After the matter was referred to it by several environmental protection organisations, the Conseil d’État today ruled that the relaxation of rules governing the creation of artificial lakes in wetlands is contrary to the principle of non-regression in environmental protection, established by law in 2016. According to this principle, which can only be overridden by another law, changes to environmental protection rules cannot diminish that protection. Since 2021, the Government had made the creation of artificial lakes contingent on several factors designed to protect wetlands, which play an essential role in biodiversity and the environment. By deciding that these conditions would henceforth only apply in wetlands to the creation of lakes with a surface area of more than one hectare, the Minister unlawfully reduced environmental protection in these areas.
In July 2024, the Minister for Ecology issued an order establishing new rules for the creation of lakes in wetlands. Such facilities can be used for fishing, agriculture or recreational activities (1). A number of environmental protection organisations (France Nature Environnement, Eau et Rivières de Bretagne, Sources et Rivières du Limousin, ANPER-TOS, the league for the protection of birds and the French association for the study and protection of fish) referred the matter to Conseil d’État, requesting an annulment of the order.
The Conseil d’État today ruled that the new rules governing the creation of lakes in wetlands did not comply with the principle of environmental non-regression imposed by the Law of 8 August 2016 on the restoration of biodiversity, nature and landscapes, under which the level of environmental protection cannot be diminished unless provided for by law.
New rules likely to affect a large proportion of plans to create artificial lakes
The Conseil d’État noted that under prior legislation, established by an order dated June 2021, the creation of a lake in a wetland area was only possible under three cumulative conditions, namely: 1) that the development served a major public interest or offered benefits that outweighed those of habitat preservation (health, safety or sustainable development); 2) that no better alternative for the environment could be demonstrated; 3) that the project included effective measures to reduce and offset its impact.
The new rules established by the Minister in July 2024 exempted proposed lakes taking up a wetland area of less than one hectare from these conditions. However, according to the national inventory established by the Ministry of Ecological Transition in 2024, most bodies of water in France have a surface area of less than one hectare. The relaxation of the rules was, therefore, likely to affect a large proportion of plans to create lakes located wholly or partly in wetlands, while the flooding of such areas, even partially, was likely to alter their features.
Wetlands play a vital role in biodiversity and the environment
The Conseil d’État noted that, based on current scientific knowledge, even small wetlands play an essential role in biodiversity and the environment. They constitute refuges for biodiversity, help filter and regulate water, mitigate the effects of extreme weather events (such as floods and droughts) and play an important role in carbon storage, particularly in the case of peatlands.
However, 41% of the main wetlands identified had deteriorated between 2010 and 2020, according to the national assessment carried out by the general commission for sustainable development. This led public authorities to adopt a "National Wetlands Plan 2022-2026" in 2022, making the preservation and restoration of these habitats a national priority, together with qualitative and quantitative targets.
Other existing measures do not guarantee protection equivalent to the 2021 rules
Lastly, the Conseil d’État observed that the other legal protection measures currently in effect, i.e. environmental authorisations and declarations, water development and management master plans (SDAGE) and water development and management plans (SAGE), specific protection for wetlands of special environmental interest and for strategic water management areas, special protection for Natura 2000 sites and protected habitats, fail to cover all the areas concerned and do not provide a guarantee of protection equivalent to the rules established in 2021.
On these grounds, the Conseil d’État found that the order of 3 July 2024, amending the order of 9 June 2021 establishing the general technical requirements applicable to bodies of water effectively reduced environmental protection. It, therefore, declared it null and void.
(1) The order of 3 July 2024, amending the order of 9 June 2021 establishing the general technical requirements applicable to bodies of water, including drainage procedures, coming under heading 3.2.3.0 of the nomenclature appended to article R. 214-1 of the French Environment Code.