Water Law Permits Under the WHG: Abstraction, Discharges and Industry

Water law basics: the permit requirement

German water law is primarily set out in the Federal Water Act (Wasserhaushaltsgesetz, WHG), supplemented by the federal states' water acts and ordinances such as the Wastewater Ordinance and the Ordinance on Installations Handling Substances Hazardous to Water. The core rule is simple: the use of a water body requires a permit (Erlaubnis) or an authorisation (Bewilligung), unless the WHG or regulations under it provide otherwise (§ 8(1) WHG). Water bodies include surface waters, coastal waters and groundwater.

"Use" is defined broadly in § 9 WHG. It includes abstracting and diverting water from surface waters, damming and lowering surface waters, removing solid substances, introducing and discharging substances into waters, and extracting, raising, diverting and discharging groundwater. Further activities are deemed uses, for example measures likely to cause significant adverse changes to water properties. A construction project that requires groundwater lowering, a factory that abstracts cooling water and a plant that discharges treated wastewater all need permits.

For industrial companies, water law matters at every stage: site selection, permitting, operation, transactions and closure. This article explains the permit types, the authority's discretion, wastewater rules, liability and the recent acceleration measures.

Permit or authorisation?

The WHG distinguishes two instruments. A permit (Erlaubnis) grants the power to use a water body for a specific purpose in a specified manner; an authorisation (Bewilligung) grants a right to do so (§ 10(1) WHG). Neither gives a claim to a particular quantity or quality of water (§ 10(2) WHG).

Most industrial uses are permitted by an Erlaubnis. Because a permit can be revoked, its conditions and term deserve close attention in negotiations with the authority and in due diligence. For major investments that depend on large water volumes, an authorisation can provide greater security, but its conditions are strict and it is not available for discharges.

Refusal grounds and management discretion

A permit or authorisation must be refused if harmful changes to water bodies are to be expected that cannot be avoided or compensated by conditions, or if other public law requirements are not met (§ 12(1) WHG). Beyond that, the decision lies within the authority's management discretion (Bewirtschaftungsermessen) (§ 12(2) WHG). This is the key difference from immission control permits, which must be granted if the legal requirements are met.

Management discretion allows the authority to weigh competing demands on water resources – public water supply, agriculture, ecology and industry – and to apply river basin management plans and programmes of measures under the Water Framework Directive. In regions with falling groundwater levels or dry summers, authorities have become more restrictive, sometimes limiting abstraction volumes, imposing seasonal restrictions or requiring alternative sources such as treated wastewater.

Industrial water users should present a robust water concept, including water efficiency, recycling and alternatives, to support the discretionary decision. Because the decision is discretionary, the reasons given by the authority matter: a refusal or restrictive condition can be challenged in the administrative courts if the authority failed to consider relevant interests or weighed them disproportionately.

Groundwater

Groundwater abstraction is particularly sensitive. The management objective is to avoid deterioration of groundwater quantity and chemical status and to maintain a balance between abstraction and recharge. Applications for large abstractions usually require hydrogeological reports and, depending on volume, an environmental impact assessment or screening.

Procedure

The procedure for water permits is governed largely by state law. Applications must describe the use, its purpose, volumes and timing, and its effects on the water body, supported by expert reports. Where an environmental impact assessment is required, public participation follows the rules of the Environmental Impact Assessment Act. Water authorities often consult other agencies, such as nature conservation authorities and water suppliers, and municipalities. Processing times vary widely between states and authorities, which is another reason to start early.

Old water rights

Some industrial sites still rely on old water rights granted under earlier state water laws, sometimes decades ago. Such rights may continue to apply, but authorities can restrict or revoke them under certain conditions, and their scope is often unclear. Operators should review old rights and consider whether a new permit with clear terms would provide more certainty.

Wastewater discharges

A permit for discharging wastewater into a water body (direct discharge) may only be granted if the quantity and harmfulness of the wastewater are kept as low as possible using processes according to the state of the art, the discharge is compatible with the requirements for water properties and other legal requirements, and wastewater treatment facilities are built and operated as necessary (§ 57(1) WHG). The Wastewater Ordinance sets sector-specific minimum requirements, and for installations under the Industrial Emissions Directive the BAT conclusions apply.

Discharging wastewater into a public sewer (indirect discharge) requires a permit from the competent authority where the Wastewater Ordinance sets requirements for the place where the wastewater arises or before it is mixed (§ 58(1) WHG). In addition, municipal statutes on drainage set conditions for connection and use of the sewer system. Wastewater charges under the Wastewater Charges Act apply to direct discharges and can be reduced through better treatment.

Water law for energy and industry projects

Several current investment themes depend on water law:

• Hydrogen electrolysis requires large volumes of high-purity water and generates concentrate that must be discharged;
• Data centres may use water for cooling and discharge heated water, or use groundwater for heat exchange;
• Semiconductor and battery production need ultrapure water and generate complex wastewater streams;
• Geothermal energy and heat pumps using groundwater require permits for abstraction and reinjection;
• Solar and wind projects may need permits for construction in or near waters.

For renewable energy and certain other projects, § 11a WHG contains special procedural rules implementing the EU Renewable Energy Directive: a single point of contact, a procedural manual and deadlines, including confirmation of completeness of application documents within 45 days. The Geothermal Acceleration Act of 22 December 2025 further declares geothermal installations, heat pumps and heat storage to be in the overriding public interest until net greenhouse gas neutrality in 2045, which strengthens them in balancing decisions, including under water law.

Drought, climate change and competing uses

Climate change is making water law more restrictive in practice. Several states have adopted water supply strategies that prioritise public drinking water supply in times of scarcity, and authorities increasingly include clauses that allow them to reduce abstraction in drought periods. The National Water Strategy adopted by the federal government also emphasises priority for public water supply and better data on water use. For investors, this means that water availability should be part of site selection, alongside grid connection and land availability, and that permit conditions allowing curtailment should be reflected in operational planning and contracts.

Monitoring and enforcement

Water permits usually require self-monitoring of abstraction volumes and discharge quality, with regular reporting to the authority. Authorities carry out inspections and can issue orders, impose administrative fines and, in serious cases, revoke permits. Unauthorised water use and pollution can also be criminal offences under the Criminal Code. Robust compliance systems – metering, sampling, documentation and incident response – are therefore essential.

Liability, hazardous substances and transactions

Water law imposes strict liability. Anyone who introduces or discharges substances into a water body or otherwise affects it and thereby adversely changes water quality is liable for resulting damage to others, irrespective of fault; several contributors are jointly and severally liable (§ 89(1) WHG). Operators of installations for producing, processing, storing or transporting substances are also liable if substances escape into a water body (§ 89(2) WHG). Liability insurance and environmental impairment cover should reflect these risks.

Installations handling substances hazardous to water – tanks, filling stations, storage areas, pipelines – must meet technical requirements and are subject to inspection obligations under the Ordinance on Installations Handling Substances Hazardous to Water. Non-compliance can lead to orders to shut down installations.

In transactions, water permits are a key due diligence item. Buyers should verify that permits exist for all uses, check their terms, conditions and revocation risks, confirm that the permits are tied to the installation rather than to the seller, and review compliance with monitoring and reporting obligations. Water rights can transfer with the installation or the land, but some authorities require notification or new permits. Contamination of groundwater links water law with soil protection law, discussed in our article on soil protection and contaminated sites.

Contracts can also allocate water law risks between parties. Supply agreements for industrial parks, where an operator provides water and wastewater services to several companies, should define who holds the permits, who is responsible for compliance with discharge limits and how costs of upgrades required by the authority are shared. Leases of industrial property should specify responsibility for water installations and their inspection. Power purchase and offtake agreements for hydrogen or data centre projects increasingly contain clauses addressing curtailment due to water restrictions.

Practical steps for industrial water users

1. Map all water uses at each site – abstraction, discharges, groundwater lowering, heat exchange – and match them to permits.
2. For new projects, hold pre-application meetings with the water authority, present a water concept and assess regional water availability early.
3. Run water and immission control procedures in parallel, with consistent documents.
4. Monitor compliance with discharge limits and reporting duties; document incidents.
5. Review permit terms and revocation clauses before investment decisions and in transactions.
6. Consider water efficiency and reuse to reduce dependence on discretionary decisions.

How TRW & Co helps with water law

We advise industrial companies, energy developers, data centre operators and investors on water law. We plan permit strategies for abstraction, groundwater use and wastewater discharges, prepare applications and negotiate conditions with water authorities, coordinate water and immission control procedures, defend permits and challenge restrictive decisions, and conduct environmental due diligence in transactions. Our work connects with our planning and environmental practice, our chemicals sector team, and our article on immission control permits. Please contact us. This article is general information and not legal advice.