Concept, composition of the water fund. State management of the water fund.

The concept and types of such lands

Water fund lands are those land plots that are located on the territory of water bodies (sea, pond, rivers, lakes, reservoirs and others), as well as various water protection buildings and structures, water rights of way, and various water technical facilities. Despite the fact that, according to the Water Code of the Russian Federation, water resources are natural and renewable, they still remain vulnerable and limited. That is why control over their use is carried out by the state.

Water fund lands are divided into several types, which are clearly described in the Water Code of the Russian Federation:

• the water fund itself;
• water areas;
• objects;
• resources;
• farming;
• mode.

Water fund lands (or water fund) are all objects, or rather their totality, that are located on the territory of the Russian Federation. In fact, the concept of water fund refers to all its existing types.

A water area is the name given to all expanses of water that are nearby, within any body of water, no matter how it was created: be it naturally or artificially. Objects of water lands are called all bodies of water that have characteristics that allow them to be recognized as water lands.

In the Water Code of the Russian Federation, water resources mean all water resources (both external and internal) that can be used, are being used, and are under state protection. These include, for example, underground springs with drinking water.

Water management should be understood as all activities that are related to the use, study, protection of water bodies and their resources, as well as the elimination of water disasters. Water regime is the water level in a reservoir (any body of water existing on the territory of the country), which can change up or down.

The legal regime of water fund lands is determined by current legislation, is under the control of the state, and is subordinate to it.

The composition of water fund lands conditionally divides all water lands into two large categories:

• Common use. These are those lands that are owned by the state or its representatives (municipal and federal authorities), which can be used by everyone for their own purposes, to satisfy their domestic needs. At the same time, legal entities are prohibited from carrying out any commercial activities on water land objects. Individuals must have unhindered access to lands of this type, as this is specified in the Water Code of Russia.
• Specially protected. These are the lands that are under special control of the state. They usually contain technical facilities that carry out water intake and water study activities, as well as facilities that carry out activities of a scientific, cultural, aesthetic, recreational and other significant nature. Individuals cannot use such lands for their own needs.

Water bodies, their types, coastline and its definition

The lands of the water fund have a number of their own facilities, which are under the control of the state and are prescribed in the current legislation. Thus, all existing objects, according to the Water Code of Russia, are divided into two large categories: underground and surface. Their description and legal status are indicated in Article 5 of the current Water Code of the Russian Federation.

According to this article, objects that are above ground include:

• all maritime parts (both the sea itself and what is located on it, all its straits or bays, piers, ports and other objects);
• all existing watercourses and reservoirs (ponds, creeks, streams, rivers, reservoirs, swamps and others);
• all outlets of underground watercourses (meaning springs, springs, geysers, wells and others);
• objects with ice and snow (for example, glaciers on mountain tops).

All these objects are state property, unless otherwise provided by regulations in a particular subject of the federation. Their boundaries are established in accordance with the law. Objects of surface water lands include not only the water bodies themselves, but also the adjacent territories, which are called the coastline.

For each of the existing objects, boundaries are set separately. Thus, the boundary of a marine territory is a stable water level in the sea, and if it changes due to ebb and flow, then along the line of the maximum possible discharge of water.

The boundaries of swamps are determined by peat deposits at the maximum possible depth, and rivers and other watercourses - by measuring the water level when the watercourses are not frozen. This is based on data collected over many years, not just one year.

All existing standing reservoirs have their own definition of boundaries, the identification of which is carried out by measuring the natural water level. According to Article 5 of the Water Code of the Russian Federation, objects located underground include:

• water pockets and underground reservoirs;
• underground drains, springs, currents.

The boundaries of water lands that are not on the surface are established exclusively by current legislation, in particular, on the use of natural subsoil.

Concept and characteristics of water bodies

Definition 1
Water bodies are natural or artificial reservoirs, watercourses or other objects, the temporary or permanent concentration of water in which has characteristic forms and characteristics of the water regime.

In this case, the water regime is understood as a change in the level, volume and flow of water in water bodies over time.

The entire set of water bodies based on the characteristics of their regime, morphometric, geographical and other characteristics can be divided into two groups:

• firstly, surface water bodies;
• secondly, underground water bodies.

Surface water bodies include:

• seas or individual parts of seas, including bays, estuaries, bays, straits, etc.;
• types of watercourses such as canals, streams, rivers;
• such types of reservoirs as ponds, reservoirs, lakes and flooded quarries;
• swamps;
• the release of natural underground waters, including geysers and springs;
• snowfields and glaciers.

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Surface water bodies include surface waters and the lands covered by them within the boundaries of the coastline.

The definition of coastline differs for different types of water bodies:

• the coastline for the seas is determined by a constant water level, or when this level periodically changes in accordance with the line of maximum ebb;
• the coastline of canals, streams, rivers, lakes, and flooded quarries is determined by the average long-term water level during the period of absence of ice;
• the coastline of reservoirs and ponds is determined in accordance with the normal backwater level;
• The bog coastline is determined in accordance with the boundary of peat deposits at zero depth.

Underground water bodies include:

• firstly, groundwater basins;
• secondly, the horizons are aquiferous.

Note 1

Determination of the boundaries of underground water bodies is regulated by subsoil legislation.

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Transfer and seizure of water fund lands. Protection of such lands

The legal regime of water fund lands is established in such a way that most of the objects of such land plots are in federal ownership. Private individuals, municipalities, and legal entities may own or own only small reservoirs or ponds and the adjacent territory, if they are in the private property of these persons.

At the same time, the legislation provides for the forced alienation of both a water body in favor of the state and the adjacent land plot, since one cannot exist without the other. It is noteworthy that such plots of land cannot be divided into parts; the entire plot within its borders is subject to alienation.

According to Article 6 of the Federal Law of the Russian Federation No. 172, lands that are not in state ownership can be withdrawn and transferred to another category, including the category of the water fund, in cases where this is required for the implementation of state needs. In this case, all norms, features and nuances of the current legislation must be taken into account.

According to the same Article 6 of Federal Law No. 172, before notifying the landowner, whoever he is (meaning a legal entity or an individual), local or federal authorities transfer land from category to category so that they can be used according to the intended purpose.

Transfer of water fund lands to another category is possible only if the water bodies on these lands lose their “water” status and only within the framework of current regulations.

According to the Land Code of Russia, local authorities or federal authorities have the right to build or create any artificial reservoir (including a reservoir) not to confiscate land plots from the owners, but to requisition them for temporary use, that is, exactly until work on creating a reservoir will be completed.

The deadlines in the legislation are not very clearly stated: requisitioning land plots can take from two to twenty years, depending on who is the owner of the land, as well as the exact scale and purpose of the water body.

It is noteworthy that within the framework of the Water Code of Russia, the right of ownership of water bodies is provided for both individuals and legal entities, representatives of any government authorities. In this case, ownership rights are terminated simultaneously with the loss of rights to the land plot on which the water bodies are located.

The main features of the protection of water fund lands are under the jurisdiction of the current water legislation, which includes both separate parts of the Land Code of Russia and the Water Code of the Russian Federation, as well as any other regulatory legal acts of federal and local significance, which stipulate the rules for the use of water lands and objects. The protection of water lands is carried out exclusively on the basis of current legislation.

Author of the article

AZ-libr.ru

1. Water bodies are the property of the Russian Federation (federal property), except for the cases established by part 2 of this article.

2. The property of a subject of the Russian Federation, a municipality, an individual, a legal entity includes a pond, a flooded quarry, located within the boundaries of a land plot owned by right of ownership, respectively, of a subject of the Russian Federation, a municipality, an individual, a legal entity, unless otherwise established federal laws.

3. The right of ownership of the Russian Federation, a subject of the Russian Federation, a municipality, an individual, a legal entity to a pond, a flooded quarry shall terminate simultaneously with the termination of the right of ownership to the corresponding land plot within the boundaries of which such a water body is located.

4. The pond, watered quarry specified in part 3 of this article may be alienated in accordance with civil law and land legislation. The alienation of such water bodies is not permitted without the alienation of the land plots within the boundaries of which they are located. These land plots are not subject to division if such division requires the division of a pond or a watered quarry.

5. A natural change in the river bed does not entail the termination of the ownership rights of the Russian Federation to this water body.

6. Forms of ownership of groundwater bodies are determined by subsoil legislation.

Comm. Kalinichenko T.G.

1. General overview of the article.

The commented article consists of 6 parts. It has been significantly reduced in comparison with the rules on ownership of water bodies compared to the rules of the 1995 Code. Previously, provisions on property rights were contained in the chapter on property rights and other rights to water bodies, which included 9 articles devoted to the content, the concept of property rights, and property rights. According to Article 8 of the new Water Code, all seas, rivers, lakes, swamps, reservoirs and other water bodies are in state (federal) ownership. The exception is ponds and flooded quarries. They may belong to a subject of the Federation, a municipal entity, a legal entity, or even a private entity. True, under one condition: if their property is the land on which the pond is located, a flooded quarry within the shoreline. The Code does not allow the division of such land plots if this results in the need to divide a pond or quarry. At the same time, Article 7 of the Federal Law on the introduction of the Water Code establishes who will be the owner of the plots within the boundaries of which a pond or a flooded quarry is located, if these lands are located on the territory of different settlements, urban districts, etc. So, for example, a plot with a pond located on the territory of two settlements will be the property of a municipal district, but land with a flooded quarry located on the territory of two constituent entities of Russia will be federal property.

2. Legal grounds for ownership of water bodies.

They are contained in two branches of legislation: civil and water. According to paragraph 3 of Article 129 of the Civil Code of the Russian Federation, land and other natural resources can be alienated or transferred from one person to another to the extent that their circulation is permitted by the laws on land and other natural resources. In addition, according to paragraph 3 of Article 209 of the Civil Code of the Russian Federation, ownership, use and disposal of land and other natural resources, to the extent that their circulation is permitted by law, is carried out by the owner freely, if this does not cause damage to the environment and does not violate rights and legitimate interests other persons. An analysis of these norms allows us to conclude that civil legislation determines the general content of the right of ownership of water bodies, and water legislation determines its specific features and character, as well as the features of the mechanism for implementing the powers of the owner of water bodies.

3. Contents of powers of owners of water bodies.

According to Article 209 of the Civil Code of the Russian Federation, the owner has the rights to own, use and dispose of his property. The owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and legally protected interests of other persons, including alienating his property into the ownership of other persons, transferring to them, while remaining the owner, the rights possession, use and disposal of property, pledge property and encumber it in other ways, dispose of it in any other way. As for the features of the content of ownership of water bodies, they, as mentioned, are provided for by water legislation.

Part 2 of the commented article reflects the main feature of the content of the right of ownership of water bodies as objects of nature. This feature is that the right of ownership does not fully apply to water bodies, since the water concentrated in them is in a state of continuous movement and water exchange. However, water, just like land, forest, subsoil, and wildlife, is a natural resource of enormous economic value. Water is absolutely necessary for human existence. It is a renewable natural resource because water is continually released back into the natural environment in the form of precipitation. Water can be used more than once because the same water molecules can be used and discarded by one user and then become a source of consumption for another user. Due to these circumstances, the norms of water law are not constructed by regulating primarily the relations of ownership of water bodies in a similar way to the ownership of land. Water bodies, as objects of civil rights, in relation to such ponds and flooded quarries, which are privately owned, are classified as real estate in accordance with Article 130 of the Civil Code of the Russian Federation. The commented article, therefore, specifies paragraph 2 of Article 214 of the Civil Code of the Russian Federation, which provides that land and other natural resources that are not owned by citizens, legal entities or municipalities are state property. This provision is nothing more than a presumption that water bodies are in federal state ownership. Thus, the article establishes the forms and types of ownership of water bodies. This reflects the historically objective situation about the existence of two main forms of property rights: public and private. Public property includes all property, including land and natural objects associated with it, that is not private property. These are all water bodies that are in the federal state, the property of the constituent entities of the Russian Federation or municipal property.

4. The meaning of the article.

Proper legal regulation of property relations over water bodies is of fundamental importance for their rational use and protection. The overall achievement of the goals set for the water legislation of the Russian Federation depends to a large extent on the correct choice of the legal model and methods of regulation, establishing a fair balance of public and private interests in the sphere of property relations over water bodies and their water resources. This is especially true in the context of the transition period to a market economy and sustainable development. Based on Part 1 of Article 9 of the Constitution of the Russian Federation, according to which water resources are the basis of the life and activities of peoples living in the corresponding territory, the new Water Code provided for the only possible form of ownership of water bodies in the Russian Federation - federal state.

Article 8 in part 2 establishes an exception: a pond, a flooded quarry, located within the boundaries of a land plot owned by a subject of the Russian Federation, a municipal entity, an individual, a legal entity, are respectively owned by a subject of the Russian Federation, a municipal entity, an individual, legal entity, unless otherwise provided by federal laws. The right of ownership of the Russian Federation, its constituent entity, municipality, individual, legal entity to a pond, a watered quarry shall cease simultaneously with the termination of the right of ownership to the corresponding land plot within the boundaries of which such water bodies are located. The pond, watered quarry, specified in part 3 of this article, may be alienated in accordance with civil law and land legislation. The alienation of such water bodies is not permitted without the alienation of the land plots within the boundaries of which they are located. These land plots are not subject to division if such division requires the division of a pond or a watered quarry. A natural change in the river bed does not entail the termination of the Russian Federation’s ownership of this water body. Forms of ownership of groundwater bodies are determined by subsoil legislation.

5. Signs of the public legal nature of ownership of water bodies.

In general, in the Russian Federation, ownership of water bodies is of a public law nature. The most significant signs in this case are:

a) a significant limitation of the circle of subjects of ownership of water bodies - only the Russian Federation can be such, with the exception of ownership of ponds and flooded quarries;

b) the simultaneous presence of a water body in the ownership of several subjects of state property rights is not allowed.

This means that water bodies cannot be owned by constituent entities of the Russian Federation

6. Collisions of legal regulation and their solutions in practice.

The Water Code does not establish a ban on the transfer of water bodies that are in federal state ownership to the ownership of constituent entities of the Federation, municipalities, citizens and legal entities. This indicates a significant limitation of the right of federal state ownership of water bodies, in particular the power of disposal. The most important feature of ownership of water bodies is that they, except for ponds and flooded quarries, are excluded from civil circulation. However, the commented Code does not establish a ban on the sale, pledge and other transactions that entail or may entail the alienation of water bodies (the only exception is the right to use water bodies, which can be transferred from one person to another in cases provided for by this Code). The invariable belonging of water bodies only to federal property, enshrined in the Water Code, should exclude any disputes about the subject of the right of ownership of water bodies, primarily disputes between the subjects of the right of state ownership of water bodies, i.e. between the Russian Federation and its constituent entities.

7. Legal consequences.

The presence and volume of federal ownership of water bodies predetermines the existence of a special legal title - the right to use federal water bodies, which has both a property and non-property nature. The property nature of the right to use a water body is that a specially authorized state body enters into water use agreements with citizens and legal entities. Non-property relations arise in connection with the issuance of permits for use as legal relations of an administrative-legal type, in which the state body is the leading, ruling subject of the legal relationship.

Thus, the contractual administrative and legal procedure for providing water bodies for use determines both the property and non-property nature of the right to use them. In both cases, the public authority in these legal relations acts on behalf of the federal government as the owner of water bodies and at the same time as a subject with territorial supremacy.

7. Priority in the legal regulation of property relations over water bodies of the norms of water legislation over the norms of civil legislation.

Civil legislation establishes only general provisions for the ownership of surface water objects. Water bodies can be classified as items that make up the categories of property and things in the civil legal sense. According to civil science, the right of ownership can arise only for an object of the material world, recognized as a thing. Thus, water legislation as a public law branch, using its inherent legal means, is capable of ensuring proper legal regulation of federal ownership relations over water bodies, while respecting the public interest.

The Russian Federation, as the owner of water bodies, along with the right to receive income from their operation, bears responsibilities for the protection, restoration, organization of rational and integrated use of water bodies belonging to it, as well as for the protection of the natural environment in the process of their use.

8. Assignment of federal property status to water bodies.

Since this means the consolidation of a public legal type of property, it thereby implies restrictions on the right of federal state ownership of water bodies. This is achieved by extending the ownership rights of the subject of the Federation, municipalities, legal entities and individuals to ponds and flooded quarries.

9. Prohibitions and restrictions and their effectiveness.

The right of federal state ownership of water bodies presupposes the implementation of constant and effective control on the part of civil society over the implementation by the state of powers to own, use and dispose of water bodies in the public interest. Meanwhile, the Water Code does not establish a ban addressed to the Russian Federation to alienate water bodies, as well as to arbitrarily destroy, change the intended purpose or properties of water bodies, which entails the loss of their characteristics characteristic of objects of the public domain and the ability to satisfy public needs. There is also no obligation of the state to provide water bodies for the benefit of individuals, provided that they respect the rights of everyone to use these objects. For example, the provision of a water body for use by a specific legal entity for the purposes of industrial water supply or recreation and its subsequent use for these purposes should not interfere with the general (publicly accessible) water use of citizens and legal entities.

Among the restrictions on the right of state ownership of water bodies, one can also indicate the obligation of the state to provide them for the use of individuals, if possible, on a competitive basis and under conditions that best meet the requirements of respecting the interests of all members of society. At the same time, the commercial (economic) interest of the state must give way to other interests - environmental, social, cultural, educational, health, i.e. direct human interests.

Thus, the state, without completely losing the powers of the owner of water bodies, must limit these powers to legal provisions expressing the overall public interest in the use of these objects, and strictly obey them.