20 January 2023
Ombudsman Diana Kovacheva has issued an argumented opinion on the Draft Amended Ordinance No. 9 of 2001 on the Quality of Water for Drinking and Household Needs which she has sent, in view of the respective competence, to Caretaker Minister of Environment and Water Engineer Rositsa Kirilova, Caretaker Minister of Health Dr. Asen Medzhidiev and Caretaker Minister of Regional Development and Public Works Architect Ivan Shishkov.
The occasion is the public consultations to amend the Ordinance in question posted on the website of the Public Consultations Portal.
In her opinion, the Ombudsman emphasises that the Draft and the relevant Motivation do not have a form for a partial preliminary assessment as required under the Statutory Instruments Act (SIA) where this assessment is to precede the elaboration of the draft itself.
“In line with the case-law, the absence of an impact assessment falls within the category of material breaches resulting in illegality of the respective act,” the national Public Advocate notes.
Prof. Kovacheva highlights anther irregularity as well – the draft contains provisions which are contrary to the Waters Act (WA) and the Water Supply and Sewerage Service Regulation Act (WSSSRA).
“Ordinance No. 9 of 2001 on the Quality of Water for Drinking and Household Needs (Ordinance No. 9) was issued pursuant to Article 135 (1) (3) read in conjunction with Article 189 of the WA. The provision of Article 135 (1) (3) of the WA empowers the Minister of Environment and Water, the Minister of Health and the Minister of Regional Development and Public Works to issue an ordinance on the quality of water for drinking and household needs. The purpose of the existing Ordinance No. 9 is to protect people’s health against the adverse effects of the pollution of drinking water by providing for requirements for its quality and safety. It sets out the requirements for the quality of water for drinking and household needs,” Diana Kovacheva writes.
She adds that the draft introduces provisions and requirements beyond the scope of Article 135 (1) (3) of the WA related to the obligations of water supply organisations to assess the scale of leaks and the potential to improve their reduction, to develop actions plans when a share of leaks above a certain threshold is found and other follow-up actions.
“This does not correspond to Article 9 (5) of the WSSSRA either which envisages that the Energy and Water Regulatory Commission sets out the maximum amount of the admissible total losses of water and the annual target levels for their annual reduction in accordance with a methodology,” the Ombudsman notes.
Kovacheva points out another discrepancy, namely ensuring access to water for drinking and household needs in relation to which obligations are entrusted to the mayors of municipalities. For example, to inform people with no access to drinking water about the options to connect to the distribution network.
“I would like to emphasise that the WA provides expressly for the control functions of mayors of municipalities (Article 191 (1)),” the Ombudsman justifies her position.
She goes on to provide up-to-date information from water supply organisations with an example about the invoices for the price of a litre or a cubic metre of water supplied; the quantity of water used in a household together with the annual consumption trends of the household if technically feasible and the water supply organisation has such information; a comparison of the annual water consumption of the household to the average consumption of households.
“The said activities are the subject of another ordinance – pursuant to Article 135 (15) of the WA, the Minister of Regional Development and Public Works issues an ordinance on the terms and procedure for the use of water supply and sewerage systems (Ordinance No. 4 of 14 September 2004 on the Terms and Procedure for Connecting Users and for the Use of W&S Systems),” the Ombudsman continues.
She emphasises that, pursuant to Article 1 (1) of the WSSSRA, the accessibility and quality of water supply and sewerage services are provided by operational companies for water supply and sewerage services called “W&S operators”. She points out that the WA also uses the term “W&S operators” while the Draft and the existing Ordinance No. 9 use the term “water supply organisations” without defining it.
The Ombudsman offers specific proposals to improve the texts if her arguments are not accepted.
“Provisions should be included in § 25 of the Draft, in Section 9 Access to Water for Drinking and Household Needs, Article 17 (2), for involvement of the W&S operators as well. Furthermore, it does not become clear when and how people without access to water will be identified or the improvement of the options for this, etc. – every month, every quarter, etc., to whom and how the information will be submitted, what measures need to be taken or by whom to ensure quality drinking water to the affected users without access or with restricted access to drinking water,” the Ombudsman says.
It is proposed that § 26 should specify the term within which customers of W&S operators will receive an invoice or in another appropriate manner information about the quantities of water actually used, the price per cubic metre and the notice about the connection to the website where the information as per Appendix No. 5 is posted. The Draft envisages that this will be done at least once a year but the Ombudsman proposes that the term should be laid down expressly – every three months or every quarter.
“Appendix No. 5 which lays down that the information is to be provided no later than the date under § 9 of the Transitional and Final Provisions should clarify which statutory instrument it refers to because neither Ordinance No. 9 nor the Draft contains such a paragraph; if it is a technical error, it should be corrected,” Kovacheva emphasises.
In view of the significant public interest, she insists that provisions should be included about who is authorised to issue guidelines on the application of the Ordinance.
In addition, she demands that the Draft is to envisage penalties for non-performance of obligations – who and as per what procedure has the right to impose them – because with no penalties, they will remain nothing but a recommendation.
“In conclusion and last but not least, I would like to draw your attention to a problem which will arise with the introduction of the requirement for additional information to be provided in the invoices issued by W&S operators – not all W&S operators send invoices to their customers. In this regard, statutory requirements should be set about the mandatory content of the invoice issued by a W&S operator and within what deadline of issuance it is to be sent to the customer,” Diana Kovacheva points out.