1. Dutch Land Use Law as a Model for U.S. Adaptation to Climate Change

3. The Atlantic and Gulf Coasts of the United States Sea level rise is expected to be most severe along the Atlantic and Gulf coasts. Rising sea levels, a growing population, and increasing development will stress coastal communities and habitats Aging infrastructure in many eastern cities leaves them vulnerable to flooding

4. Case Study: Boston A 2005 study by Tufts University indicated that rising sea levels and coastal storms could flood downtown Boston, the Public Gardens, and M.I.T. in the next century 1.5 million people are expected to live along the coast in the Boston area by 2050 The subway and sewer systems are already 100 years old Without improvements to infrastructure, flooding is expected to cause an additional $26 billion in damages Legal and policy changes focused on practical adaptation through zoning, building codes, and infrastructure improvements could reduce overall impact

5. Case Study: The Midwestern U.S. 2 “100-year floods” in the last 20 years During floods in the upper Midwest in 1993, regional watershed managers struggled to coordinate actions between 6 federal agencies, 23 state agencies across 5 states, and 233 municipalities

6. Roughly 50% of the land in the Netherlands lies at or below sea level 60% of the Dutch population lives at or below sea level Nearly 66% of the Dutch GNP is produced at or below sea level The Dutch began erecting dikes and draining the land to form the characteristic “polders” of the Dutch countryside more than 800 years ago

7. The Great Flood of 1953 A massive storm surge caused 89 dikes to fail 1,800 people died in the Netherlands Led to the construction of the Deltawerken (Deltaworks), a massive series of storm surge barriers and dikes along the Dutch coast

8. The Flood on the Rhine and the Meuse, 1995 Both rivers flooded simultaneously Existing dikes barely contained the flooding 200,000 residents were evacuated Similar flooding occurred again in 1998 Led to the current water management system, in which land is being “given back” to the rivers

10. The Dutch Response to Climate Change Land use policy is part of the effort to address climate change Goal is to make the country “climate proof” The Fourth National Environmental Plan aims to address sustainable development goals while simultaneously preventing and adapting to climate change

11. Nederland Leeft Met Water (The Netherlands Lives With Water) Historically, Dutch water management policy has focused on reclaiming land and keeping the sea out The new slogan for Dutch water management is “Water should get space before it takes it!” With rising sea levels and subsiding land, eventually the dikes will no longer be tall enough Storm surge barriers (Deltaworks) ease the impact of major storms along the coast Floodplain management slows down river flooding by giving the water a place to flow

12. Room For Water Each province and locality in the Netherlands must make room for rivers by considering issues of water storage and retention Conservation land along rivers is being linked to assist with water management and flood control Farmers in the flood plain must accept the possibility that their land may be flooded Communities may no longer build in areas with a high potential for flooding

13. The Water Management System The priorities of the water management system are to collect, store, and ultimately discharge water safely System is comprised of the national Rijkswaterstaat, 12 provincial water authorities, and 55 local water boards Residents, businesses, farmers, and building owners are represented on local water boards The costs of each board are shared among its members

14. Integration Between National, Regional, and Local Agencies Rijkswaterstaat manages main navigable rivers, canals, territorial seas, coastal waters and estuaries Provincial water authorities control regional navigable waters Local water boards control remaining waters and advise local land-use authorities Land-use authorities are similarly divided, with limited provisions for the review and reporting of local land-use decisions to provincial and national authorities

15. National Spatial Planning Act Passed in 1965, and frequently amended since then A comprehensive and decentralized approach to national land use Substantially revised in July 2008 in an effort to simplify the law Requires regional and local governments to cooperate with private actors to determine land use policy National concerns such as water management, environment, culture, and landscape are addressed in local and regional plans Regional land use plans use tools called the Water Opportunity Map and the Water Assessment Test to integrate water management into land use planning

16. The Water Opportunity Map Not legally binding Examines land use and water management scenarios Used to define and map buffer zones for flooding, nature conservation areas, and low-lying areas most vulnerable to flooding Effective tool for communicating basic information to a broad group of stakeholders

17. The Water Assessment Test A procedural law Must be employed by all Dutch authorities making land use decisions Similar to the Impact Statement required under the U.S. National Environmental Policy Act Includes a planning checklist and official process that clarifies the roles of each participant

18. More on the Water Assessment Test If the plan cannot meet national priorities for water collection, storage, and safe discharge, the local water authority must recommend mitigation measures that will allow the plan to meet those priorities No consequences for a land management authority that decides not to implement the mitigation measures recommended by the water management authority However, land management authority must explain and justify their reasons for ignoring the water management authority’s recommendations

20. Isolated Actors Make a Cohesive Land Use Policy Difficult to Achieve Local governments in the U.S. hold most of the authority in setting land use policy State and federal agencies have most of the responsibility for disaster planning and response The U.S. is more that 236 times larger than the Netherlands, and has more than 18 times as many citizens Climate and land use issues across the U.S. are diverse

21. Federal Law Cooperation between federal and state governments characterizes the most successful U.S. environmental laws (cooperative federalism) The Clean Air Act and Clean Water Act are successful examples of comprehensive regulatory schemes that vest significant power in state governments U.S. laws designed to address land use and disaster planning suffer from a lack of solid connections between local, state, and federal government

22. United States Federal Law: Disaster Management Act The Disaster Management Act provides a basic blueprint for integrating federal, state, and local emergency response and planning Each state is expected to draft a state-wide, multi-hazard response plan States may provide technical assistance to municipalities interested in developing local plans All 50 states, and more than 1,100 municipalities, have submitted disaster management plans to FEMA Unfortunately, plans are generally reactive rather than proactive

23. United States Federal Law: Coastal Zone Management Act The Coastal Zone Management Act provides for the establishment of state and local coastal management authorities States have employed it to impose moratoria on construction and repairs in damaged areas following coastal storms States and localities may adapt the federal program to address specific regional concerns

24. State Efforts States are leading the U.S. effort to develop creative regional solutions to climate change Efforts include creating migration corridors through conservation land and preventing coastal flooding through the preservation of wetlands By September of 2008, only 8 of the 34 state climate action plans addressed adaptation to climate change Other states are considering adding adaptation provisions in future revisions to action plans

25. Local and Municipal Efforts to Plan for Climate Change The U.S. Conference of Mayors Climate Protection Agreement is an excellent example of sharing local best practices Goal is to reduce each member city’s greenhouse gas emissions by 7% below 1990 levels by 2012 Some members are developing a regional planning model The Council of Governments in Sacramento, CA includes 6 counties and 22 cities No emphasis on adaptation yet

26. Private Approaches Private conservation groups are developing land use strategies for adaptation Generally tied to the preservation of an ecosystem or endangered species The Nature Conservancy is acquiring fresh-water marshes in Maine to find out whether eco-systems can migrate The New England Wildflower society is developing a seed bank of native flowers

28. Incorporating a Dutch-Style System into U.S. Land Use Law The practice of cooperative federalism in the Clean Air Act and Clean Water Act provides a blueprint for a successful law Federal funding could be attached to explicit planning and adaptation conditions Each state could develop an individual plan that incorporates federal guidelines and regional needs Localities would develop plans that incorporate state guidelines and local needs

29. Process for Developing a National Adaptation Plan Final State Plan is Submitted to Federal Government for Approval State Plan Incorporates Local Plans and Input from Interested Regional Parties into Final Plan Municipal Plans Developed based on Input from Interested Local Parties, Submitted to State Draft State Plan Federal Land Use or Adaptation Law

30. Could a Dutch-Style Planning System Work in the United States? Any U.S. plan must address a range of adaptation issues and constituencies An integrated approach to planning for adaptation will require improved collaboration between local, state, and federal government actors A successful system must incorporate local needs without losing sight of national or regional priorities Federal action is unlikely in the current political climate States could successfully employ a Dutch-style system

32. Damien J. Leonard djl43@law.georgetown.edu