3.1. Current and Historical Aspects of Water Policy in Reference to Lakes
Legal regulations binding in Poland introduce criteria of classification of lakes that do not correspond with their hydrological typology. From the legal point of view, lakes are included either to the category of stagnant or flowing waters. It depends on the fact and way of connection of lakes with other waters through watercourses. Meanwhile, from the hydrological point of view, lakes are classified exclusively as stagnant waters.
The most important consequence of the binding character of the said legal regulations is the exclusion of lakes considered as flowing waters from civil law turnover. As a result, only the State Treasury is entitled to ownership of such lakes. Lakes that are considered as stagnant waters can constitute property of private (e.g., natural persons) as well as public entities (e.g., State Treasury). Therefore, the classification of a lake within one of the aforementioned categories determines the possibility of it constituting property of a particular entity. This further translates to among others the way of use of a given lake or its protection. This suggests that legal regulations concerning the classification of lakes constitute an important tool of implementation of water policy of Poland in reference to lakes.
The prototype of the current regulations can be found already in the Water Act of 1922 (Act Reg. of 1922, No. 102, item 336). Pursuant to the act, each lake could constitute private property. Although the act referred to lakes in the context of both stagnant and flowing waters, it introduced no classification criteria. Due to this, the incoherence with the hydrological criterion did not play a significant role in practice.
After World War II, Poland was included in the group of countries with the socialist political system. This resulted in the necessity of adjustment of normative regulations corresponding with the socialist legal system. An example is the Water Act of 1962 (Act Reg. of 1962, No. 34, item 158). It introduced the primacy of state ownership with simultaneous marginalisation of private ownership. This led to the nationalisation of almost all lakes with no financial compensation for their contemporary owners. This occurred through the introduction of imprecise classification criteria. Pursuant to the criteria, each lake was supposed to be assessed and qualified as flowing or stagnant water. Further legal acts regulating the discussed issue, i.e., Water Act of 1974 (Act Reg. of 1974, No. 38, item 230 with further amendments) and Water Act of 2001 (Act Reg. of 2001, No. 115, item 1229 with further amendments) inconsiderably modified the criteria, resulting in the maintenance of the division into stagnant and flowing waters in practice.
Beginning from political system changes in Poland that commenced in 1989, in spite of revoking regulations that were related to the socialist legal system, the legislator did not undertake a revision of the approach to the issue of classification (and ownership) of lakes. As a result, a great majority of lakes still constitutes public property (of the State Treasury), and their purchase by private entities encounters restrictions analogical to those of the socialist system.
In 2017, another Water Act (Act Reg. of 2017, item 1566 with further amendments) was passed, aimed at among others full implementation of directives of the European Union in issues related to broadly defined water management, including water protection. The legislator again maintained solutions developed based on the socialist legal system. It considered them appropriate for the development of modern water policy in the scope of lakes, and in line with requirements resulting from the law of the European Union. Pursuant to art. 22 point 2 of the Water Law of 2017, lakes are classified as inland flowing waters if they have a continuous or periodical inflow and/or outflow of surface waters. Article 23 of the act suggests that lakes should be considered stagnant waters if they are not directly and naturally related to surface inland flowing waters (e.g., rivers). The said division is of exclusive character, and each lake must be classified in the scope of either one or the other category.
3.2. Conflicts between Legal Norms and Hydrological Conditions in Lake Water Policy
Classification of lakes in accordance with Polish law occurs based on the aforementioned art. 22 and 23 of Water Law of 2017. Pursuant to legal norms, two criteria must be met for a lake to be classified as flowing water, namely: permanent or periodical inflow and/or outflow, and their natural genesis.
The first criterion is easy to determine in the case of no doubts regarding the permanence of the watercourse. Pursuant to the hydrological definition, a watercourse is a linear hydrographic object designating flowing waters in the form concentrated due to gravity in a natural or artificial channel. If the watercourse is also large (more than several m3/s), in the moderate zone (like in Poland) it occurs throughout the year. Small watercourses (below 1 m3/s) show an evident tendency for drying in the warm half-year, i.e., from May to October. Such watercourses are described as periodical. The smaller the watercourse, however, the higher the frequency of its drying. Small watercourses (including the smallest ones) often do not function for several years in a row. Such watercourses cannot be considered periodical, because they do not function regularly. Watercourses flowing once in several or a dozen years and in different seasons of the year should be described as episodic or irregularly flowing watercourses. Meanwhile, lawyers and sometimes hydrologists associate periodical watercourses with episodic ones. In such situations, a serious conflict occurs already at the stage of interpretation of legal norms. As a result, the final classification of a lake is considerably delayed, because it is necessary to implement field research. Results of such research aim at the determination of the actual character of the watercourse. Field research can last even up to several years due to the necessity of evidencing the periodical character of a given watercourse or its lack. Moreover, it is prolonged due to extremely different meteorological conditions occurring in consecutive years in the moderate climate zone. It is particularly evident in the period of climate changes.
It should be emphasised that, in the case of determination of the occurrence of only an episodic watercourse (or episodic watercourses) in a lake catchment, it is not possible to perform its legal classification. An episodic watercourse, even of natural origin, does not refer to any classification criteria of lakes specified in the Water Law of 2017. Due to this, lakes exist that cannot be classified pursuant to legal regulations. Such situations are an example of an exceptionally negative effect of the dualist concept of legal division of lakes.
The second criterion is only seemingly easy to determine. Whereas there is no doubt as for the natural genesis of large watercourses, in the case of small watercourses the situation is completely different. The majority of small watercourses, including the smallest ones, developed as a result of melioration works in the 19th century or earlier. They are usually ditches whose artificial channels transformed to resemble natural channels. This occurred among others in the case of the abandonment of conservation of ditches from the time they lost their importance due to broadly defined economic development. Moreover, no documentation is usually preserved from the period of intensive melioration works due to the lack of continuity of existence of the Polish State from the second half of the 18th century to 1918 (partitions years). All of this makes proper qualification of the genesis of small watercourses difficult. In such situations, hydrological as well as geological research is necessary, permitting the determination of the genesis of a watercourse. This kind of research is expensive, time-consuming, and requires specialist knowledge.
Another conflict concerning classification of lakes—this time in reference to stagnant waters—is related to the requirements of lack of direct natural connection of the lake with the water network. This legal regulation (art. 23 of Water Law of 2017) suggests the possibility of occurrence of also an indirect connection of the lake with the water network. This results in a conflict in the scope of interpretation of the said regulation, because sometimes attempts are undertaken to evidence the existence of an indirect natural connection of a lake with the water network. Meanwhile, from the hydrological point of view, indirect natural connection of lakes with the water network does not exist.
The imprecise criteria of classification of lakes in Polish law result in different and undesirable situations making the implementation of the planned water policy difficult. Situations are common in which the same lake is classified as stagnant or flowing water by different entities (including court experts). An extreme example of a negative effect of the complicated character of legal provisions in the scope of classification of lakes is Lake Radodzierz with an area of 2.46 km
2 [
5]. Its northern part, located in the territory of the Nowe commune, was qualified as stagnant water, and constitutes private property. The southern part of the lake, which is located in the territory of the Warlubie commune, was classified as flowing water, and it constitutes property of the State Treasury (
Figure 1).
Meanwhile, as results from field research that was performed by the authors, Lake Radodzierz is a typical flow-through lake, and (pursuant to the Water Law of 2017) it should be classified as flowing water. The lake has a permanent natural inflow from the neighbouring lakes (point I in
Figure 1) and a permanent outflow (point O in
Figure 1). In spite of unambiguous hydrological conditions, the complicated legal status has been hindering proper classification of the lake for almost 10 years. Classification of the lake in both categories is also unacceptable in legal terms, because the classification of lakes in the Water Law of 2017 is of exclusive character. Each lake constitutes one water mass and it cannot belong to different categories of waters. Such a situation considerably complicates the fisheries management, with rules of functioning different in the case of private and public waters. The situation is similar in other countries, e.g., in Finland [
6].
3.3. Socio-Economic Effects
The implementation of water policy in reference to lakes in combination with the imprecise criterion of classification of lakes leads to a number of negative effects in the socio-economic sphere. Owners of lakes earlier classified as stagnant waters are private entities. The entities hold the title to lakes as a result of inheritance or purchase. The persons develop a specific group standing out by emotional attachment to a lake and/or economic dependency on it (e.g., fish farmers or owners of recreational resorts). Moreover, the lake constitutes an important element of their property. Therefore, situations in which they learn about the possibility of a change of the lake’s classification from stagnant to flowing water (that legally translates into the loss of ownership of the lake) cause various negative effects, including among others stress, reluctance of further investments and proper management of the lake, reluctance to incur financial expenses, aversion to entities related to public administration, and lack of trust to the legal system. One of the latest examples of such a situation is the procedure at the Regional Court in Kartuzy (Pomorskie Voivodship) conducted in the years 2016–2018. The objective of the procedure was to determine the character of the waters of Lake Kielno (file signature I C 1650/16). In this case, a private owner purchased the lake after obtaining a document from the appropriate office of the state administration in 1978 that confirmed the stagnant character of the lake waters. In spite of holding the document and a document confirming the ownership right to the lake, the owner was forced to undertake a number of costly measures. The measures focused on questioning evidence presented by the plaintiff acting on behalf of the State Treasury. Another example of a dispute concerning the character of waters is Lake Strzemiuszczek (Kujawsko-Pomorskie Voivodship). The procedure concerning the lake was conducted at the Regional Court in Brodnica and at the District Court in Toruń in the years 2011–2016 (file signature VIII Ca 594/16). The long-lasting court proceedings made proper implementation of planned investments (e.g., recreational infrastructure) difficult for the owner. One of the longest procedures is the dispute concerning Lake Stacinko (Pomorskie Voivodship) conducted in the years 2000–2016. Numerous court hearings were performer at the Regional Court in Kartuzy, followed by those at the Districy Court in Gdańsk and at the Supreme Court in Warsaw. Due to numerous irregularities, the Supreme Court revoked the previous ruling unfavourable for the private owner, and submitted the case for another examination at the Regional Court in Kartuzy (file signature IC 848/14). Finally, after presenting the opinion of further experts (including the co-author of this paper), the current classification of the lake (stagnant water), favourable for the private owner, was sustained. The exceptionally long procedure caused social conflicts between the lake’s owner and persons supporting his attempts to keep the lake, and the remaining part of the local community. An Association was even founded for the protection of the environment of Lake Stacinko. It joined the dispute against the lake’s owner. The conflict has been described in the press and on TV a number of times, which interfered with the privacy of the lake’s owner [
7,
8]. This type of situations also concern persons interested in the purchase of a lake. Such persons often give up the intention of purchasing a lake and provision of business activity due to the fear of its loss in unspecified future.
A change of classification of a lake leads to the cancelling of the property right of the current owner. This occurs through court proceedings. The current owner is usually at a risk of incurring high costs of a proxy (e.g., lawyer), and—depending on needs—costs that are related to the preparation of a private hydrological-legal opinion. Based on the authors’ observations, a part of private owners of lakes does not have sufficient financial resources, which reduces their chances of winning the dispute.
In the case of loss of ownership of a lake, the property of the owner is subject to a considerable decrease. They receive no compensation from the State Treasury. A private owner can pursue their claims only in the course of civil law proceedings against the person from whom they purchased the lake. This is very difficult in practice, and in the case of inheritance of a lake, virtually impossible. Purchase of a lake improperly classified by different state entities as stagnant water is invalid. The State Treasury is not liable for the activities or negligence of entities that are responsible for proper classification of the waters. An inappropriate decision of such an entity in the scope usually does not result in any liability of either the entity or the supervising entity. The possibility of imposing liability to damages on such entities (in the scope of the existing legal solutions) is difficult to execute. During several years of research on the described issues, the authors never encountered the fact of bearing liability due to improper classification of a lake as stagnant water (at variance with the actual state) providing the basis for the sale of the lake to a private person.