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Legal Support to Cooperation Among Three Riparian Countires in the Dnipro Basin Management
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3. LEGAL SUPPORT TO COOPERATION AMONG THREE RIPARIAN COUNTRIES IN THE DNIPRO BASIN MANAGEMENT
At present, there is no unified institution in place to coordinate the three riparian countries’ activities with regard to biodiversity conservation in the Dnipro Basin. As matters stand, each country has separate governmental agencies in charge of environmental and water protection activities at a national level. Therefore, the need for establishing a control system based on a reasonable combination of basin planning and territorial administration is self-evident. It should be borne in mind that the use and protection of water resources (directly relating to biodiversity conservation) are two components of the same process, as the quality of transboundary rivers and of entire biodiversity in any particular basin is dependent on their users. Besides, forecasts, plans and assessments of potential environmental impacts of certain factors should be developed not for an individual site (which is a current practice of environmental authorities in the three countries) but for the whole territory and all natural sites and features of the basin. The following steps should be made to implement the basin approach to environmental management:
- the three neighboring countries should sign a basin agreement;
- the neighboring countries should carry out independent water protection and water management activities within the established limits and given the control of specially - authorized bodies (inter-state commissions);
- each country should adhere to the basin approach in its activities.
In the Russian Federation, a combination of the basin and administrative-territorial principles in managing environmental protection and use of natural resources is applied. Unlike that, the legislation of the Republic of Belarus makes no provision as to the basin management of water bodies. This gap in the legislation should be filled so that the work of conserving biodiversity in the Dnipro Basin could be more effective.
A most means instrumental in addressing the above challenge is the Integrated Water Resource Management Concept that has been implemented in the countries of Western Europe and Northern America since the 1970s. Its major provisions are reinforced in the Ministerial Declaration on Water Security in the 21st Century, adopted in March 2000 at the Second World Water Forum in the Hague, and in Directive # 2000/60/ЕС of the European Parliament and EU Council of October 23, 2000. The main principles of an integrated management of river basins (based on the international practice, including French experience and an experiment currently under way in Russia) are as follows:
- basin approach recognizing the river basin in its hydrographic borders, including ground waters, as a major management unit;
- setting up an agency for special management of water resources;
- using effective management methods and techniques (developing a general plan of the basin management and development);
- involving all water users and policy-makers of all levels into the management of a given water economy complex;
- informing water users about all management decisions;
- covering all costs of provided water services, including the cost of environmental and water resource protection, based on economic analysis and the “polluter pays” principle; and
- using financial incentives (“water pays for water”).
Levels of the river basin management
The current international practice is for the river basin management agencies to comprise two levels:
- decision-making level represented by the Basin Council consisting of water economy complex participants (representatives of state executive power bodies, water users, non-governmental organizations);
- executive level, responsible for policy development in the sphere of river basin management (program-oriented planning) and for the implementation of made decisions and provision of relevant funding.
In the light of the above-cited principles, the situation with water resource management in the Republic of Belarus is characterized by the following:
Water resource management in the Republic of Belarus is based on the administrative-territorial principle (republic – oblast – district). Similar organizational principle is applied in the Russian Federation and Ukraine. Accordingly, river basins are not major units of water resource management. The notion of the “basin management” is not to be found in either the1998 Water Code of the Republic of Belarus or any other legislative acts. The Water Codes of the Russian Federation and Ukraine (1995) lay down the principle of basin management, but so far it has not been widely applied in practice, with the only exception of the Russian experiment.
There is no legal mechanism for policy development and implementation in the sphere of water resource management within the river basin; thus, none of the countries currently designs plans of the river basin development.
Local governments and self-government bodies take part in decision-making on water resource management; however, it is done within the administrative-territorial units of the three countries rather than at the river basin level. Besides, water users are not involved in management decision-making in this area of legal relations.
The “polluter pays” principle is not fully implemented since the existing methods of calculating charges for contaminant release (discharge) into environment and water preclude levying fines for diffuse contamination of water bodies amounting, according to expert estimations, to 70%-90% of the total contamination scope in the three riparian countries. So the existing charging system in water economy does not reflect the actual situation with specific water bodies. The “water pays for water” principle is not implemented either, as at present the payments for water use and fines for contaminating water bodies are channeled to the budgets of different levels, including to the budget environmental funds, and only insignificant part of these payments is used for the “preservation and rehabilitation of water ecosystems”. The existing system of privileges in payments for water use in municipal housing sector is also at variance with the principles “water pays for water” and “polluter pays”.
The legislation of the Republic of Belarus lays down the principle of multitude of public administration agencies in the sphere of water use and protection; local councils, executive and administrative bodies, the Ministry of Natural Resources and Environmental Protection and the Ministry of Housing and Municipal Economy having primary competence in the sector. As estimated by experts, such a distribution of management functions is not conducive to the implementation of the concept of integrated water resource management; it allows to address the consequences rather than the causes of contamination and exhaustion of water resources.
The system of water resource management in the Dnipro Basin should be based on the basin principle. The system of water resource management in the Republic of Belarus should be reformed to accommodate the principles of territorial management and to ensure a gradual transition to the basin-wide management.
1. The system of water resource management agencies should incorporate two two-tier subsystems.
First
National level of management,
Basin level of management.
Second
Decision-making level,
Decision implementation level (executive).
2. The following institutional framework is to be established:
Decision-making bodies:
Water Councils in the member-countries (national level),
Dnipro Basin Council (inter-state basin level).
Executive bodies (or bodies in charge of implementing decisions):
Water Service (Water Committee or Water Department) within the system of state executive power bodies in the sector of environmental protection and use of natural resources of individual countries (national level),
Basin Administration (river basin level).
3. Water Councils at the national level should have members representing highest legislative and executive power bodies (ministries in charge of water resource management, ministries of finance and economy), water users, research and academic communities. Water Councils should be advisory bodies for developing major areas of public policy in the sphere of water resource management as well as proposals on improving the effective regulatory framework, methodology and technical standards. The Basin Council should unite representatives of state power and public administration bodies of the three countries and of main water users. The Basin Council should be responsible for the development and approval of the River Basin Management and Development Plan and of the long-term Basin Target Program of Sustainable Water Use. In the suggested management system, the Basin Council is an advisory body. It is an essential integral part of the management system since it enables the participating countries to implement one of the fundamental principles of integrated river basin management, namely, water users’ involvement in the decision-making processes. The Basin Council should have the following functions: (1) conducting environmental assessment of the current situation in the basin (river ecosystem, water quality and amount, types of water use related to the economic and other activities in the basin) in terms of its compliance with the policy of integrated river basin management, on the basis of materials prepared by the Basin Administration; (2) setting priorities, aims, objectives and principles of water use policy in the river basin; (3) providing a forum for various participants of basin-wide water economy complex and enabling them to voice their problems and needs; (4) approving the River Basin Management and Development Plan developed by the Basin Administration; (5) making decisions concerning the basin budget expenditures.
4. An executive body responsible for the practical day-to-day management of the river basin is the Basin Administration. For this institution to operate effectively, hydrographic borders of river basins should be established, marked and determined in relevant legislation. The Basin Administration is responsible for the preparation of the River Basin Management and Development Plan and the long-term Basin Target Program of Sustainable Water Use.
The Basin Administration is established to fulfill the following functions: (1) analyzing the state of water economy; (2) implementing the main areas of state water policy in the basin; (3) organizing and conducting the monitoring of the river basin situation; (4) designing the River Basin Management and Development Plan and the long-term Basin Target Program of Sustainable Water Use, and controlling their realization; (5) organizing the development of water economy balances, territorial schemes of water use and protection; (6) placing governmental contracts for the development on water economy balances, for research, experimental and exploration work, and for the construction of water economy facilities in the river basin; (7) conducting, within its competency, the state environmental assessment and coordinating pre-project and project documentation regarding the construction and reconstruction, expansion and re-equipment of water economy facilities; (8) supervising the implementation of agreements on joint use and protection of transboundary water bodies and of water use contracts; (9) coordinating the cooperation of oblast, city/town and district inspections of the use and protection of water resources.
5. Responsibilities should be clearly distributed between general and special agencies of water resource management, and the duplication of functions (planning, licensing, monitoring, control, standardization, data management, information collection, etc) should be eliminated. At the national level, a specially established Water Service (department or committee) should perform the functions of coordination and management.
6. Financial and economic schemes of water resource management and a plan of forming basin budgets should be developed. The cash flow formed of water charges should be determined. The major part of these funds should be used for various basin programs and plans. In order to realize the “polluter pays” principle, the rates of environmental tax for contaminant discharges into water bodies should be established with due regard both of the toxicity of discharged substances and of the sanitary conditions and category of receiving water body at the discharge point. Based on the “polluter pays” principle, an environmental tax for contaminant discharge into water bodies should be established for water treating facilities of municipal sewerage systems, taking into account major indicators characterizing municipal wastewater. The environmental tax for specific contaminants characteristic of industrial wastewater should be levied on the relevant industrial enterprises.
7. The organization of monitoring, management of data and information flows that are important tools of water resource management should be revised and updated.
8. The Dnipro is a transboundary river. This should be taken into consideration in organizing water use management activities, which means that the management system should target internationally recognized norms and principles of using transboundary water bodies. The timing seems appropriate for acceding to the existing international conventions and agreements (including the CIS ones) and starting negotiations with a view to concluding bilateral and multilateral inter-state agreements on transboundary water bodies. These agreements should determine regimes and quality of transit water at border river stations under the conditions of different water content. They should also formulate the programs of water protection and other environmental activities within the controlled drainage area.
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