The Delaware and the Rights of Rivers

August 8, 2013

By Liz Marshall, Five Smooth Stones Project

Genesis Farm


This river is old and very big, emerging from two distinct sources in central New York State and journeying for 419 miles to the Atlantic Ocean. As the tributaries merge and the river expands and grows, it winds its way to separate the landforms of New York, Pennsylvania, New Jersey and Delaware. The river is still one of the most healthy on the continent and in some sections, such as that which flows through the Kittatinny Ridge and Great Limestone Valley, shaping Genesis Farm's bioregion and home, it is designated “wild and scenic.” For those of us whose lives are intertwined with the fate of the Delaware River and its vast watershed, we are deeply disturbed. And with good cause.

Recent efforts to protect the river in our Ridge and Valley region have focused on two specific issues: a proposed expansion of the Susquehanna to Roseland power transmission line, and the construction of natural gas pipelines through the region.

Both projects, we believe, are harmful and unnecessary. But how do we articulate our objections? The future of the river — or of any human endeavor that degrades the natural world — is often debated and decided in solely human terms, balancing the rights and needs of certain groups of people against others. Those in favor of the transmission line and pipeline projects cite the need for jobs, for energy, for economic expansion. Those of us who are opposed often point out that the projects will pollute a critical source of drinking water, or that construction will disrupt the use of privately and publicly held lands, or diminish the valuable tourism industry.

But many working to defend the natural world often feel a need to give voice to a more comprehensive but less familiar context. Is it possible to view the river as more than a provider for human wants and needs? Is the river more than a source of drinking water, of recreation, of prime waterfront real estate? Does the river in and of itself have a reason for being and a right to exist that extends beyond our human needs? And if so, how do we begin to define, acknowledge and defend that right?

The River's Own History

In New Jersey, the river makes four distinctive switchbacks on the western border. The uppermost zigzag, which travels southwest from High Point State Park, is the major artery of the Ridge and Valley region of New Jersey. Many millions of people rely on the Delaware for fresh drinking water, for farming, for industry. We go there to fish, to canoe, to swim. It is bordered by state and national lands, and is the destination for people hungry to spend time in nature. It is a weekend getaway, an inspiration, and a respite from the noise and hectic pace of modern life.

To begin to understand if the river has rights, it helps to explore the river’s own history, a story that begins long before public water sources, long before state borders, and long before any human presence. The Delaware River first established something similar to its current course through the Appalachian Range about 150 million years ago, while dinosaurs roamed nearby. (In 1858, the world’s first nearly complete skeleton of a dinosaur, the megalosaur, was found in the vicinity of the Delaware River, near Haddonfield, NJ.) At some point in its long journey through time, river currents in our middle-river region began to cut a pass through the Kittitinny Ridge. The erosion that began with running water was, many millions of years later, intensified by a greater force. About twenty thousand years ago, during the last Ice Age, that mountain pass filled with a 2000-foot-thick glacier that advanced from the north. The glacier scraped its way through the mountain and widened the gap, creating the dramatically steep sides on either side of the river. Today that scenic river pass is called the Delaware Water Gap. It is one of the most distinctive geological features in New Jersey, and certainly one of the most breathtaking sights along Route 80, the cross-continent highway that now runs through it.


When the glacier melted, about 18,000 years ago, it left behind plentiful fresh water as well as the silt and gravel, called glacial till, that characterize our region’s fertile soils. The first humans to come across the river arrived on foot about 12,000 years ago. At that time, the river flowed through a region that was tundra, not forest. In the millennia that followed, the climate and region shifted. The first trees to appear near the river were coniferous pines. About ten thousand or so years ago, deciduous trees like oak, maple, birch and willow began to form forests.

The ancestors of the Paleolithic people who populated those forests came to call themselves the Lenape. The river they named Lenapewihittuk, River of the Lenape. The ten thousand or so years that they inhabited the river valley was a time of biological flourishing. As the forests grew and spread, so too did the diversity of life. Thousands of birds swam, fed, and nested nearby. Fish and mammals, amphibians and shellfish made a home in its currents. Bear, mountain lion, bobcat, wolf, otter, beaver, mink, skunk, and deer all fed near its banks. Lenape culture developed in concert with this rich community of life, their rituals and beliefs tied to the rhythms and cycles of the world around them. Among neighboring tribes the Lenape were known for their peaceful ways and lack of interest in territory. Their lives were neither easy nor idyllic, but they caused little disruption on the land. Their population – estimated to be about twelve thousand in the 1600’s – was relatively stable. Even after many thousands of years of human habitation, the waters of the river the Lenape named for themselves, the Lenapewihittuk, remained pristine.

Little more than four hundred years ago, in 1610, an English ship captain entered the huge bay into which the Lenapewihittuk emptied. He did not fully explore it, but he did name it for Lord De La Warr. The Lord was the newly appointed leader of Jamestown, the first permanent English settlement in the Americas. That same year, De La Warr, a veteran of bloody battles against the Irish, had arrived from England. In the years that followed, Lord De La Warr convinced the beleaguered Jamestown settlers to stay in the New World. He also lead brutal raids against the Powhatan Indians near the Chesapeake Bay, penned a memoir in England, and, in 1618, drowned in the Atlantic on a return trip to the Americas. But Lord De La Warr never visited his namesake, which was shortened to Delaware Bay. The name stuck, and even spread. Land around the bay, as well as the river that fed the bay, also came to be known as Delaware.


What is in a Name?

A river must surely be indifferent to the names that humans call it. A name is just a name, after all, a mere representation of the actual thing. It can’t change the river’s color, its unpredictable currents, its restless zigzag path, or the forests that shade it. Nevertheless, for the river and everything around it, the transition in name from Lenapewihittuk to Delaware signaled a major shift in the human consciousness that was entering the region. And that newer human consciousness, in the years ahead, could and did change the river’s color and unpredictable currents, its path, and the surrounding terrain and ecology. Change came fast and furious, and from the river’s perspective, the changes were devastating. By the late 1800s, the river would be nearly unrecognizable to the handful of Lenape inhabitants who were still alive to see it.

Probably the first species to disappear was the beaver, which was prized for its pelts. The Lenape themselves were not far behind. By the end of the 1700s, most Lenapes had been killed, wiped out by disease, or chased westward. (A small number of Lenapes, the ancestors of today's Ramapough Lenape Nation, Nanticoke Lenape, and Powatan Renape tribes, stayed in New Jersey.) Within another 100 years, the forests surrounding the upper Delaware were also gone, a casualty of the timber industry. The logs were floated downstream in immense rafts until there were literally no more lumber-worthy trees to be felled. Where there were once trees there were now fields, and the river filled with silt. Many of the fish and other animals dependent on clear water died out.

In less than 200 years, European settlers and their European ideas had transformed the river’s fate. This new human industriousness -- our mines, farms, towns, cities, factories, reservoirs, and roads – would from now on affect the evolution of the river. The story of the Delaware River’s precipitous decline, in water quality, in animal and plant diversity, and in the surrounding forests and soil and air, is lengthy and complex. Nevertheless, the story follows a familiar trajectory to anyone who has studied the recent history of almost any bioregion on the North American continent.


A variety of dynamics drove the drastic shifts during those two centuries. But, undeniably, as human consciousness shifted from indigenous to western in the Upper Delaware region, the river suffered. There are many differences between the native and non-native cultures, but one in particular draws attention. Lenape traditions viewed the natural world as infused with divine spirit. Plants, trees, fish and mammals were manifestations of the Manitowuk, the Great Spirit. This creator had brought forth the world and then inhabited it in many forms. Their river, the Lenapewihittuk, had spirit too. Steeped in this worldview, the Lenape honored the river and treated it with great and abiding respect.

European tradition also conveyed belief in a creator who made the world. But from their perspective, only humans were infused with divine spirit, and only humans were created in the creator’s image. The natural world, while being “good,” was devoid of spirit. It was to be honored, but not for containing divine spirit. Thus it functioned as a means for human sustenance, economic or social advancement, and pleasure. For many, nature was only a way station on the path to heaven. The plants, the animals, and the rocks mostly were valued as an infinite bank of resources. That these resources could ever run out or become extinct due to human actions was unthinkable. The river and its surroundings were free for the taking. These intertwined concepts and beliefs held together as a basic cosmology that became the foundation of most western institutions.


Today, we are able to communicate a new story of creation to our children. We are among the first to discover and comprehend new insights about the process of how things have come to be. It is a cosmology that exists outside the realm of traditional beliefs. That this cosmology is based in scientific observation, not religion, does not diminish its spiritual power. It is the story of an incredible unfolding of life that has gone on for billions of years. It is the story of a tremendous drive within our planet, stretching it toward creativity, toward life, toward diversity, toward beauty and compassion. It is the story of atoms and molecules that all come from the same source, and that make up and unite the living with the non-living. What the Lenape intuited we are now able to prove empirically. The planet and all its creatures, the entire community of life, is an interconnected and interdependent whole. But it is a fragile whole with finite capacities.

Our growing sensitivity to the Delaware River’s role in our own health and survival is undermined, nevertheless, by contemporary concepts of “progress.” New technologies, developments, and chemicals are being introduced at a frenetic pace. There is limited testing or thought about their long-term impact on the health of people and the region. And while these new endeavors present enticing opportunities for corporate and individual profit, many introduce additional threats to the river and bioregion. Action, if any, occurs after the damage has begun. The myth that our planet can support unlimited economic growth remains firmly entrenched; the idea that human progress comes at the expense of the larger community of life is still taken for granted. As Thomas Berry writes, “We are so deeply committed to the exploitative mode of relating to the natural world that those in control of the great corporations can hardly think about modifying the exploitation in any significant manner.”

Today: Two Major Threats
Over the past several years, energy companies have been working to expand both electric power lines and natural gas pipelines in the region. Their plans, a likely reaction to the reality of “peak oil,” were conceived and developed behind closed doors and without public scrutiny. As their plans become public, company representatives stress the importance of creating new jobs and stimulating the economy, of preserving access to energy, and of the limited impact on the immediate bioregion. Whether they are true or not, these are the arguments made for almost every energy infrastructure project in North America, if not worldwide. They certainly appease our public officials, who have voiced little concern or opposition. But these projects also will further entrench our old energy infrastructure, which continues to warm the planet and deplete the river.

The Susquehanna to Roseland (S-R) transmission line would expand a network of electricity sources fed by nuclear and coal-burning power plants. The current line runs 130 miles, from Berwick, Pennsylvania to Roseland, NJ, under the Delaware River and across federally protected lands. The expansion plan involves widening the existing right of way to replace the current eighty-foot high poles with ones that are nearly two hundred feet tall. The goal is to replace the wires to allow more voltage through. This project has now been approved by New Jersey’s Board of Public Utilities and has been made a priority by the Obama administration.


The National Park Service oversees three areas that the transmission line is planning to cross: 1) the Delaware Water Gap National Recreation Area, 2) the federally protected “wild and scenic” portion of the Delaware River, and 3) the Appalachian Trail that runs from Maine to Georgia. In its detailed environmental impact statement, the Park Service stated that the transmission expansion project would have “enduring and serious” impacts to the parkland around the Delaware River. These very impacts, as well as concern about the residential neighborhoods that the line will pass through, generated vigorous public opposition at hearings held in 2012. Nonetheless, the Park Service approved the project in late 2012.

This transmission line expansion is now one lawsuit away from becoming reality. Earthjustice filed a lawsuit on behalf of local environmental groups who are challenging the National Park Service’s approval of the line through federally protected lands. For now, construction through the park has been delayed until the courts decide whether or not the Park Service’s decision was legal. If the transmission line is approved, construction could begin as early as this September.

The Expansion of Natural Gas Pipelines

In addition to the transmission line project, there are also at least twelve new or expanded natural gas pipelines planned for crossing the Delaware River basin. Like the line expansion, the construction of the various pipeline projects is the subject of controversy and public outcry. The Tennessee Gas Pipeline project, which currently runs across northern New Jersey, is one of these many pipeline expansion projects. The project will involve drilling and laying pipe under the Delaware River and crossing at least another eighty bodies of water. Opponents, who include in their ranks the Ramapough Lenape Nation, have taken photos, organized demonstrations, and put their bodies in the path of loggers. The construction, however, continues.

Gas companies seek to expand the natural gas pipeline network because of fracked natural gas coming out of Pennsylvania and other parts of the Marcellus Shale region. There is now so much gas that the old pipelines are too small to handle the volume. Gas consumers in New Jersey are enjoying relatively low costs for heating homes and water, but these benefits have blinded many to the high costs to the land and the river. Major habitat loss, erosion, and potential gas leaks are expected. Moreover, the intentionally piecemeal approach the companies have taken toward the planning, permitting and building of each of these dozen pipeline projects works against any commonsense analysis of their collective ecological impact.


Incredibly, New Jersey’s current policy actually creates a financial incentive for private corporations to build pipelines across our publicly protected parks and preserved lands. It is a little known fact that pipeline companies pay far lower fees to compensate public entities for land acquisition than they do to compensate private landowners. Therefore many pipeline routes are tearing through public lands that were purchased and acquired for the purpose of protecting fragile ecosystems. Scientists report that rare and endangered species – like the bobcat, the brown bat, the bog turtle – will suffer disproportionately from the pipeline projects, as those species are highly susceptible to human disruption.

That we are destroying some of the only places left with any intact ecosystem is clearly not of concern to the Tennessee Gas Pipeline Company, which has a startling record for regulatory violations. Most recently, in April, they were fined $175,000 by the state Department of Environmental Protection for failing to replant their ravaged pipeline pathways through Waywayanda State Park in New Jersey.

The Expanded Commitment to Fracking

Unfortunately, the ecological damage caused by fracking goes far beyond the installation of the new and expanded pipelines needed to carry it to market. The list of the serious damage being wreaked by the fracking process itself is lengthy and well documented. Although natural gas burns more cleanly than coal and oil, fracking and gas delivery processes involve the release of methane, a potent greenhouse gas linked to climate change, into the atmosphere. Fracking is still largely exempt from the Clean Water Act and the Clean Air Act, so the proprietary mix of water and hazardous chemicals injected far underground — used to release gas from the rock — are shielded from impartial testing and public scrutiny. Toxic radioactive waste water from fracking is also a major concern. While the vast majority remains underground, some makes its way back up to the surface. The wastewater sits in stagnant ponds where it can leak and run off, poisoning aquifers and wildlife. The waste also gets delivered to water treatment systems, which are not equipped to handle this new waste and discharge it into ponds, rivers and lakes.

The enormous increase in domestic fracking and its tremendous machinery and use of resources has produced threats of a different scale. Geologists have now confirmed that the horizontal drilling commonly used in fracking is linked to earthquakes in the United States. A recent study estimates that during the last four years, the number of earthquakes in the middle of the U.S. — states where fracking activity has increased substantially — was eleven times higher than the average rate during the previous thirty years.


Fracking is also contributing to a massive disruption of the planet’s water cycle. As scientist and water expert Maude Barlow has pointed out, we learned in grade school that the hydrologic cycle was a closed one, but that was an oversimplification. It was a lesson taught without considering the human capacity for shooting water far underground, or for polluting it so badly it becomes unusable. With fracking, both of these activities are commonplace. The sheer quantity of water used up by fracking is nothing short of alarming. One fracking well pad injects at least 5 millions of gallons of water mixed with sand and toxic chemicals far underground, below any aquifers. Those five million gallons of poisoned water – enough to fill a cube that is 51 feet on each side – have exited the water cycle forever. There are 500,000 gas wells in the United States and tens of thousands of new fracking wells built each year. As fresh water becomes rare, droughts more frequent, and the climate more unpredictable, we realize our stark dependence on a finite and precious resource: clean, drinkable water. It is suicidal to squander it.

And so we circle back to the Delaware River, that river that has flowed for so many millions of years through this land we are fortunate to call home. To say that these latest projects — the transmission line, the gas pipelines, the fracking — are a dire threat to the Delaware River greatly understates the problem. But the river is a lens through which we can view our future, the future of the plants and animals around us, the future of the wetlands and lakes, the future of the planet. What is bad for the river will be bad for humans and the community of life. We now realize that a cultural, political and legal system that focuses solely on our human needs and desires will, ironically, fail to protect a matrix of life that supports us, our children, and our children’s children. If there were ever a time to realize that our worldview is inadequate, to realize that our human-centered ways of creating cultures of separation and hierarchy is  counter to life, it is now. How can humans assume they have divinely-granted rights over the whole world?


The Rights of the River

That leads us again to consider the question: does the river in and of itself have a reason for being, a right to exist and a purpose beyond whatever immediate tasks humans demand of it? Surely it must have earlier, during those many millions of years ago, before humans even walked the Earth. And surely it must today, because the river supports not just people, but plants and forests, fish and birds and animals of all sizes. It flows into the salt marshes, which filter the bay where horseshoe crabs lay eggs that feed migratory birds flying halfway around the planet. Such interdependent global relationships are not just awe inspiring, but essential and commonplace. The web connecting the living to the nonliving spreads out in every direction. The river replenishes aquifers, evaporates into clouds, falls as rain, and collects in ponds and lakes. It plays a critical role in the great evolving drama of life. Certainly the health and fate of the river shouldn’t always be defined by and subordinate to the private property interests of humans who happen to settle or conduct business near its banks.

Though this perspective on the river’s innate importance, what we could call the river’s right to be, might have been second nature to the Lenape and many other indigenous peoples, it is still outside the scope and body of most contemporary law. Yet the idea that the natural world has inherent rights, that rights are not the exclusive domain of the human, is one that is slowly emerging. Last year, a New Zealand river was granted legal rights for the first time. Under an agreement reached between the government and local Maori people, who have a longstanding lawsuit against it, the Whanganui River will be recognized in the courts as an integrated, living whole. Each party to the suit will appoint a guardian to represent the river and its long-term interests.

And in 2011, on the other side of the world, two lawyers became the first to sue under Ecuador’s “Rights of Nature” provision in its new constitution. The lawyers sued on behalf of the Vilcabamba River after it was seriously damaged during government road construction. The Provincial Court of Loja, which heard the case, decided in the river’s favor, finding that the road had polluted the water, altered the river’s flow, and flooded homes and farms.

The “Rights of Nature” movement emphasizes that human rights, and human laws, should be subject to the fundamental laws of the natural world. The movement's rationale is not that humans are less important than previously thought; it’s that we now fully and consciously understand that humans are a part of a larger planetary system upon which we all depend. The laws of the natural world are out there whether or not humans choose to acknowledge or honor them. We ignore them at our own peril. Not surprisingly, this movement has gained the greatest traction with indigenous peoples who still carry a deep understanding about the interconnection of all life. But these ideas about what is now called “Earth jurisprudence” have spread to the realm of conventional western culture and thought as well.

Thomas Berry’s short 2001 reflection, The Origin, Differentiation and Role of Rights, was one of the first attempts to articulate the rights of non-humans within a western legal framework. In it, Berry asserted that rights derive from the ultimate source of all, the Universe. “Rights originate where existence originates,” states the opening line. Berry saw that human rights were essentially a subset of a constellation of rights available to every member of the Earth community. “Every component of the Earth community has three rights,” Berry writes. “The right to be, the right to habitat, and the right to fulfill its role in the ever-renewing process of the Earth community.”

Berry’s expansive interpretation opens up a dizzying array of new rights that our western brains have barely begun to contemplate, let alone to define or enforce in the public sphere. Skeptical questions quickly come to mind. After all, how would our institutions actually begin to apply such rights in real life settings? How to honor a tree’s right to be, a beaver’s right to habitat, or a river’s right to fulfill its role in the Earth community? How to make decisions when there are conflicting interests to weigh? Wouldn’t it require too much knowledge about too many things? Would acknowledging the rights of nature cripple the rights of humans everywhere?

The answers to these questions are anything but black and white. But perhaps our skeptical array of questions, in particular the last one above, betray a western tendency to view human interests as being at odds with the natural world’s. This is a dynamic we inherited from a worldview that sees nature as separate and apart, and that views the Earth as an infinite resource for exploiting. This worldview, we now know, is not only false but also self-defeating. As Cormac Cullinan has written in his seminal book, Wild Law, “if laws are to be effective they need to recognise the inherent nature of the subject matter with which they are concerned.” Laws that ignore the reality of how our planet works will ultimately fail us. Humans depend on the intricate workings of the natural world for survival, but if our system of government operates at the expense of the natural world, the consequences will continue to be disastrous.

As we consider the rights of the Delaware River, it is heartening to know there are so many organizations advocating on its behalf. In particular, groups like the Delaware Riverkeeper Network, NJ Sierra Club, The Highlands Coalition, and Food and Water Watch have shown tremendous leadership in being a voice for the river. But the stakes are such that we cannot just count on these committed few to do all the work for us. This is the time of a great contraction of life that is being propelled by human behaviors. Not since the close of the Mesozoic era, the end of the age of dinosaurs, has the Delaware River been witness to a greater mass extinction. Our window of opportunity for counteracting detrimental human activities — in particular, those like fracking — is steadily shrinking. It is human nature to avoid confronting hard choices that can be personally and socially challenging, but consider what’s at stake. If the river is lost, so much is lost with it. In this race against time, we are all called upon to do our part, to be the river's voice, and to create new possibilities for it to survive and flourish.

The river is old, and it is big. And it has rights.