Case 2011 Germany

Germany – Response to Case 2011

Dr.-Ing. Tim Schwarz, TU Berlin

1 What are the main legal mechanisms for regulating the physical state of surface water bodies (e.g. lakes, rivers and watercourses)

Public water regulations in Germany consist of the water resources legislation, the waterways regulations and the water transport regulations. The water resources legislation is stipulated on a nationwide basis in the Federal Water Act (Wasserhaushaltsgesetz – WHG1). The focus of this law consists in the provisions regarding the use and protection of surface water and groundwater, provisions for waterway development and water management planning together with flood protection. The aim of the WHG is “to protect the bodies of water as part of the natural ecosystem, as the basis for human life, as a habitat for fauna and flora and as a useful commodity, by means of sustainable water management“.2. The scope of the WHG covers surface water, coastal waters and groundwater.3 The federal states are responsible for implementation of the Water Resources Act; they in turn have adopted various state water laws. One example of this is the Berlin Water Act (Berliner Wassergesetz – BWG)4.

1.1 Does any physical alteration of surface water bodies need a permit and if so who is the relevant authority?
The use of a body of water is subject to control by the authorities and needs a permit or approval pursuant to Article 8 WHG. The permit grants revocable authorisation to use a body of water, while the approval grants the corresponding right (assured legal status). The meaning of “use” is defined in Article 9 WHG and includes, among others
– the extraction and discharge of water from surface water bodies
– the damming and lowering of surface water bodies
– the removal of solid matter from surface water bodies insofar as this impacts on the properties of the body of water
– the introduction and discharge of substances into bodies of water
– the withdrawal, conveying/bringing to the surface and discharge of groundwater.
Physical alteration of surface water bodies refers particularly to waterway development. Article 67 (2) WHG defines water development as “the production, clearance and essential transformation of a waterway or its banks“. Pursuant to Article 67 (1) WHG, waterway development is to be carried out so that “natural retention areas are maintained, the natural drainage characteristics are not essentially changed, typical symbiosis relationships for the specific habitat are preserved and other detrimental changes to the status of the waterway are avoided, or compensated if avoidance is not possible“. The legal mechanism for planning waterway development is the planning permission procedure or planning approval pursuant to Article 68 WHG. If the waterway development is a project subject to mandatory SEA5 , an environmental impact assessment has to be carried out complying with the requirements of the (Gesetz über die Umweltverträglichkeitsprüfung – UVPG6). If there is no obligation to carry out an environmental impact assessment, the planning permission procedure can be replaced by planning approval. As a basic principle, planning permission may only be given or approved for waterway development if the project is not detrimental to the general good of the community and will neither increase the flood risks nor destroy natural retention areas. The waterways planning permission procedure is one of the so-called privileged sectoral planning procedures pursuant to Article 38 BauGB7 where projects of regional significance are concerned. The regional significance regularly transpires when the planning affects the territory of at least two municipalities. In this case, sectoral waterways planning takes priority over municipal urban land-use planning. The planning permission procedure deals with the public and private concerns affected by the project, assessing them and weighing them up against each other. This also includes the urban development intentions of a municipality, which can be visualised in the preparatory land-use plan or the binding land-use plan.

Competency
Competency for planning permission procedures are defined by state law. In Ber-lin for example, this is stipulated by the Berlin Water Act (Berliner Wassergesetz –BWG). Article 2 BWG divides the waterways into first-order waterways (mainly federal waterways owned by the federal authorities) and second-order water-ways (usually referring to non-navigable waterways). Projects and planning pro-cedures affecting first-order waterways run under the auspices of Berlin Water-ways and Shipping Authority (Wasser- und Schifffahrtsamt – WSA Berlin) and the water authorities of the State of Berlin. As far as second-order bodies of flowing water are concerned, waterways supervision and the function of the approval authority is in the hands of the Water Authority of the State of Berlin (Senate Department for Health, Environment and Consumer Protection). Waterways supervision for second-order bodies of standing water lies with the respective borough, e.g. with the Department for Environment and Nature in the borough of Friedrichshain-Kreuzberg.

1.2 To what extent may the physical alteration of surface water bodies be regulated in a land use plan? 
Urban land-use planning can also include water areas. The preparatory land-use plan pursuant to Article 5 BauGB, which is drawn up for the whole territory of a municipality, regularly also covers the surface water bodies and shows these as water areas. As a rule, the preparatory land-use plan only includes existing bodies of water. The binding land-use plans pursuant to Article 9 BauGB that are drawn up for parts of the municipality territory can also include or even stipulate water areas. If for example a binding land-use plan stipulates a water area, it can also stipulate its corresponding use, e.g. boat anchorage, bathing areas on the banks). Construction related to this use of the banks is therefore permissible under con-struction planning law. However, state law stipulates that the erection of building structures near the bank also has to be assessed to see whether approval is necessary under the requirements of water law. For example, in Berlin, building structures pursuant to Article 62 Berlin Water Act refer in principle to all structures in, over, under and alongside the body of water. Accordingly, water law applies to all structures at waterways located within a distance of up to 10 m for first-order waterways and up to a distance of 5 m inland from the banks of second-order waterways. If a construction project is to be erected in these areas (e.g. a landing stage, bank reinforcements or a bridge), application for approval under water law has to be submitted to the Water Authority of the Senate Department for Health, Environment and Consumer Protection. Approval under water law is independent from approval of the binding land-use plan, and cannot be substituted by approval of the binding land-use plan.
In principle, changes to the banks of a body of water can also be planned by corresponding visualisation in the preparatory land-use plan or stipulations in the binding land-use plan. However, here it must be borne in mind that neither visualisation in the preparatory land-use plan nor stipulation in the binding land-use plan can substitute approval or the planning permission procedure under water law.

Together with visualisations and stipulations in the land-use plans, urban plan-ning also has to take account of information for the record. This refers to stipula-tions made on the basis of other statutory requirements (e.g. water protection areas or bank zones according to the Federal Water Act) and adopted in urban land-use planning. Referring specially to flood areas, Article 9 (6a) BauGB stipulates that these have to be adopted in a binding land-use plan. This shows that certain planning content is affected not only by the Building Code but also by other legal obligations, e.g. under water law, informing the population about possible risks and dangers from flooding.

1.3 How is the maintenance of rivers etc. regulated and what is the relevant level of authority?
Waterways maintenance is regulated under federal law in the Federal Water Act (WHG). Article 6 WHG stipulates general principles for sustainable waterways maintenance. With implementation of the EU Water Framework Directive8, waterways maintenance is carried out according to so-called river basin districts. River basin districts in Germany include for example the Danube, the Rhine or the Elbe.9The Elbe river basin district is in turn divided into five coordination areas. The waterways of the City of Berlin are located within the Havel coordination area. Pursuant to Article 83 WHG, a so-called maintenance plan has to be drawn up for each river basin area. This must include the information stated in Article 13 (4) in conjunction with Annex VII of Directive 2000/60/EC.10

Competency 
Enactment of the Water Resources Act is a task for the federal states so that they define the organisation structure for waterways maintenance. Within a federal state, the competent authorities assign the waterways to a river basin district. The state water authorities responsible for water management cooperate in coordinating their water management planning and measures. If river basin districts lie in the territory of other states, the measures and maintenance plans must be coordinated accordingly with these states. If such coordination affects the management of the federal waterways, consent must be obtained from the responsible Waterways and Shipping Authority.
Coordination of measures in the respective area is stipulated in Article 2 of the Berlin Water Act. Accordingly, the Senate Department responsible for water management draws up contributions to the programme of measures and maintenance plan, coordinating these contributions with the other states involved in the Elbe river basin district. In Berlin, this is the Senate Department for Health, Environment and Consumer Protection.

1.4 Are there any mechanisms to ensure co-ordination between upstream and downstream authorities?
Coordination between the various authorities is explained below with reference to the planning permission procedures under water law and the procedure for setting up an urban land-use plan. The planning permission is regularly necessary for planning and implementing waterway development (cf. question 1.1). The urban land-use planning procedure is used to set up a development plan that also covers water areas (cf. question 1.2).

Planning permission procedure
The planning permission procedure is a formal administrative procedure that entails giving legally binding permission for a (waterways) project. The planning permission procedure weighs up all public and private concerns affected by the project, reaching a balance between conflicting interests.
During the planning permission procedure, the authority responsible for the procedure also consults other related authorities (Building Authority, Monument Protection Authorities, Nature Conservation Authorities). In principle, this involves all authorities whose remit is affected by the project.11 The authorities can issue a statement on the project that has to be considered during the procedure. The prime intention here is to ensure that all public and private concerns are covered in order to reach an adequately balanced decision regarding the project.
Similarly, consideration is also given to already existing urban planning, while also taking account of the special relationship between sectoral planning and the urban land-use plan. Waterways planning procedures constitute so-called privileged sectoral planning procedures pursuant to Article 38 BauGB. This means that when a project is of regional significance, it can take priority over municipal planning if the latter is inadequately substantiated. Letting sectoral planning take precedence over the municipal development is justified by the fact that regional sectoral planning as the greater planning unit carries more weight than the comparatively smaller planning unit of the urban land-use plan.

Urban land-use planning 
In the same way as for the planning permission procedure, authorities are also involved in the procedure for setting up an urban land-use plan. Here participa-tion takes place on two levels. In principle, the process involves those authorities whose remit is affected by the urban land-use plan.
The first participation level entails early information about the general planning objectives and purposes, also including setting out the framework for the corresponding environmental impact assessment (scoping).
On the second participation level, the municipality drawing up the plan obtains statements from those authorities whose remit is affected by the urban land-use plan. The statements have to be submitted within a one-month period and should be restricted to each authority’s specific remit; they should also indicate planning activities or other measures intended or already initiated by the authority, together with the respective timing schedules insofar as these could be significant for the urban development and town planning aspects of the area.
As with the planning permission procedure, participation of the authorities in the urban land-use plan aims to ascertain the full scope of issues to be taken into con-sideration in order to reach an adequately balanced decision regarding the project. Mutual participation of the authorities in the respective planning procedures war-rants coordination between sectoral planning and the urban land-use plan.

2 What are the main legal mechanisms for flood prevention due to heavy rainfalls? 
Flood prevention is regulated in Section 6 of the Water Resources Act (WHG). Article 72 WHF defines a flood as “temporary flooding of land normally not covered with water, by surface water or the influx of sea water in coastal areas“. This section of the Water Resources Act therefore does not refer to floods caused by heavy rainfall.
Water draining from developed or paved areas as a result of precipitation (stormwater) is defined as wastewater pursuant to Article 54 (1) No. 2 WHG so that it comes under wastewater disposal, without differentiating at all between “normal” rainfall or heavy rainfall.
The principles of wastewater disposal stipulate that the disposal of wastewater must not be detrimental to the general good of the community, with on-site stormwater runoff or discharge into a body directly through the sewer system and not mixing with effluent.12
The state water laws include further regulations regarding wastewater disposal. With regard to stormwater management, Article 36 Berlin Water Act requires stormwater runoff through the living soil. Pursuant to Article 36a (3) Berlin Water Act, stormwater runoff can also be included as a regulation in a binding land-use plan.

2.1 To what extent are the legal mechanisms linked to land use plans, e.g. local /development plans?
The German Building Code is reserved in its approach to harmonising water man-agement issues. In principle, Article 1 (5) clause 2 stipulates that the urban land-use plans are to secure a more humane environment, and to protect and develop natural resources. In the end, this also includes protecting people and other assets from flooding. Article 1 (6) No. 7 (2) BauGB states that in drawing up the urban land-use plans, due consideration must be given to environmental protection concerns, including the protection of nature and landscape conservation, with a particular focus on the prevention of emissions and correct handling of refuse and wastewater. Furthermore, Article 1 (6) No. 12 BauGB refers to the flood protection issues that have to be considered in drawing up the urban land-use plans. Here, urban land-use planning tasks include in particular preserving retention areas or preventing building activities on areas at risk from flooding.
Flood prevention and damage to the waterways is also indirectly associated with the aspect of soil preservation as featured in the so-called soil preservation clause of Article 1a (2) BauGB. Accordingly, urban land-use planning should make eco-nomical and protective use of ground and soil. To avoid additional areas being taken up for building activities, possibilities for urban development should look particularly to reusing areas, retrospective agglomeration and other measures for inner development, thus restricting surface sealing to the necessary extent. The corresponding intention to reduce land use also helps to defuse peak drainage levels and flooding risks.
The named provisions aim to harmonise without imposing a strict legal obligation and should each be considered individually when weighing up the urban land-use plan. This means that every urban land-use plan has to assess the water management aspects in view of the specific local situation, taking account of protection issues or a possibly detrimental effect.
The situation regarding flood protection is somewhat different. The stipulations of the Water Resources Act are strictly binding for urban land-use planning with regard to stipulated flood areas pursuant to Article 78 WHG. Accordingly, it is prohibited to allocate new housing developments in urban land-use plans according to the German Building Code. The restriction on urban land-use planning in flood areas is also associated with the compilation of so-called hazard maps and risk maps by the water authorities.13 These are used by the municipalities in urban land-use planning as the basis for assessing the flooding risk and must be given due consideration in urban land-use planning.14 
Exemptions from this prohibition on urban land-use planning in stipulated flood areas are possible pursuant to Article 78 (2) WHG if
– no other possibilities for settlement development exist or can be created
– the newly allocated area borders directly on an existing housing development
– no risk is expected to life, health or property .
These flood protection rules go back to the introduction of the law to improve flood protection dated 200515, following the extreme flooding along the Elbe in Germany and the Czech Republic in 2002. Here, planning activities that involved new housing developments in flood areas had proved to be a major mistake, resulting in huge economic losses. This planning prohibition for municipalities in flood areas places a considerable restriction on the previous possibilities available to the municipalities for allocating building land in flood areas.

2.2 Is it possible to set up requirements for on-site stormwater runoff in local/development plans with binding effect on individual landowners, e.g. planning provisions on “green roofs”, land cover a.o. mechanisms? 
The growth in surface sealing and building development in retention areas as a result of settlement activity increases the volume and accelerates the speed of stormwater runoff. A sustainable urban land-use plan makes extensive efforts to prevent any detrimental effect on the water balance. Environment-friendly storm-water runoff can make a contribution in this respect. Corresponding approaches in urban land-use planning include
– limiting surface sealing
– securing or producing infiltration-compatible surfaces
– compensating for sealing by providing infiltration possibilities.
Corresponding stipulations can be made both in the preparatory land-use plan and in the binding land-use plan. However, only the binding land-use plan has a direct, legally binding effect on property owners so that the following section takes a more detailed look at the above possibilities with regard to urban land-use planning.

a) Limiting surface sealing
Approaches to limiting surface sealing address private and public land together with public transport areas within the scope of an urban land-use plan. Essential measures for limiting surface sealing are based on stipulating the so-called plot ratio (GRZ) pursuant to Article 19 of the Land Use Ordinance (Baunutzungsver-ordnung – BauNVO16). The plot ratio states the ratio of building land on a plot to the total area of a plot. Article 17 BauNVO defines maximum values for stipulating a plot ratio for various different types of development in the urban land-use plan. For example, the plot ratio for a general residential estate is 0.4, and 0.8 for a commercial estate. Without taking account of possible deviations or exceptions, in simple terms this means that in a general residential estate, a plot measuring 1,000 m² in size can only have building structures (including the area for carport access, carport or garage) covering maximum 400 m². In a commercial estate, a plot of the same size may be sealed with building structures covering maximum 800 m². The Land Use Ordinance only defines maximum values for the plot ratio, so that lower ratio numbers can be stipulated in the interests of a more ecological approach to ground and soil management or for creating possibilities for storm-water runoff on the plots. It is thus possible to take greater account of soil protec-tion and water management issues (cf. question 2.1). However, the stipulation of a corresponding plot ratio to limit surface sealing has to be justified in urban plan-ning terms.

b) Infiltration-compatible surfaces
Infiltration -compatible surfaces can be secured for example by stipulating green spaces pursuant to Article 9 (1) No. 15 BauGB.
Furthermore, Article 9 (1) No. 11 can be taken to define the surface structure of traffic areas and roadside vegetation (trees), thus creating the prerequisites for stormwater runoff from road surfaces
Areas for stormwater retention and infiltration can be stipulated pursuant to Article 9 (1) No. 14 BauGB, although actual stormwater infiltration cannot be based on this stipulation.
Article 9 (1) No. 20 and (1a) BauGB provides the legal basis for stipulating measures for stormwater infiltration, as this is in the interest of protecting and developing the eco system.
The stipulation of areas for planting trees, bushes or other vegetation pursuant to Article 9 (1) No. 25 BauGB can also create prerequisites for stormwater infiltration.
In addition to the stipulations made in the binding land-use plan, it is necessary in any case to check whether approval or notification of the planned infiltration is required under state law (cf. question 1.1).

c) Stormwater retention and infiltration
The binding land-use plan can also include facilities for central rainwater retention as so-called areas for stormwater retention and infiltration pursuant to Arti-cle 9 (1) No. 14 BauGB. However, the construction of such facilities regularly still has to undergo a planning permission procedure under water law (cf. question 1.4). The binding land-use plan can also stipulate areas for water management and for controlling water drainage pursuant to Article 9 (1) No. 16 BauGB.
Roof vegetation measures can be stipulated in the binding land-use plan. This en-tails a combination of vegetation regulations in the building planning pursuant to the German Building Code together with local building regulations about the roof type pursuant to the respective State Building Code. The vegetation regulations can include for example measures to protect, maintain and develop soil, nature and landscape pursuant to Article 9 (1) No. 20 BauGB. The stipulation of a roof type with a low-pitch roof or flat roof depends on the corresponding individual State Building Code. In Baden-Württemberg for example, this can be stipulated in Article 74 of the State Building Code (LBO)17 . The local building regulation becomes part of the binding land-use plan and contributes to the legal effect of the binding land-use plan.
The named possibilities for limiting surface sealing, surface design and retention or infiltration constitute legally binding provisions as possible contents in a binding land-use plan. There are therefore many possibilities for including stormwater infiltration features when planning and preparing new housing developments. However, if a binding land-use plan is drawn up for existing buildings, the stipulations only become relevant in the event of structural alterations (e.g. demolition and construction of new buildings). As long as no structural alterations are made, the protection of vested rights applies to the existing buildings and open spaces.

2.3 To what extent may (sewage) water charges be reduced as a result of on-site stormwater infiltration initiatives?
When the surfaces are sealed, stormwater can no longer seep into the ground. It flows into the sewer system and thus becomes wastewater that has to be treated accordingly in the sewage plant, generating costs. These sewage charges are in-voiced to the residents participating in the mains system.
Charges for wastewater disposal through the sewer system are calculated under municipal law. In Berlin, these charges are based on the scale of fees of Berlin Water Utilities, differentiating between domestic wastewater and stormwater infiltration from the plot of land. Wastewater disposal charges are levied for the wastewater and stormwater charges for the stormwater. The stormwater charges are calculated on the basis of all roof surfaces together with the sealed surfaces of the plot of land, which must be directly or indirectly connected up to a public drainage system. The sealed surfaces are evaluated differently (fee splitting) with regard to:
– 90% of the completely sealed surfaces e.g. asphalt, concrete, bitumen or paved areas are included in the stormwater charges
– 60% of extensively sealed surfaces e.g. paving, slabs, interlocking pavers or grass-jointed paving are included in the stormwater charges
– only 30% of less sealed surfaces e.g. gravel, rubble, crushed aggregate lawn, grass paving blocks or permeable paving are included in the stormwater charges
– if a private plot provides 100% stormwater runoff, full exemption from the stormwater charges is possible.
Accordingly, (sewage) water charges can be reduced as a result of less extensively sealed surfaces on a plot. If this is stipulated in a binding land-use plan (cf. question 2.2), this also contributes to reducing the (sewage) water charges. Even without a binding land-use plan, corresponding de-sealing measures on privately owned plots of land can bring about a reduction in the (sewage) water charges.

Footnotes:
1. Water Resources Management Act – Federal Water Act WHG dated 31 July 2009 (Federal Gazette I p. 2585) as amended by Article 12 in the law dated 11 August 2010 (Federal Gazette I p. 1163).
2. Article 1 WHG
3. Article 2 WHG
4. Berlin Water Act (BWG) as amended on 17 July 2005 (Law Gazette 2005, p. 357).
5. Water management projects subject to mandatory SEA with use or development of waterways are defined in Nos. 13 and 19 of Annex 1 to the SEA law
6. Act on the Environmental Impact Assessment (UVPG), revised by the publication dated 24.2.2010 (Federal Gazette I p. 94), as amended by Art. 3 Ordinance dated 18.5.2011 (Federal Gazette. I p 892).
7. German Building Code – BauGB, revised by the publication dated 23.9.2004 (Federal Gazette I S. 2414), as amended by Art. 4 in the law dated 12.4.2011 (Federal Gazette . I S. 619).
8. Directive 2006/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a frame-work for Community action in the field of water policy (European Journal No. L 327, 22 December 2000, p. 1), as amended by Directive 20008/105/EC (European Journal No. L 348, 24 December 2008, p. 84).
9. Article 7 Abs. 1 WHG
10. Maintenance plans for the catchment areas.
11. Article 73 (2) VwVfG
12. Article 55 WHG
13. Article 74 WHG
14. Article 1 (6) No. 7 (g) BauGB
15. Flood protection law dated 3.5.2005 (Federal Gazette I p. 1224).
16. Ordinance on building use of land: Land Use Ordinance (BauNVO), revised by the publication dated 23.1.1990 (Federal Gazette I p. 132), amended by Art. 3 in the law dated 22.4.1993 (Federal Gazette I p. 466).
17. State Building Code for Baden-Württemberg (LBO) as amended on 5.3.2010 (Legal Gazette p. 416).