Facts:
The
complainant is owner of a starch producing factory in a village in
Vorarlberg/Austria next to Lake Constance. In May 1998 he filed an
application to the regional authority to get the authorisation according
to the water law for the construction and handling of a wastewater
disposal system. The wastewater should be purified in the factory
premises and the purified water should be discharged into Lake
Constance.
The authority of first instance (district authority in the name of
the governor of Vorarlberg) granted a permit for the construction and
handling of a wastewater disposal system according to article 32 and 33b
of the Austrian water law for direct discharge of the purified water
into Lake Constance pursuant to the technical documents under several
conditions. Amongst other conditions it was stated that the daily
average of chemical requirements of oxygen (ger.: CSB = chemischer
Sauerstoffbedarf) should not exceed 60 milligrams/litre per 24 hours.
The complainant appealed.
The authority of second instance (Federal minister of agriculture and
forestry, environment and water management) amended some of the
conditions of the permit, but did not change amongst others the stated
value for the daily average of chemical requirements of oxygen.
Concerning
to the reasons for the decision the authority of second instance
obtained the opinion of a water expert. This expert referred to
guidelines concerning Lake Constance in which are laid down the maximum
permissible values e.g. for the daily average of chemical requirements
of oxygen with a maximum of 60 milligrams per 24 hours.
Higher
maximum permissible values e.g. for the daily average of chemical
requirements of oxygen are foreseen in an regulation of the Federal
minister of agriculture and forestry concerning the limitation of
emissions in waste water concerning the fabrication of sugar and starch
(reg. no. 1073/1994). This regulation is only applicable to the
discharge of waste water into streaming waters.
The discharged substances, which are biodegradable, have a negative effect to the oxygen content of the water of a lake in a much higher degree than in streaming water, as the input of oxygen into the water of a lake is generally very low.
The decisive aspect of keeping clean the waters of lakes is the input of nutritive substances (phosphor, nitrogen), as these substances lead to an amplified eutrophication of the waters of a lake.
It is therefore justified that in this case the stated maximum values for the emissions of pollutants are very strict. The wastewater treatment plant – as foreseen in the documents of the project is able to achieve the necessary denitrification.
The complainant filed a complaint against this decision of the
authority of second instance before the Administrative Court (Vienna).
Amongst other things the complainant argues that the Lake Constance
could be seen as a streaming water as river Rhine flows through this
lake.
Furthermore
the cited guidelines concerning the prevention of water pollution of
Lake Constance of 27th of Mai 1987 are not binding (it is not a formal
regulation of the competent minister). The decision of the authority
seems therefore to be unlawful, because the stated maximum value
concerning the daily average of chemical requirements of oxygen is only
laid down in these guidelines.
Legal framework:
Directive 2000/60/EC of the European Parliament and of the Council of 23rd October 2000 establishing a framework for Community action in the field of water policy
Article 1
Purpose
The
purpose of this Directive is to establish a framework for the
protection of inland surface waters, transitional waters, coastal waters
and groundwater which:
(a)
prevents further deterioration and protects and enhances the status of
aquatic ecosystems and, with regard to their water needs, terrestrial
ecosystems and wetlands directly depending on the aquatic ecosystems;
(b) promotes sustainable water use based on a long-term protection of available water resources;
(c)
aims at enhanced protection and improvement of the aquatic environment,
inter alia, through specific measures for the progressive reduction of
discharges, emissions and losses of priority substances and the
cessation or phasing-out of discharges, emissions and losses of the
priority hazardous substances;
(d) ensures the progressive reduction of pollution of groundwater and prevents its further pollution, and
(e) contributes to mitigating the effects of floods and droughts
and thereby contributes to:
the
provision of the sufficient supply of good quality surface water and
groundwater as needed for sustainable, balanced and equitable water use,
a significant reduction in pollution of groundwater,
the protection of territorial and marine waters, and
achieving
the objectives of relevant international agreements, including those
which aim to prevent and eliminate pollution of the marine environment,
by Community action under Article 16(3) to cease or phase out
discharges, emissions and losses of priority hazardous substances, with
the ultimate aim of achieving concentrations in the marine environment
near background values for naturally occurring substances and close to
zero for man-made synthetic substances.
Article 2
Definitions
For the purposes of this Directive the following definitions shall apply:
1.
"Surface water" means inland waters, except groundwater; transitional
waters and coastal waters, except in respect of chemical status for
which it shall also include territorial waters.
2. "Groundwater" ….
3.
"Inland water" means all standing or flowing water on the surface of
the land, and all groundwater on the landward side of the baseline from
which the breadth of territorial waters is measured.
4.
"River" means a body of inland water flowing for the most part on the
surface of the land but which may flow underground for part of its
course.
5. "Lake" means a body of standing inland surface water.
6. ….
7. ….
….
Article 4
Environmental objectives
1. In making operational the programmes of measures specified in the river basin management plans:
(a) for surface waters
(i)
Member States shall implement the necessary measures to prevent
deterioration of the status of all bodies of surface water, subject to
the application of paragraphs 6 and 7 and without prejudice to paragraph
8;
(ii)
Member States shall protect, enhance and restore all bodies of surface
water, subject to the application of subparagraph (iii) for artificial
and heavily modified bodies of water, with the aim of achieving good
surface water status at the latest 15 years after the date of entry into
force of this Directive, in accordance with the provisions laid down in
Annex V, subject to the application of extensions determined in
accordance with paragraph 4 and to the application of paragraphs 5, 6
and 7 without prejudice to paragraph 8;
(iii) ….
(iv)
Member States shall implement the necessary measures in accordance with
Article 16(1) and (8), with the aim of progressively reducing pollution
from priority substances and ceasing or phasing out emissions,
discharges and losses of priority hazardous substances without prejudice
to the relevant international agreements referred to in Article 1 for
the parties concerned;
(b) ....
….
2. Where more than one of the objectives under paragraph 1 relates to a given body of water, the most stringent shall apply.
....
Article 7
Waters used for the abstraction of drinking water
1. Member States shall identify, within each river basin district:
all
bodies of water used for the abstraction of water intended for human
consumption providing more than 10 m3 a day as an average or serving
more than 50 persons, and
those bodies of water intended for such future use.
Member
States shall monitor, in accordance with Annex V, those bodies of water
which according to Annex V, provide more than 100 m3 a day as an
average.
2.
For each body of water identified under paragraph 1, in addition to
meeting the objectives of Article 4 in accordance with the requirements
of this Directive, for surface water bodies including the quality
standards established at Community level under Article 16, Member States
shall ensure that under the water treatment regime applied, and in
accordance with Community legislation, the resulting water will meet the
requirements of Directive 80/778/EEC as amended by Directive 98/83/EC.
3.
Member States shall ensure the necessary protection for the bodies of
water identified with the aim of avoiding deterioration in their quality
in order to reduce the level of purification treatment required in the
production of drinking water. Member States may establish safeguard
zones for those bodies of water.
….
Article 10
The combined approach for point and diffuse sources
1.
Member States shall ensure that all discharges referred to in paragraph
2 into surface waters are controlled according to the combined approach
set out in this Article.
3.
Where a quality objective or quality standard, whether established
pursuant to this Directive, in the Directives listed in Annex IX, or
pursuant to any other Community legislation, requires stricter
conditions than those which would result from the application of
paragraph 2, more stringent emission controls shall be set accordingly.
Member States shall ensure the establishment and/or implementation of:
(a) the emission controls based on best available techniques, or
(b) the relevant emission limit values, or
(c) in the case of diffuse impacts the controls including, as appropriate, best environmental practices set out in:
Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (19),
Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (20),
Council
Directive 91/676/EEC of 12 December 1991 concerning the protection of
waters against pollution caused by nitrates from agricultural sources
(21),
the Directives adopted pursuant to Article 16 of this Directive,
the Directives listed in Annex IX,
any other relevant Community legislation
at
the latest 12 years after the date of entry into force of this
Directive, unless otherwise specified in the legislation concerned.
3.
Where a quality objective or quality standard, whether established
pursuant to this Directive, in the Directives listed in Annex IX, or
pursuant to any other Community legislation, requires stricter
conditions than those which would result from the application of
paragraph 2, more stringent emission controls shall be set accordingly.
Where a quality objective or quality standard, whether established
pursuant to this Directive, in the Directives listed in Annex IX, or
pursuant to any other Community legislation, requires stricter
conditions than those which would result from the application of
paragraph 2, more stringent emission controls shall be set accordingly.
.....
Article 24
Implementation
1.
Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive at the
latest 22 December 2003. They shall forthwith inform the Commission
thereof.
When
Member States adopt these measures, they shall contain a reference to
this Directive or shall be accompanied by such a reference on the
occasion of their official publication. The methods of making such a
reference shall be laid down by the Member States.
2.
Member States shall communicate to the Commission the texts of the main
provisions of national law which they adopt in the field governed by
this Directive. The Commission shall inform the other Member States
thereof.
.....
National Water Law 1959
Art. 32
Effects
concerning waters, which affect directly or indirectly the quality
(art. 32 para. 2), are only admissible concerning the allowance pursuant
the water law; minimal effects, in particular the common use (art. 8),
and the traditional use of soil by agriculture and forestry are not
regarded as interference.
Pursuant
to art. 32 para. 2 subpara. a of the water law a permission according
to para. 1 is required in particular for the insertion of substances in
liquid, solid or gaseous consistency.
Pursuant
art. 30 para. 2 of the water law "keeping clean of waters" is defined
as maintenance of the natural state of water under physical, chemical
and biological aspects (water quality); "pollution" is defined as any
impairment of this maintenance and any reduction of the ability of self
purificartion.
Pursuant Annex A of the water law the Lake Constance is a "public water" (ger.: öffentliches Gewässer)
Pursuant
art. 33b of the water law on the occasion of the permission of the
discharge of waste water into streaming waters or into a permitted
sewerage system the public authority has to stipulate the possible
conditions to restrict the transport and concentration of sewage
pollutants concerning the state of the technology.
The quoted regulation of the Federal minister of agriculture and forestry concerning the limitation of emissions in waste water concerning the fabrication of sugar and starch (reg. no. 1073/1994) includes different maximum permissible values e.g. for the daily average of chemical requirements of oxygen. These maximum values are higher than those foreseen in technical guidelines concerning Lake Constance. The quoted regulation is only applicable to the discharge of waste water into streaming waters.
Questions:
1. Can Lake Constance be considered as a streaming water, because the
River Rhine is entering this lake at the Austrian/Swiss border and
leaving the Lake Superior near the German city of Constance?
2.
Does it make a difference, whether the quoted regulation of the
minister of agriculture etc. from the year 1994 (which foresees higher
maximum values for different polluting substances for streaming waters)
is applicable or not?
3.
Even if this regulation is in general applicable, would it make a
difference, that Lake Constance is also used as a bathing water in some
areas and that the waters of this lake are foreseen as a reserve for the
water supply of some German cities?
4. Has the expertise given during the procedure of second instance any importance for the solution of the case (which one)?
5. Does the not binding guideline concerning the prevention of water pollution of Lake Constance have any importance?
6. Under which conditions is an expertise more or less binding for the authority/(administrative) court?
7. Which possibilities do exist for the parties of a procedure to disprove an expertise?
8. How would you decide the case pursuant the national rules applicable in an administrative case?