2.1 The Dutch legal system: constitutional organisation

The Netherlands has a multilevel administration. Four geographically demarcated levels of government can be distinguished (Fig. 2): the national government, the provinces, the municipalities, and the regional water authorities. Provinces and municipalities are decentralised administrative authorities that have general rule-making competences, which means that they can make rules on a whole range of policy areas. They also have executive powers, which means that they are responsible for implementing and enforcing general rules, mostly by making binding decisions in individual cases. The fourth geographically demarcated, decentralised level of government is the Regional Water Authority (RWA). In contrast to the other decentralised administrative authorities, the RWAs can only exercise their competences to deal with one policy area: water management.

The rationale of the multilevel character of the Dutch government is that rules and decisions are best made at the most appropriate level of administration: some issues are better dealt with by the national government since they concern the entire country, while local issues are best dealt with by a municipality.

2.2 The Dutch legal system: public policy-making and decision-making

The national government as well as the decentralised administrative authorities use their competences to develop and implement public policy. Policies are not legally binding; instead, they inform these public authorities when they enact general rules or make binding decisions. The adjective “public” means that in enacting general rules and binding decisions public (administrative) authorities ought to pursue public, rather than personal goals. Citizens affected by a public decision can seek judicial protection against such a decision before administrative courts and, on occasion, civil courts if they perceive the decision as unlawful.

The Dutch Constitution lists several public responsibilities that require the government to develop public policies. One example is article 21 of the Constitution, which states that “[i]t shall be the concern of the authorities to keep the country habitable and to protect and improve the environment”. The public policies developed to protect the environment are enacted in sectoral laws (Fig. 3), each of which deals with a particular aspect of environmental protection (e.g. spatial planning, water quality, nature protection).

These sectoral laws grant the central government and decentralised public administrative authorities rule-making and executive competences in order to protect different aspects of the environment. These governments must exercise these competences in light of the particular aspect of the environment that a sectoral law aims to protect. As a result, administrative authorities, when taking a binding decision in an individual case for which they must weigh different, sometimes conflicting interests against each other, can only take into account those interests relating to the particular aspect of the environment that the sectoral law deals with. This often results in complex decision-making, since one activity can potentially harm different aspects of the environment and is therefore often regulated in several sectoral laws, for which often different administrative authorities are the competent decision-makers and different interests must be taken into account. Public decision-making in environmental law does therefore seldom take place in isolation – there often is an interplay or interdependency between the different public decisions applicable to an activity. This does not only result in complex decision-making, but also makes it very complex for citizens who seek judicial protection, as responsibility for drainage activities is scattered throughout different laws and regulations executed by different authorities.

Although the sectoral laws will be put together in the Environmental and Planning Act (likely in 2021), this will likely have no or little effect on the fragmented nature of environmental regulation and decision-making.

Figure 2Constitutional organisation of the government in the Netherlands.

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3.1 Public decisions and relevant interests under the legal framework

The legal framework concerning water-level management primarily consists of two acts, namely the Water Act and the Spatial Planning Act (SPA). The purpose of the Water Act is ensuring water safety, protecting water quality and allowing water systems to fulfil societal functions (Sect. 1.2 “Water Act”). The Water Act designates decision-making competences to different public authorities, relating to the purposes of the Act, including establishing formal decisions with regard to target levels for (designated) groundwater and surface water bodies. RWAs establish water level target decisions for regional waters, which they have to maintain as much as possible. RWAs can do this for instance by operating pump stations and weirs, but they can also exercise their legal water management competences by, for example, regulating (human) activities that can affect water levels (in permits or binding rules).

When establishing water level target decisions, the competent public authority must take into account all interests relevant to this decision. The interests concerning spatial functions that require a certain water level – such as agriculture, nature, residential area, leisure and archaeology – play an important role in this matter. RWAs tend to follow the policy principle “water level follows allocated (spatial) function” when establishing water level target decisions.

Figure 3Sectoral environmental protection legislation.

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Some spatial functions require different groundwater levels; for example, lower groundwater levels are more beneficial to agriculture, whereas higher groundwater levels are more beneficial to nature. For this reason, RWAs are inclined to set lower water levels in water target decisions for areas that have an agricultural function in comparison to the water levels set for areas that have an ecological function in the zoning plan.

Spatial functions have to be allocated to lands by the municipalities in their zoning plans. The Spatial Planning Act (SPA) requires municipalities to adopt binding zoning plans for all lands under their jurisdiction, including the subsoil, groundwater and surface water. The purpose of the SPA is to provide “good spatial planning” (Sects. 2.1 and 3.1 “SPA”). When adopting a zoning plan, municipalities must therefore take into account all the relevant interests related to good spatial planning. Since providing good spatial planning is an open-ended purpose, a wide variety of interests might be relevant.

The water level set in a water level target decision is therefore closely connected to the spatial functions allocated in the relevant zoning plan.

3.2 Land subsidence and its societal impact as a relevant interest

In both the Water Act and the SPA, land subsidence is not explicitly mentioned as an interest that must be taken into account in public decision-making. However, the open-endedness of the purposes of both the Water Act and the SPA means that a wide variety of societal impacts of land subsidence can be taken into account in decisions taken under these Acts, such as water level target decisions and zoning plans. The public authorities, however, must weigh those interests against many other relevant interests. The outcome of this balancing exercise is not predictable as a plethora of interests could come into play.

However, for the RWAs, that generally follow the self-binding policy principle “water level follows allocated function”, the spatial functions allocated in a zoning plan are a predominant factor when establishing a water level target decision.

Municipalities can take land subsidence into account when adopting zoning plans, as long as it is connected to good spatial planning. There are two procedural requirements that see to a zoning plan's effects on groundwater levels: the municipality must describe how it has taken into account the effects of the zoning plan on local water management, and the municipality must consult with the local RWA for the effects of the plan on groundwater levels. However, these are procedural rather than substantive requirements – they do not prescribe how land subsidence should be taken into account in a zoning plan.