Provision of water bodies for use, Water use agreement, Administrative decision on water use - Legal basis of nature management and environmental protection

Provision of water bodies for use

Water use agreement

For the rational use of water bodies and the provision of a water body, it is necessary to have a water use agreement or a decision to grant a water body for use.

In the United States of America, cases are listed in which the conclusion of a water use agreement or the decision to grant a water body is not required at all, which means a real reduction in both administrative and contractual barriers.

The list of obligatory, i.e. essential, conditions of the contract of water use. In case of their absence in the contract it can be recognized as invalid and does not generate legal consequences in accordance with Art. 167, 168 of the US Civil Code.

In addition to the mandatory conditions, it is possible to include other conditions in the water use agreement but the agreement of the parties. At the conclusion of the contract of water use, any attempts of pressure on representatives of the owner of waters should be excluded.

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According to the definition of the US EAC of January 10, 2008, the disposal of property is carried out at the will of the owner, the transfer of property in rent is the right, and not the obligation of the owner, and compulsion to enter into a contract or extend it for a new period is possible only in cases and in order , established by law or by contract (Article 421 of the Civil Code of the Russian Federation).

According to paragraph 1 of Art. 422 of the US Civil Code, the contract must comply with binding rules for the parties, established by law and other legal acts (mandatory rules) in effect at the time of its conclusion. When the contracting parties withdraw from mandatory, including environmental, norms, the concluded contract must be declared invalid according to art. 168 of the US Civil Code.

The parties to the water use agreement are responsible for the failure or improper performance of their obligations under the water use agreement. The late payment by a water user of a fee for the use of a water body entails the payment of penalties; for the withdrawal (withdrawal) of water resources in an amount exceeding the amount of water withdrawal (seizure), established by the contract of water use, the water user is obliged to pay a fine; payment of a fine does not release the water user from paying for water resources seized beyond the limit.

The right to use water bodies can be terminated voluntarily by agreement of the parties or in a compulsory, judicial. The reasons for the compulsory termination of the right to use a water body by a court decision are:

1) non-targeted use of a water body;

2) use of a water body in violation of the law of the Russian Federation;

3) the failure to use the water body in the water use agreement established by the contract or the decision to grant the water body for use terms.

An additional reason is considered compulsory termination of the right to use water bodies when there is a need to use them for state or municipal needs. In these cases, the compulsory termination of the right to use is exercised by executive bodies of state power or local self-government bodies.

In case of public necessity of compulsory termination of the right to use a water body, when the water user does not violate the law or the contract, the damage caused by the termination of the right to use the water body may be compensated to him by the relevant state authority or local government.

An obligatory condition for bringing an action to a court to terminate the right of water use is the issuance of a warning to the water user by a state authority or local government.

Can also apply art. 169 of the US Civil Code ("The invalidity of a transaction committed for a purpose contrary to the foundations of the rule of law and morality"), If, under "law enforcement" we can understand the "foundations of the constitutional system" (Chapter 1 of the Constitution of the Russian Federation) or other doctrinally delineated boundaries, then the notion "morality bases" continues to be blurred and uncertain.

Quite often moral or moral principles that the transaction should not contradict include the existing ideas about good and evil in the society, fair and due to prolonged social development, including the general principles of law and the activities of the highest judicial instances; while it should be about the morality of society, and not about the moral representations of individual social strata or groups.

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The stipulated items 2 of Art. 6 of the US Civil Code, the requirements of conscientiousness, reasonableness and fairness in the field of natural resources relations can be projected onto the water, the entire environment as a public good, in need of enhanced protection.

Absence of procedural issues of granting the right to use water bodies in regulatory acts - agreeing on the terms of use reflected in water use agreements and decisions on granting for use, changes in conditions, grounds for early, including compulsory termination of contracts and decisions may impede the realization of material norms, especially if there is a desire to find obstacles and not to comply with the law.

Administrative Decision on Water Use

In addition to providing a water body for use on the basis of a contract, the USC establishes a procedure for providing it on the basis of an administrative decision. The US Government, federal executive bodies, executive bodies have the authority to provide water facilities the power of the subjects of the United States, local self-government bodies.

Their powers derive from the form of ownership of the water body: water objects owned by the Russian Federation are provided for use by the US Government or an authorized federal executive body; water objects owned by the subjects of the United States - by the executive authority of the subject of the Russian Federation; water objects that are owned by municipal entities - local self-government bodies.

In order to combat corruption, the requirements for a decision to grant a water body for use are determined. In the absence of one of the mandatory elements stipulated by the United States VC (information on the water user, the purpose, types and conditions of use of the water body or its part (including the volume of permissible withdrawal (withdrawal) of water resources) in the decision of the authorized body, information on the water body, including the description of the boundaries of the water body, its parts, within the limits of which it is intended to carry out water use, the period of water use), this decision can be recognized by the court as invalid from the moment of its adoption and not entailing the law consequences.

In the United States of America, the procedure for deciding on the provision of a water body has been established, which can be broken down into a number of stages. At the first stage the interested person addresses the owner of the water body with the appropriate application; on the second - the executive body of state power or local self-government makes a decision to provide such a water body or part thereof for use or refuses to provide a water body or part thereof for use. In this case, the applicant is sent a motivated refusal, which can be appealed in court.

The transition from predominantly administrative methods of water resources management to predominantly private law methods, their combination is an actual task and does not go smoothly due to the inertia of thinking and behavior of both officials and citizens, the immaturity of civil society institutions, the defectiveness of legal consciousness and passivity of the majority of law enforcers, their traditional belief in a paternalistic state.

Legislation takes steps to overcome this problem, but public practice and public opinion are conservative (in the sense of continuing, conservative, conservative) factors of protection and use of water resources.

The legislator focused on property assessments - the volume of water withdrawal, the timing of water use, and the description of the boundaries. Under the administrative procedure for granting and terminating the right of water use, violations of the rights of citizens and the associated bases of law and order, morality, justice, conscientiousness are unacceptable.

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