Managing Riverside Property: Spatial Water Management in Germany from a Dutch Perspective

Chapter 5
Managing Riverside Property: Spatial Water Management in Germany from a Dutch Perspective

Thomas Hartmann and Tejo Spit

Why is it so difficult for water managers and spatial planners to collaborate in managing riverside properties? In this chapter, we investigate this question from a legal perspective. Owing to recent trends in European environmental policy – in particular with respect to flood risk management – water managers need to influence land use behind the dykes. Thus, they are encroaching on the traditional arena of spatial planners. Water management and spatial planning have essentially different approaches to managing land. In this contribution, we describe the different modes of governance of both institutions and explain how these are institutionally embedded in the law. We provide from an outsider’s, Dutch, perspective new insights into the entrenched particularities of German legislation: namely the role of condition-based and of performance-based legislation. The underlying research interest concerns the way in which particular types of legislation influence modes of governance of spatial planning and water management.

European and German Flood Risk Policy and Legislation

While we write this article in early 2011, high water waves are discharging into the Rivers Rhine, Oder, Danube, Elbe, and Maas. Almost every year, a major flood occurs somewhere in Europe. In addition, Australia recently endured a major flood and flash floods caused damage in Canada, Brazil, and Sri Lanka. As a consequence, water managers experience a shift in the approach to coping with flood events. The flood events in 1993 and 1995 on the River Rhine initiated a paradigm shift from infrastructural flood protection to more spatial flood risk management (Moss and Monstadt 2008: 63; Mostert and Junier 2009: 4961; Roth and Warner 2007). The Netherlands and Germany have played a key role in that paradigm shift (LAWA 1995: 8; UBA 1999: 25–27). ‘“Space” now became the keyword in Dutch flood policy… While earlier measures were restricted to the areas between dykes, this time Rijkswaterstaat [the Dutch water management authority] was going to intervene behind dykes’ (Roth and Warner 2007: 520–521). Water should no longer be excluded; it should rather be ‘accommodated’ (Wesselink 2007: 243). This idea did not fit in with their working paradigm. Previously, the idea of managing water with technical and infrastructural-engineering solutions dominated the water management thinking. Water management has not been prepared for a catchment-wide planning of flood risk management (Ison et al. 2007: 500). The dykes have been regarded as the boundaries between the water and water management. But now, a dyke is no longer the boundary or the line of defence in the ‘battle against the water’ (Wiering and Immink 2006: 423) or a line of demarcation, where the dominance of water management ends and the playground of spatial planning begins.

The way the law is phrased not only determines the legal consequences of certain actions, but also has a crucial impact on the working paradigms – the modes of governance – of the executive administration. Thus, as we assert spatial planners and water managers need to know the impact of different types of legislation on their work, and on their mutual cooperation. The modes of governance, we argue, are entrenched in the way the law is phrased. This state of affairs becomes obvious in managing riverside properties in spatial water management.

European Water Policy

For the first time, in the year 2000 the European Water Framework Directive demanded a spatial water management. In order to achieve a ‘good [ecological] status’ of water bodies, whole river catchments should be attended to – instead of just the bodies of water and the embankments (2000/60/EC). This directive did not explicitly include flood protection, but in 2007 the European Union released the European Flood Risk Management Directive (Mostert and Junier 2009: 4963). Accordingly, water managers now need to prepare flood risk management plans up to 2015 (article 7 I EU-FD). These affect spatial planning in riparian landscapes (article 7 III EU-FD; Mostert and Junier 2009: 4966) and restrict urban developments in these areas (Albrecht 2007: 501). Future water managers need to plan behind the dykes, not just between them (here the term ‘between the dykes’ is used instead of ‘in the floodplains’ to highlight the difference from ‘behind the dykes’). Now they have to plan in the field of spatial planning, which in turn has to incorporate the new role of water management. For a long time, the relationship between spatial planning and water management has been conflicting, but well-rehearsed (Moss 2009: 54; Wiering and Immink 2006: 424). Recent European water policy intensifies the friction between spatial planning and water management.

Particularly in Germany, water engineers struggle with managing riverside properties behind the dykes. In those areas, spatial planners develop binding land-use plans in a countervailing and nested hierarchical system of plans, based on balancing different spatial issues. Each of these needs to pass through ‘the needle eye of balancing spatial planning decisions’ (Durner and Ludwig 2008: 467). German water managers struggle because they are not used to this way of planning (Durner and Ludwig 2008: 461). In countries with a strong institutional division between the water and planning sectors – such as in Germany – integrative water management is difficult to achieve (Moss 2004: 86). ‘Water authorities accustomed to operating with regulatory instruments along vertical paths of the administrative hierarchy will in the future need to cultivate more intensively forms of horizontal cooperation’ (Moss 2004: 90). This horizontal cooperation requires some rethinking. Different social constructions of water need to be taken into account. In practice, water managers tend not to understand that water is more than a biophysical entity, as it is has been regarded historically for a long time (Ison et al. 2007: 503). A claim like ‘water and its physical and social characteristics create interdependencies that must be taken into account by humans who then conceptualize particular ways of understanding water’ (Ison et al. 2007: 503) is simply incomprehensible from a technocratic view. In this respect, the water sector tends to be inflexible and not prepared to adapt to recent changes in environmental, economic or social circumstances (Pahl-Wostl 2002 quoted in: Ison et al. 2007: 501). Wesselink describes the situation of the flood defence system as locked-in politically, where ‘it is unable to escape its control paradigm for flood risks’ (Wesselink 2007: 246). Water managers perceive a gap; on the one hand particular European directives, but also national attempts of policymakers and the scientific community, claim that water managers need to plan in an integrative manner and implement their measures and plans catchment-wide. On the other hand, the federal German water law (WHG = ‘Wasserhaushaltsgesetz’) does not provide essentially new instruments for water managers to do so (Knopp 2010: 124).

The institutional setting of water management in Germany sustains a traditional control paradigm in which particular characteristics of the German water legislation are entrenched. German water managers are unable to escape their control paradigm. Germany has already struggled with integrating the regulations resulting from the Water Framework Directive in spatial planning (Moss 2009: 57), but the European Flood Risk Management Directive seems to cause even more difficulties, particularly because it includes restrictions and even prohibitions for building in the floodplains (Albrecht and Wendler 2009: 611). How can traditional water management be better prepared for the new spatial water management? In the next few years, this question will become crucial (and not only from a legal perspective); but the law prescribes that flood risk management plans have to be prepared until 2015 (§ 75 WHG).

By looking from an outside perspective – from the Netherlands – we can identify a fundamental legal constraint on German water management that hinders planning behind the dykes, and that explains an entrenched paradigm of controlling property in land. We therefore elaborate the specifics of two different types of legislation in the water and planning sectors: condition-based and performance-based legislation. This distinction clarifies the deep relationship between the law and modes of governance of administrations.

Condition-based and Performance-based Legislation

At first glance, one reason for the struggle of German water managers in implementing the Flood Risk Management Directive can be seen in German federalism and its reform in 2006. Previously, the national federation in Germany had only had a confined legislative competence in the water sector; the Länder had their own water laws. Consequently the implementation of the European Water Framework Directive in national law was very complex and slow in Germany before the reform of federalism (Steindorf and Häberle 2010: no. 13a). This reform from 2006 entitled the federation to regulate the water sector fully. Thus, the government passed a new Federal Water Act. This act, however, has been criticized because it was not detailed enough (it does not have the regulatory depth of a ‘Vollregelung’ – a comprehensive regulation); the federal states would still need to pass additional state-level legislation to make the regulations concrete and to implement them (Pape 2010: no. 64). From this perspective, some confusion of German water managers implementing the European flood risk policy seems understandable. But this is just the first glance. A closer view reveals that the new Federal Water Act marks a shift in the type of legislation: from condition-based to performance-based. It is not that the new legislation is too vague, but rather that it is a different type of legislation.

Performance-based and condition-based are two different types of legislation. The term performance-based is derived from the US-American discussion of the topic (see for example Coglianese et al. 2002); in the German discussion, the word ‘finale Gesetzgebung’ is used – but there are hardly any suitable English-language translations. Thus, here the term performance-based legislation is used, since it covers what is meant by ‘finale Gesetzgebung’. The term condition-based is used to describe the other type of legislation. The term is derived from the German word ‘konditionale Gesetzgebung’ (see Fonk 2010) – but the English word conditional does not match the German term precisely. Lacking a better alternative, condition-based legislation is the term we have used for what is meant by the German concept. To clarify these terms, their characteristics and differences between them are explained below.

This distinction between performance-based and condition-based legislation is not between Anglo-American case law (common law) and the Romano-Germanic codified law of continental Europe (Tetley 1999: 592). The distinction is rather within codified law. This aims to regulate cases beforehand, abstractly, comprehensively, and exclusively (Fonk 2010: 626). Performance-based legislation and condition-based legislation differ in the way in which a regulation governs: either by describing precisely what actions the addressed entities have to take, under what conditions, and in what situations, or by incorporating ‘the regulation’s aim into the language of the rule’ (Coglianese et al. 2002: 706). The latter – performance-based legislation – focuses on the result of an executive activity; the purpose or aim of a regulation is determined and it is left to the administrator how those aims are to be met. Condition-based legislation emphasizes procedures of administration; the aim of a regulation is not determined, but the conditions under which a certain legal consequence is to be applied by the administration (Fonk 2010: 629).

Performance-based legislation (‘finale Gesetzgebung’) implies that the planning process is oriented towards set planning aims. All the instruments and procedures the law provides and determines are designed to identify and alleviate certain deficits in a determined period of time (Albrecht and Wendler 2009: 609). Performance-based legislation sets a frame, namely the aim, but leaves the public administration considerable scope for decisions (Durner and Ludwig 2008). The judiciary control within performance-based legislation is confined to the balancing processes carried out by the administration (Albrecht 2007: 98). This balancing requires well-elaborated ‘rational’ decisions that are consistent within the system of programs and plans (Breuer 2007: 505).

Condition-based legislation (‘konditionale Gesetzgebung’) is the contrasting model of legislation: regulations are formulated in if-then relationships. This formulation is usual in civil and penal law – if one drives a car X kilometres per hour too fast, one has to pay Y. The facts of a case are usually comprehensively regulated and are subject to judicial control (Albrecht 2007: 98; Breuer 2007: 505). Consequently the administration has very limited scope in a decision. Condition-based legislation determines precisely ‘what happens when’. It is not necessary to name the purpose of the regulation in the text of the law (although there is a trend also to do this) (Fonk 2010: 629).

As a consequence, the two types of legislation create different types of legal certainty: performance-based regulations need to be benchmarked according to the set aim, whereas condition-based regulations need to be assessed according to the legally-defined conditions set out in the law. Condition-based legislation requires a rather precise administration that adheres to the if-then conditions, albeit with discretion. Thus, a condition-based administrative regime is used to act within the system of the law and expects the law to determine in detail what to do, and when. In the case of conflict, such an administration would look to the law to resolve it. A performance-based administrative regime is used in a more self-determined way. In the case of conflict, the administration has to provide a sound and rational line of argument for its actions in the process. Such an administration acts more politically. Thus performance-based legislation requires a more flexible administration, willing to balance issues to achieve consensus and compromise to achieve the aim. As a result, the type of legislation has a crucial impact on the mode of governance (Fonk 2010: 631). How does the German situation of water management and spatial planning relate to the two types of legislation?

German Planning and Water Law

German water right is traditionally based on condition-based legislation (Breuer 2007: 505, Albrecht 2007: 98), whereas German planning law pursues the model of performance-based legislation (Albrecht 2007: 98). It has to be emphasized that the assignment of water sector and planning to condition-based and performance-based legislation is not a black-and-white distinction; there is a rather grey zone, where elements of both types of legislation can be found in a law.

The German Federal Water Act – particularly before the last reform in 2010 – predominantly contained regulatory instruments for controlling the use of water and for the protection of and against water for particular cases (Knopp 2010: 49). The regulations in German water laws are quite detailed and leave little scope for variation at the executive level. For example the granting of permission and allowance of water use (‘Erlaubnis und Bewilligung’) are typical condition-based regulations, because they depend predominantly on procedural ‘if-then’ regulations. In the Federal Water Act, the concept of balancing interests is not so dominant (although it is becoming more important, also for water legislation) (see for example Knopp 2010: 54 about § 6 WHG, the basic principles of water management). Particular regulations regarding urban developments in the floodplains determine precisely the conditions under which a building permit may be granted or must be denied. Article 78 of the German water law contains a detailed list of land uses that may be permitted in formally-registered inundation zones; nine detailed criteria for zoning plans within such areas are listed; finally, the conditions that exceptional building in floodplains needs to meet are set out. Although German water law is not purely condition-based most regulations are, so that this law can be assigned to this type of legislation.

German planning law has a strong tendency towards performance-based legislation. This tendency can be seen for example in article 1 of the German Building Code (the relevant law for municipal land-use planning), where the (performance-based) aims of municipal land-use planning are determined (see also Fonk 2010: 628): Land-use plans have to achieve a sustainable urban development, including social, economic, and environmental aspects as well as intergenerational justice: the land use should be socially fair, and the plans should care for a human environment and protect the natural resources; flood protection is also mentioned as an issue that needs to be considered in the balancing process (§ 1 VI no. 12 BauGB) (BauGB = Federal German Building Code). Also the German Regional Planning Act (ROG = ‘Raumordnungsgesetz’) – also relevant for German spatial planning – determines content-oriented principles for spatial development (§ 2 ROG). German planning law is even seen as the prototype of performance-based legislation in Germany (Albrecht 2007; Fonk 2010). So, spatial planning and water management adhere to different types of legislation. Thus, following the arguments above, different modes of managing land can be expected.

Managing Riverside Property