Definition and Legal Classification of the Wasserpfennig
Der Wasserpfennig is a purpose-bound levy imposed under water law in Germany, playing an important role in financing water protection, water management, and the sustainable safeguarding of water resources. This levy is primarily regulated by state law and is intended to provide economic incentives for the efficient use of water and to partially allocate the costs of water management measures to water abstractors and users. The Wasserpfennig is one of the environmentally related special levies whose legal foundations and constitutional admissibility are frequently the subject of legal discussion.
Legal Foundations of the Wasserpfennig
Statutory Basis
The collection of the Wasserpfennig does not take place uniformly at the federal level, but is regulated in the respective water management laws of the federal states. The basis is usually a state law provision within the respective State Water Act (e.g., § 40a Water Act Baden-Württemberg, Art. 37 Bavarian Water Act, § 45 State Water Act North Rhine-Westphalia, etc.), which stipulates the collection, assessment basis, and use of the Wasserpfennig.
Types of Levies
Legally, the Wasserpfennig is a special levy with a financing function, not a tax or user fee in the classic sense. Typically, the following types of levies are distinguished:
- Abstraction Levy: Imposed on the abstraction of groundwater or surface water.
- Discharge Levy: Often in combination, concerns levies for the discharge of substances into groundwater or surface water bodies.
Assessment Bases
The amount of the Wasserpfennig is generally determined by:
- Quantity of water abstracted or used (usually in cubic meters)
- Type of Use (for example, industrial use, cooling water, agriculture)
- Quality of the water abstracted (sometimes differentiated rates for drinking water, process water, cooling water)
Purpose and Use of the Wasserpfennig
The revenues from the Wasserpfennig are earmarked and serve in particular the following purposes:
- Financing measures to protect water bodies: Measures to improve the ecological status of surface waters and groundwater.
- Remediation and modernization of water management facilities: Renaturation of rivers, construction of sewage plants, water supply infrastructure.
- Capacity Building and Research: Support for scientific studies in the field of water protection.
Misappropriation, for example for general budget financing, is prohibited under state law. Details on the use of funds are regularly set out in the budgets and accountability reports of the federal states.
Collection and Administration of the Wasserpfennig
Obligated Persons
In principle, all natural and legal persons who abstract or discharge water from surface water bodies or groundwater are liable to pay the levy. This includes in particular:
- Water supply companies
- Agricultural operations
- Commercial and industrial enterprises
- Large private consumers
In some federal states, there are de minimis thresholds below which no levy obligation exists (e.g., for minor domestic use or small agricultural holdings).
Procedures and Reporting Obligations
Collection takes place within an official administrative procedure:
- Reporting obligations regarding water abstraction
- Determination of quantities abstracted by measuring devices
- Annual reporting and payment transactions
Failure to comply with levy obligations can result in administrative fines.
Constitutional and Legal Policy Classification
Admissibility of Special Levies
The collection of the Wasserpfennig is directly linked to constitutional principles on the design of public levies. The case law (particularly of the Federal Constitutional Court) has set high standards for special levies with a financing function:
- Group-related earmarking: Only certain, clearly definable user groups may be burdened.
- Material connection to financing: Revenues may be used exclusively for measures from which the affected group specifically benefits or can benefit.
- Parliamentary reservation: The design and collection require an explicit statutory basis by the state legislature.
Previous administrative and judicial proceedings have fundamentally confirmed the admissibility of the Wasserpfennig as a constitutionally compliant special levy, provided the requirements listed are fulfilled.
Exemptions and Exceptions from the Levy Obligation
Exemptions and reductions are regulated differently under state law, for example for:
- Use of hydropower for electricity generation
- Ecologically relevant purposes (e.g., nature conservation projects, drainage for hazard prevention)
- Minor abstraction volumes
The specific design of such exemptions always depends on the respective state water act.
Legal Consequences of Infringements
Violations of levy obligations in connection with the Wasserpfennig, such as failure to report, incomplete information, or late payment, have the following legal consequences:
- Imposition of administrative fines
- Coercive measures (e.g., enforcement of reporting, coercive detention)
- In particularly serious cases, potentially criminal penalties under environmental criminal law
Distinction from Other Water Levies
In addition to the Wasserpfennig, there are other levies under water law, such as:
- Water abstraction charge (synonymous or alternative term in some federal states)
- Wastewater levy (in accordance with the Federal Wastewater Charges Act)
- Fees for water law permits and licenses
The Wasserpfennig has the special function of a steering levy, intended to promote the sustainable use of the water resource through economic incentives.
References and Further Information
- State Water Acts of the Federal States (e.g., BWG, BayWG, LWG NRW)
- Decisions of the Federal Constitutional Court on the admissibility of special levies
- Publications of the Federal Environment Agency on the subject of water abstraction charges/Wasserpfennig
- Commentaries on environmental levy law and water law
Conclusion: The Wasserpfennig constitutes a key element for the sustainable management of the water resource in German environmental law. Beyond its fiscal steering function, it ensures the continuous funding of measures to improve water protection and represents an essential tool of a modern, environmentally related levy policy. Due to differing state law regulations, a thorough examination of the relevant provisions and current case law is recommended.
Frequently Asked Questions
Who is legally obliged to pay the Wasserpfennig?
The Wasserpfennig is regulated in the respective water laws of the federal states and, as liable parties, generally applies to those who abstract or otherwise use water from surface waters or groundwater. Legally obliged are therefore typically natural or legal persons as well as partnerships to whom a water law permit or license for water abstraction has been granted. In addition, the obligation to pay the Wasserpfennig may also exist for permit-free abstractions within the framework of statutory regulations if state law provides for this. Frequently, this applies especially to waterworks, agricultural operations, and industrial users. Municipal utility companies are also among those obliged to pay. The exact definition and scope of the obligation – for example regarding de minimis quantities or exceptions for certain types of abstraction – are based on the respective state water acts and related regulations.
What legal framework determines the amount of the Wasserpfennig?
The legal foundations for calculating and determining the Wasserpfennig are set out in § 40 Water Resources Act (WHG) and in particular in the regional water laws – for example, § 49a State Water Act Baden-Württemberg (WG BW). The calculation is generally based on the actual quantity of water abstracted; the assessment basis is usually the cubic meter of water. The specific amount is defined by regional statutory regulations and often differentiated by the purpose of abstraction (e.g., drinking water, industrial use, irrigation). The law or administrative guidelines may also provide for reductions, allowances, or exemptions, for example for minor abstraction quantities. The relevant state regulations are therefore decisive, within whose framework administrative procedures for the determination and collection of the levy are also set out.
Are there legal exemptions from the obligation to pay the Wasserpfennig?
Yes, the water laws of the federal states contain numerous legal exemptions from the obligation to pay the Wasserpfennig. Frequently exempted are, for example, abstractions of water for private household purposes up to certain quantities, specific agricultural uses such as watering livestock or operating traditional mills, and usage by fire brigades in the context of disaster control. Public purposes, such as those of charitable organizations, may also be exempt. The exact design of exemptions differs from state to state and is set out in the respective state water act or the corresponding regulation. In the event of disputes, judicial review of exemption provisions and their compliance with guidelines is possible.
What legal remedies are available for disputes concerning the Wasserpfennig?
If there are disputes regarding the determination, amount, or exemption from the Wasserpfennig, the ordinary legal remedies under administrative law are available. Determination is usually an administrative act against which a formal objection may be lodged according to the administrative procedure laws and ordinances of the federal states. If the objection is not remedied, an action may be brought before the competent administrative court. Within the judicial proceedings, all facts, exemptions, and the correct legal basis can be reviewed. In individual cases, temporary legal protection may also be sought (e.g., under § 80 VwGO), especially in cases of undue hardship.
What is the legal relationship between the Wasserpfennig and European law?
The Wasserpfennig must comply with European directives, particularly the Water Framework Directive (Directive 2000/60/EC). The imposition and design of the levy must not conflict with European requirements, for example regarding water protection or the free movement of goods and services. The directive generally obliges member states to implement cost-covering water pricing, taking environmental and resource protection into account, from which a legal obligation to introduce economic steering instruments such as the Wasserpfennig may arise. Regular checks are made in the course of implementing the directive to verify compatibility of the national regulations with European requirements. Any violations may be subject to infringement proceedings.
How are refunds or claims for repayment handled legally?
If it turns out that the Wasserpfennig was unlawfully or excessively determined, the administrative procedure law provides for corresponding refund options. This is often based on § 49a (5) WG BW or the equivalent state law provisions, in conjunction with the general rules of the Administrative Procedure Act (VwVfG) and, where subsidiarily applicable, the Fiscal Code (AO). Once the entitlement to a refund, which is often granted upon application, has been established, the overpaid amount is reimbursed. Disputes are decided within the jurisdiction of the administrative courts.
Are the revenues from the Wasserpfennig subject to earmarking?
Legally, many state laws stipulate that the revenues from the Wasserpfennig must be used for specific purposes, in particular for watercourse development, water protection, and ecological restoration. This is sometimes explicitly regulated – for example, in § 49a (6) WG BW – to ensure that the revenues actually benefit the protection and sustainable use of water resources. The earmarking can be modified by the respective state parliaments as part of budget legislation but is subject to legal and political oversight. Improper or unassigned use can be the subject of municipal or budgetary objections and legal remedies.
