NIERUCHOMOŚCI C.H.Beck, 6/2024
Alicja Slawinska
LEGAL BASIS AND ESSENCE OF THE WATER PERMIT
The legal provisions dedicated to the procedure for obtaining a water permit are regulated in the Act of 20 July 2017. – Water Law1 (hereinafter: ‘Water Law’ or ‘the Act’). The aforementioned legal act regulates (i) the management of water in accordance with the principle of sustainable development, in particular the shaping and protection of water resources, the use of water and the management of water resources and (ii) matters of ownership of water and land covered by water, as well as the principles of management of these components as property of the State Treasury. An essential instrument of water resources management is the procedure for issuing water consents systematised in Section Nine (IX) of the Act. Although in the text of Article 388(1) of the Water Law, the legislator lists various forms of water law consents, the article in question is devoted entirely to the issue of a water law permit. The water permit issued by means of an administrative decision plays a key role in the system of shaping and managing water resources in the country. It fulfils an important function in various sectors of activity, i.e. agriculture, industry, environmental protection or recreation. Articles 389 and 390 of the Water Law contain a closed catalogue of cases requiring a water permit prior to the implementation of an intended construction project or the construction of a facility; the water permit precedes the issuance of an investment decision in the form of a construction permit. Unless the Act provides otherwise, a water permit is required in the following cases, among others:
– water services as defined in Article 35 of the Water Law,
– special use of water as defined in Article 34 of the Water Law,
– prolonged lowering of the groundwater table,
– reclamation of surface water and groundwater,
– implementation of water facilities,
– water regulation, development of mountain streams and shaping new channels of natural watercourses,
– landform alteration on land adjacent to waters, affecting water flow conditions,
– the carrying across of bridges, pipelines, conduits in conduits or culverts over flowing surface waters and over dykes,
– the routing of overhead power and telecommunication lines through inland waterways and across dykes.
The web portal Państwowe Gospodarstwo Wodne Wody Polskie contains a range of practical and useful information for an applicant aiming to issue a water permit covering water services or facilities2. The administrative body competent for water-legal consents is the relevant authorities of Wód Polskie; the competent authority for water-legal consents is the Minister of Water Management, if Wód Polskie is the applicant. According to Article 397(3) para. 1a of the Water Law, the competent authority for issuing water-legal permits is the director of the regional board for water management of the Polish Waters. Water permits are issued by way of an administrative decision for a specified period of time, not longer than 30 years, calculated from the date on which the decision became final; subject to the time limits for the validity of water permits for individual investments as provided for in Article 400(3) of the Water Law. The issuance of water law permits is subject to fees concretised and profiled according to the nature of the investments made in Article 398 of the Water Law. As of 1 January 2024. The Minister of Infrastructure introduced by way of a proclamation3 new fee rates for the issuance of water law permits.
PARTY TO THE WATER PERMIT PROCEEDINGS
Pursuant to Article 401 of the Water Law, a Party to proceedings on water law permits is the applicant and the entities which will be affected by the intended water use, or the entities located within the range of influence of the water facilities planned to be constructed. “The question of the status of a party in a water permit case is determined by a provision specific to Article 28 of the Code of Administrative Procedure. – Article 401(1) p.w., which stipulates that the parties to the water permit proceedings are: the applicant and the entities affected by the intended water use, or the entities located within the range of influence of the water facilities planned to be constructed. Thus, the issue of the extent of the impact of the investment cannot be considered irrelevant, as it will be important for the correct determination of the circle of parties to the proceedings.1” When determining the circle of parties to the proceedings for the issuance of a water permit, the authority is guided by the provisions of Article 401 et seq. of the Water Law, which are lex specialis. Water Law of lex specialis nature in relation to the general provision of Article 28 of the Act of 14 June 1960. – Code of Administrative Procedure (hereinafter: “k.p.a.”).2 As a result, the circle of parties to the proceedings has been limited by the legislator to the scope defined in the special provision referred to.
An important issue is the proper understanding of the premise of the impact of the intended investment by answering the following questions:
(i) which entities may be affected by the intended water use and,
(ii) what entities are within the range of influence of the proposed water facilities.
According to the thesis of the judgment of the Voivodship Administrative Court in Rzeszów, “In order to accept that the premise that the property is within the range of impact of the planned investment is fulfilled, it is not necessary to establish that the planned overburdening of the land will actually, actually and directly affect the property in question, as it is sufficient to establish that the planned works may at least indirectly affect the neighbouring property in question or a part thereof.3” Only a reliable and thorough analysis of the document in the form of the water supply operation permit the determination of the range of impact of the intended investment. Given the key role of the water permit operative, a separate section of this article is devoted to the document.
The water permit procedure is also characterised by its specificity in terms of the notification of the participating parties to this administrative procedure. Pursuant to Article 401(3) of the Water Law, if the number of parties to water permit proceedings exceeds ten (10), Article 49 of the Code of Administrative Procedure, i.e. notice by public notice, shall apply to parties other than the applicant. Notice through this public procedure shall be deemed effective fourteen (14) days after the date of notice. Another characteristic solution adopted in the water permit procedure is, in principle, the lack of possibility of initiation as well as participation of social organisations by excluding the application of Article 31 of the Code of Administrative Procedure. When applying Article 402 para. 1 of the Water Law, however, caution should be exercised, as due to the implementation of the regulations of the EU directives or conventions, the exclusive participation of social organisations need not be automatic or definitive – “The authorities of both instances incorrectly assumed that the application of Article 31 of the Code of Administrative Procedure in proceedings for granting a water law permit is, in principle, excluded.4 ”
To conclude, the determination of the circle of parties to the water permit proceedings is governed by the specificity dedicated to the water permit procedure described above, which should be kept in mind when applying for a water permit.
WATER SUPPLY LAW OPERATIVE
The water law operative is a document whose content and formal requirements are defined in Articles 408 and 409 of the Water Law Act; it is one of the key documents obligatorily attached to the application for a water law permit, which are enumerated in Article 407(2) of the Water Law Act. The primary function of the document is to formulate the principles of water management in a given area or site and to protect and balance the use of water resources. It contains data on the planning and use of water resources in a way that takes into account the specifics of water activities and aims to maintain a balance in water management. The water rights report is an obligatory element of the documentation attached to the application for a water rights permit referred to in Article 407(2) para. 1 of the Water Law, together with a description of the intended activity not containing specialist terms. According to the thesis of the judgment of the Regional Administrative Court in Rzeszów of 28 November 2019. – “During the preparation of the water law operative, the most important thing is that it contains all those elements which affect the correct determination of data in the water law permit to be granted. The provision of Article 409(1) p.w. indicates what information the water law operative should contain, but clearly states that this content should be adapted to the type of activity to which the water law permit relates.1 ” According to Article 408 of the Water Law, the water law operative shall be drawn up in writing in descriptive and graphical form, as well as on computer data carriers as a text document, and the graphical part of the operative in the form of raster type files (PDF) or files in vector spatial data format, mapped in one of the applicable geodetic coordinate systems.
It should be noted that the water supply and environmental report does not constitute an expert opinion, and the administrative authority examining the documentation for the purpose of issuing a water permit is in no way bound by its contents, in particular the extent of the impact of the intended water use. According to the thesis of the judgment of the Supreme Administrative Court of 28 October 2020. – “A water law report, despite the fact that it should be prepared by a person with special knowledge and relevant experience, is not an expert opinion, but a private document which constitutes evidence subject to assessment also under the general rules of evidence procedure, as it must be based on correct, reliable and verifiable data concerning the subject of the study to the authority and the parties to the proceedings.2 ” At the same time, it should be noted that, due to the experience and knowledge of the authorities verifying the water supply law operative, the questioning of the evidentiary value of the water supply law operative will not in every case involve the need for expert opinion evidence. Should doubts arise as to the data or calculations contained in the water supply operation, the authority reviewing its content remains entitled to ask the applicant to clarify the incomprehensibility that has arisen.
THE INSTITUTION OF A PROMISE OF A WATER PERMIT (PROMISE)
An administrative decision on the promise of a water rights permit, as referred to in Article 412 of the Water Law, with a specified expiry date, is issued by the authority competent locally to issue water rights consents. “The promise in question is an institution designed to ensure that the investor will obtain a water law permit in the future. Indeed, according to Article 412(5) of the Water Law, during the period of validity of the promise referred to in paragraph (1), the authority competent for water law consents may not refuse to issue a water law permit, unless the premises referred to in Article 399 of the Water Law exist. The assessment of whether an investor wants to obtain a promise depends solely on the investor and the situation in which he finds himself. It may be needed, for example, to obtain a loan or to prepare an investment.1” In this context, the institution of the promise of a water permit seems to be an extremely useful tool for the corporate policy of a company applying for the so-called external financing of an intended construction investment. The legislative solution in the form of a promise may be of interest to innovative photovoltaic farms sited on a water body (use of water for energy purposes by locating a photovoltaic farm on a water body) or developers oriented towards the realisation of commercial investments, e.g. warehouses, production halls, for which the requirement of a water-law permit prior to the issuance of a construction permit is envisaged, depending on the conditions related to the specificity of a particular construction investment.
In accordance with the wording of Article 412(3) of the Water Law, the provisions dedicated to water-legal consents, i.e. Articles 389-393 and 395-411 of the Water Law, apply in the course of issuing a promise (without a reservation about their adequate or analogous application) – the above-mentioned provisions apply directly and without additional modification in the course of issuing a water-legal promise. As a result, the application for the granting of a water-legal promise is accompanied by the same documents as in the case of a water-legal permit, apart from a certificate of payment of the relevant fee provided for in Article 398 of the Water Law. The procedure for the granting of a promise is identical to the procedure for the granting of a water permit, particularly with respect to determining the circle of parties and the manner of their notification, as well as the verification to be carried out by the administrative body. Pursuant to the disposition of Article 388(2) para. 1 of the Water Law, it should be borne in mind that it is necessary for the investor to be in possession of a water permit prior to the issuance of a construction permit, and not a water permit promise, which is only a temporary solution. In conclusion, the solution proposed by the legislator should be assessed positively, if only for the fact that it leaves potential investors the choice to use it or not. The introduced regulation constitutes an improvement of the investment and construction process both for future developers and administrative bodies granting such a promise.
CHARACTERISTICS OF A WATER PERMIT
A water permit is not granted for a construction project, but concerns individual water facilities or water services related to the planned investment. Article 403(1) of the Water Law indicates the obligatory elements of a water permit, i.e. the purpose of the water facilities and other works planned to be carried out, the purpose and scope of water use, the conditions for exercising the authorisation and the obligations necessary to protect environmental resources, the interests of the population and the economy, within the range of influence of the intended water use or the water facilities planned to be carried out. “The water permit shall contain a description of the water facility, including the basic parameters characterising the facility and the conditions for its execution and its location by means of information on the name or number of the cadastral precinct with the number or numbers of the cadastral plots and coordinates.1″ In Article 403(2), the legislator has concretised the investor’s obligations in line with the type of activity to which the water permit relates by reserving detailed parameters for the amount of water abstracted, the amount of rainwater or snowmelt, the amount of sewage, etc. Each case should be considered through a careful analysis of the specific facts and the specifics of the activity carried out by the plant, as evidenced by the examples cited below. A company breeding and milking dairy cows produces industrial wastewater when washing its equipment. It discharges the resulting industrial effluent into a sealed tank and ultimately to a wastewater treatment plant (it operates under a water permit). For economic reasons, the question arose as to whether the dairy plant is entitled to transfer the produced industrial effluent to the farmers and what formalities should be fulfilled by the company or the farmers? The answer requires knowledge of the specifics of the water matter under investigation – ‘The wastewater from the washing of milking equipment containing detergents cannot be intended for agricultural use. Therefore, the Company cannot transfer them for agricultural use. (…) If this wastewater does not contain substances particularly harmful to the aquatic environment and the above-mentioned parameters are met, it can be used for agricultural purposes. Thus, the qualification of the wastewater as suitable for agricultural use will depend on the means used in washing the equipment (…)2″ Another exemplum of a water matter, the application of which in practice leaves a wide room for interpretation in the context of economic activity is the example of a bridge as a water facility. A pier consists of three independent parts; the first two attached to the ground and the third part attached to the others is used for swimming on the water. An in-depth analysis of the design and function of the device originally classified as a platform being a water facility has changed – ‘In the case presented, the platform is only the two parts that will be fixed to the ground, while the third part is a floating device. As the pier in question is used to moor a floating device, it is not a recreational pier but a marina. Therefore, a marina, consisting of a pier to which a vessel (floating device) is moored and the body of water and land necessary for the mooring of this vessel and possibly the approach road to the marina, requires legalisation.3” The argument is completed by pointing out that a pier may be treated not only as a water device, but also as a building structure within the meaning of Art. 3 pt. 1 of the Act of 7 July 1994. – Construction Law4 (hereinafter: “Construction Law”). The presented examples show what level of knowledge and insight the administrative authorities must be guided by on a day-to-day basis in order to correctly legalise water facilities or investments requiring water use or which may affect the state of waters.
Both the literal and purposive interpretation of the provisions of the Water Law unambiguously signals that only the premises for refusal to issue a water permit stipulated in Article 399 of the Water Law entitle the administrative body to issue a negative administrative decision. The catalogue of prerequisites defined in Article 399 of the Water Law is a closed catalogue and cannot be interpreted in a broader manner by an administrative body competent to issue a water permit. The position is confirmed by the thesis of the judgment of the Voivodship Administrative Court in Poznań of 10 October 2019. – “The issuance of a positive decision is the rule as long as the conditions indicated in the p.w. are met, while the issuance of a construction permit is refused when the negative prerequisites of Article 399(1) of the p.w.1 are met. ” As a result, the water permit is not a discretionary act, but a balanced decision of the competent administrative authority based on the attached technical documentation – “The authorities have no discretionary powers at their disposal and are obliged to refuse to issue a water permit in a situation where it is established that the conditions previously imposed in the granted permit have not been fulfilled by the currently applying entity.2 ” In practice, not every failure to comply with the obligations imposed in a water permit automatically gives rise to a consequence in the form of a refusal to issue a new water permit. An example is a plant with a water permit for discharging wastewater via an outlet to a river adjacent to the plant’s premises. The water permit stipulated the plant’s obligation to measure wastewater in a specific quantity per calendar year, which the plant failed to do. The administrative authorities did not find any irregularity of the plant during the regime of the original water permit, as the necessity of testing sewage samples as such was not listed among the obligations defined in Article 403(1) and (6) of the Water Law, but is one of the conditions for exercising the rights established in the water permit3.
The wording of the water permit stipulates that it does not give rise to rights to the real estate and water facilities necessary for its implementation and does not affect the ownership and rights of third parties vested in these real estate and facilities. The construction of the legal stipulation dedicated to the water permit is analogous to the essence of the decision on development conditions and land development regulated in Article 59 et seq. of the Act of 27 March 2003 on spatial planning and development4 (hereinafter: ‘the Act on spatial planning and development’) – ‘The entity applying for the establishment of development conditions does not have to hold the right to the land covered by the application at all. Thus, as a rule, ownership relations are not examined in these proceedings.5″ In light of the cited legal regulation, the question arises as to whether a facility may obtain a water permit on land to which it does not have the right of ownership or other right to dispose of the property, such as lease, tenancy or lending.
According to the wording of Article 393(5) of the Water Law, an establishment that has not obtained the rights to the real property or facilities necessary for the implementation of the water permit is not entitled to a claim for reimbursement of expenditures incurred in connection with obtaining the permit, e.g. costs related to the water permit proceedings. As a result, the question arises as to whether the issuance of a water permit in the absence of a legal title to the real estate, also in the case of an explicit objection of the real estate owner, is possible and in compliance with generally applicable laws. The answer should be sought in the closed catalogue of grounds for refusal to grant a water law permit indicated in Article 399 of the Water Law – “This thesis is confirmed by the content of Article 399, which indicates exhaustively situations in which the authority may refuse to grant a water law permit (…) The thesis of the impossibility of refusing to grant a water law permit even with the property owner’s objection is also strengthened by the content of Article 407(2) of the Water Law Act, where obligatory attachments to the application for granting a water law permit are indicated.1 ” In the presented situation, the lack of title to own or dispose of the real estate by the applicant does not constitute any legal or formal obstacle to the issuance of a negative administrative decision in the form of a water permit.
The reality of the real estate market and the accompanying circumstances have repeatedly shown that a change of the investor’s entity in the course of a construction project is not an isolated phenomenon. For such a circumstance, the legislator provided for a procedure for the transfer of the water permit under Article 411a of the Water Law, which allows the parties involved in the implementation of the investment to freely assign the water permit in question according to the needs of the investors’ internal policy. The construction of the legislative solution obliges the administrative body – with the consent of the party to whom the water permit was issued – to transfer the water permit to another entity, if this entity accepts all the conditions specified in this water permit. The act of the above described transfer shall take place by means of an administrative decision. In the procedure regulated in Article 411a of the Water Law, the legislator has not reserved the prohibition of the legal act of transferring the water permit several times. In accordance with the Latin rule quod lege non prohibitum, licitum est2, the institution of the transfer of a water permit allows for any transfer of the water permit in question during its validity period. The described institution of the assignment of the water permit should be distinguished from the assumption of rights and obligations arising from the water permit under Article 411 of the Water Law as a result of the legal succession of the plant. In view of the importance of the institution of the water permit and the elimination of actual states contrary to the content of the water permit under consideration, the legislator provided for the expiry, revocation and limitation of the water permit. Once the prerequisites stipulated in the provisions of the Water Law are met, the expiry, revocation or limitation of the water permit is stated by means of an administrative decision issued on application or ex officio. The administrative authority has been equipped with an important power in the form of imposing on the investor, by way of an administrative decision, an obligation to remove any negative effects on the environment resulting from the exercise of the water permit or arising as a result of activities carried out contrary to the conditions reserved in the water permit. The described powers positively shape water resources and restore the balance in water management.
SUMMARY
In the case of potential involvement of water-law elements in an ongoing development project, a responsible investor should consider submitting an application for a water-law consent and, in case of uncertainty, turn to the water supervision authority to clarify whether the planned investment requires a prior water-law permit. It is the task of the administrative authorities and the water law regulators to maintain a balanced water law policy that ensures that construction investments are carried out in accordance with the letter of the law while looking after the interest and general welfare of citizens.
Managing Partner of ALICJA SŁAWIŃSKA AS LAW FIRM
Alicja Sławińska, Attorney-at-law
