Marc Daniel Heintz und Jürgen Pohl
Geographisches Institut der Universität Bonn
Over two years ago, the EC passed a directive to improve and place flood protection in Europe on a more consistent footing. This expansion of powers was not welcomed by everyone involved and some actually tended to view it with suspicion and see it as an additional bureaucratic obstacle. Because of the federal structure and the fact that many tasks in this area are the responsibility of the states – and the associated pluralism – Germany tended to be sceptical. From a few weeks ago, the implementation has been legally binding in German law in the form of the new water management act.
However, this adoption into law is only the formal, legal side of the coin. In practice, the implementation is a process that had already started and will continue for years. Because the implementation is in full flow and being understood and executed very differently in the various states, a study has been conducted at the geographical institute of the University of Bonn to investigate the status of the implementation problems as well as the acceptance and entry into operation of the “philosophy” of the directive. Below are therefore a few questions about the implementation of the directive and the findings on these.
Which area has been examined?
The directive focuses on river catchment areas and this study has therefore been produced for the German Rhine catchment area. The experts surveyed were therefore based in Munich and Saarbrücken as well as in Karlsruhe and Düsseldorf. In many discussions with experts, people responsible in the specialist authorities were interviewed.
Who has been surveyed?
The results illustrated are based on interviews with experts. In six different federal states in the catchment area of the Rhine, detailed interviews with experts from the respective ministries responsible, from the supporting specialist authorities (state authorities, state institutions) and with representatives of the intermediate authorities (district governments and related establishments) and representatives from various local levels (e.g. flood partnerships, local umbrella organisation) were conducted and interpreted.
Which components make up the flood risk management directive?
The directive, which entered into force in 2007, demands a three-stage concept:
1. A preliminary risk assessment for the areas provisionally defined by the same
2. Flood hazard and flood risk maps, and finally
3. Flood risk management plans.
What is a flood?
A flood is understood as a temporary inundation, by surface water and seawater, of land normally not covered with water; water levels are therefore of no direct importance. Further, three different scenarios must be developed on the hazard maps: low, medium and high probability of recurrence. The previous hundred-year basis flood is still attributable to average probability; overall, however, the guide is dropped at a rigid limit.
What must be protected?
More important than the hazard maps are the risk maps, which should record the damage potential and be based on assets of society that need to be protected. If valuations are already needed here then a weighting is explicitly required at the third stage, the creation of risk management plans: based on the hazard and risk management maps, protection objectives must be defined and appropriate measures must be developed for these protection objectives.
Additionally, these risk management plans must be updated at relatively short intervals (6 years). This also implies greater flexibility and more frequent reassessments.
With this structure of the directive, it is clear that a changed attitude towards flooding has emerged: the benchmark is not the – excessive volume of – water but rather the protection objectives, which are categorised differently according to priority.
How is the philosophy of the directive implemented in Germany?
The implementation in German law is mainly as a comprehensive federal regulation through the act updating water law (WHG), from which the states may nonetheless deviate in their own state water laws. The act takes the flood definition from the directive and takes into account the requirement of the directive by replacing flood protection plans with risk management plans, although flood protection (and not flood risk management) still appears as a chapter heading! Implementation in a way such that, if in doubt, the risk management plans can be restricted to one event with an average probability of recurrence demonstrates that a number of things have been “rescued” from the safety culture and orientation towards – the most stringent possible – limits.
So-called “command and control” instruments have been increasingly pushed into the background in European environmental policy since the 90s. The environmental impact assessment directive (EIA) and the strategic environmental assessment directive (SEA) led the way here. Even the new German water management act has taken a softer general tone. It is less about limits that must not be exceeded, i.e. asking what could happen and protecting against it – virtually at any price – and more about asking what can be allowed to happen.
How is the philosophy of the directive being accepted?
Particularly at ministerial level, the experts are very open to the risk approach. The directive is seen as an opportunity to improve how flooding is handled and to implement reforms. It allows reforms in form and content (such as the inclusion of extreme events, prioritisation and much more). The directive supports its own objectives and legitimises its own work. One indicator of internalisation is the adoption of the sometimes very awkward terminology, which has apparently already happened.
Which opportunities and risks does the bottom-up approach hold?
The involvement of stakeholders on site in an open-ended process for the creation of the risk management plans essentially implies greater acceptance. However, it is feared that local stakeholders not included will pursue their own interests and obstruct processes (people upstream against people downstream) particularly in the context of flood partnerships. Moreover, the spirit of the directive is anchored more clearly in the higher levels than the lower and the standards deliberately formulated to be open in many places could prove to be a weak point of the directive.
How is the temporal framework assessed?
Those who are willing to implement the objectives particularly well and extensively bemoan the tight time framework, which impedes high-quality work. These states are concerned not only with meeting the reporting obligations to the EU Commission but also with achieving actual improvements in flood risk management in their own state.
On the other hand, member states are exempted where documents compiled or passed by the end of 2010 are recognised as preliminary work. Moreover, the frequent revision cycle is seen as an opportunity for improvement.
What is the view on the freedom/openness contained in the directive?
The failure of the attempt to create consistency through the German working group of the federal states on water issues (LAWA) is generally regretted and discontinuity is expected in the maps (e.g. in the definition of “low probability of recurrence”) and in risk assessment at the state borders. However, it is also emphasised that, as a result of the freedom, the opportunity exists – and is also used – to cover extreme events and to respond to regionally different circumstances, which is in the spirit of the directive.
How is the implementation of the plans looking?
The success of the implementation of the directive is dependent on the implementation of the plans compiled. However, the requirements of the directive are met with the compilation of the plans; there is no monitoring of implementation. Only publication of the plans and flood awareness present among the public (and possibly an event) might cause pressure for quick implementation.
What is the role played by the state?
Withdrawal of the state from complete responsibility and from the task of comprehensive management on the lower (and sometimes also medium) level, i.e. the transition from bureaucratic welfare state to the state as guarantor, is having conflicting effects. On the one hand, it means debureaucratisation and free regulation through the market; on the other hand, however, the independent engineering offices now often entrusted with the tasks are anxious to minimise costs. This causes the initiation of a (private sector) top-down strategy, which moreover has little or only very indirect democratic legitimisation.
Here too, however, there are sometimes considerable differences between the individual federal states. As such, Bavaria is the only state that still has comprehensive water resources management, of which the water management offices can be very helpful with the preparation of the flood risk management plans.
The new EC flood directive includes a fundamental change in the handling of flood risks: from generally isolated hazard defence towards systematic risk management. Nevertheless, specifically because of the extensive freedoms that the EC has afforded the member states through the directive (no exact definition of scenarios, no specification of definite protection objectives or measures), it will be only in the course of implementation that it becomes apparent whether the stimuli of the directive are also having an impact on specific flood risk management on site. A number of provisions designated by the directive, such as a stronger cost-benefit focus of measures, could fail here because of their lack of political enforceability.
Whereas, in the broadest sense, stages 1 and 2 of the directive concern basic data, the flood risk management plans must be seen as the “centrepiece” of the directive. Ideally, a targeted strategy to deal with flood risk management will be defined in sensibly allotted river area units with the involvement of all stakeholders in the form of a risk dialogue. It will be difficult here to bring together around one table the various stakeholders involved with flood risk management (those upstream vs. those downstream, conservationists vs. farmers). However, this can also be used as an opportunity for conflict resolution.