## Facts

- A gravel-pit operator extracted gravel by wet excavation and used groundwater on land near Münster.
- A state authority in North Rhine-Westphalia denied or limited the necessary permit for groundwater use under the federal Water Resources Act (WHG).
- The operator sought compensation in civil litigation, alleging that the permit requirement and restrictions amounted to an unconstitutional taking of property in the groundwater.
- The Federal Court of Justice accepted that traditional civil-law doctrine treated groundwater under the land as part of land ownership, but questioned whether key WHG provisions were compatible with the constitutional property guarantee and equality.
- The Federal Court of Justice referred the WHG provisions for constitutional review to the Federal Constitutional Court through specific judicial review.

## Issues

1. Whether a statutory regime subjecting groundwater use to permits and prioritizing public interests violates the constitutional property guarantee by impermissibly restricting owners’ rights in groundwater beneath their land.
2. Whether the groundwater permitting regime is an expropriation requiring compensation or a general definition of the content and limits of property not requiring compensation.
3. Whether the statutory prioritization of public water supply and related differentiations violate the constitutional equality guarantee.

## Decision

- The Court upheld the constitutionality of the challenged WHG provisions.
- The Court held that the groundwater permitting and allocation system is a general definition of the content and limits of property, not an expropriation.
- The Court concluded that groundwater’s public importance and vulnerability justify a comprehensive public-law ordering of its use.
- The Court rejected the equality challenge, finding the prioritization of public water supply objectively justified.

## Legal Principles

- Constitutional property protection permits the legislature to define and reshape the content and limits of property rights through general, prospective legislation in the public interest.
- An expropriation involves a specific withdrawal of concrete property positions for particular public tasks and requires compensation; a generally applicable regulatory redefinition of property typically does not.
- Groundwater may be treated as a resource subject to comprehensive public regulation because of its essential public significance and susceptibility to harm from individual uses.
- Differentiations favoring public water supply may be consistent with equality guarantees when justified by the essential function of drinking-water provision.
- Property protection does not guarantee continuation of all existing uses; proportionality focuses on whether the legislative scheme reasonably balances owner interests with community needs.

## Conclusion

The Court sustained a permit-based groundwater regime as a constitutionally valid, generally applicable limitation defining the content of property rather than a compensable taking, and it approved prioritizing public water supply as a justified legislative differentiation.


Groundwater Case (Naßauskiesung), 58 BVerfGE 300 (F.R.G. 1981)