Water law

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The water law is a branch of public law ( environmental law ), that the management of waters and aquifers has as its object.

tasks

The tasks of water law are to protect the water in its natural cycle and in all aggregate states (flowing water, stagnant water, groundwater, snow, ice, steam) from adverse interventions and to take precautions for the maintenance of perfect water reserves. The area of ​​responsibility of water law also includes the remediation of already polluted waters, the protection of people and property from water hazards ( flood protection ), measures in the event of drought , the regulation of the usage claims made on the existing water resources and the safeguarding of the rights of the general public to water bodies ( public use ) .

history

Since the quality and availability of water are of great importance for the security of supply as well as public health and hygiene , legal regulations are essential to protect it. This is also evident in the long history of such legal norms.

Water law can be regarded as one of the very first legal forms, because with the settling down as a result of the Neolithic revolution and the onset of agriculture and cattle breeding, the need to regulate access to water and its distribution took on a new dimension. Although there was also an unwritten form of the “ right to water ” before that, this resource was not particularly limited in the hunter-gatherer cultures, so that conflicts tended to be rare.

Particularly in regions of the world where rainfall alone is not sufficient for agriculture, but also has to be irrigated, this deficiency has become an instrument of social organization in the form of a complex social structure. Without a joint effort, the extensive hydraulic engineering measures for irrigation and in some cases also for flood protection could not be implemented. This also made it necessary to distribute the water and, if necessary, to ration it. What the individual had to do to maintain the systems, but what he was entitled to in return for water, had to be determined. This was the only way to ensure the integrity of the systems on the one hand and the loyalty of their supervisors on the other. The water law thus had a social function above all; it served to maintain stability by establishing a form of water justice.

The best known example of this early type of legislation is the Codex Hammurapi of King Hammurapi of Babylon around 1700 BC. In addition to comprehensive legal provisions, it also contains standards for the maintenance of irrigation systems. Similar laws existed much earlier and elsewhere, only they have survived much worse.

The Valencia Water Court is the oldest legal institution in Europe; it has met in front of the cathedral there every week since around 960 AD until today . In Spanish law, administrative territorial units based on hydrological catchment areas were also established for the first time in modern water law since 1903. This approach has also been carried out in French water law since 1964 (see below on France) and has thus anticipated the drafts of the EU's Water Framework Directive and also strongly influenced it.

Germany

Partial column for the distribution of well water to several consumers in Ruppenmanklitz, Weiler-Simmerberg

The German water law can be divided into the water balance law and the waterway law .

In Germany, legislative competence for water management law is divided between the federal and state governments . Until the federalism reform came into force, the federal government was only competent for the framework legislation at that time . Since September 1, 2006, the federal government has had competing legislative powers for water management law, whereby the federal states may deviate from the federal provisions - except for substance or system-related regulations.

On March 1, 2010, the new Federal Water Act came into force as a full regulation. Implementing federal ordinances are in preparation. The federal states will adapt their water laws insofar as they collide with the new WHG and, if necessary, determine deviations and use opening clauses of the WHG. The regulations of the federal and state governments must correspond to the relevant EU directives (e.g. water framework directive ). As a result of the competing legislation , the implementation of a new or amended directive now only requires the federal legislative procedure.

The federal states coordinate their water policy within the framework of the federal state working group on water (LAWA).

Water law also affects other areas of law. It must be observed with many other approval or planning procedures, for example with approval procedures according to the Federal Immission Control Act or urban planning according to the Building Code .

Water law also includes the law on water and soil associations . Some provisions that are important for consumers, such as the Drinking Water Ordinance or the “Ordinance on natural mineral water, spring water and table water” (for short: Mineral and Table Water Ordinance (Min / TafelWV) ) do not belong to water law . These health protection regulations are part of food law . However, elements such as Section 7 (§ 37 to 41) of the Infection Protection Act , the “Ordinance on General Conditions for the Supply of Water” ( AVBWasserV ), the EU Bathing Water Directive, the Waste Water Ordinance , the Waste Water Tax Act and the Washing and Water Duty Act are relevant Cleaning agent law .

Austria

In Austria, the legislative competence lies solely at the federal level. The most important source of law is the 1959 Water Law Act in its current version, which also includes the EU Water Framework Directive (see above).

Further sources of law are: Hydrography Act 1979, Hydraulic Structures Promotion Act 1985, Torrent and Avalanche Control Act, Contaminated Site Remediation Act.

There are points of contact with countless other legal matters, such as road law, building law, commercial law, mining law, forest law, railway law, shipping law, electricity law, waste law, criminal law, civil law and food law (drinking water ordinance). However, these do not count towards water law in the narrower sense.

Water (usage) rights are usually entered in the water book.

Switzerland

In Switzerland, water law competencies are shared between the federal government and the cantons .

The federal legislature has extensive legislative competence in the areas of protection of waters , hydraulic engineering , safety of dams and influencing precipitation (Art. 76 Paragraph 3 Federal Constitution). The federal government has basic legislative competence in the areas of conservation and development of water resources, the use of water bodies for energy generation and other interventions in the water cycle (Art. 76 Paragraph 2 Federal Constitution). Based on these two provisions, it adopted the Federal Act on the Protection of Waters (Water Protection Act, GSchG) of January 24, 1991, the Federal Act on Hydraulic Engineering of June 21, 1991, the Federal Act on Dams of October 1, 2010 and the Federal Act on decreed the utilization of water power of December 22, 1916. These federal laws are implemented by the cantons.

The cantons regulate the areas of water sovereignty , use of water (with the exception of hydropower), water supply , flood protection and renaturation of water bodies entirely on their own authority . The cantons have sub-competencies in the areas of conservation and development of water resources, the use of bodies of water to generate energy and other interventions in the water cycle. Since the cantons also implement federal law, their laws also contain provisions on water protection law, in particular on waste water and groundwater protection . Its laws have titles such as the Law on Water (as in the canton of Zug), the Water Management Act (for example in the cantons of Zurich and Schaffhausen), the Water Use Act (for example in the cantons of Bern and Aargau), the Water Law Act (as in the canton of Graubünden) or the Hydraulic Engineering Act (as in Canton lucerne); In addition, the cantonal introductory laws for the Federal Water Protection Act (EG GSchG) apply , insofar as their scope is not covered by the already mentioned water laws. Sometimes related areas are also integrated into the water legislation , such as the Solothurn law on water, soil and waste .

France

In the French unified state, the principles of water law are uniformly regulated by the national legislature. The main water laws were enacted on December 16, 1964, January 3, 1992, April 21, 2004 and December 30, 2006. These laws were largely integrated into the French environmental code (Code de l'environnement) and are there in the first title of the second book (Article L. 210-1 ff.). Isolated legal provisions can also be found in other laws, in particular in the Civil Code (Article 640 ff.).

Since the Water Act of December 16, 1964, there has been a special administrative unit in French law for issues relevant to water law: the river catchment area (le bassin hydrographique) . There are six river basins on the territory of the French metropolis, which by and large correspond to the main watercourses: Garonne, Loire, Rhine, Rhône and Seine. One of the six catchment areas (Artois-Picardie) includes several rivers of minor importance in addition to the Somme. These river basins and their respective administrative headquarters are named below: 1) Adour-Garonne (Toulouse); 2) Artois-Picardy (Douai); 3) Loire-Brittany (Orléans); 4) Rhine-Meuse (Metz); 5) Rhône-Méditerranée-Corse (Lyon) and 6) Seine-Normandie (Paris).

See also

literature

  • Bernard Drobenko, Jacques Sironneau: Code de l'eau. 3. Edition. Editions Johanet, Paris 2013, ISBN 979-10-91089-08-1 .
  • Ekkehard Hofmann (ed.): Water law in Europe (= Ius Europaeum. Volume 60). Nomos, Baden-Baden 2014, ISBN 978-3-8487-1494-0 .
  • Ulricht Drost, Marcus Ell (ed.): The new water law - Water Management Act (WHG), ordinance on systems for handling substances hazardous to water (AwSV), comments with a collection of regulations on European and federal law. Loose-leaf work. Richard Boorberg Verlag, Stuttgart / Munich, ISBN 978-3-415-04483-8 .
  • Ulricht Drost, Marcus Ell (Ed.): The new water law in Bavaria - Water Management Act (WHG), Bavarian Water Act (BayWG), Ordinance on Systems for Handling Substances Hazardous to Water (AwSV), comments with a collection of regulations on European, federal and state law . Loose-leaf work. Richard Boorberg Verlag, Munich, ISBN 978-3-415-04485-2 .
  • Heinrich von Lersner , Konrad Berendes, Michael Reinhardt: Handbook of German water law. New federal and state law . Erich Schmidt, Berlin 2007, ISBN 3-503-00011-9 (loose-leaf text collection and commentary).
  • Günther-Michael Knopp: The new water management law. WHG amendment 2010, water use, expansion. Verlag CH Beck, Munich 2010, ISBN 978-3-406-60042-5 .
  • Wolfgang Köck : Water management and water protection in Germany, legal framework - institutions - organization. Journal for Environmental Law (ZUR) 03/2012, 140 (PDF)
  • Ute Mager: International Water Law. Global Developments and Regional Examples. Jedermann-Verlag, Heidelberg 2015, ISBN 978-3-86825-319-1 .
  • Hans-Jürgen Müggenborg, Anja Hentschel: New water and nature conservation law. In: New legal weekly . 2010, pp. 961-967.
  • Jochen Sohnle: Water Law and Water Framework Directive in France. In: W + B, magazine for German and European water, wastewater and soil protection law. No. 4, 2013, pp. 193-202.

Web links

Individual evidence

  1. ↑ Ute Mager , lecture “Drought management as a topic of law” on YouTube
  2. ↑ auswandern.com: The water court of Valencia (January 27, 2013)
  3. ^ Antonio Fango Loras: Las Confederaciones hidrográficas y otras administraciones hidráulicas. Editorial Civitas, Madrid 1996, pp. 64-145.
  4. ↑ Hannes Berger: The country competence in water law. In: Journal for State Constitutional Law and State Administrative Law 1/2017, pp. 4–11.
  5. ↑ Water Law 1959 - WRG 1959 (Austria - legal text)
  6. ↑ Swiss Confederation (SR 814.20), Federal Act of January 24, 1991 on the Protection of Waters , Waters Protection Act (GSchG)