As mentioned in the previous section, the preservation of water resources is of paramount importance in a context of increasing heatwaves and droughts and could constitute one of the major challenges in the years to come. The intense heatwaves experienced in France in recent months, primarily due to climate change, compel authorities to consider these new "climate risks" in industrial policy. Facilities subject to environmental protection regulations (ICPE) consume significant amounts of water in their processes and are facing increasingly urgent legal challenges due to the growing periods of drought. This second part of the chronicle aims to clarify the conditions for the reuse of treated wastewater, following the legislative changes made last month, which codify these conditions for the first time within the Environmental Code.

The new decree of August 29, 2023, concerning the uses and conditions of use of rainwater and treated wastewater, introduced a "Section 8 Uses and Conditions of Use of Rainwater and Treated Wastewater" - Art. R. 211-123 (new) to Art. R. 211-137 (new) of the Environmental Code, repealing decree no. 2022-336 of March 10, 2022. We will first look at I) the scope of application, and then II) the procedure for the reuse of treated wastewater.

I) Scope of Application:

It is important to distinguish between:

- The use of rainwater: This is possible without requiring an authorization procedure. Rainwater is defined as that which originates from atmospheric precipitation collected downstream of areas inaccessible to individuals except during maintenance and upkeep operations.

-The use of treated wastewater: This is subject to an authorization procedure (defined in subsection 2 of the decree - see the Authorization Procedure for Treated Wastewater in the note), where applicable, after undergoing additional treatment. Treated wastewater includes:

>Those from installations subject to regulations on ICPEs (except those from a treatment facility connected to a collection, storage, post-collection handling, or transformation facility for animal by-products, unless these wastewater have been previously thermally treated at 133°C for 20 minutes under a pressure of three bars).
>Those from installations subject to regulations on IOTA, with a gross organic pollution load exceeding 1.2 kilograms of biochemical oxygen demand over five days (BOD5) per day, and compliance with the treatment levels set by the authorization order or specific prescriptions. When considering the use of treated wastewater for agronomic or agricultural purposes, only these can be authorized.

There are also specific regulations with their own provisions for domestic uses, food companies, uses within an ICPE as regulated by an authorization order...
It should be noted that there are exclusions for use based on locations (residential premises, healthcare facilities, public establishments during opening hours, etc.) or purpose (food, personal hygiene, watering of green spaces, etc.).

II) Procedure for the Reuse of Treated Wastewater:

In terms of procedure, an authorization request must be submitted to the prefect of the department where the treated wastewater is produced. This request should be accompanied by a dossier justifying the project's environmental significance and demonstrating its compatibility with the protection of human, animal, and environmental health. When the authorization request dossier is complete, an acknowledgment of receipt is provided to the applicant. If the review reveals that the dossier is incomplete or lacks sufficient elements to assess the merits of the request, the prefect will ask the applicant to provide the missing information within a specified timeframe.

The complete dossier is forwarded for review by the CODERST and the ARS, unless the project complies with minimum quality requirements or general provisions allowing for an equivalent level of protection, as defined by a joint order from the Minister of the Environment and the Minister of Health. In such cases, the opinions of the CODERST and the ARS are not required. This elimination of the need for a conforming opinion from the ARS is one of the major novelties.
Once the dossier is submitted and the request is processed, following the opinions of the CODERST and the ARS, the prefect will issue a response:

-An explicit or implicit refusal decision in the absence of a response from the prefect within 6 months from the date of the acknowledgment of receipt. This period is extended by two months when ANSES is consulted.
-An acceptance decision: In this case, the prefect will issue an authorization order specifying the water quality standards for the treated wastewater to be met for authorized uses and outlining the obligations of the parties involved, including technical requirements.

Finally, once authorization is granted, post-use monitoring measures must be implemented, such as a review every 5 years or within the timeframe specified in the prefectural authorization order. This review should qualitatively and quantitatively assess the health and environmental impacts as well as provide an economic evaluation of the implemented project. This review is submitted to the prefect, who forwards it to the CODERST for review within three months of its receipt, assessing the results and the project's merit.

It should be noted that non-compliance with the provisions of the prefectural authorization order can result in suspension measures and/or sanctions.