Definition and clarification of the term ‘Wasserwehr’ (water defense)
Die Wasserwehr is a comprehensive term under public and private law describing measures for protection and hazard prevention related to bodies of water. Legally, Wasserwehr encompasses all activities, organizational structures, duties, and powers that serve to protect against harmful effects of water, especially flooding and inundations. The term is found in water law, as well as disaster and hazard prevention law, and in private neighbor law.
Legal foundations of Wasserwehr
Water law provisions
The central regulation of Wasserwehr is found in the Federal Water Resources Act (WHG) as well as in the state water laws. Section 5 WHG stipulates that anyone operating installations on bodies of water must take precautions against adverse changes to water resources. Sections 35 et seq. WHG concerning water management planning also affect aspects of Wasserwehr.
In addition, the state water laws regulate specific duties regarding Wasserwehr, such as the maintenance and upkeep of flood protection facilities, reporting duties, and conduct in the event of imminent danger.
Municipal and state responsibilities
Responsibility for Wasserwehr generally lies with the municipalities as the lower water authority. Supervision and coordination may be performed by higher administrative authorities. For first-order waters (mostly rivers of special significance), responsibility often lies with the federal states or specialized associations.
Key tasks of Wasserwehr at the municipal level include in particular:
- Construction and maintenance of technical flood protection measures (dikes, protective walls, pumping stations)
- Organization and maintenance of emergency response units (fire brigade, technical assistance services)
- Informing the public and organizing evacuation measures
- Cooperation with neighboring municipalities and disaster management authorities
Duties of private parties
Under private law, neighbor law pursuant to §§ 909 ff. BGB obliges property owners to maintain facilities on their own land in such a way that flooding and inundations do not adversely affect neighboring properties. In addition, water and soil associations may be legally or statutorily obliged to undertake Wasserwehr measures, particularly to maintain and supervise dikes and ditches.
If someone fails to meet their obligations regarding Wasserwehr and this causes damage, there can be extensive obligations for compensation under official liability and private law claims for damages.
Organization and implementation of Wasserwehr
Technical and organizational measures
Technical flood protection
Technical flood protection measures such as mobile flood barriers, pumping stations, dams, and retention areas are an essential component of Wasserwehr. There are building and water law regulations for these. Construction and maintenance may be the responsibility of public authorities, specialized associations, or private owners.
Monitoring and alerting
The monitoring of water levels and early warning systems is legally required to enable effective Wasserwehr measures when necessary. Municipalities and states are obliged to designate flood-prone areas and provide information systems.
Alert and deployment plans
The creation of alert and deployment plans is a core component of Wasserwehr. Legally, their creation is usually regulated at the municipal level as well as through regional provisions. In the event of an impending flood, emergency plans come into effect, the legal basis of which is laid down, among other things, in the disaster management laws of the states.
Cooperation with disaster management
In the case of large-scale flooding, disaster management law applies. Wasserwehr is then coordinated through disaster management commands with the involvement of multiple authorities and organizations. The legal basis stems from the disaster management laws of the states.
Liability issues and legal consequences regarding Wasserwehr measures
Official liability and liability of public bodies
If the responsible public authority fails to take necessary Wasserwehr measures or orders unlawful actions, claims based on official liability (§ 839 BGB in conjunction with Art. 34 GG) may arise. The authority must demonstrate that all reasonable and legally required precautions were taken.
Private law liability
If damage occurs due to failure to implement Wasserwehr, neighbors or associations may be held privately liable. The legal foundations are mainly found in neighbor law (§§ 909, 1004 BGB) and tort law (§ 823 BGB), if necessary protective precautions were missing or inadequate.
Compensation claims
Anyone who, for the purposes of Wasserwehr, infringes the rights of others (e.g., use of land for construction of a dam), may be required to provide compensation (§ 49 WHG, § 12 BPolG, if applicable state laws). The obligation to compensate depends on the legal basis and the extent of the intervention.
Special forms and manifestations of Wasserwehr
Water and soil associations
Water and soil associations have a special legal role in Wasserwehr. According to the Water Association Act, they are obligated to ensure Wasserwehr within the scope of their responsibilities. The organizational structure and internal organization are subject to the supervision of the states.
Volunteer and compulsory fire brigade
As part of municipal hazard prevention, the local fire brigades are often also responsible for Wasserwehr tasks. The legal basis for this is provided by the state fire brigade acts and supplementary statutes.
Sanctions for violations of Wasserwehr obligations
Violations of public law duties concerning Wasserwehr (e.g., lack of minimum precautions, failure to maintain protection facilities) can be penalized as regulatory offenses (§ 103 WHG, state regulatory offense laws). Further sanctions, up to and including claims for damages and injunctions, are possible—depending on the legal basis.
References to literature and legal sources
Important legal sources
- Federal Water Resources Act (WHG)
- State water laws
- Federal Disaster Protection Act, state disaster protection acts
- Water Association Act (WVG)
- Civil Code (BGB; §§ 909, 1004, 823)
- State laws on neighbor relations
Further reading
- Hansmann, Water Law, 17th edition
- Boettcher, Disaster Management Law, current edition
- Stelkens/Bonk/Sachs, Administrative Procedure Act, Commentary
Conclusion: Wasserwehr is a complex legal term in Germany that unites numerous public and private law provisions, responsibilities, duties, and liability issues. From technical hazard prevention and organization of responsible authorities to private involvement and sanctions, Wasserwehr gives rise to complex legal issues governed by various statutes and regulations at federal and state level.
Frequently asked questions
Who is legally responsible for organizing and implementing Wasserwehr?
The legal responsibility for organizing and implementing Wasserwehr in Germany generally lies with the municipalities and counties as part of local hazard prevention. According to the Federal Water Resources Act (WHG) and the state water laws, municipalities are required to take precautions against floods and similar hazards within the scope of their abilities. The federal states can regulate details through state laws, especially regarding cooperation with other entities (e.g., special-purpose associations) and involvement of other organizations. The state fire brigade laws often stipulate that local fire brigades perform central tasks in Wasserwehr. Other aid organizations, such as the Technical Relief Agency (THW), can also be legally involved by administrative agreements. Ultimately, the oversight and management of these activities remain the responsibility of the respective authority, which must also coordinate actions in the event of a disaster. Owners and those adjacent to bodies of water may, under state law, be obliged to participate in or tolerate measures.
What legal obligations exist for private individuals in the context of Wasserwehr?
Private individuals are generally not subject to original duties to actively participate in Wasserwehr, unless such duties arise from overarching legal provisions (e.g., compulsory fire brigade service in certain federal states) or by official order in an emergency. However, according to the respective state water laws, owners and those adjacent to water have a duty to independently take measures to prevent dangers from their property that affect the public interest, especially flooding. In the context of hazard prevention law, private individuals can, if necessary, be obligated by the responsible regulatory authority to undertake (substitute) measures, to tolerate or assist (§ 15(1) OBG NRW as an example). In case of disaster, the state disaster protection law specifies further duties (e.g., being called upon for assistance, permitting access to properties). Failure to comply with such orders can be enforced by regulatory authorities and sanctioned with fines.
May private helpers be used in Wasserwehr measures, and who is liable in the event of damage?
Private helpers are allowed to participate in Wasserwehr measures, unless they are excluded by official directive or specific legislation. When acting in the context of volunteer service, helpers are generally covered by statutory accident insurance under Social Code Book VII (in particular § 2 (1) No. 12 SGB VII for ‘other help in the event of a disaster’), provided the measure was ordered or approved by the competent authority. If the Wasserwehr measure is carried out independently of any official organization, helpers are generally liable under the principles of civil law (§§ 823 et seq. BGB). If damage occurs, liability depends on whether there was fault and the usualness of the action. For official deployments (e.g., on behalf of the municipality), liability usually lies with the municipality; in cases of gross negligence or intent, recourse against the helper can follow. In the context of administrative assistance or as a volunteer, extended liability privileges under § 839 BGB and state laws apply.
What legal foundations apply to the execution of Wasserwehr measures (e.g., sandbagging, diversion of watercourses)?
The most important legal basis for Wasserwehr measures derives from the Federal Water Resources Act (WHG) and the state water laws. The police and regulatory law of the states (e.g., OBG, POG), disaster protection laws, and special executive regulations also govern individual measures. Interventions such as constructing sandbag embankments, diverting watercourses, or using private land generally do not require special permission if carried out as part of hazard prevention (§§ 35 et seq. BauGB, § 41 WHG). Outside of hazard or disaster situations, water engineering measures usually require a water law permit or license. Conservation, and if applicable, property rights (rights of entry, compensation claims) must also be considered. State of emergency rules permit intervention in third-party rights, but an immediate subsequent review and, where appropriate, compensation (§ 39 OBG NRW) must be carried out.
What legal requirements apply to preventive flood protection within the context of Wasserwehr?
Preventive flood protection is governed by the Federal Water Resources Act and the respective state-specific water laws. Municipalities are required to undertake risk prevention, for example, through flood risk management plans and provision of technical, structural, and organizational facilities (§ 72 WHG). In doing so, they must consider the requirements of building planning law (§ 5 BauGB – land use plan, § 30 BauGB – development plan), emission control law, nature conservation law, and monument protection law. Public law obligations for regular inspection, maintenance, or restoration of flood protection facilities (dikes, retention basins) may fall on both municipalities as operators and private maintenance associations. The public must be informed of hazards and protection options. Owners and operators of facilities in flood-prone areas are subject to additional restrictions and behavioural obligations (§ 78 WHG).
Are there statutory provisions for compensation for damage caused by Wasserwehr measures?
Yes, compensation is provided for under the respective state disaster protection laws and regulatory laws when lawful Wasserwehr measures cause damage to third-party property. The basis for this is usually found in the compensation provisions of the state laws (e.g., § 39 OBG NRW, § 65 SächsKatSG). The obligation to compensate generally exists only if the measure was legal, strictly necessary for averting a serious hazard, and no other compensation is possible. Primarily, direct property damage must be compensated; for consequential damage and loss of use there are usually limitations. Compensation must be applied for at the competent authority, and administrative courts are open for legal recourse.
What statutory information and reporting obligations exist in the Wasserwehr context?
Authorities are obligated to inform the public about existing flood risks, planned and ongoing flood protection measures, as well as behavioral rules (§ 5 para. 2 BKatSchG, § 73 WHG, state water laws, and disaster protection laws). Affected property owners, businesses, and critical infrastructures must fulfill special information obligations, such as mandatory notifications to water authorities in the event of imminent accidents, operational disruptions, or hazardous substances (§ 19 WHG, § 56 AwSV). Reporting obligations also apply when identifying specific damage sites or impending flood conditions. Failure to comply with these obligations may have (regulatory) legal consequences, including fines and liability for damages.
