On 21 November 2017, the President signed Decree No. 381/2017 “On Additional Measures for the Development of Forestry, Rational Use of Nature and Preservation of Objects of the Nature Reserve Fund”1. However, the analysis of this document questioned its professionalism, feasibility, as well as the possibilities of its practical implementation. Some of its provisions can, on the contrary, harm the environment.
The grounds for adopting the Decree are not substantiated.It is obvious that during the preparation of the Decree, the existing state decisions in this field and the analysis of their implementation were not taken into consideration.
The responsibility for the implementation of the Decree lies with the Cabinet of Ministers of Ukraine. However, the President of Ukraine together with the CMU is the subject of legislative initiative, and therefore, can propose the adoption of laws to the Verkhovna Rada of Ukraine. What goal is pursued by the President of Ukraine when he gives such instructions to the CMU, guided by general wording, as a result of which draft laws can be prepared that are very different from was meant in the preparation of this Decree?
Below is a list of the controversial parts of the Decree:
1. Conservation areas will be controlled by those from whom they usually have to be protected
2. Will reserves and national parks finally own land? We wonder how it will happen.
3. The reserve fund will not acquire new territories and objects
4. Emerald network will be legalized, but the law on it is already being developed anyway
5. “State in the State” for watermen and foresters
6. Watermen will annually make money on clearing riverbeds
7. Foresters will destroy steppes again
8. Information on felling plans will be further concealed
9. Now foresters should simultaneously get united and disunited
Conservation areas will be controlled by those from whom they usually have to be protected
The Decree instructs to draft a bill on the delegation of certain powers to the local government for state supervision (control) over compliance with the legislation in the field of environmental protection, rational use, reproduction and protection of natural resources, in particular, monitoring compliance with the regime of territories and objects of the nature reserve fund of local significance.
Transfer of control over compliance with the law in the NRF (Nature Reserve Fund) to the local government will lead to the loss of such control. Local self-government bodies do not have the corresponding knowledge and capabilities. In addition, most NRF is located outside populated areas. The practice of violation of the law in the territories of the NRF in most cases results from the activities of local authorities and officials in the regions. Moreover, the Decree contradicts complex decisions of the Decree as of 23.05.2005 No. 838/2005 “On Measures for Further Development of Nature Conservation”; directly contradicts current, although not implemented, clause 1.4 of the Decree of the President of Ukraine No. 611/2009 as of 14 August 2009 “On Additional Measures for the Development of Nature Conservation in Ukraine”
Will reserves and national parks finally own land? We wonder how it will happen.
Ensuring the registration of the rights to use the land plots of territories and objects of the nature reserve fund, completing the work on the allocation of land to the institutions of the nature reserve fund, accelerating the transfer of forest land plots to the permanent use of biosphere and nature reserves, national parks – these are the issues that were included in all previous decrees and decisions of the Verkhovna Rada of Ukraine in relation to the NRF234. However, such work requires transparent and targeted funding, as it is accompanied by a large number of problems, the solution of which is not provided by the Decree. For example, obtaining approvals with all adjacent land users, which in practice delays the process, there also may be a large number of lawsuits to challenge the boundaries of the territories of the NRF.
The reserve fund will not acquire new territories and objects
The Decree entrusts the oblast administrations to intensify their work on preparing and submitting, in accordance with the established procedure, proposals for expanding the network of territories of the nature reserve fund. This point has already been mentioned in the previous decrees of the President of Ukraine concerning the protected areas56and has not been implemented in both cases, since previously there were no mechanisms for this either.
Before including this issue in the Decree, it was necessary to assess the implementation of previous documents containing similar requirements and ensure their implementation (nowadays more than a half of the previously approved proposals have not been implemented). The total volume of known proposals for the determination of the territories of the NRF is 3-4 thousand. There is no need to offer something new. Moreover, all previous proposals are not implemented due to a number of procedural difficulties, primarily due to the need to coordinate the process of territory determination with the users of plots. The Decree does not provide the mechanisms to eliminate these difficulties, so even by proposing additional protected areas, we will not ensure the fact that they will be established.
Also, by its Resolution as of 6 August 2014 No. 385, the Cabinet of Ministers of Ukraine approved the State Program of Regional Development of Ukraine for the period until 2020. This document notes that by 2017, 6733 thousand hectares of the NRF are to be created in Ukraine and by 1921 – 9095 thousand hectares. That is, the dynamics of the NRF part should make up 6.1% in 2013, 11% in 2017 and 15% in 2021. These figures are detailed in the context of the oblasts. However, the state of implementation of such numerically defined requirement to oblasts authorities is horrifying. According to EPL research, only 3% of the planned volume of protected areas were created in Ukraine in 2015, and in 2016 – 1.5%!
In general, according to the Decree, amendments to the legislation should be made, which will make it possible to simplify the procedure of granting (allocating) land plots of state and communal property for permanent use to the institutions of the nature reserve fund. However, the Decree does not explain how this should happen. At the same time, this issue was included in the Decision of the Committee of the Verkhovna Rada of Ukraine on Ecopolitics No. 14/2 as of 12.05.2008 and for the last decade lawyers have not found the possibility to implement this idea, which is obviously good.
Emerald network will be legalized, but the law on it is already being developed
A positive moment in the text of the Decree is the instruction to develop a draft law on the preservation of natural habitats and rare and endangered species of natural flora and fauna in Europe, the introduction of a monitoring system of the environmental status of such habitats and species of natural flora and fauna, which is a requirement of the Association Agreement with the EU. Due to this law, it will be possible to lay down legislative grounds for the functioning of the Emerald network, which, unfortunately, for the time being remains only on paper. It is strange that the Ministry of Environment and Natural Resources has been drafting the law for more than a year, so it would be advisable to support this law or provide an alternative law.
Forestry and water management
“State in the State” for watermen and foresters.
The Decree provides elaboration (within 2 weeks) a draft law on improving the system of funding and development of forestry and water management, in particular, through the establishment of a state forestry development fund and a state fund for the development of water management, determining the sources of their funding and allocation of funds, including the possibility of including in such funds the rent for special use of forest resources and the rent for special use of water – by 1 December 2017.
It is about tax changes that will not have been made by 1 December. Also, establishments of such funds may pose certain risks for the environment. Polish experience has shown that establishment of the forest fund from the fees taken for forest felling led to its large-scale increase and actual suspension of the creation of new objects of the nature reserve fund. Also, it is doubtful whether it is necessary to set up a separate water management fund, in the EU countries water management fund is a part of the nature reserve fund.
Watermen will annually make money on clearing riverbeds
The Decree instructs oblast administrations to ensure development of regional programs for the implementation of clearing and regulating riverbeds, primarily the rivers of the Carpathian region, improving the ecological condition of water bodies in order to protect citizens and populated settlements from harmful water impacts, and maintaining the stability of riverbeds.
This is the least substantiated item, which entails the largest number of negative consequences for the environment. The regulation of the riverbeds is an old Soviet shortcoming, incompatible with the sustainable development of regions and environmental protection. Unjustified drainage of marshes, rectification and sewage of rivers, the construction of reservoirs and dams, as well as the plowing and deforestation of river basins within the framework of the development of the national economy were the primary causes that has broken natural balance throughout the country. Dehydration of territories, shallowing of rivers, lack of spring floods, changes in micro- and mesoclimate observed in all regions are partly caused by these actions. Clearing riverbeds will not lead to watering of the territories; it will only lower the level of groundwater. The state needs a comprehensive program to water the marshes and conserve river ecosystems.
Regulation of river beds in the Carpathian region can lead to the destruction of natural ecosystems and disappearance of the majority of rare species of fish that are protected at the international level.
All river valleys are included in the ecological network and are the place of the preservation of habitats and the species of the Emerald network, which includes the biggest river systems in Europe. Any actions aimed at interfering with natural ecosystems should be checked, scientifically validated and undergo environmental impact assessment.
At the same time, clearing riverbeds, which still silt up every year, is the most convenient channel for spending budgetary funds in the State Water Agency system and oblast environmental funds. Without solving the systemic problems associated with the state of rivers and their clearing, on which dozens of millions of UAH are spent, there will be no positive effect in improving their ecological state.
In addition, this paragraph contradicts water legislation regarding the implementation of the Water Framework Directive, which ensures the elaboration of a management plan for each river, which will determine the list of actions that can be taken with regard to a certain river to achieve a good condition of rivers. It is no secret that dredging works are used as a disguise for small rock, gravel and sand excavation.
Foresters will destroy steppes again
The Decree instructs to approve the program “Forests of Ukraine – 2030” and intensify activities on the reproduction of forests, including increase in their areas, afforestation of lands unsuitable for the use in agriculture, coastal strips of water bodies, creation of economic incentives for expanded reproduction of forests and improvement of forest management efficiency.
It is a very dangerous point, as the program “Forests of Ukraine” envisages increase in the area of forests through artificial afforestation, which in accordance with regional forestry norms is planned only in the steppe zone in natural steppe areas in the beams and on the slopes. Such plans directly threaten with the complete destruction of 1/3 of all animals and plants listed in the Red Book of Ukraine. The discussion of this issue took place at a special meeting in the Ministry of Environment and Natural Resources this year7, but its recommendations clearly were not of interest for the developers of the Decree.
In addition, creation of new forests in the steppe zone in the current climate is almost impossible, and therefore this issue is a channel for the distribution of budgetary resources, as this is the way to annually plant “the forest” again and again in the same plots, reporting areas of increased forest cover. The corresponding scheme was revealed by the inspectors of the Main Control and Revision Office a few years ago8.
Also, the most environmentally friendly and safest way to enlarge the forest area in Ukraine was ignored once again – the development of a simplified procedure to include self-contained forests on former agricultural lands in the forest fund.
Information on felling plans will be further concealed
The Decree instructs to ensure the transparency of information on the special permits issued for the use of forest resources, in particular, felling licenses and forest permits, as well as information on changing the purpose of the forest land plots.
This means continuing the practice of concealing environmental information in the State Forrest Agency system. Without public disclosure of forest management projects and forest inventory materials, publication of felling licenses will not change the situation and does not provide an opportunity to effectively monitor their appropriateness. Transparency will not be improved either.
Now foresters should simultaneously get united and disunited
The Decree instructs to improve the efficiency of forest management, without any restrictions of the management and financial and economic independence of state forestry enterprises. At the same time, recently approved Forestry Reform Strategy directly contradicts this point, since it envisages transformation of forestry enterprises network into a single corporation9. Thus, the ruling of the CMU affirms one thing, while the presidential decree – another one.
Thus, what is the purpose of the Decree? To show that the President is also concerned about the state of protecting the environment of Ukraine, or to support more schemes for the distribution of the state budget?
The abovementioned shows that the implementation of all these points without the procedure of the Strategic Environmental Assessment will become an extremely thoughtless non-state step. Is it possible to expect some positive things from the Decree, which consists of issues that were not implemented in all similar previous decrees and schemes (including those that were disclosed in the past in the audits of the Main Control and Audit Office)? Taking into account the presence of a number of schemes in the Decree, it can be assumed that it will bring much more harm to nature than good.
Petro Testov, EPL environmental scientist
Kateryna Polianska, EPL environmental scientist
Sofiya Shutiak, EPL senior lawyer
2 The decision of the Verkhovna Rada Committee on Environmental Policy, Nature Management and Elimination of the Consequences of the Chornobyl Catastrophe No. 14/2 as of 12.05.2008.
3 The Decree of the President No. 838/2005 “On Measures for Further Development of Nature Conservation in Ukraine” as of 23 May 2005.
4 The Decree of the President No. 611/2009 “On Additional Measures for the Development of Nature Conservation in Ukraine” as of 14 August 2009.
5 The Decree of the President No. 838/2005 “On Measures for Further Development of Nature Conservation in Ukraine” as of 23 May 2005.
6 The Decree of the President No. 611/2009 “On Additional Measures for the Development of Nature Conservation in Ukraine” as of 14 August 2009.