Water law easement order lawful – property owner must tolerate water discharge

Administrative Court (VG) Aachen: Water law easement order at the intersection between property rights and water management public policy considerations

By judgment of 21. Januar 2026 the Verwaltungsgericht Aachen (Az. 6 K 644/25) has made a decision of the utmost relevance for municipal practice as well as for affected property owners. The subject matter of the decision is the water law easement order pursuant to § 93 Wasserhaushaltsgesetz (WHG). The court confirms the lawfulness of an administrative order by which a private property owner was obliged to tolerate the above-ground passage of water and accompanying protective measures on his property.

At the centre of the decision is the tension between the property rights protected under constitutional law (Art. 14 GG) and water management public policy considerations, in particular the drainage of land.

The legal framework: § 93 WHG as a determination of content and limits to property rights

• § 93 WHG empowers the competent authority to oblige property owners by means of a water law easement order to tolerate the passage of water and the installations required for this purpose, if this is necessary, inter alia, for drainage, for wastewater disposal or for protection against water management impairment.

Central to this are three cumulative conditions, which the court identifies and systematises in detail:

• Water management purpose, in particular the drainage of land
• No equally expedient alternative or performance only with significant additional expense
• Weighing of benefits and disadvantages, whereby the expected benefit must significantly outweigh the disadvantages of the intervention

Furthermore, the case law requires as an unwritten element of the legal description that the authority has previously undertaken serious efforts to reach a private law settlement (e.g. permission agreement or easement) has undertaken.

Precisely what this was about: dispute over the discharge of pond water across private pasture land

The claimant was the owner of a property designated as pasture land, over which water from a municipal park pond (X-Weiher) was to be conveyed in future to a watercourse. The background was defective and inadequately sized pipelines which had already led in the past to backflow and flooding problems.

After years of negotiations over permission or purchase agreements had failed, the city issued an order by notice dated 20.01.2025 by means of a water law easement order, requiring the claimant to

• the laying of water construction stones for erosion protection over approximately 3 m in length and
• the permanent above-ground passage of waterover an existing depression of approximately 25 m

to tolerate. The claimant brought an action against this and argued in particular that the water was toxic, there was a risk of flooding, and the authority had not examined alternatives sufficiently.

The decision's grounds: drainage yes – natural balance no, but harmless

The Administrative Court of Aachen (VG Aachen) dismisses the action entirely and confirms the water law tolerance order as lawful.

First, the court clarifies that the term drainage within the meaning of § 93 WHG must be interpreted broadly and may not be restricted to groundwater. The discharge of surface and precipitation water – as in this case from a pond – clearly falls within this scope.

Whilst the court denies the additional purpose invoked by the authority of protection of the natural and water balance through water shortage, since this would require concrete, demonstrable impairments. However, this is harmless, since the purpose of drainage already supports the measure.

Particularly relevant to practice are the court's statements on alternatives: According to the court's view, an alternative routing is ruled out for the sole reason that it would merely burden other property owners. Such a mere shifting of the burden is not "equally fit for purpose". Nor does the (unlawful) discharge into the combined sewer system give rise to a claim for continuation of unlawful practice ("no claim to equality in wrongdoing").

In the balancing the court attaches considerable weight to the public interest in a functioning drainage system and the prevention of flood damage. By contrast, the impairment to the claimant is minor, since only a small part of the property is affected and the use as pastureland is not substantially curtailed. The alleged toxicity of the water the court regards as not substantiated, owing to the lack of reliable evidence.

Finally, the chamber also confirms the required serious settlement efforts by the authority before the water law tolerance order was issued. Over a period of more than ten years, the city repeatedly submitted offers of permission and purchase. By contrast, the claimant's conduct does not suggest that he was ever prepared to reach a realistic amicable solution.

Conclusion and recommendation for action: water law tolerance orders are legally enforceable – but only with proper preparation

The judgment of the Administrative Court of Aachen (VG Aachen) strengthens the position of municipalities and water authorities seeking to enforce water law tolerance orders, but at the same time clearly demonstrates the high legal requirements. What is decisive is a sound purpose specification, a comprehensible examination of alternatives, a careful balancing as well as documented settlement efforts.

For property owners the reverse applies: blanket objections, speculative claims of danger, or strategic obstructive conduct regularly provide no successful point of attack against a properly prepared tolerance order.

Our recommendation:

Whether municipality or affected owner – the legal issues surrounding § 93 WHG, obligations to tolerate and compensation are complex and depend on the individual case. You should seek advice early from a on administrative law specialist firm. Our firm AVANTCORE Rechtsanwälte in Stuttgart has many years of experience in administrative law and will assist you both in ensuring the lawful design of administrative measures and in effectively protecting your interests as a property owner.