New flood safety standards and legal considerations

How it all started. Lulea (Sweden), 2015, midsummer. An email from Matthijs Kok, the now All-Risk research program coordinator during a consortium meeting of a European research project (STARFLOOD). Whether we wanted to look into the upcoming changes to the Dutch flood protection legislation (Waterwet). Our joint reaction followed. The broad outlines of this reaction became visible into the changes of the law. After that, the new safety standards came into effect in 2017, resulting in a multitude of questions and uncertainties for practice. That we would try to contribute to the implementation of this standard, seemed very logical to us! This storyline brings forth some of the emerging questions, along with the building blocks that the law offers to implement the new safety standards, address the legal responsibilities, and allow innovations in the field of water safety.

The legal responsibility of Water Authorities might increase because the possible exceptions are now limited in the Environment and Planning Act. In the event of any future dike breaches, responsible Water Authorities need to prove that they comply with the new risk standards or that they can appeal to one of the statutory grounds for exception. Otherwise, they might be held liable for any damage as a result of the dike breach (ex art. 6:174 Dutch Civil Code).

In case of a flood, the Disaster Compensation Act (Wet tegemoetkoming schade bij rampen) could help by setting up a regulation to partially compensate for damage caused by a specific disaster. This can only be done when insurance coverage or other compensations are not possible. Flood damage falls under the scope of this Act, since it designates freshwater floods as disasters and insuring flood damage is not yet possible in general. The Act determines who is to be compensated (the circle of victims) and what is compensated (which damage). Victims will in principle only be partially compensated. For each disaster a separate regulation is drafted for the details on the possible compensation. Even partial compensation will not be possible without such specific regulation for the disaster in place, which happened . 

The Environmental and Planning Act also acknowledges the need to balance flood safety with other societal needs. This integrated flood risk management perspective often requires innovative and pilot solutions. Some of these projects are also studied in the All-Risk program such as the  Double dike  and the  Wide Green dike  (see photos below). Current law does not provide a clear answer to decisive questions that exist in practice, but usually this does not hinder the realisation of such an innovation.

Questions that arise with such projects are, for instance, which authority is responsible, not only for the construction, but also for management, maintenance and any liability (Double dike). Integration with other jurisdictions, such as nature conservation legislation, also plays a role (Wide Green dike).

Despite our initial enthusiasm, what we see is that often – but unnecessary – lawyers are viewed with fear. The law is seen as creating obstacles, while much more appears to be possible upon closer examination, as we saw in the Double Dike project for questions with regard to responsibilities of different governmental parties and the Wide Green Dike, where the law proved to be more flexible than was expected. This will not be different under the Environment and Planning Act. We hope to continue to be involved in many innovations and thereby highlight the possibilities and preconditions that the law offers and thus help Water Authorities to continue to innovate in the field of water safety.

In our field, and especially in the field of innovative water projects, it appears that the questions from practice cannot be figured out in advance. We depend on practical questions for our work and the development of our legal area. Within All-Risk we have already been able to contribute in this way to various projects (see some of the publications below) and we hope that this way of cooperation may lead to many good results.

This storyline is based on the results of the following open access publications:

• W.J. van Doorn-Hoekveld, H.K. Gilissen, F.A.G. Groothuijse & J. Kevelam, ‘ Kroniek aansprakelijkheid en schadevergoeding in het waterbeheer’ , Overheid en Aansprakelijkheid 2020/5, p. 11-25.
• W.J. van Doorn-Hoekveld, H.K. Gilissen, F.A.G. Groothuijse, H.F.M.W. van Rijswick, ‘ Meer zoden aan de dijk met de resultaatgerichte normering van waterveiligheid in de Omgevingswet ’, Tijdschrift voor Bouwrecht 2019/165.
• W.J. van Doorn-Hoekveld, H.K. Gilissen, F.A.G. Groothuijse & H.F.M.W. van Rijswick (18-02-2019), ‘Advies: Beheer ‘tussengebied’ van het project dubbele dijk’, Utrecht Centre for Water, Oceans and Sustainability Law, Utrecht University.
• H.K. Gilissen, W.J. van Doorn-Hoekveld &. H.F.M.W. van Rijswick.  Handreiking   voorlanden (2019) en Juridische aandachtspunten (2018) .
• H.K. Gilissen, F.A.G. Groothuijse, W.J. van Doorn-Hoekveld &. H.F.M.W. van Rijswick, ‘ De nieuwe systematiek van veiligheidsnormering voor primaire waterkeringen: niet eenvoudiger, wel beter ’, Tijdschrift voor Bouwrecht 2017/142.