Expert lawyer in water law

Do your activities involve the use or management of water resources? Do you need legal support to comply with IOTA regulations? Whether you are a company, a local authority, or an individual, our water law lawyers are by your side to guide you through all your procedures.

Spécialistes des questions liées à la gestion et à la protection des ressources hydriques, nous disposons d’une expérience reconnue dans l’accompagnement des acteurs publics et privés. De l’obtention des autorisations préalables à la gestion des litiges environnementaux, notre équipe d’experts offre des solutions adaptées à vos besoins.

Lawyer in water law to understand regulations relating to installations, works, activities and developments (IOTA)

Water is a vital resource, essential to our health, the balance of ecosystems, and the proper functioning of our economy. However, it is becoming scarce due to the combined effects of climate change, population growth, and economic development. Faced with this observation, the regulations relating to IOTA have been established to ensure balanced and sustainable water management.

It governs projects that have impacts or present dangers for the aquatic environment and water resources. IOTA refers to installations, structures, works, and activities carried out for non-domestic purposes.

More specifically, an operation is subject to IOTA regulations when it is likely to:

• lead to water withdrawals, whether surface or groundwater, and whether the water is returned to its original environment or not;
• modify the water level or its natural flow pattern;
• destroy spawning grounds (fish reproduction sites), areas for juvenile fish growth, or zones where fish fauna find their food;
• cause spills, runoff, discharges, or deposits, whether direct or indirect, continuous or occasional, even if they are not considered pollutants.

The operation or realization of an IOTA is not subject to any restrictive criteria regarding the nature of the operator. Thus, any person, whether natural or legal, from the public or private sector, can be an operator. Moreover, it is possible to change operator during the life of an installation.

Our lawyers specialized in water law put their expertise at your disposal to determine whether your project is subject to IOTA regulations. At Macfarlanes LLP, we assist you in preparing the technical and legal files necessary to bring your projects into compliance.

Water law lawyer to determine whether an activity falls under IOTA regulations

To determine whether an activity is subject to IOTA regulations, it is essential to consult the IOTA nomenclature, also known as the "water law nomenclature". This tool for classifying activities and substances that impact water and aquatic environments helps determine the applicability of the rules in force.

Annexed to Article R. 214-1 of the Environmental Code, the IOTA nomenclature is presented in the form of a table structured into five main categories. Each category corresponds to a specific type of use or impact on water and aquatic environments:

• Withdrawals (e.g., water withdrawals from rivers, lakes, or groundwater tables);
• Discharges (e.g., wastewater, industrial or rainwater discharges into aquatic environments);
• Impacts on the aquatic environment or public safety (example: works and developments likely to modify the hydrology of watercourses or disturb aquatic fauna and flora);
• Impacts on the marine environment (e.g., impacts of discharges into the sea, extraction of marine aggregates, or offshore installations);
• Special authorization regimes (e.g., nuclear installations, ICPE also subject to water law or hydroelectric installations).

Each of these categories is then divided into rubrics, identified by a four-digit code. Each rubric corresponds to a specific type of operation impacting water and refers to general or specific prescription orders. These orders set the rules to be followed to limit the environmental impact of activities.

The project holder is responsible for complying with the regulatory orders applicable to their activity, based on the relevant category in the IOTA nomenclature. Our water law lawyers provide you with a precise analysis of your activity with regard to the IOTA nomenclature. Our experts in environmental law help you identify the applicable categories and the corresponding general or specific regulatory orders.

Expertise of our water law lawyers to choose the appropriate IOTA regulatory regime

The IOTA regulation distinguishes two main regimes: declaration and authorization. The choice between the two determines the administrative procedures to be undertaken and depends on the thresholds set in the ''water law nomenclature'' and the assessment of the project's potential risks and impacts on water and aquatic environments. Our lawyers specialized in water law guide you in determining the applicable regime for your project.

The authorization regime is the most restrictive and applies to IOTA likely to:

• pose dangers to public health and safety;
• harm the free flow of water;
• reduce water resources;
• significantly increase the risk of flooding;
• seriously harm the quality or diversity of the aquatic environment.

When the authorization regime applies, it is referred to as environmental authorization. This single procedure consolidates all requirements from various environmental legislations (Water Law, ICPE, etc.), thereby simplifying procedures for project leaders, i.e., operators.

The declaration regime, on the other hand, applies to IOTA that have less significant impacts on the environment and do not meet the criteria justifying an authorization. This is a simplified procedure, but it still requires compliance with certain requirements. The declaration or IOTA authorization request must be submitted to the departmental prefect.

The content of the file varies depending on the applicable regime. The file for the declaration includes a simplified CERFA form and a technical file describing the project's characteristics and its potential impacts. As for the environmental authorization application file, it must include an environmental impact study, a hazard study, and an authorization application file under the Water Law.

Our water law lawyers provide you with valuable expertise to determine the administrative procedure applicable to your project. We analyze the characteristics of your operation and the nomenclature thresholds to identify the appropriate IOTA regime. We help you compile a complete file compliant with the water law. We monitor your file with the prefectural services.

Support from our water law lawyers in case of inspections or sanctions

Compliance with IOTA regulations is monitored by the competent authorities and non-compliance may result in administrative and criminal penalties.

Who are the actors controlling IOTA regulations?

The competent authority for water administrative police and aquatic environments is the departmental prefect. They are responsible for ensuring compliance with the prescriptions set out in the declaration receipt or the environmental authorization order. The agents authorized to investigate and establish offenses relating to water and aquatic environments are environmental inspectors.

These are civil servants and public agents assigned to State services responsible for implementing environmental provisions (for example, within the French Office for Biodiversity (OFB) or with national parks). Some environmental inspectors have the same prerogatives and obligations as judicial police officers, allowing them to record offenses and conduct investigations.

What are the penalties for non-compliance with IOTA regulations?

Violation of the water law is sanctioned both administratively and criminally. The operator faces administrative sanctions, particularly if they fail to comply with the requirements imposed in the prefectural decree or if they do not have a valid declaration receipt or IOTA authorization order.

Initially, they are given formal notice to regularize their situation within a period not exceeding one year.

In the absence of regularization within this period, the administration may take the following measures:

• suspension of the IOTA operation;
• payment of an administrative fine that may be accompanied by a penalty payment;
• carrying out the necessary work at the operator's expense.

In criminal matters, the operation of an IOTA without having completed the required formalities is punishable by one year's imprisonment and a fine of €75,000. When the realization or operation of the IOTA has seriously harmed the health or safety of persons, the penalties are increased to 3 years' imprisonment and a fine of €150,000.

These sanctions are also applicable when the operations have caused substantial degradation of fauna and flora or of the quality of air, soil, or water. The operator who obstructs an inspection by environmental inspectors is liable to six months' imprisonment and a fine of €15,000.

In parallel with these offenses specific to IOTA regulations, breaches may also constitute general offenses, such as:

• the offense of water pollution;
• the general offense of environmental pollution;
• or the offense of ecocide.

The penalties incurred can be even more severe. Our water law lawyers assist you in ensuring your activities comply with IOTA regulations and defend you during inspections. In the event of a challenge to an environmental permit or a dispute related to an IOTA declaration, we represent you before the competent courts.