Twenty Years of Waterkeeper Alliance: How the Waterkeeper Movement Shaped and Was Shaped by U.S. Environmental Law

Posted on August 6, 2019 by Karl Coplan

In the late 1980s, when I was an associate at the environmental boutique law firm of Berle, Kass, and Case in New York City, Robert F. Kennedy, Jr. and John Cronin came to visit the firm to discuss a new project they had started with sportswriter and Hudson River environmentalist Bob Boyle. Boyle wanted to take the British estate tradition of having a streamkeeper to protect streams from poachers and expand it to the entire estuary. Boyle’s organization, the Hudson River Fishermen’s Association, had designated Cronin as the Riverkeeper for the Hudson River estuary, patrolling it for polluters and other modern-day river poachers. Thus was born the idea of having Waterkeepers – individuals acting as non-governmental environmental monitors and enforcers, supported by local, waterbody-based grassroots organizations. The Waterkeeper idea caught on – programs were started in San Francisco, Atlanta and Portland, Maine at about the same time.  And in 1999, the fledgling Waterkeepers formed an alliance to spread the Waterkeeper model and support the growing network of Waterkeeper organizations.

As Waterkeeper Alliance celebrates its twentieth anniversary, it is worth reflecting on how the movement has both shaped, and been shaped by, U.S. environmental law. In a way, the Waterkeeper movement was a natural outgrowth of mid-20th century developments in the law of judicial standing and the Congressional innovation of the environmental citizen suit. By mid-century, the Supreme Court recognized the role of public interest intervenors in agency proceedings, describing these participants as “private attorneys general.” The Riverkeeper concept sought to take this “private attorney general” idea literally and have non-governmental water monitors enforce the environmental laws.

Standing for private law enforcement was a potential hurdle, and the Storm King case on the Hudson River proved pivotal to opening up environmental enforcement standing to non-governmental plaintiffs. Bob Boyle wrote a Sports Illustrated article about the proposed Storm King pumped storage hydroelectric facility and the devastating impact it would have on the Hudson River striped bass fishery. This story led to the 1965 Scenic Hudson Preservation Conference v. Federal Power Commission case in which the Second Circuit Court of Appeals explicitly recognized judicial standing based on non-economic recreational, environmental, and aesthetic harms.  A year later, Boyle founded the Hudson River Fishermen’s Association, the predecessor organization to Riverkeeper.

The Supreme Court went on to adopt the Scenic Hudson standard for environmental standing in Sierra Club v Morton, but with an important limitation: organizational plaintiffs would have to show that some individual member of the organization personally suffered one of these environmental, recreational, or aesthetic injuries. This holding set the stage for the growth of waterbody-based grass roots membership organizations litigating to protect their waters from pollution – exactly what became the Waterkeeper model. And in the 1972 Federal Water Pollution Control Act Amendments Congress gave such groups something to enforce and the means to enforce it, with strict permitting requirements for point source discharges, numeric permit limits, monitoring requirements, and, most importantly, specific authorization for citizen suits. Congress thus gave life to Waterkeepers as enforcers. In 1983, John Cronin became the Hudson Riverkeeper and started patrolling the river looking for cases to bring as a private attorney general.

While many of the early Clean Water Act citizen suits of the 1980s were brought by Natural Resources Defense Council, as the Riverkeepers, Baykeepers, and Soundkeepers popped up across the country, their influence on the development of US environmental law grew. The grass-roots membership model based on recreational use of rivers, lakes, sounds, and bays was a natural fit with environmental standing requirements. Not surprisingly, given their roots in the Storm King power plant fight, Waterkeepers have played an important role in ensuring regulation of power generation water intakes. John Cronin got the ball rolling when he successfully sued to force EPA to issue the long delayed cooling water intake structure regulations under Clean Water Act § 316(b). When EPA finally issued these rules, it was a Riverkeeper suit that prompted the Second Circuit to remand the rules to remove reliance on offsite restoration as “Best Technology” to reduce aquatic species impacts. It was also (less successfully for Riverkeeper) the same Riverkeeper litigation that later led the Supreme Court to graft cost-benefit analysis onto the “Best Technology” standard in Entergy v. Riverkeeper. Waterkeepers continue to play the role of regulatory watchdog over the power industry. This year, Waterkeeper Alliance won a case requiring reconsideration of the coal ash impoundment effluent limits under the Clean Water Act as well as another case requiring reconsideration of the Resource Conservation and Recovery Act regulations governing disposal of power plant coal combustion residuals.

Waterkeepers played a key role in development of Clean Water Act regulations in other areas as well. Another one of the founding Waterkeepers, the Upper Chattahoochee Riverkeeper, helped bring combined sewer overflows to the regulatory agenda with a successful suit against the City of Atlanta for violating water quality standards. Long Island Soundkeeper brought the cases establishing that recreational trap and skeet shooting ranges required Clean Water Act permits for their discharges, and were responsible for cleaning up past lead shot and target contamination in water bodies. Waterkeeper Alliance brought one of the first cases seeking enforcement of Clean Water Act and RCRA requirements against massive hog Confined Animal Feeding Operations (CAFOs). Waterkeeper Alliance also brought a successful challenge to EPA’s revisions of the CAFO effluent limitations regulations.

The Waterkeeper movement has grown to over three hundred forty organizations in forty-seven countries, and Waterkeeper affiliates around the world are influencing the global development of environmental law just as the earliest Waterkeepers did in the United States.


NOTE: The author serves as outside counsel for Riverkeeper and Waterkeeper Alliance, and is a member of the Waterkeeper Alliance Board of Directors.

Section 316(b) of the Clean Water Act – Cooling Water Intake Requirements – Update on EPA and State of Maine Actions

Posted on January 18, 2013 by Philip Ahrens

Section 316(b) of the Clean Water Act requires that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.  Although the statutory language is straight-forward, EPA has run into enormous difficulties in promulgating rules to implement Section 316(b).

The latest in a series of rulemaking efforts began on April 20, 2011 when EPA published a proposed rule to protect fish from being killed at water intake structures that withdraw at least 2,000,000 gallons per day from waters of the United States and use at least 25% of the water they withdraw exclusively for cooling purposes.  Pursuant to a Settlement Agreement with the environmental group, Riverkeeper, and other organizations, EPA was required to issue the revised rule by July 27, 2012. 

When I last wrote about this rulemaking effort by EPA, EPA had received more than 1,100 comment letters and more than 80 documents containing new data for possible use in developing the final impingement mortality limitations.  On June 12, 2012, EPA offered a 30-day comment period on the new information with comments due on or before July 11, 2012. 

Through the Notice of Data Availability published by EPA on June 12, 2012, EPA also presented data it had received related to the results of EPA’s stated preferences survey.  Comments on the data related to EPA’s preference survey were also required to be submitted on or before July 12, 2012. 

In my previous blog on this subject, I wrote it was hard for me to understand how EPA would be able to comply with a court-ordered issuance date of new rulemaking by July 27. 

Not surprisingly, EPA was unable to issue its new rule by July 27.  Instead, EPA entered into a Second Amendment to the Settlement Agreement with Riverkeeper and other organizations.  The Settlement Agreement contains the following language:  “Not later than June 27, 2013, the EPA Administrator shall sign for publication in the Federal Register a notice of its final action pertaining to issuance of requirements for implementing Section 316(b) of the CWA at existing facilities.”  Since entry of the extension, EPA has been remarkably silent about any steps it plans to take prior to the June 27, 2013 deadline for notice of final action.

Concurrent activity at the state level is also of interest.  Prior to this latest extension, EPA Region 1 sent about ten extensive Section 308 information requests to facilities in Maine to set the stage for possible issuance of case-by-case, best professional judgment permit requirements pursuant to 316(b) for the selected facilities.  It is unclear how the facilities were selected given other Maine facilities also met the proposed thresholds.  Those facilities have responded to the information requests but further action even on those facilities is on hold.  EPA Region 1 and the Maine DEP have now determined that DEP, which administers a partially delegated NPDES program, now has the statutory capacity to administer the 316(b) program.  DEP is in the process of formally seeking explicit delegation for the 316(b) program as anticipated under the original EPA-DEP NPDES Memorandum of Agreement.  The DEP has indicated it intends to wait until after EPA issues a final rule implementing Section 316(b) before DEP decides how it proposes to implement 316(b) as a delegated state.