Case 2011 Denmark

Denmark – Response to Case 2011

Helle Tegner Anker, Ph.D

Flooding in urban areas due to heavy rainfalls has been a relatively rare phenomenon in Denmark. Within the last years, however, an increasing number of heavy rainfalls have been followed by flooding of urban areas – most recently the massive flooding of central Copenhagen on 2 July, 2011. Different initiatives have been discussed with the purpose to avoid flooding, including the establishment of canals, dikes or other physical alterations to control surface water. Also the establishment of permeable land cover and on-site stormwater management has been suggested. However, there is some uncertainty as to whether the existing legislation, including planning law, is in fact suitable to support or facilitate such solutions.

1. The main legal mechanisms for regulating the physical state of surface water bodies

1.1 Physical alteration of surface water bodies 
The physical state of surface water bodies is regulated through the Watercourse Act (Vandløbsloven, consolidated act no. 927/2009). The existing Watercourse Act was adopted in 1982 and has undergone limited changes since then. The Watercourse Act regulates the physical state of surface waters, whereas abstraction of water is regulated under the Water Supply Act (vandforsyningsloven, consolidated act nr. 635/2010) and wastewater under the Environmental Protection Act (miljøbeskyttelsesloven, consolidated act nr. 879/2010).
The main purpose of the Watercourse Act is to ensure the free flow of water – traditionally focusing on the cultivation interests of adjacent agricultural land – while at the same safeguarding the environmental quality of water bodies. The latter was emphasized in the 1982 Act. Any physical alteration of a surface water body requires a permit under the Watercourse Act. The Act applies to streams and lakes as well as ditches, canals, culverts and drains. Both the alteration of existing water bodies and the establishment of new water bodies require a permit. Furthermore, the alteration of the natural flow of water to or from a property requires a permit. The construction of dikes etc. that redirects or adjusts water flows may thus require a permit under the Watercourse Act. One important exemption from the general permit requirement of the Act is the riparian right to drain adjacent lands.
The municipal council is the relevant authority in granting permits and in general in the administration of the Watercourse Act.

1.2. Regulation of the physical alteration in a land use plan
Land use plans do normally not regulate the physical state of existing water bodies. A land use plan – i.e. a local plan – may, however, regulate the state, use and management of non-built areas, cf. § 15(2) no. 9 of the Planning Act. A local plan may, thus, determine the location and shape of new water bodies, including canals, basins etc. If the construction of a new water body, e.g. rainwater basin, will lead to a significant change of the existing environment, a local plan is mandatory. The adoption of a local plan does not in itself oblige the authorities or others to establish a new water body. However, a duty to establish a canal, a rainwater basin or other joint facilities for a new development area may in a local plan be formulated as a condition for taking new buildings into use, cf. § 15(2) no. 11 and no. 13. A certain nexus must exist between the water body and the new buildings.

1.3. Maintenance of rivers etc.
Maintenance of watercourses is also regulated under the Watercourse Act as a matter concerning the physical state of a watercourse. The general requirement is that watercourses should be maintained as to ensure that the physical state and the water flow remains unchanged, cf. § 27. A 2011 amendment (act. no. 553/2011) of the Watercourse Act introduces a possibility to entirely stop or significantly reduce the maintenance of certain stretches of watercourses as part of the implementation of the EU Water Framework Directive. It is expected that 7.300 km of watercourses will be subject to such initiatives. There are concerns that this will lead to flooding of in particular agricultural lands, but it may also affect urban areas.
With respect to maintenance of watercourses the Act distinguishes between public watercourses and private water courses. Public watercourses are maintained by the municipality, while private watercourses are maintained by the riparian landowners. For public watercourses a so-called watercourse regulation (vandløbsregulativ) must be issued by the municipal council determining more precisely the desired level of water flow or the physical state of the watercourse. In addition provisions on maintenance are normally laid down in the regulation. For private watercourses the municipal council may lay down provisions on shape, flow and maintenance with binding effect on riparian landowners.

1.4. Co-ordination mechanisms
The Watercourse Act includes a requirement for public watercourses running through more than one municipality to consider the entire water course system when amending a watercourse regulation, cf. § 12 a. In addition, there is in such cases a requirement to consult and negotiate with other relevant authorities, cf. § 4 in Statutory Order 1437/2007. For certain larger public watercourses (prior to 1.1.2007 defined as regional watercourses) a watercourse regulation shall be approved by the Ministry for the Environment, cf. § 12(3).
Consultation and coordination initiatives may, however, be difficult to handle in practice and there is a risk that disagreements will occur. There is no best practice guidance or similar to guide the municipal authorities in carrying out these tasks.
There are no formal co-ordination mechanisms between the Watercourse Act and the Planning Act. Thus, there is no requirement that watercourse regulations should have regard to land use planning or vice versa. Yet, the municipality is in principle obliged to strive for the implementation of the municipal land use plan when administering the legislation in general.
The river basin plans may require a certain level of co-ordination between upstream and downstream authorities – and possible also provide some linkages between watercourse administration and land use planning. Yet, it still remains to be seen whether such possibilities will be used.

2. The main legal mechanisms for flood prevention due to heavy rainfalls

Flooding due to heavy rainfalls may have two main sources or tracks – either direct flooding from surface water bodies (rivers, streams, lakes etc) or more indirect flooding due to overloaded wastewater systems. This is an important distinction in relation to the legal framework in Denmark – a third distinction can be made between in-land surface water bodies regulated under the Ministry for the Environment and coastal waters regulated under the Ministry of Transport. In Denmark only direct flooding from rivers, streams and lakes has been linked to the implementation of the EU Floods Directive (2007/60/EC), while flooding caused by overloaded wastewater systems deliberately has been excluded from the definition of flooding in the Act on assessment and control of flood risks from watercourses and lakes (Act no. 1505/2009). Floods from the sea in coastal areas are regulated under the Act on Coastal Protection (consolidated act no. 267/2009, kystbeskyttelsesloven) in Statutory Order no. 121/2010. Yet, there is a joint implementation strategy through co-operation between the Nature Agency and the Coastal Directorate.
In a joint draft consultation paper nine flood risk areas have been proposed. This does not include the Copenhagen area. The overall criterion for designating the flood risk areas is a (potential) significant risk of flooding in accordance with the Floods Directive. The more specific Danish criteria are the likelihood of flooding together with an accumulated property value of more than 2 mia. DKK and more than 500 properties in the area. After designation of the flood risk areas a detailed map of flood hazard and flood risk shall be elaborated and be followed by flood risk management plans for each designated area. The flood risk management plans shall set appropriate objectives and identify the measures necessary to achieve the objectives. In Denmark flood risk management plans shall be drawn up by the municipalities, while state authorities (The Nature Agency and The Coastal Directorate) are responsible for the preliminary assessment, designation and mapping of the flood risk areas.
Flooding caused by overloaded wastewater systems is the responsibility of the municipalities and it should be taken into consideration in the wastewater plans. There is, however, no specific reference to flood concerns in the Environmental Protection Act or in the Statutory Order 1448/2007 laying down the detailed rules on wastewater planning. The regulation of wastewater is a core legal mechanism to control stormwater runoff in urban areas in particular. Stormwater runoff is in legal terms defined as wastewater – more precisely categorized as roof and surface runoff. Consequently, a wastewater permit is needed for the management or collection of stormwater runoff, cf. § 28 of the Environmental Protection Act (Miljøbeskyttelsesloven – consolidated act no. 879/2010) and Statutory Order 1448/2007 on wastewater permits.
The municipal councils shall issue a wastewater plan that determines the extent and dimensions of the sewage system and other mechanisms to handle wastewater, including stormwater runoff. A wastewater plan is not directly binding upon landowners or water companies. A wastewater plan must not contradict the river basin plans adopted according to the Water Framework Directive. Furthermore, the implementation of the Water Framework Directive and the river basin plans may have certain implications upon wastewater planning as well as on the issuance of wastewater permits. The river basin plans – and the so-called municipal action plans – are binding upon the authorities, cf. § 3 in Act on Environmental Objectives (miljømålsloven, consolidated act no 932/2009). This means that an extension of the sewage system or a limitation in the issuance or wastewater permits may be imposed through the river basin plans as necessary measures to achieve the objectives of good water quality. As for the first generation of river basin plans in Denmark (final adoption is expected Autumn 2011) climate changes and adaptation has, however, not been taken into proper consideration. Building Regulation 2010 (BR2010) sets certain requirements regarding installations for the handling of storm- and wastewater in new buildings. However, a separate permit is required under the Environmental Protection Act for on-site stormwater runoff installations.

2.1. Linkages to land use planning 
Land use planning in Denmark primarily consists of municipal plans and local plans. There is no nationwide national land use plan. However, the Minister for the Environment has certain powers to issue national planning circulars with the effect that lower level plans may not contradict the national planning circulars. Furthermore, a national planning statement is issued every fourth year. The latest Statement encourages the municipalities to take climate change into consideration in their planning. A municipal plan shall coordinate different land use interests within the entire municipality. It shall include a number of planning guidelines, e.g. for different uses of land, including urban uses, infrastructure, industrial facilities, agricultural and recreational uses as well as for the protection of landscape, natural or cultural values. A municipal plan also includes framework provisions for local planning. Local plans are the detailed plans regulating land use etc. at property level through legally binding provisions, see further 2.2.
Flood risk plans are linked to municipal and local planning in the sense that a municipal plan or a local plan may not contradict a flood risk plan, cf. § 11 and § 13 of the Planning Act. Furthermore, the municipal plan shall include relevant guidelines that are linked to the proposed measures in a flood risk plan, e.g. the reservation of areas for retention of water or for the establishment of other measures identified in the flood risk management plans, cf. § 11 a, nr. 18 of the Planning Act. The accompanying statement to a municipal plan shall also make a record on the relation to the flood risk management plans. However, as mentioned above only a limited number of flood risk areas are expected to be designated. This does not, however, exclude the possibility, that other flood risks and climate adaption measures are taken into consideration in municipal and local planning, se further below.
Formally, wastewater plans are linked to land use planning in the sense that a wastewater plan may not contradict a municipal plan. Thus, a wastewater plan shall have regard to planning guidelines for new urban areas in a municipal plan. It is debatable, however, to what extent a municipal plan may include guidelines that more precisely determines the character of e.g. sewage systems in urban areas. It is likely, that a municipal plan for a new urban development may set up guidelines so as to make possible the establishment of retention basins or other stormwater runoff facilities. Furthermore, planning guidelines and framework provisions regarding land cover can be included in a municipal plan. The decisive element is to what extent such planning guidelines and framework provisions can be said to reflect a relevant planning concern. There is, however, no specific reference to climate adaptation and concerns in general in the Planning Act.
Thus, there are some formal linkages between the different types of plans. However, due to the narrow implementation of the EU Floods Directive the obligations – and to some extent also the possibilities – to address flood concerns in planning in general are limited.

2.2 On-site stormwater runoff management in local plans 
A local plan may determine with legally binding effect upon landowners the exact use of an area, cf. § 15(2) no. 2, detailed provisions on the construction of buildings, cf. § 15(2) no. 7 as well as the state, use and management of non-built areas, cf. § 15(2) no. 9. Furthermore, provisions regarding establishment and connection to common facilities for new development areas can be laid down, cf. § 15(2) no. 11. Finally, the use of roof water for toilets and laundry in new buildings can be regulated in a local plan, cf. § 15(2) no. 25. A local plan is, however, directed towards new development in an area and cannot impose requirements upon existing buildings and land use.
A local plan provision must be based on relevant planning concerns or interests. Furthermore, a local plan cannot regulate issues that are regulated according to specific legislation, e.g. wastewater legislation. Thus, a local plan cannot set up requirements of on-site stormwater runoff management as this is a matter regulated under the Environmental Protection Act. However, a local plan may for new development areas lay down land use related provisions that facilitate on-site stormwater runoff management, e.g. provisions regarding basins, canals, land cover, siting and construction of buildings etc. Such provisions should, however, be based on relevant planning concerns. Local planning provisions regarding the establishment of green roofs have not been regarded as founded in a relevant planning concern unless the requirement is based on aesthetic or recreational concerns. It could, however, be argued that flood risks and climate adaptation is or should be a relevant planning concern. In order to support such arguments it seems to be necessary to amend the Planning Act, e.g. to include such concerns in the general purpose of the act or to provide a specific legal basis for local planning provisions aimed at flood risk reduction or climate change adaptation.

2.3 Reduction of sewage water charges
A specific problem at least in a Danish context is the extent to which sewage water charges can be reduced if property owners establish on-site stormwater runoff management. It is necessary to distinguish between the charges for connecting to the wastewater system and the charges for the annual “consumption” or use of the wastewater system. In relation to the former the legislation makes it possible to reduce the connection fee if roof and surface water is not connected to the wastewater systems, cf. Act on Wastewater Payments (consolidated act no. 366/2010).
In relation to the annual charges for the use of the wastewater system the problem is that sewage water charges in the existing system in general are not based on the amount of wastewater from each property but on the water consumption of that property. Thus, there is no separate payment for stormwater runoff. In that context it is difficult to find a proper legal basis and argument for reducing annual wastewater charges if on-site stormwater runoff management is established.
The main mechanisms to encourage the establishment of on-site stormwater management is thus to reduce or refund the connection charge. Some water companies (or municipalities) even offer subsidies for the establishment of such facilities. Such practices are somewhat debatable from a legal point of view and there appears to be a need to reconsider the entire (waste)water charge system.