Gesetzgebungskompetenzen im Wasserrecht

The new Wasserhaushaltsgesetz (Federal Water Act) which entered into force in March 2010 and its concurrent new state legislation allow a first exemplary examination of the new division of legislative powers and their implementation. The new construct of concurrent legislative power coupled with the deviation competence according to Art. 72 GG (German Basic Law) established by the Federalism Reform in 2006 merely shows its full impact through the interaction and linking of the different regulation levels of constitutional, simple federal and state law. Even though the experiences in executing the new construct and their assessment by the legislative courts remain to be seen, it is already evident that the conversion from the old framework legislation for water management did not pass without frictional losses. This is hardly surprising considering that the constitutional conversion as well as the simple-legislative conversion have been carried out in the short time of only one legislative period of the Bundestag. In addition, the undertaking to establish a common codification of German environmental law once more failed, leaving little time to concentrate on a genuine revision of water law. The precise concept of the new Federal Water Act compels to emphasize that the implicitness of the division of legislative power between the federal republic and the states is to be determined through interpretation of the German Basic Law. In detail this means that it is firstly to be examined whether, and where necessary to what extent, the federal legislator has exercised his concurrent legislative power to regulate water management and by that principally excluded the states from the right to legislate. However, the states have, should the latter be the case, the right to deviate from this legislation as long as the federal provision does not concern substance- or plant-related matters in the sense of Art. 72 GG. The limited use as well as disposability of provisions of non substance- or plant-related nature can be clarified by the federal legislator through declaratory opening clauses where necessary. In contrast, the federal legislator cannot confer to the states the competence to legislate by constitutive opening clauses on a simple law level. In case of a legitimate state legislation, the federal legislator has the right to revoke, which on its part triggers again the states' right to deviate. This in many ways problematic interaction, the probation test of which is still due, requires a cautious and ideally cooperative handling by the federal legislator and the states in order not to cause a situation of detrimental legal insecurity by a one-sided insistence on constitutive legal positions.