Looking for leadership in flood risk management: a recent law reshuffles the cards in France

By Lisay Lévy

Levy2Who is in charge when it comes to flood risk management in France, and who takes care of flood prevention and protect the French population ? This question is tricky, since the answer can be: everybody. Nasty tongues may even say: nobody. It depends on the point of view.

Historically, there was no institution explicitly responsible for the protection of the populations against the risk of flooding. According to the law of 1807, citizens were supposed to organize themselves to cope with these risks. Yet, after the catastrophic flood events of the mid-19th century, the State took the initiative and carried out important works of protection (mainly along the four largest national rivers: the Seine, the Rhône, the Garonne and the Loire) in the name of the solidarity and safety principles.

Based on the Environment Code, water and flood risk management was a field that every level of government (from the State to the communes) could tackle if they deemed they had to do so (article L.211-7). De facto, dike owners are diverse: the State, as well as territorial authorities at every scale: from the communes and their association (i.e. intercommunalities) to the departments, and regions,… and all of them are engaged in actions of prevention, information, mitigation, etc. Quite often, these numerous actors joined together to deal with flood risk management and created different kinds of governance organizations (often linking it to the water management): Interdepartemental agreement (on the perimeter of one Department or tow), Basin establishment (EPTB) association of local authorities organized at the scale of a river basin (from small to very large ones, like the Loire or the Seine, specialized in the management of water and flood prevention), river or catchment basin syndicates (smaller and more operational than the former). Their legal statuses are as multiple as the leadershipsand power configurations.

The recent law on the modernization of the public action and for the affirmation of the metropolis (law MAPAM: modernisation de l’action publique et l’affirmation des métropoles) of 27 January 2014 profoundly reshuffles the cards. And the new law points out towards the intercommunalities to take the leadership.

This is linked to the decentralization process France has been struggling with for over thirty years now (since the first laws of 1982). Local authorities are gaining power and responsibilities as the State is delegating its competences, handing over the reins, without always transferring its share of the corresponding budget. The law is in line with the logic of reduction of the public expenses (officially introduced in 2007 with the general revision of the public policies) and a general withdrawal of the State. However, one cannot really speak of disengagement in the field of flood management, since it was never legally engaged, i.e. designated as competent and liable for it. The recent law actually strives to identify a body liable for it and creates a new competence called GEMAPI (Gestion de l’eau, des milieu aquatiques et prevention des inondations), literally meaning “water environment and prevention of flooding”. Two main fields are concerned.

First, the management of water and flood risk prevention fall within the competence of the communes or of their intercommunalities. Local governments can delegate this competence to Basin establishment (if they exist on their perimeter).These have seen their legal status précised and redefined: they now have to be mixed associations, i.e. a group of different kinds of institutions (for example communes and intercommunalities, whereas one third of them are only associated departments), whereas there was previously no rule of composition to be followed. They could for example be composed of departments only and were used by them to organize collaboration between two (or more) of them, especially when local authorities could not agree to act together.

Second, the major infrastructures owned by the State are being transferred to the local authorities, which will be liable for the maintenance of the dikes and will be able to raise a tax for it (with a maximal amount of €40 per inhabitant).Communes predominantly expressed their opposition to this measure, they deem inapplicable and because they fear the disengagement of the State.

On the one hand, the recent law seems to be leaning towards the establishment of a harmonised set of local actors, looking for more visibility among the partners and more consistency in the policies. On the other hand, it raises several questions.

The new repartition of competences and the emerging structures could weaken the existing balance and design a new set of actors’ coalitions, by introducing new political and financial stakes. This could lead to a competition between intercommunalities and public Basin establishments: Big agglomerations that have the resources to deal with flood risk management shall probably keep the competence to themselves (whereas small agglomerations or rural areas may go towards basin establishments). The standardisation of the local set of actors might also have its drawbacks as it denies the local and organisational specificities and the existing governance picture (characterized by their diversity at the scale of the basin). Finally, some actors, such as the department, might also withdraw their involvement, instead of starting difficult negotiations with agglomerations to build new Basin establishments. Small river syndicates, on the other hand, do not know yet how to stay in the play and evolve in a Basin establishment.

It may takesome time to solve all of these questions, since the new competence will be effective in January 2016. A lot has to be clarified by the decrees that will implement the law. No less than five of them are currently being drafted and are already giving rise to debate. To be continued…

Withinthe STAR-FLOOD project, our research group will pay a great attention to these issues, in order to analyse the impact of the new law on the existing flood governance strategies and arrangements. Even though, for now, one can only speculate on these changes, the consequences could be substantial on the set of actors and the definition of their priorities and have to be followed very closely.