Water Resources Act
| Basic data | |
|---|---|
| Title: | Law on the organization of the water balance |
| Short title: | Water Resources Act |
| Abbreviation: | WHG |
| Type: | Federal law |
| Scope: | Federal Republic of Germany |
| Legal matter: | Special administrative law , water law |
| References : | 753-13 |
| Original version from: | July 27, 1957 ( BGBl. I p. 1110 , p. 1386 ) |
| Entry into force on: | March 1, 1960 ( Federal Law Gazette 1959 I p. 37 ) |
| Last revision from: | July 31, 2009 ( BGBl. I p. 2585 ) |
| Entry into force of the new version on: |
predominantly March 1, 2010 |
| Last change by: |
Art. 1 G of June 19, 2020 ( Federal Law Gazette I p. 1408 ) |
| Effective date of the last change: |
June 30, 2020 (Art. 2 G of June 19, 2020) |
| GESTA : | N019 |
| Weblink: | Text of the law |
| Please note the note on the applicable legal version. | |
The Water Management Act ( WHG ) forms the main part of German water law . In the version dated July 31, 2009, it is a law in the competing legislative competence of the federal government . The WHG contains provisions on the protection and use of surface water and groundwater , as well as regulations on the development of water bodies and water management planning as well as flood protection.
history
Some of the German states had already begun in the 19th century to enact state water laws that regulated the water law within their national borders. The first foray into a nationwide water law was made during the Nazi era , but the draft of a Reich water law drawn up by the Academy for German Law was not passed until 1945. During and after the era of National Socialism, the state water laws continued to apply within their areas of application, regardless of the (federal) state borders created after 1945. With the establishment of the Federal Republic in the western occupation zones and the entry into force of the Basic Law , an authorization basis for the creation of a nationwide water law was created. The Water Resources Act was issued on July 27, 1957 and came into force on March 1, 1960. The state water laws were created on the basis of the water management law between 1960 and 1962. In the GDR , the water law 1963 replaced the old state laws that were enacted before 1945.
Effect on the legislation of the countries
Originally, the WHG was a federal framework law that was filled out by the water laws of the federal states . As a result of the federal reform, the federal government finally regulates the water balance law. Except in the case of substance or plant-related regulations, the states may deviate from the federal regulations ( Art. 72 (3 ) GG ). In addition, the WHG contains opening clauses for regulations of the federal states.
As long as the federal government does not use its statutory authorization and the states have not adapted their water laws to the WHG, the effectiveness of individual regulations is subject to legal interpretation. The WHG (and the ordinances issued for it) only supplant the previous law of the federal states where it itself specifically regulates. In the opinion of the authorities, this will not create a regulatory gap in the transition phase.
scope
According to § 2, the WHG applies to:
- surface waters
- Coastal waters
- Groundwater
on the territory of the Federal Republic of Germany.
The law does not regulate issues related to the role of waters as shipping lanes; the Federal Waterways Act , the water laws of the federal states and the Maritime Tasks Act apply to this .
Purpose setting
With the new version of July 31, 2009, the purpose of the WHG was formulated directly in the legal text for the first time:
- The purpose of this law is to use sustainable water management to protect water bodies as part of the natural balance, as the basis of human life, as a habitat for animals and plants and as a usable asset.
As the name of the law suggests, it is not a pure protective law . The term household indicates that the law regulates the management and is intended to ensure the economical use of water as a resource. Use and protection are therefore related goals of the law, without any order of precedence being established. The term protection has been linked to the water also two sides: One concern is the protection of water in its function as drinking and industrial water and as a habitat for flora and fauna (water shield object). Another concern is protection from water in the event of flooding (settlement and agricultural areas as protected objects).
Conflicts between user interests and protection requirements must be decided by the authorities on a case-by-case basis after consideration. Due to changes in the law based on the European Water Framework Directive, ecological aspects have gained in importance. By managing surface waters, a deterioration in their ecological and chemical status must be avoided and a good ecological and chemical status must be maintained or achieved. In the case of artificial or significantly modified bodies of water, the term replaces ecological potential , i.e. H. the remaining development opportunities, in each case the term ecological condition . In the case of groundwater, a deterioration in its quantitative and chemical status must be avoided, all significant and sustained trends in increasing pollutant concentrations due to the effects of human activities must be reversed and a good quantitative and good chemical status must be maintained or achieved.
With the new version in 2009, the restructuring of the Water Resources Act , which began in 2002, was completed in accordance with the requirements of the European Water Framework Directive , which had to be implemented in national law. The guideline stipulates that water management is organized according to the catchment areas of the rivers ( river basin districts ). This is a delimitation criterion that does not take into account the political national borders.
Important provisions
Uses
The WHG finally lists in § 9 which activities are uses within the meaning of the law. According to the division in § 2 paragraph 1, the waters are assigned different types of use:
| Surface waters |
|
|---|---|
| Coastal waters |
|
| Groundwater |
|
Measures that are suitable to bring about harmful changes in the physical, chemical or biological properties of the water permanently or to a not only insignificant extent , as uses , also count as catch- all measures .
Permit and permit
§ 8 WHG establishes a prohibition on uses subject to permission .
The permit grants the revocable authorization to use a body of water. It can be limited in time.
The permit grants the right to use a body of water. It is limited in time and is issued in a procedure in which those affected by the law can raise objections.
Permission and approval determine the purpose, type and extent of use and can be granted under ancillary provisions (conditions and / or conditions ). By law, they are subject to the proviso that certain additional requirements for water protection can be made subsequently . Permits and permits are entered in the water book according to § 87 WHG.
For the particularly common case of permission to discharge wastewater , the law allows very detailed requirements which - in the case of industrial wastewater, are sector-specific - adapted to the technical possibilities of wastewater treatment. These requirements, which define the state of the art , are laid down in the Waste Water Ordinance and are of great practical and economic importance. A tightening of the requirements for the discharge of treated wastewater made it z. B. necessary that most sewage treatment plants had to install an additional purification stage. This has led to increases in wastewater charges, which were received very critically in many places.
Water maintenance
Article 39 regulates the scope of water maintenance, Article 40 the maintenance burden (i.e. who has to bear the obligations and costs of water maintenance), Article 41 the special obligations in the interest of maintenance (right of access for those subject to maintenance).
Water development
Section 67 relates to water development . "Water bodies are to be developed in such a way that natural retention areas are preserved, the natural runoff behavior is not significantly changed, natural communities typical of natural areas are preserved and other disadvantageous changes in the state of the water body are avoided or, if this is not possible, compensated for."
A plan approval procedure must be carried out for the creation, removal or substantial redesign of a body of water or its banks . An environmental impact assessment (EIA) must also be carried out for this purpose . If this EIA shows that the assets to be protected according to Section 1 UVPG are not affected, the procedure can be shortened to a planning approval procedure ( Section 68 (2)).
The development of water bodies must observe the management objectives of the Water Framework Directive; Since the law was adapted to the Water Framework Directive, there has been a no deterioration , i.e. H. all measures that can worsen the chemical or ecological condition of the water are not permitted. This makes z. B. the approval of new dams and hydropower projects.
Protected areas
The responsible authorities can designate certain areas as water protection areas or medicinal spring protection areas in order to protect waters from adverse effects in the interest of the current or future public water supply or use as a medicinal spring. In the protected areas, certain actions can be prohibited or declared only permissible to a limited extent. The owners and beneficiaries of land can be obliged to tolerate certain measures.
The Water Management Act also contains comprehensive regulations for the establishment of floodplain areas ( Section 76 ) and defines special protective provisions for established floodplain areas ( Section 78 ). Comprehensive prohibitions apply here too, subject to authorization .
Handling of substances hazardous to water
The handling of water-polluting substances is one of the areas of regulation for which the Länder have no right of derogation due to their relation to facilities or substances in accordance with Art. 72 GG. From August 1, 2017, the statutory ordinances and administrative provisions issued by the federal government have largely superseded the corresponding regulations of the federal states for this area of law. At the legal level, the federal states only referred to the previous sections 19g to 19l WHG or copied them in their water laws .
The § 62 WHG defines the scope and objectives of these regulations, the required technology level and the concept of water-polluting substances. The term handling includes the storage, filling, handling, manufacture, handling and use of the substances.
The § 63 WHG determines the official preliminary examination (aptitude test, type approval) as a prerequisite for the use of the equipment and the limits of that provision.
By § 23 para. 1 no. 6 of the WHG, the federal government is authorized to issue by ordinance approved by the Bundesrat more detailed regulations on the protection of waters against adverse changes in their properties by the handling of hazardous substances.
But even outside of these special regulations, the WHG prescribes careful handling of substances that can impair the properties of the water.
A comparison of the old and the new version of the WHG reveals considerable streamlining. However, this does not lead to significant material changes when dealing with substances that are hazardous to water. The §§ 62 and 63 WHG in the new version include the regulatory content of §§ 19g and 19h WHG old version. The Federal Government issued the ordinance on installations for handling substances hazardous to water , with the predominant effect from August 1, 2017 . This regulates important operator obligations, duties of care when filling and emptying and the specialist companies.
Further regulations
- Patency , cleanliness and minimum water flow of the bodies of water §§ 32 ff.
- Use of hydropower § 35
- Systems on, in above or below water § 36
- Flood protection §§ 72 ff. - Implementation of the flood risk management guideline
- Passage of water and waste water §§ 93 ff.
- Water supervision §§ 100 ff.
literature
- Ulrich Drost, Marcus Ell: The new water law - a textbook for training and practice. 1st edition. Richard Boorberg Verlag, Stuttgart 2013, ISBN 978-3-415-04851-5 .
- Ulrich Drost, Marcus Ell: The new water law - Water Management Act (WHG). Commentary with a collection of regulations on European and federal law. Richard Boorberg Verlag, Stuttgart, ISBN 978-3-415-04483-8 .
- Günther-Michael Knopp: The new water management law. 1st edition. CH Beck, Munich 2010, ISBN 978-3-406-60042-5 .
- Michael Kotulla: Water Resources Act. Comment. 2nd Edition. Kohlhammer, Stuttgart 2011, ISBN 978-3-17-021258-9 .
- Claudia Rönnau: Advising the water law committee of the Academy for German Law on a Reich water law (1934-1941). A contribution to the dogmatics of the terms common use and special use in the time of National Socialism. Lang, Frankfurt am Main a. a. 2001, ISBN 3-631-37596-4 (also Diss., Univ. Kiel 2000).
Web links
- Law on the organization of the water balance (Water Management Act - WHG) , current version
- Law on the organization of the water balance (Water Management Act - WHG) , all versions
- Ordinance on the protection of surface waters (Surface Waters Ordinance - OGewV)
- Water law. Trade inspectorate Baden-Württemberg, accessed on March 21, 2014 (collection of regulations including ordinances, with download option).
- Map of the river basin districts in Germany , BMUB , accessed on July 27, 2015.
- Forest & Water Handbook - Implementation of the WFD in forests on Waldwissen.net
Individual evidence
- ↑ Introduction to water management law. In: Handbook of German Water Law. Erich Schmidt-Verlag, 2005.
- ↑ The new Water Management Act (WHG) applies from 1.3.2010. The Senator for the Environment, Building, Transport and Europe, Bremen, accessed on April 19, 2010 .
- ↑ § 1 WHG.
- ↑ § 6 WHG
- ↑ § 27 WHG.
- ↑ § 47 WHG
- ↑ Wassernetz NRW , accessed on August 27, 2015
- ↑ fuesser.de , accessed on August 27, 2015
- ↑ See Section 5 (1), Section 32 (2), Section 45 (2) and Section 48 (2) of the WHG.
- ↑ Ordinance on systems for handling water-polluting substances (AwSV)
