Vadim Shestakov, senior lawyer of Danevych law firm

Olexandr Kripak, lawyer of Danevych law firm

Grand Guignol of Legislative Regulation

It’s hard to imagine modern farms, especially pig farms, which do not use water from artesian wells. It’s a pity but in Ukraine you have to go to great lengths and use all your creativity and strategic thinking to satisfy even this bare necessity. The matter is that Ukrainian legislators in cooperation with regulatory bodies do everything possible to «facilitate» running business in our country. A striking example is use of underground waters.

One Process — Two Permits

Drawing and use of underground waters in Ukraine is a subject of a strict state control at different levels. In the first place such regulation is guaranteed by the the Water Code of Ukraine d/d 06.06.1995 № 213/95-VR (hereafter — WC). As provided in this document, special water use is drawing of water from water bodies using facilities or technical equipment to meet drinking demands of population, also for domestic, medical, therapeutic, agricultural, industrial, transport, energetic, fishery, and other state and public requirements. It is implemented under permit (articles 48 and 49 of the said Code). As under WC water body is also a water-bearing stratum (homogeneous bedding mass of rocks, where there is always water), drawing of underground waters belongs to special water use and requires special permit.

A document, named Permit for Special Water Use,is given in accordance with the status of the water body by state administrations or councils. To use underground waters one needs to prove and coordinate their needs in water with State Service of Geology and Mineral Resources of Ukraine or subsidiary undertakings of the national joint stock company «Nadra Ukrainy» in accordance with the list, confirmed by Ministry of Environment and Mineral Resources of Ukraine. Getting and enlarging the legal operation of the permit for special water use, as a rule, is not complicated.

Obstacles appear at the other level. The case is that underground waters are not only a part of a water body (water-bearing stratum), but also have the status of mineral resources. Use of mineral resources is a subject of another legal regulation, which key regulatory legal act is Mineral Resources Code of Ukraine d/d 27.07.1994 № 132/94-VR (hearafter — MRC). Becouse of this Ukrainian agrarians have many problems: claims and actions of regulatory bodies, also risks of, say the least of it, millioned penalty duties. As a general rule one needs a special permit, named Permit for Special Use of Mineral Resourses, to draw fresh underground waters.

Getting Permit for Mineral Resources Use: Nine Circles of Hell

A process of getting this permit is very complicated. More than that, till the middle of 2011 they confirmed a new procedure for issuance of permits annually. It repeatedly coursed situations when an owner filed according to certain rules but during considering documents by all the authoritative bodies the validity of the rules expired, he got his documentation package back and had to wait for confirmation of a new procedure. While waiting, he continued using the water. It gave the regulatory bodies supplementary grounds for claims for illegal use of mineral resources.

Fortunately, in May, 2011they confirmed a general Prosedure of Issuance of Permits of Mineral Resources Use, which allows to predict to certain extend what will happen to the documents. However, it’s too early to claim that this act will ease the procedure a lot. As before the authoritative body, that gives permits to use mineral resourses (State Service of Geology and Mineral Resources of Ukraine), will get the documents, one has to get coordinated approvals at relevant regional, city, township, or village council for use of areas of mineral resources that has natural resources of local significance. Plus it’s obligatory to get coordinated approvals at the bodies of Ministry of Environment and Mineral Resources of Ukraine State Committee of Ukraine on Health, Safety and Mining Supervision. Considering such a great number of «interagents» it’s quite difficult to predict the terms of getting the permit.

What are the dangers of not getting the permit? The answer is simple: if you use mineral resources without permit, you’ll be amerced under the procedure № 389 d/d 20.07.2009 for unwarranted water use. We’ll mutter, that in this case a penalty duty can extend to more than a million UAH for a year or a year and a half.

1) Can we confine ourselves to the permit only?

2) What is «the productivity of underground water drawings»?

3) What are «one’s own domestic needs»?

4) How to defend oneself against claims? 

You can find answers for these and other questions in the full version of the interview in the magazine “Profitable Pig Production”, №3 (15) 2013.