Water management in states with a federal constitutional structure – The situation in Germany

1
Water management in states with a federal constitutional structure – The situation in
Germany
Abstract
Despite favourable framework conditions for water management, the 2004 analysis performed
under the EC Water Framework Directive shows that numerous surface waters and
groundwater bodies in Germany will not arrive at the status defined in the environmental
objectives by the year 2015. The federalism reform of 28 August 2006 in the Federal Republic
of Germany changed the system andallocation of competences for water resources
management in favour of the “Bund” (German federation). However, the said reform only refers
to legislation. Administrative enforcement is still assigned to the “Länder” (individual German
states). The EC Water Framework Directive requirement of water management in river basin
districts has meant the German administration has been confronted with novel tasks and
challenges to achieve coordination and efficiency.
Keywords: geographic structure of Germany, precipitation, water balance, availability
and use of water, EC Water Framework Directive, constitutional structure of the Federal
Republic of Germany, federal reform, water management within the river basin districts,
appropriate administrative arrangements, legal practice
I. General introduction
1. Geographic structure
The territory of the Federal Republic of Germany extends over an area of 356,733 km2. With
more than 82 million inhabitants, the average population density is about 230 residents per km2.
However, large regions in the North and East of Germany show a low population density of less
than 150 inhabitants per km2. On the other hand, the western regions of Germany are
characterised by high population density areas. In most of them, there are more than 300
residents per km2 and, in congested urban areas, sometimes more than 4,000 residents living
together within one km2.
The geographic structure of Germany is divided into four zones running from North to South: the
2
central-European lowlands, the “Mittelgebirge” (low mountain range), the “Alpenvorland” (pre-
Alps area) and the northern ridge of the Alps. These zones show different conditions for water
management. There are immense gravel bodies to be found in the underground of the central-
European Iowlands and the pre-Alps area which serve as groundwater reservoirs. The major
feeders for the surface waters come from the pre-Alps area and the high-precipitation areas of
the low mountain range. Most of them flow in the northern (or north-western) direction. So the
Rhine and the Elbe as well as the Ems and the Weser flow into the North Sea and the Oder into
the Baltic Sea, whereas the Danube flows south-eastward into the Black Sea due to the
European main water shed.
2. Precipitation
Germany is located in temperate climes where wet sea air can come in during all seasons,
bringing precipitation. lt is an area of transition from mostly dominant oceanic clime to
continental clime influences. The average annual precipitation over the entire German territory
is approximately 770 mm. However, there are substantial differences in annual precipitation for
the individual regions: in Western Germany, it is 873 mm on average; in the regions east of the
higher low mountain range, it is 612 mm on average, and in some parts less than 500 mm; in
the high regions of the low mountain range the annual precipitation is, in some parts, 1,200 to
1,400 mm and, in some specific regions, even more than 1,800 mm; and in the Alps, annual
precipitation is more than 2,000 mm in general.
3. Water balance, availability and use of water
The water balance for Germany is established by taking into account the precipitation quantity,
the specific area-related flowing-in and flowing-off quantities and evaporation. Seen on the
whole and in the long term, the water quantities flowing off the German territory are substantially
higher than those flowing in (namely about 38% higher). From this data, the actual availability
of water may be calculated, i.e. the available quantity of groundwater and surface water. With
an available water quantity of 188 billion m3, Germany is a country abundant with water. The
said quantity has been calculated as an average value over about 30 years. Despite such
abundant water supply in general, there are some confined low-water areas in Germany too.
This is particularly true for some of the congested urban areas. Water shortage and water
abundance within the different regions are balanced there. To that end, there are natural
groundwater reservoirs in some cases and regional dam systems in other cases.
3
The available water resources in Germany are utilised by exploitation on the part of industry
(including thermal power plants and mining), private households and agriculture. The
withdrawals of water totaled about 35.6 billion m3 in 2004 which is 10.7 billion m3 less than in
1991. Thus the available water quantities remained unutilised at about 81%. Utilisation of
water by agricultural undertakings is of minor relevance in Germany; they were at about 0.14
billion m3 in 2004 which equals approximately 0.1% of the total available. The major part of
utilisation with about 85% was attributable to industry. lncluded therein is a major share of
cooling water for the thermal power plants of about 75% which amounts to 22.5 billion m3. The
remaining 25% utilised by the industrial sector are withdrawals by the mining and processing
industry, amounting to 7.7 billion m3. The water demand of private households in Germany
accounts for about 15% of the overall utilisation; accordingly, the portion of public water supply
amounted to 5.5 billion m3 in 2004.
Public water supply was ensured by 6,383 enterprises in Germany in 2004 (with 5,043 thereof
performing exploitation/production on their own). Drinking water was for the most part produced
from groundwater and spring water (73.5%). The remaining demand was covered by surface
water and bank filtrate. In Germany, 99% of the population is connected to public water supply.
The per capita consumption of drinking water per inhabitant and day decreased from 147 litres
in 1990 to 126 litres in 2004. The cause for such decrease is, besides “water-saving”
measures, to be found in investments for reduction of water losses made by water supply
utilities (e.g. due to pipe bursts and leakages). Also in big industry (including the thermal power
plants and in the mining and processing industry (manufacture), water consumption was
substantially reduced in the period from 1991 to 2004 due to technical innovations.
4. Results of the 2004 analysis under the EC Water Framework Directive
The so-called “Bestandsaufnahme 2004” (2004 analysis) performed under Art. 5 of the EC
Water Framework Directive (Directive 2000/60/EC) of 23 October 2000 (OJ EC, L 327/1) serves
to investigate the current impact on waters and to assess whether the waters in Member States
will arrive at the status defined by the environmental objectives under Art. 4 in conjunction with
Annex V of the EC Water Framework Directive by the year 2015. According to the 2004
analysis of the surface water bodies in the Federal Republic of Germany:
• approximately 14% of these are likely to arrive at the status defined by the
environmental objectives by 2015;
4
• approximately 60% of these are unlikely to arrive thereat without additional measures
being taken; and
• for approximately 26% of the analysed water bodies, it is completely uncertain whether
they will arrive at the so defined status.
Official statements confirm that the morphological impact on water structures and the existing
transverse constructions preventing natural migration of fish and small organisms, are the most
frequent cause for the finding that many surface waters in Germany will possibly fail to achieve
the objectives under the EC Water Framework Directive. Apart from that, there is usually more
than one cause for some waters failing to achieve good condition. There are, for instance,
dammed rivers or other flowing waters which are, in addition, polluted by nutrients and show a
dramatically increasing algae population. Where technical and constructional utilisation (in
particular through navigation, water power utilisation or settlement of bank areas) has caused a
substantial and permanent change of the morphology of the waters concerned, the latter may
be definitely referred to as “heavily modified”.
The German authorities are right to emphasise that water protection has been successful in
Germany in the past. There is only marginal pollution by hazardous substances to be found in
many waters today. Most of them show a good oxygen balance. The key point is that the EC
Water Framework Directive – due to its integral focusing on river basin areas and integrative
environmental objectives (Art. 3, 4 EC Water Framework Directive) – stipulates more diverse
and farther ranging requirements. lt basically requires more natural water structures. For such
purpose, the Directive requires the development of programs of measures and management
plans (Art. 11, 13 EC Water Framework Directive) as well as due execution of such programs
and plans. These are to focus likewise on both the ecological target state and the multitude of
utilisation.
As to groundwater, the 2004 analysis showed that in Germany:
• approximately 47% of the analysed water bodies are likely to arrive at the status defined
by the environmental objectives by 2015; and
5
• approximately 53% of the analysed water bodies are unlikely to arrive thereat without
additional measures being taken.
The reports of the German “Länder” show that the quantity of the groundwater in Germany is
seldom affected adversely. What is worse is its chemical quality. This may be concluded from
the fact that it is uncertain or unlikely for about 53% of the groundwater bodies whether they will
reach a good chemical status without additional measures being taken. These quality problems
are, in most cases, due to nutrients from agriculture.
II. Constitutional structure of the Federal Republic of Germany
1. General principles of the German “Bundesstaat”
The German “Bundesstaat” is “a constitutional federation of individual states, based on the
constitution of the over-all state”; the individual states are the German “Länder”. They remain
states in the legal sense and act as constituent states. The “Bund” is an organized union and
federal over-all state. The key issue in the federal constitution is the allocation of competences.
Public responsibilities are assigned either to the constituent states or to the federal over-all
state, i.e. to the “Bund” or the “Länder”, depending on the respective competence areas. Art. 79
para. 3 of the “Grundgesetz” (German Constitution – hereinafter “GG”) guarantees that the
“Bund” is divided into the “Länder”. It further ensures general participation of the “Länder” in the
legislation as well as the essential features of a “Bundesstaat” (as defined in Art. 20 para. 1
GG).
The “Bundesverfassungsgericht” (German Federal Constitutional Court – hereinafter “BVerfG”)
confirmed the Federal Republic of Germany to be a two-level federal state. Accordingly, the GG
allocates the competences to the “Bund” on the one hand and to the “Länder” on the other . The
“Bund”, as the superordinate over-all state is, in principle, superior to the “Länder”; “equality is
only given in such fields for which specific regulation by the federal constitution is missing”,
(BVerfGE – decisions of the BVerfG – 13, p. 54, 79). Such general superordinate position of the
“Bund” is combined with the systematic principle of competences being assigned to the “Länder”
(Art. 30, 70, 83 GG). The “Bund” may only act if and to the extent that certain competences are
specifically assigned to it (principle of subsidiarity). Such balance has long since been disturbed
6
by the extension and exhaustion of competences being specifically assigned to the “Bund” and,
in recent times, by the Europeanisation of legislation.
What is characteristic of the German “Bundesstaat” is that competences are allocated
separately as regards the legislative power and the executive power (Art. 70 et seq., Art. 83 et
seq. GG). The legislative competences of the “Bund” reach considerably farther than its
administrative competences. Vice versa, the “Länder” are assigned far more extensive
competences on the administrative level than on the legislative level. The laws of the “Länder”
(“Landesgesetze”) are, in principle, enforced by the “Länder” within their own responsibility,
whereas the “Bundesauftragsverwaltung” (administration by order of the “Bund”) is a rare and
exceptional case (Art. 83 to 85 GG). Enforcement of the laws of the “Länder falls imperatively
within the exclusive competence of the “Länder” (Art. 30 GG). Their independence as states is
thus essentially based on their executive power.
The “Bund” exercises towards the “Länder” the so-called “abhängige Bundesaufsicht” (Federal
Government supervision) (Art. 84 para. 3 to 5, Art. 85 para. 3, 4 GG) which has gained only little
importance up to now. In addition, the “Bund” may exercise the so-called “Bundeszwang”
(Federal Government compulsion) (Art. 37 GG) which is deemed the ultima ratio and has not
ever been used hitherto. lt is characteristic for the practice of the German “Bundesstaat” that its
constituent states prefer settling any arising conflicts by judicial proceedings rather than by a
political approach. For such purpose, they either take recourse to the BVerfG (“Bund-Länder-
Streit”/Bund-Länder dispute according to Art. 93 para. 1 no. 3 GG) or settlement is sought in
administrative court proceedings (§ 40 para. 1, § 50 para. 1 no. 1 VwGO – German Law of the
Administrative Courts, jurisdiction of the Bundesverwaltungsgericht (BVerwG) – German
Federal Administrative Court; BVerwGE – decisions of the BVerwG – 87, p. 169; 102, p. 119).
The German “Exekutivföderalismus” (executive federalism) is supplemented by the guarantee of
self-government of the local communities (“kommunale Selbstverwaltung”, Art. 28 para. 2 GG).
In the German “Bundesstaat”, the Länder are, by virtue of the Constitution, divided into
“Gemeinden” (communities) and “Gemeindeverbände” (public law corporate bodies on a higher
level than the communities, responsible for self-government tasks) as local authorities. Such
organisation entails the over-all state structure being subdivided into several territorial
authorities which are the “Bund”, the “Länder” and the local authorities (vertical separation of
powers).
7
lndeed, German federal state practice is familiar with numerous cooperations between the
“Bund” and the “Länder” as well as among the individual “Länder” and between the state
authorities on the one hand and the local authorities on the other hand. lt is however deemed
contrary to the Constitution to form “common bodies adopting binding majority decisions,
because of the interference with the democratic responsibility of each individual Land (Art. 28
GG) related thereto…” or to arrange for “any fiduciary performance of the responsibilities of the
Länder by a certain authorised Land” (Scheuner, DÖV 1962, p. 641, 648). The two-level
German “Bundesstaat” “is not familiar with any common bodies of the “Länder” which would
create a new common level of the Länder besides the “Bund” and which would occur in addition
to the bodies of the federal over-all state which uniformly perform common responsibilities”
(Scheuner, cf. above). Any responsibilities of the “Länder” are thus to be decided and
performed by the democratic bodies of each individual “Land”; there is “no level of common
institutions of the Länder” (Scheuner, cf. above). Mixed administration by both the “Bund” and
the “Länder” is deemed a contravention of the democratic responsibility of the executive
authorities of the individual “Länder”.
2. Federal allocation of competences for water resources management
The GG of the Federal Republic of Germany was recently amended by the so-called federalism
reform, namely by amending law of 28 August 2006 (BGBI. – German Federal Law Gazette part
I p. 2034), with effect as of 1 September 2006. Such reform is of relevance for the system and
numerous areas of competence, in particular for legislative competence in the field of water
resources management.
A) The former constitutional regulations
Under the former constitutional regulations (i.e. before the amending law of August 2006) which
had been effective until September 1, 2006, the “Bund” was only assigned the competence for
“Rahmengesetzgebung” (skeleton legislation) in the field of water resources management (Art.
75 para. 1 no. 4, former version of the GG). According to the BVerfG, the term “water resources
management” comprises any legal regulations governing “the management of the water
available in nature as regards its quantity and quality” (BVerfGE 15, p. 1, 15). Such
competence of the Bund was limited to the fixing of a skeleton requiring the completion by
detailed regulations of the Länder. This competence was further limited by the requirement of
“necessity” of such legislation on the part of the “Bund”. The power to adopt detailed water law
8
regulations was thus assigned to the legislative authorities of the “Länder”. The
“Wasserhaushaltsgesetz” (German Water Resources Act – hereinafter referred to as WHG – the
current version is 19 August 2002, BGBI. l p. 3245, having been amended several times
thereafter) as a skeleton law of the “Bund” and the water laws of the 16 “Länder” are based on
the said allocation of competences.
The BVerfG declared the “Bundesgesetz zur Reinhaltung der Bundeswasserstraßen” (German
Federal Act for clean federal waterways) of 17 August 1960, which was passed at an early point
in time, to be contrary to the Constitution and thus void for acking legislative competence of the
“Bund” (BVerfGE 15, p. 1). In 1994, the competence of the “Bund” for skeleton legislation
temporarily became even more restricted by an amendment to the GG (Art. 72 para. 2, Art. 75
para. 2, former version of the GG).
Under the former constitutional regulations (i.e. before the amending law of August 2006), the
“Bund” was assigned full “konkurrierende Kompetenz” (concurrent legislative power) for the field
of federal waterways but only as regards their function as traffic routes (i.e. for navigation
purposes). Pursuant to the relevant court rulings, the administrative power of the “Bund” in the
field of federal waterways under Art. 89 para. 2 GG is likewise limited to the function of such
waterways as traffic routes, excluding any water management and drainage issues.
Consequently, any administrative acts or decisions relating to water management which are
taken by the federal authorities with regard to federal waterways constitute an infringement of
the administrative competence of the “Länder” (Art. 30, 83 GG; BVerfGE 21, p. 312).
The limits of skeleton Iegislation, the restrictive interpretation by the BVerfG as regards the
mere skeleton and the necessity of legislation on the part of the “Bund” (BVerfGE 106, p. 62,
144; 110, p. 141, 174 et seq.; BVerfG, NJW 2004, p. 2363 and 2803; BVerfG, NJW 2005, p. 493
et seq.) as well as the ever increasing Europeanisation of the administrative law and the
increasingly stricter compulsions to implement EC law according to Art. 249 para. 3 EC Treaty
discredited the mode of skeleton legislation in Germany. Two national stages of implementation
have appeared to be too complicated, in particular because the skeleton legislation of the
“Bund” was too constricted by its constitutional limits.
B) The new constitutional regulations
The federalism reform by amending law of 28 August 2006 strengthened and extended the
9
concurrent legislative competence of the “Bund”. lt now also covers water resources
management (Art. 74 para. 1 no. 32 GG). Skeleton legislation was completely abandoned (Art.
75 GG was abrogated). However, those skeleton laws which were passed by the “Bund” under
the former constitutional regulations continue in force (Art. 125 b para. 1 sentence 1 GG), This
is also true forthe “Wasserhaushaltsgesetz” (German Water Resources Act).
As regards the key areas of environmental protection, including water resources management,
the exercise of concurrent legislative power by the “Bund” is no longer subject to the
requirement of necessity vice versa conclusion from cf Art. 72 para. 2 GG). However, the
“Länder” may – according to Art. 72 para. 3 GG – pass regulations notwithstanding the existing
legislation of the “Bund”. This competence includes the field of water resources management;
however, any regulations under federal law regarding specific substances or facilities are not
subject to such deviating competence of the “Länder”. In addition, the “Länder” may only pass
regulations notwithstanding the federal laws if, and to the extent that, the “Bund” exercised its
legislative power after 1 September 2006, and no later than from January 1, 2010 (Art. 125 b
para. 1 sentence 3 GG). The constitutional situation enables the “Bund” to adopt – in an
“untroubled” manner – a “Umweltgesetzbuch” (Environmental Code – hereinafter referred to as
UGB). lt is thus referred to as the “UGB moratorium”. However, as a whole, the new
constitutional situation regarding the legislative powers in the field of environmental law is
complicated and prone to conflicts.
The “Bundesumweltministerium” (German Federal Environment Ministry) is currently preparing
a draft bill for a UGB. This draft bill includes, inter alia, a “book II (water management)”. The
draft has not been adopted by the “Bundesregierung” (German Federal Government) yet and
thus has not yet been introduced into the Parliament either. The draft is subject to controversial
political judgment. The political dispute primarily pertains to the general part of the draft bill
(UGB I, the problem of integrated project approval). On the other hand, the intended code on
water management (UGB II) seems to be more likely to gain consensus. One key aspect in
connection therewith again is the compulsion to implement European law, most recently the
Flood Directive 2007/60/EC of 23 October 2007 (OJ EU, L 288/27). The new constitutional
situation has caused the “Bund” to make an effort to exercise its new concurrent legislative
competence in the field of water resources management and to so create a uniform German
water Iaw.
10
Ultimately, the German federalism reform did not change the general rule of administrative
competences in the field of water resources management lying with the “Länder”. If and to the
extent that the “Bund” actually exercises its concurrent legislative power according to Art. 74
para. 1 no. 32 GG, the administrative competence of the “Länder” follows from Art. 83 and Art.
84 GG. The “Länder” may at their discretion assign water management tasks to the local
authorities within the framework of local self-government of the communities or to the so-called
“Wasserverbände” (bodies responsible for water issues) under public law, also acting as selfgoverning
authorities. In particular, North-Rhine Westphalia extensively assigned such
responsibilities to some large “Wasserverbände (for example Ruhrverband, Lippeverband and
Erftverband)”.
III. Water management within the river basin districts in Germany
1. Starting situation and problems to be resolved
The starting situation of water management is characterised by two features in Germany.
First of all, the entire water circulating in nature is subject to strict utilisation rules under public
law and to public management. As a rule, any kind of utilisation of water (i.e. surface waters,
groundwater and coastal waters) requires an official permit or license by the competent water
authorities (§ 2 et seq. WHG). These may decide to grant or refuse to grant such permit or
license at their management discretion. The BVerfG has held that it is in line with the GG that
the “Wasserhaushaltsgesetz” also subjects subsurface waters to public law rules of utilisation,
independent and regardless of specific land ownership, for ensuring the functioning of water
management and, in particular, public water supply (BVerfGE 58, p. 300 et seq.). Such
provision defining the contents, scope and limits of private property is deemed in line with the
Constitution (Art. 14 para. 1 sentence 2 and para. 2 GG). Accordingly, private property
ownership does not authorise any water utilisation which requires a permit or license under the
“Wasserhaushaltsgesetz” or the water Iaws of the individual “Länder”, nor does it grant the right
to develop any such water body (§ 1 a para. 4 WHG).
Secondly, the starting situation is characterised by the fact that the territories of the individual
German “Länder” do not correspond to the natural river basins or catchment areas. The
territorial boundaries of the individual “Länder” were determined by the “haphazards” of political
11
history. They thus often run and cut through river basins and catchment areas. The federal
structure and allocation of competences have meant that each German “Land” performs its own
administrative water management on the basis of its formerlegislative powers and in particular
its administrative powers.
This causes problems in the implementation of the EC Water Framework Directive and in the
administration of river basins which the said Directive imposes on the Member States for
achievement of the environmental objectives (according to Art. 4 in conjunction with Annex V
EC Water Framework Directive).
Neither the internal territorial structure of the German “Bundesstaat” nor the tradition of
autonomous water management by the German “Länder” is tailored to an administration which
is in line with the natural territories of the river basins.
2. Requirements of the EC Water Framework Directive as to “appropriate
administrative arrangements” within the river basin districts
The requirements of the EC Water Framework Directive refer – in factual respect – to the
abovementioned environmental objectives and – in territorial respect – to the individual river
basin districts. The Directive defines such a district as an “area of land and sea, made up of
one or more neighbouring river basins together with their associated groundwaters and coastal
waters which is identified under Art. 3 (1) as the main unit for management of river basins” (Art.
2 no. 15). Member States must identify the individual river basins lying within their respective
national territory and assign them to a specific river basin district for the purposes of the
Directive (Art. 3 para. 1 sentence 1). The German version of the Directive furthermore says that
the Member States have to ensure “geeignete Verwaltungsvereinbarungen” (appropriate
administrative arrangements), “including the identification of the appropriate competent
authority, for the application of the rules of this Directive within each river basin district lying
within their territory” (Art. 3 para. 2). The obligatory river basin districts are reference
parameters for administrative organisation. They are neither bound to the existing
administrative districts of the state or local authorities nor to the boundaries of the German
“Länder”. They are rather to be determined in accordance with the natural territory features
defined by the Directive.
The Directive does not require specific river basin authorities to be created. Thus the Member
12
States do not need to have special authorities which are assigned water management
competences according to the British model of River Basin Authorities. A federal state such as
the Federal Republic of Germany may maintain its decentralised constitutional structure but has
to ensure appropriate river basin administration by targeted coordination among the existing
authorities. This requires cooperative organisational and procedural approaches.
Art. 3 para. 3 and 4 EC Water Framework Directive requires international river basin districts to
be identified. The Member States have to ensure that a river basin covering the territory of
more than one Member State is assigned to an international river basin district. The German
version of the Directive insofar again requires the Member States to ensure “geeignete
Verwaltungsvereinbarungen” (appropriate administrative arrangements), “including the
identification of the appropriate competent authority” for application of the Directive within their
respective national territories. According to Art. 3 para. 4 of the Directive, the Member States
have to ensure that the requirements of this Directive for the achievement of the environmental
objectives established under Art. 4, and in particular all program of measures, are coordinated
for the whole of the river basin district. For international river basin districts, special
coordination duties are to be observed.
Transboundary coordination between the individual “Länder” is in line with the German
Constitution, provided that such coordination is a mere consensual and consultative one, e.g. by
way of arrangements or unanimous decisions taken by and among the authorities involved.
However, such coordination would constitute an unlawful mixed administration if it was
performed by way of binding majority decisions taken by the authorities of several different
“Länder”. Pursuant to the principles of “Bundesstaat and Demokratie” (federalism and
democracy), each individual body and each individual administrator within the territorial
authorities (“Bund”, “Land” or “Kommune”) must be specifically legitimated. The same is
required as regards their specific democratic responsibility. Any participation of external bodies
or persons would breach and infringe the democratic connection ensuring legitimation and
responsibility.
3. The river basin districts under German law
German law (§ 1 b para. 1 WHG) defines the following 10 river basin districts (see map shown
in Annex 1):
13
(1) Danube
(2) Rhine
(3) Maas
(4) Ems
(5) Weser
(6) Elbe
(7) Eider
(8) Oder
(9) Schlei/Trave
(10)Warnow/Peene
Most of these river basin districts extend over several German “Länder”. Except for the river
basin districts Weser and Warnow/Peene, they are also international river basin districts (see
table shown in Annex 2). Pursuant to § 1 b para. 2 WHG, the skeleton regulation of the
“Bund”, coordination of the management of the river basin districts is regulated by the laws of
the “Länder” for achievement of the statutory management objectives defined by European law.
The competent authorities of the “Länder” assign the individual basin or catchment areas lying
within their state boundaries to a specific river basin district (§ 1 b para. 3 WHG).
The water laws of the individual German “Länder” do not contain any organisational or
procedural regulations for a formal association of administrative bodies for coordination of water
management in the river basin districts. There are only administrative arrangements and
working committees for informal coordination of the actions of the authorities relating to the
transboundary and international river basin districts. These working committees do not make
any binding decisions. They are limited to mere informal and preparatory coordination. Such
procedure is based on a corresponding consensus between the German “Länder”. However,
genuine associations of administrative bodies and mixed administrations are not acceptable for
the objections under constitutional law set forth above.
From the viewpoint of European law, it is sufficient if the Member States create appropriate
administrative structures and especially appropriatecompetent authorities for water
management to ensure application of the EC Water Framework Directive within each individual
river basin district lying within their respective territories (Art. 3 para. 2 EC Water Framework
Directive). Informal coordination by administrative arrangements and working committees may
14
principally satisfy this requirement. However, the EC Commission will supervise the
appropriateness of such a coordination approach. In the case of controversies, the European
Court of Justice will have to decide.
In the event that informal administrative arrangements and working committees should be
ineffective, they will no longer satisfy the requirements under European law in which case they
will not bear up under supervision by the Commission and the European Court of Justice. In
connection therewith, it has to be pointed out that the English version of the EC Water
Framework Directive refers to “appropriate administrative arrangements”. The French version
likewise requires “dispositions administratives appropriées”. The formulation used in the
German version of the Directive “geeignete Verwaltungsvereinbarungen” is comparatively a
more restrictive term, because it is limited to treaties and agreements. The English and the
French versions using broader terms which include orders, settlements, measures and
precautions. These extensive terms will have to be considered decisive for the European
practice.
Already the program of measures for respective river basin district (or, respectively, for such
part of an international river basin district as lies within the national territory of the respective
Member State, Art. 11 EC Water Framework Directive) and the management plans for the river
basins (Art. 13 EC Water Framework Directive) have to meet the said requirements. Both
planning acts must have been drawn up by 22 December 2009. We will have to wait to see
whether this will be done in time and in a transparent and sufficiently conclusive manner. The
same is the case with the subsequent execution of the programs of measures and management
plans. In this respect, the first execution period from 2009 to 2015 will be the essential one. lt
will constitute the key practical test for the national administrations in the respective river basin
districts. This will also and in particular be true for Germany where informal coordination
between and among the authorities of the “Länder” and the local self-government authorities in
the transboundary and international river basin districts will have to stand the test.
4. Topical aspects and legal practice issues
From the point of view of legal practice, it has to be pointed out that for international river basin
districts, namely those of the Rhine, Elbe and Danube, international committees for the
protection of these rivers were formed on the basis of international treaties. These committees
stand out due to their generally acknowledged and successful cooperation for several decades.
15
They have collaborated, in particular, common surveys, remediation concepts and programs of
measures. Their potential regarding international cooperation may and must be used for the
benefit of the European and national water management requirements in the respective river
basin districts. So the chances of effective administration in the river basin districts and
targeted and successful preparation and execution of programs of measures and management
plans under Art. 11 and 13 EC Water Framework Directive will increase. Due to the forcing
requirement of international cooperation, deficiencies in informal national coordination (including
malfuncations the relationship between and among the authorities of the “Länder” and the local
self-government authorities in Germany) can be overcome.
Nevertheless, water management within the river basin districts in Germany is not an
unproblematic field. Deficiencies are expected to occur where there is no motivation and
requirement of international cooperation. This will be the case with the mere national river basin
districts, for example, the Weser river basin district. There, the spring river Werra is highly
polluted due to extreme discharge of salts from a certain industry (potash production). The bad
water condition in the Werra-Weser river system is completely contrary to the environmental
objectives defined by Art. 4 and Annex V of the EC Water Framework Directive. The German
“Länder” involved, in particular Hesse, Thuringia, Lower Saxony and North-Rhine Westphalia,
took controversial positions on how to actually handle the situation with respect to both legal
assessment and water management issues. Such controversy refers to both the assessment of
the current situation and the future development of the rivers Werra and Weser. Amazingly,
there is no institutionalised coordination among the concerned “Länder” yet. There are not even
informal administrative arrangements and working committees to ensure the necessary
coordination, which these “Länder” could use as a forum of administrative coordination and
river basin district management. These issues require legal clarification. They are the subject
matter of currently pending legal proceedings.
IV. Conclusion
Finally, the situation may be summed up as follows: water management in river basin districts
has caused the Federal Republic of Germany to be confronted with novel tasks and
requirements, which is in particularly due to the federal constitutional structure of the German
“Bundesstaat”. The EC Water Framework Directive requires the “departure for pioneer tasks”.
Nonetheless, the prevailing opinion in Germany is that the decentralised powers of the
administrative authorities of the “Länder” and the self-government of local authorities and of
16
regional bodies are favourable to the realisation of effective water management. Federal and
decentralized structures are regarded as the best guarantee for democratic legitimation and
control of decisions and measures, for the participation of all interested parties and for a wellbalanced
settlement of interests in the field of water policy. This prospect is worth the
coordination efforts related thereto because such approach is most likely to bring about
reasonable reconciliation of different interests.
Professor Dr. Rüdiger Breuer, lawyer
Prof. Dr. R. Breuer
Köhler & Klett Rechtsanwälte Partnerschaft
Cologne / Berlin / Brussels
Cologne, June 23, 2008 65/70 RB/SF Dl 7/Di 3336
17
Bibliography
Albrecht, Juliane, Umweltqualitätsziele im Gewässerschutzrecht, 2007
Albrecht, Juliane, Rechtliche und organisatorische Aspekte grenzüberschreitender
Flussgebietsverwaltung, in: Deutsches Verwaltungsblatt 2008, pp. 1027 – 1035
Breuer, Rüdiger, Gewässerschutz und Föderalismus aus Sicht der Wissenschaft, in: Kloepfer
(Ed.), Umweltförderalismus, 2002, pp. 403 – 439
Breuer, Rüdiger, Öffentliches und privates Wasserrecht, 3rd edition, 2004
Breuer, Rüdiger, Praxisprobleme des deutschen Wasserrechts nach der Umsetzung der
Wasserrahmenrichtlinie, in: Natur und Recht 2007, pp. 503 – 513
Bundesministerium für Umwelt, Naturschutz und Reaktorsicherheit (BMU)IUmweltbundesamt
(UBA) (Eds.), Die Wasserrahmenrichtlinie – Neues Fundament für den Gewässerschutz in
Europa, 2nd edition, November 2004
Bundesministerium für Umwelt, Naturschutz und Reaktorsicherheit (BMU)IUmweltbundesamt
(UBA) (Eds.), Die Wasserrahmenrichtlinie – Ergebnisse der Bestandsaufnahme 2004 in
Deutschland, 2nd edition, August 2005
Czychowski, Manfred/Reinhardt, Michael, Wasserhaushaltsgesetz, Kommentar, 9th edition,
2007
18
Hasche, Frank, Das neue Bewirtschaftungsermessen im Wasserrecht, 2005
Kappert, Jan, Qualitätsorientierter Gewässerschutz in Deutschland, 2006
von Keitz, Stephan/Kessler, Peter, Grenzen des Flussgebietsmanagements – Folgt die
Wasserwirtschaft dem falschen Ansatz ?, in: KW Korrespondenz Wasserwirtschaft 2008, pp.
354 – 360
Kraemer, Andreas R./Jäger, Frank, Deutschland, Länderbericht, in: Länderarbeitsgemeinschaft
Wasser (LAWA)/Correia/Kraemer (Eds.), Eurowater Vol. 1, Länderberichte, Institutionen der
Wasserwirtschaft in Europa, 1997, pp. 13 – 187
Rumm, Peter/von Keitz, StephanlSchmalholz, Michael (Eds.), Handbuch der EUWasserrahmenrichtlinie,
2nd
edition, 2006
Solf, Sandra, Europäisches Flussgebietsmanagement und deutsche Wasserwirtschaftsverwaltung,
2006
Starck, Christian (Ed.), Förderalismusreform, Einführung, 2007