The compensation procedure for economic disadvantages in water protection areas (Section 52(5) of the Federal Water Act (WHG)) – the provision in Mecklenburg-Western Pomerania under the new State Water and Coastal Protection Act in
Section 38 of the LWaKüG M-V
With the new State Water and Coastal Protection Act, or LWaKüG M-V for short, the state legislature has undertaken a comprehensive reform of state water law. The provisions also affect the procedure for compensation for economic disadvantages in water protection areas (Section 52(5) of the Water Act (WHG)). The provisions, previously set out in Section 19 of the State Water Act (LWaG), are now contained in the revised Section 38 of the State Water and Coastal Protection Act of Mecklenburg-Western Pomerania (LWaKüG M-V). The Act comes into force on 1 August 2026 and replaces the previous provisions. Consequently, the new provisions governing the compensation procedure will also apply from that date.
We outline the key changes and provide an initial practical assessment of them.
1.
In future, the application must be submitted directly to the party liable for compensation. This is the beneficiary of the water protection area as defined in the relevant regulation. The application no longer needs to be sent to the lower water authority.
Applicants should ensure that they submit the application to the party liable for compensation with proof of receipt, as the application deadline is a statutory cut-off date. If this deadline is missed, the claim for compensation for the previous year can no longer be asserted. In the absence of a specific provision regarding the form of the application, the text form is sufficient in any case. It remains to be seen whether the existing form should continue to be used. The party liable to pay compensation is the beneficiary of the water protection area. If this is not specified in the regulation, the water supplier is generally the beneficiary (see Greifswald Administrative Court, judgment of 11 May 2023, 3 A 1485/19 HGW, para. 8).
With regard to legal proceedings, we currently assume that the decision on compensation can, as before, be challenged by means of an objection and an action for annulment. The parties liable for compensation are likely to be the authorities responsible for deciding on the compensation claim, who issue a decision on the claim. The time limit for lodging an appeal is one month from the date of notification in each case; in the case of the decision on the objection, the time limit runs from the date of service of the decision.
2.
A decision on the application must be made within six months, unless an amicable settlement regarding the compensation is reached.
This time limit must be borne in mind, for example when considering whether to bring an action for failure to act.
3.
The party liable for compensation may require that the application be accompanied by the competent authority’s decision on exemption from the restrictions under Section 52(1), sentences 2 and 3, of the Water Resources Act (WHG).
The practical application of this provision will have to stand the test of time. In practice, it will often be difficult for the farmer to demonstrate that basic farming activities, such as the use of fertilisers and plant protection products, can be permitted on the land, contrary to the regulator’s assessment. However, this is necessary, as the main scenario for applying the exemption requires that the exemption does not jeopardise the objective of protection.
4.
If the existence of the claim and/or the amount is disputed, the lower water authority may be called upon by either party to act as a conciliation body. It will then submit a proposal in consultation with the competent body for specialist agricultural law – currently LMS Agrarberatung GmbH; in the case of land used for forestry, in consultation with the lower forestry authority. The costs of the conciliation shall be borne equally by the parties involved.
The conciliation procedure may be useful, in particular to ensure objective, expert support through the involvement of the agricultural advisory body. However, the conciliation proposal is not an administrative act and is therefore not binding. The party liable for compensation may also choose to act contrary to the recommendation. The costs of the conciliation procedure are shared equally between the parties. The amount of the costs is comparable to the current costs of an administrative decision (ranging from 20 to 500 EUR). According to the explanatory memorandum to the Act, the conciliation proposal is to be treated as equivalent to a decision on compensation (LT-Drs. 8/5092 of 1 July 2025, p. 143).
5.
In future, the deadline for applications will be 30 October for applications relating to the previous year; that is, 30 October 2027 for the application for compensation for the disadvantages of the financial year covering the 2026 harvest. We recommend submitting the compensation application for the year 2025 by 30 June 2026 under the previous system.
Please do not hesitate to contact us if you have any questions regarding the current or future implementation of a compensation procedure.