the Soviet of Ministers of Byelorussia from 1. April 1998 No 522. Copies of the licence are submitted to regional committees of local inspection authorities for control purposes. Issuing or cancellation of a permit can be submitted to a court. All the permits have to be registered (Order of the Ministry from 3 May 1999 No 114) to the National Register of Juridical Acts in Byelorussia (1999, No 42). The payment for registration is 15 minimum wages from a legal person and 2 minimum wages from a physical person.

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