Water board can be held liable in the event of flooding

A water board can be held liable for damage caused by flooding, but only if it has breached its duty of care. A water board has a duty of care regarding water management and the maintenance of watercourses for which it is responsible for maintenance according to the register. If that duty of care is breached – for example, because the water board fails to repair a known defect (in a timely manner) – it can be held liable for the resulting damage. In practice, this is not easily achieved: you must be able to demonstrate that the water board was aware of the defect, or ought to have been, and failed to respond adequately.

When is a water board liable for flooding?

Water management and water governance fall within the remit of the water boards. In this regard, there is overlap with spatial planning, environmental management, and nature management—areas in which municipalities and provinces also have their own responsibilities. Therefore, in the event of flooding, it is by no means always immediately clear who is to blame.

At its core, three elements are important for the liability of the water board:

• Duty of care. The water board has a duty of care for water management and, where it is liable for maintenance according to the register, for the maintenance of watercourses and structures such as culverts.
• Knowledge of the defect. The water authority must have been aware of the defect or the risky situation, or should reasonably have been.
• Late or insufficient response. The water board failed to intervene, or did not intervene in a timely manner, whereas this could reasonably be expected of a water board acting reasonably.

Moreover, a water board has a certain degree of policy and discretionary power. The court therefore assesses whether the water board acted reasonably, not whether it made the most ideal choice. This explains why water boards are not easily held liable in practice – but it does not mean that they always escape punishment. If things go wrong, it quickly comes down to a well-substantiated claim of liability and proper evidence.

What is a “recognizable defect”?

A discernible defect is a defect or risk of which the responsible party knew or reasonably ought to have known. As soon as a defect is discernible, an obligation arises in principle to act within a reasonable period. Failure to take such action may constitute a breach of the duty of care – even if the occurrence of the defect was not attributable to the party itself.

Example from case law: clogged culvert at a tree nursery

A ruling by the District Court of East Brabant (interim judgment of April 17, 2019, ECLI:NL:RBOBR:2019:2167) shows how this plays out in practice. A so-called A-watercourse ran alongside the plot of a tree nursery. According to the register, the water board was responsible for both its routine and major maintenance.

A culvert was barely letting any water through, partly because it had not been extended when a driveway was widened in the past. In March 2016, flooding occurred, partly in connection with construction work in the vicinity, and approximately one hectare of land was submerged. The water board was aware of this. However, the tree nursery owner initially directed his complaints to another party, as a result of which the water board initially remained unaffected.

In June 2016, flooding occurred again following heavy rainfall. At that time, the tree nursery held the water board liable. The obstruction in the culvert was not removed until July 2016.

Why the water board was nevertheless deemed liable

The court ruled that the water board had a duty of care and was also liable for the maintenance of the culvert. Regarding regular and major maintenance, the court partially followed the water board's defense: until March 2016, when the first instance of damage occurred, there was no breach of the duty of care.

According to the judge, however, the first instance of damage in March 2016 should have set off alarm bells. From that moment on, the water board ought to have known that the culvert was not functioning properly and that there was a risk of repeated flooding. The water board should therefore have repaired the culvert as soon as possible. The judge considered it too late that this did not happen until July 2016.

Conclusion: the water board had breached its duty of care and was liable – but exclusively for the damage resulting from the second incident in June 2016. Because this concerned an interlocutory judgment, the exact extent of the damage still had to be determined in the subsequent proceedings.

The core: even if a defect cannot initially be attributed to you, slow or ineffective action after it became known can still lead to liability.

What does this mean for you as an entrepreneur?

The case revolves around a water board, but the underlying principle applies much more broadly and is directly relevant to entrepreneurs. If you fail to respond, or respond too late, to a defect of which you are aware, you run a risk of liability – also towards your own customers and contractual partners.

Two practical lessons:

1. Respond promptly to a known defect. You may conduct an investigation, but that investigation should not be an excuse for unnecessary delay. Document when you received a report and what steps you took.
2. Have you suffered damage yourself? Do not be too quick to assume "nothing can be done about it." If a government agency or contracting party overlooked a recognizable defect, holding them liable may be worthwhile.

Damage caused by flooding: how to determine your steps

• Document the damage immediately with photos, date, and time.
• Find out who is responsible for management and maintenance (water board, municipality, contractor, landlord).
• Gather evidence that the responsible party was aware of the defect or should have been aware of it.
• Hold the correct party liable in a timely manner and in writing – pay attention to limitation periods and complaint periods.
• If necessary, engage expert assistance to substantiate the extent of the damage.

Limiting liability risks in your own business

The flip side also applies to your own business: you want to prevent a customer complaint from resulting in a liability claim. Two tools help with this:

• Clear agreements regarding complaint handling. By establishing in advance how and within what timeframe you will address reports, you avoid discussions about “responding too late”.
• Exemption clauses. A well-formulated exemption clause in your general terms and conditions or agreement can limit your liability. Please note: such clauses must not be unreasonably burdensome and do not always apply in cases of gross negligence or intent.

Frequently asked questions about the liability of the water board

Is a water board always liable for flooding?

No. A water board is only liable if it has breached its duty of care. In practice, this is not easily achieved, because the water board has a certain degree of discretion. You must be able to demonstrate that it knew or ought to have known about a defect and failed to respond to it in a timely manner.

What is the duty of care of a water board?

The duty of care entails that the water board ensures adequate water management and, where it is liable for maintenance according to the register, the maintenance of watercourses and structures such as culverts. The court assesses the fulfillment of this duty against what may be expected of a reasonably acting water board.

What is a shelf?

A ledger is a register in which the water board records which waters and structures exist and who is responsible for their maintenance. The ledger is often decisive in determining whether the water board has a maintenance obligation.

Who is liable: the water board or the municipality?

That depends on who is responsible for the water body or structure in question. The water board is generally responsible for regional water management and the watercourses listed in the register; municipalities are often responsible for, among other things, the sewage system and the drainage of rainwater on public land. In the event of damage, it is therefore important to first clearly determine which party was responsible for the cause.

How do I hold the water board liable for damages?

You hold the water board liable in writing and substantiate the damage, the cause, and the accusation (the breach of the duty of care). Gather evidence that the water board was aware of the defect. Because deadlines and the burden of proof can be difficult, legal advice beforehand is advisable.

Within what timeframe must I hold liable?

Limitation periods apply to claims for damages. Therefore, do not wait too long and hold the party liable in writing as soon as possible. The exact period that applies in your case depends on the circumstances; have this assessed before any time limit expires.

Need help with a liability claim or dispute?

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