Water sports on public waters in Switzerland

---

General part: water sports on public waters in Switzerland

---

With its numerous lakes and rivers, Switzerland offers ideal conditions for practicing water sports of all kinds. However, the many water resources distributed over the entire national territory also have other interests to satisfy. In particular, they also serve water supply, energy production, shipping, fishing, etc. Water bodies then represent sensitive ecosystems that must be protected from overexploitation and pollution. It is obvious that the coordination of diverse water use interests and the guarantee of sufficient water protection require a certain standardization. Against this background, public waters are subject to a wide range of regulations at international, national, cantonal and, in some cases, municipal level.

---

In the following, in a first step, the distribution of competences between the Confederation and the cantons for the regulation of the use of water bodies for sports purposes will be discussed. In a second step, the principles of public use of public waters will be presented and related to the practice of water sports.

I. Division of powers between the Confederation and the cantons

A. Cantonal water sovereignty

1. General

---

According to Art. 76 Para. 4 BV, the cantons dispose of the water resources. Thus, the so-called cantonal water sovereignty is anchored in constitutional law (cf. also Art. 3 BSG; Art. 664 para. 1 ZGB; cf. on the cantonal level e.g. Art. 105 para. 1 KV/ZH; Art. 37 para. 1 KV/OW). However, it already results from the principle of the subsidiary general competence of the cantons (Art. 3 BV), which means that the express anchors at the constitutional and statutory level are merely declaratory in character (Biaggini, Komm. BV, Art. 76 N 7; BK ZGB-Meier-Hayoz, Art. 664 N 3 f.; Rüegger, p. 10).

---

Cantonal sovereignty over waters is understood as the comprehensive public law normative power of the cantons, by virtue of which they can determine in cantonal law, e.g., which waters on their national territory are to be considered public and which legal positions exist and can be established in them (BSK ZGB II-Rey/Strebel, Art. 664 N 23; cf. also BK ZGB-Meier-Hayoz, Art. 664 N 21 ff., 108; SG Komm. BV-Marti, Art. 76 N 26; Rüegger, p. 12; see also judgments of the Federal Supreme Court of June 2, 2012, 2C_900/2011, E. 2.1; of December 20, 2010, 2C_622/2010, E. 3.2). The cantons do not have to exercise their sovereign rights themselves; they can also delegate them to other intra-cantonal bodies, such as the districts or municipalities (BK ZGB-Meier-Hayoz, Art. 664 N 16 f.; BSK ZGB II-Rey/Strebel, Art. 664 N 23; Rentsch, p. 339; as an example, cf. § 4 para. 1 WRG/SZ, according to which the sovereignty over flowing public waters belongs to the districts). Ownership under property law is not to be equated with sovereignty under public law (cf. BK ZGB-Meier-Hayoz, Art. 664 N 50 ff.; Rentsch, p. 339; cf. also BGE 95 I 247 E. 2). Whether the cantons also claim ownership of the water body over and above sovereignty is irrelevant to the power to rule, especially since the comprehensive power to set norms is in no way extended by ownership (BK ZGB-Meier-Hayoz, Art. 664 N 59; cf. also Häfelin/Müller/Uhlmann, para. 2238).

---

The term "water resources" used in Art. 76 BV is to be understood broadly: It includes underground and surface, natural and artificial, as well as public and private waters (Biaggini, Comm. BV, Art. 76 N 3), whereby primarily the surface, natural and public waters are of interest for the practice of water sports. Whether glaciers as fixed water resources also fall under the provision is judged differently in the literature (basically affirmatively SG Komm. BV-Marti, Art. 76 N 10; negatively BSK BV-Caluori/Griffel, Art. 76 N 7). As Biaggini points out, this question should not be answered in a general way, but rather depending on the subject of regulation (Biaggini, Comm. BV, Art. 76 N 3). For example, the navigation legislation relevant to water sports (see recitals 10 ff. and 27 ff. below) - unlike the water protection legislation (see Ribaut, recital ....) - can hardly be applied to glaciers.

2. Publicity of waters

---

The competence to regulate which waters are considered public and are available for use by the public lies with the cantons as holders of water sovereignty (e.g. Flückiger, p. 48). The majority of cantons declare all surface waters to be public, provided that there is no evidence of private ownership. Surface waters are regularly defined as those with a permanent flow of water and a fixed channel, such as lakes, ponds, rivers and streams (cf. e.g. § 5 para. 1 Water Management Act of the Canton of Zurich of 2 June 1991 [WWG/ZH; LS 724.11]; § 5 para. 1 and 2 Water Construction Act of the Canton of Lucerne of June 17, 2019 [WBG/LU; SRL 760]; Art. 2 para. 1 Law on Hydraulic Engineering and Water Use of May 31, 2001 [Wasserbaugesetz/OW; GDB 740.1]; § 1 para. 1 item 3 Water Use Act of the Canton of Thurgau of August 25, 1999 [WNG/TG; RB 721.8]). In individual cantons, the larger surface waters are additionally enumerated by name and expressly constituted as public (cf. Art. 3 Water Use Act of the Canton of Uri of April 1, 1993 [GNG/UR; RB 40.4101]; § 2 Water Rights Act of the Canton of Schwyz of September 11, 1973 [WRG/SZ; SRSZ 451.100]). Furthermore, on the basis of their watercourse sovereignty, the cantons may also declare watercourses in which private ownership exists as public, especially since the public nature of a watercourse is largely to be separated from the question of ownership and the declaration of a watercourse as public presupposes watercourse sovereignty but not ownership (on the whole Flückiger, p. 48).

---

Overall, most lakes and rivers as natural surface waters and thus those waters that are primarily of interest to water sports enthusiasts are constituted as public waters by cantonal law. In principle, public waters are available for use by the public (see recital 47 ff. below).

3. Limits of the cantonal sovereignty over water bodies

---

The cantonal sovereignty over waters is limited by federal public law (BK ZGB-Meier-Hayoz, Art. 664 N 101; BSK ZGB II-Rey/Strebel, Art. 664 N 24; OFK ZGB-Kernen, Art. 664 N 5; Rentsch, p. 340).

---

In terms of water sports law, of primary importance are the federal regulations concerning navigation (Art. 87 BV; see in this regard below, para. 10 et seq.) and water protection (Art. 76 para. 3 BV; see in this regard Ribaut, para. ...).

B. Federal inland navigation legislation

1. General

---

Legislation concerning shipping is a matter for the Confederation (Art. 87 BV). The Confederation has comprehensive legislative competence (BSK BV-Kern, Art. 87 N 20) with retroactive derogatory effect (Federal Supreme Court judgment of 10 August 2005, 2P.191/2004, E. 2.2). Accordingly, federal provisions on shipping issued on the basis of Art. 87 BV supersede any conflicting cantonal law. However, the federal government must respect cantonal sovereignty over waterways in its legislation and ordinances in the area of navigation (cf. Art. 3 para. 1 BSG; Märki/Wyss, para. 7).

---

In the exercise of its comprehensive legislative competence, the Federal Parliament has enacted the Federal Law on Inland Navigation (BSG; SR 747.21) and the Federal Council has issued the Ordinance on Inland Navigation (BSV; SR 747.201.1) based on it. The Inland Navigation Act regulates navigation on Swiss waters, including the border waters, in accordance with Art. 1 Para. 1 BSG. International agreements and the regulations based thereon are reserved (Art. 1 para. 3 BSG; see in this respect below para. 39 ff.). According to the dispatch, the inland navigation law is to create the competences for uniform implementation regulations as a framework law (BBl 1974 I 1552). In accordance with this purpose, the Inland Navigation Act applies to all types of navigation, i.e. passenger, freight, sport and pleasure navigation (Vogel/Hartmann/Schib, para. 6).

2. Water sports equipment as vessels

---

The material scope of inland navigation legislation is essentially derived from the definition of the term "ship" in Art. 2 FSIO. According to Art. 2 para. 1 lit. a No. 1 FSIO, a vessel is a watercraft or other floating body intended for movement on or under the surface of the water, or a floating device. While certain water sports equipment, such as the surfboard (cf. Märki/Wyss, para. 11), is already considered to be a ship on the basis of this broad definition of the term "ship", Art. 2 para. 1 lit. a BSV defines numerous other water sports equipment and expressly subsumes them under the term "ship" within the meaning of the inland navigation legislation. 9), the sailboard (para. 10), the rowing boat (para. 11), the raft (para. 12), the inflatable boat (para. 13), the pleasure boat (para. 14), the sports boat (para. 15), the dragon sailboard (para. 16), the water motorcycle (item 18), the beach boat (item 20), the paddle boat (item 21), and the diving scooter (item 23) (for details of the individual water sports, see Special Part ...).

---

As a result, in addition to navigation "in the narrower sense", the use of watercraft and water sports equipment for sport and pleasure purposes and, to that extent, the practice of water sports in general, also fall within the scope of the inland navigation legislation (cf. already BGE 119 Ia 197 E 2b with reference to BBl 1974 I 1553).

3. Regulations relevant for water sports

---

The subject matter of the Inland Navigation Act is, in particular, the construction and operation of port facilities (Art. 8 f. BSG), the requirements for ships and skippers (Art. 10 ff. BSG), traffic regulations (Art. 22 ff. BSG), the regulation of international navigation on the Rhine (Art. 28 ff. BSG) as well as liability and insurance aspects (Art. 30a ff. BSG; see also BSK BV-Kern, Art. 87 N 20). The Ordinance contains provisions concretizing these provisions.

---

The following is intended to highlight the provisions of the BSG and BSV relevant to the practice of water sports using a "vessel" as defined by inland navigation law.

a. General duty of care, rescue and notification

---

According to Art. 22 para. 1 BSG, the skipper, i.e. also the person engaged in water sports with a "ship", must take all precautionary measures required by the general duty of care and the practice of navigation, so that no one is endangered, no other property is damaged, navigation is not impeded and the environment is not disturbed. The purpose of the provision is to protect people, goods, navigation and the environment (Vogel/Hartmann/Schib, para. 31). The general duty of care is further specified at the ordinance level (cf. Art. 5 BSV). Art. 22 para. 2 BSG then stipulates that the skipper must do everything possible to prevent damage in the event of imminent danger, even if he or she has to violate regulations.

---

Similar to the Road Traffic Act (cf. Art. 51 para. 2 Road Traffic Act of 19 December 1958 [SVG; SR 741.01]), the Federal Law on Inland Navigation also provides for a general duty of rescue. Thus, if people are in danger on a body of water, every skipper has to help as far as it is reasonable and their own ship is not endangered (Art. 23 para. 2 BSG). Like the corresponding provision of road traffic law, the duty of rescue under navigation law is primarily aimed at accidents, as is clear from the further concretizing provisions in Art. 12 BSV.

---

Finally, in the event of accidents and damage, the skipper or the water sportsman or woman has a duty to report. Depending on whether a person is injured or killed, a signal or sign for navigation is damaged or only material damage occurs, the police or the injured person must be notified (Art. 24 BSG).

b. Priority rules

---

Art. 44 BSV contains a general priority rule when meeting and overtaking vessels requiring identification. For example, sailing vessels have priority over all other vessels, with the exception of priority vessels (i.e. course or other passenger vessels to which the competent authority has given priority, cf. Art. 2 para. 1 lit. a No. 22 BSV), cargo vessels and vessels of professional fishermen (Art. 44 para. 1 lit. d BSV). Sailboards (i.e. windsurfers) and kite sailboards (i.e. kitesurfers), on the other hand, do not have priority in principle; they must give way to all other vessels when meeting and overtaking (Art. 44 para. 2 lit. f BSV).

---

The priority rules on navigable rivers and canals are derived from Art. 63 BSV.

c. Liability and insurance obligation

---

If there is a collision of vessels within the meaning of inland navigation law on a Swiss inland or border waterway, the liability of the skipper is governed by the Convention for the Unification of Certain Rules Relating to Collisions between Inland Navigation Vessels of 15 March 1960 (SR 0.747.205), which was ratified by Switzerland on 26 April 1972 and entered into force on 25 July 1972 (for the whole, see Flückiger, p. 122 f.). The Convention also applies to water sports equipment as small craft (cf. Art. 1 No. 4 lit. a of the Convention) and provides for fault-based liability on the part of the master of the vessel or water sports operator in the event of collisions (cf. Art. 2 No. 1 of the Convention). For events that are not ship collisions, liability is governed by the Code of Obligations (BBl 1974 I 1554). The Strasbourg Convention on Limitation of Liability in Inland Navigation of 4 November 1988 (CLNI; SR 0.747.206) was ratified by Switzerland, but the application of the Convention to recreational and pleasure navigation was excluded by Switzerland (cf. the reservation according to Art. 2 of the Federal Decree of 22 March 1996 [AS 1998 998]).

---

With the enactment of the Federal Law on Inland Navigation, a general insurance obligation was introduced, which had previously been regularly provided for in cantonal navigation ordinances (BBl 1974 I 1559). Thus, according to Art. 31 para. 1 BSG, a vessel may not be put into circulation before a certificate of liability insurance has been deposited (cf. also Art. 153 BSV). Within the scope of the compulsory liability insurance, the injured party has - as in road traffic (cf. Art. 65 para. 1 SVG) - a direct right of claim against the insurer (Art. 33 para. 1 BSG). However, vessels without engine propulsion, rafts under 2.5 m in length, and sailing vessels without engine and with a sail area of no more than 15 m2 are exempted from compulsory insurance at the ordinance level (cf. art. 153 para. 2 BSV; on the insurance obligation for kite surfers expressly enshrined in the ordinance, see Schneuwly, p. 545 f.). Certain claims can also be exempted from insurance - as in road traffic law (cf. Art. 63 para. 3 SVG) (cf. Art. 32BSG).

d. Water sports specific regulations

---

In addition to the provisions tailored primarily to navigation "in the narrower sense," federal inland navigation law also contains regulations specific to water sports, i.e., regulations that apply explicitly to one or more types of water sports. In particular, Art. 25 para. 2 of the Federal Law on Inland Navigation provides that the Federal Council may issue regulations on water skiing and similar activities, as well as for the protection of other users of the waters. The ordinances issued on the basis of this provision refer not only to water skiing but also to wakesurfing, windsurfing (sailing with sailboards) and kitesurfing (sailing with kite sailboards; cf. in particular Art. 37 para. 3, Art. 54 and Art. 69 BSV). Occasionally, provisions on bathing (cf. Art. 77 BSV), (sports) diving (cf. Art. 32 and Art. 77 BSV) and fishing (cf. Art. 76 BSV) can also be found at the ordinance level.

---

According to Art. 16 para. 2 lit. b and d FSIO, vessels shorter than 2.5m (lit. b), as well as paddleboats, racing rowing boats, sailboards and dragon sailboards (lit. d) are exempt from the marking obligation as defined in Art. 15 para. 1 FSIO. However, even such vessels exempted from the marking requirement must bear the name and address of the owner or keeper in a clearly visible manner as of 1 January 2020 (Art. 16 para. 3 FSIO).

---

Special reference should be made at this point to Art. 134 et seq. BSV on the life-saving equipment and means of rescue to be carried on board. In principle, on ships and thus also on a large number of water sports equipment, an individual life-saving device or a place in a collective life-saving device must be available for each person on board (Art. 134 Para. 4 BSV). Lifejackets with collars and lifebuoys are considered to be individual life-saving devices (Art. 134 Para. 1 Sentence 2 BSV). However, rowing boats (cf. art. 2 let. a no. 11 BSV) and water sports equipment suitable for competition are exempt from this obligation, provided they operate on lakes in the inner (0 to 150 m) and outer (150 to 300 m) shore zone (cf. art. 53 par. 1 BSV) (art. 134 par. 4 bisBSV). Water sports equipment suitable for competition are dragon sailing and sailing boards, racing rowing boats, kayaks suitable for competition, canoes, rafts, boards for stand-up paddling and the like, as well as sailing vessels that do not have sufficient storage space that can be closed in a splash-proof or weather-proof manner to carry rescue equipment as defined in Art. 134 BSV (Art. 134a para. 1 BSV).

---

The implementing regulations issued by the Federal Council regarding the practice of water sports are not of an exhaustive nature (Federal Supreme Court ruling of 10 August 2005, 2P.191/2004, E. 2.3). Rather, the cantons have decisive regulatory competences with regard to the practice of water sports on public waters (see in this regard below para. 27 et seq.).

C. Cantonal inland navigation law

1. Enforcement rules

---

Based on Art. 58 para. 1 of the Federal Law on Inland Navigation and Art. 165 of the Federal Ordinance on Inland Navigation (BSV), according to which the cantons enforce the law on inland navigation, the international agreements and the implementing regulations, insofar as this is not transferred to the Confederation, the cantons have mostly issued enforcement regulations on the federal law on inland navigation in cantonal introductory laws or cantonal navigation (ordinances).

2. Water sports regulations

---

The use of public waters by navigation is in no way conclusively regulated by the federal law on inland navigation. In particular, in the area of individual, non-commercial navigation (including small-scale navigation), which also includes the practice of water sports, the cantons have significant legislative powers that go beyond mere enforcement, due to the conception of the Federal Law on Inland Navigation as a mere framework law (cf. BBl 1974 I 1552), numerous explicit allocations of powers in the Federal Law on Inland Navigation and, not least, due to the principle of cantonal sovereignty over waters. Against this background, cantonal navigation law contains not only enforcement but also - especially for small-scale navigation and thus water sports - a large number of independent regulations.

---

Provisions concerning water sports are enacted by the cantons primarily on the basis of Art. 3 para. 2 BSG and Art. 25 para. 3 BSG. According to Art. 3 para. 2 BSG, the cantons may prohibit or restrict navigation on their waters or limit the number of vessels permitted on a water body, insofar as the public interest or the protection of important legal interests so require. Thus, the regulation of small-scale navigation is reserved to the cantons under federal law (cf. Biaggini, Comm. BV, Art. 87 N 12; SG Komm. BV-Lendi/Uhlmann, Art. 87 N 38). According to Art. 25 para. 3 BSG, the cantons are then entitled to enact special local regulations to ensure the safety of navigation or environmental protection. This allocation of powers is also of great relevance to water sports, especially since restrictions on water sports are usually imposed for reasons of navigation police or environmental protection.

---

Consequently, both the legislation on small craft and the enactment of regulations on waterway police and environmental protection law - subject to the reservation of federal police regulations - are fundamentally the responsibility of the cantons. As a result, the provisions governing the practice of water sports on public waters are primarily to be found in cantonal law. The cantonal legislator regularly delegates to the cantonal ordinance maker the enactment of regulations on navigation police and other restrictions on navigation (cf. e.g. § 4 of the Introductory Law of the Canton of Zurich to the Federal Law on Inland Navigation of September 2, 1979 [LS 747.1]). For example, the Navigation Ordinance of the Canton of Zurich of May 7, 1980 (LS 747.11) regulates the permissibility of kite surfing on Lake Zurich (§ 27a) and prohibits the use of water skis, kite sail boards and similar devices on the other standing and flowing waters of the Canton of Zurich (§ 29).

D. Intercantonal and international agreements

1. General

---

Public waters that are suitable for water sports are usually of a certain size and therefore regularly cross cantonal and/or national borders. Many waters that are of interest for water sports are therefore intercantonal or international waters.

---

In general, in the case of intercantonal water resources, the riparian cantons must reach agreement on the aspects within their regulatory competence by means of intercantonal agreements and arrangements (SG Comm. BV-Marti, Art. 76 N 30). Only if no agreement is reached in this way does the competence pass to the Confederation (Art. 76 para. 5 sentence 2 BV).

---

The federal government decides on rights to international water resources and the associated tasks - in accordance with its competence in foreign policy (cf. art. 54 BV) - with the involvement of the cantons concerned (art. 76 para. 5 sentence 1 BV). In particular, the conclusion of the necessary state treaties is carried out by the Confederation in the case of international waters (SG Comm. BV-Marti, Art. 76 N 29; Vogel/Hartmann/Schib, para. 3).

2. Water sports on intercantonal waters

---

The Federal Law on Inland Navigation and, accordingly, the Federal implementing regulations govern navigation on Swiss waters (Art. 1 para. 1 BSG; Art. 1 para. 1 BSV). Consequently, when practicing water sports on intercantonal waters, the relevant regulations of federal inland navigation law must be observed.

---

The cantons bordering intercantonal waters must reach agreement on the enforcement provisions of federal inland navigation law and other provisions of navigation law by way of concordat; only if they cannot reach agreement does the Federal Council decide (Art. 4 para. 1 BSG; cf. also Art. 76 para. 5 sentence 2 BV). Provisions on the practice of water sports on intercantonal waters can therefore also be found in the intercantonal agreements on navigation: for example, Art. 9 of the Intercantonal Agreement on Navigation on Lake Zurich and Lake Walen of 4 October 1979 between the cantons of Zurich, Schwyz, Glarus and St. Gallen regulates the use of sailing boards.

---

In some cases, intercantonal law also expressly refers to cantonal law - as in Art. 25 para. 3 BSG - for provisions relating to navigation police and environmental protection. Thus, according to Art. 14 of the Intercantonal Agreement on Navigation on Lake Zurich and Lake Walen, the riparian cantons may additionally enact special local regulations to ensure navigation safety and environmental protection.

---

If the intercantonal agreement contains neither provisions on water sports nor a reference to the law of the riparian cantons, it cannot be assumed per se that there is no agreement between the riparian cantons (cf. Art. 4 para. 1 BSG). Rather, in the absence of regulations, the riparian cantons are entitled, within the framework of federal and intercantonal law, to enact regulations on the practice of water sports for the parts of the intercantonal waters under their sovereignty. An example of this is the Intercantonal Agreement on Navigation on Lake Lucerne of 20 July 1997 between the cantons of Lucerne, Uri, Schwyz, Obwalden and Nidwalden. In the absence of provisions on the practice of water sports on Lake Lucerne in this agreement, the shore canton of Lucerne has regulated wind and kite surfing on the parts of Lake Lucerne under its sovereignty in cantonal law (cf. § 25 Ordinance on Navigation of the Canton of Lucerne of 18 February 2011 [SRL 787]). The Canton of Uri has also issued its own regulations on water sports (cf. Art. 10a f. Cantonal Enforcement Ordinance of the Canton of Uri on the Federal Law on Inland Navigation of November 11, 1981 [RB 50.2111] on kite sailing and water sports schools on the part of Lake Lucerne under its sovereignty).

---

In summary, the provisions relevant to the practice of water sports on intercantonal waters are more likely to be found in cantonal and less in intercantonal navigation law.

3. Water sports on international waters

---

Lake Constance, Lake Geneva, Lake Maggiore and Lake Lugano are Switzerland's four international lakes, which are of particular interest to many water sports enthusiasts due to their size. Due to their international character, navigation - and thus also the practice of water sports - is in principle regulated in international agreements which have been concluded by the Federal Council - after consultation of the riparian cantons - with the respective other riparian states (cf. Art. 4 para. 2 BSG) and which take precedence over conflicting Swiss navigation law (cf. Art. 1 para. 2 BSG).

---

The following is an overview of the relevant international law for the four international lakes in Switzerland. The regulations issued on the basis of the international agreements for navigation on the four boundary waters are all based on the European Code of Navigation for Inland Waterways (CEVNI for Code Européen des Voies de la Navigation Intérieure; Vogel/Hartmann/Schib, paras. 46, 51, 57).

---

However, it should be pointed out at this point that all the following agreements grant the contracting states the freedom to enact special regulations on the basis of local conditions or to protect the environment. When looking for regulations on water sports on international lakes, the national laws of the riparian states must always be consulted in addition to international law. It should also be noted at this point that, in addition to the treaties relating to specific waters, other international agreements such as the Convention for the Unification of Certain Rules Relating to the Collision of Inland Navigation Vessels (see para. 21 above) may apply depending on the circumstances.

a. Lake Constance

---

Two different state treaties have been concluded between the riparian states concerning navigation on Lake Constance: The Convention between Germany, Austria and Switzerland on Navigation on Lake Constance of June 1, 1973 (SR 0.747.223.11) regulates navigation on Lake Constance for the area of the Upper Lake including Lake Überlingen (Art. 1 No. 1 of the Convention). Navigation on the Lower Lake (and also the stretches of the Rhine between Constance and Schaffhausen), on the other hand, is governed by the Treaty between Switzerland and Germany on Navigation on the Lower Lake and the Rhine between Constance and Schaffhausen of June 1, 1973 (SR 0.747.224.31). However, the Convention and the State Treaty only contain basic regulations. The actual navigation regulations are derived from the Lake Constance Navigation Regulations of March 17, 1976 (BSO; SR 747.223.1). These were issued by the International Navigation Commission for Lake Constance, a joint body of the three riparian states (cf. Art. 19 Convention on Navigation on Lake Constance), and apply to navigation on both the Upper and the Lower Lake (cf. Art. 6 Treaty between Switzerland and Germany on Navigation on the Lower Lake).

---

According to Art. 16.02 para. 5 BSO, wind and kite surfing on Lake Constance is generally prohibited. The competent authority may, however, provide for exceptions to this general prohibition if this does not impair the safety and ease of traffic and hazards or disadvantages that may be caused by navigation are not to be expected (Art. 16.02 para. 5 in conjunction with para. 1 BSO). Consequently, the BSO is stricter than the BSV, which in principle allows wind and kite surfing on public waters (cf. Art. 54 para. 1 BSV). Since, according to federal court case law, international law generally takes precedence over national law in the event of a conflict (BGE 136 III 168 E. 3.3.2), it must also be assumed in this case that the stricter regulation of the BSO takes precedence over that of the BSV.

---

In addition, the BSO contains only a few regulations relevant to water sports (cf. in particular Art. 2.01 BSO concerning marking, Art. 6.15 BSO concerning water skiing and Art. 13.20 BSO concerning life-saving equipment). Therefore, the regulations of the riparian states or, in Switzerland, of the riparian cantons, which they can enact with regard to local conditions but in compliance with the principles of the international treaties, are of importance (cf. Art. 5 para. 5 Convention on Navigation on Lake Constance).

b. Lake Geneva

---

The regulations for navigation on Lake Geneva are essentially derived from the agreement between Switzerland and France concerning navigation on Lake Geneva of 7 December 1976 (SR0.747.221.1) and the associated regulations concerning navigation on Lake Geneva of 7 December 1976 (SR0.747.221.11). In contrast to the BSO, the navigation regulations for Lake Geneva contain, in addition to the duty of care (Art. 4) and the duty of rescue (Art. 11) relevant to water sports and the provisions on marking (Art. 18 f.), numerous provisions specific to water sports. For example, on the use of water skis, wakeboards, wakeskates or similar devices and barefoot water skiing (Art. 76), but also on the conduct of fishermen and divers (Art. 77 f.), windsurfing (Art. 78), bathing (Art. 78b) and finally on the use of dragon sailboards (Art. 78c). Against this background, there is little scope for cantonal regulations in the cantons bordering Lake Geneva.

c. Lake Maggiore and Lake Lugano

---

Navigation on Lake Maggiore and Lake Lugano is governed by the Agreement between Switzerland and Italy on Navigation on Lake Maggiore and Lake Lugano of 2 December 1992 (SR 0.747.225.1) and the International Regulations on Navigation on Lake Maggiore and Lake Lugano issued on the basis of this agreement. The agreement is closely based on the agreement with France on navigation on Lake Geneva (Vogel/Hartmann/Schib, para. 57) and the international regulations are largely in line with the federal inland navigation ordinance due to their orientation towards the European Inland Navigation Routes Ordinance.

II. Public use of public waters

A. Preliminary remarks

---

Public waters are available to the public for use, subject to proof otherwise. They are public property in public use (SG Komm. BV-Marti, Art. 76 N 27; Jaag/Rüssli, Rz. 3416, 3420). This classification of public waters is expressly provided for in numerous cantonal legal systems (cf. e.g. Art. 7 para. 1 Water Use Act of the Canton of Bern of 23 November 1997 [WNG/BE; BSG 752.41]; § 9 para. 1 Water Rights Act of the Canton of Schwyz of 11 September 1973 [KWRG/SZ; SRSZ 451.100]; § 35 para. 1 Law on Waters of the Canton of Zug of November 25, 1999 [GewG/ZG; BGS 731.1]), is presumed by federal law (cf. Art. 664 para. 3 CC) and is due to the natural condition of the waters (Häfelin/Müller/Uhlmann, marg. no. 2228; Jaag, p. 147; BK CC-Meier-Hayoz, Art. 664 N 178).

---

The cantons, as holders of watercourse sovereignty, must establish the necessary provisions on the public use of public waters (cf. Art. 664 para. 3 CC). In doing so, they generally distinguish between the three types of use developed in the doctrine of administrative law: simple (also ordinary or simple) public use, increased public use and special use (cf. e.g. Art. 7 ff. WNG/BE; § 9 ff. WRG/SZ; see also OFK ZGB-Kernen, Art. 664 N 14 ff; Rüegger, p. 16; Federal Supreme Court judgment of June 2, 2012, 2C_900/2011 E. 2.1 m.w.H.). The distinction between these types of use is based on the intensity and type of use (Jaag, p. 151) and has been largely substantiated in case law and doctrine.

---

The cantonal law on the public use of public waters regularly refers to the types of public use, but leaves the concretization to the bodies applying the law. Against this background, the general principles developed in administrative law doctrine and jurisprudence on the three types of public use are first presented in an overview and then related to the practice of water sports on public waters.

B. Water sports as simple public use

1. General

---

Ordinary public use is the use of a public object for its intended purpose and in a manner compatible with the public interest, which is open to anyone, i.e. an indeterminate number of users, free of charge and without the need for a permit (BGE 135 I 302 E. 3.2). The admissibility of the simple public use of public waters is presumed by federal law (cf. Art. 664 para. 3 CC) and is provided for in many cantonal legal systems (see above para. 47). Public waters may therefore be used by anyone - even in the absence of a legal principle permitting public use - in a manner that is appropriate and compatible with the common good (BK ZGB-Meier-Hayoz, Art. 664 N 36). The intended use is assessed according to the natural condition of the body of water, i.e. its size, depth, location, etc. The public use of the body of water is not permitted. The use of public waters is compatible with the community if it can be exercised equally by all interested parties without unduly hindering others in the corresponding use (e.g. BGE 135 I 302 E. 3.2). Community compatibility depends on the concrete local conditions, is often to be assessed in individual cases and may be lacking for spatial and/or temporal reasons (Flückiger, p. 5 f.; Jaag, p. 152). However, it is not a prerequisite for the public compatibility of a use that all possible users can use the public water at the same time and without disturbance; rather, "usual" conditions are decisive (Häfelin/Müller/Uhlmann, marg. no. 2257; cf. also BGE 88 I 18 E. 8). A preventive control of the simple public use through the introduction of a permit requirement is not necessary in the case of a given public compatibility of use and is therefore inadmissible (Häfelin/Müller/Uhlmann, margin no. 2260; cf. also BGE 135 I 302 E. 4.1). Also, in principle, no fees may be charged for simple public use (Flückiger, p. 3 m.w.H.; Häfelin/Müller/Uhlmann, margin no. 2261).

---

In doctrine and practice, swimming and bathing, but also the ordinary, non-commercial use of public waters with ships, boats or surfboards are unanimously assigned to the simple public use of public waters (Federal Supreme Court ruling of August 10, 2005, 2P.191/2004, E. 2.4.1; BGE 100 Ia 131 E. 5; BGE 88 I 18 E. 6; cf. also judgment of the VGer/BE of February 23, 1998, VGE20228, E. 5; Flückiger, p. 59 m.w.H.; Häfelin/Müller/Uhlmann, para. 2269; Jaag/Rüssli, marg. 3420; Karlen, p. 362; Märki/Wyss, marg. 8; BK ZGB-Meier-Hayoz, Art. 664 N 178; Rentsch, p. 358; BSK ZGB II-Rey/Strebel, Art. 664 N 58).

2. Principle of freedom of navigation and water sports.

---

The assessment of ordinary navigation as simply public use, which has always been made in doctrine and case law, was enshrined in law with the enactment of the Inland Navigation Act. Thus, according to Art. 2 para. 1 BSG, navigation on public waters is in principle free and, according to Art. 62 para. 2BSG, free of charge. This so-called principle of freedom of navigation thus guarantees the fundamentally free use of public waters by vessels (cf. Art. 2 para. 1 BSV) within the framework of simple public use and applies to both standing and flowing public waters, irrespective of their size (Flückiger, p. 74, 101; Vogel/Hartmann/Schib, para. 11; on the public nature of waters see above para. 6f.).

---

Since the practice of water sports is considered (small) navigation (cf. Art. 2 para. 1 BSV), this is also available to everyone free of charge and without a permit, as long as it is carried out in a manner that is compatible with the community and with respect for the natural condition of the water (cf. Flückiger, p. 59 m.h.). In particular, the individual and non-commercial practice of water sports - like ordinary navigation - is likely to be in a manner that is always compatible with the community and regularly also in accordance with the intended purpose.

---

Freedom of navigation and, to that extent, freedom of water sports, applies not only to inland waters but also to Lake Constance (cf. Art. 2 para. 1 Convention on Navigation on Lake Constance; Art. 2 Treaty between Switzerland and Germany on Navigation on Lake Untersee and the Rhine between Constance and Schaffhausen), Lake Maggiore and Lake Lugano (cf. Art. 1 para. 1 Convention on Navigation on Lake Maggiore and Lake Lugano). For Lake Geneva, the fundamental freedom of navigation results from Art. 7 Nos. 4 and 5 of the Agreement concerning Navigation on Lake Geneva, according to which measures restricting or prohibiting navigation must be lifted as soon as possible and permanent restrictions on navigation must be decided jointly by the Contracting States after consultation with the Joint Commission.

---

As a result, the individual and non-commercial practice of water sports in particular - just like ordinary navigation - is a use of water that can be attributed to the simple public use, which is permitted to everyone free of charge and without a permit. This applies to inland waters as well as to border waters.

3. Restriction of simple public use

a. In general

---

According to prevailing doctrine, the classification of public waters as public property in public use and the resulting fundamental admissibility of simple public use does not establish an unrestricted, enforceable right of use for the individual (on this and the following BK ZGB-Meier-Hayoz, Art. 664 N 165 f. m.w.H.; Rentsch, p. 358 f.; cf. also Flückiger, p. 29 m.w.H.; Häfelin/Müller/Uhlmann, marginal no. 2259). Rather, the simple public use of public waters may be restricted under certain conditions. According to the Federal Supreme Court, watercourse neighbors also have no legal claim to a certain use of the public watercourse at the place where their property is abutted (on this and on the following BGE 105 Ia 219 E. 2). According to the Federal Supreme Court, the watercourse impact merely constitutes an actual condition favorable to the owner, which can be changed in the public interest and does not provide the watercourse user with a right to use the watercourse under the protection of the property guarantee.

---

In the case of restrictions on public use, the authorities are initially bound by the constitution (on this and the following, Flückiger, p. 32). Restrictions must be in the public interest, i.e., for example, to protect public order, peace, safety, morality, health or for reasons of environmental protection or nature conservation. Furthermore, they must be proportionate, i.e. suitable, necessary and expedient (Art. 5 para. 2 BV), legally equal (Art. 8 para. 1 BV) and not arbitrary (Art. 9 para. 1 BV) (on the whole BGE 88 I 18E. 7; BK ZGB-Meier-Hayoz, Art. 664 N 28 f.; Vogel/Hartmann/Schib, Rz. 18, 20 m.H.). In the case of restrictions, limits may also arise for the cantons from individual federal decrees (see also para. 63 ff. below).

---

Measures restricting public use can be taken in a general-abstract manner (e.g. by issuing regulations on use), by means of general decrees or by way of decrees in individual cases (BK ZGB-Meier-Hayoz, Art. 664 N 171 f.). Furthermore, restrictions on public use may result from regalia or special rights of use granted to individuals, which, as exclusive rights of use (see rec. 79 ff. below), must be respected by the public exercising public use (BK ZGB-Meier-Hayoz, Art. 664 N 30).

b. Restriction of navigation and water sports

---

Ordinary navigation and water sports are considered to be simply public use, which is why restrictions in this regard must also be measured against the constitution in the first instance (see above para. 57). According to the case law of the Federal Supreme Court, fundamental rights, namely the right to personal freedom and the aspect of freedom of movement (Art. 10 para. 2 BV), are not affected by restrictions on water sports, at least as long as they are small-scale driving bans (BGE 108 Ia 59 E. 4a; see also Flückiger, p. 33 f.). In the aforementioned decision, the Federal Supreme Court also considered the use of public waters for sporting purposes to be no elementary manifestation of the development of personality, although today - some 40 years later - this would possibly be assessed differently. Ultimately, the assessment of the conformity with fundamental rights must be made in each individual case depending on the intensity of the measure (BGE 108 Ia 59 E. 4a).

---

The fact that freedom of navigation is not absolute and that restrictions are permissible under certain conditions also follows from Art. 2 para. 1 FSIO, according to which navigation on public waters is free "within the framework of this Act". The freedom of inland navigation and thus also the freedom to engage in individual and non-commercial water sports on public waters thus applies expressly only subject to restrictive provisions in federal inland navigation law.

---

In addition, Art. 3 para. 2 and Art. 25 para. 3 BSG legally authorize the cantons to prohibit or restrict navigation and the practice of water sports on their waters insofar as the public interest, the protection of important legal interests, the safety of navigation or environmental protection so require. Consequently, the freedom of inland navigation is not only subject to restrictive federal but also cantonal regulations.

---

Finally, the international conventions on navigation on boundary waters also expressly make the principle of freedom of navigation subject to restrictive provisions in the implementing law (cf. Art. 2 para. 1 Convention on Navigation on Lake Constance; Art. 1 para. 1 Convention on Navigation on Lake Maggiore and Lake Lugano).

c. Federal restrictions on water sports

---

The Inland Navigation Act itself contains only a few concrete restrictions on navigation and water sports (Flückiger, p. 75 f.). Instead, the Federal Council is authorized at various points to enact restrictions.

---

Thus, according to Art. 25 para. 1 BSG, the Federal Council establishes rules for the navigation and immobilization of ships and issues regulations on signaling, signs and lights, the carriage of dangerous goods and the safety of navigation. Based on this, the Federal Council has issued the general navigation police regulations in accordance with Art. 41 ff. BSV, which are adapted to the European Code of Navigation on Inland Waterways (CEVNI) (Vogel/Hartmann/Schib, para. 34), but do not specifically restrict or even completely prohibit any particular water sport.

---

Furthermore, according to Art. 25 para. 2 BSG, the Federal Council may issue regulations on water skiing and similar activities, as well as for the protection of other users of the waters (Art. 25 para. 2 BSG). In implementation of this provision, the Federal Council stipulated in Art. 54 para. 1 BSV that wakesurfing as well as water-skiing, sailboarding, kite-sailboarding, towed inflatable or similar devices are only permitted during daytime and clear visibility, but at the earliest from 08.00 hours and at the latest by 21.00 hours. According to Art. 54 para. 2 BSV, wakesurfing and water skiing or similar devices are prohibited in shore zones outside officially authorized launching lanes and marked water areas exclusively used for this purpose. Art. 54 par. 3-5 BSV contain further regulations for water skiing. In contrast, the general kitesurfing ban issued in 2001 (cf. Art. 54 para. 2bis aBSV) was repealed as of February 15, 2016 (AS 2014 261; see also Schneuwly, p. 540 f.).

---

Finally, restrictions on water sports can be justified by environmental protection law. For example, Art. 11 BSV prohibits the generation of more immissions than is unavoidable in the proper condition and operation of the vessel, and Art. 53 BSV regulates sailing in the shore zone in the interest of nature conservation and environmental protection (cf. Flückiger, p. 104 f.). Restrictive provisions may then be contained in federal decrees on environmental protection. For example, Art. 21 of the Federal Law on the Protection of Nature and Cultural Heritage of July 1, 1966 (SR 451) regulates the protection of riparian vegetation and prohibits activities in the riparian zone that conflict with this protection. According to Art. 5 para. 1 lit. g of the Ordinance on the Waterbird and Migratory Bird Reserves of International and National Importance of 21 January 1991 (SR 922.32), the use of hang glider boards or similar devices is prohibited in the waterbird and migratory bird reserves in accordance with Annex 1 of the Ordinance.

d. Cantonal restrictions on water sports

---

As mentioned above, Art. 3 Para. 2 and Art. 25 Para. 3 BSG grant the cantons the authority to restrict or prohibit navigation and, in this respect, also the practice of water sports on the public waters of their territory if certain conditions are met. According to the Federal Supreme Court, the cantons are entitled to restrict the use of public waters on their territory for navigation purposes to a greater extent than federal law (Federal Supreme Court ruling of August 10, 2005, 2P.191/2004, E. 2.3). In this sense, the practice of individual water sports on certain waters is completely prohibited in cantonal law (cf. e.g. § 6 para. 1 of the Introductory Law of the Canton of Aargau to the Federal Law on Inland Navigation; § 4 Enforcement Ordinance of the Canton of Basel Stadt to the Federal Law on Inland Navigation of 26. August 2008 [SG 955.100]) or restricted more extensively than in federal law (cf. e.g. Ordinance on Wakeboarding and Other Comparable Water Sports on Lakes Zug and Aegeri of June 29, 2004 [BGS 753.6]; § 3 Enforcement Ordinance of the Canton of Basel City to the Federal Law on Inland Navigation). Restrictions may also result from cantonal decrees under environmental law (cf. § 3 Ordinance of the Canton of Schwyz for the Protection of the Areas of Sägel and Schutt and of Lake Lauerz of 16 December 1986 [SRSZ 722.211]).

---

At the same time, however, Art. 3 para. 2 BSG imposes restrictions on the cantons when it comes to restricting ordinary navigation (BGE 119 Ia 197 E. 3a). Restrictions must be justified by a public interest or necessary for the protection of important legal interests, navigation or the environment (Flückiger, p. 81 ff.). Consequently, the cantons cannot restrict navigation and water sports arbitrarily, but must take into account the principle of freedom of navigation and water sports. They have to weigh up the various public interests affected (on this and on the following BGE 119 Ia 197 E. 3c). An appropriate balance must be struck between the need, protected under federal law by Art. 2 para. 1 BSG, for the most unrestricted possible admission of navigation (and water sports) on public waters, on the one hand, and the conflicting interests of nature conservation and any other conflicting forms of public use or water use, on the other. In addition to the interests of nature conservation, the public interest in the unhindered practice of water sports for recreational and exercise purposes must also be included in the balancing of interests to be carried out within the framework of Art. 3 para. 2 BSG (BGE 119 Ia 197 E. 7c/cc). Normal impairments, which the navigation or practice of water sports usually entails even on a suitable body of water, cannot justify a prohibition on their own (BGE 119 Ia 197 E. 4). Rather, the canton must be able to base restrictions on special reasons, usually related to the nature and purpose of the waters (BGE 119 Ia 197 E. 4a). Moreover, it goes without saying that the cantons are also bound by the constitution when imposing restrictions on the freedom of navigation and, in the present context, in particular by the principle of equality of rights (Flückiger, p. 99; see above para. 57).

---

If a canton issues regulations on the use of its waters that do not comply with federal law, it violates the derogatory power of federal law (BGE 119 Ia 197 E. 3b). However, since the cantonal legislature has considerable leeway in weighing up the interests and it is regularly a matter of assessing the local conditions, the Federal Supreme Court imposes restraint on itself when assessing restrictions on navigation (BGE 119 Ia 197 E. 3c). However, a general prohibition of navigation that undermines the freedom of navigation would be inadmissible from the outset (BGE 119 Ia 197 E. 5).

C. Increased public use and special use

1. Increased public use

a. General

---

According to the general principles, increased public use exists if the use of a public object or a public body of water is either not in accordance with its intended use or is not compatible with the public (e.g. judgment of the Federal Supreme Court of 10 August 2005, 2P.191/2004, E. 2.4.1 m.w.H.; Rentsch, p. 359). In other words, the public water is used in a way that is different from its natural state, or it is used in a way that significantly impairs the use of the water by others entitled to public use. Whether this is the case depends on the specific local and temporal circumstances (on this and the following Häfelin/Müller/Uhlmann, para. 2278). Within the limits of the federal guarantee of public use (cf. in the present context esp. Art. 2 para. 1 BSG), it is in principle incumbent on the cantons to determine the boundary between simple and increased public use (BK ZGB-Meier-Hayoz, Art. 664 N 181). According to the principles developed in administrative law doctrine and practice, however, the limit of public use is usually only exceeded when the similar shared use by others can no longer be guaranteed, even within the framework of a general usage regulation. In contrast, increased public use must always be assumed if the particularly intensive use does not prevent general use, but does interfere with use to which other entitled parties are entitled as increased public use or as special use (Häfelin/Müller/Uhlmann, marginal no. 2283; Rentsch, p. 361). As an example, rowing competitions are to be mentioned here, which according to the Federal Court interfere with fishing in the Limmat River, which was authorized as a special use, and were therefore qualified as increased public use (BGE 88 I 18 E. 7).

---

The holding of nautical events such as sailing and rowing regattas, canoeing and swimming competitions on public waters is, however, in principle also assigned to the increased public use (ruling of the Federal Supreme Court of August 10, 2005, 2P.191/2004, E. 2.4.1; Flückiger, p. 61). The obligation to obtain a permit for their implementation is also expressly provided for in federal inland navigation law (Art. 27 BSG and Art. 72 BSV). Furthermore, in the case law, the anchoring of buoys and fins and (partly) also the stationing of boats was considered as increased public use (judgement of the BGer of August 10, 2005, 2P.191/2004, E. 2.4.1; judgement of the VGer/BE of January 22, 1996, VGE19532/19533, E. 4, in: BVR 1996 p. 528; cf. however BGE 95 I 243 E. 3, where the stationing of boats was judged as special use). According to the case law of the Federal Supreme Court, water sports per se are considered to be an increased public use if they are practiced with heavy motor boats and the corresponding wave generation (in this regard and in the following, judgment of the Federal Supreme Court of August 10, 2005, 2P.191/2004, E. 2.4.2). It does not depend on further circumstances such as the number of such boats on the water or the size of the water. Finally, the practice of water sports on a commercial basis or organized in clubs or club-like bodies is sometimes regarded as increased public use (cf. § 3 Ordinance on Wakeboarding and Other Comparable Water Sports on Lakes Zug and Aegeri).

---

Ultimately, the allocation of a water sport to simple or increased public use - in the absence of an explicit regulation - must be made on the basis of a case-by-case assessment, whereby the concrete local and temporal circumstances (size of the body of water, water level, other use of the body of water, time of year, etc.) as well as the type and extent of use (event, individual, commercial, motorization of the sports equipment, number of users, etc.) must be taken into account. The decision lies within the competence of the cantons (cf. Art. 2 para. 2 BSG).

b. Authorization requirement

---

Since the presumption of freedom of public use of public waters (cf. Art. 664 para. 3ZGB) is limited to simple public use and does not extend to increased public use (and special use; cf. para. 79 ff. below), the use of waters that qualifies as increased public use can be made dependent on the granting of a permit. The permit primarily serves the coordination and prioritization between different uses (BGE 135 I 302 E. 3.2; judgment of the Federal Supreme Court of 10 August 2004, 2P.191/2004, E. 4.4.1). Whether the obligation to obtain a permit must be explicitly provided for in a legal basis was denied in the older case law of the Federal Supreme Court (e.g. BGE 95 I 243 E. 3), but left open in BGE 135 I 302 E. 3.2, however, it was left open. The majority of the doctrine is in favor of the requirement of an at least relatively undefined legal norm for the obligation to obtain a permit in the case of increased public use (Häfelin/Müller/Uhlmann, margin no. 2286; BSK ZGB II-Rey/Strebel, Art. 664 N 51; a.A. BK ZGB-Meier-Hayoz, Art. 664 N 39, 199).

---

The obligation to obtain a permit from the canton in whose territory the water used is located is expressly provided for in Art. 2 para. 2 BSG. However, with the exception of nautical events (cf. Art. 27 BSG and Art. 72 BSV), federal inland navigation law does not specify the point at which navigation is considered to be increased public use, which is why Art. 2 para. 2 BSG merely confirms the cantonal regulatory competence resulting from the sovereignty of waters. The approval or non-approval of increased public use of water bodies is therefore not based on federal but on cantonal law (judgment of the VGer/SG of 14 March 1985, in: GVP 1985 No. 52, p. 117 f.).

---

When granting the permit, the competent cantonal authority has a certain scope for assessment. It has to decide according to dutiful discretion (BK ZGB-Meier-Hayoz, Art. 664 N 201 m.w.H.). In principle, however, there is no entitlement to the granting of permission as long as it is not a matter of increased public use for the exercise of civil rights. In this case, case law recognizes a conditional claim to the granting of a permit (cf. BGE 138 I 274 E. 2.2.2; BGE 135 I 302 E. 3.2; BGE 132 I 97 E. 2.2). In the case of the ordinary practice of water sports, however, the Federal Supreme Court has so far considered the scope of protection of personal freedom (Art. 10 para. 2 BV) to be fundamentally unaffected (BGE 108 Ia 59 E. 4a; see also para. 59 above). About 40 years later, however, this assessment could also turn out differently. A conditional claim to increased public use could then exist in the case of a commercial practice of a water sport, especially since such a practice is covered by the scope of protection of economic freedom (Art. 27 BV).

---

But even outside the exercise of fundamental rights, the granting of a permit is not at the free discretion of the competent authority. In principle, a permit may only be refused if this is justified by general state interests, in particular for reasons of public order, safety, health, etc. (bge 77 i 279 e. 2). (BGE 77 I 279 E. 2). The principle of proportionality and the principle of equality of rights must also be taken into account (BGE 97 I 893 E. 6). The competent authority has to weigh up the interest of the general public in a use in accordance with the intended purpose and the interests of the applicant in the increased public use, which may be protected by fundamental rights. With the permit for increased public use, the permit holder is permitted a certain use, but - in contrast to the concession - as a rule no vested rights are granted (Häfelin/Müller/Uhlmann, margin no. 2287). Consequently, the grant of use can be revoked at any time if the conditions for the license cease to apply (Flückiger, p. 18).

c. User fee

---

For the granting of increased public use, the public authority can demand a fee in the form of a one-time or recurring user fee (Häfelin/Müller/Uhlmann, margin no. 2289). Due to the principle of legality under the law of levies, a formal legal basis is required for their levying - as is the case with all monetary benefits under public law (on this and the following, e.g., judgments of the Federal Supreme Court of October 12, 2018, 2C_699/2017 E. 8.1, of June 7, 2012, 2C_192/2012, E. 2.1; Flückiger, p. 15; Jaag, p. 161). This must determine the object of the levy, the group of taxpayers and the bases of assessment (Art. 127 para. 1 BV).

---

The extent to which the requirements for the determination of the assessment bases can be relaxed is determined in principle by the applicability of the cost recovery and equivalence principle. User fees for increased public use of public waters are, however, regularly cost-independent causal charges and, to that extent, not subject to the cost recovery principle (BGE 143 II 283 E. 3.7.2; Federal Supreme Court ruling of 12.10.2018, 2C_699/2017 E. 8.1). Also, the equivalence principle is unlikely to ever allow for an effective limitation of the amount of fees in the case of the authorization of a water sport, especially since the use for sport purposes has no commercial value and it cannot be compared to similar services provided by private parties (cf. Häfelin/Müller/Uhlmann, para. 2809). Accordingly, the principle of legality cannot be relaxed in the case of user charges for increased public use by water sports with regard to the principles mentioned.

2. Special use

a. General

---

Special use exists when the use of the public water is no longer in accordance with its intended use and other entitled persons are not only significantly restricted in their use, but are completely excluded from it (instead of many Häfelin/Müller/Uhlmann, para. 2308 ff.). In contrast to increased public use, which is regularly of a temporary nature, special use is a particularly intensive use of a public object that is intended to be permanent (Jaag, p. 156; on the distinction between special use and increased public use, see in particular the judgment of the VGer/BE of June 23, 1986, in: BVR 1988 p. 74 ff.). The transition from increased public use to special use is often fluid; it is left to the cantons to regulate the demarcation of the two types of use (BK ZGB-Meier-Hayoz, Art. 664 N 189).

---

An indication of the special use of a public water body is, in particular, the use of structural arrangements (Federal Supreme Court judgment of 2 June 2012, 2C_900/2011, E. 2.2; Flückiger, p. 67; Rüegger, p. 20 with further references). Under certain circumstances, a building permit procedure is also required for the erection of such buildings and facilities (cf. BGE 114 Ib 81 E. 3).

---

In connection with water sports, a special use is, for example, the use of waters by boathouses, jetties and rafts (Comm. KV/ZH-Rüssli, Art. 105 N 8). The use of the lake for the installation of a slalom course and a ski jump also qualifies as special use (BGE 114 Ib 81 E. 1a). The permanent stationing of boats in the harbor basin (cf. BGE 95 I 243 E. 3) and the construction of stationing facilities for ships also constitute special use (cf. for the Canton of Zurich § 3 Ordinance on the Stationing of Ships of October 14, 1992 [Stationing Ordinance; LS 747.4]). Apart from structural facilities, however, special use is to be assumed in the case of public waters above all in the case of water management uses, but not in the case of use for sporting purposes.

b. Concession obligation

---

The right to special use is granted by a special use concession (BSK ZGB II-Rey/Strebel, Art 664 N 53). This provides the beneficiary with a new, well-acquired right subject to the property guarantee, which has an increased legal validity against subsequent changes in the law and can only be withdrawn against compensation (BGE 145 II 140 E. 4.2; Häfelin/Müller/Uhlmann, para. 2319 and 2721; BK ZGB-Meier-Hayoz, Art. 664 N 192; BSK ZGB II-Rey/Strebel, Art. 664 N 53). This increased protection serves in particular to protect the regularly considerable investments in reliance on the permanence of the use, which otherwise would not be made by private persons (BGE 145 II 140 E. 4.3; Flückiger, p. 22). Nevertheless, a special use concession must be limited in time, otherwise the community would divest itself of its water sovereignty by granting the concession, which the Federal Supreme Court considers unconstitutional (BGE 145 II 140 E. 6.4; BGE 127 II 97 E. 6). The investment protection resulting from the concession justifies the maintenance of the special use only until the amortization of the investments, but for a maximum period of 80 years (BGE 145 II 140 E. 6.4). In principle, there is no entitlement to the granting of a special use concession (Häfelin/Müller/Uhlmann, margin no. 2722 and 2725).

---

A special category of acquired rights are the so-called marital rights to public waters (BGE 145 II 140 E. 5.1). Such rights are, for example, fishing rights based on historical titles or existing since time immemorial (Federal Supreme Court ruling of October 12, 2018, 2C_699/2017, E. 5.1). Consequently, these do not come into existence through the granting of a concession and, in contrast to the special use rights, are in principle free of charge, but enjoy the same enhanced protection as the well-acquired rights provided by a concession (cf. BGE 145 II 140 E. 6.3 and 6.5; see also BK ZGB-Meier-Hayoz, Art. 664 N 196 f.).

c. Concession fee

---

For granting the (concession) right to special use of a public water body, the canton may levy a one-off or recurring concession fee on the basis of Art. 76 para. 4 sentence 2 BV (Federal Supreme Court ruling of 2 June 2012, 2C_900/2011, E. 2.3). This is a causal charge which, like the user fee for increased public use, requires a legal basis (BGE 95 I 243 E. 4a). The law has to determine the fee tariff in principle. The decision on the amount of the concession fee may not be made on a case-by-case basis (BGE 95 I 243 E. 4b).