Protection of water use rights: Supreme Court judge highlights relevant case law

The specificity of the Supreme Court's work at the beginning of its activity was a necessity to develop the practice of access to court in matters related to the protection of environmental rights. Thus, the Supreme Court formulated the position that in the field of ecology it was necessary to move away from the construction of courts that consider only individual disputes.

This was stated by Nataliia Kovalenko, Judge of the Supreme Court at the Administrative Cassation Court, during the National Forum "Water in Industry and Agriculture in the Context of War and Climate Crisis".

Speaking about the exercise of the right to judicial protection in this category of cases, the judge reiterated that water and other natural resources located on the territory of Ukraine, natural resources of its continental shelf, exclusive (maritime) economic zone were the objects of property rights of the Ukrainian people. According to the speaker, it is important for the community to be involved in ensuring control over the authorities. In addition, the public prosecutor has the right to the protection of the state's interests in the area of water conservation and rational water use.

In this context, Nataliia Kovalenko analysed the decision of the Supreme Court of 19 January 2023 in case no. 380/14955/21, in which the public prosecutor filed a lawsuit on behalf of the state, represented by the local council, against the Department of the State Agency for Fisheries. In this lawsuit, he sought to declare illegal and cancel the permit for the special use of aquatic bioresources in fishery water bodies, justifying his claims by the fact that the city council, whose powers include protecting the interests of the state in disputed legal relations, failed to exercise its powers properly. The prosecutor saw this as a violation of the state's interests, and the Supreme Court found that this justification was compatible with the understanding of "state interests". The judge emphasised that the jurisdiction of the Administrative Cassation Court of the Supreme Court also included consideration of cases related to obtaining permits for special water use by business entities.

The speaker noted that prosecutors often challenge the decisions of local councils to approve urban planning documents at the local level (detailed area plans). For example, in its decision of 16 March 2023 in case no. 460/3890/20, the Supreme Court emphasised that the use of coastal protection zones in violation of the legal regime of these areas established by law may lead to pollution and clogging of surface waters, loss of water content and depletion of the water body, which will affect the ability to meet the needs of a large number of people. She also added that it is not uncommon for area plans to be challenged in court on the grounds that the community is denied access to water bodies, river and lake banks, which is illegal.

Issues related to violations of the regime of use of water protection zones and protection of water resources often arise in court when considering cases challenging administrative acts of regulatory authorities, including orders to eliminate violations, etc. In such cases, the administrative court reviews the legality of the relevant orders issued by the public authorities in the exercise of their control (supervisory) functions.

Nataliia Kovalenko also outlined the issues of protecting surface water bodies from pollution and contamination, preserving their water content, establishing water protection zones (coastal strips) of these bodies, the regime of their use as water fund lands, and their ownership or use. She noted that coastal protection strips should not be granted not only for ownership but also for use, for example, for agricultural activities, as such economic activities are likely to pollute water bodies with various pesticides.

The judge also spoke about cases of abuse by public authorities when, during construction work, it was indicated that there was a coastal protection zone, but the river was closed in a bypass collector (Supreme Court resolution of 19 September 2018 in case No. 463/1230/16-a).

In addition, the speaker drew attention to a case concerning the discharge of ballast water into water bodies (Supreme Court resolution of 19 October 2020 in case No. 420/4129/19). In this case, the Court confirmed that the State Environmental Inspectorate has the authority to detect, record, file a claim and recover damages in the event of pollution of inland sea waters and the territorial sea of Ukraine as a result of the discharge of ballast water from a ship into the water area in excess of the maximum permissible concentrations.

The event was organised at the initiative of the Professional Association of Environmentalists of the World (PAEW), the Geological Investment Group and the Office of Sustainable Solutions.