The protection of sub-surface water reserves is a strategic duty of the present generations29 August 2018
The Constitutional Court established: the amendment of the Act on water management adopted in July this year but not yet promulgated is incompatible with the Fundamental Law. The protection of the volume and the quality of sub-surface waters as well as the regulation of water use by also taking into account the interests of future generations is a primary obligation of the State resulting from the Fundamental Law.
The goals of amending the Act, namely the mitigation of the unnecessary administrative burdens of the citizens and increasing the effectiveness of control may be achieved by other means, too. With regard to the amendment of the Act on water management, the President of the Republic submitted to the Constitutional Court an initiative on preliminary norm control. According to him, the provision allowing the construction of water projects without permission and reporting until the depth of 80 meters is in conflict with the Fundamental Law. As recalled by the President of the Republic in his petition, the prohibition of stepping back from the achieved level of protection is an obligation of the State, laid down in the Fundamental Law, for the purpose of protecting the environment. Earlier the deputy commissioner for the interests of future generations and eleven professional organisations also argued against the challenged provision. Before adopting its decision, the Constitutional Court had requested the minister for the interior, the minister of justice, the deputy commissioner for the interests of future generations and the Hungarian Academy of Sciences. The Court underlined in the decision: in every case when the regulations on protecting the environment are modified, the precautionary principle and the principle of prevention should be taken into account as the failure to protect the nature and the environment may induce irreversible processes. Sub-surface water reserves are finite i terms of their quantity and quality, and they are renewable only to a limited extent. In Hungary, the construction of driven wells has been subject to a permission since 1960. This offers a possibility for the authority to track the volume of water use that can be authorised without endangering the water reserves. Sub-surface waters may only be used to the extent not resulting in the excessive use of the reserves. Among others, also Hungary’s revised watershed management plan for the year 2015 established that more than half of the sub-surface water bases are vulnerable. The authorities may specify by way of the permissions to be issued in advance the technologies to be applied and the depths of the new wells to be established in a safe manner. Uncontrollable water abstractions without State control may ultimately lead to damaging the ecosystems. The Constitutional Court noted that in addition to deteriorating the quality of waters, putting the Act into force may also imply risks concerning the public health. As recalled by the Constitutional Court, only 4% of the surface water reserve of Hungary is generated within the borders of the country, at the same time, Hungary is located in an area significantly subject to the consequences of climate change, therefore the responsible management of sub-surface water reserves is of primary importance.
According to the decision, the regulation that plans to use posterior control by the authority instead of the process of issuing preliminary permissions in the interest of preserving sub-surface waters is a step-back compared to the level of protection already achieved, therefore it is contrary to the Fundamental Law. The risk of the deterioration of quality caused by the wells constructed without permission, thus by neglecting professional and quality requirements, may directly influence the living conditions of the present generations as well. The permissions to be obtained in advance not only provide the authorities with information on the volume of waters, but they may also motivate economizing water, for example due to the obligation of paying a water reserve contribution.
Judges dr. Ágnes Czine, dr. Balázs Schanda and dr. István Stumpf attached concurring opinions, while Judges dr. Egon Dienes-Oehm, dr. Imre Juhász, dr. Béla Pokol, dr. Mária Szívós and dr. András Varga Zs. attached dissenting opinions to the decision.