France/Pre-emption right to protect water resources: the second version of the decree in consultation

Modified by the 3DS law, the right of pre-emption to protect water resources is back in the news with a second draft decree that specifies the conditions of application of the provisions.

The improvement of the protection of water catchments, reaffirmed during the Assises de l'eau with the announcement of a right of pre-emption of agricultural land in the vicinity of these catchments, should see its framework specified soon: a draft decree is under consultation until July 11, 2022. More precisely, the second version of this text. A first version had been proposed in July 2020, following the opening of this right by the Law of Engagement and Proximity. This allowed communities to request the establishment of a right of pre-emption of agricultural areas located within their perimeter, the property acquired being integrated into the private domain of the local authority or public institution. Their use is then limited to agricultural exploitation compatible with the objective of preserving water resources.

New provisions introduced by the 3DS law

The law on differentiation, decentralization and deconcentration, known as the 3DS law, then came along and introduced new provisions. It thus opened up the transfer of the right of pre-emption to mixed unions and local public establishments. It specifies that when properties are leased, they must include environmental clauses to guarantee the preservation of the resource. And if a rural lease already exists, it must be completed, at the latest when the lease is renewed.

Moreover, these properties can also be transferred by mutual agreement, but on the condition that the purchaser signs a contract that includes real environmental obligations (REO). This document must, at a minimum, include measures that guarantee the preservation of water resources. Signed between the purchaser and the holder or delegate of the right of pre-emption, it is attached to the deed of sale and its duration cannot exceed ninety-nine years.

The framework proposed by the draft decree 2

"The main change made to this draft decree in relation to the version previously submitted for public consultation concerns the removal of the provisions specifying the terms and conditions for implementing the environmental clauses for the sale of land.The main change made to this draft decree compared to the version previously submitted for public consultation concerns the removal of the provisions specifying the terms and conditions for implementingenvironmental clauses for the operation of acquired assets, as these provisions are now specified by law," states the Ministry of Ecological Transition in its note presenting the draft decree. In addition, the decree sets out the procedure for establishing the right of pre-emption. It indicates that the administrative authority in charge is the departmental prefect.

The applicant sends him a file that includes a deliberation requesting the institution of this right of pre-emption, a plan showing the perimeter of the territory in which this right is requested, a hydrogeological study of the area of the right of pre-emption, and a report on the situation of the area of the right of pre-emption.ological study of thecatchment area, a note presenting the territory, its agricultural practices and the promotion measures or actions implemented, as well as their results. The reasons for the request and the choice of the proposed perimeter must also be explained. The decision must then be made within six months of receipt of the application.

The draft decree also adapts to the right of pre-emption the provisions already applicable to the other rights of pre-emption already enjoyed by local authorities and their groupings. Concerning the modality of management of the acquired property, it specifies that a call for applications must be preceded by the posting of a notice at the town hall of the place where the property is located for at least fifteen days. This notice describes the total surface area, the name of the municipality, the name of the locality or the cadastral reference and the mention of its classification in a town planning document, if any, the main environmental clauses of the lease, the deadline for submitting applications as well as the means of obtaining additional information. In the event of a transfer, the price envisaged must be mentioned. Finally, the draft decree provides that the purchaser may make his property available to the land development and rural establishment companies within the framework of an agreement.

Source: www.actu-environnement.com