The adaptiveness of Dutch water law put to the test: dealing with water scarcity in a water-rich country

Abstract

Arguably, laws should change and become adaptive in order to facilitate adaptation to climate change. However, too much flexibility runs counter to the need for legitimacy, stability and enforceability and, therefore, a balance should be struck. Experimental laws and regulations could lead to discussion about the need for and the extent of legal adaptation to climate change. This need for experimental laws has led to analysis, comparison and assessment of two adaptation measures dealing with water scarcity in a water-rich country such as the Netherlands, in the context of their resilience. The aim was to discover whether the current Dutch legal framework enables adaptation or whether changes to national laws will be required. The applicable laws, regulations and policy documents have been analysed to select a suitable region in the Netherlands where water scarcity is commonplace (or ‘structural’) in order to conduct case studies to examine the effectiveness of the adaptation measures. During the course of this research it emerged that the Dutch legal system is not designed to deal with structural water scarcity. However, the cases also showed that Dutch national law does not have to change to enable adaptation to a situation of inherent water scarcity. Although Dutch water resource law does not promote all the necessary elements of an adaptive approach, it can enable adaptation through its polycentric approach, together with the discretion delegated to regional authorities to create local solutions with the assistance of the private sector if necessary.