Laws and regulations, international treaties and policy
There are various laws (primary legislation) and regulations (secondary legislation) that apply to the development and operation of off-shore wind energy. Many of these laws and regulations have their origins in European legislation. The laws and regulations address numerous subjects: from the designation of an area in which a wind farm may be built to the interests which must be taken into account or the rules that apply to operational wind farms. Besides wind energy, the development of other renewable sources of energy, such as solar energy and (green) hydrogen demands laws and regulations.
Offshore wind energy laws and regulations
Offshore Wind Energy Act
The Offshore Wind Energy Act, an act passed on 1 July 2015, provides an integrated legislative framework for the creation of large-scale offshore wind energy. The act regulates such aspects as the way in which sites for the development of wind farms on the North Sea are allocated. The 'site decision', which determines where a wind farm may be built and operated, and which conditions it is subject to, also forms part of the act.
The Offshore Wind Energy Act was amended in 2021 to ensure that the scheduling of the Offshore Wind Energy Roadmap 2030 - expanded in 2022 to include the Additional Roadmap for Offshore Wind Energy 2030 - can be achieved. That means that it is possible to meet the targets set in the Climate Agreement. The essence of the act remains unchanged. The amendment covered aspects such as making the act suitable for energy carriers other than electricity in years to come. The licensing procedure has also been amended. The existing licensing procedure, in which it was possible to apply for a grant, has been supplemented with a parallel licensing procedure without grant (in preparation for the point at which it is no longer necessary to issue grants). In the latter case, the licence can be issued on the basis of a comparative test, in which the applications are compared with each other on the basis of qualitative criteria, or with an auction.
The Water Act generally governs the management of water systems, such as flood defences and bodies of surface water and groundwater. The act focuses on preventing or limiting flooding, surface run-off flooding and drought, the protection and improvement of the quality of water systems, and the fulfilment of social functions by water systems. The Water Act will be integrated into the Environment and Planning Act (Omgevingswet), the Living and Working Environment (Activities) Decree (BAL) and the Living and Working Environment (Quality) Decree (BKL) as of 1 January 2024.
The Water Decree, a decree of 30 November 2009, is a further development of the Water Act and, in terms of offshore wind energy, contains general regulations for the construction, operation and removal of offshore wind farms. Those rules are included in articles 6.16(a) - (l) inclusive. The Water Decree, too, will be incorporated into the Environment and Planning Act on 1 January 2024. The general rules in articles 6.16(a) - (l) inclusive can be found in the Living and Working Environment (Activities) Decree (BAL) once the Environmental Planning Act comes into force.
Nature Conservation Act
The Nature Conservation Act (Wet natuurbescherming), which came into effect on 16 December 2015, protects the Dutch nature reserves and plant and animal life, and thus also applies to the Dutch section of the North Sea. The act is largely based on European regulations. Under the terms of the act, the Netherlands complies with international obligations in the field of nature conservation. European regulations and, as a result, the Nature Conservation Act too, offer a high degree of protection to nature reserves - including Natura-2000 areas - and plant and animal life. The act also makes a contribution to the conservation and recovery of biodiversity. From 1 January 2024, the Nature Conservation Act will be incorporated into the Environment and Planning Act, the Living and Working Environment (Activities) Decree (BAL) and the Living and Working Environment (Quality) Decree (BKL).
Environment and Planning Act (Omgevingswet)
The Environment and Planning Act will come into force on 1 January 2024. The act combines all acts and regulations that have a bearing on the physical living and working environment, including the Nature Conservation Act, the Water Act and the Water Decree. The Offshore Wind Energy Act will remain in force in its own right. The Environment and Planning Act is largely a framework act. The workings of the act are established in four orders in council: the Environment Decree (Omgevingsbesluit), the Living and Working Environment (Activities) Decree (BAL), the Living and Working Environment (Quality) Decree (BKL) and the Living and Working Environment (Structures) Decree (BBL).
The Westereems Treaty, signed on 24 October 2014, is an agreement between the Netherlands and Germany on the use and management of the territorial sea from 3 - 12 nautical miles from the coastline. That is an area where there is no agreed boundary between the two countries. The treaty describes how the responsibilities in the areas specified in the treaty are apportioned. In addition, there are agreements in place on the powers of Germany in the Dutch territorial sea in respect of the use and management of the fairway.
UN Convention on the Law of the Sea
The UN Convention on the Law of the Sea of 10 December 1982 (came into force for the Netherlands on 28 July 1996) is intended as a general legal framework for the use of the seas and oceans. This means that the convention primarily covers general rules and regulations. A number of existing conventions to which the Netherlands is party, such as MARPOL and the OSPAR Convention, can be seen as an in-depth interpretation of the general rules and regulations from the UN Convention on the Law of the Sea. The convention also provides the basis for the establishment of a safety zone around a wind farm, so that suitable measures can be taken within the zone in question in relation to the safety of both shipping and the installation itself. The possibility of establishing a safety zone around a wind farm has been transposed into national legislation, namely in article 6.10 of the Water Act. Once the Environment and Planning Act comes into force, it will be possible to retrieve this clause as article 2.40 of the Environment and Planning Act.
The OSPAR Convention forms an overarching legal framework for the conservation of the marine environment in the north-east part of the Atlantic Ocean that includes the North Sea. The OSPAR Convention came into force in 1992. In 1998, the aims of the convention were expanded, so that it not only relates to pollution of the sea by dumping and releasing waste, but provides an overarching framework for the conservation of biodiversity and ecosystems. The OSPAR Convention safeguards the European standards for conservation of the seas and, as a result, also public health in the following areas:
- Conservation and retention of biodiversity and ecosystems
- Environmental impacts of human activities
- Hazardous materials
- Offshore oil and gas industry
- Radioactive substances
- Assessment and monitoring
Marine Strategy Framework Directive
The European Marine Strategy Framework Directive (MSFD), published in 2008, aims to protect the status of the marine environment in European seas and oceans and, where necessary, restore it. The MSFD obliges each of the EU member states to establish a marine strategy for their own sea area, aimed at conservation, retention and recovery of the marine environment, making sure they also safeguard the sustainable use of the North Sea. The Netherlands incorporated the effect of the directive into the Water Decree in 2010. The Marine Strategy for the Dutch section of the North Sea 2022-2027 (part of the North Sea Programme 2022-2027) contains the interpretation of the Directive for the Dutch section of the North Sea.
Protocol to the London Convention
The Protocol to the London Convention forbids the dumping at sea of all substances, with the exception of the substances listed in Annex I to the Protocol. The eligibility for dumping substances of this nature at sea may be considered. Annex II sets out the considerations that must be taken into account, and the conditions to which any permit for dumping that is issued must adhere. Annex II emphasises the importance of gradually reducing the use of the sea for releasing waste. In this respect, the annex specifies which other options need to be considered. If the substances to be dumped could better be processed under one of the other options referred to in the annex, then a permit for dumping at sea will be denied.
The government determines the way in which it goes about hitting the climate targets and being able to implement legislation in that field. To that end, the government formulates policy.
National Water Programme 2022-2027
The National Water Programme 2022-2027 was adopted on 18 March 2022 and follows on from the National Water Plan 2016-2021, and the Management and Development Plan for National Waters 2016-2021. In the National Water Programme, the government describes the outlines of the national water policy and its implementation in the territorial waters and fairways. An important part of the National Water Programme 2022-2027 is the North Sea Programme 2022-2027.
North Sea Programme 2022-2027
The North Sea Programme 2022-2027 is part of the National Water Programme 2022-2027 and replaces the North Sea Policy Memorandum 2016-2021. With its North Sea policy, the government sets the boundaries for spatial use of the North Sea in relation to the marine ecosystem. In the North Sea Programme 2022-2027, the areas of the North Sea that have been designated as wind farm zones have been maintained and, in part, reconfirmed. New wind farm zones have also been designated: Nederwiek, Lagelander and Doordewind. The programme also comprises an assessment framework for all activities on the North Sea that require a permit.
Policy rule on establishment of an offshore wind farm safety zone
The conditions under which shipping may pass through wind farms are stated in the Policy rule on the establishment of an offshore wind farm safety zone. The conditions specified in the policy rule are developed in an Administrative Ruling of General Application for each wind farm zone. The Policy rule on establishment of an offshore wind farm safety zone was amended on 1 January 2023. The conditions for passage, as included in article 3 of the policy rule, have been changed. The change means that passage within the safety zones of new offshore wind farms is possible solely in designated corridors for vessels with a maximum length overall of 46 metres. Due to the scaling up of offshore wind turbines, the minimum distance to the wind turbines has been increased to a radius of 150 metres.
Offshore wind energy roadmap 2023
It was agreed, in the Energy accord for sustainable growth that there would have to be a total capacity (including the capacity of earlier wind farms) of approx. 4.5 GW of wind energy? created in 2023. The first Offshore wind energy roadmap, for the period up to and including 2023, specified how the aims for offshore wind energy could be realised in good time. The Borssele wind farm was the first to be created off the coast of Zeeland, followed by two wind farms on the coast of Holland: Hollandse Kust (south) and Hollandse Kust (north). These three new farms, together, deliver a capacity of around 3.45 GW.
Offshore wind energy roadmap 2030
On 27 March 2018, the cabinet at the time presented the Offshore wind energy roadmap for the period 2024-2030 to the Lower House of the Dutch parliament. This roadmap contains the main points for the development of offshore wind energy from 2024 to 2030. The offshore wind energy 2030 roadmap also fleshes out the contribution of offshore wind energy to the reduction of CO2 emissions, as set out in the coalition agreement for the Rutte-III cabinet. The roadmap envisages wind farms with a combined capacity of over 7 GW. We achieve the largest part of this (6.1 GW) by utilising part of the previously designated Hollandse Kust (west), IJmuiden-Ver and Ten Noorden van de Waddeneilanden wind farm zones.
Additional Roadmap for Offshore Wind Energy 2030
In 2020 both the European Commission and the European Parliament, partly under the influence of the Netherlands, expressed the ambition of hitting by 2030 a CO2 reduction target of 55 per cent in relation to 1990. It is imperative that offshore wind energy plays a significant part in that. For that reason, at the start of 2022, the cabinet decided to build a total capacity of around 21 GW of offshore wind energy by around 2030/2031, which means an extra capacity of 9.5 over and above the previously set target of 11.5 GW. See the Letter to parliament dated 10 June 2022.