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E1) Legal aspects of implementation

Start: 11/2017
End: 11/2022
Status: Active

Contact details

Monica Lanz

Utrecht University

Expected outcome

Guiding framework and legal advice regarding the new flood protection standards.

Members of the team (left to right): Herman Kasper Gilissen, Frank Groothuijse, Willemijn v. Doorn-Hoekveld and Marleen v. Rijswick. Monica Lanz (in the contact details)

Motivation and practical challenge

As a team, we are tackling questions that arise regarding the ‘Water Act’ (Waterwet) and the future ‘Environment and Planning Act’ (Omgevingswet). This legislation regulates the general use and management of water for the whole of the Netherlands and particularly the implementation of the new flood protection standards. Our interest lies within the way the government gives shape to its related public tasks, and the way laws and regulations protect the various interests of stakeholders. The legal challenges for the implementation often derive from the conflicting responsibilities between stakeholders. In addition to this, there is a need for a more integrated flood protection balancing between lawfulness, effectiveness, efficiency and acceptability. The research for All-Risk has, therefore, a special meaning for us since it involves the safety of all the people in the Netherlands that live behind dikes. We feel honoured to contribute to this purpose!

Research challenge

With this interest in mind, our research focuses on investigating which kind of legal obligation do the new flood protection standards imply for the Dutch water authorities. Moreover, which legal strategies can they apply to contribute to its implementation?

Components of our research approach. The top scheme was adapted from the Handreiking Voorlanden document. Source photos: left by https://eemsdollard2050.nl/ and right by Marleen van Rijswick.

Innovative components

We provide a decision tool to outline the legal strategies for water authorities to allow areas adjacent to the dikes or levees contribute to flood risk protection (top figure). The choice between an active, passive or no regulation strategy hugely depends on: (1) The effect of the foreshore on the water safety, and (2) the developments of these areas that may increase flood risk like natural physical processes and human activities. Depending on the circumstances, the choice can be implemented through public law (regulations) or civil law (contracts).

In the ‘Double dike’ case (Dubbele Dijk on the bottom-left photo) we advised the Regional Water Authority Noorderzijlvest on the distribution of legal responsibilities. This is an innovative case that will be part of a reinforcement on the north Dutch coast and is not only suitable for flood safety but also for nature, agriculture and recreation. Via interactive workshops (bottom-right photo), we further provide general advice along with other legal specialists of our program (Soppe Gundelach Advocaten and Element Advocaten) to implementation cases derived from the AllRisk projects (A to D).

Relevant for whom and where?

Our research is relevant for all users with legal responsibilities in flood protection (such as regional and national water authorities, provinces and the Ministry of Infrastructure and Water Management). They can use our findings to handle their duties lawfully.

Locations of the main implementation cases that we advise.

Progress and practical application

There is a difference between the obligation to make an effort to reach the flood protection standards, and the obligation to achieve the flood protection standards. Our study of the (new) legislation found that the Dutch water authorities must meet the flood protection standards. Only a few exceptions are provided by law. This obligation ensures the legal certainty (including clarity about the liability of the government).
Our guiding framework builds upon existing assessment methods and design principles for resilient, resource-efficient and legitimate flood risk governance. So far, the advice for the Project-transcending explorations (POV Voorlanden) resulted in a legal document (Juridisch Achtergronddocument Voorlanden) and a contribution to the Forelands guide (Handreiking Voorlanden). If you are interested in more legal aspects of the implementation of the new risk-based approach, we invite you to click on the related outputs below!

Status for day-to-day practice

The legal implications of the new risk approach will vary according to the circumstances in every individual case. In any case, we think it is essential to keep the balance between a lawful (of course!), efficient, effective and acceptable approach.

Next steps

We are curious on how the water authorities try to legally balance the various interests related to flood risk management not only to learn the ways to improve, but also to find out how best practices are created!

Last modified: 27/11/2020

Contributing researchers

Monica Lanz

Utrecht University

Willemijn van Doorn-Hoekveld

Utrecht University

Herman Kasper Gilissen

Utrecht University

Frank Groothuijse

Utrecht University

Prof. mr. Marleen van Rijswick

Utrecht University

Contributing partners

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.

Monica Lanz

Utrecht University

Willemijn van Doorn-Hoekveld

Utrecht University

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Project outputs

Advies om de juridische status van waterveiligheidsnormen onder de omgevingswet

Current law does not provide a clear answer to decisive questions that exist in practice, but usually this does not hinder the realization of such an innovation.

28/11/2020 by Willemijn van Doorn-Hoekveld et al.

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Bevat: Report

Handreiking Voorlanden en Juridische aandachtspunten

Using the coastal or riverine areas next to the flood defenses may bring benefits beyond flood risk reduction but also several legal questions. Some of these questions were addressed into a decision tool that is part of the foreland guideline.

05/04/2018 by Herman Kasper Gilissen et al.

View details View publication

Bevat: Report

Kroniek aansprakelijkheid en schadevergoeding in het waterbeheer

Damage claims and water management are therefore inextricably linked. Both liability and compensation as a result of an unlawful and a lawful act are discussed. We will also indicate for each sub-topic which changes will be brought about by the Environmental Act, the entry into force of which is still envisaged on 1 January 2021.

24/03/2020 by Willemijn van Doorn-Hoekveld et al.

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Bevat: Publication upon journal access

  • W.J. van Doorn-Hoekveld, H.K. Gilissen, F.A.G. Groothuijse, H.F.M.W. van Rijswick, ‘Je maintiendrai! Met de wettelijke normering van waterveiligheid in Nederland’, Tijdschrift voor Omgevingsrecht en Omgevingsbeleid 2019:2, p. 155-164.
  • H.K. Gilissen, W.J. van Doorn-Hoekveld, bijdrage aan ‘H.6 Juridische Borging’ (p. 82-89) bijdrage in: N. Roode, B. Maaskant & M. Boon, Voorlanden, Krimpen aan den IJssel: Efficiëntia 2019.

Advisory reports

  • 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.

Blogs

What is the legal transition about?

18/06/2020 by Monica Lanz

Following the blog about the risk-based approach, here we provide insights into the coming 'Omgevingswet' or Environment and Planning Act. This new framework makes...

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News

Your opinion matters to understand the governance of flood protection projects - Ongoing survey

28/09/2020 by Emma Avoyan

Are you currently involved you in or have knowledge about one the projects of Dutch Flood Protection Program (HWBP in Dutch)? Then, you can...

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Updates about the Dutch Environment and Planning Act

01/04/2020 by Monica Lanz

Developments happen fast in the field of Dutch Environment and Planning Law and have implications for the flood risk safety-norms, instruments and procedures. Here...

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