In today's article from the "Tuesday Mornings for Construction" series, we will discuss the principles of transferring water permits. As with other administrative decisions, such as building permits or zoning decisions, the legislature has decided to regulate this issue by making such decisions transferable to other entities. Today, we will also analyze the procedure for transferring water permits and consider what might happen before such a decision is issued, namely the possibility of making changes to the entity during the ongoing water permit process.
Since we have already established that water permits are, in principle, transferable to other entities, it is worth referring to the relevant regulations to check what conditions must be met in order to transfer such a decision to another entity.
First, we must, of course, have such a decision issued (even if it is not final). Next, we must refer to the wording of Article 411a of the Act of 20 July 2017 – Water Law ("Water Law").
As a side note, it should be noted that the ability to transfer water permits was only introduced as part of an amendment that entered into force on September 20, 2019. According to the general principle adopted in administrative law, the transfer of any administrative decision is only possible if the legislature explicitly provides for such a possibility. It is therefore easy to see that until the aforementioned amendment entered into force, the only way to transfer such a permit to another entity was through so-called "legal succession," meaning the legal successor assumed all of the predecessor's rights and obligations (including the water permit), which could occur, for example, in the event of a merger, division, or transformation of commercial law companies. This obviously caused significant difficulties for legal transactions, as it was impossible to transfer a water permit, for example, in the case of the purchase of real estate for which such a permit had been issued.
Fortunately, the legislator quickly noticed the existence of such a barrier to trade and consequently decided to amend the Water Law and regulate the issue of transferring water permits.
Therefore, in order to transfer a water permit to another entity (we can refer here to the case described above regarding the purchaser of real estate), the following conditions must be met:
- the party to whom the water permit was issued consents to the transfer of such permit to another entity;
- the entity to which the decision is to be transferred accepts all conditions resulting from the water permit.
Importantly, meeting the above-mentioned criteria gives both entities a near certainty that the decision will be transferred. This stems from the fact that the administrative body is obligated to issue an administrative decision to transfer the water permit in such a situation.
However, it should be remembered that this is not an inviolable principle, as the administrative body also has certain powers to refuse the transfer of a water permit. This occurs when the entity to which the transfer is to be made fails to meet its obligations arising from:
- water permits issued to date for it or
- water permits transferred to him.
The above restrictions seem entirely understandable, as the legislator had to leave administrative bodies a certain margin of discretion to prevent the transfer of permits to entities for which there are justified concerns that they will not implement such decisions at all or will implement them incorrectly. This is a manifestation of the state's protection of the special subject matter of water law relations due to their environmental and economic significance.
To summarize this section of our article, it should be noted that the transfer of a water permit is made as part of a separate administrative decision (i.e., the decision on the transfer of a water permit), and is therefore preceded by a standard administrative proceeding (with the resulting rights and obligations of both the parties to the proceedings and the body conducting the proceedings). The proceeding is initiated upon the request of the entity to which the permit is being transferred. Such a request must be accompanied by a declaration from the entity to which the decision is to be transferred, confirming acceptance of all the conditions specified therein. Generally, the parties to this proceeding will be the entity to which the permit was issued and the entity to which the decision is to be transferred.
Let's now discuss what happens before a water permit is issued, that is, during the administrative proceedings pending before the authority for the issuance of such a decision. In such a situation, the principle set forth in Article 30 § 4 of the Code of Administrative Procedure will apply, according to which, in cases involving transferable or heritable rights, in the event of the transfer of the right or the death of a party (this also applies to the liquidation of a legal entity) during the proceedings, the legal successors will take the place of the former party. Therefore, in the case of the acquisition of, for example, real estate covered by an initiated and ongoing water permit procedure, the purchaser of such real estate, as an entity constituting a legal successor within the meaning of this provision, becomes a party to such proceedings and, after fulfilling the conditions required for obtaining such a decision, will become its addressee.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of March 19, 2024.
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