Introduction

The three countries that share the Dnipro River – the Republic of Belarus, the Russian Federation, and Ukraine – have been pursuing a consistent policy aimed at achieving the goals of the ECE (UN) Convention “On the protection and use of transboundary water bodies and international lakes” that was ratified March 17, 1992 [1] and to which all three are party. Over the past ten years, the three countries have significantly improved their mutual understanding in this sphere. During this period, a number of important intergovernmental agreements directed towards improving the efficiency of environmental management, including the condition of transboundary water bodies, were signed.

In the 1994–7 period, the governments of the three states concluded bilateral agreements on cooperation in the sphere of environmental protection. In the period from 1992 to 2002, they concluded three bilateral agreements on the joint use and protection of transboundary waters. In accordance with these agreements, the three states are taking appropriate measures for developing and implementing additional relevant intergovernmental documents aimed at improving the environmental condition of transboundary water bodies.

The latest document of this type is the “Statement of the environmental protection ministers of the three Dnipro River countries regarding cooperation in environmental enhancement of the Dnipro River basin,” signed May 22, 2003 in Kyiv at the Fifth Pan-European Conference of Environmental Protection Ministers of ECE (UN). That statement demonstrated a common political will to effect a balanced use of the basin’s natural resources, the conservation and sustainable functioning of its ecosystems, and the prevention, limitation and reduction of the transboundary effect.

The three ministers declared their conviction regarding the need to develop new environmental strategies and intergovernmental and national policy guidelines that are based on interdisciplinary approaches to the ecosystem and on the principles of sustainable balanced development of the basin and its management. Moreover, the ministers demonstrated their willingness to develop the basin’s transboundary monitoring system and its information system for environmental management, and a willingness to develop and support the basin’s system for exchanging intergovernmental information and data on the environment.

The Trilateral Convention should form the basic mechanism of the three Dnipro River countries for coordinating their effective international cooperation in the protection and use of the Dnipro River basin. The draft convention, which has already been developed, establishes general principles, goals, and the tasks and commitments of the parties to the environmental enhancement of the Dnipro River basin. Provision has also been made for organizing a body to govern the convention, conferences, an international council of the Dnipro River basin, an international commission comprised of working groups of experts, and the regional centres in Moscow, Minsk, Kyiv, and Kharkiv.

One of the important tasks for promoting the successful achievement of the goals of the ECE (UN) Convention “On the protection and use of transboundary water bodies and international lakes” of March 17, 1992 is the harmonization of the three countries’ national environmental legislation with the environmental legislation of the European Union. The latter is particularly significant for two reasons.

First of all, the Dnipro River has a significant impact on the near-shore water and ecosystems of the western section of the Black Sea adjoining two countries – Rumania and Bulgaria – that will soon become EU member. It is therefore necessary to ensure compliance with EU environmental requirements.

Secondly, one of the Dnipro River countries, namely Ukraine, has declared its desire to become an associated member of the EU in the future, and this will require the adaptation of its legislation to that  of the EU. In their turn, Belarus and Russia have also expressed an interest in bringing their related national legislation into line with EU legislation for reform purposes.

Within the framework of this project, the experts have analyzed real opportunities for developing harmonized environmental legislation and related acts, and every possible prospect for their implementation.

This task was jointly executed by the national working groups of Belarus (coordinator, Sergei Balashenko), Russia (Victor Melikhov), and Ukraine (Volodymyr Lozansky).

According to the Terms of Reference, project activities were subdivided into seven stages, namely:

- Development of a methodology for comparing and characterizing the structure of the EU water code, compiling a list of EU laws for analysis, determining a structure for national reports and the consolidated report, and for preparation of the model

- Negotiations concerning prepared materials and a project implementation schedule during the working meeting of participants

- Collection of data and preparation of draft national reports

- Analysis of materials obtained, and the preparation of comments and first version of the consolidated report

- Revision of national expert reports

- Preparation of consolidated report

- Revision of consolidated report and consideration of comments by Project Implementation Unit

The consolidated report presents the results of the activities of the three working groups  as of September 20, 2003. The interim results were discussed and approved at working group sessions in Kyiv on May 22, 2003, and in Moscow on August 25-26, 2003.

References

1. ECE (UN) Convention “On the protection and use of transboundary water bodies and inter-national lakes.” March 17, 1992.

Annotation

The final consolidated report contains the following:

A summary of the three final national reports of Belarus, Russia and Ukraine that were delivered as part of the project “Harmonization of environmental legislation of Dnipro River countries with EU legislation”

A statement of the goals and project tasks, an explanation of the methodology employed in the comparative analysis of the laws of Dnipro River countries and the EU, and a list of the international agreements and conventions that have been ratified by Belarus, Russia and Ukraine

Summarized results of the analysis of the tables of concordance for environmental legislation of the three countries and the EU

An initial estimate of the time required for developing harmonized national laws and the related financial expenditures

Proposals for the Strategic Action Programme for the Dnipro River basin

Glossary

adaptation of legislation (accepted Ukrainian terminology) – the modification of national legislation in order to approximate it to EU legislation.

approximation of legislation (accepted EU terminology) – the modification of national legislation to bring it into conformity with EU legislation.

emission – the direct or indirect release to the air, water or soil of a substance, vibration, heat, or noise, discharged by a point source or the diffused source of some facility.

emission limit – the concentration and mass of a substance over a specific period, which should not be exceeded when that substance is discharged by a facility.

environmental goals – quantitatively expressed indicators of the environmentally sound condition of components of the natural environment.

environmental management – planning, organizational, regulatory, monitoring, control and registration activities directed to achieving environmental goals within a uniform management system.

environmentally protected zone – a territory and/or defined area of water requiring special protection in order to preserve natural habitats and species that are directly dependent on that water.

harmonization of legislation – a bilateral (or multilateral) process involving the reciprocal approximation of legislative regulations.

implementation – creation of the conditions that ensure the application of new regulations that have been introduced to national legislation.

protective riverside area – that part of a water protective zone that it subject to more strict regulations governing economic activity, when compared to other parts of the water protective zone.

raion of river basin (also referred to as river basin raion) – a territory consisting of one or more neighboring river basins, together with the related underground and near-shore water, which is designated as a primary unit for the environmental management of river basins.

return water – water returning from an economic unit of water circulation to its natural elements in the form of waste, overflow, or drainage water.

transboundary water – water bodies that demarcate or cross national boundaries.

transposition – the transfer of EU legislative regulations to national legislation.

water body – an element of the natural environment containing water, representing a natural constituent of the hydrological water cycle (sea, river, natural reservoir, stream, lake, pond, water-bearing horizon).

water protective zone – an environmentally protected natural area adjoining a water body where economic activity is regulated to ensure favorable conditions for the water body, thereby preventing its pollution, clogging, and depletion.

water use – the direct use of water bodies to satisfy the needs of the general public, industrial sectors, and services industries.

water user – a natural person or legal entity exercising water use.

List of abbreviations

ECE (UN) – Economic Commission for Europe (UN)

EU – European Union

IRRB – the international raion of a river basin (international river basin raion)       

UN – United Nations Organization

RRB – the raion of a river basin (river basin raion)

SAP – Strategic Action Programme

ToR – Terms of Reference

1.  project Goals and tasks

According to the Terms of Reference, the project has two goals, namely:

Preparation of proposals for the Strategic Action Programme (SAP) for harmonizing the environmental legislation of Dnipro River countries with the harmonized environmental legislation of the EU, which are intended to ensure the implementation of international conventions, agreements and treaties, and for reforming relevant current legislation of Dnipro River states

Assessment of the potential and time required for the harmonization of national environmental legislation, an assessment of estimated financial expenditures related to the task, and of the economic and environmental effectiveness of its realization

In order to achieve the specified goals, it was necessary to do the following:

To develop methodology for the comparative analysis of the national environmental legislation of Dnipro River countries and relevant EU legislation

To conduct an analysis of current international conventions and agreements ratified by the Dnipro River countries; the conventions, agreements and treaties concluded by Dnipro River countries for establishing legal regulations governing the use and protection of natural objects; and the relevant requirements and priorities for harmonizing environmental legislation

To conduct an analysis of the structure and composition of EU legislation for protecting and regulating the use of water resources

To compile a sequentially ordered list for the development of laws on nature management and environmental protection in the section dealing with water resources (namely, the harmonization of these regulations with EU legislation)

To assess the potential and time required for preparing drafts of the harmonized laws, the estimated financial costs related to this task, and the environmental and economic effectiveness of its realization

In accordance with the Terms of Reference, the national reports shall also contain the following information:

list of laws and other regulations (resolutions, government decrees) related to nature management and environmental protection (water codes, forest regulation, regulations for mineral resources and environmental protection, including air and waste management) in the section dealing with water resources

Key terms and definitions related to water codes and environmental legislation (with respect to water bodies and water protective zones)

Key legal regulations for nature management and environmental protection, including:

- Legal regulations in the section dealing with ownership of water bodies and land    within the water protective zones of water bodies

- Legal regulations for the use and protection of water bodies and the soil of related water protective zones, including regulations governing types of licenses for

water use, and land tenure in water protective zones

- The system of state-managed public authorities responsible for managing the use and environmental protection of water bodies, as well as the environmental protection

and state control related thereto (both horizontal and vertical, i.e., at federal, territorial and local levels)

- Liability for violating nature management and environmental protection legislation, and other articles that facilitate the development of the main trends in the drafting

harmonized legislation

- Concrete proposals for the Strategic Action Programme, in the section dealing with harmonization of water protection laws

Materials related to these issues are presented in Appendices A, B and C.

It should be noted that while realizing the project, experts from the three countries discovered discrepancies in the various interpretations of “harmonization.” The Ukrainian expert, Volodymyr Lozansky, understood “harmonization” to be a bilateral (or multilateral) process that involves approximating the positions (opinions, requirements, regulations, etc.) of the parties. It is therefore possible to speak about the harmonization (i.e., mutual approximation) of the national legislation of two or more independent states. In the case of EU legislation and the national legislation of non-EU members, the notion of “harmonization” does not apply because EU legislation is the standard to which national legislation is to be approximated. In other words, this is a unilateral process of approximating national regulations to EU standards that are presently considered to be unalterable. Lately in Europe, this process has been called “approximation,” while in Ukraine it is called “adaptation.”

The terms “approximation” and “adaptation” were not used in the ToR (in the preparation of which Lozansky did not participate). The experts from Belarus and Russia believe it is possible to dispense with the use of such terms and to interpret harmonization as a unilateral, bilateral or multilateral process. In the discussions that  took place August 25-26, the experts failed to agree on this issue. All of the foregoing should therefore be taken into account when reading the consolidated report.

2.  Methodology of comparative analysis

There is no unified methodology for comparative analysis of national and EU environmental legislation. Every state in preparing for EU accession, or states wishing to approximate their legislation to EU legislation, develop their own methodology for executing this task, taking into account the experience of other countries.

The common element in this methodology, as recommended by the EU [2], is a table of concordance consisting of six columns. In practice, however, each state introduces its own modification to this form, which is not prohibited by the EU document. Moreover, states most often use a simplified form consisting of only two columns. The left column contains only the numbers of articles – and occasionally paragraphs – of the corresponding directive, and the right column contains the relevant legal reference to the currently proposed national legislation, as well as comments on those national laws that vary from EU legislation.

While consulting on the realization of this project, the experts agreed upon a form of table consisting of seven columns (provided below in Section 6), entries to which were made applying a methodology accepted by all three countries.

The first column specifies the number of the article (section) of the directive. The second column includes the requirements (content) of the article. In the third column, the experts specify the number of the information source from the relevant enclosed list, as well as the number of the article (section, appendix) of the corresponding national law or other legal act, and the page and other information necessary for locating that source. If there was no relevant current legislation, the word “No” was inserted. When it was expedient to do so, the national experts used computerized searches for key words in order to locate national legislation regulations that were related to EU standards. In column four “Concordance,” the experts used the four following symbols to indicate the degree to which national legislation roughly corresponded to each requirement of the EU directive:

—        a direct contradiction (e.g., substances authorized in the EU, but prohibited by national legislation)

0        no relevant legislation is available

-/+        national requirements do not correspond, or correspond only partly to EU requirements (e.g., drinking water standards are similar, but not identical)

+        complete concordance

The fifth column represents an expert’s approximate estimate of the state’s total anticipated costs resulting from transposition (transfer of legislative regulations), implementation (creation of conditions required for complete application of statutory requirements, including the development of appropriate infrastructure) and actual application (realization) of the law.

At this juncture one can only speak of approximate costs to state and local budgets and to private business for certain periods of time, namely, five-year intervals starting from the moment that the adaptation of national regulations to EU standards takes effect.

Direct economic estimates are most realistic when made by taking into account both the incremental costs of implementing the new requirements and the recovery of these costs from the improved environmental and economic efficiency of production, more efficient use of natural resources, and the beneficial effects on human health and the ecosystems. However, such economic estimates would require the development of an appropriate methodology and much time and financial resources, which was unfeasible within the framework of this project.

A more feasible approach would be to study an analogous situation, i.e., to analyze economic information from the Baltics and other Eastern European countries that are ahead of the three Dnipro River countries in terms of adapting (approximating) their environmental legislation and are now preparing for EU accession. However, this would require the collecting of economic information at the international level and its analysis and transformation with reference to conditions in the three Dnipro River countries. Given the above-mentioned time and financial constraints, it was also impossible to use this approach within the framework of this project.

The most realistic methodological approach in terms of realization, i.e., operations research, is also the least reliable. It would be advisable to determine which national working group is the most prepared and has the necessary experience for solving similar economic tasks, and to assign that group the task of developing a general methodology for expert economic evaluation within a short period of time. This could probably be done in the final stage of project realization. Even if the results are not available by the completion of the project, this should not affect further activities related to the adaptation of environmental legislation. Taking Ukraine as an example, it is imperative that a political decision be made – the desire for EU accession in the foreseeable future – in which case adaptation becomes mandatory. Economic constraints can only affect the duration of this process, but not its realization in principle.

Even if one disregards the issue of EU accession, the adaptation of national legislation to EU standards would obviously be useful because it could only improve, given the relatively high standards of EU environmental legislation when compared to national legislation of the Dnipro River states. The experts of all three countries therefore expressed their desire to cooperate in harmonizing their respective water codes, taking into account EU experience.

The sixth column provides the expected schedule for the complete implementation of the directive requirements. In this case, “schedule” does not mean the exact calendar date, but the time periods required for implementation, including development of the necessary legal base. The possibility, however, of tentative calendar dates cannot be excluded.

Seventh column “Notes” include all relevant information in addition to that provided in the other columns. In particular, if national experts consider it necessary, this column could be used for recording possible obstacles to introducing various provisions of the directive to national legislation.

The completed table should include initial information for further work related to adapting (approximating) national legislation. In all likelihood, this task could be realized most expediently by developing and adopting national laws appropriate for each directive, and by subsequently conforming current national legislation thereto. The procedure for this is established in each state and is applied after adopting each new law. The particulars of laws and regulations to which corresponding changes and amendments are to be introduced can be found in Table of Concordance column 3.

Given the time constraints and number of man-hours required for this project, it was considered appropriate to limit oneself to the initial stages of activities that should be carried out within the framework of adapting environmental legislation (with reference to the limited number of EU directives that are most relevant for the Dnipro River basin). In accordance with the above mentioned, the methodology accepted for realizing this assignment included the following stages:

1)      An analysis of the international conventions and agreements of the Dnipro River countries

An analysis of the structure and content of EU environmental legislation

Preparation of the list of EU laws that govern water management issues, and a determination of the order in which the acts of the Water Code of Ukraine are to be adapted to EU standards

Development of the appropriate forms for tables of concordance and their completion for the three top-priority EU directives

A comparative analysis of each table of concordance, and the preparation of conclusions and proposals

An estimate of the possible time required for developing harmonized national laws and the related financial expenses.

The development of proposals for the Strategic Action Programme (SAP)

Considering the specific character of this work and the high level of proficiency and  experience of the national experts, their evaluation was accepted as the basic method of investigation. The experts comprehensively analyzed the whole range of factors that impact upon an assessment of the results of the comparison and the formulation of related  conclusions. The experts were occasionally confronted with difficulties resulting from inconsistent criteria, which required special efforts at finding a compromise (e.g., between the requirement for maximum matching of the condition of the environmental component with its natural condition, and minimizing the costs of environmental protection). These difficulties were aggravated by the high level of uncertainty caused by the inadequacy of information upon which well-grounded decisions could be based.

The experts had to arrive at an objective judgement from a collection of individual expert opinions. Decisions were most often made by determining the mid-point of the various opinions, after a discussion in which the extremes were rejected.

The level at which environmental legislation was to be analyzed posed a considerable methodological problem.

Strictly speaking, “legislation” includes documents adopted by the legislature, i.e., international agreements, laws, and parliamentary regulations. However, according to historical tradition, a considerable portion of legislative regulation in the Former Soviet Union is in the form of presidential decrees, government resolutions,  and sometimes even laws and regulations of central executive bodies. As a state based on the rule of law develops, the legislative function of the executive will be transferred to the legislative branch. In other words, the practice whereby the executive independently passes normative and legal acts having the force of law will be gradually discontinued. Bills developed by the government should be considered and adopted only by the parliament, and the related provisions should have as direct force as possible.

There is good reason to believe that a more comprehensive construction of  “legislation” will be adopted in the states of the FSU over the coming years. During this period, the involvement of the executive branch in adopting legal regulations will gradually be reduced. For this reason, main government regulations and decrees could be perceived for some time as the lowest level at which the environmental legislation of the three Dnipro River countries might be analyzed. A conflict, however, could arise with the EU requirements.

It should be emphasized that, according to EU rules, the transposition of EU legal regulations is permitted only with respect to national laws having direct force. The transposition of EU legal regulations to by-laws (subordinate legislation) that have been passed by the executive branch is prohibited. There is some precedent in member states for the judicial appeal from violations of this statutory prohibition. That particular matter concerned  transposition of the regulations governing maximum permissible concentration of substances in drinking water from Directive 80/778/ЕЕС – not to the national law – but to subordinate legislation, i.e., administrative instructions. The court held that these acts were illegal and  required that they be introduced to the national law as regulations[2].

For this reason, the experts only considered statutory regulations (Appendix B) when completing the table of concordance for Ukraine. By-laws were not considered. After the transposition of all EU environmental regulations to Ukrainian law, all subordinate legislation should be revised and brought into accord with the latter. At the same time, the experts of Belarus and Russia have indicated not only references to statutory regulations in their respective tables of concordance (Appendices A and B), but to the regulations of by-laws as well. This practice should result in no negative consequences if the above-mentioned EU requirement is observed in the future.

Belarus expert Balashenko agrees with Ukrainian expert Lozansky, as was partially stated in several paragraphs above. According to Balashenko, it is quite normal for the president or executive branch to pass mandatory regulations if this responsibility is delegated by the parliament. It should be noted that such regulations are at times stricter than the corresponding EU regulations. For example, in 1999 the Ukrainian Cabinet of Ministers approved “Regulations for the protection of surface water from the pollution by return water.” These regulations contained articles that were more strict than those in Directive 91/271/ЕЕС of May 21, 1991 in the section addressing treatment of municipal waste water (Table 2.1 below).

Table 2.1 Requirements for the concentration of substances in return water discharged to water bodies from comprehensive (secondary) biological waste treatment facilities

Useful recommendations, which the national experts considered while solving methodological issues, are presented in the above-mentioned EU Commission working paper [2]. According to that paper, the initial step in the approximation process should be an analysis and comparison of current EU and national environmental legislation in order to determine the degree of conformity, and to decide upon the necessary changes and amendments to national legislation.

The preliminary assessment consists of two steps, namely:

Step 1. To determine the existence of national legislation covering the particular issue

Step 2.  If such national legislation exists, to determine which article of EU legislation should be compared with the national law regulations

National legislation can meet one of the following descriptions:

completely meets EU requirements, in which case the assessment verifies concordance;

partly meets EU requirements, in which case the assessment will consider the discrepancies and propose possible courses of action for their elimination; or

differs from EU legislation, in which case the assessment should consider various options for modifying the relevant national legislation. (For example, in deciding whether to adapt current laws, it is preferable to pass new laws.) This requires a consideration of every article of the relevant national laws.

Within the framework of this project, the national experts used tables of concordance for comparing and analyzing the content of the articles of EU directives and the relevant articles of national laws (form of tables provided in Section 6).

References

Commission staff working document, “Guide to the Approximation of European Union   Environmental Legislation,” July 1997, p. 137

3.    International conventions and agreements of Dnipro River countries

The Dnipro River countries have ratified most of the international environmental conventions and agreements currently in force.

A list of major international environmental conventions and agreements appears in Table 3.1. As indicated therein, Ukraine has ratified 22 of 23 documents, Russia has ratified 15, and Belarus, 14.

All of the ratified conventions and agreements have the force of national law. An analysis of these documents revealed that they all meet the current requirements of environmental legislation in the Dnipro River countries. There is therefore no need to introduce any changes to the national environmental legislation of these countries.

Table 3.1 Major international environmental conventions and agreements ratified by countries of the Dnipro River basin

Note:  “+” – signed and ratified      “+ -” – signed but not ratified      “— ” – not signed.

4.   Analysis of structure and content of EUropean union  environmental legislation

The EU has adopted more than 300 environmental laws, although not all of them are subject to transposition to the national legislation of states preparing for EU accession. The criterion for the degree of national legislation approximation to EU standards is determined by the formers degree of concordance to the specially approved list of EU legal regulations. The specific list for environmental legislation is called “The Environmental Acquis,” which is the system of legal regulations of transnational significance for unifying those regulations that affect the interests of all or some EU members and which should be adopted at the highest intergovernmental level. This list includes 86 directives, 21 regulations, and 12 decisions, totaling 119 documents.

The requirements of directives and decisions should be transposed to national legislation and implemented by countries of Central and Eastern Europe aspiring to EU accession. The regulatory documents contain legal regulations of direct force and do not require transposition to the national legislation of member states. Thus, parliamentary adoption of the law on accedence to these regulatory documents is one of the methods whereby EU regulations may be included in national legislation. In this way, the regulatory legislation, once accepted, becomes national law when that country accedes to the international convention or agreement. Thereafter, all current national laws and by-laws should be brought into accord with these regulations.

In the Russian and Ukrainian-language literature, the word “regulations” is most often translated as “resolutions” and sometimes “provisions,” although the recommended translation,  “regulations,” is semantically closer to the original meaning and does not create difficulties for translation into English. This is the term that is therefore used throughout the following text.

EU legal acts are subdivided into 9 groups:

General provisions (horizontal legislation) –  3 directives and 2 regulations, totalling 5 documents

Air quality – 12 directives

Waste management – 14 directives and 1 regulation, totalling 15 documents.

Water quality – 19 directives

Environmental protection – 3 directives and 6 regulations, totalling 9 documents.

Regulation of industrial pollution and risk management – 4 directives, 2 regulations and 12 decisions, totalling 18 documents.

Chemical substances and genetically modified organisms – 10 directives, 7 regulations, totalling 17 documents

Industrial noise – 14 directives

Nuclear safety and radiation protection – 7 directives and 3 regulations, totalling 10 documents

An analysis of the structure and content of the three Dnipro River countries’ environmental legislation showed that it differs substantially from EU environmental legislation. For example, in Ukrainian environmental legislation some of the sections contained in EU legislation are absent, in particular, waste management, control of industrial pollution and risk management, chemical substances and genetically modified organisms, and industrial noise. To all intents and purposes, the content of national laws does not correspond to the content of EU directives. The structure and content of the environmental legislation of the three Dnipro River countries therefore require approximation to EU standards.

It should be noted that serious differences were also observed in the structure and content of laws. An EU legal act is developed according to the following scheme:

Title

Powers

Recitals

Legal requirements

It is obligatory that the title includes the type of legislation to which the act belongs, i.e.,  a directive, set of regulations, mandatory decision, or recommendation.

“Powers” should provide the legal basis for the development of this law. This is important because of the possibility of establishing environmental requirements in national legislation that are stricter than those contained in EU legislation. This is prohibited, particularly where the consequences could affect trade relations between EU member states. As a rule, the legal basis (powers) for the development of a law are not indicated in the environmental laws of Dnipro River countries and appears only in by-laws in the form of a reference to relevant statutory requirements.

The next section of an EU legal act is “Recitals,” the declarative part of the document, which is also translated as “Statement.” This part provides a substantiation of the importance of this particular legal act. The form of the statement in the Recitals is rather specific, and there is nothing analogous in the legislation of Belarus, Russia, and Ukraine. This, however, is a very important part of the document because it enables a better understanding of its goals and tasks.

The last section of a legal act, “Legal Requirements,” is the main one. This section is subdivided into articles and occasionally parts. It also provides appendices with  technical and scientific information, tables of various values, plant and animal categories, etc. Environmental laws of the Dnipro River countries do not typically have appendices.

In approximating national legislation to current EU legislation, one could include all of the elements of EU legislation that are considered useful. This would also gradually improve the structure of national legislation. However, it is important to realize that the purpose of approximation is not to duplicate EU legislation. The structure and content of national and EU legislation may be different, but the specific regulatory requirements of EU legislation should be sufficiently incorporated into national legislation so that the two do not conflict. This is laborious work, but it should be accomplished while transposing EU legal regulations.

The fundamentals of EU water codes are determined by Framework Directive 2000/60/ЕС passed in 2000 by the European Parliament and Council. This directive establishes the foundation of the community’s activities in the area of water policy [3] and is based on a recognition of the following principles:

That water in natural units of the hydrological water cycle is not a commercial product, but the common heritage of all mankind, and one requiring protection and careful treatment.

The need for water protection in both quantitative and qualitative terms, given the inevitability of increasing demands for good quality water to satisfy human needs.

The need for preventive measures for averting environmental damage and probable occurrences of such damage in water bodies.

The realization of market economy principles like “the polluter pays.”

That environmental policy should be formulated with due regard to current scientific and technical information, environmental conditions in various regions, the anticipated costs of effecting nature conservation, and the effectiveness thereof, in order to ensure the balanced sustainable development of the EU and its regions.

The planning and implementation of measures intended for ensuring the protection and sustainable use of water within the river basin. Where possible, it is desirable that decisions be made closer to localities where the water body is exposed to impact. Environmental programmes must include  priorities that are developed with due regard to regional and local conditions.

The promotion of cooperation and consistency of activities at all levels, including the local level, with the involvement of water users, consumers, and the general public.

The continued integration of water policy into other policy areas, such as energy, transportation, tourism, agriculture, and fish farming.

The realization of measures aimed at the gradual reduction of hazardous substances discharged to water bodies with return water.

The prioritization of contaminants for the realization of measures aimed at eliminating their discharge into water bodies.

The setting of environmental goals for ensuring the sound environmental condition of surface and underground water and for preventing the deterioration thereof.

Joint consideration of quantitative and qualitative aspects related to both surface and underground water, taking into account natural conditions of the motion of the water flow within the hydrological cycle.

The need for coordinated environmental action with regards to transboundary river basins on the part of all countries related thereto. 

An analysis of the characteristics of the river basin and the environmental impact of human activity, as well as an economic analysis of water use; the systematic monitoring of changes observed in water conditions, and a comparison of the data thereof. This is important for developing environmental programmes with achievable goals.

The use of economic regulatory instruments, such as the recovery of costs for water services,  compensation for environmental damage,  and permit fees for the discharge of contaminants.

The inclusion in action programmes of measures for preventing pollution crises and for  reducing the impact thereof.

The application of a comprehensive approach to regulating discharges, and controlling the  pollution of water bodies by setting maximum permissible levels for discharges and environmental standards for water quality therein.

The dissemination of appropriate information regarding measures scheduled for the water management of the river basin, and the publication of reports on related results.

The new key requirement of EU legislation is that each country organize the management of  the water basin within its borders [4]. Within the framework of such management, each country’s economic and environmental restrictions might be taken into account in the best way by using this management for the gradual achievement of established goals. However, any further deterioration of the environmental condition of water bodies shall be prevented.

References

Directive 2000/60/ЕС, which establishes the basis for activity in the area of water policy.

O.G. Vasenko, V.P. Lozansky. “The system of management for water protection in the Dnipro River basin.” Kharkiv. Ukr NDIEP, 1999, p.123.

5.   approaches to reforming (harmonizing) national Water Codes of Dnipro River countries

In 2001, under an agreement with the Ministry of Ecology and Natural Resources, the Ukrainian Research Institute of Environmental Problems developed a draft program for harmonizing Ukrainian environmental legislation with that of the EU [5]. This first approximation may be recommended for all three Dnipro River countries.

An excerpt of this draft programme, which deals with EU environmental legislation (D. “Water Quality”), appears below in Table 5.1.

In addition to the documents included in this section, a very important document dealing with water codes – Directive 96/61/ЕС on integrated prevention of pollution and control – is included in Section F. “Control of Industrial Pollution and Risk Management.” The aim of this directive is to ensure the integrated minimization of emissions discharged by industrial enterprises into the atmosphere, water bodies and soil. In this case, an authorization for the discharge of return water should be an integral part of a single authorization that must be obtained for all kinds of environmental impact, and which should be oriented to the use of the best techniques available. This directive requires the introduction of the appropriate changes to the water codes of the Dnipro River countries, which explains why it was included in the list of documents to be considered along with the directives listed below in Table 5.1 D. “Water Quality.”

Given that the water codes of the three Dnipro River countries have a common basis that was established in the 1970s, and that this legislation has not undergone radical change, the draft programme for Ukraine should not differ significantly from the programmes for Belarus and Russia. To a certain extent, the Ukrainian project can therefore be regarded as the model for the other two countries.

Table 5.1 – Proposals to be included in the harmonization programme for national water codes of Dnipro River countries

D.        Water Quality

The reasoning behind the performance dates specified in the draft programme were based on the assumption that it would be implemented in 2001. This, however, has still not taken place. The dates provided in the above table have therefore been revised and extended for another two years, having taken into account the delayed approval of the programme and the fact that it will presumably be implemented in 2003. In fact, activities related to approximating the three top-priority directives were started this year. Within the framework of this project in June 2003, each article of the three directives was compared with current national legislation using the tables of concordance.

The order in which national acts are to be adapted to the EU directives was determined by expert opinion based on the relative importance and urgency of these documents for the Dnipro River countries and on estimates of the organizational work required.

For this purpose, six top-priority documents were selected from the 19 directives listed above and the attached Directive 96/61/ЕС on integrated prevention of pollution and control. The six documents selected for comparison with national legal documents are listed in Table 5.2.

Table 5.2  List of EU laws for comparative analysis

Note:  Six directives currently in force are not included in this list because they are subject to repeal as a result of the adoption of Directive 2000/60/ЕС. These include Directives 76/464/ЕЕС on discharge of hazardous substances, 75/440/ЕЕС on surface water used for drinking purposes, 79/869/ЕЕС on testing and sampling surface water intended for drinking purposes, 78/659/ЕЕС on water suitable for fish, 79/923/ЕЕС on water suitable for mollusks, and 80/68/ЕЕС on underground water. The regulatory requirements of these directives are incorporated in Directive 2000/60/ЕС.

The three levels of priority for adapting these documents, which are identified in the table above, were determined on the basis on expert opinion. In view of the project’s time and financial constraints, the experts of the three countries agreed to limit the number of top-priority documents selected for consideration to three, namely, Directives 2000/60/ЕС, 96/61/ЕС and 91/271/ЕЕС. The experts completed and analyzed the tables of concordance for these directives, and provided related conclusions and proposals that appear below in Section 6.

References

Research report, “Harmonization of Ukrainian legislation on the protection, use and recovery of natural resources with the legislation of the European Union.” Ukr NDIEP, 2001, Vol.1, p.51.

Directive 96/61/ЕС on integrated prevention and control of pollution.

Directive 91/271/ЕЕС on municipal sanitary water treatment.

6.  Results of tables of concordance ANALYSIS

The table of concordance for Ukraine, which is presented below in Table 6.1, was compiled according to the uniform model using Directive 2000/60/ЕС as an example. While completing the table, the experts of Belarus and Ukraine did not have any data on the expected costs of realizing the requirements of these directives. Column 5 “Costs” for these countries has therefore not yet been completed. It is quite possible, however, that the experts will complete this column at the next stage of activity.

The first page of the table is provided below as an illustration. The completed tables of concordance are presented in Appendices A, B, and C [8, 9, & 10].

Table 6.1 –Table of concordance for national legislation of Ukraine, according to Directive 2000/60/ЕС of European Parliament and Council of October 23, 2000, establishing guidelines for activities in water policy

Analysis of the tables of concordance (Appendices A, B, and C) developed for adaptation of the three EU directives resulted in the following conclusions:

None of the articles of the three directives that were considered varied from the environmental protection guidelines adopted in the Dnipro River countries.

All three directives contained provisions for promoting progressive improvement in the effectiveness of activities related to protecting water.

In developing and analyzing the tables of concordance for these three directives and national legislation, the experts found that the environmental legislation of the three Dnipro River countries contained no insurmountable obstacles to transposition.

Given its adoption of a strategy for EU accession in the foreseeable future, it has been expedient for Ukraine to adapt its national legislation to EU environmental legislation. A similar conclusion may be made with respect to Russia and Belarus, albeit with less certainty regarding the latter. It should be noted that this will require a greater environmental orientation in the water policies and relevant legislation of these countries, along with the termination of regulatory functions in water management, which are unusual for these countries and which fall into the private domain governed by civil law.

1. Adoption of the key provisions of Directive 2000/60/ЕС into national law could best rectify the lack of a statutorily approved environmental water policy in the Dnipro River countries. The main results to be expected are as follows: realization of the principles of basin management, and the full proceeds from special water use would be accumulated in the account of the river basin organization (RBO) and then allocated directly to stimulating river basin water protective activities (as in France). For example, in Ukraine over the past few years, not more than 15-20% of water use fees that accumulated in the state budget were allocated to water protective activities. A similar situation also exists in the other Dnipro River countries.

2. While the contemporary approach to the integrated prevention of pollution incorporated in Directive 96/61/ЕС and widely applied in EU member states is also recognized in the Dnipro River countries, the latter have yet to implement it. Should this approach be adopted in the environmental legislation of the three countries, it will further advance that legislation and create a mechanism where, instead of the three authorizations that are currently required, a single authorization would be issued for all kinds of natural resources use, ensuring the application of the best techniques available.

Even though sewage is one of the main pollutants of natural water bodies, Belarus, Russia and Ukraine lack environmental legislation dealing with municipal water treatment, a situation which would be rectified by the adoption of national laws adapted to Directive ЕС 91/271/ЕЕС. The experts, however, do not exclude the possibility of another approach if the introduction of changes and amendments to current legislation are enacted without the adoption of a separate law.

The proposals are as follows:

Activities should be organized with the aim of adapting national legislation of the Dnipro River countries to the top-priority EU directives mentioned above.

The appropriate programme should be passed at the national level in order to transpose all 119 directives, including 11 directives on water quality, to national environmental legislation.

The activities conducted within the framework of this project should be submitted for the consideration of the National Board for Issues of Adaptation of Ukrainian Legislation to EU Legislation, as it could be useful for the Board’s further activities. It would obviously be appropriate to submit project results to the relevant government bodies of the other two states.

References

National report of the Republic of Belarus on the project “Harmonization of environmental legislation of the Dnipro River countries with the EU legislation.” Minsk, August 2003.

National report of the Russian Federation on the project “Harmonization of environmental legislation of the Dnipro River countries with EU legislation.” Moscow, August 2003.

National report of Ukraine on the project “Harmonization of environmental legislation of the Dnipro River countries with EU legislation.” Kyiv & Kharkiv, July 2003.

7. Estimate of time required to develop harmonized laws AND related costs

It is possible to speak with reasonable certainty about the schedule and financial costs associated with realizing the first stage of the adaptation (approximation) of EU directive regulations to national legislation. This stage, known as transposition, can be realized in two ways. The first, which is the shortest and the most effective in terms of rapid reform, can be called the “revolutionary” way. The second is the “evolutionary” way, for which more time is required for transposition and which could pose problems for further implementation and application of legislative regulations.

The revolutionary approach follows the one applied in the EU. A framework directive is passed that establishes the basic requirements and the foundation for the subsequent “subsidiary” directives. These requirements are then incorporated into national legislation. In a similar way, each country of the Dnipro River basin could pass a law closely approximating the relevant EU directive, i.e., its national counterpart, adapted to current national conditions and constraints. Adoption of such a law would automatically revoke all the related legal regulations currently in force with which it conflicts. This law would also establish a schedule for introducing the necessary changes and amendments to laws currently in force, as is accepted in the customary practice for amending legislation. This mechanism is well developed in each state and works effectively. Regulations of national legislation that are not at variance with the provisions of the directive would remain unchanged. In any case, the possibility of duplicating requirements in various national laws should raise no cause for concern because of the absence of adverse consequences, as evidenced by the several cases of duplication in laws currently in force.

The evolutionary approach to adapting national legislation differs from the revolutionary by not requiring the adoption of a directive’s national counterpart. In this case, however, all of the directive’s regulations without exception should be incorporated into current laws, which could render them overly cumbersome. The size of the Water Code, for example, could increase several times, thereby making it difficult to apply. At the same time, if there is a lack of will to realize adaptation in a short period of time, it could be extended over several years and divided into stages. Thus, everything depends upon legislative strategy.

It is therefore possible to speak of the minimum term required for accomplishing every activity associated with transposing each directive if the revolutionary approach to adaptation is taken. That schedule is presented in Table 5.1 (section 5).

According to expert opinion, the minimum time required for accomplishing the work related to the three top-priority directives is as follows:

Comparing each directive article with the relevant regulations of national legislation, using the tables of concordance (conducted within the project framework) – from 6 to 8 months

Development of a draft national law identical to the EU directive – from 12 to 18 months

In other words, provided there is appropriate financing, the first version of the three top-priority draft national laws corresponding to the above-mentioned directives could be developed in 2004, and the final version in 2005. Considering the necessary labor inputs, the estimated costs for Ukrainian experts to accomplish this work are tentatively as follows:

Directive 2000/60/ЕС, which establishes guidelines for activities in the area of water policy – EUR 150–180 thousand

Directive 96/61/ЕС on integrated prevention of pollution and control – EUR 100–120 thousand

Directive 91/271/ЕЕС on municipal sanitary water treatment – EUR 100–120 thousand

According to Ukrainian expert opinion, total costs could total EUR 350–420 thousand.  According to the Russian expert estimate, however, the costs could be somewhat less, at EUR 300–400. Assuming the average of these two independent estimates to be the most reliable, the total costs for transposing the first three EU directives could therefore total EUR 325–410 thousand.

According to Russian expert opinion, which was based on an over-estimation, the approximate costs of implementation and realization of the requirements of the first three selected directives could total EUR 380–500 million. The Belarus and Ukrainian experts did not submit estimates.

At the same time, according to Golubovskaya [11], a most cautious estimate for the total cost of harmonizing environmental legislation with EU standards would be billions of EUR. In particular, harmonizing environmental legislation with EU standards and strengthening the institutional capacity of the environmental component of public administration would cost an average of EUR 500 million per year over the next decade. That article, however, casts little light on the methodology that was applied to obtain the estimate, which is very important. (The author of the Final Consolidated Report notes that Golubovskaya evidently did not mean harmonization (bilateral approach), but approximation or adaptation (unilateral approach).

It should be noted that the estimate for the total financing associated with developing the institutional, regulatory, methodological, informational, and manpower base necessary for implementing EU directives requires special calculations that can only be executed with input information not available at the moment. Estimating this financing with the use of approved methodology should be conducted later as a separate task in parallel with the development of the three draft national laws.

Estimating the costs of realizing the new requirements of these laws is even more complicated. This third and final stage of legislative approximation (adaptation) is known in the West as enforcement. A preliminary rough estimate of these costs is possible only after determining the general form of a system that would ensure application of the laws at the implementation stage, and after establishing a schedule for achieving their goals. At the same time, while estimating these costs and determining the sources of financing, it would be necessary to define the economic and other benefits resulting from the application of the requirements contained in these laws. Obviously, adherence to the new requirements would reduce the risks and extent of damage, and also enhance the value of the various components of the natural environment. This would also mean a more efficient use of natural resources for recreation, tourism, human health purposes, etc. The reduction of economic losses associated with an increase in the mortality rate and work-related time lost due to sickness would also be very significant.

A comparison of projected costs and benefits would enable a determination of the economic effectiveness of implementing the new legislation. However, this is not a simple task, so it might not be advisable for the Dnipro River countries to spend the time and money it would otherwise require. Rather, it would be easier and less expensive to study previous EU experience, namely, its records of the impact and effectiveness of new legislation. One might assert with certainty that the EU does not adopt laws that are unfavorable to the community. Thus, the risks for the Dnipro River countries of negative consequences from following the EU example are not substantial, although it would be necessary, of course, to follow the EU example in a prudent manner, taking into account the national features and specific conditions of each state.

The third recommended document of the Environmental Agency of Great Britain, published in August 2003, provides useful information on this very point. For example, there is a cost-benefit analysis of implementing Framework Directive 20000/60/ЕС on water policy issues in England and Wales. The expected costs (in sterling) are as follows:

Point sources of pollution (per year) – GBP 192–704 million

Agricultural sector (per year) –  GBP 80–209 millionNon-recurring expenses for the enhancement of river habitats  – GBP 143–668 million

The expected benefits are as follows:

Improvement of water quality in the rivers (per year) –  GBP 105-522 million

Recreation in estuaries (lakes, wetlands, riverside water) (non-recreational benefits not taken into consideration) –  GBP 1.5 million

Incidental benefits as a result of landscape improvement –  GBP 1410–3508 million

As the above demonstrates, total annual costs are approximately twice as much as projected annual benefits. At the same time, non-recurring expenses are approximately 10–20% of expected benefits. One may therefore expect positive economic effects from the implementation of Framework Directive 2000/60/ЕС in England and Wales. In subsequent implementation stages of Framework Directive 20000/60/ЕС on water policy issues, the estimates will be determined with greater precision. It is recommended that the Dnipro River countries keep a record of changes in these estimates on a regular basis, not only in England and Wales, but also in other European countries.

References

A. Golubovskaya-Onisimova. “European Union and Ukraine before and after the Kyiv conference.” Information and analytical bulletin “Kyiv 2003,” No.6, May–July 2003, p.11.

8. Proposals for Strategic Action Programme

Based on the preceding considerations, the following proposals are submitted for inclusion in the Strategic Action Programme:

To accelerate the preparation, discussion, negotiation and adoption of the Trilateral Convention on Cooperation in the Protection and Use of the Dnipro River Basin, taking into account the key requirements of the EU directives; and to establish an international body for coordinating activities related to the achievement of convention goals.

In order to develop the appropriate legal base for adapting the environmental water c