Water management vs. fisheries management – legal considerations

Gospodarka wodna

There is an ongoing discussion in the media about how the activities related to the so-called “”new” government are being implemented. maintenance of waters may affect the state of the aquatic environment, and what effects such activities may have on other uses of the same resources, such as fisheries management, of which angling is a part. Unfortunately, the debate forgets about the legal conditions of the actions taken and the resulting limitations. In turn, this leads to the suspension of considerations in the proverbial vacuum. Therefore, it is worth recalling the legal relationship between water management and fisheries management, and how – sometimes opposing – interests can be taken into account.

Sustainable development and water and fisheries management

It is fundamental to establish the correct relationship between water management and fisheries management to recall the legal basis for their execution. In the former case, the provisions of the Law of July 20, 2017 are essential. Water Law (Journal of Laws 2023, item 1478). In accordance with the provisions of Art. 9 paragraph. 1 of this legal act “Water management shall be carried out in accordance with the principle of rational and comprehensive treatment of surface and groundwater resources, taking into account their quantity and quality.”

On the other hand, according to paragraph. 2 of this provision “Water management shall take into account the principle of common interests and require the cooperation of public administration, water users and representatives of local communities to the extent that maximum social benefits are obtained.” Thus, from the cited solutions defining the principles of water management, it follows that the evaluation of activities that may affect management must be comprehensive.

In contrast, according to the provisions of Art. 2a of the Law of April 18, 1985. On inland fisheries (Journal of Laws 2022, item 883, as amended). “The protection and restoration of fish resources in the waters, except for fish species that are protected under nature protection regulations, shall be ensured by rational management of resources, including taking measures to maintain, restore or recover the proper condition of these resources and the natural relations between their various elements, in accordance with the principles of sustainable development.”

In the solutions cited, it is important to note the reference to the principle of sustainable development arising from Article 5 of the Polish Constitution. Therefore, if the juxtaposition of water or fisheries management activities with the principle of sustainable development shows that it remains in line with the directive, it is reasonable to assume that they can be implemented.

However, if the planned activities cannot be considered sustainable, e.g. due to the negative impact on fisheries management, then they should be assumed to be illegal due to a violation of the principle of sustainability. Therefore, all water management activities must be carried out in such a way that they do not affect the possibility of rational fishery management, for if this were the case, the planned activities would have to be considered contrary to the principles of water and fishery management. Therefore, it is very important to determine at what stage such an assessment should be carried out, and who can speak in this regard and in what form.

Proceedings affecting water and fisheries management

Analyzing the legal solutions, it should be recalled that the implementation of investments that may affect the waters where fishing is carried out is generally preceded by the need to obtain several different decisions. In this regard, it is undoubtedly difficult to overestimate the role played by decisions determining the environmental conditions for the implementation of the project, which, according to Art. 71 para. 2 of the Law of October 3, 2008. on the provision of information on the environment and its protection, public participation in environmental protection and environmental impact assessments – hereinafter referred to as the Assessment Act (Journal of Laws 203, item 1094, as amended) – are required for the planned:

  1. projects that may always have a significant impact on the environment;
  2. projects that may potentially have a significant impact on the environment.

Not all projects that may affect the environment are classified as having a potential or significant impact on the environment, so it is not always necessary to obtain such a decision. This does not mean, however, that when issuing other decisions that form the basis for the implementation of projects that may affect water or fisheries management, administrative bodies are automatically exempted from the obligation to study the environmental impact and propose such solutions that will guarantee sustainable development.

This necessity is indicated by the provision of Art. 96 par. 1 of the Assessment Law, according to which “The authority competent to accept the notification referred to in Art. 72 par. 1a, and to issue a decision required prior to the commencement of a project other than a project that may have a significant impact on the environment, which is not directly related to or does not result from the protection of a Natura 2000 area, is obliged to consider before issuing this decision and before accepting this notification whether the project may potentially have a significant impact on a Natura 2000 area.”

The quoted solution only mentions the need to study the impact of the planned project on Natura 2000 sites. However, this already illustrates the need to examine environmental impacts without limiting this obligation to only specific types of projects or administrative decisions.

This necessity is also directly indicated by the provisions of Art. 75 par. 1 of the Law of April 27, 2001. Environmental Protection Law (Journal of Laws 2022, item 2556, as amended), according to which “In the course of construction work, the investor implementing the project is obliged to take into account the protection of the environment in the area where the work is carried out, and in particular the protection of soil, greenery, natural terrain and water relations.”

On the other hand, the need to take environmental protection into account in the space planning process is indicated by the provisions of Art. 54(1)(b) of the Law of March 27, 2003. On spatial planning and development (Journal of Laws 2023, item 977, as amended). According to this provision, the decision on the location of a public purpose shall take into account the requirements for “the protection of the environment and human health, as well as cultural heritage and monuments and contemporary cultural assets.”

Thus, it is already apparent from the above exemplary overview that the need to protect the environment and, consequently, sustainable development must be taken into account at every stage of the investment process. Therefore, if the implementation of projects that form the basis of water management will adversely affect the ability to conduct fisheries management, the decisions that form the basis of their implementation should be considered to be in violation of the law due to their contradiction with the principle of sustainable development.

Participation of fishing rights holders and social organizations in administrative proceedings

In practice, however, there is a doubt as to who should uphold the principle of sustainability. Such a role should, of course, be fulfilled by administrative bodies issuing decisions that form the basis for interference with the water environment. However, fishing rights holders and those who manage fisheries on a particular body of water also have a big role to play in this regard. According to Art. 28 of the Code of Administrative Procedure, they may be parties to the ongoing proceedings. Thus, they can indicate what impact the implementation of planned investments will have on fisheries management. A similar role can also be played by social organizations that can register their participation in the proceedings under Art. 31 k.p.a.

This is important because at the initial stage of the investment process the circle of entities that can participate in administrative proceedings is the widest, and at subsequent stages it is already subject to limitation. As a result, it may be too late for fishing rights holders or community organizations to be able to participate. It is therefore very important to monitor the information contained, for example, in the Public Information Bulletin about ongoing proceedings.

Summary

Therefore, if the planned water management activities will negatively affect fisheries management, it should be considered that they should not be implemented as unsustainable. A huge role in this regard is played by fishing rights holders and social organizations, paying attention to what impact the implementation of planned projects may have on the fishing industry. In order to do so, however, they need to keep track of information about ongoing proceedings. This is because not all of them can participate.

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