On 5 April 2022, the Government passed a Bill containing a draft law on amendments to water and wastewater legislation in order to achieve sustainable water services. The draft law is mainly aimed at allowing greater flexibility in the case of needs assessments in accordance with section 6 of the Public Water Services Act.
BACKGROUND AND PROBLEMS
The obligation to organise public water services represents a significant cost for the municipalities. In the case of decisions on establishment of an operational areas, it also means that all property owners in the operational area are, as a main rule, required to pay fees for installation and usage. The current regulation of needs assessments in accordance with section 6 of the Public Water Services Act (2006:412) (“LAV”) has been perceived as being too rigid, particularly with regard to the matter of wastewater. The implementation of the framework Directive and associated EU case law, which means that environmental quality standards are binding, has hindered the construction of new assembled built environments in rural areas unless public water services are established. The Government therefore set up an inquiry on 20 May 2017 to examine the municipalities’ obligation to organise water services in a wider context. The results of the inquiry were presented in SOU 2018:34 (Pathways to sustainable water services). Parts of the proposals put forward by the inquiry have now resulted in draft legislation which we review and comment on in this article.
THE AIM OF THE DRAFT LAW
The aim of the Government’s draft law is to establish suitable conditions for long-term sustainable water and wastewater solutions and to increase public transparency, participation and influence on planning of municipal water services. One basic principle in the work of producing the draft law was that accurate, easily accessible information on local conditions must be provided in order to make it easy for the individual to do the right thing.
CONTENTS OF THE DRAFT LAW
More flexible needs assessments
The Government has proposed an amendment to Section 6 LAV that clarifies the flexibility afforded by the legislation in needs assessments.
According to the draft law, when assessing the need to organise water services in a wider context, an individual installation that is acceptable when it comes to protection of human health and the environment could replace the need for a public water and wastewater installation. A prerequisite is that this must take place without compromising protection of human health and that the individual installation is compatible with proper management of natural resources. In addition, it may not mean that there is any risk of environmental standards in the area not being met.
The property owners can set up individual installations or choose to jointly organise an installation of that kind. The flexible needs assessment is limited by the fact that the assessment must have been carried out before the municipal council assembly has made a decision to establish an operational area for public water services. If the operational area has been determined, a flexible assessment can no longer be carried out for property owners in the operational area. Nevertheless, when examining the payment obligation for individual property owners, an examination may be carried out as to whether the property’s individual water and wastewater installation can meet the need better (cf. section 24(1)(2) LAV). If the court considers that to be the case, the property owner need not pay water and wastewater fees.
Up-to-date water services plan
The Government also proposes that each municipality should have an up-to-date water services plan. This must include the municipality’s long-term planning for how the need for public water services must be met. The Government considers that 12 years is an appropriate period. The fact that the water services plan must be up-to-date means that it is reassessed every four years. The water services plan must not be binding, but must only be indicative because it is difficult to predict the development of building and the environmental impact over a longer period of time and the municipalities must therefore have the ability to deviate from the water services plan.
The water services plan must also include an assessment of what measures, according to the municipality, need to be adopted in order for the installations to work in the event of torrential rain, so-called 100-year rains, which are expected to become more common in future. The aim of this requirement is to ensure that the municipalities are better prepared and that they begin the work on climate-adaptation of installations where there is a risk of significant pollution in the event of torrential rain. The contents of the water services plan are not regulated beyond the requirements described above since municipalities must have the ability to adapt the water services plan to local conditions.
The water services plan must be subject to consultation and review
In order to build democratic consensus for the water services plan and ensure an adequate basis for decision-making, the water services plan must be subject to consultation and review before the municipal council assembly makes a decision. This must also take place in the case of amendments to an existing water services plan, for example in the case of a four-yearly review. However, consultation and review need not take place if the change only affects a few property owners or is otherwise of minor importance. Property owners and public authorities with a substantial interest in the plan must be given an opportunity to participate in the consultation. After the consultation, a proposal must be be presented for review for a period of four weeks and the parties concerned may submit comments during that period. The Government clarifies that property owners with a substantial interest in the water services plan are those owning property within or in close proximity to an existing or future operational area.
The municipalities are able to be flexible when adapting the form of the consultation and review depending on the number of properties affected by the water services plan. However, those concerned must be given a real opportunity to familiarise themselves with the proposal and sufficient time in order to submit comments. The municipality also has an obligation to report on how the comments were taken into consideration when preparing the final draft plan. That does not mean that the municipality must cater for them, but they should be taken into consideration.
Pace of action for small-scale wastewater systems
According to the Government, the pace of action regarding small-scale wastewater systems will increase through cost-effective means of control. It is therefore proposed that a new provision be inserted in Chapter 26 of the Environmental Code. Under that provision, the Government, or the public authority authorised by the Government, may issue regulations concerning individuals’ obligation to: (i) check their individual water and wastewater installations and how such a check is to be carried out and (ii) provide the regulatory authority with information on checks carried out, the design of the installation and its functioning. Individuals may be required to fulfil the obligations at regular intervals or whenever specific measures are adopted regarding the property, such as sale.
However, the obligations imposed must not mean any adverse effect on house building in rural areas. Individual installations with a small impact on human health and the environment may therefore be fully or partially exempt from the obligations.
ENTRY INTO FORCE
It is proposed that the amendments to the Act enter into force on 1 January 2023, along with the provision that an up-to-date water services plan must exist in each municipality. That provision will be applied for the first time on 31 December 2023. Municipalities are therefore given time to draw up a water services plan. All municipalities must therefore have an up-to-date water services plan on 1 January 2024.
The ability to carry out a flexible needs assessment and approve individual water and wastewater installations actually already exists in current legislation, as many of the referral bodies also pointed out in their referral opinions on SOU 2018:34. It therefore remains to be seen whether the implementation of the proposal will make any difference in practice.
The municipalities’ obligation to draw up an up-to-date water services plan will increase their workload. The Government has therefore clarified that municipalities that already have a water and wastewater plan can use that plan and add any content required by a water services plan. However, it is considered that the increased workload will ensure that the municipalities are better prepared for meeting their obligation to organise water services and for carrying out their work on climate-adaptation of water and wastewater installations. Thanks to this, fewer orders are expected to be issued by the county administrative boards that supervise the municipalities’ obligation to organise water services. Some Government funding for the municipalities’ work on drawing up water services plans may be expected, but there is some uncertainty as to whether the funds will be sufficient and whether they will be distributed efficiently.
One of the most interesting parts of the inquiry’s assignment was not expressed in the Government Bill because no statutory amendment was considered to be required. It relates to the question of whether climate-adaptation measures can be financed through current water and wastewater tariffs. According to industry case law established by the Supreme Court in the 1990s, public water installations must function in the event of 10-year rains. The inquiry on sustainable water services, SOU 2018:34, indicated that there is some uncertainty as to whether the water and wastewater tariff can be used to create overcapacity that will function in the event of 100-year rains. According to the inquiry, in addition to climate change, society has also changed since the 1990s due to the fact that more and more land has hardened, which affects surface water management. The inquiry came to the conclusion that there is no legal impediment to allowing the water and wastewater tariff to finance a certain overcapacity. It remains to be seen whether the inquiry’s view on this issue has any impact on the municipalities’ water and wastewater tariffs and whether this interpretation also gains a hearing in case law.
Despite the fact that the inquiry in SOU 2018:34 proposed that a central supervisory and guidance authority be appointed, the Government chose not to proceed with this in the draft law, though the matter is still being prepared by the Government Offices of Sweden.
The extent to which wastewater management must take place in a public water and wastewater installation or whether individual waste water installations should be more widely acceptable even within assembled built environments is a topical issue that has been and still is being hotly debated. At the time of writing, the preparation by the Committee on Civil Affairs has been completed and its proposal for a decision by Parliament may lead to some adjustments to the Government Bill. According to the current timetable, the Riksdag is expected to vote on the Bill on 21 June 2022. Only then will we know whether the draft law is passed its entirety or whether certain adjustments are being made. From the submitted private members’ motions, it may be inferred that the draft law should be able to command the support of a majority in the Riksdag. However, in view of the composition of the Riksdag and the political situation, that cannot be taken for granted.
We will, of course, continue to monitor the draft law and we will certainly have occasion to return to this issue in more articles. Johanna Lindqvist will also participate in a webinar organised by VA-guiden on 25 August 2022. You can find more information on this webinar at vaguiden.se (in Swedish).
Do you want to know more or did the article give rise to other questions? You are very welcome to contact any of us or your regular contact at Lindahl.