Water Legislation

WATER LEGISLATION, a complex of legal norms determining the order and conditions for the use and disposal of ^: waters (in the broad sense of this word). Under the pressure of increasingly complex life needs, on the one hand, and technical _; progress, on the other, water use gradually passes from the stage of separate, fragmented measures to a certain system of water management, i.e., to a set of planned and mutually coordinated measures aimed at the most productive use of water ^' reserves, their conservation, sanitary protection and improvement, and at combating the harmful effects of the unregulated water element. The classification currently accepted for individual branches of water management establishes six main areas of ^; water management measures, namely: 1) protection of waters in quantitative and qualitative aspects (measures for accounting water reserves, for preventing water contamination, for sanitary protection of the purity of waters and water bodies, etc.); 2) use of water for domestic, economic, industrial-technical and sanitary purposes (measures for ¹ water supply - urban, rural, industrial, sewerage, fire prevention measures, etc.); 3) water-land reclamation (measures to ensure cultivated lands with sufficient water through irrigation, watering of arid areas, drainage of swampy areas, protection from floods, etc.); 4) use of water power ^| (measures for the construction of hydromechanical and hydroelectric structures); ^!5) use of waters for transport purposes ^; (measures to meet the needs of ^| navigation and floating) and 6) use of the contents of waters ^; (measures for fishing and fish farming, extraction of algae, salts, etc.). Even this list alone shows how closely the issues of water use are intertwined not only with the needs of the national economy as a whole, but also with the interests of sanitation, hygiene and public health in general. Regardless of the direct significance in this regard of such water management measures as ^! protection of water purity, sewerage, water supply, drainage of swampy areas, ^! conveying water to arid and waterless ^[ regions, etc., no less importance is attached to the ¹ indirect influence of the corresponding water management measures, for example, ^| the extraction of hydroelectric energy, which is not only a powerful economic and technical driving force, but also an extremely important-

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^- factor in improving the conditions for the application of human labor and the general living environment of the broad masses of the people. In most foreign countries, the legislative regulation of water management finds its resolution in more or less ^; thoroughly developed special water codes regulating various aspects of water management, with the water legislation gradually developing in accordance with the development and complication of water management, passing from the regulation of individual branches of water use to the systematic and planned regulation of water management as a whole. In this process, a characteristic phenomenon common to the entire historical process of development of water legislation is the slow but steady transition from private law concepts in the field of water management to public law principles, up to the transition of the water rights system itself into a water management system, i.e., the subordination of private interest to the public principle. This direction of water legislation obviously provides maximum guarantees for the possibility of ensuring sanitary interests related to one or another organization of water management. The old Russian water legislation stood extremely far from this direction, entirely permeated with the principle of private law concepts in water management relations; proceeding from the principle of riparian rights, our pre-revolutionary legislation considered waters as an appendage of the land and thereby extended to them the effect of norms regulating the right of private land ownership. Almost the only motive for limiting the right of private ownership in relation to water sources was the interests of navigation and floating: outside these interests and some police regulations aimed at protecting drinking sources from contamination, waters were left to the uncontrolled disposal of landowners. Only with great difficulty and extremely slowly, mainly under the influence of the needs of agricultural reclamation, did the awareness of the need for legislative intervention in water use to meet basic reclamation needs-drainage, irrigation and water supply (law of May 20, 1902) begin to assert itself, but the interests of sanitation and public health associated with the implementation of corresponding water management measures remained completely undeveloped and unserved in this case. As for the individual regulations mentioned above, scattered in various parts and volumes of the former Code of Laws [Statute on Industry (Vol. XI, Pt. 2, Art. 68), Building Statute (Vol. XIII, Pt. I, Art. 165), Medical Statute (Vol. XII, Arts. 657-658), Statute on Punishments (Vol. XV, Art. 863) and Penal Code (Vol. XV, Arts. 52, 53, 111)], these regulations did not provide any solid basis for the planned and consistent direction of water management in accordance with its exceptionally important significance in the field of sanitation and public health. The fundamental change in the social structure and land tenure of the USSR could not but affect the conditions of our water management: freed from the fetters of private land ownership and the principle of riparian rights, waters thereby became the national, state property, entirely at the service of national economic interests. Thus, after the land reform, our water management, in terms of its socio-legal basis, turned out to be ahead of all, even the most progressive foreign water legislation. All the more acute, therefore, is the need for us to legislatively regulate water management in accordance with the complex technical and economic conditions that characterize it in the modern context. In the highest government bodies of the Union, general principles of water legislation of the USSR are currently being developed, on the basis of which more detailed water codes of individual parts of the Union should then be further developed, most closely adapted to their local characteristics and needs. In these legislative proposals, the interests of sanitation and public health related to water management find quite definite expression. The most active significance in this respect is played by legislative norms and regulations directly aimed at protecting the purity of waters-open, surface and underground-and, generally, at ensuring sanitary requirements related to one or another aspect of water management. As in the pre-revolutionary period, current legislation still leaves this important area without sufficient attention: we still do not have proper water legislation as such, i.e., in the form of an organically connected and developed water code. But in this direction, very significant preparatory steps have been taken in recent years in the form of the development of a number of projects of republican water codes, as well as the fundamentals of all-union water legislation, and at the same time in the form of some separate government decrees. The main significance in this sense is the decree of the Council of People's Commissars of the RSFSR of September 13, 1923 ("News of the CEC of the USSR and VTsIK", 1923, No. 217) on the procedure for carrying out hydraulic engineering works. According to this provision, the development of a plan for hydraulic engineering works having exclusively sanitary-epidemiological significance is entrusted to the People's Commissariat of Health together with the relevant departments; the development of plans for hydraulic engineering works pursuing other objectives lies with the responsibility of the interested departments by agreement with the People's Commissariat of Health. Plans developed in this manner are submitted to the Planning Commission for coordination and submission for government approval. The actual execution of work according to approved plans is entrusted to the relevant departments as appropriate, with the People's Commissariat of Health being given the right to monitor the implementation of plans from the point of view of compliance with sanitary requirements. The necessary credits for the execution of the aforementioned 28*

WATER

works, in accordance with approved state and national plans for sanitary-hydraulic works, must be provided for by a special paragraph in the budgets of the relevant departments, previously coordinated with the People's Commissariat of Health in the sanitary aspects of these works. In accordance with the decree cited, there followed a circular from the People's Commissariat of Health of the RSFSR No. 248 of October 24, 1923, on the organization of sanitary-hydraulic works, for which purpose special permanent sanitary-technical commissions were created under the sanitary-epidemiological subdepartments and departments at local levels, with the participation of interested departments and economic bodies and with concentration of all their administrative work in the health authorities. In the closest connection with the above-mentioned measures for sanitary-hydraulic construction is the circular that soon followed from the People's Commissariats of Health and Internal Affairs No. 175/345 of September 1, 1924, on measures to improve central water supply in populated areas and to establish sanitary protection zones (see) for water supply systems. By this circular, the health authorities, together with municipal economy authorities, are entrusted with conducting thorough sanitary-technical inspections of all central water supply installations (water mains, filters, water chlorination installations, etc.), their repair, as well as establishing thorough and constant sanitary and technical supervision over the maintenance, proper condition, and correct operation of these water structures. Among other government orders in this field, mention should be made of the circulars from the People's Commissariat of Health of the RSFSR No. 290 of December 22, 1923, and No. 4672/31 of January 31, 1925, on imposing permanent sanitary supervision on the sanitary-epidemiological subdepartments of provincial and regional health departments over central water supply and over sanitary-technical installations and structures, both for water supply and for the removal and neutralization of sewage and waste in large populated areas. At the same time, local sanitary supervision authorities were provided with standard forms for recording the sanitary condition of water supply and sewage and waste removal, for the purpose of uniformly collecting material which could later be used for development on a republican scale, for the purpose of clarifying the sanitary condition of water supply and sewage and waste removal in large populated areas of the RSFSR. In particular, to prevent dangerous sanitary contamination by discharging wastewater into various bodies of water that serve as sources of water supply for the population, special regulations (circular from the People's Commissariat of Health of the RSFSR No. 263 of November 12, 1923) have established special standards for the purity of wastewater permitted to be discharged into water bodies from the territories of cities, factories, and populated areas. In the same direction, mention should be made of the mandatory resolution of the People's Commissariats of Health and Labor of November 30, 1922, on the removal and purification of wastewater from leather factories, and the circulars from the People's Commissariat of Internal Affairs Nos. 19, 20, and 21 of January 10, 1922, on the construction of sewage farms and the organization of waste removal to agricultural lands. In this connection, special attention is paid to preventing the contamination of soil and groundwater and the formation of runoff into bodies of public use (rivers, lakes, ponds, etc.), for which purpose the construction of sewage farms is prohibited in low-lying and swampy areas, along the banks of rivers and flowing ponds, as well as in places flooded by spring waters. Concerns for sanitary well-being with respect to water sources found expression at one time, among other things, in the organization of so-called 'clean-up weeks' and 'water supply weeks' (instructions from the People's Commissariat of Health of the RSFSR Nos. 131 and 132 of March 14, 1921). The 'clean-up weeks' had as their task the involvement of the broad masses of the population in sanitary issues, including the cleaning of soil surrounding wells, springs, basins, and other sources of drinking water from contamination; the 'water supply weeks' had the task of attracting attention to the protection of water sources, as well as carrying out practical measures for their improvement on an accelerated basis. In Ukraine, the main document is the resolution of the Council of People's Commissars of the Ukrainian SSR of June 29, 1925 (S. U. Ukrainian SSR, 1925, No. 42) 'On the sanitary protection of waters' and the instruction 'On the sanitary protection of water sources' issued to implement it (S. U. Ukrainian SSR, 1925, II section, No. 27). Among the measures of other departments on issues of water management related to the interests of sanitation and public health, mention should be made of the instruction from the People's Commissariat of Land of the RSFSR of May 14, 1926 (by the Melioration and Water Management Administration) on the construction of wells. According to this instruction, when choosing a location for a well, both convenience of use and protection from contamination are taken into account, for which purpose it is prescribed to ensure that the selected place is not flooded by spring freshets or storm waters, that it is outside of talwegs (drainage channels) along which surface waters flow, etc. When constructing wells for drinking water supply, conditions that threaten to worsen their sanitary condition must be taken into account: the presence upstream in the groundwater flow of any sources of contamination, the effect of absorption wells (no closer than 100 m from them), etc.; in the absence of other means of ensuring drinking water supply, the construction of 'pressure' wells below pond dams is permitted, i.e., the capture of filtration waters from a pond by means of a shaft well, provided that the sanitary quality of these waters is sufficiently improved by filtration and the construction of wells, in any case, at a distance of no less than 50 m below the dam. Another series of regulations on the sanitary-water part is connected with measures to combat malaria. Such, in particular, is the circular from the People's Commissariats of Health and Internal Affairs No. 186 of September 15, 1924, on anti-malarial work, providing for a number of measures such as the inspection of swampy areas, bodies of water with stagnant water, rivers and streams with slow flow and overgrown banks in places where water back-up occurs, as well as

Water Legislation

also the carrying out of work on the draining of swampy areas, draining water from swamps and stagnant ponds, clearing banks of vegetation, etc. Similar provisions are also contained in the circular of the People's Commissariat of Health of March 25, 1921, on the general plan of anti-malarial struggle, in the resolution of the Central Executive Committee of the RSFSR of May 12, 1924 ("Izvestiya TsIK SSSR and VTsIK", 1924, No. 110) on measures to combat malaria, etc. To this same category of resolutions should also be attributed the restrictive rules in force in some localities of Central Asia and Transcaucasia, in areas of artificial irrigation, regarding rice crops, which require a large amount of water for irrigation and thus swamp the soil to the detriment of sanitary interests. Among other legislative enactments and government orders concerning issues of water management and at the same time affecting the interests of sanitation and public health, one can note the provision on fisheries (Collection of Laws, 1925, No. 58, art. 440), which prohibits, among other things, the universal use of explosives and substances that poison the water and stupefy fish for fishing; then, the temporary provision on the construction, reconstruction and maintenance of water supply facilities on the small river network of the RSFSR (Collection of Laws, 1926, No. 47, art. 356), the resolution of the Council of People's Commissars of the USSR of November 22, 1925, on the use of banks of navigable rivers and lakes in the interests of transport (Collection of Laws, 1925, No. 71, art. 525), the resolution of the Council of People's Commissars of the RSFSR of March 23, 1927, on coordinating the work of road and water departments of health with territorial health departments (Collection of Laws, 1927, No. 29, art. 199), etc. To these special provisions should be added several enactments found in general legislation: in the Civil Code of the RSFSR - on the construction of water facilities by developers (art. 78), in the Land Code of the RSFSR - on the right to water and watering places (arts. 1 and 166), in the Forest Code of the RSFSR - on protective forests and shrubs (arts. 41-44), in the Provision on the subsoil of the earth and their development in the RSFSR - on the carrying out of hydraulic engineering works and structures (art. 20), in the Veterinary Statute of the RSFSR - on the construction of slaughterhouses, etc., and finally, in the Criminal Code of the RSFSR - on non-fulfillment or violation of sanitary rules established by law or order by the authorities during construction work (art. 108).-The brief survey of existing enactments and government orders presented above shows that as yet there is no specific W. z. as such in our country at the present time, but there is only a series of separate, disjointed provisions regulating various aspects of water management, and in particular, water-sanitary affairs. Therefore, the aforementioned attempts, both from the side of union bodies and from the side of individual republics, aimed at developing a coherent, organically connected W. z., are especially important and valuable, because only on the basis of the legislative regulation of water management as a whole can all interests related to it be ensured with sufficient completeness, including, first and foremost, the interests of sanitation and public health. The basic principle put forward by the newly drafted projects of water codes of individual republics as a fundamental principle is that the obligation to observe rules for the protection of water purity is imposed on all citizens without exception (project of the Water Code of the BSSR, p. 198). As for the rules for the protection of water themselves, they are established primarily depending on the nature of various water sources: atmospheric waters, springs, wells, flowing waters, etc. The most detailed provisions on this subject can be found in the draft Water Code of the RSFSR, according to which the right to use water from springs, wells and other sources of underground water, as well as the reservoirs constructed at them for drinking and watering livestock, is permitted to all and everyone on condition of observing the provisions determining the procedure for use and protection of these sources from contamination and pollution. In localities lacking good quality water sources, the local land users are obliged to construct wells, ponds and reservoirs to supply the population with water for drinking, watering livestock, domestic needs and firefighting. Destroyed, overgrown and contaminated ponds and reservoirs that previously existed and were necessary to meet the population's water needs are subject to restoration, at the proposal of the water authority, by the local population (arts. 47-52). A special series of provisions (arts. 57-64) is devoted to the issue of protecting waters and reservoirs. These provisions, among other things, provide for the following: 1) land users are not entitled to discharge along the natural runoff of atmospheric waters onto neighboring plots that receive these waters, impurities, polluted, foul-smelling or harmful liquids; 2) springs, wells and sources of drinking water used for public use must be protected from contamination and pollution and from access by livestock by constructing appropriate fences and collecting the water flowing from them in special reservoirs, with suitable devices for water drawing; 3) it is forbidden to dump manure, garbage, carcasses of dead animals and birds, to throw solid substances and discharge liquid substances into ponds, lakes and other reservoirs, as well as onto the ice forming on them, if they are capable of causing spoilage and rotting of the water and contamination of the reservoirs; 4) the banks of said reservoirs within populated areas must be cleaned of manure, refuse and garbage and protected from landslides. Plowing of the banks of all reservoirs at a certain distance, established by special instructions, from the highest level of spring waters, as well as pasturing of livestock in said area, is prohibited in order to prevent the carrying of earth, sand and impurities into the reservoirs. In particular, steeping of hemp, flax, as well as washing of hides, combing of wool in reservoirs serving as sources of water supply is prohibited; for these purposes, special pits and vats or ponds must be constructed at a sufficient distance from drinking water sources; similarly, for washing laundry, bathing of people and livestock in reservoirs without constant flow, a special place must be set aside, located far from the place where water is drawn for domestic needs. Wells used for water supply must be kept in order and cleanliness and protected from contamination and penetration of surface water into them. The use of flowing waters is subject to even more detailed regulation, due to the great public importance of this category of waters (arts. 69, 74, 75). Local water management authorities are entitled to take measures to regulate public use and concentrate individual types of it in certain places, to limit or completely prohibit such water use in certain places in the interests of water purity, preservation of river banks and channels, transport, public health, public order, local economy, fishing and fish farming. Permission must be obtained from the local water authority for the use of flowing waters for domestic economy and small-scale production through artificial devices and structures (fitting pipes, installation of mechanical water lifts, etc.), for the construction of bathing facilities, laundries, boat landing facilities and piers, as well as for the digging of ditches for draining wastewater; the said authority is entitled to permit these types of use only with due regard to the general interests and under the conditions specified by it. In particular, under no circumstances can the dumping of

WATER INFECTIONS

288 lands, even with the consent of riparian land users, if it is recognized as harmful in sanitary and agricultural relations (Art. 145). The water management authorities are obligated to constant supervision over the order of use of watercourses for the purpose of protecting the purity of watercourses, and any use of watercourses, beyond the scope of general use, for discharging liquid and solid substances into them may be permitted only with the permission of the water authority, which when issuing the corresponding permits takes into account the general condition, abundance of water, speed of the watercourse and its capacity for self-purification (Art. 197, 198). The discharge of liquid substances that worsen the quality of water and make it unfit for drinking and watering or harmful from a sanitary standpoint into watercourses serving as sources of water supply for populated areas cannot be permitted, and special supervision by the water authority is required for the use of watercourses for discharging liquid substances from factories, plants, and artisanal enterprises that adversely change the composition or quality of the watercourse. Existing facilities for discharging sewage from privies and cesspools in cities and villages are to be gradually eliminated within the deadlines set by the relevant water management authorities; the issuance of permits for the continued existence of old and the construction of new facilities for this purpose should not be permitted in the future (Art. 203). The highest water management authorities have the right to establish the boundaries of riparian zones, within which, for the protection of the watercourse and banks, all kinds of buildings and structures may be permitted only with the prior permission of the water authority and with compliance with the conditions set by it (Art. 224, 229). Volost executive committees and rural councils are to be involved in direct supervision of compliance with the provisions of the Water Code, acting as the lower-level apparatus of county and district water institutions according to instructions developed by these institutions and approved, as appropriate, by water committees (Art. 341). The above (in condensed form) content of the main provisions of the proposed W. z. in the part concerning water protection shows that with the introduction of corresponding water codes into force, the interests of sanitation and public health, insofar as they are connected with the water factor, will find the necessary support and protection in the W. z. USSR.

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