Netherlands: New Dutch Water Legislation

A new Act on water management in the Netherlands aims to provide integrated management and fulfil EU water objectives.

2008 is an important year for all parties involved in the process of water management in the Netherlands. The Dutch government has drafted a new integral Water Act (the "Act") which will be reviewed by the Dutch parliament by the end of this year. The Act will consolidate and replace the eight existing Acts on water and provide for new water protection measures as described below. The objectives of the Act are the prevention and mitigation of flooding and water shortages as well as the protection and improvement of the chemical and ecological quality of water systems; it will assist in the practical achievement of a number of EU water objectives in these areas. The focus of the Act is achieving an integrated system of water management by the authorities. There are three main areas in which the Act changes the existing legislation. These are as follows:

• One single permit will be required for all water activities impacting on the environment. At present, there are six separate permits. These are issued for:

• Current Dutch law allows individuals and companies to claim compensation for damage caused by policy decisions made by designated public authorities (such as municipalities, district water boards and provinces) that are responsible for water management in relation to individuals and companies. By way of example, compensation is recoverable where damage has been caused to electrical equipment in a basement by a decision of the authorities not to take action to alleviate a flood risk. As a result of reforms under the Act, compensation payments for such damage will be limited. Damage will only be compensatable if:

• It is "disproportionate"; i.e. the damage falls outside the so-called 'social risk' area (this concept reflects the principle that individuals have to take responsibility for ordinary every day risks); an important aspect in determining the 'social risk' is the extent to which the damage was expected (e.g. irreparable damage to the electricity equipment due to unforeseeable extraordinary circumstances would still be recoverable)

• It affects a limited group of interested parties - previously statutory regulations did not define who qualified as an interested party

• A claim is brought within 5 years of the damage arising (under a new statute of limitation to be implemented by the government), as opposed to 20 years as currently.

• The final amendment will be the introduction of 'recovery areas' for the temporary storage of mostly sea or river water. These areas are designated buffer areas used for storage of excess of water from flooding. The competent authority will have potentially draconian new powers to compulsorily acquire land or property rights over land where necessary to enforce designation of a recovery area.

The European Dimension

The EU's far-reaching Water Framework Directive¹ is a significant driver for new water policy in the Netherlands. The Directive was implemented by the Netherlands at the beginning of 2005 and it will increasingly become a very important tool for ensuring that Member States meet their respective environmental objectives, in particular, ensuring that all bodies of (surface) water reach a certain standard of ecological potential by 2015. The measures that each Member State must take in order to reach the target of 2015 will be made public in 2009. The Act will help to achieve these objectives in the Netherlands along with other water policy imperatives including the EU Flood Risk Directive² and other proposals being considered including policies on water scarcity and droughts. The creation of a more integrated water regulation framework is much welcomed in the Netherlands in particular as it will assist in simplifying the current regime and establishing a framework for compliance with EU water objectives. However, much remains to be done to ensure those objectives are met and it will be interesting in the next couple of years to see what proposals the Netherlands Government will come up with to do so.

Footnotes

1. 2000/60/EC of 23 October 2000.

2. 2007/60/EC of 23 October 2007.

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