Thanks to a group of determined citizens and a legal principle that dates back to the Roman Empire, fences are coming down along the Hudson River, allowing people access to the riverfront from the George Washington Bridge to the shores of Staten Island.
Starting in the 1980s, high-rise development boomed along the New Jersey shore of New York Harbor. The developers were allowed to build right down to the shoreline on the condition that they construct walkways to give the public access to the water. When they reneged on their promise, citizens groups, led by New York/New Jersey Baykeeper, sued.
They won their case in 1999, setting in motion construction of the Hudson River Walkway, which, when completed, will run for more than 18 miles along the New Jersey riverfront. The victory helped launch an ongoing campaign to clean up industrial and urban water pollution and protect streams and wetlands throughout the Hudson-Raritan Estuary, one of the country’s most densely populated waterways.
At the heart of Baykeeper’s strategy was a centuries-old concept called the public trust doctrine.
The public trust doctrine holds that “By the law of nature, these things are common to mankind: the air, running water, the sea, and consequently the shores of the sea,” explains environmental attorney Jim Olson, quoting a translation from the original Latin. Olson has been advocating for environmental protection in the Great Lakes region since the 1970s. “The deep intent,” he says, “is that these things are not owned by anyone but that they are held in trust for the benefit of all.” This notion helped give rise to the idea of the public commons—places and natural resources that are shared by all citizens.
In the United States, the doctrine has been used to affirm that we the people share in common America’s rivers, streams, lakes, wetlands, and coastal waters. It says that water cannot be deemed private property and that our right to access and use these waterways must be maintained.
While the origins of the public trust doctrine are ancient, activists are now invoking its tenets to tackle some very modern threats—including waterfront high-rises and other urban and industrial developments that physically block public access to a river, lake, or coastal area. The doctrine is also proving instrumental in fighting water pollution and stopping commercial water bottlers from selling public water.
“People may not have heard of the public trust doctrine, but they have an innate sense of what it means,” says Debbie Mans, executive director of NY/NJ Baykeeper.
“We were able to rally great neighborhood and community support [for our efforts and] people inherently understood this idea.”
Baykeeper is a member of the Waterkeeper Alliance, founded in 1999 by environmental attorney Robert F. Kennedy Jr. and fellow environmental advocates. The Alliance has grown into an international network of nearly 200 locally based groups of citizen “Riverkeepers” and “Waterkeepers” who work together to protect waterways. The movement builds grassroots advocacy by connecting people to their local rivers and coastal waters. Waterkeepers also defend citizens’ rights to clean and accessible water, whether it’s an industrialized urban river or a mountain stream.
Waterkeepers all across the country are now using the public trust doctrine to protect water quality and public access to local water. “If I go out on the river,” says Brett VandenHeuvel, executive director of Columbia Riverkeeper, “I should be able to catch fish and eat them and swim in the river without having my access impeded.”
The New Western Water Culture
In the rugged high country where the Cache La Poudre River flows from Colorado’s Rocky Mountains through the city of Fort Collins, activists are using the Waterkeeper strategy to fight a huge dam and reservoir project. Poudre Waterkeeper is building local support by helping residents get to know their river. “Cities have been establishing kayak parks, and Fort Collins now has a bike path along the Poudre River that’s become a center of the city’s recreation,” says Gary Wockner, the group’s executive director.
Nearly 90 percent of the Poudre is currently diverted or dammed. Several more large dams and reservoirs have been proposed for the basin by the Northern Colorado Water Conservancy District. More dams would further reduce river flow; harm aquatic life, such as native fish and insects; worsen pollution; and cause sediment buildup—all of which threaten drinking water, recreation, and local fishing.
Meet the Riverkeepers
Citizen riverkeepers from Milwaukee, Atlanta, and D.C.
Support for the “Save the Poudre” campaign has grown as Waterkeepers have gotten local residents out onto the water and helped them understand the river’s delicate ecology and the impact of the proposed dams. “We’ve had tremendous success with building support for keeping water in the river,” says Wockner.
Western environmental law favors active use of water, typically for irrigation but also, increasingly, to support urban and suburban development, Wockner explains. Leaving water in the stream to support the ecosystem or enhance community quality of life has not traditionally been considered a “beneficial use.”
To a certain extent, says Wockner, it’s “Old West versus New West.” But priorities are changing as people understand the importance of preserving natural river flows. A growing segment of the community wants to preserve water as part of the commons, however there is still much work to be done.
Poudre activists are now organizing more public comment and scientific, economic, and legal assessment in advance of the next Environmental Impact Statement on the proposed dams due out in the summer of 2011.
Protecting Water Beneath the Surface
In Michigan, river advocates are working to extend their passion for water protection to the water that lies beneath the surface—in the underground streams and aquifers that feed the Great Lakes. And they’re using the public trust doctrine to help make their case. They have introduced a bill into the state legislature (Michigan H.B. 5319) to ensure that “The waters of the state, including groundwater, are held in trust by the state. The state shall protect these waters and other natural resources that are subject to the public trust for the benefit of present and future generations.”
The Great Lakes Compact, passed recently by the eight states that share the region’s waters, prevents water withdrawals to outside the region—by pipe, tanker, or plastic water bottle. But the law doesn’t mention groundwater. The Michigan bill would close that gap.
That’s important because groundwater, like surface water, is vulnerable to depletion, especially as global warming alters patterns of drought and precipitation. Impacts to groundwater affect surface water, and vice versa. Extracting groundwater faster than it can be replenished can reduce water levels throughout a watershed, including in its lakes and streams. “This hydrological connection has not been appreciated, historically,” explains Grenetta Thomassey, policy director of Tip of the Mitt Watershed Council.
Efforts to protect groundwater and defend the public right to it are gaining strength. It’s the logical next step—in protecting water, making sure we have enough, and keeping it clean and accessible—and it requires extending public stewardship to a watershed’s entire ecosystem.
“To keep water as a commons in the 21st century we have to make sure there is public trust in every arc of the water cycle,” says attorney Jim Olson.
- : A global movement of on-the-water advocates who patrol and protect over 100,000 miles of rivers, streams and coastlines in North and South America, Europe, Australia, Asia and Africa.
Not long ago, it seemed all wild streams would soon be dammed. Now, instead of mourning the death of America’s free-flowing rivers, communities are celebrating the resurrection of trout streams, canyons, rapids, and riffles
- : The Menomonee River watershed in Milwaukee is an urban wilderness, something that can exist in every American town and city.