New flood safety standards and legal considerations
By looking into the questions of practice, we highlight building blocks that the law offers to improve water safety.
Members of the team of the University of Utrecht working in All-Risk into the legal aspects of the implementation of dike reinforcement projects. Left to right: Willemijn v. Doorn-Hoekveld, Monica Lanz, Herman Kasper Gilissen, Frank Groothuijse, and Marleen v. Rijswick.
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.
To what do the new standards apply?
A basic yet important question. The Water Act or Waterwet (in Dutch) provides safety standards for the primary flood defences. The majority of these defences are dikes that protect us against flooding from the North Sea and the major lakes and rivers.
In the Netherlands, water systems are managed by the State and 21 Regional Water Authorities. The State manages the North Sea, the Wadden Sea, the large lakes, the major rivers and canals, a single primary flood defence, and a number of large structures which close automatically when the sea levels are extremely high. The Regional Water Authorities manage the other waters and defences; this involves more than 95% of the about 3.000 km of dikes (on the map).
As a result, the new safety standards are the concern of both the State and Regional Water Authorities who must coordinate their efforts to better ensure and regularly assess the status of the water systems and primary flood defences.
Source: The map layers are from the National Georegister website and the details about the Water Authorities are from the Unie van Waterschappen website .
What do the new standards mean?
Simplified schematisation of a flood and its consequences from this blog explaining the risk-based approach that the new safety standards follow.
The European Floods Directive obliges Member States to assess the flood risk, to map the extent and assets and humans at risk and to reduce these risks by taking adequate and coordinated measures. The Directive does not prescribe specific safety standards, so the Netherlands (as any other Member state) is free to design its flood risk management standards.
Since 2017, the Dutch legislation established into the Annexes II and III of the Waterwet concrete safety standards for each dike segment based on the costs of dike strengthening and the potential consequences of a flood. The consequences differ quite a lot from place to place. Therefore, these safety standards take several factors into account, such as the maximum water depth of the inundated area, the rate the water rises, the ability to evacuate from a specific area and other relevant features of the area. Overall, the safety standards aim at: a) providing a basic level of protection for the population living behind the dike (probability of dying due to a flood of 1 in 100.000 years), b) limiting the total casualties, and c) preventing substantial economic damage. The more serious the consequences of a flood, the stricter the target probability of a dike failure (in years on the map).
Between 2017 and 2023, the responsible authorities are assessing all dike segments against the above standards. Where necessary, a dike reinforcement is planned with support of the Dutch Flood Protection Programme (HWBP in Dutch) so that by 2050 all dikes are up to the legal requirements. Meanwhile, the Water Safety portal gives an annual overview based on the available assessment results and the ongoing reinforcement projects per dike segment.
Source: The primary flood defences are from the National Georegister website and the related safety standards from the Water Safety portal .
How to meet the standards?
The dike sections must also be periodically inspected and assessed. The advisors of the responsible authorities must apply the most recent technical guidelines for the assessment of the dike failure probabilities. The technical guidelines include considerations such as the (expected) sea-level rise, river discharges and distribution over the river branches. In addition, every 12 years, the responsible authority must report the results of these periodic assessments to the minister. The effectiveness of the safety standards themselves should also be reviewed once every 12 years. Together these measures should result in sufficiently low flood risk.
On the picture, a visit to one of the dike sections in the Lauwersmeerdijken, near the Wadden Sea, that is now reinforced as a result of the implementation of the new safety standards.
What is next?
The new Omgevingswet or Environment and Planning Act - in which the Waterwet will be included helps to improve the landscape quality and the coordination between multiple environmental agencies. The new Act integrates into one framework scattered legislation on environmental and planning (see figure). Remarkable changes to the legislation include that the water safety standards will now be part of an environmental value, which is a benchmark for the state or quality of the environment. To illustrate these changes, we adapted the infographic of the Environment and Planning Act of the Ministry of Interior and Kingdom Relations. This Ministry cooperates closely with the Ministry of Infrastructure and Water Management in order to simplify and reduce the amount of rules in one act concerning different aspects of the environment.
Thereafter, the responsible authority will determine the sites in which the environmental value apply by order in council (in the Decree on the quality of the living environment). Such order will result in an obligation for the responsible authorities to reach within a certain period of time, and such obligation may not be exceeded once it has been reached.
Limited exceptions
The new act also includes a number of exceptions to achieve the legal obligation within the given period of time. In short, the exceptions come down to (i) changes in the standards or assessment system; (ii) disproportionately costly measures; (iii) changed circumstances outside the sphere of influence of the responsible authorities; and (iv) long lead times for measures. The latter, particularly implies that everything within the power of the responsible authority is done to meet the obligation, but the long lead time for taking the measures is causing a delay.
If the responsible authority can appeal to one of these exceptions, a postponement can be granted for the result of the obligation.
What if something goes wrong?
The liability (or legal responsibility)
Despite the ambitions of the basic protection level, flood defences never guarantee 100% protection. Luckily, there have been just a few flood disasters in the Netherlands. The last flood disaster occurred in 2003 and its known as the Wilnis dike breach. Although this peat dike was not part of a primary flood defence (outlined in black on the map), its collapse caused extensive damage for the Municipality of Wilnis, but who had to pay this damage? The answer to this question was not trivial so it was raised to and finally answered by the Supreme Court.
A sudden breach in August 2003 due to a hole of 60 meters in the dike flooded Wilnis and caused a lot of material damage Source: Ad.nl
The liability and the dike deficiency
The Supreme Court ruled that the dike was an opstal (a constructed immovable) of the Water Authority. Therefore, the strict liability of article 6:174 Dutch Civil Code was applicable. In such case, the question the Supreme Court needed to answer, applying article 6:174 Civil Code was: “whether the dike does or does not meet the standards which may be set for such a thing in the prevailing circumstances.”
Given that the drought caused the peat dike to collapse, the Water Authority argued that it was an unknown risk factor under the quality requirements back in 2003. The Supreme Court agreed to this because of factors, such as the state of science and technology and the financial scope of the Water Authority. Consequently, the dike was not defective and the Water Authority was not held liable.
Such argument will probably be less successful if a dike collapses due to drought in the future. Today, preventing dikes from drying out is a permanent part of the duties and management practices of water authorities.
Will the liability increase with the new standards?
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 .
What to do with innovative projects?
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).
Examples of two innovative dike reinforcement projects on the north Dutch coast. Left: A double dike pilot to explore possibilities for flood safety, clay mining, saltwater agriculture, nature, and recreation (photo by Rijkswaterstaat). Right: A wide green dike reinforced with locally extracted clay from the salt marshes along the coast to fight against the sea level rise (photo by Hunze en Aa's Regional Water Authority).
Remaining challenges
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.
Interested to read more?
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.
