The Source

by Martin Doyle

  34This idea of the central role of experiment in America’s government is well stated by T. Ferris, The Science of Liberty: Democracy, Reason, and the Laws of Nature (New York: HarperCollins, 2010), 101–5.

  35For an early description of states as laboratories of policy, see New State Ice Company v. Liebmann, 285 U.S. 262, 311.

  Chapter 5: Water Wars

  1One of the most fascinating perspectives of the Klamath water wars is that told through the actions of the office of U.S. Vice President Dick Cheney. B. Gellman, Angler: The Cheney Vice Presidency (New York: Penguin Press, 2008), 195–213.

  2P. Bump, “That Time Ronald Reagan Joined a ‘Rebellion’—but Still Couldn’t Change Federal Land Laws,” Washington Post, January 4, 2016.

  3W. Cronon, Changes in the Land: Indians, Colonists, and the Ecology of New England (New York: Hill & Wang, 1984), 69–71.

  4J. W. Dellapenna, “The evolution of riparianism in the United States,” Marquette Law Review 95 (2011): 53–95.

  5Many have written about the development and evolution of western water law. The historian Donald Worster’s account is particularly accessible and recognizes that prior appropriate doctrine arose in different regions of the West almost simultaneously. D. Worster, Rivers of Empire: Water, Aridity, and the Growth of the American West (New York: Oxford University Press, 1985), 87–96.

  6The role of public lands is underemphasized as a factor in prior appropriation. D. J. Pisani, “Enterprise and equity: A critique of western water law in the nineteenth century,” Western Historical Quarterly 18 (1987): 21–22.

  7For dimensions of canals in Utah and Wyoming, see L. J. Arrington and D. May, “A different mode of life: Irrigation and society in nineteenth-century Utah,” Agricultural History 49 (1975): 8. Walter Webb famously argued that appropriation doctrine was purely a product of geography; it was a law dictated by the law of nature. But Worster argues that it was a product of the time, Bretsen and Hill hold that it was product of need of capital, and Pisani says it was an effect of predominance of public lands. W. P. Webb, The Great Plains (Boston: Ginn, 1931), 431–52; Worster, Rivers of Empire, 87–92; S. N. Bretsen and P. J. Hill, “Irrigation institutions in the American West,” UCLA Journal of Environmental Law and Policy 25 (2006): 283–332; Pisani, “Enterprise and equity,” 21–22.

  8Lee’s Ferry bears the name of what is most likely a falsely accused but executed Mormon settler, and its history is well worth knowing before any excursion into the Grand Canyon. M. Ghiglieri and T. M. Myers, Over the Edge: Death in the Grand Canyon (Flagstaff, AZ: Puma Press, 2012), 497–507.

  9A. B. Murphy, “Territory’s continuing allure,” Annals of the Association of American Geographers 103 (2013): 1212–26. The concept of sovereignty applied to the United States—the individual versus the state—has received considerable philosophical attention. J. B. Elshtain, Sovereignty: God, State, and Self (New York: Basic Books, 2008), 152–57.

  10For a review of the Harmon Doctrine, as well as its almost complete and immediate abandonment in international water negotiations, see S. C. McCaffrey, “The Harmon Doctrine one hundred years later: Buried, not praised,” Natural Resources Journal 36 (1985): 549–90.

  11Kansas v. Colorado, 185 U.S. 143 (1902). For a brief review of the case: N. Hundley, Water and the West: The Colorado River Compact and the Politics of Water in the American West, 2nd ed. (Berkeley: University of California Press, 2009), 74–76.

  12A. T. Wolf, “International water agreements: Implications for the ACT and ACF,” in Interstate Water Allocation in Alabama, Florida, and Georgia, ed. J. L. Jordan and A. T. Wolf (Gainesville: University Press of Florida, 2006), 139.

  13The background for the Colorado Compact, the events of the commission, and the intricate details are vast. Hundley’s Water and the West is the superb history.

  14Hundley, Water and the West, 188–89. There are interesting similarities between this commission and the Constitutional Convention—such as seclusion to allow compromise. They also both hinged on a single, broad compromise that allowed for subsequent (previously intractable) negotiations.

  15The additional 1.5 million acre-feet (MAF) is for the lower basin and not for delivery at Lee’s Ferry. It remains, in fact, an unresolved issue. Arizona has typically argued that it represents the Gila River. Mexico was not part of the initial negotiations; in 1944 the United States signed a treaty with Mexico that allocated 1.5 MAF per year to Mexico and made it the most senior appropriator.

  16California’s agreement to live within 4.4 MAF didn’t really happen until 2003, under the Quantitative Settlement Agreement. The Supreme Court interpreted the Boulder Canyon Project Act as Congress allocating the water so that California got 4.4 MAF, but California continued to use much more water than that for most of the century.

  17Arrington and May, “A different mode of life,” 3–20.

  18Bretsen and Hill, “Irrigation institutions in the American West,” 5–6.

  19This was certainly not the opinion of many western leaders at the time, who thought the federal government should have a limited role and should devolve the public lands to the states. The primary arid lands scientist of the nineteenth century, John Wesley Powell, instead pushed for the federal government to retain ownership and take on the role of building the water storage, delivery, and irrigation works so that small farmers would have a chance of making it in the West. Although states’ rights advocates drove Powell out of the political arena, most of his opinions and recommendations were realized in the opening decades of the twentieth century. Ironically, John Elwood Mead, who later became commissioner of the Bureau of Reclamation, had once advocated for local control and efforts in western water development. W. L. Graf, Wilderness Preservation and the Sagebrush Rebellions (Savage, MD: Rowman and Littlefield, 1990), 19–30; J. R. Kluger, Turning Water with a Shovel: The Career of Elwood Mead (Albuquerque: University of New Mexico Press, 1992), 2, 18–23, 115–29.

  20Arrington and May, “A different mode of life,” 10.

  Chapter 6: A New Water Market

  1J. F. Kenny et al., Estimated Use of Water in the United States in 2005 (Washington, DC: U.S. Geological Survey Circular 1344, 2005).

  2At 317 Strickler v. City of Colorado Springs, 26 P. 313 (Colo., 1891). This is one of the first cases in Colorado dealing with the legality of purchasing an agricultural water right for municipal use.

  3Summary statistics on national water market transactions are difficult because the vast majority of transactions are informal, bilateral trades that are not managed in a central database. The most comprehensive information available is a proprietary database kept by WestWater Research: M. Payne and T. Ketellapper, The 2016 Water Market Outlook: Performance, Growth and Investment Trends in the Water Rights and Water Resource Development Sector (Phoenix, AZ: WestWater Research, 2016). For Freeport-McMoRan purchase of water, see J. W. Miller, “Copper Miners Pressured by Cost of Water as Mineral Prices Slide,” Wall Street Journal, May 22, 2014.

  4E. K. Wise, “Tree ring record of streamflow and drought in the upper Snake River,” Water Resources Research 46, no. 11 (2010).

  5C. W. Stockton and G. C. Jacoby, “Long-term surface water supply and streamflow levels in the Upper Colorado River Basin,” Lake Powell Research Project Bulletin (1976): 18; C. A. Woodhouse, S. T. Gray, and D. M. Meko, “Updated streamflow reconstructions for the Upper Colorado River Basin,” Water Resources Research 42 (2006).

  6J. Garner, “Drought in Colorado Is Foreign to New Residents,” Rocky Mountain News, May 3, 2002.

  7P. C. D. Mill et al., “Stationarity is dead. Whither water management?” Science 319 (2008): 573–74.

  8N. Hundley, Water and the West: The Colorado River Compact and the Politics of Water in the American West, 2nd ed. (Berkeley: University of California Press, 2009), 302–3.

  Chapter 7: Running Water

  1M. Lind, The Land of Promise: An Economic History of the United States (New York: HarperCollins, 2012), 46.

  2L. P. Cain,
“Raising and watering a city: Ellis Sylvester Chesbrough and Chicago’s first sanitation system,” Technology and Culture 13 (1972): 353–72.

  3J. J. Wallis, “American government finance in the long run: 1790 to 1990,” Journal of Economic Perspectives 14 (2000): 66–67. For Erie Canal bonds as secure currency, see P. L. Bernstein, Wedding of the Waters: The Erie Canal and the Making of a Great Nation (New York: W. W. Norton, 2005), 232–34, 352–54.

  4“Valuation, taxation, and public indebtedness, VII,” Tenth Census of the United States, 1880 (Washington, DC: U.S. Government Printing Office, 1884), 523–26.

  5C. Webber and A. Wildavsky, A History of Taxation and Expenditure in the Western World (New York: Simon & Shuster, 1986), 382; R. G. McGrane, Foreign Bondholders and American State Debts (New York: MacMillan and Company, 1935), 265–67. Poem is from Webber and Wildavsky, History of Taxation and Expenditure, 383.

  6C. Gibson, Population of the 100 Largest Cities and Other Urban Populations in the United States 1790–1990; Population Division Working Paper No. 97 (Washington, DC: U.S. Bureau of the Census, 1998).

  7L. Cain, Sanitation Strategy on a Lakefront Metropolis (De Kalb: Northern Illinois University Press, 1978), 1–5.

  8J. A. Tarr, J. McCurley, F. C. McMichael, and T. Yosie, “Water and wastes: A retrospective assessment of wastewater technology in the United States, 1800–1932,” Technology and Culture 25 (1984): 228–30.

  9J. T. Cumbler, Reasonable Use: The People, the Environment, and the State, New England 1790–1930 (New York: Oxford University Press, 2001), 50–62.

  10Cain, Sanitation Strategy on a Lakefront Metropolis, 20–26.

  11Tarr et al., “Water and wastes,” 237; in particular see table 1 (p. 238), which synthesizes statistics from the U.S. Bureau of the Census, specifying the mileage of storm sewers, sanitary sewers, and combined sewers.

  12Cain, Sanitation Strategy on a Lakefront Metropolis, 26–32.

  13E. O. Jordan, “Typhoid fever and water supply in Chicago,” Journal of the American Medical Association 39 (1902): 1561–66.

  14J. A. Egan, Pollution of the Illinois River as Affected by the Drainage of Chicago and Other Cities (Springfield, IL: Phillips Brothers, 1901), xxvii, xx.

  15S. K. Schultz and C. McShane, “To engineer the metropolis: Sewers, sanitation, and city planning in late-nineteenth-century America,” Journal of American History 55 (1978): 393, 410.

  16For the evolving dispute between physicians and engineers at the turn of the twentieth century, see generally Tarr et al., “Water and wastes,” 243–45. The quote about “more equitable” is from “Sewage Pollution of Water Supplies,” Engineering News 48 (August 1, 1903): 117. The quote “a true and greatest conservationist” is from “A plea for common sense in the state control of sewage disposal,” Engineering News 67 (February 29, 1912): 412–13. The quote “sentimentalist” is from “Relations between sewage disposal and water supply are changing,” Engineering News Record 28 (April 5, 1917): 11–12. For more about 90 percent of wastewater going untreated, see W. L. Andreen, “The evolution of water pollution control in the United States—State, Local, and Federal Efforts, 1789–1972: Part I,” Stanford Environmental Law Journal 22 (2003): 167.

  17Cain, Sanitation Strategy on a Lakefront Metropolis, 64.

  18In fact, the flow of the Chicago River had been reversed as early as 1871. But the reversal of the 1880s was the most significant as a permanent reversal of flow.

  19Cain, Sanitation Strategy on a Lakefront Metropolis, 73.

  20Egan, Pollution of the Illinois River, xxviii.

  21Cain, Sanitation Strategy on a Lakefront Metropolis, 146–48, particularly financial data in appendix 2.

  22D. Cutler and G. Miller, “Water, water everywhere: Municipal finance and water supply in American cities,” in Corruption and Reform: Lessons from America’s Economic History, ed. E. L. Glaeser and C. Goldin (Chicago: University of Chicago Press, 2006), 171–73. In the years between the panic of 1873—when states greatly constrained municipal borrowing—and 1890, many towns financed their waterworks through private franchises. Private capital was used to construct the waterworks, but with extremely attractive rights such as exemption from taxes, eminent domain, and freedom from price regulation; such rights were eventually constrained. After 1875, most franchises gave cities the option to purchase the privately constructed infrastructure at any time, which cities eventually did. L. Anderson, “Hard choices: supplying water to New England towns,” Journal of Interdisciplinary History 15 (1984): 218–21.

  23Cutler and Miller, “Water, water everywhere,” 173–76.

  24J. C. Teaford, City and Suburb: The Political Fragmentation of Metropolitan America, 1850–1970 (Baltimore, MD: Johns Hopkins University Press, 1979), 79.

  25Wallis, “American government finance in the long run,” 70.

  Chapter 8: Burning Rivers

  1Anaerobic means there is no free oxygen; oxygen is available, but it is not free atmospheric oxygen and is instead CO2.

  2C. Webber and A. Wildavsky, A History of Taxation and Expenditure in the Western World (New York: Simon & Shuster, 1986), 422–24.

  3J. J. Wallis, “American government finance in the long run: 1790 to 1990,” Journal of Economic Perspectives 14 (2000): 61–82.

  4M. V. Melosi, The Sanitary City: Environmental Services in Urban America from Colonial Times to the Present, abridged ed. (Pittsburgh, PA: University of Pittsburgh Press, 2008), 236.

  5Melosi, The Sanitary City, 198–202.

  6E. H. Monkkonen, The Local State: Public Money and American Cities (Stanford, CA: Stanford University Press, 1995), 116; C. R. Hulten and G. E. Peterson, “Capital stocks: Needs, trends, and performance,” American Economic Review 74 (1984): 169.

  7The 1972 act was named the Federal Water Pollution Control Act. After being revised in 1977, it was renamed the Clean Water Act; the Clean Water Act is generally taken to refer to the 1972 act.

  8C. E. Colten and P. N. Skinner, The Road to Love Canal: Managing Industrial Waste before EPA (Austin: University of Texas Press, 2010), 59–60.

  9G. D. Cooke, ed., The Cuyahoga River Watershed: Proceedings of a Symposium held at Kent State University (Kent, OH: Institute of Limnology & Department of Biological Sciences, Kent State University, 1968), 90–91.

  10G. Powell, “Walter B. Jones Memorial Award for Coastal Steward of the Year,” NOAA Press Release 2005-R416 (Washington, DC: National Oceanic and Atmospheric Administration), 2005.

  11I am indebted to Terrianne Schulte for guiding me through her earlier work on the League of Women Voters and their role in regulating water pollution, and particularly the role of Edith Chase. T. K. Schulte, “Grassroots at the Water’s Edge: The League of Women Voters and the Struggle to Save Lake Erie, 1956–1970” (PhD dissertation, Department of History, State University of New York at Buffalo, 2006). For information on the history of women in urban sanitation, see S. M. Hoy, “Municipal housekeeping: The role of women in improving urban sanitation practices, 1880–1917,” in Pollution and Reform in American Cities, 1870–1930, ed. M. V. Melosi (Austin: University of Texas Press, 1980), 173–98; J. Price, Flight Maps: Adventures with Nature in Modern America (New York: Basic Books, 1999), 62.

  12League of Women Voters, Lake Erie, Requiem or Reprieve? A Study of Lake Erie Problems (Cleveland, OH: League of Women Voters, Lake Erie Basin Committee, 1966).

  13Pages 32–42 in Lake Erie, Requiem or Reprieve? is as fine an analysis of water quality policy and options as would be found in most reports from contemporary think tanks.

  14A thorough review of the rhetoric and reality around the fire can be found in J. H. Adler, “Fables of the Cuyahoga: Reconstructing a history of environmental protection,” Fordham Environmental Law Journal 14 (2003): 89–146.

  15C. D. Jacobson and J. A. Tarr, “Ownership and financing of infrastructure: Historical perspectives,” Policy Research Working Paper 1466 (Washington, DC: World Bank, 1994), 15.

  16Melosi, The Sanitary City, 358.


  17For a review of different nutrient limitations in different societies, see D. Cordell, J. Dranger, and S. White, “The story of phosphorus: Global food security and food for thought,” Global Environmental Change 19 (2009): 292–305.

  18Vaclav Smil has provided a very readable history of how nitrogen was synthesized as part of war efforts, how it transformed world food production, and how it has affected the environment: V. Smil, Enriching the Earth: Fritz Haber, Carl Bosch, and the Transformation of World Food Production (Cambridge, MA: MIT Press), 2001.

  19R. E. Turner, N. N. Rabalais, and D. Justice, “Gulf of Mexico hypoxia: Alternate states and a legacy,” Environmental Science and Technology 42 (2008): 2323–27.

  20U.S. Environmental Protection Agency, The National Water Inventory: A Report to Congress for the 2002 Reporting Cycle (EPA 841-F-07-003), October 2007.

  21W. B. Hildreth and C. K. Zorn, “The Evolution of the State and Local Government Municipal Debt Market over the Past Quarter Century,” Public Budgeting & Finance, 2005, 127–53.

  22Moody’s Investor Service, “U.S. Municipal Bond Defaults and Recoveries, 1970–2009,” Credit Policy, February 2010, exhibit 10.

  23A law review of municipal sector interest swaps is found in J. Redmond, “State and local governmental entities: In search of . . . statutory authority to enter into interest rate swap agreements,” Fordham Law Review 63 (1995): 2177.

  24L. J. Stewart and C. A. Cox, “Debt-related derivative usage by U.S. state and municipal governments and evolving financial reporting standards,” Journal of Public Budgeting, Accounting, and Financial Management 20 (2008): 466–83; R. Weber, “Selling city futures: The financialization of urban redevelopment policy,” Economic Geography 86, no. 3 (2010), 251–74.

  25There are many analyses of the Jefferson County finances and events; two in particular provide a chronology along with an extremely useful description of the financial instruments that were used: D. V. Denison and J. B. Gibson, “A tale of market risk, false hope, and corruption: The impact of adjustable rate debt on the Jefferson County, Alabama, Sewer Authority,” Journal of Public Budgeting, Accounting, & Financial Management 25 (2013): 311–45; M. E. Howell-Moroney and J. L. Hall, “Waste in the sewer: The collapse of accountability and transparency in public finance in Jefferson County, Alabama,” Public Administration Review 71, no. 2 (2011): 232–42.