Polski
Problems related to water shortages, especially in the summer, intensify year after year, and the effects of these unfavorable phenomena can be seen all over the world, but are most acutely felt in “our backyard.”
Drought phenomenon in local terms
The cause of the developing hydrological and hydrogeological drought is primarily the lack or shortage of precipitation, as well as a change in its characteristics toward short-lived but intense rains, resulting from, among other things. climate change. The state of water resources is also adversely affected by the modification of the catchment’s land use by increasing the proportion of sealed area. This causes an acceleration of rainwater runoff and, consequently, the occurrence of short-term floods. This situation is conducive to the aggravation of hydrogeological drought due to the lack of retention and infiltration of rainwater into the ground, and consequently poor recharge of aquifers that determine the renewability of water resources. We are therefore faced with a double disadvantage:
- as a result of increasing urbanization, the need for water intake from the water supply system is growing;
- disposable groundwater resources in many areas of the country are steadily declining, as confirmed by monitoring carried out by the State Hydrogeological Service. The reason for the occurrence of hydrogeological lows is primarily the insufficient recharge of aquifers, rivers, water reclamation, as well as the overexploitation of groundwater resources, which poses a serious threat to ensuring the continuity of water supply in adequate quantity and quality by water and sewage companies carrying out the tasks of the municipality in the field of collective water supply and sewage disposal. According to the current Forecast of the Hydrogeological Situation in the zones of groundwater recharge and abstraction (PSH, Warsaw, July 2023) lowering of the groundwater table below the low warning level is forecast mainly in the northern and western parts of the country, especially within the Pomorskie, Zachodniopomorskie, Wielkopolskie and Kujawsko-Pomorskie provinces, where the hydrogeological emergency introduced on July 31 is in force. It is expected that in areas affected by hydrogeological lows there may be difficulties in water supply from shallow groundwater intakes (individual farm wells) and from municipal intakes exploiting the first aquifer.
In order to reduce the risks associated with the effects of water scarcity, it is necessary to implement systemic solutions based on the rational use of water resources on a continuous basis. It is worth considering whether the municipality’s imposition of restrictions on the use of tap water only in the event of an emergency is an effective antidote to the permanent drought, and whether this is reflected in the current state of the law.
Municipal tasks in the field of water supply
The duties and powers of municipal bodies are regulated by the Law on Municipal Self-Government. Article 7 paragraph. 1 of the aforementioned law contains a catalog of the municipality’s own tasks, which include meeting the collective needs of the community, and in particular matters of water management, water supply and water supply. These issues are regulated in detail by the Law of June 7, 2001. On collective water supply and collective sewage disposal.
The municipal council, according to Art. 19 of the Law, shall adopt regulations for the supply and disposal of wastewater in the form of a local law. These regulations define the rights and obligations of the water and sewerage company and service recipients, including how to deal with any failure to maintain the continuity and proper parameters of the water supplied and sewage discharged into the sewerage network. An example of the obligations imposed is the prohibition of the use of water from municipal facilities for watering home gardens and agricultural crops due to the limited capacity of water intakes.
Restrictions on water use under current regulations
In the current state of the law, there are regulations governing the implementation of restrictions on water use. They are used in case of water supply problems.
The Council of Ministers, in the event of a drought that threatens the life or health of a large number of people, significant property or the environment over large areas, on its own initiative or at the request of the governor, may impose a state of natural disaster. The legal basis is Law of April 18, 2002. on the state of natural disaster. The regulation not only determines the causes, area and duration of the disaster, but also serves to impose the necessary restrictions on human and civil liberties and rights, including, for example, the use of water.
In the situation of the establishment of a state of calamity, the governor – by a local act – has the right to introduce temporary restrictions on the use of water, in particular restrictions on the abstraction of water or the introduction of sewage into water or into the ground, as well as changes in the management of resources in reservoirs. Under the provisions of the Water Law (Article 88t), the Director of the Regional Water Board also has the right to impose a temporary restriction on the use of water to prevent the effects of floods or drought.
Thus, there are instruments in the Polish legal system to support rational water management by introducing restrictions on water use in the event of shortages, such as due to drought. Unfortunately, despite annually occurring and intensifying atmospheric and hydrogeological drought phenomena, a state of natural disaster has not been declared in recent years.
Does the municipality have the right to impose restrictions on the use of water – that is, the so-called “water restrictions”. housekeeping
The municipality’s power to impose restrictions on water use in light of the cited regulations appears limited and questionable. The procedure to be followed in the event of restrictions on water supply and failure to maintain continuity of supply and adequate parameters should be specified in regulations adopted by the municipal council.
The municipal council, in order to carry out its statutory tasks, has the right to apply the so-called “statutory”. order regulations in the event of the occurrence of certain strictly defined conditions, which are exceptional and regulate exceptional situations. The condition for their application is the simultaneous presence of several of the following premises:
- the lack of regulation by law (or other applicable regulations, in particular those listed above) of the matter covered by the ordering regulations;
- the occurrence of a threat to the life or health of citizens and public order, peace and security.
It should be emphasized that the absence of the occurrence of even one of the listed prerequisites results in the issuance of order regulations in violation of the law.
Premise analysis – theory vs. reality
Unfortunately, various cases of jurisprudence on the authority of a municipality to apply ordinance regulations to impose restrictions on the use of water from the water supply system are known, which are not always consistent in their interpretation of the legal versus factual situation.
This is due to the obligation to analyze and fulfill not only the above-mentioned objective reasons related to the state of disaster, but also subjective reasons, which are difficult to justify unequivocally. One of them is the occurrence of the so-called “”incidence”. a case of urgency, i.e. a factual situation that constitutes a real, actual, already existing or highly probable and imminent danger of violation of statutorily protected goods (other than the catalog of municipal own tasks). A prerequisite is to confirm the fulfillment of the so-called. the rationale of indispensability, which applies only when legal instruments other than order regulations cannot be used to achieve the goal: water supply.
It is not difficult to imagine a situation where an ordinance by the mayor of a municipality to prohibit the watering of home gardens and lawns and crops would be justified in one case, but unlawful in another situation. Depending on the assessment of the specific circumstances (timing of high temperatures, alternative sources of water, hydrogeological conditions), it is necessary for municipal authorities to make a sound analysis of the nature of the subjective premise and consider issuing ordinances introducing restrictions on water use.
It should be borne in mind that the introduction of any prohibitions and restrictions on rights and freedoms must comply with the condition imposed by the Constitution, known as the “condition of the Constitution”. proportionality. The prohibitions put in place must be adequate to achieve the goal, and the benefits must be proportional to the expenses incurred by each individual.
Referring to the doubts raised at the outset regarding the authority of municipalities to impose restrictions on the use of water, we can unequivocally state that the ordinance regulations apply as long as the statutory prerequisites are met with regard to the circumstances of the municipality.
It is absolutely necessary to consider whether the threat of drought is so serious that there is a real and necessary need for such restrictions, whether they are necessary and proportionate to the situation, and whether there is a real risk of water supply problems. The appropriate course of action for municipal authorities in a given case (factual and legal situation) should result from a comprehensive analysis of all the circumstances.
