Safeguarding public access to drinking water – also in times of scarcity
Duty of care of government and water companies according to the Dutch law
Researchers from the Utrecht Centre for Water, Oceans and Sustainability Law at Utrecht University (UCWOSL) analysed what are the legal obligations of the government and drinking water companies to take care of our drinking water – highly relevant now that public drinking water supplies are expected to come under pressure over time. Important to know is that drinking water is not only used for domestic purposes (e.g. for drinking, cooking and washing) but also in agriculture and industry. In times of reduced water availability, such low-value use of drinking water may start to interfere with public drinking water supply. Do water companies actually have a supply obligation for so-called 'industrial water'? Business users who purchase water for non-domestic purposes cannot claim the public-law duty of supply under the Drinking Water Act, the researchers conclude.
In the article 'What is drinking water? Public duty of care and supply in the context of public drinking water supply' (Nederlands Juristen Blad, no. 24 2023), Aster Veldkamp, Herman Kasper Gilissen, Frank Groothuijse and Marleen van Rijswick (all affiliated with UCWOSL) write about the main findings from their research commissioned by the government and the Interprovinciaal Overleg (IPO). Below are the main findings mentioned in the article.
Drinking water constitutes a basic necessity of life and, from a public health perspective, must meet certain legal quality requirements. This is why drinking water supply in the Netherlands is classified as a public task (utility function), which is assigned to the government and the water companies in the Drinking Water Act (DWA). Both have a statutory duty of care for the public drinking water supply and the water companies also have a statutory duty to supply drinking water within their distribution area.
Now that the public drinking water supply is expected to come under pressure over time, the question arises as to what exactly governments (regional and national) and water companies are obliged to do in times of reduced water availability and increasing demand. In other words, what is the legal scope of their statutory duties of care and the statutory duty to supply in periods when the availability of sufficient water for the preparation of drinking water can no longer be taken for granted? After all, drinking water companies not only supply drinking water to households and business customers for domestic use, but have also been supplying (drinking) water to business customers for other uses for decades. To find out which of these activities are part of the public task of drinking water companies and which are not, it is necessary to take a closer look at the DWA.
The sustainable safeguarding of the public drinking water supply is designated as an 'overriding reason of major public interest' in the Drinking Water Act. This is, as it were, a 'trump card' granted by the legislator to allow the drinking water interest to prevail over other interests.
Statutory duty of care
Under DWA Article 2(1), the government has a duty of care for the sustainable security of the public drinking water supply. The government should not only focus on protecting and increasing the supply of sources for the drinking water provision, but may also focus on limiting the demand for drinking water. This sustainably safeguarding is designated in DWA Article 2(2) as an 'overriding reason of major public interest'. This means that the drinking water interest can be invoked to secure the drinking water supply, even if it infringes on other interests. It is, as it were, a 'trump card' granted by the legislator to allow drinking water interests to prevail over other interests.
Drinking water companies have a duty within their distribution area to ensure the production and distribution of sufficient, adequate drinking water. This includes providing and maintaining the infrastructure that can guarantee the quality of drinking water from its source to the point of delivery. Their legal responsibility also includes the protection of water catchment areas and related nature and environmental management activities, such as nature management around infiltration and extraction areas in the dunes.
Non-domestic use, then no duty of care
The definition of 'drinking water' under the DWA focuses on the type of use (i.e. for domestic purposes), rather than primarily on the quality of the water supplied. As a result, the supply of water to industry for use in a production process cannot legally be labelled as 'drinking water' within the bounds of the Act. The government's legal duty of care for the sustainable securing of the public drinking water supply is limited to safeguarding sources for the public drinking water supply and not to securing sources for water other than drinking water, such as industrial water.
Thus, while drinking water companies have the authority to supply water other than drinking water, such as water for industrial processes, through the public drinking water supply infrastructure, this is a private agreement. Herein lies the legal scope for water companies to decide not (or no longer) to supply 'other water' to business users when the occasion arises, such as in the case of impending water shortages. The public-law obligation to supply then takes precedence over the private-law obligation to supply water.
If, as a result, water companies have to break or can no longer honour existing private-law contracts with business customers, there is a breach of contract, which can have private-law consequences. Particularly in cases of water shortages, which can be foreseen due to climate change, this may create tensions between the public-law obligation to supply under the Drinking Water Act on the one hand and the private-law obligation to supply entered into on the other.