Definition and Classification of Water Law
Das Water Law refers to the entirety of legal norms relating to the use and protection of surface waters, groundwater, and water engineering structures. It governs the management, handling, and access to water resources within a jurisdiction. Water law constitutes an independent field of environmental law and encompasses aspects of public law, private law, and administrative law. Its objective lies particularly in balancing public and private interests in the resource water and in protecting water as part of the natural ecosystem.
In addition to regulations regarding the use of water bodies, water law also includes provisions for protection against adverse changes, for water purity, for flood prevention, and for the development of water bodies, as well as regulations on water management projects. Furthermore, numerous European and international regulatory instruments relate to water law and influence its formation at the national level.
Legal Sources of Water Law
National Legislation
The essential legal foundations in Germany are formed by the Federal Water Act (WHG) at the federal level as well as the respective state water laws of the federal states. Section 1 of the Federal Water Act standardizes the protection and management of water bodies and includes, among other things, principles for sustainable use, flood protection, and water purity.
The following important laws and ordinances are also relevant:
- Wastewater Ordinance (AbwV)
- Groundwater Ordinance (GrwV)
- Ordinance on the Protection of Surface Waters (OGewV)
- State water laws (e.g. BayWG for Bavaria, LWG NRW for North Rhine-Westphalia)
European Legal Provisions
German water law is significantly influenced by European law . The Water Framework Directive (WFD) (Directive 2000/60/EC) of the European Union sets uniform targets for the protection and sustainable use of European waters. The directive provides binding requirements for achieving a good status of surface waters and groundwater, which are transposed into national law. Other relevant provisions include the Floods Directive (Directive 2007/60/EC) as well as various legal acts on water protection.
International Legal Foundations
International legal sources include, among others, the Geneva Water Convention as well as various bilateral and multilateral treaties that primarily regulate the cross-border use of water bodies (for example, in the catchment areas of the Rhine, Danube, or Elbe).
Systematics and Basic Principles of Water Law
Water law is essentially structured into the following areas:
Public Water Law
Public water law regulates the use and protection of surface waters and groundwater as common property. Central principles include the principle of public use and the requirement for approval or authorization. Thus, for example, withdrawals of water that go beyond common use are only permitted with official approval or authorization (§§ 8–12 WHG).
Public Use of Water Bodies
The public use includes the use of surface waters for bathing, washing, watering livestock, or drawing small amounts of water for personal needs without technical equipment. It is generally permitted to everyone, as long as there are no harmful effects on the water body or other users.
Requirement for Approval or Authorization
Anyone wishing to withdraw, discharge, or otherwise use water to a greater extent (such as industrial or agricultural use) requires official approval (§ 8 WHG) or authorization, which must be issued in writing and for a limited period. The requirements and procedures are detailed and subject to strict conditions regarding the protection of water resources and the environment.
Regulatory Duty and Protection of Water Bodies
Water law contains extensive regulations for water purity, protection against pollution, and the sustainable management of the water resource. These include provisions on plant and operational safety, emission limitation, and wastewater disposal.
Private Water Law
Private water law primarily regulates neighborhood relations and compensation claims, for example in cases of flooding, groundwater lowering, or other impairments caused by the use of water. It is mainly governed by the Civil Code (BGB) (e.g., section 906 BGB – Introduction of intangible substances).
Water Use and Types of Rights
Types of Water Use
Typical uses of water bodies as defined by the WHG are:
- Extraction and discharge of water (e.g., for drinking water supply or for energy generation)
- Discharge of wastewater or other substances into water bodies
- Damming, lowering, and diversion of water bodies
- Construction of structures in the water or on the bank
Each of these forms of use requires approval and is regularly subject to a comprehensive official assessment regarding impacts on the water body or third parties.
Property Rights to Water and Water Rights
Approval and authorization do not constitute property, but public-law usage rights. These rights are often limited in time and may be transferred, inherited, or revoked, insofar as this is provided for by law. Limiting individual usage claims serves to preserve and sustainably manage water resources for the common good.
Protection of Surface Waters and Groundwater
Requirements for the State of Water Bodies
The Water Framework Directive and the WHG require sustainable and precautionary management in order to achieve a “good ecological and chemical status” of water bodies. This includes measures against the entry of pollutants, eutrophication, structural changes, and overexploitation. Compliance with these requirements is regularly monitored by the competent authorities, usually the water authorities of the federal states.
Pollution and Wastewater Disposal
A central aim of water law is the prevention and removal of water pollution. Wastewater may only be discharged into water bodies under certain conditions and after prior approved treatment. Set limit values for pollutants and the obligation to use environmentally friendly technologies are mandatory.
Development of Water Bodies, Flood Protection, and Hydraulic Structures
Development of Water Bodies
Development of water bodies refers to measures aimed at improving or securing flow and protecting against flooding, such as deepening, straightening, or reinforcing a river course. According to sections 67 ff. WHG, such measures require separate planning approval or permission and are subject to an environmental impact assessment.
Flood Protection
Flood protection is an integral part of water law. This includes not only technical measures such as the construction of dikes and retention basins, but also regulatory provisions limiting construction in flood-prone areas (§ 78 WHG) and disaster prevention.
Administrative Procedures and Legal Protection in Water Law
Approval Procedures and Official Involvement
Uses of water bodies, water engineering projects, or developments of water bodies regularly require formal permit or planning approval procedures, in which not only the direct applicants but also affected third parties and the public may participate. Legal remedies, such as objections or lawsuits before administrative courts, are possible under certain conditions.
Supervision and Control Mechanisms
The monitoring of compliance with water law regulations is the responsibility of the competent water authorities of the federal states. Violations of orders or lacking permits are prosecuted as administrative offenses and may be subject to sanctions.
Significance and Current Developments in Water Law
In view of climate change, altered precipitation patterns, and increasing demand for resources, water law is gaining further importance. Comprehensive legal developments at national and European level are continuously adapting requirements for water protection, water allocation, and flood prevention to new challenges. Alongside technical regulations, ecological and social aspects are increasingly being taken into account in the management and allocation of water resources.
Literature and Further Information
- Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection: Regulatory provisions and statutes on water law (bmuv.de)
- Federal Environment Agency: Water bodies and water law (umweltbundesamt.de)
- European Commission: Water Framework Directive (ec.europa.eu/environment/water/water-framework)
Conclusion: Water law forms the legal framework for the use, protection, and management of the vital resource of water. It is characterized by a constant tension between sustainability, ecological objectives, and economic use. The complexity and interdisciplinary nature of water law make it one of the most important regulatory areas in environmental and administrative law.
Frequently Asked Questions
Who is responsible for granting a water law permit?
The authorities responsible for issuing a water law permit are generally the competent authorities of the respective federal states. Typically, this refers to the lower water authorities at the district or independent city level; in individual cases, especially for larger or cross-state projects, the upper water authority or the competent ministry may also be responsible. The procedure is governed by the relevant state water act and the Federal Water Act (WHG). Applicants must submit extensive documents and evidence regarding the planned use, impacts on the water balance, and measures for protection against detrimental pollution. The permit is then issued or refused following technical examination and involvement of additional bodies, such as nature conservation authorities or adjacent neighbors, together with appropriate conditions or secondary provisions. For permits relating to the use of water bodies (§ 9 WHG), such as extraction or discharge of water or the introduction of wastewater, compliance with European requirements, particularly the Water Framework Directive, must also always be observed.
In which cases is a water law permit required?
A water law permit is always required if a water use within the meaning of Section 9 WHG is intended. This particularly includes the extraction or discharge of water from surface waters and groundwater, the introduction or discharge of substances into a water body, the construction and operation of structures in, on, or over the water body, as well as the damming or lowering of water bodies. Approval is also generally required for the introduction of rainwater from sealed surfaces into a surface water body. There are also permit-exempt uses, such as public use, but these are narrowly defined and restricted. In cases of uncertainty regarding the requirement for a permit, such as for non-routine measures, it is always advisable to seek a legal preliminary assessment by the relevant water authority.
How are neighbors and the public involved in the water law procedure?
In water law permitting procedures with possible third-party effects (e.g., neighboring property owners, nature conservation interests), participation of neighbors and the public is legally required. Public notice is generally given by displaying the application documents at the municipal administration. Affected persons may raise objections within a specified period, which must be considered in the approval process. For projects with significant environmental impacts (including certain industrial plants, measures with significant modification of a water body), an environmental impact assessment (EIA) is often required. In this process, the wider public is formally involved and its arguments and comments must be considered in the decision. Affected neighbors also have a right to legal action under certain conditions.
According to which criteria is the decision on a water law permit made?
The decision on a water law permit is based on several technical and legal criteria. According to Section 12 WHG, a permit may only be issued if no negative effects on the water balance, the general public, fisheries, agriculture, ecological balance, or the rights of third parties are to be expected. The applicant must demonstrate that the measure can be implemented technically safely and that all requirements of environmental and nature protection, in particular the preservation or improvement of the ecological status of the water body, are fulfilled. In addition to water management considerations, aspects such as emergency and flood protection, wastewater disposal, drinking water protection, and compatibility with existing uses are also relevant. The authority may attach extensive secondary provisions and conditions to the permit for implementation, supervision, and, if necessary, subsequent adaptation of operations.
What obligations does the holder of a water law permit have?
The holder of a water law permit is subject to numerous legal and official obligations. This includes strict compliance with all requirements in the notice regarding quantity, quality, and time of water use. They are obliged to provide proof of measurements and inspections, report regularly, and submit further data to the authority on request. In the event of unforeseen incidents, such as disruptions or accidents affecting the water body, immediate notification is required. Furthermore, obligations may be imposed to retrofit technical installations or to install monitoring stations. Monitoring measures, such as fish inventories or water analyses, are often also prescribed. The permit is generally time-limited and may be revoked in case of violations.
What does provision and maintenance of water bodies mean in the legal sense?
Legally, a distinction is made between the maintenance obligation and the provision obligation with regard to bodies of water. The maintenance obligation (§ 39 WHG) requires the owner or a designated obligated party to restore and maintain the body of water and its banks in a proper condition, to avoid impairments of water management, flood protection, and ecological function, and to remedy defects. The provision obligation usually concerns the availability of water areas, e.g., by municipalities and special-purpose associations, and their maintenance for public use, flood retention, or nature conservation. Both obligations are associated with extensive regulations, the violation of which may lead to official orders, fines, or even criminal consequences.
What legal options are available to challenge a granted or denied water law permit?
If a water law permit is granted or refused, the affected party has access to legal recourse. Depending on the federal state, it is possible to file an objection or, in some cases, proceed directly to an administrative court action against a negative decision. Third parties affected by a water use are also entitled to file an objection and seek judicial review, provided their public or private rights are impaired by the measure. This is based on the Administrative Court Procedure Act (VwGO) and the relevant state regulations. Legal protection may include the suspension of the decision, an obligation to issue a new decision considering the court’s legal view, or the annulment of the granted permit. In such proceedings, both substantive and procedural laws—such as rights of participation, procedural requirements, and environmental protection standards—must be examined and observed.
