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Drought: do municipalities have the right to cut off drinking water to preserve resources?

Whether or not to ban water cuts has animated political debate for years. (Illustration ©Le Pays d’Auge)

“More than a hundred municipalities in France today no longer have drinking water”, warned this Friday, August 5, 2022 the Minister for Ecological Transition and Territorial Cohesion, Christophe Béchu, during a visit to the Alpes-de-Haute-Provence.​

Successive heat waves and lack of rain have forced the municipalities concerned to review their water supply, while the whole of metropolitan France is subject to restrictions on the use of water due to drought.

The situation is such that in some cases, some municipalities have had to turn off the tap altogether.

Last resort, turn off the tap water

To cope with the situation, deemed “historic” by the government, some communities are using tankers to be supplied with water, because their reserves are dry, or almost. So they get their supplies from neighbours. The only solution to avoid a shortage of tap water for residents.

But in some cases, the municipalities are simply forced to turn off the tap, which has happened in several municipalities in France, temporarily, as identified franceinfo. Either to ration consumption and avoid being completely dry. Either for a question of safety, because if the water table is dry, what is sucked up by the pump and comes out at the tap gives cloudy and muddy water, unfit for consumption.

But turn off the tap water, is it really legal? Actu.fr questioned François Brottes, at the origin of “the Brottes law”, when he was deputy (PS) of Isère and president of the commission of economic affairs.

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Forbidden to turn off the water, but…

Whether or not to ban water cuts has animated the debate for years. The politician had the law of April 15, 2013 adopted, “aimed at preparing for the transition to a sober energy system and containing various provisions on water pricing and wind turbines”. Its article 19 simply forbade turning off the water, even in the event of an unpaid bill.

This law was challenged in particular by the Professional Federation of Water Companies (FP2E), which brings together almost all the private companies managing water and sanitation services in France, and by the National Federation of Concessioning Authorities. and utilities (FNCCR), association of local authorities specializing in local public services for the distribution of electricity, gas, water, sanitation, electronic communications, waste collection and recovery.

In short, these organizations believed that the “Brottes law” encouraged fraudulent behavior. They did not win. Since François Brottes’ law and its implementing decree of February 2014, water cuts are prohibited in a main residence, regardless of the financial situation of the customers concerned.

And justice expanded this ban on flow reductionsconsidering that they lead to the same consequences as a cut by depriving the inhabitants of normal use of water, an essential element for housing to be qualified as decent.

The flow reduction is achieved by installing a “lens” on the water pipe, a device that limits the diameter of the connection of the subscribers concerned. La Saur and Veolia have been condemned several times for this practice.

What about drought? Can the tap be “legally cut off” as dozens of municipalities have been doing for several weeks? “Jurisprudence will perhaps say so”, answers François Brottes today.

The water is unfit for consumption in three municipalities.
The water is unfit for consumption in three municipalities. (©Illustration Fabien Hisbacq – News Occitanie)

“Access to water, an essential human need”

The Constitutional Council had been seized in 2015 by the Court of Cassation of a priority question of constitutionality posed for the company Saur. And he had clarified the will of the legislator.

“By prohibiting water distributors from interrupting the supply of water to any main residence throughout the year for non-payment of bills, the legislator intended guarantee access to water for everyone occupying this residence. By not limiting this prohibition to a period of the year, he wanted to ensure this access for the entire year. By providing that this prohibition is imposed regardless of the situation of the persons holding the contract, it has, as is clear from the preparatory work for the law of 15 April 2013 referred to above, intended to ensure that no person in a situation of precariousness cannot be deprived of water. That the legislator, by guaranteeing under these conditions access to water that meets an essential human needhas thus pursued the objective of constitutional value which constitutes the possibility for everyone to have decent housing,” wrote the court.

“Water merchants could take advantage of this to unravel the law”

In June 2021, the Ministry of Ecological Transition reminded him, in a “guide for the implementation of measures to restrict water users in times of drought” the power of mayors.

“Uses of water from public and private drinking water networks are strictly reserved for the satisfaction of drinking water supply needs. As soon as a prefectural restriction decree has been issued, the mayor of a municipality within the scope of action of this same decree temporarily restricting uses, may decide to issue a municipal decree at least as restrictive as the decree prefectural. At any time, the mayor can thus take general administrative police measures adapted to the localized situation to restrict the use of water, on the basis of health and safety – article L.2212-2 of the General Code Territorial Communities. »

Clearly, the risk today, worries François Brottes, is that “on the basis of this broad interpretation of the law, the legislator will take hold of the subject in order to reduce its scope (on the pretext of the drought) and that‘then the water merchants can put pressure to unravel it… »

A subject that could come back on the table, while the question of sharing the uses of water agitates the political class. LFI MP Mathilde Panot thus claimed on Twitter a right to water “enshrined in the Constitution”: “water must first go to life rather than to profits! “.

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