Infographic flexibility and room for consideration. Source: Ministerie van Binnenlandse Zaken en Koninkrijksrelaties (https://www.omgevingswetportaal.nl/)
Transition from Waterwet to Omgevingswet
Currently the legislation on environment and planning (e.g. soil, noise, environmental protection, nature conservation, spatial planning and water management) is scattered and spread over numerous laws such as the Waterwet (Water Act), Wet ruimtelijke ordening (Spatial planning act) and the Wet milieubeheer (Environmental Management Act). This scattering leaves space for disagreement and coordination issues, as well as reduced accessibility and usability for all users. The new Omgevingswet (Environment and Planning Act) seeks to modernise, harmonise, simplify these rules by integrating them in one legal framework (MvT Omgevingswet). This framework is expected to facilitate cross-sectoral collaboration and the contribution of various forms of knowledge which not only include engineering science but also local ideas on spatial planning.
Key instruments Omgevingswet
The new Omgevingswet comprises six key instruments that authorities can use to give shape to their policy. In addition to these key instruments (listed below), the legislative bill contains supporting instruments that are necessary to make decisions and implement them, such as procedural rules and regulations for supervision and enforcement (MvT Omgevingswet).
Infographic simplification of the environmental law. Source: Ministerie van Binnelandse Zaken en Koninkrijksrelaties (https://www.omgevingswetportaal.nl/).
- The environmental strategy (omgevingsvisie), a coherent strategic plan relating to the physical environment;
- The programme (programma), a package of draft plans and measures that serve to meet environmental values or targets in the physical environment and to continue to meet them;
- Decentralised regulations (decentrale regels), namely the municipality’s environmental plan, the regional water authority’s regulation and the province’s environmental regulation, in which the decentralised authority comprehensively lays down the general rules and obligations for obtaining permits;
- General government regulations (algemene rijksregels) for activities within the physical environment;
- The environmental permit (omgevingsvergunning), which an initiator can use to obtain permission for the entirety of the activities that it wishes to carry out, via an application to a single office;
- The project decision (projectbesluit), a generic arrangement for decision-making in relation to projects with a public interest according to the ‘faster and better’ approach.
Environmental value (Omgevingswaarde)
The ‘environmental value’ is an instrument to promulgate policy in the Omgevingswet:
- Authorities can use it as a benchmark for the state or quality of the physical environment or a part thereof (in this case the safety standard for a dike section, see Annex II Bkl).
- When authorities use this instrument, they must determine the nature of the obligation, the date on which the obligation must be fulfilled and the sites at which the value applies (art. 2.9 and 2.10 Omgevingswet).
- Regarding the nature of the obligation, there is a legal difference between an ´obligatory outcome´ and an ´obligation to act´. The ´obligatory outcome´ has a more mandatory character. That’s why article 2.0d of the Decree makes clear that by 1 January 2050 the safety standards must be met, it is an ´obligatory outcome´. This is one of the main legal differences compared to the Waterwet. In the current legislation the nature of the obligation is not prescribed by law.
The ‘Besluit kwaliteit leefomgeving’ (Decree on the quality of the living environment) contains a limited number of exceptions regarding the safety standards (art. 2.0e Bkl, and more information). This is another important difference with the current legislation. In the Waterwet, no exceptions are included, which means that it is a matter of policy to decide when it is justified to make an exception. This makes the obligation to meet the flood risk standards less strict and creates more legal uncertainty. In that sense the transition of the flood protection standards from the Waterwet (Water Act) to the Omgevingswet (Environment and Planning Act) is an improvement. It will be clear for the responsible authority what the exact obligations are, and provides more certainty for all stakeholders involved.
Interested to know more?
We invite you to read the related projects about the legal aspects of implementation of the safety standards as well as the opportunities that these legal transition may open up for cross-sectoral collaboration and knowledge arrangements.
Last modified: 27/12/2020