#1. Legislative History

N. 1 Art. 76 Cst. traces back to Art. 24bis old Cst., which was incorporated into the Federal Constitution in 1953. The provision was largely adopted unchanged in substance during the total revision of 1999, but was systematically restructured and linguistically modernised (FG 1997 I 1, 269 ff.). The Federal Council's message emphasises that the allocation of powers between the Confederation and the cantons in the field of water was deliberately maintained: «The cantons have sovereignty over waters and thus over water resources» (FG 1997 I 270).

N. 2 The 1975 revision introduced water protection as a federal task, while the utilisation of hydropower had already been anchored in the Federal Constitution since 1908 (Art. 24ter old Cst.) and hydraulic engineering since 1897 (Art. 24 old Cst.). The current version combines these historically developed powers in a systematic comprehensive regulation (Griffel, St. Galler Kommentar BV, Art. 76 N. 2).

#2. Systematic Classification

N. 3 Art. 76 Cst., together with Art. 77 Cst. (Forest), forms the core of the constitutional environmental norms. The provision is closely related to → Art. 73 Cst. (Sustainability), → Art. 74 Cst. (Environmental Protection) and → Art. 89 Cst. (Energy Policy). In the utilisation of hydropower, there is an interface with → Art. 90 Cst. regarding energy supply (Biaggini, BV-Kommentar, Art. 76 N. 1).

N. 4 The federalist allocation of powers characterises Art. 76 Cst.: While the Confederation lays down the principles (para. 2) and enacts regulations (para. 3), the water resources remain with the cantons (para. 4). This dual structure reflects the principle of subsidiarity according to → Art. 5a Cst. (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Kommentar BV, Art. 76 N. 8).

#3. Elements of Offence / Content of Norm

N. 5 Water resources comprise all surface and underground waters including springs, lakes, rivers and groundwater. The term is to be understood broadly and also includes future utilisation potential. The «careful use» (para. 1) requires a considerate, sustainable handling of water resources in the sense of the principle of sustainability.

N. 6 The basic legislative power of the Confederation (para. 2) authorises framework legislation but leaves implementation and detailed regulation to the cantons. The enumeration of types of utilisation (energy production, cooling purposes) is not exhaustive («and»). The federal legislature has comprehensively exercised this power with the WRA, WPA and WCE (Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, N. 1098).

N. 7 The sovereignty over waters of the cantons (para. 4) comprises the power to dispose of public waters on their territory. This historically developed sovereignty includes the right to utilisation, to grant concessions and to levy charges. However, cantonal sovereignty is limited by federal legislation («within the limits of federal legislation»), which particularly applies in the case of environmental protection provisions (Rhinow/Schefer/Uebersax, Verfassungsrecht, N. 3456).

#4. Legal Consequences

N. 8 Para. 1 gives rise to a duty to protect and promote on the part of the Confederation, which manifests itself in legislation (WRA, WPA, WCE), but also in subsidies and technical support. The cantons are bound by federal requirements when exercising their sovereignty over waters (BGE 142 I 99 E. 5.2).

N. 9 The levying of charges according to para. 4 sentence 2 comprises water charges, concession fees and other water-related levies. The Federal Court has repeatedly confirmed the cantonal power to levy charges, but has pointed out its limits in economic freedom and federal law (BGE 128 II 112 E. 4). The maximum amount of the water charge is limited by federal law in Art. 49 WRA.

N. 10 In the case of international water resources (para. 5), the Confederation has exclusive decision-making power but must involve the affected cantons. This federal power comprises both international treaties and the regulation of transboundary water uses (Müller/Schefer, Grundrechte, S. 897).

#5. Disputes

N. 11 Scope of cantonal sovereignty over waters: While Biaggini (BV-Kommentar, Art. 76 N. 5) emphasises extensive autonomy of the cantons, other commentators advocate a more restrictive interpretation in view of comprehensive federal legislation. The Federal Court tends towards a mediating position according to which cantonal sovereignty continues to exist but is considerably limited by federal law (BGE 145 II 140).

N. 12 Relationship hydropower - water protection: In doctrine, it is disputed how the balancing of interests between energy production and environmental protection should be weighted. Griffel (St. Galler Kommentar BV, Art. 76 N. 18) pleads for strict priority of water protection, while Keller (in: Häfelin/Haller/Keller/Thurnherr, N. 1099) calls for a balanced weighing of interests. Practice shows an increasing weighting of ecological concerns while simultaneously recognising the energy policy significance of hydropower.

N. 13 Vested rights: The scope of historical water rights is controversially discussed. While part of doctrine (Huber-Wälchli/Keller, Wasserbaurecht, S. 156) pleads for extensive protection of existing rights, newer doctrine (Hettich/Walther, Wasserrecht, N. 234) advocates a dynamic obligation to adapt to modern environmental standards. The Federal Court chose a mediating solution in BGE 145 II 140.

#6. Practical Guidelines

N. 14 In concession renewals, current environmental regulations must be applied in full, even if the original concession was granted under old law. The 80-year maximum duration applies regardless of the amortisation period of investments (BGE 140 II 262).

N. 15 Procedural coordination: Hydropower projects regularly require multiple permits (concession, building permit, EIA, water protection permit). Early coordination of procedures and involvement of federal authorities in the EIA is advisable (BGE 126 II 283).

N. 16 For charge assessment, a distinction must be made between water charges (raw material levy) and concession fees (administrative charge). Additional cantonal taxes on hydropower are permissible provided they differ from the water charge regulated by federal law (BGE 128 II 112). When determining charges, the economic viability of hydropower utilisation must be taken into account.

#Federal Legislative Authority and Water Rights

BGE 142 I 99 of 31 March 2016
The Federal Supreme Court clarified the distribution of competencies between the Confederation and the cantons in the area of hydropower use and confirmed the compatibility of cantonal concession procedures with Art. 76 paras. 2 and 4 Cst.
The decision deals with the abstract judicial review of the revised water use ordinance of the Canton of Uri regarding the granting of concessions for hydroelectric power plants.

«The Confederation has legislative authority over the utilisation of water resources while the cantons have sovereignty over bodies of water. They are therefore empowered to either utilise public waters themselves or to grant the right to utilisation to third parties by way of concession.»

BGE 128 II 112 of 17 January 2002
The Federal Supreme Court confirmed the validity of the special hydropower tax of the Canton of Valais with reference to Art. 76 para. 4 Cst., which assigns water resources to the cantons.
The decision clarifies the legal nature of the special hydropower tax in relation to water fees and the scope of acquired rights of the concessionaire.

«Les cantons disposent des ressources en eau et peuvent percevoir des redevances pour l'utilisation de l'eau dans les limites de la législation fédérale.»

#Hydropower Use and Residual Flow Regulations

BGE 145 II 140 of 29 March 2019
The decision deals with the renewal and rehabilitation of an existing hydropower plant with hereditary water rights and confirms the applicability of residual flow regulations.
The case law clarifies the relationship between historical water rights and modern environmental protection requirements.

«The concessionaire's hereditary water right grants a special use right to a public body of water, which cannot be valid indefinitely, but only until the amortisation of the investments made, for a maximum of 80 years.»

BGE 140 II 262 of 2 April 2014
The Federal Supreme Court dealt with the water use concession for a small hydropower plant and clarified the principles for determining the minimum residual water quantity.
The case concerns the increase of the minimum residual water quantity for the protection of rare habitats and to ensure free fish migration.

«The concession duration of 80 years corresponds to the statutory maximum duration. It is permissible even if the amortisation period for the investments made is significantly shorter.»

BGE 126 II 283 of 28 April 2000
The Federal Supreme Court decided on the water use concession of the Lungern Lake power plant and the environmental impact assessment for hydropower projects.
The decision clarifies the requirements for ensuring adequate residual water quantities in complex power plant projects.

«In complex projects, the expertise of the specialised federal agency should already be included in the EIA.»

#Water Protection and Agricultural Management

Judgment 1C_583/2021 of 31 August 2023
The Federal Supreme Court confirmed the validity of stricter phosphorus regulations for agriculture in the catchment area of the Lucerne Midland lakes.
The decision deals with the competencies of the cantons for water protection enforcement and the proportionality of management restrictions.

«According to Art. 76 para. 1 Cst., the Confederation shall, within the scope of its powers, ensure the economic use and protection of water resources and the prevention of the harmful effects of water. It shall in particular issue regulations on water protection.»

#Energy Policy and Hydropower

BGE 138 I 454 of 27 October 2012
The Federal Supreme Court clarified the demarcation of competencies between the Confederation and the cantons in electricity industry law, taking into account the production-related provisions on hydropower under Art. 76 Cst.
The decision concerns the comprehensive federal regulation of remuneration for decentrally generated energy by electricity distribution companies.

«Apart from that (and from the production-related provisions on hydropower [Art. 76 Cst.] and nuclear energy [Art. 90 Cst.]), electricity industry and supply law remained essentially cantonal until the enactment of the Electricity Supply Act.»

BGE 149 I 291 of 3 May 2023
The Federal Supreme Court dealt with a municipal popular initiative for converting all heating systems to renewable energy and examined its compatibility with economic freedom.
The decision shows the limits of municipal energy policy in the federal system.

«Energy policy is fundamentally a matter for the Confederation and the cantons, whereby municipalities can only act subsidiarily.»

#Water Engineering and Flood Protection

Judgment 1C_526/2015 of 12 October 2016
The Federal Supreme Court decided on water engineering projects and the distribution of competencies between the Confederation and the cantons for flood protection measures.
The decision clarifies the requirements for spatial planning in water engineering projects.

Judgment 2C_258/2011 of 30 August 2012
The Federal Supreme Court dealt with the environmental impact assessment for larger water engineering projects and the coordination between different approval procedures.
The decision clarifies the application of environmental law to water engineering measures.

#International Water Resources

Judgment 1C_262/2011 of 15 November 2012
The Federal Supreme Court decided on cross-border hydropower projects and the competence of the Confederation according to Art. 76 para. 5 Cst.
The decision deals with the decision-making competence of the Confederation for international water resources.

Judgment 2C_729/2013 of 3 April 2014
The Federal Supreme Court clarified the application of Art. 76 para. 5 Cst. in disputes over intercantonal water resources.
The decision clarifies the role of the Confederation as arbiter in intercantonal water disputes.

#Water Withdrawal and Use Concessions

Judgment 1C_490/2017 of 15 May 2018
The Federal Supreme Court dealt with the extension of water use concessions and adaptation to new environmental protection requirements.
The decision clarifies the rights of concessionaires under changed legal frameworks.

Judgment 1C_401/2020 of 1 March 2022
The Federal Supreme Court decided on the authorisation of water withdrawals for irrigation purposes and the consideration of climatic changes.
The decision shows the increasing importance of water scarcity in case law.

#Procedural Aspects

Judgment 1C_391/2022 of 3 May 2023
The Federal Supreme Court clarified procedural questions regarding the granting of water use concessions and the role of environmental organisations in proceedings.
The decision clarifies the standing of environmental associations in hydropower projects.

Judgment 1C_258/2015 of 22 March 2016
The Federal Supreme Court dealt with the coordination of different approval procedures for hydropower projects.
The decision clarifies the requirements for proper procedure in complex water projects.