Global developments and the resulting challenges mean that we must all adapt and make changes to ensure a more sustainable society. This applies not least to the water and wastewater industry where interest in, and the development of, sustainable and circular technology has increased in recent years. However, navigating correctly in complex legislation is hard. Here Lindahl's experts answer some of the most common, and most challenging, questions linked to the water and wastewater area and the Water Services Act.
Lindahl's experts respond:
What applies if the need to arrange the public water services in a wider context only arises after a decision on the establishment of operational area has already been made?
- In the event that the municipality judges that the need for a water service for a particular built environment can be met through individual installations, this does not mean that the municipality will never need to establish a public water and drainage system for the built environment in the future. If the need to arrange public water services arises for the built environment after the municipality has made the decision that the need can be met through individual installations, the municipality is obliged to arrange public water services for the relevant built environment.
- It is up to the municipality to balance the benefits of accepting an individual installation against the risk that the obligation to expand is subsequently realised, which often leads to higher expansion costs for the municipality.
In establishing an operational area, on which grounds can a municipality decide that an individual installation can be accepted instead of a public installation?
- Acceptance of an individual installation requires that it can be accepted with respect to protection of people's health and the environment. How the assessment is to be made has not been regulated in detail in LAV. The level of protection that can be accepted is an assessment that must be made based on the local circumstances in each individual municipality. Requirements arising from environmental legislation must be followed which, for example, means that the environmental quality standards in the relevant area must be met.
- The government states in the preparatory materials to LAV that there can be situations when an individual installation, as a result of difficulties in installing water and wastewater pipes and where in addition there are actors that can and want to operate an installation privately, can appear to be a more appropriate alternative over a public water and drainage system. Alternatives to a public water and drainage system given in the preparatory materials are:
- that the property owners each establish individual plants or that they voluntarily establish such an installation collectively, or
- that the supervisory authority (the municipal environmental committee) orders the individual property owner that has a substandard individual installation to rectify the shortcomings so that the unit can be accepted with respect to the protection for health and the environment.
When is a property owner entitled to use a public water and drainage system and when is a water and drainage principal entitled to charge fees for the provision of public water services from a property owner?
- A property owner is entitled to use a public water and drainage system if the property is located within the installation's operational area and the need for the public water service cannot be met more effectively in another way.
- The water and drainage principal is entitled to charge fees for the costs of arranging and providing public water services if: (i) the property is located within a set operational area for a public water and drainage system; (ii) the water and drainage principal has arranged the equipment that is needed and established a connection point in the property's immediate vicinity; and (iii) the water and drainage principal has informed the property owner of the connection point that has been established.
Which possibilities are there for a property owner that is included in a set operational area to utilise an individual installation and avoid paying fees for the provision of public water services?
- A property owner is not obliged to pay fees for a public water and drainage system if it is located within a water and drainage installation's operational area, but the need for the relevant public water services, with respect to the protection of people's health and the environment, can be met more effectively in a way other than through the public water and drainage installation. It is the property owner that has the burden of proof that an individual installation can meet the need of water services more effectively. As public water and drainage installations usually have very good protection for people's health and the environment, it is very difficult for a property owner to show that the individual installation meets the need more effectively.
Which requirements can a water and drainage principal place on property owners concerning wastewater treatment and separation of black water and grey water before it connects to the public water and drainage installation?
- A property owner with a property located within a set operational area for arranging drainage is entitled to supply wastewater to the public water and drainage installation that has a pollution level that corresponds to the level that wastewater from built-up areas normally have. A water and drainage principal thus does not have the starting point of being able to allow the property owner to be responsible for purifying the wastewater before it is supplied to the public waste- or surface water network.
- To the extent that the wastewater that the property owner supplies to the public water and drainage installation has a level of pollution that exceeds the level of pollution that wastewater from built-up areas normally has, the water and drainage principal and the municipality can bring measures against the property owner and prohibit it from using the public water and drainage installation. In certain cases this can mean that the property owner must implement a certain purification of the wastewater before it is supplied to the public water and drainage installation, however not a more far-reaching purification than that the wastewater's pollutant load is equivalent to the pollutant load that wastewater from built-up areas normally has.
Which measures can a water and drainage principal take to prevent wastewater from connected properties containing hazardous substances or being more polluted than ordinary wastewater from urban areas?
- LAV contains an overall regulation on how the connected property owners may use a public water and drainage system, and each municipality has the option of announcing further regulations on how property owners may use the public water and drainage installation. With the support of these regulations, the water and drainage principal and the municipality can ensure that property owners do not supply hazardous substances to the public water and drainage installation. The water and drainage principal has certain sanctions that can be applied to property owners that do not follow regulations on the use of the installation. However, it is hard for the water and drainage principal to show which of all the affiliated property owners that has supplied the hazardous substance as control points are not in place at each individual property.
- Notwithstanding this, there are benefits to establishing clear and adequate regulations on how property owners may use the public water and drainage installation, and that the connected property owners are informed of the regulations and which sanctions they risk being subject to if the regulations are not followed.
- In parallel there are also the Environmental Code's rules of consideration applicable to the individual property owners' supply of wastewater to the public water and drainage installation and the supervisory authority (the municipal committee) can implement supervision and issue injunctions and prohibitions on property owners with the aim of ensuring that the rules of consideration are observed.
How should deficits and surpluses in water and drainage principals' operations be managed in consideration of the fact that the prime cost principle applies in connection with water and drainage principals' charging?
- Temporary surpluses or deficits shall in principle be evened out within a period of three year. With significant surpluses that cannot be evened out within this time, the water and drainage principal is obliged to make a refund. A somewhat longer period of five years to adjust deficits and surpluses can be accepted if the water and drainage principal has an established plan for how the equalisation is to be implemented.
- If the operation runs with a deficit over a longer period, it is considered to be partially tax-funded and municipal residents who are not connected to the public water and drainage installation are consequently also included in paying part of the water and drainage charges. The tax-funding must be used to cover costs that the entire water and drainage collective would otherwise have had to bear and not to cover costs that benefit individual properties or groups of properties.
Can the water and drainage charge promote measures such as disconnecting properties from the public surface water network in order to reduce the burden on the public water and drainage installation?
- The principal rule is that water and drainage charges shall be based on a prime cost principle, where the water and drainage principal is entitled to charge the water and drainage collective for necessary costs that the water and drainage principal has for the arrangement, operation and development of the public water and drainage installation. Furthermore, the charges shall be determined in such a way that the water and drainage principals' necessary costs are distributed to the water and drainage collective according to what is reasonable and fair. Water and drainage charges consequently do not constitute a method that can be used to ensure that the individual property owners implement a certain measure or to change a certain behaviour.
- A reduced or increased water and drainage charge shall be justified by the fact that specific circumstances mean that the provision of water services entails costs that deviate appreciably from other properties within the operational area. Water and drainage charges thus do not permit a reduction or increase to be made in order to create an incentive for the individual property owners to take a certain measure, unless this entails a reduced cost for the water and drainage principal in practice. An individual property owner's reduced consumption of a certain water service does not usually entail a particularly great cost saving for the water and drainage principal as the fixed charges, which constitute the bulk of the charges, remain. It means that the water and drainage charges for the individual property owner cannot usually be lowered to create sufficient incentive for the property owner to take a certain measure.
Can the costs for implementation of measures to make climate adaptations to the public water and drainage installations burden the water and drainage collective?
- A starting point in LAV is the prime cost principle, which means that the water and drainage charges must not exceed what is needed to cover the costs that are necessary to arrange and operate the water and drainage installation. For it to be possible for costs for climate adaptation, such as overdimensioning of the installation, to be financed by the water and drainage collective, they therefore need to be necessary.
- It follows from the preparatory materials to LAV that a certain overcapacity that is necessary and does not exceed reasonable demands for safety of the installation can be financed through water and drainage charges. Based on industry practice, a reasonable demand for safety has meant that the water and drainage installation must cope with a 10-year rain event. However, the preparatory materials have judged it necessary that a water and drainage installation should cope with a larger amount of rain. An overcapacity that manages more than a 10-year rain event can be financed through water and drainage charges, and that the water and drainage installation withstands a 100-year rain event is regarded as constituting a reasonable overcapacity. The costs for a substantially over-dimensioned installation can, however, not be placed on the water and drainage collective.
- Overall, it is possible to finance climate adaptation measures that do not exceed reasonable demands for safety for the installation via water and drainage charges. Where the outer limit goes has, however, not been answered and must be assessed based on the circumstances in the individual case. The statements in the preparatory materials must be regarded as applying until the issue of financing of overcapacity through water and drainage charges has been tested legally.
How does reuse of wastewater relate to applicable legislation on management of wastewater?
- Reusing wastewater is both recourse-efficient and sustainable, and has become increasingly common in recent years. The legal regulation does not constitute an obstacle to wastewater being reused. However, the regulation is not adapted to the development that is taking place in practice and an actor therefore needs to relate to existing regulations, which is not always entirely simple.
- An actor that reuses wastewater needs to ensure that the Environmental Code's general rules of consideration are observed and that the wastewater is processed in such a way as prescribed in the Swedish Environmental Code. In addition, the actor needs to take a position on whether new permits or applications are required to reuse the wastewater in already existing wastewater treatment plants. If an actor uses wastewater as a resource for drinking water, it also needs to comply with the food regulation, which is applicable to drinking water.
- Overall, applicable legislation does not constitute an obstacle to reusing wastewater, but there are several legal aspects that an actor needs to take into account.
Can the water and drainage principal set requirements for measures to utilise the wastewater for heat recovery within properties located in an operational area for public water services?
- The option to implement heat exchange of wastewater and utilise the heat in the wastewater can be implemented as a point of departure by the party that has right of disposition over the wastewater. The connection point constitutes the boundary for the right of disposition between the individual property owner and the water and drainage principal. There is a certain possibility to regulate the individual's heat exchange within the individual properties through regulating the use of the public water and drainage installation through the municipality issuing general regulations on water and drainage (ABVA). Such regulations must, however, be justified by there being a need for the wastewater to have a certain temperature when it is brought into the wastewater treatment plant for the purification processes to function optimally.
- The municipality's possibility of using its planning monopoly to ensure that the individual property owners implement heat exchange of wastewater is limited to the structural requirements that can be set with the support of PBL and regulations issued with the support of PBL, for example, the Swedish National Board of Housing, Building and Planning's regulations on buildings' design or technical requirements. These requirements do not mean that a property owner needs to implement heat exchange of wastewater for it to be possible to achieve the requirements for energy usage set for buildings.
- With land allocation agreements that are not an element in implementation of local development plans, the municipality does, however, have an option of introducing its own technical requirements that apply in addition to the Swedish Planning and Building Act's (PBL) regulations issued with the support of PBL. However, in practice, this entails a very limited possibility for the municipality as land allocation agreements as a point of departure are implemented as an element in implementation of local development plans.