Decentralization of authorities’ power in the field of water management: legal aspect
Muravska M. Decentralization of authorities’ power in the field of water management: legal aspect
The reform of authorities’ decentralization is an actual task in Ukraine. According to the part 3 of article 4 of Charter of Local Self-Government the order of distribution of the authorities’ powers has to be based, in particular, on the principle of subsidiarity. According to this principle as a rule the powers are made by the authorities, who are closest to citizens, i.e. by local authorities.
While determining of authorities’ powers of water management in Ukraine it is necessary to take into account demands of EU Water Framework Directive. From one side according to the paragraph 18 of EU Water Framework Directive’s preamble this Directive should provide for such a framework and coordinate and integrate, and, in a longer perspective, further develop the overall principles and structures for protection and sustainable use of water in the Community in accordance with the principles of subsidiarity. At the same time, from another side, due to the fact that according to the article 13 of the Water Code of Ukraine state water management is based on the basin principle and not on the administrative-territorial principle, it is necessary to answer how should be used the principle of subsidiarity while determining of authorities’ powers of water management.
An interesting experience on the division of powers between state authorities and local authorities was implemented in the legislation of Spain. The principle of autonomy was enshrined in the art. 137 of the Constitution of Spain. It means that all autonomous communities have autonomy to solve the tasks concerning their interests. At the same time powers of state and local authorities in water management were enshrined in the Constitution of Spain as an important object of legal regulation.
The priority in water management in Spain was given to state authorities and not to local authorities. The Constitutional Court of Spain explained the priority of state water management this way: 1) according to the logic of administrative management it is not rational to determine the legal regime and management of each water body and it’s inflows taking into account the borders of each autonomous community. Because it’s obvious that water use and exploitation of hydraulic structures that are done on the territory of one of them, influence the possibility to use water of the same water bodies that flows on the territory of others autonomous communities; 2) on technical point it’s obvious that water of one river basin are forming a whole that should be managed evenly. That is why autonomous communities of Spain realize exclusive authority of water management in river basins that are situated entirely on their territory.
At the same time the Spain Law "On Water" does not deny the probability of existing of competing powers between, in particular, basin authorities and autonomous community. But they have to coordinate such powers if they arise while water management, and take into account the possible impact on spatial planning.
As a result of the research there were made recommendations to improve the current legislation of Ukraine. In particular as a result of the reform of authorities’ decentralization the effective mechanism of cooperation between basin authorities and local governments should be enshrined in the Water Code of Ukraine.
Key words: decentralization, the principle of subsidiarity, the basin principle, powers, authorities, water management, foreign experience.