Specific aspects of the legal regulation of liability for violations in the field of conservation of aquatic biological resources and their habitat

Semenova Irina Vladimirovna Junior Researcher; Sector of Environmental, Land and Agrarian Law; Institute of State and Law of the Russian Academy of Sciences 10 Znamenka Street, Moscow, 119019, Russia ssem.irina@gmail.com Other publications by this author

Since ancient times, aquatic biological resources (hereinafter referred to as UBR or aquatic biological resources) have been one of the main sources of food for humans. Settlements, cities, and then states were formed near reservoirs, and trade centers were formed. As M.M. Brinchuk notes, nature and its objects should be perceived by people not only as the basis of their vital activity, but also in a broader sense – valued as a resource, thanks to which sustainable development of society is possible ^{[1, p. 16]}. The emergence of improved technologies that promote the development of science, the study of the natural resources of our planet and the possibilities of using them for human benefit and without harm to the environment, opens up huge opportunities for a sustainable future for humanity. In conditions of limited natural resources (despite the fact that some of them are renewable), human civilization needs to develop mechanisms that make it possible to rationally use natural resources in various parts of the planet. In particular, the water bodies surrounding the Antarctic continent are rich in biological resources, which served as an incentive for detailed human exploration of this part of the planet, despite its harsh climatic conditions ^{[2, p. 8]}. With the progressive transformation of human civilization, there is a risk of irreparable damage to wildlife and their habitat. Unregulated fishing and pollution of water bodies leads to the depletion of biological resources. According to statistical data, since 1990, about 25% of the UBR has been used excessively, which poses a threat of extinction of their reserves ^{[3, p. 217]}.

The importance of implementing measures aimed at preserving aquatic biological resources and their habitat is beyond doubt. However, the requirements established by law are not always respected. In 2024 alone, Rosrybolovstvo filed lawsuits in the amount of almost 205 million rubles for damage to aquatic bioresources and their habitat, and over 91 thousand violations in the field of fishing and conservation of fisheries were identified, this figure is 2% more compared to similar data for 2023 (Official website of the Federal Agency for Fisheries [Electronic resource]. URL: https://fish.gov.ru/main-news/2025/03/13/ilya-shestakov-v-2024-godu-effektivnost-raboty-ryboohrany-vyrosla-blagodarya-ispolzovaniyu-bespilotnikov-i-czifrovym-resheniyam/?ysclid=mbs3vlldj9871047350 (accessed: 06/11/2025)). In this regard, consideration of the legal regulation of liability for violations of legislation in the field of conservation of biological resources is of particular relevance. Because it is necessary not only to determine how to preserve these natural resources and their habitat, but also to ensure that the established requirements are met, including liability measures.

Article 52 of Federal Law No. 166-FZ of December 20, 2004 "On Fisheries and Conservation of Aquatic Biological Resources" (Rossiyskaya Gazeta. 2004, No. 284.) (hereinafter referred to as the Law on Fisheries), which defines the legal aspects of liability for violations in the field of fisheries and conservation of marine resources, contains a reference to the current Russian legislation in this area. The norm in question does not contain any indication of the types of liability and does not specify the normative legal acts that establish it ^[4]. Aquatic biological resources are an integral part of the ecosystem of our planet, and therefore their quality of life, ability to reproduce, sustainable development and the possibility of preserving their biodiversity are influenced by various factors that are not always directly related to fishing. In particular, the construction of plants and factories near water bodies that are the habitat of VBR, the release of toxic waste into the aquatic environment, drainage of reservoirs, and much more. The current Russian legislation contains a variety of legal norms limiting the adverse anthropogenic impact on wetlands and their habitat – Federal Law No. 7-FZ of January 10, 2002 "On Environmental Protection" (Federal Law of the Russian Federation. 2002. No. 2. From vol. 133.), Federal Law of November 23, 1995 No. 174-Federal Law "On Environmental Expertise" (Federal Law of the Russian Federation. 1,995. No. 48. From vol. 4556.), the Water Code of the Russian Federation (SZ RF. 2006. № 23. From vol. 2381.), etc. Accordingly, their violation entails legal liability. Since these illegal acts are quite extensive, within the framework of this article it seems advisable to consider the specifics of legal responsibility for the commission of offenses in the field of the conservation of wildlife and their habitat.

Conservation of aquatic biological resources consists in maintaining or restoring these aquatic aquatic organisms to a state in which their sustainable extraction is possible and biological diversity is preserved. The main measures by which the conservation of UBR is implemented are their study, protection, rational use and protection of their habitat. Chapter 6 of the Law on Fisheries specifies these measures and establishes the legal basis for fisheries reclamation, artificial reproduction of aquatic biological resources, acclimatization of aquatic biological resources, the establishment of requirements for the conservation of aquatic biological resources and their habitat in urban planning and other activities, etc. The implementation of measures aimed at the conservation of biological resources, without observing the established procedure may cause damage to irreparable damage to the biological diversity of aquatic biological resources and their habitat. In particular, acclimatization is an activity aimed at introducing valuable species of marine life into water bodies in which they had not previously inhabited or had lost their importance. As N.S. Kudelkin notes, earlier, when deciding on the issue of acclimatization, it was mainly investigated what effect the introduced species could have on valuable biological resources in accordance with the Procedure for the Implementation of Measures for the Acclimatization of Aquatic Biological Resources (hereinafter referred to as the Procedure), approved by Rosrybolovstvo Order No. 433 dated May 6, 2010 (Rossiyskaya Gazeta. 2010. № 141.). However, in order to preserve these natural resources, it is necessary to eliminate the possibility of extinction and provide protection for all types of VBR ^{[5, p. 117]}. In this regard, by Order of the Ministry of Agriculture of the Russian Federation No. 53 dated February 10, 2020 (The Official Internet Portal of Legal Information www.pravo.gov.ru 2020. No. 0001202003230052) approved a new Procedure, according to which, when making a decision on acclimatization, it is necessary, among other things, to "assess the impact of the acclimatization facility on the inhabitants of water body aquatic bioresources".

Article 8.36 of the Code of Administrative Offences of the Russian Federation (hereinafter referred to as the Administrative Code of the Russian Federation) (Federal Law of the Russian Federation. 2002. No. 1 (Part I). With vol. 1.) provides for liability for violation of the rules of resettlement, acclimatization or hybridization of wildlife and aquatic biological resources. Environmental safety, as well as relations arising in the field of biodiversity protection, are the object of this offense ^{[6, p. 64]}. The legal basis for the norm in question is Article 25 of Federal Law No. 52-FZ of April 24, 1995 "On Wildlife" (hereinafter referred to as the Law on Wildlife) (Federal Law of the Russian Federation. 1995. No. 17, Article 1462), Article 46 of the Law on Fisheries, as well as the above-mentioned Procedure ^[7]. It should be noted that article 25 of the Law on Wildlife does not contain the term "acclimatization" in its name, however, it is mentioned in the text of the article. In our opinion, the title of the article under consideration should be stated in the following wording: "Acclimatization, resettlement and hybridization of objects of the animal world", since at the moment, it may seem that the legislator identifies the concepts of acclimatization and resettlement, which may create terminological collisions. In relation to the WBR, this article is responsible for violating the procedure for implementing measures to acclimatize the WBR, since there are no legal norms governing their relocation or hybridization, with the exception of the prohibition of the release into water bodies of hybrids of aquatic biological resources obtained as a result of crossing aquatic biological resources of various species and genera (paragraph 27 of the Order).

Violation of the rules for the protection of aquatic biological resources entails both administrative liability (art. 8.38 of the Administrative Code of the Russian Federation) and criminal liability (art. 257 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation). (Law of the Russian Federation. 1996. No. 25. With vol. 2954.). As noted by A.I. Chuchaev, the acts provided for in these articles coincide on the grounds of the objective side, however, they differ in relation to the subject of the offense and its consequences. Illegal actions that fall under the qualification of Article 8.38 of the Administrative Code of the Russian Federation pose a threat of consequences in the form of mass death of livestock, destruction of significant amounts of feed stocks or other serious consequences, while criminal encroachment, according to Article 257 of the Criminal Code of the Russian Federation, entails the actual occurrence of these consequences ^{[8, p. 347]}. At the same time, the names of the legal norms under consideration are formulated more broadly than the provisions contained in them, since they contain a specific but rather limited list of acts, the commission of which, if other signs coincide, falls under the qualification of these articles ^{[9, p. 110]}. The objective side of the offenses under consideration consists of: 1) alternative acts – production of wood alloy, construction of bridges, dams, transportation of wood or other forest resources, carrying out explosive or other work, as well as the operation of water intake facilities and pumping mechanisms in violation of the rules for the protection of aquatic biological resources; 2) the possibility of occurrence (Code of Administrative Offenses of the Russian Federation) or the occurrence of certain consequences (Criminal Code of the Russian Federation) – mass death of fish or other aquatic animals, significant destruction of food stocks or other serious consequences; 3) the causal relationship between the act and the consequences ^{[10, p. 31]}. It is worth paying attention to the fact that these consequences are evaluative in nature, moreover, there is no explanation from the legislator about what is meant by "significant destruction of feed stocks." As O.L. Dubovik notes, "the destruction and deterioration of such a quantity (volume) should be considered significant, in which the living conditions of fish and other aquatic animal populations significantly deteriorate or the ability of aquatic plants, aquatic invertebrates, etc. to reproduce themselves is lost" ^{[11, p. 286]}. In our opinion, it is necessary to give an official interpretation of these evaluative concepts in order to facilitate the work of law enforcement officers.

When analyzing the titles of Articles 8.33, 8.38 and 8.48 of the Administrative Code of the Russian Federation, the question arises about the correctness of their names. These articles fix the following administrative offenses: violation of the rules for the protection of the habitat or migration routes of wildlife and aquatic biological resources; violation of the rules for the protection of aquatic biological resources; non-compliance with the requirements for the conservation of aquatic biological resources and their habitat. The Law on Fisheries does not contain the concepts of the terms "protection of aquatic biological resources" or "protection of their habitat". Based on the concept of "conservation of aquatic biological resources", they stand out among the measures by which the conservation of these natural resources is ensured, that is, protection and conservation are correlated as a part and a whole. However, there are no legal norms detailing what is included in the rules for the protection of the UBR itself, and what relates to the rules for the protection of their habitat. As N.Y. Vasilyeva notes, the absence of a list of violations included in the unlawful act provided for in Article 8.33 of the Administrative Code of the Russian Federation hinders the formation of consistent law enforcement practice ^{[12, p. 9]}.

According to the Review of the law enforcement practice of Rosrybolovstvo in the field of conservation of aquatic biological resources and their habitat (Official website of the Federal Agency for Fisheries [Electronic resource]. URL: https://fish.gov.ru/wp-content/uploads/documents/profilaktika_narushenij_obyazatelnykh_trebovanij/obobshenie_prav-praktiki.pdf?ysclid=mbjmac1rzy364672315 (date of appeal: 06/05/2025)) illegal actions subject to the sanctions of Article 8.33 of the Administrative Code of the Russian Federation in 2017 included:

- "the placement, construction, reconstruction of facilities and carrying out various types of work in a water body that have an impact on aquatic biological resources and their habitat is not coordinated with the fish protection authorities;

- carrying out dredging operations, extraction of GHG and minerals in the water area in violation of the rules for the protection of aquatic biological resources;

- production of wood alloy, construction of bridges, dams, transportation of wood or other forest resources, carrying out blasting or other work in violation of the rules for the protection of aquatic biological resources;

- waste water discharge into water bodies of fishery importance that is not coordinated with the fish protection authorities;

- discharge of harmful substances into water bodies of fisheries importance and fish protection zones, the maximum permissible concentrations of which in the waters of water bodies of fisheries importance have not been established;

- discharge of wastewater into water bodies of fishery importance in excess of VAT;

- operation of water intake facilities and pumping mechanisms in violation of the rules for the protection of aquatic biological resources;

- carrying out other work in violation of the rules for the protection of aquatic biological resources without serious consequences."

At the same time, acts similar to the requirements of art. 8.33 of the Administrative Code of the Russian Federation, but accompanied by the threat of mass death of livestock, destruction of significant amounts of feed stocks or other serious consequences, were qualified under art. 8.38 of the Administrative Code of the Russian Federation. In this connection, the question arises why the names of the articles under consideration do not correspond to each other and art. 8.33 of the Administrative Code of the Russian Federation prohibits violations in the field of habitat protection and migration routes of the Russian Federation, while art. 8.38 of the Administrative Code protects aquatic biological resources themselves from illegal acts, but at the same time for the law enforcement officer (according to this Review) both articles they have a similar objective side.

The title of Article 8.33 of the Administrative Code of the Russian Federation indicates the protection of the habitat or migration routes of wildlife and wildlife, but its disposition actually covers violations of the rules for the protection of aquatic biological resources themselves. Article 8.38 of the Administrative Code of the Russian Federation, according to the name, should protect aquatic biological resources directly, but its disposition is also related to violations affecting their habitat. This leads to terminological confusion and the lack of a clear distinction between the objects of legal protection. As rightly noted in the Rosrybolovstvo Review, the law enforcement officer is forced to be guided not by the formal characteristics of the compounds, but by the presence or absence of a threat of serious consequences, which is an estimated category.

The analysis of judicial practice confirms the terminological conflict and the lack of a clear distinction between the objects of legal protection in Articles 8.33 and 8.38 of the Administrative Code of the Russian Federation. In particular, in the case of pollution of the bay's water area, the company's actions were qualified according to the rules on liability for violations of the rules for the protection of aquatic biological resources (Resolution of the Arbitration Court of the Far Eastern District dated 05/27/2025 No. F03-1363/2025), although by their nature they equally violated the rules for the protection of their habitat. The Court of First Instance, during the consideration of this case, also notes the established judicial practice in this matter, stating the following position: "According to the legal positions set out by the Constitutional Court of the Russian Federation in Resolution No. 12-P dated 06/02/2015 and Ruling No. 1743-O-O dated 12/21/2011, as well as by the Supreme Court of the Russian Federation in decision No. AKPI15-249 of 04/22/2015, the exceptional property of the environment to independently neutralize negative anthropogenic impact and the features of environmental damage that cannot be fully objectively assessed (in particular, due to the remoteness in time of the consequences of the offense), determine the need to apply a conditional method for determining its size, used in the methods of calculating the amount of harm" (Decision of the Arbitration Court of Primorsky Krai dated 09.12.2024 in case no. A51-19355/2024).

In turn, the decision of the Supreme Court of the Russian Federation noted that the same actions may contain signs of both offenses (Resolution of the Supreme Court of the Russian Federation No. 82-AD13-7 dated 02/24/2014). For example, the discharge of wastewater into a water body of fisheries significance without approval from the fisheries protection authorities formally falls under art. 8.33 of the Administrative Code of the Russian Federation (as a violation of the rules of habitat protection), but if this poses a threat of mass death of fish, then the act should be qualified under art. 8.38 of the Administrative Code of the Russian Federation. The court found that the discharge of waste does not fall under the actions directly listed in art. 8.38 of the Administrative Code (wood rafting, dam construction, etc.). This violation relates to Article 8.13 of the Administrative Code of the Russian Federation (violation of the rules for the protection of water bodies). The Court pointed out the need to establish the presence or absence of a threat of serious consequences as a key criterion for distinguishing, but in practice this criterion is often ignored. During the consideration of this case, equally important clarifications were given regarding the objective side of this act. In particular, the court points out that the objective side of the composition of the administrative offense provided for in Article 8.38 of the Code of Administrative Offenses of the Russian Federation is expressed, in particular, in the operation of water intake facilities in violation of the rules for the protection of aquatic biological resources, if these actions may lead to the mass death of fish or other aquatic animals, the destruction of significant amounts of feed stocks or other grave consequences (Resolution of the Supreme Court of the Russian Federation No. 82-AD13-7 dated 02/24/2014).

It can be concluded that law enforcement practice reveals serious problems in distinguishing the composition of administrative offenses provided for in Articles 8.33 and 8.38 of the Administrative Code of the Russian Federation. As the analysis of the Mosvodostok State Unitary Enterprise case shows (Moscow City Court Decision No. 7-15908/2021 in case No. 7-15908/2021), the same actions may contain signs of both offenses, which creates grounds for legal uncertainty and arbitrary application of administrative responsibility. In this case, the fact of the discharge of untreated wastewater into the Chachenka River (a water body of fisheries importance) was established, which led to pollution of the water body and deterioration of the habitat of aquatic biological resources. The actions of the State Unitary Enterprise Mosvodostok were qualified under Article 8.33 of the Administrative Code of the Russian Federation, although they contained signs of a potential threat of serious consequences, which could serve as a basis for qualification under Article 8.38 of the Administrative Code of the Russian Federation.

An analysis of the dispositions of Articles 8.33 and 8.38 of the Administrative Code of the Russian Federation shows that they cover virtually the same actions. The only difference is that there is a potential threat of serious consequences, which is not always obvious to a law enforcement officer.

In our opinion, in order to avoid legal conflicts and terminological inaccuracies, it is necessary to define at the legislative level the concepts of "protection of the habitat of the Siberian Federal District", "protection of the Siberian Federal District" and specify what the rules for the protection of these natural resources include, and what relates to the rules for the protection of their habitat, for violation of which the offender is responsible, respectively., according to Articles 8.38 and 8.33 of the Administrative Code of the Russian Federation.

The name of Article 8.48 of the Administrative Code of the Russian Federation, in our opinion, is formulated too broadly, since the conservation of wetlands and their habitat includes a fairly extensive range of requirements, starting with prescriptions for the rational use of these natural resources and continuing with their study. However, the provisions of the norm in question determine the punishment for non–compliance with the requirements established by art. 50 of the Law on Fisheries, which are detailed in the Decree of the Government of the Russian Federation dated April 29, 2013 No. 380 "On Approval of the Regulation on Measures for the Conservation of Aquatic Biological Resources and their Habitat" (hereinafter referred to as Regulation No. 380) (NW RF. 2013. No. 20. Art. 2476.) and Decree of the Government of the Russian Federation dated April 30, 2013 No. 384 "On Approval by the Federal Agency for Fisheries of the Construction and Reconstruction of Capital Construction Facilities, the introduction of New Technological Processes and Other Activities affecting aquatic Biological Resources and their Habitat" (Federal Law of the Russian Federation. 2013. No. 20, art. 2480.). The title of art. 50 of the Law on Fisheries, as well as its provisions, contain indications of a certain type of activity, which includes the requirements assigned to it. Thus, in order to eliminate terminological inaccuracy, we propose to amend the title of Article 8.48 of the Administrative Code of the Russian Federation and the title of Regulation No. 380 by adding the words "in carrying out urban planning and other activities", which will bring them into uniformity with art. 50 of the Law on Fisheries.

At the same time, according to the Report on Law Enforcement practice for Federal state control (supervision) in the field of fisheries and conservation of aquatic biological resources for 2023, the most typical violations are acts for which administrative responsibility is provided for in Articles 8.48, 8.33 and 8.38 of the Administrative Code of the Russian Federation (Official website of the Federal Agency for Fisheries [Electronic resource]. URL: https://fish.gov.ru/wp-content/uploads/2024/12/doklad_prav_praktika_2023_3.pdf (date of request: 06/05/2025)). In accordance with these data, it can be concluded that these legal norms are most often used by a law enforcement officer in this area, and therefore the elimination of the terminological inaccuracies considered is particularly relevant.

In modern realities, our planet is faced with many global crises and challenges that threaten the sustainable development of human civilization ^{[14, p. 106]}. Conservation of aquatic biological resources for present and future generations is one of the most important tasks of the state. Russian legislation contains a variety of legal norms aimed at ensuring its implementation, including liability measures. At the same time, some terminological inaccuracies contained in the Administrative Code of the Russian Federation, the Criminal Code of the Russian Federation, and regulatory legal acts of the executive authorities of the Russian Federation and constituent entities of the Russian Federation hinder the successful implementation of these legal norms in practice. This is due to the lack of specification of some terms, which complicates the work of law enforcement officers and excludes the possibility of forming a uniform judicial practice in this area.

The article is published in the version approved by the reviewers (after receiving a positive review recommending the manuscript for publication) with corrections made by the author (after receiving the editor’s comments, if any).
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